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Visa Fees Raised to Fund Border Security

The USCIS has started to implement the fee increase in H-1B and L petitions as mandated by Public Law 111-230, also known as the Border Security Emergency Supplemental Appropriations Act of 2010.

The fees collected will help fund the $600 million project of the Obama Administration to enhance border protection and law enforcement.

The hike in the filing fees are $2,000 for the H-1B petitions and $2250 for L-1A and L-1B petitions.  Subject to the hike are petitions postmarked on or after August 14, 2010.  It will remain in effect until September 30, 2014.

The additional fees are required to be paid by petitioners that employ 50 or more employees in the United States with more than half of the said employees in H-1B or L (including L-1A, and L-1B, and L-2) nonimmigrant status.  Full-time and part-time employees are included in the count.

When filing an H-1B or L petition, the petitioner will now have to include the additional fee or a statement outlining why the new fee does not apply.  If the USCIS does not receive the additional fee or a statement of explanation for nonpayment, it may issue an RFE (Request for Evidence).

Prior to the new law, the filing fees were $320 (base processing fee), $500 (fraud prevention and detection fee) and the applicable ACWIA fee ($1500 or $750) needed to file an I-129 form.  A separate fee of $1000 was also required for premium processing.

The visa fee hike has been criticized as unfair and discriminatory by Indian IT companies that would be affected the most.  They file an estimated 50,000 visa petitions, including H-1B and L-1 visas annually.

But Senator Charles Schumer, the main proponent of the new law and the fee hike to fund it said: “If you are using the H-1B visa to run a glorified international temp agency for tech workers in contravention of the spirit of the program, I and my colleagues believe that you should have to pay a higher fee to ensure that American workers are not losing their jobs because of unintended uses of the visa program.”

Senator Schumer also said that the border security bill had to be passed in order to generate Republican support for the comprehensive immigration reform bill that he has been passionately advocating.

President Obama who had endorsed the bill that he signed last August 13 said: “The resources made available through this legislation will build upon our successful efforts to protect communities along the Southwest border and across the country…So these steps will make an important difference as my administration continues to work with Congress toward bipartisan comprehensive immigration reform to secure our borders, and restore responsibility and accountability to our broken immigration system.”

Immigration advocates however have expressed doubts that the new law will help push immigration reform.  The president of the League of United Latin American Citizens said: “Efforts to overhaul our broken immigration system have once again taken a back seat to appeasing anti-immigrant xenophobes, as Congress passed another dramatic escalation in border enforcement with very little evidence that the past escalations have been effective.”

Consular Processing of Immigrant Visa

Beneficiaries of immigrant visa petitions who are abroad process their immigrant visa at the U.S. consulate of their home country.  It is important that they familiarize themselves with the rules and procedures of that particular consulate.

Visa applications must be pursued within one year from the date applicants are given notice to apply.  Failure to act within that period will terminate the visa petition.

Petitioners and beneficiaries should periodically monitor the Visa Bulletin in case information relevant to their petitions becomes available.  They must ensure that their mailing information is accurate so that correspondence is not delayed.

Applicants should also inform the National Visa Center or the Immigrant Visa Branch of any changes in the status of the petitioner or the beneficiary such as the relocation or death of the petitioner or the marriage or aging out of the beneficiary.  Such changes may disqualify the applicant or delay the processing.

If the petitioner has become a citizen the petition filed on behalf of an unmarried son or daughter is converted to first preference (F-1) which means a longer wait in the case of a Filipino applicant.  But this can be avoided by applying to opt out of the F-1 conversion and retain the F2B classification.

If the petitioner has moved out of the U.S. the visa application will be denied because of the requirement that the petitioner who is required to submit an Affidavit of Support must be domiciled in the U.S.

The death of the petitioner revokes the petition but it may be reinstated for humanitarian reasons.  A law that was passed last October which allows surviving relatives to continue their green card applications does not apply to those who did not reside in the U.S. at the time of the death of the petitioner and did not continue to reside in the U.S. thereafter.

The marriage of the beneficiary of an F-1 petition converts the petition to F-3 which translates to a longer wait.  The marriage of an F2B beneficiary cancels the petition.

The applicant should be careful in preparing all relevant documents before he/she is given an appointment by the consulate or risk refusal of a visa.  The most common reasons for denial are incomplete or improperly completed Affidavit of Support; insufficient secondary evidence to prove relationship or identity; and outdated police or medical clearance.

An applicant should be truthful and not conceal relevant facts in the visa application and at the interview.  Fraud or misrepresentation may result in the visa denial and may permanently bar the applicant from entering the U.S.

If the applicant follows all directions, submits all the requirements and provides all the necessary documents the likelihood of visa denial is minimal.  So it is in the applicant’s best interest to be prepared.

Good Moral Character Requirement for Naturalization

Good moral character as a requirement for naturalization is “measured by the standard of the community, but does not necessarily require the highest degree of moral excellence.”

The relevant period for determining good moral character is 5 years (or 3 years if married to a citizen) preceding the filing of the application. However the applicant’s conduct and acts prior to the period may be taken into account but will not be the sole basis for denial of the application.

Certain behavior patterns and criminal activities are grounds for disqualification. The applicant must not have established a record of violence or repeated criminal activity.

Commission of the following are grounds for disqualification: corruption, fraud, and perjury, violation of drug laws of the United States or any foreign country, admitting to any criminal act, taking part in illegal commercialized vice, including human trafficking and prostitution, practice of polygamy, or being a habitual drunkard. Murder and aggravated crimes are grounds for immediate denial of the application.

An applicant lacks good moral character if his or her conduct within the applicable period is destructive to family unless he or she is able to establish extenuating circumstances. As it relates to conduct destructive to family, adultery that results in the dissolution of a viable marriage and intentional failure to support dependents are explicitly mentioned as conduct that will cause disqualification.

Furthermore, actions that have resulted in illegitimate children that become wards of the state may preclude a determination of good moral character. Situations that suggest sexual deviance such as incest also are detrimental to a finding of good moral character. Applicants should take special care in providing an explanation for such activity.

Applicants must establish that they are “well disposed” and “attached” to the government of the United States. Broadly speaking, the applicant must be not hostile to the American system of government and must support the United States Constitution.

Applicants must be willing to take the full oath or affirmation of allegiance to the United States without any doubt or reservation. However modifications will be allowed on the basis of moral or religious beliefs. Males must register with the Selective Service to prove that they are “well disposed” and “attached” to the United States.

Registration in the Selective Service is an important requirement and is fundamental to good moral character and establishing the “well disposed” and “attached” standards. All men between the ages of 18 and 26 not subject to exemption must register and provide proof of registration to USCIS. By knowingly and willingly failing to register in the Selective Service, the applicant casts doubt on his “disposition” and “attachment” towards the United States and shows his unwillingness to bear arms on behalf of the United States when legally required to do so.

There are also classes of applicants that are prohibited from naturalizing. Broadly speaking, people fit in a prohibited class if they profess, advocate, or are affiliated with groups that are anarchist, communist, totalitarian, saboteurs, and have published subversive material. Deserters of the United States and those who fled to avoid the draft military are barred from naturalization. People under deportation proceedings are prohibited from naturalization. Applicants relieved from military service not through an honorable discharge are also barred from naturalization.

The good moral character requirement may be daunting for some applicants. It is in the applicant’s best interest to disclose all information and ensure that all answers provided to the USCIS will not lead to disqualification under the good moral character standard.

What You Need to Know About the Naturalization Exam

Applicants for naturalization are required to pass an exam on English and their knowledge of American government and history. Although this exam may seem daunting to applicants, the USCIS reports a 95% pass rate.

The English literacy exam has both an oral and written component. According to the USCIS, applicants are expected to conform to the following standards to pass, “You must read one sentence out of three sentences correctly in English, and you must write one sentence out of three sentences correctly in English.” The standard is not overly strict.

The USCIS officers will allow pronunciation errors and word omissions that do not greatly alter the meaning of the sentence in the oral exam. Minor punctuations, capitalization errors, missing words, and spelling errors do not result in failure. Failure does occur, however, when the errors or omissions change the meaning of the sentence.

The history and civics exam is administered to applicants as well. The objective of the exam is to test the applicant’s knowledge of the benefits associated with citizenship of the United States. It focuses on the establishment of the American system of government and the purpose of the Constitution. Examples of the questions that are asked by the USCIS pertain to presidents of the United States, the Constitution, and crucial events in American history.

The applicant may be tested on events that occurred from the Revolutionary period to the present. This portion seems very daunting on the surface; however the USCIS provides ample materials for applicants to prepare. The USCIS website provides practice questions and sample tests in multiple languages. It is certainly in the applicant’s best interest to prepare for this exam. While most of the questions are fairly easy; some are somewhat more difficult to answer.

Applicants who are unable to pass the exam on the first try are allowed a second attempt to pass it within 90 days after the first attempt. The applicant may request for an extension for good cause.

Not every applicant is required to take the exam, however. Persons physically unable to take the exam due to permanent disability that makes it impossible to learn to speak, read, write or understand the English language are not required to take the English exam. Such disabilities may be due to deafness or blindness. As a rule advanced age or general incapacity to learn are not grounds for exemption. Applicants require an attestation and an N-648 from a licensed medical doctor attached to N-400 application in support of the disability.

It is also important to note that applicants older than 50 years at the date of application that have been permanent residents for more than 20 years and those above 55 years and have resided in the United States as permanent residents may take the exam in their native language.

The USCIS naturalization exam is undoubtedly daunting, but there are materials available to the applicant. Proactive applicants should make their best efforts and use the material provided by the USCIS to become more familiar with English and the knowledge of American government and history required to obtain their citizenship.

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