A foreign national applying for a visa, a green card, or other immigration services may encounter delays or be denied if the U.S. immigration services rely on background information that the foreign national did not know existed. The Freedom of Information Act (FOIA) allows individuals to request information from federal agencies that may be critical to obtaining entrance into the United States. The U.S. government maintains all background information in an “A file,” which can usually be obtained in part or in its entirety with a FOIA request.
The FOIA allows any person, regardless of immigration status, to access information from a federal agency as long as he /she reasonably describes the records requested and submits the request in accordance with the agency’s rules. A person is defined as an individual, partnership, corporation, association, or public or private organization that is not a governmental agency. Therefore, an employer or attorney may request the information on a foreign national’s behalf as long as the third-party has the permission of the foreign national.
Before filing a FOIA case, the applicant should consider whether the information he/she requires is specific to them or general information about the agency. If the information is general, the agency may have proactively released the information on its website. Federal agencies are statutorily required to proactively disclose all final opinions and orders rendered in the adjudication of cases, specific policy statements, and certain administrative staff manuals. If an individual seeks additional information that is not proactively disclosed then he/she should consider submitting a FOIA request to the appropriate agency.
Contrary to what one may believe, most Registered Nurses (RN) or Licensed Practical Nurses (LPN) are not regarded by the government as a profession that is qualified for an H-1B visa. The primary reason lies in the educational requirement for a normal RN or LPN position – typically only two years, which fall short of the four-year college degree requirement for H-1B purposes. To be considered for an H-1B visa, one requirement is that the petitioner, or the employer, must demonstrate that the position is a “specialty occupation.” (see “Basic Overview of the H-1B Visa Qualifications and Procedures”). Generally, a “specialty occupation” can be proved by requiring at least a bachelor degree in a specific field or that the industry standard requires a specific bachelor degree. Usually, nurse manager or an advanced practice positions may qualify for H-1B visas since most of these positions require a Bachelor of Sciences (B.S.) in nursing or a Master of Science (M.S.) degree. However, it may be difficult for RNs or LPNs to be considered for H-1B visas since these positions generally do not require a bachelor’s or higher degree.
Recent Developments at USCIS
In 2002, legacy Immigration Naturalization Service (INS) issued a memorandum providing guidance on this issue and essentially stated that most RN positions would not qualify for an H-1B visa unless the petitioner can establish that the job offered requires at a minimum a college degree. Then, U.S. Citizenship and Immigration Services (USCIS) issued an interim policy memorandum on July 11, 2014 that superseded the former 2002 INS memorandum. The 2014 memo that was later finalized in yet another memo in 2015 discusses the changing industry for nurses and that employers now increasingly expect nurses to have a college degree; however, the adjudicatory standard that USCIS uses to review H-1B applications for nurses has remained essentially unchanged. Currently, the requirements of H-1B for nursing are as below:
The position is a specialty occupation;
The nurse has a degree or equivalent pursuant to H-1B regulations;
The nurse has passed the foreign nurses exam (NCLEX-RN); and
The nurse has passed the state licensure.When an applicant is required to prove a lawful employment before obtaining the license from the state or local authority, and the license is required to practice the profession, USCIS will approve a one-year H-1B petition for the applicant to work on obtaining the license. However, the request to extend the H-1B visa will be denied if the applicant is ultimately unable to obtain the license.
U.S. asylum law is made up of several different legal authorities, including U.S. immigration statutes and regulations, federal case law and international treaties and conventions. People who are outside of the United States may apply for refugee protection under the United Nations Protocol, to which U.S. is a signatory. People who have arrived in the U.S. or are physically inside the country may apply for asylum protection.
In order to qualify for asylum protection, an individual must meet the basic definition of a refugee: [A]ny person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to avail himself or herself of the protection of that country because of persecution or wellfounded fear of persecution on account of race, religion, nationality, membership in particular social group, or political opinion.
What does it mean to be persecuted? The word itself is not specifically defined in the rules and regulations but through case law the courts have found that persecution exists in the following situations:
Serious violations of basic human rights
Target of persistent death threats and threats to property and business
Severe economic deprivation that threatens an individual’s life or freedom, or cumulative forms of discrimination or harassment rising to the level of persecution
Violation of one’s fundamental beliefs
In certain circumstances, physical harm to others, such as close family members
The persecutor must be either the government or a group of individuals that the government is unable or unwilling to control. In cases where the persecutor is not a state actor, an adjudicator will consider the efforts made to inform the government of threats or attacks, as well as governmental efforts to prosecute similar harm.
On Friday, June 26, 2015, the U.S. Supreme Court ruled in the case Obergefell v. Hodges that same-sex marriage is now legal nationwide. The below article was written prior to the issuance of this decision and will be updated accordingly to reflect the current state of the law.
Like many areas of law, immigration is dynamic. U.S. Citizenship and Immigration Services (USCIS) monitors relevant case law and makes changes to immigration policy accordingly. Same-sex couples have made significant legal strides in the past decade, and these victories are reflected in current USCIS policy. It is crucial that anyone with immigration issues who is in a same-sex relationship finds an attorney who understands how LGBT (lesbian, gay, bisexual, and transgender) immigrants and their partners are affected by new regulations and procedures.
A Brief History of Immigration Law for LGBT People
LGBT foreign nationals were considered excludable from the U.S. on medical grounds until 1991. This was due to the historical classification of homosexuality as a mental illness. The psychological and medical fields evolved and changed their stance, and public acceptance of homosexuality as a normal human variation has followed. From the mid-1990s, individual states began allowing same-sex marriage or alternatives like domestic partnerships or civil unions.
Until recently, same-sex couples were unable to utilize their marital relationship as the basis for applying for immigration benefits, even if they were married abroad or in a state where the marriage was legal. Under the 1996 Defense of Marriage Act (DOMA), the federal government was prohibited from recognizing same-sex marriages for federal programs like Social Security benefits or income taxes. This prevented USCIS from considering a same-sex spouse as an immediate family member for immigration purposes. Similarly, any immigration benefit that would normally be derivatively available to the spouse or children of a nonimmigrant or an immigrant visa applicant was withheld from same-sex couples. Immigration benefits were also denied for the step-children of same-sex partners.