Adoptions between the countries that participate in the International Adoption Convention at Hague must follow the guidelines prescribed by the Convention. United States signed the International Hague Adoption Convention on April 1, 2008 and Vietnam now participates in this Convention starting Feb. 1 2012.

The Hague Adotion Convention sets specific standards to be followed for the protection of adopted children and adoptive and original parents. The convention guidelines require that the U.S. Department of State (DOS) certify that the convention standards are complied with. According to the U.S. Citizenship and Immigration Services (USCIS) such certification at present is forthcoming from DOS regarding Vietnamese adoption and that in the absence of such a certification USCIS would not approve the immigration processing for vietnamese adopted children.

USCIS therefore cautions against filing applications for international adoption of children from Vietnam.

The Department of State is responsible for such changes and allocation of work between its office locations. The present applicants are advised to email the U.S. Consulate at Chennai at ChennaiIVU@state.gov on the processing of pending applications.

Immigrant visa allows the foreign national to live and work in the United States permanently. It is used largely by the qualified family members of U.S. citizens and permanent residents.

F, M and J visa issuance was temporarily stopped at all U.S. Embassies and Consulates. The issue apppears to be a technological glitch because of which Consulates were unable to verify data with the Students and Exchange Visitor Information System (SEVIS).

Foreign student admissions at U.S. educational institutions are required to be through the Student and Exchange Visitor Program (SEVP) also known as SEVIS. Schools admitting the foreign students and the Consulates issuing visa are required to timely update and verify student information before taking any action invloving foreign students. The interactive systems helps communication between schools and involved government agencies. A systems failure could make it impossible to verify student data with SEVIS.

Students may be delayed in joining the selected course program, DOS had cautioned earlier. The attending issues joining the course late may follow even after receiving student or exchange visitor visa.

Department of State, that controls the U.S. Consulates quoted its inability and had earlier suspended issuance of all F, M, and J visa. Fortunately, the systems failure was detected and fixed within days and government begins visa issuance.

EADs in existence would be replaced by the redesigned EADs upon expiry. However, the older citizenship certificate issued so far would remain valid indefinitely. The new design would be incorporated in the certificates issued from now on.

Let us hope that every officer would know about the existence of different certificates in future. Permanent resident cards nowadays display an expiry date, following change in government policy, while previous green cards with no expiration dates remain valid. But, reports are frequent that travellers are questioned who provide the older green cards with no expiration dates.

The long awaited recognition for such marriages came in the form of abeyance. The Attorney General, Eric Holder, announced in February 2011 that his office would not argue before the 2nd Circuit, the federal court of appeals, that Section 3 of “Defense Of Marriage Act” (DOMA) is good law. The announcement comes following President Obama’s declaration that DOMA is unconstitutional in his opinion. The President was a constitutional law professor in Chicago Law School in his previous carreer.

The 2nd Circuit, faces the issue: whether laws regulating individual rights based on sexual orientation are suspect and therefore should be subject to a higher level of scrutiny. The President answers in the affirmative!

In his statement, the Attorney General stated that so far his office supported DOMA in other Circuit courts because the precedent in those courts suggested that the legislation would be subject to a simple scrutiny i.e. “whether a rational basis existed to enact the law.” This is the easiest standard to satify and most legislation would withstand this scrutiny as long as there is any rational basis to justify the legislation.

Identifying separation of powers between the different branches of the government the attorney general indicated that the law would be enforced because of the commitment of the executive branch of the government to uphold the laws of U.S. until DOMA was declared unconstitutional by the judiciary or repealed by the Congress. Awesome!

Over 2500 students are affected by this threatened loss of certification of the California institution. Majority of the students are from India. Reportedly, their employment authorization is terminated forthwith. Students are finding themselves in a situation in which they may lose lawful status and end up in deportation proceedings instead of pursuing their academic goals.

An undated notification from U.S. Immigraion and Customs Enforcement (ICE) suggests that all student records at this educational institution are terminated on 1/18/2011 and that the former students from the institution should provide their contact information to SEVP which would then offer the student some options including the option to leave the country and return in future without a bar on re-admission. Unlawful presence in the U.S., for a specific period of time and departure thereafter, prohibits the foreign national from returning for a period of time except with a grant of waiver.

It is puzzling how the government would stop the bar on re-admission from taking effect without amending the regulations. While many are shocked at these development, some students were given ankle monitors and others received NTAs after reporting to ICE i.e. placed in deportation proceedings. It goes without saying that yet others are hopeful that SEVP would let them transfer to other educational institution upon reporting to SEVP. At present, it is unknown how many were able to successfully transfer to other schools or were able to apply for reistatement of their F1 status.

We anxiously await to hear a good outcome for the students caught in the trap when they thought they were pursuing their academic dream. As the government tries to discover information of wrongdoing by the institution, investigation should not result in students being victimized. It is important that a genuine offer is extended for reinstatement of student status.

Employment is becoming highly uncertain these days. The freedom of “at will” employment contracts and the only requirement to follow the notice period in case of termination should be somewhat restrained in hiring and firing of a foreign national. Employer should have some extra obligations to keep the worker informed of the immigration case to prevent himself from facing unlawful presence issues. At times employers may consider employee’s personal situation in determining or give prior information so the employee begins to consider alternative employment. But there are situations when an employer conceals or fails to disclose information within its knowledge and the worker has no other recourse but to leave the country at the end of his employment.

Immigration law allows a non immigrant foreign national 15 days to depart U.S. at the end of H1B period but no time at all if he is terminated. He then becomes deportable and so would his dependants because of unlawful presence. Many of these people have property which does not sell in such a short time and have children in school. These reasons were cited in the recent leaked out internal memo to the USCIS director Mayorkas that contained a proposal to extend the H1B grace period.

Often, employers are considerate to these foreign nationals because their life in U.S. is dependant upon their job. But not always. If the employer desires to hire the foreign national permanently it sponsors the worker by filing an employment based immigration petition after certification from the Department of Labor. The process is laborious and time consuming and the employer must file labor certification before filing the employment based petition I-140.

Porting to another employer is possible if the foreign worker waited for a specific period. Porting prevents tying of the foreign worker to the sponsoring employer. It was introduced by the government as an ameliorative measure to prevent exploitation of foreign workers. The employee could freely change jobs and is not required to stay with their sponsoring employer until approval of his permanent residence status.

Porting is not favored by employers and may be a reason for delay in employer filing the required immigration papers or conveying the government approval to the employee. Such a worker then stays with the employer. In the event of loss of employment he is then required to find a new employer who could sponsor him for a new non immigrant status. The entire process of job hunting coupled with loss of immigration status becomes very stressful.

Detrimental reliance under an implied contract theory may provide a basis for the action. In my opinion, filing for the labor certification and not conveying the approval to the employee when his layoff is pre-determined may be bad faith at least in relation to foreign nationals whose presence in the country is determined by their employment. By filing the labor certification or PERM the employer creates an expectation in the worker that he would be hired if the government approved. If at a later date employer decides not to hire the worker for such a position it can’t file a false employment application with the government but it certainly falls short on the foreign national’s expectation. Atleast, let the worker know that an approval of the labor certificate is granted so that if allowed by law the worker could port to another employer. Withholding such information appears spiteful.

Employer’s duties to the two parties under a badfaith contract would be conflicting and so he must pay for choosing to wrong one of the two and here it is the EX Employee. Perhaps one could also argue that the employer took away employee’s opportunity to reduce his losses in lost ability to look up for alternative H1-B employment may be a 7th yr. extension and/or a new sponsor for his new I-140, Employment Based Permanent Residence Petition.

The U non immigrant visa is available to victims of qualified criminal activities, who have suffered substantial physical or mental abuse and who assist or agree to assist law enforcement or other designated officials in investigation or prosecution of those crimes.

Qualifying criminal activities involve violations of certain federal, state or local criminal laws, including: abduction, abusive sexual contact, blackmail, domestic violence, extortion, false imprisonment, female genital mutilation, felonious assault, hostage-taking, incest, involuntary servitude, kidnapping, manslaughter, murder, obstruction of justice, peonage, perjury, prostitution, rape, sexual assault, sexual exploitation, slave trade, torture, trafficking, witness tampering, unlawful criminal restraint and other related crimes.

Eligibility for U Visa is based upon certification by designated authorities of the assistance provided by the foreign national in the investigation or prosecution. Applicants can obtain lawful temporary resident status and employment authorization while their application is pending adjudication.

The DOL statement is an effort in the right direction. Hopefully it would act as a deterrant against those perpetuatinf abuse. It surely would help crime detection and enforcement of penalties where the foreign nationals possess the necessary evidence but would not disclose the evidence or silently endure the abuse for fear of deportation.

A Memo issued by the USCIS beginning this year has been the underlying cause. The agency Memo requires that h1b petitions show presence of employer and employee relationship and details several factors indicating such relationship. In addition to the traditionally accepted standards such as abilities to pay, hire and fire, it includes exercise of control and suprvision by the employer over the job performed as the necessary indicia of employer and employee relationship.

Factors indicating presence of employer and employee relationships are well established in the subsatntive law and same policies have been followed by USCIS in adjudicating visa petitions. The government memo attempts to borrow these same concepts is a compilation of its poilicies followed so far. However, there has been wide opposition to the memo which is called as untra vires because its issuance did not follow the requisite government procedure detailed in the Administrative Procedure Act. However, even if unltravires, until withdrawn we are required to follow the Memo and its mandate and prove as required, the presence of employer-employee relationship for a successful H1b petition.

Those qualifying include extra ordinary ability workers and outstanding researchers and professors in EB1 category, exceptional ability or advanced degree professionals who do not want national interest waiver, and EB3 professionals, skilled and non skilled workers.

Premium processing was suspended in 2007 due to the heavy filing load in july- august. At the time government admitted openly that due to the enormous amount of filing it was not possible to fulfil the premium procesing guarantee of processing applications within 15 days as promised. Fair enough. After two years the services are about to be resumed. The national interest waiver category for professionals with advanced degree or extraordinary ability, that is widely used is kept out of premium processing for now.

It is nice to see the government regaining ability to quickly process papers but isn’t it something all should be entitled to? Administration is also run like a business. So when delay is inevitable and all pervalent, faster service ought to be made available at a premium. Well, this rule of premium processing started when the government wasn’t so much in need of $$$ but now we understand.