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Citations for ILW.COM's Seminar
Consular Processing Tips for Experts
Session 2 held on June 17, 2010

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From Ari Sauer

USCIS Memorandum, Aytes, Associate Director for Domestic Operations at USCIS HQORPM AD07-25 (May 19, 2008) Re: Genetic Relationship Testing; Suggesting DNA Tests; Revisions to the Adjudicators Field Manual (AFM) Chapter 21 (AFM Update AD07-25)

American Association of Blood Banks list of accredited DNA testing companies

8 CFR 239.3 - the Effect of filing a notice to appear on unlawful presence

8 CFR 103.5(a)(iv) - the Effect of a Motion to Reopen or Reconsider

From Elaine Witty

Federal Register: Repeal of HIV Ban (Federal Register /Vol. 74, No. 210 /Monday, November 2, 2009 /Rules and Regulations)

Removal of HIV Infection from the CDC List of Communicable Diseases of Public Health Significance Questions and Answers (Q&As)

USCIS Memorandum, Neufeld, Acting Associate Director for Domestic Operations Directorate at USCIS (May 6, 2009) Re: Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act; Revision to and Re-designation of Adjudicator's Field Manual (AFM) Chapter 30.1(d) as Chapter 40.9 (AFM Update AD 08-03)

Repeal of HIV Ban

  • Federal Register / Vol. 74, No. 210 / Monday, November 2, 2009 / Rules and Regulations (attached)
  • Public charge: INA 212(a)(4)

Place of Application

    It would be unusual if a husband and wife resided in different consular districts but applied for visas together. In such an event, it would be preferable for the couple to apply where the principal alien resides, although the residence of the other spouse could be used if more convenient."

  • Chart for showing NVC the child is under 21 under CSPA:
    1. Date of birth
    2. Date child turned 21
    3. Date I-130 was filed
    4. Date the petition was approved
    5. Length of time the I-130 was pending (#4- #3)
    6. Date a visa became current for petition on Visa Bulletin
    7. Child's Actual age on the date that a visa became available (#6) or the I-130 was approved (#4) whichever is later
    After subtracting the length of time that the petition was pending (#5) from the child's actual age (#7) the child's CSPA age is (#7- #5). Therefore under the CSPA the child's age remains under 21. An (I-485/I-824/DS-230) was filed for the child on (date filed) and therefore the child has sought a visa within one year of visa availability (#6 or #4 whichever later).

Bone Age Testing

  • State Department Cable 98 STATE 096341

In May 1998, DOS issued a memorandum indicating the following: "Given the paucity of information related to this technique, the lack of any legal precedent indicating the acceptability of this evidence in court proceedings, and the caveats relating to the reliability of this proceeding expressed by the Smithsonian experts, VO believes that this procedure is insufficiently reliable or proven to be the sole factor to use in determining that an IV applicant is over the age of 21 and therefore ineligible for status. Post may use this evidence, however, as fraud indicia or as one of several factors relating to chronological age in visa determinations."

Unlawful presence

  • Neufeld Memo consolidation of Unlawful Presence Memos issued 05/05/2009

When to Cancel a Labor Certification

  • 9 FAM 40.51 N6.2 (CT:VISA-1070; 10-15-2008)

You should only cancel a labor certification when the totality of circumstances shows evidence that the employer was involved in fraud or material misrepresentation in obtaining the labor certification. This may include cases in which it appears that no bona fide job offer opportunity for U.S. workers exists because the alien will be self-employed or self-petitioned. The Board of Alien Labor Certification Appeals has ruled the factors to consider in determining whether an alien has sought self-employment or self-certification is as follows:

  1. Whether the applicant is in a position to control or influence hiring decisions regarding the job for which labor certification is sought;
  2. Whether the alien is related to corporate directors, officers or employees;
  3. Whether the alien was an incorporator or founder of the company;
  4. Whether the alien is involved in the management of the company;
  5. Whether the alien is one of a small number of employees;
  6. Whether the alien has qualifications for the job that are identical to specialized or unusual job duties and requirements stated in the application;
  7. Whether the alien is so inseparable from the sponsoring employer because of his or her pervasive presence and personal attributes that the employer would be unlikely to continue operation without the alien; or
  8. Whether the business was established for the sole purpose of obtaining certification for the alien.

22 CFR 62.11-12

22 CFR 62.78