Seattle Immigration Lawyer Blog

CNN reports on a heartbreaking story Dangerous path to legal status about a young woman, Tanya Nava, who applied for her immigrant visa or green card at the U.S. Consulate in Ciudad Juarez, and now regrets that she ever did. Her husband, Jake Reyes-Neal, an American citizen and father of their child, had sponsored Tanya, only to be killed in the process while waiting with his wife to get her visa. Because Ms. Nava evidently had been in the U.S. illegally since she was a young girl, her physical departure from the U.S. to get her green card at the consulate triggered the 10-year bar to her return to the U.S. To come back earlier than 10 years, she filed for a waiver of the unauthorized stay bar. This additional application was filed at the consulate and then routed to USCIS which processes the waiver application. The only problem is that it can take weeks, months and even years in some cases for the waiver to be processed. While waiting in Ciudad Juarez, Mr. Reyes-Neal was shot to death. This is why the government's proposal to allow for stateside processing of waivers, mentioned in my blog post on Provisional I-601 Waiver Update, could provide relief for some families facing long periods of separation.

Although an extreme situation for a family facing separation due to the bars or waiver processing, this family's situation is not uncommon. Undocumented applicants for visas include people from other dangerous locales, including Nigeria, Syria, Egypt, Somalia and more. Even families not from dangerous countries face months and months of hardship due to family separation. Often the breadwinners must leave the country and cannot find work in their home country while they wait. Applicants who spent most of their lives in the U.S. may not speak the language, have resources or know anyone in their home countries. Relatives might be ill or face other undue hardships. Families have to decide whether to separate during the long process or whether the American sponsor must give up everything to join family members in a country the sponsor may not know. The plight of the waiver seekers has been made into a film, Tony and Janina's American Wedding, about a Polish-American family facing the long hardships due to separation during the waiver process.

When this Seattle immigration attorney began practicing immigration law over 25 years ago, if someone was out of status, the penalty was to return to the home country and seek a visa at a US consulate. The applicant would be back in a few days or weeks with valid status and an immigrant visa. However, in the 1990s, Congress downsized consulates and beefed up security at facilities worldwide. At about the same time, Congress enacted one of the most onerous provisions in immigration law, the three and 10-year bars to return due to unauthorized stay. Perhaps an unintended result, today we have the largest number of undocumented immigrants in the U.S. ever, many of whom have been living long term in the U.S. with a legal route to lawful status, but who are not willing to risk the separation, hardships and unpredictability inherent in consular processing visa and waiver applications. Thousands of families are caught between a rock and a hard place: whether to remain in the U.S. illegally or whether to gamble one's life, family, and/or job by consular processing a visa. The irony is that now Ciudad Juarez is the largest consulate in the world, handling 10,000 immigrant visas/green cards per month because Congress chose to ding immigrants in unauthorized stay. Although the $66 million facility is supported in part by immigrant-paid processing fees, the facility handles other law enforcement and diplomatic relations functions as well as services for American citizens in Mexico, all at taxpayer expense.

The CNN article further notes that Tanya and Jake chose for whatever reason not to consult with a lawyer. Because of the serious strategic decisions to be made in whether to apply for a visa given Tanya's background in the U.S., families in similar situations should seek the advice of a qualified immigration lawyer. Handling immigration issues on one's own or with unqualified non-lawyers that on the surface appear simple ("It's just a simple marriage case") can lead to complications or even tragedies as this family faced.

Whether the proposed stateside processing of waivers will be a panacea that really helps families remains to be seen. The proposed regulation describing the process has not yet been released. Even so, USCIS presently contemplates the process to apply to a very narrow group of applicants. The better answer to the problem of family separation would be for Congress to repeal the unauthorized stay bars that have caused untold family hardships and have created a government cottage industry.

Washington State appears poised in the next few days to be the seventh state in the nation to legalize same-sex marriage. It would go into effect on June 7, 2012. Assuming expected legal and referendum challenges fail, what would that mean for immigrant couples?

Visas and Green Cards for Binational Couples

Unfortunately, it will still be impossible to obtain a green card or permanent residence through sponsorship by a gay or lesbian US citizen or permanent resident spouse until Congress repeals the Defense Against Marriage Act (DOMA). DOMA prohibits the federal government from recognizing same-sex marriage for the purpose of marriage-based green cards. Because who can immigrate in what category is statutory, the Obama administration is not in a position to deviate from the existing spouse sponsorship statute even though his administration is not defending DOMA in some litigation. Such an important change to the marriage based immigration statute requires an act of Congress, and this Congress is not likely to repeal DOMA.

Visas for Dual Foreign National Couples

In the case where both partners in a couple are foreign nationals, for temporary visas, same-sex partners and spouses are not specifically recognized as dependents where one partner qualifies for a specific temporary business, family or student visa. Therefore, both partners have to qualify individually for their own visa types. However, there are some policy memos and provisions in the State Department's Foreign Affairs Manual that allow certain qualifying partners to come to the U.S. with the principal visa holders. The most frequently used visa for non-principal partners or spouses is the B-1/B-2 tourist visa. However, it is limited as to length of stay and ability to work is not authorized. These and other lesser known provisions are described in an earlier blog post at "Impact of DOMA on Bi-National Couples."

For dual foreign national couples seeking to immigrate permanently, the law presently does not allow the non-principal partner to qualify as a dependent. For example, if one partner qualifies for a business based green card, the other partner will need to qualify for his or her own green card category or may have to rely upon the restrictions of other temporary visas.

Binational Couples Where the Foreign Partner/Spouse is Out of Status

There are some avenues for relief from removal proceedings where an individual has a US citizen or permanent resident partner. They include cancellation of removal, asylum and various types of waivers of inadmissibility or deportability. None of them specifically allow consideration of the hardships to gay or lesbian US citizen or permanent resident spouses/partners. However, their hardships can come up in the exercise of discretion or possibly in relation to other citizen or green card qualifying relatives for whom hardship can be shown. Recently, there have been a few cases in which Immigration Judges have allowed consideration of the hardships to gay partners or spouses as a matter of discretion.

Continue reading "Same-Sex Marriage in Washington State: What Would That Mean for Immigrant Couples?" »

Today, I attended a USCIS Public Engagement Teleconference at which USCIS and State Department officials provided further details about the January 6, 2012 USCIS Notice of Intent to issue regulations, discussed in my earlier blog post, USCIS Proposes Stateside Processing of I-601 Waivers: Know Before You Go?. Recapping briefly the USCIS proposal, regulation will be issued for public comment describing new procedures for how and where immigrant visa applicants will file their waiver applications if they are subject to the three or ten-year unlawful presence bars to inadmissibility. The proposed regulation would change the place of waiver filings to the U.S. from the current rule of filing at the U.S. consulate while abroad. This would allow applicants to file before going to their green card visa interviews at U.S. consulates abroad. The purpose of the teleconference was both to further inform stakeholders as well as to solicit ideas for the proposed regulation.

USCIS plans an education push on the subject. Already, they say, notarios and other legal consultants are advertising a new law, a new benefit or other nonsense that simply isn't true. Anti-immigrant advocates mischaracterize this as President Obama's attempt to carry out a "back-door amnesty" or is "an abuse of his administrative authority," when in fact this is just a procedural change in the place of application. It would not be a change in the qualifications for waiver applications that already exist by Congressional statute. Others note that this is just a political ploy by the Obama administration to appeal to Hispanic voters. Nonetheless, USCIS has the regulatory authority to determine how to carry out a statute enacted by Congress.

Here are some highlights from the public engagement teleconference:

1. USCIS anticipates issuing proposed regulations "in the Spring" with a 60-day comment period and final rule "by the end of the year." The goal is to implement the regulation "this calendar year." Note, this is an election year; therefore, whether the regulation will really be implemented "by the end of the year" may depend upon the outcome of the Presidential election in November. Nonetheless, the agency will still exist and be responsible for the waiver adjudications unless Congress changes the overall structure of the bars and waivers before then.
2. Presently, there are 23,000 waiver applicants abroad around the world, which includes all waiver types, not just waivers for the unlawful presence bars. 75% of those are applicants for immigrant visas at the U.S. consulate in Ciudad Juarez. These are the people who have decided to take the risk to pursue their employment or family based green cards abroad (because they are ineligible to do so in the U.S.), knowing they may be separated from families while waiting for waiver applications or fulfillment of the three or ten years residence abroad before they can return. Meanwhile, millions of people eligible to immigrate at consulates abroad who need waivers have chosen to remain in the U.S. illegally despite being eligible for visas and potentially eligible for waivers. They are unwilling to take the risk of lengthy family or job separation under the current process.
3. USCIS wants ideas and comments now to help with rule formulation. Suggestions should be sent to: public.engagement@dhs.gov. Note that this process for input is no substitute for formal comments once the proposed rule is published. At that time, that's when public comments will really count, but suggestions submitted now can go into the initial rule formulation process.
4. USCIS reiterated that the purpose of the rule change is to reduce the separation period facing U.S. citizens and their families while immigrant visa applicants continue with the existing immigration process. This has the added benefit of saving the government money from inconsistent procedures, adjudication and constant routing of files between the State Department and USCIS. Note again, that this is strictly a procedural change, not a legislative change, amnesty or qualification change. See USCIS Q&A. Many stakeholders at the meeting commented on why USCIS was not including U.S. citizen parent beneficiaries since they are immediate relatives; permanent resident petitioners with U.S. citizen relatives who are qualifying family members for waiver hardships; and U.S. citizens with permanent resident family members suffering hardship who also qualify for waivers. All of these categories are waiver eligible and affect U.S. citizens.

Continue reading "Provisional I-601 Unlawful Presence Waiver Update" »

Today, U.S. Citizenship and Immigration Services (USCIS) announced a "Notice of Intent" that it is considering issuing a rule change to allow a narrow class of specified immigrant visa applicants to process their I-601 waivers of inadmissibility in the U.S. This means that they would have a provisional decision about their waiver eligibility BEFORE they leave the U.S. to complete interviews at U.S. consulates abroad. The rule itself has not been issued. There will most likely be a period for public comment before the rule is implemented. Therefore, it could be a few months before this procedural change goes into effect, and the nature of the final rule could change based on public feedback. Meanwhile, next week, USCIS will hold a teleconference with stakeholders.

The proposal would be a procedural change only. It is not a change to qualifications. It is not amnesty or another new benefit, as the anti-immigrant folks will surely claim. USCIS intends this rule to make the overall process more efficient and a cost saver for the government by reducing the back and forth of applications between the State Department (consulates) and USCIS. Most importantly, the change would reduce the amount of time some families are separated and promote family unity, something desperately needed in our immigration laws and procedures. However, the proposal is limited to a very, very narrow group of applicants. One has to ask why the government doesn't want to save more money by broadening the group of people to whom this procedural change should apply and suffer the same family hardships. Nonetheless, for the limited group to which it will apply, the change is a welcome assist to applicants for immigrant visas abroad who are presently in the U.S. Presently, they have to decide whether or not to take the risk of leaving the U.S. to complete processing their family based green card applications at U.S. consulates not knowing if their waiver applications will be approved. This change will presumably make that decision making process for families easier.

About Unlawful Presence Waivers

Briefly, if an applicant has been unlawfully present in the U.S., whether by unlawful entry or other visa violation, for six months or more, the very act of leaving the U.S. to legalize status by obtaining an immigrant visa abroad triggers the three or ten-year bar to returning to the U.S. Once the bar is triggered, a waiver of the unlawful presence bar is required to come back earlier than three or ten years. Not everyone who has been in the U.S. unlawfully needs to consular process or is subject to the unlawful presence bar. Examples include unlawful entrants who are eligible for section 245(i) adjustment of status in the U.S., or certain immediate relatives who entered with lawful visas who may have overstayed. Whether one is or is not subject to the bar or must consular process should be determined in consultation with an experienced immigration lawyer.

Because waivers are decided by USCIS and not the consulate, applicants can be stranded abroad, separated from families and jobs while waiting for waivers to be decided. Once the waiver is approved by USCIS, the applicant returns to the consulate for issuance of the visa. If the waiver is not approved, the applicant remains outside the U.S. until the three or ten-year period ends. This separation creates huge hardships for families. Wouldn't you want to know the likelihood of your waiver application being granted BEFORE deciding whether to leave the U.S. for the final visa interview?

The U.S. consulate in Ciuadad Juarez, Mexico is the largest consulate in the world. It has the greatest number of visa applicants waiting for waivers. Many applicants or their families have suffered from the violence in Mexico while waiting for the outcome of their visas. Similar fates await visa applicants in other countries such as Nigeria, Sudan and places where there is internal conflict. There are immigrant visa applicants all over the world currently waiting for waiver decisions while being separated for months or years from their U.S. citizen or green card holding family members.

Waiver eligibility weighs heavily into the applicant's risk/benefit analysis for deciding whether to leave the U.S. Unpredictability in the waiver adjudications puts applicants into a Catch-22 situation and is one reason why many people in the U.S. who could regularize their status remain unlawfully in the U.S. The proposed rule change, however, will not impact waiver requirements or adjudication variables. It only affects whether one applies for the waiver before or after leaving the U.S. USCIS acknowledges this irony in its proposal, thanks to Congress, who in 1990 enacted the bars and waivers: "The action required to regularize the status of an alien, departure from the United States, therefore is the very action that triggers the section 212(a)(9)(B)(i) [unlawful presence ground of ] inadmissibility that bars that alien from obtaining the immigrant visa." As I have mentioned in prior blog posts, eliminating the unlawful presence bars should be an essential element of immigration reform that would also save the government lots of money. The government bureaucracy devoted to waiver adjudications has mushroomed over the years as has the cottage industry of psychologists, doctors, country condition experts and others who often weigh in on the hardships an applicant will face.

Narrow requirements for stateside processing of waivers

If and when the rule becomes effective, unfortunately, it will be very limited as currently proposed. First, it would apply only to immediate relative visa applicants (spouses, minor unmarried children under 21, and parents of U.S. citizens) and some self-petitioners (widows/widowers of U.S. citizens). It would not apply to the same family members of green card holding sponsors or other family member combinations, nor to employment based visa applicants. The rule is only intended to modify the time of family separation among U.S. citizen family members during waiver processing. It does not change the extreme hardship qualifying standard or statute.

Continue reading "USCIS Proposes Stateside Processing of I-601 Waivers: Know Before You Go?" »

On January 5, 2012, USCIS issued new draft templates for Requests for Evidence (RFE) concerning L-1 Intra-Company Transferee visas for multinational managers, executives and those with specialized knowledge. USCIS has been reviewing its policies and trying to streamline adjudications of different visa categories to insure more consistent adjudications among officers and offices. Over the last year, the agency has issued draft RFE templates and implementation policy memos in the temporary and permanent business visa categories.

RFEs are a major sore spot with attorneys and their clients. They often reflect that a) the officer did not read or ignored the evidence already submitted; b) the officer confused category requirements or misinterprets the law; c) the officer sends boilerplate information about the law and then asks for everything but the kitchen sink and d) the officer automatically suspects small businesses are engaged in fraud. RFEs create delays and are a barrier to new business start ups and job creation. Although we do not receive many RFEs in our office, discussions about the RFE problems among our colleagues in the immigration bar have been frequent, especially since the recession began. It could be due in part to some combination of USCIS hypersensitivity to protect American jobs, internal personal politics of the officers, lack of training or possibly poor preparation of applications. Whatever the reason, Director Alejandro Mayorkas is aware of the problem, though his direction may not filter down to the front line workers in his agency. In particular, our colleagues complain consistently about business adjudications at the California Service Center.

Knowing the agency's views on potential RFE requests in advance of filing can be helpful in selecting the best visa categories for a client and for preparing cases in a way that avoids receiving RFEs. The templates and memos accompanying them are posted for public comment until February 3. One of the L-1 templates concerning qualifying entity relationships was issued December 15 and is open for comment until January 17, 2012. Of particular interest is the boilerplate option that the officer must explain deficiencies in the evidence already provided when asking for more evidence. This is very important since requests often ask the applicant to "send XYZ" without explaining why or how it would be relevant, or what was wrong with previously submitted evidence on the subject. Whether the process of refining RFEs and soliciting feedback will help improve adjudications will be reflected when we can see that the officers are following the guidelines, interpreting the law correctly and moving cases quickly. Thus, it's important to make comments now before the templates are finalized.

Most people are confused about green card quotas and how they impact application processing times. Permanent immigration through a relative or work can take many, many years. This is because our legal immigration visa allocation system was established in 1965 and has only been amended a few times since, mostly dealing with how unused numbers spill into other categories. In 1965, Congress changed the visa allocation system from race based to country based calculations, designed in part to prevent any one country from monopolizing available immigration numbers. It is the system we still use today. This post attempts to explain the quota system more simply and provides some references to further explanations and background for what is otherwise a complex subject. The terms "permanent residence" and "visa" are used here interchangeably to refer to green card status obtained by 1) seeking an "immigrant visa" at a U.S. Consulate abroad, or 2) through "adjustment of status" in the U.S. at a USCIS office. There are differences in the two processes, but they both lead to permanent residence and they are based on the same family and work related categories. Both procedures require the applicant to be at the front of the line in the quota system in order to complete the application process and receive a green card.

What is the quota?

The quota is the annual allocation of permanent visas or green cards by country of birth and category. It should not be confused with bureaucratic processing delays or "agency processing times" that have more to do with available agency personnel, resources and priorities. Congress established a finite number of visas per country and per category. However, annual demand for green cards usually outweighs supply, thus creating a backlog. For FY2012 that began October 1, 2011, the annual worldwide limits are 226,000 family-based green cards and 140,000 employment-based green cards.

I tell my clients to think of the quota like a movie theater. Suppose there are only 100 seats in the theater but more than 100 people want to see the movie. Once the 100 seats are sold out, everyone standing in line has to wait until the next show. In the case of visas, that means waiting for the next month, or perhaps the next fiscal year to determine if a new group of visas (tickets) are available. Visas are allocated annually by category and country via a formula determined by Congress. Estimates, (note the word "estimate"), of visa availability are published monthly by the U.S. State Department in the "Visa Bulletin." The State Department refers to categories that are backlogged as being "oversubscribed." Where visas are available, the categories are said to be "current." Oversubscribed categories are referenced by a date, called a "priority date." The priority date is the date in which the applicant first got in line. If the Visa Bulletin shows dates, it means it is issuing visas to applicants who were in line prior to that date. Current quotas are reflected in the visa bulletin by a "C". If visas are not available at all, the category is noted by a "U." Priority dates are discussed in more depth below.

The annual "diversity visa" lottery also has a maximum limit. Generally, more applicants are notified than visas are available because many people will turn out not to qualify or will change their minds. But nonetheless, the demand exceeds the supply and creates a backlog or quota that is also reported monthly in the Visa Bulletin. The State Department has published a more detailed explanation of how the quota system works. For academic readers, data crunchers and historians, there are additional statistical reports on historical data, country, category and regional reports published by the State Department here.

Why is the quota important?

In order to receive an immigrant visa abroad at a U.S. consulate, or in order to apply for adjustment of status in the U.S., a visa must be "immediately available." In other words, the quota must be current in order to complete immigrant visa processing or to file for adjustment of status in the U.S. (Form I485). When there is a backlog in any visa category, the applicant cannot get into the theater and has to stand in line waiting for the next show, using the movie theater analogy above.

Thus, one could have filed initial labor certification (PERM) and/or visa petitions to start a case months or years before, but be unable to file the last set of paperwork due to the quota backlog. The quota need not be current to file PERM or visa petitions to start the immigration process. Another scenario that sometimes occurs is that one may have filed for an immigrant visa or adjustment of status when the quota was current, but while the application was being processed by USCIS or the State Department, the quota retrogressed or became backlogged. In that unfortunate situation, the State Department or USCIS can process the application but cannot grant it until the quota is current again. Therefore, it's important to track the quota in the Visa Bulletin on a monthly basis.

Continue reading "FAQs:Understanding Quotas and Green Card Delays: Why is My Case Taking so Long?" »

USCIS Director Alejandro Mayorkas announced in October 2011 a new "Entrepreneurs in Residence" program to promote job growth by improving existing employment based immigration categories that expand opportunities for job creation. However, we haven't heard any more about this program until today when USCIS posted a job announcement for the tactical team entrepreneurs in residence. Except for a minor attempt to deal with per country caps, and a flawed Start-Up Visa Act that has gone nowhere since its introduction in February 2011, Congress refuses to deal with legislation that would fix the legal immigration system in a way that could foster job growth. Unfortunately, only Congress can change visa numbers and categories and their primary requirements.

Statistics abound showing that immigrants are key to new company start ups and small business expansion. 40% of immigrant entrepreneurs are women, according to a new study. Still other immigrant entrepreneurs are either without status or are not fluent in English, yet earn over $200,000 a year while creating jobs for others, according to a recent New York Times article. Yet individual entrepreneurs are taking matters into their own hands in the absence of needed legislation or administrative revamping of policy and procedures.

One such entrepreneur is Max Marty of Blueseed who has come up with a business plan for an off-shore seafaring floating incubator for foreign national Silicon Valley start-up types. The company would provide office space, supplies and services on a decked-out ship for multiple new companies. Ferry service would be provided to the entrepreneurs to come to the mainland for meetings and conferences within the confines of the B-1 business visitor visa. Although this model needs some serious review by experienced immigration lawyers to make sure temporary visitors meet qualifications for visa or visa waiver status, it's an intriguing idea since the H-1B cap is closed until next year; current policy prohibits self-employment by H-1Bs; and other visa categories for small business owners are heavily scrutinized, are denied or take too long to obtain.

Another creative attempt to deal with immigration policy was started by several professors creating a new "Freedom University" for college bound students in Alabama, home of the most restrictive immigration legislation in the country that prohibits undocumented students from attending college, even if they were willing to pay higher out of state tuition. Freedom University will open its doors to any student that wants to pursue higher education without regard to immigration status.

Back in October, Director Mayorkas and Tom Kalil, Deputy Director of Policy in the White House Office of Science and Technology held a press conference explaining the agency's new and rather creative "Entrepreneurs in Residence" initiative, a minor component of the President Obama's larger StartUp America program. Startup America focuses on "accelerating high growth entrepreneurship across the country" that includes start up funding, mentors and product services. Since Congress refuses to fix the legal immigration system, the Administration hopes to make changes within current statutes and regulations that promote job creation by the immigrant community. This means USCIS can fix regulations, policies and procedures so long as they remain consistent with existing legislative statutes.

Director Mayorkas stated that the "Entrepreneur in Residence" initiative is premised "on the basic principle that our agency would benefit tremendously from having expertise from both the public and private sector join us and help guide our efforts in ensuring maximum use of existing laws." The plan is to have ""information summits' populated by experts from the public and private sector, entrepreneurs, business leaders, academics, ... and other thought leaders." They would come to USCIS to share "the realities, dynamics, and challenges that the business world confronts when dealing with United States immigration system and the visa pathways that are currently available." Immigration practitioners are quite familiar with the disconnect between business visa adjudications and business "realities, dynamics and challenges."

Continue reading "Absent Congressional Action, Can the USCIS 'Entrepreneurs In Residence' Program Fix Business Immigration Better than a Floating Incubator?" »

USCIS is reporting today that the H-1B Cap count as of November 22, 2011 has been reached for Fiscal Year 2012 that expires September 30, 2012. This means that employers wanting to hire H-1B workers this year and next will have to wait until the new filing season begins on April 1, 2012 for jobs with start dates of October 1, 2012. The 65,000 cap was reached earlier this year compared to last fiscal year when it was reached in January.

Although the economy has been sluggish, employers continue to hire in some sectors. In this firm's experience, employers do not spend the time or money on the expensive H-1B process unless they cannot find qualified local talent after extensive recruitment of US workers, even though recruitment is not required for non-H-1B-dependent employers.

Employers with positions not subject to the annual 65,000 cap can continue to file H-1B petitions all year long. The 20,000 masters degree cap was reached back in October 2011. Non-cap cases include employers that are qualified nonprofit or government research institutions, and private employers with affiliations with such entities where the employee will perform the duties "at" the qualifying facility. For details on what these requirements mean, a memo from the government about cap-exempt status is posted on our firm website. See also more recent USCIS pronouncements on the subject of "affiliation."

Obviously, it makes it difficult for employers to plan for new hires needed from now through next summer. It means delayed hiring, continuing to look for US workers, planning for the April 1 new filing date, and/or consideration of other visa categories. For some employers, the H-1B cap situation is so intolerable, they ship work or jobs abroad. For employers with sensitive product or project life cycles or benchmark deadlines, the H-1B cap can be very disruptive to business growth, product development and overall hiring plans. Congress has refused to remove or increase the annual cap. However, employers who use or have considered the program know that H-1B use should be tied to the market. When employers are not hiring, H-1Bs are not used. But even in a recession, reaching the cap later in the year shows that there is still hiring in certain sectors and that H-1B visas drive innovation and expansion. Employers don't use the program when there are ample US workers because of the expense, wage and other liability requirements of the program. However, there has been sufficient growth in some sectors even during a recession, especially in IT, health care, biotech and other Science Technology Engineering and Math (STEM) sectors. According to the US Labor Department's 2010 Annual Report on Foreign Labor Certification, STEM professionals made up at least 50% of the labor condition applications required for H-1B status. The report states:

Positions in Software Engineering, Computer Systems Analysis and Programming represented nearly 40 percent of the total H-1B certified positions....Fifteen States had over 5,000 [H-1B] certified positions during FY 2010. Washington [State] had the largest increase of positions certified, up 45 percent from FY 2009.

The DOL survey shows that locally, the majority of certifications in Washington State were in Bellevue/Redmond where Microsoft and many of its vendors and suppliers are located. However, overall, outside of the Washington, D.C. area, Washington State has seen the most job growth in STEM fields compared to the rest of the country, 70% of which are in the Seattle area, according to a 2011 study by the Washington Research Council.

In an earlier post on Immigration Issues and the Military: Honoring our Veterans and Their Families, I focused on the citizenship benefits for active duty and honorably discharged service members including potential citizenship status on their descendants. This article focuses on how our immigration laws help, or don't help, the dependent family members of our servicemen and women.

Help for Dependents of Military Service Personnel

Today, many members of the military have spouses, children and parents who need assistance with their immigration status. In particular, the Defense Department is concerned about the readiness of service personnel who could be emotionally stressed by the actual or potential deportation of their family members or because of legal immigration applications stuck in the quota system. In other cases, survivors of service members are caught in legal limbo when their petitioners have died. There are a couple of programs that can help these family members:

A. Survivor Benefits

There are two types of benefits for 1) survivors of deceased US citizen service members and 2) survivors of deceased non-US citizen service members.

1. Survivors of US citizen service members - Permanent Residence
Spouses, minor unmarried children and parents may immigrate as "immediate relatives" of the service member spouse who served honorably in active-duty status in the U.S. armed forces; and the service member spouse died as a result of injury or disease incurred in or aggravated by combat. In the case of spouses, the couple must not have been legally separated at the time of the service member's death, and the surviving spouse cannot remarry prior to obtaining permanent residence based on the relationship to the deceased U.S. Citizen spouse. For the spouses, children or parents, the petition for an immigration benefit must be filed within two years of the service member's death.

2. Survivors of US citizen service members - Citizenship
Spouses, minor unmarried children and parents of a deceased US citizen service member may be eligible for naturalization under relaxed standards. The deceased relative must have died as the result of his or her honorable service, including a service member granted posthumous citizenship, and in the case of a surviving spouse, was living in marital union with the citizen service member spouse at the time of his or her death. The surviving spouse, child, or parent must meet the general naturalization requirements, except for the residence or physical presence requirements in the United States. Surviving spouses must not have been legally separated at the time of the service member's death, but the surviving spouse remains eligible for naturalization under this provision even if remarried since the service member's death.

3. Survivors of non-US citizen service members
Relatives of green card sponsors are subject to the preference categories or quota. If the deceased service member had permanent residence or a green card, and had filed a visa petition for his or her spouse or child, the spouse or child may file a self-petition as an immediate relative without regard to the quota which applies generally to all family based immigration categories that are not immediate relatives. Many of the categories are considerably backlogged, so this provision is exceptional in taking the surviving family members outside the quota system, as is the case for immediate relatives (parents, spouses and children of US citizens). The requirements are that the deceased service member:
• Served honorably in an active duty status in the military, air or naval forces of the United States
• Died as a result of injury incurred in or aggravated by combat,
• Was granted posthumous citizenship.
Thus, the surviving spouse, child or parent applies for adjustment of status (permanent residence) based on his or her relationship to the service member prior to his or her death, and the case will be treated as if the service member had not died.

Continue reading "Immigration Issues and the Military: Part Two - Benefits for Family Dependents" »

How do our immigration laws help (or hurt) our members of the military and their families? There are several programs that expedite citizenship for those who have honorably served in the military. Other programs help families with lawful permanent residence (green cards) and expedited citizenship. This firm has had the honor to handle a number of military related immigration and citizenship cases. Even the show "Army Wives" has an episode devoted to the issue of immigration problems of a deployed Army wife. Other examples abound in the media. Washington State is home to several military bases where many families have at least one immigrant relative. Immigration issues commonly arise in the military, many of a complex nature requiring help from an immigration lawyer. This article will be posted in two parts. This part focuses on benefits for active duty or honorably discharged members. The subsequent post will focus on benefits for family dependents.

Who can join the military?
The Selective Service statute makes it "the duty of every male citizen of the United States, and every other male person residing in the United States, who...is between the ages of eighteen and twenty-six, to present himself for and submit to registration." See www.sss.gov. This statute does not apply to any nonimmigrants maintaining lawful status such as F-1 foreign students, J-1 exchange visitors, H-1B temporary workers, or others set forth in the nonimmigrant immigration statute. However, since the statute does apply to any male residing in the US, even those who are not US citizens, that means undocumented immigrants must register. Registration is does not mean enlistment, however. The purpose of registration is in the event there is a draft because there are insufficient volunteers who have enlisted. There are a number of laws affecting what would happen if the draft is called up and how that would apply to undocumented individuals.

Voluntary enlistment rules are much more complicated. For the most part, enlistees must be US citizens or lawful permanent residents. In some cases, legal but non-US citizen or legal non-permanent residents may enlist. In 2009, a pilot program ran called "Military Accessions Vital to the National Interest" (MAVNI) to promote enlistment of 1000 lawfully present individuals, not having green cards or citizenship, but who had special skills such as medical training and language skills. This successful program attracted the most highly qualified and skilled individuals such as certain nonimmigrants and asylees. However, the program expired and many people are petitioning the government to reinstitute MAVNI. In sum, to enlist, one must have legal status. Undocumented individuals must register but may not voluntarily enlist for the most part at this time. The DREAM Act, had it passed the Congress, would have allowed those without papers to enlist if they applied for status under DREAM.

Military Related Immigration Benefits
The Immigration Statutes allow for expedited naturalization, posthumous naturalization, and immigration benefits for spouses, parents and children of US and green card holding military service members.

1. Expedited Naturalization
Qualifying members of the military service can obtain expedited naturalization under two statutes. Service must be in the U.S. Army, Navy, Air Force, Marine Corps, Coast Guard, and certain components of the National Guard and the Selected Reserve of the Ready Reserve. Active duty members can apply for naturalization in the U.S. or abroad. Some of the usual requirements for naturalization are minimized or waived for qualifying service members as noted below. The filing fee and biometrics fees are waived.

Normally, applicants for naturalization must prove they: 1) are at least 18 years old; 2) are lawful permanent residents for three or five years prior to filing, depending upon the category, 3) with half of that time (1.5 or 2.5 years) being physically present in the U.S., 4) are of good moral character, 5) are able to speak, read and write English and pass a civics and history exam, 6) are attached to the principles of the U.S. Constitution, 7) and they must pay the $680 biometrics and filing fee.

a. Section 328 requires the applicant to have served honorably in the U.S. armed forces for at least one year and, if separated from the U.S. armed forces, must have been separated honorably. In addition, the applicant must be a permanent resident at the time of examination on the naturalization application, be able to read, write, and speak basic English and pass the history and civics exam, be a person of good moral character, and attached to the Constitution. However the residence/physical presence requirement is waived if the applicant files for naturalization within six months of separation. This provision is sometimes called "Peace Time Service."

Continue reading "Immigration Issues and the Military: Honoring our Veterans and their Families" »

In an earlier post, Prosecutorial Discretion: "Backdoor Amnesty"? 9 Myths Debunked, I discussed the latest announcement from the Department of Homeland Security (DHS), that it will work with the Immigration Courts to cull from its docket "low priority" cases. The August 18, 2011 announcement by Homeland Secretary, Janet Napolitano, makes reference to two June 17, 2011 memos from Immigration and Customs Enforcement (ICE) discussing the criteria ICE should be using to determine if and when it will exercise prosecutorial discretion. As mentioned in the earlier post, discretion comes into play when the agency decides, weighing the good facts with the bad for a particular individual believed to be in the U.S. without proper documents, whether to arrest, detain, place in removal proceedings, continue with removal proceedings, or carry out an order of removal. So, just what are the criteria ICE will consider, and what will the courts consider in deciding whether to keep a case on its docket? Keep in mind that there were actually two memos issued on June 17, 2011 addressing broader enforcement priorities and one devoted to victims and witnesses of crimes and plaintiffs in civil proceedings.

General Enforcement Memo

The broader, more general memo on civil immigration enforcement priorities, mentions these factors to consider in deciding whether to favorably exercise discretion:

• the person's length of presence in the United States, with particular consideration given to presence while in lawful status;
• the circumstances of the person's arrival in the United States and the manner of his or her entry, particularly if the alien came to the United States as a young child;
• the person's pursuit of education in the United States, with particular consideration given
to those who have graduated from a U.S. high school or have successfully pursued or are
pursuing a college or advanced degrees at a legitimate institution of higher education in
the United States;
• whether the person, or the person's immediate relative, has served in the U.S. military,
reserves, or national guard, with particular consideration given to those who served in
combat;
• the person's criminal history, including arrests, prior convictions, or outstanding arrest
warrants;
• the person's immigration history, including any prior removal, outstanding order of
removal, prior denial of status, or evidence of fraud;
• whether the person poses a national security or public safety concern;
• the person's ties and contributions to the community, including family relationships;
• the person's ties to the home country and conditions in the country;
• the person's age, with particular consideration given to minors and the elderly;
• whether the person has a U.S. citizen or permanent resident spouse, child, or parent;
• whether the person is the primary caretaker of a person with a mental or physical
disability, minor, or seriously ill relative;
• whether the person or the person's spouse is pregnant or nursing;
• whether the person or the person's spouse suffers from severe mental or physical illness;
• whether the person's nationality renders removal unlikely;
• whether the person is likely to be granted temporary or permanent status or other relief
from removal, including as a relative of a U.S. citizen or permanent resident;
• whether the person is likely to be granted temporary or permanent status or other relief
from removal, including as an asylum seeker, or a victim of domestic violence, human
trafficking, or other crime; and
• whether the person is currently cooperating or has cooperated with federal, state or local
law enforcement authorities, such as ICE, the U.S Attorneys or Department of Justice, the
Department of Labor, or National Labor Relations Board, among others.

ICE states: "This list is not exhaustive and no one factor is.determinative. ICE officers, agents, and attorneys should always consider prosecutorial discretion on a case-by-case basis. The decisions should be based on the totality of the circumstances, with the goal of conforming to ICE's enforcement priorities."

Continue reading "Prosecutorial Discretion Criteria: Questions Abound" »

On August 18, 2011, Secretary Janet Napolitano, announced that her office, the U.S. Department of Homeland Security (DHS), will work with the Immigration Courts in the Executive Office of Immigration Review (EOIR), to review over 300,000 pending court cases to determine which ones are "low priority" and can be closed or terminated. This will enable DHS and EOIR to focus scarce resources on dangerous criminals and terrorists. Locally, DHS has already been reviewing the detention status of immigrants currently locked up in immigration jails to determine who is low risk and can be released. This announcement follows two DHS memos issued on June 17, 2011 clarifying "prosecutorial discretion" criteria for victims and witnesses of crimes, and summarizing enforcement priorities for the field based on prior memos on the subject.

What is "prosecutorial discretion"? It is the agency's and individual law enforcement officer's decision making process, weighing the favorable facts with the unfavorable facts to determine whether to prosecute, in this case civilly, any individual who has broken the immigration laws. There are three main areas where prosecutorial discretion can be carried out in the immigration enforcement area: 1) before a person is placed in removal proceedings in Immigration Court (whether to arrest, detain and/or commence removal proceedings), 2) while in removal proceedings (whether to continue or terminate removal proceedings) and 3) after an order of removal has been issued (whether to carry out removal of the person, defer or withhold removal). Criminal law enforcement agencies and prosecutors use their discretion every day to decide who to prosecute or not. (A current example would be the Dominque Strauss-Kahn affair.) Similarly, immigration officers decide every day whether to put someone in removal proceedings, continue proceedings or carry out removal orders if there other other equities or already existing eligibility for immigration benefits. Therefore, prosecutorial discretion is not new.

However, a combination of recent factors have contributed to the most recent pronouncement dealing with court backlogs. Last year, DHS deported almost 400,000 people and is on target to do the same this fiscal year. As a result, the Immigration Courts are experiencing stunning backlogs with the average case taking 439 days for a merits hearing. In addition, the Administration has mandated that Secure Communities will be in every state along with the Criminal Alien Program in which DHS combs the jails for individuals without status, whether or not they have been charged or convicted of a crime.
Therefore, it makes obvious sense for the courts to prioritize cases based on the objectives mentioned above.

MYTH 1: DHS and the Courts can't do that!

Congress makes the laws and Courts interpret the laws. The administrative agencies of the Executive Branch (under President Obama) carry out the laws enacted by Congress. Inherent in each agency's authority is the discretion to determine how the agency will enforce the law within the bounds of the agency's legal authority to act. When Congress enacts a law, it is generally with broad strokes. Then, each agency involved implements regulations and policies about how the statute will be implemented. In this case, Congress has not enacted any new statutes. The agencies involved with immigration enforcement are taking a look at the way in which they carry out the regulations and polices with the resources they have. There is both agency-wide prosecutorial discretion as well as individual officer prosecutorial discretion out in the field. Where a particular action is mandatory in the law, the agency/officer must carry it out. In an era of limited resources, the agency must consider how and where to spend its resources. This applies to all agencies of the government. With severe budget cuts to look forward to, all federal agencies are prioritizing how they will spend limited funds within the bounds of their authority. In this case, DHS has announced that its priorities are to protect national security, public safety, border security and to proect the integrity of the immigration system. While it is arguable that every single person found to be in the U.S. without status should be prosecuted to the fullest, the fact is, the surge in arrests has clogged the jails and the courts. In additional, the states that now prohibit immigrants from getting drivers licenses are clogging their local courts with cases involving driving without a license or similar minor offenses. Secure Communities and the Criminal Alien Program route these individuals to ICE and the Immigration Courts, creating huge pressures on the system and lengthy backlogs in the Immigration Courts.

MYTH 2: Prosecutorial Discretion is "Backdoor Amnesty"

Congressman Rep. Lamar Smith (R-Tx), leader of the House immigration restrictionists, and others with his view, such as the Center for Immigration Studies, FAIR and other anti-immigrant groups, claim the exercise of prosecutorial discretion by DHS and the Courts is "backdoor amnesty.". This simply is not true! Because Congress has refused to enact meaningful immigration reform legislation, immigrants' rights organizations have asked the Obama administration to make use of already existing powers the agencies have to exercise discretion in order to provide some humanitarian relief to long term residents and to cut back on splitting up families. However, even among immigrants' advocates, the prosecutorial discretion memos do not solve what is broken about our immigration system. After three years of President Obama as the greatest "Deporter-in-Chief" in the nation's history, his office is exhibiting some common sense by having DHS concentrate its limited resources on "high priority" cases, depending upon how that is ultimately defined and actually carried out.

Continue reading "Prosecutorial Discretion: "Backdoor Amnesty"? 9 Myths Debunked" »

A new report out by Transactional Records Access Clearinghouse (TRAC) at Syracuse University details asylum denial rates by individual judges across the country from 2006-2010 and compares them across national trends. The national denial rate is 53.2%. TRAC states that denial rates can vary among judges because of nationality of the applicant, whether the person is represented, and the individual personal perspectives brought to the court by the judges. TRAC statistics are for judges reporting having at least 100 cases in the reporting period and having decided at least 25 of those. Nationally, 11% of asylum seekers do not have counsel, and of those, 88% of their cases are denied by immigration judges. The nationality of asylum seekers can make a difference in the statistics because asylum seekers have different types of grounds for which they seek asylum depending upon where they are from and the country conditions. The top four countries from which people seek asylum are China, Haiti, El Salvador and Columbia. However, people from over 100 countries sought asylum. Where members of a particular nationality tend to settle in the U.S. can also affect the denial statistics by judges or regional courts. Because of the risk of harm and even death to asylum applicants if forced to return home, immigration court proceedings can be, as Immigration Judge Dana L. Marks told the New York Times, "like trying death penalty cases in traffic court." Because of substantially increased enforcement, the immigration courts are inundated with cases having substantial backlogs, and judges are pressured to conclude cases.

Seattle Judges Deny More Cases Than the National Average, According To TRAC

In the Seattle Immigration Court, there are three judges downtown and one or more judges at the Tacoma based Northwest Detention Center. On occasion, some judges do double duty at both locations, and sometimes there are roving judges in Tacoma from other parts of the country. The TRAC report gives detailed statistical information by judge about caseload, denial rates, and nationality of applicants before the Court. Collectively, the Seattle/Tacoma judges denied more cases than the national average, 59-79% compared to the national 53.2% denial rate. The judge at the Tacoma Northwest Detention Center denied 79% of her cases. This is primarily because 53% of her case load are detainees who lack legal counsel compared to the national average of 11% of asylum seekers lacking counsel. In Seattle, the top countries of origin for asylum seekers were from India, Mexico, China, Guatemala, El Salvador, Kenya, Eritrea and the Ukraine.

Detainees Lack Access to Counsel and Face High Asylum Denial Rates

In a September 2010 study called Isolated in Detention, the National Immigrant Justice Center, which surveyed 150 detention facilities nationwide, found that a majority of detainees around the country lacked sufficient access to counsel. This included limited phone privileges, lack of "know your rights" briefings, lack of available affordable legal services, and insufficient pro bono services for the detainee population, with most non-governmental organizations having staffs of five or less. Given that the Obama administration has been deporting 400,000 people a year, and at any given moment there are 32,000 beds filled at detention centers, the lack of available legal services directly impacts success in court.

Continue reading "New Report Out on Asylum Denial Rates by Immigration Judge" »

Following up to my July 4th post, On Becoming a U.S. Citizen, lo and behold, to my surprise, my husband bought me "Citizen U.S.A.: A 50 State Road Trip" by Alexandra Pelosi, the book accompanying the HBO documentary produced by Ms. Pelosi and mentioned in my earlier post. The book is an excerpt of interviews in which Ms. Pelosi asked new Americans around the country:

• What are you bringing to this country?


• What do Americans take for granted?


• What did you discover when you came to America?


• What has America given you?


• What's so great about America?


• What is the hardest thing to get used to in America?


• Why did you swim the river?


• Why did you choose to become an American?


• How to become an American

The responses are varied and enlightening. From people working on national security projects, finding the cure for AIDS, developing critical software, starting a business, to having more generalized hopes and dreams, of setting goals and achieving them, to seeking fame and fortune, or personal peace and freedom, the reasons people come to America are many. And what do they find here? Things most Americans take for granted: free soda refills, refrigerators and dish washers, automated doors, drive-throughs, malls, cheerleaders, tail gate parties and Oprah; critical things: medical care, affordable college or financial aid, gay rights, the right to purchase land, and free speech -"the right to dis my president"; and other benefits: funding for artists, ability to go bankrupt, men and women going to the beach together, career hopping, co-existence among races and religions, community service, charity, and more.

There are some amusing stories in the book about how and why people became U.S. citizens, such as a woman married to a U.S. citizen CPA who appealed to his wife's "sense of cheapness" by encouraging her to naturalize to save on estate taxes, or the person who met her future spouse while standing in line at USCIS. New Americans give their advice about the many myths of living in the U.S. such as no, the streets are not paved with gold, and yes, there are homeless people here, plus tips on how to fit in: "work twice as hard"; "go to a baseball game"; "go with the flow"'; "vote on American Idol"; "go to Costco"; "learn the Constitution"; and "don't take democracy for granted." A constant theme throughout the book is the interviewees' experiences of having worked very hard from the moment of their arrival in the U.S.

USCIS swore in 24,000 new citizens on July 4th, 525 of them here in Seattle from 83 countries, ranging from age 18 to 80 years old. Will you be next?

I am sipping an early morning Starbucks bold Italian brew on this gorgeous Seattle Fourth of July and reflecting on what it means to be a U.S. citizen. Today, across the country, U.S. Citizenship and Immigration Services will be holding large-group naturalization ceremonies in stadiums, concert halls and other big venues to coincide with our country's independence day. The ceremonies will be solemn on the one hand, and full of pomp and circumstance on the other, as those taking the oath of allegiance celebrate their new citizenship status on one of the most patriotic days of the year. Having been born in the U.S. myself, I can't possibly imagine what it must feel like to achieve the lifelong dream of U.S. citizenship from the perspective of someone born abroad. However, I have been to a few of these ceremonies in the past to see my clients take the oath of allegiance, and I always get goosebumps. The room is always full of people from many different lands, who came here for such diverse reasons as job opportunities, falling in love, uniting with family, escaping economic or environmental hardship, or fleeing physical abuse or oppression. Some were even brought here as children and always thought they were U.S. citizens until as adults they learned they were not automatic citizens. Naturalization ceremonies are one of the happiest services provided by USCIS and the courts. And, to their credit, they always do a nice job making the ceremony a pleasant and meaningful experience.

When I ask my clients why they want to apply for naturalization, the most common reason given is the "desire to participate in our system" or to vote. Another common reason for some who have had green cards for many years, is because their native country finally allows their nationals to have dual citizenship or because long time permanent residents finally "feel American." Other reasons include not wanting to jeopardize having a green card taken away due to a criminal or legal mishap or abandonment of residence. Still other reasons are to qualify for scholarships, or to obtain top level security clearances or employment opportunities for certain military, government and private sector jobs. Ability to sponsor relatives is sometimes given as a reason to become American. Others have spent years learning English and studying for the test or have worked two jobs to raise the high filing fees and now feel ready to apply and be successful. Still others have served our country through military service. Whatever the reasons, new Americans undertake this solemn oath of allegiance with dedication and excitement. Many of these reasons and others are shown in a new film by Alexandra Pelosi, the daughter of Nancy Pelosi in her new documentary film, "Citizen USA: A 50 State Road Trip" in which Ms. Pelosi interviews new Americans around the country. The film airs tonight on HBO at 9pm.

Being American As a State of Mind
The citizenship ceremonies being conducted across America today are the culmination of highly technical requirements and procedures, besides being emotionally exciting for the participants and their families. Many "followed the rules" the entire way of their immigration journey while others may not have, but found ways to lawfully immigrate in the end. Some have been here just a short time, while others have been here for years.

However, there are many people for whom "being American" is a state of mind only. While most U.S.-born citizens rarely take time to pause and reflect on the enormous privilege they have to be American, there are other people living among us who currently have no chance of becoming American citizens, but have for all intents and purposes grown up in America and feel American to the core of their souls. They are the Dream Act youth - the ones who would benefit from the Dream Act pending in Congress in one form or another for the last 10 years. If Congress would just get off its duff and pass the Dream Act, thousands of young people who are American in their souls as well as in their dedication to serve our country could be set on the path toward citizenship rather than languish aimlessly in the underground in what would otherwise be the start of their careers. They have grown up here most of their lives, have no allegiance to or knowledge of any other country, who desire to go to college and/or join the military. They all want to give back to America in one way or another. They have already shown they are a politically astute and well-versed in how to effectuate change. They are force to be reckoned with. Although the various versions of the Dream Act would put these kids on a ridiculously and unnecessarily long path to citizenship, at least they would be on the road, while their current road to nowhere is no fault of their own. As I said in a previous post, A Good Mind is a Terrible Thing to Waste.

Ask every one of the Dream kids, and they will tell you that they feel American and are American in all respects except having a piece of paper and the right to vote. Aside from living in fear of deportation, they live with stresses most American teens and young people don't live with: no legal right to drive in most states, no right to work, no right to attend college or get financial aid in many states, and no right to pursue a future consistent with their talents or dreams. However, they grew up with their U.S.-born neighbors, played soccer or baseball together, participated in Scouts, took music lessons, learned about U.S. and state history, attended countless Fourth of July barbecues and watched fireworks every year that they have been in the U.S. Some are valedictorians. Others are born leaders. Still others have started nonprofits or private businesses. Most have lived in America longer than many of the people being naturalized today. "Papers:The Movie" documents the Dream Act youth and their parents, teachers and mentors who have dealt with the multiple hardships these youth experience.

Let's hope that many of today's newly naturalized citizens will exercise their new status by writing to Congress and demanding passage of the Dream Act so that this group of young people may someday experience the emotional high and awesome responsibilities of becoming naturalized citizens.