Articles Posted in US Citizenship and Immigration Services (USCIS)

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USCIS has announced that it will provide certain relief for Filipino victims of Typhoon Hiyan that struck the Philippines on November 8, 2013. Many people were hoping that the Attorney General would declare the Philippines eligible for Temporary Protected Status (TPS) treatment authorizing those Filipinos in the US as of November 8, 2013 to apply for a special status and work authorization as has been done historically for other countries such as Somalia, El Salvador, Haiti and Syria, among others after environmental calamities or civil war. Instead, USCIS is using existing law and procedures to deal with Filipino immigration cases, such as they did following the Japanese Tsunami, allowing applicants:

-A change or extension of nonimmigrant status for an individual currently in the United States, even when the request is filed after the authorized period of admission has expired;

-An extension of certain grants of parole made by USCIS;

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USCIS has finally released a long awaited policy memo about “Parole in Place” or PIP. PIP is a procedure that permits qualifying family members who entered the U.S. without inspection (EWI), who ordinarily would need to leave the US to process a family based green card abroad, to be able to apply for green cards (adjustment of status) in the U.S., provided USCIS agrees to “parole” the individual. At this Seattle immigration law firm, we have worked on these cases before, and have found the experience helping our military service members to keep their families together quite rewarding.

The general rule is that to apply for adjustment of status in the US, the applicant must have been “inspected and admitted or paroled.” Admission occurs when a foreign national presents a passport with a visa (or no visa if from a visa exempt country) to a US Customs and Border Protection officer (CBP) at a port of entry. The individual is thereby “inspected and admitted” if allowed to proceed into the USA. There are some limited additional “admissions” scenarios for some wave-through type cases, but even these still require that the individual is presented for inspection and is deemed admitted.

Parole is a legal fiction that permits an individual seeking admission at a port of entry to be legally allowed into the US without having been deemed admitted. In other words, the person is deemed still requesting admission or “arriving”, but is given a legal status called parole without having been formally admitted. Thus, ability for a person who entered EWI to get PIP can be extremely advantageous enabling the individual to apply for adjustment of status rather than consular processing a case. For many individuals who entered EWI, they would otherwise be subject to a three or 10-year bar to return and would need a waiver to re-enter earlier than that.

The US Defense Department (DOD) views the troops’ morale and military readiness to be a significant and highly important objective of military preparedness. This includes ensuring that troops are as emotionally prepared and are as stress free as possible so they can focus on their service related jobs. The purpose of PIP is “to minimize periods of family separation, and to facilitate adjustment of status within the United States by immigrants who are the spouses, parents and children of military members.” Servicemen and women, who have family issues such as the threat of deportation to family members, can be extremely stressed out and can suffer from various hardships that impact their military preparedness.

Until the new PIP memo issued on November 15, 2013, (Parole of Spouses, Children and Parents of Active Duty Members of the U.S. Armed Forces, the Selected Reserve of the Ready Reserve, and Former Members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve and the Effect of Parole on Inadmissibility under Immigration and Nationality Act§ 212(a)(6)(A)(i)), adjudication of PIP requests varied around the country. Some local district USCIS offices did not acknowledge PIP at all; many offices had different procedures and outcomes; offices varied as to applicability to active duty versus veterans, and active duty versus Ready Reserves service. The new memo now provides some continuity of policy for all districts to follow. (However, policy memos technically do not have the force of law. Further, the government tends to rely on policy memos when it wants to and ignores them at other times.) The PIP policy memo also reflects President Obama’s practice of using policies and regulations to fix important immigration issues within the bounds of existing statutory rules where Congress has failed to reform immigration laws.
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Now that the government has reopened, there are a few lingering immigration related issues. Today, USCIS issued this advisory concerning work visa applications:

We would like to share the following information on Form I-129 H-1B, H-2A, and H-2B petitions.

If an H-1B, H-2A, or H-2B petitioner submits evidence establishing that the primary reason for failing to timely file an extension of stay or change of status request was due to the government shutdown, USCIS will consider the government shutdown as an extraordinary circumstance and excuse the late filing, if the petitioner meets all other applicable requirements.

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In the world of immigration and citizenship law, our clients deal with many government agencies. My readers know that I like to cite directly to government sources; so, let’s take a look at the contingency plans of various federal agencies in case Congress puts us all over the fiscal cliff into a government shutdown next week. Keep in mind that things are changing by the hour. If ever there is a time for it, should there be a shutdown, patience will certainly be a virtue while our crazy Congress gets its act together. As of this writing today, none of the agencies have posted plain language-speak on their home pages to let the public know what they plan to do. The agency documents cited below have a lot of budget management-speak, and have been sent to the White House. This is my attempt to decipher and summarize them as they could affect our clients. Stay tuned to the news.

US Department of Homeland Security

Based on a September 27, 2013 US Department of Homeland Security contingency plan, here are some ways your immigration or citizenship case may be impacted:

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I previously wrote about the new I-9 form published by USCIS on March 8. The Handbook for Employers, or M-274, has also been updated. The biggest changes are the additional and expanded pictures of the various documents employers are likely to encounter. However, there are also a number of minor changes that can raise a number of questions by employers as to the appropriate documents that are acceptable or raise questions about the details in completing the I-9s.

Today, I attended a teleconference held by USCIS with stakeholders about the new I-9s. Employers’ questions centered around what to do when re-verifying employees who have updated documents. USCIS says to use the new March 8, 2013 form and to attach the old I-9 to it. There were many other questions raised by referrers and recruiters for a fee (e.g., staffing companies) and universities, all of which have seasonal or re-hire scenarios. The new I-9 form has a new place to indicate the start date for new hires. Other questions or concerns addressed the new boxes for the various types of Social Security cards, and what to do if someone has requested a replaced Social Security card. Many questions centered around when to use the old v. new form, whether to re-verify existing employees on the new form (No!), how long to keep scanned I-9s(same retention rules as paper versions), and whether employers can pre-populate forms from other data sources (e.g., payroll company information)(no, not the employee section, yes for the employer name and address only in part 2).

USCIS is holding numerous free public webinars and will also customize their training for employers who request it. Employers should start by taking a close look at the new I-9, read the instructions and regulation thoroughly, and then review the Handbook. Be sure to look at I-9 Central and call experienced counsel if you run into any unusual problems or wish to conduct an internal audit or training of personnel.

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Today, USCIS published a notice of revised I-9 form in the Federal Register. USCIS states: “Although employers should begin using the 03/08/13 dated form right away, older forms dated 02/02/09 and 08/07/09 will be accepted until May 7, 2013. After May 7, 2013, only the 03/08/13 will be accepted. The revision date is on the lower left corner of the form.” USCIS has also scheduled free webinars to help employers understand the new form.

Primary changes to the new form include more thorough instructions for employees and employers, a visually easier layout, and ability to complete online. USCIS added data fields, including the employee’s foreign passport information (if applicable), and telephone and email addresses. The form is now two pages rather than one, excluding the list of usable documents to verify work authorization. The list of acceptable documents include additional details about individual documents such as the various types of acceptable Social Security cards. Employers should still refer to I-9 Central for more details. The Handbook for Employers (M-274), mentioned in an earlier blog post below, is being updated.

The I-9 form is to be used by employers who hire, refer or recruit for a fee. The form is to be completed by the employer and employee within three business days of hire and may not be used as a screening tool. Employees must document their identity and work authorization in the US. The form is to be used for all new hires, including US citizens. Employers can be fined for failing to complete I-9s, for completing them improperly, for failing to retain them, and for knowingly hiring unauthorized workers. This has been the law since November 6, 1986.

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It’s been 27 years since Congress passed the 1986 Immigration Reform and Control Act (IRCA) requiring employers to document the work permission status of ALL new hires, including US citizens, on Form I-9. After all those years, employers still contact our office wanting to hire, or continue employing undocumented workers, or they simply want to “help” an employee who they don’t realize lacks permission to work. Many employers sound clueless about IRCA requirements, even when there is so much information out there. In addition, mergers and acquisitions are picking up again in a number of industries. Determining actual or potential I-9 liability and other immigration related workplace compliance problems should be part of every due diligence effort.

Of course, there are many employers who know about their IRCA obligations but ignore them, betting they will not be the subject of enforcement action and penalties, and contributing to employment as the magnet for illegal immigration. By contrast, many employers don’t know if their employees are work authorized or not if they are using fraudulent documents or signing I-9 forms falsely. It’s not just those who entered the country illegally without inspection that employers want to hire or sponsor for visas and green cards. A substantial portion of the undocumented population are those immigrants who came to the US lawfully and overstayed visas, committed misrepresentation in getting their visas, or violated status by working without authorization when the terms and conditions of those visas prohibit employment (such as tourists, foreign students without authorized practical training, and H-4 spouses, to name a few examples). Hiring workers without authorization puts employers at risk as well as the unauthorized workers. Employers can be audited and fined at any time; the worker can be deported or at the least make the ability to get legal documents more complicated. Nonetheless, the fact that a worker does not presently have work authorization, doesn’t mean that they are ineligible to become work authorized later. Separate legal advice is recommended to determine a prospective employee’s status and strategy. Because of potential conflicts of interest between the employer’s liability and the employee’s right to work (or not), each may need separate legal advice depending upon state bar rules.

Without doubt, the direction of Congress has been and will continue to be increased enforcement penalties against employers. According to ICE, in 2012 the agency made:

-520 criminal arrests tied to worksite enforcement investigations, of which 240 were owners, managers, supervisors or human resources employees. They face charges such as harboring or knowingly hiring illegal aliens. The remaining workers who were criminally arrested face charges such as aggravated identity theft and Social Security fraud.
-Homeland Security Investigations served 3,004 Notices of Inspection and 495 Final Orders, totaling $12,475,575.00 in administrative fines.
-ICE debarred 376 business and individuals for administrative and criminal violations.

While these enforcement figures are fairly low, jobs in the US are still the magnet that attracts both legal and illegal immigration. As we have seen, when the economy is doing well, more immigrants come to the US. When employment slows, so does legal and illegal immigration.

Potential Penalties
Civil fines for employers who violate I-9 rules include $110-$1100 per paperwork violation or $375-$15,000 per knowing hire/continuing to hire violation per employee. Recent legislative proposals include increased fines for employers by factors of three to ten times what they are now. Employers can be penalized for technical “paperwork” violations (failing to complete I-9s, failing to properly complete I-9s, failing to keep I-9s, etc.) as well as for “knowingly hiring or continuing to hire unauthorized workers.” “Knowing” includes “constructive knowledge.” In addition, there are criminal penalties for a “pattern or practice” of knowingly hiring or continuing to hire undocumented workers. Penalties can include asset forfeitures if used in a crime, as well as debarment from various federal programs, business forfeitures, liability for back wages, damages, and legal fees and costs. In other words, it can be very, very expensive to hire undocumented workers just to save on payroll expenses or to “help someone out as a favor.” There are also the burdens and costs of public relations nightmares, fiduciary duties owed to shareholders, and loss of management and executive time, if not service to the company, if the CEO, owner, officer or manager is found liable. In egregious cases, employers may be dealing with USCIS, ICE, the IRS, Social Security, US Department of Labor, state labor offices, prosecutors, and potentially the SEC (relating to public filings and disclosures about company liabilities).

ICE publishes its penalty schedule. ICE considers five factors in determining penalties: the size of the business, good faith effort to comply, seriousness of violation, whether the violation involved unauthorized workers, and history of previous violations. Every employer should review ICE’s description of the I-9 audit process including the “enhancement matrix” based on the above listed five factors.

Employers should plan how the company or organization will respond in case of a Notice of Inspection (NOI). Employers have only three days to respond. Calling the company lawyer, who may not practice immigration or employment law, or contacting an immigration lawyer for the first time upon receiving a NOI, with only three days to respond, can make it very difficult to review personnel records and I-9s and/or to formulate an effective response in a short time frame under stressful conditions. Rather, companies should review their employment and compliance practices before ICE comes knocking on the door. Conducting an internal audit with counsel and training appropriate personnel to handle I-9s should be done well in advance.
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One of the most frustrating aspects for immigrants and their families is figuring out the status of their cases pending before USCIS, the courts or the State Department that runs the National Visa Center and US Consulates abroad where visas are issued. The USCIS 1800# customer service number has been a quagmire for years, as any immigration practitioner or applicant can tell you. Run by a third party contractor, the phone tree alone can lead a caller to neverland. Then, if you are lucky to get a live person, the representative talks too fast, reads from a script and is confined to answering questions from the script because of limited access to the government’s databases unless you are savvy enough to convince the person to hand your call off to a more senior officer. Then one has to wait another 60 days to follow up further if your case is not resolved quickly.

I mentioned in an earlier blog post, USCIS Expands Case Inquiries Through eRequest,the different ways a person can check on a pending application. Now, the agency has introduced some new features to My Case Status (where you plug in your case number to view status of your specific case). Applicants can now track card production and US Postal Service tracking via email. In addition, the National Customer Service Center is expanding its hours to Saturdays 9am-5pm (1800 375-5283) for routine questions only. However, to move up the chain of more qualified officers, it is best to call during the week.

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USCIS recently issued a new final regulation that goes into effect on February 1, 2013 specifying that Immigrant Visa recipients must pay a new and additional “Immigrant Fee” of $165.00. Applicants who receive Immigrant Visas at US consulates and embassies abroad will be required to pay the new fee online before they travel to the US. See The $165.00 fee covers the cost of green card production and other visa related services by USCIS associated with State Department visa processing.

Once an Immigrant Visa is issued on or after February 1, 2013, the visa holder has six months to use the visa to enter the US. Upon admission with the visa, a plastic green card is received within a few days to a couple of weeks. The individual arrives at the border with a package from the State Department that will now include a notice about payment of the fees or a receipt for having previously paid the fees. Although failure to pay the fee will not stop a person from being admitted into the US as a new permanent resident, the actual green card production will be held up until the fee is paid. Fees must be paid out of a US bank account and are to be paid online.

Exempt from the Immigrant Fee are Hague Convention adoptees. Stay tuned for more details about how to make this payment.

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In November 2012, USCIS created a new Entrepreneur Pathways portal purportedly to make it easier for foreign national entrepreneurs to navigate the immigration system. Previously in 2011, USCIS Director Alejandro Mayorkas announced a new Entrepreneurs in Residence (EIR) initiative to promote better adjudications for entrepreneurs. EIR would also include training adjudicators about real world business scenarios including start up ventures, financing, hiring methods, and other features of the current entrepreneurial space. Director Mayorkas then assembled an EIR “tactical team” made up of USCIS service center adjudicators and administrators, and private sector entrepreneurs. Unfortunately, the Entrepreneur Portal, while a potentially helpful EIR initiative to explain what programs already exist, lacks any new changes to make adjudications easier for entrepreneurs. However, as noted in my blog post, USCIS Entrepreneurs in Residence Update Engagement Session, Mr. Mayorkas stated earlier this week that the portal is a work in progress and that it is intended for individuals abroad so that they can plan their careers as entrepreneurs in advance of coming to the US. This view may not be as helpful to those entrepreneurs who suddenly or by happenstance develop a new idea for a business after they are here under other circumstances. Nonetheless, it appears the portal is intended to be a one-shop stop for any entrepreneur.

The first part of the new portal, “Getting Started,” is billed as “high level,” but it is really just a quick overview of very basic existing immigration concepts with some fancy photographs. Next, entrepreneurs are invited to “engage” with USCIS, of which there will be only four opportunities in a year, with the first meeting set for February 2013 in Austin, Texas. Engagement sessions can vary: a) USCIS explains how they plan to do something or what their policy is, more in the form of announcements; b) some engagement sessions are listening sessions where USCIS wants to hear from the public or stakeholders but USCIS doesn’t offer any its own thinking on positions; and c) some engagement sessions are a little more interactive with stakeholders. Sometimes USCIS posts the notes from these meetings online, and sometimes they don’t.

The portal then offers the “Visa Guide.” This is where the fun begins. The only topics discussed are B-1 Business Visitors, F-1 Students, H-1B Specialty Occupations, O-1 Extraordinary Ability Aliens, L-1 Intracompany Transferees, and E-1/E-2 Treaty Traders. Based on the recent engagement session, it appears EIR will now focus on permanent pathways. Keep in mind that all of this effort by the administration is to focus on job creation by small business while Congress fails to enact meaningful changes to the employment based immigration system. Thus, all of the discussion within the EIR portal is just existing avenues of immigration. While USCIS headquarters does outreach on its initiatives to help entrepreneurs, what happens on the ground in the context of individual application adjudications can be a totally different story. Meanwhile, the EIR portal focuses on just these categories for now:

B-1 Business Visitors You can’t be an entrepreneur in the US in B-1 status since one must work for a company abroad because the visa holder must maintain a permanent home abroad. But, a prospective entrepreneur can come to the US to investigate opportunities, attend meetings and trade shows, take orders for the company abroad, and engage in some other limited activities but not local labor for compensation.)

F-1 Students One can’t work in F-1 status except on campus or toward the end of one’s program, when the work must be related to the subject of the studies, known as practical training. F-1 Optional Practical Training isn’t too helpful for entrepreneurs whose services or capital might be needed for more than a year, or up to 29 months if working in the STEM fields. However, F-1s can be self-employed. For the longer STEM OPT, the employer must use E-Verify. This might be enough to get a business started and off the ground, but the entrepreneur will need to switch to something else to stay longer in the US.

H-1B Specialty Occupations – H-1Bs get the most publicity, bad and good. But, these visas are not even available for first-time applicants in the private sector when the annual cap is reached, often within a few months of the opening of filing season. For example, right now, entrepreneurs/employers cannot even file until April 1, 2013, and only then for jobs that cannot start until October 1, 2013, Depending upon the strength of the economy and hiring trends in April, it could be anywhere from a day or a couple of months when applicants can file before the annual quota is used up for the next fiscal year starting October 1. Will the person be employed by or “at” an “affiliated” institution of higher education or government or nonprofit research organization so that a visa could be obtained all year long? What about the restrictions on the employer-employee requirement in the “Neufeld Memo”? While USCIS purports to suggest that entrepreneurs can get H-1B visas if they are not self-employed, i.e., where there is a board of directors with authority to hire, supervise, and fire the H-1B worker, in actuality, down on the ground, the adjudicators have a very hard time with H-1B entrepreneurs. Many of these cases are denied, or at the least, are subject to extensive Requests for Evidence (RFE) and thus, lengthy delays. And, what about the presumption of fraud that seems to permeate every small business whether or not a new start up resulting in multi-page RFEs and increasing denials? While H-1Bs are not impossible for the start up entrepreneur, they are difficult to get in addition to the timing/cap issues.
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