Seattle Immigration Lawyer Blog

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?" »

USCIS announced on February 11, 2011 that it will begin issuing dual purpose work-travel cards to applicants for adjustment of status (AOS). Currently, applicants for AOS pay one filing fee for adjustment to permanent residence status (green card), a separate work permit and a separate advance parole travel document while the AOS application (Form I485) is pending. A regulation states that anyone seeking to travel while AOS is pending will abandon that application if advance parole is not obtained first. The exception is for persons with valid H-1B and L-1 petitions and visas entering to resume employment that is the subject of their approved petitions. Typically, work permits and advance parole documents are issued in one-year increments. The work permit comes on a plastic card with security features while the advance parole comes on a sheet of paper with a photo and other security features. Sometimes one or more extensions are required necessitating additional filing fees. This can also occur in categories where the quota retrogresses after the AOS is filed or in jurisdictions where processing times are lengthy or for other adjudication delays or investigations. A new card with improved security features will be issued indicating work authorization. It will be endorsed to say "Serves as I512 advance parole."

Not everyone is eligible for advance parole, however. People in the U.S. unlawfully who accumulate unlawful presence and make a trip abroad after six months of unlawful presence will trigger the three or 10-year bar to re-entry. An additional waiver application will be needed to re-enter earlier than that. The AOS applicant could be stuck outside waiting for the waiver to be approved. Therefore, applicants should seek legal advice about eligibility for advance parole and before traveling abroad. Individual work permits and advance parole will still be issued as needed.

The American Immigration Lawyers Association (AILA) has launched a new website, www.stopnotariofraud.org, to help consumers of immigration services avoid becoming victims of dishonest behavior by non-lawyers who hold themselves out as providing immigration services. The site also has state-by-state guides on how to verify information about lawyers, what kinds of questions to ask when entering into an agreement, and how to file complaints against notarios and unscrupulous lawyers. The site is in Spanish and English for now.

In many countries, public notarios or consultants are allowed to provide legal advice. But in the United States the rules are different. First of all, the U.S. Department of Homeland Security (DHS), which is responsible for issuing benefits, border control and enforcement, as well as the Immigration Courts or Executive Office of Immigration Review (EOIR), have specific rules about who can appear before their agencies. An authorized representative making an appearance whether in person or filing an application on someone's behalf must file specific forms with applications or litigation documents verifying their eligibility to appear. Eligible persons are attorneys admitted to any state in the U.S., its territories or possessions provided there are no orders of suspension or disbarment against the attorney. Accredited representatives are also allowed to represent people. They must be certified by the Board of Immigration Appeals and usually work for charitable or religious organizations that charge no fee or a minimal fee. Certain law students or graduates who meet specific requirements may also assist immigrants. Friends, relatives or clergy may assist an applicant provided no fee is paid and the agency or the court agrees to their presence at an interview or hearing.

An attorney's credentials can be verified with the State Bar organization in which the attorney is admitted. For example, here in Washington, that would be the Washington State Bar Association, which has a lawyer directory. The attorney can then be checked against the EOIR website to see if he or she has been disciplined by the courts. USCIS also has extensive information about hiring a representative and how to avoid notario fraud, as does the American Bar Association.

Continue reading "Stopnotariofraud.org: AILA Launches New Consumer Website" »

On November 23, 2010 US Citizenship and Immigration Services (USCIS) not only raised filing fees for some applications, lowered them in others, and instituted some new fees. It also issued several new and revised forms as follows:

Revised Form I129 for H-1B, H-2A, H-2B, H-2C, H-3, E-1/E-2, E-3, L-1, O, P, Q, R and TN nonimmigrant temporary workers: The general form has changed as well as the visa specific supplemental forms. (See an earlier posting, "Revised H-1B Form and Increased Fees Effective November 23, 2010.) Previous editions can be submitted through December 22, 2010. Beginning December 23, 2010, the new form must be used. E-Filing will not be allowed for this form on a temporary basis. In some cases, there may be strategic reasons to submit the old form for as long as possible before using the new form due to some of the new questions. Therefore, it is a good idea to consult with counsel first.

Form I129S for Blanket L Petitions for Intra-Company Transferees: Prior versions are accepted though January 6, 2011. The new form must be used beginning January 7, 2011.

Revised form I212 Application for Permission to Reapply for Admission after Deportation or Removal: The old form can be used through January 6, 2011 after which the new version must be used.

New Form I-912 Request for Fee Waiver can be used as of November 23, 2010 to apply for application fee and biometrics fee waivers pursuant to new fee waiver rules.

New Form I924, Application for Regional Center is a for the EB-5 Immigrant Investor green card Pilot Program to have Regional Centers approved. Designated Centers will then file form I924A on or before December 29, 2011 and every year thereafter

For more information, see the USCIS website.

A new I129 Form will be introduced and published on November 23, 2010, the same date the filing fees increase from $320 to $325.00 for the base fee, and from $1000 to $1225.00 if premium expedited processing is requested. The form is used for several non-immigrant categories including E-1/E2, E-3, H-1B, H-2A, H-2B, the expired H-2C registered nurse, H-3, L-1, O, P, Q, R and TN. On top of the base fee for each of these categories there are fraud and training fees that vary by category, employer size and other requirements. Fraud fees were increased from $750 to $2000 back in August 2010 for certain H-1B petitioning firms with 50 or more employees and 50% of the workers on H-1B and L1 visas. There is also an optional M-735 H-1B Processing Sheet to help work out which fees are due and who is subject to the annual cap (maximum annual limit on H-1B visas).

U.S. Citizenship and Immigration Services (USCIS) will accept previous editions of the I129 form for 30 days or until December 22, 2010. Thereafter, the new form must be used. Consulting counsel about which form to use in the next 30 days is advised because there could be strategic reasons to favor one form over the other in light of the new questions being asked described in more detail below.

New Features in the Final Form

A. Off-Site Work
The final general form for all categories now includes the questions whether an itinerary is attached and whether the employee will "work off-site," which has different ramifications and rules for different categories. The H supplement form includes three new questions about off-site work including that the employer certifies it will comply with off-site work rules, including payment of the appropriate wage.

B. Export Controls
The new form includes new questions about export controls, and clarifies that the questions only apply to H-1Bs, L-1s and O-1 beneficiaries. Two questions ask the petitioner to check whether or not an export control license is required for the technology or technical data the petitioner will release or will otherwise provide access to the beneficiary. The employer must certify it has reviewed Export Administration Regulations and International Traffic in Arms Regulations, and that if a license is required, the beneficiary employee will not have any access to the controlled technology or data until the license is obtained. Although we had to know something about this area before, usually in the context of consular processing of visa applications and related security checks, now immigration lawyers get to become, or work with, export control specialists since every client will need to certify that they are or are not subject to the rules. Meanwhile, it is no coincidence that these questions appear on the form at the same time the U.S. Department of Homeland Security (DHS) announced it has funded and will manage a new Federal Export Enforcement Coordination Center (Center) that will be a multi-agency law enforcement organization.

Continue reading "Revised H-1B Forms and Increased Fees Effective November 23, 2010" »

On November 23, 2010, the filing fees for many U.S. Citizenship and Immigration Services (USCIS) forms go up on average 10%. USCIS published a detailed schedule. Applications filed with the old fees must be RECEIVED by Monday, November 22, 2010, which means they need to be express mailed by Friday, November 19. Some applications did not have a fee increase, such as the N400 for naturalization, but the biometrics fee that is filed with the N400 and with many other forms increased from $80 to $85 making that total cost from $675 to $680. Other applications had further adjustments to fees including a few reductions. New fees were imposed for the first time. For example, there is now a $6230.00 filing fee on form I924 to establish an EB-5 Immigrant Investor Regional Center. USCIS also published Q&As explaining their methodology for the fee increases and the comments received. It will be interesting to see if the public experiences faster processing times in exchange for the higher fees paid. A last minute crush of filings to avoid the higher filing fees could cause delays in processing.

As part of its efforts to be more transparent and engage the public, U.S. Citizenship and Immigration Services (USCIS) held a stakeholders meeting this week about making changes to the Form I-9 or the Employment Eligibility Verification form. Form I-9 is required to be used by all employers to document the work permission status of new hires. This has been the law since 1986. But, what should be a simple to use one-page form, continues to confound employers who are increasingly being warned, fined or indicted for violations in completing or using the form and/or for "knowingly" hiring or continuing to hire unauthorized workers.

I attended the teleconference and found the meeting to be very interesting for several reasons. USCIS has held a number of public engagement meetings and also posts the minutes or notes from meetings on its website. While USCIS creates the I-9 form that all employers must use to document the work permission status of new hires, including U.S. citizens, it is another agency, ICE (Immigration and Customs Enforcement), that conducts audits or raids of employers looking for evidence of satisfactory I-9 record keeping, or evidence of hiring unauthorized workers. ICE is far less transparent, given that it is an investigative agency, while USCIS is a benefits agency.

This particular public engagement meeting was very well attended by universities, employers, attorneys, and community based organizations from around the country. USCIS was most interested to learn from the audience what works and does not work for employers using the I-9 form. This form has been around since 1986 when Congress passed the Immigration Reform and Control Act (IRCA). It has taken on new importance in recent years as immigration enforcement actions have increasingly focused on employers as the magnets for illegal immigration. The Obama Administration has focused more efforts on penalizing employers than on the unauthorized workers, often using them as witnesses against the employer. But the I-9 verification process continues to be confusing for many employers, particularly as the program is linked to E-Verify, the government's online database for checking work permission status. E-Verify is not mandatory....yet .....except for federal contractors, and for use by certain employers previously audited. E-Verify is also required in those states that have passed legislation requiring E-Verify for state or local government contracting or where it is mandatory for the entire state. Nonetheless, E-Verify employers must still have their own manual or electronic I-9 verification procedures in addition to using E-Verify. (See an earlier post about a challenge to Arizona's mandatory E-Verify law in Chamber v. Whiting, "Arizona Cases Set for Argument."

The audience was asked to imagine what the "ideal I-9 form would look like" given that it is the law to have one and employers must use it. The audience provided many suggestions to make the form easier to understand, to accommodate a greater range of the more peculiar immigration statuses allowed in the law, and to make it easier for both employers and employees to understand their obligations and the various types of documents they are likely to see. Of course, what remains to be seen is how USCIS will use the comments to make the I-9 more user-friendly and less time consuming for employers, since the slightest inaccuracies can lead to fines.

Today, USCIS announced new final regulations increasing by 10% on average the filing fees for immigration benefit applications. Although it did not raise the fee for citizenship applications, USCIS introduced some new fees such as for the EB5 regional pilot program designation ($6230.00!), fees for immigrant visas where USCIS has a role in the process ($165.00), and civil surgeon registration fees ($615.00). The rationale and fee list is posted here.

Besides the fee increases, USCIS made technical corrections to some application fees, made procedural changes that reduce other fees for a few applications, and increased the types of applications where fee waivers can be requested. USCIS also issued Q&As.

USCIS said it had received 225 comments during the public comment process, some in favor of the increases, most opposing, and others seeking fee reductions. In addition, USCIS held stakeholders meetings and invited the public to review its budget and cost methodology.

Fee increases have always been controversial, especially among immigration law practitioners and their clients, as well as NGOs that service refugees and low income immigrants. Often, we do not tend to see a corresponding benefit in USCIS processing times or procedures in relation to the fee increases requested by the agency. This is especially true in the last year or so when USCIS says filings are down, but procesing times are taking longer than ever, do not reflect processing times posted on their website, and many cases are delayed by Requests for Evidence. In any event, USCIS will most likely get bombarded with applications over the next two months before the fees go into effect on November 23, thereby increasing processing times more.

In its efforts to be more transparent, USCIS issued a draft adjudication policy memo for public comment due by September 3, 2010. The draft memo instructs adjudicators how to evaluate evidence in EB-1 and EB-2 creme de la creme employment based visa petitions for permanent residence. The policy memo is a response to the 9th Circuit Court of Appeals decision in Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010).

EB-1 cases include "extraordinary ability" workers in the arts, science, business, education and athletics; "outstanding researchers and professors" (in academia as well as in private business); and multi-national managers and executives. The memo focuses on the first two EB-1 categories as well as EB-2 "exceptional ability" immigrants. Each category contains a list of possible criteria for which only some of the criteria must be proved with evidence (e.g., two or three might be needed out of six or seven criteria).

In Kazarian, the Court of Appeals held that USCIS had gone too far by requiring additional criteria not required by statute or regulation. In the proposed memo, USCIS relies on dicta in Kazarian in which the court discussed the criterion concerning authorship of scholarly articles: "While other authors' citations (or a lack thereof) might be relevant to the final merits determination of whether a petitioner is at the very top of his or her field of endeavor, they are not relevant to the antecedent procedural question of whether the petitioner has provided at least three types of evidence. 8 C.F.R. § 204.5(h)(3)." The USCIS memo relies on the phrase final merits determination.

In the memo, USCIS interprets Kazarian to require a "two-step" process: first, determine the amount and type of criteria presented; second, evaluate all the evidence together qualitatively to determine if it rises to the level of "extraordinary", "outstanding" or "exceptional" as the case may be. This contradicts earlier case law and memos in which the petitioner need only prove the minimum number of required criteria to be found to be "extraordinary", "outstanding or "exceptional".

The draft memo attempts to set out criterion by criterion exactly what adjudicators should consider and when, and how to perform its qualitative analysis. Therefore, it does not exactly follow the Kazarian Court's ruling or prior federal court rulings. More denials and litigation are expected if the final memo contains the two-step procedure.

USCIS already rejects cases relying primarily on the qualitative analysis prong it devised. Immigration law practitioners fear this policy will creep into the area of O and P non-immigrant temporary visas which have "extraordinary" and "internationally" or "nationally" acclaimed standards based on a similar criteria. Temporary artists and entertainers, in particular, are experiencing higher denial rates or extensive requests for evidence that cause delays. On August 10, 2010, the Los Angeles Times ran a story about the 20% increase in petition denials for artists and entertainers for any number of reasons. Or, applicants are subject to lengthy and time consuming "requests for evidence." In July, USCIS Director Alejandro Mayorkas held a "listening session" on O and P visas. The O and P visa criteria were recently posted on the USCIS website. Subsequently, top managers at the California Service Center responsible for deciding these types of cases were replaced. Now, it remains to be seen if these pubic engagement and policy memo changes will result in more timely and positive outcomes for this particular industry, which often has last minute and high exposure needs for O, P and EB-1 and EB-2 petitioners and beneficiaries.

Continue reading "USCIS Solicits Comments on EB-1 and EB-2 Adjudications for Artists, Entertainers, Scientists, Researchers and Professors, and Business People" »