Recently in US Citizenship and Immigration Services (USCIS) Category

January 15, 2014

Relief Announced for Filipino Typhoon Hiyan Victims

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;
-An extension of certain grants of advance parole, and expedited processing of advance parole requests;
-Expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
-Expedited processing of immigrant petitions for immediate relatives of U.S. citizens;
-Expedited adjudication of employment authorization applications, where appropriate; and
-Assistance to Lawful Permanent Residents (LPRs) stranded overseas without immigration or travel documents, such as Permanent Resident Cards (Green Cards). USCIS and the Department of State will coordinate on these matters when the LPR is stranded in a place that has no local USCIS office.

In addition, USCIS reports it is proactively identifying and expediting pending I-130, Petition for Alien Relative, forms that have been filed by U.S. citizens for their Filipino immediate relatives. Their standard security checks remain in place. Family petitioners are encouraged to check their case status online at www.uscis.gov or contact the National Customer Service Center at 1-800-375-5283 or 1-800-767-1833 (TDD assistance).

November 15, 2013

PIP Policy Memo Issued by USCIS

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.

Continue reading "PIP Policy Memo Issued by USCIS" »

October 18, 2013

Immigration Issues Lingering from Government Shutdown

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.

(Although not mentioned in the advisory, it presumably applies to E-3 visas that also require Labor Condition Applications.)

During the shutdown, the US Department of Labor (DOL) was not processing online Labor Condition Applications required for E-3 and H-1B applications, or Labor Certification Applications (PERM) for permanent residence applications and H-2A and H-2B applications. The American Immigration Lawyers Association (AILA) had inquired about whether USCIS would accept petitions without DOL certified documents, and not hearing back from the agency, obviously many people were in limbo. DOL's systems are now back up and running.

E-Verify was another online system that employers could not use during the shutdown to document the work permission status of their employees. However, they were still required to complete form I-9s. Those in turn were impacted by those employees whose primary evidence of work authorization along with an identity document were Social Security numbers, as the Social Security Administration was not issuing new numbers. This particularly impacted newly arriving H-1B workers with October 1 start dates when the shutdown began. Employers should now proceed to update their verification forms and systems as soon as possible. USCIS has issued this alert for employers. And, here are some useful FAQs for employers.

The immigration courts were closed during the shutdown at least for non-detained cases. EOIR is reporting today that:

Non-detained cases scheduled for 10/17/13 will be rescheduled for a future date. Effective 10/18/13, all non-detained case dockets will proceed with all scheduled cases. Any filing that was due during the time the court was officially shut down will not be considered late if the court receives the filing within seven business days from today. All cases set for a master calendar hearing that did not go forward during the shutdown will be rescheduled to the next available master calendar hearing date. All cases set for an individual calendar hearing that did not go forward during the shutdown will be rescheduled to the next available individual calendar hearing date.


September 29, 2013

What Happens to Your Immigration or Citizenship Matter If There is a Government Shutdown?

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:

1. US Citizenship and Immigration Services (USCIS:
USCIS is the benefits granting agency. It is largely funded by user fees instead of appropriations from Congress. USCIS is expected to continue working on change of status, extension, green card, citizenship and other benefits applications because it has "other funding sources" not related to appropriations, namely the fees you pay when you submit your application. But, because USCIS interacts with some other agencies to get background information and to do security checks, there could be some delays. Stay tuned about our local USCIS offices in the coming days.

On the other hand, employers will not be able to use E-Verify to verify work authorization status of new hires. This database program is either not considered essential to safety or national security or it is dependent upon Congressional appropriations.

2. Border Patrol and Inspections:
US Customs and Border Protection (CBP) is an essential agency necessary to protect national security. CBP will continue its inspection and investigation services. Its functions are considered important to national security and are deemed "law enforcement necessary for the safety of life and the protection of property."

3. Immigration Customs and Enforcement (ICE)
Similarly, ICE functions are deemed "law enforcement necessary for the safety of life and the protection of property," and their business should be conducted as usual. However, ICE attorneys involved in removal proceedings may be focused on detained and criminal cases or other ICE related matters because of the Immigration Court's funding. See EOIR below.

4. Transportation and Security Agency (TSA)
Yes, you can still travel. TSA functions are also "necessary for the safety of life and the protection of property" and are essential to national security. However, there could be delays in other areas related to transportation.

5. Civil Rights and Civil Liberties (CRCL)
The complaint hotline will not be staffed during a shutdown.

The US State Department

The US State Department runs the National Visa Center and the US consulates and embassies abroad, both of which deal with visa eligibility and visa issuance. It also runs the US Passport Office. There are Passport Offices in the US and abroad at consular posts. The State Department's contingency plans in case of "a lapse in appropriations," depend upon whether any particular department has funding reserves:

1. Visa services at US Consulates and Embassies
Consular posts will be "100% operational as long as there are sufficient fees to support operations" or "residual balances." Like USCIS benefits, most visa services are fee based. However, consular posts could be affected by funding of buildings, contracts and/or personnel. Complicated union contracts come in to play in most of these agencies as they affect staffing. Continued funding will be treated "case by case" and services that will continue will be those that that are necessary for emergencies involving "the safety of human life and the protection of property," or are necessary to national security or the conduct of foreign affairs. Therefore, if you have an upcoming visa appointment, it may or may not go forward as originally scheduled. You will need to stay in touch with the consulate or your attorney.

2. Passport Offices
It appears based on the State Department memo that only those passport applications involving emergencies, the safety of human life or other national security, or conduct of foreign affairs will be issued. Similarly, passport offices located in consular or embassy posts may be operational depending upon the funding of the building and staff itself.

The US Department of Labor (DOL)

DOL manages the H-1B/E-3 Labor Condition Application process and PERM, the labor certification program for permanent residence plus the H-2A/H-2B labor elements of those visas. The DOL contingency plan states it will reduce the Employment and Training Administration to a skeleton staff of 28. This division runs the office of Foreign Labor Certification that in turn runs the various DOL related programs for several visa categories and permanent residence labor market testing as well as the Board of Alien Labor Certification Appeals. There will be no Administrative Law Judges on duty. And, it appears that there will be no work done in the foreign alien labor certification division applications. (See pages 2 and 17 of the DOL's amendment to the 2011 contingency plan.)

Executive Office of Immigration Review
EOIR is in the US Department of Justice. It includes the Immigration Courts handling removal proceedings and the Board of Immigration Appeals. EOIR's contingency plan states that "excepted employees" include those working on detained and criminal immigrant cases among other functions, which seems to infer that non-emergent or cases not related to national security will not be heard until Congress comes up with a budget and funding for FY2014 beginning October 1, 2013. Locally, word is that the Seattle Immigration Court would close, but the Tacoma Immigration Court located in the Northwest Detention Center should remain open.

March 12, 2013

Revised I-9 Handbook For Employers (M-274) Released

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.

March 8, 2013

Employers Beware: New I-9 Form Published Today

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.

In 2012, USCIS held several comment periods to obtain feedback from the public about needed revisions to the form I-9. All employers should begin using this new version of the form now for new hires after today, but definitely by May 7, 2013. Employers that use electronic I-9s have 60 days to upgrade their systems. Employers should not go back and re-verify using the new form if they previously verified using older forms. And, indeed, employers may not engage in unnecessary verification that would lead to violations of the anti-discrimination rules.

See an earlier post on this Seattle Immigration Lawyer Blog on the subject of I-9 compliance and issues:
Employers in Denial: Still Clueless or Avoiding I-9 Obligations?

February 20, 2013

Employers in Denial: Still Clueless or Avoiding I-9 Obligations?

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.

Continue reading "Employers in Denial: Still Clueless or Avoiding I-9 Obligations?" »

January 11, 2013

USCIS introduces New Case Tracking Features

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.

December 27, 2012

USCIS to Collect New Green Card "Immigrant Fee" Starting February 1

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 www.pay.gov. 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.

December 14, 2012

USCIS Creates Entrepreneur Pathways Portal

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.

Continue reading "USCIS Creates Entrepreneur Pathways Portal" »

November 20, 2012

USCIS Expands Case Inquiries Through e-Request

On November 19, 2012, USCIS expanded its e-Request system for making status inquiries about individual pending applications or to correct notices. Applicants can submit web-based inquiries on cases pending longer than stated processing times, have notices/approvals corrected, and can inquire about or change biometrics appointments for replacement green cards (I-90s) and naturalization applications (N400s). In order to use the e-Request service, applicants will need their original fee receipt number (upper left corner of form I797 Notice of Action).

Other ways to check on case status include:

  • 1. Automated online case status (plug in the case number)

  • 2. Check application type processing times (scroll down, pick the location where the case is pending, then select the form type. Times given are average targeted times and may not be actual processing times in your case.)

  • 3. Call customer service at 1-800-375-5283 (Hearing Impaired TDD Customer Service:1-800-767-1833) for cases beyond the processing time, information not found on the website or automated information, or for unusual circumstances, emergencies, etc.

  • 4. Make an in-person appointment through the online INFOPASS appointment system. (For emergencies, situations not resolved online or through customer service.)

  • 5. Sign up for automated case updates by text message or email (or your lawyer or representative can).

Additional USCIS inquiries/services:

1. Changed address. All non-citizens must report change of address two ways:
a. File form AR-11 within 10 days of moving. This can be filed online, sent by mail or by calling customer service at the number above. Be sure to keep a copy for your records.
b. Secondly, if you have a pending case at one of the service centers or a district office, you need to send a copy of your change of address to the office where the application is pending along with your case type and case number (preferably with a copy of the fee receipt). Send this by certified receipt mail or some other proof of delivery method for your records.

2. Expedited processing. Some cases can be expedited without reason but for an extortionist fee of $1225.00. This is called "premium processing." A list of eligible applications can be found here. Note, although the government is supposed to decide cases within 15 business days, often they issue a Request for Evidence around day 13 or 14, which tolls the 15 business day rule. However, one benefit of premium processing is ability to communicate via email once the case has been filed.

If your case does not qualify for premium processing, another way to seek "expedited review" is through traditional expedited processing with proof the case meets the expedite criteria found here. This is known as discretionary expedited processing. You can send evidence of the criteria for expedite via mail to where the case is pending or you can call customer service at 1-800-375-5283, or make a local in-district INFOPASS appointment as described above.

January 10, 2012

Provisional I-601 Unlawful Presence Waiver Update

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" »

January 6, 2012

USCIS Proposes Stateside Processing of I-601 Waivers: Know Before You Go?

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?" »

February 12, 2011

USCIS to Issue Dual Purpose Work-Travel Cards for Pending Green Card Cases

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.

December 7, 2010

Stopnotariofraud.org: AILA Launches New Consumer Website

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" »