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Democrats in the House of Representatives are trying to force a vote on H.R. 15, a comprehensive immigration reform bill, introduced by House Democrats last year. H.R. 15 models S. 744 passed last June by the full Senate. In an unusual maneuver called a “discharge petition,” the House would need 218 votes to force a vote on H.R. 15. Although the G.O.P. members introduced a set of immigration reform “principals,” they have not voted on any immigration reform bills at all, whether comprehensive in nature like H.R. 15, or any of the “piecemeal” bills their principals in fact promoted as a way to tackle reform efforts.

Discharge petitions have been used in other areas (e.g., unemployment insurance, raising the minimum wage). If enough signatures are received, it would force a vote on H.R. 15 even if the House majority leadership opposes. As of March 26, there were only 200 co-sponsors. Even if the petition does not get enough signatures, the Democrats are putting more pressure on the G.O.P to make the House do something this term on immigration reform.

Meanwhile, President Obama supported the Democrats’ efforts force a vote on the issue. But some immigration activists feel the discharge petition is more of a stunt than anything helpful that the Administration or Congress could do to stop the deportations. President Obama, also known as the “Deporter in Chief” by some, has been responsible for record-breaking deportations or removals, (depending upon how one does the counting). The Administration held a meeting earlier in the month with immigration advocacy groups to determine what else he could do within the bounds of his authority, but he mostly punted to Congress, which has the authority to make bold changes to the nation’s immigration laws.

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A March 2014 report by the National Foundation for American Policy shows that USCIS has issued more denials and Requests for Evidence (RFE) in recent years for L-1B multinational specialized knowledge employees. The statistics contradict the outreach efforts former Director Mayorkas made to the business and entrepreneur community through the Entrepreneurs in Residence program, and an entrepreneur-focused new web portal called Entrepreneur Pathways. Granted, it is up to the U.S. Congress to bring business immigration categories and requirements into the modern world, and they have failed to do so for decades. But, Director Mayorkas’ push to make the existing categories and regulations more user friendly hasn’t filtered down to the adjudicators on the ground that actually decide these cases.

A good portion of the denials involve Indian L-1B specialized knowledge cases, due largely to the government’s adversity to IT consulting firms placing technical workers at third party sites. However, the report shows a dramatic increase in denials overall from 7% in 2007 to 34% in 2013. Meanwhile, for 2013, there were 17,723 L-1B petitions received, of which 8,363 (47%) received RFEs. 6,242 of the petitions were denied while 11, 944 (67%) were approved. Therefore, while the denials and RFEs have gone up, still a majority of cases are granted, though not the majority there once was.

Unfortunately, this trend reflects adjudicator hypersensitivity about fraud, not just with small companies, but with big companies, too, given the number of RFEs. It adds considerably to the cost of pursuing an L-1B case because of the extra time and effort required to reply to RFEs, most of which are boiler plate, “everything but the kitchen sink” lists of questions. Experience with RFEs often reflects inconsistency among adjudicators. Sometimes it appears the adjudicator hasn’t read the application (e.g., the questions ask for things already submitted); or that parts of the application must have been lost in the mail room (e.g., the questions ask for things already submitted that appear the adjudicator never saw or read); or the adjudicator misunderstands the request (e.g., the questions ask for explanations about manager or executive status, not specialized knowledge); or the adjudicator misapplies the law (e.g., asks questions pertaining to another category not requested.) Occasionally, the questions seem to reflect that the adjudicator read the application and doesn’t feel comfortable granting a case yet unless some more “i”s are dotted and “t’s” are crossed (e.g., more of the same categories of evidence are submitted in addition to what was already submitted.)

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March 31, 2014 is the deadline to reopen I-130 visa petitions that were denied by USCIS prior to the US Supreme Court’s ruling in the United States v. Windsor case in June 2013. Specifically, the petition must have been denied based on Section 3 of the Defense of Marriage Act (DOMA) that the US Supreme Court held to be unconstitutional. Many of these cases were reopened by USCIS on its own. But, if you haven’t heard directly from them already, it is important to make contact with the agency either directly or through your attorney before March 31, 2014.

USCIS states the following in its FAQs.

Q5. My Form I-130, or other petition or application, was previously denied solely because of DOMA. What should I do?

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USCIS has released some preliminary guidance about the first batch of DACA recipients approaching the end of their first two years who received DACA from ICE (Immigration Customs and Enforcement) between June 15, 2012 and August 15, 2012 because they had cases in removal proceedings or were detained initially. These individuals must file for an initial DACA application within 120 days of their status expiring. They must apply as if for the first time, providing proof that they meet all of the relevant guidelines. These individuals must file form I-821D, the work permit application (I-765WS), and provide the filing fee of $465.00 and photos. Failure to file early within the 120-day period and on time, could result later in the accumulation of unlawful presence, which is important for future immigration if there are new opportunities or immigration reform. Note that USCIS has not yet revised the I-821D form for renewals but is currently seeking comments for a new form. Therefore, use the old form until the new one is available. More information for this group of ICE-granted DACA recipients can be found here.

Most DACA recipients, however, were approved by USCIS, not ICE. For this group, USCIS has not yet posted renewal guidelines, but expect them to do so soon. Stay tuned and visit this blog or the USCIS website frequently.

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I had the privilege of seeing the Seattle Opera perform “The Consul.” This Gian Carlo Menotti opera, which runs through March 7, 2014, deals with the frustration and torment of freedom and opportunity seekers everywhere trying to apply for visas and the bureaucracy they face. Althoughneither the location nor the government involved is mentioned in this opera, it is set in the 1940s or 1950s. Menotti’s idea for the opera was inspired by a New York Times article about a woman from Poland who committed suicide at Ellis Island after she was refused admission to the USA.

The issues in The Consul are the same today and accurately reflect what I hear from people every day who have been denied visas around the world: they feel they are treated briskly (“Next!”); no amount of paperwork is ever enough; their personal stories are not heard (only do you qualify or not); and that visas tend to be issued to the wealthiest of individuals. In the opera, the consular Secretary pronounces: “These photos are not the right size.” “This paper must be notarized.” “No one is allowed to see the Consul. The Consul is busy.” “I don’t see how we can help you.” “I can’t make an exception. It would upset our system.”

The music is interesting though it can be a bit disconcerting given the somber story. However, the lyrics are spot-on from my perspective based on what I know about the visa application process.

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I had the pleasure and honor to speak on a panel about EB-1 and EB-2 permanent residence categories at the annual Northwest American Immigration Lawyers Association Conference held in Portland on February 20-21, 2014. My co-panelist, Matthew McClellan from Oregon, covered the three main subcategories in the employment based First Preference (EB-1): “extraordinary ability” foreign nationals, outstanding researchers and professors, and multinational managers and executives. I covered EB-2 PERM-based advanced degree and exceptional ability categories, as well as National Interest Waivers for advanced degree professionals and those of “exceptional ability”, plus Schedule A, Group I physical therapists and Schedule A Group II exceptional ability immigrants in the arts and sciences.

Of particular interest and enjoyment to me is working on National Interest Waiver (NIW) cases. NIW means the government will waive the usual requirement that there be a US employer, job offer, and labor market test for “willing, able and qualified US workers”. (Note that for NIW cases, although a US employer and job offer is not required, the applicant must show he/she has offers of work in the US in the field of endeavor at issue. One cannot simply meet the criteria but not plan to work in the field of endeavor.)

Congress never specified what the requirements are to meet the NIW standard, and USCIS/legacy INS never implemented regulations to define NIW requirements. But, in a precedent decision, NY Dept. of Transportation (NYSDOT), 22 I&N Dec. 215 (Comm. 1998), the Administrative Appeals Office laid out a three-part test that has been used ever since:

1. The field of endeavor or proposed work must be of “intrinsic merit.” Note, NIW cases are for work in the sciences, business and arts, all of which can be construed rather broadly.

2. Second, the work must be national in scope. This can be tricky where the work to be performed is strictly local or will have just local impact.

3. The third and hardest prong of the NYSDOT test is to show that it is in the national interest to waive the labor market test (labor certification or “PERM”). Stated otherwise, it is not in the national interest to require PERM because the applicant provides a “significant benefit to the field of endeavor”; has a “past history of demonstrable achievement with some degree of influence on the field as a whole;” and is likely to “serve the national interest to a greater extent than others with the same level of education, training and/or experience.”

In sum, the applicant’s past impact on the field of endeavor should be proven such that it is highly predictive the applicant will continue to make a future impact on the field. Further, it is not enough to show a shortage of workers in the field because that is what PERM is for – to test the US labor market. Nor is it enough to show the applicant has a unique set of skills. Indeed, it is important to show through experts or peers in the field that the person has made some significant contributions to the field such that he or she is likely to do so again in the future. Keep in mind that PERM is about finding applicants who meet the MINIMUM qualifications listed in the job opportunity. Here, we are focused on major or significant contributions already achieved. (By contrast, extraordinary ability workers and outstanding professors and researchers must show a higher level of achievement: original contributions to the field or international achievements.)

If the NIW standards can be met, it applies to individuals in the professions with at least advanced degrees (masters or higher depending upon the field) OR to those who are of “exceptional ability.” A person is of exceptional ability if the applicant can prove “a degree of expertise significantly above that ordinarily encountered in the sciences, arts or business.” Further, persons of exceptional ability must show they will “substantially benefit prospectively the national economy, cultural or educational interests or welfare of the USA.”

This standard would be in addition to the third prong for the NIW noted above. To prove exceptional ability, the applicant must show at least three of the following criteria:

– Academic records related to the field of exceptional ability – At least 10 years of full time experience in the occupation for which the foreign national is being sought – License to practice the profession if required – Salary/remuneration demonstrating exceptional ability – Membership in professional associations – Recognition for achievements and significant contributions to the industry or field – Other comparable evidence

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USCIS has released some new instructional videos to help employers and their employees properly complete Form I-9s at time of hire. Since the passage of the Immigration Reform and Control Act of 1986 (IRCA), it has been the law every employer must document on Form I-9 the work permission status of employees hired since November 6, 1986. The law applies to the hiring of US citizens as well. Employers are subject to audit (Notices of Intent to Inspect) that can result in fines for failure to complete I-9s, failure to properly complete I-9s and for “knowingly hiring unauthorized workers.” In egregious cases, employers can be prosecuted for “patterns or practices of knowingly hiring unauthorized workers.” In addition, employers are prevented from discriminating against employees on the basis of national origin or citizenship status except in limited circumstances.

A few good resources for employers include:

1) Form I-9 and instructions. For more comprehensive information, see I-9 Central 2) M274 Handbook for Employers

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On February 6, 2014, USCIS posted it’s latest statistics about the Deferred Action for Childhood Arrivals (or DACA) program. This program was created by President Obama in his administrative discretion not to deport certain young people who came to the US before they were 16. DACA applicants for the most part would have benefited from the DREAM Act if Congress had ever enacted it into law, which it never did.

As of December 31, 2013, USCIS has received 611,000 applications since DACA started in 2012. Another 20,000 were filed but were rejected for various reasons at the lockbox. Of the 611,000, 427,000 were filed in 2013, and 20,000 have been filed so far in 2014. 521,000 DACA applications have been approved since inception of the program. 16,000 have been denied and 72,000 filed in FY2014 are pending. Mexican nationals are the largest users of the program by far, followed by applicants from various Central American countries, S. Korea and the Philippines. Most applicants reside in California, Texas and Illinois. Washington residents rank 11th (13,000 applicants, of which about 11,000 have been approved.) Overall, it is pretty clear that most of the cases have been approved. The first group approved in 2012 are or will be applying for extensions of stay.

Basic requirements

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It’s that time of year again when human resources professionals should be finalizing offers for “specialty occupation” positions they plan (or hope) to fill with foreign nationals who need H-1B visas. The filing season for fiscal year 2015 will open up again on April 1, 2014 for jobs that can begin starting October 1, 2014, the start of the government’s next fiscal year. Applications for H-1B workers who are subject to the annual cap will not be accepted before April 1; therefore, they need to be ready for the mail no later than March 31, 2014.

This ridiculous once-a-year timeline is courtesy of Congress that imposed annual cap limitations years ago except on institutions of higher learning, nonprofit or government organizations engaged in research, and private companies and non-profits with qualifying “affiliations” with the foregoing institutions. Cap-exempt organizations can file all year long. Therefore, it is mostly private sector positions at companies and nonprofits not engaged in research (or lacking affiliation agreements) that are subject to the cap.

The GOP members of the House recently announced that they refuse to move immigration reform legislation along this term. Last June, the Senate passed a massive overhaul bill that would have increased the H-1B numbers. Because no fix is on the horizon before the next filing period, employers are stuck again this year with the same old outdated mad dash to file H-1B applications on April 1 within a very short filing window. An upswing in hiring nationally usually translates to high demand for H-1B workers. This is why a market-based H-1B program is needed instead.

Last year, the filing “season” lasted one week. In addition, there was a lottery due to the flood of applications, making the whole program uncertain for employers who need global talent at the time they file. For FY2014, USCIS received 124,000 petitions for 65,000 cap subject cases plus the additional 20,000 petitions available to those with US masters degrees. Of those, 65,000, 6800 are reserved for Chilean and Singaporan H-1B applicants. Essentially, demand was more than double last year for the available visas.

Logistically, the way the cap cases work, is that employers send in their applications for filing starting April 1 (or until USCIS announces it will stop accepting any more). If there is a lottery, USCIS will conduct it within a few weeks. Employers will know their cases are selected when they receive a fee receipt with case number indicating their filing fee checks were cashed. USCIS will return the cases (and filing fees) if an application is not selected. USCIS will then spend the following months processing the selected cases. Employers can ask for expedited processing for an additional $1225 fee.
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On January 14, 2014, the US State Department (DOS) announced a new policy change (that will also be followed by the US Department of Homeland Security (DHS)) regarding immigration status of children born abroad through Assisted Reproductive Technology (ART). This is an important change for family immigration benefits that reflects the government’s acknowledgment – finally – that families are created in more high-tech and socially different ways in the 21st century. In addition, ART affects transmission of US citizenship, determined by DOS and described further below. The sections below deal with situations involving whether a child is born in or out of wedlock or is legitimated. These are all in addition to the ways child status through adoption or marriage (step-children) impacts immigration status, which is not discussed here.

Specifically, for immigration purposes, i.e., sponsorship, DOS stated that:

The previous policy required that a mother have a genetic connection to a child in order to qualify as a parent for the purpose of obtaining immigration benefits. Under the new policy, birth mothers (gestational mothers) who are also the legal parent of the child will be treated the same as genetic mothers for the purposes of immigration benefits.

The definition of “child” will now include the child of a genetic or gestational parent who is also a legal parent at the time of the child’s birth. Under the new interpretation, INA Section 101(b) (8 U.S.C. Section 1101(b)) treats a child as being born “in wedlock” under INA Section 101(b)(1)(A) when the genetic and/or gestational parents are legally married to each other at the time of the child’s birth and both parents are the legal parents of the child at the time and place of birth.

A “child legitimated” and a “legitimating parent or parents” in INA Section 101(b)(1)(C) includes a gestational mother who is also the legal mother of the child. The term “natural mother” in INA Section 101(b)(1)(D) includes a gestational mother who is the legal mother of a child at the time and place of birth, as well as a genetic mother who is a legal mother of the child at the time and place of birth.

The new policy will be retroactive. There will be cases in which children born abroad to a gestational and legal mother were previously denied an immigration benefit under the prior interpretation. In such cases, parent(s) must submit a new application for their child, if they wish to re-apply. The application must include sufficient evidence demonstrating that they meet all relevant statutory and regulatory requirements as well all appropriate fees.

For transmission of US citizenship, things become more complicated since there must be a biological connection to one or both parents claiming to transmit citizenship. Thus, DNA testing plays a much more critical role, but it can only be done after the child is born. DOS recommends exercising caution in the process because it cannot pre-adjudicate citizenship status (either for Consular Reports of Birth Abroad or US passports) prior to the child’s birth.
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