News in Brief

February 28th, 2015

The following additional items may be of interest to our readers:

TPS Designation for Liberia, Guinea, and Sierra Leone: As a result of the recent outbreak of Ebola in West Africa, the DHS has designated Liberia, Guinea, and Sierra Leone for Temporary Protected Status (TPS). The designation is effective for an 18-month period from November 21, 2014, through May 20, 2015. Eligible nationals from these three countries may apply for TPS if they are already in the U.S.; if TPS is granted, they will not be removed from the U.S. and will obtain work authorization.

TPS Extended for Nationals from Nicaragua and Honduras: DHS extended the designation of Nicaragua and Honduras for Temporary Protected Status (TPS) for 18 months from 1/6/2015 through 7/5/2016.

New NIV I-129 Petition Form Must be Used after Feb. 24: USCIS recently released a new Form I-129, Petitioner for a Nonimmigrant Worker, containing an edition date of 10/23/14. USCIS currently accepts I-129 forms with the new 10/23/14 edition date — as well as editions dated 10/07/11, 01/19/11, and 11/23/10 — until May 1, 2015. However, after May 1st, USCIS will only accept the 10/23/14 edition.

California Driver’s Licenses for Undocumented Immigrants: Beginning January 1, undocumented immigrants will be able to apply for California driver’s licenses, thanks to AB60, which Governor Brown signed into law in 2013. This AB60 driver’s license will have a visible distinguishing feature and will subject cardholders to certain federal limits, such as entering restricted federal facilities. Further information is available on California’s DMV site.

DNA Evidence Not to Be Afforded Evidentiary Weight to Sibling to Sibling Relationships: A policy memo stating that because probability standards for sibling-to-sibling DNA test results have not been established, USCIS may not afford evidentiary weight to sibling-to-sibling DNA test results. USCIS will, however, continue to rely on DNA testing results between parents and children.

USCIS Approves 10,000 U Visas for Sixth Straight Fiscal Year: USCIS has approved the statutory maximum of 10,000 petitions for U-1 nonimmigrant status for FY2015. The agency announced that it will continue to review pending petitions for eligibility and notify eligible individuals that they are on a waiting list. USCIS will resume issuing U visas on Oct. 1, 2015. U visas are available for victims of certain qualifying crimes who have suffered substantial mental or physical abuse and are willing to help law enforcement authorities investigate or prosecute those crimes.

New Policy Announcement on the Effect of Assisted Reproductive Technology (ART) Immigration

February 25th, 2015

USCIS and DOS have recently collaborated in the development of a new policy on the effect of assisted reproductive technology (ART) on immigration and acquisition of citizenship. In an October 28 announcement, the agencies stated that a non-genetic gestational mother (person who carried and gave birth to the child) who is also the child’s legal mother may be recognized in the same way as genetic legal mothers are treated under the immigration laws. Previously, a genetic relationship with a U.S. citizen parent was required in order for a child born abroad to acquire citizenship at birth through his or her parent. Under the new policy:

(1)     a “natural mother” or “natural father” is a genetic parent or gestational parent. Accordingly, the “natural mother” of a child born out of wedlock includes a non-genetic gestational mother if she is the legal parent at the time of birth.

(2)     A gestational mother has a petitionable relationship without a genetic relationship to the child, as long as she is also the child’s legal parent at the time of birth.

(3)     A non-genetic gestational legal mother who is a U.S. citizen may transmit citizenship at birth, or after birth, when all other pertinent citizenship and naturalization requirements are met.

DHS To Implement Haitian Family Reunification Parole Program

February 20th, 2015

DHS announced in mid-October that starting in early 2015 it will implement the Haitian Family Reunification Parole (HFRP) program to expedite family reunification for certain eligible Haitian family members of U.S. citizens and lawful permanent residents.

Under this program, USCIS will offer certain eligible Haitian beneficiaries of already-approved family-based immigrant visa petitions, who are currently in Haiti, to be paroled into the United States up to approximately two years before their immigrant visa priority dates become current. The program is intended to promote “a fundamental underlying goal of our immigration system — family reunification” and “supports broader U.S. goals for Haiti’s reconstruction and development by providing the opportunity for certain eligible Haitians to safely and legally immigrate sooner to the United States.” Furthermore, the program is designed to discourage individuals in Haiti from undertaking life-threatening maritime journeys to the United States.  DHS advises that such individuals will not qualify for the HFRP program, and, if located at sea, may be returned to Haiti.

USCIS is not currently accepting HFRP program applications, and potential beneficiaries should not take any action at this time. Full program details are expected soon.

DOS Launches In-Country Refugee/Parole Program for Children in El Salvador, Guatemala, and Honduras Who Have Parents Lawfully Present in the United States

February 18th, 2015

In an effort to better manage and stem the tide of unaccompanied minors crossing the southern border to reunite with their parents, on December 3 the Department of State (DOS) launched an in-country refugee/parole program in El Salvador, Guatemala, and Honduras. The program will allow certain parents who are lawfully present in the United States to request access to the U.S. Refugee Admissions Program for their children still in one of these three countries. Children who are found ineligible for refugee admission but still at risk of harm may be considered for parole into the U.S. on a case-by-case basis. DOS also advises that, under certain circumstances, if the second parent resides with the child in the home country and is currently married to the lawfully present parent in the U.S., the second parent may be added to the child’s petition and considered for refugee status, and, if denied refugee status, for parole.

Applications for this program may be initiated by a lawfully present parent in the United States. The form (DS7699), however, must be filed with the assistance of a designated resettlement agency that works with the DOS Bureau of Population, Refugees, and Migration to help resettle refugees here. In addition to medical and security screening, DNA relationship testing will be required to confirm the biological relationship between the parent in the United States and the in-country child. While parents do not need to pay any fee to file the form or for assistance in completing and submitting it, they are expected to cover the initial costs of DNA testing. (Costs for DNA testing are reimbursable under certain circumstances.) There are some 350 resettlement agency affiliates in more than 180 communities throughout the United States. Additional information about the program, as well as a list of the resettlement agency affiliates that can assist with filing Form DS7699 can be found on the Central American Minors page on the Refugee Processing Center website (www.wrapsnet.org/CAMProgram/tabid/420).

It is anticipated that relatively few children from Central America will be admitted to the United States as refugees in FY 2015, given the anticipated December launch and the length of time it takes to be processed for U.S. refugee admission. Any child or parent admitted as a refugee will be included in the allocations prescribed for the Latin America/Caribbean regional, which is 4,000 for FY2015. If needed, there is some flexibility within the U.S. Refugee Admissions Program to accommodate a higher-than-anticipated number from Latin America in FY2015.

PERM Business Necessity: DOL Offers Guidance on Burden to Prove

February 13th, 2015

Recently, the Office of Foreign Labor Certification (OFLC) has been issuing a number of audit requests for PERM applications that require proving the business necessity of job duties or requirements. Fortunately, the OFLC has released a directive to help clarify what kinds of documents can help meet the standard of review. There are generally two issues that should be addressed to show the business necessity of a listed job duty or requirement: that it is a normal requirement in the industry, and that it is essential to the position. Common documents used to show business necessity include: employer or expert statements describing how the duty or skill relates to the business and showing that it is a typical requirement in the industry. Additionally, résumés from current or past employees in the position can show the employer has required this in the past, and that past employees have met the requirements. Moreover, evidence from other employers in the industry — such as job advertisements or résumés from people in the same position — can help show that they also require the minimum duties or skills requested. Business plans or contracts can demonstrate that the job duty or requirement is essential to the business. Finally, a statement from an employer explaining the negative impacts on the business can help convince an analyst of the necessity of the requirements.

Also keep in mind that the job must be a permanent, full-time position and cannot be finite or contracted. Employers are advised to prepare an anticipated audit response, including a business-necessity argument addressing both the industry standard and the position.

U.S. and China Extend Visa Validity Period for Business Travelers, Tourists, and Students

December 31st, 2014

 

On November 12, the United States and the People’s Republic of China began to reciprocally increase the validity of short-term business and tourist visas and student and exchange visas issued to each other’s citizens. Chinese applicants who qualify for B-1 or B-2 nonimmigrant visas may now be issued multiple-entry visas for up to 10 years for business and tourist travel. Qualified Chinese students and exchange visitors and their dependents who qualify for F, M, or J nonimmigrant visas are now eligible for multiple-entry visas valid for up to five years or the length of their program. U.S. citizens eligible for Chinese short-term business and tourist visas should also receive multiple-entry visas valid for up to 10 years, while qualified U.S. students may receive student residency permits valid up to five years, depending on the length of their educational program. All qualified dependent family members of students and exchange visitors will also be eligible for these same increases in visa validity.

The same standards of eligibility for a U.S. visa will apply as before the extension in validity, and the change in visa validity does NOT change the permitted duration of stay for any other visa class. Applicants with previous visas still will be eligible to apply for visa renewal via the Interview Waiver Program. The changed visa validity will not change visa application fees.

One should note that existing visas will be valid only until the expiration date printed on the current visa. This extension does NOT increase the validity of visas already issued. To obtain a visa with extended validity, holders of valid or recently expired visas will need to apply again.

NVC No Longer Collecting Original Civil Documents

December 29th, 2014

 

As of November 12, the National Visa Center (NVC) stopped collecting original civil documents (birth certificates, marriage certificates, police clearances, etc.) as part of the immigrant visa (IV) application process. Rather, IV applicants will now be instructed to bring their original documents with them to their interview. This will be a huge relief for foreign nationals who worry about parting with often hard-to-obtain original documents. The NVC hopes that this will make the application process more efficient and reduce waiting times.  We hope so too!

Holiday Travel and Foreign Nationals: Review Your Documents Now

December 24th, 2014

 

Now is a good time for foreign nationals who will be departing the United States for travel abroad over the holidays to review their travel documents to ensure that their re-entry into the U.S. is as seamless as possible. Depending on an individual’s current status and whether he or she is “in process” for another status, different documentation may be required upon return to the United States. For example, certain foreign nationals who are currently in status but whose visa has expired will be required to apply for a new visa at a U.S. consulate in their home country. (Wait times for visa appointments at U.S. consulates vary and tend to swell during the holiday season, as do processing times.) For other foreign nationals, an advance parole travel document may be required to preserve a pending green card application. And yet for others, changed circumstances (such as change in work, change in relationship, arrests, and criminal matters) may have immigration consequences. Even travelers on the Visa Waiver Program should ensure that their ESTA authorization is still valid; if re-authorization is required and the individual is denied, and a visa becomes required for re-entry, sufficient time will be necessary for that individual to make an application.

Foreign nationals planning to travel outside the United States within the next few weeks and who have questions about their documents are encouraged to contact our office.

President Obama’s Executive Action on Immigration Law Enforcement: What Does It Mean?

December 24th, 2014
 

As most of our readers know, on November 20, President Obama announced a number of sweeping and historic immigration measures to address the country’s pressing immigration issues. The overriding principles behind the President’s announcement are: (1) prioritizing immigration law enforcement on those who pose a threat to the United States; (2) creating a program that ensures family unity; (3) facilitating the entry of highly skilled workers who contribute to the U.S. economy, and retaining those who are already here; and (4) securing the country’s borders. Two initiatives will grant work authorization and a shield against deportation for an estimated 4-5 million undocumented immigrants. Other initiatives will benefit over 400,000 foreign national employees waiting for green cards. While the announcement dominated the news and social media for several weeks, none of the actions outlined in the President’s speech and by the Department of Homeland Security shortly thereafter has taken effect.

The articles below summarize the President’s executive action, describe who is likely to be impacted, and explain when in the coming months these measures will be available to eligible foreign nationals.

Expansion of Deferred Action for Childhood Arrivals (DACA):

As announced, the program that went into effect in 2012 will be expanded by eliminating the current age cap of 31 (as of the date of the original DACA announcement). Also, the eligibility cut-off date by which an applicant must have been in the United States will be moved to January 1, 2010. Moreover, USCIS will grant DACA and work authorization for three instead of two years, which also will be extended to pending DACA renewal applicants.

USCIS expects to accept DACA application under the extended program within 90 days of November 20.

Deferred Action for Parental Accountability (DAPA):

USCIS will create a new deferred action process, similar to DACA, for parents of U.S. citizens and lawful permanent residents – such children must have been born as of November 20, 2014 – who have been continuously present in the U.S. since before January 1, 2010; who were physically present in the U.S. on November 20, 2014; and who are present at the time of application. Eligible parent-applicants will be able to request deferred action and employment authorization for three years, provided they pass required background checks.USCIS expects to begin accepting applications within 180 days of the November 20 announcement

Expansion of Provisional Waiver Program:

The provisional waiver process permits individuals who are eligible to apply for their green cards but who must apply for a waiver of inadmissibility because they have been in the United States unlawfully to do so from within the U.S. before departing for an interview at U.S. consulate abroad. Currently, only immediate relatives (spouses and children of U.S. citizens) are eligible to apply for provisional waivers. Under the expanded program, eligibility for such waivers will become available to all relatives for whom an immigrant visa is available.  In other words, the provisional waiver will be available to the spouses and children of lawful permanent residents (LPRs) as well as other relatives of U.S. citizen-petitioners. Under the provisional waiver program, applicants must show “extreme” hardship to certain U.S. citizen or LPR family members. Under the new directive, USCIS also has been instructed to provide guidance on the definition of “extreme” hardship. The agency may also consider criteria by which a presumption of extreme hardship may apply, which would make it easier for otherwise eligible green card applicants to obtain this necessary waiver.

This change will be done by regulation, but no time frame has been provided.

Work Authorization for H-4 Spouses:

A rule already proposed would permit H-4 spouses of H-1B employees to apply for an Employment Authorization Document (EAD) card. The rule as proposed limited eligibility to H-4 spouses whose H-1B spouse has begun the process to obtain permanent residency.

Final rulemaking is expected later this month or in January 2015.

Foreign Student Optional Practical Training (OPT):

The length of time for OPT for STEM (science, technology, engineering, and mathematics) graduates of U.S. institutions will be extended, and additional expansions of this program may occur, including the number of degree programs eligible for OPT.

This will be done by regulation, but no time frame has been provided.

PERM Labor Certification:

Perhaps the most common way for employees to obtain green cards is through a labor certification showing that no U.S. workers are willing, able, or available to perform the job.

Regulations will be published to modernize the PERM program and to make the program more responsive to changes in the U.S. workforce.

Relief for Employees Awaiting Green Cards and Modernizing the Employment-Based Visa System:

Each year thousands of visas go unused because the allocation system is not precise. These unused visas could be recaptured so that those waiting for their green cards can get them more quickly. DHS Secretary Jeh Johnson has directed USCIS to undertake several steps to modernize the employment-based visa system, including exploring with the Department of State optimal use of the annual visa allocations. Another measure is to permit individuals with an approved I-140 employment-based petition and caught in the lengthy visa backlog to pre-register for adjustment of status and obtain the benefits of pending adjustment. Such benefits would include obtaining EADs and travel permits. It is presumed that this would include the employee-principal applicants as well as their family-member dependents. These changes could provide tremendous flexibility for employers and their foreign national personnel. Moreover, USCIS has been instructed to clarify the types of job changes (“same or similar”) that do not require new PERM applications, and to make it clear that promotions to supervisory positions and transitions to related jobs in the field of endeavor are permissible. The change is expected to affect about 410,000 people.

No time frame has been provided for when these changes would be implemented.

Promoting Research, Development, and Entrepreneurship:

Certain foreign “inventors, researchers, and founders of start up enterprises” will be afforded new immigration options, through the clarification by USCIS that the National Interest Waiver employment-based immigrant visa category is appropriate for some and granting parole status for others.

These changes will be implemented by policy memo and regulation, but no time frame has been provided.

L-1B Specialized Knowledge Intracompany Transferees:

USCIS has been instructed to issue a long-awaited policy memorandum that will “provide clear, consolidated guidance on the meaning of specialized knowledge.” It is expected that a more lenient and consistent interpretation of the law will be implemented, which will provide more certainty for companies and reduce denials.

Southern Border and Approaches Campaign:

DHS has commissioned three new task forces, with personnel realignments to improve border security. The announcement specifically states that the objectives should not impede travel, lawful trade, and commerce.

“Secure Communities”: The controversial deportation program, also referred to as 289(g), is discontinued. The program relied on integrated databases and partnerships with local and state jailers to build domestic deportation capacity and required local law enforcement to detain individuals for ICE custody. Many state and local partners as well as rights advocates and others came to resent the program because of its detrimental effect on local law-enforcement operations, and because it became a general deportation facilitation tool rather than a tool for deporting criminals.

Immediately after President Obama’s executive action was issued, the legality of his authority and actions was raised. While many legal scholars, including some 130 law professors and former general counsel of the immigration service, have stated that the President’s actions are within the legal authority of the government’s executive branch and are consistent with similar actions taken by other presidents, a lawsuit was filed by 17 states in U.S. district court seeking declaratory and injunctive relief. The suit alleges that the Administration’s immigration executive actions violate the “Take Care Clause” of U.S. Constitution (Art. II, Sec. 3, Cl. 5) and Administrative Procedure Act (APA). It remains to seen what the court will do.

In any event, none of these programs has been implemented, and it may be months before the publication of any policy guidance or formal regulations that give these action effect.Moreover, President Obama’s actions do not provide permanent relief or status to anyone, and Congress can enact legislation to supersede any and all of these reform measures.

For months to come, the agencies will provide explanations, instructions, forms, and more detailed procedures as necessary, and we will provide those details as we learn of them. In the meantime, our experienced attorneys are available to answer questions and determine how you may benefit.

Probation Versus Suspended Sentence: What’s the Difference Under US Immigration Law?

December 8th, 2014

Under U.S. immigration law, there is a world of difference between being sentenced to probation and being sentenced to jail but with the jail term suspended. The latter can have dire immigration consequences, even though there may be no meaningful consequences under state criminal law.

Under U.S. immigration law, a suspended term of jail or imprisonment for a criminal offense is considered the same as actually serving that time in prison. Rather than classification of the crime, the law looks at the term of imprisonment. This means that it usually doesn’t matter whether the offense is classifiable as a felony or misdemeanor.  The length of the sentence is especially important because the provisions that refer to “removability” often reference the term of imprisonment to determine whether a person is removable from the U.S. for the crime.  The length of sentence, in turn, also determines whether there is relief available in the form of a waiver from deportation. This is true whether an individual is on a nonimmigrant visa or is a permanent resident.

Most people aren’t criminals and don’t engage in behavior that is normally considered felonious.  But, let’s look at shoplifting.  Often, an individual convicted for misdemeanor shoplifting is sentenced to one year suspended. Perhaps the criminal defense attorney recommended this strategy because it means no jail time, no felony under state law, and even an eventual expungement of the record. The result is no criminal record of consequence.  Not so under immigration law.  Immigration law states that if an individual is sentenced to a year or more for a theft crime, then the crime shall be classified as an “aggravated felony,” even if the original crime was classified as a misdemeanor. An aggravated felony charge under immigration law is extremely serious. It almost always means that the individual — lawful permanent resident and nonimmigrant alike — will be placed in “mandatory detention” and cannot be released on bond.  Furthermore, with the current backlog in the immigration courts, such a person detained under the “mandatory detention” provisions will be held for many months awaiting a hearing before an immigration judge. Finally, a charge of “aggravated felony” limits the availability of relief from deportation that may be available. Thus, even long-time permanent residents who are convicted of an aggravated felony can and often are deported to their home country.

The important lesson here for both nonimmigrants and immigrants is to carefully abide by the laws of this country, because even a minor infraction can have serious consequences. In case of an arrest, it is vital that an immigration lawyer be retained to advise the criminal lawyer on possible dispositions that will not result in removability or other longer-term immigration consequences.  A permanent resident should always apply for naturalization as soon as possible so as not to become subject to removal from the U.S.  Finally, if one has an arrest record of any kind, it is important to seek qualified immigration counsel before traveling abroad, renewing the green card, or applying for naturalization.