Long-Pending DACA Case? Check to See If Certain Factors Apply

March 28th, 2014

A recent, informal survey among the immigration bar reveals that many long-pending (more than six months) DACA cases involved one or more of the following circumstances:

  • The requestor had a criminal history – numerous cases involved DUI-related incidents, juvenile adjudications, gang issues, and drug and theft offenses;
  • The requestor attended an online school or was homeschooled;
  • The requestor had previously been in removal proceedings or was in removal proceedings at the time of the DACA request;
  • The requestor had a petition or an application for other relief pending;
  • The requestor departed the United States for a considerable period of time either during or prior to the continuous residence period;
  • The requestor provided what the attorney considered to be a small amount of evidence to support either continuous residence during the relevant period or physical presence on June 15, 2012.

If any of these factors apply to your case, this may explain the longer processing times, even though these factors may not reflect official USCIS policy decisions or adjudication trends.  Cases pending for a year or more can been elevated to the USCIS Ombudsman’s Office for assistance.

Immigrant Visa Availability: What to Expect in the Coming Months

March 21st, 2014

The family second preference for spouses and children of lawful permanent residents (F2A), which advanced significantly in August 2013, has retrogressed for Mexico to 04/15/2012, as posted in the March Visa Bulletin. This means that those applicants who applied to adjust their status during the last six months but who do not have their cases approved before March 1 will have to wait to obtain their green cards until they reach their priority date. The State Department also advises that because there are many applicants with priority dates earlier than any listed cut-off dates, not everyone who reaches a priority date will receive a visa.(The F2A worldwide preference category is expected to retrogress by the summer.)

As the visa allocations enter the sixth month of the fiscal year, the March Visa Bulletin provides projections for the next several months based on current applicant demand patterns, with the caveat that projections are not guaranteed and “corrective” action may be required to maintain visa number use within the applicable annual limits. Nevertheless, those categories with a “current” projection are likely to remain so for the foreseeable future.

 

Family-sponsored categories (potential monthly movement)

Worldwide dates:

F1: Two to four weeks

F2A: No forward movement is expected

F2B: Four to seven weeks

F3: Four to six weeks

F4: Two or three weeks

 

Employment-based categories (potential monthly movement)

EB-1: Current

EB-2:

Worldwide: Current

China: Three to five weeks

India: No forward movement

EB-3:

Worldwide: This cut-off date has been advanced over four and one half years since last spring in an effort to generate new demand. After such a rapid advance of a cut-off date, applicant demand, particularly for adjustment of status cases, can be expected to increase significantly. Once applicant demand materializes the cut-off date could be significantly impacted. Little, if any, forward movement of this cut-off date is likely during the next few months.

China: Will remain at the worldwide date

India: Little if any movement

Mexico: Will remain at the worldwide date

Philippines: Three to six weeks

EB-4: Current

EB-5: Current.  However, insiders worry that a cut-off date for China could be established this summer or early fall.

Senators Continue to Pressure DHS and DOS to Grant TPS to Filipino Nationals

March 14th, 2014

A bipartisan group of 19 senators sent a letter to Secretary of State John Kerry urging that the State Department (DOS) recommend the Philippines for temporary protected status (TPS) designation as a result of the devastation caused by Typhoon Haiyan three months ago. DOS is part of interagency discussions underway about whether to grant TPS.  A similar congressional letter was sent to the Department of Homeland Security (DHS) in November, and the government of the Philippines formally requested TPS designation in December.

The senators note that more than 6,000 people were killed in the storm, that more than one million homes in the Philippines were damaged or destroyed, and that more than four million people were displaced. In total, according to the U.S. Agency for International Development (USAID), 16 million people in the Philippines were affected by Typhoon Haiyan – nearly one out of six people in the country.

The United States currently provides TPS or deferred enforced departure (DED) to over 300,000 foreign nationals from a total of nine countries.  The senators cite several instances in which the U.S. granted TPS to citizens of other countries that have been struck by severe natural disasters, including Honduran and Nicaraguan citizens after Hurricane Mitch in 1999; Salvadorans after the 2001 earthquakes; and Haitian nationals after the 2010 earthquake.  Other countries have been granted TPS or DED as a result of civil unrest, including Liberia, Somalia, Sudan, South Sudan, and Syria. Noting that the situation in the Philippines meets the statutory requirements for granting TPS as the law was applied to these other countries, the senators request equal consideration to the Philippines.

While under the immigration laws, the executive branch grants TPS or relief from removal, Congress has also provided TPS legislatively. Indeed, legislation that would grant TPS to Filipinos (H.R. 3602, the Filipino Temporary Protected Status Act of 2013) has already been introduced.

More on Stateside Provisional Unlawful Presence Waivers and “Reason to Believe”

March 7th, 2014

Just about one year ago, USCIS began implementing a program permitting certain immediate relatives of U.S. citizens (spouses, parents of adult U.S. citizens, and minor children) who are physically present in the United States to request a provisional unlawful presence waiver prior to traveling abroad for consular processing of their immigrant visa applications. Under the program, if USCIS has “reason to believe” that the applicant may be inadmissible on grounds other than unlawful presence, the agency would not approve the waiver. For months, concerns have been raised that USCIS, taking a very broad approach to the standard “reason to believe,” has been unnecessarily denying I-601A provisional waivers. A common class of “reason to believe” denials has been those based on criminal incidents that do not render the foreign national inadmissible.

In a recent field memo, USCIS advises and reminds its officers that all evidence in the record should be carefully reviewed to make sure officers are not inadvertently excluding someone from the process based on a minor infraction, a petty offense, or one that falls under the youthful offender exception. Furthermore, the memo reminds officers that they should not find a “reason to believe” that the individual may be subject to inadmissibility solely on account of such offense, and should continue to determine whether the applicant meets the other requirements for the provisional waiver, including whether he or she warrants a favorable exercise of discretion.

H-1B Professional Visas – Preparation Begins for April Filings

March 3rd, 2014

Once again it is H-1B filing season, and, once again USCIS is likely to receive the full allocation of visa petitions in the first week of filing commencing April 1.  Once the quota is reached, new H-1B visa requests will not be accepted until April 1, 2015, for work that commences on October 1, 2015 — more than 18 months from now!

Visas for professional specialty workers (H-1Bs) are, as they have been, capped at 65,000 per fiscal year. Another 20,000 visas are available to workers with advanced degrees (master’s or higher) obtained at U.S. institutions of higher education. Of the total 85,000 H-1B visas available, some 6,800 visas are set aside for nationals of Chile and Singapore under special rules.

While some H-1B petitions can be filed at any time because they are exempt from the numerical cap, the vast majority of H-1B applicants in business are subject to the cap.  Thus, employers should immediately identify first-time H-1B employees and begin preparing necessary petitions for the April 1 filing date. Employers and their employees should take time now to collect academic and work-experience documentation; secure translations and educational evaluations, where appropriate; organize wage and compensation data; and prepare detailed job descriptions.

Finally, now is also a good time for employers to review their company’s H-1B public access files to ensure that files are complete and in full compliance, as well as to determine that valid employer-employee relationships have been maintained.

Adjudication of Stand Alone I-130s Delayed; USCIS Seeks to Correct by May 2014

February 14th, 2014

USCIS is currently taking an average of 10 months to process stand-alone I-130 petitions. In order to speed up these processing times, USCIS is transferring some cases from its National Benefits Center to various USCIS regional centers. If your case is transferred, you will receive a notice in the mail and your case should be adjudicated within 60 days of the transfer date. By May 2014, USCIS expects I-130 processing times to return to the normal processing time of five months

More on Obtaining Print Outs of I-94 Records

February 7th, 2014

It appears that one of the most common and persistent challenges arising from the automation of Form I-94 for nonimmigrants is the inability to locate the electronic admissions record on the CBP website, even after confirming that the data was entered correctly. This is particularly problematic for those individuals admitted to the U.S. in a nonimmigrant category that authorizes temporary employment, because Section 1 of the Form I-9 must be completed and USCIS policy requires those individuals to provide a Form I-94 admission number.

Because there is no time lag between the entry of the data and data accessibility on the I-94 website, as confirmed by CBP, the nonimmigrant who wants to obtain a printout at the airport can use a smartphone to confirm that the information is online. If the foreign national has already left the secured inspections area, he or she can proceed to the deferred inspections office to obtain assistance locating the record or obtaining a printout of the record. The CBP deferred inspection offices also will accept telephone calls from nonimmigrants, or their designated representatives, to assist in locating the I-94. But individual callers may have difficulty in resolving the matter by phone if the officer has privacy concerns about whether the person calling is the nonimmigrant.

How Does CPB Populate the Data Needed?

CBP advises that the I-94 information is populated, in part, from information from the Advance Passenger Information System (APIS) and the traveler’s visa, if he or she possesses one. Upon admission, the CBP officer inputs the class of admission, the admission date, and other relevant information as applicable — such as SEVIS number, occupation, etc. For the name, the information comes from the machine readable zone of the passport.

Tips for Locating I-94s

To avoid common problems in locating an I-94, the following are a few tips at the time of admission:

  • Travelers should confirm that the information provided to the airline carrier at the time of admission is correct, including the passport number.
  • Travelers should confirm that all information on their admission stamp in their passport is correct once they have been admitted and prior to departing the secure inspections area.
  • Travelers with multiple visas need to be sure they identify which visa they will be using when they apply for admission.

Before travelling, travelers should make sure that the information they have stored in their frequent flyer programs is up to date. For example, if a traveler has not updated his passport number and the old number is pre-populated from his frequent flyer account into the carrier’s records, this can cause a problem.

Travelers having trouble retrieving their I-94s are advised to try the following techniques:

  • Enter the first and middle name in the First Name field;
  • Switch the order of the first and last names;
  • Enter multiple first names or multiple last names without spaces;
  • Check for multiple passport numbers;
  • Refrain from entering the year if the year is included in the passport number;
  • Check and compare the designated classification on the visa with the designated classification on the admission stamp.

News in Brief…

January 31st, 2014

The following  may be of interest to our readers:

TPS Designation Extended for Somalia: DHS extended the designation of Somalia for Temporary Protected Status (TPS) for 18 months, from 03/18/14 through 09/17/15, with a 60-day re-registration period running from 10/31/13 through 12/30/13.

$34 Million Settlement in Infosys Case, Largest Ever for Immigration Violations:  A $34 million settlement was reached between the DOJ and Infosys Limited, an Indian corporation involved in consulting, technology, and outsourcing, in a civil suit alleging systemic visa fraud and abuse of immigration processes. The settlement is the largest payment ever levied in an immigration case.

CBP Seizing Foreign Passports: There have been reports of CBP seizing foreign nationals’ foreign passport and permanent resident cards when the LPR is referred for removal proceedings. While CBP has the right to seize the permanent resident card, since the card is issued by the U.S. government, questions are raised about CBP’s legal authority to seize a foreign passport because it is the property of the foreign government.  Stay tuned.

Unreasonable Stops at the Border: A settlement agreement was reached in October between the ACLU and an advocacy organization in a lawsuit challenging the Border Patrol’s practice of conducting or participating in vehicle stops on the Olympic Peninsula without required reasonable suspicion. While the agreement did not require the Border Patrol to admit to specific wrongdoing, the Border Patrol acknowledged and reiterated the standard for constitutionally protected vehicle stops made in non–border search situations:  officers must have reasonable suspicion of a violation of law. To be reasonable, the suspicion must be based on articulable facts constituting objectively valid reasons for an agent to suspect that the particular individual may be involved in wrongdoing. Just because a vehicle is in an area near an international border, that circumstance doesn’t establish the reasonable suspicion necessary to justify a vehicle stop.

More Countries Considered for Global Entry:  CBP announced in August that it would be expanding Global Entry to a number of additional countries. The program recently became fully operational with South Korea. CBP is currently working with the governments of Germany, Qatar, and the U.K. to expand the program; it is also working to initiate additional pilot programs with Saudi Arabia, Panama, India, and Israel. Global Entry permits frequent visitors from a country to be pre-screened and vetted, which expedites their admission upon arrival to the United States.

 

Affordable Care Act and Immigration

January 24th, 2014

Under the Affordable Care Act (ACA), also known as Obamacare, individuals seeking coverage under a qualified health plan offered on a Health Insurance Marketplace or through an insurance affordability program are required to provide information regarding their immigration status and certain information about their household members to determine eligibility for such coverage. In an October memo, U.S. Immigration and Customs Enforcement (ICE) clarified that it does not use this information as the basis for pursuing a civil immigration enforcement action.

Understanding E-Verify: What is It, What Are Employer’s Obligations, and What Does Your Data Tell the Government

January 17th, 2014

E-Verify is a free, Web-based program that allows employers to verify the employment eligibility of their new hires and certain other workers electronically. Operated as a partnership between DHS and the Social Security Administration (SSA), the program is administered by USCIS.  The program was established to reduce unauthorized employment, reduce employment-verification-related discrimination, reduce the burdens on employers, and protect employers from civil and criminal penalties related to claims of hiring unauthorized workers. While the program is mostly voluntary, some employers are required to use the program to ensure their employees are work authorized. Those required to use E-Verify include most federal contractors and subcontractors who enter into or continue contracts with federal executive departments and agencies for all new hires and/or all persons performing services for certain federal contracts. In addition, some states require E-verify for their contractors, and Arizona requires it for all of its employers. There is little doubt that E-Verify will become mandatory for all employers as part of any comprehensive or even piecemeal immigration reform that is enacted in the future. In the meantime, employers considering registering for the program now should understand the requirements that attach to their participation and some of their potential liabilities:

 

Employers who use E-verify have a number of obligations that commence after an employer registers and signs an electronic E-Verify Memorandum of Understanding (MOU), which explains the terms and conditions. Under the MOU, the employer agrees to: (1) use E-verify only after new hires have accepted employment offers and completed their Form I-9s, Employment Eligibility Verification; (2) use E-Verify within three days of their new hire’s actual start date; (3) use E-Verify  only for new hires, not existing workers, unless otherwise required; (4) use the data obtained on Form I-9 to enter information into the E-Verify system; (5) display federal notices for E-Verify at their workplace; and (6) accept only “List B” identification documents with photographs as part of I-9 procedures.  Employers who use E-Verify also agree to comply with other responsibilities related to record-keeping and response procedures when information provided by the new hire does not match federal records. This includes reviewing “tentative nonconfirmation” (TNC) responses issued by SSA with their employee and reporting back to SSA/DHS with details on resolving the TNC. Participating employers also agree to permit DHS or SSA to make periodic visits to review its E-Verify records and share information with other government agencies.  During those periodic visits, DHS or SSA officials are permitted to interview employees directly. Employers who participate in E-Verify can terminate the program but only after giving 30 days notice.

 

In early December, E-Verify released new and revised MOUs that bind existing users and new users to changes made to the program. Most of these changes are not substantive but instead appear to reflect improved language and organization, as well as some enhanced privacy protections and instructions for reporting privacy and security breaches. While existing users do not need to execute new MOUs, they are bound by these changes. The effective date for existing users is January 8, 2014.  For new users, the effective date of the revised MOUs is December 8, 2013.

 

A new feature of E-Verify is that the system now can lock Social Security numbers (SSNs) that appear to have been used fraudulently, like a credit card company can lock a credit card that appears to have been stolen. If an employee attempts to use a locked SSN, a TNC will be generated.

 

As mentioned above, participating employers agree to governmental information sharing. Three years ago, DHS formalized such information sharing and entered into an agreement with the Department of Justice’s (DOJ) Office of Special Counsel (OSC), the division in DOJ that prosecutes claims of discriminatory hiring practices. Under the agreement, DHS shares with OSC citizenship status and documentation data, which initially was to be used to identify trends that may indicate an employer’s discriminatory practices. However, once the DHS/OSC information sharing program was up and running, OSC began using this data to initiate investigations of employer discrimination, even in the absence of employee complaints.  And, such investigations are on the rise.

 

With more and more employers enrolling in E-Verify — either because they want greater confidence in the validity of the documents presented by their employees and less risk of fines for making mistakes, or because they are now required to do so — it has become increasingly important for employers to understand all aspects of the program and ensure that their staff are well versed and trained in the program’s requirements. For starters, employers who use E-Verify are strongly encouraged to review and familiarize themselves with the new or revised MOU that applies to them. Employers should also adopt best practices, which include preparing a policy-and-procedure manual for I-9 and E-Verify compliance; providing annual and mandatory training for all individuals who complete the company’s I-9s; and periodically auditing and reviewing the company’s processes to ensure that they are being followed properly.