During a recent meeting with USCIS, immigration lawyers questioned why the agency requests all status documents ever issued to an applicant for adjustment if the case is based on employment, when according to long-standing guidance the only relevant periods of being out of status under the immigration laws are those that occurred since the most recent admission. In response, the agency provided several reasons why all of an applicant’s status is reviewed. The main reason is to look for inadmissibility due to unlawful-presence, previous periods of unlawful presence that may trigger one of the bars (three years for 180 days of unlawful presence and 10 years for one year or more of unlawful presence). For example, an individual who overstayed his or her previous visa status for a year or more would be ineligible to adjust status for 10 years, unless eligible for a waiver. Another example given when an applicant’s full nonimmigrant visa status history is relevant relates to J-1 exchange visitors who may be subject to the two-year home residency requirement, unless waived. USCIS also states that because adjustment of status is a discretionary benefit, previous violations of status or overstays can be weighed as a negative factor when adjudicating the adjustment application even though status from the last lawful admission forward is the critical portion that is examined.
Foreign Nationals Adjusting Status Based on Employment are Reminded that USCIS Reviews All Status DocumentationOctober 17th, 2014
The Department of State’s Bureau of Consular Affairs reported in late July that it was experiencing technical problems with its passport/visa system and that visa and other applicants would experience delays and in some instances would be unable to obtain a passport, Consular Report of Birth Abroad, or visa. DOS has since made significant progress and reports that it has issued most of the worldwide backlog of nonimmigrant visa cases and is printing visas for these cases and all cases with very few delays. Immigrant visas, adoption cases, and emergency nonimmigrant visa cases continue to be prioritized. Clients are advised to check with the appropriate embassy or consulate for additional information.
Ebola Outbreak–related Immigration Relief Measures Available for Nationals of Guinea, Liberia and Sierra Leone Currently in the United StatesOctober 10th, 2014
USCIS reports that it is closely monitoring the Ebola outbreak in West Africa, and is offering relief measures to nationals of Guinea, Liberia, and Sierra Leone who are currently in the United States. These measures include:
- Change or extension of nonimmigrant status for an individual currently in the United States, even if the request is filed after the authorized period of admission has expired;
- Extension of certain grants of parole made by USCIS;
- 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 (currently in the United States) of U.S. citizens;
- Expedited adjudication of employment authorization applications, where appropriate; and
- Consideration for waiver of fees associated with USCIS benefit applications.
These accommodations must be requested by the national.
In its newest report, the Transactional Records Access Clearinghouse (TRAC) finds that the odds of an asylum claim being denied in immigration court has risen to 50.2 percent during the first nine months of 2014. After reaching a historic low of only 44.5 percent of cases denied two years ago (FY 2012), the denial rate has been on the rise. However, put in a historical context, ten years ago almost two out of three individuals seeking asylum lost their cases. Meanwhile, the immigration courts are tremendously backlogged, with some 350,000 cases pending, and that was before the recent influx of immigrants from Central America. During 2013, 20,941 cases were decided by immigration judges, while ten years earlier, 70 percent more cases, or 35,782, were decided. FY2014 portends to be no better than FY2013.
CBP issued a new customs declaration form that expands the definition of family members for arriving travelers as “members of a family residing in the same household who are related by blood, marriage, domestic relationship, or adoption.” The recent regulation change allows more returning U.S. citizens, residents, and international visitors to file a joint customs declaration for items acquired abroad, reducing paperwork for people traveling together as a family and increasing efficiency for CBP and airlines.
In addition to clarifying the definition of family members, the final rule also clarified the term domestic relationship, which includes: foster children, stepchildren, half-siblings, legal wards, other dependents, and are not married to, or a partner of, anyone else. “Domestic relationship” does not extend to roommates or other cohabitants not otherwise meeting the above definition. “Members of a family residing in one household” continues to encompass relationships of blood, adoption, and marriage.
Under the new definition of domestic relationship, one combined family declaration can now be presented to the CBP officer upon arrival. As with any joint declaration, verbal or written, the person making and/or signing the declaration will be held accountable for its validity.
For returning U.S. residents, to be considered members of a family and to group exemptions from customs duty and internal revenue tax, the travelers must have lived together in one household at their last permanent residence and intend to live together in one household. Regulations allow U.S. residents to combine the personal duty exemptions of each family member. For example, a family of five members returning directly from France would be entitled to a combined personal duty exemption of $4,000 ($800 x 5 individuals = $4,000). For international visitors, regulations allow international visitors certain exemptions (gifts, tobacco, personal effects, etc.), and they can file a single family declaration.
Unaccompanied Minors from Central America: What’s Happening on the Ground and Why This is Not a Border Security Crisis But a Crisis Demanding Humanitarian ReliefOctober 4th, 2014
For much of the summer, the immigration news has been dominated by the recent surge of some 60,000 unaccompanied minors and young children with their mothers fleeing the violence and lawlessness in Honduras, Guatemala, and El Salvador. The Central American humanitarian crisis has resulted in a national debate about how to treat this vulnerable population: send them back to their home countries or grant them humanitarian relief in the United States. Below is a very brief overview of what the federal government’s response has been thus far, a depiction of conditions on the ground, and a historical perspective on the numbers.
Shortly after the crisis emerged, the Obama Administration marshaled the resources of the numerous federal agencies involved in the apprehension, processing, housing, and repatriation of unaccompanied minor children, and sought emergency funding from Congress. Unfortunately, the Senate and the House of Representatives could not agree before their August 4 recess, and will have to resume negotiations and deliberations when Congress returns after Labor Day. In the meantime, the immigration courts have been instructed to expedite the hearings these immigrants are afforded to determine if their fears are credible, if they are eligible for asylum status, or if they should be deported.
While many of the children have been reunited with other family members who already live in the United States or have been released to sponsors, many others are being detained in detention centers awaiting hearings. One such center is the federal detention center at Artesia, a tiny town in Southeastern New Mexico. Artesia has been thrown into the national spotlight because the federal training center located there was turned into a make-shift detention center for women and children fleeing violence in Central America.
In the wake of the crisis, the immigration bar mounted a massive pro bono effort to ensure that detainees are afforded due process. Teams of experienced immigration lawyers, many of whom are members of the American Immigration Lawyers Association, are volunteering their time and experience to help these mothers and children. The following dispatches from lawyers who have spent a week at Artesia sheds some light on the conditions in these detention centers:
“I spent last week at the Artesia ‘family detention’ center, a 4-hour drive from both Albuquerque and El Paso. We had a group of roughly ten volunteers (attorneys, translators, and administrative staff) trying to stop the rapid deportations and see that the women and their children get some modicum of due process. This was the first week there has been a full time volunteer attorney presence on site during the month it has been open.
“The first impression you get . . . is that all the children are sick, with coughs at minimum. They are dehydrated and listless. They are cold — there were two mornings where the temperature was around 60, and there were no jackets or blankets, so mothers and kids walked around with towels wrapped around their shoulders for warmth. Nearly all of them have valid claims for asylum — the majority based on domestic violence or gang issues. An unfortunate number were already deported without the opportunity to even consult with an attorney. Some mothers are giving up and asking to be deported because their kids are so sick.” [Editor’s Note: Individuals are giving up even though the conditions in their home countries are dire. For example, five recent Honduran deportees were murdered by gangs upon their arrival in Honduras. NPR, 8/21/2014.]
One pro bono lawyer from Oregon describes her experience in Artesia in this way:
“The lack of justice, due process, and the gross infringement on basic human rights at Artesia is truly staggering. . . . We need to send our members here to see and experience what is happening firsthand, so that they can shed light on this very dark place. . . . These are the most vulnerable people in the world, and our government is using them to send the message that America’s southern border is closed. As advocates, we can’t sit by and allow this voice of hate to be the loudest.”
A third volunteer lawyer reports:
“Women and children detained at length, being refused a chance for a fair hearing and access to counsel, and ultimately being sent back to the danger from which they fled. That’s what we’re seeing at Artesia . . . .
It shouldn’t be like this. But this is what we’ve come to. We need to help these families, to offer them due process and humane conditions, and ultimately address the root cause of this crisis: the conditions in Central America and the smugglers and traffickers who are making money off the misery of others.”
A recent op-ed article, “Children Deserve Protected Status,” written by noted immigration lawyer and author Ira J. Kurzban and published in the July 16 issue of the Miami Herald, sums up the current crisis and our moral imperative to provide relief:
The presence of more than 50,000 children who have crossed the U.S. border in the past two years hardly evokes the hysteria and predictions of chaos and ruin touted by politicians and the anti-immigration lot. That the United States is being overrun by children and that their numbers will create some cataclysmic event is not only morally abhorrent, it is factually erroneous.
To begin, let us put the numbers in perspective. Today the world has more than 50 million refugees and displaced persons. The government of Lebanon currently has over 856,500 refugees in a population of 4.4 million, representing 19.4 percent of its population. Jordan, 641,000 refugees in a population of 7.3 million representing 8.79 percent of its population.
Accepting 60,000 children in a population of 317.2 million — less than two hundred-tenths of 1 percent (.02 percent) of our population — would hardly be straining our resources.
Despite the vast differences in wealth and resources between our country and those of Lebanon, Jordan and even Iran, which currently has one of the world’s largest refugee populations, the end-of-the-world scenarios proffered by some ring of hyperbole.
At a time when we were a more generous, caring nation, we brought 14,000 children into the United States from Cuba under Operation Peter Pan. In 1966, we flew 266,000 Cuban men, women and children into the United States from the Port of Camarioca. At the time, those 266,000 Cubans represented .14 percent of our population, seven times the number of migrants we are talking about today.
The way to tackle this problem is not to deprive children of their right to a fair hearing regarding their fear of returning to their countries of gang violence and poverty.
The proposals to call up retired immigration judges and have “expedited” hearings for these children is nothing more than an offer of sham proceedings in the same way that U.S immigration authorities offered Haitian refugees “expedited hearings” in Miami in the late ’70s and early ’80s. Those expedited hearings were described by U.S. District Judge James Lawrence King as “a systematic program designed to deport [Haitians] irrespective of the merits of their asylum claims.”
Nothing short of that will occur here, and public-spirited lawyers dedicated to treating children fairly will use our legal system to expose the sham. Worse, we will spend billions of dollars creating this unfair system. Such expedited hearings were unfair then and made a mockery of our country’s pledge to be a country of asylum — and will be now.
The president wisely sent Vice President Joe Biden to Guatemala when the issue arose. If we want to address this issue properly, address it at the source of the violence in Guatemala, Honduras and El Salvador. As a powerful northern ally, the United States has the ability, if it has the will, to address these problems in their countries of origin.
At the same time, recognize these helpless children for who they are — victims of violence — and grant them Temporary Protective Status.
Granting TPS has several benefits. The billions of dollars in savings, by canceling sham hearings, can be used to address the root causes of smuggling and gang violence in their countries.
This is not an issue of border security. The children are not being smuggled into the country; they are brought to the border. We need to address the smugglers and the causes that allow the smugglers to thrive. Grant TPS, and go after the smugglers and causes of gang violence.
We could not agree more. This is not a border security crisis that demands deporting kids to deadly conditions back home; it is a humanitarian crisis that demands due process and temporary relief.
Several states have passed legislation that makes undocumented immigrants eligible for in-state tuition at public colleges and universities, while other states have passed legislation expressly prohibiting such benefits. Undocumented immigrants, including DACA recipients, however, are prohibited from receiving federal student aid, and thus many must rely on private loan providers and private scholarships to finance their educations.
In response, Don Graham (formally of the Washington Post), activist Henry R. Muñoz, and DREAMer Gaby Pacheco convened a group of national and state-based organizations, post-secondary educational institutions, Fortune 500 companies, and DREAMers to discuss the creation of a scholarship fund to provide low-cost, high quality college education to undocumented students. From their meeting emerged a program, “TheDream.US” that offers college scholarships of up to $25,000 to DACA recipients. Scholarship recipients may renew their awards by showing that they remain DACA-eligible, maintain a GPA of at least 3.0, and remain enrolled in their academic programs on at least a part-time basis. The program’s founders envision adding more partner institutions and expanding its geographic reach. There are currently 12 institutions in the program: Long Beach City College; California State University, Long Beach; Trinity Washington University; Miami Dade College; Kingsborough Community College; Bronx Community College; Borough of Manhattan Community College; El Paso Community College District; University of Texas, El Paso; South Texas College; University of Texas, Pan American; and Mount Washington College
The Customs and Border Protection (CBP) website that nonimmigrant travelers access for their arrival record now allows such travelers to access arrival and departure records going back five years from the request date. The availability of the five-year record may obviate the need for a nonimmigrant to submit a FOIA request for his or her travel records, but the five-year record also reveals some potentially significant problems. Here’s one problem: a foreign national first schedules, then cancels or reschedules international travel but his name remains on the airline’s original flight manifest. This can result in CBP removing the current I-94 record from the website portal and also recording on the portal that the foreign national departed the United States.
In a recent exchange with CBP officials, CBP provided the following explanation why this could occur. CBP registers foreign nationals’ departure through information reported in the Advance Passenger Information System (APIS). If APIS shows that a foreign national is named on a flight manifest, the I-94 is removed from public access on the Web portal; the foreign national also may be identified on the public access website as departing the U.S. It appears that APIS is not automatically updated under these circumstances — the airline is responsible for the departure information in APIS and the airline is supposed to report the update. What happens when the airline does not update its information? While USCIS can determine from the APIS records that the person was in fact a “no board” and did not depart, the non-availability of the I-94 record on the CBP website can be an issue for the individual needing that information, such as in the context of changing or adjusting status.
Nonimmigrant travelers are well advised to regularly check their automated I-94 record and, now, their five-year history whenever they travel in and out of the United States.
The Department of Homeland Security (DHS) has issued two proposed rules that affect the highly skilled. Both rules provide benefits, but in the grand scheme of immigration reform, the benefits are very limited and affect a limited class of foreign nationals.
The first DHS proposal would extend the availability of work authorization to H-4 dependent spouses of principal H-1B nonimmigrants. The extension would be limited, however, to H-4 dependent spouses of principal H-1B nonimmigrants who are in the process of seeking lawful permanent resident status through employment and who already have passed some of the hurdles. This includes those H-1Bs who are either the beneficiaries of an approved I-140 immigrant visa petition or whose stay in the U.S. has been extended under the American Competitiveness in the 21st Century Act (AC21), which allows H-1B workers seeking lawful permanent residence to stay and work in the U.S. beyond the normal six-year limit. Some 97,000 spouses are expected to become eligible for work authorization in the first year after the rule is finalized, with about 30,000 eligible annually. This still leaves, however, many H-1B visa holders’ spouses unable to work.
The second proposed rule would update existing regulations to include professional specialty workers from Chile and Singapore (H-1B1) and from Australia (E-3) in the list of classes of foreign national visa holders authorized for employment incident to status with a specific employer — in other words, not required to apply separately to DHS for work authorization — and permitting H-1B1 and E-3 workers up to 240 days of continued work authorization while they await approval of their status extension requests. The proposal also includes Commonwealth of the Northern Mariana Islands–only transitional workers (CW-1). These rules currently apply to H-1B nonimmigrants. The rule would also permit foreign nationals applying for EB-1 visas to prove their academic achievements through evidence that does not appear in the current list of acceptable evidence. Instead, evidence that is “comparable” to the types of evidence listed in the regulations would be acceptable.
According to DHS, it is proposing these changes to benefit these highly skilled workers and CW-1 transitional workers by removing unnecessary hurdles that place such workers at a disadvantage when compared to similarly situated workers in other visa classifications.
The comment period ends in July, after which DHS must issue final rules before the proposals go into effect.
The following additional items may be of interest to our readers:
Update on Visa Number Availability: The Department of State Visa Bulletin for July 2014 reflects slight forward movement for many categories but an almost four-year jump for the employment-based second preference, EB-2, for India, moving from 11/15/04 to 9/1/08. The Worldwide Family 2A category (spouses and children of lawful permanent residents) remains at 03/01/12. And, despite rumors that the EB-5 investor preference category for China would retrogress, that category remains current and is only expected to retrogress in September, if at all.
U.S. Consulates in Canada Limit Visa Processing for Non-Canadian Nationals: Due to increasingly heavy demand by Canada-based visa applicants, the seven U.S. visa processing posts in Canada are extremely limited in their ability to accept foreign national cases from other countries during the summer. The posts encourage such applicants to seek appointments elsewhere in the world, such as in the applicant’s home country. Emergency cases may seek consideration for scheduling an interview at a Canada post by visiting canada.usembassy.gov.
Difficulty Reaching the National Visa Center? Trying Calling During Off-Peak Hours: Attorneys and clients have reported their inability to contact the National Visa Center by telephone, reporting a busy signal when dialing NVC’s published contact number, (603) 334-0700. The NVC has confirmed that its phone lines are working properly but are operating at full capacity. NVC recommends calling during off-peak times: 7am to 10am (ET) and 8pm to midnight (ET). While the NVC has indicated that they will upgrade their phone system, that upgrade will not take place for the next several months.
New Report Analyzes H-1B Lottery and Finds Cap Disproportionately Hurts American-born Tech Workers: A report released by the Partnership for a New American Economy reveals that the existing H-1B visa lottery caps disproportionately hurt American-born tech workers by slowing job and wage growth in more than 200 metropolitan areas across the U.S. Relying on data from the USCIS, DOL, and the American Community Survey (ACS) to build a new model of causality, the report states unequivocally that cities whose employers faced large numbers of denials in the H-1B visa lotteries experienced considerably less job creation and wage growth for American-born computer workers in the two years that followed. Denying H-1B visas didn’t help the economies of America’s cities or their U.S.-born workers, according to the report. Instead, it cost their tech sectors hundreds of thousands of jobs and billions in missed wages.