U.S. IMMIGRATION BLOG
Friday, April 18, 2008
Our Seattle office will be moving in May 2008!
After years spent sharing a small office space in downtown Seattle we are moving to north Seattle for our very own offices! Our beautiful new space will offer much better parking and accessibility, and greatly increased room for us to do our work and meet with clients. Our new location will be:
Millar Fagan-Smith, PLLC
13000 Linden Avenue North, Suite 109
Seattle, WA 98133
Our phone, fax, and email contact information will all remain the same.
Posted by Helen Stocklin-Enright at 4:34 PM
Thursday, March 13, 2008
USCIS Announces 18-Month Extension of Temporary Protected Status (TPS) for Nationals of Somalia
Employment Authorization documents (EAD) Extended through September 2008
(USCIS Announcement, dated March 10, 2008) The Department of Homeland Security (DHS) announced today an 18-month extension of Temporary Protected Status (TPS) for nationals of Somalia through September 17, 2009. Under this extension, those who have already been granted TPS are eligible to live and work in the United States for an additional 18 months and continue to maintain their status.
DHS also automatically extended the validity of Employment Authorization Documents (EAD) held by eligible Somalis for an additional six months from March 17, 2008 through September 17, 2008. This will allow sufficient time for eligible TPS beneficiaries to receive their new EAD without any lapse in employment. There are approximately 300 nationals of Somalia (or aliens having no nationality who last habitually resided in Somalia) who are eligible for re-registration.
The extension of TPS for Somalia is effective March 17, 2008 and will remain in effect through September 17, 2009. Nationals of Somalia who have been granted TPS must re-register for the 18-month extension during the 60-day re-registration period beginning March 12, 2008 and remaining in effect until May 12, 2008. Somali TPS beneficiaries are encouraged to apply as soon as possible following the start of the 60-day re-registration period. Please note that re-registration applications from Somali nationals will not be accepted by USCIS until the re-registration period opens on March 12, 2008. Details on where, when and how to file under each designation will soon be published in the Federal Register and additional information will be provided online on the USCIS website.
To re-register for TPS under this extension, a TPS beneficiary must submit Form I-821 (Application for Temporary Protected Status) without the application fee and Form I-765 (Application for Employment Authorization). If the applicant is only seeking to re-register for TPS and not seeking an extension of employment authorization, he or she must submit Form I-765 for data-gathering purposes only, and is not required to submit the I-765 filing fee. All applicants seeking an extension of employment authorization through September 17, 2009 must submit the required application filing fee with Form I-765. The biometric service fee must be submitted by all re-registrants age 14 and older, as well as re-registrants under age 14 who are requesting an EAD.
Applicants may request a fee waiver for any of the application or biometric service fees in accordance with the regulations. Failure to submit the required filing fees or a properly documented fee waiver request will result in the rejection of the re-registration application.
More information can be obtained from the USCIS National Customer Service Center toll-free number: 1-800-375-5283. TPS forms are available from the toll-free USCIS Forms line, 1-800-870-3676, or from the USCIS Web site.
Posted by Daniel Fagan-Smith at 9:21 AM
Friday, March 7, 2008
USCIS Revises Name Check Policy
"Where the application is otherwise approvable and the FBI name check request has been pending for more than 180 days, the adjudicator shall approve the 1-485,1-601,1-687, or 1-698 and proceed with card issuance. The FBI has committed to providing FBI name check results within this timeframe."
A February 4, 2008, memo from Michael Aytes outlines revised national security adjudication and reporting requirements. While the revised guidance section of the memo reiterates FBI requirements that a definitive fingerprint check and the IBIS check must be obtained and resolved before various applications (I-485, I-601, I-687, I-698) can be approved, the memo states that where the application is otherwise approvable and the FBI name check request has been pending for more than 180 days, the adjudicator shall approve the I-485, I-601, I-687, or I-698 and proceed with card issuance. This action looks to resolve a long-standing situation where many applicants have been left in legal limbo, sometimes for years, due to the stalled-out FBI name- check process.
Interoffice Memorandum
TO: Field Leadership
FROM: Michael Aytes
Associate Director, Domestic Operations
SUBJECT: Revised National Security Adjudication and Reporting Requirements
Background
U.S. Citizenship and Immigration Services (USCIS) conducts background checks on all applicants, petitioners and beneficiaries seeking immigration benefits. This is done both to enhance national security and to ensure the integrity of the immigration process. USCIS has previously mandated that FBI name checks be completed and resolved before any positive adjudication can proceed on certain form types. This memorandum modifies existing guidance for applications where statutory immigration provisions allow for the detention and removal of an alien who is the subject of actionable information that is received from the FBI or other law enforcement agencies after approval of the application.
USCIS is issuing revised guidance in response to recommendations of the DHS Office of Inspector General (OIG-06-06) regarding the need to align the agency’s background and security check policies with those of U.S. Immigration and Customs Enforcement (ICE). The Background and Security Investigations in Proceedings Before Immigration Judges and the Board of Immigration Appeals regulations prevent immigration judges and the Board of Immigration Appeals (BIA) from granting benefits to aliens before DHS confirms that all background and security checks have been completed. See 8 C.F.R. § 1002.47(g); 8 C.F.R. § 1003.1(d)(6)(i). In the context of removal proceedings, ICE has determined that FBI fingerprint checks and Interagency Border Inspection Services (IBIS) checks are the required security checks for purposes of the applicable regulations. In the unlikely event that FBI name checks reveal actionable information after the immigration judge grants an alien permanent residen t status, DHS may detain and initiate removal proceedings against the permanent resident. See 8 U.S.C. § 1227; see also 8 U.S.C. § 1256 (allowing DHS to rescind and alien’s adjustment of status).
Revised Guidance
A definitive FBI fingerprint check and the IBIS check must be obtained and resolved before an Application for Adjustment of Status (I-485), Application for Waiver of Ground of Inadmissibility (I-601), Application for Status as a Temporary Resident Under Section 245A of the Immigration and Nationality Act (I-687), or Application to Adjust Status from Temporary to Permanent Resident (Under Section 245A of Public Law 99-603) (I-698) is approved. USCIS will continue to initiate FBI name checks when those applications are received. Where the application is otherwise approvable and the FBI name check request has been pending for more than 180 days, the adjudicator shall approve the I-485, I-601, I-687, or I-698 and proceed with card issuance. The FBI has committed to providing FBI name check results within this timeframe.
There is no change in the requirement that FBI fingerprint check, IBIS check and FBI name check results be obtained and resolved prior to the adjudication of an Application for Naturalization (N-400).
Pending further guidance regarding post-audit reporting and tracking requirements and modifications to associated quality assurance procedures, applications approved pursuant to this memorandum shall be held at the adjudicating office. If derogatory or adverse information is received fromt eh FBI after the application is approved, USCIS will determine if rescission or removal proceedings are appropriate and warranted.
Subject to the reporting requirements set forth in the February 16, 2007, memorandum titled “FBI Name Checks Policy and Process Clarification for Domestic Operations,” an application or petition may be denied, dismissed, administratively closed, withdrawn, or referred to the Immigration Court at any time.
Questions regarding this memorandum should be directed through appropriate supervisory and operational channels. Local offices should work through their chain of command.
Distribution List: Regional Directors Service Center Directors District Directors (except foreign) Field Officer Directors (except foreign) National Benefits Center Director
Posted by Daniel Fagan-Smith at 4:51 PM
Wednesday, January 9, 2008
H1-B Season
On April 1, 2008, the H1-B visa cap for specialty occupations opens for the 2008 fiscal year.
Despite discussion in the past in Congress to increase the number of H1-B visas available, applicants may again be subject to selection by lottery this year. Last year, applications received in the first two days after the cap opened were selected at random and then processed. Individuals who received Master's degrees in the U.S. are subject to a different visa cap, which did not fill as quickly.
Applicants affiliated with certain organizations, including institutions of higher education, government affiliates, and others, may not be subject to the visa cap. Typically, this determination depends upon the strength of the affiliation and the degree to which particular entities are intertwined. Degree equivalencies must be obtained for all foreign degrees. Many equivalency companies are overwhelmed with - and turn down - requests as April approaches. The name of the game for this H1-B season is to get your equivalencies and applications done early so you're first in the door on April 1!
posted by Helen Stocklin-Enright at 9:45 AM
Friday, November 2, 2007
Travel with H and L visas
As of November 1, 2007, some individuals holding H or L visas may be required to present I-485 receipts when re-entering the U.S. from trips outside of the U.S. Failure to do so may result in abandonment of applications for adjustment of status (green cards).
posted by Duncan Millar at 10:31 AM
Friday, October 26, 2007
Impact of criminal convictions on immigration status
Certain criminal convictions render individuals seeking immigrant (Lawful Permanent Resident, LPR, green card) or non-immigrant status (H1-B, K-1, K-3, L, TN) inadmissible or removable.
Depending upon the charges, waivers may be available in certain circumstances. Depending upon the type of waiver and the country of citizenship, waivers may be sought at the port of entry, border crossing, airport, consulate, or by other means of filing.
Immigration law considers certain theft, drug trafficking, drug manufacturing, murder, rape, sexual abuse of minors, firearms trafficking, crimes of violence, fraud, prostitution, pornography, and other convictions to be aggravated felonies for immigration purposes. In some instances, which vary depending upon the criminal charges, the lenght of the criminal sentence can dictate whether or not these crimes are categorized as aggravated felonies. In other instances, the crime alone is sufficient be classified as an aggravated felony. With fraud convictions, convictions may be deemed aggravated felonies if the amount in question is over a certain dollar amount. Aggravated felonies have a far reach in immigration law and greatly limit the options of an individual with an aggravated felony conviction. Limited relief may be available to individuals who were convicted of aggravated felonies before a certain date.
If any convictions are categorized as crimes involving moral turpitude, non-citizens may also face the prospect of being deemed inadmissible or removable. The case law surrounding crimes involving moral turpitude is constantly evolving. If a crime is categorized as one involving moral turpitude, an inadmissible individual may be eligible for a petty offense exception if there is only one conviction of a crime involving moral turpitude, the maximum sentence is no more than one year, and the sentence given is less than six months.
Typically, if criminal charges are currently pending, individuals should seek an immigration attorney to analyze their particular facts and inform not only them, but their criminal defense counsel, of the possible immigration implications of their criminal charges and potential convictions. In some cases, judges and prosecutors are willing to consider letters from immigration attorneys regarding the immigration consequences of particular sentences and criminal charges.
If criminal convictions already exist, individuals should seek immigration counsel to help them determine the consequences that they may face. Sometimes, traveling or filing various visa applications with criminal convictions can be very complicated, especially if a waiver, or waivers, are required. Convictions potentially complicate the already complex area of immigration law.
posted by Helen Stocklin-Enright at 9:30 AM
Thursday, October 25, 2007
How many immigration related government entities does it take to get something right?
The officers working for U.S. Customs and Border Protections at the Ports of Entry around the United States, whether at the airport or at a land crossing such as the Peach Arch in Blaine, Washington, have incredibly broad discretionary powers that can make or break someone's day, or perhaps, life. At the very least, they can make an entry to the U.S. very stressful. A case in point is the experience one of my clients (I'll call him Jake) recently had when seeking to reenter the United States from Canada after a short trip.
My client, who is married to a U.S. Citizen, obtained a multiple entry K-3 visa based on his marriage and eventually filed for lawful permanent resident status (adjustment of status). Prior to him leaving for Canada he was interviewed with his wife at the Seattle Field Office of U.S. Citizenship & Immigration Services in Seattle. At the interview, with his attorney present, the fact that Jake had some criminal history was discussed with the interviewing officer. There was nothing to hide about this history since it came up during the process necessary to obtain the K-3 visa. In fact, our office presented legal argument to the consulate that Jake's criminal history should have no bearing on his eligibility for a visa. The consulate agreed and Jake was issued his visa.
The same legal argument was presented to USCIS prior to the interview and the facts of the case were discussed at length during the interview. At the close of the interview the officer informed us that she had no problem with the criminal history (Jake's offense fell under the petty offense exception) and that she would just need her supervisor's approval. We left that day anticipating that the case would be approved and the green card would follow in the mail as they usually do in approved cases. Well, prior to receiving news of the approval, Jake went to Canada. While he was there his wife called him to let him know that the green card had arrived in the mail. Good news, right?
A day or so later Jake sought to reenter the states using his still valid K-3 visa. At the land crossing the officer inspecting Jake for admission decided he needed to question Jake in greater detail so he placed Jake in an office to be interrogated by another officer. (By the way, Jake was entering the US on a bus so the bus left without him). The line of questioning went something like "are you sure you told USCIS about your criminal history." Jake repeatedly told the officer that he was completely truthful with USCIS and the U.S. Consulate and that his attorney had provided both entities with certified copies of all of the court records and a legal brief. Jake even explained that his green card had been approved just a couple of days earlier. The officer was able to confirm this, but it didn't seem to matter. Four hours later Jake was released, issued a Notice to Appear, and told that he will have to appear in immigration court in Seattle for removal proceedings because of the criminal history.
So here we have three arms of the U.S. Government (U.S. Consulate, USCIS, and USCBP) looking at the same case with the same facts and one of them reaching a different conclusion than the others. And now, another arm, the Department of Justice's Executive Office for Immigration Review, will look at the case. Hopefully it won't get that far as Jake's attorneys intend to file a Motion to Terminate the case as soon as it is set for hearing. Stay tuned.
Posted by Daniel Fagan-Smith at 4:01 PM
Saturday, October 20, 2007
Immigration & The Baby Boom
It is time to address the chronic issue of too few visa numbers for skilled worker green cards and specialty occupation H-1B visas. Contact your congressional representative and let them know you support increasing the quota numbers.
The baby boomer generation is retiring, marking the exit of thousands of skilled, experienced workers from the U.S. workforce.
Who will replace these people? It should be a healthy mix of U.S. citizens, U.S. permanent residents and U.S. non-immigrant visa holders taking the jobs, but it will likely not play out that way. There are too few work visas available every year to fill the growing number of created jobs, let alone the existing jobs that require replacement workers. Most importantly, there are not any where near enough Americans to fill the jobs. Therefore, those jobs that cannot be filled will simply go overseas to another country with a more realistic immigration attitude. In economic terms, we are starving ourselves of the supply and the demand for a specialized work force. We will end up with executives with nothing to execute.
Unless we find a way to increase the number of visas available each year, we will continue to turn away the worlds best and brightest individuals, many of whom get their education in the U.S. and have no choice but to enter a different country and contribute to its well being. They want to stay, they are already here and so obviously do not pose any threat whatsoever, but we are afraid of something. What?
Initiate some change. You can find contact information for your congressional representative here:
http://www.congressmerge.com/onlinedb/index.htm
Tell your representative that you want them to fight for an increase in the immigration quota numbers.
Posted by Duncan Millar @ 2:02 PM
Saturday, October 20, 2007
New U Visa - Victims of Trafficking and Violence
People in the United States illegally who are victims of violent crimes and are actively helping law enforcement to solve the cases can now apply for a U visa. The visa is valid for up to 4 years and leads to permanent residence.
Citizenship and Immigration Services took seven years to implement the visa category because developing the specific regulations involved federal, state and local agencies.
Victims of rape, torture, child abuse and other crimes may stay in the country for four years and apply for permanent resident status along with their dependent family members. Witnesses to certain violent crimes can also obtain the visa and need not be the victims.
In order to qualify for U Visa, the applicant must be the victim of one or more of the following crimes or any similar activity in violation of Federal State, or local criminal law: rape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury; or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes.
Applicants for the U visa must submit a declaration, information on the crime or incident, a certification letter from the law enforcement agency handling their cases that confirms that they are assisting investigators, and proof of substantial mental or physical abuse.
Temporary employment authorization is likely to be issued to applicants while they await adjudication of the visa.
10,000 of the visas will be available each fiscal year.
Posted by Duncan Millar @ 1:18 PM
Friday, October 19, 2007
Bianca Jagger Evicted - Not a NY 'Resident.'
Bianca Jagger will have to move out of her NY apartment because she is only a visitor in the U.S. and cannot treat the apartment as her primary residence. The owner of the Park Avenue apartment can evict Jagger and raise the rent, currently over $4600 per month. Jagger had been withholding rent from her landlord due to issues with mould in the edifice. The landlord sued to evict Jagger and won. She must leave and pay back rent and possibly court costs.
The NY court of appeals agreed with the Landlord's immigration based strategy, focusing on the fact that a B-2 visa is for temporary visits and will not allow a person to 'live' in the U.S. or treat a U.S. residence as their primary residence. When NY rent-stabilized properties change hands, the rent amounts may be increased to the market rate.
This begs the question: What does it mean to live somewhere?
Under U.S. law, you may only live in the U.S. under certain types of visas, and a B-2 will not support anything but brief, casual visits (up to 180 days per visit for non visa waiver country nationals, and 90 days for those from the 27 visa waiver countries).
However, where someone 'lives' is not as simple as determining their nationality. Jagger had rented the apartment for 20 years, and routinely stayed in New York, although she also has an apartment in London, England. I submit that where someone lives is their own fiction, and where they feel at home. I routinely counsel individuals to know where they are entitled to live and where they are not, and to be very careful about the subtle but very important difference between living somewhere and simply visiting.
Work authorization and tax returns are a good test. If you are allowed to visit, but not entitled to work or file a tax return in a country, you probably cannot consider yourself to be living there.
Posted by Duncan Millar @ 12:21 PM
Wednesday, October 17, 2007
The Immigration 'Problem.' We need to create another option.
If there are enough people running across the freeway near the border that the government needs to put a sign up, we have a problem. The U.S. immigration problem is very complex but has been contorted to get it into sound bytes by the current policy machines. The result is an either/or scenario and a race to the bottom, where the two political parties argue their polar stances in blue or red ties. But this sign says it all. It is more practical, safer and more humane to address the issue and do something to protect those in our country than to ignore these people.
In immigration law, it is easy to slip into the habit of creating a dichotomy out of every issue:
You're either an immigrant (permanent intent) or a non-immigrant (temporary intent);
You're legal or illegal;
A citizen or an alien;
Admitted or not admitted;
Admissible or inadmissible;
Have been convicted or have not been convicted of a crime; and,
Your permanent residence has conditions attached to it or does not. That is when you were granted permanent residence you were given only two years to begin with and must release conditions (show that you are still married to or working for the petitioner , or are not but had a bona fide relationship not just for immigration benefits at the time you applied for and were granted benefits), or you were given full permanent resident status.
This seems to be the trap that many commentators, legislators and critics have fallen into when discussing the current population of individuals who entered the U.S. without inspection. It is difficult to get past the notion of giving illegal aliens permanent resident status without creating an incentive for future illegal entrants, so I think the only way to move on is to create a new, third residence status - Probationary Residence. This status would only apply to people currently physically present, so registering after the initiation date would be futile.
I propose that when it comes to creating a legal method for these people to cure their immigration status, we need the new status to account for the fact that these people are not here temporarily but are not considered permanent either, and so can enter into a status that allows them to convert to another status. No conversion and they must leave when the status expires - just like non-immigrant visa holders.
We could pick a date, say January 1, 2008, and make it so that anyone who does not register with the government and prove that they are physically present on or before that date cannot come forward for benefits. We would have to ensure that this would not be a 'round-up' and that coming forward to register physical presence would definitely not lead to enforcement action.
Those people who do register to prove that they are physically present would then pay for a number and wait for it to be called. Once called, those people would have to establish that they do not have any criminal issues (other than working without authorization and the attendant documentary issues) and could be given Probationary Residence. This status could require them to report frequently their whereabouts and perhaps could include an auto-deduct from their pay to cover the costs of the immigration processing instead of making them pay for it all at once. 12 million people coming forward would need to be delicately handled, so payment for the proof of physical presence and a number in line would likely need to be more than the current cost of attaining a green card ($1365).
This probationary status would only last for a specified time, during which the people could convert to another status without being treated as having entered without inspection. This would allow family members to petition for each other and for employers to hire workers legitimately and would not make the current illegal population so afraid to become witnesses in criminal cases or to comply with laws designed to protect all Americans from harm - such as driving regulations and workplace certifications.
Probationary Residence would not be amnesty. Those that could not come forward because of criminal issues would not be able to keep up with what is sure to become a society where identity is too hard to fake and anonymity is impossible. The process of elimination would allow enforcement to focus on the people that do need to be removed and would create an even greater incentive for people with no criminal issues to come forward.
This is a very difficult issue that seems to be stuck without resolution because we can't see past the dichotomy of permanent versus temporary. If the U.S. wants to remain competitive going forward, we will need to convert these valuable people into meaningful participants in our society or paranoia will overcome us and we will grow even more divided. Right now, we have no conceptual answer to the issue and that is what we need. Do we really think that the undocumented population does not intend to stay? Then why do we treat this as a temporary problem when it is so obviously permanent. Why? Because we don't have a choice such as Probationary Residence to rely on.
If we had Probationary Residence we could have a population of legal, admitted, admissible aliens with hope and incentive instead of a population of illegal, undocumented people that are not available for the U.S. economy and society to embrace.
Posted by Duncan Millar @ 9:53 AM