Seattle Immigration Lawyer Blog

CBP Issues I-94 Examples and Options for Government Agencies

Wed, 15 May 2013 21:05:56 -0500

I mentioned in my earlier blog post, I-94 Automation Begins: What you need to know, that US Customs and Border Patrol started implementation of its new automated I-94 system. I-94s are a key document used to verify lawful status in the US. It is used to apply for drivers licenses in many states as well as to apply for Social Security numbers, government benefits and immigration extensions and change of stay, as well as adjustment of status for permanent residence.

In that post I advised that nonimmigrants that enter the US through this process should make sure they download a copy of their I-94s before leaving the US to have a copy for their own records or in case of hiring an attorney because the data will not be accessible after departure. I also predicted various government agencies may not recognize the new I-94s. CBP has now published a document with examples of the types of I-94s that are out there, which will hopefully be more useful to relevant agencies and nonimmigrants seeking the benefits noted above. Having a copy of this new CBP document on hand while applying at a local, state or federal agency should help as well.

Work Visa Amendments Marked Up in the Senate

Wed, 15 May 2013 18:32:15 -0500

On Tuesday, May 14, the Senate Judiciary Committee completed another round of markups to Title IV of the comprehensive immigration reform (CIR) bill, S. 744. Besides additional enforcement provisions, the Senate tackled amendments to the proposed immigration law, particularly the various nonimmigrant work visa categories. The following is a short summary, the details of which can be found here with individual amendment text here. A number of Senator Hatch's proposed amendments to the H and L visa programs are scheduled for hearing on Thursday of this week. Many of the GOP members' amendments deal with protecting US workers and making the legal immigration system fund border and interior enforcement activities or fund improvements to education in the STEM fields. However, the key takeaway is that the amendments that were approved were approved by and large with bi-partisan support. The Senate webcast of the debate can be found here.

The work visa amendments that passed May 14 include:

1. Schumer #1: Technical corrections related to employment and family backlogs; Department of Homeland Security (DHS) to set wage levels for the new guestworker W visa category instead of the Department of Labor (DOL), the usual overseer of wage levels. Imposes the new J-1 $500 fee on summer programs only; W visa fee to fund research.

2. Whitehouse #6: DOL to create a toll-free number and website for people who feel they have been kicked out of their jobs by a foreign worker, with the program to be reviewed by the Attorney General within a year.

3. Grassley #58: Requires the new H-1B internet job posting ads to have more specifics. Yes, you read that correctly - overall, S. 744 would require H-1B petitioning employers to advertise for US workers BEFORE sponsoring them. The parameters of that are still being negotiated. (However, in this Seattle immigration lawyer's opinion, the ad requirement, new fees and high wage requirements will most likely cause the demise of this visa category for new and small businesses at least.)

4. Hatch #9: Increases a newly proposed fee to $1000 for permanent labor certifications (PERM). Until now, there has been no fee for PERM applications (despite their time consuming nature for applicants and the government). This amendment would also direct some H-1B fees for STEM education and scholarships.

Military Enlistment and Selective Service FAQs for Immigrants, Citizens and Dual Citizens

Fri, 10 May 2013 15:01:14 -0500

The Immigrant Legal Resource Center (ILRC) has put out a very useful FAQ on Selective Service registration and military enlistment rules for immigrants of all types (in legal status, not in legal status, permanent v. temporary residents, and DACA recipients). The FAQ also covers basic US citizen and dual citizen requirements. For more information, see also the Selective Service website. All males between 18 through 25 (i.e., under 26) must register for the Selective Service regardless of status. Registering for Selective Service is not the same as whether someone must or is allowed to actually enlist, or would be drafted. Undocumented immigrants may not currently enlist, but they must register. See also the military's special Military Accessions Vital to the National Interest (MAVNI) Program that allows certain nonimmigrants in valid status to enlist if they have certain language or medical training. The MAVNI program leads to a fast-track route to US citizenship based on military service.

Selective Service registration, military service and related matters are important to eligibility for greencards and US citizenship. At our Seattle immigration law firm, we handle immigration and citizenship related benefits for members of the military and their families, such as services involving "parole in place" and analysis of "needle in a haystack" cases where persons born abroad may have acquired citizenship through their parents or ancestors based on US military service.

S. 744 Day 1: Highlights of Immigration Debate and Amendments

Fri, 10 May 2013 00:19:23 -0500

Below are highlights from today's opening Senate Judiciary Committee hearing on S. 744, the "Border Security, Economic Opportunity, and Immigration Modernization Act." Overall, the Committee considered 32 amendments to Title I concerning border security. The Committee adopted 21 amendments, of which 20 were adopted by a bipartisan vote. The debate and voting can be viewed on C-Span. The Committee will meet again at 10 o'clock next Tuesday.

After first approving by 14-4 the Sponsors' amended version of the entire bill, the Committee voted on a package of amendments:

Leahy 1 (prohibits border crossing fees at land ports of entry)
Grassley 2 (provides that DHS must submit several border related and other reports to various Senate and House committees)
Grassley 5 (Requires yearly audits of the Trust Fund)
Cornyn 6 (Includes the "Human Trafficking Reporting Act of 2013")
Sessions 36 (Expands DHS Ombudsman to provide assistance to those who have been victims of crimes committed by aliens or border violence)
Flake 1 (Includes private land representatives on the Department of Homeland Security Border Oversight Task Force)
Flake 2 (Requires the GAO to prepare an annual assessment of the status and progress of the Southern Border Security Strategy)
Feinstein 6 (Requires DHS to establish standards to ensure humane conditions for children in the CBP custody)
Feinstein 7 (Requires allocations to law enforcement agencies for Operation Stonegarden be allocated through a competitive grant process.
Feinstein 8 (Requires CBP "to acquire and deploy watercraft to provide support for border-related maritime anti-crime activities")
Hirono 24 (Creates a new Ombudsman office in DHS)

The balance of the amendments that were adopted, not adopted and withdrawn are as follows:

Adopted

1. Feinstein # 9 The amendment would expand state and local costs related to immigration-related criminal prosecution that could be reimbursed by the Federal Government.
2. Blumenthal #10. The amendment would allow DOJ to deny reimbursements to state and local governments for immigration-related prosecution/detention costs if the underlying apprehension was from unlawful conduct by a law enforcement officer.
3. Feinstein #10. The amendment would establish a grant to "improve the transportation infrastructure at existing and new international border crossings."
4. Hirono (HI-D)# 23. The amendment would ensure that the humanitarian needs of children of those who are being repatriated/referred to prosecution are being considered, as well as the physical safety of the individual who is apprehended "as soon as practicable."
5. Feinstein #1. The amendment would extend SCAAP funding (reimbursement to localities for immigration enforcement actions and prosecutions).
6. Leahy (Vt-D) #4. The amendment would provide DHS flexibility in how the funding in the bill is used to implement the border security strategies.
7. Feinstein # 2. The amendment will provide for additional permanent district court judgeships in the southwest border states. Sen. Grassley offered a 2nd degree amendment to provide whistleblower protection to judicial branch employees. Sen. Feinstein agreed to modification.

Not Adopted

1. Sessions #37. The amendment would strike out the provisions requiring DHS to issue policies governing the use of force by DHS personnel.
2. Cruz #1. The amendment will amend the border security sections of the bill to triple border patrol agents, quadruple technology and infrastructure, complete the fence, complete biometric entry-exit system, 100% operational control, and tougher legalization triggers.
3. Sessions # 9. The amendment would establish as a trigger the completion of 700 miles of double-layer fencing as passed by the Secure Fence Act of 2006.
4. Cornyn #1. The amendment would modify all the border security provisions in the bill, including tougher triggers for adjustment of status for RPIs to LPR status.
5. Sessions #11. The amendment modifies border security strategy and the border triggers, changes the border security goal to 100% operational control.

Withdrawn
1. Coons #2. The amendment would require DHS to certify that it won't remove someone through a southern border point in a dangerous location unless justified by compelling government interest. Sen. Coons agrees to work with Sen. Flake.
2. Sessions #38
3. Feinstein #11. Offers up a substitute to her amendment. Held.
4. Cornyn #2. The amendment would authorize DHS to hire 5,000 new full-time CBP officers and 350 support staff to staff ports of entry. It also allows for private-public partnerships to help with funding.

A list of the specific amendments and their votes, voice votes, and withdrawals can be found here. Also, Chairman Leahy (Vt-D) put out a press release about the first day, emphasizing transparency of the proceedings. Senator Grassley (Iowa-R), the Ranking Member of the Judiciary Committee, stated that stated because sufficient border resources or metrics were not approved,"it's legalization first, enforcement later."

S. 744 Proposed Amendments to Immigration Bill Run the Gamut

Wed, 08 May 2013 00:03:14 -0500

A list of the Senate Judiciary Committee's proposed amendments to the massive comprehensive immigration reform bill, S. 744, "Border Security, Economic Opportunity, and Immigration Modernization Act," run the gamut from efforts to eliminate major core benefits such as eligibility for the legalization program known as Registered Provisional Immigrant (RPI) status, to efforts to expand benefits, such as to LGBT families, to minor tweaks, as well as special interest provisions. Over 300 amendments were filed by the 5pm deadline on May 7. A list by short subject, section and Senator was prepared by the American Immigration Lawyers Association. Debate begins tomorrow and can be followed on CSPAN and the Senate Judiciary Committee's webpage.

Tidal Wave of Amendments to S. 744 Rolling In

Tue, 07 May 2013 20:45:46 -0500

US Senate Judiciary Committee members have filed their amendments to S. 744, the "Border Security, Economic Opportunity, and Immigration Modernization Act." The amendments are being uploaded online now at http://www.judiciary.senate.gov/legislation/immigration/amendments.cfm. This is an interesting process where Chairman Senator Leahy has requested that all amendments be filed by 5pm today EST. Having them online available for the public is in stark contrast to the 2006-2007 reform efforts that were largely done in secret without much debate.

According to the American Immigration Lawyers Association (AILA) advocacy department, starting May 9, Senator Leahy will hold hearings on selected amendments, supposedly giving equal time and review of the same number of amendments for the majority and minority members of the aisle. They will be debated and voted on one at a time, rather than hearing about all the amendments first and then voting on them in bulk. Amendment consideration is scheduled for May 9, 14, 16, and all of the week of May 20 as needed with a deadline for voting by May 24 before the Senate breaks for recess.

AILA will be analyzing the amendments and reporting back on two of its public websites tomorrow at www.aila.org/senatebill and www.aila.org/IP2013 (for news, analysis and commentary on the provisions).

S.744 Would Grant Some H-4 Spouses Work Authorization

Mon, 06 May 2013 23:14:00 -0500

Lornet Turnbull has an article in today's Seattle Times entitled Foreign workers' spouses often stuck in limbo, in which she recounts the experiences of several H-4 visa holders who are the spouses of H-1B temporary professional workers. Ms. Turnbull captures the angst mixed status couples face in deciding whether to come to the US at all, and whether to stay and/or pursue permanent residence. Although H-1B visa holding spouses can work for specific employers in specific jobs, the dependent H-4 spouses and children under 21 may not work at all while in H-4 status. This means inability to derive income from any form of labor for pay. From the employers' point of view, they cannot attract top talent if their candidates' spouses cannot work in the US. Unlike American couples who make similar job and moving decisions based on whether an accompanying spouse wants to work and is able to work in a new locale, H-1B candidates have to decide whether to leave loved ones in their country or take jobs where the other spouse will not be able to work.

Inability to work can last for years since the H-4 spouse is dependent upon the H-1B spouse maintaining valid status for up to six years, plus the additional years it takes to pursue permanent residence (green cards), which is usually further delayed by the quota backlogs. The H-4 spouse cannot work until the quota becomes current. This means potentially years of boredom despite being educated and having career options, and quite possibly depression and related family problems unless the H-4 spouse can qualify for a work visa in her own right. Or she may pursue more but unneeded higher education, concentrate on growing the family or performing community service as portrayed in the Seattle Times article. In my Seattle immigration law firm, I have heard from employers whose potential H-1B candidates turn down job offers if the spouse can't work. If possible, we look for other visa categories where the spouse can work, such as J-1/J-2 exchange visitors, L-1/L-2 multinationals, E-3 Australian nationals, and others. Sometimes the work or career pressures are so high that couples split, just like many American couples where work and finances become a difficult marital issue.

US Senate bill 744, the Border Security Economic Opportunity, and Immigration Modernization Act (S. 744) would provide work authorization ("EAD" cards) for H-4 spouses, but only for some of them, specifically those spouses of nationalities that permit reciprocal employment for Americans who would perform the same type of employment as the H-1B worker. Just who would that be? Not Indians, who make up one of the largest H-1B nationality groups, many of whom have spouses with graduate degrees and professional experience abroad. The H-4 reciprocity rule is one of several H-1B provisions in S. 744 that will make the program less workable.

Personally, I don't think this provision will stay the same if we get a final Comprehensive Immigration Reform bill, if we get one at all. On the one hand, EADs for H-4s may be nixed altogether because those that dislike the H-1B program argue that allowing so many spouses to obtain open market unrestricted employment is a back door to doubling the number of foreign workers when the principal visa holder and employer have to jump through so many hoops to protect American labor in order to get H-1Bs. On the other hand, a final version of this provision might end up providing H-4s to all nationalities. At the moment, it's clear that the provision is one of several in S. 744 that are aimed at curtailing Indian H-1Bs generally, among others.

Comprehensive Immigration Reform Bill Introduced by Senate

Wed, 01 May 2013 17:22:28 -0500

On April 16, 2013 the US Senate introduced S. 744, the "Border Security, Economic Opportunity, and Immigration Modernization Act" (BSEOIMA), an 844 page comprehensive immigration reform bill. The American Immigration Lawyers Association (AILA) produced a detailed summary of the bill, as amended by the sponsors on May 1, 2013, which can be found here. The core features of the bill include:

Increased enforcement and funding for enforcement;

Reforms to the temporary and permanent legal immigration system, including reduction in backlogs and new guest worker or temporary visa categories "future flow";

An earned road map to legal status ("Registered Provisional Status") and citizenship over 18 years based on triggers in the enforcement area and penalties;

Reforms to the immigration court and detention system, restoration of due process, judge and agency discretion, and fairness in the removal process

These core provisions are consistent with the blueprint President Obama asked the Congress to consider, propose and debate.

Over the next few weeks, I will be analyzing some of the new or key provisions. There are a lot of good things in the bill that immigration lawyers have been advocating for over many years, many of which are small but important tweaks either to process and procedure, justice and fairness, or just plain common sense. There are also a lot of nasty provisions as well as omissions, such as the lack of immigration options for LGBT families. Finally, there are some creative new options worth considering. Overall, the bill obviously reflects lots of compromise on both sides of the aisle as well as all sides of the immigration issue.

The bipartisan Senate Gang of Eight should be commended for coming this far in good faith to draft a comprehensive bill that will please many people though not everyone. Their press conference above reflects their hard work at compromise. Now the test is how the bill will shake out after debate, amendments (some of which will be aimed to kill the bill), votes, the House's version, and whether we can get a decent enough bill passed that President Obama will be willing to sign.

I-94 Automation Begins: What you need to know

Tue, 30 Apr 2013 01:01:22 -0500

Customs and Border Patrol (CBP) began automating the I-94 arrival documentation process. Until now, individuals received white I94 or green I-94W arrival cards (green for visa waiver tourists), upon admission to the US, often clipped inside the passport. These have been essential for nonimmigrants to track their arrivals and departures. One of the things Congress expects CBP to do is track departures, which have not been tracked as well as arrivals. I94s have been critical to immigration lawyers and their clients to establish proof of lawful entry, deadlines for departure or for filing extensions of stay or change of status, and many other important issues that bear on legal status, change or maintenance of status. In addition, I-94s are one of the eligible documents that can be presented to employers as proof of work authorization for I-9 purposes. Thus, I-94s have been critical documents for many, many years. But now, under the new I-94 automation process, CBP will no longer provide paper I94s upon arrival in the US by sea or air! This means travelers need to be extra diligent about obtaining online verification of their status as soon as they arrive in the US, and no later than before their departure, since the data is cleared once a person departs.

CBP will continue to create the I-94, but will not give it to the traveler. Instead, the traveler has to remember to go online to download the I94 at www.cbp.gov/i94.

This is particularly important if seeking a Social Security card, a driver's license, public benefits or employment. Travelers will receive a stamp in their passport to show the date of admission, class of admission, and expiration or "admitted-until" date.

When departing the US, people with paper I94s are required to turn them in to CBP or their commercial carrier (e.g., airline, ship, etc.). For those with electronic I94s, departures will be recorded by the carrier's manifest.

For those individuals entitled to automatic revalidation, CBP will handle that electronically or with the paper I94s. Refugees, asylee follow-to-joins, and parolees will continue to receive paper I-94s. Paper I94s can be issued upon request as well. Automated I94s will be implemented at five pilot ports starting April 30, and thereafter at the remaining ports of entry over the next month. Seatac airport is scheduled for implementation by May 14, 2013. For more information, see CBP's FAQs.

Sounds like a simple, expedient process, right? Think again. CBP officers routinely make mistakes on I-94s, getting the class of admission or the dates of valid admission wrong.

Revised I-9 Handbook For Employers (M-274) Released

Tue, 12 Mar 2013 00:13:42 -0500

I previously wrote about the new I-9 form published by USCIS on March 8. The Handbook for Employers, or M-274, has also been updated. The biggest changes are the additional and expanded pictures of the various documents employers are likely to encounter. However, there are also a number of minor changes that can raise a number of questions by employers as to the appropriate documents that are acceptable or raise questions about the details in completing the I-9s.

Today, I attended a teleconference held by USCIS with stakeholders about the new I-9s. Employers' questions centered around what to do when re-verifying employees who have updated documents. USCIS says to use the new March 8, 2013 form and to attach the old I-9 to it. There were many other questions raised by referrers and recruiters for a fee (e.g., staffing companies) and universities, all of which have seasonal or re-hire scenarios. The new I-9 form has a new place to indicate the start date for new hires. Other questions or concerns addressed the new boxes for the various types of Social Security cards, and what to do if someone has requested a replaced Social Security card. Many questions centered around when to use the old v. new form, whether to re-verify existing employees on the new form (No!), how long to keep scanned I-9s(same retention rules as paper versions), and whether employers can pre-populate forms from other data sources (e.g., payroll company information)(no, not the employee section, yes for the employer name and address only in part 2).

USCIS is holding numerous free public webinars and will also customize their training for employers who request it. Employers should start by taking a close look at the new I-9, read the instructions and regulation thoroughly, and then review the Handbook. Be sure to look at I-9 Central and call experienced counsel if you run into any unusual problems or wish to conduct an internal audit or training of personnel.

Employers Beware: New I-9 Form Published Today

Fri, 08 Mar 2013 14:20:07 -0500

Today, USCIS published a notice of revised I-9 form in the Federal Register. USCIS states: "Although employers should begin using the 03/08/13 dated form right away, older forms dated 02/02/09 and 08/07/09 will be accepted until May 7, 2013. After May 7, 2013, only the 03/08/13 will be accepted. The revision date is on the lower left corner of the form." USCIS has also scheduled free webinars to help employers understand the new form.

Primary changes to the new form include more thorough instructions for employees and employers, a visually easier layout, and ability to complete online. USCIS added data fields, including the employee's foreign passport information (if applicable), and telephone and email addresses. The form is now two pages rather than one, excluding the list of usable documents to verify work authorization. The list of acceptable documents include additional details about individual documents such as the various types of acceptable Social Security cards. Employers should still refer to I-9 Central for more details. The Handbook for Employers (M-274), mentioned in an earlier blog post below, is being updated.

The I-9 form is to be used by employers who hire, refer or recruit for a fee. The form is to be completed by the employer and employee within three business days of hire and may not be used as a screening tool. Employees must document their identity and work authorization in the US. The form is to be used for all new hires, including US citizens. Employers can be fined for failing to complete I-9s, for completing them improperly, for failing to retain them, and for knowingly hiring unauthorized workers. This has been the law since November 6, 1986.

In 2012, USCIS held several comment periods to obtain feedback from the public about needed revisions to the form I-9. All employers should begin using this new version of the form now for new hires after today, but definitely by May 7, 2013. Employers that use electronic I-9s have 60 days to upgrade their systems. Employers should not go back and re-verify using the new form if they previously verified using older forms. And, indeed, employers may not engage in unnecessary verification that would lead to violations of the anti-discrimination rules.

See an earlier post on this Seattle Immigration Lawyer Blog on the subject of I-9 compliance and issues:
Employers in Denial: Still Clueless or Avoiding I-9 Obligations?

Immigrants and LGBT Rights Activists Working Together

Thu, 07 Mar 2013 18:30:37 -0500

Today's Seattle Times has an article, Gay-Rights Movement's New Focus: Immigrants, discussing how gay rights groups and local immigrant rights groups are working together to fight for immigration reform. Gay rights' groups have advocated for a solution to the problem facing undocumented people in the US, many of whom are LGBT members. At the same time, many immigrant rights groups support reform of the immigration laws to allow US citizens and green card holders to sponsor their gay spouses. All of that may be decided soon when the US Supreme Court rules on a couple of important cases about the constitutionality of the Defense of Marriage Act (DOMA), the primary bar standing in the way of bi- and dual national couples being able to immigrate legally to the US.

Meanwhile, conservative factions of Congress oppose fixing the immigration benefit options for LGBT immigrants. Some see expanding immigration options to bi-national and dual national gay families as a deal breaker to passing a bill on Comprehensive Immigration Reform, while supporters of same-sex couples' rights, including Maine Republican Senator, Susan Collins, advocate that any CIR bill must have avenues for lawful immigration for these immigrants. See an earlier post on this blog, Getting Married in Washington State: What Binational and Dual National Same-Sex Couples Need to Know about the current options for same-sex couples under the existing system, and how DOMA's demise could substantially change things for these families. The Obama Administration recently filed a brief in support of gay marriage in the California Proposition 8 case, Hollingsworth v. Perry. Oral argument in that case is scheduled for March 26, 2013. Oral argument in the other case, Windsor v. US, is scheduled for the next day. The Supreme Court's rulings on these two cases by June will end up affecting what Congress can do concerning the immigration rights of the LGBT community. Stay tuned.

Preparing for Unlawful Presence I-601A Waivers

Sun, 03 Mar 2013 19:40:32 -0500

The provisional waiver procedure starts this week on March 4, 2013. Note the word "procedure." It is not a new law, a new requirement, nor amnesty. It is a change in the location of where to file for a specific type of waiver and when it will be decided. A new form I-601A has been developed for this limited waiver procedure.

New Waiver Procedure Just for Unlawful Presence Bar

The new provisional or family unity waiver process will allow applicants for immigrant visas abroad to apply for unlawful presence waivers in the US before their visa appointments at US consulates abroad. Normally, the unlawful presence bar is "triggered" when the applicant leaves the US to attend the consular interview. Until March 4, these waivers have been filed only after a visa interview at the consulate. At the time of the interview, the consular officer makes an official finding that the person is subject to the unlawful presence bar to admissibility. Then the applicant submits the waiver to the consular office and waits, often for long periods of time or indefinitely for a decision on the waiver by USCIS and a re-interview at the consulate.

Under the new regulation, applicants who know in advance that they are subject to this ground of inadmissibility will be able to file their waiver application in the US or stateside with USCIS before going to the visa interview. This should not be confused with the fact that all waiver types are now being filed stateside in the US. The difference is that the provisional I-601A waivers will be decided before the applicant has to leave the US for the consular interview while the other waiver types are filed in the US (sent to a US lockbox) after the consular interview. If the I-601A application is approvable, USCIS will issue a "provisional" (not a definitive) grant of the waiver. Then, the applicant will have the consular appointment abroad a few months later. If all goes well, the applicant should be abroad for a short period of time. However, the consular officer may develop further information at the interview that may result in additional grounds of inadmissibility or could find that the information provided for the provisional waiver was not true. In that case, the applicant may need to submit another waiver application or could be permanently barred and will have to wait outside the US until it is resolved.

As described in an earlier post, this waiver is only available for:

-applicants who are immediate relatives: parents, spouses, unmarried minor children under 21 years old of US citizens with approved I130s;
-applicants who are at least 17 years old;
-applicants who can show "extreme hardship" to a waiver "qualifying relative" (QR), i.e., US citizen parents or spouses;
-applicants who seek to waive ONLY the ground of inadmissibility based on the three or 10-year bar to readmission due to a period of unlawful presence.

Preference based applicants (usually subject to the quota) cannot use this particular program; nor can visa applicants whose qualifying relatives are permanent residents; nor can applicants who have other grounds of inadmissibility that are waivable.

Preparing for provisional waivers requires some preliminary steps. First, there must be an approved I130 visa petition. One cannot file for the waiver before there is an approved I130 proving the immediate relative relationship. Second, certain notifications are required to be made and fees paid to the National Visa Center (NVC). NVC coordinates the interviews and documentation for the consulates after the I130 visa petition is approved. There are other requirements mentioned in an earlier blog post for pending applications for immigrant visas with interviews scheduled before January 3, 2013, and for those in removal proceedings.

Initial Eligibility Issues

1. Is the applicant even subject to the three or 10-year unauthorized presence bar?
2. Does the person qualify for any of the exceptions to these bars?
3. Has the person already been outside the US for the three or ten years?
Determination of who is and is not subject to the unauthorized presence bar can be difficult and should be discussed with counsel. The government has a 51-page memo on the subject. People who are not subject to the three or 10-year bar a) may not need to leave the US to process their case or b) may not need a waiver at all.
4. Is the applicant subject to any other grounds of inadmissibility? Many people try to handle their family based cases on their own not realizing that they may be subject to one or more grounds of inadmissibility such as fraud or misrepresentation, crimes involving moral turpitude, or the bars due to a prior removal or illegal reentry after a prior period of unauthorized stay, among others. Again, legal advice is recommended to determine admissibility for permanent residence and whether a waiver must be filed from abroad instead.
5. If the applicant has been in removal proceedings, is the case in a posture that would allow for seeking of the waiver or is additional follow up with the court required?
6. Can the applicant make a good enough case of "extreme hardship" to the qualifying relative(s)? This is the crux of the provisional waiver as well as for other waivers with "extreme hardship" standards, such as for fraud and misrepresentation, and crimes involving moral turpitude. Is the argument and supporting documentation good enough that it is worth making the application and taking a chance, or is the case barely qualified such that it would still be a big risk to proceed with the possibility of being stuck abroad, or is there a risk of a waiver denial and placement in removal proceedings? Or is there a chance of qualifying for something else?
7. Are there aggravating circumstances that would cause the case to be decided negatively in the exercise of discretion? e.g., prior criminal behavior, fishy documentation or immigration history, if the qualifying relative contributed to the applicant's unlawful stay or entry; history of other problems.

The rest of this post focuses on the extreme hardship standard.

Employers in Denial: Still Clueless or Avoiding I-9 Obligations?

Wed, 20 Feb 2013 15:25:08 -0500

It's been 27 years since Congress passed the 1986 Immigration Reform and Control Act (IRCA) requiring employers to document the work permission status of ALL new hires, including US citizens, on Form I-9. After all those years, employers still contact our office wanting to hire, or continue employing undocumented workers, or they simply want to "help" an employee who they don't realize lacks permission to work. Many employers sound clueless about IRCA requirements, even when there is so much information out there. In addition, mergers and acquisitions are picking up again in a number of industries. Determining actual or potential I-9 liability and other immigration related workplace compliance problems should be part of every due diligence effort.

Of course, there are many employers who know about their IRCA obligations but ignore them, betting they will not be the subject of enforcement action and penalties, and contributing to employment as the magnet for illegal immigration. By contrast, many employers don't know if their employees are work authorized or not if they are using fraudulent documents or signing I-9 forms falsely. It's not just those who entered the country illegally without inspection that employers want to hire or sponsor for visas and green cards. A substantial portion of the undocumented population are those immigrants who came to the US lawfully and overstayed visas, committed misrepresentation in getting their visas, or violated status by working without authorization when the terms and conditions of those visas prohibit employment (such as tourists, foreign students without authorized practical training, and H-4 spouses, to name a few examples). Hiring workers without authorization puts employers at risk as well as the unauthorized workers. Employers can be audited and fined at any time; the worker can be deported or at the least make the ability to get legal documents more complicated. Nonetheless, the fact that a worker does not presently have work authorization, doesn't mean that they are ineligible to become work authorized later. Separate legal advice is recommended to determine a prospective employee's status and strategy. Because of potential conflicts of interest between the employer's liability and the employee's right to work (or not), each may need separate legal advice depending upon state bar rules.

Without doubt, the direction of Congress has been and will continue to be increased enforcement penalties against employers. According to ICE, in 2012 the agency made:

-520 criminal arrests tied to worksite enforcement investigations, of which 240 were owners, managers, supervisors or human resources employees. They face charges such as harboring or knowingly hiring illegal aliens. The remaining workers who were criminally arrested face charges such as aggravated identity theft and Social Security fraud.
-Homeland Security Investigations served 3,004 Notices of Inspection and 495 Final Orders, totaling $12,475,575.00 in administrative fines.
-ICE debarred 376 business and individuals for administrative and criminal violations.

While these enforcement figures are fairly low, jobs in the US are still the magnet that attracts both legal and illegal immigration. As we have seen, when the economy is doing well, more immigrants come to the US. When employment slows, so does legal and illegal immigration.

Potential Penalties

Civil fines for employers who violate I-9 rules include $110-$1100 per paperwork violation or $375-$15,000 per knowing hire/continuing to hire violation per employee. Recent legislative proposals include increased fines for employers by factors of three to ten times what they are now. Employers can be penalized for technical "paperwork" violations (failing to complete I-9s, failing to properly complete I-9s, failing to keep I-9s, etc.) as well as for "knowingly hiring or continuing to hire unauthorized workers." "Knowing" includes "constructive knowledge." In addition, there are criminal penalties for a "pattern or practice" of knowingly hiring or continuing to hire undocumented workers. Penalties can include asset forfeitures if used in a crime, as well as debarment from various federal programs, business forfeitures, liability for back wages, damages, and legal fees and costs. In other words, it can be very, very expensive to hire undocumented workers just to save on payroll expenses or to "help someone out as a favor." There are also the burdens and costs of public relations nightmares, fiduciary duties owed to shareholders, and loss of management and executive time, if not service to the company, if the CEO, owner, officer or manager is found liable. In egregious cases, employers may be dealing with USCIS, ICE, the IRS, Social Security, US Department of Labor, state labor offices, prosecutors, and potentially the SEC (relating to public filings and disclosures about company liabilities).

ICE publishes its penalty schedule. ICE considers five factors in determining penalties: the size of the business, good faith effort to comply, seriousness of violation, whether the violation involved unauthorized workers, and history of previous violations. Every employer should review ICE's description of the I-9 audit process including the "enhancement matrix" based on the above listed five factors.

Employers should plan how the company or organization will respond in case of a Notice of Inspection (NOI). Employers have only three days to respond. Calling the company lawyer, who may not practice immigration or employment law, or contacting an immigration lawyer for the first time upon receiving a NOI, with only three days to respond, can make it very difficult to review personnel records and I-9s and/or to formulate an effective response in a short time frame under stressful conditions. Rather, companies should review their employment and compliance practices before ICE comes knocking on the door. Conducting an internal audit with counsel and training appropriate personnel to handle I-9s should be done well in advance.

'Tis the Season for H-1B Petition Preparation

Fri, 25 Jan 2013 13:45:03 -0500

It's that time of year again when human resources professionals should be thinking about what positions they plan (or I should say, hope) to fill with foreign national workers in specialty occupations requiring H-1B visas. Now is the time to be extending those offers and preparing applications for filing. In the private sector, which is largely subject to the annual 65,000 visa cap on H-1B visas, the filing season will open up again on April 1, 2013 for jobs that can begin on or after October 1, 2013. This ridiculous timeline is courtesy of Congress that imposed annual cap limitations years ago except on institutions of higher learning, nonprofit or government organizations engaged in research, and private companies with qualifying "affiliations" with the foregoing institutions.

The problem with caps

Every year since the cap dropped to 65,000 (plus 20,000 for individuals with US masters degrees), it has been reached well before the end of the fiscal year. Therefore, every year, employers are stuck with a very narrow timetable in which to file applications. When the economy tanked at its worst in 2008, the cap was still reached, albeit in several months. When the economy was at its best with strong job growth, the 65,000 (+20,000) visas were used up in a day. For example, in Fiscal Year 2013 that began October 1, 2012 and will end September 30, 2013, applications were received starting April 1, 2012 and were used up by June 11, 2012 for jobs that began October 1, 2012! Therefore, anyone wanting to hire an H-1B employee subject to the cap for jobs that are open now will have to wait to file on April 1, 2013 for jobs that cannot begin until October 1, 2013! Rather than Congress changing the program to a market demand based one, employers have to be ready to file on April 1, and cross their fingers. Why?

One must hope and pray the quota doesn't close early, that there aren't mass filings on April 1 creating a lottery situation where employers can only rely on luck. In addition, having to wait to put the person to work on or after October 1, 2013, means employers have to predict their work loads now, or applications will be denied if work cannot be guaranteed. Improperly benching an H-1B worker for lack of work can lead to debarment from the program and payment of back wages despite lack of work. This absurd process makes it difficult for employers on fast product development or contractual timelines. Yet, it's the only game we have to play at this time with this category, and why employers should advocate for legislative change.

Are you an employer new to H-1Bs?

In my many years of experience filing these cases, I have concluded that there are three types of employers. The first group knows about H-1Bs, has searched high and low for qualified US workers, and has not been able to fill positions with enough qualified US workers. When they come across talented foreign nationals, they file for H-1Bs, not because it's cheap, because it isn't. Rather, to remain competitive in the industry, employers will hire top talent even though the cost of filing fees, qualifying wages, compliance, and legal fees is significant to the overhead cost of that employee. These employers expect to recoup their costs through the value added by a talented employee and the potential for that employee to create other jobs for US workers, create new inventions or products, or develop new markets for the employer, directly or indirectly.

The second group of employers that I speak with are those without prior experience with H-1Bs, but are open to learning more, and likewise, have not been able to find a qualified US worker. Once the employer understands the process, what is required, confirms the cost to hire is within budget, and the employer determines the foreign national will add value to the company, these employers will test out H-1Bs for one or more employees. If the experience is satisfactory, they may hire additional H-1Bs in the future or limit their use of the program to the occasional situation when they run into a great person who happens to be from another country.

The third group of employers refuse to have anything to do with foreign nationals. Sometimes that is due to ignorance of the law, even if other visa options are available. Sometimes it is pure racial, or nationality bias, in which case, the employer may be bordering on employment or immigration related discrimination or I-9 or E-Verify violations (e.g., using nationality to pre-screen individuals instead of documenting status upon hire). But most of the time, it's because the employer simply doesn't want to be involved, can't afford the process, has found an equally or better qualified US worker, just needs a body to fill a position, even if the US worker is less qualified, or where talent or extensive knowledge isn't a requirement or concern.