Immigration News

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So far jvierra has created 15 blog entries.

Getting to Know Your Employment-based Permanent Resident Options

For individuals with lawful employment in the U.S., job offers from prospective U.S. employers, or — in some cases — those with no job offers who would like to work in the U.S. permanently there may be employment-based permanent resident options for you! In total, there are 140,000 employment-based immigrant visas available every year in the U.S. and these visas are divided into five-preference categories. This thread is the first of a series regarding employment-based categories. Let’s get started!

The First Employment-based Preference category is for “priority workers,” known as EB-1. EB-1 Workers receive about 40,000 of the annual worldwide limit of employment-based visas (28.6 percent) and are divided into three sub-groups:

EB-1(a): Persons of “extraordinary ability” in the sciences, arts, education, business, and athletics. To qualify as “extraordinary”, an applicant must show the government that they have sustained national or international acclaim and recognition in their field of expertise. If you fall within this category, you don’t need a job offer to apply for an EB-1; however, you do need to be entering the U.S. to continue working in your field of “extraordinary ability.” No labor certification is required for this category and the applicant may petition on his or her own behalf. An EB-1(a) example might be the following: German players from the recent world cup champion team may petition themselves for an EB-1 if the players were looking to live permanently in the U.S. and work and play for Major League Soccer (MLS). A doubtful scenario but perhaps a doable “feet”!

EB-1(b): Outstanding Professors and Researchers. To qualify as an outstanding professor/researcher, the applicant must be recognized internationally as outstanding in their field and have at least three years of experience. Again, no labor certification […]

U.S. Citizenship and Immigration Services Announces Leon Rodriguez as New Director

Confirmed by the Senate and sworn in on July 9, 2014, Mr. Rodriguez Becomes the fourth Director of the world’s largest Immigration Service. Mr. Rodriguez, born in Brooklyn and raised in Miami, comes to USCIS with a broad legal background and he will lead the nearly 18,000 employee agency, which is charged with administering the nation’s immigration and naturalization system.

Mr. Rodriguez had no experience working in the immigration field. While Mr. Rodriguez’s resume in law and civil service is impressive; it is unclear what specifically qualifies him to direct the United States’ immigration agency. Trained as a lawyer, Mr. Rodriguez has extensive experience working in the public sector for the U.S. Department of Justice and the Department of Health and Human Services. He has also worked in private practice in Washington, D.C.

He previously served as the director of the Office for Civil Rights at the Department of Health and Human Services, a position he held from 2011 to 2014. From 2010 to 2011, he served as chief of staff and deputy assistant attorney general for civil rights at the Department of Justice (DOJ). Previously, Mr. Rodriguez was county attorney for Montgomery County, Maryland from 2007 to 2010. He was a principal at Ober, Kaler, Grimes & Shriver in Washington, D.C. from 2001 to 2007. He served in the United States Attorney’s Office for the Western District of Pennsylvania from 1997 to 2001, first as chief of the White Collar Crimes Section from 1998 to 1999 and then as first assistant U.S. Attorney until his departure. Before joining the U.S. Attorney’s Office, Mr. Rodriguez was a trial attorney in the Civil Rights Division at DOJ from 1994 to 1997 and a senior assistant district attorney at […]

Why are so Many Children Fleeing Central America

On July 8, 2014, President Obama asked Congress for $3.7 billion dollars in emergency funding in an effort to address the overwhelming number of young, unaccompanied children arriving at the United States’ Southern border with Mexico.

These young children, numbering in the tens of thousands, are coming from Guatemala, El Salvador, Honduras and Mexico, and are primarily fleeing drug cartels, transnational criminal organizations (TCOs), endemic poverty and domestic violence.  Why now and why so many?  And what can United States immigration authorities do about it?  These are some of the difficult and complex questions which Congress, President Obama and Department of Homeland Security officials are trying to answer.

So far this fiscal year (October 1, 2013 – present), U.S. Customs and Border Patrol (CBP) have detained over 50,000 unaccompanied minors at the border.  Of these, CBP says 29% of the children came from Guatemala, 24% of the children fled Honduras, 23% from Mexico, and 22% from El Salvador.  In other words, 97% of the unaccompanied children stopped at the border were from these four countries.

When children – or anyone else for that matter – arrives at the border and expresses a fear of returning to their home country, both U.S. and international law requires that they be screened to determine if they qualify for protection as refugees.  The primary definition of refugee comes from the 1951 Geneva Convention on the Status of Refugees and the 1967 Protocol.  According to U.S. law, a refugee is basically any person who is outside his/her home country and was either persecuted in the past or has a well founded fear of persecution in the future, on account of race, religion, nationality, political opinion, or membership in a particular social group.

In addition […]

USCIS Announces DACA Renewal Process

On June 15, 2012, President Obama announced a new program known as Deferred Action for Childhood Arrivals or DACA.  The DACA program allows young people who came to the United States before their 16th birthday and who have lived in the United States since at least June 15, 2007 to receive a 2-year employment authorization card (EAD), so long as they meet the program requirements, including no criminal convictions for a felony or a serious misdemeanor offense.  On June 5, 2014, the DACA renewal process was announced.

To be eligible for an initial grant of DACA, an applicant must have been under 31 years of age on June 15, 2012, the day President Obama announced the program.  In addition, an applicant must be at least 15 years of age to apply for DACA.  A DACA recipient must also have graduated from high school, earned a GED, enrolled in the military, or be currently attending school or enrolled in a GED program.

At the time of the initiation of the DACA program, it was hoped that Congress would soon pass the DREAM Act, which would have given young people an opportunity to apply for permanent resident status in the United States.  However, with the passage of 2 years without Congressional action, USCIS has now begun the process of accepting applications for a 2 year renewal of DACA.

To qualify for the 2 year renewal, a DACA recipient will need to complete a new application, pay the filing fee of $465.00, prove they have lived in the United States since receiving DACA – except for pre-approved travel with advance parole – and they have not been convicted of a felony or a significant misdemeanor offense.

In order to maintain employment authorization […]

USCIS Announces New I-693 Medical Exam Policy

On May 30, 2014, United States Citizenship and Immigration Services (USCIS) revised its policy concerning the validity period of the required medical examination (I-693) for applicants for Lawful permanent Resident status and Immigrant visas at U.S. Embassies abroad.

Effective June 1, 2014, the completed I-693 medical exam must be submitted to USCIS within one year of when it is completed by the authorized civil surgeon.  In addition, the medical exam will only be valid for one year.  Previously, the medical exam was considered valid as long as it was submitted within one year of completion.

As a result of the new policy change, it is possible that applicants may find that they will have to update their medical exam, if, for example, a decision on the permanent resident application takes is not made within one year of filing.

In an effort to alleviate this concern, USCIS has also changed its policy concerning the timing of when the I-693 medical exam must be submitted to USCIS.  Previously, the medical exam was required to be filed at the same time the I-485 application for permanent resident status was filed.  However, USCIS will now allow the medical exam to be submitted at any time prior to a decision on the permanent resident application.  As a result, some applicants may choose to complete and submit their medical exam shortly before their immigration interview – or – as USCIS is now suggesting – simply wait for USCIS to request submission of the medical exam.

To read the official announcement and new Policy change, please see:

http://www.aila.org/content/default.aspx?docid=48745

http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume8-PartB-Chapter4.html

 

Will H-4 Dependent Spouses be Allowed to Work?

United  States Citizenship and Immigration Services (USCIS) is proposing a new rule that will allow the H-4 spouses of H-1B non-immigrants to be able to obtain employment authorization if the H-1B principal has an approved I-140 petition or has received an H-1B extension through the American Competitiveness in the Twenty-first Century Act of 2000 (AC21).

The purpose of the proposed rule is to somewhat mitigate the financial hardship on skilled non-immigrants who are in the process of transitioning from H-1B status to lawful permanent resident status.  Because of the delays and strict quotas for employment-based permanent resident status, the transition period can stretch for several years, currently up to 11 years for professionals from India and even 10 years for high skilled Indian professionals with master’s degrees!  By allowing the H-4 spouse to be employed during the period between the approval of the I-140 immigrant worker petition and the ultimate approval of lawful permanent resident status, the financial hardship  to the family of skilled professionals will be somewhat eased.

The new proposed rule is due to be published in the Federal Register on Monday, May 12, 2014.  A required 60 day Notice and Comment period will follow in which any interested party can submit comments to the agency about the proposal.  After 60 days, USCIS will review the comments and consider changes or alterations.  A subsequent announcement will be required before the proposed rule actually goes into effect.

To see an advance copy of the new proposed rule for employment authorization for certain H-4 dependent spouses, please click:  Proposed Rule 05.12.2014

Temporary Protected Status Re-registration Period Extended for Haitian Nationals

Temporary Protected Status or “TPS” is a humanitarian designation which allows non-citizens to legally remain in the United States based on emergent conditions in the person’s home country.  After the devastating earthquake in Haiti in 2011, citizens of Haiti who have resided continuously in the United States since January 12, 2011 have been permitted to remain in the United States in TPS status so long as they timely register and complete the necessary processing.  It is estimated that there are approximately 55,000 Haitians who currently have TPS status.

By re-registering for the new TPS extension, Haitians will be able to remain in the United States for another 18 months, or January 22, 2016.

Haitians who arrived in the United States after January 12, 2011, or have been convicted of certain crimes, are not eligible for TPS status.

To read the official announcement, please click:  Haitian TPS extension 5.02.2014

It’s H-1B Season! Am I Subject to the Cap or Do I Have to Win the Lottery?

U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering and computer programming.  U.S. Citizenship and Immigration Services (USCIS) began accepting H-1B petitions subject to the fiscal year (FY) 2015 cap on April 1, 2014.

HIGH DEMAND FOR H-1B VISAS

The congressionally mandated cap on H-1B visas for 2015 is 65,000. The first 20,000 H-1B petitions filed on behalf of individuals with a U.S. master’s degree or higher are exempt from the 65,000 cap.  USCIS expects to receive enough petitions to fill the cap by April 7, 2014.  The American Immigration Lawyers Association (AILA) has received several reports from members who, upon inquiring about the status of their FedEx delivery, have been informed of delivery problems. AILA has reported the specific problems to USCIS headquarters. USCIS officials are investigating the situation and will report back as soon as possible.

Last year, USCIS received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption. On April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit. For cap-subject petitions not randomly selected, USCIS rejected and returned the petition with filing fees.  USCIS is expected to use a similar approach this year.

Demand for H-1B visas has exceeded the annual cap every year since 2004. Last year, USCIS announced that it had received a sufficient number of H-1B petitions to reach the cap for FY 2014 on April 5—five days after it began accepting petitions. Although the pace at which employers filed petitions […]

If I Had a Million Dollars… And I Create 10 New Jobs, How Long Will it Take Me to Receive a Permanent Resident Card?

Under U.S. immigration law, there are approximately 10,000 immigrant visas or Permanent Resident positions available each year to non-citizens who invest one million dollars in a new enterprise in the United States and create 10 new fulltime jobs.  By law, the one million dollar amount is reduced to $500,000 if the new enterprise is located in a designated high unemployment or rural area.  Currently, 3,000 of the total number of immigrant visas available in this category (EB5) are set aside for high unemployment /rural areas and 3,000 are set aside for Regional Centers.

To be considered a new commercial enterprise, the business must have been created after November 29, 1990.  However, the non-citizen investor is not required to start the business and is allowed to purchase an existing commercial enterprise.

In addition, if the investment is made in a pre-approved Regional Center, the 10 new jobs do not have to be directly employed by the enterprise and indirect job creation may be counted towards the total.  In Hawaii, there are currently six pre-approved Regional Centers.  In Oregon, there are currently 8 Regional Centers, including Seattle’s Golden Rainbow and Gateway Freedom Fund.

Initially, an Investor’s application (I-526) for Permanent Resident status is considered conditional and is only valid for 2 years. After 2 years, the Investor is required to file a second application with USCIS, an I-829 Petition to Remove the Condition, in order to demonstrate that the required capital has been invested and the requisite number of new jobs have been or are being created.

According to the latest processing times posted by USCIS, as of March 18, 2014, USCIS was processing initial I-526 applications filed on April 3, 2013, and adjudicating I-829 petitions for the Removal of Conditions […]

Federal Court Orders Immigration Bond Hearings for Non-citizens Detained in Tacoma, Washington

By Nicholas Costa, Associate Attorney, NELSON | SMITH, LLC

On Tuesday, March 11, 2014, the United States District Court for the Western District of Washington made a declaratory judgment to forbid immigration authorities from denying a bond determination for certain individuals while they are detained in immigration custody.   This decision is a landmark victory against immigration authorities’ longstanding rule that certain individuals be held without bond no matter when they were picked up by immigration.  This new rule affects those residing in the Western District of Washington and includes all non-citizens detained at the Northwest Detention Center (“NWDC”) in Tacoma, WA.

For over a decade, immigration authorities have maintained that individuals with certain criminal convictions are subject to mandatory detention during the pendency of their removal proceedings under the Immigration and Nationality Act (“INA”) § 236(c) no matter when they were picked up by immigration.   This allowed Immigration and Custom Enforcement (“ICE”) to arrest and detain people without the hope of release — no matter how old the conviction was.   Congress enacted INA § 236(c) and bestowed immigration authorities with the power to mandatorily detain individuals without bond “when released” from custody for that conviction.  For example, when a non-citizen is found guilty in a criminal court, sentenced, and then released from criminal custody, immigration authorities have the power to immediately detain the person without hope of bond while their removal proceedings are pending.   However, immigration authorities have overstepped this statutory grant for over a decade.  Based on a decision entitled Matter of Rojas, 23 I&N Dec. 117 (BIA 2001) – a decision that has been overwhelmingly rejected by the United Stated District Court of Washington and other district courts around the country – immigration […]