This memo is to inform you of some of the immediate impacts on immigration processing that will follow as a result of the U.S. government’s budget impasse. While Congress continues to search for a prudent solution, we encourage you to read the following information to be aware of how you might be affected. Our hope is that the situation is quickly resolved, and we will continue to keep you informed should new developments arise.
While the situation remains fluid, many key government functions will continue. Still, some processing will experience significant delays.
• Travel may be more time consuming. Officials have warned that security-checkpoint lines will likely be longer than usual, and delays will be a common occurrence during the government shutdown. Nevertheless, the border will remain open and Customs and Border Patrol (CPB) agents, although limited in number, will still be available. A reduced number of Transportation Security Administration (TSA) screeners will also be on duty to process luggage and continue to assist passengers. In addition, the Department of Homeland Security (DHS), and Immigration and Customs Enforcement (ICE) agents will continue to enforce immigration laws
• Passport processing may be delayed, although all services provided by the State Department will continue. The State Department will continue processing foreign applications for visas and U.S. applications for passports, since fees are collected to finance those services. Additionally, embassies and consulates overseas will continue to provide services to American citizens, and for the time being, they will remain fully staffed because they have independent funding.
• USCIS services will continue. United States Citizenship and Immigration Services
USCIS offices will remain open, and the processing of petitions and other applications will continue.
• Employers will not be able to use the E-Verify system. The website will not be operational during the budget impasse. However, rules have been put in place to ease concerns. The ‘three-day rule’ for E-Verify cases is suspended for cases affected by the shutdown, and employees will be given additional time to resolve Tentative Nonconfirmations (TNCs) by taking into account the days of the shutdown. Employers may not take adverse action against an employee due to an E-Verify interim case status. In addition, the government shutdown will not impact an employer’s I-9 responsibilities, and employers should continue to process Form I-9 as required by USCIS.
• The Office of Foreign Labor Certification will neither accept nor process any applications or related materials during the shutdown, including Labor Condition Applications, Applications for Prevailing Wage Determination, Applications for Temporary Employment Certification, or Applications for Permanent Employment Certification (PERM). Therefore certain immigration filings that need those certifications will be impacted, i.e. H-1B and PERM processing.
• Deportations will continue; however, Immigration Courts will take a significantly longer time to process cases and hearings because many of their employees will be in furlough. Detained caseload will continue and the Board of Immigration Appeals (BIA) will continue to process emergency stay requests.
• Any interruption of U.S Mail would result in delays in receiving notices from the government that are typically sent by regular mail.
Why is DOMA significant for immigration? With the Supreme Court’s landmark decision in United States v. Windsor, which struck down a major provision of the Defense of Marriage Act (DOMA), married same-sex couples will no longer be excluded from a number of federal benefits. One of the longstanding injustices of DOMA is its impact on bi-national gay couples. Because immigration law is federal, DOMA prevented gay U.S. citizens and legal permanent residents from sponsoring their spouses, even if the couple had legally wed abroad, or in one of the several states in which gay marriage is legal. The Court’s holding will open the doors for these couples to reside, legally and permanently, in the U.S. with their spouses.
Our office has been receiving questions on the immigration impact of DOMA. The most common clarifications are listed below.
• You do not have to live and file your petition in a marriage equality state to apply for immigration benefits. A marriage is valid if valid where celebrated so notwithstanding residence, if you were married in a state or country that recognizes your marriage; you are eligible to apply for permanent residence.
• If you are currently here in the US on non-immigrant status, your spouse is eligible for a dependent visa. This assumes that you were married or will marry in a marriage equality state or country.
• The fiancé/e visa is available to committed couples who are not yet married. In situations where the foreign national partner is abroad, wants to come to the US, however not eligible for the permanent residence option because you are engaged/committed but not married: the U.S. citizen can file fiancé/e visa application. This application requires the couple to demonstrate that they have a “bonafide” relationship. When the visa is granted, the couple is required to marry within 90 days of the foreign partner’s entry into the US. Once married, the couple can file the marriage-based application from within the United States.
• Another option for families that can travel to another country that has marriage equality, would be to marry there and then have the U.S. citizen sponsor the foreign national spouse for a permanent residence through consular processing in his/her home country.
• It is still unclear whether civil unions or domestic partnerships are eligible for the immigration benefit.
It is interesting to note that one of the main issues of contention in the debate on immigration reform was expanding the definition of marriage to include gay couples–DOMA has made that issue moot.
We have been receiving Premium Processing Request Master Cap Receipt Notices by emails. And it is reported so have other law firms. More importantly, they also report that they have been receiving Premium Processing Request “Regular Cap” Receipt Notices by emails as well. It also appears that the receipt date they printed in these notices (both Master Cap and Regular Caps) is known to be April 8.
There are a couple questions involved here. Since computer random selection process should include Premium Processing cases as well as Non-Premium Processing cases, the fact that the USCIS has been sending out email Receipt Notification for Premium Processing “Regular Cap” cases dated 04/08/2013, the USCIS should have completed Master degree cap selection process on or before 04/08/2013. More curiously, the fact that they have been emailing Premium Process Request “Regular Cap” receipt notification by email with the receipt date of 04/08/2013 also raises a question as to whether the USCIS completed the entire random selection process by April 8, 2013. USCIS was not supposed to run selection process separately for the Premium Processing Request cases, which may raise a question of legality of the process unless there is some mechanism to assure that there was no preference given to the Premium Processing Request simply because they paid $1,225. A lot of unanswered questions, USCIS should release the lottery results and information about the methodology as soon as possible.
The 112th Congress adjourned without reauthorizing the Violence Against Women Act (VAWA). The failure of Congress to pass either the Senate or House approved (S. 1925 or H.R. 4970) versions was the result of partisan bickering, later described by the Huffington Post as “incendiary and extreme.”
The Violence Against Women Act (VAWA) was first enacted by Congress in 1994 to address concerns about high rates of violent crime and women victims, and shortcomings of legal responses to the issue. Although the authors recognized the disproportionate impact of domestic violence on women, VAWA applies to both genders. It has been twice re-authorized since its initial passage but Congress failed to re-authorize funding in the 2012 session. VAWA enhanced investigations and prosecutions of sex offenses and created grant programs to address the issue of violence against women from a variety of angles including law enforcement, public and private entities and service providers, and victims of crime.
Importantly, VAWA includes special protections for immigrant victims of violence, a group identified as particularly vulnerable to abuse: language barriers, isolation, immigration status, and traditional values are just a few identified conditions that increase their vulnerability and intensify their need to rely significantly on their abusers. VAWA allows victims to file immigrant petitions without the knowledge of the abuser and without requiring support of endorsement of the abusive spouse as typically required for an immigrant petition. In general, to qualify for the immigration protections of VAWA, the immigrant must demonstrate he/she is the spouse, child, or parent of a U.S. citizen or permanent resident abuser with whom the immigrant resided, that the immigrant has been the victim of battery or extreme cruelty, and that the immigrant is a person of good moral character. The approval of the petition results in the granting of deferred action status and the ability to apply for employment authorization as well as for LPR status, if they are otherwise eligible. During the period from 1997-2011, 98,192 petitions were received, and 75% approved.
In addition, the VAWA reauthorization in 2000 created the U visa, which protects and assists victims who assist law enforcement agencies in investigating and prosecuting an array of crimes that includes domestic violence. It is available to any foreign national who suffered physical or mental abuse as a victim of a qualifying crime that violated U.S. laws; has information about the crime; and was, is, or is likely to be helpful in the investigation or prosecution of the crime. From 2009-2011, 58,084 petitions for victims, including family members, were received, and 45,741 approved.
Some Democrats in Congress have expressed their plans to re-introduce VAWA in 2013. It has been reported that nearly 200,000 victims of violence could lose services if VAWA is not reauthorized.
Univision, the nation’s top-rated Spanish-language broadcast network, entered into a major debate with The New York Times in a series of articles last week on its English-language website. The debate was sparked by The Times’ Public Editor Margaret Sullivan’s defense of the paper’s decision to continue using the term “illegal immigrant,” in its pages and online. Sullivan defended her position stating the word illegal immigrant was an accurate description of the person’s immigration status. Latinos largely find the term offensive, and so, does using the term “illegal immigrant” define or disparage a certain section of a community?
Let us put the word in correct context. First, immigration violations should not be considered crimes as such. They are not adjudicated under any criminal or penal code. Rather, immigration violations are better construed as administrative infractions. As a general rule, it is not a crime for someone who is not in lawful status in the US to remain present in the United States. The Supreme Court has ruled that it is not a crime to seek or engage in unauthorized employment. The removal of an unauthorized foreign national is an administrative matter and the federal officials have wide discretion to grant lawful status to otherwise removable foreign nationals. For example, if an unauthorized person is trying to support his family by working or has “children born in the United States, long ties to the community, or a record of distinguished military service,” officials may let him stay. Also, if individuals or their family may be politically persecuted or harmed upon return to their country of origin, they may also remain in the United States under a grant of asylum. Immigration infractions do not always result in deportation from the US, nor should they. In the US, a person is innocent unless proven guilty and to label a human being as illegal before any adjudication has taken place runs contrary to our jurisprudence.
Finally, it is important to understand that the term “illegal immigrant” is a derogatory and hurtful term. The NY Times relies on the term “illegal tenant” as a pale defense for the use of the term “illegal” to describe out-of-status foreign nationals. The term “illegal immigrant” was first used in 1939 as a slur by the British toward the Jewish refugees fleeing Nazi persecution by entering Palestine without authorization. Holocaust survivor and Nobel Peace Prize winner Elie Wiesel aptly said that “no human being is illegal.” Sticks and stones aside, we must remember words have very powerful implications.
Political football game, no points on the board, President as QB, an audible—score… there is hope to DREAM!
The Deferred Action for Childhood Arrivals program, effective August 14th, provides some undocumented immigrants two-year work authorization. The Department of Homeland Security stated that many as 1.7 million illegal immigrants who came to the U.S. as children may be eligible for the new program.
This program does not provide lawful status nor does it provide a path to permanent residence/citizenship in the US. Deferred Action provides work authorization for a two year period and in certain instances permission to travel for undocumented workers who are under the age of 30 and who entered the U.S. before they were 16 years old. They must either be currently enrolled in high school or high school graduates or have served in the United States military. This is distinguished from the highly debated “Development, Relief and Education for Alien Minors”, or DREAM Act, which is still necessary in light of President Obama’s deferred action policy because the DREAM Act does provide a path to citizenship. The DREAM Act, if passed by Congress, creates a path to citizenship for immigrants who entered the U.S. under the age of 16 and have lived in the U.S. for at least five years, have graduated high school, and demonstrated “good moral character.”
The immigration debate as it relates to undocumented children is akin to watching a football game where everyone is playing defense and no one is working on their offensive game. President Obama’s first term will soon run out and till now neither team scored. We needed a game changer. As the nation’s quarterback, we needed the President to read the opponent’s plays and change strategy—an audible. President Obama bypassed a Congress that failed to pass a bill providing similar benefits, using his Executive Order privilege to implement Deferred Action for Childhood Arrivals. [Thank God he grew some—speaking of course of a backbone]. The very sought after Latino vote has its boosters making incremental steps that advancing pro-immigration policy, eventually, may lead to the passage of the DREAM Act. President Obama, great job on the 4th quarter comeback—whatever the intent (political or otherwise), there is now hope—to DREAM.
This Saturday only, CLO will be hosting a Deferred Action Clinic in Richmond, V.A. and Raleigh, N.C. Our attorneys will be offering consultations and answering questions regarding President Obama’s new immigration policy preventing the deportation of illegal immigrants who entered the United States under the age of 16.
Under the new policy, those who demonstrate they meet the below requirements will be eligible for “deferred action” (a type of deportation relief) for two years, subject to renewal, and will also be eligible to apply for work authorization.
The requirements are as follows:
1. The individual was under the age of 31 as of June 15, 2012;
2. Came to the U.S. before 16 years old;
3. Have continuously resided in the U.S. since June 15, 2007, up to the present time;
4. Were physically present in the U.S. on June 15, 2012, and at the time of making your request for Deferred Action
5. Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
6. Are currently in school, have graduated high school, have a GED, or was honorably discharged from the Coast Guard or Armed Forces of the U.S.
7. Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety
Deferred action applies to individuals both in removal proceedings and individuals who are not currently in removal proceedings.
In Richmond, VA the clinic will be held from 9am to 2pm at the DAYS INN located at 6910 Midlothian Turnpike (at the intersection of Midlothian Turnpike and Chippenham 150).
In Raleigh, NC the clinic will be held from 10am to 1pm at the COMFORT SUITES located at 4400 Capital Blvd. Raleigh, NC near the Mini City Plaza complex.
If you are interested in attending please bring with you to the clinic the following documents:
• Records of the following: finances, medical records, employment records, evidence of time in school/middle school/high school, evidence of time in the military
• Copies of report cards, grades, GEDS, diplomas, etc.
• Reports of time in the military, copy of your passport
• If you have a criminal record, you should bring copies of your court documents
• If you left the United States for any length of time, we will need your dates of entry & exit, and the reasons for your trip(s).
If you have any questions regarding this clinic or any other immigration concerns please do not hesitate to contact Challa Law Offices at 804-360-8482 for our VA office, 919-380-4044 of our NC office, or at email@example.com.
Obama Administration Relaxes Deportation Rules for Illegal Immigrants who entered the U.S. as Children
On June 15, 2012, Secretary of Department of Homeland Security (DHS), Janet Napolitano, announced that effective immediately, the U.S. will no longer deport certain immigrants who were brought into the country illegally before the age of 16 and who have not committed a crime since coming into the country as children.
Under the new policy, those who demonstrate they meet the below requirements will be eligible for relief from deportation, and will be eligible to apply for work authorization. Specifically, they will receive a “deferred action” for two years, meaning DHS will agree NOT to place the individual in deportation proceedings or agree NOT to execute an order of deportation. This new policy applies to individuals both in removal proceedings and individuals who are not currently in removal proceedings. The requirements are as follows:
• The individual came to the U.S, under the age of sixteen;
• Have continuously resided in the U.S for at least five years before June 15, 2012, and was present in the U.S. on June 15, 2012;
• Is currently in school, has graduated from high school, obtained a G.E.D, or was honorably discharged from the Coast Guard or Armed Forces of the U.S.;
• Has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety; and
• Is not over the age of thirty
While this policy is to take effect immediately, USCIS and ICE expect to implement these new regulations within sixty days. In the coming weeks, USCIS will outline and announce the procedures by which individuals can apply for this process. In the meantime, if you have any questions regarding this new policy or any other immigration concerns, do not hesitant to contact Challa Law Office at 804-360-8482 or at firstname.lastname@example.org.
Those familiar with emerging immigration legislation should recognize these policies implement key points of the DREAM Act. The Development, Relief and Education for Alien Minors, or DREAM Act, would create a path to citizenship for immigrants who entered the U.S. illegally under the age of 16 and have lived in the United States for at least five years, obtained a high school or G.E.D. diploma, and demonstrated “good moral character.” Since efforts to pass the DREAM Act in Congress have failed, it appears the White House has finally taken it upon themselves to implement reforms necessary to our current immigration system.
Amid the global economic slowdown, the U.S. and Canada are competing to attract new entrepreneurial talent into their borders. Through the StartUp Visa Act, the U.S. hopes to drive job creation and increase America’s global competitiveness by making it easier for immigrant entrepreneurs to secure U.S. visas. The StartUp Visa Act proposes amendments to the current Immigration and Nationality Act (INA), creating a new EB-6 category that will allow immigrant entrepreneurs to receive a two year visa provided he or she has a qualified U.S. investor willing to invest in the immigrant’s startup venture. Then after two years, the visa can be converted into permanent residency (green card) provided certain conditions are met.
The StartUp Visa Act would offer immigrant entrepreneurs three options:
1. Entrepreneurs living outside the U.S. can apply for a StartUp Visa if a qualified U.S. investor sponsors their venture with a minimum investment of $100,000. After two years, their business must have created 5 new jobs and raised at least $500,000 in additional capital investment or $500,000 in revenue.
2. Workers on H-1B visa or graduates from U.S universities in the STEM areas can apply for a StartUp Visa if: (1) they have an annual income of at least $30,000 or have assets totaling at least $60,000; and (2) have a qualified U.S. investor sponsor their venture with a minimum investment of $20,000. After two years, their business must have created 3 new jobs and raised at least $100,000 in additional capital investment or $100,000 in revenue.
3. Foreign entrepreneurs can apply for a StartUp Visa if their foreign business has generated at least $100,000 in revenue from sales in the U.S in the last 12 months. After two years, their business must have created 3 new jobs and raised at least $100,000 in additional capital investment or $100,000 in revenue.
Across the border, Canada has begun its own movement towards a “start-up” visa program to recruit people “rich in ideas,” especially in the information technology field. Not to be outdone by their American neighbors, Canada’s “start-up” visa initiative looks to simplify and expedite visa processing for entrepreneurs. Proposals include lowering the minimum assets requirement from $300,000 to $150,000, and enabling immigrants to partner with pre-approved local investors to accelerate work permits. Similar to the U.S. proposals, Canada’s “start-up” visa programs would also require the immigrant-entrepreneur to create at least 3 fulltime jobs over the course of 2 years.
Recognizing the importance of innovation and entrepreneurship is the first step in driving job creation and stimulating the economy. The best way to bring the smartest and most entrepreneurial individuals in the world to the U.S. is through proactively targeting such immigrant-entrepreneurs with attractive StartUp Visas. By easing their path to the U.S. and helping them stay to invest in their ideas, more Americans can be put to work and the U.S. can remain globally competitive.
On June 6, 2012, Lakshmi Challa attended a White House Business Council roundtable with U.S. Department of Agriculture Deputy Secretary, Kathleen A. Merrigan. The event was held in conjunction with Business Forward North Carolina at The Chef’s Academy in Morrisville, N.C. The roundtable focused on topics such as the local food economy in N.C. and included input from area producers, consumers and local food entrepreneurs.
In discussing these issues, Lakshmi brought to the attention of the Deputy Secretary how immigration directly affects the local production of food and the local food economy. In fact, the U.S. Immigration and Naturalization Services (USCIS) has a specific category of nonimmigrant visas for temporary agricultural workers (H-2A). The H-2A program allows U.S. employers to bring foreigners to the U.S. to fill temporary or seasonal agricultural jobs for which U.S. workers are not available.
While temporary foreign farmworker programs have been in existence in the U.S. since the 1940s, they are severely underutilized and constantly being undermined by state legislators. With federal government inaction over reforming the current immigration system, the individual states have taken it upon themselves to enact anti-immigration legislation. However, these newly enacted anti-immigration laws, in states such as Georgia, Alabama, and Arizona, have severely backfired as there is now a shortage of temporary farmworkers in these states, resulting in fields that are left abandoned and crops that are rotting.
Recall, these anti-immigration laws give law enforcement officers the authority to demand proof of U.S. citizenship during lawful stops, detentions, or arrest when they suspect the individual is an illegal immigrant, with or without probable cause. However, what the state legislators did not anticipate was the dramatic flight of agricultural workers fleeing their states. As a result, these states are now paying the price as the massive drain of agricultural workers has caused a major labor shortage, and an estimated $140 million in agricultural loss as crops are left rotting in the fields with no one to harvest them. Such significant decreases in the domestic production of food means the U.S. will have no choice but to import produce from global sources, resulting in higher transportations costs associated with getting food from farms to American grocery stores. Ultimately, it will be the consumers who will have the bear the burden of higher prices for fresh fruits and vegetables.
So what needs to be done to prevent further agricultural loss and the sky-rocking price of produce? Instead of tackling one farm at a time or even one state at a time, the federal government needs to step in and overhaul the H-2A visa program to make it more efficient and appealing for farmers. In an effort to reform the H-2A visa program, the Agricultural Job Opportunity, Benefits and Security Bill (AgJOBS) was introduced in Congress. The AgJOBS bill seeks to accomplish two goals. First, it establishes a program to identify undocumented agricultural workers who have been working in the U.S. for the past two years or more, and puts them on a path to gain legal status. Second, it would reform the H-2A program to ease the process in which farmers use to bring guest workers into the U.S. to harvest their crops. Employer “attestation” would replace “certification” thus reducing the Department of Labor’s (DOL) involvement. Further, the DOL would be required to review and approve such attestations within seven days.
Although AgJOBS is periodically reviewed and debated in Congress, it has yet to be enacted into law. Both Lakshmi and the Deputy Secretary of the U.S. Department of Agriculture agree these reforms are necessary to remedy the chain of unintended consequences some states have created in trying to combat illegal immigration.
Lakshmi Challa is Managing Partner for Challa Law Offices & Challa Immigration Law Offices. She can be reached at email@example.com. You can call her at 8043608482 in VA or 919-380-4044 in NC