January 2008

Posted on: January 28th, 2008
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January 15,2008

Openers

I’ve just returned from my annual trip to Las Vegas where I attend the Consumer Electronics Show, the Super Bowl of gadgetry. I attend as a member of the media because I write regularly on law office technology topics. This year I was more organized and have already produced a major article on the show which will be run in the late winter in Immigration Law Today, the American Immigration Lawyers Association’s magazine. I’m also producing an article for the American Bar Association as well as numerous posts for my law office technology blog.

Technology is a fun diversion from my day to day immigration law practice, but increasingly a comfort with technology is becoming more and more important to immigration lawyers. Cases are prepared in elaborate case management systems, forms are submitted electronically, the status of a matter is tracked on the Internet and lawyers are using electronic versions of their research publications and searching the web for the latest news on the law. Sure, seeing the new 150 inch plasma television is cool. But there are many, many hardware and software products that are coming out every year that can make lawyers more productive and provide more effective service to our clients.

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January marked the beginning of enforcement of the new Tennessee andArizona laws which allow for the revocation of a state’s business license when an employer knowingly employs unauthorized immigrant workers. There are a number of new laws under consideration around the country and the Department of Homeland Security has dramatically stepped up enforcement as well. Plus, we’re expecting the Social Security no match rule to eventually come back either with a court win, legislation in Congress or a new rule released by DHS. Employer enforcement is going to be one of the key issues in 2008.

To help our readers and clients keep up with all of the developments in this fast changing arena, I have started a new blog on employer immigration compliance. The blog will track legislative developments, provide details on Form I-9 compliance, discuss ICE’s enforcement of immigration laws and more. This blog is very possibly the first of its kind (at least as far as I know) and I expect to introduce a lot of new information products on the subject as 2008 moves along. You can find the new blog athttp://immcomp.blogspot.com/ .

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Immigration continues to be a key subject in the news, something that is hardly a surprise given what we saw in 2007. The topic continues to come up in the presidential campaigns in both parties. But some of the conventional wisdom may have been turned on its head based on last week’s New Hampshire primary. I’m speaking specifically of the decisive win by Senator John McCain. McCain has continued to back comprehensive immigration reform and is perceived by the public as being pro-immigration. The assumption that immigration would be THE issue of the presidential campaign and that the more anti-immigration the candidate, the better he or she would do has clearly been challenged. Polls showed that immigration ranked only fourth with Republicans. Furthermore, the assumption that Republicans who care about immigration uniformly favor the extremist anti-”amnesty” positions of some of the candidates has also been challenged.

What is clear is that the most pro-immigration candidate in the GOP is now the frontrunner.

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Finally, as always, if you are interested in becoming a Siskind Susser Bland client, please feel welcome to email me at gsiskind@visalaw.com or contact us at 800-748-3819 to arrange for a telephone or in person consultation with one of our lawyers.

Regards,

Greg Siskind

1. NON-IMMIGRANT VISAS

There are several types of non-immigrant visas. Non-immigrant visas are usually designated by letters. Below are brief summaries of the most common ones: H-1B Visas – Available to people in “specialty occupations”

  1. Do you have a university degree?
  2. Do most people in your field in the US have university degrees?
  3. If you lack a degree, do you have several years of work experience in your field?
  4. Do you have an employer in the US willing to hire you?
  5. Does the job pay as much as similarly employed American workers?
  6. Does the employer typically only hire people with university degrees for the job?
  7. Does the employer guarantee that they will have continuous work available to you?
  8. If the occupation requires a license, do you have the necessary license?

General Notes: Valid for up to six years; can simultaneously have green card application pending; spouses and children not allowed to work; do not need to maintain ties to your home country; limited to 65,000 people per year (but many H-1B workers are exempt from this cap and there is an additional quota of 20,000 for people holding masters degrees or higher granted by a US university); can change employers quickly, but need new visa approval for each new employer; self-employment permitted in limited circumstances; if applicant lacks appropriate degree, equivalent work experience must be demonstrated and evaluation from expert obtained; companies employing many H-1B workers may be subject to additional requirements; USCIS must approve before consulate can issue visa; filing fees are expensive and vary significantly depending on the employer and the need for expedited processing; NOTE: over the past few years, H-1B visas have been used up very quickly and advanced planning is always advisable.

B-1/B-2 Visas – Available to Short term visitors for pleasure or business

  1. Do you have a job that pays well and which you can leave for a few weeks on a vacation?
  2. Do you have close relatives who will be remaining in your home country when you come to the US ?
  3. Are you coming for a short visit?
  4. Do you have assets in your home country?
  5. Do you own property in your home country?
  6. Do you have a set itinerary for your trip to the US ?
  7. Do you have a roundtrip plane ticket?
  8. Do you have close community ties in your home country?
  9. Do you have money or proof of support from friends or relatives in theUS to show adequate financial arrangements to carry out purpose of trip?
  10. If you are coming for business, is the work you are doing work that would typically be done by an American worker?
  11. If you are coming for business, is the main place where profits are earned outside the US ?
  12. If you are coming to the US on business, is your payment going to be made abroad rather than in the US ?
  13. If you are coming as a B-2 visitor for pleasure, are you coming for one of the following purposes?:
    1. Tourist
    2. Social visits to friends/relatives
    3. Health purposes
    4. Participants in conventions of social organizations
    5. Participants in amateur musical, sports or similar events with no pay
    6. Spouses and children of people in the US armed forces
    7. People accompanying B-1 business visitors
    8. Coming to marry a US citizen but the person plans on departing after the wedding
    9. Coming to marry someone on a non-immigrant visa
    10. Non-spouse partners (regardless of gender) that accompanies an E, H or L visa holder
    11. Parent seeking to accompany an F-1 student visa holder
    12. Language students in course of short duration when the course of study is under 18 hours per week
  14. If you are coming on a B-1 business visitor visa, are you coming for one of the following purposes?:
    1. Engaging in commercial transactions not involving employment (negotiating contracts, litigation, consulting with clients or business associates)
    2. Participating in scientific, educational, professional, religious or business conventions
    3. Religious workers coming to do missionary work in the US, ministers exchanging pulpits but who are paid by their own church abroad, and ministers on evangelical tours
    4. Domestic servants accompanying returning US citizens temporarily assigned to the US or who permanently reside in a foreign country
    5. Domestic servants accompanying non-immigrant visa holders if the applicant has worked for the employer for a year or more
    6. Professional athletes only receiving tournament money
    7. Foreign medical students seeking to take “elective clerkship” without pay
    8. Serving on a board of directors of a US company
    9. Coming to the US to set up a US subsidiary and explore investment opportunities
    10. Installing equipment as part of a contract
    11. Participating in a volunteer service program if religious only
    12. Attending an executive seminar
    13. Observing the conduct of business
    14. Domestic partner of a person on a non-immigrant visa.

General Notes: Usually can get an authorized stay of up to six months; chances improve if a shorter trip is requested; no USCIS approval required before consulate issues visa; not allowed to work while on a visitor visa; visa must be granted by consular officer except in most cases if the national is from one of more than two dozen countries granted Visa Waiver status allowing such persons to enter the US for up to 90 days. Visa Waiver entrants cannot have their status extended and cannot change to other non-immigrant categories while in the US. Nationals of the following countries were eligible for the Visa Waiver Program: Andorra, Australia, Austria, Belgium, Brunei,Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan,Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway,Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom.

F-1 Visas – Available to Students

  1. Do you have a residence in your home country you don’t intend to abandon?
  2. Have you been admitted to study full-time in a degree program or an English language program?
  3. Is the school where you intend to study approved for students to attend on student visas?
  4. Do you have proof of adequate financial resources to attend school full-time without the need to work in the US ?
  5. If you are not going to the US an English language program, are you proficient in English?
  6. Will the education you obtain in the US improve your career prospects in your home country?

General Notes: Must be enrolled full-time; has limited on-campus work eligibility; off-campus employment is prohibited unless the student fits under limited exceptions and the employment authorization is granted by the school or the USCIS; can get up to a year of work authorization upon completion of program; can remain in the US for a period needed to complete the educational program; spouses and children not entitled to work; children can enroll in K-12 education, spouse cannot study unless he or she has a separate student visa; no USCIS approval required before consulate can issue a visa.

J-1 Visas – Exchange Visitors

  1. Are you coming to the US to participate in an exchange program designed by the US State Department?
  2. Do you have fluency in English and sufficient funds to live here if the program does not pay J-1 visa holders?
  3. If you are looking at the au pair program, have you registered with one of the eight designated au pair programs in the US ?
  4. If you are a doctor seeking to train in the US , are you admitted into a medical residency or fellowship program and have you obtained sponsorship from the Educational Commission on Foreign Medical Graduates?
  5. If you are coming for a business trainee or intern visa, have you found an employer to provide you with a training opportunity?
  6. If you have found a training opportunity, have you found a program sponsor?

General Notes: Available to trainees, interns, professors or research scholars, short term scholars, foreign doctors, camp counselors, au pairs and students in work/travel programs in the US; often requires person to return home for two years before switching to another visa; time limits vary depending on type of program (training – 18 months; interns – 12 months; scholars and professors – up to three year; au pairs – 12 months; medical residents – up to seven years; students are not limited); students eligible for up to 18 months (36 if post-doctoral work) of post-graduate work authorization; students must be enrolled full-time; spouses and children entitled to work authorization; no USCIS approval required before consulate can issue a visa.

O Visas – People with extraordinary ability in the sciences, arts, crafts, education, business, athletics or any field of “creative endeavor”

  1. Are you one of the top people in your field in your country?
  2. Do you have an employer, manager or agent in the US who can sign your application?
  3. Is there a peer organization willing to say that they have no objection to your being granted an O-1 visa?
  4. Can you show that you have won a major international award OR at least three of the following?:
    1. Documentation of the alien’s receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
    2. Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
    3. Published material in professional or major trade publications or major media about the alien, relating to the alien’s work in the field for which classification is sought, which shall include the title, date, and author of such published material, and any necessary translation;
    4. Evidence of the alien’s participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which classification is sought;
    5. Evidence of the alien’s original scientific, scholarly or business-related contributions of major significance in the field;
    6. Evidence of the alien’s authorship of scholarly articles in the field, in professional journals or other major media;
    7. Evidence that the alien has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation;
    8. Evidence that the alien has commanded and now commands a high salary or other remuneration for services, evidenced by contracts or other reliable evidence.

General Notes: Can be admitted for up to three years at a time; no need to maintain residence abroad; can have green card application pending while on O-1 status without problems; USCIS approval required before the consulate can issue visa.

L Visas – Intra-company Transfers

  1. Are you coming to the US to work for a company that has offices both in the US and outside the US ?
  2. Have you worked for the company abroad full-time for at least one year of the last three?
  3. Are you coming to the US as an owner, executive, manager or an employee with special knowledge of the company’s operations?

General Notes: Seven year stays for owners, executives and managers; five year stay for special knowledge employees; easy to get green card for owners, managers and executives; spouses are allowed to work; USCIS must approve before consulate can issue visa; difficult for workers working on a contract basis at other employers.

E Visas – E-2 Treaty Investors and E-1 Treaty Traders

  1. If you are seeking an E-1 Treaty Trader visa, are you currently working for a business that has a substantial volume of trading business with theUnited States (more than 50%)?
  2. Are you a national of a country that has a bi-lateral trade treaty with the United States ?
  3. Are you coming to the US to work as an owner, executive, manager or “essential skills” employee?
  4. Is at least 50% of the business owned by foreign nationals who are not US citizens or permanent residents?
  5. For E-2 visas, are you investing a “substantial amount” of money in a commercial investment in the US ?

General Notes: No limit on total time in E visa status; spouses can work; no initial USCIS approval required; permanent residency applications do not adversely affect E visas. More information about the E visas and a list of treaty countries may be found at: http://www.visalaw.com/abcs.html R Visas – Religious Workers

  1. Are you coming to the US to work as a minister or work in a religious vocation or occupation?
  2. Have you been a member of the religious denomination for at least two years?
  3. Is the employer a “nonprofit” organization (most churches, synagogues and mosques qualify as well as institutions affiliated with them)?

General Notes: Valid for up to five years; convertible to a green card after two years of work in R-1 status unless the applicant has worked in the job for two years prior to entering the US; no USCIS approval required for consulate to issue visa; change of status petitions can take a long time since USCIS conducts extensive reviews of these cases including conducting site visits.

TN Visas – NAFTA Visas for Canadians and Mexicans

  1. Are you coming to the US to work in an occupation listed within the NAFTA occupation schedule?http://www.visalaw.com/03dec3/2dec303.html
  2. Are you a citizen/ national of Canada or Mexico ?
  3. Do you meet the minimum job requirements for that position as listed in the TN NAFTA Schedule?

General Notes: Valid for a year; can be extended in one year increments; is a non-immigrant visa, therefore the beneficiary cannot have immigrant intent; is employer specific; there are no prevailing wage requirements; experience cannot be used as a substitute for the degree requirement; there is no annual limit to the visas issued; Canadians can apply for the status at the port of entries with “TN offer letters” and Mexicans can apply directly at the US Consulates; extensions and change of status applications may be filed in theUS (only at the USCIS’ Nebraska Service Center ). Note that most jobs require a degree in the field; management consultants do not, but these cases are closely scrutinized.

E-3 Visas for Australians

  1. Are you Australian?
  2. Do you have a university degree?
  3. Do most people in your field in the US have university degrees?
  4. If you lack a degree, do you have several years of work experience in your field?
  5. Do you have an employer in the US willing to hire you?
  6. Does the job pay as much as similarly employed American workers?
  7. Does the employer typically only hire people with university degrees for the job?
  8. Does the employer guarantee that they will have continuous work available to you?
  9. If the occupation requires a license, do you have the necessary license?

General Notes: The new E-3 visa for Australians combines elements of the H-1B and the E-2 and E-1 visas. Like the E-1 and E-2, E-3 applications can be filed directly at a US consulate abroad and do not require advance USCIS approval. Also, spouses of E-3s can obtain an employment authorization document when they accompany the E-3 to the US . Like the H-1B, the visa is only available to people in specialty occupations. Also, a Labor Condition Application is required and the prevailing wage must be paid. And like the H-1B, E-3s are limited in number. However, the quota of 10,000 per year has not been reached in the past. Unlike the H-1B (and like the E-1 and E-2) there is no limit on the number of years an E-3 can hold E-3 status. Note that premium processing is not yet available for those seeking to change to E-3 status from within the US . This list is not an exclusive list of all the non-immigrant visas. Currently there are over 25 major non-immigrant visa classifications and the above discussion includes only the most common ones. More information about these and other non-immigrant visas may be found at our websitehttp://www.visalaw.com/abcs.html ******

2. IMMIGRANT VISAS (“GREEN CARD”)

There are four (4) basic categories of immigrant visas:

1. Family sponsored immigrants

2. Employment based immigrants

3. Diversity immigrants

4. Refugees and Asylees

Family Sponsored Immigrants

  1. Immediate relatives – no quotas, faster processing
    1. Are you a spouse of a US citizen?
    2. Are you a child under 21 years old of a US citizen?
    3. Are you the parent of a US citizen over the age of 21?
  2. Preference categories*

First Preference – Are you the adult unmarried child of a US citizen?
Wait: five to seven years (or more for the nationals of Mexico and Philippines)

Second Preference A – Are you the under 18 child of a green card holder or the spouse of a green card holder?
Wait: Five to seven years (or more for the nationals of Mexico and Philippines)

Second Preference B – Are you the adult unmarried child of a green card holder?
Wait: Nine years (or more for the nationals of India, Mexico and Philippines)

Third Preference – Are you a married child of a US citizen?
Wait: Seven years (or more for the nationals of Mexico and Philippines)

Fourth Preference – Are you a brother or sister of a US citizen?
Wait: Eleven years (or more for the nationals of China, India, Mexico and Philippines) *The above waiting periods are based on the US Department of State’s Visa Bulletin published on January 2008. The US DOS publishes the Bulletin monthly and announces the current waiting periods therein. The above periods should be considered as estimates and for accurate waiting periods, the current Visa Bulletin must be checked. General Notes: Must file petition with the USCIS to get a place in the queue; marriage to a US citizen is scrutinized to make sure the marriage is genuine; petitions based on green card holder automatically switch to higher preference category when the green card holder becomes a citizen; cases may convert automatically from one category to another when a person’s age and marital status change; certain rights and priority dates may be retained for children when they turn 21. The Visa Bulletin can be found at http://www.travel.state.gov.

DV Visas – Green Card Lottery

The US government allocates 50,000 visas a year for people to receive through a random computer drawing. Information on the green card lottery can be found at www.visalaw.com/greencard.html. Entry applications are submitted online. The application is linked at http://www.travel.state.gov.

  1. Are you a high school graduate?
  2. Do you work in a field typically requiring two years of work experience and you have at least two years of work experience in the field?
  3. Were you born in an eligible lottery country?

General Notes: Very low odds (fewer than 1 in 40 applicants will succeed); easy to enter; entry period is limited and usually is in the last quarter of the calendar year (October to December); must have job available in US or proof of ability to support self financially. Congress is seriously considering ending the program.

Employment-Based Green Cards EB-1-1 – Persons of Extraordinary ability in the sciences, arts, education, business or athletics

  1. Are you one of the top people in your field?
  2. Can you show that you have won a major international award OR at least three of the following?:
    1. Documentation of the alien’s receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
    2. Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
    3. Published material in professional or major trade publications or major media about the alien, relating to the alien’s work in the field for which classification is sought, which shall include the title, date and author of such published material, and any necessary translation;
    4. Evidence of the alien’s participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which classification is sought;
    5. Evidence of the alien’s original scientific, scholarly or business-related contributions of major significance in the field;
    6. Evidence of the alien’s authorship of scholarly articles in the field, in professional journals or other major media;
    7. Evidence that the alien has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation;
    8. Evidence that the alien has commanded and now commands a high salary or other remuneration for services, evidenced by contracts or other reliable evidence.

General Notes: No employer required, but you’ll need to show you intend to pursue work in your field; fast category except there is multiyear backlogs for Indian and Chinese nationals (and all other nationals likely to face backlogs soon).

EB-1-2 – Outstanding Professors and Researchers

  1. Are you recognized internationally as outstanding in a specific academic area?
  2. Do you have three years experience in teaching or research in your area?
  3. Are you coming to the US to work in a tenure or tenure-track teaching position or a long term research position?
  4. Can you present evidence that you are recognized internationally in your academic field by presenting evidence of at least two of the following?:
    1. Receipt of major prizes or awards of outstanding achievement
    2. Membership in an association which requires outstanding achievement
    3. Published material in the professional publications written by others about your work
    4. Evidence of your participation as a judge of the work of others
    5. Evidence of original scientific research
    6. Authorship of scholarly books or articles in the field

General Notes: Fast category but there is multiyear backlogs for Indian and Chinese nationals and all other nationals likely to face backlogs soon.

EB-1-3 – Multinational Executives and Managers

  1. Category is virtually identical to L-1 intracompany transfer non-immigrant visa
  2. Key differences
    1. Not available to specialized knowledge employees
    2. US branch must be operating for at least a year

General Notes: Current for all nationals, but backlogs for China and India are not unusual.

EB-2 – Members of the Professions Holding Advance Degrees or People WithExceptional Ability

  1. Do you have a degree beyond a bachelors degree or do you have a bachelors degree plus five years of work experience in your field?
  2. Or do you meet the definition of exceptional ability by showing three of the following:
    1. Degree relating to the area of exceptional ability
    2. Letter from current or former employer showing at least 10 years of experience
    3. License to practice profession
    4. Person has commanded a salary or remuneration demonstrating exceptional ability
    5. Membership in professional association
    6. Recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organization
  3. Do you have a job offer and labor certification or are you basing your green card application on benefiting the nation’s interest?
  4. If you are planning on basing your green card application on a labor certification, do you work in a field where there is a shortage of American workers in the local area where you intend to work?
  5. If your claim is based on a labor certification, are you going to be paid the prevailing wage for similarly employed workers in the city where you are going to work?
  6. If your claim is based on a labor certification, has your employer attempted to recruit workers to fill the position?
  7. If your claim is based on a national interest waiver, do you meet the following tests?:
    1. The person seeks employment in an area of substantial intrinsic merit
    2. The benefit will be national in scope
    3. The national interest would be adversely affected if a labor certification were required

General Notes: Processing times vary but labor certification cases typically take one to two years and national interest cases take six months to a year and a half; Employer not required in national interest waiver cases; multiyear backlogs for Indian and Chinese nationals and all other nationals likely to face backlogs soon.

EB-3 – Skilled Workers, Professionals and Other Workers

General Notes: Available to university graduates and people working in jobs requiring a worker with at least two years experience can file this category if the employer gets a labor certification (see above). There is a sub-category for unskilled workers that does not have a work experience or education requirement, but still requires a labor certification. The EB-3 category is backlogged for multiple years for all nationalities.

EB-4 – Special Immigrants – Religious Workers

General Notes: Basically the same requirements as the R-1 religious worker non-immigrant category except that the applicant must have been working in the field for at least a two year period. No backlogs in this category as of January 2008 and none are predicted.

EB-5 – Investor Employment Creation Visa

  1. Are you investing in a business in the US ?
  2. Is the business new or are you buying into a restructured business?
  3. Are you investing at least $500,000 if the business is in a rural, high unemployment area or designated target investment area or $1,000,000 if located elsewhere?
  4. Is your investment in the form of cash, equipment, inventory, other tangible property, cash equivalents and indebtedness secured by assets owned by the entrepreneur?
  5. Is the investment “at risk”?
  6. Can you document that the source of the funds is legitimate?
  7. Will the investment result in the creation of at least ten full-time jobs for American workers?

General Notes: The USCIS scrutinizes these cases carefully. While technically the investment and job creation need not take place until after granting the green card, in practice, the USCIS will deny unless the investment and job creation take place before the application was submitted. Applicants can avoid having to show direct job creation by investing in a pre-approved regional investment center. Applicants applying through regional centers also do not need to show they are involved in management. More information about immigrant visas may be found at our websitehttp://www.visalaw.com/abcs.html

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3. ASYLEES AND REFUGEES

There are certain protected groups of aliens in the US . Most common are the asylee and refugees. Under the 1980 Refugee Act, a refugee is defined as “any person who is outside of any country of such person’s nationality . . . who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Both refugees and asylees must satisfy this definition. Indeed, in almost every way, the requirements for refugee status and asylum are the same. The most important difference is that an asylee makes their application while in the US, while the refugee applies outside of their home country, but also outside of the US .

Asylees and refugees are eligible for employment authorization and have special paths to permanent residency. There are other protected groups like the TPS (temporarily protected status) aliens, and more information about these special groups and others may be found at our websitehttp://www.visalaw.com/abcs.html

Ask Visalaw.com

If you have a question on immigration matters, write Ask-visalaw@visalaw.com. We can’t answer every question, but if you ask a short question that can be answered concisely, we’ll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.

Q – My father applied for me in 1992 and the petition was approved. I got marred in 1996. My father was still a resident alien. My father just became aUS Citizen and my priority date is now current. But since I got married I was told that the I-130 is no longer available. Will USCIS respect my priority date of 1992? My father filed a new I-130 and it was approved. But the priority date is 2000 as a married daughter of US Citizen. Can I file now using priority date of 1992? Or do I have to wait for the new application of 2000.

A – Unfortunately, when you married your 1992 petition became automatically revoked. This is because US Permanent Residents cannot petition for their married children. The fact that your father later became a US citizen did not correct this. You are unable to recapture your 1992 priority date and must wait for your 2000 priority date to become current.

However, if you are in the United States, you should retain your approval notice from the 1992 petition, as this will allow you to file your green card application under the 1998 “amnesty” as opposed to the 2001 “amnesty”, when you priority date becomes current. The 2001 law has the added requirement of proving that you were in the US on December 21, 2000, which you are not required to prove under the 1998 law.

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Q – I have been in H-1B status for the last two years. I am planning to attend graduate school again in F-1 status. After completion of graduate school, if I apply for an H-1B again, will that H1 be valid for 4yrs or will it be valid for 6yrs?

A – If you have been outside the US for more than a year, you would be entitled to six more years of H-1B status when you complete your F-1 studies. Otherwise, you’ll only be entitled to the balance of what was left on your H-1B before you moved in to F-1 status.

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Q – I have a situation which I cannot find addressed at the USCIS website. I entered the US as a baby in 1960 (from Canada ). I have an old I-151 green card. It does not have an expiration date on it. I have just become aware that I now need an I-551 Permanent Resident Card. What form do I need to fill out in order to get my I-151 updated into a I-551?

A – You’ll need to submit an I-90 form which you can find at www.uscis.gov.

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Q – I am a permanent resident and I am about to foreclose my house. Can it affect my citizenship application? Do they check my credit report?

A – I’m sorry to hear about your financial problems. Fortunately, credit problems will not factor in to your getting a green card as long as you can otherwise show you’re making an adequate income and have not accepted any type of public assistance.

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Q – I am trying to find out if J-1 visa holders are exempt from paying into FUTA or just FICA withholding on an employee’s paycheck.

A – J-1s are exempt from FUTA. You can see which groups are exempt athttp://www.irs.gov/businesses/small/international/article/0,,id=131639,00.html. Border and Enforcement News Due to an ongoing lawsuit from a coalition of labor and business organizations, the Social Security Administration announced last month that that it will delay mailing out ‘no-match’ letters this year to some 138,000 employers nationwide, the Atlanta Journal Constitution reports. The rule, first proposed by the Department of Homeland Security in August, gives employers 90 days to terminate workers whose paperwork could not be reconciled once they receive the no-match letter.

The rule is on hold after a federal district judge in California issued an injunction in October. The case is currently on appeal to the Ninth District Court of Appeals. Labor groups, including the AFL-CIO, as well as the American Civil Liberties Union argued in the lawsuit that legal workers and others might be fired unfairly. They also said the government did not consider the impact on small businesses.

The suit criticized the number of Social Security mismatches in the DHS database, which may target innocent citizens instead of the undocumented immigrants that DHS seek out. As a result, DHS said they would revise the rule. “We are in no way abandoning the no-match rule,” DHS spokeswoman Veronica Valdes said.

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In the year since Costa Mesa became the first Southern California city to have a federal immigration officer at its jail full time, 360 suspected undocumented immigrants who lived in the city have been deported, the Los Angeles Timesreports. The crackdown, introduced in 2005 by Mayor Allan Mansoor, came from support from Immigration and Customs Enforcement (ICE), who offered officers to check the immigration status of its inmates. Following Costa Mesa’s lead, Anaheim , Fullerton and Los Angeles County jails now also have ICE agents.

According to ICE statistics, 520 suspects in the Costa Mesa jail facilities were referred to the agency, and that the 360 of those deported came from these referrals. An additional 114 are “going through proceedings that will lead to their removal,” said Jim Hayes, ICE director for Southern California .

Some immigrants in Costa Mesa , including many immigrants here legally, say they now fear city police and know of others who have moved because of it. Eduardo Ramirez, manager of a Costa Mesa store that caters to immigrants, said many of his customers are nervous; he asked that his store’s name not be published. “They think that there’s a greater chance that they will be picked up by police, and that’s true for those who are legal and illegal.”

Since 2006, the City Council has focused on undocumented immigration. In that year, it closed the Costa Mesa Job Center , which helped immigrants find work, disbanded the 18-year-old Human Relations Committee, designed to address acts of discrimination, because it cost $3,700 annually and, according to council members, was too liberal. News from the Courts Mendoza-Mazariegos v. Mukasey, (9th Cir., Dec. 6, 2007) AILA InfoNet Doc. No. 08010865. In 1998, Petitioner was placed in removal proceedings in Arizona pursuant to INA §212(a)(6)(A)(i), for being present in the U.S. without inspection since 1985. Petitioner was granted a change of venue to Los Angeles . Between 1998 and 2003, proceedings were continued on a number of occasions due to conflicts on the immigration judge’s calendar and for the benefit of Petitioner’s attorney. At each hearing, the IJ instructed the attorney to submit all supporting documents at least two weeks in advance of the next scheduled hearing and also informed the attorney that a criminal background check would be required to verify Petitioner’s eligibility for cancellation of removal. In September 2003, Petitioner appeared for a hearing on his cancellation application accompanied by a new attorney whom he had retained just one day earlier. Petitioner informed the IJ that he had tried to contact his original attorney on a number of occasions prior to the hearing but had been unsuccessful. The IJ told Petitioner that earlier that day, Petitioner’s original attorney had appeared at his office and told him that he had been unable to contact Petitioner. The IJ briefly questioned Petitioner on his lack of cooperation, but repeatedly cut him off and ultimately accepted the attorney’s version of events. After a brief recess, the IJ rejected the request of Petitioner’s new attorney for a brief continuance to familiarize himself with the facts of the case. At the IJ’s encouragement, the attorney withdrew from the case but stayed in the courtroom to observe. The IJ then “engaged in an extended monologue,” lecturing Petitioner for not responding to his attorney and for not replacing him sooner. The IJ’s review of the merits of Petitioner’s cancellation application “lasted mere minutes” and resulted in a denial. The BIA affirmed the IJ’s decision to deny the continuance and rejected Petitioner’s ineffective assistance of counsel claim.

Respondents in removal proceedings are guaranteed a right to counsel at their own expense. INA §292. There must be a “knowing and voluntary waiver of the right to counsel” for an applicant to appear pro se. Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004). To obtain such a waiver, the IJ must “(1) inquire specifically as to whether petitioner wishes to continue without a lawyer; and (2) receive a knowing and voluntary affirmative response.” Id. In the present case, the court noted that not only did the IJ not inquire as to whether Petitioner wished to proceed pro se, “[i]t was clear that [Petitioner] did not want to proceed pro se from the fact that he brought another attorney to the hearing.”

The court then considered whether, despite the absence of a knowing and voluntary waiver of the right to counsel, the IJ could nevertheless refuse to continue proceedings. In Hernandez-Gil v. Gonzales, 476 F.3d 803, 808 (9th Cir. 2007), the court concluded that “[w]hen an immigrant has engaged counsel and the IJ is aware of the representation, if counsel fails to appear, the IJ must take reasonable steps to ensure the immigrant’s statutory right to counsel is honored.” The analysis of an IJ’s refusal to grant a continuance requires an individualized inquiry. Biwot v. Gonzales, 403 F.3d 1094 (9th Cir. 2005). The court noted that Petitioner did not speak English, did not seek to delay proceedings in bad faith and was only seeking a short continuance.

Moreover, the IJ/BIA decision was based on the erroneous conclusions that (1) Petitioner was responsible for his case having been previously continued multiple times; and (2) Petitioner was negligent in pursuing his case. The latter conclusion, the court noted, was based in large part on an ex parte communication with his former attorney. Finally, the court found that the IJ’s denial of the motion was driven by the reality that an additional continuance would result in a further two-year delay. The court found that none of these were sufficient reasons to deny a continuance, thus requiring Petitioner to proceed without counsel.

The court then found that Petitioner was “clearly prejudiced” by the denial of his statutory right to counsel because the IJ’s denial of relief rested principally on the fact that Petitioner had not completed a criminal background check, a task that the IJ had specifically assigned to Petitioner’s prior attorney. Moreover, Petitioner testified that he had no criminal record, and the government did not contest this fact. Had Petitioner been able to provide the requested record check through an attorney, he would have been given the opportunity to demonstrate hardship to his family. The petition for review was granted. News Bytes On December 26th, USCIS began requiring use of a new Form I-9 Employment Eligibility Verification Form. The Form I-9 must be completed by every employee in the country in order to demonstrate to an employer or certain recruiters and referrers the employee’s identity and that the employee is authorized to work in the United States .

The Form I-9 is a creation of the 1986 immigration bill and has rarely changed over the years. Back in 1996, Congressed approved legislation reducing the number of documents that are acceptable to prove identity and employment authorization. The legacy INS passed a regulation carrying out the 1996 law, but it has taken ten years to actually update the form.

On June 5, 2007, USCIS released the new Form I-9 and began requiring that this new version be used beginning December 26, 2007.

Five documents have been removed from List A, the list of documents that serve to prove both identity and employment eligibility. They are

- Certificate of US Citizenship (Form N-560 or N-561)
- Certificate of Naturalization (Form N-550 or N-570)
- Alien Registration Receipt (Form I-151)
- Unexpired Reentry Permit (Form I-327)
- Unexpired Refugee Travel Document (Form I-571)

An unexpired Employment Authorization Document was added to the list of acceptable List A documents and the other employment cards (I-688, I-688A, I-688B and I-766) have been consolidated as one item on List A.

List A also changed to reflect that when an I-94 is coupled with an unexpired foreign passport, the I-94 must contain an endorsement showing the non-immigrant is authorized to work for the employer completing the Form I-94. The old Form I-9 only mentioned that the I-94 should indicate an employee had unexpired employment authorization, but did not tie that status to a particular employer.

Employers may now only accept documents contained in the instructions on the new form. Employers re-verifying Forms I-9 for current or re-hired employees must use the new version of the form for re-verification. The employee would not have to fill out a new form, however. Rather, the employer would fill out the Section 3 re-verification section in the new form, write the employee’s name in Section 1 and attach the new form to the old Form I-9 in the employee’s Form I-9 file.

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Congress has delayed a bill which would require people entering the US fromCanada , Mexico or the Caribbean , to show a passport when arriving by land or sea. According to CNN, the bill, which if signed into legislation, would not require visitors from these countries to show a passport if entering the U.S.by land or sea until June 2009.

Despite the one-year delay, the Department of Homeland Security plans to require most people from the U.S. , Canada , Mexico , and the Caribbean to present a birth certificate or some other document establishing citizenship when they enter the U.S. on or after January 31, 2008.

The delay stems from Sen. Patrick Leahy (D-VT), who halted the requirement by one year by amending a budget bill Congress passed last week. The passport requirement, according to Leahy, would hurt commerce between theU.S. and Canada while doing little to safeguard the country. Leahy told CNN that the terrorists are “not going to come across with a valid passport” and that the passport requirement will only “stop the people who want to come to the United States to spend money and the people who want to involve themselves with business or travel, education, healthcare – whatever – between the U.S. and Canada,” he said. “It won’t deter a single terrorist.” International Roundup In a ruling that could affect up to 1,000 foreigners who are parents of Irish-born children, the Supreme Court of Ireland has overturned a landmark High Court ruling which found that the rights of five Irish-born children had been breached when their parents were refused permission to remain there under the Irish-Born Child Scheme.

The Irish Independent reports that the five-judge court said the Minister for Justice had acted correctly when he sought to deport the parents and said their challenge to the minister’s actions was ‘misconceived’ It also said the Constitutional and European Convention rights of the foreign-national parents and their children are unaltered by its decision.

The ruling was greeted with dismay by the parents, who now face deportation, and immigrants’ rights groups who criticized the Government for failing to introduce an independent appeals mechanism for the parents. The Immigrant Council of Ireland said the Supreme Court decision effectively meant an Irish child’s rights would now not need to be considered until his or her parent was threatened with deportation.

*****

Visitors to China will no longer have to fill in health declaration forms from next month as a way of simplifying entry procedures ahead of next year’s Beijing Olympics, according to Chinese state. Instead, visitors would have to tell border officials of any illness. ‘The move aims to simplify immigration procedures and improve efficiency,’ it quoted a joint issued by the national quarantine watchdog and civil aviation regulator as saying.

The China Daily says that the health forms were started during the outbreak of Severe Acute Respiratory Syndrome (SARS), which began in the southernprovince of Guangdong in late 2002. Passengers would still have to fill in entry and customs declaration forms, the newspaper added.

‘The complicated procedures have led to growing public complaints as passenger flows increase rapidly,’ it said. Olympic organizers expect 70 million visits by foreigners next year, up from 44 million in 2006. “The rapid increase in passenger traffic poses a challenge. So we’re making great efforts to simplify immigration procedures,” the report quoted quarantine official Xia Wenjun as saying. Legislative Update A new Arizona law, considered to be among the nation’s toughest against employers who hire undocumented immigrants, went in to effect Jan. 1 after federal judges last week refused to block it. The New York Times reports that the US Court of Appeals for the 9th Circuit deferred on a decision on an injunction until after the Jan. 19 hearing by Federal District Court Judge Neil Wake’s ruling on the case, provided a “decision is reached with reasonable conference.” Wake struck down the injunction, stating that the law would not burden businesses in the short run.

Julie Pace, legal council for the business and civil rights groups that filed the suit, said they accepted the decisions and would now focus on Judge Wake’s hearing, but she predicted that having the law go into effect, with the possibility it could later be rejected, would cause more confusion.

For more information on the new Arizona law, see our analysis from our last issue at http://www.visalaw.com/07dec2/index.html.

*****

A new North Carolina law that went into effect last week allows police officers to expedited the process of arresting undocumented immigrants and begin removal proceedings. Charlotte , NC ’s News 14 reports that the 287 G program now requires all sheriff’s deputies to ask anyone arrested for a felony or for driving impaired if they are legal US citizens.

Mecklenburg County Sheriff George Wilhelm says his department already asks inmates about their citizenship, but this is the backup he needs from the state. He says he believes that about 5 percent of the inmate population, a number he says is too much. “Illegals(sic) in our country is a problem,” said Wilhelm.

The Latin American Coalition in Charlotte worries that their clients are being specifically targeted with this new law. “There are certainly a lot of other individuals that are here from the other parts of the world that are undocumented and committing crimes,” said Angeles Ortega-Moore, coalition director.

Sheriff Wilhelm hopes the law will show undocumented immigrants that North Carolina is tough on crime and prevent them from moving here. Ortega-Moore does not expect the law to stop them from moving to the state. “This doesn’t really solve anything,” said Ortega-Moore. “Immigration reform will.”

*****

Indiana appears to be the next state to seriously consider legislation that would place the duty of screening undocumented immigrants on businesses. The Indianapolis Business Journal reports that such a bill is likely to be introduced in the state’s next General Assembly.

This comes at a time when Indiana ’s foreign-born population increased 41.3 percent, to 263,607, between 2000 and 2006, according to the Washington D.C.-based Migration Policy Institute. These figures rank the state 10th in the nation.

Notes from the Visalaw.com Blogs

Greg Siskind’s Blog on ILW.com

  • Immigration Voice Launches Administrative Changes Campaign
  • Pass the Microphone to the People in the Middle
  • Who’s Gonna Build Your Wall?
  • Immigrant of the Day: Glenda Bailey – Fashion Designer
  • USCIS to Hire Back 700 Retired Workers to Process Citizenship Applications
  • Deport Pearce?
  • Travel Industry Pushes to Get International Tourist Issues in to Presidential Campaign
  • Will McCain’s Immigration Views Help Him Win Florida?

The SSB Employer Immigration Compliance Blog

  • Conservative Commentator: Arizonans Aren’t Rushing to Enforce New Law
  • No-Match Letters Won’t Be Sent out by SSA
  • Fence Builders Forfeit $5 Million as Fine for IRCA Violations
  • Maryland Employers Convicted for Hiring Unlawful Workers
  • New Tennessee Law Means It’s Time for Businesses to Get I-9s in Order
  • Nebraska Bill Would Target Employers’ Tax Breaks
  • Minnesota and Indiana Consider Business License Revocation Laws for Employers of Unauthorized Workers

Visalaw Health Blog

  • Las Vegas Sun Follows Up on J-1 MD Exploitation Series
  • Arizona Hospitals Protest Birth Certificate Proposal
  • Report: Undocumented Latinos Access Health Care Less than the Native Born
  • More Links to Las Vegas Sun J-1 Physician Abuse Stories
  • Nurse Immigration Measure Included in Senate Budget Bill

Visalaw International Blog

  • 2007 – Spain’s Year in China
  • Spanish Government and Unions Sign an Agreement to Improve Working Conditions for Foreign Personnel Working in Spain
  • US Congress Delays Passport Requirement
  • Canada: Foreign Adoptions Made Easier
  • Right-Wing Christoph Blocher Removed from Swiss Government
  • Canada: Sergio R. Karas Quoted in Globe and Mail Newsletter

Tech Notes – The Immigration Lawyer Blog

  • The World of the Future: 1999
  • How to Dispose of an Old Cell Phone
  • Voltaic Backpack: Your Bag Becomes Your Power Source
  • AMLAW Technology Marketing Slides

Visalaw Fashion, Sports, & Entertainment

  • UK Could Deport African Soccer Star
  • Art Against the Wall
  • Finland’s Top Musician Tells of Border Entry Ordeal
  • US and UK Sports Firms Team Up to Promote Athletes in Both Regions

Campaign ’08

Hispanic activists who once viewed former Arkansas Gov. Mike Huckabee as a voice of moderation on immigration say they have been taken aback by the changed stance he’s adopted as a presidential candidate. According to The Associated Press, Huckabee, while governor, attracted great support from Hispanic leaders by denouncing federal immigration raids and suggesting that some anti-undocumented immigration measures were driven by racism. During his tenure, he also advocated making children of undocumented immigrants eligible for college scholarships; this particular issue has become an issue from his presidential rivals, who accuse him as soft on immigration.

The stances made by Huckabee during the presidential election has taken a more stern tone; this month he unveiled a plan to seal the Mexican border; he has touted the support for his candidacy from the Minuteman Project, an anti-immigration group whose volunteers patrol the Mexican border. His new tone has made Hispanic leaders concerned. “He’s trying to be tougher on immigration than we’ve ever seen him before,” said Carlos Cervantes, theArkansas director of the League of United Latin American Citizens. “That’s kind of worrisome now. He was willing to work with the communities. I don’t see that he’s willing to work with us now.”

Former LULAC President Hector Flores said he admired Huckabee’s leadership on immigration. “I thought he was doing the best thing to chart the course forArkansas in a more moderate fashion, being open to new ideas.” However,Flores said he’s troubled by Huckabee’s more recent stance. “I think he’s getting bad advice,” Flores said. “I don’t know who he’s listening to. That’s not the progressive attitude that I sensed and observed two years ago inArkansas from Governor Huckabee.”

*****

The Chicago Tribune recently collected the stance on immigration of every presidential candidate, via their websites:

Republicans:

· Rudy Giuliani: Favors path to citizenship for some undocumented immigrants, supports border fence.

· Mike Huckabee: Favors border fence, rules out a pathway to citizenship unless undocumented immigrants first return to country of origin. AsArkansas governor, backed in-state tuition for illegal immigrants.

· John McCain: Co-sponsored Immigration Reform Act of 2006, which would provide a path to citizenship for some undocumented immigrants and fence construction along part of the U.S-Mexico border.

· Mitt Romney: Opposes any ‘special pathway’ to legal status, favors fence.

· Fred Thompson: Opposes path of citizenship for undocumented immigrants, favors fence.

· Ron Paul: Favors deportation of undocumented immigrants, wants to end birthright citizenship

Democrats

· Barack Obama: Voted for Immigration Reform Act of 2006

· Hillary Clinton: Voted for Immigration Reform Act of 2006.

· John Edwards: Favors path to citizenship for some undocumented immigrants and border fence in some areas.

· Dennis Kucinich: Favors legal status for “hard-working, tax-paying undocumented workers.”

USCIS Reaches H-2B Cap for Second Half of Fiscal Year 2008 U.S. Citizenship and Immigration Services (USCIS) announced this week that it has received a sufficient number of petitions to reach the congressionally mandated H-2B cap for the second half of Fiscal Year 2008 (FY2008). Via press release, USCIS is hereby notifying the public that January 2, 2008 is the “final receipt date” for new H-2B worker petitions requesting employment start dates prior to October 1, 2008. The “final receipt date” is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 33,000 H-2B workers for the second half of FY2008.

The cap was reached with existing totals for that day. USCIS will reject petitions for new H-2B workers seeking employment start dates prior to October 1, 2008 that arrive after January 2, 2008.

USCIS will apply a computer-generated random selection process to all petitions which are subject to the cap and were received on January 2, 2008. USCIS will use this process to select the number of petitions needed to meet the cap. USCIS will reject, and return the fee, for all cap-subject petitions not randomly selected. Petitions for workers who are currently in H-2B status do not count towards the congressionally mandated bi-annual

H-2B cap. USCIS will continue to process petitions filed to:

  • Extend the stay of a current H-2B worker in the United States;
  • Change the terms of employment for current H-2B workers and extend their stay; or
  • Allow current H-2B workers to change or add employers and extend their stay.

Pew Survey: Most Latinos Fear Raids, Deportation As the federal government steps up measures on immigration enforcement, Latinos are increasingly concerned about deportation, according to a survey released last week. A little more than half of Latinos worry that they, a relative or close friend could be deported, according to the survey conducted by the Pew Hispanic Center , a nonpartisan research organization inWashington D.C. The survey of 2,003 randomly selected Latino adults asked their opinions on deportation, work-site raids and other issues related to immigration enforcement.

According to the survey’s results, nearly two-thirds of the nation’s Latinos say the battle over immigration has made life more difficult for all Latinos, including those here legally. Over half said they had experienced at least on negative impact from a list that included not finding work, not finding housing more demands to prove immigration status, reluctance to use government services, and deciding not to travel out of the country.

Unsurprisingly, the Pew survey suggested far more Latinos oppose increased enforcement than non-Latinos; a separate national poll of 1,009 adults surveyed the general population to provide a comparison. About 75 percent of Latinos disapproved of workplace raids. About 51 percent of non-Hispanics in a separate survey said they support the raids, which have increased almost tenfold in six years. “We do not conduct random sweeps,” ICE officials said in a written response to the Pew survey. “However, anyone in the country runs the risk of being detained and placed into removal proceedings if encountered by law enforcement.”

Jose Calderon, a professor of Sociology and Chicano studies at Pitzer College , echoed the survey’s findings that discrimination is a major problem affecting Latinos. “A lot of the enforcement that is being aimed at immigrants is also affecting legal residents and citizens,” Calderon said. “That is turning a large majority of Latinos more strongly in favor of policies that support immigrants.”

The Pew Hispanic Center report is available online at:http://pewhispanic.org/reports/report.php?ReportID=84  

January 29, 2008 Openers Workplace enforcement of immigration laws is about to come back in to the news as we have received word that the Department of Homeland Security will release a new version of the Social Security No Match rule possibly this week. The rule is the sort of a great deal of anxiety for the business community which fears the economic havoc it could wreak as well as for those who worry about the reliability of the Social Security Administration to resolve problems quickly enough to prevent innocent people – often US citizens – from losing their jobs.

Some of you who have not been following the no match saga closely might need a refresher. All employers in the US are required to verify the identity and employment authorization of their employees. To accomplish this, the government requires employers to have all of their workers complete Form I-9 on the day they are hired. Employees must present proof of their identity and eligibility to work legally in the US and the documentation must be included on a list updated periodically by USCIS. The vast majority of American workers prove identity and employment authorization by showing a combination of a driver’s license and a Social Security card.

Where things get tricky for employers is when an employee present what looks like a valid Social Security document and then it turns out later that the number on the card and the name of the employee don’t match. The name might not match because of a clerical error on the part of the employee, employer or Social Security Administration. But it may very well be that the employee presented a false document.

Several years ago, the Social Security Administration started sending out letters to employers when they discovered “no matches” at a particular employer. Initially, the goal of these letters was merely to figure out how to properly account for the billions of dollars piling up in a no match account at the SSA. But it didn’t take long to discover that the letters had the effect of causing workers using false documents to leave a company in droves. The rules relating to what an employer should do when receiving such a letter have been highly confusing with employers not sure exactly what they needed to do with the letters and what impact the letters would have on an employer being considered to have knowledge that their employees are not authorized to work in the US.

As part of the get tough enforcement strategy the White House is putting in to place, a proposed no match rule was released in 2006 that would spell out very clear rules on what an employer should do when receiving a no match letter. Employers would be required to take certain steps in a specific time frame or they could be found liable for having constructive knowledge of an employee’s lack of legal status should it turn out that a worker is not authorized to be employed in the US.

In August 2007, the Department of Homeland Security released a final rule that was to take effect in September 2007. But a coalition of labor, business and civil liberties groups filed suit to stop the rule from taking place and a judge issued an order stopping the rules from going in to effect until after a ruling at trial. Rather than fight, DHS chose to instead re-draft the rules to meet the judge’s concerns and it is that new version of the rules that is supposed to be released this week. We don’t know exactly what will be in there, but expect some improvement in the area of what to do when the SSA has not cleared up a problem in the 90 day timetable contemplated under the previous version of the rule.

As we did in August, SSB will be releasing a special newsletter summarizing the new rule for our readers. I hope to have it in place on the same day the rule is released.

*****

In firm news…

I will be speaking at several upcoming live and telephonic programs. They include

February 5-6 – Webcredenza – Employer Immigration Compliance two part lunchtime teleconference (recorded for later distribution)

February 21st – American Immigration Lawyers Association – teleconference on no match letters and related topics

February 22nd – Tennessee Bar Association – Law Technology 2008 – Nashville– Internet marketing -https://www.tnbaru.com/CLE/catalog_course_details.php?course=5114 March 6th – AILA DC Chapter – Washington – Winning the Championship: Overcoming the Obstacles Facing Immigration Lawyers Today

March 15th – American Bar Association Techshow – Chicago –www.techshow.com *****

Finally, as always, if you are interested in becoming a Siskind Susser Bland client, please feel welcome to email me at gsiskind@visalaw.com or contact us at 800-748-3819 to arrange for a telephone or in person consultation with one of our lawyers.

Regards, Greg Siskind The ABC’s of Immigration: Comparison of E-2 and L-1 Visas  

Visa Type E-2 L-1
Basis of Visa Treaty Investor Intracompany Transfer

 

Requirements
  • The investor, either a real or corporate person, must be a national of a treaty country and all applicants for the E-2 visa must be the same nationality as the investor.
  • The investor has invested or is in the process of investing in the US company.
  • The investor must have control of the funds, and the investment must be at risk in the commercial sense. Loans secured with assets of the investment enterprise are not allowed.
  • The investment must be a real operating enterprise. Speculative or idle investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment.
  • The investment must be substantial. It must be sufficient to ensure the successful operation of the enterprise. The percentage of investment for a low-cost business enterprise must be higher than the percentage of investment in a high-cost enterprise.
  • The investment may not be marginal. It must generate significantly more income than just to provide a living to the investor and family, or it must have a significant economic impact in the United States .
  • The visa applicant, if the principal investor in the company, must be in a position to “develop and direct” the enterprise.
  • If the visa applicant is not the principal investor in the company (i.e. an employee of the company), he or she must be employed in a supervisory, executive, or highly specialized skill capacity. Ordinary skilled and unskilled workers do not qualify; and
  • Applicant intends to depart theUnited States when the E2 status terminates.

 

E-2 Treaty Countries:

Albania, Argentina, Armenia, Australia, Austria, Azerbaijan, Bahrain, Bangladesh, Belgium, Bolivia, Bosnia-Herzegovina, Bulgaria, Cameroon, Canada, Chile, China (Taiwan), Colombia, Congo, Costa Rica, Croatia, Czech Republic, Ecuador, Egypt, Estonia, Ethiopia, Finland, France, Georgia, Germany, Grenada, Honduras, Iran, Ireland, Italy, Jamaica, Japan, Jordan, Kazakhstan, Korea (South), Kyrgyzstan, Latvia, Liberia, Lithuania, Luxembourg, Macedonia, Mexico, Moldova, Mongolia, Morocco, Netherlands, Norway, Oman, Pakistan, Panama, Paraguay, Philippines, Poland, Romania, Senegal, Singapore, Slovak Republic, Slovenia, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Trinidad & Tobago, Tunisia, Turkey, Ukraine, United Kingdom, Yugoslavia.

 

  • The applicant must have been continuously employed abroad for one year of the last three for a parent, affiliate, branch or subsidiary of a USemployer. Time spent in theUS will not count towards the one year requirement.
  • The foreign company and theUS company must have a “qualifying relationship.” Both the US and the foreign company must have common majority ownership, or, where there is less than majority ownership, common control by the same person or entity.
  • If the US company has less than one-year of operation, additional information must be submitted about the plans for the new office, such as proof that office space has been obtained, that the applicant has had the appropriate experience with the foreign company and that the foreign company will remain in existence during the full period of the applicant’s transfer to the US. Extension of the visa will require the UScompany to demonstrate that it has proceeded with the plans outlined in the initial petition.
  • The applicant must be transferring to the US as a manager, executive or specialized knowledge employee

o An “executive” is one who directs the management of the company or a major part or function of the organization, and has a supervisory role in the organization (such as President, Vice President, Controller).

o A “manager” directs the organization, a department, or a function of the organization.

o A “specialized knowledge employee” has a special knowledge of the company’s products and their applications in world markets or an advanced or proprietary knowledge of the company’s processes or procedures.

  • The applicant must intend to depart the US when his or her stay is over. But the applicant may also pursue permanent residency simultaneously without a negative impact on the ability to keep or extend an L visa.
Application Process
  1. Submit application to US Embassy abroad to register company as a treaty company.
  2. Primary applicant attends visa interview at US Embassy for E-2 visa. Dependants may apply simultaneously or following the primary applicant’s approval.

 

**If an individual is in the US in a valid status, they may submit a petition to change to E-2 status to USCIS. However, upon the individual’s first departure from the US , steps 1 and 2 above must be completed before re-entry to the US .

 

  1. Submit petition to USCIS.
  2. Upon approval, applicant attends interview at US Embassy abroad for L-1 visa application. Dependants may apply simultaneously or following the primary applicant’s approval.
  3. Some companies may qualify for Blanket L-1 status, which eliminates the USCIS petition following initial approval. L-1 visa applicants proceed directly to the visa application interview.
Processing Times Processing time for application to register company varies among Embassies (typically 1-6 months). Visa interview availability also varies (typically 2-4 weeks). Processing times constantly change, but are usually 2-3 months. May submit application to USCIS for premium processing (15 days) for an additional fee. Visa interview availability also varies (typically 2-4 weeks).

 

Dependants Spouses and minor children (under 21) of E-2 visa holders also receive E-2 visas. Spouses with E-2 visas may apply for work authorization upon arrival in the US . Spouses and minor children (under 21) of L-1 visa holders receive L-2 visas. Spouses with L-2 visas may apply for work authorization upon arrival in the US .

 

Length of Visa New company registration and primary applicant’s visa usually approved for 2 years initially. Subsequent re-registration and visa applications (depending on nationality) typically approved for 5 years.

 

New office L-1s approved for one year. Renewal L-1s approved in 3 year increments.
Maximum stays None, provided the individual and US company continue to meet all E-2 requirements. 7 years if admitted as a manager/executive; 5 years if admitted as a specialized knowledge employee.

 

Fees $131 for primary applicant and registration; Visa application fee of $131 for all additional applicants. Reciprocity fees (visa issuance fees) vary by nationality. Applications submitted to USCIS (for change of status to E-2) have additional fees. $320 USCIS filing fee, $500 anti-fraud fee. Premium processing fee of $1000 is optional. Visa application fee is $131 per applicant. Reciprocity fees (visa issuance fees) vary by nationality.

Ask Visalaw.com

If you have a question on immigration matters, write Ask-visalaw@visalaw.com. We can’t answer every question, but if you ask a short question that can be answered concisely, we’ll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.

Q – We applied for my aunt’s (62 years of age) US citizenship in August 2007. The doctor was not finish completing her N-648 medical waiver of the civics/English exam, so we just sent in the N-400 naturalization application. The N-648 was completed three weeks ago. Since I hear that the interview will take about 12 to 16 months now, how can I send this N-648 to the USCIS as a supplement?

A – 8 CFR 312.2(b)(2) states, “Form N-648 must be submitted as an attachment to the applicant’s Form N-400, Application for Naturalization.”

However, the USCIS permits the filing of an N-648 at the time of interview. The N-648 will need to be updated by that point since the N-648 is only valid for a 6 month period. The key issue is to be certain the doctor has made the nexus between the illness and inability to learn English.

*****

Q – How long can a spouse wait to come to USA once the consulate grants permanent residency?

A – One has six months to make entry on an immigrant visa once it is approved by a consulate.

*****

Q – Is it necessary to have all employees complete an I-9 every year?

A – No. You only fill out the I-9 at the time of hire. Section 3 is completed by the employer whenever a work authorization document requires reverification. There are occasions when employees leave and return to an employer and in some cases a new I-9 is required.

*****

Q – I had a question regarding H-4 visas. I am currently on an H1B. My wife and i recently got our passport stamped with multiple entry visas. Both of our visas are valid until July of 2009. Her H-4 status on the I-797 is only until August of 2008. Will she need to renew her H-4? And if so, will she have to go and get her multiple entry visas again? Or will her visas on her passport that are valid until 2009 keep her in a good status.

A – You wife should be eligible for an I-94 with the same expiration date as your I-94. If your I-94 expires on or before August of 2008, then there is no need to correct your wife’s I-94. If your H-1B I-94 is valid until July of 2009, then her H-4 I-94 should also be valid until July of 2009. If you feel that your wife should have been issued an I-94 valid until July 2009, you can request a corrected I-94 at your local Customs and Border Protection (CBP) office. You might call them first since most offices only have certain times during the week when they accept such requests.

If your wife plans to travel outside the US before August of 2008, then you may not need to request a corrected I-94, as she will receive a new I-94 upon reentry into the US . Alternatively, you can file for an extension of your wife’s status. However, she is not eligible for an extension beyond the expiration date on your I-94. If you request an extension of status, her H-4 visa will continue to remain valid until July of 2009.

Your wife’s status in the US is only valid until the date of expiration issued on the I-94, even if the visa is valid for a later date. Staying in the US beyond the I-94 expiration date will result in your wife falling out of status and her visa being revoked.

*****

I am brother of a US Citizen. I plan to petition for immigration based on being a sibling of a citizen. Can I file Form I-130 together with Form I-485 and Form I-765? Or do I have to file Form I-130 alone and wait for its approval? If I file the I-130 alone, how can I get an employment card before I get the green card?

Siblings of US citizens have to wait at least a dozen years for a green card to come up in the F4 category (based on current backlogs) and one is not entitled to file for adjustment until the applicant has a visa number immediately available. That means filing the I-130 and then waiting the dozen or so years. After that, you would be able to file the I-485 and work and travel documents. Sorry for this unfortunate news.

Border and Enforcement News

The New York Times reports that federal authorities plan to identify and deport more than 200,000 immigrants this year who are serving time in prisons across the country, according to the top Immigration and Customs Enforcement (ICE) official. The effort to speed the deportation of foreign-born criminals is part of a new campaign by ICE to help federal and states prisons reduce the costs of housing immigrants, says Julie Myers, head of ICE said last week in an interview.

Myers says that in 2007, ICE brought formal immigration charges against approximately 164,000 immigrants in prisons. Many of those immigrants are still in the United States and are slated for deportation this year. By comparison, in 2006, ICE identified 64,000 immigrants behind bars, most of whom were deported. Myers notes that by stepping up deportation efforts, “a significant burden” will occur both to ICE’s detention centers.

Myers specified that in 2008, ICE would also intensify the crackdown with increased criminal prosecutions of employers who knowingly hire undocumented immigrants. “There should be more of those,” she said of such prosecutions. Last year, the agency totaled $30 million in fines and forfeitures against employers, but fewer than 100 executives or managers were arrested, compared with 4,100 unauthorized workers.

*****

Facing pressure from civil rights advocates, US Immigration and Customs Enforcement (ICE) announced, via press release, that immigration officials will no longer sedate deported foreign nationals against their will without a federal court order. According to The Los Angeles Times, the press release clarifies that ‘There are no exceptions to this policy. Emergency or exigent circumstances are not grounds for departures from this policy.’ The nationwide policy took effect immediately from the press release’s Jan. 9thdate.

The change comes seven months after the ACLU of Southern California sued the government to stop the practice. “We’re very pleased that the government has finally agreed to stop forcibly drugging people without court orders,” ACLU attorney Ahilan Arulanantham of the new policy. “It appears that if the policy is implemented, the government will finally put a stop to this shameful, barbaric chapter of our immigration history.”

This is the second major change to the government’s policy on sedating immigrants: in June of last year, ICE amended their policy, but still allowed forced sedation without a court order in an emergency. This new change, however, requires a court order every time medication is to be given against a deportee’s will.

*****

Last week, US Immigration and Customs Enforcement (ICE) officials publicly posted newly implemented standards set for immigrant women and children held in confinement facilities, The Austin American Statesman reports. The standards seek to address and clarify education, discipline, use of force, medical care, strip searchers, sexual assault and prevention, detainee counts and other issues. The standards were first approved Dec. 21 and are currently now in effect.

The new standards came about from a settlement agreement reached last August in federal lawsuits filed in Austin by the ACLU and the University of Texas Law School immigration clinic. Attorneys for several children confined at the T. Don Hutto residential facility in Taylor, Tx. contended in their lawsuits that conditions there were inhumane and violated minimum standards for minors in immigration custody, set under a 1997 settlement approved by the U.S. Supreme Court.

“We commend the Department of Homeland Security for drafting standards that will improve these facilities,” said Michelle Brane with the Women’s Commission for Refugee Women and Children. “However, we continue to be concerned with many provisions of the standards, particularly that they allow children to be disciplined based on adult prison protocol, including the use of restraints, steel batons and strip searches.”

Brane, the director of the women’s commission’s detention and asylum program, said the new standards take into account many recommendations made by the commission and other immigrant advocacy groups. She said they included limiting strip searches on minors, and provisions that children not be awakened or disturbed during night census counts unless urgent circumstances exist.

News from the Courts

Niang v. Mukasey, (2d Cir. Dec. 19, 2007)

We hold that where, as here, an applicant’s testimony is otherwise credible, consistent and compelling, the agency cannot base an adverse credibility determination solely on a speculative finding that the applicant has submitted inauthentic documents in support of his application. Where an applicant establishes past persecution, but the agency finds a fundamental change in country conditions, the agency must provide a reasoned basis for its determination unless historical facts support its conclusion.

Petitioner, a citizen of Mauritania, sought asylum, withholding of removal and Convention Against Torture (CAT) relief based on his claim that he and his family were violently expelled from Mauritania on account of their race. Petitioner testified that “white militaries” came to his family home, beat and tied up his father, killed his brother, and jailed his family for 10 days. The Mauritanian authorities told his family that they did not belong in Mauritaniaand made them sign papers promising never to return or they would be killed or imprisoned. Petitioner and his family then crossed the river into Senegaland resided in a refugee camp. Petitioner’s father died two months later from the beating he had received in Mauritania and his mother died a year after. In 1994, when Petitioner was 16 years old, he left the refugee camp and traveled to Dakar , Senegal where he did menial jobs for a wealthy family who paid him in food. Petitioner eventually made his way to the United States using a passport that belong to a member of the wealthy family and entered theUnited States with an F-1 visa. He then mailed the passport back to Senegal .

In support of his application, Petitioner submitted a copy of his Mauritanian identity document and his Senegalese refugee card. The Mauritanian card lists Petitioner’s name, his place of birth and his date of birth (July 30, 1977) and is printed in Arabic and French. It was issued in 1989 and lists Petitioner’s profession as “comercant.” It contains a photograph of Petitioner, a fingerprint, and a signature. Petitioner stated that the card was obtained by his father from the government of Mauritania . When asked why the card listed Petitioner’s profession as “comercant” or businessman when he was only 11 years old, Petitioner stated that his father was a merchant. He stated that he carried the document in the refugee camp until it became torn and faded. When he took it to the head of the camp, the document was taken from him, a new picture was put on it and Petitioner was given a photocopy, not the original. Petitioner stated that he was about 16 years old when the new picture was taken. The Senegalese document Petitioner submitted contained his name, date and place of birth, a photograph of Petitioner, and a stamp dated January 31, 2002. Petitioner stated that he was first issued the card when he arrived in the refugee camp and generally left it with the head of the camp so that he would not lose it. Petitioner stated that he was about 12 years old in the picture, but the government attorney alleged that he had a mustache in the photograph, which Petitioner denied. When Petitioner applied for asylum in the United States , he remembered the card and asked a friend to retrieve it for him from the camp.

The immigration judge rejected Petitioner’s claims for relief and ordered him deported. The IJ pretermitted Petitioner’s asylum claim because it was filed more than one year after his entry into the United States and Petitioner was unable to show any exceptions. With regard to his withholding and CAT claims, the IJ found that Petitioner failed to meet his burden of proof because of an adverse credibility finding made by the IJ. The IJ noted that this assessment was not based on demeanor, but was based on the identity documents Petitioner submitted in support of his claim. The IJ doubted that the documents were genuine for four reasons: 1) the IJ doubted Petitioner’s story about how he retrieved the document, 2) the IJ doubted that Petitioner was 12 years old in his Mauritanian identity document, 3) the Mauritanian document had clearly been altered, though the IJ found it was conceivable that the changes were made in the refugee camp, and 4) the Mauritania document indicated that Petitioner was a businessman. The IJ found that based on these doubts, Petitioner had not testified truthfully about the documents. Lastly, the IJ held that assuming Petitioner had suffered past persecution, conditions in Mauritanian had not fundamentally changed such that Petitioner life or freedom would no longer be threatened. The BIA adopted and affirmed the IJ’s decision to pretermit the asylum applicant. The Board also upheld the IJ’s finding that Petitioner did not meet his burden of proof as to his claims for withholding and CAT. The BIA also noted that conditions in Mauritania have “improved dramatically, lessening the likelihood of persecution” in the future.

On review, the Second Circuit held that the IJ and BIA could not base an adverse credibility determination solely on a speculative finding that the applicant had submitted inauthentic documents in support of his asylum application. The court found several errors in the IJ’s reasoning. The court found that the IJ mischaracterized Petitioner’s testimony as to how he had come to possess the Senegalese refugee document. Petitioner had not testified that he had never seen the document. The IJ also misunderstood or misrepresented Petitioner’s age in the photographs on the documents. The IJ’s finding that the Mauritanian identity document had been altered was consistent with Petitioner’s testimony that it had been altered by the head of the refugee camp. Lastly, the IJ failed to considered Petitioner’s explanation for why his profession was listed as businessman on his Mauritanian identity document. The court held that the tenuous suspicions raised by the IJ could not be grounds for an adverse credibility finding.

The court rejected the government’s argument that a remand would be futile because Petitioner failed to provide adequate corroborating evidence in support of his claim.

With regard to the BIA’s finding of a fundamental change in country conditions in Mauritania , the court held that the BIA provided insufficient reasoning to support its finding. The court stated that the agency’s rejection of Petitioner’s withholding and CAT claims could not be upheld on this alternate ground. The court distinguished this case from its previous precedent allowing for a finding of changed conditions without the IJ making specific findings, citing Hoxhallari v. Gonzales, 468 F.3d 179, 187 (2d Cir. 2006). The court held that in Petitioner’s case there was clearly no “indisputable historical event” which supported the IJ’s finding. The court held that the BIA failed to provide a reasoned basis for its decision and that the BIA’s decision was not supported by substantial evidence.

The petition for review was granted.

News Bytes

A new Bush administration plan to create national standards for driver’s licenses has drawn heavy criticism from civil liberties groups, lawmakers of both political parties, governors and the travel industry, The Washington Postreports. The new program, known as Real ID, which aims to screen out potential terrorists and uncovering undocumented immigrants, has faced criticism that it would be too costly to implement, could still be easy to forge, and would allow private companies to access personal data of most U.S. citizens.

Although the Real ID Act will take effect this May, the Bush administration made the official announcement last week that states will have until May 2011 before they begin issuing licenses that meet the department’s new guidelines. “DHS has kicked the can down the road to the next administration, and conceivably the next two or three administrations,” said Barry Steinhardt, a lawyer with the ACLU. Already, 17 states have said they would either refuse to issue the new licenses or have asked Congress to repeal a 2005 law that required states to collect and store additional data on driver’s license applicants, such as birth certificates, Social Security numbers, and home addresses.

At a news conference shortly after the timetable announcement, Homeland Security Secretary Michael Chertoff warned Georgia and Washington, two states who have refused to comply with the program, may be subjected to additional security checks or prevented from boarding flights once the program begins in May. The ACLU called Chertoff’s warning an empty threat designed to pressure states to join the program. “The airline industry is not going to allow the federal government to prevent citizens of noncompliant states from getting on airplanes,” said ACLU senior legislative counsel Timothy Sparapani. “1.8 million people fly everyday and a sizable number leave from airports like Atlanta ’s Hartsfield Airport , which is one of the busiest in the country.”

*****

The Bush administration has given approval for US Citizenship and Immigration Services (USCIS) to rehire retired workers in an effort to reduce a backlog of immigration applications that is preventing thousands of people from becoming U.S. citizens in time to vote in November’s elections, according to the Star Tribune.

Sen. Charles Schumer, D-N.Y., was the first to pressure USCIS to seek permission to rehire the retirees this past summer, after The Associated Pressreported that a summer spike in immigration applications—a record 7.7 million in 2007—caused the backlog. “This is a welcome breakthrough that has great potential to help sort through the backlog of pending applications,” Schumer said this week in a statement. “Immigrants who play by the rules and get in line deserve a chance at citizenship, not an endless waiting game. Failed planning led to this backlog, but this is a smart step that could help fix the situation.

UCSIS is deciding how to begin hiring the retirees, spokesman Chris Bentley said. USCIS Director Emilio Gonzalez told Schumer last month the agency has identified 704 retirees, 469 of whom are in ‘adjudication-related positions.’ Gonzalez also said the agency has a plan for dealing with the application increase to be publicly shared soon.

International Roundup

More than 160,000 employers were fined a total of 4.5 billion rubles for employing illegal migrant workers in Russia in 2007, according to Konstantin Romodanovsky, director of the Federal Migration Service. That sum is close to the property taxes paid by individuals (5.5 billion rubles in 2006), and can practically be considered a new tax on small business. The migration service contributed a total of about 10 billion rubles to the federal budget last year.

Until new legislation came into force last year, the fine for employing illegal aliens, in any quantity, was 8000 rubles. Now the fine is about 90,000 rubles per worker. Most illegal employment occurs in Moscow and St. Petersburg . They are followed by Moscow Region, Maritime Territory and Sverdlovsk Region in number of violations.

*****

UK citizens will not be required to have ID cards until 2012, two years later than originally planned, the opposition Conservative party claimed last week, citing leaked government documents they obtained. As reported by Agence France Presse, the interior ministry documents apparently targeted ‘Borders Phase II ( UK Citizens)’ as set to begin in 2012, though those in ‘trusted relationships’ , such as security guards, will have to obtain ID cards earlier. When legislation for ID cards was first approved in 2006, the original deadline for Britons renewing their passports to be in possession of ID cards was January 2010.

A spokesman for the Identity and Passport Service, while declining to comment directly on the Conservatives’ claims, said: ‘We have always said that the scheme will be rolled out incrementally. ‘ Foreign nationals residing in Britain will begin receiving ID cards later this year, with the documents expected to be issued to British citizens on a voluntary basis from 2009.

The government’s plans for ID cards have drawn criticism on the grounds that they will arguably not help to combat international terrorism, and infringe on civil liberties. The idea has also been hurt by recent government losses of citizens’ personal data, in particular the loss of 25 million Britons’ personal information by a government agency two months ago.

Unlike its other EU counterparts, Britain has never had a mandatory ID card issuance other than in wartime, but the idea has gathered momentum since the deadly July 2005 suicide bombings in London .

Legislative Update

Last week, Minnesota Governor Tim Pawlently introduced a policy that aims to enforce immigration laws more stringently as well as harsher state action against undocumented immigrants. The Twin Cities Daily Planet reports that Gov. Pawlently announced that he plans to strengthen enforcement by orderingMinnesota law enforcement officials to work closely with the ICE to enforce immigration laws. He also said that he would ask the state legislature to pass an immigration package that would include prohibition of city ordinances that limit local officials’ inquiries about immigration status.

The hard-line approach has been met with large amounts of criticism from the state’s advocacy groups and legislators. Robin Phillips, Executive Director of Minnesota Advocates for Human Rights said, “The Governor’s actions stand to damage community policing efforts, create significant fear in immigrant communities, and prevent victims from coming forwards. If one victim of domestic violence is too afraid to call, it could mean her life. We take this matter very seriously. The Minnesota Democratic Party characterized Pawlenty’s plan as a “go nowhere proposal,” likening it to a substantially identical proposal he made in January 2006. Phillips points out that representatives from the Sheriff’s Association, the Police and Peace Officers Association, labor, business, and community organizations all testified against the proposed legislation in 2006.

“It appears to me that the Governor only worries about immigration during election years,” said state Senator Patricia Torres Ray. Torres Ray pointed out that immigration is the responsibility of the federal government, and that state aid for local police and fire departments has been cut. “At a time when our bridges are collapsing, homeowners are struggling, Minnesota’s economy is stalled and people are worried about economic future, the Governor, again, is trying to grab another headline and distract us from his record of failure,” said Torres Ray.

The full text of Governor Pawlenty’s Executive Order can be found online at:http://www.governor.state.mn.us/mediacenter/pressreleases/PROD008597.html.

Notes from the Visalaw.com Blogs

Greg Siskind’s Blog on ILW.com

  • Big Government Republicans
  • Kentucky House Considering Business License Law
  • Oregon Businesses Organize Around Immigration Issue
  • The Black Economy
  • Immigrant of the Day: Aasif Mandvi – Fake Journalist
  • The Price of Attrition
  • Sweet Revenge: Martinez Endorses McCain
  • Heads Up: New Social Security No Match Rule Imminent

The SSB Employer Immigration Compliance Blog

  • Missouri Governors Pushing E-Verify For State Employers
  • E-Verify Bill Working Its Way Through Utah House
  • South Carolina House Debating Employer Immigration Bill
  • Latest News on Arizona Law
  • Indiana Senate Passes Business License Issue

Visalaw International Blog

  • Canada : IT Industry Faces Labour Shortages
  • Switzerland : Parliament Bans Ballot Box Votes on Citizenship
  • 2007 – Spain ’s Year in China

Visalaw Fashion, Sports, & Entertainment

  • Circus Owners Worried About Lack of H-2B Visas
  • Could Tejada Face Deportation Over Steroids Scandal?
  • UK Could Deport African Soccer Star
  • Art Against the Wall
  • Finland ‘s Top Musician Tells of Border Entry Ordeal
  • US and UK Sports Firms Team Up to Promote Athletes in Both Regions

Visalaw Health Blog

  • Filipino Nurses at Center of Controversy
  • Las Vegas Sun Follows Up on J-1 MD Exploitation Series
  • Arizona Hospitals Protest Birth Certificate Proposal
  • Report: Undocumented Latinos Access Health Care Less than the Native Born
  • More Links to Las Vegas Sun J-1 Physician Abuse Stories
  • Nurse Immigration Measure Included in Senate Budget Bill

Tech Notes – The Immigration Lawyer Blog

  • The World of the Future: 1999
  • How to Dispose of an Old Cell Phone
  • Voltaic Backpack: Your Bag Becomes Your Power Source
  • AMLAW Technology Marketing Slides

Campaign ’08

Republican presidential candidate Mike Huckabee wants to amend the Constitution to prevent children born in the U.S. to undocumented immigrants from automatically becoming American citizens, according to Minuteman Project founder and Huckabee endorser James Gilcrist. The Washington Timesreports that Gilchrist, who has recently been campaigning with Huckabee, was told by the candidate of his positions. According to Gilchrist, Huckabee promised him that he would force the Supreme Court to both challenge birthright citizenship, as well as push Congress to pass a 28th Amendment to the Constitution to remove any doubt.

Gilchrist says he was also told the former Arkansas governor what his thoughts are on the case against U.S. Border patrol agents Ignacio Ramos and Joe Alonso Compean, both serving prison sentences for shooting a fleeing suspect. “I would make it my first act as president to pardon agents Ramos and Compean,” Mr. Gilchrist said Mr. Huckabee told him. “I read back my notes to him twice and I told him I did not want to put words in his mouth,” said Mr. Gilchrist, who last week also issue a press release from the Minuteman Project detailing Mr. Huckabee’s positions.

Campaign spokeswoman Kirsten Fedewa said Mr. Huckabee intends to review the case against Ramos and Compean as one of his first acts as president, but she otherwise didn’t dispute Gilchrist’s quotes. Miss Federwa said Huckabee and Gilchrest are “united by a mutual desire to end illegal immigration and are political allies toward that end.”

*****

Mexican Foreign Minister Patricia Espinosa Cantellano accused presidential candidates of worsening an already ‘adverse climate’ for Mexican migrants and vowed to redouble efforts protect the rights of her country’s citizens living and working in the US . The Washington Post reports that, Cantellano, speaking at a conference for Mexican diplomats, held an unfavorable opinion regarding candidates’ stances on immigration: “Given the adverse climate that prevails for the Mexican community in the United States , aggravated by the electoral debate in that country, we also have to give particular attention to the problems confronted by our migrants.”

The remarks from Cantellano echo the criticism that many Mexican officials have levied against U.S. policy on immigration. In November, Mexican President Felipe Calderon called migrants ‘hostages’ of the presidential campaign and urged candidates not to use them as talking points. Calderon also criticized the US Senate in June, calling its rejection of an immigration reform measure ‘a grave error.’

The Mexican media have been giving exceptional coverage to the 2008 U.S.presidential campaigns, particularly on candidate debates about immigration. El Universal, one of Mexico’s largest paper’s has provided constant updates on candidates’ stance on the issue; the day Cantellano made her remarks, the paper carried a piece asserting that Sen. John McCain had become the target of ‘continuous attacks’ for supporting immigration reform and that immigration is Mitt Romney’s ‘Achilles’ heel.’

*****

A record one million immigrants sought US citizenship last year so they could vote in the 2008 presidential election, the National Association of Latino Elected and Appointed Officials (NALEO) announced last week. Their findings are consistent with the number of applications submitted last year to USCIS; they claim that in 2007, they received 1.029 million citizenship applications between January and October 2007. The figure – twice the number for the previous year – overwhelmed the offices processing the claims, causing a backlog.

The NALEO believes that the Hispanic population – at 45 million people and the largest ethnic minority in the US – could wield decisive weight in November’s election, particularly largely Hispanic states such as Florida ,Nevada , New Mexico and Colorado . Because of the influx of Hispanics applying for citizenship, Hispanic organizations have made a strong effort to minimize the application backlog that is burdening USCIS, so that ultimately new Hispanic citizens will be permitted to vote. “Our campaign is committed to building the support we need to clear this backlog,” said Cecilia Munoz, vice-president of the nation’s Hispanic group, the National Council of La Raza. “They deserve the opportunity to have their voices heard on election day.”

State Department Visa Bulletin for February 2008

A. STATUTORY NUMBERS

1. This bulletin summarizes the availability of immigrant numbers duringFebruary. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; the Bureau of Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status. Allocations were made, to the extent possible under the numerical limitations, for the demand received byJanuary 7th in the chronological order of the reported priority dates. If the demand could not be satisfied within the statutory or regulatory limits, the category or foreign state in which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits.

Only applicants who have a priority date earlier than the cut-off date may be allotted a number. Immediately that it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date.

2.Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants calculated under INA 201 is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

3. Section 203 of the INA prescribes preference classes for allotment of immigrant visas as follows:

FAMILY-SPONSORED PREFERENCES First : Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for fourth preference.

Second : Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers:

A. Spouses and Children: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference limitation.

Third : Married Sons and Daughters of Citizens: 23,400, plus any numbers not required by first and second preferences.

Fourth : Brothers and Sisters of Adult Citizens: 65,000, plus any numbers not required by first three preferences.

EMPLOYMENT-BASED PREFERENCES First : Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second : Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third : Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “Other Workers”.

Fourth : Certain Special Immigrants: 7.1% of the worldwide level.

Fifth : Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of P.L. 102-395.

4. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-mainland born, INDIA , MEXICO , and PHILIPPINES .

5. On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

Family All Charge- ability Areas Except Those Listed CHINA-mainland born INDIA MEXICO PHILIPPINES
1st 08FEB02 08FEB02 08FEB02 01JUL92 22JAN93
2A 15MAR03 15MAR03 15MAR03 01MAY02 15MAR03
2B 01JAN99 01JAN99 01JAN99 22MAR92 22JAN97
3rd 08MAY00 08MAY00 08MAY00 08JUL92 01APR91
4th 08JUL97 15NOV96 08OCT96 01NOV94 15FEB86

*NOTE: For February, 2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 01MAY02. 2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 01MAY02 and earlier than 15MAR03. (All 2A numbers provided forMEXICO are exempt from the per-country limit; there are no 2A numbers forMEXICO subject to per-country limit.)

  All Chargeability Areas Except Those Listed CHINA- mainland born INDIA MEXICO PHILIPPINES
Employment -Based          
1st C C C C C
2nd C 01JAN03 C C C
3rd 01NOV02 15NOV01 08MAY01 22APR01 01NOV02
Other
Workers
01OCT01 01OCT01 01OCT01 01OCT01 01OCT01
4th C C C C C
Certain Religious Workers C C C C C
5th C C C C C
Targeted Employment Areas/
Regional Centers
C C C C C

The Department of State has available a recorded message with visa availability information which can be heard at: (area code 202) 663-1541. This recording will be updated in the middle of each month with information on cut-off dates for the following month.

Employment Third Preference Other Workers Category: Section 203(e) of the NACARA, as amended by Section 1(e) of Pub. L. 105 – 139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

B. DIVERSITY IMMIGRANT (DV) CATEGORY Section 203(c) of the Immigration and Nationality Act provides a maximum of up to 55,000 immigrant visas each fiscal year to permit immigration opportunities for persons from countries other than the principal sources of current immigration to the United States . The Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997 stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This reduction has resulted in the DV-2008 annual limit being reduced to 50,000. DV visas are divided among six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year.

For February, immigrant numbers in the DV category are available to qualified DV-2007 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region

All DV Chargeability Areas Except Those Listed Separately

AFRICA 16,200 Except: Egypt : 13,300
Ethiopia
10,200
Nigeria
7,700
ASIA 6,900  
EUROPE 15,300  
NORTH AMERICA (BAHAMAS ) 5  
OCEANIA 850  
SOUTH AMERICA, and theCARIBBEAN 1,175  

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2008 program ends as of September 30, 2008. DV visas may not be issued to DV-2008 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2008 principals are only entitled to derivative DV status until September 30, 2008. DV visa availability through the very end of FY-2008 cannot be taken for granted. Numbers could be exhausted prior to September 30.

C. ADVANCE NOTIFICATION OF THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN JANUARY

For March, immigrant numbers in the DV category are available to qualified DV-2008 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region

All DV Chargeability Areas Except Those Listed Separately

AFRICA 18,500 Except: Egypt : 15,700
Ethiopia
12,100
Nigeria
8,750
ASIA 7,875  
EUROPE 17,600  
NORTH AMERICA (BAHAMAS ) 8  
OCEANIA 1,025  
SOUTH AMERICA, and theCARIBBEAN 1,350  

D. INDIA EMPLOYMENT SECOND PREFERENCE HAS BECOME “UNAVAILABLE” Despite two retrogressions of the India Employment Second preference cut-off date, demand for numbers by CIS Offices for adjustment of status cases has remained extremely high in recent months. As a result the annual limit for the India Employment Second preference category has been reached, and the category has become “unavailable” effective immediately.

E. OBTAINING THE MONTHLY VISA BULLETIN

The Department of State’s Bureau of Consular Affairs offers the monthly “Visa Bulletin” on the INTERNET’S WORLDWIDE WEB. The INTERNET Web address to access the Bulletin is:
http://travel.state.gov

From the home page, select the VISA section which contains the Visa Bulletin.

To be placed on the Department of State’s E-mail subscription list for the “Visa Bulletin”, please send an E-mail to the following E-mail address:

listserv@calist.state.gov

and in the message body type: Subscribe Visa-Bulletin First name/Last name (example: Subscribe Visa-Bulletin Sally Doe)

To be removed from the Department of State’s E-mail subscription list for the “Visa Bulletin”, send an e-mail message to the following E-mail address :

listserv@calist.state.gov

and in the message body type: Signoff Visa-Bulletin

The Department of State also has available a recorded message with visa cut-off dates which can be heard at: (area code 202) 663-1541. The recording is normally updated by the middle of each month with information on cut-off dates for the following month.

Readers may submit questions regarding Visa Bulletin related items by E-mail at the following address:

VISABULLETIN@STATE.GOV

(This address cannot be used to subscribe to the Visa Bulletin.)