Coming to America: An attorney's commentary on US immigration law

With H-1Bs running out so quickly, consider PERM as an alternative.

As we've all come to know, H-1Bs are at best, a complete crap shoot.  Weeks or months of preparation are put forth only to have about a 25% chance of random selection for processing.  If you begin your preparation in February of 2017 and submit your petition on April 1, 2017, your best case scenario is that your case is accepted for processing and you can begin working on October 1, 2017.  However, if you're not accepted for processing, you'll learn about this in May or June and then, even if you reapply the following year, the soonest that one could begin working in H-1B status is October 1, 2018.  This is very unpredictable for both employers and their prospective employees.

 

My suggestion is to forgo the H-1B process and move straight into the PERM (labor certification).  Why?  Because its a more predictable process and the reward is much greater.  At the end of the rainbow (even though it's further away) is a green card as opposed to a three year employment visa.  The PERM could be started at any time regardless of where the foreign beneficiary is and whether they've ever worked for the prospective employer.

 

The process is longer, more expensive and entails a number of additional steps and requirements, but it has the potential to provide a permanent, rather than temporary solution.  As some of our employer clients are receiving their H-1B packages back, having been rejected because they were not randomly selected for processing, they are following our advice to concentrate on the labor certification process.  We will see what the coming months and years bring to the H-1B program as the current administration has proposed changes that it would make it even more restrictive than it is currently.  

G&B CELEBRATING ITS TWO-YEAR ANNIVERSARY WITH THE OPENING OF ITS NEW OFFICES IN DORAL!

Gerstein & Baret, P.L. is celebrating its two-year anniversary!  It has been a wonderful period of growth for our practice.  We have added new staff and overhauled our information technology infrastructure to allow for better service to our worldwide clientele.  We are also pleased to announce the opening of our new location in Miami-Dade County, located at:

9777 NW 41st Street

Doral, FL 33178-2381

(305) 592-1998 • Fax (954) 585-9196

We look forward to many more years of service to our clients!

A PEEK UNDER THE HOOD OF THE SENATE’S PROPOSED IMMIGRATION REFORM BILL

On April 29, 2010, the Senate majority released a twenty-six page “framework” upon which they hope to rebuild the current immigration system. Here are some of the more salient points of the proposal:

Countries with too many Visa Waiver overstays will be held accountable

The Visa Waiver Program (“VWP”) will be evaluated and monitored to ensure that no country on this program has a high percentage of visa overstays. Countries whose nationals frequently overstay their visas will be removed from the VWP until such time as they implement accountability systems to ensure compliance from their nationals.

Speedy and close-by Filing of Removal Charges

The Department of Homeland Security will be required to file a charging document with the immigration court closest to the location at which an alien was apprehended within 48 hours of the alien being taken into custody by the Department.

Social Security gets Deputized!

The Social Security Administration will begin issuing biometric social security cards. These cards will be fraud-resistant, tamper-resistant, wear resistant, and machine-readable social security cards containing a photograph and an electronically coded micro-processing chip which possesses a unique biometric identifier for the authorized card-bearer.

The Social Security Administration will be required to verify the individual’s identity and employment eligibility by asking for production of acceptable documents to be provided by the individual as proof of identity and employment eligibility.
Employers hiring workers in the future will be required to use the newly created Biometric Enrollment, Locally-stored Information, and Electronic Verification of Employment (BELIEVE) System as a means of verification.

SciTech-friendly Student Visa Policy

Foreign students will be permitted to enter the United States with immigrant intent if they are a bona fide student so long as they pursue a full course of study at an institution of higher education in a field of science, technology, engineering or mathematics.

Employers—the other Right Hand of the Government

Employers using the H-2B program will also be required to conduct advanced recruiting of U.S. workers prior to hiring an H-2B worker and will be required to pay higher wages than the current wages paid

Family Immigration: Good News for Legal Residents and their Families

Spouses and children of lawful permanent residents will be classified as “immediate relatives” to promote the efficient reunification of families.

Family Immigration: Good News for Domestic Partners

It will eliminate discrimination in the immigration laws by permitting permanent partners of United States citizens and lawful permanent residents to obtain lawful permanent resident status.

Into the Light: a Comprehensive Legalization Program for Legal Prospective Immigrants

Streamlined processing, including rapid collection of fingerprints from applicants leading to prompt issuance of a biometric-enabled credential to those found eligible for LPI status, will register the physical presence of those here illegally, record their identities with the U.S. Government, and ultimately help ensure that those who are qualified are integrated as accountable, tax-paying members of U.S. society.

Specifically, to be eligible for initial registration for the legalization program and interim status as an LPI, each individual must: (1) complete an application supplying basic biographic and biometric information; (2) pass terrorism, criminal history, and other security checks; (3) pay all applicable fees, civil penalties, and taxes; and (4) have been continuously present in the United States since the date of enactment.

Out of consideration: Felony Offenders

…will not be eligible for registration if they: (1) have been convicted of any felony offense under Federal or State law (all offenses punishable with a term of imprisonment greater than one year.

Irish Investors Welcome

This proposal creates an E-3 visa for nationals of the Republic of Ireland similar to the visa already provided for nationals of Australia.

Lest the Runway Runs Dry...

It adjusts current immigration law so that fashion models can enter the United States on an O-visa or a P-visa rather than an H-1B visa.

The original text of the proposal in Adobe Acrobat (PDF) format may be found here.

Naturalization Security Checks—when the government does the wrong thing for the right reasons

As part of the naturalization process, all aspiring candidates are required to provide their fingerprints for verification in the law enforcement databases maintained by the Department of Homeland Security and the Department of Justice, among others.  In addition, the applicant must have his name checked across several lists to make sure no ‘hits’ reveal them to be identities or aliases of bad guys.  With a thorough security check, the DHS prevents bad guys from attaining the coveted ‘citizen’ status, along with the protections they would receive under the United States Constitution.  One would believe that this is the type of well-reasoned, well-supported explanation that would almost verge on being a truism.  It is something that one can hardly object to these days.

So why is a little old lady threatening to go to Federal court and naming the Attorney General, the Director of the Department of Homeland Security, the Director of the Citizenship and Immigration Services, among others as co-defendants in a federal lawsuit?  It just so happens that the lady comes from the Middle East and bears a Middle Eastern name.

Tough luck, you might say.  Let her wait a bit longer while we make sure she is not a supporter of terror activities.  You might be surprised to learn that she understood the government’s position.  It would be understandable if her application were somewhat delayed because of the rigorous name check and fingerprint analyses that must be run.

But she never thought it would take eight years.

In eight years, the government had essentially bogged down her application, denying her right to be considered for naturalization as a United States citizen.  No prior record; her whole family in the U.S., no history of raising a finger except to gauge the mood of the next administration.  She had even passed the English language and Civics/History test.  Countless inquiries deluged the Immigration Services Officers.  They all came back with the same words.  Words that became an exasperating death knell for her hopes of ever being truly ‘American’:

“We are awaiting a security check.”

After unsuccessfully trying all of the lower levels of the USCIS bureaucracy, we turned to our liaison contacts in the American Immigration Lawyers Association, weighed in, trying to determine the reason behind the inexplicable delay in the naturalization process.  The investigations ran dry, however, and were smothered in “security check” responses. 

Fortunately, when it comes to the naturalization process, the Immigration Service does not necessarily have the last word.  There is a section of the U.S. Code which allows the Federal court to intervene and essentially divest the Department of Homeland Security of its jurisdiction.  In other words, the court takes over the case and has a hearing where the heads of the Justice Department, the DHS and the USCIS are named as defendants and are called before the judge to justify the delay.

Now, if there is one thing an agency is loathe to do is give up its power.  In a Petition for Naturalization, this is exactly what happens.  A Federal Judge is given the power to naturalize the petitioner right then and then, if, in her or his judgment, the petitioner has met the requirements for naturalization to United States citizenship.

The government knows this, and rather than go through an embarrassing court procedure to justify what is essentially unjustifiable, it will sit down and take a hard look at the “sticking points” of the application.  By “sticking points” I am referring to the TRUE reasons the application is being held up and the PRETEXT used to hold it up.  While the true reason may be inferred by the reader (and suffered by our client) the pretext turned out to be that the USCIS could not obtain a clear set of fingerprints.  That’s it.  During the past seven years of an old woman’s life the only real problem was that her fingers, gnarled with age and decades of toil, could not provide good prints for the USCIS's fancy new prints machine.

The DHS stepped in and ordered that new fingerprints be taken as soon as possible and, failing a good result, that criminal background checks be run at every jurisdiction she had lived in the United States.

We presented ourselves at the USCIS field office with a mixture of annoyance and guarded optimism.  We expected some new security check stumbling block.  We were in for a big surprise.  In a dramatic reversal of their years-long miring in red tape of the naturalization application, our client was told she had received final clearance to be naturalized.

On that same, sunny day, during a short ceremony attended by the applicant and her son, who had driven her to the appointment, our client was naturalized as a Citizen of the United States.

Abused and Battered Immigrants DO have a Choice

Her will was slowly, inexorably eroding to nothingness.  The insults. The threats. The beatings.  The demeaning tone of his demanding voice telling her she could walk out the door at any time—and that Immigration would be waiting for her outside.  She could leave and forget about the child she left behind in her home country.  A child she had not seen for three years.  She was trapped.  No papers, no hope, no escape.  He was a United States Citizen.  He knew the phone number of the immigration officers that could come in at any time and take her away to be deported.  She could picture the last three years of agony, toil, and humiliating sacrifice withering away as she returned rejected, defeated, and penniless.

He had long ago taken away her passport and her birth certificate.  He knew she couldn’t do anything without that.  He had promised to file her immigration papers, but she knew now that it was just a lie.  Caged in a prison devoid of walls, she wailed silently and unseen while the days and months became, what, three years already?

Every year, thousands of immigrants suffer mutely, victims of unscrupulous spouses that take advantage of the immigrants’ nonexistent position of power.  But appearances can be deceiving.

In 1994, the Violence Against Women Act (VAWA) was passed into law.  The intention of this piece of legislation was to provide a way for abused immigrants to escape their tormentors.  Normally, a family petition needs just that—a petitioner—to request the benefit for the immigrant (also known as the beneficiary).  The way the Immigration and Nationality Act (INA) was structured at the time, only through the active and willing participation of the petitioning spouse could an immigrant obtain family based immigration benefits.  VAWA made it possible for the victim to file a petition on her (or his) own behalf.  The form is I-360 and can be obtained from the USCIS website at http://www.uscis.gov.  Protection from deportation and counseling resources were made available as part of the aid provided to the victims.  The result was a sliver of hope shining in a pitch-dark tunnel.

While the VAWA made significant inroads toward correcting the plight of millions of immigrants subjected to extreme cruelty or abuse, it was far from a perfect fix.  Many oversights in this important law were addressed in the amendments to the VAWA (Violence Against Women Act of 2000).  Nicknamed the VAWA II, it fixed provisions that left abused immigrants unprotected if they, among other situations, divorced the abuser before the filing of the self petition.  It also provided renewed funding for many support programs and permitted the adjustment to permanent residents even if the victim had entered illegally.  It also lowered the standards that needed to be met to show hardship if removed from the United States.

For the immigrant victim of a United States Citizen or Legal Permanent Resident, the VAWA presents an opportunity to end the cycle of violence and achieve a measure of social justice.  Help is available through the National Domestic Violence Hotline on 1-800-799-7233 or 1-800-787-3224 [TDD] for information about shelters, mental health care, legal advice and other types of assistance, including information about self-petitioning for immigration status.

So you've been deported and nobody told you?

We often see the same scene played out with different characters.  A person walks into our office and says they have not heard from the Immigration Service in a long while.  They’ve called their 800 number, they have visited the field office, they have checked on-line.  Their case seems to be in “legal limbo”.

Imagine their surprise when we call the Automated Query System of the Immigration Court and learn that, according to their computers, the person was deported months, or perhaps years ago.   He or she never received a letter, a phone call, not even a warning on their visits to the USCIS field office.  Their whole case has been summarized by a one-sentence automated blurb that dispassionately drawls, “The Immigration Judge order you removed on [date]”.

For most people, this is a very hard thing to hear, particularly those who have diligently asked after their case through one of the many channels the government puts at immigrants’ disposal.  The truth, however, is that these “channels of communication” are more like optimistic generalizations that cannot be relied upon to ascertain the actual status of a case.  When the harsh reality comes crashing down, one might think that the battle is over before it was actually begun.  Once ordered deported, there seems to be little chance of obtaining any immigration relief.

So, what to do if you suddenly find out you were deported?  The solution is to retrace the steps of the deportation or removal order.  This means going through every bureaucratic step in reverse, fixing and correcting the government mistakes that led to Immigration Court.  This is where an attorney can come in handy.

An immigrant may authorize an attorney to represent her or him before the Immigration Court.  This is done using a form called EOIR-28.  In this form, the attorney informs the court that he or she has been retained to provide legal services on an immigrant’s behalf.  The attorney has several options.  The record of the court file may be inspected, or, if, enough details are known, file to have the order of removal rescinded (taken back) and an immediate stay of the deportation order put into place.  Of course, this is not merely a matter of asking the court to reopen a case “just because”.  The alien must provide a convincing argument and, if available, proof, that they have never received notice of the removal or deportation proceedings. 

Lack of notice is one of the grounds for reopening a case at any time, and it is crucial to bolster the request with evidence that the alien has dutifully informed all changes of address, and that copies or records of status inquiries be submitted.  In many cases, a sworn affidavit may have to be provided as the alien must state, under penalty of perjury, that notice was never received.  The government is then given an opportunity to respond to your request (or “motion”) to reopen.  They may agree and state that they do not oppose a reopening or they may challenge your allegations by providing what they believe is proof that they did indeed give proper notice.  These are definitely deep waters that an immigrant should preferably tread with the aid of a competent attorney.

The proceedings at the Immigration Court will strip the order of removal from your case file, but that does not mean your case is finished.  Remember how the case arrived at the Immigration Court?  That’s right.  You still need to have the USCIS look into the denial of your case so that the reasons for the denial are corrected and overcome.  Sometimes it is simply a matter of correcting a typographical error and sometimes it is a matter of evidence requested that was never received. 

Regardless of the reasons, the USCIS cannot give you an immigration benefit unless you prove that you are eligible.  So, if you did not receive that request for evidence asking for a clearer copy of your birth certificate or a criminal record, you are still ultimately required to provide these documents.  You do not receive a free pass because of all the hoops you have had to jump through.

In conclusion, a recently discovered order of removal or deportation is a very serious matter: it can interfere with employment, travel, and general livelihood of an immigrant.  It is not, however, the end of the road.  There are ways to “remove” orders of removal, particularly in cases where no notice was ever received.  With patience, diligent record-keeping, and tenacity, you can reconstruct your case and avoid being permanently removed from the United States.

Thoughts on the eve of H-1B season

As many of you are aware, there are only 58,200 “new” H-1B visas available per fiscal year. Applications are first accepted on April 1 (or the first business day after April 1) for work to begin on October 1. These are for cases subject to the H-1B cap. Our office completed a frenzy of H-1B filings last night so that our clients would be assured (as best as possible) of being amongst those receiving an H-1B visa for this coming fiscal year. There are some exceptions to the cap though. If you are filing for an H-1B extension (or H-1B renewal), the cap does not apply to your case. If you are being sponsored by an institute of higher education or a non-profit research institute affiliated with an institute of higher education the cap does not apply. An interesting exemption is if you’ve had H-1B status in the past six years and not left the US for more than a year since that time. It is predicted that all of the new cases subject to the cap will be used up on the first day that applications are accepted this year. I’ve previously expressed my thoughts on the ridiculousness of this process (meaning that if there is such a demand for these visas from US businesses, why does Congress not increase the available numbers?). So, if you’ve found yourself with an expired H-1B or if you were not able to submit your petition in time for this year’s season, do realize that there are other options available. Some are specific to your country of nationality while others can apply to anyone. Please see our post from June 8, 2006 (What to do now that H-1B Visas have been exhausted) which discussed some of these other options. As the H-1B has turned into a very limited opportunity, it has become all the more important to concentrate on some of these other options.