"...You certainly can count on them.quot; - William Kcomt, MD, Indiana

3 Sources of Legal Authority for President Obama’s Immigration Plan

According to recent headlines, President Obama could announce a 10-point immigration plan at any moment. The plan might expand DACA for undocumented immigrants who came to the U.S. as children.

It could also remove the threat of deportation for undocumented parents of U.S. citizens and permanent residents and give them work cards. These changes alone could affect about 5 million immigrants in the U.S.

In addition, immigrants currently in line for employment sponsored green cards could see faster approvals. Other changes intended to fix some of the broken parts of our immigration system could affect millions of immigrants as well.

Like past Presidents, Obama has broad executive discretion to implement and enforce immigration laws. The President’ s plan should be carefully crafted to stay within the boundaries of this discretion.

The Congressional Research Service (CRS) recently released a report, Executive Discretion as to Immigration: Legal Overview, that describes the scope of executive power within our immigration system.

The CRS offers an overview of the three broad types of Executive discretion : (1) express delegations of discretionary authority; (2) prosecutorial discretion in enforcement ; and (3) discretion in interpreting and applying statutes. The report is worth a read if you are interested in this particular aspect of immigration law.

President Obama Could Announce Immigration Reform Plan This Week

You might have seen the headlines –

Obama’s Immigration Plan Could Grant Papers to Millions, at Least for Now

Obama Plan May Allow Millions of Immigrants to Stay and Work in U.S.

Obama to announce 10-point immigration plan via exec action as early as next week

According to these news reports, President Obama could announce a 10-point immigration plan this week. The plan might expand DACA for undocumented immigrants who came to the U.S. as children.

It could also remove the threat of deportation for undocumented parents of U.S. citizens and permanent residents and give them work cards.

These changes alone could affect 5 million immigrants in the U.S.

In addition, immigrants currently in line for employment sponsored green cards could see faster approvals. Other sweeping changes could affect millions of immigrants as well.

Once the plan is revealed, Cowles & Thompson will post details on our website and FaceBook pages. We  also will offer workshops and online seminars to give you the right information on how these changes can affect you or your family.

To be sure you don’t miss out on this important information, confirm your interest and pre-register for our workshops or request immigration news blasts.

Click here if you are interested in updates on President Obama’s immigration plan.

For questions or consultation about your specific immigration matters, you are invited to call or email us at 214-672-2000, immigration@cowlesthompson.com.

H-1B Employers: Ready for the Upcoming H-1B Cap Season?

The competition for H-1B professional worker visas begins April 1, 2015.  Employers of recently graduated foreign students and others will vie for new visas, which are limited to  65,000 per fiscal year (the “H-1B cap”).   And of these, 6,800 are reserved for citizens of Chile and Singapore under certain free trade agreements, effectively leaving only 58,200 new H-1B visas for other foreign nationals. (Keep reading →)

New Government Program Will Help Some Haitians Immigrate to the United States Faster

Extended family sitting outdoors smiling

Under this program, certain eligible Haitian beneficiaries of approved family-sponsored immigrant visa petitions, who are currently in Haiti, can come to the United States as early as two years before they are eligible to receive permanent residence. In other words, they will be “paroled” into the U.S. to be with their families until the green card is available.

“The rebuilding and development of a safe and economically strong Haiti is a priority for the United States. The Haitian Family Reunification Parole program promotes a fundamental underlying goal of our immigration system – family reunification. It also supports broader U.S. goals for Haiti’s reconstruction and development by providing the opportunity for certain eligible Haitians to safely and legally immigrate sooner to the United States,” said Deputy Secretary of Homeland Security Alejandro Mayorkas. “The United States strongly discourages individuals in Haiti from undertaking life-threatening and illegal maritime journeys to the United States. Such individuals will not qualify for the HFRP program and if located at sea may be returned to Haiti.”

In early 2015, the Department of State National Visa Center (NVC) will begin contacting qualified U.S. citizens or lawful permanent residents with approved petitions for Haitian family members, offer them the opportunity to apply to the program, and provide instructions on how to apply. Only individuals who receive a written notice of program eligibility from NVC will be eligible to apply.

The USCIS is not accepting HFRP program applications yet so if you believe you or a family member is eligible, DO NOT apply at this time. Instead, contact a qualified immigration attorney who can monitor the situation for you and help you apply at the right time.

And remember, only attorneys and accredited legal services can represent you before the government. The USCIS warns against scams so visit http://www.uscis.gov/avoid-scams for tips on filing forms, reporting scams, and finding accredited legal services. Remember, the Wrong Help Can Hurt!

To consult with one of our qualified attorneys, you are invited to call 214-672-2000 or email immigration@cowlesthompson.com.

Green Card Application Portability – 5 Questions to Ask Before Changing Jobs While Waiting for Your Green Card Approval

Green card applicants often ask if they are able to change employment while waiting for final approval.  The answer is yes, if you follow established portability rules.  Generally, if your I-485 application has been pending for 180 days or more, you are eligible to change jobs and continue your green card application.  However, portability rules have pitfalls you must avoid, or your green card application can be denied.

Here are five key questions you need to get answered before making any change in employers.

male_doctor_by_question_mark_custom_md_nwm1.  Is my application dependent upon my employer? If your green card category depends upon a job offer, then your application is dependent upon your employer (“sponsor”) and you must observe portability rules to avoid denial of your green card application.   Currently, the green card categories requiring a job offer and subject to portability rules are EB-1 Outstanding Researcher, EB-1 Multinational Manager, EB-2 and EB-3 workers based upon labor certification.

Green card applications based upon EB-1 Extraordinary Ability and EB-2 National Interest Waiver do not require a job offer and do not fall under portability rules.  Therefore, applicants in these categories can change employers at any time so long as they continue to work in the field of extraordinary ability or national interest, as applicable.

2. Has the I-140 petition been approved? If your I-140 petition has been approved, then your chances of approval based upon portability are better.

If you change positions after your I-485 has been pending for 180 days and your I-140 is approved, then your green card can be approved, even if your sponsor cancels the I-140 petition. On the other hand, if you change positions while your I-140 petition is awaiting approval, your sponsor’s withdrawal of the I-140 petition will cause denial of your I-485 application.

Even if your sponsor does not withdraw the pending I-140 petition, the government could deny the I-140 petition for other reasons.  As a result, your I-485 application will be denied even if it has been pending for 180 days.

To avoid these risks, wait until the I-140 is approved before changing positions.

3.  Has the I-485 application been pending for more than 180 days? Even if your I-140 petition is approved, it’s risky to leave your employment before the “safe harbor” period starts.

Although the government cannot deny your I-485 application on the sole basis that you left your employer before 180 days have passed, it can issue a request for evidence (RFE) to determine whether the original offer of employment was bona fide.  Your sponsor’s support could be necessary to respond to the RFE and its refusal to cooperate could mean denial of your I-485 application.

Also, if your sponsor withdraws the approved the I-140 petition  before the 180 days have run, portability will not apply and your green card application will be denied.

To avoid these risks, wait until your I-485 application has processed for 180 days before changing positions.

4.  Is the new employment in the “same or similar” occupation?  To determine whether the new position is comparable to the sponsored position, the government looks at the following factors and you should do the same:

  • The description of the job duties in the PERM (ETA9089) application or I-140 petition and the job duties of the new employment.
  • The standard occupational classification (SOC) code shown on the ETA9089 application or I-140 petition for the sponsored position and the SOC code for the new position.
  • A substantial difference between the previous wage and the new wage (higher or lower).

5.  Will the new employer provide a supporting letter for your I-485 application? The government usually requires an update on your employment status before approving your green card.  Your new employer should provide a letter describing your new position, including duties and responsibilities as well the salary of the position.  Be sure the new employer agrees to provide this letter before you change jobs.

Portability rules are complex. Contact a qualified immigration attorney to ensure a safe transition to your new employment.

The information provided in this article is intended to help you understand basic issues involved in the immigration process, and are offered only for general informational and educational purposes. This information is not offered as, nor does it constitute legal advice or legal opinions. You should not act or rely upon the information in this article without first seeking the advice of an immigration attorney.

5 Ways You Can Celebrate Constitution Day

From League of Women Voters

On Constitution Day, September 17, we commemorate the signing of theU.S. Constitution in 1787. Constitution Day, also known as Citizenship Day, is when we honor our democracy by celebrating our rights and responsibilities as citizens. It’s the perfect time to celebrate the right to vote, the very cornerstone of citizenship!

 

Learn more about Constitution Day and citizenship rights.

Biometrics Appointments: What to Do if You Cannot Attend the Appointment

office_calendar_april_15_800_clr_1743Applicants for green cards and other immigration benefits must attend a biometrics appointment at a designated USCIS Application Support Center (ASC) whenever requested.  Generally, the applicant receives an ASC appointment notice for a specific date and time.  Most can attend the appointment on the date and time scheduled, but what if the date is inconvenient? Here are some of the options available in this situation:

  • Reschedule – the applicant can reschedule by marking the rescheduling request field on the ASC appointment notice and returning it to the USCIS before the appointment date.  Keep a copy of the notice for your records and be sure to send the notice through a delivery method that allows tracking, e.g. certified mail.  You do not need to explain the reason for rescheduling.  Unlike a doctor’s or lawyer’s appointment, you cannot reserve a specific date.  You will receive a new notice usually within two weeks.
  • Go early – the applicant can to the ASC earlier than the appointment date as a “walk-in.”  Be sure to bring your appointment notice and politely request that your biometrics be taken.  Be prepared to wait until others with current appointments are served.  After your biometrics are taken, ask for a completion stamp on your appointment notice so you have proof that biometrics were completed.
  • Outside U.S. – applicants who are overseas at the time of the biometrics appointment must reschedule.  There are no facilities available outside the U.S. that can provide general biometrics appointments.  If the applicant has an attorney, the attorney can request the rescheduling of the appointment.
  • Disability – applicants who have a hearing, sight, speech, or other physical impairment that might prevent attendance at the appointment can and should request an accommodation by calling the customer service center for the USCIS or completing a request online at https://egov.uscis.gov/e-request/displayAccomForm.do?entryPoint=init&sroPageType=accommodations.   The USCIS may provide additional assistance at the appointment or may reschedule the appointment when additional assistance is available.

To address your unique immigration situation, you are invited to contact our firm at immigration@cowlesthompson.com, 214-672-2000.

The information provided in this article is intended to help you understand basic issues involved in the immigration process , and are offered only for general informational and educational purposes. This information is not offered as, nor does it constitute legal advice or legal opinions. You should not act or rely upon the information in this article without first seeking the advice of an immigration attorney.

Avoiding Workplace Pitfalls: Domestic and Foreign Employee Compliance

Governmental investigations and audits to assess compliance with employment and immigration laws have steadily increased over the last few years.  Employment lawsuits and immigration compliance violations are at a record high.  And there is no indication that the trend will decline anytime soon.  Businesses which do not routinely audit their internal policies and procedures or which have neglected to develop and implement policies at all, are vulnerable to fines, claims, penalties, and the potential of governmental oversight.  (Keep reading →)

Foreign Professional Workers and the H1-B Visa

Immigration and immigration compliance is in the headlines on a daily basis affecting both large and small companies.  If you are the human resources director for a company looking for the professional services of an individual who requires a visa to work in the United States, you need to consider the full range of options and strategies available to you with respect to one of the most commonly used employment (professional)[1] visas — the H-1B visa.  (Keep reading →)

Is President Obama Considering his Own Immigration Reform?

The Wall Street Journal reports today that President Obama may suspend deportations and give work permits to millions of undocumented immigrants. The executive branch of our government is headed by the President and does manage and control the immigration process. Most legal experts agree that the President can act without Congress in many ways. For example, many Presidents have exercised power to grant deferred action and temporary protected status (TPS). This WSJ journal nicely explains some of the executive actions under consideration. According to the article, the President may announce his executive order shortly after Labor Day.

Cowles & Thompson Immigration Law Group  is following this story closely.
Read the Wall Street Journal article