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On Wednesday, October 23, 2013, Mr. Charlie Oppenheim of the Department of State’s Visa Office spoke to the Washington D.C. Chapter of the American Immigration Lawyers Association dinner. Below are notes from that meeting. These notes are Mr. Oppenheim’s impressions at this time, and are subject to change based on usage or new developments.
- His office is concerned again this year that the EB-5 numbers for China are moving too fast and there could be a cut-off for China EB-5 in June 2014 or later, if usage remains at the current levels. Worldwide EB-5 usage is up as well.
- The India EB-2 cutoff date is expected to retrogress from June 2008 (which is what it is in the November 2013 Visa Bulletin) to 2004 or 2005 in December 2013. This is due in large part to Indian nationals “upgrading” from EB-3 to EB-2. See below for more on upgrades.
- India EB-3 will continue to move very slowly.
- Upgrades continue to be a tough issue to manage. USCIS does not appear to be working to develop any processes or procedures to better capture upgraded employment-based cases so there is no better information expected from that agency to assist Mr. Oppenheim’s office in better managing these numbers.
- Worldwide EB-2 is expected to remain current.
- Worldwide EB-3 could move up to 2011 in the December Visa Bulletin.
- Worldwide EB-1 is expected to remain current.
- China EB-2 will continue to move slowly.
- China EB-3 is expected to continue to be ahead of a China’s EB-2 priority date. Members are reminded that they may be able to use an expired EB-2 PERM for a new EB-3 category. As long as the first EB-2 I-140 was approved, the PERM can be used to file a second I-140 under EB-3. See this USCIS memo for more information (AILA Doc. No. 07062172)
- EB-4 is expected to remain current.
- Family-based 2A (spouses and children under 21 of permanent residents) is expected to hold at its current date. Mexico FB-2A may need to retrogress in the future. Many FB-2A applicants are not showing up for their appointments, or their applications are being returned from the posts.
AILA InfoNet Doc. No. 12012349 (posted Nov. 1, 2013)
From the USCIS:
E-Verify is currently unavailable due to a government shutdown.
While E-Verify is unavailable, you will not be able to access your E-Verify account. As a result, you will be unable to:
- Enroll any company in E-Verify
- Verify employment eligibility
- View or take action on any case
- Add, delete or edit any User ID
- Reset passwords
- Edit your company information
- Terminate an account
- Run reports
View ‘Essential Resources.’ Please note that all essential resources may be found by visiting www.dhs.gov/e-verify
In addition, E-Verify Customer Support and related services are closed. As a result:
- Employees will be unable to resolve Tentative Nonconfirmations (TNCs).
- Telephone and e-mail support will be unavailable. You may send e-mails, however, we cannot respond until we reopen.
- E-Verify webinars and training sessions are cancelled
- E-Verify Self Check will not be available
We understand that E-Verify’s unavailability may have a significant impact on your company’s operations. To minimize the burden on both employers and employees, the following policies have been implemented:
- The ‘three-day rule’ for E-Verify cases is suspended for cases affected by the shutdown. We’ll provide additional guidance once we reopen. This does NOT affect the Form I-9 requirement—employers must still complete the Form I-9 no later than the third business day after an employee starts work for pay.
- The time period during which employees may resolve TNCs will be extended. Days the federal government is closed will not count towards the eight federal government workdays the employee has to go to SSA or contact DHS. We will provide additional time once we reopen.
- For federal contractors complying with the federal contractor rule, please contact your contracting officer to inquire about extending deadlines.
- Employers may not take any adverse action against an employee because of an E-Verify interim case status, including while the employee’s case is in an extended interim case status due to a federal government shutdown (consult the E-Verify User Manual for more information on interim case statuses).
The government shutdown has many immigrants concerned. There’s good news and bad news, depending upon the type and processing stage of your application.
USCIS (US Citizenship and Immigration Service) will continue to accept and process all applications as well as remain open for customer service calls. The only program unavailable during the government shutdown is E-Verify for employment verification. Therefore, your pending applications will continue processing within the usual timeframes. And you may continue to submit any new applications; however, filing new applications that require DOL approvals before filing (see below) might be delayed.
DOL (Department of Labor) will neither accept nor process any applications or related materials (such as audit responses), it receives, including Labor Condition Applications (LCA), Applications for Prevailing Wage Determination, Applications for Temporary Employment Certification, or Applications for Permanent Employment Certification. The iCERT Visa Portal System, used for many immigration functions, would become inactivated and users will not be able to access the system.
The DOL shutdown is important to many visa and green card applicants because:
- LCAs are required for H-1B and H-2B petitions; therefore, filing new H-1B and H-2B petitions will be delayed because of the unavailability of the LCA processing.
- Prevailing wage determinations are required for labor certification applications and typically take two months to process; therefore, new labor certification applications will be delayed.
- PERM labor certification applications, both new and pending, will experience processing delay.
Badmus Law Firm will continue to monitor this situation and provide further updates as needed.
This information is provided as an educational service by Badmus Law Firm. If you have questions about immigration rules that affect you, you are invited to call us at 888-849-9104 or click here to schedule a consultation.
- Path to citizenship for vast majority of the 11 million!!!
- While in RPI status, immigrants can work, travel and live without fear of deportation
- Reunification of many families separated by deportation
- 5 year path to citizenship for DREAMers
- DACA recipients will have RPI status expedited
- Farm workers will get a ‘blue card’ and will be on a 5 year path to citizenship
- Expedited path for those already here in a temporary status
- Families that have spent years, even decades waiting for their turn in line will finally be reunited
- Spouses and children of LPRs would be considered immediate family members and therefore would no longer be subject to arbitrary visa caps
- Allows DREAMers to become citizens through military service
- Immigrants on the path to citizenship can pay fees in installments
- Individuals with final removal orders may be eligible for RPI status
- Beacons for those toiling at the border
- New temporary worker programs that protects immigrant workers and American labor force
- All workers, including RPIs, will be treated equally by the tax system and eligible for tax credits
- Spouses of H-1B holders will now be able to work
- Immigration Judges will have some flexibility to consider individual factors when making decisions
- Children and the mentally disabled will be eligible for court appointed counsel in immigration proceedings
- Removal of filing deadline for asylum seekers
- Encourages immigrant integration through more targeted programs and foundations to help legal immigrants become citizens
- Inclusion of POWER Act, bolsters legal remedies to immigrant workers who are fired in violation of labor laws
- Strict limits on solitary confinement in immigration detention facilities
- Asylum applicants will be granted work authorization within 180 days of filing an application
- Provides immigration status to certain battered spouses and children
- Prohibit ICE from conducting raids/arrests outside schools, churches, hospitals and other “sensitive locations”
- Prohibits deportation of immigrants for a crime that wasn’t a deportable/inadmissible offense when committed
- Makes it substantially easier for both LPRs and non-LPRs to qualify for cancellation of removal, and removes the cap on the number of cancellations that DOJ/DHS can grant in a year
- Protects the ability of W visaholders (essential workers) to change jobs
- Ensures access to affordable housing for battered immigrants
- Encourages alternatives to immigration detention
- More protections for workers recruited abroad
- Stricter penalties for notario fraud
- Requires a use-of-force policy among all DHS agencies
- Future work-visa holders will be able to self-petition for green cards rather than relying on employers to decide whether they can call America home for good.
From Frank Sharry, Executive Director, America’s Voice Education Fund
Washington, DC - Today, the Senate took a momentous step forward with a vote of 68-32 in favor of final passage of S. 744, the “Border Security, Economic Opportunity, and Immigration Modernization Act.” This moves the United States toward real immigration reform which is so vitally important for immigrant families, businesses, and the entire economy.
“Despite our continued concerns regarding the recent changes in the bill that will militarize the border and bring real harm to border communities, AILA is pleased that the Senate continues to move forward toward real immigration reform that will on balance benefit far more families and businesses than it will hurt,” said newly installed American Immigration Lawyers Association (AILA) President Doug Stump. He continued, “This bill is far from perfect, but it does contain provisions that will boost our economy, make our country safer, and offer protections for the undocumented who currently live in the shadows.
“Of course, this is a big day for immigration reform but it is not the end of our work because while one Congressional chamber has moved forward, the other lags behind. The House has heretofore insisted on taking a piecemeal, enforcement-focused and restrictionist stance, with recent bills working their way through the Judiciary Committee that would criminalize undocumented immigrants, harm American businesses and employees, and gut our agricultural system. We call on the House to recognize that an incremental process will simply delay real reform. We look forward to the day when the common sense provisions in the Senate bill are enacted and have the full force of law,” Mr. Stump concluded.
“AILA InfoNet Doc. No. 13062754 (posted Jun. 27, 2013)”
STATEMENT BY SECRETARY OF HOMELAND SECURITY JANET NAPOLITANO ON THE SUPREME COURT RULING ON THE DEFENSE OF MARRIAGE ACT
STATEMENT BY SECRETARY OF HOMELAND SECURITY JANET NAPOLITANO ON THE SUPREME COURT RULING ON THE DEFENSE OF MARRIAGE ACT
“I applaud today’s Supreme Court decision in United States v. Windsor holding that the Defense of Marriage Act (DOMA) is unconstitutional. This discriminatory law denied thousands of legally married same-sex couples many important federal benefits, including immigration benefits. I am pleased the Court agreed with the Administration’s position that DOMA’s restrictions violate the Constitution. Working with our federal partners, including the Department of Justice, we will implement today’s decision so that all married couples will be treated equally and fairly in the administration of our immigration laws.”
Supreme Court Ruling on Defense of Marriage Act (DOMA) Should Give Equal Immigration Rights to Lawfully Married Same Sex Couples
Washington, DC – The American Immigration Lawyers Association (AILA) applauds the Supreme Court’s decision to strike down the Defense of Marriage Act (DOMA), finding it unconstitutional.
“Same sex bi-national couples have fought long and hard for the right to keep their families together. It’s only fair that if a U.S. citizen or permanent resident is legally married-regardless of sexual orientation-that their lawful marriage be recognized by the federal government when it comes to immigration issues,” said AILA President Laura Lichter.
She continued, “Because of DOMA, bi-national same sex couples often had to choose between staying together, but leaving the U.S., or splitting apart. Over 30 countries provide immigration benefits for same sex couples and we have seen firsthand the incredible toll of this unconstitutional discrimination. Any American would agree that being forced to choose between your homeland and your loved one is a heart-breaking choice.”
Ms. Lichter concluded, “Allowing our immigration system to recognize same sex bi-national couples will also make America more attractive to global talent. According to Immigration Equality, there are an estimated 36,000 same sex bi-national couples in the United States, and those families include 25,000 children. AILA believes that LGBT/same sex families should be included in the definition of the American family and that should be reflected in our immigration laws. I’m ecstatic that the Supreme Court’s ruling today should guarantee all lawfully married couples equal rights in regards to immigration.”
The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.
Reference: AILA InfoNet Doc. No. 13062641 (posted Jun. 26, 2013)
Even if you have an employment authorization document (EAD) for work purposes and an advance parole document (AP) for travel purposes, extending your H-1B visa while your green card application is pending might be worthwhile depending upon your circumstances. Here are three reasons why an H-1B extension could make sense for you:
Safety - if your I-485 application is denied for any reason (even government mistakes), you will have no legal status and can be deported unless you have have nonimmigrant status like H-1B. Also, if you have H-1B status, you may be eligible to re-file your I-485 application. Without it, you might not.
Automatic Extension – even if you file your H-1B extension request the day before your H-1B expires, you will remain in H-1B status and continue to work without interruption while your extension request is pending. This is not true with the EAD. If your EAD renewal is not approved before your current EAD expires, you are not authorized to work until your EAD renewal is approved. Also, you have a small window of time to file the EAD renewal. To be safe, you must file 90 to 120 days before your EAD expires (you cannot file earlier than 120 days before expiration).
Family – if your spouse or child did not file or cannot file for adjustment yet, then maintaining H-1B status may be necessary to maintain status for your dependent spouse or child. Also, if you marry or plan to marry someone who needs a visa, the H-4 visa based upon your H-1B status is the fastest way for him or her to join you in the U.S.
There are many factors to consider in determining the best immigration status for you while your green card application is pending. Even if you decide not to extend your H-1B status or you travel using AP rather than an H-1B visa, you may still have an option of reinstating your H-1B status if necessary. Always consult with an immigration attorney when considering any changes to your immigration status.
This information is provided as an educational service by Badmus Law Firm. If you have questions about immigration rules that affect you, you are invited to call us at 888-849-9104, click here to schedule a consultation.
Because of the continuing armed conflict and worsening of country conditions in Syria, the Department of Homeland Security (DHS) recently announced an extension of Temporary Protected Status (TPS) for certain Syrian nationals and residents who are in the United States. If you intend to apply, here are five key facts you need to know:
1. What is TPS?
TPS is a legal status designated by the DHS, which allows qualified applicants to remain in the U.S. without fear of deportation. It is not permanent residence (green card) and does not lead to a green card. Rather, it is a temporary program of the DHS that can be terminated at any time. Currently, for Syrian nationals and residents, TPS has been extended through March 31, 2015, which means those granted TPS will keep that status through that date. Depending upon country conditions in Syria in 2015, TPS could be extended or terminated at that time.
2. What will happen to applicants if and when TPS ends?
TPS is a temporary benefit. If the DHS terminates the TPS program, your TPS status will be terminated, and you will revert to the status you had before receiving TPS. For example, if you were an F-1 student when you received TPS, you will revert to F-1 status if TPS terminated, provided you are still enrolled in school. If your previous legal status expired, then you are deportable once TPS ends and are expected to leave the United States. Keep in mind that registration for TPS does not prevent you from:
- Applying for any other nonimmigrant status, such as H-1B temporary worker status
- Filing for the green card based on an immigrant petition through qualifying employment or family relationship
- Applying for any other immigration benefit or protection such as asylum, if eligible.
It’s important to know that denial of an application for asylum or any other immigration benefit does not affect your ability to register for TPS. However, the reasons for denial of that application may also lead to denial of TPS.
3. Who qualifies for TPS?
Currently, TPS is available for nationals and residents of Syria, El Salvador, Haiti, Honduras, Nicaragua, Somalia, Sudan, and South Sudan. Syrian nationals and habitual residents are eligible if the following requirements are met:
- You must be a national of Syria, or have no nationality but last normally resided in Syria;
- You must have continuously resided in the United States since June 17, 2013 and remain physically present in the U.S. through October 1, 2013;
- You must not have been convicted of any felony or two or more misdemeanors committed in the United States;
- You must not have been found inadmissible in previous immigration proceedings as an immigrant under certain grounds, including non-waivable criminal and security-related grounds; and
- You must not be subject to any of the mandatory bars to asylum, such as participating in the persecution of another individual or engaging in or inciting terrorist activity.
4. What are benefits of TPS?
The primary benefit of TPS is legal status in the United States, albeit temporary. In addition, applicants can get work authorization in the form of an employment authorization document (EAD) that allows employment with any employer. Applicants also may receive advance parole to allow them return to the United States after international travel. An applicant who leaves the United States without requesting advance parole may lose TPS and may denied re-entry to the United States. Even with approval of advance parole, you should seek legal advice before international travel. In certain circumstances, such as unlawful presence before receiving TPS, you may lose immigration benefits because of international travel.
5. What is the procedure for TPS?
- If you already have TPS from the first registration period in 2012, you must file an application and re-register for TPS from June 17, 2013 through August 16, 2013.
- If your TPS application is pending, you do not need to file another application at this time.
- If you do not have TPS or do not have a pending TPS application, you must apply for TPS between June 17, 2013 and December 16, 2013.
TPS is a valuable benefit for those who qualify and its legal consequences should be understood before applying. Always consult with an immigration attorney when considering any changes to your immigration status. This information is provided as an educational service by Badmus Law Firm. If you have questions about complex immigration rules that affect you, you are invited to call us 888-849-9104 or click here for a consultation.
Here’s the immigration question of the week we received from a client.
Q. My friend who has a green card (lawful permanent residence) is traveling outside of the country and has lost his passport. Can he re-enter the U.S. without his passport?
A. Permanent residents of the U.S. do not need a passport to enter the United States after international travel (see 8 C.F.R. 211.1(a)). They can present their green card alone to the Customs and Border Patrol (CBP) officer at the airport and be admitted to the U.S. However, the airlines may require a valid passport for international travel so all travelers without passports should check with their airline before travel.
Submit your question of the week – email us at email@example.com.