Silicon Valley Immigration Lawyer Blog

In the last few months, comprehensive immigration reform has been pushed into the national spotlight as Congress works to pass legislation to amend the U.S. immigration system. While most of these discussions and prospective changes involve employment-based immigration and how to address the large undocumented immigration population, it has recently come to light that Congress might also include changes to the Temporary Protected Status in its reform legislation.

Temporary Protected Status ("TPS") was created in 1990 as the U.S.'s humanitarian response to the tumultuous civil war in El Salvador. The purpose of this status was to help foreign nationals from countries that were engaged in war (or continuous armed conflicts) or facing natural disasters (such as hurricanes or earthquakes). Because the grant of TPS is dependent upon a country's conditions, the Department of Homeland Security (DHS) designates which countries' citizens are eligible for TPS. Currently, a few designated countries include El Salvador, Haiti, and Sudan.

In general, to qualify for TPS, the individual must be a national of a designated country, file the request for TPS within the designated registration period, have been physically present on a continuous basis in the U.S. since the country's date of designation, and have been residing on a continuous basis in the U.S. since the specific date allotted to the country. Individuals who qualify for TPS are eligible to apply for work and travel authorization. Although, the TPS does not lead to U.S. permanent residence (i.e., a green card), individuals with TPS are allowed to apply for a green card through other avenues such as family or employment.

A grant of TPS is initially valid for 18 months. However, if the individual's country conditions remain dangerous, the TPS can be extended on an ongoing basis, potentially for several years. This constant extension of TPS - that itself offers no pathway to permanent status - has resulted in many TPS individuals encountering difficulty finding employment. Most employers are unfamiliar with the intricacies and realities of many complex immigration laws, and many companies do not want to hire a person with only temporary status - even though that person's status may be extended for more than twenty years.

Because the current state of TPS leaves many individuals in limbo, several immigration advocacy groups are encouraging Congress to include a pathway to permanent residence (and ultimately citizenship) for these foreign nationals.

As with most legislative proposals, it may take a very long time for Congress to decide which changes to make to TPS, if any. In the meantime, the Gee Law Firm will continue to monitor the TPS debate and will provide visitors to our blog with further information on this important subject as it becomes available.

Continue reading "Congress Considers Amending "Temporary Protected Status"" »

The Violence Against Women Act (VAWA) is a law that Congress initially enacted in 1994. The purpose of the VAWA law was to create safeguards and legal remedies for victims of domestic violence. VAWA authorized federal funding allocations for research into domestic violence, prevention efforts, treatment programs for victims, and several other programs aimed at decreasing domestic violence in the United States.

Importantly, VAWA contains many provisions that affect foreign nationals and protect them from crimes of domestic violence perpetrated by U.S. citizens or lawful permanent residents. For example, under VAWA, foreign nationals who are married to U.S. citizens are eligible to "self-petition" on their own behalf (and on behalf of their children) for their green cards, meaning they do not require their U.S. citizen or permanent resident spouse to sponsor them. (Among other requirements, VAWA self-petitions must demonstrate that the victims are people of good moral character, that they have been battered or subjected to extreme cruelty by the citizen or permanent resident, and that leaving the United States would result in their extreme hardship.)

VAWA also created the U visa category. The U visa is reserved for victims of domestic violence (and other crimes) who agree to help the police investigate and prosecute abusers. Any foreign national who has suffered mental or physical abuse as a result of a crime outlined in the VAWA law can potentially qualify for the U visa, and ultimately permanent residence.

The protections afforded by VAWA are necessary to ensure that foreign nationals do not become the victims of stalking, domestic violence, and other crimes committed by U.S. citizens and lawful permanent residents. Unfortunately, citizens and permanent residents may use foreign nationals' immigrant (or illegal) statuses against them in order to make them stay in the abusive situation. The VAWA safeguards ensure that foreign nationals who are victims of domestic abuse can report their abusers without fear of jeopardizing their immigration statuses.

Congress has to periodically reauthorize VAWA and recently Congress did just that. The newest version of VAWA did not create new remedies for foreign nationals, but it did make a number of improvements to their current legal protections. For instance, the new version includes additional safeguards that bolster another existing law, called the International Marriage Broker Regulation Act, to ensure that foreign nationals entering into marriages with U.S. citizens and lawful permanent residents are informed about their future spouses' criminal histories. Moreover, the new bill requires that a federal agency provide Congress with annual reports detailing the processing times and outcomes for VAWA petitions, T visas (visas for human trafficking victims), and U visas. The purpose of these annual reports is to ensure that these critically important immigration petitions are processed as quickly and as efficiently as possible.

Additionally, the newest provision of the bill will also protect bisexual, gay, and transgender victims from domestic abuse.

Continue reading "Congress Reauthorizes the Violence Against Women Act" »

Silicon Valley Congressman Mike Honda recently reintroduced an immigration bill into Congress called The Reuniting Families Act. The goal of this legislation would be to improve the waiting time for family members trying to immigrate under the family-based immigration categories.

U.S. immigration law allows U.S. citizens and lawful permanent residents (green card holders) to sponsor certain family members for green cards. U.S. citizens are eligible to sponsor their spouses, parents (if the U.S. citizen is at least 21 years old), children, and siblings, whereas lawful permanent residents may sponsor their spouses and children.

Family-based immigration, just like employment-based immigration, is subject to quotas put in place by Congress that limit the amount of family-based green cards that may be given out each year. If a U.S. citizen sponsors a spouse, parents, or the citizen's unmarried children who are also under the age of 21, these foreign national relatives are considered "immediate relatives" and are not subject to the family-based quota. Since these relatives are not subject to the quota, as soon as their immigration petition is approved, these relatives are immediately eligible to obtain their green cards.

However, all other classes of relatives are subject to the quota, with the result that families may be separated for years, even decades, while they wait for a green card to become available to a family member.

While employment-based and illegal immigration are often the center points of immigration reform, Congressman Mike Honda wants to ensure that Congress is also giving significant attention to making improvements to family-based immigration laws. With the reintroduction of the Reuniting Families Act, Representative Honda aims to improve the current family-based immigration laws which have not been updated for more than 20 years, according to Representative Honda's website. Representative Honda's website also states that there are approximately 4.7 million foreign nationals who are currently stuck in the immigration waiting line and are waiting for their family-based green card.

The bill contains several provisions. Among these are the legislation's aims to decrease the present waiting times for green cards and to allow U.S. citizens and lawful permanent residents in same-sex relationships to sponsor their spouses (currently these spouses are ineligible for immigration benefits). Additionally, the bill calls for Congress to reduce the backlogs in family-based immigration categories by classifying the spouses and children of lawful permanent residents as immediate relatives, thereby exempting these family members from the quotas (just like these relatives of U.S. citizens are exempt). Importantly, the bill would also remove a number of bars to obtaining a green card for family members of both citizens and permanent residents who were previously deported from the United States.

Continue reading "Congressman Mike Honda Reintroduces the Reuniting Families Act" »

The U.S. federal government is preparing to address its impending forced budget cuts, referred to as sequestration, which amount to approximately $85 million worth of cuts across several government agencies. Citing these future cuts, Immigration and Customs Enforcement (ICE), the agency responsible for identifying and detaining foreign nationals who are subject to deportation, has decided to release several hundred foreign national detainees from ICE custody. Those who are released will remain subject to a "supervised released" program and their deportation proceedings will remain ongoing.

The stated goal of these releases is to alleviate the skyrocketing costs of detention, costs which in the face of sequestration, the agency states it will no longer be able to bear. ICE posits that it costs approximately $165 per person, per day, to detain foreign nationals. These costs include providing food to detainees, maintaining detention centers, and paying staff salaries. A nonprofit organization called the National Immigration Forum estimates that utilizing the supervised release program, which normally consists of an electronic ankle bracelet and regular mandatory check-ins with ICE officials, will cost less than one tenth of regular detention.

According to CNN, ICE employees made the decision to place detainees in supervised release on their own initiative, and the agency did not consult the Obama administration regarding this option. Although ICE has not provided the precise number of detainees to be released, the agency anticipates that it will be "several hundred" of the approximately 30,700 foreign nationals who are currently detained at the 250 ICE detention centers all around the country.

ICE officials have been reviewing the case files of all detainees, and the foreign nationals who are selected for supervised release are low-risk offenders or those with no criminal records at all. ICE states that any foreign national with a serious criminal record, or who is perceived as a national security threat or member of a terrorist group, remains a high priority case for quick deportation and will not be released. Presently ICE is choosing to not reveal the locations of released detainees, but advocacy groups are reporting that detainees have been released from detention centers in Alabama, Texas, New Jersey, Florida, Louisiana, Georgia, New York, and Arizona.

The ICE decision has been met with praise by immigration advocates - who have long favored the supervised release measure - and with anger by immigration opponents. Opponents criticize the move as politically motivated and dangerous, and claim that the supervised release decision will undermine Congress's overall efforts to reach comprehensive immigration reform legislation.

Continue reading "ICE Plans to Release Several Hundred Detained Foreign Nationals" »

The U.S. Customs and Border Protection (CBP) announced that it will be eliminating the I-94 card, an immigration document that was previously very important for foreign nationals.

Currently, every foreign national receives an I-94 card when he or she enters the United States. The CBP officer who checks the foreign national's passport, visa, and other immigration documents issues the card. The card contains an eleven digit number unique to the foreign national, the foreign national's name, date of birth, and visa status (such as F-1, H-1B, etc.) and date the status expires.

The reason why the I-94 card was so important is because it contained the date the foreign national's status expires. The foreign national must depart the U.S. or extend his or her status before the I-94 expiration date or the individual will be unlawfully present in the U.S., which leads to very serious immigration consequences.

Since the I-94 card has been so important for immigrants, it comes as a bit of a surprise that the CBP is going to eliminate it. The CBP offers two reasons for its decision. First, CBP feels that the I-94 card has essentially become unnecessary as the agency already maintains access to the same data that is provided on the card. Foreign nationals provide that information when they initially apply for their visas at U.S. consulates, and the consulates transmit the information back to CBP upon approving and issuing visas.

Second, CBP anticipates that eliminating the I-94 card will save the agency time and money. The agency has estimated that the costs of producing the I-94 cards, both financially and in terms of manpower, amount to $19 million a year.

In consideration of these factors, CBP will be eliminating the I-94 card completely. In its place, the CBP has proposed creating an admission stamp to be placed in foreign nationals' passports. The stamp will have a handwritten notation that states the visa status and expiration date.

Concern over the proposed admission stamp prompted CBP to agree that it would consider instituting an online system that would allow foreign nationals to confirm that the date of their status expiration is correct. The online system would also have a function for foreign nationals to print out an admission record receipt.

(It is important to note that, at the present time, I-94 cards will still be issued to some classes of foreign nationals such as refugees.)

Since these changes are still under discussion, several questions remain unanswered concerning how the elimination of the I-94 cards will relate to other immigration filings. For example, many of the forms utilized by USCIS to process immigration benefits (such as the I-129, I-140, etc.) request the applicant's I-94 number and date. Although CBP has stated that it has communicated its plans to eliminate the I-94 card to USCIS, to date USCIS has not released a statement noting whether or not it will update its forms to reflect the change.

Additionally, and very importantly, the decision to eliminate I-94 cards may also affect immigrants' abilities to obtain driver's licenses. Many state motor vehicle bureaus utilize databases that link a foreign national's legal status to the I-94 card. Once the I-94 card is eliminated, these states would likely have to alter their databases in order to allow for the input of the foreign national's admission stamp to verify their status. These and many other changes can be expected once CBP solidifies its plans for the elimination of the I-94 card.

Continue reading "CBP Plans to Eliminate I-94 Card (Arrival/Departure Record)" »

A bi-partisan group of eight U.S. Senators just recently unveiled their plan to implement comprehensive reforms to the immigration system. Their current plan has four pillars:

1. Institute a "tough but fair" path to citizenship for the undocumented foreign nationals currently residing in the United States. This citizenship plan will be contingent upon increased border patrol and security measures which include implementing an approved tracking system that will ensure authorized foreign nationals depart the country at the end of their stay.

   In order to improve border security, the proposal calls for improving technology and infrastructure at the border, as well as increasing the amount of border agents available to detect and apprehend unauthorized foreign nationals. Additionally, the proposal will improve surveillance equipment.

   The proposal also seeks to institute a commission of community leaders, attorneys general, and Southwestern state governors. The purposes of this commission are for the members to communicate to the Senate observations on the efficiency of these new measures and to make recommendations on how to continuously improve the U.S. border security.

   While securing the border is a top priority, the Senate acknowledges that there must be a path to legal residence for those undocumented foreign nationals who are already in the country. Therefore, the proposal requires that undocumented foreign nationals register with the government, undergo a criminal background check, and pay fines and back taxes. After completing these measures, these foreign nationals will be given probationary legal status which will include work authorization. (Of course, foreign nationals who have serious criminal records or otherwise pose a threat to national security will not qualify for the probationary status.)

   Importantly, the Senate proposal makes a special provision for foreign nationals who came to the U.S. as children and therefore did not knowingly violate immigration laws. These people will have a green card procedure available to them that would not require as long of a wait. Additionally, the proposal also gives special attention to undocumented workers who have been employed in the agricultural industry.



2. Reform the legal immigration pathways to improve the American economy by attracting the world's best and brightest workers; as well as strengthening American families by helping U.S. citizens bring their relatives to the country.To accomplish these goals, the Senate proposes a reduction in the existing backlogs in all of the family and employment-based visa categories. Additionally, to encourage talented workers and scholars to come share their talents with the country, the proposal aims to allot green cards to foreign nationals who have received a PhD or Master's degree in the fields of science, engineering, math, or technology from an American university.


3. Adopt a more effective online employment verification system that will stop identity theft and any future hiring of unauthorized foreign workers. The Senate recognizes that the majority of undocumented foreign nationals come to the U.S. for employment opportunities. Therefore, a new verification system will be implemented to reduce future undocumented immigration. The new system will ensure that employers are held accountable for hiring undocumented workers and will impose heavy fines and criminal penalties. The system will also make it more difficult for these workers to falsify documents for employment. Importantly, the new verification system will contain procedural safeguards to protect American workers, ensure due process protections, and prevent identity theft.


4. Implement new and improved processes for admitting future workers while balancing the needs of and ensuring safeguards for domestic workers. To accomplish these goals, the Senate proposal would allow more lower-skilled workers to come to the U.S. and permit those workers who have greatly contributed to their places of employment to obtain green cards on a faster time horizon.

Continue reading "Senate Unveils Initial Plan for Comprehensive Immigration Reform " »

Foreign nationals eligible for U.S. permanent residence (a green card) can apply for permanent residence either by: (1) completing an "adjustment of status" from within the U.S., or (2) by applying for an immigrant visa at the appropriate U.S. Consulate abroad, and then entering the U.S. as an immigrant.

Foreign nationals who are already in the U.S., and meet exacting criteria, have the option to file an Application to Adjust Status with the USCIS. Once the USCIS approves the applications, the agency creates and mails the green cards to the applicants. Foreign nationals who are abroad must obtain an immigrant visa from the U.S. consulate in their home country (a procedure call "consular processing") and use that immigrant visa to enter the U.S. as an immigrant.

Beginning on February 1, 2013, foreign nationals who obtain immigrant visas via consular processing will now be required to pay a USCIS Immigrant Fee of $165 USD. (Note that this new fee is in addition to the present Department of State visa application processing fee.)

When immigrant visa holders enter the U.S., their documents are forwarded to USCIS for USCIS to create and mail their green cards. The new fee, which was announced on September 24, 2010, will assist USCIS in recovering its costs of processing these immigrant documents and producing and delivering the green cards to the new permanent residents.

Almost every foreign national who completes consular processing on or after February 1, 2013 will be required to pay the new USCIS Immigrant Fee. However, the fee will not be required from foreign national children who are coming to the U.S. pursuant to an intercountry adoption arrangement (but USCIS has stated that it will consider implementing a fee for adopted children during its next fee discussion).

Foreign nationals subject to the new fee are required to pay the fee online at the USCIS website. Applicants can pay the fee by providing their checking account information or debit/credit card information at the USCIS website. USCIS assures immigrant visa applicants that its website is secure and protected against identity theft.

Immigrant visa applicants are instructed to make their fee payments after they receive their visa packages from the Department of State but before they leave for the United States. If the applicant cannot make the payment, someone else can make it on the applicant's behalf.

The failure to pay the new fee will not affect the applicant's lawful permanent resident status. However, foreign nationals will not receive their green cards until the fee is paid. Instead, when the foreign national enters the U.S. with the immigrant visa, the immigration officer will stamp the person's passport with a stamp showing that the person is a lawful permanent resident. This stamp will be valid for only one year, so it is in foreign nationals' best interests to pay the immigrant visa fee as soon as possible.

Continue reading "New Immigrant Fee Effective February 1, 2013" »

USCIS, the federal agency that reviews and adjudicates immigration petitions, recently announced that it will be making a comprehensive Policy Manual available online in the coming weeks.

The USCIS Policy Manual will outline the agency-wide procedures and practices that adjudicators abide by when reviewing petitions for immigration benefits. The Policy Manual will be separated into chapters, with each chapter dedicated to a different area of immigration such as employment-based immigration, family-based immigration, asylum, and citizenship/naturalization.

This is the first time in the agency's history that it has undertaken a project to transition all of its adjudication policies to an online volume. To do so, USCIS conducted an extensive internal review of all of its current policies and procedures, and conducted a survey of both the public and USCIS adjudication officers. The agency received 8,000 responses to its survey and utilized the information to make the Manual readily accessible and easy to navigate.

According to USCIS, the move to adopt a publically accessible Policy Manual was driven by the agency's desire to improve the quality, transparency, and efficiency of its immigration adjudications. This is a major step toward ensuring fair and uniform decision making in the immigration petition review process. USCIS has stated that its ultimate goal is to have the Policy Manual replace the currently used Adjudicator's Field Manual and the USCIS Immigration Policy Memoranda site. By consolidating all of the agency's practices and procedures into one comprehensive volume, USCIS is providing immigrants, employers, and families of immigrants with access to information that can help them prepare their applications in accordance with the prevailing guidelines.

For example, USCIS just released Chapter 12 of the Policy Manual which discusses citizenship and naturalization regulations. The Manual provides detailed information on the requirements for becoming a citizen. One of the citizenship requirements is that the applicant must be a person of "good moral character" for the five years preceding the citizenship application and up to the time the person takes the Oath of Allegiance. In addition to the explanation of what exactly good moral character is, the Manual goes on to provide extensive information on the various criminal convictions that can adversely affect the applicant's good moral character.

The Manual is further divided into subsections dedicated to such important topics as revocation of naturalization, permanent bars to naturalization, posthumous citizenship, and other areas. The text also contains helpful links to relevant or cited sections of the Immigration and Nationality Act (INA) and the U.S. Code of Federal Regulations (CFR). In addition to all of the explanatory text and accompanying links, USCIS plans to include illustrative tables and charts to help readers better understand complicated immigration regulations.

If this released chapter on citizenship and naturalization serves as the example for how the rest of the Policy Manual will be organized, this Manual will prove to be an invaluable resource to those preparing immigration petitions. Since the Manual outlines the precise materials and documents that USCIS adjudications officers will be looking for when reviewing petitions, applicants will be better prepared to complete successful applications by following these guidelines.

Continue reading "USCIS Introduces Comprehensive Online Policy Manual" »

USCIS recently announced a new immigration procedure that will allow certain family members of U.S. citizens who are in in the United States illegally and need to apply for a waiver before becoming eligible for a green card, to apply for that waiver before leaving the United States.

Currently, certain relatives of U.S. citizens who are eligible for a family-based green card, but have been living in the U.S. illegally, must depart the U.S. and apply for their green card at the U.S. Consulate abroad. Because they have been in the U.S. illegally, they must apply for a waiver. When departing the U.S., families take a major risk that the waiver will not be approved, meaning the green card will be denied and the family member will be stuck outside the U.S. Even if the waiver is actually approved, it can often take months, leaving family members separated.

The new procedural rule, which will go into effect on March 4, 2013, will allow certain immigrant relatives to apply for a "provisional unlawful presence waiver" in connection with their green card applications. The provisional waiver application will be made on the Form I-601A which USCIS will publish in the upcoming weeks.

If approved, the waiver will allow the immigrant relative to depart the U.S., attend his/her immigrant visa interview abroad, and return to the U.S. without significant delay in order to receive the green card. This new rule represents groundbreaking progress for immigrants and their U.S. citizen relatives, as the previous procedure required immigrants to apply for their waivers after leaving the U.S. and remain outside the U.S. while they awaited the waiver's approval. This old procedure resulted in many families suffering long separations from their spouses, children, and parents for several months or even many years.

An immigrant relative will require an unlawful presence waiver if the person accrued more than six months of unlawful presence (i.e. illegal stay) in the U.S. and wants to apply for a green card. There are three main requirements to qualify for the waiver:

1. The applicant must be an "immediate relative" of a U.S. citizen. In family-sponsored immigration, immediate relatives are spouses, parents (if the U.S. citizen is at least 21 years old) and children (if the children are under the age of 21).
2. The applicant's only ground of inadmissibility is the unlawful presence (the applicant cannot have a criminal record or other immigration violations).
3. The applicant must prove that a denial of the waiver application would result in extreme hardship to the applicant's U.S. citizen relative.

This third requirement of proving extreme hardship is often the most difficult part of the application but it is also arguably the most important. There are no steadfast rules for proving extreme hardship, but typical hardship factors include the potential effects of the family separation if the U.S. citizen cannot accompany the immigrant relative abroad, economic hardship the U.S. citizen would suffer if the immigrant relative must depart the U.S., medical issues the U.S. citizen must deal with that require the constant assistance and care of the immigrant relative, and country conditions abroad that would adversely affect the U.S. citizen if he/she accompanied the immigrant relative abroad.

Although the provisional waiver represents a great victory for immigrant relatives, there are limits to the new waiver's benefits. For example, the waiver is called "provisional" because the government could revoke the waiver after granting it. The government may revoke the waiver if it discovers that the applicant has other immigration violations or a criminal record that were not disclosed on the provisional waiver application. Additionally, it is important to remember that the provisional waiver does not confer any legal immigration status and it does not provide work authorization.

Continue reading "USCIS Announces Provisional I-601 Waiver" »

CNN recently reported that President Obama signed a rare private bill for immigration relief on Tuesday of last week. This bill granted Nigerian student Victor Chukwueke U.S. permanent residence (i.e. a green card). Typically, in order to obtain permanent residence the foreign national must have a U.S. employer or a U.S. citizen/permanent resident family member sponsor the foreign national's green card application. However, in a very small number of cases, Congress has the ability to bypass this sponsorship requirement and grant permanent residence to a foreign national on Congress's own initiative.

Mr. Chukwueke is one of these special cases. He originally came to the U.S. 11 years ago at the age of 15 to receive critically needed medical care to treat his massive facial tumors. Mr. Chukwueke suffers from neurofibromatosis, a genetic disorder that causes him to develop gigantic and life-threatening tumors on his face. In his native country of Nigeria, Mr. Chukwueke's disease is not well-understood and he was treated as a social outcast for most of his life. He was ultimately abandoned by his family at a Nigerian orphanage.

In 2001, nuns from the Daughters of Mary Mother of Mercy found Mr. Chukwueke at the Nigerian orphanage, took him into their convent, and arranged for him to travel to the U.S. where a Michigan-based doctor treated his severe facial tumors.

Mr. Chukwueke's treatments were a profound success and he now resides in Michigan with the nuns who helped him secure his medical procedures. Although he has had seven surgeries, including one that permanently blinded him in one eye, Mr. Chukwueke obtained his GED (the equivalent of a high school diploma) and successfully pursued his Bachelor's degree in Biochemistry and Chemical Biology from Wayne State University. Now, he wants to attend the University of Toledo to pursue his medical degree. However, that university's medical program required Mr. Chukwueke to obtain permanent residency status before he could attend the school.

To assist Mr. Chukwueke in becoming a U.S. permanent resident, Michigan Senator Carl Levin sponsored a private bill of relief for Mr. Chukwueke, calling on Congress to approve him for a green card. The bill passed the Senate last summer and just passed the House.

Such private bills of relief are exceedingly rare and Mr. Chukwueke's bill is the first to have passed the Senate and House in two years. These bills are usually successful in only a small number of cases where the foreign national is suffering from a set of very extreme circumstances, such as Mr. Chukwueke and his facial tumors.

However, although rare, that is not to discourage prospective foreign national from considering a private bill as a form of immigration relief. To do so, the foreign national must find a Congressional Representative or Senator who would be willing to sponsor the bill and introduce the bill into Congress. After the bill is introduced, the foreign national must provide information about him/herself to the chair of the Immigration Subcommittee. Once the Subcommittee approves the bill, it moves to the House and Senate for final voting. If both the House and Senate approve the bill, the President will sign the bill and the foreign national will become a U.S. permanent resident.

Continue reading "President Obama Signs Rare Private Immigration Bill " »

Customs and Border Protection (CBP), the agency responsible for admitting travelers and residents to the U.S., recently answered questions regarding international travel for lawful permanent residents (LPRs). This question and answer session was conducted by the American Immigration Lawyers Association.

As an experienced Silicon Valley Immigration Attorney, I know that long and/or multiple periods of international travel can create serious issues for some LPR clients. Typically, most LPRs do not encounter any delays or issues when returning to the U.S. after international travel, if their trip only lasted a few days or a couple of weeks. However, when an LPR begins to take multiple, prolonged trips outside the U.S., CBP can question whether the LPR has abandoned his/her permanent residency, and can even refuse to allow the LPR to re-enter the country or place the LPR in removal (deportation) proceedings.

At the question and answer session, the CBP explained that a CBP officer may put a returning LPR into removal proceedings if the officer thinks the LPR has abandoned his/her U.S. permanent residence - meaning that the officer thinks the LPR does not truly intend to live in the U.S. indefinitely. There is no hard-and-fast rule for determining abandonment, but in general if the LPR had been outside of the U.S. for more than 180 days, a CBP officer may suspect abandonment.

Of course, there may be circumstances which require an LPR to remain outside of the U.S. for more than 180 days, such as to take care of or visit an ailing relative, or to perform long-term work assignments. If an LPR knows that he/she will be out of the U.S. for a lengthy period, the LPR should take steps to preserve his/her permanent residency by maintaining proof of the LPR's intent to return and live in the U.S. after the trip abroad. The LPR can bring this proof to CBP upon returning to the country.

There are many types of evidence the LPR can compile in order to show intent to remain a U.S. permanent resident:

• proof of property ownership in the U.S. (deed, lease, etc.)

• proof of U.S. finances (stocks, bank accounts, savings accounts, credit cards, etc.)

• proof of family members residing in the U.S. (school records for children, spouse's employment records, etc.)

• proof of participation/membership in U.S. employment groups (professional associations, trade groups, etc.)

It is also a good idea to have proof of the LPR's need for the long international trip such as a letter from the employer confirming the lengthy work assignment. Additionally, it is very, very important for ALL LPRs to pay U.S. federal and state taxes every year, and to keep copies of tax payments.

In certain cases. it may be advisable for the LPR to obtain a Reentry Permit. Obtaining a Reentry Permit can help the LPR demonstrate to CBP that he/she did not intend to abandon the U.S. permanent residence. An LPR must apply for a Reentry Permit while the LPR is physically in the U.S. and the permit is normally valid for two years from the date of issuance.

Continue reading "CBP Updates for Traveling with Green Cards" »

Yesterday marked the first day that undocumented young people can apply for deferred action. The USCIS is actually calling this program "Deferred Action for Childhood Arrivals", or DACA. This past June, the USCIS announced that undocumented young people who meet specific eligibility criteria could apply for deferred action. Deferred action allows people to remain in the U.S. without threat of removal (deportation). Under this program, it also allows people to apply for a renewable, two-year employment authorization document.

As a Silicon Valley immigration lawyer, I often meet people who have attempted to apply for a U.S. immigration benefit on their own, by following the instructions on the USCIS website. While plenty of people navigate the USCIS instructions without issues, the people I meet with who have done this have typically run into serious problems that result in denials or even removal proceedings. Simply because the forms are online, and typically ask for "simple" personal biographic information, does not mean the process is "simple". The real challenge is determining eligibility, evaluating risks if found to be ineligible, considering background information that can adversely affect an application, and compiling supporting documentation to establish that eligibility criteria are met.

As with other immigration benefits, for DACA, applicants must submit forms that can now be found on the USCIS website. Form I-821D appears straightforward enough, asking about biographic information, education, travels, and any criminal issues. But reviewing the USCIS main DACA page should alert applicants to the potential complexities and risks of applying for this benefit. The most important factor to consider is the risk to those people not currently in any removal proceedings. By coming forward and providing their contact information to the USCIS, applicants essentially put themselves on the U.S. government's radar. One of the headings on the USCIS' web page is, "Will the information I share in my request for consideration of deferred action for childhood arrivals be used for immigration enforcement purposes?" The answer is, as long as the case qualifies for deferred action, then "no". Unless it's to prevent fraud, for national security purposes, or to investigate or prosecute crimes. In this same paragraph, the USCIS concludes with their own disclaimer that essentially states this policy can change at any time without notice. So basically, you take your chances if it makes more sense to go for it as opposed to remaining under the radar.

Continue reading "Applying for an Immigration DREAM is actually a Complex Process" »

There are not many aspects of the immigration debate that Democrats and Republicans seem to agree on. Across issues of border enforcement, amnesty, and immigrant rights, infighting and animosity seem like more fitting descriptions of their relationship than collaboration and mutual respect. It is consequently significant that, amid the general atmosphere of dissension in party politics, legislative efforts to facilitate the immigration of foreign entrepreneurs and innovators have obtained support from a handful of Democratic and Republican Senators alike. Recently introduced by Republican Senators Jerry Moran (R-Kan.) and Marco Rubio (R-Fla.) and Democratic Senators Mark Warner (D-Va.) and Chris Coons (D-Del.), Startup Act 2.0 would expand incentives for U.S.-educated, highly-skilled immigrants to remain in the U.S., as well create new visa opportunities for immigrant entrepreneurs.

Specifically, the Act would create new employment visas for up to 50,000 foreign nationals who graduate from a U.S. university with a MA or PhD in a science, technology, engineering, or mathematics (STEM) field. These beneficiaries would hold conditional status upon remaining in employment in a STEM field for five consecutive years, after which they would become eligible to apply for a green card. The Act would also create 75,000 new visa opportunities for immigrant entrepreneurs on H-1B visas or who have finished graduate work in a STEM field, and who, within one year of the receipt of the visa, open a new business with a valuation of at least $100,000 that employs at least two full-time, non-family employees. Most significantly, the passage of the Act would eliminate the per-country numerical limitations for employment-based immigrant visas, as well as adjust the limitations on family-based visa petitions from 7% to 15% per country. This could have a large impact on immigrant workers especially from countries like China and India, who face particularly long waiting periods for visas.

Startup Act 2.0 is one of at least eight other bills that seek to promote job creation and stimulate the U.S. economy through the streamlining of the process for obtaining specialty business visas for foreign high-skilled workers with backgrounds in STEM fields. As an immigration lawyer in the Silicon Valley, I recognize the importance of these bills in attracting foreign talent to contribute to the growth of the U.S. economy. Indeed, the evidence makes clear that immigrant specialty workers have played a crucial role in this country's economic development.

Continue reading "Startup Act 2.0 Receives Bipartisan Support in Congress" »

To err is human. While the expression is over three hundred years old, penned by the hand of the great eighteenth-century English poet Alexander Pope, it has since taken on a colloquial utility, used or at least known by everyone. Even the United States Citizenship and Immigration Service (USCIS) has realized that it is not infallible to human error. In a laudable showing of acknowledgement of its fundamental humanity, the USCIS established last month a process that allows immigrant petitioners who have received an unfavorable ruling in their case due to a specifically-defined administrative error to request for expedited review for corrective action. The new process is a significant step forward in ensuring judicial fairness for immigrant petitioners, particularly for those whose cases would have otherwise received a favorable adjudication.

Under the guidelines for the process for expedited review, the USCIS has outlined four "specifically-defined" administrative errors for which a petitioner may submit a service request. Petitioners may apply for expedited review only in the following circumstances:

1. If the USCIS issued an adverse decision based exclusively on the customer's failure to respond to a Request for Evidence (RFE), Notice of Intent to Deny (NOID), or Notice of Intent to Revoke (NOIR), and the customer possesses documentary evidence that he replied to the Requests and/or Notices in a timely manner.
2. If the USCIS issued an adverse decision based exclusively on the customer's failure to respond to a RFE, NOID, or NOIR, and there is evidence that the USCIS failed to send the Notices or Requests to the petitioner or his attorney or representative of record.
3. If the USCIS issued an adverse decision based exclusively on the customer's failure to appear at a biometrics appointment or failure to respond to an RFE, NOID, or NOIR, and there is evidence that that the petitioner properly submitted a change of address prior to the issuance of the Notice or Request to the wrong address.
4. If the USCIS issued an adverse decision exclusively based on the petitioner's failure to appear at a biometrics appointment, and there is evidence that the petitioner attended the appointment or properly filed to reschedule the appointment.

While the above administrative errors are likely the most common and easily correctable, they are not inclusive of all types of administrative errors that I believe should fall under the criteria for expedited review. As an immigration lawyer who has practiced the last ten years in Silicon Valley, I have seen a handful of bureaucratic mistakes by USCIS. One administrative error not listed under the criteria for expedited review is when a petitioner calls to reschedule an interview and receives a Notice from the National Customer Service Center (NCSC) confirming the request, but the USCIS denies an application solely because the petitioner failed to attend the interview.

Continue reading "USCIS Sets Guidelines for Expedited Review for Cases Affected by Administrative Errors" »

Mixed vibes of part celebration and part mystification are coursing through the conversations of many Silicon Valley residents following the news of Facebook's acquisition of the popular photo-sharing company Instagram for an astounding $1 billion. Despite the start-up company's infant status at barely one-and-a-half years old, Instagram has grown quickly since the release of its app that allows users to take stylized pictures through the program's filters. The service has over 30 million users, who, according to the company's report, upload an estimated 5 million photos via mobile technologies each day.

But beneath Instagram's success lies another important story of one of its co-founders, Mike Krieger. Krieger is a Brazilian immigrant who moved to California in 2004 on a student F-1 visa to study computer science and cognitive science. Following graduation, he worked for a year on his F-1 visa, most likely also in the Optional Practical Training program, and eventually applied for an H-1B visa as a specialty worker. Krieger has since applied for a U.S. green card, but, as he recalls in a contributory post on the White House blog, the road to obtain legal permanent resident status has not always been a smooth one.

As an immigration attorney in Silicon Valley, I recognize the value of foreign entrepreneurship and innovation in the ever-evolving technology industry. Highly-skilled professional immigrants have helped establish major high-tech companies, opening hundreds of thousands of job opportunities and stimulating the U.S. economy. You may recall that Andy Grove, the former chairman and CEO of Intel, is an immigrant from Hungary; that co-founder of Yahoo Jerry Yang came from Taiwan as a child; or even that Google co-founder Sergey Brin originally hailed from Russia. Krieger is the most recent incarnation of this established line of entrepreneurial spirit that knows no boundaries between foreign and native-born talent.

Continue reading "Yet More Silicon Valley Immigrant Entrepreneurs" »