bkvj5682-5be78r7ur3mjihrj

Client Advisory: ICE Presence at U.S. Airports During DHS Shutdown

Mon, 23 Mar 2026 20:59:04 GMT

Recent reports indicate that the Trump administration has begun deploying U.S. Immigration and Customs Enforcement (ICE) personnel to certain domestic airports in response to significant staffing shortages and long security lines associated with the ongoing Department of Homeland Security (DHS) shutdown, now in its sixth week.

Public statements by President Trump over the weekend suggested that ICE agents would play an expanded role at airports, including potential immigration enforcement activity, even while administration officials have indicated that the primary stated purpose of these deployments is to assist the Transportation Security Administration (TSA) with operational support, such as managing lines and passenger flow. At this time, the scope of ICE authority and the extent of any enforcement activity in airport settings remain unclear. ICE personnel have reportedly been deployed to multiple major airports nationwide.

Practical Guidance for Clients

Out of an abundance of caution, individuals who do not have readily available proof of lawful status, or who are in the process of resolving or adjusting their immigration status, should postpone domestic air travel at this time. As always, individuals should carry valid government-issued identification and, where applicable, documentation evidencing lawful immigration status when traveling within the United States.

USCIS Now Accepting Only Electronic Payments for Benefit Requests, With Exceptions

Mon, 24 Nov 2025 22:44:13 GMT

U.S. Citizenship and Immigration Services (USCIS) released a reminder that as of October 28, 2025, it is accepting payments only through Pay.gov for benefit requests filed electronically, with some exceptions. For benefit requests mailed to USCIS, it will only accept ACH debit transactions using Form G-1650, Authorization for ACH Transactions , or credit, debit, or prepaid card payments using Form G-1450, Authorization for Credit Card Transactions .

Those who qualify for an exemption from the requirement to use an electronic payment method should mail the benefit request, with the correct fee payment and a completed and signed Form G-1651, Exemption for Paper Fee Payment , to the appropriate lockbox . Practitioners recommend placing the form on top of the packet (including the cover letter) so USCIS sees the form first.

USCIS said that those requesting an exemption must certify that electronic payment and collection methods are not possible and they meet one or more of the following requirements:

• They do not have access to banking services or electronic payment systems;

• Electronic disbursement would cause them undue hardship, as discussed in 31 C.F.R. Part 208;

• Non-electronic transactions are necessary or desirable for national security or law enforcement reasons; or

• There are other circumstances as determined by the Secretary of the Treasury, as reflected in regulations or other guidance.

What Employers and Workers Need to Know: The new $100,000 H-1B Fee

Thu, 25 Sep 2025 19:52:29 GMT

On September 19, 2025, a presidential proclamation introduced a major change to the H-1B visa program: a $100,000 one-time fee for certain H-1B visa petitions. Effective September 21, 2025 at 12:01 a.m. Eastern daylight time, this fee applies to new petitions filed by employers seeking to bring in foreign workers in “specialty occupations.”

Key Provisions

Who the fee applies to : Only new H-1B petitions filed after the effective time/date. It does not apply to current H-1B holders, extensions, amendments, or petitions already filed before that time.
Who pays : The submitting employer (petitioner) must pay the fee — it's not the beneficiary/visa holder.
Duration: The restriction tied to this fee lasts for 12 months unless extended.
Purpose : The policy aims to discourage companies from filling roles with lower-wage foreign workers instead of domestic ones, and to prioritize high-paid, highly skilled foreign workers. It also plans to adjust prevailing wage levels and possibly modify the way H-1B visas are selected under the cap (favoring higher wages).

Clarifications & Exceptions

Existing visa holders : If you already hold an H-1B visa, or have an approved petition that started before the proclamation’s effective date, you are not impacted by the new fee. Travel/return to the U.S., status renewals, etc., remain unaffected.
Extension, amendment, change of employer : Standard renewals or changes for someone who already holds H-1B—not considered “new employment” under USCIS definitions—do not trigger the fee.
National interest exemption : The Secretary of Homeland Security may waive the fee in certain cases, for particular individuals, entire companies, or industries, if hiring is deemed “in the national interest.”

Anticipated Impacts

For Employers

Increased Costs : Employers face a dramatic rise in the cost of sponsoring new H-1B employees. Historically, filing fees totaled several thousand dollars; the additional $100,000 surcharge significantly alters cost-benefit considerations.
Hiring Decisions : The fee is likely to deter some employers from sponsoring new H-1B workers, particularly in lower-salary positions.
Operational Shifts : Companies may reconsider workforce planning, evaluate alternative visa categories (L-1, O-1, TN), or explore remote employment options abroad.

For Foreign Nationals

Reduced Opportunities : Prospective H-1B candidates may face fewer sponsorship offers as employers reevaluate their budgets and hiring strategies.
Timing Considerations : Individuals with pending or approved H-1B petitions filed before September 21, 2025, remain unaffected, underscoring the importance of filing timelines.
Alternative Pathways : Candidates may increasingly look to other immigration categories or consider employment opportunities in countries with more favorable immigration regimes.

For the Broader U.S. Economy

Talent Acquisition Challenges : Industries dependent on highly skilled foreign workers—particularly technology, engineering, and healthcare—may experience shortages.
Global Competitiveness : Critics warn that the surcharge could reduce the United States’ attractiveness as a destination for top global talent.
Legal Challenges : Several states, including California, have already started litigation challenging the proclamation.

Unresolved Questions

Collection Mechanism : Details on how and when the fee will be collected (e.g., at petition filing, visa issuance, or port of entry) remain unclear.
Scope of Waivers : It is not yet known which categories of workers or industries may be considered for discretionary exemptions.
Future Extensions : Although the measure is set to expire in 12 months, there is potential for extension or for Congress to enact related legislation.

What Employers & Foreign Workers Should Do Now

Evaluate Pending and Planned Filings: Employers should review all upcoming H-1B petitions and consider advancing filings prior to the effective date where possible.
Assess Workforce Needs : Companies should carefully weigh the costs of new H-1B sponsorships against alternative visa options or domestic hiring strategies. Budget for the fee when planning hiring:, especially for roles that will require new H-1B approvals.
Monitor Legal Developments: Litigation may affect implementation or duration of the fee. Employers should remain informed of ongoing challenges.
Seek Legal Guidance: Immigration counsel can advise on exemptions, alternative visa categories, and compliance strategies tailored to specific business needs.

Bottom Line

The new $100,000 H-1B fee marks a significant shift in the U.S. approach to high-skilled migration. It makes the cost of sponsoring a brand-new specialty-occupation worker much higher, while protecting status and benefits for existing H-1B workers. Its short-term effect will be felt immediately by employers and prospective foreign workers outside the U.S., and its long-term implications may reshape how H-1B is used in the tech, health, and engineering sectors.

A Guide for Employers: What To Do If Immigration Comes To Your Workplace

Mon, 03 Feb 2025 16:37:52 GMT

Courtesy of the National Immigration Law Center in collaboration with The National Law Employment Project

Immigration agents may come to your workplace for a Form I-9 audit ; a raid ; or to detain specific people .

What is a Form I-9 Audit?

A Form I-9 audit is when ICE comes to your business to check if you followed the rules for Form I-9.
Form I-9 confirms a worker’s identity and authorization to work in the U.S.
Employer I-9 Requirements
Form I-9 is required for all new employees.
You must keep I-9 forms on file for 3 years after hiring or 1 year after the worker’s last day of work, whichever is later.
Do not ask a worker to fill out Form I-9 more than once unless their work permit is about to expire or you have another valid, legal reason.
Note: You do not have to keep copies of a worker’s ID or work authorization documents.

If the Audit Does Not Go Well . . .
If ICE decides you did not follow the Form I-9 rules, you may face:

An order to stop hiring people without valid work permits.
Civil and criminal fines and penalties.

Learn more about Form I-9 in the Handbook for Employers at https://www.uscis.gov/i-9-central/ form-i-9-resources/handbook-for-employers-m-274.

What Is an ICE Raid?

ICE agents go to a worksite without warning as part of an investigation into an employer.
ICE agents are not police officers. But their uniforms may say “Police” or “Federal Agent.” They may carry guns. Sometimes local police officers or agents from other federal agencies go with ICE agents on ICE raids.

What if ICE Wants to Detain a Specific Worker?

ICE agents may come to your business to try to find a particular person (or people). While they are there, they may try to question, detain, and even arrest other people.

HOW EMPLOYERS CAN PREPARE FOR ICE ACTIONS

1. Make a Written Response Plan Ahead of Time

Talk to other businesses or business associations. Ask what they are doing to prepare.
Make a plan that works for you.
Practice – just like a fire drill. You will be more prepared if you know what to say and do.
Connect with immigration response networks in your area. They provide support with family, legal, financial, and media concerns if immigration agents come to your business.

2. Train Your Staff to NOT TALK to ICE Agents

Train all workers to NOT allow ICE agents to enter your workplace.
A worker can say, “I can’t give you permission to enter. You must speak with my employer.”
Train all workers to NOT interact with ICE agents. If ICE agents have questions or requests, workers should say nothing, or say, “You are not allowed to enter. Talk to my employer.”

3. Know Your Rights!

Employers have rights when ICE goes to a business. ICE agents do not always have a right to enter your business, stop or arrest workers, or take documents.
Work with a community or legal group to arrange a “Know Your Rights” training for you and your staff and pay your staff for the time they spend in training.

WHAT EMPLOYERS SHOULD DO WHEN ICE ARRIVES

For Public Areas

Anyone – including ICE agents – can enter public areas of your business without permission.
Public areas include a dining area in a restaurant; parking lot; lobby or waiting area.
Being in a public area does NOT give ICE the authority to stop, question, or arrest just anyone.
No one can enter a private area of your business without your permission or a judicial warrant.

TIP: To show that some areas are private, mark them with a “Private” sign, keep the doors closed or locked, and have a policy that visitors and the public cannot enter those areas without permission.

For Private Areas

Immigration agents can enter a private area ONLY IF they have a judicial warrant.
A judicial warrant must be signed by a judge and say “U.S. District Court” or a State Court at the top.
Without a judicial warrant, ICE agents need YOUR permission to enter private areas of your business.
If ICE agents try to enter a private area, you should say: “This is a private area. You cannot enter without a judicial warrant signed by a judge. Do you have a judicial warrant?”
If ICE agents tell you that they have a judicial warrant, ask for a copy and read it. The employer can accept the warrant but still decline to consent to the search.
Sometimes, ICE agents try to use an administrative warrant to enter. But an administrative warrant does NOT allow agents to enter private areas without your permission. Administrative warrants are not from a court. They say “Department of Homeland Security” and are on Forms I-200 or I-205.

During the Raid

Stay calm! Ask workers to stay calm, too. Do not run to the exits. This will make things worse because ICE agents can say that people who are running are likely violating immigration laws.
When ICE shows you an administrative warrant with an employee’s name on it:

You do NOT have to say if that employee is working on that day or not.
You do NOT have to take the ICE agents to the employee named on the warrant (even if he or she is at work at the time).
Do NOT help ICE agents sort people by their immigration status or the country they are from.

Watch the agents and see if they are complying with what’s written in the warrant. If the agents are searching areas not listed in the warrant, object to those searches by voicing your objection and noting it.
If you or an employee is willing, you should video or record what the ICE agents do at your workplace. You may be able to prove the agents violated your rights or the workers’ rights. Save any company surveillance footage taken during the raid.

What if ICE Agents Try to Stop, Question, Detain, or Arrest a Worker?

ICE agents may try to stop, question, or even arrest a worker without the proper authority.
The best way for workers to protect their rights is to stay silent and ask for an attorney.
Workers do not have to hand over any IDs or papers to ICE. All workers have this right.
Any information that workers give to ICE can be used against them later.

Immediately After the Raid

Write or record these things after ICE leaves:
How many ICE agents were present (inside and outside)?
How were the agents dressed? How were they armed?
Did the agents make you or the workers believe you could not move or leave?
Did the agents mistreat anyone? If yes, how?
Notify the employees’ union.
If ICE arrests any of the workers, ask the ICE agents where they are being taken. This information will help the worker’s family and lawyer find the person.

What to Do in an I-9 Audit

When ICE notifies you that there will be a Form I-9 audit, contact an immigration lawyer. Also notify the workers and, if they have one, their union representative about the audit.

The law gives you 3 work days to produce your I-9 Forms. Do not provide your documents early.
You have the right to speak to your lawyer before answering questions or signing ICE documents.
Allow the employees to have coworkers or union representatives present when discussing I-9 audits.
After reviewing the I-9 forms, ICE may find some employees are not authorized to work. If that happens, ICE will give you 10 days to provide valid work authorization for these employees. If you can’t provide the documents by that time, you will be told to end their employment.
If this happens, you must notify the affected workers of the audit.
Ask ICE for more time. This will give affected workers more time to talk to an immigration lawyer.
If the workers belong to a union, you may need to provide copies of the audit documents to the union and work with the union as you respond to the audit.

What to Do After an ICE Raid or I-9 Audit

After an ICE raid or I-9 audit, one or more of the workers may face deportation or be unable to return to work. This could impact your business and workers' morale. Here is what you can do to provide support to the staff and community.

OFFER LEAVE WHILE AFFECTED WORKERS APPLY FOR WORK AUTHORIZATION

Give affected workers leave while they take care of getting their papers, or allow them to return to their same positions with full seniority and benefits once they provide their authorization papers.

PAY WAGES & BENEFITS PROMPTLY

Pay workers any wages and benefits they are due.
Make sure you follow the requirements of federal and state labor laws.

PROVIDE SEPARATION PAY TO WORKERS WHO CANNOT RETURN TO WORK

Workers who are not able to return to work will need money to support themselves and their families. They may need to pay for legal assistance.
If you do not have a separation pay policy, consider giving extra funds to workers in this

DURING AN IMMIGRATION ACTION

If ICE agents enter a public area of your business, say: “I am the employer.
You cannot go to other areas of the workplace without my permission.”
If ICE agents try to enter a private area, say: “This is a private area.
You cannot enter without a judicial warrant signed by a judge. Do you have a judicial warrant?”
Encourage your staff to video or take photos during an immigration action (if they are willing).
If the agents have a judicial warrant signed by a judge, ask for a copy and read it.
Make a copy if you can. You can still decline to give consent for the search.
Watch the agents carefully. Keep track of what they do. See if they are following what is written on the warrant. For example, the warrant may limit the areas the agents can search.
If ICE agents try to question you or the workers, remind the workers they have a right to stay silent and to ask for a lawyer.
When immigration agents leave, record or write down everything you saw. This will help you remember the details when you talk to a lawyer later.

DHS Final Rule Updates H-1B Program, Form I-129

Mon, 23 Dec 2024 16:58:27 GMT

The Department of Homeland Security (DHS) announced a final rule, effective January 17, 2025, that will "significantly enhance U.S. companies' ability to fill job vacancies in critical fields, strengthening our economy." The new rule "modernizes the H-1B program by streamlining the approvals process, increasing [DHS's] flexibility to better allow employers to retain talented workers, and improving the integrity and oversight of the program." To implement this rule, a new edition of Form I-129, Petition for a Nonimmigrant Worker, will be required for all petitions beginning January 17, 2025.

Among other things, the final rule:

• Updates the definition and criteria for specialty occupation positions and for nonprofit and governmental research organizations that are exempt from the annual statutory limit on H-1B visas.

• Extends certain flexibilities for students on an F-1 visa seeking to change their status to H-1B to avoid disruptions in lawful status and employment authorization for those F-1 students.

• Allows U.S. Citizenship and Immigration Services (USCIS) to process applications more quickly for most individuals who had previously been approved for an H-1B visa.

• Allows H-1B beneficiaries with a controlling interest in the petitioning organization to be eligible for H-1B status subject to "reasonable conditions."

• Codifies USCIS' authority to conduct inspections and impose penalties for failure to comply.

• Requires employers to establish that they have a bona fide position in a specialty occupation available for the H-1B worker as of the requested start date.

• Clarifies that the Labor Condition Application must support and properly correspond with the H-1B petition.

• Requires the petitioner to have a legal presence and be subject to legal processes in court in the United States.

There will be no grace period for accepting prior form editions, DHS said. USCIS will soon publish a preview version of the new Form I-129 edition on uscis.gov.

USCIS Changes to I-485 Adjustment Application Form

Thu, 12 Dec 2024 19:07:28 GMT

On December 10, 2024, the US Citizenship and Immigration Service (USCIS) released an updated edition of Form I-485, Application to Register Permanent Resident or Adjust Status , which includes changes to questions and instructions. Starting February 10, 2025, USCIS will only accept the 10/24/24 edition of Form I-485, and any older versions will be rejected.

The key updates in the new edition of Form I-485 are:

Applicants who need to submit Form I-693, Report of Immigration Medical Examination and Vaccination Record, or a partial Form I-693 (e.g., vaccination record), must submit it with their Form I-485. If Form I-693 is not submitted when required, the Form I-485 may be rejected.
Applicants who are exempt from the Form I-864, Affidavit of Support, requirement can now request the exemption directly on Form I-485, instead of submitting Form I-864W, Request for Exemption for Intending Immigrant's Affidavit of Support. Form I-864W has been discontinued and removed from uscis.gov.
USCIS has clarified questions regarding the public charge ground of inadmissibility. Applicants will now be required to identify their immigrant category, which will help USCIS determine if applicants are exempt from this ground and allow USCIS to process their application more efficiently. The change is intended to reduce confusion for applicants who typically either misunderstood or answered these questions incorrectly.
The form has been streamlined to collect information more efficiently, and instructions and requirements have been consolidated and clarified.

Richard Parker Receives 2024 Legal Aid Pro Bono Volunteer of the Year Award

Tue, 07 May 2024 20:37:55 GMT

Selected excerpts from the May 2024 Multnomah Lawyer Newsletter of the Multnomah Bar Association

Rich has been increasing access to legal services for low-income Oregonians since 2002....Rich has served as the Chair of the Pro Bono Committee of the Oregon State Bar (OSB) Debtor-Creditor Section.....Rich considers pro bono work a necessary part of being a professional with a particular skill. He has a long history of volunteer work that goes back to his time as a Boy Scout. In addition to his volunteer work with the clinic, Rich volunteers with the bankruptcy court's pro bono panel that provides legal assistance to a party, such as help with a settlement conference or bankruptcy litigation. Rich also provides pro bono help with student loan disability discharge applications. Richard explains, "I have always believed in second chances and giving people a fresh start. Our system is great at production of resources and assets, but less than perfect at distribution. Many times, "success" seems very random. Ask almost any musician." Rich's pro bono work truly helps people in need and often experiencing life-changing circumstances. He is currently helping a client who suffered a brain injury after becoming a licensed realtor. The client is unable to pursue her career in real estate and now works an an Instacart shopper.

Rich has been volunteering with the bankruptcy clinic for more than two decades and has represented more than 79 clients.....Rich simply encourages attorneys to get involved, "it is not painful, and you do not have to worry about getting paid." Rich found through his many years of volunteer work, that "you feel better about both your profession and yourself."

Read the full article here .

PBL Partner featured Alumna by her Law School Magazine

Tue, 09 Jan 2024 23:15:07 GMT

Helping Employers and Immigrants Thrive in the U.S. ( article from https://www.albanylaw.edu/helping-employers-and-immigrants-thrive-the-us)

By Shannon Ballard Gorman

A career in immigration law came naturally to Gretel Ness ’93. “It’s such a positive area of the law. You are challenged and you make a difference in people’s lives. It’s very fulfilling.” Ness’s grandparents, doctors who immigrated to the U.S. in the 1970s, sponsored her father when he was in college in the Philippines, but because of quotas, there was such a long wait that he was married and had a family before he could immigrate. Ness vividly remembers her family going to the U.S. Embassy in Manila and being interviewed by the consular officer. Her first time on an airplane was to Newark to begin a new life. She was 15.

After high school, Ness attended Rutgers University for Political Science, and then set her sights on law school. “I always knew I wanted to be a lawyer,” she said (at least since age 13 when she saw a show starring a female attorney and was impressed) and her personal experience led to an interest in immigration law. She chose Albany Law School because of its immigration law classes and smaller, supportive environment.

In law school, she successfully navigated the process to earn U.S. citizenship. An internship with the Government Law Center prompted her to consider working for the government. Before graduation, she applied to the U.S. Immigration & Naturalization Service (INS) and was hired by the Newark office of the INS as an Asylum Officer.

On one assignment, she went to Guam to interview Kurdish refugees from Iraq seeking asylum in the U.S. While there, she met her future husband, a Deportation and Detention Officer from Oregon. Despite their polar opposite jobs (“We don’t bring work home,”) they have been married for 26 years. “It was one of those whirlwind romances,” Ness laughed, and since her husband would not move to New Jersey, she “quit her cushy federal job to follow him to Oregon.” In Portland, she joined a small firm as an associate attorney, doing immigration law work. After two years, she followed her paralegal to a larger firm, Parker Butte & Lane, P.C., entirely dedicated to immigration. Immigration is a paralegal-driven field, she said, and after 23 years she is still there and with the same paralegal.

The majority of her practice deals with employment immigration matters such as arranging temporary and skilled worker visas and helping clients with proactive immigration planning, whether for future personnel needs or for compliance with employment verification requirements. She also handles cases involving family immigration and citizenship issues. Many of her clients are aviation companies that hire specialized pilots from Canada to fly the airplanes used in fighting forest fires for the U.S. Forest Service. “Canada has so many forest fires, they have developed the infrastructure necessary to fight them—including the pilots and mechanics to operate the planes,” Ness explained. She helps arrange their necessary visas to work in the U.S. Ness also advises corporations looking for talent overseas on work visas or, if none matching their needs are available, pursuing green card sponsorship. Her firm also helps arrange a temporary work visa. Sometimes her client is the employee, whom she helps by initiating or coordinating their employer’s sponsorship. “No matter which party starts the process, you have to represent both,” Ness said.

Sharing her experiences with new attorneys was the focus of her recent speaking engagements including the Regional Northwest conference of the American Immigration Lawyers Association. Ness belongs to the association’s Asian Pacific Chapter and traveled to i ts annual conference in Japan in May. She hopes to attend the Latin American chapter’s annual conference in Uruguay this November and explore neighboring Argentina. Ness loves to travel, and plans trips around conferences. “It’s nice to have been to the places where my clients are coming from,” she said. “It helps me relate to them and gives me a better understanding of the challenges and hurdles they have overcome.”

USCIS Ombudsman's 2022 Annual Report

Wed, 06 Jul 2022 17:45:17 GMT

Here are the highlights of the report:

• The Avalanche Impact of Backlogs: 2021 in Review. USCIS has frequently had to confront the impacts of its backlogs, but neither the backlogs nor their impacts have been as severe as the ones the agency currently faces. Lengthy processing times and the high numbers of unadjudicated cases—a result of the pandemic’s unprecedented effect on USCIS’ operations, employee attrition, and insufficient revenue—have had a massive adverse “snowball” effect on the agency’s operations as well as on its customers and stakeholders. To fully address the backlogs, USCIS must also continue to address their consequences. USCIS’ commitment to mitigating its backlogs of cases, as evidenced by setting aggressive processing goals for the end of FY 2023, must be matched with a full commitment to eradicating the worst of these pain points for applicants and petitioners so that they may continue to work, travel, obtain evidence of status, and be able to access expedited processing, when eligible, in a meaningful and consistent way.

• The Need for More Flexibility in Renewing Employment Authorization. Delays in renewing EADs interrupt employment for noncitizens while simultaneously hampering the ability of U.S. businesses to employ their workforce continuously. In the Annual Report, we recommend that USCIS build on existing efforts to mitigate the impact of EAD delays by increasing flexibility in the EAD renewal process, including for certain nonimmigrant spouses; continuing to identify occupations where EADs might be expedited in the national interest; further leveraging technology in support of EAD adjudications; allowing more flexibility in the Form I-9, Employment Eligibility Verification, process; and eliminating the need for a separate EAD application in certain circumstances.

• Increasing Accessibility to Legitimate Travel: Advance Parole. Due to processing delays, adjustment of status applicants find it difficult to receive advance parole documents in a timely manner, which has led to more requests for USCIS to expedite Form I-131, Application for Travel Document, and to issue advance parole for emergencies. The Annual Report presents several recommendations to reduce barriers to travel and enable USCIS to better manage the process of providing advance parole.

• Improving Access to the Expedite Process. USCIS operations have been affected by the pandemic and insufficient resources, resulting in longer processing times for expedite requests. The expedite request caseload has consequently increased, further diverting resources within the agency and making it challenging for USCIS to process these requests efficiently. The Annual Report includes several recommendations for making the expedite request process more efficient, standardizing guidance on the process, and increasing efforts to collect data on the number of expedite requests USCIS receives as well as approval and denial rates.

• Initiating a Discussion on Ways to Address the Affirmative Asylum Backlog. The asylum backlog has grown to more than 430,000 pending cases, with devastating impacts on asylum seekers and their family members. In the Annual Report, we offer recommendations to address the backlog and identify new operational approaches to improve the quality and efficiency of asylum adjudications without compromising integrity or fairness. These recommendations are intended to spark a crucial discussion on innovative ways to address the backlog.

• Eliminating Barriers to Obtaining Proof of Employment Authorization for Asylum Applicants in Removal Proceedings. Asylum seekers, particularly those in removal proceedings, encounter significant barriers to obtaining proof of their employment authorization, both while their Form I-589, Application for Asylum and for Withholding of Removal, is pending and after an immigration judge grants asylum. These barriers arise in part because the asylum process is split between USCIS and the Department of Justice’s Executive Office for Immigration Review. The Annual Report outlines several recommendations aimed at improving coordination and decreasing delays in processing EADs and providing evidence of status.

• USCIS’ Digital Strategy: Nearing an Inflection Point. While there is more work to be done, we are optimistic that USCIS’ digital strategy is nearing an inflection point that will allow for continued positive progress. The Annual Report offers several new recommendations focused on developing an application programming interface; digitizing Form I-912, Request for Fee Waiver; conducting a nationwide online filing and myUSCIS promotion campaign; and exploring ways to incentivize online filing.

• U Nonimmigrant Status Bona Fide Determination Process: Successes and Challenges in Taking on a Backlog. The Immigration and Nationality Act allows certain victims who assist law enforcement with a criminal investigation to apply for a U visa. However, due to high demand in this capped category, processing times for U nonimmigrant status have increased. To alleviate the negative effects of these backlogs, USCIS implemented the bona fide determination (BFD) process, which allows the agency to grant eligible petitioners employment authorization and deferred action more efficiently. In this year’s Annual Report, we explore some of the successes and challenges of the U visa BFD process.

To read the full report, go to https://www.dhs.gov/sites/default/files/2022-06/CIS_Ombudsman_2022_Annual_Report_0.pdf

5 Ways to Aid Ukrainians

Tue, 05 Apr 2022 18:48:00 GMT

1. Donate

Monetary donations are the quickest and most helpful way to directly aid Ukrainian refugees around the world. There are a huge number of organizations currently raising money for Ukraine and it can be overwhelming to parse through all the options. Here are 4 organizations that will ensure your donation helps as many people as possible:

Razom is a non-profit organization dedicated to ‘unlocking the potential of Ukraine.’ Founded in 2014, Razom works with collaborators in the United States and Ukraine to fund short and long-term projects dedicated to fostering democracy and prosperity. They take just about any form of donation you can think of, including stocks and cryptocurrency. Check out their website’s list of projects to see details on their emergency response to the war, as well as other current projects. See https://razomforukraine.org
World Food Program USA is focused on providing food to Ukrainian people as they flee their country and shelter from daily attack. Donors can opt for a one-time or monthly gift in any amount $5 or above. For $75, they provide emergency boxes with enough food for a family for a month. See https://secure.wfpusa.org
Direct Relief has a focus on providing medical supplies including medication, emergency response packs, sutures, insulin, personal care items, and oxygen concentrators. They are partnered with Ukraine’s Ministry of Health and other organizations on the ground in Ukraine and are responding to real-time requests for supplies. There is a helpful tracker on their webpage to track aid provided to Ukraine. See https://www.directrelief.org/place/ukraine/
Alight currently has a rapid response team in Poland aiding the 1 million Ukrainian refugees (mostly women and children) who have crossed the Ukrainian/Poland border. They are set up at the border to greet people arriving to Poland and are distributing warm clothes, blankets, and wheelchairs. Alight is also transporting medical supplies and necessities such as diapers and phone chargers from Poland to Ukraine, directly to groups sheltering in bomb shelters and hospitals. See https://wearealight.org/ukraine-response/

2. Shop Local Ukrainian Businesses

Another means of financial support is to seek out local Ukrainian businesses and offer them your patronage. While you won’t know if the money will go to people on the ground in Ukraine, there is a good chance that Ukrainian business owners are desperate to help their family members still in Ukraine. In any case, Ukrainians around the world are hurting as they watch their home country burn and its people flee. Providing support to those in your community is the neighborly thing to do. Many other businesses, not necessarily owned by Ukrainians, are holding fundraisers or special menu items to benefit Ukraine. Some suggestions for the Portland area:

Portland artist Tatyana Ostapenko: https://tatyanaostapenko.com
Sweet Touch Bakery (Vancouver): https://www.sweet-touchbakery.com/
Honey Latte Café: https://www.honeylatte.cafe/
Kachka, often described as a Russian restaurant, actually showcases food from around the region, including Ukraine and Belarus. They have a wine cocktail on the menu and a dumpling in their market that are helping to raise money for Ukraine: http://www.kachkapdx.com/
Ripe Cooperative is donating 100% of profits from Bulgarian caviar to Ukrainian aid efforts: https://ripecooperative.com/
Portland Potato Vodka is donating profits to Ukraine: https://www.instagram.com/p/CamVWHIuLh3/

3. Raise Money

If you are not in a financial position to donate money directly, you can facilitate fundraising through a few different avenues. Alight, mentioned above, has an option on their website to host a fundraiser for Ukraine (See https://give.wearealight.org/campaign/) or you can start a fundraiser through your personal Facebook or a site like GoFundMe. Another option is hosting your own web class and donating the proceeds to Ukraine. If you have a special skill like baking, music, or crafting that others might be interested in, set up a Zoom link and advertise! Make sure to let participants know that their money is going to an excellent cause.

4. Join a Protest

Protests have been springing up around the country in response to the atrocities being committed by Russia. There was a rally at Fairview Ukrainian Bible Church which drew over 1,000 people and one in downtown Portland on Feb 26. There have been a number smaller gatherings around the city as well. Search for protest or rally announcements online and give of your time to offer support to the Portland Ukrainian community. It will mean a lot to them to have the community support.

5. Contact your Representatives

Want to see the federal government taking more steps to aid Ukraine? Lend your voice to those calling for money and other resources to be sent to Ukraine and for immigration solutions for those stuck in or fleeing Ukraine. Contact information for Oregon/ Portland representatives can be found here:

Senator Ron Wyden: https://www.wyden.senate.gov/
Senator Jeff Merkley: https://www.merkley.senate.gov/
Look up your Representative in the House by zip code: https://www.house.gov/representatives/find-your-representative

U.S. Response to the Ukrainian Refugee Crisis

Fri, 25 Mar 2022 15:00:36 GMT

The war in Ukraine has been raging since February 24 when Russia invaded and began escalating the conflict that had simmered since 2014. The war has destroyed thousands of buildings, caused billions in property damage, and most importantly, has killed or injured over 17,000 people. Horrifyingly, an additional 3 million people have been driven from their homes and forced to seek refuge in other parts of Ukraine, in neighboring countries, or as far away as they can run.

Ukrainians in the U.S.

In response to the humanitarian crisis caused by the war, the United States has provided Temporary Protected Status (TPS) to Ukrainians already in the U.S. TPS provides protection for people from countries that are experiencing an ongoing armed conflict, environmental disaster, or other extraordinary conditions which would make deportation back to their country particularly dangerous. Over 70,000 Ukrainians currently present in the U.S. could be eligible for TPS. To be eligible, you must meet the following criteria:

• Be a national of the country with TPS designation

• Be continually present in the U.S. from the effective date of designation

• Have continuously resided in the U.S. from a date specified by the secretary of the U.S. Dept. of Homeland Security

• Never have been convicted of a felony or two or more misdemeanors while in the U.S.

• Not be barred from asylum eligibility or found inadmissible for other crimes or for national security reasons

Those who qualify for TPS must register and pay fees and in return are given a temporary stay of deportation and temporary work authorization. The current TPS designation is good for 18 months from March 1, though it may be extended. U.S. Immigration and Customs Enforcement (ICE) has also announced a temporary halt of deportations to Ukraine, Belarus, Georgia, Hungary, Moldova, Poland, Romania, Russia, and Slovakia while the Russian invasion is ongoing.

Advocacy groups are lobbying the President, DHS, and the State Department to further the protections offered by the U.S. and grant Deferred Enforced Departure (DED) and Special Student Relief (SSR) for Ukrainians in the U.S. DED is similar to TPS, in that it temporarily suspends deportations and allows beneficiaries to receive work cards. The main difference is that DED is granted by the President and TPS is granted by the Secretary of Homeland Security. SSR is a particular form of relief for Ukrainian students currently attending U.S. schools on F-1 student visas. It would suspend or alter F-1 visa rules regarding course loads and work eligibility to allow students to

Ukrainians in Europe

Out of the millions of Ukrainian refugees in Europe, most have fled to nearby countries such as Poland, Hungary, and Slovakia. Because the outcome of the war is still so unclear, many people aim to stay close to Ukraine in case there is a chance of returning home soon. As matters progress in Ukraine, it will become clearer if refugees will be able to return or if they will need permanent resettlement.

President Biden has announced that the U.S. will welcome Ukrainian refugees with open arms, but the reality for Ukrainians who may wish to permanently resettle in the U.S. is much more complicated. The process for coming to the United States as a refugee is years-long and complicated. Obtaining temporary visas is also likely to be a lengthy process, due to extended wait times, which had already been exacerbated by the pandemic and are set to grow longer with a surge in applicants. Receiving a temporary, non-immigrant visa also requires proof that the applicant will return to their home country, which is not likely to be something many Ukrainians can prove. Humanitarian parole is another option, although one only open to Ukrainians with U.S. citizen or permanent resident family who can sponsor them. For info on Humanitarian Parole as a process, see our blog post on the Humanitarian Parole crisis in Afghanistan here. As the war continues and legal avenues to U.S. immigration are few, the U.S. is likely to experience an increase in illegal immigration, such as Ukrainians crossing the southern border from Mexico without valid visas.

U.S. Foreign Aid for Ukraine

The U.S. has taken some steps to provide aid for Ukrainian refugees and civilians in Europe. President Biden has authorized over $107 million in humanitarian aid, which will go towards relief such as medical services, food, shelters, and other necessities.

On March 15, President Biden signed a massive government spending bill containing a $13.6 billion aid package for Ukraine, which includes money for military assistance, refugee care, and economic aid for Ukrainian ally countries. The U.S. has also issued economic and trade sanctions against Russia and has passed legislation banning the import of Russian oil.

U.S. support of Ukraine has stopped short of backing a no-fly zone over Ukraine, which would ban Russian planes from flying over Ukraine. This would likely help with the air assault that Ukraine has been facing but enforcing the no-fly zone would likely consist of actions that Russia would take as acts of war. The United States has also declined to send troops to fight in Ukraine, further signaling a reluctance to become directly involved in the conflict.

Many NGO’s, non-profits, and other organizations in the U.S. and around the world are taking up for Ukraine by providing money and aid to Ukrainians everywhere. Look for our next blog post detailing how you can help the effort to support Ukrainian refugees in large and small ways.

Part 5: 90 Day Fiance and the Immigration System

Wed, 02 Mar 2022 01:09:46 GMT

TLC’s 90 Day Fiancé is an immensely popular series that has spawned countless spinoff shows and a global audience. The premise of the original show is that Americans who have found love with people in other countries bring their fiancés to the U.S. on a K-1 fiancé visa, giving them just 90 days to get married. The idea behind the short time limit is to offer time to plan a wedding to a couple who already knows they’re going to marry. In reality, the 90 days of the K-1 visa process is often the first time that couples on the show are able to spend more than a few weeks together. Of course, this sparks plenty of drama as the newly non-distanced couples try to navigate living together for the first time, their cultural differences, judgmental family and friends, and usually a bombshell secret or two, all with a ticking time limit and a wedding to plan.

90 Day Fiancé is a wonderfully melodramatic peek at the founding and floundering of marriages based on intercontinental relationships. It doesn’t purport to be about the immigration system and in spite of its home on “ The Learning Channel ,” it offers very little in terms of educational value. As such, questions about the veracity of statements or implications made on the show are plentiful. Before you fall down a rabbit hole of misinformation and speculation on Facebook group comment threads or Instagram gossip pages, let PBL’s resident 90 Day-watching paralegal clear some of it up for you. Join us for our final post in our 5-part blog series on misconceptions you may have about the immigration system if you watch 90 Day Fiancé .

Misconception #5 : You can bring over someone you’ve never met on a K-1 visa.

In many cases, the couples on this show have clearly not spent enough time together to be guaranteed a happily ever after the moment the plane wheels touch down in the USA. Some of the differences and misunderstandings between them seem so pronounced that it can be easy to think these Americans are bringing over total strangers. Viewers may recall Robert, who brought Anny to the U.S. after spending just 8 hours together on a cruise ship stop in the Dominican Republic. But how much time are couples actually required to spend together before they can apply for the K-1 visa? The answer is: not much! USCIS simply requires that you have visited your fiancé once in the last two years prior to submitting the application. There is a waiver available to bypass this requirement, but it is extremely hard to get. Your visit must be within the past two years; you can’t reignite the passion with a long-lost love and get a K-1 visa for them without a visit. You do have to provide other documentation, such as call logs or text messages, to prove that your love is real, but one visit is all it takes. Of course, sometimes, one visit is all you need! Robert and Anny seem quite happily married, share two kids, and enjoy the rare achievement of being a 90 Day Fiancé couple that viewers generally like. Go Robert and Anny!

We hope you enjoyed this five-part series on the K-1 fiance immigration process. We sure had fun writing these up!

Part 4: 90 Day Fiance and the Immigration System

Mon, 21 Feb 2022 19:24:39 GMT

TLC’s 90 Day Fiancé is an immensely popular series that has spawned countless spinoff shows and a global audience. The premise of the original show is that Americans who have found love with people in other countries bring their fiancés to the U.S. on a K-1 fiancé visa, giving them just 90 days to get married. The idea behind the short time limit is to offer time to plan a wedding to a couple who already knows they’re going to marry. In reality, the 90 days of the K-1 visa process is often the first time that couples on the show are able to spend more than a few weeks together. Of course, this sparks plenty of drama as the newly non-distanced couples try to navigate living together for the first time, their cultural differences, judgmental family and friends, and usually a bombshell secret or two, all with a ticking time limit and a wedding to plan.

90 Day Fiancé is a wonderfully melodramatic peek at the founding and floundering of marriages based on intercontinental relationships. It doesn’t purport to be about the immigration system and in spite of its home on “ The Learning Channel ,” it offers very little in terms of educational value. As such, questions about the veracity of statements or implications made on the show are plentiful. Before you fall down a rabbit hole of misinformation and speculation on Facebook group comment threads or Instagram gossip pages, let PBL’s resident 90 Day-watching paralegal clear some of it up for you. Join us for the penultimate post in our 5-part blog series on misconceptions you may have about the immigration system if you watch 90 Day Fiancé .

Misconception #4 : Cast members who have struggled to get a visa must have something shady in their past.

Poor Michael, of Michael and Angela. His K-1 visa was in pending purgatory forever and was eventually denied. Angela then flew to Nigeria and they married in order to start the spousal visa process. Unfortunately, after nearly two years, that visa is still pending. Other cast members such as Natalie from Ukraine and Jon from the UK have faced major delays, prompting their partners and fans to wonder if the long delay means that there are skeletons in their closets. These suspicions seem even likelier when other cast members such as Biniyam and Victor get their K-1 visas approved at lightning speed.

The truth is that there are lots of factors that could make getting a visa more difficult for one person that it is for another. A criminal record or having been engaged/married to an American previously are the most dramatic, but the truth is typically not as exciting. Non-personal factors such as the country the applicant lives in also play a role. In Michael’s case, Nigeria was affected by the 2020 extension of the 2017 travel ban, which suspended issuance of U.S. visas that could lead to permanent residency to Nigerians (such as the K-1 and spousal visas). Processing times are also an issue, with the COVID-19 pandemic severely exacerbating already slow timelines. The bottom line is, if your partner’s visa is taking forever, it’s maybe not a good idea to insinuate that they did something in their past to cause the delay. Mike and Natalie would have probably lived happily ever after if he could have managed to keep his suspicions to himself (not). Stay tuned for our last blog on this 5-part series coming out next week!

Part 3: 90 Day Fiance and the Immigration System

Mon, 14 Feb 2022 16:05:59 GMT

90 Day Fiancé is a wonderfully melodramatic peek at the founding and floundering of marriages based on intercontinental relationships. It doesn’t purport to be about the immigration system and in spite of its home on “ The Learning Channel ,” it offers very little in terms of educational value. As such, questions about the veracity of statements or implications made on the show are plentiful. Before you fall down a rabbit hole of misinformation and speculation on Facebook group comment threads or Instagram gossip pages, let PBL’s resident 90 Day-watching paralegal clear some of it up for you. Join us for part 3 of our 5-part blog series on misconceptions you may have about the immigration system if you watch 90 Day Fiancé .

Misconception #3: Those on the show benefit through big pay checks or help with the immigration process.

When Julia, of “ I go Russia ” fame, landed in Virginia on season 8 of 90 Day Fiancé , Brandon’s parents put her right to work on their farm. This sparked a lot of discussion about the legality of getting free labor out of an intending immigrant who is not able to legally work. This then led to a discussion about the “ big TLC paychecks ” supposedly given to cast members by the network for being on the show. Would that be considered working? A lot of cast members mention the cost of the immigration process, including flights and living expenses while on the show. Shouldn’t their “ I’m on TV ” paychecks take the sting off of that or can TLC help with some of those costs? Some fans took speculation on the network’s involvement in the couple’s lives a step further, by wondering if TLC is able to intervene in the immigration process to ensure certain outcomes for couples.

Let’s dig into each of these separate questions:

• Julia was not legally able to be on payroll anywhere in the U.S. prior to receiving her work authorization as part of her green card application. However, Brandon’s parents did not have her on payroll and thus her work on the farm can be considered more equivalent to doing chores.

• Cast members are paid about $500-$1,500 per episode and on the original version of the show, in which the immigrant doesn’t not yet have a work permit during filming, that money only goes to the American cast member. This amounts to about $14,500 for a 12-episode season. Pay may be different on other iterations of the show. TLC does not pay for flights or other travel expenses and cannot directly help with legal fees. TLC certainly cannot influence the outcome of the immigration process, for that would unleash a maelstrom of thorny ethical implications that USCIS does not want on their hands.

• The cost of the immigration process will depend on a number of factors. Without an attorney, the K-1 visa process costs around $800 in filing fees, plus the cost of a medical examination, which varies depending on the doctor (usually around $200). Filing the initial green card application after marriage will cost another $1,300. Adding an attorney will of course increase the cost but will usually save time and effort and significantly lower the chances of a denial due to a missing signature or other small mistake. Attorney fees vary but are typically between $250 and $450 per hour.

Catch us next week for Part 4 of this series and by the way, Happy Valentines Day!

Part 2: 90 Day Fiance and the Immigration System

Thu, 10 Feb 2022 01:20:19 GMT

TLC’s 90 Day Fiancé is an immensely popular series that has spawned countless spinoff shows and a global audience. The premise of the original show is that Americans who have found love with people in other countries bring their fiancés to the U.S. on a K-1 fiancé visa, giving them just 90 days to get married. The idea behind the short time limit is to offer time to plan a wedding to a couple who already knows they’re going to marry. In reality, the 90 days of the K-1 visa process is often the first time that couples on the show are able to spend more than a few weeks together. Of course, this sparks plenty of drama as the newly non-distanced couples try to navigate living together for the first time, their cultural differences, judgmental family and friends, and usually a bombshell secret or two, all with a ticking time limit and a wedding to plan.

90 Day Fiancé is a wonderfully melodramatic peek at the founding and floundering of marriages based on intercontinental relationships. It doesn’t purport to be about the immigration system and in spite of its home on “The Learning Channel,” it offers very little in terms of educational value. As such, questions about the veracity of statements or implications made on the show are plentiful. Before you fall down a rabbit hole of misinformation and speculation on Facebook group comment threads or Instagram gossip pages, let PBL’s resident 90 Day-watching paralegal clear some of it up for you. Join us as we continue our 5-part blog series on misconceptions you may have about the immigration system if you watch 90 Day Fiancé .

Misconception #2 : If you separate or divorce, you can have your immigrant partner deported.

On 90 Day Fiancé , there’s a lot of fixation on the idea of “green card marriages.” Nearly every single American cast member has a family member or friend who drawls “I’m just worried they’re only doing this for the green card” over a glass of wine. Or sometimes it’s “the green card and your money.” Or every once in a while, “all Ukrainian girls just want to come to America.” (Sorry, Yara.) Setting aside the harmful stereotypes and straight-up racism this line of thought often belies, let’s look at the timelines for becoming a green card-holder and ultimately, a U.S. citizen. Once couples marry during their 90 days, the immigrant partner becomes eligible to file for an adjustment of status. This allows them to become a permanent resident of the U.S. and grants them a 2-year conditional green card. After that two-year period is nearly up, they are able to apply for a “permanent” or 10-year green card and become eligible to apply for citizenship after 3 years of marriage to their U.S. citizen spouse. If an immigrant and their spouse divorce after getting the permanent green card but before applying for citizenship, the immigrant will be eligible to apply for citizenship after 5 years of holding a green card. However, a lot can happen in 2 years and some couples don’t even make it to the permanent green card before their marriage crumbles. (Sorry, Fernanda, Luis, Larissa, etc.).

Sometimes when this happens on the show, the U.S. citizen expresses a desire to throw their ex-spouse out of the country. Sometimes their names rhyme with “chanterelle”. This isn’t exactly how it works. An immigrant is able to apply for a permanent green card, even if they are divorced, if they can provide documentation to show that their marriage was a legitimate marriage and not done for the sole purpose of obtaining a green card. This evidence can include photos, rental agreements showing they lived together, jointly addressed documents like mail, bills, or insurance, text messages, jointly filed taxes, or documents showing each other as their spouses’ emergency contact. They should also show that the divorce was inevitable due to irreconcilable differences and that they made a good faith effort to try to keep their marriage together. If all that can be shown, then the immigrant is able to get a permanent green card on their own and would be able to file for citizenship after 5 years as a lawful permanent resident. Stay tuned for Part 3 of this series!

90 Day Fiance and the Immigration System (Part 1)

websitebuilder@thryv.com — Thu, 03 Feb 2022 20:18:03 GMT

90 Day Fiancé is a wonderfully melodramatic peek at the founding and floundering of marriages based on intercontinental relationships. It doesn’t purport to be about the immigration system and in spite of its home on “ The Learning Channel ,” it offers very little in terms of educational value. As such, questions about the veracity of statements or implications made on the show are plentiful. Before you fall down a rabbit hole of misinformation and speculation on Facebook group comment threads or Instagram gossip pages, let PBL’s resident 90 Day-watching paralegal clear some of it up for you. Join us for our 5-part blog series on misconceptions you may have about the immigration system if you watch 90 Day Fiancé .

Misconception # 1: How Sponsorship Works

This is by far the most prevalent question amongst 90 Day Fiancé viewers. The process of sponsorship is widely discussed on the show. Who can forget Kalani seeing an immigration attorney while thinking about divorce and being told that the law had changed and that she would be “ responsible for life ” for the financial wellbeing of Asuelu, rather than just the 10 years she had originally signed up for? Or Tiffany asking her previously estranged father to help her sponsor Ronald and dropping the bomb about being “ financially responsible ” for him for life? There’s a lot of shock at the implications of this. Do you really have to maintain your immigrant’s living expenses even if you separate or divorce?

When a U.S. citizen decides to bring a family member, including fiancé, to the United States, they have to prove to the government that that person won’t end up becoming a ‘public charge,’ which is to say that they won’t end up utilizing public assistance programs. They show this by proving that they have enough income to support the immigrant through their tax returns, pay stubs, and other financial documents. If the sponsor does not make enough money, they have to find a joint sponsor, who is willing to include their own income in the pool. The form that sponsors and co-sponsors sign includes the following language:

If an intending immigrant becomes a lawful permanent resident in the United States […] until your obligations […] terminate, you must: Provide the intending immigrant any support necessary to maintain him or her at an income that is at least 125 percent of the Federal Poverty Guidelines for his or her h ousehold size.

So, the short answer is yes, you are responsible for making sure your immigrant partner is supported at 125% of the poverty line for as long as it takes to meet one of the circumstances that will terminate the contract. The circumstances under which your obligations terminate include when the immigrant becomes a U.S. citizen, works for 40 quarters of coverage under the Social Security Act, loses their status and leaves the U.S., is subject to deportation but gains a green card through another sponsor, they die, or you die. Whew. Some of that is self-explanatory, but that 40 quarters of coverage bit can be confusing. It basically means that once the immigrant works for 10 years (40 quarters), the sponsor’s obligations will end. The immigrant’s spouse’s work can count towards the quarters, so theoretically, this specification could be met in 5 years if both partners are working.

The major caveat to all this is that the government isn’t going to intervene and make the sponsor(s) pay unless the immigrant sues the sponsor or tries to receive public benefits. In the case of public benefits, the sponsor would essentially pay back the government, not provide money directly to the immigrant. Thankfully, these types of lawsuits are rare.

It is a huge responsibility to sponsor an immigrant to the U.S. Stay tuned for Part 2 of this series!

Waiver 101

websitebuilder@thryv.com — Fri, 14 Jan 2022 02:27:33 GMT

A waiver is an immigration filing that waives a factor that would otherwise make someone inadmissible as an immigrant to the United States. There are many reasons that USCIS may determine someone is inadmissible. Here is a short list of some common examples:

• Being present in the U.S. unlawfully (without a visa)

• Committing certain crimes or spending time in prison

• Helping to bring others to the U.S. unlawfully

• Being found to have lied to law enforcement or immigration officials (entering the U.S. with false papers, misrepresenting facts at a visa interview)

Not all reasons for inadmissibility are eligible to be waived. Also, to be eligible for a waiver, applicants must have a ‘qualifying relative,’ defined as a U.S. citizen or lawful permanent resident spouse or parent. Waivers are typically part of a larger case strategy that involves other filings and ultimately attending an interview at the U.S. consulate in the applicant’s home country. This post outlines the most common types of waiver filings, but as with many areas of immigration law, there are exceptions, outliers, and special circumstances that may affect an applicant’s eligibility to qualify for a waiver or the particulars of any given waiver process.

Types of Waivers

There are two main types of waivers, typically referred to by their USCIS form names:

I-601 Waivers can waive any reason for inadmissibility (as long as it’s eligible to be waived). They typically must be filed while the applicant is out of the country unless they are being filed as a response to a Request for Evidence issued after an adjustment of status interview.

I-601A Provisional Waivers can only waive unlawful presence but have the advantage of being able to be filed in the U.S. before an applicant departs for their consular interview. This allows the applicant to remain with their family while they wait for the waiver approval and an interview date.

Extreme Hardship

The standard that most waivers are trying to prove is called Extreme Hardship. This standard is not clearly defined in immigration law but is rather up to the discretion of waiver adjudicators and interviewing officers. Basically, a waiver must prove that the applicant’s qualifying relative (spouse or parent) would suffer more than expected if the applicant is denied entry into the U.S. after their consular interview or if the qualifying relative had to move to the applicant’s home country in order to avoid separation. Of course, people are expected to suffer when separated from their family or upending their lives to move to a new country, but extreme hardship dictates that this suffering must be beyond the normal scope of emotional, financial, medical, or other hardship. It is important to cover both the separation and relocation scenarios when demonstrating extreme hardship. There are a number of factors that adjudicators are instructed to consider when evaluating extreme hardship and they must weigh the sum of these factors rather than looking at each factor individually.

So, what factors can be used to show extreme hardship? USCIS’s guidelines on this subject are fairly comprehensive. There are particularly significant factors (which weigh heavily in supporting a finding of extreme hardship) and specifically enumerated factors (which can each be considered in meeting the standard of extreme hardship). Examples of each are as follows:

Particularly Significant Factors (Comprehensive List)

• QR (Qualifying Relative) previously granted Iraqi or Afghan Special Immigrant Status, T Nonimmigrant Status, Asylum or Refugee Status, or Withholding or CAT

• QR or related family member disability

• QR’s military service

• U.S. Department of State travel warnings for applicant’s home country (must have a high level of risk)

• Substantial displacement of care of applicant’s children

Specifically Enumerated Factors (Non-Comprehensive List)

• QR’s family ties in the U.S.

• QR’s responsibility to care for family members

• Nature of the relationship between the QR and applicant that would make separation more difficult

• QR’s length of residence in the U.S. and/or integration into U.S. culture

• Fear of persecution (religious or otherwise) in applicant’s home country

• Loss of job, education, or training opportunities

• Language or cultural differences

• Economic impact such as having to sell a home, termination of a professional practice, significant loss of income, inability to pay debts, or large additional expenses

• Medical conditions of QR or children and quality/availability of medical care in applicant’s home country

• Psychological impact on QR including past traumas that would make the separation more difficult

What Goes into a Waiver?

If it is determined that an applicant is eligible for a waiver and that they have a qualifying relative, the attorney will then outline the documents needed to prove the extreme hardship. Typically, the documents requested are from the qualifying relative, as that is who needs to show extreme hardship, but some attorneys will also request documents from the applicant. These documents will vary by attorney’s office but will usually include the following:

• Medical and/or mental health records

• Financial documents, such as bills, pay stubs, and taxes

• Proof of health insurance

• Rental agreements or mortgage documents

• Letters of support from family members, friends, and others in the community

• Any criminal records related to the applicant

• Birth certificates for any children born to the applicant and/ or their qualifying relative spouse

These documents from the applicant are supplemented by documents that they attorney will create or provide such as:

• Documents related to living conditions and/or safety concerns in the applicant’s home country

• Articles or documentation related to financial burdens, such as the cost of traveling to the applicant’s home country or the cost of childcare in the qualifying relative’s home state

• Affidavits or declarations from the applicant and their qualifying relative

The above documents make up an evidence packet that is used to support the narrative of extreme hardship. This narrative is laid out in the affidavits/declarations from the applicant and qualifying relative and is written out in the form of a legal brief or cover letter by the attorney. The goal of the narrative is to show how the evidence packet supports the extreme hardship that would occur if the applicant and qualifying relative were separated or if the qualifying relative moved to the applicant’s home country.

What Makes a Strong Waiver?

The most important thing to demonstrate in a waiver is that the case rises to the level of extreme hardship. The narrative detailed in the affidavits/declarations and cover letter is what ultimately makes the case for extreme hardship. These documents will reference items in the evidence packet to bolster the case and to provide concrete proof of any claims made. This narrative is written with an aim to convince the reader that the case meets the guidelines and also to sway the reader towards granting a favorable outcome. Because there is no concrete definition of extreme hardship, the adjudicator’s discretion plays a large role in deciding whether to approve or deny waivers. Here, discretion means the freedom to decide according to their own personal judgement. In this sense, getting across a moving story and appealing to the adjudicator’s humanity is an important aspect of a waiver filing. Because discretion plays such a large role, it can be tricky to guess if any given waiver will be approved. Though adjudicators are following guidelines, there is a lot of room for their own feelings and biases to influence their decisions. Attorneys will work with the applicant and their qualifying relative to craft the strongest case possible for each individual’s circumstances.

--------

This has been a fairly broad overview of the waiver requirements, structure, and process. Like most areas of immigration law, waivers are complicated and the general rules at play have plenty of exceptions. We hope this has been helpful in understanding some of the basics and please do not hesitate to contact our waiver experts here at Parker Butte & Lane!

Left Behind: Humanitarian Parole and the Crisis in Afghanistan

websitebuilder@thryv.com — Fri, 07 Jan 2022 17:40:01 GMT

Background on the Situation in Afghanistan

The U.S. military withdrawal from Afghanistan in August 2021 has caused numerous consequences for the country and its place in the global community, some easily foreseen and others more difficult to predict. The Taliban began taking over the country in the midst of the withdrawal, a move which highlighted just how reliant on U.S. support the Afghan government had been. The ease and speed of the Taliban takeover surprised Afghan and U.S. officials alike, although there had been plenty of warning signs that such a coup was possible (for example, the seizure of district capitals by the Taliban in early August). By the time the U.S. fully withdrew from Afghanistan at the end of August, the Afghan president had left the country and most government officials had fled, surrendered, or been sidelined by the takeover. The Taliban effectively controlled the country with a few pockets of ongoing fighting. The U.S. had airlifted an estimated 124,000 people out of the country, including U.S. citizens, U.S. Lawful Permanent Residents, and Afghan citizens. However, many Afghans who were eligible to be evacuated remain in the country, despite promises that the U.S. would help them leave prior to the completion of the withdrawal.

Once the withdrawal was complete, the U.S. embassy as well as Afghan government offices, including the passport office, closed. This made it impossible for Afghan citizens to obtain or renew passports or to receive services relating to immigrant or nonimmigrant visas to the United States. Thousands of Afghans who were vulnerable to targeting by the Taliban lost the protection of the U.S. military and diplomatic presence. The passport office reopened in October and had to be closed again when the flood of applications caused equipment to break down. It recently reopened again on December 18, 2021. Some Afghans are eligible for particular forms of relief such as refugee status or Special Immigrant Visas. For those who do not qualify, Humanitarian Parole can be the best option.

What is Humanitarian Parole?

Humanitarian Parole allows individuals to enter the United States on a temporary basis due to urgent humanitarian reasons. It is not a path to other immigration benefits (unless otherwise eligible) and cannot be used to bypass normal visa processing times, inadmissibility waiver processing, or other refugee processing channels. To be granted Humanitarian Parole, a petitioner for eligible Afghans must prove the ‘urgent humanitarian reasons’ requirement. Also, they must demonstrate adequate financial support for the Afghans, although resettlement funds authorized by the Afghanistan Supplemental Appropriations Act, 2022 may be considered for this requirement. If an Afghan can be shown to be eligible for visa options, they would not be granted parole.

Here’s Where it gets Tricky

The numbers of Humanitarian Parole applications have surged with the Taliban takeover of Afghanistan. USCIS has received over 26,000 applications from people in Afghanistan alone, while the typical annual number of parole applications is about 2,000 per year. The United States is unable to process applications from people who are in a country without a U.S. Embassy or consulate. Therefore, even if applicants are eligible for parole, their applications will be deferred until they can travel to a third-party country. They may still be ultimately denied, even after waiting in that country for several months.

Another significant barrier for Afghans seeking safety in the United States is processing times. USCIS is currently declining to expedite Humanitarian Parole requests from people inside Afghanistan and instead choosing to focus on expedite requests from applicants already outside Afghanistan. Due to the huge number of Humanitarian Parole applications, even expedited applications are taking significantly longer than usual.

What Does this all Mean for Vulnerable Afghans?

Those applying for Humanitarian Parole from Afghanistan right now are vulnerable people. They are ineligible for refugee status or Special Immigrant Visas but still have an urgent humanitarian need for safety. Some of these people have family who assisted the U.S. occupying forces over the last two decades or are women who have been vocal about their rights. With the Taliban in control, these factors are matters of life and death. In many cases, these people are not able to safely travel out of the country. Applying for a travel document is a lengthy and fraught process. Crowds and long lines at the passport office have made some fearful of the area becoming a target for suicide bombers. This fear is based on the suicide bombing that killed more than 150 people, including U.S. military members, who gathered at the Kabul airport as it became clear that the Taliban would seize control. Being smuggled out of the country is also incredibly risky. Even once out of Afghanistan, many of these people are known to the Taliban and don’t have the luxury of waiting months for their applications to be approved. They could be sent back to Afghanistan, found by the Taliban, or simply denied and left without other options.

The current situation in regard to Humanitarian Parole in Afghanistan is terrifying for those stuck there and frustrating for their petitioners in the U.S. It is forcing families to make difficult decisions about whether to take the huge risks associated with trying to leave the country. In the meantime, Taliban leaders are strengthening their hold over the country and have proven that they are more than willing to harm and kill civilians. Further resources directed to processing Humanitarian Parole applications could enable USCIS to lower wait times for those outside of Afghanistan. Those inside, whose lives hang in the balance, remain as desperate for relief as they were the day the U.S. left.

“The ABCs of Employment Based Immigration” by Gretel Ness

websitebuilder@thryv.com — Fri, 06 Aug 2021 18:59:34 GMT

Read the ABCs of Employment.

“Student Loan Victims – Let Them Eat Cake” by Richard Parker

websitebuilder@thryv.com — Fri, 06 Aug 2021 18:56:03 GMT

Several recent articles in the American Bankruptcy Law Journal and the American Bankruptcy Institute's Bankruptcy Brief, as well as a seminar at the recent Annual Debtor-Creditor Section CLE and Annual Meeting, dispassionately describe the statutory and case law on student loans in the United States. This article is not such an endeavor. Rather, it examines how we got here and considers some of the political and economic issues related to what has rightly been called the student loan crisis.

Numerous sources report that total student loan debt is now in excess of one trillion dollars.

See., e.g.,

http://www.consumerfinance.gov/newsroom/studentdebtswellsfederalloansnowtopatrillion/. About 10% of this amount is private student loans, with the rest being federally insured student loans of various kinds. Id. The differences between the two types of loans are significant, both in and out of the bankruptcy courts. This article will briefly describe how student loans work and their history, then analyze the impact student loan debt has on individuals and on society. Finally it will discuss the inadequate remedies available to deal with the problem.

Student Loan History

In the beginning there were student loans and they were good. The initial student loan program was inspired by the very successful Gl bill, which guaranteed up to 48 months of higher education to qualified veterans. The Federal Family Education Loan Program (FFEL) began in 1965. It allowed middle-class and working-class families to borrow money without regard to their creditworthiness and repay the loans, usually over a 10-year period after graduation, at a low fixed interest rate. Due to the reluctance of banks to take any risks, such loans were later guaranteed by the federal government. When the banks were still reluctant to take on risk, Congress created Sallie Mae as a secondary market for guaranteed loans. During the 1990s, purely private loans became more common and students were directed to these loans even when they would have qualified for more favorable federal programs. The full history is available in many sources, including the excellent Student Loan Law, National Consumer Law Center (4th ed. & Supp. 2012).

In the early years of student loans (before 1976), they were treated like any other debt and were dischargeable in bankruptcy. Following some questionable stories told to Congress about rich doctors and lawyers ripping off the government for a free education, federally insured student loans were made dischargeable only after five years. The period was extended to seven years in 1990. Finally, in 1998, Congress made federal loans nondischargeable in the absence of a showing of "undue hardship" (undefined in the Bankruptcy Code). With BAPCPA in 2005, the noose was fully tightened — private student loans as well were made nondischargeable. The legislative history of this provision is sparse: at one point (on May 5, 1999) during the tortured eight-year process that led to BAPCPA's ultimate enactment, Senator Lindsey Graham offered an amendment to extend nondischargeabilty to private student loans. A total of three minutes of floor time was devoted to the issue, according to Maureen Thompson, NACBA (Nat'l Assoc. of Consumer Bankruptcy Attorneys) lobbyist. Through all the later debates on BAPCPA, the major concerns were with the means test and changes to chapter 13; this student loan provision was never really addressed again. Even before BAPCPA, though, options were being closed off. In 1991, the statute of limitations was eliminated for collections on federally insured student loans. This provision was later ruled to have retroactive effect, reviving student loan debt that had been previously time barred. United States v. Phillips, 20 F3d 1005 (9th Cir 1994). This extraordinary change put most student loan debtors in the same category as murderers and traitors who can be pursued until death.

The Law Today

During the time that student loans were dischargeable only after five years, the Brunner case was decided. Brunner v New York State Higher Educ. Services, Inc., 831 F2d 395 (2d Cir 1987). The Brunner test for a hardship discharge (required at the time for discharge without the waiting period) requires proof that: 1) the debtor cannot maintain, based on current income, a minimal standard of living for the debtor and dependents if forced to repay the student loan by its terms; 2) circumstances indicate that this state of affairs is likely to persist for a significant portion of the repayment period; and 3) the debtor has made a good faith effort to repay the loans. This standard was eventually adopted by virtually all of the circuits. In a recent Ninth Circuit BAP case authored by Judge Renn, In re Roth, 490 BR 908 (9th Cir BAP 2013), Judge Pappas wrote a concurring opinion in which he explicitly questioned the continuing validity of the Brunner doctrine, referring to it as "truly a relic of times long gone." Id. at 920. (An interesting side note is that in Roth, as in Brunner, the debtor was a pro se appellant.)

While federally insured student loans have numerous repayment programs available for students facing economic hardship (Income Based Repayment, Income Contingent Repayment, etc.), no such programs exist for private student loans. The federal repayment programs, along with options such as disability discharge, make bankruptcy unnecessary for most people who owe under the federal programs. This is not true for those subject to private student loans, which are vigorously pursued by numerous collection agencies, confident that no matter what else happens, their targets are unlikely to attempt to obtain a hardship discharge. The failure to even consider bankruptcy in these cases is a function of debtor and attorney ignorance, as well as the expense of pursuing student loan hardship discharge. A recent article by an academic found that the odds were reasonably good for those willing or able to pursue a hardship discharge. luliano, "An Empirical Assessment of Student Loan Discharges and the Undue Hardship Standard," Am Bankr L J (Volume 86, Issue #3, 2012). In 2007, the year studied, 51 of the approximately 200 people filing for hardship discharges received a full discharge and 30 received a partial discharge, while 25 more received an administrative remedy such as one of the repayment programs mentioned above.

In contrast to these favorable results, some real-life examples show how ruthlessly some agencies and collectors believe Brunner should be applied. The creditor in In re Renville, 2006 WL 3206126 (D Mont), suggested to the court that in order to have the funds to pay a student loan, the debtor should make a 1600-mile round trip each month so he could buy his prescriptions at lower cost on an Indian reservation. The court discharged the student loans.

The North Dakota court in In re Lindquist, 2007 WL 4868312 (Bankr D ND), was urged to require the debtor (who had been employed at several low wage jobs) to open her own beauty salon so she could make the income adequate to pay her loans. This was despite the fact that she suffered from depression, anxiety, scoliosis, obesity and back pain, and had advised the court that she could only do haircuts; she was not good at other salon skills, having once glued herself to a patron while attempting a manicure. The court declined to follow the advice of the collector.

Finally, a debtor with numerous medical issues sought a discharge and the creditor suggested that she eat "dry breakfast cereal several days a week" to save money. The debtor's food costs were high because she needed a diabetic, low sodium and dairy-free diet. The creditor also believed that the debtor could find other gainful employment, contending that the results of her "Functional Capacity Examination" (showing severe limitations) were skewed — the debtor had been in a diabetic coma and suffered from recurring pneumonia before the test. She could do only sedentary work but had no secretarial skills. Discharge granted. In re Hurley, 258 BR 15 (Bankr D Mont 2001).

But sometimes the court is equally ruthless. In an Ohio case highlighted in the New York Times, the bankruptcy judge opined that the debtor's blindness did not necessarily create a hopeless employment situation, despite the fact that the debtor lived in a rural area and had certain transportation issues. While not requiring the debtor to move to an urban area with more opportunities for employment for the blind, the judge declined to grant a discharge; he set a future date to allow the debtor "additional time to adjust to his situation." See Lieber, "Degrees of Debt," NY Times Sept 1, 2012, http://querv.nytimes.com/gst/fullpage.html?res=9A0DE5DE153CF932A3575AC0A9649D8B63

Another judge in Illinois addressed a case of a visually impaired man on Social Security Disability. The judge was not prepared to declare his situation hopeless and gave him a two year "window of opportunity" to recover from his financial situation, stating that he believed that the debtor had the potential to obtain "meaningful employment." Id.

The Economic Impact

People fighting the burden of $50,000 or $100,000 or more in student loan debt are unable to buy houses, start families, or make many of the normal consumer purchases that drive our economy. A New York Times article addressed the problem of people being left out of the mainstream economy and deferring starting families due to their crushing student loan debt.

Lewin, "Burden of College Loans on Graduates Grows," NY Times, April 11, 2011, http://www.nytimes.com/2011/04/12/education/12college.htmI?_r=O. In a similar vein, the ABI Bankruptcy Brief of August 15, 2013, included an article titled "Analysis: Student-Loan Load Kills Startup Dreams," documenting how the debt load discourages many graduates from becoming entrepreneurs.

At the same time, some private student loan agencies are among the most profitable businesses around, and have highly compensated employees. At one agency, seven employees earned more than $400,000 per year through commissions ranging up to 31%, not to mention the CEO who earned $1.1 million in 2010.

http://www.huffingtonpost.com/2012/05/17/studentloandebtcollectorsalaries_n_1525297.html. A scathing commentary by Matt Taibbi that recently appeared in Rolling Stone assigned some blame to schools that have little incentive to cut costs when the cash flow from student loans is virtually unlimited, but there is plenty of blame to go around. Taibbi, "Ripping Off Young America: The College-Loan Scandal," Rolling Stone Aug. 15, 2013, http://www.rollingstone.com/politics/news/rippingoffyoungamericathecollegeloanscandal20130815 .

The Political Situation

As even the most casual observers of national politics can tell, it is unlikely that Congress in the foreseeable future will have the votes, the will, or the interest to address the growing student debt problem. While some bills have been proposed to change the law, they have gained no traction. Of more impact are the efforts of Senator Elizabeth Warren to shine a light on the issues, including highlighting the fact that the government makes a profit on many student loans. She has also questioned why Sallie Mae was allowed to borrow money from the Federal Home Loan Banks ($8.5 billion dollar line of credit at .23%) to help to fuel its 2012 profit of $2.5 billion, largely from interest income from its private student loan portfolio (June 24th, 2013 letter from Senator Warren to the Director of the Federal Housing Finance Agency). It is ironic that the FHLB was chartered to help people buy homes, but now aids a sector of the economy whose practices prevent people from buying homes.

What Can Be Done

First, everyone concerned — students, former students, their families and their lawyers — must push for changes at the federal level, recognizing that it may be two years or longer before anything happens. The Consumer Finance Protection Bureau, http://www.consumerfinance.gov/, is becoming more active in the area of student loan collection abuse, and its involvement should provide some relief from the most egregious collection abuses.

Second, those concerned should take action on the state level, supporting such measures as the Oregon proposal to "pay it forward" and have repayment based on future income. Locally, attorneys need to make sure their clients understand the dangers of private student loans.

As far as litigation is concerned, remember that but for the nondischargeability protection in bankruptcy, student loans are just as vulnerable to state court defenses and counterclaims as credit card debts. In some cases they are more vulnerable, as the creditor usually cannot use the "account stated" allegation. All such defenses and counterclaims should be considered. In bankruptcy court, attorneys simply need to keep pushing not just on discharge issues, but on chapter 13 classification and use of 51322(b)(5) for dealing with student loans as long term debt.

Of course, there is always the option of the hardship discharge in bankruptcy. As discussed in the companion article by Natalie Scott, "Misconceptions & Muddied Waters," the first major change in hardship cases in years is taking place in the 9th Circuit. The change in the standard of review, along with the greater doubts expressed about the viability of the Brunner standards, should give debtors a better chance at a partial or total hardship discharge than they have had since the Brunner test was adopted by the 9th Circuit. This does not mean every client will qualify — the Brunner test is still there for now. What it does mean is that a larger number of cases should be appropriate for hardship discharge. But counsel must still present the case in such a way as to show the court that a fact based decision can be rendered that will withstand appellate scrutiny. Even if the debtor does not in fact apply for Income Based Repayment or a similar program, counsel must be prepared to show that the option has been explored and what the payments would be under a repayment program. Then, counsel must explain why it is not feasible, perhaps due to the presence of private student loans which have no such programs.

While as attorneys we must press all possible arguments and explore all avenues of relief for our clients, such actions are only a partial solution. Counsel can also be active in contacting the offices of their Senators and Representatives to help educate them about the glaring flaws in the system. Unless the student-loan problem is dealt with on a national policy basis, we face another economic crisis and lasting damage to not just the millions of graduates, but to the entire economy.

Green Card after 48 Days!

Thu, 08 Jul 2021 09:30:25 GMT

From Part 4 of this blog, I had passed my “interview” with immigration in Cancun and was told my Mexican “green card” would be arriving within 10 business days. Having received nothing in the mail, electronic or otherwise, after a month we decided to go back to Cancun and inquire at the immigration office. We got there relatively early; it was crowded as always. At this point, I recognized a few people in the waiting area, but no one seemed to remember me or want to acknowledge it at any rate. After a short wait we got up to the information counter. We explained the situation to the agent, who asked for my name.

“’Sonia Yvette Molinar’? Oh yeah, we have your card. Have a seat over there,” the woman said to me, without even consulting the computer. I was amazed that she would remember my name from among all the gazillion names that must pass through her desk every day. “You’ll need to wait outside,” she told Marco.

I took a seat in the main waiting area in front of a new and exciting counter. After about 10 minutes, a surly young girl with a giant bow clipped to the side of her slicked back hair called my name. I jumped up excitedly in anticipation of getting my hands on my card. “Good morning, I’m Sonia Molinar,” I told her with a smile.

She did not return the smile. She reminded me of Minnie Mouse, if Minnie Mouse had a really bad case of PMS and hemorrhoids and had just found out that Mickey had lost the rent money in a poker game. She asked me for my passport, glared at it, then glared back at me and told me to take a seat again. I sat there for the next hour wondering if there was a mistake, or a problem, or if they had just forgotten about me. I watched person after person being called to the Document Reception counter turn in their applications and leave. To my dismay, I felt my flip flop-clad feet being bitten with gusto by whatever bug was biting that day (WHY did I forget the bug spray that morning!?). I was right next to the counter and could see Minnie jawing sullenly with her coworker, her festooned head propped up by her hand.

Finally she barked my name out. When I returned to the counter, she had a stack of papers for me to sign. The first was a wordy resolution regarding my change of status from tourist to temporary resident. It said in legalese that I had complied with all the terms of the sundry laws and articles, paid the required fees, and that my card was issued with a validity period of one year (I have to renew my card at that point, and I’m sure, pay another fee and have my prints taken again; when I hit the two year mark I can apply for permanent resident status). For some reason, it was dated January 3rd, over a week before I had my appointment to pay my 2nd fee. It had three seals stamped on it; not as many as I was expecting but enough to make it look official; Latin America LOVES to stamp stuff.

The second document was a summary of my rights and responsibilities as a temporary resident. I was surprised to see that I, along with any other individual who is in Mexico, have the right to “free movement within the national territory, access to educational and medical services, and the enforcement and due process of law.” That is, if you go to the emergency room, they will not turn you away for lack of insurance or legal immigration status. So progressive and humanitarian…and such a contrast to their judicial system that literally assumes you are guilty until proven innocent. (More on that here: http://tijuana.usconsulate.gov/root/pdfs/telegalcriminalguide.pdf)

My responsibilities, as listed:

Protecting and guarding the documentation that confirms my identity and [immigration] status;

Presenting the documentation that confirms my identity and authorized immigration status to immigration officials when required of me;

Informing immigration of any change of civil status, address, nationality, or workplace within 90 days of said change;

Renewing my card before 30 days of its expiration; and

Only foreigners with the condition of LT status obtained through a work offer and permanent residents have permission to work.

(This last one left me scratching my head. So, I wasn’t allowed to work until I got my permanent resident card in two years? Marco explained to me that in Mexico, a job offer letter was enough to confer “LT Status”. This doesn’t sit right with me, but again, I’m thinking with my American brain.)

I signed the multiple copies of the documents where indicated. She date stamped my copies of the two documents “ISSUED” and slid them and my card over the counter to me without a word. The picture was hideous; you could barely make out my eyebrows and eyes and one nostril. But otherwise, it was a thing of beauty, with a large rainbow hologram of the eagle and the snake (the national coat of arms of Mexico) distracting from my Michael Jackson impersonation when held just so in the light.

Now that I had my card, I knew I could apply for a CURP, similar to a Social Security number in the U.S. that I would need to open a bank account or apply for a credit card or anything else. I wondered what fresh hell we’d have to go through for that process, but Marco had the smarts to suggest we go back to the information desk. Incredibly enough, the agent told us how to easily apply online (and it actually worked).

So, all in all, the whole process only took 48 days (probably less if we had come back to the office sooner). While remarkably quick, I feel like I lived a couple of years in between the first visit and the last; the nature of culture shock, for me anyway, is that the more I settle in, the more I grasp just how long it’s going to take for me to settle in.

This card represents one more thing I can check off of my agenda of practicalities, like getting my teeth cleaned (note to self: must get teeth cleaned) and figuring out how to file tax returns (note: ditto).

The longer list of Real Everyday Life in Mexico agenda items is much more daunting, including but not limited to:

Figuring out how to be a first-time mom at 48 to two kids;

Figuring out how to organize and run a two-story house with different conveniences than I’m accustomed to;

Figuring out how to run a business for the first time doing something I’ve never done before;

Figuring out how to ride the sneaker waves of culture shock;

Figuring out how to acclimate to a (sometimes unbearably) hot and humid climate; and

Figuring out how to communicate effectively in my second tongue with my new husband from a very different culture about all of the above.

I was perhaps, not exactly ready for all of this, when I left Portland almost 6 months ago. But in the words of the wonderful Hugh Laurie:

“It’s a terrible thing, I think, in life to wait until you’re ready. I have this feeling now that actually no one is ever ready to do anything. There is almost no such thing as ready. There is only now. And you may as well do it now. Generally speaking, now is as good a time as any.”

So I guess my timing is perfect.

If you’re interested in reading more of my stories, please check out my blog at:

https://thechenchochronicles.wordpress.com/

A big win for Amanda!

Thu, 08 Jul 2021 09:28:36 GMT

PB&L Attorney Amanda Gray wins remand at the Board of Immigration Appeals for a family of five seeking asylum from Michoacán, Mexico. Amanda’s client, a single, working class mother living in Michoacán, Mexico, and her four children became more vulnerable to the drug cartels and to the crime and violence plaguing the area after her husband died. The Immigration Judge found that Amanda’s client was just like any other woman in her small town because most of the men in her town would leave their families for 6-8 months at a time to work in the U.S. Amanda argued that unlike the other women in the town, her client did not have any male protection or financial support. The BIA also found that even if the client’s group is broad, that is not a bar to a finding of “particularity” under the Ninth Circuit case, Perdomo v. Holder. The Immigration Judge had also found that being a single woman in Michoacán, Mexico, was not an “immutable characteristic” because it is not impossible for her to change this status and she would not necessarily face significant harm if she were required to change her marital status. Amanda argued that her client should not be required to get married just to avoid persecution. The BIA agreed and found that the Immigration Judge should have considered whether being unmarried was so fundamental to her identity that she should not be required to change just to avoid persecution. The BIA also found that the four children may have viable claims for asylum in their own right. This is a big win for Amanda’s clients. On remand to the Immigration Judge, they will have the opportunity to present additional arguments and evidence, including testimony.

Fifth Graders Contest on Why America is a Nation of Immigrants

Thu, 08 Jul 2021 09:10:40 GMT

May marked the end of the 19th annual American Immigration Counsel’s Celebrate America Creative Writing competition. Fifth grade students around the country discuss their personal or family immigration histories or write about broader issues facing immigrants in our country using the theme, “Why I am Glad America is a Nation of Immigrants.” Student submission range from essays to poetry to works of art, and often illustrate a depth of understanding and compassion beyond their authors’ years.

This year, PBL’s Anaiah Palmer participated as a judge in the local Oregon competition, which included 52 submissions from students in Portland, Gresham, and Corvallis. Anaiah volunteered as a judge because she enjoys reading the thoughtful, moving, and sometimes amusing submissions, but also because she feels it is important for the conversation about immigration to start at a young age. Hopefully when these students are making important decisions for our community in years to come they will do so with a greater understanding of the real-life impact those decisions can have.

The top ten winners from the Oregon competition attended a naturalization ceremony at the U.S. District Court on May 17, 2016 where they were able to witness the important culmination of the immigration process for our new citizens, and hear remarks from the Honorable Judge Mosman about the value of immigration in our community. The top three winners also read their essays to the new citizens, spectators, family and teachers.

Oregon’s first place winner, Zach Robel of Ashbook Elementary, will be an honored guest at the AILA Oregon Gala in October, a fundraiser for our local immigration non-profits, where he will be presented with an award and will read his essay again to the local immigration bar. The national winner, Eliana Jaffee from Arizona, will be honored at the American Immigration Counsel benefit dinner at the AILA Annual Convention in Las Vegas later this month.

Immigration Attorneys Respond to Supreme Court Deadlock on Immigration Initiatives

Thu, 08 Jul 2021 09:01:58 GMT

The attorneys of Parker Butte & Lane (PBL), all members of the Oregon chapter of the American Immigration Lawyers Association (AILA), responded to the U.S. Supreme Court’s deadlocked decision in United States v. Texas, the case considering Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and the expansion of Deferred Action for Childhood Arrivals (DACA+ ).

“Our chapter joins millions of immigrant families across the country who are deeply disappointed with the Supreme Court’s decision,” PBL partner and former chapter chair, Gretel Ness, said. She continued, “This tied vote means that the lower court’s injunction stands and DAPA and the expansion of DACA cannot be implemented now. As a result, families in Oregon will continue to live in fear of separation and our economy will continue to miss out. However, the case will go back to the lower courts and may indeed make its way back to the Supreme Court again. In the meantime, we remind immigrants in our community not to trust notarios or immigration consultants who may try to take advantage of any confusion surrounding this news. The AILA members of the Oregon chapter will continue to fight until there is relief for immigrant families.

“What we really need though, is what we’ve needed all along – smart, balanced immigration reform that brings our laws into the 21st century. Earlier this year, PBL partner Dagmar Butte visited the offices of Oregon members of Congress in Washington, DC to emphasize the need for real reforms. In each meeting she laid out examples of immigrants making contributions to the community, and highlighted ways our laws could be reformed to increase our shared prosperity. She emphasized that what we need is Congress to lead on this important issue because thus far our nation has failed to find a workable solution to the problems faced by immigrants, businesses, employers, and state and local governments. This decision makes the need for Congress to act all the more imperative” said Ness.

AILA Doc. No. 16062334

El futuro del programa de DACA

Thu, 08 Jul 2021 08:59:18 GMT

Como parte de su plataforma migratoria, el presidente electo Donald Trump prometió terminar con la iniciativa de Consideración de Acción Diferida para los Llegados en la Infancia (DACA) que se anunció el 15 de junio del 2012 por la Secretaria del Departamento de Seguridad Nacional (DHS por sus siglas en inglés) Janet Napolitano. Aunque declaraciones del sitio web de su campaña indican claramente su intención de terminar con la DACA, aún queda mucho por ver. No se sabe cómo ni cuándo la DACA se pueda terminar. Es posible que el Servicio de Ciudadanía e Inmigración de Estados Unidos (USCIS por sus siglas en inglés) deje de aceptar o aprobar todas las solicitudes de la DACA. Alternativamente USCIS podría poner freno a sólo ciertos componentes de la DACA. Por ejemplo, podría dejar de aceptar las solicitudes iniciales, dejar de aceptar o aprobar solicitudes de renovación, o revocar la DACA para los individuos que actualmente la tengan. Si la nueva administración llegara a revocar la DACA, el permiso de trabajo del individuo también se revocaría.

Trump podría tomar acción en DACA de manera inmediato o poco después de la inauguración, semanas o meses después, o hacer nada en absoluto si ablanda o cambia de parecer. Para el 30 de Junio de 2016, USCIS había aprobado cerca de 750,000 solicitudes de DACA y más de 525,000 renovaciones desde que la Agencia empezó a aceptar solicitudes de DACA en el 2012. El poder político de la población de personas que ya tienen DACA y los defensores de derechos de inmigrantes no se debería de subestimar y es probable que la Administración de Trump ponga en la balanza las opciones antes mencionadas contra las repercusiones políticas que enfrentaría al enfocarse una población convincente que genera solidaridad con el público. Es más, durante ya varios años, el 75% de estadounidenses apoyan un plan de legalización inclusive de estatus legal permanente para los indocumentados.

Dado la incertidumbre en torno a la iniciativa de DACA, cualquier decisión referente a solicitudes iniciales, renovaciones o peticiones para autorización para viajar debería de considerarse cuidadosamente y se dependerá en las circunstancias personales y antecedentes migratorios de cada individuo.

Una consideración importante es el riesgo de que la información de la iniciativa de DACA se utilice para motivos de operaciones de ICE (Servicio de Inmigración y Control de Aduanas). Como la DACA se creó por medio de acción ejecutiva en forma de memorándum de política, no existen estipulaciones de confidencialidad ni reglamentarias ni reguladoras que impidan completamente que la información proporcionada al DHS por los solicitantes sea utilizada para objetivos de acciones de exigir el cumplimiento. Según las Preguntas Frecuentes (FAQ por sus siglas en ingles) sobre DACA, FAQ #19:

La información proporcionada en un pedido se protege de la divulgación al ICE y el CPB (Oficina de Aduanas y Protección Fronteriza) para fines de procedimientos ejecutivos migratorios sin que el individuo satisfaga los criterios para la expedición de un orden de comparecencia (NTA por sus siglas en inglés), o para que sea referido al ICE, bajo el criterio expuesto en la guía de USCIS sobre los NTA. Los individuos cuyos casos están diferidos de conformidad con la DACA, no serán referidos al ICE. La información sí puede ser compartida con agencias de seguridad nacional y de orden público, inclusive del ICE y CBP, para fines a excepción de proceso de remoción (deportaciones), entre ellos para ayudar en considerar la DACA, para identificar o prevenir declaraciones fraudulentas, para motivos de seguridad nacional, o para la investigación o acusación de un delito penal.

La política de compartir información mencionada arriba cubre además al solicitante a los miembros de su familia y guardianes. Esta política puede ser modificada, suplantada o rescindido en cualquier momento sin aviso, y no se puede ni se debe confiar con su propósito como para crear cualquier derecho o beneficio, sea sustantivo o de procedimiento, que se haga cumplir por ley por cualquier parte de cualquier asunto administrativo, civil o penal.

En resumen: la información proporcionada en una solicitud de DACA se puede compartir con ICE y CBP para fines de procedimientos ejecutivos migratorios sólo si el individuo satisface los criterios para la emisión de un NTA, pero su información sí se puede compartir con otras agencias del orden público (incluyendo ICE y CBP) para otros propósitos que no sean el proceso de remoción (deportaciones). “Otros propósitos” pueden incluir identificar y prevenir el fraude, asuntos de seguridad nacional, y la investigación o acusación de un delito penal. Sin embargo, debido a que la FAQ “puede ser modificada, suplantada o rescindido en cualquier momento sin aviso” individuos no puedan contar con ella para protegerlos de acciones de procedimientos ejecutivos migratorios ni en el futuro inmediato ni a largo plazo.

Lo que sí sabemos es que la información pertinente a individuos quienes ya han sido aprobados para DACA ya es conocida por el gobierno. Por lo tanto, no parece que individuos que desean renovar su DACA correrían riesgos adicionales en someter una aplicación de renovación. Por otro lado, someter una nueva solicitud inicial en este momento requeriría que el solicitante divulgara su información personal al DHS y esto podría aumentar su riesgo a cualquieras acciones de procedimientos ejecutivos migratorios potenciales que la nueva administración decida tomar.

Costos y tiempos de procedimiento

Según USCIS, las aplicaciones iniciales para DACA se están tardando más de 6 meses en adjudicar. Así que si un solicitante decide someter una aplicación inicial para DACA hoy día, no será procesado antes de que el presidente electo Donald Trump asuma el mandato el viernes, 20 de enero de 2017. Actualmente, las aplicaciones para la renovación de DACA se están procesando con mayor rapidez, así que puede que las solicitudes sometidas pronto tengan una posibilidad de ser adjudicadas antes de que Trump tome cualquier acción para eliminar la DACA. Pero resumidas cuentas, no hay garantía que cualquier aplicación será procesada de forma oportuna lo cual quiere decir que hay una posibilidad que los derechos pagados serán desperdiciados si se rescinde la DACA antes de que una solicitud sea procesada.

Conclusión

Cualquier decisión referente al estado de DACA se debería de tomar muy cuidadosamente y tener en cuenta las circunstancias personales de cada individuo. Si tienes preguntas acerca de tu estado migratorio y cómo pueda ser impactado por la nueva administración, o si quieres saber si hay otras opciones que te puedan ayudar a mantener u obtener un estado migratorio legal en los Estados Unidos, te recomendamos que consultes con un abogado/a antes de tomar cualquier acción.

The Future of the DACA Program

Thu, 08 Jul 2021 07:41:35 GMT

As part of his immigration platform, President-elect Donald Trump pledged to end the Deferred Action for Childhood Arrivals (DACA) initiative which was announced on June 15, 2012 by DHS Secretary Janet Napolitano. Though statements on Trump’s campaign website clearly indicate an intention to end DACA, much remains to be seen. We do not know how or when DACA might end. It is possible that USCIS could stop accepting or approving all DACA applications. Alternatively, USCIS could halt only certain components of DACA. For example it could stop accepting initial DACA applications, stop accepting or approving renewal applications, or revoke DACA for individuals who currently have it. If the new Administration were to revoke DACA, the individual’s employment authorization would also be revoked.

Trump could take action on DACA immediately or soon after the inauguration, weeks or months later, or not at all if he softens or changes his views. As of June 30, 2016, USCIS has approved close to 750,000 DACA applications and more than 525,000 DACA renewals since the agency began accepting DACA applications in 2012. The political power of the DACA population and immigration advocates should not be underestimated, and the Trump Administration will likely balance the above options against the political repercussions it would face by targeting a compelling population that generates sympathy with the public. Moreover, during the past several years 75 percent of Americans have supported a legalization plan for the undocumented that includes permanent legal status.

Given the uncertainty surrounding the DACA initiative, any decision regarding new applications, renewals, or applications for travel authorization should be considered carefully and will depend on each individual’s personal circumstances and immigration history.

One important consideration is the risk of DACA information being used for immigration enforcement actions. Because DACA was created through executive action in the form of a policy memorandum, there are no statutory or regulatory confidentiality provisions that completely protect the information applicants provided to DHS from being used for enforcement purposes. According to DACA FAQ #19:

Information provided in a request is protected from disclosure to ICE and CBP for the purpose of immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice to Appear or a referral to ICE under the criteria set forth in USCIS’s Notice to Appear guidance. Individuals whose cases are deferred pursuant to DACA will not be referred to ICE. The information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of DACA, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense.

The above information sharing policy covers family members and guardians, in addition to the requestor. This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter.

Thus, information provided in a DACA application may be shared with ICE and CBP for immigration enforcement purposes only if the requestor meets the criteria for NTA issuance, but information may be shared with other law enforcement agencies (including ICE and CBP) for purposes other than removal. “Other purposes” may include identifying and preventing fraud, national security concerns, and the investigation or prosecution of criminal offenses. However, because the FAQ “may be modified, superseded, or rescinded at any time without notice,” individuals may not be able to rely on it to protect them from enforcement actions in either the immediate or long-term future.

What we do know is that information pertaining to individuals who have been granted DACA is already known to the government. Therefore, it does not appear that individuals seeking to renew their DACA benefits would incur additional risks by submitting a renewal application. On the other hand, the submission of a new initial application at this time would require the individual to disclose their personal information to DHS and could increase their exposure to any potential enforcement actions the new administration decides to take.

Cost and Processing Times

According to USCIS, initial DACA applications are taking more than 6 months to adjudicate. Thus, if an applicant decides to file an initial DACA application today, it will not be processed before President-elect Trump takes office on Friday, January 20, 2017. Renewal applications are being processed more quickly, so applications submitted soon may have a chance of being adjudicated before Trump takes any actions to roll back DACA. But the bottom line is that there is no guarantee that any application will be processed timely which means there is a chance that an application fee will be wasted if DACA is rescinded before an application has been processed.

Conclusion

Any decisions regarding DACA status should be made very carefully and in consideration of each individual’s personal circumstances. If you have questions about your status, how it will be impacted by the new administration, or want to find out if there are other options that might help you maintain or gain status in the U.S., we recommend consulting with an attorney before taking any action.

Senate Confirms Cissna Nomination, Alliance of Business Immigration Lawyers Urges Cissna to Help Immigrants

Thu, 08 Jul 2021 07:38:05 GMT

WASHINGTON, DC (PRWEB) OCTOBER 10, 2017

The U.S. Senate confirmed Lee Francis Cissna as director of the USCIS on October 5, 2017. The vote was 55-43 in favor of Cissna’s confirmation.

Cissna, a lawyer from Maryland, most recently helped write the H-1B and L-1 Visa Reform Act of 2015 — a bill that would have dramatically enlarged the enforcement authority of the U.S. Department of Labor and restricted H-1B and L-1 visa requirements and benefits. Cissna also helped draft the American Job Creation and Investment Promotion Reform Act of 2015 — introduced by Sen. Grassley and Sen. Leahy — which included an array of what have come to be known as EB-5 “integrity” measures.

USCIS is in charge of granting many immigration benefits. In that regard the Alliance of Business Immigration Lawyers (ABIL) urges Cissna to:

1. Encourage adjudicators to apply the statutes and regulations as written

2. Refrain from altering regulations through the promulgation of policy memoranda

3. Solicit stakeholder input before and not after changing existing or implementing new policy

4. As a benefits granting agency, return to an alien-based reading of the immigration statute and its implementing regulations

PB&L partner, Dagmar Butte, is a member of ABIL.

Threats, Opportunities for Employers in 2018

Thu, 08 Jul 2021 07:36:23 GMT

After a tumultuous, difficult year in 2017 with respect to immigration and border issues, attorneys from the Alliance of Business Immigration Lawyers (ABIL) shared their thoughts on what employers can expect in 2018. Below is a summary of their responses and reports from the field.

WHERE THINGS STAND NOW

The Trump administration appears to be attempting to keep various campaign promises on immigration and border enforcement that mesh with the President’s (and his supporters’) overall dim view of foreign people entering the United States. Before he was elected, President Trump made a wide range of anti-immigration promises couched in national security terms. Those promises included, among other things, building a massive wall along the southern border and making Mexico pay for it; immediately deporting undocumented migrants; barring Muslims from entering the United States; “extreme vetting” of immigrants; and creating a “deportation force.” The President has waffled on Deferred Action for Childhood Arrivals (DACA) “Dreamers,” verbally expressing his support and understanding of their plight and then canceling the DACA program with an exhortation for Congress to handle it.

Executive orders issued since his inauguration have included various entry/travel bans, limits on refugees, and threats to sanctuary cities to pull their federal funding. The first travel ban on people entering from several predominantly Muslim countries was announced seven days after his inauguration with no apparent advance process, discussion, preparation, warning, or guidance to the Department of Homeland Security. The result was chaos and protests at airports. Various court challenges and subsequent travel bans ensued.

Arrests for “noncriminal immigration violators” are up, with 31,888 noncriminal arrests during the first eight months of the Trump administration, according to U.S. Customs and Immigration Enforcement. On the other hand, deportations have actually decreased by about 14,000 this year, reports say, but Attorney General Jeff Sessions has called for a “concerted effort” by immigration courts to speed up processing of pending immigration cases.

CONCERNS FOR 2018

Current concerns for 2018 include:

Animosity of the administration toward immigrants: “This is leaching into all areas of USCIS adjudications and the attitude of [U.S. Customs and Border Patrol agents toward] travelers with a bona fide legal basis for entry,” one attorney reported. “They will do as they please right now until challenged,” said another.
Creeping arbitrariness and unpredictability: Attorneys report clients being held up at the border or turned away in some cases due to considerations that do not seem to be based in law or regulation. Denials are being issued in some cases filed by employers on behalf of professionals that previously would have been considered routine. Some agents of the federal government appear to believe it is now open season on cracking down, and to be acting accordingly. Officers are no longer required to defer to previous decisions when extensions are requested. An attorney reported an example of such decision-making: a “perfectly clean” request for a three-year L-1 worker was approved without an RFE for one year because “she is an employee at will, so only one year is allowed.” Another attorney reported similar treatment for Trade NAFTA clients at certain ports of entry. A third attorney said, “To me the top threat is something that affects everything we do—it is the sense (which is not universal but permeates the ranks) inside [the Departments of Homeland Security and State] that they have impunity and are not bound by the rule of law. Unless and until employers adopt a long-term view and sue—as opposed to the short-term approach of just refiling and hoping for a better result—the agencies are right.”
More and more demands for additional documents, interviews, and requests for evidence (RFEs): Among other things, U.S. Citizenship and Immigration Services (USCIS) is reportedly considering mandatory interviews for all applications to renew or replace green cards (Forms I-90). Interviews for petitions to remove conditions on residence for certain married couples (I-751) are already a “nightmare.” USCIS is phasing in interviews for adjustment of status applications based on employment, including for some who have already filed their applications. Executive orders are requiring visa applications and adjudications to be reviewed for compliance with “extreme vetting” and “Buy American/Hire American” policies, for both initial petitions and extensions. There has been a sharp uptick (45% compared to last year, according to USCIS) in RFEs on H-1B visa petitions for skilled workers.
Massive backlogs and delays in applications and petitions increasing as a result of the greater scrutiny, in some cases leading to disruptions in travel, work, and study plans.
Attorneys’ fees increasing as a result of the additional work.
An overall “brain drain” and reduction in quality employees as immigration decreases, deportations increase, and more and more people leave the United States for Canada or other countries perceived to be friendlier to immigration, or never apply to enter the United States in the first place.
Arbitrary caps on H-2B workers and lack of a returning worker exemption.
A lack of visa categories for unskilled workers who are not temporary (which constitutes about 75% of the entire workforce).
Denials of advance parole renewal requests filed by green card applicants if they leave the country.
Stress on employers as they find it harder to fill important positions in a timely manner or are accused of not wanting to hire U.S. workers when in some cases there are simply not enough U.S. workers qualified and available to take the jobs.
Stress on clients, including would-be immigrants and their families; family separation; stress on attorneys.
Travel restrictions on people from certain countries based on a new ban issued in September that the Supreme Court allowed to be put into effect while appeals run their course.
Ending temporary protected status for some (e.g., Nicaraguans and Haitians), and making it harder to designate or extend such status in the future.
A planned removal of the regulation allowing certain H-4 spouses of H-1B nonimmigrants to obtain employment authorization documents (EADs), with a notice of proposed rulemaking scheduled for February 2018. This is expected to result in lost filing fees and labor turnover costs for employers with workers on H-4 EADs.
A proposed electronic registration program for H-1B petitions subject to numerical restrictions, with a notice of proposed rulemaking considered for February 2018, along with possible further restrictions on H-1B visas.
A proposal to make it more difficult to obtain a J-1 waiver.
Privacy issues: As of the middle of fiscal year 2017, approximately 30,000 travelers had their electronic devices searched at the border or at ports of entry. This was three times the number searched in 2015.

FUTURE CONCERNS

In addition to those noted above, future concerns include:

A planned revision (not yet described) of the definition of Specialty Occupation for H-1B workers and additional requirements for H-1B wages, with a notice of proposed rulemaking scheduled for October 2018.

Proposed new requirements for F and M students with respect to the practical training period, to include increased oversight of schools and participating students, with a notice of proposed rulemaking scheduled for October 2018.

HOPEFUL SIGNS

Although no one has a crystal ball and things look bleak overall for the foreseeable future on the immigration front, there are a few positive indications on the horizon. For example, according to reports, after conferring with President Trump, leaders in Congress are seriously considering introducing a measure in January 2018 to allow DACA “Dreamers” to stay in the United States. As of September 4, 2017, there were 689,821 people with valid DACA status in the country. Sen. Lindsey Graham (R-SC) was quoted in late December following a meeting with President Trump: “He wants to make a deal. He wants to fix the entire system.”

Also reportedly under serious consideration is meaningful EB-5 reform legislation, such as the Fairness for High-Skilled Immigrants Act, which would allow some EB-5 investors to obtain immigrant visas more quickly because their place in the waiting line would no longer depend on the nation of chargeability. And USCIS began accepting applications again under the International Entrepreneur Rule in December, albeit temporarily while the agency drafts a notice of proposed rulemaking to quash it permanently.

Otherwise, some court challenges are either already working their way through the system (e.g., on the latest travel ban) or may be filed in the future.

Recommendations

In general, ABIL recommends that employers and employees consider:

Allowing much more time than before for the application/petition process. Posted processing times are not reliable. Several additional months may be required if there is an RFE or an unanticipated additional security check or other problem.

Filing a mandamus action in federal court to compel the agency to act if a case experiences extreme processing delays.

Not leaving the United States in the short term if status is in any way uncertain.

Contacting your ABIL attorney for advice and help in specific situations.

AILA Presents Dagmar Butte with the 2018 Susan D. Quarles AILA Service Excellence Award

Thu, 08 Jul 2021 07:30:33 GMT

The American Immigration Lawyers Association (AILA) will recognize Dagmar Butte of Portland, Oregon, with the 2018 Susan D. Quarles AILA Service Excellence Award, in recognition of her outstanding service, over a period of years, in advancing the mission, development, and value of AILA for its members and the public it serves. She will receive the award this week during AILA’s Annual Conference in San Francisco.

Ms. Butte is a shareholder at Parker, Butte & Lane, and is an immigrant from Germany. She practices business and family immigration for individuals and corporate clients in high tech, health care, engineering, education, and a variety of other sectors. She also writes and speaks nationally and internationally on immigration law for AILA and other organizations.

Ms. Butte, an elected director of the Board of AILA, has received two AILA Presidential Commendations, is listed as a SuperLawyer since 2008, is listed in Who’s Who Among Business Immigration Lawyers and Chambers USA, served on then-candidate Barack Obama’s Immigration Policy Committee, and received the Oregon AILA 2009 Gerald H. Robinson Excellence in Immigration Advocacy Award.

She currently serves on AILA’s USCIS HQ Liaison Committee and Business Immigration Response Taskforce. In the past, Ms. Butte has chaired AILA’s USCIS Service Center Operations Directorate Liaison Committee and Nebraska Service Center Liaison Committee, assisted with legislative and regulatory comment writing, and served on a variety of special issue task forces, as well as the most recent AILA Executive Director Search Task Force.

In her spare time, Ms. Butte is an Adjunct Professor teaching international law at Lewis & Clark Law School.

USCIS to Begin Implementing NTA Policy

Thu, 08 Jul 2021 07:20:02 GMT

As of October 1, U.S. Citizenship and Immigration Services (USCIS) could start removal proceedings against some foreign nationals without underlying immigration status if their applications are denied and they do not leave the United States.

USCIS first announced the Notice to Appear (NTA) policy in July 2018, but decided to delay its implementation. USCIS said it will initially apply the policy to Form I-485 permanent residence applicants and to Form I-539 applicants to extend or change nonimmigrant status. Employment-based petitions (including H-1B, L-1, O, and E petitions) are not currently subject to the policy. The NTA policy also exempts humanitarian applications. Existing guidance for employment-based and humanitarian case types will remain in effect, USCIS noted.

USCIS said it “will send denial letters for status-impacting applications that ensures benefit seekers are provided adequate notice when an application for a benefit is denied.” If a person is not in a period of authorized stay and does not leave the United States, he or she may be issued an NTA. USCIS said it “will provide details on how applicants can review information regarding their period of authorized stay, check travel compliance, or validate departure from the United States.” An immigration judge would determine whether the person should be removed or is entitled to relief that would allow him or her to remain in the U.S. USCIS noted that “[e]xcept as specifically provided by law, the issuance, service, or filing of an NTA to commence removal proceedings does not negate any right to seek administrative review, whether by motion to the USCIS office that issued the unfavorable decision, or by appeal to the USCIS Administrative Appeals Office.”

USCIS noted that it “will continue to prioritize cases of individuals with criminal records, fraud, or national security concerns. There has been no change to the current processes for issuing NTAs on these case types, and USCIS will continue to use its discretion in issuing NTAs for these cases.”

Specifically, USCIS said the updated policy affects the following categories of cases where the individual is removable:

Cases where fraud or misrepresentation is substantiated, and/or cases where there is evidence the applicant abused any program related to receiving public benefits. USCIS said it will issue an NTA in these cases, “even if we deny the case for reasons other than fraud.”
Criminal cases where an applicant is charged with (or convicted of) a criminal offense, or has committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or the ground of removability. USCIS said it will, where circumstances warrant, refer cases to U.S. Immigration and Customs Enforcement without issuing an NTA or adjudicating immigration benefits.
Cases where USCIS has denied a Form N-400, Application for Naturalization, on good moral character grounds because of a criminal offense.
Cases where an applicant will be unlawfully present in the United States when USCIS denies the petition or application.

USCIS did not change its policy for the following categories:

Cases involving national security concerns;
Cases where issuing an NTA is required by statute or regulation;
Temporary protected status (TPS) cases, except where, after applying TPS regulatory provisions, a TPS denial or withdrawal results in an individual having no other lawful immigration status; and
Cases involving Deferred Action for Childhood Arrivals (DACA) recipients and requestors when (1) processing an initial or renewal DACA request or DACA-related benefit request or (2) processing a DACA recipient for possible termination of DACA. A policy memorandum on DACA recipients referenced by USCIS’s NTA announcement is at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-06-28-PM-602-0161-DACA-Notice-to-Appear.pdf .

The USCIS guidance is at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-06-28-PM-602-0050.1-Guidance-for-Referral-of-Cases-and-Issuance-of-NTA.pdf . A related announcement is at https://www.uscis.gov/news/alerts/uscis-begin-implementing-new-policy-memorandum-notices-appear . A related Web page is at https://www.uscis.gov/legal-resources/notice-appear-policy-memorandum .

Categories: Good to Know