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Archive for February, 2009

USCIS Press Release: Premium Processing for I-140 forms (reprinted in full)

February 24th, 2009 No comments

Office of Communications
Fact Sheet Feb. 24, 2009
PREMIUM PROCESSING SERVICE FOR CERTAIN
FORM I-140 PETITIONS BEGINS MARCH 2, 2009
U.S. Citizenship and Immigration Services (USCIS) will expand Premium Processing Service for designated Forms I-140, Immigrant Petition for Alien Worker to include alien beneficiaries who have reached or are reaching their limitation of stay in H-1B nonimmigrant status. Currently, only certain alien beneficiaries who are in H-1B nonimmigrant status at the time of filing may request Form I-140 Premium Processing Service.
Starting on March 2, USCIS will accept the Form I-907, Request for Premium Processing Service, for Forms I-140 filed on behalf of alien beneficiaries who, as of the date of filing the Form I-907:

Are the beneficiary of a form I-140 petition filed in a preference category that has been designated for premium processing service;

Have reached the 6th year statutory limitation of their H-1B stay, or will reach the end of their 6th year of H-1B stay within 60 days of filing;

They are only eligible for a further H-1B extension upon approval of their Form I-140 petition as prescribed by American Competitiveness in the Twenty-first Century Act (AC21) provisions 104(c)1; and

Are ineligible to extend their H-1B status under AC21 §106(a)2.
Under the Premium Processing Program, USCIS may place such conditions of availability for the Premium Processing Program. The petitioner must establish that the Form I-140 for which the Form I-907 is filed satisfies these conditions. To facilitate USCIS’s determination of whether a particular filing meets the conditions, petitioners can submit:

Copies of all Forms I-94, Arrival/Departure Record and I-797 H-1B or L approval notices that have been issued on his or her behalf;

A copy of the relating Form I-140 petition receipt notice if the form was previously filed; and,

A copy of the labor certification approval letter issued by the Department of Labor, if filing under the EB-2 or EB-3 classifications.
1 Public law known as the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) permits up to a three-year extension of stay for an H-1B nonimmigrant alien, provided he or she is the beneficiary of an approved Form I-140 petition and otherwise eligible for lawful permanent resident status except that the employment-based preference visa is unavailable.
2 USCIS grants an H-1B extension of stay pursuant to §106(a) of AC21, in one-year increments, until such time as a final decision has been made to (1) deny the application for labor certification, or, if the labor certification is approved, to deny the employment-based immigrant petition that was filed pursuant to the approved labor certification; (2) deny the employment based immigrant petition, or; (3) grant or deny the alien’s application for an immigrant visa or for adjustment of status.
Form I-907 Premium Processing Service requests that do not clearly meet the conditions will be rejected and returned with the I-907 fee. The Form I-140 petition will be processed according to standard, non-premium processing procedures if the Form I-907 is:

Submitted without documentation establishing the conditions for availability noted above;

Incorrectly submitted concurrently with a Form I-140 petition at a USCIS office without geographic jurisdiction over the Form I-140 petition; or

Submitted to request Premium Processing Service for a Form I-140 petition filed for an alien beneficiary who is eligible to extend his or her H-1B nonimmigrant status under AC21 §106(a) as of the date that the Form I-907 is received by USCIS.
USCIS will accept Form I-907 either together with the Form I-140 petition or after the filing of the Form I-140 petition through the mail or delivery service only. E-filing for Form I-907 will not be available. USCIS expects that adding other classifications to Premium Processing Service at this time would exceed USCIS’ capacity to provide timely Premium Process Service. USCIS will continue to evaluate whether it is able to process other groups of cases beyond this limited classification of petitions and will provide notification of any further availability of Premium Processing Service for Form I-140

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Citizenship for non-residents through military service.

February 22nd, 2009 No comments

On 11/25/2008, Secretary of Defense Robert Gates signed a memorandum allowing the Army, Navy, Air Force, to recruit non-citizens and non-residents.

Titled “Military Accessions Vital to the National Interest” (MAVNI), the program allows some non-citizens who are legally present in the United States to join the military. Based on joining the military the individuals can then immediately apply for citizenship without ever becoming a permanent resident.

The program is limited in its duration and scope at this time. The military will only recruit 1000 people and the program will only last 12 months.

Individuals in the following statuses are eligible:

Asylee, refugee, Temporary Protected Status (TPS), or, E, F, H, I, J, K, L, M, O, P, Q, R, S, T, TC, TD, TN, U, or V.

The individual must have been in valid status in one or more of those categories for at least two years
immediately prior to the enlistment date and must not have had any single absence from the United States of
more than 90 days during the two year period immediately preceding the date of enlistment in the military.

The military is looking for physicians and nurses as well as individuals with language skills/cultural knowledge.

The military is looking for individuals with the following language skills/cultural association:

Languages

• Albanian
• Amharic
• Arabic
• Azerbaijani
• Bengali
• Burmese
• Cambodian-Khmer
• Chinese
• Czech
• Hausa
• Hindi
• Hungarian
• Igbo
• Indonesian
• Korean
• Kurdish
• Lao
• Malay
• Malayalam
• Moro
• Nepalese
• Persian [Dari &
Farsi]
• Polish
• Punjabi
• Pushtu (aka Pashto)
• Russian
• Sindhi
• Sinhalese
• Somali
• Swahili
• Tamil
• Turkish
• Turkmen
• Urdu
• Yoruba

Individuals who are out of status or here without authorization are NOT eligible.
[PDF}Fact Sheet on the Program

[PDF]More important information on the program

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ICE clearly racial profiling to fill quotas.

February 18th, 2009 No comments

A story in the Washington Post exposes the Immigration and Customs Enforcement National Fugitive Operations Program – a program that received over $600 million from congress – as a federally funded racial profiling operation.

The program which, as it is named, is intended to be used to round up fugitives, is an abject failure by that measure. In 2007 nearly 1/2 of the people arrested were not fugitives from the law. The USICE says that number is going down but since they specifically allow non-fugitive arrests to be counted towards the quota that’s nonsense. In fact, it should be zero if they are only going after specific fugitives not stopping minorities at random. Clearly the USICE is simply going up to brown people and asking for their papers – and the video footage in the story supports exactly that conclusion.

In fact, according to the Post, some employees say that they were specifically directed to arrest non-fugitives to boost their arrest numbers. The USCIS and USDHS have declined to actually investigate the claims. That makes sense since it’s official policy.

The video evidence makes it clear the USICE officers were simply stopping men of Hispanic descent without reasonable cause or suspicion. The men detained included, Ernest Guillen, who was merely stopping for a cup of coffee on his way to be with his US citizen son who was receiving chemotherapy at John’s Hopkins and another man who was detained for 18 days even though he was in the United States legally.

The questions for the Obama administration are: 1) are you going to maintain a policy of racial profiling? 2) If you do believe racial profiling to be effective and are going to continue it will you expand it to include other agencies not related to immigration?

Or perhaps it’d be a better idea to use that muscle of yours to get comprehensive immigration reform passed.

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Napolitano: All enforcement all the time.

February 17th, 2009 No comments

Newly appointed Secretary of the DHS, Janet Napolitano (on NPR), shows that there will be little change between the Bush Administration and the Obama Administration with regards to immigration policy.

She’s for a border fence – in places where physically appropriate – but thinks the border needs to be more militarized (more boots on the ground) and also more technologically advanced (more expensive web cams).

She has no view (and probably little understanding of) the push factors that cause people to risk death to come to the US for work and only addresses the pull by saying that she’ll deport more people more quickly and punish employers more harshly.

As far as immigration procedures and policies, she will leave that up to Congress and offers no opinion at all.

Looks like more of the same unless Congress implements comprehensive immigration reform some time soon.

As an aside, someone might want to point out to Secretary Napolitano that the path isn’t from undocumented immigrant to citizen but from undocumented immigrant to permanent resident. It really sounds like she doesn’t know that.

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Tom Friedman: Expand immigration to keep the US afloat

February 12th, 2009 No comments

Tom Friedman has an op-ed that may seem counterintuitive to some.

Referencing a statement by Shekhar Gupta of the Indian Express..

“All you need to do is grant visas to two million Indians, Chinese and Koreans. We will buy up all the subprime homes. We will work 18 hours a day to pay for them. We will immediately improve your savings rate — no Indian bank today has more than 2 percent nonperforming loans because not paying your mortgage is considered shameful here. And we will start new companies to create our own jobs and jobs for more Americans.”

Mr. Friedman points out that our economy was built through the power of migrant labor and that our status as technology leader is directly tied to our recent immigration patterns so more, not less, immigration is a good idea. In other words, protectionism, at least in some forms, will harm not help us.

Congress recently bought false [PDF] right-wing spin about H1B visas and banks using TARP funds and voted to numerous jobs and our rate of patents goes up with the rise in tech immigrants.

The workers are going to ply their trade somewhere and if not in the US it will be in their home countries meaning that those countries will reap the benefits of workers trained in our excellent educational system.

This is not a path that allows America to remain competitive in the future.

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Second thoughts on local enforcement of federal immigration laws.

February 12th, 2009 No comments

Some state & local governments are having second thoughts about trying to control immigration through the use of local laws as the cost has proven to be prohibitive and the measures a PR nightmare.

An example of some of the thinking that should have been done beforehand:

“Republican state Rep. Stephen Clark, author of one proposal, wants to delay the bill for a year to study the economic impact of illegal immigrants on the state.

Gov. Jon Huntsman Jr., a Republican, supports a delay, says spokeswoman Lisa Roskelley.

“We are in the process of making major cuts all across the board in government, including public education,” says Clark, who puts the cost of implementing the immigration law at $1.7 million. “We believe now is not the time to invest that money into this issue, especially when we don’t know whether illegal immigration is a financial plus or minus to the state.”

This isn’t surprising as these are merely red-meat election issues not measures that can actually affect migration patterns in any significant measure and it’s not unreasonable to believe that pushing undocumented workers out of your area can have an adverse impact on the local economy either through loss of labor or because the locality is shunned or even sued for discrimination.

A smart comprehensive plan or even something simple like raising visa caps and eliminating the 2A visa category would do a lot to reduce “illegal” immigration if that’s your goal. If your goal is simply to keep the brown people out (as the Americans in the past wanted to keep out the Irish, the Jews, the Italians, etc..) then that boat has sailed.

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Immigrant Detention as a Business Model

February 10th, 2009 No comments

It probably comes as little shock to anyone paying attention that the prison system in the US is big business.

It’s quite profitable and growing every day. It even has it’s own lobbyists.

It’s not just US citizens who are being used as cash cows, immigrants are being sucked into this business as well.

According to a recent article in the Boston Globe, jails all over the nation -including smaller facilities – are taking advantage of the shortage of space and the federal government’s willingness to pay by the body and are raking in millions in profits.

There are many ways that an immigrant can find their way into a detention facility. One common way it works is that when an immigrant fighting his case is either unable to pay bond is subject to mandatory detention (or who the DHS claims is subject to mandatory detention) he may sit in jail for months or even years while pursuing a remedy with the assistance of their immigration attorney, perhaps all the way through the appellate stages.

Many times these immigrants are being removed for non-violent offenses such as minor, personal, drug possession and have no other record. However, Congress has mandated that they be detained for the duration of their proceedings – even if they aren’t dangerous. This needlessly leads to job loss and family disruption as many of these immigrants have been here for decades, have relief available, and will ultimately not be deported.

For example, an immigrant who was convicted of possession of a controlled substance other than a small amount of marijuana may be eligible for relief known as “cancellation of removal” but is also subject to mandatory detention.

This means the have to stay in jail the entire time they’re fighting their case. A case that takes 6 months earns the jail on average $16,000.00 dollars. If the immigrant is denied at the immigration court level and chooses to appeal the profit for the jail increases greatly. Oddly many cases which should be approved are denied at the immigration court level and the Board of Immigration Appeals – both administrative agencies of the executive branch rather than independent tribunals.

There appears to be little incentive to let these folks go even if they’re not dangerous.

In this business model everyone wins – except the families of course.

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USCIS responds to Ombudsman recommendations on slow EAD processing

February 9th, 2009 No comments

As many of my clients know the EAD process while your getting your green card through family or after your labor certification is approved can be quite slow. Though I’d say it’s not consistently slow as some of my clients receive their EAD cards rather quickly while some never do!

The USCIS Ombudsman made some recommendations regarding EAD processing:

• Adhere to regulations that state USCIS shall issue Employment Authorization Documents (EADs) within 90 days, or issue interim EADs, to prevent unnecessary loss of employment;

• Expeditiously provide information to the public stating the cause of EAD processing delays and how the delays will be addressed;

• Ensure USCIS provide consistent guidance to the public regarding EADs pending more than 90 days via the National Customer Service Center (NCSC) toll-free number and local offices; and

• Reconsider Ombudsman recommendation FR2006-25 to issue multi-year EADs.

The CIS Ombudsman also suggests that USCIS consider the following operational procedures to issue interim EADs when applications are pending over 90 days:

• Modify USCIS I-797 Receipt Notices for Form I-765 (Application for Employment Authorization) to provide for continued employment authorization; and

• Affix fraud-proof stickers to expired EADs upon determination of an applicant’s eligibility for an extension.

The USCIS response shows that, unfortunately, they do not think they’re doing anything wrong!

“We appreciate the CIS Ombudsman’s interest in the adjudication of Form I-765, Applications for Employment Authorization, or EAD applications. We acknowledge that, unfortunately, there is a small percentage of applicants whose cases are not adjudicated timely, and we understand that this imposes a significant burden on them, but we respectfully disagree with the perception that EAD processing, as a whole, is a significant issue.”

They conclude that since only 1-2% of filed EADs results in a call to the Customer Service center and (they guess!) that many of those aren’t about cases outside of normal processing times then there is hardly a problem.

Well at least 1/2 of my cases end up with me having to walk in and ask for an interim card. I didn’t call the customer service line before that. I also know that many others simply walk in as well.

The USCIS doesn’t factor that in to their speculation as far as I can tell.

On to the specific recommendations…

1. Adhere to regulations that state USCIS shall issue EADs within 90 days, or issue interim EADs, to prevent unnecessary loss of employment.

To accomplish EAD issuance within 90 days as required by regulation, USCIS is taking a multi-faceted approach. First, we will continue to conduct routine sweeps of our systems to determine Form I-765 applications which have been pending for at least 60 days and have not been assigned to an Immigration Officer (IO). These sweeps are conducted at least weekly and more frequently if necessary. Applications that have not been assigned will be forwarded to an IO to facilitate adjudication within the required timeframe.

We also have updated customer call scripts at the NCSC to state that service requests can be accepted when an EAD application has been pending for at least 75 days. Service requests accepted by the NCSC will be forwarded to the Service Centers and the National Benefits Center (NBC). The Service Centers and the NBC will be required to prioritize these cases and have them adjudicated prior to the 90th day.

We will also issue guidance to the Service Centers, the NBC, and Field Offices regarding requests on EAD applications that have not been adjudicated within 90 days. Applicants who have not received a decision on their Form I-765 application after 90 days can call the NCSC to request expedited processing or go to their local office via an InfoPass appointment. Because interim cards are produced by the appropriate Service Center or the NBC and field offices no longer produce EADs on-site as of August 2006, we recommend that EAD applicants may prefer to call the NCSC rather than visit the local Field Office. The NCSC has created a new service request category specific to EAD-related inquiries: Outside Regulatory Processing Time. These requests will be forwarded to the appropriate Service Center or NBC. For all requests that are forwarded from either the NCSC or the Field Offices, Service Centers and the NBC will either adjudicate the application or issue an interim card within 10 days of receiving the request. Interim cards will only be issued when adjudication of an application is delayed beyond 90 days due to the required reviews leading to a final decision that will exceed outside of that timeframe.

Ha. When you go to an infopass appointment around here they simply say “No” or call the service center and say “they’re working on it”. They resist interim cards at every turn.

As far as calling to ask for an interim card, in my experience, you get a letter back saying they acknowledge your call and that’s about the end of it.

2. Expeditiously provide information to the public stating the cause of EAD processing delays and how the delays will be addressed.

When processing delays result from issuance of a Request for Evidence (RFE), USCIS will explain how the issuance of the RFE affects the 90-day period. When issuing an RFE for initial information, USCIS will advise the applicant that the 90-day period is automatically rescinded and that, upon receipt of the requested information, a new 90 day period begins. Likewise, when an RFE is issued for additional information, USCIS will advise the applicant that the 90-day period is automatically suspended and that, upon receipt of the requested information, the 90-day period will continue from the point of interruption.

Yeah that’s the position they take but what about delays not caused by RFEs??

3. Ensure USCIS provide consistent guidance to the public regarding EAD applications pending more than 90 days via the National Customer Service Center toll-free number and local offices.

This recommendation is currently in place, and information is available to the public. On August 28, 2008, USCIS issued and posted on its website at www.uscis.gov an EAD fact sheet which explains the steps an applicant may take if his or her Form I-765 application has been pending for more than 90 days.
In addition, the NCSC toll-free number has been updated to accept service requests for any I-765 applications pending more than 75 days. An internal announcement within the NCSC has been made, and customer scripts used by Tier 1 representatives have been modified to reflect the new service request requirement for Form I-765 applications. USCIS also plans to issue guidance to the Service Centers, NBC, and Field Offices regarding consistent handling of expedite requests.

Is it? My clients get terribly inconsistent information. Including, but not limited to, “You don’t get an EAD until you are granted permanent residency(!!!)” Insane to have to take an immigration lawyer with you just to get a work card they swear they’re giving out quickly with no problems.

4. Reconsider Ombudsman recommendation FR2006-25 to issue multi-year EADs.
USCIS currently issues multi-year EADs in some circumstances. The 2-year EAD is available to pending Adjustment Of Status (AOS) applicants who have filed for an EAD under Title 8, Code of Federal Regulations (C.F.R.) 274.a.12(c)(9) and who are currently unable to adjust status because an immigrant visa number is not currently available.

Two-year EADs are currently being issued in these circumstances. USCIS will continue to grant EADs that are valid for 1 year for adjustment applicants who have an available immigrant visa number and are filing for employment authorization under 8 C.F.R. 274a.12(c)(9). In order to be eligible for an EAD with a 2-year validity period, an applicant’s Form I-140, Immigrant Petition for Alien Worker, must be approved.
USCIS also currently issues EADs valid for 18 months to applicants with valid Temporary Protected Status (TPS). USCIS welcomes suggestions from the Ombudsman regarding which eligibility categories should merit consideration for multi-year EADs, recognizing that an across-the-board extension of EAD validity periods is not possible since some applicants are prohibited from receiving multi-year EADs because of their status. Many employment authorization categories are linked to specific periods of eligibility which can vary greatly from case to case and are very often for periods of less than a year in duration.


I don’t expect much more than this because it’s a source of income for them. Hey Congress, why is the USCIS financing their operations off of the backs of immigrants??

5. Modify USCIS I-797 Receipt Notices for Form I-765, Application for Employment Authorization, to provide for continued employment authorization.

Since 2006, we have streamlined our approach to enhance our ability to process these applications within the 90-day timeframe which minimizes the need for an interim EAD as well as produce a more secure document. USCIS is unable to modify an I-797 Receipt Notice to serve as an interim extension of an Employment Authorization Document for several reasons, including fraud which would pose a threat to national security and confusion that this action would likely cause employers.

National Security? Nonsense. They run your prints and have your address. They can come pick you up if you’re a national security risk.

Confusion to employers? How?

No, they don’t want to lose a source of income.

6. Affix fraud proof stickers to expired EADs upon determination of an applicant’s eligibility for an extension.
USCIS believes it would be more efficient, secure, and customer-friendly to issue a new EAD rather than to place a sticker on an expired one. EADs are adjudicated at service centers, not at the Field Offices. Unlike placing a service request with the NCSC, use of a sticker to extend employment authorization to applicants would require that applicants schedule an appointment and visit their local office. This could be burdensome for many applicants, where the local office is some distance from the applicant’s residence or the applicant has children; and, it likely would not be any quicker than if USCIS mailed them new card upon approval. Additionally, mailing a new card would be more secure as the applicant would only have one valid EAD at a time. With a sticker, there would likely be some overlap and one person could have two valid EADs.

Good idea. Lame excuses not to do it.

1) It’s not customer friendly to make people wait for proof of work authorization.

2) People schedule an appointment to get their interim cards as it is since the phone is useless.

3) Could be burdensome? Um. What about the people for whom it’s not burdensome? (back to 1 – it’s customer friendly to have as many ways as possible to get a work card)

4) Two valid EADs overlapping? So what. It has your picture on it! If you have an EAD that’s going to expire you can file for a new one and there could be some overlap if it’s approved in a timely manner. Silly.

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Cancellation of Removal for Lawful Permanent Residents

February 1st, 2009 No comments

Cancellation of Removal for Permanent Residents

Permanent residents are foreign nationals who have been granted permission to stay in the U.S. by the U.S. government for the rest of their lives. However, since they are not citizens and since the U.S. constitution gives Congress the power over immigration there are many ways for a permanent resident to lose their status.

One of the most common ways is to commit or be convicted of some sort of criminal offense. After the permanent resident serves his or her time the U.S. government may seek to deport or, as it’s called now, remove that individual.

In the past there were a variety of ways to overcome deportation proceedings. However, absent a claim at asylum or something similar most permanent residents are only left with seeking “Cancellation of Removal”.

At its most basic a request for Cancellation of Removal is simply a plea not to be deported. However, as is always the case, Congress created a few hoops that have to be jumped through before the permanent resident is eligible.

First, the individual must have been a permanent resident for 5 years before apply for Cancellation. Next, the individual must be able to show continuous residency in the U.S. for 7 years after being admitted in any legal status. The road block Congress put up here is that the 7 years presence will stop accruing when the resident commits an act that renders him or her removable.

So, if a person is a resident for 6.5 years and is arrested for possession of a controlled substance they are not eligible for cancellation of removal even if the U.S. government does not try to remove them until after the 7 years of presence has accrued. Also, the resident cannot have been convicted of an aggravated felony.

The judge will balance hardships against the offense or offenses and past history of the resident and determine if cancellation is warranted as a matter of discretion.
Some factors in favor of cancellation are:

1. Strong family ties in U.S.
2. A long residency in the U.S.
3. Evidence of hardship to family and self if deported
4. Served in Armed Forces
5. Solid history of employment
6. Property owner or individual with ties to business
7. Evidence of service to the community
8. Proof of rehabilitation
9. Evidence of good character

The request is filed using an EOIR-42A form with a fee before the individual hearing on the case. Should the request be granted the case against the resident will be terminated and they will be able to continue living their lives. However, if they are placed in removal again it is unlikely that they will be able to seek Cancellation of Removal again.

Justin G. Randolph, Esq. is a Chicago Deportation Lawyer assisting in deportation defense and other immigration matters.

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