US Immigration News & Commentary

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.

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.

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.

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.

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.

It’s pretty clear that the economy is bad with only a few holdouts are denying it at this point.

So what to do when you are on an H1B visa and you get laid off?
Well first of all don’t panic. You likely have a visa that lasts for years at this point so you are NOT accruing unlawful presence even though you ARE out of status.
What in the world does that mean?

Well, simply put too much unlawful presence means that you will not be allowed back into the US for many years. Specifically, 180 days to 365 days of unlawful presence means that you will be barred from the US for three years should you leave and attempt to return. Anything over a year results in a 10 year bar to reentry should you leave the United States.
But I’m out of status so I’m accruing unlawful presence right?
No, not at all. The date on your I-94 rules your world. So if you still have time on your I-94 then you are not accruing unlawful presence until that date has passed.
GREAT! I’ll just stay!

Well the bad news is that you ARE deportable since you are out of status so that’s a really bad idea! Additionally, you can’t change your status to any other status once you are laid off since you are no longer in valid non-immigrant status. That means you’ll have to leave if you try to change your status.

So what do I do??

I can’t answer that question for you. However, I can say that you aren’t supposed to be here (and I would never advocate that you violate any immigration laws) BUT if you quickly find a new and appropriate H1B visa sponsor you MAY get lucky and the USCIS MAY allow you to change employers without leaving. It’s certainly happened before and, arguably, you getting laid off isn’t your fault and you and your new employer shouldn’t be punished for you getting laid off. In other words, you shouldn’t have to spend the money to leave the US, get your new H1B issued, and then reenter costing you and your employer time and money.

The likely worst case scenario in this instance is the USCIS issuing you an H1B but making you leave to get your new visa stamped.

But you’ll have to find an appropriate job and beg for mercy from one of the most merciless agencies in the United States!

Good luck!

There are a limited number of ways to immigrate to the United States. The most common way is through a family category. The second most common way is through employment.

One of the most common paths to residency that does not involve immigrating through a family member is from student to OPT to H1B to permanent resident. It is important to understand that employment based permanent residency is for a job in the future. In other words, this is a prospective position. This means that there are cases where an employee may work for other employers while a different employer petitions for their residency.

There are a variety of different employment categories under which a person may seek residency. Briefly they include:

1st: Priority workers – Aliens with extraordinary ability in the sciences, arts, education, business or athletics; outstanding professors and researchers; multinational executives and managers.

2nd: Members of professions holding advanced degrees or aliens of exceptional ability.

3rd: Professionals, skilled, and other workers.

4th: Special immigrants.

By far the most common categories utilized by intending immigrants are the second and third preference categories. With limited exceptions the employer will have to test the U.S. job market to show the U.S. Department of Labor that there are no qualified U.S. workers available for the position in the geographic area of employment. A U.S. worker is defined as a U.S. citizen or lawful permanent resident. Individuals on non-immigrant visas are not considered “U.S. workers” for the purposes of the test of the labor market.

The employer will have to run ads in a variety of media such as newspapers, journals, internet job sites, state job banks, etc. These ads have a limited shelf life and, assuming that no qualified U.S. worker comes forward, the employer will have to file a request for labor certification with the U.S. Department of Labor in under 180 days from the date the first ad was placed or the employer will have to run the ad again if it is needed to satisfy their burden under the law.

Once the labor certification is filed the U.S. Department of Labor will certify the case, deny the case, or audit the case to make sure that all the appropriate steps were followed.

Assuming the case is certified the employee can begin the immigrant visa process with the U.S. Citizenship and Immigration Services. This is where the category of employment is important. The availability of visas for each category fluctuates and the U.S. State Department Visa Bulletin must be reviewed to determine the appropriate path for the next step.

If the visa category is current (indicated with a “C”) then the employee can file the I-140 visa petition and I-485 residency petition simultaneously. A work card application (I-765) and travel permission request (I-131) can accompany the I-485.

If the visa category is not current, showing a date rather than a “C”, then only the I-140 can be filed. The filing of the I-140 does not grant the beneficiary any status and no work card is available. Unless the prospective employee has independent basis for staying in the United States (e.g. an OPT or H1B) they may have to leave until their immigrant petition is approved and a visa number becomes available.

Fortunately, at least for those individuals on H1B visas (a very common scenario), the H1B visa can be extended beyond the normal 6 year limit if the labor certification was filed more than a year before the end of their 6th year. The H1B visa can be extended indefinitely until the labor certification and immigrant visa petition process is complete. Unfortunately this is a process which can take many years.

So does the push back.

Religious and labor leaders called upon Congress and President-elect Obama to pass a comprehensive immigration package this year and said that the U.S. economy could not be restored without legalizing the nation’s undocumented immigrants.

“Immigration reform is a necessity in order to fix the American economy,” John Wilhelm, president of Unite Here’s hospitality-industry division, said Thursday during a national teleconference call on immigration reform. The New York-based group represents more than 450,000 workers around the U.S.

read more.

myths and push for comprehensive immigration reform.

See Immigration Impact for more.

The US Department of Education launched a website geared to assisting immigrants improve their “basic reading, writing, speaking and life skills”. At this point the website appears to only be in English & Spanish.

The DOJ Inspector General, Glenn Fine, issues a report that most immigration practitioners and intending immigrants and citizens are already aware of: the FBI name check system is terrible.

Why? The report notes outdated equipment, limited supervision and training, and inadequate quality control measures, as well as increased demand after 9/11 as the reason.
As 9/11 was nearly 7 years ago these excuses are simply unacceptable at this point.

source

We’ve incorporated a new forum where questions and answers and stories can be posted. Feel free to visit and make your own post.

See the link on the front page under the website translator.

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Senator Durbin (D – IL) is planning to attach the Dream Act to a defense authorization bill coming up for a vote this week. The Dream Act has broad support so contact your representative to make sure they are going to help the Dream Act along.