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Immigration View

Navigating Complex U.S. Immigration Laws

National Visa Center Now Handling Nonimmigrant Visa Inquires

Posted in Consular Issues, General Immigration News and Updates, Permanent Residence

National Visa Center (NVC) was previously the domestic point of contact for all immigrant (i.e. permanent residence or ‘green card’) visa cases being processed through a U.S. Embassy or Consulate outside of the United States.  Beginning on Monday, January 12, 2015, the NVC is also the point of contact for all domestic inquiries regarding nonimmigrant visa cases as well.

The Visa Office reports that it choose to designate the NVC as the single point of contact for all visa matters at Consular Posts worldwide in order to improve the efficiency and consistency of responses to the public,

Consular posts will still accept inquires on individual visa cases and Legalnet will remain active and respond to inquiries from attorneys seeking advisory opinions on the interpretation or application of U.S. Immigration Law.

The general public may contact NVC by email at AskNVC@state.gov. Please note NVC will only answer the routine questions about case status and provide general information about the visa process.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

The I-Squared Act of 2015: Proposed H-1B Changes

Posted in Employment Verification Compliance (including I-9s, E-Verify, and Enforcement), General Immigration News and Updates, H-1B Temporary Workers

H-1B cap season is upon us, but will the H-1B cap be increased?  You may have heard of the “I-Squared Act of 2015” (aka the “Immigration Innovation Act of 2015” or S. 153), introduced in the Senate in mid-January.  Like the President’s Immigration Executive Action, the I-Squared Act contains a variety of proposals meant to improve the country’s immigration system.  Not all of the provisions relate to H-1B workers, but that’s what I’ll address here.

The Bill begins with a section captioned, “Market-Based H-1B Visa Limits”.   This Section describes a system which would provide for increased H-1B numbers depending on demand.  The H-1B cap would increase from the current 65,000 (+20,000) to 115,000 (but not more than 195,000).  Demand would be assessed on a rolling basis beginning 46 days after the first date when H-1B filings are permitted, then again on the 61st day and so on.  That should certainly alleviate the distress of cap-subject employers…if the Bill were to ultimately become law.

Further, the Bill proposes a 60-day grace period for the H-1B worker when the employment relationship ends (whether voluntarily or involuntarily before the ending validity date of the H-1B petition approval).

Of note, the Bill also calls for work authorization for the spouse of an H-1B worker.  This raises another question:  When will we hear more regarding the H-4 work authorization that is already under consideration?

Will the Senate Bill become law?  That seems highly unlikely, and particularly not in time for this year’s H-1B cap season.  So for now, cap-subject employers intending to petition for H-1B status for cap-subject foreign workers should be prepared as usual.

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Ms. Wadhwani is a partner in the Pittsburgh office of Fox Rothschild LLP.  She may be reached at cwadhwani@foxrothschild.com

Could Immigration Executive Action Affect Foreign Physicans?

Posted in Uncategorized

By Catherine V. Wadhwani

For a summary of my thoughts regarding whether President Obama’s Immigration Executive Action could affect foreign physicians, please see my article, “Immigration Executive Action:  Will it affect physicians?” as published in the January 2015 edition of the Bulletin, which is a publication of the Allegheny County Medical Society.

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Ms. Wadhwani is a partner in the Pittsburgh office of Fox Rothschild LLP.  She may be reached at cwadhwani@foxrothschild.com.

New NYC Resident ID Card ID available to all – could it be used to gain employment?

Posted in Employment Verification Compliance (including I-9s, E-Verify, and Enforcement), General Immigration News and Updates
(A municipal identification card on display during a press conference as Mayor Bill de Blasio announced the launch of IDNYC. (Credit: Uli Seit))

(A municipal identification card on display during a press conference as Mayor Bill de Blasio announced the launch of IDNYC. (Credit: Uli Seit))

On January 12, 2015, Mayor Bill de Blasio and Council Speaker Melissa Mark-Viverito launched its municipal identification card program, dubbed IDNYC, for residents of all five New York City boroughs.  In an attempt to bring official documentation to disenfranchised groups like illegal immigrants and the formerly incarcerated, a new ID card is being offered to anyone residing in New York over the age of 13 who is able to prove identity and city residency.  Mayor Bill de Blasio’s administration said the program will help to enhance public safety by providing more people with identification and help to fight inequality.  Funded through the mayor’s office with city funds, the 2015 budget for the program is $8.4 million.

Mayor Bill de Blasio said, speaking of the program, that “for New Yorkers who couldn’t have an official ID, this card is the key to a fuller life.” Such is especially true for the city’s undocumented immigrants, who without proper identification have trouble with many aspects of everyday life. Obtaining prescriptions, renting apartments and compiling with police officer requests all prove extremely difficult without a means of legally verifying identity. Mr. de Blasio also sought to ensure undocumented immigrants that “no one will be asked their immigration status in applying…for an ID because it’s not pertinent. If you’re a New Yorker, that’s all we care about.” The identification will not, however, provide access to federal, state, or city benefits and will not qualify as a work authorization permit.

Benefits of IDNYC include access to city buildings and some city services, and carriers will receive a free one-year membership to 33 cultural institutions, such as museums, zoos and concert halls.  Reportedly, IDNYC does not authorize cardholders to drive, provide proof of identity to obtain a driver’s license, purchase alcohol or tobacco products, receive public assistance benefits, travel on an airplane, confer immigration status, or provide work authorization.

Additionally, the New York Police Department (NYPD) recently reported that it would recognize the identification.  As such, the city anticipates the program will reduce arrests because low-level offenders that would have otherwise been arrested can now be issued summonses.  NYPD Commissioner William Bratton said the program is “part of our larger mission to forge public trust with the communities we serve.”

Not everyone sees the program as a great social equalizer. Chairman of the Conservative Party of New York State Michael Long said the program is costly and encourages law breakers by legitimizing illegal immigrants.

“New Yorkers are already the highest-taxed citizens, especially New York City citizens, in the country, and we don’t need to be spending this kind of money on this kind of program,” Long said, adding that he doesn’t believe IDNYC will reduce strain on the police force.

There is some question as to whether the card, which is an official identification card bearing a photograph, may be acceptable for the identification portion of the Form I-9, required for employment with any U.S. employer.  The law requires that All U.S. employers verify the identity and work authorization of ALL employees via the completion of a Form I-9.  The I-9 process is supported by the employee’s provision of documents to verify both his/her identity and employment eligibility (by submitting an acceptable document or combination of documents from the list of documents – see USCIS’ website for more information on the Form I-9).

Under the Form I-9 procedures, an employee may provide a document which establishes identify (a List B document) along with a document which establishes work authorization (a List C document).  List B contains a variety of acceptable identification documentation, including Item 2, “ID card issued by federal, state or local government agencies or entities, provided it contains a photograph or information such as name, date of birth, gender, height, eye color and address.”

Even though the card itself may not confer employment authorization, conceivably, it could be used to satisfy the List B requirement of a Form I-9.  An employee must, however, still be able to provide an original List C document, such as an unrestricted Social Security Card, or Employment Authorization document issued by the Department of Homeland Security.

The major concern of opponents of IDNYC is that it may encourage illegal immigrants to obtain false documents, such as a false Social Security Card, in order to gain employment, and an employer would be none the wiser.

Interested applicants, who must be at least 14 years old, will be asked to provide documents confirming their identity, such as a passport, birth certificate or visa, and a document that confirms their residency, such as a utility bill.  Once approved, the applicant will receive the card in the mail in 10 to 15 business days and it will be valid for five years.  For more information visit the official IDNYC website.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

 

Welcome to the Team: Randall Sidlosca Joins Fox Rothschild

Posted in EB-5 Immigrant Investor Program, Employment Verification Compliance (including I-9s, E-Verify, and Enforcement), General Immigration News and Updates, Uncategorized

The Fox Rothschild Immigration group has grown.  We have added Randall Sidlosca, an immigration attorney with more than 20 years of experience providing a broad range of employment-based immigration services.  A graduate of the University of Miami School of Law, Randall will practice from our Miami office, but will be serving clients nationwide.  One area of particular focus has been EB-5 Immigrant Investor matters.  Randall has worked with developers, businesses and with foreign investors who seek to take advantage of this popular, but quite tricky immigration process.  In addition to adding his EB-5 expertise to our group, he routinely advises clients on the immigration aspects of business reorganization, mergers and I-9 compliance.  Randall has served as an adjunct professor at Florida International University since 1996 and now joins our immigration practice group. 

Robert S. Whitehill is Chair of the Immigration Practice Group at Fox Rothschild LLP.  He may be reached at rwhitehill@foxrothschild.com

EB-2, EB-3 & EB-5 China Priority Dates and EB-2 India – Visa Office on Priority Dates, Demand, and Predictions

Posted in Consular Issues, EB-5 Immigrant Investor Program, General Immigration News and Updates, Immigrant Visas, PERM Labor Certification, Permanent Residence

Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, shares his analysis of current trends and future projections for the various immigrant preference categories with AILA (the American Immigration Lawyers’ Association). 

Below are highlights from the most recent “check-in with Charlie”, reflecting his analysis of current trends and future projections for the various immigrant preference categories.

When Might We Expect to Learn More About EB-5 China Movement?

Charlie is confident that a cut-off date will be established for EB-5 China and it is just a matter of when it will occur. He is in constant dialogue with USCIS’ EB-5 office and Guangzhou and hopes to have enough information to be able to estimate when the cut-off is most likely to occur by the beginning of February. If so, expect more information in the March Visa Bulletin, which will be published in the second week of February 2015.

EB-2/EB-3 China Priority Dates and EB-3 Downgrades.

The China EB-2 cut-off date moved from January 1, 2010 in the December Visa Bulletin to February 1, 2010 in the January Visa Bulletin. The China EB-3 cut-off date advanced much more dramatically from June 1, 2010 in December to March 1, 2011 in January, but is advancing more slowly than it had in late 2013 and early 2014. The Visa Office expects China EB-3 to continue to advance, until demand begins to increase significantly.

With the EB-3 China cut-off date for January 13 months later than the EB-2 China cut-off date, the Visa Office expects a surge in demand for China EB-3 over the coming months due to EB-2 China beneficiaries filing EB-3 “downgrade” petitions with USCIS. This expected surge in EB-3 demand will ultimately slow advancement, and will most likely result in the retrogression of the China EB-3 cut-off date at some point. Keep in mind that the Visa Office has no visibility to downgrades until such time as USCIS requests a visa number.  These are categories to continue to watch closely.

Will Executive Action Have Any Impact on Priority Dates?

It is not anticipated that the executive action recently announced by the Obama Administration will impact cut-off date movement.  The announcement outlined broad plans for preregistration of adjustment of status applications for individuals whose priority dates are not current.  As this would be limited to USCIS filings and would not render these individuals eligible for an immediate visa number, it would not impact priority dates.  The Visa Office is nevertheless in communication with USCIS regarding the administrative impact of these filings on USCIS workflows and on the system USCIS and DOS have for maintaining the pending demand file.

Executive action promises increased coordination between USCIS and DOS.  Interagency cooperation has been occurring for some time and the Visa Office looks forward to any initiatives which would further enhance information sharing between the agencies.

EB-2 India

The EB-2 India cut-off date has remained steady at February 15, 2005 since November 2014.  Historically, there has been no movement of EB-2 India prior to the summer when information about unused visa numbers from other categories can be more accurately predicted.  The Visa Office is considering whether to begin advancing this category earlier this fiscal year than it has previously done. One of the challenges in doing so is that the resulting increase in number use could ultimately reduce the cut-off date movement that normally occurs during the final quarter of the fiscal year.

Waiting List Report:

The January 2015 Visa Bulletin (http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-january-2015.html) includes in Section D, an “Annual Report of Immigrant Visa Applicants in the Family-Sponsored and Employment-Based Preferences Registered at the National Visa Center as of November 1, 2014.”  This report lists the total number of applicants registered at the National Visa Center in the various numerically-limited immigrant visa categories.  AILA received the following question from a member in response to this report:

Question:

Is there any way that the Visa Office could show how many of the applicants have priority dates in the next 6 months, next year, and next 18 months? The raw numbers do not give much help in telling a client there are “x” number of applicants ahead of your priority date.

Visa Office response:

We understand the member’s desire to know how many applicants have priority dates within the next 6, 12 and 18 months.  The Visa Office does not provide this information primarily because doing so would not be as instructive as one might think in predicting when an individual’s priority date will become current.  There are several reasons for this.

It is important to keep in mind that visa demand is constantly changing and the data in such a report would only represent a portion of the possible visa demand.  Specifically, it would not include data on the many cases pending at USCIS. The USCIS numbers represent the vast majority of the demand in the employment-based categories.  Additionally, knowing the number of cases with certain priority dates within a particular IV category could be misleading, since this is only one of several variables which are taken into consideration when determining the monthly cut-off dates.

It is also worth noting that the demand included in such a report would not reflect the number of cases NVC has on file in the family-based categories that could potentially pursue their cases.  For example, at this time, approximately 60% of F-2B applicants never responded to the agent of choice letters sent by the NVC during the period March 2013 through April 2014.  There is no way to know whether these individuals adjusted status through USCIS, whether they did not proceed due to ineligibility, whether they are no longer entitled to status, or whether they are putting off responding for some other reason.

One reason applicants may not respond to an agent of choice letter is that they may not want to pay the fee until their priority date becomes current.  While this is understandable, it can be counterproductive.  When an applicant pays the fee promptly upon receipt of the agent of choice letter, the case is either complete, or there is time to obtain any necessary documents to complete the file so that the case is ready for interview and approval as soon as the priority date becomes current.  When an applicant waits for the priority date to become current before paying the fee, an unanticipated surge in demand could result in the retrogression of the relevant category before the applicant had the opportunity to be interviewed and approved.  Therefore, it is preferable that applicants pay the fee immediately upon receipt of the agent of choice letter and promptly provide any requested documents as soon as possible.  Doing so provides greater visibility of demand, which in turn reduces the potential for erratic movement of the cut-off dates.

Coming Attractions…

Every few months the Visa Office updates its predictions for visa availability in the coming months, as it last did in November.  Expect to see updated predictions in the February 2015 Visa Bulletin.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

Streamlined E visa processing in Toronto

Posted in Consular Issues, General Immigration News and Updates, Investors, Traders and Entrepreneurs (E visas and Permanent Residence)

The US Government recently streamlined procedures for E visa applications, allowing easier and quicker cross-border travel to the US from Canada.  Applicants applying to renew their E visas may now submit minimal supporting documentation to the consulate, whereas, previously, the consulate required in depth evidence and material prior to setting up a visa appointment.  You can find more information on the U.S. Consulate in Toronto’s E visa processing revised instructions here.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

4th Circuit: False Claim on Form I-9 Renders Alien Inadmissible

Posted in Uncategorized

On the first page of the Form I-9, there is an attestation section where the employee must attest, under the penalty of perjury, to his citizenship or immigration status by checking one of four boxes provided on the Form.  In a recent decision, the Fourth Circuit held that an individual who falsely claimed to be a U.S. citizen on the Form I-9 for the purpose of seeking employment, was “inadmissible” under INA §212(a)(6)(C)(ii)(I). 

The False Claim Bar renders inadmissible any alien who falsely represents, or has falsely represented, himself…to be a citizen of the United States for any purpose or benefit under this Chapter or any other federal or state law.  So when Raymond Dakura, a native of Ghana who came to the U.S. on an F-1 student visa that had expired, completed a Form I-9 and checked the box that he was a citizen, he falsely represented himself to be a citizen of the U.S., and ran afoul of the False Claim Bar.  The truth was that Dakura was not a U.S. citizen, his F-1 status had already expired, and he remained in the country after he lost his student status with hopes to save enough money and re-enroll in University.  In need of work, Dakura applied for jobs, and when it came time to complete the Form I-9, he used documents which did not belong to him, and checked off the box attesting that he was a U.S. citizen.

Dakura soon married a woman with citizenship status, and she petitioned for recognition of their marriage, and sought a visa for Dakura.  Dakura then applied to the DHS for the adjustment of his status to lawful permanent resident.  When determining whether his status should be adjusted, the issue of his Form I-9 surfaced.  In order for an alien to adjust his status to that of a lawful permanent resident, he must be “admissible.” It’s actually the alien’s burden to prove that he “clearly and beyond doubt…is not inadmissible under 8 USC 1182.”

Making its way to the 4th Circuit, the issue was whether an alien who falsely claimed citizenship on a Form I-9 is thereby rendered inadmissible pursuant to the False Claim Bar.  The answer: Yes.  The theory supporting the 4th Circuit’s decision was that Dakura made the false representation for a “purpose or benefit” in his case, a job.  And doing so was clearly against the False Claim Bar. 

The 4th Circuit’s decision is now aligned with the 2nd, 3rd, 5th,  8th, and 10th Circuits which have also held that falsely claiming United States citizenship on a Form I-9, in seeking private employment, renders the alien making the false claim inadmissible under the False Claim Bar, or even deportable.

As we know, the Form I-9 is a delicate document which must be completed carefully and accurately.  Employers must be educated about the implications of the Form I-9 and its requirements.

*The decision is Dakura v. Holder, No. 13-2246, 2014 WL 6614158 (4th Cir. Nov. 24, 2014).

Immigration Executive Action: Beware of Notario Fraud

Posted in General Immigration News and Updates, Immigrant Visas, Intrcompany Transferees (L-1 and Permanent Residence), Priority Dates

With the holiday season in full swing, and with the President’s recent announcement of the Immigration Accountability Executive Action (IAEA), it’s a time of anticipation and optimism for many.  It’s also a time to be extra cautious.  The IAEA brings not only hope for potential for many, but also an opportunity for those who are unscrupulous to take advantage of unwitting victims. 

The American Immigration Lawyers Association (AILA) recently updated its public service announcements to help inform the public about notarios and other unauthorized consultants offering promises and advice that is fraudulent.  The fact is that the IAEA will not benefit everyone and filings are not currently being accepted under any part of the IAEA’s framework.  The full details regarding implementation of the IAEA have not yet been released.  Further, the IAEA is being vigorously challenged, causing uncertainty, at minimum with regard to timing. 

For more information, check out the AILA website (www.aila.org) and www.stopnotariofraud.org

Have a safe and happy holiday.

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Ms. Wadhwani is a partner in the Immigration Practice at Fox Rothschild LLP. She may be reached at cwadhwani@foxrothschild.com.

 

Travel like Santa

Posted in General Immigration News and Updates

Santa uses it to enter the US more quickly.  CBP offers Global Entry membership to pre-approved low-risk travelers.  This allows expedited clearance upon arrival to the U.S. for Santa as well as millions of good boys and girls.   Those returning from holiday visits outside of the U.S .are likely to be welcomed back with long, long lines of fellow travelers.  Qualifying U.S. citizens, permanent residents, Dutch citizens, South Korean citizens, Panamanian citizens and Mexican nationals may secure a Global Entry card.  In addition, Canadian citizens and residents have Global entry benefits through the NEXUS program.   Members may enter the U.S. by using automated kiosks located at select U.S. airports and preclearance locations.  

Not everyone qualifies for Global entry. It is not available to individuals who have had or are being investigated regarding criminal, customs, immigration or agricultural regulations or laws in any country. There is an application process (www.cbp.gov/global-entry/how-to-apply) that starts with payment of a non-refundable fee of $100 and the completion of an application.  The next step to membership is a personal interview at a Global Entry enrollment center for all applicants.  These centers are located throughout the U.S. and presumably there is a branch at the North Pole. Membership, once granted, makes entry into the U.S. somewhat easier and faster.

A question remains, of course, regarding how long it will take for Santa’s sleigh full of toys to clear customs…