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Immigration View

Navigating Complex U.S. Immigration Laws

A Gift from CBP: Border Wait Time App

Posted in General Immigration News and Updates

Just in time for year-end travel, US Customs and Border Protection (CBP) has launched a “Border Wait Time” app[http://www.cbp.gov/newsroom/national-media-release/2014-12-16-000000/cbp-launches-border-wait-time-app] for use at land ports of entry. This free app should help facilitate the border-crossing process by providing estimated wait times and open lane status reports for the land ports of entry nearest to the user’s location.  The user will then be able to select the best place to seek to cross the border at any given time. Kudos to CBP.

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

USCIS Policy Extends the Immigration Benefit to Gestational Mothers Using Assisted Reproductive Technology (ART)

Posted in General Immigration News and Updates

On October 28, 2014, the United States Citizenship and Immigration Services (USCIS) issued new policy guidance to expand the Definition of “Mother” and “Parent” to include gestational mother using assisted reproductive technology (ART).

As described in the USCIS Policy Manual, http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12.html. ART refers to fertility treatments where either the egg or sperm, or both, is handled outside the body.  It allows for a woman to bear a child to whom she does not have a genetic relationship through the use of a donor egg.  As a result, a mother could have a biological relationship to her child, but not a genetic one.  Previously, a genetic relationship with a U.S. citizen parent was required in order for a child born abroad to acquire citizenship at birth through his or her parent.

Recognizing the complication created by ART and other advanced reproductive technologies, USCIS and the Department of State (DOS) collaborated in the development of the new policy to establish that the term “Mother” and “Parent” under the Immigration and Nationality Act (INA) includes any mother who: 1) gave birth to the child and 2) was the child’s legal mother at the time of birth under the law of the relevant jurisdiction.  This new definition now requires that a non-genetic, gestational mother (person who carried and gave birth to a child, even when a donor egg was employed) to be recognized under the INA as the same as those mothers who bear genetically related children. 

As such, a non-genetic gestational mother will enjoy the following benefits under the new policy:

  • Be able to petition for her child based on their relationship;
  • Be eligible to have her child petition for her based on their relationship;
  • Be able to transmit U.S. citizenship to her child, if she is a U.S. citizen and all other pertinent citizenship requirements are met.

President’s Executive Action Only Goes ‘So Far’ to Fix Immigration

Posted in General Immigration News and Updates

President Obama’s recent executive actions relating to immigration have sparked a firestorm from detractors and jubilation from supporters. Known as “Immigration Accountability Executive Action” (IAEA), the Executive Action addresses some decades-old problems with our immigration system, which supporters and detractors alike describe as “broken.” IAEA is not an act of Congress and can only go so far to fix a broken system. Ultimatley Congress is responsible for passing federal laws. The Immigration and Nationality Act (INA), is principally administered by the Department of Homeland Security (DHS). Agencies fashion regulations implementing the law in force as will the policy of the administration.

Executive Actions by the president are normal and ordinary and have been exercised with regard to immigration by every president for more than 50 years.IAEA is a directive to DHS to implement certain policies and promulgate regulations concerning border security, prosecutorial discretion, priorities in removal and legal immigration.The highlight of IAEA is to reorder enforcement priorities and direct DHS to grant deferred action to millions who have strong ties here, who are not a security threat, who do not have significant criminal backgrounds and who meet other criteria on a case by case basis. This action reflects recognition that millions of undocumented immigrants cannot be rounded up and deported, as the president said, “deport felons, not families.”

Deferred action is not a visa. It confers temporary relief from the threat of removal. It will be limited to three years at a time, but could be revoked earlier. When implemented, the new programs will potentially allow millions of undocumented childhood arrivals to the U.S. and parents of U.S. citizen or permanent resident children to receive employment authorization, social security numbers and driver’s licenses. They will be lawfully present, but not eligible for citizenship or adjustment to permanent residency. Beneficiaries are not able to jump any line in which others are waiting for their “green cards.” Deferred action benefits are funded by filing fees, and should result in more tax revenues from workers with employment authorization and social security numbers.

Alas, IAEA addresses only some parts of the legal immigration system that are broken. Congress has not increased the number of H-1B skilled worker non-immigrant visas in over a decade or the number of immigrant visas in at least twice that long. This means difficulty for foreign nationals in entering the legal work force and seemingly endless delays for many in securing their green cards. Part of IAEA addresses benefits to make the waiting less painful and entry into the professional or entrepreneurial workforce easier.

DHS and other agencies are directed to prepare and promulgate regulations to ease the problems within the existing law. This includes giving STEM students a longer period of post-degree optional practical training, allowing those with approved immigrant visa petitions to secure employment authorization for their dependent relatives, broadening the availability of national interest waivers for certain entrepreneurs and modernizing the PERM system.

One significant regulatory change is already underway, while the others may take many months before regulations are formulated. Congress established the H-4 visa for spouses of H-1B visa holders. Under current regulations, H-4 spouses do not have employment authorization. This year, the process began to change those regulations to permit certain H-4 spouses to gain employment authorization.

The proposed regulatory changes will be significant fixes. The grants of deferred action may affect half of the undocumented immigrants in the United States. They are humane and practical and cause for relief for millions. Although executive actions are dramatic and historic, only Congress can fully address the immigration system that is from a different time and fails to reflect the needs of 21st century America.

‘Tis the Season…or at least time to prepare for the Season—FY 2016 H-1B Cap Season, that is. Are you ready?

Posted in General Immigration News and Updates, H-1B Temporary Workers, Start-Up Companies, Uncategorized

With no relief in sight for an increase in the limited number of H-1B spots that will be available in Fiscal Year 2016 (FY 2016) nor likely implementation of other possible measures to improve the immigration system by April 1, 2015, are you ready for H-1B Cap Season?  If you are a cap-subject employer, it’s not too early to think about your hiring needs if you are considering petitioning for H-1B status for a foreign hire.

You may recall that in FY 2015, employers filed approximately double the number of cap-subject H-1B petitions as there were numbers available.  (See prior post on this topic at http://immigrationview.foxrothschild.com/h-1b-temporary-workers/fy-2015-h-1b-cap-what-are-the-odds/.) That left many employers in a difficult situation with regard to their staffing needs.  Roughly half of the H-1B petitioning employers didn’t receive H-1B approvals for their employees (e.g., F-1 OPT workers) or prospective employees.

If the US Citizenship and Immigration Service (USCIS) holds an H-1B cap “lottery” again in April 2015—which will likely be the case–making your hiring decisions early won’t increase your chances of “winning” the FY 2016 H-1B lottery, but it could make your life a little less stressful.  Having a plan in place should allow you a comfortable amount of time to contact us with the details of your case for assessment, gather and provide us with the necessary documents and information, etc.

Sometimes it may not be possible to make a hiring decision this far in advance.  And, while most cases can be prepared quickly, it’s best to allow for the unexpected such as finding out that the worker doesn’t have a document and must obtain it from abroad, or perhaps a glitch with the electronic filing system used to process Labor Condition Applications (LCAs), which are needed as part of the H-1B petition packages.  While LCAs are generally processed without incident within 7 days from the date of filing, it’s best not to wait until the last minute…just in case.

For more tips on how to prepare for H-1B Cap Season, please see my prior ImmigrationView post on this topic at http://immigrationview.foxrothschild.com/h-1b-temporary-workers/its-beginning-to-look-a-lot-likeh-1b-cap-season/.

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

Form I-9 can be used to show false claim to United States citizenship in Immigration Proceedings

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

On October 30, 2014 the BIA (Board of Immigration Appeals) issued a decision determining that a Form I-9 is admissible as evidence in immigration court proceedings to support charges of removability against a noncitizen and to determine his or her eligibility for relief of removal.  In Matter of Kibichii BETT, (26 I&N Dec. 437 (BIA 2014)), the BIA determined that the I-9 form was admissible in removal proceedings, upholding the Department of Homeland Security’s (DHS’) prior decision that the respondent was not eligible to adjust his status because he was inadmissible as an alien who falsely represented himself be a United States citizen.  This case establishes that misrepresentations on a Form I-9 used to gain employment can later prevent a noncitizen from gaining permanent residency.

Form I-9 requires employers to verify that every new employee hired after November 6, 1986 provide valid documentation to verify identity and work authorization in the U.S. in order to initiate employment.  Form I-9 asks the employee attest to their status and certifies that the information included is true, if the employee enters false data, that individual could be subject to removal proceedings and debarment from the U.S. for up to ten years. 

The respondent in the Matter of BETT failed to show that Form I-9 is not admissible as evidence in removal proceedings.  The evidence in this case consisted of I-9 forms, which were completed and submitted by the respondent to two separate employers several weeks apart, both containing similar handwriting and signatures and both bearing a checkmark by the box indicating that the applicant is a US Citizen.  Although the respondent acknowledged that he applied for a job at each company and that it looked like his signature appeared on both forms, he claimed that he could not recall checking the box on the forms signifying that he was a United States citizen. The Immigration Judge found that the direct and circumstantial evidence of record established that the respondent did, in fact, fill out the forms and that he selectively withheld this information at the hearing. The BIA determined that, in reaching his conclusion, the Immigration Judge properly considered the totality of the circumstances and relied on direct and circumstantial evidence, including the two I-9 forms with the respondent’s signature, the respondent’s equivocal testimony, and his demeanor. You can read the decision 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.

U.S. and China to Extend Visas for Short-term Business Travelers, Tourists, and Students

Posted in General Immigration News and Updates

Effective November 12, 2014, the United States and China have agreed that both countries will extend the terms of multiple entry visas issued to citizens of both countries.  Chinese applicants who qualify for tourist, business and student and exchange visas by 10 (ten) years from one year.

The U.S. already has similar agreements with nationals of other ally countries such as Europe and South America with close ties to the U.S. The result of such an arrangement with China would allow for economic growth in both countries and provide a major stepping stone to promote economic continuity among each market.

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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.

Immigration Executive Action (IAEA) and the H-1B Cap: Any Effect?

Posted in General Immigration News and Updates, H-1B Temporary Workers, Intrcompany Transferees (L-1 and Permanent Residence), Non-Immigrant Visas (other than Es, Ls and H-1B), Uncategorized

The President has taken Executive Action in an attempt to fix our country’s broken immigration system…or at least to bandage it.

What will H-1B season be like now?  Will the Immigration Accountability Executive Action plan (IAEA) have any effect to alleviate the concerns faced by cap-subject employers petitioning for H-1B workers? 

While the details regarding implementation of the IAEA remain unclear, parts of the IAEA may indirectly relieve some of the pressure that comes with H-1B cap season.  That is because the IAEA opens up the possibility for employment authorization through a few other channels. 

In addition, don’t forget that there are and have long been many other working statuses for highly skilled workers other than the H-1B.  For a summary of possible alternatives to H-1B status, please see the article that Robert Whitehill and I co-authored, Visa Options: Hiring in the Wake of Executive Action, which was recently published in the Legal Intelligencer.  (Note that a subscription to the Legal Intelligencer may be required for full access to the article.). 

I wish you a Happy Thanksgiving.

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Catherine Wadhwani is a partner in Fox Rothschild’s Immigration Practice Group.  She may be reached at cwadhwani@foxrothschild.com.

President Obama Announced Executive Action on Immigration Reform

Posted in General Immigration News and Updates

On November 20, 2014, President Obama announced his long-awaited Executive Action on immigration reform. Even though President Obama continues “to believe that the best way to solve this problem is by working together to pass that kind of common-sense law”, he would have to use his legal authority to help to “make the immigration system more fair and more just” until Congress takes any further actions.  There are three major goals President Obama aims to achieve through the Executive Action.

“1. We will build on our progress at the border with additional resources for our law enforcement personnel.

2. We will make it easier and faster for high-skilled immigrants, graduates, and entrepreneurs to stay and contribute to our economy, as so many business leaders have proposed.

3. We will take steps to deal responsibly with the millions of undocumented immigrants who already live in our country.”

The following are some key components summarized by American Immigration Lawyers Association based on a briefing by the White House on November 20, 2014:

  • Enforcement Priorities. Many of the existing memos on enforcement priorities and prosecutorial discretion will be replaced by a new memo that will name three enforcement priorities, which will be operational immediately:
    1. Suspected terrorists, convicted felons (including aggravated felonies), convicted gang members, and people apprehended on the border;
    2. People convicted of serious or multiple misdemeanors, and very recent entrants (i.e., those who entered after 1/1/14);
    3. Those who, after 1/1/14, failed to leave under a removal order or returned after removal.

The memo will contain “strong language” on using prosecutorial discretion appropriately. While most other memos on the subject will be rescinded, the victims of crime memo and the USCIS memo on issuance of NTAs will stand.

  • Border Security. The Secretary of DHS will announce a South Border “command and control” campaign to coordinate and better use resources at the border.
  • State and Local. Secure Communities will be discontinued and replaced by a Priority Enforcement Program (PEP). What it means that Secure Communities will be discontinued is unclear. Unclear if they will stop fingerprinting people and unplug the technology and interoperability of the federal and local databases. Detainers will be discontinued for all except national security cases. Instead of detainers, there will be a request for notification when a law enforcement entity is about to release a convicted criminal.
  • Two deferred action initiatives that combined are estimated to benefit 4.4 million:

a. Deferred Action for Parental Accountability (DAPA). Parents of U.S. citizens and lawful permanent residents (of any age) who have been continuously present since 1/1/10, and who pass background checks and pay taxes, will be eligible to apply for deferred action, which will be granted for a 3-year period. The plan is to stand this up within 180 days (for applications to be accepted). Note that parents of DACA recipients are not eligible.

b. Expansion of DACA. DACA will be revised to get rid of the age cap, and to change the date that continuous presence must have started to 1/1/10. It also will be granted for 3 years (including those with pending renewal applications). Ready in 90 days.

  • Pending Proceedings. There will be a review of cases currently under proceedings to see who is prima facie eligible for the relief stated in this program, and those cases will be closed.
  • Immigration Court Reforms. There will be a package of immigration court reforms that will include qualification of accredited representatives and ineffective assistance of counsel issues.
  • U/T Visas. Three more types of offenses will be added to the list of offenses for which Department of Labor (DOL) can certify for U status. No specifics were available regarding which offenses will be added. T visa eligibility may also come into play with respect to DOL.
  • Worksite Enforcement. DOL will coordinate with other agencies regarding worksite enforcement activities.
  • Foreign Entrepreneurs. Certain investors will be able to be paroled into the U.S., or be granted parole in place if already in the United States, for job creation (no further details at this time). This will be done by regulation. Also, entrepreneurs, researchers, inventors, and founders will be eligible for national interest waivers. This will be implemented through policy guidance.
  • Timing of Filing for Adjustment of Status. The ability of individuals with an approved employment-based immigrant petition who are caught in the quota backlogs to file for adjustment of status will be advanced to permit them to obtain the benefits of a pending adjustment. This is expected to impact about 410,000 people. This will be done by regulation.
  • AC21. “Same or similar” will be clarified.
  • L-1B. The guidance will be released.
  • H-4 EADs. The regulation will be finalized, probably in December or January.
  • OPT. The length of time in OPT for STEM graduates will be expanded and the relationship between the student and the school will be strengthened for this period. Other changes, such as allowing STEM OPT post-master’s degree where only the first degree is in a STEM field is under consideration. This will be done by regulation.
  • PERM. A full rulemaking will be undertaken to modernize the PERM program.
  • I-601a Waivers. The provisional waiver will be expanded to include spouses and children of LPRs. The definition of extreme hardship will be expanded and clarified.
  • Advance Parole. There will be a new advance parole memo that will make clear that CBP should honor the advance paroles issued by USCIS.
  • Parole in Place. PIP will be expanded to include families of individuals trying to enlist in the armed forces.
  • Visa Modernization. There will be a Presidential Memorandum directing the agencies to look at modernizing the visa system, with a view to making optimal use of the numbers of visa available under law. Issues such as whether derivatives should be counted and whether past unused visa numbers can be recaptured will be included in this effort.
  • Integration. A second Presidential Memorandum will set up a Task Force on New Americans.

Please note many items mentioned above are still unclear at this stage.  Many will require regulations or memos to be implemented and so the timing is presently unpredictable.

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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.

President Obama primes the nation to hear about immigration via Facebook

Posted in General Immigration News and Updates

 

It’s not every day that a president makes a major announcement on social media.  On Wednesday (Nov. 19), President Barack Obama posted a video on Facebook to announce that he plans to make a primetime address to the nation to lay out the steps he will take with regard to our immigration system tonight (Thursday, Nov. 20) and then will travel to Las Vegas on the heels of that announcement to rally support for his initiative on Friday.

“Everybody agrees that our immigration system is broken. Unfortunately Washington has allowed the problem to fester for too long,” Obama said. “So what’ I’m going to be laying out is the things I can do with my lawful authority as president to make the system work better even as I continue to work with Congress and encourage them to get a bipartisan, comprehensive bill that can solve the entire problem.”

When asked about the President’s decision to use Facebook for the announcement, White House spokesman Josh Earnest said, “This was an opportunity for us to reach hundreds of thousands, if not millions of people.”

In the video, also posted on the White House website, Obama said he will give a prime time immigration address Thursday, and follow it up with an event Friday in Las Vegas.

Earnest reported: “In under an hour the video reached more than 1.2 million users on Facebook — 227,000 people had viewed it, another 12,000 people had shared it. So this is a pretty effective way of the president communicating with the American public.”

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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.

Alka Bahal’s Recent Appearance on “Leiberman Live” SiriuxXM Radio Show

Posted in General Immigration News and Updates

Please see below for a clip of my November 18th appearance on “Leiberman Live” SiriuxXM radio show with host Jon Leiberman.  In the clip, I discuss current issues surrounding Immigration Reform and President Obama’s imminent announcement regarding his executive action on immigration.

Leiberman Live feat. Alka Bahal – Immigration Reform

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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.