The Supreme Court announced Tuesday that it will decide whether President Obama has the authority to declare that millions of immigrants can remain in the U.S. illegally. The Court will probably hear arguments in the case in April and likely rule in June. As we have reported previously, the lawsuit stems from provisions in the President’s November 2014 executive order expanding the Deferred Action for Childhood Arrivals (DACA) program and creating the Deferred Action for Parental Accountability (DAPA) program. These programs would protect from deportation millions of undocumented immigrants currently living in the U.S. A lawsuit brought by 25 states has kept the executive order from going into effect. A District Court in Texas and the U.S. Court of Appeals for the Fifth Circuit have both ruled against the Administration.
“Happy New Year! Have an ICE raid! By now, everyone has heard that the Obama administration plans to celebrate the new year by rounding up families and removing them to Central America. The administration hopes that the images of Central American families coming off of planes in San Salvador and Tegucigalpa will dissuade thousands of Central Americans from fleeing the violence and persecution that threaten their lives on a daily basis. This dreadful idea puts the final nail in the coffin of the administration’s mantra that it seeks to deport “felons not families” and focuses on removing the worst of the worst. The baldfaced nature of this lie has been apparent for years, but it is unlikely to endure as the administration rounds up, using the vehicle of an old style ICE raid, women and children for return to the violence of their home countries. All that will be left in the empty space created by the departure of the lie will be the fact that the Obama administration has been a nightmare for immigrants while projecting a happy face to credulous partisans.
Reports have ICE raids on recent immigrants beginning as soon as January 2016. The reports have indicated that the administration will be seeking to enforce removal orders entered against immigrants after January 1, 2014.While there have always been removals of anyone with a removal order who is encountered by ICE, there is no indication that ICE will be seeking out those with removal orders entered prior to January 1, 2014. Should such a person come to the attention of ICE, ICE will seek to enforce the order. But, according to the reports, ICE will not be seeking to conduct raids to find such individuals, unless they have criminal convictions or present national security threats. Again, according to media reports, an ICE raid will target those with a final order of removal entered by an immigration judge after January 1, 2014. If a case is on direct appeal to the Board of Immigration Appeals from an immigration judge’s order of removal, that order is not yet final and can not be enforced. [Read more…]
For those waiting to file for an I-495 adjustment of status and get a green card, newly revised procedures will provide much needed information for determining visa availability. The new rules implement the White House’s initiatives to modernize and streamline the immigration process.
The I-495 adjustment of status process allows eligible individuals already in the United States to get permanent resident status without having to return to their home country to complete visa processing. However, applicants waiting to file for employment-based or family-sponsored preference adjustment of status must wait until a visa is available in their category. Applicants must regularly check Visa Availability & Priority Dates to see if a visa is available. Under the old procedures, there was a great deal of uncertainty in estimating when a visa might become available. The revised method is a significant improvement.
If you are immigrating to the United States and will be admitted as a lawful permanent resident, you must pay the $165 USCIS Immigrant Fee. You will need to use the USCIS Electronic Immigration System to pay this fee. We strongly encourage you to pay this fee after you receive your immigrant visa packet from the U.S. Embassy or consulate abroad (including Canada and Mexico) and before you depart for the United States. Paying before you depart for the United States will ensure that you receive your Permanent Resident Card (commonly referred to as a Green Card) without delay.
What is the USCIS Immigrant Fee?
The USCIS Immigrant Fee is $165. USCIS uses this fee to process your immigrant visa packet once you arrive in the United States. The fee also covers the cost for USCIS to produce your Green Card. Please Note: You have to pay separate fees to the Department of State (DOS) and USCIS. You must pay your immigrant visa application fees to DOS and your USCIS Immigrant Fee ($165) to USCIS.
How do I pay the USCIS Immigrant Fee?
1. Attend your appointment at a U.S. Embassy or consulate
• Receive a handout that explains how to pay the USCIS Immigrant Fee. Please keep this document with your records because it contains your personal immigration information.
• At the top of the handout, you will find your:
° Alien Registration Number (the letter “A” followed by 8 or 9 numbers. For example: “A0123456789”); and
° DOS Case ID (3 letters followed by 9 or 10 numbers. For example: “ABC1234567890”) Please note: For Diversity Visa (DV) immigrants, the DOS Case ID will have 4 numbers followed by 2 letters followed by 5 numbers. For example: “1234XY12345.”
• Receive your sealed immigrant visa packet.
2. Pay the USCIS Immigrant Fee
• Go to www.uscis.gov/uscis-elis to review USCIS online filing resources.
• Select “Log in.”
• Next, select “USCIS Immigrant Fee.”
• Enter your Alien Registration Number and DOS Case ID, found at the top of your USCIS Immigrant Fee handout. If you are paying for additional family members, you can add their Alien Registration Numbers and DOS Case IDs.
• Provide a valid credit card (Visa, Master Card, American Express, or Discover Card), debit card, or U.S. bank checking account information (account number and bank routing number).
If you are unable to pay the USCIS Immigrant Fee yourself, you may choose someone to pay the fee for you. For example: a family member, friend, employer, attorney, or accredited representative. [Read more…]
Secretary of Homeland Security Jeh Johnson announced his decision to designate Yemen for Temporary Protected Status (TPS) for 18 months due to the ongoing armed conflict within the country. Yemen is experiencing widespread conflict and a resulting severe humanitarian emergency, and requiring Yemeni nationals in the United States to return to Yemen would pose a serious threat to their personal safety. As a result of Yemen’s designation for TPS, eligible nationals of Yemen residing in the United States may apply for TPS with U.S. Citizenship and Immigration Services (USCIS). The Federal Register notice posted today provides details and procedures for applying for TPS. [Read more…]
PERM was supposed to help employers speed up permanent residency applications for foreign workers. It allows employers to submit an Application for Permanent Employment Certification directly with the Department of Labor (DOL) to reduce labor certification times. Although PERM improved approval times in some cases, it also created backlogs and resulted in many denials for de minimis errors, all of which place unfair burdens on employers.
Seeking labor certification from the DOL is the first step for an employer looking to sponsor a qualified foreign worker for a green card. Before the Department of Homeland Security (DHS) and the Department of State (DOS) may issue visas and admit individuals to work permanently in the U.S., the DOL must certify that “(a) there are not sufficient U.S. workers who are able, willing, qualified, and available at the time of application in the place where the individual is to perform the work, and that (b) the employment of the individual will not adversely affect the wages and working conditions of similarly employed U.S. workers.”
Starting in March 2005, employers seeking to hire foreign workers could file ETA Form 9089 online or by mail directly with the DOL. Assuming there was no DOL audit, approval was supposed to occur within 60 days, a big improvement for employers and employees.
Unfortunately, that hasn’t been the case. One of the main problems with the system is that electronic processing is very unforgiving. Any errors, even innocent typos, can’t be corrected and can be grounds for denial. The only option in such cases is to withdraw and refile a new form, but that only works if the advertising, recruiting and prevailing wage determination are still valid and within the prescribed time limits. The PERM application must be filed within 180 days of the beginning of the advertising and recruitment process. If the application is denied after the 180 day period, the employer has to undergo expensive advertising and recruiting again before refiling.
Too often we’ve seen small errors, like incorrect dates and typos, result in denials and the employer having to start all over again because they fell outside the 180 day period. In addition, the PERM form itself has created difficulties for employers. Confusing and unclear instructions have been problematic for the last 10 years. Some instructions for filling out the form are on the form itself while others are published separately on the DOL website. For example, we’ve had trouble determining where to include specific information about the worker’s licenses and understanding the requirements and procedures for advertising and recruiting online. DOL’s solution was to issue FAQs, which are an additional layer of material for the employer to decipher.
As a result of these issues with the PERM process and other criticisms, the DOL announced it will be initiating a review of the PERM program and relevant regulations. As part of this review, DOL is seeking input on the following:
- Options for identifying labor force occupational shortages and surpluses and methods for aligning domestic worker recruitment requirements with demonstrated shortages and surpluses;
- Methods and practices designed to modernize U.S. worker recruitment requirements;
- Processes to clarify employer obligations to insure PERM positions are fully open to U.S. workers;
- Ranges of case processing timeframes and possibilities for premium processing; and
- Application submission and review process and feasibility for efficiently addressing nonmaterial errors.
DOL stated its intention to modernize the program to make it more responsive to changes in the national workforce and enhance the integrity of the labor certification process. (Click here to read the DOL release.) We hope that’s the case. As it stands now, approval times for unaudited forms are at around 7 months. For audited applications, it takes over 15 months, which is well beyond the 180 day period.
In the meantime, the best course of action is to have experienced legal staff handle these applications to ensure there are no errors. Starting over to fix a mistake is an expensive and time-consuming remedy that no employer wants to undertake.
Please contact us for more information or help with your PERM application.
A California plan to expand health insurance to undocumented immigrants is creating a political stir. Already approved by the state Senate, the proposed legislation would allow los indocumentados (as they are known in Spanish) to buy private insurance on the state’s insurance exchange. However, even if the Assembly and Governor pass the law, it will still be subject to federal review and couldn’t be implemented at the earliest until 2017.
The 2010 federal health care law bans undocumented immigrants from buying into Obamacare plans even if they can afford to do so with their own money and don’t need subsidies. The California law wants to change that. The legislators supporting the bill and immigration advocates say that it makes no sense to bar those who can afford to buy health insurance from doing so just because they are undocumented. Under California law, undocumented immigrants can already buy private health plans not sold through the Obama exchanges.
There is more activity this week in the litigation over President Obama’s executive action deferring deportation for over 5 million undocumented immigrants. Oral arguments in Texas v. US are scheduled to take place before the U.S. Court of Appeals for the 5th Circuit in New Orleans on July 10. While the appeal has been pending, the administration been unable to implement the new Deferred Action for Parental Accountability (DAPA) program and expansion of the existing Deferred Action for Childhood Arrivals (DACA) program that was announced on November 20, 2014.
The lawsuit was brought by 26 states seeking to stop implementation. On February 16, 2015, the federal district court in Texas issued a temporary injunction blocking the United States Citizenship and Immigration Services (USCIS) from accepting applications for the 2 programs while the case was still pending in the courts. The administration asked the 5th Circuit to issue an emergency stay of the injunction allowing the USCIS to begin taking applications for the programs. On May 26th, a 3 judge panel of the 5th Circuit denied the emergency stay stating that the government was unlikely to succeed on the merits of the case. The administration decided not to appeal the denial of the emergency stay. Instead on July 10th, it will again seek to have the injunction lifted.
Immigration law has always been complex, but it is becoming even more complicated as Congress and executive agencies add new layers of statutes and regulations. At Pollack, Pollack, Isaac & DeCicco, LLP, our New York immigration lawyers stay abreast of every development in immigration law, and we have the knowledge and experience to handle the most difficult immigration cases. We help families stay together in the face of deportation, and we help workers with time-limited visas stay in the country and eventually become U.S. citizens.