Interview with AILA's New Executive Director

The American Immigration Lawyers Association (AILA) released a short interview with the new AILA Executive Director, Benjamin Johnson. You can see the full interview here.

Johnson spent the interview discussing his background in immigration law and what he hopes to achieve in his tenure as AILA Executive Director.

I found the beginning of the interview where Johnson explains his path to becoming an immigration lawyer particularly interesting. After graduating from law school in 1991,[1] Johnson began his law career as a criminal defense and civil litigation lawyer in California. By Johnson's account, he was inspired to take an interest in immigration law when he took note of “angry rhetoric” against immigrants and immigration in general. He stated, “I was struck by the idea that we would really begin scapegoating an entire population of people.” Accordingly, Johnson moved to Arizona in 1994 and started the Immigration Outreach Center. From those beginnings, Johnson would eventually join AILA and take a variety of leadership positions, ultimately culminating now in AILA Executive Director.

This portion of the interview is interesting in that it shows how lawyers can take an interest in immigration law for a variety of reasons. In Johnson's case, it was inflammatory rhetoric about immigration that led him down the path of being an immigration attorney. Johnson's career and statements shows a passion for contributing to the AILA community and working to help immigrants improve their lives that is befitting of an AILA Executive Director. Finally, although most will agree with some of AILA's positions and disagree with others, the immigration policy debate stands to benefit from having passionate voices such as the new AILA Executive Director's contributing to the discussion.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. AILA Doc. No. 15102930

Lawyer website: http://myattorneyusa.com

NVC Sending Letters to Correct Erroneous Form I-130 Denials

On January 26, 2016, the American Immigration Lawyers Association (AILA) reported that the Department of State's (DOS's) National Visa Center (NVC) has begun sending letters to immigrant visa applicants who were erroneously sent termination letters under section 203(g) of the Immigration and Nationality Act (INA) notifying them that their cases have not been terminated. The issue stemmed from immigrant visa applicants who had a Form I-601A, Application for Provisional Unlawful Presence Waiver pending with United States Citizenship and Immigration Services (USCIS), but received a denial based on having made no contact with the NVC within one year.

In addition to explaining that the case is not terminated, the letters will inform the applicants that they will have one year after the approval of the Form I-601A to contact the NVC and continue processing the case. Because the cases were never terminated, no new fees will be required.

If an applicant or his or her attorney believes that a case was erroneously terminated, but receive no letter within thirty days, the attorney should follow up with the NVC.

EXPLANATION OF THE ISSUE

The relevant excerpt of section 203(g) reads as follows:

The Secretary of State shall terminate the registration of any alien who fails to apply for an immigrant visa within one year following notification to the alien of the availability of such visa, but the Secretary shall reinstate the registration of any such alien who establishes within 2 years following the date of notification of the availability of such visa that such failure to apply was due to circumstances beyond the alien's control.

The erroneous 203(g) denials stemmed from immediate relative immigrant visa applicants who had filed a Form I-601A. The letters were generated in cases where the NVC had received no contact from the immigrant visa applicant or his or her attorney within one year, but where the immigrant visa applicant had a Form I-601A waiver pending with USCIS. The NVC confirmed to AILA on September 9, 2015, that it considers the USCIS processing of the Form I-601A to be a valid form of “contact” that should prevent a section 203(g) termination letter. Accordingly, the NVC stated that the one-year clock should reset when the provisional unlawful presence waiver is approved or denied.

Because different administrative agencies often handle different components of the same overall immigration process, complications such as this can arise. In this case, the systems at NVC, which is part of DOS, did not account for the Form I-601A, which was being processed by USCIS under the umbrella of the Department of Homeland Security (DHS). Fortunately, the NVC appears to be moving to resolve the issue for those who were erroneously issued termination letters under section 203(g).

To learn more about provisional unlawful presence waivers, please read our full article [link].

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

RESOURCES AND MATERIALS:

“Practice Alert: NVC Letters Indicating Possible Termination of Immigrant Visa Applications,” (Jan. 26, 2016), available at AILA InfoNet at Doc. No. 15073009

Lawyer website: http://myattorneyusa.com

The Supreme Court Grants Review of DAPA Case

THE SUPREME COURT GRANTS CERT

In the immigration blog, I discussed in detail the Fifth Circuit's decision to uphold a District Court injunction against the DAPA program [see article] and the Government's petition for a writ of certiorari (review) with the United States Supreme Court [see article]. On January 19, 2015, the Supreme Court granted the petition for review and will hear the case (United States v. Texas, Case No. 15-674) [see PDF]. The case is likely slated for oral arguments in April, and a decision can be expected in June. This means that the Supreme Court will likely decide the issue well before President Obama's term in office expires on January 20, 2017. Because I have already discussed the Fifth Circuit decision and the Government's petition for review, I will refer you to those posts to read about the facts of the case and my broader thoughts on them. For this post, I will focus on what we can glean from the Supreme Court's decision to grant review.

THE SIGNIFICANCE OF GRANTING REVIEW NOW

The Obama Administration sought to have the case reviewed expeditiously for obvious reasons: President Obama's term expires on January 20, 2017. Had the Supreme Court not taken the case in April, even a favorable outcome would have likely (although not definitely) been moot in the event that one of the Republican candidates wins the election next November. Because a decision is expected in June, the Department of Homeland Security (DHS) would likely be able to begin implementing the DAPA program before President Obama leaves office in the event of a favorable decision from the Supreme Court.

SHOULD WE DRAW ANY CONCLUSIONS ABOUT HOW THE CASE WILL BE DECIDED?

We should not draw any concrete conclusions in this regard. Allow me to explain why.

In order to grant a petition for review, four Justices must vote to hear the case. However, we have no way of knowing which Justices wanted to review the case or for what reasons those Justices wanted to review the case. Therefore, it is impossible to draw any conclusions regarding the ultimate outcome of the case from the Supreme Court's decision to grant review aside from the fact that at least four Justices voted to do so.

Proponents of the Government's position may draw optimism from the fact that the case does not arise from a disagreement between circuits, but from the Fifth Circuit alone upholding the District Court's injunction. However, as I noted above, the Justices may have had any number of reasons or motivations for voting to grant review in this case.

HOWEVER… THE SUPREME COURT ADDS AN ISSUE

That the Supreme Court granted review when it did was not unexpected. Furthermore, the Supreme Court will review the issues that were decided by the Fifth Circuit. That is:

1. Whether Texas has standing to bring the suit;
2. Whether the implementation of DAPA violates the Administrative Procedures Act;
3. Whether DAPA is within the President's authority under the Immigration and Nationality Act.

However, in an extremely unusual move, the Supreme Court directed both Texas and the Government to brief and argue an additional question: “Whether the Guidance violates the Take Care Clause of the Constitution, Art. II, [sec.] 3.”

Texas had asked the District Court to consider this question, but neither the District Court nor the Fifth Circuit decided it. I discussed it very briefly in footnote 5 of my article on the Fifth Circuit decision [see the footnote]. As I stated then, I do not think that reaching the “Take Care Clause” issue is necessary for correctly determining that the President does not have the authority to implement DAPA. However, this is an extremely interesting development for multiple reasons:

1. The Take Care Clause has been very lightly litigated, and arguably has never been addressed by the Supreme Court as directly as it could potentially be in this case.
2. A decision regarding the Take Care Clause could have very substantial implications regarding the power of the Executive Branch not only with regard to executing immigration laws, but in the execution of laws in general.

It is rare to see the Supreme Court add an issue that the lower courts did not decide, and that in and of itself makes it all the more interesting that the Court has taken an interest in the Take Care Clause here. However, we have no way of knowing which Justices were interested in adding the issue, much less the reasons for which they were interested in adding it. It is entirely possible that even though the parties will brief and argue the question only for the Court to not reach it in its decision.

Because I did not address it in detail in the article about the Fifth Circuit decision, I will post a blog in the near future with my thoughts on the Take Care Clause in this case.

WHAT HAPPENS NEXT?

The Supreme Court will schedule oral arguments for the case that will likely take place in April. At oral arguments, attorneys for the Government and for the states will argue their cases before the nine Justices of the Supreme Court. I will post a blog with my thoughts on the oral arguments after they happen. Finally, we should expect the Justices to issue their important decision near the end of the current Supreme Court term in June.

CONCLUSION

For reasons that I argued in my previous two posts on the issue, DAPA is not only bad law, but also bad policy. Now that the Supreme Court has taken the case, I hope that the Court rules that the President does not have the authority to implement DAPA under the INA. A decision in favor of the states on that point would be far more valuable than a decision that merely rules against the Government on procedural grounds. For the time being, I will reserve further thoughts on the Take Care Clause question for a subsequent blog post.

Please check my blog regularly to read my thoughts on the latest immigration (and sometimes political) news.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

Donald Trump and Amnesty

INTRODUCTION: DONALD TRUMP'S IMMIGRATION PLAN — PART ONE

Donald Trump's rise to the top of the Republican polls — where he sits with less than a week remaining before the first votes are cast — has been punctuated by his incoherent and inhumane immigration proposals. While I am loath to give Trump more attention than he already has, I will use my perspective as an immigration attorney and a Republican primary voter to analyze Trump's immigration platform. For this post, I will explain how Trump effectively supports immigration amnesty simultaneously with his proposal for mass deportation. Furthermore, I will look at how his views on how to handle people who are here illegally have shifted dramatically within the past five years. In the next post, I will analyze — as seriously as one can do so — the immigration “proposal” that is offered on Trump's campaign website.

MASS DEPORTATIONS AND… AMNESTY?

Back in November, I said the following about Trump's immigration policies in my Presidential Candidate Profile about him:

“I am not a fan of amnesty or policies that encourage illegal immigration, but I am no more a fan of ridiculous schemes that would indiscriminately tear families apart and make my entire party look like a refuge for bigots and wingnuts.”

I am no more of a fan of amnesty and mass deportation schemes now than I was in November. However, Trump may in fact manage to support the worst of all possible worlds. Here is an interesting passage from the mouth of Donald Trump himself in the November 11 Republican debate:

“[W]e're a country of laws. We either have a country or we don't have a country. We are a country of laws. Going to have to go out and they will come back but they are going to have to go out and hopefully they get back.” [1]

If we are to take this as Trump's position, he simultaneously supports mass deportation and amnesty. In essence, Trump is advocating for a massive roundup of people staying in the United States illegally, only to subsequently welcome these same people back into the country. Trump supports amnesty as well as mass deportation. Was this a one-time proposal? Not quite. Here is Trump in the September 16 Republican debate:

“We have a country of laws, they're going to go out, and they'll come back if they deserve to come back.”

On one hand, the indiscriminate mass deportation of 11 million people is as implausible as it is inhumane. On the other hand, instantly granting lawful status and a path to citizenship without first addressing the myriad flaws in our immigration system simply perpetuates the same problem that we have now. In general, politicians will get only one of these things wrong. Trump somehow manages to get both wrong. First he would launch an absurd and amoral effort to deport people en masse. But then he would let the majority back into the country with lawful status. I would hope that even the most devoted Trump supporter could at least concede that it seems odd to invest substantial resources into a mass deportation scheme if the next step is inviting most of the same people who were deported back into the country.

However, let us not be too confident that this would be Trump's position as President. Within weeks of President Obama winning reelection in 2012, Donald Trump had this to say about Mitt Romney's comparatively mild immigration proposals:

“[Romney] had a crazy policy of self-deportation which was maniacal. It sounded as bad as it was, and he lost all of the Latino vote…” [2]

Unless we are to believe that Trump believed Romney's policy was “maniacal” because it relied on self-deportation rather than a massive roundup by immigration authorities, he seems to have changed quite a bit in just over three years. Trump's position on immigration has changed rapidly even by the standards of flexible politicians.

I do not want to be unfair and go back to very ancient history, but let us go back just one more year to 2011 where Trump answered a question from Bill O'Reilly about what to do with the people who are here illegally:

“[I]t's hard to generalize, but you're going to have to look at the individual people see how they've done … and then make a decision.” [3]

To recap, in just over four years, Donald Trump has apparently gone from believing that deportations should be decided on a case-by-case basis and that Romney's immigration proposals were “maniacal” to now supporting mass deportation combined with amnesty for the people who are deported.

CONCLUSION: TRUMP SUPPORTS AMNESTY… FOR NOW

I would forgive anyone who is more confused about Trump's positions now than before reading this post.

With regard to issues Trump has “evolved” on in general, he made an interesting comparison:

“What I say to people is this, Ronald Reagan; he was a somewhat liberal Democrat and over the years he evolved and became a fairly conservative — not overly — but fairly conservative Republican. Now, he became a great president also.” [4]

I agree with Trump… that Ronald Reagan was a great President. I will have to dissent from the rest of the quote insofar as he thinks it helps his cause. It is true that until 1962, Reagan was a Democrat. However, by the time voters chose him as President, Reagan had been a Republican for 18 years. Between his two terms as Governor of California and his 1976 Presidential campaign, Reagan established a clear and consistent political philosophy. To be clear, in the 1980 Republican Primaries, no one was unsure about where Ronald Reagan stood.

Trump, who is not even a conservative right now, is asking people to believe that his so-called evolution to his current terrible positions is akin to the evolution of one the political evolution of one of our greatest Presidents. Reagan was a reasonable man and a patriot who not only evolved, but put his beliefs in action for the betterment of his country. Trump is a narcissistic celebrity whose stated views only become stranger and more outrageous the closer we get to the election. Furthermore, Trump is not only having to explain the vastly different positions he took on immigration and other issues 17 years ago, but also positions that he took during the last presidential election season.

If my fellow Republican Primary voters make the catastrophic mistake of nominating Trump and then subsequently help send him to the White House, I hope that it turns out his current immigration proposals are insincere. It is a minor accomplishment that one man could get so much so wrong. However, I hope that his supporters take a step back and actually think about what he is offering. When placed even under light scrutiny, Trump's immigration proposals should be nearly as troubling to those inclined toward so-called “mass deportation” as they are to those of us looking for reasonable immigration reform. Giving Trump's positions light scrutiny is the least that voters who are selecting the standard-bearer for the Republican Party for President of the United States can do.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. “Transcript: Read the Full Text of the Fourth Republican Debate in Milwaukee,” Time, (Nov. 11, 2015), available at http://time.com/4107636/transcript-read-the-full-text-of-the-fourth-republican-debate-in-milwaukee/ (link)
2. Kessler, Ronald, “Donald Trump: Mean-Spirited GOP Won't Win Elections,” Newsmax, (Nov. 26, 2012), available at http://www.newsmax.com/Newsfront/Donald-Trump-Ronald-Kessler/2012/11/26/id/465363/ (link)
3. Wolf, Leon, “Watch Donald Trump Say There are Jobs Americans Won't Do, Make the Case for Partial Amnesty (VIDEO),” Red State, (Jan 19, 2016), available at http://www.redstate.com/2016/01/19/watch-donald-trump-say-jobs-americans-wont-make-case-partial-amnesty-video/ (link)
4. Elliott, Tom, “Trump on National Review: Ronald Reagan Wasn't 'Overly Conservative,' Either,” NRO The Corner, (Jan 24, 2016), available at http://www.nationalreview.com/corner/430233/trump-national-review-ronald-reagan-wasnt-overly-conservative-either (link)

Lawyer website: http://myattorneyusa.com

My Thoughts on Implementation of Changes to the Visa Waiver Program

DHS ANNOUNCES POLICIES FOR IMPLEMENTING CHANGES TO THE VISA WAIVER PROGRAM

On January 21, 2016, the Department of Homeland Security (DHS) announced policies to begin implementing the changes to the Visa Waiver Program that were signed into law in December of 2015 [link].[1] The law made general changes to the Visa Waiver Program [see my post on the changes]. The DHS policies focus mostly on the provisions of the law restricting the use of the VWP for:

• Nationals of Iran, Iraq, Sudan, or Syria
• Persons who have traveled to Iran, Iraq, Sudan, or Syria since March 11, 2011 (with limited exceptions for diplomatic or military travel under the official orders of a VWP country)

It is important to note that such individuals are not prohibited from obtaining authorization to enter the United States. Persons barred from using the Visa Waiver Program may still apply for visas.

The law contains a provision that gives the Secretary of Homeland Security discretion to waive the restrictions on nationals and people who have visited Iran, Iraq, Sudan, or Syria if the Secretary determines that such a waiver is in the law enforcement or national security interests of the United States. The DHS explains that such waivers will be granted on a “case-by-case basis.” However, the DHS listed five categories of travelers who may be eligible for waivers “as a general matter.”

• Individuals who traveled to Iran, Iraq, Sudan or Syria on behalf of international organizations, regional organizations, and sub-national governments on official duty;
• Individuals who traveled to Iran, Iraq, Sudan or Syria on behalf of a humanitarian NGO on official duty;
• Individuals who traveled to Iran, Iraq, Sudan or Syria as a journalist for reporting purposes;
• Individuals who traveled to Iran for legitimate business-related purposes following the conclusion of the Joint Comprehensive Plan of Action (July 14, 2015); and
• Individuals who have traveled to Iraq for legitimate business-related purposes.

It is important to note that people who fall into these categories are not guaranteed waivers. Rather, people who fall under these categories will be considered for waivers as a “general matter.” It is still possible that a person in one of these categories may be denied a discretionary waiver from DHS.

MY THOUGHTS

Back on December 27, 2015, I addressed the controversy over the provisions of the VWP reforms addressing nationals of Iran, Iraq, Sudan, and Syria [see my blog post].

In that post, I stated that the most of the provisions of the law were sound save for its effect on nationals of Iran, Iraq, Sudan, or Syria who have not visited any of those countries recently. The DHS did not address this situation on January 21, but stated: “we will continue to explore whether and how the waivers can be used for dual nationals of Iraq, Syria, Iran and Sudan.” Ultimately, this is an issue for Congress to address, and I hope it considers revisions in the near future.

However, DHS designated five categories that as a “general matter” may be eligible for discretionary waivers of the restrictions in the “law enforcement or national security interests of the United States.”

The category that has received the most attention-and deservedly so-is the inclusion of “[i]ndividuals who traveled to Iran for legitimate business-related purposes following the conclusion of the Joint Comprehensive Plan of Action (June 14, 2015) (better known as the Iran nuclear deal). Back in my December post, I addressed the possibility of such a waiver:

“That the Administration decided to enter into a non-binding agreement with Iran without the support of the majority of the Congress or the majority of the American people should not, and does not, give the Iranian government a say in our immigration policy.”

Sure enough, my views have not changed now that the administration has lived down to my expectations for it on this issue. To be clear, Iran is included in the Visa Waiver Program restrictions because of its government's sponsorship of terrorism. Congress created these restrictions based on the idea that nationals of Iran or people who have recently traveled to Iran cannot be properly vetted in the Visa Waiver Program process. Yet, DHS has determined that it has discretionary authority to offer waivers to people traveling to Iran for “legitimate business-related purposes” after an agreement that was never approved by Congress took effect. For my part, I would argue that the law enforcement and national security interests of the United States do not include creating exceptions from U.S. laws for people who are doing business in a country that is arguably the world's leading sponsor of terrorism, nor do they include giving Iran and the European Union a say in our domestic security policies.

The Hill quotes the author of the bill, Congresswoman Candice Miller of Michigan, released a joint-statement with the House Homeland Security Chairman Michael McCaul of Texas stating:

“President Obama is again putting his relationship with Iran's supreme leader over the security of Americans.” Furthermore, “He cannot rewrite the law to appease foreign governments — he should instead pay attention to his own.”[2]

I concur with Representatives Miller and McCaul. However, it is important to take into account that given the administration's track record in all things involving Iran and the Iran nuclear deal, its liberal interpretation of the Visa Waiver Program law was hardly unforeseeable. Although Congress clearly did not authorize waivers for people doing business in Iran after the nuclear deal, it is fair to ask why Congress did not think ahead and insert language to limit DHS's discretion to grant waivers more explicitly.

We cannot neglect the other for categories for which DHS will generally consider exceptions to the Visa Waiver Program bar. While waivers for certain people working for international organizations, humanitarian workers, and journalists seems more reasonable on the surface than do waivers to protect the Iran nuclear deal, it is worth noting that members of Congress wrote letters during the legislation process advocating for language to this effect to be included in the final legislation. Ultimately, language authorizing such waivers was not included. Thus, I find it difficult to believe that waivers may be considered as a “general matter” for people in these categories, regardless of the merits of DHS's position as a matter of policy.

Based on the law, DHS should weigh waivers on a case-by-case basis and only grant waivers where they legitimately serve a law enforcement or national security objective. If the administration does not like the law that it signed little more than a month ago, it should work with Congress to modify it. However, unless it is modified, DHS is obligated to enforce the law as it is written regardless of whether it comports with the policy preferences of the current administration.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. DHS, “United States Begins Implementation of Changes to the Visa Waiver Program,” (January 21, 2016), available at http://www.dhs.gov/news/2016/01/21/united-states-begins-implementation-changes-visa-waiver-program [link]
2. Hattem, Julian, “GOP explodes in anger as feds create Iran carve-out for visas,” The Hill, (Jan 21, 2016), available at http://thehill.com/policy/national-security/266623-gop-explodes-in-anger-as-feds-create-iran-carve-out-for-visas [link]

Lawyer website: http://myattorneyusa.com

New Rules for EB1B, E3, H1B1, and CW1

On January 15, 2016, the Department of Homeland Security (DHS) posted new final rules to the Federal Register (81 FR 2068, 1/15/16) [PDF version]. The new rules will go into effect on February 16, 2016. The new regulations will affect the following immigrant and nonimmigrant categories:

• EB1B Outstanding professors and Researchers
• H1B1 (Free Trade Agreement Workers in a specialty occupation from Chile and Singapore)
• E3 (specialty occupation professionals from Australia)
• CW1: CNMI-Only Transitional Worker (only applies in the Northern Mariana Islands)

In this post, we will examine all of the new rules in 81 FR 2068.

EB1B OUTSTANDING PROFESSORS AND RESEARCHERS: COMPARABLE EVIDENCE PERMITTED

A petitioner who is filing an immigrant visa petition on behalf of an alien in the EB1B preference category for outstanding professors and researchers must submit specific evidence that demonstrates that the beneficiary is an outstanding professor or researcher. These regulations are found in 8 C.F.R. 204.5(i)(3)(i). The new regulation, which will be found in 8 C.F.R. 204.5(i)(3)(ii), will allow for the submission of “comparable evidence” to the types of evidence that are listed in the regulations when applicable. This will mirror the comparable evidence provision found in the similar regulations for demonstrating eligibility for EB1A classification (extraordinary ability).

The DHS explains that the regulations were designed so that petitioners could submit comparable evidence such as the professor or researcher having “important patents or prestigious peer-reviewed funding grants” (81 FR 2070).

CLARIFY THAT E3 AND H1B1 NONIMMIGRANTS AUTHORIZED INCIDENT TO STATUS TO WORK FOR SPECIFIC EMPLOYER

By statute, an E3 or H1B1 nonimmigrant is authorized for employment incident to status for the employer that filed the petition on the nonimmigrant's behalf. This means that they are authorized to engage in employment for the specific employer without obtaining a separate employment authorization document.[1] However, the regulations did not reflect the statute in this regard, in part because the classifications were established in 2005 and 2003 respectively. Accordingly, the new rule will update 8 C.F.R. 274.a.12 to bring the regulations in line with the statutes authorizing the E3 and H1B1 categories.

The new regulations will be found in 8 C.F.R. 274a.12(b)(25) [E3] and 8 C.F.R. 274a.12(b)(9) [H1B1].

CONTINUED EMPLOYMENT AUTHORIZATION FOR E3, H1B1, AND CW1 CATEGORIES WITH TIMELY FILED EXTENSION OF STAY PENDING

A Nonimmigrant in the E3, H1B1, and CW1 or category will be authorized to continue working for the same employer for up to 240 days after the authorized period specified on his or her Form I-94 while a timely filed extension of stay application is pending (provided that the beneficiary is eligible for an extension). For E3 and H1B1 nonimmigrants, the extension of stay is filed on the Form I-129, Petition for a Nonimmigrant Worker. For CW1 nonimmigrants, the extension of stay request is filed on the Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker.

This brings the regulations for these categories in line with similar nonimmigrant work visa categories.

The new rule amends 8 C.F.R. 274.a.12(b)(20).

EXISTING REGULATIONS ON FILING PROCEDURES FOR EXTENSION OF STAY AND CHANGE OF STATUS REQUESTS NOW INCLUDE E3 AND H1B1 CATEGORIES

The DHS amended 8 C.F.R. 214.1(c)(1) [extension of stay] and 8 C.F.R. 248.3(a) [change of status] to include the E3 and H1B1 categories. This will mean that the E3 and H1B1 categories will now be formally included in the regulation that lists nonimmigrant categories eligible for extensions of stay and change of status.

CONCLUSION

The new regulations are entirely favorable for immigrants and nonimmigrants in the affected categories.

The comparable evidence provision for the EB1B preference category will expand the types of evidence that a petitioner may submit to demonstrate that the beneficiary qualifies as an outstanding professor or researcher. However, it is important to note that the evidence must be “comparable” to the types of documentation listed in the regulations.

The regulatory changes for the E3 and H1B1 categories make the regulatory provisions for them the same as for similar nonimmigrant visa categories. These changes were necessary because the relevant regulations had not been updated since the E3 and H1B1 categories were created. The most significant change for the E3 and H1B1 categories is the amended rule to allow E3 and H1B1 nonimmigrants to continue to work for the same employer with a timely filed extension of status request pending. It is worth noting that this provision also extends to CW1 nonimmigrant workers in the Northern Mariana Islands.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. INA § 101(a)(15)(E)(iii); INA § 101(a)(15)(H)(i)(b)(i); INA § 212(t); INA § 214(g)(8)(C)

RESOURCES AND MATERIALS:

“DHS Enhances Opportunities for H-1B1, E-3, CW-1 Nonimmigrants and Certain EB-1 Immigrants, Final Rule Posted,” USCIS, (January 15, 2016), available at https://www.uscis.gov/news/dhs-enhances-opportunities-h-1b1-e-3-cw-1-nonimmigrants-and-certain-eb-1-immigrants-final-rule-posted (link)

Lawyer website: http://myattorneyusa.com

Notes on November Q&A Between the National Benefits Center and AILA

On November 3, 2015, the USCIS National Benefits Center (NBC) conducted a question and answer session with the American Immigration Lawyers Association (AILA).[1] In this post, I will briefly look at some of the more interesting points from the Q&A.[2]

PROGRESS TOWARD A PAPERLESS ENVIRONMENT FOR I-90 APPLICATIONS

The NBC discussed its continuing effort to work “toward a paperless environment for I-90 applications.” While the I-90 application may still be submitted by paper to the appropriate USCIS Lockbox, all paper applications are entered into the USCIS ELIS online platform. Applicants who initially submit the I-90 application by paper are provided with the opportunity to create a USCIS ELIS online account.

PROVISIONAL (STATESIDE) UNLAWFUL PRESENCE WAIVERS (FORM I-601A)

• The current processing date for the Form I-601A is June 21, 2015. The date that was reflected earlier on the USCIS website was incorrect.
• USCIS is reviewing a proposed rule that would expand eligibility for Form I-601A provisional unlawful presence waivers. The 60-day public comment period for the proposed rule ended on September 21, 2015.
• The NBC updated its policy on reviewing the DOS Immigrant Visa Processing Fee after technical difficulties in the summer of 2015. The NBC will no longer deny Form I-601A cases where the applicant provides a DOS Immigrant Visa fee receipt showing that the fee was paid. However, cases where there is no evidence that the fee was paid or where the receipt merely indicates that the fee is “In process” will continue to be denied.

USCIS DRAFT POLICY MANUAL GUIDANCE ON EXTREME HARDSHIP

The notice and comment period for USCIS's Draft Policy Manual Guidance on Extreme Hardship[3] ended on November 23, 2015. At the time of the Q&A, USCIS stated that the Policy Manual Guidance on Extreme Hardship will be implemented following review of public comments on a date TBD.

ADJUSTMENT OF STATUS INTERVIEW WAIVERS

The NBC reaffirmed that the following categories of adjustment of status applicants are eligible to be considered for waivers of the adjustment of status interview requirement:

• Unmarried child of a U.S. citizen
• Parent of a U.S. citizen
• K1 and K2 visa holders
• Unmarried and under the age of 14 child of a Lawful Permanent Resident
• Natives/citizens of Cuba

However, the NBC noted that an interview may still be scheduled even if a waiver is ultimately granted. Furthermore, USCIS has discretion to require an adjustment of status interview for any adjustment of status application.

REQUESTS FOR EVIDENCE FOR THE FORM I-864, AFFIDAVIT OF SUPPORT

The NBC changed its I-864 checklist (used for the initial review of an I-864 application) so that if the income on a tax return submitted with the I-864 does not meet the federal poverty guideline for the household, the NBC will further check if there is evidence of current income submitted. If there evidence of current income was submitted, a USCIS officer will assess the sufficiency of the current income before sending a Request for Evidence (RFE).

1. “Q&A: USCIS National Benefits Center (NBC) and American Immigration Lawyers Association (AILA) Meeting,” (Nov 3, 2015)
2. Alexander J Segal "Notes on November Q&A Between the National Benefits Center and AILA" (Jan 21, 2016)
3. Memorandum, DHS Secretary Jeh Johnson, “Expansion of the Provisional Waiver Program,” (Nov. 20, 2014)

Parole In Place for Family Members of U.S. Military Service Members and Former U.S. Military Service Members

Introduction

The Attorney General has limited discretionary authority to grant parole to an alien who is in the United States without an immigration status.  This exercise of parole is called “parole in place.”  A United States Citizenship and Immigration Services (USCIS) Memorandum (“the Memo”)[1] released on November 15, 2015, formalized a process for granting parole in place to family members of certain active duty military service members and former active duty service members.  Parole in place waives the entry without inspection ground of inadmissibility and allows the alien to begin the adjustment of status process.  This article will provide a brief overview of the parole in place procedures set forth in the Memo.

Statutory Background

The Attorney General has limited discretionary authority to grant both parole to an alien abroad and parole in place to an alien in the United States.  Section 212(d)(5)(A) of the Immigration and Nationality Act (INA) allows for the Attorney General, in his or her discretion, to grant parole for either urgent humanitarian reasons or if he or she determines that there is a significant public benefit supporting the grant of parole.

Parole in Place for Family Members of Military Service Members

The Memo applies to the parent(s), spouse, and child(ren) of:

• Active duty members of the U.S. Armed Forces
• Former members of the U.S. Armed Forces
• Active duty members of the Selected Reserve of the Ready Reserve
• Former members of the Selected Reserve of the Ready Reserve.

Prior to the issuance of the Memo, parole in place was often granted as a matter of discretion for such individuals as serving a significant public benefit.  The Memo explains that favorable discretion should ordinarily be exercised for qualifying family members of persons in the above four categories. However, serious adverse factors may weigh against granting parole in place.

Benefits of Parole in Place

The Memo instructs that parole in place should be granted for an initial period of one year, and that it may be reauthorized in subsequent one-year increments.

Parole in place only waives inadmissibly under section 212(a)(6)(A)(i) relating to entry without inspection. This point is very important with regard to eligibility for adjustment of status.

In order to adjust status under section 245(a), an alien must have been admitted or paroled into the United States.  If the parolee is the immediate relative of a U.S. citizen or falls under certain special categories, he or she will be exempt from the bar to adjustment of status found in section 245(c)(2) which requires that the applicant have maintained continuously a lawful status since his or her last entry into the United States.

While parole in place may allow certain beneficiaries to adjust status, it does not in and of itself guarantee that a beneficiary will be eligible to adjust to permanent resident status.  For one, as we noted, parole in place only cures inadmissibility relating to entry without inspection.  Any other factors that may render the alien ineligible for adjustment of status must be addressed separately in order for the alien to be able to become a permanent resident.

Furthermore, the eventual eligibility of the alien for adjustment of status is not a prerequisite for granting parole in place.[2]  Thus, parole in place may be granted for discretionary reasons even if the alien is not likely to be able to adjust status.

Requesting Parole in Place

In order to request parole in place, an alien must submit the following:

• Completed Form I-131, Application for Travel Document (may be filed without fee);
• Evidence of family relationship;
• Evidence that family member is an Active Duty member of the U.S. Armed forces, individual in the Selected Reserve of the Ready Reserve, or an individual who previously served in the U.S. Armed Forces or the Selected Reserve of the Ready Reserve;
• Two identical passport style photos;
• Evidence of any favorable discretionary factors that the alien wishes for USCIS to consider.

Conclusion

Before applying for parole in place, an alien should consult with an experienced immigration attorney.  An experienced immigration attorney will be able to assess the alien’s unique situation and determine whether requesting parole in place would be to the benefit of the alien.  Furthermore, in the event that the alien is granted parole in place, an experienced immigration attorney will have the tools necessary to assist the alien in applying for adjustment of status if he or she is eligible.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. Policy Memo, USCIS, Parole of Spouses, Children and Parents of Active Duty Members of the U.S. Armed Forces, the Selected Reserve of the Ready Reserve, and Former Members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve and the Effect of Parole on Inadmissibility under Immigration and Nationality Act § 212(a)(6)(A)(i), PM-602-0091 (Nov. 15, 2013)
2. Q&As, Meeting USCIS Field Operations Directorate with AILA (Apr. 10, 2014), published on AILA InfoNet at Doc. No. 14050844

Please Read our Full Article to Learn More:

http://myattorneyusa.com/parole-in-place-for-families-of-military-service-members-and-veterans

Or Read our Overview of Immigration Parole:

http://myattorneyusa.com/parole

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Texas City Councilman Accused of Alien Smuggling

In our myriad immigration debates, it is common to see politicians accuse each other of advancing policies that will make our immigration system worse. If you read my 2016 Presidential Candidate Profiles, you will find that I think there is often something to the accusations. However, I recently came across a story of a politician accused of flaunting our immigration laws so egregiously that I think Republicans, Democrats, and the unaffiliated will be able to unite in calling this a bona fide example of a politician damaging our immigration system.

KENS 5 Eyewitness News in San Antonio reports that Marco Antonio Rodriguez, a City Councilman from Crystal City, Texas, was arrested for allegedly smuggling three undocumented aliens into the United States.[1]

Rodriguez was reportedly pulled over by a Border Patrol agent. Rodriguez attempted to run away after a brief conversation, but the Border Patrol agent caught up to him and discovered three undocumented aliens who he was smuggling. Breitbart reports that according to the criminal complaint, Rodriguez admitted that he had been hired by the three aliens who he was smuggling and was paid up to $1,900 to transport them to San Antonio.[2] Reportedly, Rodriguez also admitted that he had transported aliens on two other occasions for $500 and $1,400.

As if to add insult to injury, the Associated Press reports that the truck Rodriguez was using was reported stolen by a Denver-based company.[3]

Rodriguez is being held in a federal detention center and is reportedly facing federal human smuggling charges.

Unfortunately, because I have not seen the criminal complaint, I cannot comment more specifically on the Crystal City Councilman's particular situation. However, we can use this as an opportunity to look at some of the Immigration and Nationality Act's (INA) provisions that criminalize “bringing in and harboring certain aliens.”

The INA discusses criminal penalties for bringing in and harboring certain aliens in 274(a)(1)(A) and (B) [codified as 8 U.S.C. 1324]. Section 274(a)(1)(A) criminalizes:

1. Smuggling aliens into the United States;
2. Transporting unlawful aliens within the United States;
3. Harboring unlawful aliens within the United States;
4. Encouraging or inducing unlawful entry;
5. A conspiracy to commit any of the acts above.

(2-5 only criminalize the activities if they are done knowingly, or in reckless disregard of the alien's lack of status)

Section 274(a)(1)(B) lists the penalties for the violations described in 274(a)(1)(A). All activities covered by 274(a)(1)(A) are punishable by fines and imprisonment. The maximum possible sentences depend on certain facts regarding the specific violation.

Again, I must reiterate that we do not know all of the facts of the Rodriguez's situation. However, both smuggling aliens into the United States and transporting unlawful aliens within the United States for private financial gain is punishable by a fine under title 18 of the U.S. Code and/or imprisonment of up to 10 years.

In any case, I think we can all agree that if the allegations as reported are proven true, the City Councilman from Crystal City is an elected official who is certainly not making a positive contribution to U.S. immigration enforcement and reform.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. “South Texas city councilman accused of smuggling immigrants,” KENS 5, January 6, 2015, http://www.kens5.com/story/news/2016/01/05/south-texas-city-councilman-accused-smuggling-immigrants/78337444/
2. Houston, Warner Todd, “South Texas City Official Arrested for Smuggling Illegals Across the Border,” Breitbart, January 6, 2015, http://www.breitbart.com/big-government/2016/01/06/south-texas-city-official-arrested-smuggling-illegals-across-border/
3. Associated Press, “State briefs: South Texas city councilman charged in human smuggling case,” The Courier of Montgomery County, http://www.yourhoustonnews.com/courier/news/state-briefs-south-texas-city-councilman-charged-in-human-smuggling/article_8465e1a7-ae77-568a-80e7-aa6075da1831.html

Lawyer website: http://myattorneyusa.com

Rules for Using a TPS-Related EAD While Holding a Valid Nonimmigrant Status

Introduction

An alien who is granted temporary protected status (TPS) may obtain an Employment Authorization Document (EAD) along with TPS.  Furthermore, he or she may maintain a valid nonimmigrant status along with TPS.  Certain nonimmigrant statuses limit or outright prohibit the employment that the nonimmigrant may engage in while on status.  This leaves open the question of whether an alien may work based off his or her employment authorization from TPS and maintain a valid nonimmigrant status that would not allow that employment.

Using a TPS-Related EAD Affects Nonimmigrant Status that Limits or Prohibits Employment

A United States Citizenship and Immigration Services (USCIS) FAQ[1] addressed the following question:

“Can someone with a non-immigrant status (e.g. F-1, B-2, etc.) apply for TPS?  If so, will having or using a TPS-related EAD affect his or her status?”

As we explained in the introduction, an alien holding a valid nonimmigrant status may obtain TPS if he or she is eligible.

USCIS answered the second question as follows:

“The individual can continue to hold both statuses, as long as he or she remains eligible for both.”

USCIS further explained:

“Receiving TPS or a TPS-related EAD does not alter any rules limiting employment for certain nonimmigrants, such as F-1 students or B-2 visitors.  Before someone holding both nonimmigrant status and TPS chooses to work using a TPS-related EAD, he or she should carefully consider whether that employment could violate the terms of the nonimmigrant status…”

In short, while a person may obtain a TPS-related EAD regardless of whether he or she holds a nonimmigrant status that limits or prohibits employment, that fact does not change any requirements for the nonimmigrant status.  For example, if a B-2 visitor with TPS were to engage in employment using a TPS-related EAD, he or she would be considered to have violated the B-2 status.

Conclusion

Under USCIS’s current interpretation of the TPS rules, an alien holding TPS and a valid nonimmigrant status that limits or prohibits employment will be considered to have violated his or her nonimmigrant status if he or she uses a TPS-related EAD to engage in employment that is authorized by the EAD, but not under the nonimmigrant status.

A person holding TPS and a valid nonimmigrant status should consult with an experienced immigration attorney for guidance on whether accepting employment using the TPS-related EAD would conflict with his or her nonimmigrant status.  This will always depend on the rules of the nonimmigrant status in question.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Please Read our Full Article to Learn More:

http://myattorneyusa.com/using-employment-authorization-from-tps-while-holding-nonimmigrant-status

1. USCIS, FAQs: Statelessness and the Ability to Work for Joint F-1/TPS, published on AILA InfoNet at Doc. No. 15090306 (Posted on September 3, 2015)

Lawyer website: http://myattorneyusa.com