Law Office of Elaine Martin - immigration news

Changes to E-Verify coming on June 13.

emartin@martinvisalaw.com (Elaine Martin) — Tue, 08 Jun 2010 21:33:00 +0000

USCIS is rolling out changes to E-Verify, including a redesigned web page, on June 13. In the words of CIS

Big changes are coming to E-Verify in June that will enhance its usability, security, accuracy and efficiency. The newly redesigned E-Verify features a clean and modern design, easy and intuitive navigation, and clear and simple language. A new home page, a reimagined case alerts feature, improved case management and a streamlined tutorial are among the dozens of improvements coming to E-Verify.

Check out the new E-Verify Redesign section of the E-Verify website at www.uscis.gov/e-verify_redesign to learn more about what’s coming and how to prepare. The new section highlights several of the exciting new features and offers information on how to get a sneak preview in June before the site launches.

Although not clear from the CIS website, the American Immigration Lawyers Association (AILA) advises that employer MUST attend one of the free webinars before they can use E-Verify for new employees.

CIS feels that the new E-Verify has the following advantages:

Simplified case management.
Easier employment verification.
New case results and case alert (for cases needing attention) features.
Improved procedures for closing a case.
Ability to see the memorandum of Understanding (MOU) online.
Simplified terms.

For more information on E-Verify, see my prior blog postings here.

Department of State issues travel alert for World Cup fans

emartin@martinvisalaw.com (Elaine Martin) — Mon, 31 May 2010 21:52:00 +0000

The U.S. Department of State has published an alert (here) for U.S. citizens traveling to or residing in South Africa to safety and security issues related to the FIFA World Cup taking place in nine cities across the country from June 11 to July 11, 2010.

The U.S. Mission to South Africa also has a dedicated World Cup website here.

New consular visa fees to start June 4, 2010

emartin@martinvisalaw.com (Elaine Martin) — Wed, 26 May 2010 17:39:00 +0000

The US Department of State announced new fees for visa applications, starting on June 4, 2010. The rule establishes a tiered structure with separate fees for different nonimmigrant visa categories. Examples of the new fees include:

$140 fee for applicants for all visas that are not petition-based, including B1/B2 tourist and business visitor visas and all student and exchange visitor (F, M and J) visas, will pay a fee of $140.
$150 fee for petition-based visas, including L, H, O, P, Q and R visas
$350 for K-1 (fiancee) visas
$390 for E visas.

See the web link here and press release here.

Fact Sheet for Military Naturalization Issed

emartin@martinvisalaw.com (Elaine Martin) — Mon, 24 May 2010 18:09:00 +0000

USCIS has published a Fact Sheet about naturalization for members of the US military here. The sheet reminds people that some requirements for citizenship are waived for members of the military, including the residence and physical presence requirements. Service members do not need to pay an application fee or a biometrics fee to apply for naturalization. In addition, service members who serve during specifically designated periods of hostilities may not need to be lawful permanent residents.

For more information about naturalization as a current of former member of the military, see my prior blog postings here

H-1B cap count for FY 2011 updated

emartin@martinvisalaw.com (Elaine Martin) — Wed, 19 May 2010 16:32:00 +0000

As of May 14, 2010, USCIS had received 19,000 cases against the regular H-1B cap and 8,100 cases against the Master's degree cap.

USCIS provides regular updates on the processing of FY2011 H-1B petitions. The updates can be found on the USCIS’ website here.

June 2010 Visa Bulletin Released

emartin@martinvisalaw.com (Elaine Martin) — Thu, 13 May 2010 21:49:00 +0000

The US Department of State has released the Visa Bulletin for June 2010. The biggest news is that the Dominican Republic is now added as a separate country in Family and Employment preference categories.

Other major changes (or not):

* Family 2A preference dates for all countries, advance by over a year.
* India EB-2 is unchanged from last month. This means that it has moved only one week since October 2009. In that month, the current date was 1/22/05, and now it is 2/1/05.

Information flyer for new citizens

emartin@martinvisalaw.com (Elaine Martin) — Wed, 12 May 2010 15:39:00 +0000

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Green card to be green again in redesign.

emartin@martinvisalaw.com (Elaine Martin) — Wed, 12 May 2010 15:27:00 +0000

USCIS has announced that it has redesigned the Permanent Resident Card (green card) with enhanced security features - and a "new" color. For many years the card has been white, pink before that, and green a long time ago.

The new security features are described as follows:

Secure optical media will store biometrics for rapid and reliable identification of the card holder. Holographic images, laser engraved fingerprints, and high resolution micro-images will make the card nearly impossible to reproduce. Tighter integration of the card design with personalized elements will make it difficult to alter the card if stolen. Radio Frequency Identification (RFID) capability will allow Customs and Border Protection officers at ports of entry to read the card from a distance and compare it immediately to file data. Finally, a preprinted return address will enable the easy return of a lost card to USCIS.

Existing card holders don't need to do anything. They will get new cards as they apply for renewals or replacements in the normal course.

For more information, see the USCIS press release and the fact sheet.

Five Myths About Immigration

emartin@martinvisalaw.com (Elaine Martin) — Tue, 11 May 2010 16:44:00 +0000

The Washington Post has an article that dispels 5 mythis about immigration. The myths are:

1. Immigrants take jobs from American workers.

The article notes that immigrants form a higher percentage of the workforce than of the overall population, i.e. more immigrants work than US workers. The article also quotes economists saying that

immigration also stimulates growth by creating new consumers, entrepreneurs and investors. As a result of this growth, economists estimate that wages for the vast majority of American workers are slightly higher than they would be without immigration. U.S. workers without a high school degree experience wage declines as a result of competition from immigrants, but these losses are modest, at just over 1 percent. Economists also estimate that for each job an immigrant fills, an additional job is created.

2. Immigration is at an all-time high, and most new immigrants came illegally.

The article notes that the historic high was in about 1980, when about 14.8% of the population were immigrants. Now the figure is about 12.5%. About 2/3 of these are here lawfully.

3. Today's immigrants are not integrating into American life like past waves did.

The same charge was levied at prior influxes of immigrants, according to the article. As with previous immigrants, integration takes a generation and evidence shows that current immigrants are as keen as prior ones to integrate.

4. Cracking down on illegal border crossings will make us safer.

The article discusses the extremely difficult task that the government faces in securing

7,500 miles of land borders, 12,380 miles of coastline and a vast network of sea ports, international airports, ports of entry along the Mexican and Canadian borders and visa-issuing consulates abroad.

5. Immigration reform cannot happen in an election year.

Immigration is a controversial issue, however all major immigration acts that have passed in recent decades have passed in elections years.

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For the full text of the article, see here.

TN occupations list

emartin@martinvisalaw.com (Elaine Martin) — Wed, 05 May 2010 16:32:00 +0000

See here: North American Free Trade Agreement

2011 H-1B cap count updated

emartin@martinvisalaw.com (Elaine Martin) — Wed, 05 May 2010 15:33:00 +0000

As of April 27, 2010, USCIS had received just over 16,500 cases against the regular H-1B cap and 6,900 cases against the Master's degree cap.

USCIS provides regular updates on the processing of FY2011 H-1B petitions. The updates can be found on the USCIS’ website here.

FAQs on immigration measures for Chilean nationals

emartin@martinvisalaw.com (Elaine Martin) — Tue, 04 May 2010 20:14:00 +0000

USCIS has issued an FAQ sheet for Chilean nationals. The FAQs address issues such as what to do if you can't return to Chile because of the earthquake; what if you are in Chile and can't get back to the US before Advance Parole expires, what if you're a student and can no longer afford your tuition, etc. The full text of the FAQ is here.

If you have any questions, please feel free to contact our office directly.

2011 H-1B cap count updated

emartin@martinvisalaw.com (Elaine Martin) — Mon, 26 Apr 2010 20:55:00 +0000

As of April 22, 2010, USCIS had received just over 16,000 cases against the regular H-1B cap and 6,739 cases against the Master's degree cap.

USCIS provides regular updates on the processing of FY2011 H-1B petitions. The updates can be found on the USCIS’ website here.

ICE attorney convicted in bribery scandal

emartin@martinvisalaw.com (Elaine Martin) — Wed, 21 Apr 2010 18:22:00 +0000

A senior attorney with Immigration and Customs Enforcement (ICE) was convicted of 36 corruption-related charges in Los Angeles today. Constantine Kallas was found guilty of multiple counts of conspiracy; bribery; obstruction of justice; fraud and misuse of entry documents; aggravated identity theft; making false statements to the Department of Labor; making false statements to obtain federal employee compensation; and tax evasion. Whew. Kallas accepted bribes up to $20,000 and even "helped" his housekeeper.

The FBI press release states that

According to court documents, the couple’s bank records show that, beyond Constantine Kallas’ salary, approximately $950,000 had been deposited in the couple’s bank accounts since 2000. When investigators searched the Kallas residence in June 2008, they discovered a hidden floor safe that contained more than $177,000 in cash and two dozen official immigration files.

You can read the press release here.

What do I do if the Icelandic volcano delays my departure from the US?

emartin@martinvisalaw.com (Elaine Martin) — Mon, 19 Apr 2010 16:54:00 +0000

The US Customs and Border Protection (CBP) agency and USCIS have both issued guidance for people who cannot leave the US because of travel restrictions, and who might therefore overstay their I-94s. The CBP guidance is here and reproduced below. The USCIS update is here.

"If you or someone you know is stranded in the United States because of the airport closures in Europe due to the Icelandic volcano eruption and is about to exceed their authorized stay as a direct result of these closures, there are two avenues for relief:

If the traveler is at the airport and traveling under the Visa Waiver Program (VWP) and unable to depart timely, as a result of airport closures or flight delays/cancellations, travelers should:

Contact the U.S. Customs and Border Protection (CBP) office at the airport or;

Contact the U.S. Citizenship and Immigration Services (USCIS) office.

Both agencies have provided staff with guidance on the applicable legal authorities under the VWP in circumstances such as these.

If persons are traveling under a visa, they should contact the nearest USCIS office and follow the instructions at the following link: (USCIS - Extend My Stay)

While this link recommends initiating the process 45 days in advance, USCIS is providing guidance on how to handle these cases over this weekend.

Travelers should continue to contact their airline for information about flight schedules, delays and cancellations. If airlines have questions about the situation, they can contact their Regional Carrier Liaison Group (RCLG). The Miami RCLG can be reached at (305) 874-5444."

Work Force Fueled by Highly Skilled Immigrants - NYTimes.com

emartin@martinvisalaw.com (Elaine Martin) — Sat, 17 Apr 2010 22:06:00 +0000

Work Force Fueled by Highly Skilled Immigrants - NYTimes.com

May 2010 Visa Bulletin released

emartin@martinvisalaw.com (Elaine Martin) — Tue, 13 Apr 2010 15:42:00 +0000

The US Department of State has released the Visa Bulletin for May 2010. The biggest news is that the 3rd Preference and Other Workers categories for Mexico are "Unavailable" and will remain so for the rest of this fiscal year.

DOS states that

Due to continued heavy applicant demand, primarily by USCIS Offices for adjustment of status cases, the annual limits for the Mexico Employment Third and Third preference Other Worker categories have been reached. As a result, both categories have become “unavailable.” Visa numbers will become available once again in October with the start of the new fiscal year.

USCIS issues FAQ on F-1 "cap-gap" OPT extensions

emartin@martinvisalaw.com (Elaine Martin) — Fri, 09 Apr 2010 14:57:00 +0000

USCIS has just issued an FAQ sheet on the "cap-gap" extension of employment authorization for F-1 students.

The cap gap relief applies to F-1 students who (a) are working pursuant to Optional Practical Training; (b) have F-1 status that will expire more than 60 days before 10/1/10; and (c) have been approved for H-1B status to start on 10/1/10. Without cap-gap relief, these students would fall out of status before 10/1/10, so would need to leave the US and return once the H-1B status could start. This could mean a gap of months if the F-1 status expired in early summer.

The cap gap provision automatically extends the F-1 status and OPT, if applicable. As the FAQ explains:

Once a timely filing has been made, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed. If the student’s H-1B petition is selected and approved the student’s extension will continue through September 30th unless the petition is denied, withdrawn, or revoked. If the student’s H-1B petition is not selected and approved, the student will have the standard 60-day grace period from the date of the rejection notice or their program or OPT end date, whichever is later, to prepare for and depart the United States.

The FAQ explains how to get this extension:

A student will need to obtain an updated Form I-20 from his or her designated school official (DSO). The Form I-20 is the only document a student will have to show proof of continuing status and OPT, if applicable. The student should go to their DSO with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt. The student’s DSO will issue an interim cap-gap I-20 showing an extension until June 1st. Students whose approved period of OPT already extends beyond June 1st do not need an interim extension.

In some cases, a student’s SEVIS record will not be automatically updated with the cap-gap extension, in error. In this situation, the student’s DSO may need to add an interim cap-gap extension to the student’s SEVIS record or contact the SEVIS Help Desk to have the full cap-gap extension applied to the record. For additional information on the interim cap-gap extension, refer to SEVP’s Supplementary Cap-Gap Guidance.

For information on the H-1B cap: http://martinvisalaw.blogspot.com/2009/03/new-guidelines-for-h-1b-cap-cases-from.html

CIS releases naturalization video

emartin@martinvisalaw.com (Elaine Martin) — Wed, 07 Apr 2010 18:32:00 +0000

USCIS has released an instructional video for citizenship applicants here. The 16-minute video provides an overview of the naturalization process including the eligibility requirements, the application process, preliminary steps, the naturalization interview, the English tests and the U.S. history and government test (civics). The video includes two simulated interviews between applicants and USCIS Officers.

Supreme Court protects immigrants against bad legal advice.

emartin@martinvisalaw.com (Elaine Martin) — Fri, 02 Apr 2010 16:32:00 +0000

The US Supreme Court issued a major decision this week, whereby immigrants must be advised that pleading guilty to a criminal charge could result in removal (deportation).

In the case of Padilla vs. Kentucky, a Vietnam War veteran with permanent residence (green card) had lived in the US legally for over 40 years. He was arrested in 2001 after authorities found 1,000 lbs of marijuana in his truck. Mr. Padilla pleaded guilty to marijuana trafficking, after his criminal lawyer told him that the guilty plea would not affect his immigration status. In fact, this plea rendered Mr. Padilla removable.

The US Supreme Court held that the bad legal advice constituted ineffective assistance of counsel. There exact wording of the decision states that

It is our responsibility under the Constitution to ensure that no criminal defendant—whether a citizen or not—is left to the “mercies of incompetent counsel.” Richardson, 397 U. S., at 771. To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation. Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.

Because counsel must inform a client whether his plea carries a risk of deportation, Padilla has sufficiently alleged that his counsel was constitutionally deficient. Whether he is entitled to relief depends on whether he has been prejudiced, a matter not addressed here.

The New York Times wrote about the decision here . The full text of the Supreme Court decision is here.

Photo by http://www.flickr.com/photos/yeowatzup/172651523/

Do I need to file an AC21 letter when I change jobs?

emartin@martinvisalaw.com (Elaine Martin) — Wed, 31 Mar 2010 18:24:00 +0000

USCIS does not require you or the new employer to notify CIS if you change jobs and intend to use AC21 portability. Immigration attorneys are divided on whether filing such a letter is useful. It may prevent a Request for Evidence (RFE) later, but this is unlikely. CIS often sends RFEs in long-pending adjustment cases asking for an updated employment letter. Sending an AC21 letter at the time of the job change will probably not prevent such an RFE.

Filing an AC21 letter at the time of job change may raise more questions than it answers, so I do not strongly recommend it. However, if a client prefers to send a letter, of course I will do that.

More important than notifying CIS is ensuring that the two positions are the same or similar BEFORE making any job change.

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For more AC21 information, including links to USCIS guidance memos, see here .

Photo by http://www.flickr.com/photos/84299143@N00/2448562117/.

Can I do internship/volunteer work in dependent status?

emartin@martinvisalaw.com (Elaine Martin) — Mon, 29 Mar 2010 16:53:00 +0000

A very frequently asked question is whether the dependent spouse of a nonimmigrant can do an unpaid internship or volunteer work. The spouse is commonly in H-4 status, which does not allow for independent work authorization.

My view is that you cannot volunteer in H-4 status if your position would normally be a paid position or if you are providing services to a US company for a benefit. The benefit might not be money; it could be career opportunity, vocational experience, useful contacts, free products, etc. You could volunteer at a museum, perhaps, or homeless shelter, but generally not in a for-profit business. Many people ask if they can do unpaid internships, for example, and this is generally not permitted.

CIS has taken the view, in a different context, that volunteer work is that which, for example, is done without any expectation of compensation, where the volunteer did not require free goods in exchange for volunteering (nor were they offered), and that the volunteer would have performed the services regardless of whether he or she were to receive free products.

DHS plans to enhance E-verify.

emartin@martinvisalaw.com (Elaine Martin) — Thu, 25 Mar 2010 19:18:00 +0000

DHS has publicized initiatives to enhance the E-verify program here. The initiatives include:

(1) a new agreement with the Department of Justice that will streamline the adjudication process in cases of E-Verify misuse and discrimination;

(2) an informational telephone hotline for employees to provide a more timely, effective and seamless customer experience for workers seeking E-Verify information; and

(3) new training videos focusing on E-Verify procedures and policies, employee rights and employer responsibilities in English and Spanish.

The DHS's fact Sheet answers questions such as when and why E-Verify will share information with DOJ, what information it will share, what videos are available and where, how the employee hotline will work, what issues it will address, etc.

For more information on E-Verify, see my prior blog posts here.

USCIS: Change of Filing Location for Form I-131, Application for Travel Document

emartin@martinvisalaw.com (Elaine Martin) — Wed, 24 Mar 2010 15:18:00 +0000

USCIS: Change of Filing Location for Form I-131, Application for Travel Document

What is "Humanitarian Parole?"

emartin@martinvisalaw.com (Elaine Martin) — Thu, 18 Mar 2010 15:28:00 +0000

The USCIS has issued a Fact Sheet explaining Humanitarian Parole, how to apply, fees, supporting evidence required, etc.

Humanitarian parole allows a person to enter the US temporarily due to urgent humanitarian reasons. Parole cannot be used to avoid regular visa-issuing procedures or to bypass immigration procedures. An applicant for parole will need to show why she was not able to get a visa to enter the US. Parole does not confer any permanent immigration status, but does enable a recipient to apply for work authorization.

Humanitarian parole is typically granted for the duration of the emergency or compelling situation at issue. The parolee can request an extension of the parole period, however.

Humanitarian parole is applied for using a Form I-131 (available here). For more information about Humanitarian Parole, please contact my office.