Courtesy of the American Immigration Council
June 25,
2012
Washington D.C. - In a blow to the state anti-immigration movement, the
Supreme Court ruled today that the authority to enforce immigration laws rests
squarely with the federal government, limiting the role that states may play in
crafting state-level answers to immigration enforcement. By a 5-3 margin, the
Court struck down three of the four provisions of SB 1070 that were challenged
by the Obama administration as pre-empted under federal law. While the Court
agreed that Arizona’s attempt to limit immigration by creating new laws and new
penalties to punish undocumented immigrants was pre-empted, it found that a
provision requiring local police to investigate the legal status of suspected
undocumented immigrants was not pre-empted on its face. The court read this
provision very narrowly, however, leaving open the door to future lawsuits
based on racial profiling and other legal violations.
“Today’s decision makes clear that the federal
government—and only the federal government—has the power and authority to set
the nation’s immigration policies,” said Benjamin Johnson, Executive Director
of the American Immigration Council. “Despite its strongly worded rejection of
Arizona's effort to set its own immigration policies, the Court adopted a
wait-and-see approach to the controversial racial profiling section of the law.
There is already ample evidence of discrimination and abuse in Arizona, and
many communities in the state will bear the brunt of the Court's unwillingness
to face that reality. It's time for Congress to heed the dire warnings
contained in this opinion and recommit to fixing our broken immigration
system.”
Link to American Immigration Council Press Release.
Monday, June 25, 2012
Obama Statement on SB 1070 Supreme Court decision
I am pleased that the Supreme Court has struck down key provisions of Arizona's immigration law. What this decision makes unmistakably clear is that Congress must act on comprehensive immigration reform. A patchwork of state laws is not a solution to our broken immigration system – it’s part of the problem.
At the same time, I remain concerned about the practical impact of the remaining provision of the Arizona law that requires local law enforcement officials to check the immigration status of anyone they even suspect to be here illegally. I agree with the Court that individuals cannot be detained solely to verify their immigration status. No American should ever live under a cloud of suspicion just because of what they look like. Going forward, we must ensure that Arizona law enforcement officials do not enforce this law in a manner that undermines the civil rights of Americans, as the Court’s decision recognizes. Furthermore, we will continue to enforce our immigration laws by focusing on our most important priorities like border security and criminals who endanger our communities, and not, for example, students who earn their education – which is why the Department of Homeland Security announced earlier this month that it will lift the shadow of deportation from young people who were brought to the United States as children through no fault of their own.
I will work with anyone in Congress who’s willing to make progress on comprehensive immigration reform that addresses our economic needs and security needs, and upholds our tradition as a nation of laws and a nation of immigrants. And in the meantime, we will continue to use every federal resource to protect the safety and civil rights of all Americans, and treat all our people with dignity and respect. We can solve these challenges not in spite of our most cherished values – but because of them. What makes us American is not a question of what we look like or what our names are. What makes us American is our shared belief in the enduring promise of this country – and our shared responsibility to leave it more generous and more hopeful than we found it.
At the same time, I remain concerned about the practical impact of the remaining provision of the Arizona law that requires local law enforcement officials to check the immigration status of anyone they even suspect to be here illegally. I agree with the Court that individuals cannot be detained solely to verify their immigration status. No American should ever live under a cloud of suspicion just because of what they look like. Going forward, we must ensure that Arizona law enforcement officials do not enforce this law in a manner that undermines the civil rights of Americans, as the Court’s decision recognizes. Furthermore, we will continue to enforce our immigration laws by focusing on our most important priorities like border security and criminals who endanger our communities, and not, for example, students who earn their education – which is why the Department of Homeland Security announced earlier this month that it will lift the shadow of deportation from young people who were brought to the United States as children through no fault of their own.
I will work with anyone in Congress who’s willing to make progress on comprehensive immigration reform that addresses our economic needs and security needs, and upholds our tradition as a nation of laws and a nation of immigrants. And in the meantime, we will continue to use every federal resource to protect the safety and civil rights of all Americans, and treat all our people with dignity and respect. We can solve these challenges not in spite of our most cherished values – but because of them. What makes us American is not a question of what we look like or what our names are. What makes us American is our shared belief in the enduring promise of this country – and our shared responsibility to leave it more generous and more hopeful than we found it.
Saturday, June 23, 2012
New USCIS system created to streamline the application process for immigration benefits: ELIS
What is USCIS ELIS?
USCIS ELIS is a user-friendly system created to streamline the application process for immigration benefits. It allows immigration benefit seekers and their legal representatives to create an account and file benefit requests online. USCIS ELIS provides more accurate and secure customer service. It also allows USCIS to process cases in a more efficient, consistent and secure environment.
Who will be able to use USCIS ELIS?
In this initial release, certain applicants can electronically file Form I-539, Application to Extend/Change Nonimmigrant Status. Over time, USCIS ELIS will include more benefit types and increased functions.
Link to USCIS webpage with more information.
Thursday, June 21, 2012
Q & A: B-2 visa holder risks of refusal and minimizing the same; F-1 visa as alternative option
Question: My girlfriend is from Brazil and has a B-2 visa stamp. Over the last year, she has spent more than half the time visiting me in the US. The last time she left was about three months, and now she wants to return. Does she run any risk of being denied entry, and how to minimize such risks? Can she alternatively apply for an F-1 VISA to study English?
Answer:
There is always some risk of denial, as having a visa does not guarantee that CBP will grant entry.
Further, the more time a foreign national spends in the US as a visitor, the more likely it is that CBP will question her continued eligibility for this visa classification.
CBP has become increasingly aware of someone's prior exits/entries, with the help of technology.
What CBP wants to know is if she truly a visitor, OR does she intend to stay permanently, or work in the United States without authorization to support herself.
Minimizing risk of refusal involves preparing to confirm temporary intent - in the event of extensive questioning. Remember is possible she will have a very brief and easy interaction with CBP before being let in.
Preparation should involve preparing to effectively discuss the purpose of her visit and temporary intent with CBP, and having paperwork ready to provide.
CBP, considering her prior history of travel to the US, may begin a line of questioning that requires her to prove she will go back to Brazil after her visit is over, and can support herself during her stay without having to work illegally.
To confirm her temporary intent, we are talking ties to her home country. Generally, the most persuasive evidence involves demonstrating permanent residence, a steady job at home, or enrollment in school; but it sounds like she has neither the job or is enrolled in school at the moment, and I am guessing might still live with her parents?
Certainly, if she is financially comfortable, she should bring paperwork to confirm the same. Possibly bank statements. Other evidence might include a return ticket, itinerary documents to confirm what she will be doing in the US, where she intends to stay, etc.
Usually for young single people, it comes to down credibility, ie, whether or not the CBP believes her, and so there is really no specific formula.
A student visa might be a good alternative, because it provides her with a more concrete reason to come to the US. But note it would require another visa application at the Consulate, and the F-1 also requires her to demonstrate temporary intent.
A good way to start researching this process is to review the F-1 visa requirements posted online by the local US Embassy (see link below) AND finding an acceptable school, and then contacting them to discuss how they assist international students with getting an F-1 visa stamp.
Here is a link which might help: http://brazil.usembassy.gov/student.html
Please let me know if I may be of any further assistance.
Sincerely yours,
Michael
Answer:
There is always some risk of denial, as having a visa does not guarantee that CBP will grant entry.
Further, the more time a foreign national spends in the US as a visitor, the more likely it is that CBP will question her continued eligibility for this visa classification.
CBP has become increasingly aware of someone's prior exits/entries, with the help of technology.
What CBP wants to know is if she truly a visitor, OR does she intend to stay permanently, or work in the United States without authorization to support herself.
Minimizing risk of refusal involves preparing to confirm temporary intent - in the event of extensive questioning. Remember is possible she will have a very brief and easy interaction with CBP before being let in.
Preparation should involve preparing to effectively discuss the purpose of her visit and temporary intent with CBP, and having paperwork ready to provide.
CBP, considering her prior history of travel to the US, may begin a line of questioning that requires her to prove she will go back to Brazil after her visit is over, and can support herself during her stay without having to work illegally.
To confirm her temporary intent, we are talking ties to her home country. Generally, the most persuasive evidence involves demonstrating permanent residence, a steady job at home, or enrollment in school; but it sounds like she has neither the job or is enrolled in school at the moment, and I am guessing might still live with her parents?
Certainly, if she is financially comfortable, she should bring paperwork to confirm the same. Possibly bank statements. Other evidence might include a return ticket, itinerary documents to confirm what she will be doing in the US, where she intends to stay, etc.
Usually for young single people, it comes to down credibility, ie, whether or not the CBP believes her, and so there is really no specific formula.
A student visa might be a good alternative, because it provides her with a more concrete reason to come to the US. But note it would require another visa application at the Consulate, and the F-1 also requires her to demonstrate temporary intent.
A good way to start researching this process is to review the F-1 visa requirements posted online by the local US Embassy (see link below) AND finding an acceptable school, and then contacting them to discuss how they assist international students with getting an F-1 visa stamp.
Here is a link which might help: http://brazil.usembassy.gov/student.html
Please let me know if I may be of any further assistance.
Sincerely yours,
Michael
Q & A: H-1B Cap after being away from US for one year; H-1B three-year extensions for Company B, based on Company A approved I-140; Re-capturing previously established priority dates
Question: I stayed in the US on H-1B for six years plus, based on having an approved I-140 petition, and then left the US for more than one year. I now want to return to work for a different employer in H-1B status. Am I subject to H-1B Quota Limitations? Can I use my previously established Priority Date, even though I left the employer that sponsored my I-140?
Answer:
Q: Do I come under H1-B quota or can I apply for H1 without any quota restrictions?
MR: As long as the I-140 was not withdrawn, and you are subject to per-country limitations (your priority date is not current) - your NEW employer (does not have to be the I-140 employer) may file a CAP-EXEMPT I-129 petition on your behalf, seeking CONSULAR APPROVAL for THREE-YEARS.
Do you know if your I-140 was withdrawn after you left your prior employer? Unfortunately, unless you are able to confirm this one way or another, the only way to find out is to actually file the petition with USCIS. Note the USCIS online case status system is NOT updated for withdrawals.
Q: Secondly, is there a way I could use my earlier priority date from labor filing? I am planning to file a EB2 perm labor with a new employer and port the earlier priority date.
MR: Yes, after the EB-2 labor certification (PERM) application is filed and certified by the US DOL, the new employer will file an new I-140 petition on your behalf, which should include a request to re-capture your earlier priority date.
Q: Is that priority date available for me as I have left that employer after my I-140 got approved. Please advise.
MR: It should be available, even if you left, or even if that employer withdrew the I-140 after you left. Note the difference for the 3-year H-1B extension, where withdrawal would likely result in denial.
Withdrawal should NOT prevent re-capturing a previously established priority date. That said, USCIS has been known to effectively say, "if the prior I-140 was withdrawn, there is no priority date to re-capture." So if possible, and if you know your I-140 has been withdrawn, your immigration counsel should prepare an argument based on available guidance, that you are in fact eligible to re-capture despite the withdrawn I-140.
***
I wish you the best of luck. Please let us know if we can be of any further assistance to you.
Sincerely yours,
Michael
Answer:
Q: Do I come under H1-B quota or can I apply for H1 without any quota restrictions?
MR: As long as the I-140 was not withdrawn, and you are subject to per-country limitations (your priority date is not current) - your NEW employer (does not have to be the I-140 employer) may file a CAP-EXEMPT I-129 petition on your behalf, seeking CONSULAR APPROVAL for THREE-YEARS.
Do you know if your I-140 was withdrawn after you left your prior employer? Unfortunately, unless you are able to confirm this one way or another, the only way to find out is to actually file the petition with USCIS. Note the USCIS online case status system is NOT updated for withdrawals.
Q: Secondly, is there a way I could use my earlier priority date from labor filing? I am planning to file a EB2 perm labor with a new employer and port the earlier priority date.
MR: Yes, after the EB-2 labor certification (PERM) application is filed and certified by the US DOL, the new employer will file an new I-140 petition on your behalf, which should include a request to re-capture your earlier priority date.
Q: Is that priority date available for me as I have left that employer after my I-140 got approved. Please advise.
MR: It should be available, even if you left, or even if that employer withdrew the I-140 after you left. Note the difference for the 3-year H-1B extension, where withdrawal would likely result in denial.
Withdrawal should NOT prevent re-capturing a previously established priority date. That said, USCIS has been known to effectively say, "if the prior I-140 was withdrawn, there is no priority date to re-capture." So if possible, and if you know your I-140 has been withdrawn, your immigration counsel should prepare an argument based on available guidance, that you are in fact eligible to re-capture despite the withdrawn I-140.
***
I wish you the best of luck. Please let us know if we can be of any further assistance to you.
Sincerely yours,
Michael
Wednesday, June 20, 2012
DREAM ACT DEFERRED ACTION UPDATE; PLEASE BE CAREFUL OF POTENTIAL FRAUD BY SO-CALLED "NOTARIOS"
EN ESPANOL: http://www.dhs.gov/ynews/espanol/20120615-napolitano-anuncia-proceso-de-accion-diferida.shtm
Immigration lawyers around the United
States welcomed the Administration's recent announcement that younger
immigrants may be eligible for "Deferred Action" and work authorization.
The policy will grant qualified immigrants the opportunity to live free from
fear of deportation and allow them to work legally. This exciting new
development brings hope to immigrants and their families. It is not currently a path to a Green Card or Citizenship, nor does it grant
permanent legal status to anyone. It
will also not extend to family members – everyone must qualify on his or her
own.
To qualify, an individual must:
- have arrived in the U.S. when they were under the age
of sixteen;
- have continuously resided in the U.S. for at least five
years prior to June 15, 2012 and have been present in the U.S. on June 15,
2012;
- currently be in school, have graduated from high
school, have a GED, or be an honorably discharged veteran of the U.S.
Coast Guard or the U.S. Armed Forces;
- not have been convicted of a felony offense, a
"significant misdemeanor offense," three or more non-significant
misdemeanors, or otherwise pose a threat to national security or public
safety; and
- have been under thirty-one years old on June 15, 2012
The deferred action offer will be available to those in
proceedings, those with final removal orders, as well as to those who apply
affirmatively.
The Administration is not yet accepting applications for
this action. Within sixty days - by the middle
of August - the Administration expects to issue guidance and information about
how eligible individuals can request deferred action and work authorization.
If you are NOT IN REMOVAL proceedings, DO NOT apply for
deferred action at this time.
Unfortunately, this policy may open the door for fraud and deception by
so-called "Notarios." In the United States, notarios have no legal
background and cannot legally practice law or represent you.
Further, anyone claiming they can submit an application or
charging a fee for applying for deferred action should NOT be trusted until the
process has been announced by the federal government. An immigrant's case can be delayed by notarios acting in
bad faith, resulting in penalties and even deportation.
Do not
endanger your chance to qualify for this action and make sure to contact a
licensed attorney for more information on applying for deferred action. If you believe you are eligible for
deferred action, you may contact Ryvin Wallace Group by calling our Washington
DC office (703) 531-0790, or San Francisco CA office (415-765-0679).
After the jump, please read what we expect to happen in the
coming weeks, more early analysis, and key Department of Homeland Security Memo
and FAQs.
Subscribe to:
Posts (Atom)