Philadelphia Immigration Lawyer Blog

On October 25, 2007, the U.S. Citizenship and Immigration Services (USCIS) announced procedural changes in the filings of Form I-600, Petition to Classify Orphan as an Immediate Relative when the I-600 is being filed on behalf of a Vietnamese child on or after October 29, 2007. Starting on October 29, 2007, the USCIS office in Ho Chi Minh City, Vietnam will have sole jurisdiction over all such I-600s.

The change is being made in response to concerns about irregularities that the USCIS says have been occurring in identifying children for adoption in Vietnam and in identifying them as orphans. Accordingly, the processing will be centralized in Ho Chi Minh City.

The USCIS is encouraging prospective adoptive parents to file the I-600 (and the required supporting documents directly with the USCIS in Ho Chi Minh City before traveling to Vietnam. The application and supporting documents if sent by courier should be sent to the United States Consulate General, 4 Le Duan Street, District 1,
Ho Chi Minh City, Vietnam, Attn: DHS/USCIS.

The prospective adoptive parent petitioners will receive a notice of receipt from the USCIS Ho Chi Minh City office which will review the petition and supporting evidence to determine whether the child qualifies as an orphan. As necessary, an administrative field inquiry or a request for evidence will be necessary to make that determination, something that the USCIS anticipates should be completed in 60 days. Then, if the child qualifies as an orphan, the USCIS will notify the prospective parents that they may then travel to Vietnam to proceed with the adoption.

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Posted In: Family Based Immigration

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Unfortunately, and despite bipartisan support for the bill, the DREAM (Development, Relief and Education for Alien Minor Act) Act failed to survive a procedural vote in the U.S. Senate yesterday by a vote of 52-44. I described the DREAM Act in a posting yesterday; its defeat is terribly disappointing.

When the Senate failed to pass comprehensive immigration reform this summer, it was hoped that perhaps narrow bills targeted at very specific immigration issues could be passed. This defeat suggests otherwise. Most observers now believe that any immigration reform, comprehensive or otherwise, is off the table at least until after the Presidential election in 2008.

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On October 24, 2007, the USCIS (United States Citizenship and Immigration Services) published a Fact Sheet describing how current members and certain veterans of the U.S. armed forces are eligible to apply for United States citizenship in a streamlined, expedited manner.

The application and naturalization process is eased for members of the Army, Navy, Air Force, Marine Corps, Coast Guard, certain reserve components of the National Guard and the Selected Reserve of the Ready Reserve.

Basically, expedited citizenship is available to members of the U.S. Armed Forces who are of good moral character, who know English, who know U.S. government and history and who pledge allegiance to the U.S. Constitution. Members are not charged a fee for applying and the application, the citizenship interview and the ceremony can all take place overseas as necessary.

The naturalization application (including the Application for Naturalization (USCIS Form N-400), the Request for Certification of Military or Naval Service (USCIS Form N-426) and the Biographic Information (USCIS Form G-325B) is sent to the USCIS Nebraska Service Center for expedited processing.

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Posted In: Citizenship and Naturalization

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By letter dated October 23, 2007, 16 Democratic members of Congress wrote to House of Representatives Speaker Nancy Pelosi asking that Congress take immediate steps to “resolve the immediate talent crisis that is facing U.S. employers", specifically by raising the annual cap on H1-B highly skilled worker visas. As noted in other postings here, in addition to not passing comprehensive immigration reform this past summer, it appears that Congress will not be passing standalone immigration reform either. The Senate’s failure last week to pass the DREAM Act is evidence of that.

Nonetheless, at least some members of Congress appear to understand the need to increase the H1-B visa cap from the current annual cap of 65,000 (and 20,000 more for foreign students who receive advanced degrees from U.S. schools) to something much higher. Proposals include having no cap at all to the vague idea that the number be tied to the then current “needs of U.S. employers”.

Whatever the cap should be, it is clear that it needs to be higher than the current cap which was reached this year on April 1st--the very first day for filing H1-B applications. So many H1-B visa applications were received that day that a lottery system had to be implemented, a pretty ridiculous way to try to help U.S. employers stay competitive in a gobal economy.

Despite efforts such as this letter to Speaker Pelosi, it appears unlikely that Congress will be addressing this issue anytime soon. Nonetheless, the 16 members of Congress who signed onto the letter deserve credit: Ellen Tauscher (Calif.), Adam Smith (Wash.), Joseph Crowley (N.Y.), Artur Davis (Ala.), Ron Kind (Wis.), Rick Larsen (Wash.), Dennis Moore (Kan.), Adam Schiff (Calif.), Jim Moran (Va.), Gregory Meeks (N.Y.), Susan Davis (Calif.), Lois Capps (Calif.), Gabrielle Giffords (Ariz.), Christopher Carney (Pa.), Michael Arcuri (N.Y.), and David Wu (Ore.).

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On October 24, 2007 a bill that would grant Green Card status (permanent residency) to thousands of young students in the U.S. who are currently here illegally will face a crucial vote in Congress. The DREAM Act, which is sponsored chiefly by Illinois Senator Dick Durbin and which has bipartisan support, would permit a select group of undocumented students to obtain green cards if they came here as children, are long-term U.S. residents, have good moral character, and attend college or enlist in the military for at least two years. DREAM stands for Development, Relief, and Education for Alien Minors. It's a bill that should be passed.

The Senate plans to vote on October 24th on whether to allow debate on the bill to proceed but it needs 60 votes to do that. The vote is considered a litmus test on whether Congress can pass other single-issue, limited immigration reforms one bill at a time after it failed to pass a comprehensive immigration reform bill earlier this year.

Despite some anti-immigrant rhetoric from those opposed to any immigration reform, here are certain facts about the DREAM Act: in order to qualify, the student must 1) have arrived here under the age of 16, 2) be under the age of 30 on the date of enactment, 3) have lived in the U.S. for at least 5 years, 4) graduate from a U.S. high school or has obtained a GED in the U.S., 5) and either serve in the military or attend college for at least two years and 6) have good moral character. Once the student who otherwise qualifies for the DREAM Act graduates from a U.S. high school or gets a GED in the U.S., they can obtain conditional permanent residence. After that, the student then has 6 years during which they must enlist in the military or go to college for 2 years. Only after completing the 2 years of higher education or military service, the student can then receive his or her Green Card.

The proposed bill is hardly "amnesty" and would not lead to "chain migration". A student who qualifies would not be able to sponsor extended family members and they could not begin sponsoring siblings or parents for at least six years. Even then, under current law, those siblings or parents who themselves are here illegally would have to leave the U.S. for up to ten years before they could gain legal status.

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H1b visa holders (and their employers and their attorneys) need to be very careful when it comes to time to extend their H1b visas to remember to also extend the derivative H4 visas for a spouse and minor children. As most H1b visa holders understand, H1b visas can be granted for up to 6 years, typically in two 3 year increments. (Under certain, very specific circumstances, an H1b visa can be extended beyond 6 years). When an H1b visa is approved, the spouse and the minor children of an H1b visa holder are given H4 visas.

Prior to the end of the first three year period, the employer of the H1b visa holder can file to extend the employee’s H1b stay for an additional 3 years. Unfortunately, either through oversight or ignorance, separate, simultaneous extension applications are sometimes not made for the H4 spouse and H4 minor children. When this happens, the H1b visa is extended and the H1b visa holder remains in status while his or her H4 spouse and H4 children fall out of status, obviously with very unfortunate results.

H4 visas are NOT just automatically extended when H1b visas are extended! Each H4 visa holder must file their own I-539 application to extend. When the H1b visa is extended, obtaining an H4 visa extension should be simple—as long as everyone remembers to apply!

What if the H4 visa holder, for whatever reason, fails to file for an extension?

Continue reading " H1B Visa Extensions – Don’t Forget About Extending Your Spouse’s and Children’s H-4 Visas Too! " »

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On October 10, 2007, Judge Charles R. Breyer of the U.S. District Court for the Northern District of California issued a preliminary injunction that, for now, will continue to prevent the Department of Homeland Security (DHS) from proceeding with its new "no-match" regulation. Following Congress’ sorry failure to pass comprehensive immigration reform this past summer, the Bush Administration enacted the new no-match regulation in an effort to shift much of the burden of enforcing existing immigration laws against the hiring of illegal aliens from the government to private employers.

While I understand the Bush Administration’s desire to get at enforcement one way or the other, this new reg is not the answer. The problem is that the Court’s ruling is really only a temporary stay and it just delays the inevitable day when private employers are forced to become enforcers of federal immigration law—something that should be the government’s job. The comprehensive immigration problems we have in the United States require comprehensive immigration reform in particular giving illegal aliens a path to residency and eventual citizenship.

Basically, no-match letters are often generated when an employer sends a W-2 form to the government reporting the name, social security number and earnings of an employee to the government, but the name and/or the social security number don’t match the government’s records. About 8 to 11 million no-match letters go out to U.S. employers every year.

Obviously, any number of these no-match letters involve aliens who are in the U.S. illegally and who are working without proper authorization. Under current law, a U.S. employer must verify, through the use of the I-9 form, that a prospective employee really is who they say they are and that they are legally allowed to work. The employee has to present certain documents as part of the I-9 process. Some documents establish both identity and work authorization (such as a U.S. passport or a green card) and other documents separately establish identity (such as a driver’s license) and work authorization (such as a social security card). When the prospective employee presents the documents, the employer must accept them as valid if they reasonably appear to be genuine. Of course, the employer must act in good-faith in accepting the documents; if the employer has actual knowledge that the employee does not really have work authorization, it’s not a defense that the documents “appeared” to be genuine.

This is where the new reg comes in. The new reg provides for certain “safe-harbor” investigative provisions that an employer would follow if it received a no-match letter. The safe harbor provisions essentially involved going through the identity and work authorization process all over again. In this second go-round, however, if the discrepancy could not be resolved, the employer would not have much choice but to fire the employee.

Continue reading " DHS No-Match Letter Regulation Temporarily Blocked--But Probably Not For Long " »

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The Green Card Diversity Visa (DV) 2009 Lottery online entry begins today, October 3, 2007, at Noon EDT and ends at Noon EST on December 2, 2007. The DV Lottery provides for up to 55,000 Diversity Visas every fiscal year to be made available to individuals from certain countries with low rates of immigration to the United States. A computer-generated, random lottery drawing chooses selectees and the visas are distributed among six geographic regions. More Diversity Visas go to the regions with lower rates of immigration and no Diversity Visas going to nationals of countries that have sent more than 50,000 immigrants to the U.S. over the past five years.

Here is a list of countries whose nationals are NOT eligible: BRAZIL, CANADA, CHINA (mainland-born), COLOMBIA, DOMINICAN REPUBLIC, ECUADOR, EL SALVADOR, GUATEMALA, HAITI, INDIA, JAMAICA, MEXICO, PAKISTAN, PHILIPPINES, PERU, POLAND, RUSSIA, SOUTH KOREA, UNITED KINGDOM (except Northern Ireland) and its dependent territories, and VIETNAM. Persons born in Hong Kong SAR, Macau SAR and Taiwan are eligible.

The rules for entry and eligibility are simple but they are also strictly enforced. Entries must be done electronically--no paper entries will be accepted. The eligibility requirements and the rules for entry can be found here and the Department of State's fraud warnings about the program can be found here.

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