Philadelphia Immigration Lawyer Blog

On March 27, 2008, DHS announced the final rule for the land and sea portion of WHTI (the Western Hemisphere Travel Initiative).

The WHTI final rule requires travelers to present a passport or other
approved secure document denoting citizenship and identity for all land and sea travel
into the United States and the requirements are effective June 1, 2009. The DHS is giving plenty of notice so that everyone has time to get themselves a WHTI-compliant document.

When it announce the final rule, DHS also announced that it is designating the
Washington State Enhanced Driver’s License (EDL) a WHTI-compliant document and as of March 24, Washington State had already scheduled more than 18,600 appointments for EDL interviews and issued more than 6,400 EDLs.

The new Passport Cards (see me earlier blog about them) are WHTI-compliant and the Department of State is already accepting applications for them.

The DHS announcement comes about two months after January 31, 2008, when DHS ended acceptance of oral declarations alone of identity and citizenship at the land borders. Since then, U.S. and Canadian citizens ages 19 and older have been asked to present proof of identity and citizenship. Children ages 18 and under are currently asked only to
present proof of citizenship, such as a birth certificate. The change was the first step in implementing WHTI fully on June 1, 2009 when travelers will be required to present a single WHTI compliant document denoting both citizenship and identity when seeking entry into the United States through a land or sea border. (The WHTI secure document
requirement is already in place for all air travelers.)

Here is a link to the DHS Question and Answer Fact Sheet on WHTI.

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Posted In: Passports, Travel Documents

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The Visa Waiver Program has been in the news recently. While new countries have been recently welcomed into the program (for example, the Slovak Republic, Estonia and Latvia), Congress, with Senator Diane Feinstein chairing, recently held hearings on perceived problems with the program. It’s a good time to review some of the basics of the program.

Someone who enters the US on the Visa Waiver Program has 90 days to stay in order to visit the U.S. If you stay longer than the 90-day limit by more than 180 days but less that 365 days and then leave the U.S. you will face a three-year bar from re-entering the US. If you overstay the 90-day period by one year or more and then leave, you are going to be barred from re-entering for tens years.

This does not mean that you get 90 days and then an extra 179 days! If you overstay the 90 day period by just one day and then leave, while you won’t be subject to the three year ban, you are probably going to have a difficult time re-entering later on. You won’t be able to get back in under the Visa Waiver Program. You will have to apply for a B-2 visitor’s visa at a U.S. embassy with all that that entails (proof of your foreign residence that you will be returning to, etc) and you can expect the application to be carefully scrutinized. The bottom line is—don’t overstay.

What if you overstay on a Visa Waiver Program entry and then are apprehended by Immigration and Customs Enforcement? You can be removed from the U.S. without a hearing before an Immigration Judge and, regardless of how short or long your overstay, you’ll be subject to a ten-year bar on your re-entry.

You definitely cannot work in the U.S. while here under the Visa Waiver Program; if you do, you're going to be inadmissible to the U.S. in the future almost without exception.

You can’t extend the 90-day visa waiver period unless you have a really compelling reason (such as a serious health issue) for asking for an extension.

You also can’t change or adjust your status if you enter the U.S. under the Visa Waiver Program, unless you are trying to do so on the basis of a I-130 petition by an immediate relative. But you need to be very careful about this. You cannot enter the U.S. under the Visa Waiver Program if you really have immigrant intent such an really intending the have a U.S. relative file an I-130 for you so you can stay.

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Posted In: Passports, Travel Documents

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On March 20, 2008, the USCIS announced that is expanding work hours and adding staff to complete processing N-400 naturalization applications. It’s doing this because it has received a significant increase in N-400 applications and it wants to complete the processing of them within its announced processing times.

Therefore, if you get an interview advising you that you have a received a notice from the USCIS that your naturalization interview has been scheduled on a Saturday, Sunday, or after usual business hours, don’t assume the notice is wrong. In fact, the notice is correct and you must appear at the scheduled time.

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Posted In: Citizenship and Naturalization

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On March 21, 2008, the USCIS issued a reminder that all stand-alone I-130 petitioners must file their stand-alone I-130 petitions with the Chicago Lockbox and NOT at a USCIS Service Center. Here’s my earlier post about the new requirement back on February 21, 2008 and the USCIS has now issued its own reminder.

The I-130 is the petition that is filed by either a U.S. citizen or a permanent residents who are eligible to file for certain immediate relatives. Often, the I-130 is filed together with the I-485 application to adjust status (and this USCIS reminder is not applicable to the I-130 when it is being filed together with other petitions like the I-485). The new rule is only relevant to stand-alone I-130 petitions.

The USCIS is reminding petitioners that if they are filing a stand-alone petition, they must file with the Chicago Lockbox and if they don’t, as of April 30, 2008, an improperly filed I-130 is going to be rejected.

After the I-130 is filed with the Chicago Lockbox, the USCIS will then route the I-130 to either the Vermont Service Center or the California Service Center for receipting and adjudication (based on the petitioner's place of residence in the U.S).

Two separate post office box addresses have been established that correspond to the appropriate USCIS service center (either Vermont or California):

Petitioners who reside in Alaska, Arizona, California, Colorado, Guam, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin, or Wyoming must file their stand-alone Form I-130s with the Lockbox using the following address:

USCIS
P.O. Box 804625
Chicago, IL 60680-1029

Petitioners who reside in Alabama, Arkansas, Connecticut, Delaware, Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, U.S. Virgin Islands, West Virginia, or District of Columbia must file their stand-alone Form I-130s with the Lockbox using the following address:

USCIS
P.O. Box 804616
Chicago, IL 60680-1029

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Posted In: Family Based Immigration

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On March 19, 2008, the USCIS announced that it will deny or revoke multiple petitions filed by an employer for the same H-1B worker and that it will not refund the filing fees submitted with multiple or duplicative petitions. This step is being taken by the USCIS in an effort to be fair to all employers seeking to hire H1-b workers this year, recognizing that once again, it’s expected that the number of applicants will exceed the available number of visas. Here is a link to the new interim rule. Here is a link to the USCIS fact sheet for the new interim rule is stated.

For fiscal year 2009 (which starts on October 1, 2008) the H1-b visa cap is 65,000 for most H-1B workers although the first 20,000 H-1B workers who have a U.S. master’s degree or higher are exempt from the cap. Once the USCIS receives 20,000 petitions for aliens with a U.S. master’s degree or higher, all other cases requesting the educational exemption are counted toward the 65,000 cap.

The rule also states that if USCIS determines that the number of H-1B petitions received meets the cap within the first five business days of accepting applications for the coming fiscal year (with the first day for filing being April 1, 2008), it will apply a random selection process among all H-1B petitions received during this time period. If the 20,000 advanced degree limit is reached during the first five business days, USCIS will randomly select from those petitions ahead of conducting the random selection for the 65,000 limit. H1-b petitions subject to the 20,000 limit that are not selected in that random selection will then be considered with the other H-1B petitions in the random selection for the 65,000 limit.

The final rule will become effective upon publication in the Federal Register.

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Within a few days of Bill Gates’ Congressional testimony on March 12th on the issue of keeping the U.S. competitive in a global market in which many countries gladly welcome the best and the brightest of the world’s highly skilled workers, two new bills to raise the H-1B cap reached the House floor.

Rep. Gabrielle Giffords (D-Ariz.) introduced the Innovation Employment Act (H.R. 5630) which would initially double the annual H-1B visa cap to 130,000 and then allow the cap to increase the following year if that cap were reached.

Rep. Lamar Smith (R-Texas) introduced a separate bill, the SUSTAIN Act (Strengthening United States Technology And INnovation Act), which would triple the H-1B cap, but only temporarily, in 2008 and 2009, to 195,000.

Gates testified: "We live in an economy that depends on the ability of innovative companies to attract and retain the very best talent, regardless of nationality or citizenship [but] the U.S. immigration system makes it hard to attract and retain high-skilled immigrants." U.S. firms will have no choice, said Gates, but to take advantage of opportunites in other countries with more favorable visa programs, such as Canada and Great Britian if the U.S. continues to cap H-1Bs.

The Giffords bill (and the Smith bill to a lesser degree) represents realistic and practical progress since it’s not realistic to think Congress will simply lift the cap altogether as it should. Congress has to do something to peg the cap to the needs of the marketplace—not some arbitrary fixed number that has no relationship to the needs of American businesses. Hiring H-1B workers creates jobs for Americans, it doesn’t take jobs away from Americans. Businesses don’t hire H-1B workers instead of Americans, they hire H-1B along with American workers. The National Foundation for American Policy (NFAP) recently published a well-publicized study that found that for larger S&P 500 technology companies, on average, for each H-1B visa requested by a company, overall American hires climbed an average of five employees. For smaller companies, the NFAP found that seven new American employees were hired for every H-1B application submitted. Here’s the published study.

Let’s hope this newfound bipartisan effort on H-1Bs results in a change in the law. Since comprehensive immigration reform doesn’t seem likely any time soon, if we have to accept reform in piecemeal fashion like this, we’ll take it.

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The BIA has issued an opinion in a matter that serves as a useful reminder of how essential it is in being completely truthful and very thorough in completing and filing an N-400 naturalization application. If an applicant is less than truthful in completing the N-400, the fraud will come back to haunt him or her even after the applicant becomes a naturalized U.S. citizen.

In the Matter of Alfonso Gonzalez-Muro (24 I&N Dec. 472 (BIA 2008) Interim Decision #3604, issued March 11, 2008), the Respondent committed crimes when he was a lawful permanent resident, he concealed those crimes during the naturalization application process, then became a U.S. citizen but he was ultimately placed in removal proceedings. The Immigration Judge at the removal hearing terminated the removal proceedings against the Respondent on the grounds that because the Respondent’s convictions (not the commissions of the crimes) occurred after he became a U.S. citizen, he could not be removed.

But the BIA overturned the Immigration Judge and ruled that because the respondent committed some of his crimes when he was a lawful permanent resident (which meant that he was removable at the time he committed those crimes) and because he represented in his N-400 application that he had not committed a crime for which he had not been convicted, his citizenship was obtained by fraud. The BIA ruled that because his citizenship was obtained by fraud, that citizenship would not protect him from adverse immigration consequences relating to his crimes.

Interestingly, the Respondent had entered into a prior settlement agreement with the government by which he accepted the revocation of his naturalization. As part of that settlement agreement, he agreed to be “forever restrained and enjoined from claiming any rights, privileges, or advantages under any document that evidences United States citizenship obtained as a result of [his] June 24, 1994 naturalization.” It is not clear from the BIA decision why the Respondent stipulated to being denaturalized since it should have been clear to him that the government intended to try to remove him. Perhaps he was confident that prior case law (including the U.S. Supreme Court decision in Costello v. INS, 376 U.S. 120 (1964)) would protect him since his convictions all took place after he became a U.S. citizen.

In any event, it’s a lesson in the need for complete honesty in any application for immigration benefits. Being anything less than completely honest in an immigration application always makes a past problem even worse than it may already be.

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Here is the April, 2008 Visa Bulletin just released by the State Department.

The good news is that there was some progress in the employment-based 2nd preference catagory for Indian nationals which went from unavailable last month to being available this month for those with a priority date prior to December 1, 2003. Section D of the Bulletin discusses the forward movement in this particular catagory.

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Posted In: Employment Based Immigration

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On March 13, 2008, the Executive Office for Immigration Review (EOIR) announced that the effective date of the new “Immigration Court Practice Manual” was being set at July 1, 2008.

The Practice Manual was published on February 28, 2008 and the idea is that it will provide uniform, standard procedures for everyone who is presenting a case before the many Immigration Courts throughout the United States. As of July 1, 2008, local operating procedures for the many Immigration Courts will no longer be used.

The Immigration Court Practice Manual can be found here.

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Citizens of Estonia and Latvia are on their way to being able to travel visa-free to the United States. On March 12, 2008, each country signed a memorandum of understanding with the U.S. on visas and increased air security which will eventually lead to visa-free travel for their citizens to the U.S. under the Visa Waiver Program.

The bilateral visa waiver deals are controversial with European Union officials based in Brussels who want to be the sole negotiators in convincing the U.S. to extend the Visa Waiver Program to all 27 EU member nations. They are not happy with bilateral deals like these. But Estonia and Latvia are only doing what the Czech Republic did earlier this year and what Hungary is expected to do later this year. They are among the 12 countries that have joined the EU since 2004 (all former communist nations in eastern Europe) that are frustrated with Brussels’ slow progress on the issue of visa waivers.

The bottom line is that by the end of this year citizens of Estonia and Latvia should no longer need visas to travel to the United States.

The Visa Waiver Program, which was established in 1986, allows nationals of certain countries to travel to the United States for tourism or business for stays of 90 days or less without obtaining a visa. The whole point is to eliminate unnecessary barriers/red tape to travel and encourage tourism. Countries qualify for the program if they do things such as provide reciprocal visa-free travel for U.S. citizens, issue secure machine-readable passports and have a very low rate of nationals who are denied admission to the U.S. or who otherwise violate the terms of their admission to the U.S.

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Posted In: News , Passports, Travel Documents

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The U.S. Customs and Border Protection has just issued a useful reminder for Spring Breakers (and all other travelers of course) about making sure they have proper documents when leaving and when returning to the U.S. following a spring break trip to Canada, Mexico, Bermuda or the Caribbean.

All travelers, including U.S. and Canadian citizens, must now present proof of citizenship and identity to enter the United States at land and sea ports of entry. Your word is no longer good enough. The proof can include a passport, trusted traveler program card like NEXUS or SENTRI, or a birth certificate with a driver’s license. Travelers 18 years and younger can present just a birth certificate.

If you’re traveling by air, a passport is required for all travelers entering and departing the United States (actually that’s been a requirement since January, 2007).

The CBP is also reminding U.S. lawful permanent residents that their I-551 form (their green card) is acceptable for land and sea travel into the U.S.

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On March 11, 2008, the Department of State released its Country Reports for 2007 on Human Rights Practices for 196 different nations.

The 196 reports consist of summaries of human rights practices in countries organized by region: Africa, East Asia and the Pacific, Europe and Eurasia, the Near East and North Africa, South and Central Asia, and the Western Hemisphere.

For the many Indonesians in the Philadelphia Pennsylvania region who are seeking political asylum, here is the specific Human Rights Report on Indonesia. It's amazing to me how difficult it still is for Indonesians to be granted asylum when the 2007 Report begins:

"The government generally respected the human rights of its citizens; however, weak legal institutions, limited resources, and insufficient political will prevented accountability for serious abuses that occurred in the past. Problems during the year included: killings by security forces; vigilantism; harsh prison conditions; impunity for prison authorities; arbitrary detentions; corruption in the judicial system; some limitations on free speech and on peaceful assembly; interference with freedom of religion, sometimes with the complicity of local officials; intimidation of human rights groups by security forces; serious instances of violence and sexual abuse against women and children; trafficking in persons; forced labor; and failure to enforce labor standards and worker rights."

Here is the text of Secretary of State Condoleezza Rice's statement on all the Reports.

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The USCIS has released information on what companies were issued H-1B visas in 2007. The top H-1B visa recipient at 4,559 was Infosys and number 2 was Wipro at 2,567—both Indian outsourcing companies.

The next eight of the top ten, in order were Satyam Computer (1,396), Cognizant Technology (962), Microsoft (959), Tata Consulting (797), Patni Computer (477), UST Global (416), i-flex Solutions (374) and finally Intel (369).

Unfortunately, critics of the H-1B system are using the fact that Microsoft and Intel are the only two traditional U.S. tech companies in the top ten as evidence of the fact that the system is not working as it was intended. Both Senators Charles Grassley (R-Iowa), who says the numbers “should send a red flag to every lawmaker”, and Richard Durbin (D-Ill) will be proposing restrictions in the next several months including a requirement that a company recruit for a U.S. worker before applying for an H-1B for a foreign worker. In the H-1B program, that kind of recruitment is not presently required.

The real issue, however, is the fact that the annual cap on H-1B visas is too low and U.S. companies are becoming less competitive in the global economy because of it. Bill Gates regularly testifies before Congress that the cap should be removed altogether so that companies like Microsoft can attract the best and the brightest from around the world (especially since they are often being educated in the U.S. in the first place). As Gates points out, what sense does it make to educate a foreign student in the U.S. and then tell him or her that they are not welcome to stay here to use their education and talents here. Here's a You Tube video of Gates speaking before students at Waterloo University on the need for a free flow of talent and why the H1-B cap should be lifted.

But with the economy faltering, with news that the U.S. jobless rate is climbing and now with news that H-1B visas are, in the view of many, not going where they were intended to go, no one should be surprised to see restrictions in the program in the near future.

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The USCIS has issued revised instructions for Form I-131, Application for Travel Document. Applicants for re-entry permits and refugee travel documents will, effective March 5, 2008, be required to provide biometrics (fingerprints and photographs) at a USCIS Application Support Center. Here are the new instructions and here is the new Form I-131.

The USCIS will notify applicants of their appointment after the I-131 application is filed.

The practical effect of the change will be that applicants will need to plan well in advance of their travel date so that they have enough time in between the filing of the I-131 and the biometrics interview.

The new instructions also provide guidance on how to request expedited processing when necessary--submitting pre-paid express mailers with the I-131 for USCIS to send the applicant his or her receipt and ASC appointment notice, and the completed Re-entry Permit or Refugee Travel Document when and if approved.

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In the space of about one week, word comes from ICE (U.S. Immigration and Customs Enforcement) that big sentences were handed down in Federal Court in Florida in the Rosenbaum-Cunningham International (RCI) immigration scam and that big indictments were returned against five current managers in a New York case involving Pallet Management Division of IFCO Systems North America.

Work place raids, in which unauthorized unskilled workers are arrested, detained and then placed in removal proceedings often make headlines. However, the RCI and IFCO matters should be reminders to business executives and managers that if they break immigration laws, they are going to get hammered.

In the RCI matter, the company’s former president, a former vice-president and the former controller (who all previously entered guilty pleas on harboring illegal aliens and conspiracy to defraud the U.S. charges) were sentenced on March 3 to 120 months, 51 months and 30 months respectively. All three were also held to be jointly and severally liable for evaded federal taxes and were each ordered to pay well over $15 million. They had all previously been ordered to turn over bank accounts, life insurance policies, etc.

Is there any advantage that an executive thinks his company might be getting by hiring unauthorized workers that is worth risking incarceration and penalties like that?

In the IFCO matter, the managers have been charged with Conspiracy to Harbor Illegal Aliens, to Encourage and Induce Illegal Aliens, and to Transport Illegal Aliens. The job titles of the defendants are Vice President for New Market Development, New Market Development Manager, Operations Manager for New Market Development and Human Resources Manager. The investigation began in February 2005, when an employee at an IFCO plant called ICE to report that Hispanic workers were ripping up W-2 forms; the employee asked a manager about it and he was told that they were doing it because they were illegal aliens, had fake social security cards and didn’t intend to file their taxes.

Arrests soon followed and nearly 1,200 workers at IFCO’s 40 nationwide plants were detained. Seven IFCO managers later pled guilty to felony and misdemeanor charges and they are awaiting sentencing.

The newly announced charges carry a ten-year maximum term of imprisonment (although the maximum on the aiding and abetting charge is five years) and all the counts have a maximum potential fine of $250,000.

Executive and managers are clearly on notice that ICE is serious about enforcing immigration laws and not just against the individual unauthorized workers. Companies need to comply with I-9 regulations and if there is any thought that maybe a company has been a little lax with the I-9 forms, the company should get a good immigration attorney to come in and do a private I-9 audit and to train your HR people on I-9 requirements.

ICE is not fooling around.

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Posted In: Employment Based Immigration , News

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