Philadelphia Immigration Lawyer Blog

I posted an earlier blog entry about the Global Entry program that allows for certain “low-risk” U.S. citizens and U.S. permanent residents a means to enter the U.S. in an expedited and automated way—without the usual airport delays. The program began on June 6 at John F. Kennedy International Airport in New York, George Bush Intercontinental Airport in Houston, and Washington Dulles International Airport. Here is the earlier posting.

On June 24, it was announced that U.S. Customs and Border Protection has signed a joint agreement with the government of the United Kingdom to develop a bilateral program that will eventually make low-risk frequent travelers from the UK to the U.S. also eligible to apply for the program as soon as later this year. And vice versa—low risk U.S. citizens and permanent residents of the U.S. traveling to the U.K. will have reciprocal benefits. The reciprocal agreement is the “International Expedited Traveler Initiative” and it will integrate CBP’s Global Entry program with the U.K. registered traveler program.

The reciprocal program will be similar to other “trusted traveler” programs such as NEXUS (which allows expedited processing into the U.S. and Canada at the land border and at Canadian pre-clearance airports) and SENTRI (which provides for dedicated processing at the U.S.-Mexico land border).

The agreement with the U.K. is also similar to an agreement that CBP signed with the government of the Netherlands on May 19 to integrate CBP’s Global Entry program with the Dutch “Privium” program.

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The USCIS announced on June 30, that the status of FOIA (Freedom of Information Act) requests can now be checked online at FOIA Request Status Check.

To check on the status of a FOIA request, you enter your assigned control number and receive an immediate response on the status of your request. You’ll be told whether the request is “pending” or “processed” and if its pending, you’ll be told where your requests stands in line with all other requests.

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On June 16, 2008, the U.S. Supreme Court issued an important immigration law in Dada v. Mukasey.

The case involved the issue of voluntary departure and the poor choice certain individuals must make between abiding by a voluntary departure order or filing a motion to reopen their removal case if they believe new facts justify a re-opening.

A person in removal proceedings who has asked for voluntary departure as an alternative form of relief from removal and who has been given the standard 30-60 days (under some circumstances, it can be up to 120 days) to voluntarily depart absolutely must depart the U.S. before the deadline or suffer serious consequences. If one fails to abide by their order of voluntary departure, the immigration court order automatically becomes an order of removal and there are civil and criminal penalties too.

On the other hand, one who has been granted voluntary departure might have a legitimate reason to ask that their case be re-opened if new facts develop or other evidence that could not be submitted earlier is now available. If they file the motion to re-open but leave the U.S. as required under their order of voluntary departure, the motion to re-open is abandoned. So, it’s a poor choice to have to make.

The Supreme Court recognized the tension between the motion to re-open provisions and the voluntary departure provisions and ruled that a person must be permitted to withdraw their request for voluntary departure as long as they do it before the deadline by which they were ordered to depart. In this way, the person can freely pursue their motion to re-open with suffering the consequences of failing to voluntarily depart.

However, it’s not a clear win for aliens because the Supreme Court specifically did NOT hold that the voluntary departure period was stayed while a motion to re-open is pending. So the dilemma really is still there—if one wants to file a motion to re-open without suffering the consequences of failing to voluntarily depart, one must give up voluntary departure and its benefits. If the motion to re-open is denied, the individual has lost out on voluntary departure and is subject to a removal order and its 10 year bar on re-entry.

The decision may actually have limited affect because the USCIS has proposed a regulation by which the filing of a motion to re-open would automatically terminate an order of voluntary departure, something the Court said “warrants respectful consideration.”

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It’s not news that will affect a great many people but it’s interesting nonetheless. AILA has reported that Terrence West, the U.S. Consul in Sana'a, Yemen, has provided some guidance on dealing with the issue of khat use-immigrant visa ineligibility.

Khat is a controlled substance in the U.S. (and many other countries) and if it is used more than a single time, then the visa applicant is going to be considered a drug addict or drug abuser and consequently he or she will be determined to be ineligible for an immigrant visa under INA Section 212(a)(1)(A)(iv).

The statement issued by Mr. West is as follows:

The determination of ineligibility under INA Section 212(a)(1)(A)(iv) is made based upon the results of the panel physician's exam. Due to the prevalence of khat use in Yemen, and after consultation with the CDC and State Department Visa Office, we have instructed our panel physicians to inquire about khat use during the immigrant visa medical exam. If the applicant admits to more than a single use of khat, they are classed as a drug addict or abuser. Under current CDC guidelines, more than a single use of khat or any other controlled substance must result in a finding of drug addiction or abuse. A single use of a controlled substance is considered experimentation and is not an ineligibility.

The procedure for showing non-use of khat is the same as for any other drug. The applicant must submit to periodic examinations by a panel physician over three years. If during the three year period there is no indication of khat use, the applicant's medical condition will be downgraded to a finding of remission, a Class B condition. Once a finding of remission is made, we can proceed with visa issuance once all other documentary qualifications have been met, such as a new medical exam or police certificate.

What makes the clarification interesting is that khat chewing in Yemen is, according to some experts, a way of life and a crucial part of Yemeni celebrations such as marriages. In fact, according to one observer, not using khat in Yemen results in social isolation. Its use is apparently common among men, women and even minors.

This isn’t a criticism of the consul’s policy which makes sense given the long term effects of khat use (especially when it’s use starts at an early age); it’s just an observation. Given its widespread us in Yemen, it must be very difficult to get an immigrant visa out of Yemen.

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On June 11, 2008, the USCIS announced that starting June 16, 2008, it will accept I-907 Premium Processing requests for I-140 applications (Immigrant Petition for Alien Worker) that are filed on behalf of alien workers who are near the end of their sixth year in H-1B nonimmigrant status.

Requests for premium processing will be accepted for I-140 petitions that are filed on behalf of those who are 1) currently in an H-1B nonimmigrant status; 2) whose sixth year in H-1B status will end within 60 days; 3) who are only eligible for a further extension of H-1B nonimmigrant status under section 104(c) of AC21* and 4) who are ineligible to extend their H-1B status under section 106(a) of AC21**.

*Section 104(c) of AC21 permits someone in H-1B status to extend their stay in increments of up to three years if they are the beneficiary of an approved Form I-140 and if an immigrant visa is not immediately available.

**Section 106(a) of AC21 permits someone in H-1B status to extend their stay in increments of up to one year, provided the Form I-140 petition or underlying labor certification has been pending for at least 365 days.

This change will really help those who otherwise would not be able to maintain status while waiting for normal processing times for their I-140 and where because an immigrant visa is not immediately available, they would not be able to file their I-485 application to adjust to permanent residency status when their I-140 is filed.

With premium processing, the USCIS will make a decision on the I-140 within 15 calendar-days from the time of filing the I-907 request for such premium processing.

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Posted In: Employment Based Immigration , H-1B , News

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On June 9, 2008, DHS Secretary Michael Chertoff announced that EAD authorization periods for those with pending adjustment of status applications will soon be granted for two year periods rather than the current one year period. He announced the change in a “State of Immigration” address he gave with Commerce Secretary Gutierrez in Washington.

The change is a very welcome one. By doubling the validity period for work authorization, it will mean less expense (the filing fee for the I-765 alone is $340.00) and hassle for those with pending adjustment applications. The change is supposed to start later this month.

Here is the quote from Secretary Chertoff’s remarks:

“. . . I'm also pleased to announce that we will be extending the validity period of the employment authorization documents that we issue to individuals who are waiting adjustment of status to lawful permit residency or in colloquial phrase, the green card.

Currently, adjustment applications are granted employment authorization documents with only a one year maximum validity. Beginning later this month, we'll start issuing these documents with a two-year validity period for aliens who are waiting adjustment of status if their application is expected to be pending for more than a year.

This, again, is eliminating a persistent source of frustration for workers who are here, who have a pending adjustment application but have to go and renew their employment documents every single year. It's going to cut the paperwork there. . .”

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On April 12, U.S. Customs and Border Protection began processing applications for the Global Entry pilot program. The program is intended to expedite processing for low-risk, frequent international travelers entering the United States.

The actual start of the program will be June 10 at JFK International in New York, George Bush Intercontinental Airport in Houston and Washington Dulles International Airport.

The Global Entry program will be available for U.S. citizens and lawful permanent residents who travel internationally on a frequent basis and who have no criminal record or customs or immigration offense.

Applications for enrollment in the Global Entry program are available through the Global On-Line Enrollment System (GOES) here Global Entry Program – Applications Are Available Now!

Basically, the process has three steps:

• An applicant must complete and submit an on-line application through GOES and pay a $100 fee. Pay.gov

• CBP officers will review the applicant’s information and conduct a background investigation.

• Finally, the applicant will undergo an interview with CBP officers at an Enrollment Center at JFK, Houston or Dulles Airports.

When the Global Entry passenger returns to the U.S. after international travel, he or she will be able to bypass the regular passport control line and go directly to the Global Entry kiosk. They will then insert their passport or U.S. permanent resident card into the document reader and be directed to electronically provide their fingerprints which will then be compared with biometric data already on file. Their digital photograph will also be taken.

The traveler will be prompted to answer several CBP declaration questions and then, once the process is successfully completed, he or she will get a transaction receipt which they will present to the CBP officer as they leave.

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Just a reminder that the USCIS has revised the I-765 Work Authorization form (the revision date is April 8, 2008) and the new form, which is filed by foreign nationals to obtain an EAD (Employment Authorization Document) must be used as of March 31, 2008. The new, revised I-765 include a change that is relevant to F-1 students seeking OPT-based employment authorization and the change is a result of the recently announced Rule that provides for a 17 month extension for certain OPT students.

Here are the new USCIS instructions for the revised I-765.

The prior eligibility code (c)(3)(i) will no longer be used on the I-765. It has been replaced with the following three codes: (c)(3)(A) for pre-completion OPT; (c)(3)(B) for post-completion OPT; and (c)(3)(C) for a 17-month extension for an F-1 student who has received a degree in Science, Technology, Engineering, or Mathematics (STEM), that appears on the STEM designated Degree Program List published on the SEVP website.

If you are filing as a STEM student requesting the 17-month extension of your currently authorized optional practical training under (c)(3)(C), you must state on the new I-765 your degree, you must now include the employers name and E-Verify id number and you must submit a copy of your degree that must indicate your major field of study.

The new Form I-765 also eliminates the option of filing due to replacement of an EAD that was never received, and for re-issuance of an EAD that was issued with incorrect information due to a USCIS error. If you require a new EADs for either of these two specific reasons, you must contact the specific office that processed the initial EAD or call the National Customer Service Center at 1-800-375-5283.

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Posted In: Employment Based Immigration , H-1B , News , Student Visas

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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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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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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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In follow up to my posting of Sunday regarding Kosovo, President Bush recognized Kosovo’s declaration of independence from Serbia and announced that the United States will establish full diplomatic relations with the new nation.

The announcement follows recognition of Kosovo by France, Britain, Italy, Germany and certain Muslim states, such as Afghanistan.

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On January 31, 2008, the 6th Circuit Court of Appeals granted an asylum applicant’s Petition for Review in an interesting case involving the use of Federal Express to send a Notice of Appeal to the Board of Immigration Appeals. The Notice of Appeal was sent on time but it wasn’t received by the Board of Immigration Appeals on time. The case is Vasquez Salazar v. Mukasey.

An Order of Removal was entered against an asylum applicant by an Immigration Judge on July 18, 2006. The applicant’s attorney sent a Notice of Appeal to the Board of Immigration Appeals on August 15, 2006 by Federal Express for guaranteed next day delivery (the 30 day filing deadline was August 17, 2006). Had the Fed Ex envelope in fact arrived on August 16, 2006, the appeal of course would have been timely filed. The problem was that the Fed Ex envelope inexplicably sat at the Fed Ex facility in Tennessee for 5 days and didn’t arrive at the BIA until August 23, 2006. The BIA then dismissed the appeal as being filed late.

The applicant filed a Motion for Reconsideration and he submitted the Federal Express airbill as evidence of timely mailing. But the BIA denied the Motion saying it didn’t observe the “mailbox rule” and that it had no authority to extend the appeal deadline beyond the 30 days as called for in the rules. The applicant then appealed to Federal Court.

In a common sense and proper decision, the 6th Circuit Court of Appeals ruled that the BIA had abused its discretion in simply denying the applicant’s motion without considering whether the Fed Ex problem may excuse the late filing . The Court sent the case back to the BIA, instructing it to consider whether the applicant’s circumstances were “extraordinary and unique” and would therefore justify extending the deadline.

The Court cited another of its recent decisions, Siby v. Gonzales, in which a Notice of Appeal was sent to the BIA via Federal Express but not actually received until 21 months later. In that case, too much time went by between mailing and delivery and importantly, during that entire 21 month period, neither the applicant nor the applicant’s attorney made any effort to contact either Federal Express or the BIA to find out about the status of his appeal. The Court held in Siby that the delay was not extraordinary or unique and that appeal was denied.

But in this case, the Court said, there was no such lengthy delay—really only a few days. So now the BIA has the case back so that it can consider whether the case presents the “extraordinary and unique” circumstances that justify the late filing.

The case highlights the need to track Federal Express mailings. I make it my practice to track a Fed Ex mailing not only later in the same day of mailing (so that I know that it was picked up) but also on the next day so that I know that it was delivered and signed for. Fed Ex tracking couldn’t be easier—just go to the Federal Express website, type in the number of the receipt and you get an immediate update on where the package is. In the unlikely event there is a problem (and I can only recall one instance in which I have ever had a Fed Ex delivery problem), you’ll know it right away and can take whatever action is necessary with both Fed Ex and with the Court.

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