Dreamers

Certain DACA beneficiaries may be eligible for H-1B status

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With the president’s recent announcement that DACA (Deferred Action for Childhood Arrivals) will soon end, beneficiaries of this program (“Dreamers”) are justifiably concerned.  We certainly still hope that Congress will provide the long-overdue path to immigration status that these wonderful young people deserve.  In the meantime, we would like to make a certain subset of Dreamers aware of another path they may be able to take.

H-1B status could be available to Dreamers who have at least a bachelor’s degree, and also have a job offer (or currently have a job) that requires their particular degree.  The reason that most of the “older” Dreamers have not been eligible for this status is because, by operation of law, anyone who was older than 18-1/2 when they were granted DACA, had more than six months of unlawful presence in the United States.

The good news for younger Dreamers is that there is a difference between unlawful presence and unauthorized presence.  Every single Dreamer had unauthorized presence.  That is, individuals who were documented on June 15, 2012, were not eligible for DACA.  But those who were under 18 did not have unlawful presence, because unlawful presence does not start to accrue until one’s 18th birthday.  Building on this, anyone who was granted DACA before they were 18-1/2, had less than 6 months of unlawful presence, unless they have had gaps in their DACA over the years, may be eligible for H-1B status.

You may be eligible for H-1B status if:

  • you have less than 6 months unlawful presence;
  • you have a bachelor’s degree; and
  • you have an appropriate job offer

However, there is an important caveat that all potential DACA H-1B applicants need to be aware of:  they will not be able to “change status,” a term of art that means the individuals gets H-1B status without leaving the United States.  That is because, in order to “change status,” you must have status.  Instead, these individuals will have to leave the United States and get an H-1B visa at the US consulate in their country of birth, and then return using the visa.

An example would be Alicia, a Mexican citizen, whose history and potential for H-1B status is detailed below:

Date Event Status
05/15/1984 Date of birth Mexican citizen
04/20/2002 Entered United States illegally (was not admitted/inspected) Mexican citizen

Minor whose presence is unauthorized but not accruing unlawful presence

05/15/2012 Turned 18 Mexican citizen

Begins accruing unlawful presence

07/15/2012 Applied for DACA Mexican citizen

Continues to be unlawfully present

10/15/2012 DACA application approved Mexican citizen

DACA recipient – lawful presence begins (total accrued unlawful presence: 5 months)

05/20/2016 Awarded B.Sc. in Electrical Engineering Mexican citizen

DACA recipient – lawful presence continues

06/01/2016 Working as Software Engineer with DACA employment authorization Mexican citizen

DACA recipient – lawful presence continues

10/15/2016 Most recent DACA renewal approved Mexican citizen

DACA recipient – lawful presence continues through 10/14/2018

04/01/2018 Employer submits H-1B application Mexican citizen

DACA recipient – lawful presence continues through 10/14/2018

08/01/2018 H-1B application approved Mexican citizen

DACA recipient – lawful presence continues through 10/14/2018

9/20/2018 H-1B visa approved in Ciudad Juarez Mexican citizen

H-1B visa beneficiary

10/01/2018 Return to US with H-1B visa Mexican citizen

H-1B nonimmigrant

We hope that this post will help some Dreamers proceed further from their current status – it is important to note that once in H-1B status, there is often a path to lawful permanent residence and eventual US citizenship. If you believe that, like Alicia, you may be able to pursue H-1B status, we invite you to schedule a consultation with our firm, so that one of our attorneys can assess your eligibility for this benefit. We offer consultations via teleconference or Skype for prospective clients who are outside Chicago or Northern Virginia.

Please be aware that this post does not constitute legal advice.  The unique circumstances of each case must be examined individually before proceeding with any immigration application.

RAISE Act harms everyone, particularly in sponsoring senators’ states

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Brown rot

Citizens of the United States, how do you like the Chilean peaches in your local grocery store?

Years ago, I lived in a suburb of Atlanta, and when I think of Georgia, I think of peaches, which are only a small part of the state’s $72 billion agribusiness industry.  Back in 2011, undocumented  farmworkers were fleeing the state due to increased government raids.  Bryan Tolar, president of the Georgia Agribusiness Council, noted that by April of that year, Georgia farms had already lost $300 million as unharvested crops rotted in the fields.

Georgia’s Governor at that time, Nathan Deal, created a program to use probationers to replace the immigrant workers.  But the program fizzled out almost before it started, as the new workers, unable to complete the backbreaking work in the hot sun, quickly walked off the job.

As current immigration law stands, it is almost impossible to fill farmworker jobs legally.  Allowing new, documented low-skilled workers seems like just the thing to solve the problem.

On August 2, 2017 Georgia Senator David Perdue stood proudly by the president’s side to unveil the RAISE Act that Senator Purdue, along with Senator Tom Cotton of Arkansas (whose state has a $16 billion farming industry), are introducing in the Senate.  The Act proposes a merit-based immigration system, so that highly educated immigrants who already speak English will be favored over those with lower skills and limited English.

Let’s set aside the fact that this proposal turns America’s founding principles on their head.  Instead, let’s look at the reasoning behind the proposal.

Senator Perdue remarked that “Our current system does not work.  It keeps America from being competitive, and it does not meet the needs of our economy today.”  I would agree, as would anyone who drives through Georgia’s and Arkansas’ devastated farmlands and sees the ripple effect their demise has had on the surrounding communities.  Yet Senator Perdue continued his remarks to state that “If we’re going to continue as the innovator in the world and the leader economically, it’s imperative that our immigration system focus on highly skilled, permanent workers who can add value to our economy and ultimately achieve their own version of the American Dream.”

It is interesting to note that the president and senators specifically indicated that they wish to emulate the merits systems used in Australia and Canada.  They did not point to any specific innovations coming from these two countries that demonstrate their world leadership in this area.  They also failed to mention the thousands of small businesses that employ Americans, started by immigrants who arrived with little or no English language skills, or those immigrants’ children (or grandchildren, such as the current president).  They similarly forgot to mention new Americans such as Sergey Brin, co-founder of Google, who fled the Soviet Union as a six-year-old child, son of parents with limited English skills, or note that Google now employs hundreds of thousands in the United States and around the world.

The RAISE Act?  I think it stands for Raise American Imports; Suspend Exports.

 

Good news for labor cert applicants

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GUESS what?

The Board of Alien Labor Certification Appeals has published a long-overdue decision in In the Matter of GUESS?, Inc., 2015-PER-00504, clarifying once again to the Department of Labor that it must adjudicate labor certification applications (PERM’s) through the rule of law, rather than as a shell game with constantly shifting rules.  As I will explain below, the infamous “Section K denials” are a thing of the past.

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PERM is a process through which a lawfully employed immigrant’s employer demonstrates to DOL that despite following carefully choreographed recruiting procedures defined by DOL regulations, the employer has not been able to find a US worker to fill the immigrant’s position.  DOL then signs off, or “certifies” the application, and the employee can move on to file a final application for permanent residence with US Citizenship and Immigration Services.  The DOL process takes no less than eighteen months, and the application must be perfect and complete.  A typographical error, such as an incorrect date for a newspaper advertisement, is often fatal to the application.  There is no room in the regulations for the employer to correct such a mistake, and the parties will end up having to start over again.

Immigration attorneys have learned to proofread the application forms over and over to avoid this fate.  Nevertheless, DOL Certifying Officers over the years have often fabricated reasons to deny applications, with no regard to the applicable regulations.  In particular, over the past four years or so, many intending immigrants and their employers have been blindsided by Certifying Officers who have issued denials that those in the immigration community have come to call “Section K Denials.”

In GUESS?, the employer carefully indicated in the appropriate places on the application form that the position of Senior Financial Analyst, which Jihyun Lee was to fill, had certain education and experience requirements, and that the employee met those requirements.  As required, the employer also indicated in the appropriate place (Section H.14) that the position required a CPA license.  The application form did not ask, and the employer did not indicate, whether the employee was a licensed CPA.  In fact, there is no regulation requiring that the employer provide this information.  Yet DOL denied the application because the employer had not followed a particular FAQ, buried among dozens of pages of FAQ’s, that listed a workaround; a particular place on the form (Section K) where the employer should indicate that the employee was a licensed CPA, and thus qualified for the position.

Unfortunately, the DOL Certifying Officer had made the assumption that DOL was entitled to regulate by FAQ, rather than go through the “notice and comment” period required for new substantive regulations.  But finally, on June 28, 2017, after a three year wait, BALCA reminded DOL that it could not just make up the rules as it went along, but instead must follow the existing regulations unless and until they are changed.

Over the next weeks or months we will find out whether DOL will go back and reverse its denials in the hundreds, or perhaps thousands of cases that were wrongly decided this way.  It is very likely that some of the employees were forced to return to their home country when they learned that their employer could not sponsor them for permanent residence because of DOL’s improper adjudicatory practice, leaving their employers without the benefit of their services.  Employers and employees who succumbed to DOL’s shell game should follow DOL’s response to GUESS? to see if the agency agrees to do the right thing.

Hidden Minefields in National Interest Waiver (EB-2) Applications

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This firm has learned of a recent trend among National Interest Waiver (NIW) applicants, some of whom have taken overly aggressive steps during the application process that may be harmful, and in some cases fatal, to their US immigration futures.

Many people within the immigrant community are aware of the recent changes in National Interest Waiver adjudication following the Dhanasar decision. This new Administrative Appeals Office decision appears to have loosened the adjudication standards for a certain subset of NIW applicants, but definitely not for all. (Check out our post providing our take on Dhanasar). Many applicants are rushing to submit NIW application packages, including final applications for permanent residence. This action, which seems like a great idea, may actually harm the applicant’s immigration future. This is particularly true for applicants who submit these applications toward the end of their degree programs, before they are employed.

Note that this article does not constitute legal advice, but is rather our firm’s reaction to the alarming trend we have observed. The information provided here does not apply to Chinese and Indian applicants; the large number of applicants from these two countries subjects them to certain backlogs that make the steps described below impossible.

When a person submits an NIW Petition for Immigrant Worker (Form I-140), the person has the option of  including an Application to Register Permanent Residence or Adjust Status (Form I-485)  package concurrently with the I-140 application package. The I-485 package almost always includes an application for employment authorization document, or EAD (Form I-765) as well as an application for travel document (Form I-131).

These applicants may receive the EAD within a reasonable period of time, but are no longer guaranteed to receive it within 90 days, as was the case under a regulation that expired in January, 2017. If the applicant moves after he or she graduates, there is a very good chance that the EAD will get lost in the mail. USCIS does not have a good system for address changes.

In some cases, an applicant whose EAD is lost in the mail may need to start the application process all over again.  But that is not the biggest financial risk. It is vital for applicants to understand that if the I-140 is denied, then the I-485 will be denied, and then the EAD will immediately become void. Some unethical attorneys may “sell these applicants a bill of goods” so that the attorney can charge an additional fee for the I-485 package. (Check out our post on this subject). Besides these additional attorney fees, the applicant will have spent $1,225 for the government filing fee, perhaps $2,450 if they include a spouse, and even more if they have children.

If the applicant’s history of accomplishments makes the NIW a “slam dunk” then the advice to file the I-140 and I-485 concurrently may not be bad advice. But for people who have just gotten their PhD, or who have not yet graduated, there are not a lot of slam dunks. Applicants, no matter how accomplished, often need to look beyond their own assessment of their achievements, and get an unbiased opinion from an attorney whom they trust.

Surprisingly, the financial risk noted above is the tip of the iceberg. There is another, more menacing concern. The applicant who takes this course towards the end of his or her education will likely skip the step of applying for Optional Practical Training (OPT, which gives graduates of US universities the opportunity to work in the United States for a year, and in some cases three years, after graduation). After all, the applicant is getting an EAD through the NIW-based I-485, so why spend another $495 on an OPT-based EAD? In fact, USCIS would likely deny the OPT-based EAD because people are not allowed to have more than one EAD at a time (USCIS fears that a person might sell a second EAD to an unauthorized person).

The employer may rely on the I-485-based EAD, and not apply for H-1B status for the person as soon as possible. But meanwhile, if the I-140 is denied, the I-485 will be denied, and the EAD automatically becomes void. The person’s immigration security in the United States immediately falls apart like a house of cards. The person suddenly has NO basis to remain in the US.

Another scenario is that the employer applies for the H-1B while the employee is working using the I-485-based EAD (as opposed to an OPT-based EAD).  In this case, the H-1B will likely be approved for consular processing, as opposed to “change of status.” That is because the person is no longer in F-1 (student) status, as they would be if they had an OPT-based EAD. They are an “adjustment applicant” because of their pending I-485, but this is not a status that allows a “change” to H-1B.

So then, when everything is denied and the EAD becomes void, the person has to drop what they’re doing and leave the country to go get an H-1B visa and return in that status.

For these reasons, we rarely encourage our clients to submit the I-485 concurrently with the I-140, simply because it puts a lot of money at risk for them, even when they are safely in H-1B or any other status. In some cases, there may be reasons for taking this risk, but it is vital that the client understand and assess the risks fully before taking this step.

This firm provides consultations for NIW’s, as well as EB-1 permanent residence applications, at no charge. We make a point of giving potential clients an honest assessment of their chances of success, and always talk through the timing of the I-485 filing as a part of the consultation. We welcome the opportunity to explain the issues described in this blog post more fully.

5 Signs You Have the Wrong Immigration Lawyer

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In these uncertain political times, it is especially important that you hire an immigration lawyer that you can trust to do her job correctly. Many prospective clients focus solely on a firm’s record of success on similar cases. However, clients should also consider whether an attorney’s business practices restrict the client’s ability to hold their attorney accountable in the event that she fails to perform her contractual or ethical obligations to the client. If you are not adequately informed of your rights as a client, or sign an agreement that effectively prevents you from ensuring that your attorney complies with her ethical obligations, then you have probably hired an attorney that is more interested in protecting herself than you. Below are some signs that your attorney may be playing fast and loose with her ethical obligations.

1. You had a brief and uninformative legal consultation before signing an engagement agreement for substantive services.

An attorney has an ethical obligation to “reasonably consult with the client about the means by which the client’s objectives are to be accomplished” and to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Model Rule of Professional Conduct 1.4; Illinois Rule of Professional Conduct 1.4.

Attorneys also have a duty to “provide competent representation to a client.” Model Rule of Professional Conduct 1.1Comment 5 to Illinois Rule of Professional Conduct 1.1 explains that the “[c]ompetent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners.”

At an initial legal consultation, an attorney is supposed to gather sufficient facts from you in order to determine if she is able to help you. Sometimes this determination requires a preliminary factual investigation. For example, many immigration firms perform FOIA requests and/or FBI background checks as a preliminary step in a variety of cases. However, the decision to engage the firm to perform these records searches requires your informed consent. To this end, the attorney should explain to you why the proposed records search is a necessary step in accomplishing your objectives, and whether there are any possible risks associated with it. The attorney should also discuss with you how certain search results could affect strategic recommendations and service offerings in your case. Lastly, the attorney should also explain her fees and clearly define the scope of representation for any offered service.

If you are looking to obtain an employment-based green card through an EB-1A (extraordinary ability) or EB-2 (NIW) petition, it is important that you first discuss with your attorney the logistics of your case after your I-140 petition is approved, as well as the possible consequences of a denial. Why pay an attorney to assist you in filing your I-140 if you will ultimately be unable to obtain your green card on the basis of the approved I-140? Below are some important strategic considerations that may affect your decision to pursue an I-140 petition in the first place:

  • estimated processing times for each step of the process
  • whether concurrent filing of the I-485 is possible and desirable in light of the financial risks
  • whether there are any inadmissibility issues that could potentially frustrate your ability to immigrate to the U.S.
  • whether you and/or your family members will be able to maintain legal status while your I-140 is pending
  • whether there are family members that will be applying for permanent residence on the basis of your approved I-140
  • whether you and/or your family members plan on applying for adjustment of status or undergoing consular processing

Many practitioners, including our firm, offer free CV evaluations for the above employment-based petitions. Do keep in mind, however, that CV evaluations are limited to determining eligibility for a given category of employment-based immigration. This is just one part of the immigration process. You should not have to wait until after your I-140 is approved to consider the other steps. If your attorney only discussed your I-140 eligibility with you and you are now deciding whether to sign an agreement for representation in connection with the I-140 petition, then you need to get answers to these questions firstRemember: you are the one that needs to make an informed decision!

 Also keep in mind that some attorneys limit the consultation time to one hour or less, while others don’t limit the consultation time at all. Make sure you ask about this before scheduling an initial consultation with an immigration attorney.

At Nancy M. Vizer, P.C., we take the necessary time to work through the facts of your case and make strategic recommendations based on your short- and long-term goals. Because we take our ethical obligations seriously, your consultation for EB-1 and NIW cases includes a discussion of the above listed preliminary considerations.

2. Your representation agreement says that every communication initiated by you and not requested by your attorney is excessive.

Attorneys have an ethical obligation to keep you “reasonably informed about the status of [your case.]” Model Rule of Professional Conduct 1.4; Illinois Rule of Professional Conduct 1.4.

Comment 4 to Illinois Rule of Professional Conduct 1.4 provides that “[a] lawyer’s regular communication with clients will minimize the occasions on which a client will need to request information concerning the representation. When a client makes a reasonable request for information, however, paragraph (a)(4) requires prompt compliance with the request, or if a prompt response is not feasible, that the lawyer, or a member of the lawyer’s staff, acknowledge receipt of the request and advise the client when a response may be expected. A lawyer should promptly respond to or acknowledge client communications.”

At Nancy M. Vizer, P.C., we do not discourage clients from making reasonable requests for information. We do not deem all communication initiated by you and not requested by us as excessive. We do not charge our clients hourly fees to touch base with them and discuss the status of their case if they happen to contact us before we contact them. We also make an effort to take clients’ calls during business hours rather than automatically forward all our calls to a voicemail.

3. You don’t have a specific attorney assigned to your case.

All attorneys have a personal duty to abide by the Rules of Professional Conduct. See Illinois Rule of Professional Conduct Rule 5.2(a).

When no specific attorney is assigned to your case, it makes it easier for attorneys who work on your case to escape liability for failing to fulfill their ethical obligations to you. A firm’s assurances that the quality of service will not suffer because you have no specific attorney assigned to your case means nothing if your attorney has undermined your ability to enforce that assurance. Even if no attorney is assigned to your case, make sure that you keep a record of your communications with your firm, and that you get a name for the person behind every single interaction. In any event, Rule 5.1(c) lists two ways in which a lawyer can be held responsible for another lawyer’s violation of the Rules of Professional Conduct:

(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

At Nancy M. Vizer, P.C. you will always have at least one attorney as a point of contact on your case.

4. Your representation agreement contains a mediation or arbitration clause.  

If your contract limits dispute resolution in this manner, you should make sure that (1) the attorney fully apprises you of the advantages and disadvantages of binding arbitration and gives you enough information so that you can make an informed decision about this issue, and (2) the arbitration provision does not limit the liability to which the lawyer would otherwise be exposed under common or statutory law unless you are independently represented in making the agreement.

While arbitration clauses related to attorney malpractice claims are generally enforceable in Illinois, the Illinois Rule of Professional Conduct 1.8(h)(1) states that a lawyer shall not “make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement.” Comment 14 to the rule provides the reasoning for this, noting that such an agreement is “likely to undermine competent and diligent representation.” Further, this comment notes that “many clients are unable to evaluate the desirability of making such an agreement before a dispute has arisen.” The comment also notes that the rule does not “prohibit a lawyer from entering into an agreement with the client to arbitrate legal malpractice claims, provided such agreements are enforceable and the client is fully informed of the scope and effect of the agreement.”

At Nancy M. Vizer, P.C., we do not use mediation or arbitration clauses in our engagement agreements.

5. Your representation agreement prohibits you from disclosing any information relating to the representation.

The concepts of attorney work product and intellectual property have sometimes been employed to prohibit clients from disclosing any and all information relating to their representation, in what amounts to confidentiality clauses. Some practitioners have gone as far as defining attorney communications and legal advice as attorney work product. This is an unethical practice that may render the agreement unconscionable and therefore unenforceable. The practical effect of such an expansive confidentiality clause is that clients will be terrified to share any information about their representation with anyone, including other counsel, should a dispute arise. In fact, you should be wary of entering a representation agreement with an attorney who discourages  you from seeking independent legal advice before entering said agreement. As a client, you have the right to seek a second professional opinion, to terminate representation, to sue for malpractice, etc. Attorneys obviously dislike these situations and good attorneys will try their hardest to avoid them. But they still have an obligation to apprise you of your rights as a client!

The doctrine of attorney work product, like that of attorney-client privilege, was created to protect the client, not the attorneyComment 3 of Illinois Rule of Professional Conduct 1.6 discusses attorney work product as follows:

The principle of client-lawyer confidentiality is given effect by related bodies of law: the attorney-client privilege, the work product doctrine and the rule of confidentiality established in professional ethics. The attorney-client privilege and work product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law.

Generally, a client has the ability to disclose or authorize disclosure of confidential information concerning his or her representation. The latter is normally accomplished by signing a release authorizing disclosure to a specified individual. Unfortunately, some practitioners employ clauses prohibiting clients from making or authorizing such disclosures in order to silence clients and discourage them from seeking representation of other counsel should a dispute arise. If you signed a representation agreement containing this type of clause, and are now in a dispute with your attorney, do seek the advice of a contract or malpractice attorney. Remember that all legal consultations are confidential.

At Nancy M. Vizer, P.C. we believe that the quality of our services and their value to our clients depends on the personalized approach we give to each individual case. We don’t use cookie-cutter approaches because we refuse to neglect our ethical duties as legal advisors to our clients. Successful attorney-client relationships are not predicated on mass-produced applications or DIY kits sold to consumers on the condition that they waive their most important rights, the very rights that the legal profession was designed to protect.

 

New Standard of Review for National Interest Waiver Petitions: AAO Replaces a Dinosaur with Dhanasar

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On December 27, 2016, the United States Citizenship and Immigration Services’ Administrative Appeals Office (AAO) finally revisited and vacated Matter of New York State Dep’t of Transp., 22 I&N Dec. 215, a decision that has perplexed immigration practitioners and their clients since it was written in 1998. As the AAO acknowledges in the recently written Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), the reasoning used in NYSDOT was unclear in many respects.

A reading of Dhanasar makes it impossible to understand why the USCIS adjudicating officer denied the application at the outset. The petitioner has two complementary masters degrees, as well as a PhD, which he uses to design and develop propulsion systems for potential use in military and civilian technologies such as nano-satellites, rocket-propelled ballistic missiles, and single-stage-to-orbit vehicles. The work is funded by NASA and a unit within the Department of Defense. We can only surmise that the adjudicating officer’s reliance on the confusing standards articulated in NYSDOT led to the AAO’s conclusion that relying on this outdated decision was no longer appropriate.

Like any appellate decision, Dhanasar may generate its own confusion, but this new precedent must nevertheless be used as the new guideline for presenting National Interest Waiver (NIW) petitions to USCIS.

National Interest Waiver Petitions

National Interest Waiver petitions are employment-based petitions filed under Section 203(b)(2)(B)(i) of the Immigration and Nationality Act. Section 203(b)(2)(A) provides a route to permanent residence for “qualified immigrants who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States.” In general, such immigrants must demonstrate that they have a permanent full-time job offer from a qualified employer, and that there are no available minimally qualified US workers (the “labor certification” or “PERM” process). However, under 203(b)(2)(B)(i) immigrants who can demonstrate that their work is in the national interest can waive the cumbersome process required to demonstrate an appropriate job offer and the unavailibility of US workers.

In many instances, the NIW is the only route to permanent residence available to particular immigrants. For example, post doctoral researchers often have a series of term appointments at numerous universities, so they cannot demonstrate a permanent offer of employment, even when their work is of obvious benefit to the United States. At Nancy M. Vizer, P.C., we have worked with biochemists seeking cures for cancer, diabetes and other life threatening diseases, as well as mechanical engineers who design robots useful to military units searching for land mines or other dangers, and an earth scientist seeking methods of predicting and perhaps preventing earthquakes, among many other successful clients.

Dhanasar‘s new analytical framework

Under Dhanasar, the AAO articulates three prongs that petitioners must demonstrate by a preponderance of the evidence: (1) that the foreign national’s proposed endeavor has both substantial merit and national importance; (2) that the foreign national is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. I will discuss each prong separately below.

1. The proposed endeavor has both substantial merit and national importance

This prong has two important differences from NYSDOT, which required “substantial intrinsic merit” and “nationwide benefits.” The AAO in Dhanasar notes that the word “intrinsic” adds little to the term “substantial merit,” but instead generates an additional unquanitified subjective standard. Our firm hopes that the change from “nationwide benefits” to “national importance” will broaden the scope of qualified applicants. In NYSDOT, although the petitioner’s work was local to New York State, the AAO nevertheless found that his work had “nationwide benefits” because New York is an important hub in the national transportation system. The new standard acknowledges that work benefitting only a particular state or region may nevertheless have national importance, and qualify under this prong.

About ten years ago, USCIS denied a case where the Petitioner had developed an anti-smoking program for teenagers that was used in a particular region of the country. Although the program was being replicated in other states, USCIS nevertheless found that the work did not have “nationwide benefits,” and thus the Petitioner did not qualify for a National Interest Waiver. Perhaps under this newly defined prong, the same Petitioner would be able to show that her work is of “national importance,” and satisfy this prong.

2. The foreign national is well positioned to advance the proposed endeavor

The AAO indicates that one of the reasons for this prong is its potential to assist self-employed entrepreneurs, who by definition will not have qualifying “job offers,” to be eligible for a National Interest Waiver. Our firm is concerned that the prong will have the opposite effect. In our experience, many employers are hesitant to hire immigrants, and investors are hesitant to fund their entrepreneurial efforts, simply because of the tenuous nature of the immigrants’ employment eligibility. An entrepreneur will not be “well positioned to advance the endeavor” without funding. Yet the risk of investing in a business, when the “brains” of the business may have a petition denied and be required to leave the country, may be daunting. By the same token, a pharmaceutical company may be anxious to hire the cancer researcher currently working at a university for a fixed term. Yet a different set of immigration regulations often make it impossible for the pharmaceutical company to hire the immigrant until her permanent residence has been approved.

Although the new standard does not require the Petitioner to show success in their proposed endeavor, they must show progress towards the proposed endeavor, as well as, in some instances, “the interest of potential customers, users, investors, or other relevant entities or individuals.” One wonders how entrepreneurs would be able to show customer interest in a yet-to-be-developed product. Thus, this regulation seems to have what may prove to be an insurmountable obstacle for many potential entrepreneurial Petitioners.

On the other hand, researchers whose work has been well funded, either through the researcher’s own institution or by some outside agency, and whose supervisors indicate an intent to continue employing the researcher, would presumably be “well positioned to advance the proposed endeavor.”

3. On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification

This is a kinder, gentler standard than the harsh requirements of NYSDOT, which almost required Petitioners to show the hypothetical labor pool that would be available to fill the Petitioner’s position, and show that the Petitioner is more qualified than this hypothetical pool. The AAO seems to indicate that a mix of specialized skills, which are almost impossible to list under the rigorous requirements of the burdensome labor certification process, will be an asset to Petitioners, as will such criteria as the number and quality of publications.

Conclusion

With the publication of Dhanasar, immigration attorneys and their clients are entering a new era of National Interest Waiver adjudication, which will likely benefit some classes of immigrants while disadvantaging others. Petitioners would be well advised to refer to the new analytical framework before submitting applications under these regulations.


 

Make sure to check out our other recent article: 5 Signs You Have the Wrong Immigration Lawyer

An Overview of Temporary Protected Status (TPS)

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Temporary Protection Status, or TPS, is a temporary status given to foreign nationals that are currently unable to return to their country safely due to the conditions of their country. Some of these conditions include:

  • Ongoing armed conflict, such as civil war
  • An environmental disaster, such as an earthquake or hurricane
  • An epidemic
  • Other extraordinary and temporary conditions

Those who are granted TPS are given the following benefits:

  • They cannot be removed from the United States except for serious crimes
  • They are able to receive an employment authorization document (EAD)
  • They may be granted travel authorization
  • They cannot be detained by the Department of Homeland Security based solely on their immigration status

However, TPS is only temporary, and does not lead to lawful permanent residence. But, it is sometimes possible to:

  • Apply for a nonimmigrant status, such as an employment-based visa
  • File for an adjustment of status to become a legal permanent resident if someone has submitted an immigrant petition on your behalf
  • Apply for any other immigration benefit or protection that you are eligible for

Who is eligible?

You are eligible if you:

  • Are from a country designated for TPS
  • You do not have a nationality, but last resided in a country designated for TPS
  • File for TPS during the open initial registration period
  • Have been continuously physically present and continuously residing in the United States since your country was last designated for TPS

What to file?

Along with your TPS application (Form I-821) and Employment Authorization application (Form I-765), you must submit the following:

  • Proof of identity to show that you are from a country designated for TPS
  • Date of entry evidence to demonstrate when you entered the United States
  • Continuously residing evidence to demonstrate that you have been living in the United States since the date specified for your country

Countries Currently Designated for TPS:

  • El Salvador
  • Guinea
  • Haiti
  • Honduras
  • Liberia
  • Nepal
  • Nicaragua
  • Sierra Leone
  • Somalia
  • Sudan
  • South Sudan
  • Syria
  • Yemen

These are some general guidelines and information concerning TPS summarized from USCIS. Our office has many years of experience representing those seeking TPS, so if you feel you may be eligible, feel free to contact us.

For further information about the application process and TPS designation and expiration dates, please visit the following USCIS page:

https://www.uscis.gov/humanitarian/temporary-protected-status

Changing Your Address with USCIS

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It is important to notify USCIS of any change of address within 10 days of moving. This way, USCIS is able to continue to send you correspondence and any other documents in connection to your case.

You are able to notify USCIS of a change in address by completing Form AR-11, which can be done online except when the following conditions apply:

  • You are a U.S. Citizen or Permanent Resident and have an approved relative petition
  • You are a U.S. Citizen or Permanent Resident and have financially sponsored someone who has immigrated
  • You have an appeal pending with the Board of Immigration Appeals (BIA)

When using the online form to complete your change of address, USCIS will ask for the following information:

  • Your receipt notice number
  • Your new address
  • Your former address
  • The names and personal information for the person(s) for whom you have filed
  • Your Alien number (if applicable)

If you have an approved relative petition, there are instructions on your relative’s approval notice that will tell you who to notify about the change of address and how to notify them.

If you have submitted Form I-864 and financially sponsored someone who became a permanent resident, you must notify USCIS of any change of address within 30 days of moving. You can do this by filing a Form I-865, which you can download from the USCIS website. You can also find the instructions to file this form on the USCIS webpage.

If you have been placed in immigration court proceedings or have an appeal pending with the Board of Immigration Appeals (BIA), you must notify the court or BIA within 5 days of moving. To do this, complete Form EOIR 33/IC for a case pending with the immigration court, or Form EOIR 33/BIA for a case pending with the BIA. These forms are available on the Department of Justice Website, www.justice.gov/eoir/formslist. Do keep in mind that you will still be required to file Form AR-11 separately.

If you are working with an attorney, you should always let your attorney know about any changes of address with as much anticipation as possible. Some attorneys will file the change of address for you as part of their service, so make sure to ask your attorney before you go ahead and file a change of address on your own.

Immigration Issues on the National Platform

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With the Democratic and Republican Platforms having recently passed and the elections coming up just around the corner, here are some of the main points concerning immigration from both of the parties.

On one hand, Democrats want to:

  • Reform the quota system for various immigrant groups
  • Repeal the 3- and 10-year bars, which prohibit applicants from returning to the U.S. if they were previously in the U.S. illegally
  • Improve the system and decrease the current backlogs
  • Keep the current Deferred Action for Childhood Arrivals
  • Implement the Deferred Action for Parents of Americans
  • Make DREAMers eligible for driver’s licenses and in-state college tuition
  • End raids and roundups of children and families in immigrant communities
  • Create faster paths to citizenship for veterans
  • Guarantee government-funded counsel for unaccompanied minors in immigration court

On the other, Republicans propose to:

  • Build a wall along the entire southern border of the U.S. – one sufficient enough to prohibit both vehicular and pedestrian traffic
  • Protect all ports of entry from illegal immigrants’ crossing
  • Implement the E-verify program nationwide
  • Create tougher penalties against immigrants who engage in identity theft, deal with fraudulent documents, or traffic human beings
  • Expedite deportations of criminal immigrants
  • Allow states to enact their own individual laws to prevent illegal immigrants from residing in said states
  • Bar refugee-seekers from countries with higher prevalence of terrorism from entering

These points were taken and summarized from the Democratic and Republican’s Platforms. To read the full platforms, please follow the links below:

Democratic Party:

https://www.demconvention.com/wp-content/uploads/2016/07/Democratic-Party-Platform-7.21.16-no-lines.pdf

Republican Party:

https://prod-static-ngop-pbl.s3.amazonaws.com/media/documents/DRAFT_12_FINAL[1]-ben_1468872234.pdf

Backlog of asylum cases at USCIS and the immigration courts

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Currently across the world, the number of people being displaced from their homes due to violence and other problems has increased greatly. Many of these people are fleeing to other countries seeking to escape from threats to their lives. The United States has received many asylum seekers in recent years. However, we lack the resources to deal with the high volume of refugees, which has created an enormous backlog at the United States Citizenship and Immigration Services (USCIS) Asylum Division and within the immigration courts.

A refugee or asylee is legally defined to be a person unable or unwilling to return to their country of origin because of persecution or a well-founded fear of persecution on account of race, religion, nationality, political opinion, or membership in a particular social group.

Human Rights First, a non-profit organization which helps coordinate legal representation to refugees in partnership with pro-bono attorneys, has published a report concerning the state of the immigration courts and USCIS in regards to these asylum cases, which make up approximately 20% of cases in the immigration courts. They found that at present, over 620,000 removal and asylum cases are pending in the immigration courts. Additionally, asylum seekers typically wait between three and six years for a resolution of their asylum claim – an exceedingly long time and which often detrimentally affects these potential asylees.

The systemic delays in both USCIS and the immigration courts have created a backlog; the number of cases that are backlogged at the Asylum Division at USCIS has more than quadrupled since 2013. That is, in 2013, there were 32,560 cases pending; that number has increased to 144,500 by March, 2016. This backlog is growing at a rate of approximately 20,000 cases every three months, and if nothing changes, USCIS is estimated to have over 200,000 pending cases by the end of 2016.

The delays are largely caused by an increase in credible and reasonable fear interviews, which are given to potential asylum applicants upon arrival at a US port of entry. In credible fear interviews (CFI), the USCIS officer determines if there is a “significant possibility” that the petitioner can establish an asylum or withholding of removal claim before a judge. In a reasonable fear interview (RFI), the officer determines whether there is a “reasonable possibility” of future persecution based on one of the five protected grounds under the refugee definition – the number of CFIs and RFIs have increased nine fold and seven fold, respectively, since 2009.

The average wait time for an initial asylum interview exceeds two years. Of the eight USCIS offices handling these cases, six are now scheduling interviews for applications filed over two years ago. This wait time is incredibly far behind the statutory requirement, which requires USCIS to conduct an initial interview within 45 days and have a complete initial adjudication within 180 days of the case being received.

Besides the CFIs and RFIs, another reason why the Asylum Division is so backlogged is because it lacks funding to hire a sufficient number of asylum officers necessary to adjudicate the cases in a timely manner. In order to completely eliminate the backlog, USCIS needs to increase its staff to 700 or 800 officers from its current size of 447.

The immigration courts also have a huge load of backlogged cases. In early 2016, the number of backlogged cases reached 480,815. If more judges are not hired, the backlog is predicted to reach 500,000 cases by the end of the 2016 fiscal year, and 1,000,000 cases by fiscal year 2022. The court is severely understaffed with a mere 254 judges, when 524 are needed to handle the large caseload. Because of this issue, delays can cause potential asylees to wait over six years in total for their cases to be adjudicated. It can take over two years for the initial interview with the USCIS Asylum Division. If USCIS denies the case, it then refers it to immigration court, where it can take more than another three and a half years, at best, to have the case heard. The problem feeds on itself, as many judges have retired due to the deteriorating working conditions, while not enough judges are being hired to cover this loss.

While these two divisions remain underfunded and understaffed, Congress has disproportionately increased the budget for immigration enforcement – the budget for enforcement agencies, such as Customs and Border Protection (CBP) and the Immigration and Customs Enforcement (ICE), has more than quadrupled, increasing from $4.5 billion in 2002 to $20.1 billion in 2016, whereas funding for the immigration court increased by a mere 74%. This has also contributed to the backlog – the US now has a greater capacity for apprehending and prosecuting immigrants, but this creates cases and without a proportionately increased budget for the systems handling these cases, the number of pending cases has skyrocketed.

At present, the number of people seeking asylum is at an all-time high. The chronic underfunding of USCIS and the immigration courts has caused the backlog to grow since 2008. Many refugees are fleeing from violence in Guatemala, Honduras, and El Salvador, and the volume of unaccompanied children and families has increased dramatically recently. This has exacerbated the backlog, as these refugees’ cases are given priority over other asylum seekers. While these cases are, in large part, meritorious (that is, approximately 90% of Central American asylum seekers who are lucky enough to be represented by an attorney are eventually granted asylum), the priority given to them has resulted in tens of thousands of cases being rescheduled for as late as November, 2019.

The impact these backlogs cause on the refugees can be highly detrimental. While potential asylees wait to be approved, their family members remain separated and in danger. Their families often are in hiding and face persecution, sometimes as a direct result of their loved one petitioning for asylum in the US. Furthermore, the long wait can harm the refugee’s mental health. The constant fear of not knowing what will happen, whether they will receive asylum, and their concerns about their family members’ safety, impedes many asylum seekers from being able to fully recover from their past trauma. Oftentimes, they struggle with worsened symptoms or develop new symptoms such as heightened stress and depression. In addition, many seekers have difficulties supporting themselves since they are not authorized to work for many months after first filing their asylum claims. They are also often unable to pursue an education since it is expensive – most forms of financial aid are not available to asylum seekers.

The long wait additionally has a negative impact on pro-bono legal representation. Almost 75% of pro-bono coordinators have said that the delays in the immigration courts play a significant role in their ability to take on a pro-bono case. However, access to legal representation is a substantial factor for the petitioning refugee, and can make the difference between deportation or relief.

Human Rights First proposed a few steps that could be taken in order to adjudicate these cases in a timely and fair manner, the main one being to increase funding for the Asylum Division at USCIS and the immigration courts.

In summary, if nothing changes from our current situation, the number of asylum cases will continue to exponentially increase and place stress on our resources. USCIS and the immigration courts will continue to be overly burdened and asylum seekers will have to wait for even longer periods to get their cases settled, which will harm their relationships and mental health. As Human Rights First explains, we are in a state of crisis, and this poor and unfair treatment of refugees needs to be rectified quickly.

All information in this post was obtained and summarized from the report published by Human Rights First. If you are interested in learning more about the backlogs in the USCIS Asylum Division and the immigration courts, please follow the link below to access the full report:
http://www.humanrightsfirst.org/sites/default/files/HRF-In-The-Balance.pdf