2014 May

Jose’s boots: A man’s journey across the border

By | Clients | No Comments

One day, when I have the time, I plan to write a book about my immigration clients. There are so many compelling stories to tell. Each chapter will tell one of the stories. But now, while my time is more limited, I will summarize a few of the stories.

I first met Jose in 2001. There was a short period of time, about four months, when undocumented immigrants were able to get permanent residence if they had someone to sponsor them. Normally, with very few exceptions, there are no options for the undocumented to “get papers.” The end of Jose’s story is that, in 2011, more than ten years after he submitted his application, he finally became a permanent resident. The details, which combine a very slow bureaucracy with an inhumane quota system, are not important for this part of the story.

So now the middle part of the story. Jose came to the United States in 1999. His wife and three sons were starving, and he had no way to feed them. Meanwhile, there was a real estate boom in the United States, and builders were unable to find employees willing to do the necessary, very grueling outdoor work. Yet there was no legal mechanism to bring willing workers to the United States. The quota system was (and still is) such that it takes at least five or six years to bring a semi-skilled worker to the United States, from the time the employer starts the immigration application process.

This mismatch of supply and demand led Jose, and millions more like him, to risk illegal entry to the United States. It also led their employers to risk violating immigration laws by employing the undocumented. And parenthetically, it led millions of Americans to live in warm, comfortable homes built by undocumented workers, while complaining about all the “illegals taking American jobs.”

Jose, with tears in his eyes, one day told me the story of his trip to the United States. A cousin in Los Angeles had given him a number of tips, including how to find a smuggler. The cousin told him to leave all of his possessions at home, because he would be walking through a hellishly hot desert, and would need to carry two gallon jugs of water in order to survive. But the most important tip was to buy the best boots he could find, because the desert was full of snakes, and one bite could end Jose’s life.

Jose left his family at home and started his trip. In that time before cell phones, it was many days before Jose’s family learned that he had not become one of the statistics that had died of starvation, dehydration or snake bite, or been murdered by thieves or vigilantes. Jose had instead braved the elements, as well as the worst of human nature, so that he could support his starving family.

Jose made his way to northern Virginia, found work, and brought his family to the United States one by one. He paid taxes using a tax ID number, because he was not able to get a social security number. And he helped build warm, comfortable homes for Americans. He is now a permanent resident, and will soon be a US citizen.

Jose talks with pride about overcoming poverty and despair to become an important part of the American fabric. And he keeps with pride the boots that kept him alive during his overwhelmingly dangerous and frightening trip to America.

 

En un largo recorrido
Por sinuosos y escarpados caminos
Donde lo único que tocaba, con la suela de mis botas, eran las áridas arenas, las piedras y el sofocante calor de un desierto inhóspito, sólo con el fin de llegar a un lugar donde las penurias terminarían….
-Jose

On a long trek
Through winding and dug out paths
Where the only thing I could touch, with the soles of my boots, were the arid sands, the stones, and the suffocating heat of an inhospitable desert, with the only goal of arriving at a place where scarcity would end….
-Jose

Photo of Jose's actual boots

Photo of Jose’s actual boots

Divorce does not eliminate your obligations under Affidavit of Support (Form I-864) even if you have a prenup waiving alimony

By | Family-Sponsored Immigration | 15 Comments
Photograph: Mike Kemp/Getty Images

Photograph: Mike Kemp/Getty Images

Back in July 2012, the 7th Circuit held that even if an immigrant spouse is sitting at home without seeking work, a sponsoring spouse who signed the Affidavit of Support (Form I-864) still has a duty to support the immigrant spouse at 125% of the Federal poverty level. In other words, there is no duty of mitigation with respect to obligations under the affidavit. The court reasoned that the required level of support is meager, so the sponsored immigrant has a strong incentive to seek employment, apart from any legal duty. The court also clarified that Form I-864 presently makes explicit that “divorce does not terminate your obligations under this Form I-864,” a fact which was merely implicit back in 1999. See Wenfang Liu v. Mund, 686 F.3d 418 (7th Cir. 2012).

Most recently, the U.S. District Court of Maryland held that Form I-864 is enforceable even if a couple had previously signed a prenup waiving their right to alimony. Specifically, the Court found that Form I-864, imposed by federal law, is separate from any obligation of support imposed under Maryland law or right to support waived by the parties via an ante-nuptial agreement. The Court quoted a few decisions holding that “the parties by their conduct may waive the requirements of a written contract’,” and explained that, “[b]ecause Defendant signed the ante-nuptial agreement before he signed the Form I-864, the sequence of Defendant’s actions leads to the conclusion that the Form I-864 waived that portion of the ante-nuptial agreement concerning spousal support.” See Toure-Davis v. Davis, Dist. Court, D. Maryland 2014. 

So to summarize the lessons learned from the above decisions:

  1. divorce does not end a sponsoring spouse’s obligations under Form I-864
  2. the sponsoring spouse is still obligated to support the immigrant spouse, even if the  immigrant spouse is not seeking work
  3. the sponsoring spouse is still obligated to support the immigrant spouse, despite a prenup waiving alimony rights

The bottom line is that, although Form I-864 is a necessary document in the adjustment of status process, it can have very real legal consequences and should not be signed without a full understanding of the obligations it creates in the sponsor, whether it be the immigrant’s spouse or someone else. The federal regulations provide that “[e]xecution of an affidavit of support . . . creates a contract between the sponsor and the U.S. Government for the benefit of the sponsored immigrant, and of any Federal, State, or local government agency or private entity that administers any means-tested public benefits program.” 8 C.F.R. § 213a.2(d) (2013). This means that federal, state, local, and even private agencies can go after the sponsor for reimbursement in the event that they provide means-tested public benefits to the immigrant spouse.

There are only 5 circumstances under the law whereby the sponsor’s financial obligation terminates:

  1.  the sponsored immigrant becomes a citizen of the United States;
  2. the sponsored immigrant has obtained 40 quarters of coverage under Title II of the Social Security Act;
  3. the sponsored immigrant ceases to hold LPR status and departs the United States;
  4. the sponsored immigrant becomes subject to removal but applies for and obtains a new grant of adjustment of status; OR
  5. the sponsored immigrant dies. 8 C.F.R. § 213a.2(e)(2)(i)(A)-(E).

Department of Labor hurts American workers by disadvantaging American businesses

By | Employment-Sponsored Immigration | No Comments

American businesses can hire and retain foreign workers permanently by going through the “labor certification” process.  As a part of this process, the American business must go through several highly choreographed recruitment steps designated by Department of Labor regulations.  If a qualified American comes forward, willing and able to take the position at the offered salary, the business may not move forward with the labor certification process.

Assuming no qualified Americans come forward, the employer submits an online Application for Permanent Employment Certification (Form 9089) to the Department of Labor.  This ten page form is quite detailed and complex.  The employer must list all of the position requirements and all of the foreign worker’s qualifications.  A number of pre-printed boxes on the form ask whether the foreign worker has the required education, experience and training, whether an alternate combination of education and experience are acceptable and if so, whether the foreign worker has this alternate combination of education and experience, and so on.  These detailed questions take up about two pages.

But the Department of Labor has recently made it a practice to deny applications that fail to answer a question that is not asked on the form.  That is, many occupations, such as doctors, accountants, and engineers require licenses to practice their profession.  There is a special box on the form (in addition to the two pages indicated above) where the employer indicates that the license is required.  Yet nowhere on the pages of detailed questions does DOL ask if the foreign worker actually has the required license.  DOL has nevertheless taken the position that these applications will be denied if the employer does not indicate on the form that the foreign worker has the required license.  Through an FAQ buried deep in the DOL website, it apprises employers where they must make this disclosure.

Businesses spend thousands of dollars on this application process, between advertising costs and legal fees.  They invest tens of thousands of dollars in training employees.  When DOL denies these applications the businesses have lost this money, or often they must start over and spend it again, keeping them from investing in the business and perhaps adding additional employees.

One would expect that DOL would understand that by disadvantaging American businesses, they are harming the American and foreign workers that those businesses employ.

Immigration reform in unexpected places: Will DREAMers get a path to citizenship by being able to enlist in the military?

By | Deferred Action Status, DREAMers Immigration, Politics | No Comments

On April 10, 2014 the American Immigration Lawyers’ Association (AILA) held its annual National Day of Action (NDA) where AILA members meet with their respective representatives to discuss immigration issues. During last year’s NDA, the focus was on getting an immigration reform bill passed in the Senate. Thankfully, the Senate acted but unfortunately we still do not have a bill that has passed the House of Representatives.

Nancy and Andrea visited with our respective representatives from Illinois and Virginia. This year, the focus of NDA was to gather information from our Congressmen about what the misgivings were on immigration reform and also to bring attention to the inequities of our current broken immigration system.

Andrea and Nancy in the Rayburn Building

Andrea and Nancy in the Rayburn Building

During our visits we stressed the fact that even though we might not be able to get comprehensive immigration reform, there is much that the House can do to improve the immigration system we have in place, as well as addressing immigration issues in upcoming appropriations and DHS bills. Here is a link to the information brochure prepared by AILA regarding immigration reform: http://www.aila.org/content/default.aspx?docid=48032.

Since April there has been a lot of buzz in the media about immigration reform.  We hear a lot about how the House Republicans don’t want to pass immigration reform because they are not confident that President Obama would enforce the laws as they are written. We also hear that the White House is threatening to take up the issue of immigration reform on its own if the House doesn’t act soon. Unfortunately this type of uncompromising approach does not yield results. Because “comprehensive immigration reform” appears to be such a divisive topic, we have to find other ways through other laws to give our immigrant community the opportunity to get legal status.

In this vein, there has been movement in Congress to allow immigrants who were brought here as children to enlist in the military and gain permanent residence through their service. The ENLIST Act (H.R. 2377) is being offered by Republican Representative Jeff Denham (CA) as an amendment to the must pass National Defense Authorization Act (NDAA). Even House Speaker John Boehner has stated that they might be able to get a standalone vote on the Enlist Act instead of taking it up as an amendment to the NDAA.  Also this week, Senator Dick Durbin hosted a field hearing in Chicago on immigrant enlistment in the military.  Witnesses included Rep. Gutierrez (D-IL), AILA Advocacy Director Greg Chen, members of the military, and two undocumented cadets from the Phoenix Military Academy.  If the ENLIST Act were to pass, this could mean a path to citizenship to a whole host of immigrants who had no such hopes before.

Even though change may not be coming in the form that we envisioned, we must never give up the good fight. As this latest turn in immigration reform has shown, the change can come from some of the most unexpected places.

NC Republicans learn that their base favors pro-immigrant candidates

By | Politics | No Comments

Republican Congresswoman Renee Ellmers from the Second District of North Carolina recently survived a primary challenge from Frank Roche, an anti-immigrant tea partier.

Like many tea partiers, the conservative Mr. Roche is in favor of government regulation only in those instances where he favors the regulations.  In a March 28, 2014 interview with David Steinberg of PJ Media, Mr. Roche stated that “we need to sharply reduce our yearly legal immigration.  We need to move away from family reunification as a basis for our immigration system, and go back to a national origins-based system, one based on the economic interests of the United States . . . [w]e must move away from official recognition of multiculturalism, identity politics, and political correctness.  These social counterparts to our immigration numbers are what makes immigration so damaging to the United States, so divisive.”

Apparently Mr. Roche believes that immigrants should be allowed in the United States only as long as they can be economically productive, leaving their families behind.  His aversion to multiculturalism is difficult to understand in a country whose roots stretch to all corners of the globe.

Luckily, the voters of North Carolina helped Congresswoman Ellmers soundly defeat Mr. Roche.  Her more moderate views favor stronger enforcement and reasonable reform of immigration laws.

A May 6 Washington Wire article called this contest “the nation’s only serious GOP primary challenge based on immigration policy.”  Ms. Ellmers’ 58 – 42 defeat of Mr. Roche shows that those who lean right also understand the valuable role that immigrants play in the United States.

We can only hope that other Republicans in Congress take note.

Proposed USCIS rule will allow some H-4 dependent spouses to work

By | Employment-Sponsored Immigration | No Comments

On May 12, 2014, USCIS published a proposed rule that would extend employment authorization to certain H-4 dependent spouses. The extension would be limited to H-4 dependent spouses of H-1B nonimmigrants who are either the beneficiaries of an approved Immigrant Petition for Alien Worker (Form I–140) or who have been granted an extension of their authorized period of admission in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21).

As explained in the Federal Register,

The lack of employment authorization for H–4 dependent spouses often gives rise to personal and economic hardship for the families of H–1B nonimmigrants the longer they remain in the United States. In many cases, for those H–1B nonimmigrants and their families who wish to remain permanently in the United States, the timeframe required for an H–1B nonimmigrant to acquire lawful permanent residence through his or her employment may be many years. As a result, retention of highly educated and highly skilled nonimmigrant workers in the United States can become problematic for employers.

So although not all H-4 dependent spouses will get employment authorization, the proposed rule will still have a positive impact on both immigrants and their U.S. employers. This is especially true considering that many I-140 beneficiaries face huge backlogs in visa availability dates and will therefore be unable to adjust their status for several years.

Here’s the link to the proposed rule: http://www.gpo.gov/fdsys/pkg/FR-2014-05-12/pdf/2014-10734.pdf

DACA students eligible for in-state tuition in Virginia

By | Deferred Action Status | No Comments

On April 29, 2014 Virginia Attorney General Mark Herring announced that students who have approved Deferred Action for Childhood Arrivals (DACA) are eligible for in-state tuition at Virginia public universities and colleges.

The difference between in-state tuition and out-of state tuition is significant. For example, in-state tuition for a Bachelor’s degree at George Mason University for the 2013-2014 school year was $9,908/year while out-of-state tuition was a whopping $28,592/year, almost 3 times more expensive!

The Attorney General explained that DACA students are eligible for in-state tuition because they are able to form subjective domiciliary intent unlike foreign students in other temporary visa categories such as F-1. This is because students who have DACA have lawful status that can be renewed indefinitely, and as such, they can form the intent to remain in Virginia indefinitely. (See his letter to Presidents of Virginia Public Colleges and Universities here: http://www.ag.virginia.gov/Media%20and%20News%20Releases/News_Releases/Herring/DACA_AG_Advice_Letter.pdf

Each Virginia public university or college has its own application for in-state tuition. However, the requirements for proving eligibility are the same. They are as follows:

  1. Proof that you have had DACA for one full year prior to the start of the semester
  2. Proof of Virginia Domicile since the day your DACA was approved (this includes but is not limited to the following):
    1. Virginia high school transcript
    2. Virginia driver’s license
    3. Virginia car registration
    4. Virginia tax returns
    5. Copies of lease, utility bills, cell phone bills, bank account statements, car insurance, etc. (anything with your name on it showing you were residing in Virginia)
    6. Virginia marriage certificate (if you are married)

If you do not renew your DACA after the two year expiration date, you will no longer be eligible for in-state tuition; therefore it is extremely important to pay attention to that expiration date. As discussed in our previous post, DACA applicants can submit their DACA renewal application up to 5 months prior to the expiration of their card, but should wait no more than 4 months prior to expiration to submit their application in order to avoid being out of status.

Here is a link to some helpful FAQs regarding in-state tuition for DACA students: http://vacolao.org/wp-content/uploads/2014/05/DACA-and-In-State-Tuition-in-Virginia.-Frequently-Asked-Questions.-Legal-Aid-Justice-Center.pdf

Also, there will be an Information Session on In-state Tuition Requirements for Virginia DACA Holders hosted by the Legal Aid Justice Center on Monday May 19 from 6:30 to 8:30pm. Here is the link to RSVP to this event: http://action.justice4all.org/site/Calendar?id=100243&view=Detail

No more FOIAs to get your I-94 history for last 5 years

By | CBP, USCIS, Visas | No Comments

 

I-94AOn April 30, 2014, CBP announced that you will no longer need to file a Freedom of Information Act (FOIA) Request to obtain your arrival/departure history and records for the last five years from the date the request is made. Through the I-94 website, you will be able to retrieve your most recent I-94 information. Specifically, the website will show you the following:

  • I-94 number
  • most recent date of entry
  • class of admission
  • admit-until date

All you need to get access to your I-94 records is:

  • your name
  • your date of birth
  • your passport information

Those who entered the U.S. in the last 5 years and had their I-94 lost or destroyed can now save big bucks thanks to the I-94 website. The filing fee for an I-102, Application for Replacement/Initial Nonimmigrant Arrival-Departure Document is $330! With the recent transition to electronic I-94s, the I-102 will  eventually become completely obsolete.

Congressional inaction on immigration may jeopardize identity security

By | Employment-Sponsored Immigration | No Comments

Many people think of immigration reform only in the context of the dispute about undocumented immigrants.  Lost in all the discussions about whether or not the undocumented should be allowed a “path to citizenship” is the discussion about the major changes needed in employment-sponsored immigration.

Each April, high tech companies and other employers needing skilled workers compete in the “H-1B lottery” for a chance to employ foreign workers.  Each year, thousands of employers lose this competition, after gambling thousands of dollars on legal fees and other expenses.  For example, during the first week of April, 2014, US Citizenship and Immigration Services received some 172,000 H-1B visa applications for some 85,000 available H-1B visas.  USCIS accepted 85,000 plus some margin to cover expected denials.  The remaining application packages were rejected and returned to the employers or their attorneys.

I have a theory that the scarcity of H-1B visas has led to some of the recent US credit card data breaches. For example, during the 2013 Christmas shopping season, millions of Target customers learned that their identities had been compromised through their use of credit cards at Target.  This serious scandal has recently led to the resignation of Target’s CEO, Gregg Steinhafel.

My theory that this could have been averted if more H-1B visas were available is based on the fact that most European countries long ago switched to a more secure chip-and-PIN technology, instead of the current magnetic stripe system still used on most US credit cards.  I believe that if more high tech workers had been able to obtain H-1B visas, the US may have used these workers to assist in switching to the more sophisticated technology much sooner.

This firm has prepared H-1B applications for high tech workers, graphic artists, behavioral analysts, convention managers, biotech workers and many others who are badly needed by their employers. The employers are required to pay these employees the “prevailing wage.”  In fact, from time to time we have had to tell employers that the US Department of Labor will require them to pay the foreign employees more than they pay US workers in similar positions!  Clearly, the employers would not go through the costly and time-consuming uncertainty of preparing and submitting an H-1B application, then waiting to see if their application is accepted in the H-1B lottery, if there were sufficient US workers available for these positions.

The H-1B workers do not take jobs from Americans; instead they create jobs.  For example, a factory that can hire H-1B workers as engineers will not only employ American workers to build the products, but also spur the American economy as the workers buy homes, cars and other major purchases, as well as day-to-day needs such as food and clothing.

Congress needs to take action to increase the availability of H-1B visas, so that Americans’ identities can be more secure and so that American businesses can remain competitive in the global marketplace.