Nancy M. Vizer

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
05/15/1994 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.

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

Lydia’s Long Wait – A Federal Court Victory

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From left: Nancy Vizer, Lydia, and Noelia Rodríguez

Lydia has given us permission to use her real name for this story. She is one of the United States’ newest citizens. Lydia has been an asset to the United States for many years, serving as one of the patient, caring people who tends to elderly people in their homes, giving our parents and grandparents the time and energy that we can’t take out of our busy lives.

Yet Lydia was a victim of incompetence, indifference and outright heartlessness on the part of numerous US government employees.

Lydia came to our office about five years ago. She had come to the United States from Ghana and had married a nice young man, a US citizen. He wished to sponsor her for permanent residence, so that she would be able to remain here and share her life with him. It is our policy to only take cases where we are convinced that the couple is “real”; we have declined numerous illegal “fraudulent marriage” cases over the years.

After meeting with the couple and satisfying ourselves about their relationship, we prepared and submitted the necessary application forms, attended an interview with the couple, and the case was approved in due time.

Since Lydia had not been married for two years when her case was approved, she was required to renew her permanent residence two years later, to again prove that she was not in a sham marriage. We met with the couple and again submitted the necessary application package on August 12, 2012. And then we waited. We got a formal Request for Evidence in the mail and submitted additional documents. And then we waited. The couple was called in for an interview. The interviewing officer asked for additional documents. We provided the additional documents. And then we waited. The interviewing officer was reassigned before he closed out the case, so the couple was called in for a second interview, which we attended together. And then we waited.

We finally got tired of waiting. Because she had been a permanent resident for well over the required three years, Lydia was eligible for US citizenship, so we prepared and submitted that application package. She was called in for an interview within a reasonable amount of time, but the officer told us she could not approve the case until the permanent residence renewal had been resolved. I reminded the officer that the regulations require that a citizenship application be approved or denied within 120 days of the interview. We left the interview. And then we waited. After 120 days, we wrote to several supervisors, advising them that the interviewing officer was violating the regulations by not finishing out the case within 120 days. And then we waited.

During all of this time, Lydia missed the funerals of two good friends in Ghana. She wished to visit her father in Ghana, whose health is not good. But she was afraid to travel while her various applications remained pending. There is always the possibility that if an application is denied while the foreign national is overseas, she will not be admitted back into the United States.

So finally, after about 150 days of waiting for a decision on Lydia’s naturalization application, we took the matter to federal court, seeking the judge’s order requiring US Citizenship and Immigration Services to follow its own regulations. And then we waited. The government was required to respond to our complaint within 60 days, but asked for an additional 30 days. We agreed, since the judge would have allowed the delay  with or without our agreement. The US government just gets to do that, with no excuse.

Finally, on the 90th day, August 10, 2015, almost exactly three years after Lydia started her renewal odyssey, we learned that USCIS had approved her case, so that its officers would not have to explain to a federal judge why the USCIS was violating the law. She took her oath of citizenship on August 25. We normally don’t go to these oath ceremonies, but we chose to go to Lydia’s to share the end of her very difficult ordeal.

We are thrilled that she will continue to be an asset to this country, to our parents and grandparents, and that her long wait is over!

Watch out for Diversity Visa Scams

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Every year the Department of State conducts a “Diversity Visa Lottery,” where people from all over the world who wish to become lawful permanent residents of the United States enter their information online, and several thousand are selected.  The only “real” requirement is that the applicant have a high school diploma (and not be a criminal, etc., etc.).  Every year, the Department of State database gets hacked (surprise, surprise).  And every year, many people are taken in by scams, believe they have been selected, and send money to the hackers.  Finally, every year, we hear from at least one victim, telling us they have paid the fee, and now need our help to proceed.  PLEASE don’t fall victim to this scam.  As of today, there are no “slots” left in this fiscal year’s lottery, which ends October 1, 2015.  That is, if you have not heard from the Department of State by now, you were not selected.  If you get an email that you think is “legit” for the 2015-2016 lottery, you are welcome to contact our firm.  We do not charge to check whether you have been scammed or not.

For those who are trying for the 2015-2016 lottery, good luck, but be careful!

Suman’s Surprise – An EB-1 Outstanding Researcher Success

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Suman

I don’t know “Suman” very well, as I have mostly worked with her husband, “Karan.” Suman was born in India, but spent a part of her adult life living in other parts of Asia as she followed Karan’s career around the world. Besides continuing to work full time, Suman was the primary caretaker for the couple’s child. She has been living in the United States for about a year and loves it here!

Karan is an outstanding researcher in the field of Biotechnology. His arduous research at a major US university is helping to improve the environment both in the United States and overseas. He is also helping to develop crops that will not only grow more efficiently, but will taste better to consumers.

As citizens of India, it was quite difficult for Karan, Suman and their daughter to obtain permanent residence in the United States. There is an annual quota for each category of permanent residence. Each country can only use 7% of the quota each year, so certain categories are oversubscribed, and that country’s citizens must wait years to “move to the head of the line” with respect to the quota.

In Karan’s case, there were two ways he could get permanent residence. The easier way would be to prove that his work is in the national interest (we all want a better environment and better tasting crops, I think), that it would have nationwide benefits (ditto) and that his work is exceptional among his peers. However, this particular category is so oversubscribed among citizens of India that the family’s wait for permanent residence would have been close to ten years. During this time, it would have been very difficult, or maybe impossible, for Suman to work legally in the United States. The family would have to survive on one postdoctoral researcher’s income. Sadly, in spite of the importance of Karan’s work, this pay is not enough for a family of three.

So we tried a different category; “outstanding” researcher, or category EB-1. This category has a much higher standard, but it is not oversubscribed. The family could become permanent residents within about 90 days of the immigration officer’s finding that Karan’s work is “outstanding.” Suman would be able to keep working. (She had a temporary work authorization that she would not have been able to renew after the end of August, 2015).

It was getting close to August. The family was facing the loss of Suman’s income, which would have led to very difficult times. So Karan turned to me for help.

I reviewed Karan’s cv with him, and told him that I thought his work was outstanding, but that I was not the one who would decide his case. I could only prepare an application package and submit it to USCIS. I worked intensely with Karan over a six-week period to gather reference letters from his peers, along with about 80 other supporting documents. Karan paid the government an additional $1,225 “premium processing” fee, over and above the normal $2,720 government filing fee, to insure that the government would make a decision about whether or not his work was “outstanding” within 15 days. Quite a gamble when the government’s standard of review is often prohibitive in these cases. Karan, who was aware of the risk, was willing to take it to ensure his family’s future.

Sure enough, within about a week, we received a preliminary approval notice, and I expect the family to become permanent residents before the end of the year.

So why is this blog post called “Suman’s Surprise?” Because Karan decided to surprise Suman with the approval. In fact, he didn’t even tell her he was submitting the preliminary application package. When it was approved, Karan took his family out to Maggiano’s for a great Italian dinner. He first handed his phone to a friend to take a video. Then he told Suman he was giving her an early birthday present, and handed her an envelope with the preliminary approval notice inside. There were several other associated documents, and Suman took a few minutes to leaf through them, trying to understand the significance.

Finally, she “got it.” Watching the video of her face move from confusion to exuberance was one of the most rewarding moments of my career. Suman gradually realized that her family would be able to remain in the United States indefinitely, that she would be able to continue working, and that their child would be a “normal” part of the American fabric. Her smile grew bigger as she figured out each implication of the pieces of paper in her hands. As she got up to hug Karan, he told the camera, “I didn’t tell her.” The couple’s daughter caught the mood and began hugging both parents, running from one side of the table to the other.

I hope that I get to meet Suman, Karan and their daughter one day. They live far from Chicago so they will have to plan a family “road trip.” But whether I ever meet them or not, I am glad that the United States will continue to benefit from their presence here.

The inadequacy of the In-Country Refugee/Parole Program for Central American Minors (CAM)

By | Clients, Family-Sponsored Immigration, USCIS | No Comments

On December 1, 2014, a new program was announced by the U.S. Department of State (DOS) in response to the “surge” of immigrant minors at the border during the summer of 2014. The program implemented by U.S. Citizenship and Immigration Services (USCIS) is now called CAM which stands for the Central American Minors Refugee/Parole Program. It is specifically designed to help minors living in Honduras, El Salvador and Guatemala who have parents lawfully residing in the United States to escape the violence and turmoil in their native country.  It is dubbed “a safe, legal, and orderly alternative to the dangerous journey that some children are currently undertaking to the United States.” Information on who is eligible to apply for the program and a description of the process can be found at the following link: http://www.uscis.gov/humanitarian/refugees-asylum/refugees/country-refugeeparole-processing-minors-honduras-el-salvador-and-guatemala-central-american-minors-cam

As of April 23, 2015 the program has only received 461 applications, none of which have been adjudicated. The estimated processing time for an application is 9 months to a year. In the mean time there are no protections offered to the children awaiting adjudication. The “safe, legal, and orderly alternative” characterization of the program belies its true nature.  The reality is that these children do not have time to wait 9 to 12 months, and even to a casual observer this seems absurd. Essentially the U.S. government is saying, “You say you fear for your life because you have already been persecuted or you have a well-founded fear of future persecution? That’s nice. Please return to your scary life for 9 to 12 months while we look into that. And I’m sorry, even though speaking to U.S. government officials could expose you to even more danger, we have no protection to offer you. But thanks for applying!”

And let’s further discuss that 461 figure mentioned above. That number seems awfully low compared to the surge of thousands who came in the summer of 2014 and are still coming to our southern borders seeking refuge. It might be said that the program is inadequately publicized but the experience in our office has been that plenty of people in the Salvadoran, Honduran and Guatemalan community are aware of the program and its benefits.

The issue comes from the lack of funding provided to the local designated resettlement agencies here in the United States who are supposed to be helping the parents here in the United States to submit their applications.  During a recent teleconference hosted by USCIS on March 31, 2015, several callers were directors or employees of these resettlement agencies stating that they cannot meet the burden placed upon them to fill out the initial application because they have no budget to support this program. We have heard this complaint from some of our own clients who state that they called 3 or 4 resettlement agencies here in the Washington, D.C. area and none of them were able to assist in filling out this application. How is this program supposed to provide the necessary relief when clients can’t even get basic access to submit their applications?

Furthermore this program has been designed to cut attorneys out of the loop so that the parents who want legal representation during the process do not have that option. The application form can only be accessed and completed with the assistance of a designated resettlement agency, which has no funding to staff someone to assist you with filling out the application. As attorneys all we can do is advise our clients on the potential strength of their children’s claim but at this point there seems to be no other avenue for us to intervene or assist.

At best this program is a loose band-aid for the current crisis at the southern border. At its worst it puts the lives of the refugees at risk because it provides no protection for those who speak to U.S. government officials in connection with these applications. We hope that Congress will heed the appeals of the immigrant advocates who recently testified before them regarding this program and will take active steps to improve it. To view the hearing please click on the following link: http://www.judiciary.senate.gov/meetings/eroding-the-law-and-diverting-taxpayer-resources-an-examination-of-the-administrations-central-american-minors-refugee/parole-program

John Oliver Blasts Immigration Bureaucracy

By | Politics, Visas | No Comments

John Oliver recently did a feature about the Kafka-esque difficulties faced by translators who have served the US in Iraq and Afghanistan, at the risk of their lives, when trying to obtain visas to the United States.  The video speaks for itself.  As a PS, the State Department changed its procedures about a week after this show.  Coincidence?  We’ll never know.  Warning:  the video contains language unsuitable for children.