Month: February 2016

Which side are you on?

Which Side Are You On?

With this being February and all, I found myself invited to yet another Daddy-Daughter Dance this weekend.  The fun thing about this event was that it had a Star Wars theme.

Regular readers may recall recent updates detailing my love of Star Wars as a kid and the Daddy-Daughter Dance that Noor and I attended earlier in the month.

Any excuse that I have for pulling out my Darth Vader costume is a good thing, so even though I had been working at the office today, I donned the black helmet and headed to the dance with my daughter, Princess Leia.

Princess Leia & DV

The Girl Scouts, who organized the event, did an amazing job.  They had a DJ and The Empire Strikes Back on the big screen.  I battled several young female Jedis with my lightsaber and danced with Noor.  We had a blast.

During a break, I was chatting with another dad that I had just met.  I told him that I was an immigration attorney and he asked me something that no one had ever asked me before:

“Which side are you on?”

I paused before answering as I had several different responses come to mind.  My kneejerk response was to say “the right side,” “the side of light,” “the good side.”  Instead, I said the actual truth – “I am on the side of the immigrant.”  

We had an interesting back-and-forth at that point.  But at the end of the day, I do believe that we are on the right side when we are representing the immigrant.

Fact is, the federal government has tremendous resources at its disposal in deciding who gets to stay here, who has to go, who gets to visit and who gets to work.  I view my role as an immigration attorney as holding the government accountable for its decisions – both the ones that they make and the ones that they refuse to make.

I am proud to represent employers who want to keep qualified employees here in the States.

I am proud to represent hard working women and men who want to swear their allegiance to America and become U.S. citizens.

I am proud to fight for people who believe that if they are sent back to their home country they will face persecution, torture and maybe death.

I enjoy suing the immigration service when it refuses to decide a tough case and sits on it for years and years.

And, I love helping families get started when a U.S. citizen falls in love with a non-citizen.

In doing this work, I believe that we are on the “right” side, the “good” side.  I believe that the government abuses immigrants, abuses its power and applies the law in an arbitrary and unfair manner.  Not in every case, certainly, but in way too many of them.

So, I guess that’s a long-winded answer to a pretty basic question.  One of my favorite recordings is Natalie Merchant’s cover of an old ballad from the Civil War.  It is called “Which Side Are You On?”  

Would love to hear which side you find yourself on …..

Immigration Update – February 7, 2016

Hearing on Border Crossings

Last Thursday, the House Judiciary Committee tackled the issue of last year’s migrant surge of women and children across our nation’s southern border.  In 2014, a record number of minors – 68,000 – entered the U.S. without legal permission to do so.

The majority of these children came from El Salvador, Honduras and Guatemala – very dangerous countries indeed.

Hardline Republicans blame President Obama for the surge and claim that lax immigration policies of DHS amounted to an open invitation to come.  Committee Democrats argued that mothers and children who sought asylum had the legal right do just that.

Rep. Luis Gutierrez (D-Ill) blamed Congress itself for the problem.  “What we should do is we should create a system that allows people to come … not through drug smugglers, not through human-trafficking, but with a plane ticket with a visa … A legal way to the come the U.S. so we could have an organized fashion in which we have our immigration policy set forth.”

Immigration News

A 32 year old undocumented mother of 3 U.S. citizens, who was granted a temporary reprieve from deportation under the Deferred Action for Childhood Arrivals program (DACA) was deported to Mexico after she tried to reenter the U.S. legally last week.  Under DACA, an undocumented person can receive advance parole – permission – to travel overseas.  Lesly Sophia Cortez-Martinez received that advance parole, but when she tried to pass through Customs in Chicago, CBP detained her and eventually deported her pursuant to a 2004 deportation order.

This incident highlights several things.  First, it puts to bed the argument that “anchor babies” keep government officials from deporting undocumented people.  Second, even with advance parole being granted, an undocumented immigrant faces potential exclusion or deportation when trying to return.  Third, you have to be extremely careful in making the decision to travel abroad and should obtain a complete copy of your immigration file so as to identify “missing” deportation orders.  Big problems for sure.  Fourth, again it shows that despite President Obama’s claims that he is focusing deportations on criminals, mothers and fathers with no criminal record at all are still being deported.

Our deportation courts around the country depend on hard-working interpreters to allow the wheels of justice to grind on (ever so slowly).  Hundreds of these interpreters now claim that they have gone months without being paid by the Department of Justice’s government contractor – SOS International.  Last July, the Justice Department switched contractors, awarding a $12 million dollar annual contract to SOS.  Time to pay the bills, people!

Immigration comes up often at Republican and Democratic Presidential debates.  Last Saturday, Senator Marco Rubio faced fire from the other GOP nominees for his prior support to the so-called Gang of Eight bill.  This bill would have created an eventual path to citizenship for undocumented immigrants living in the United States.  Rubio was an early sponsor of the legislation, which eventually died in the House when Republican leaders refused to put the bill to a vote.  Now, as a candidate for President, Rubio is trying to dance his way around the issue with Republican stalwarts who tend to take a more conservative view of the immigration issue.

What does USCIS mean when they say that a job must be in a specialty occupation for an H1b visa?

One of the first things that you should know about H1b visas is that not all jobs qualify for H1b employment visas.  
 
In order for an H1b to be available, the job must be a specialty occupation.

What is a specialty occupation?

Specialty occupations require a theoretical and practical application of highly specialized knowledge.   This typically involves a showing that the position requires a bachelor’s degree or higher, that such a degree is common in the industry, that the employer normally requires such a degree, and that the job duties are so specialized that the requirements of the job are usually associated with that degree.  The employee’s background and qualifications must also track the job duties in the offered position.

Visa

The foreign worker must either:

  • (1) hold a U.S. bachelor’s or higher degree as required by the specialty occupation from an accredited institution;
  • (2) possess a foreign degree determined to be an equivalent to a U.S. bachelor’s;
  • (3) have any required license to practice the occupation (like an architect, surveyor or physical therapist); or,
  • (4) have education, specialized training, or progressively responsible experience that is equivalent to completion of a U.S. bachelor’s degree and have recognition of progressively responsible expertise through job promotions within that field.

The U.S. Citizenship & Immigration Service sometimes requests additional evidence that the position sought qualifies for the specialty occupation classification.  These requests for evidence can be long, burdensome and very specific.

The best way to minimize the chances of a request for evidence on the specialty occupation issue is to provide documentation with the initial filing that the job is properly considered a specialty one.  This can involve affidavits, surveys, letters from similar employers and other evidence from industry hiring customs.

If you are wondering if your occupation qualifies as a specialty occupation, feel free to email us at info@hackinglawpractice.com or call us at (314) 961-8200 and we’d be happy to set up a time to discuss. 

What do F1 international students need to know about curricular practical training (CPT)?

We get a lot of questions about CPT.  So we thought we would tackle the most frequently asked questions right here on our website.

What is it?

  • CPT stands for “Curricular Practical Training.” It is, along with “Optional Practical Training” (OPT), one of two forms of practical training available to students in the United States on F-1 visas.
  • CPT is employment that is an integral part of a particular education curriculum, such as work/study, an internship, or a practicum. It can either be required for a program (the educational program requires practical work experience in order to graduate) or optional (the work is related to the field of study, and for academic credit, but is not required).

Who is eligible?

  • It is available to people in the United States on F-1 student visas.

When can someone use CPT?

  • A student on an F-1 visa can use CPT during the course of an academic program.
  • If the program is undergraduate, the student must have declared a major and must use CPT after they have been enrolled full time for one academic year.
  • If the CPT occurs during a graduate program, it can begin immediately (if the program requires work experience immediately).
  • Before applying for CPT, the student must have either a signed cooperative agreement (indicating the relationship of the employer and the school) or a letter from their employer indicating a job offer.

CPT

How long does CPT Last?

  • As long as a student follows all of the requirements of CPT, there is no restriction on how long it may last (other than the length of the program).
  • If a student performs twelve months or more of full-time (defined as working more than twenty hours a week) they will not be eligible for OPT following graduation.

Do unpaid internships require CPT approval?

  • This is not always required, strictly speaking, but is highly advisable.
  • The Department of Labor has laid out the following criteria for a legitimate unpaid internship:
    • The internship, even though it includes actual operation on the facilities of the employer, is similar to training which would be given in an educational environment;
  • The internship experience is for the benefit of the intern;
  • The intern does not displace regular employees, but works under close supervision of existing staff;
  • The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
  • The intern is not necessarily entitled to a job at the conclusion of the internship;
  • And the employer and the intern understand that the intern is not entitled to wages for the time spent in the internship

Source: http://www.internationalcenter.umich.edu/immig/fvisa/f_cpt.html

  • Meanwhile, the Department of Homeland Security has laid out the following rationales for authorizing CPT:
    • CPT authorization by the university serves to demonstrate that this practical experience is part of the curriculum.
    • CPT authorization is a way of reporting in SEVIS the student’s activity, employment, and location where they are working and therefore maintaining their status.
    • If ever a student is doing a job on an unpaid basis that someone would be hired and paid for, employment authorization in the form of CPT, OPT, etc. is advised.
    • If the unpaid internship at some point changes into a paid one (or if your employer decides to compensate you for your work in any way – for example, give you a monetary gift), you won’t be able to accept the payment if your internship was not authorized as CPT. Please keep in mind that F-1 students cannot be retroactively remunerated or in any way compensated for work done in an unpaid internship if they did not obtain work authorization prior to when the work was performed.

Source: http://www.internationalcenter.umich.edu/immig/fvisa/f_cpt.html

  • The rationale for CPT is not solely the payment of students. It is a way for international students to gain work experience that is an integral part of their academic program.  Many unpaid internships fit this description, and the student and university can save themselves a lot of potential headaches by following the CPT procedure for such an internship.

What are the restrictions on CPT work?

  • There is no restriction on the amount of time a student may do part time CPT (defined as twenty hours a week or less), but they must also take a full time academic course load in order to maintain F-1 status.
  • The CPT employment must be related to the major or field of study and the work experience has to be a part of the program (either required or for credit).

What are the responsibilities of the school?

  • A student seeking to work using CPT must provide all relevant information to the Designated School Official. The Designated School Official must verify all forms, send to the USCIS and then endorse the student’s I-20.

The great Writ of Mandamus and how it can help speed up your immigration case.

What is a writ of mandamus and how can it help expedite my immigration case. Hi. I’m Jim Hacking, immigration lawyer practicing law around the United States out of our office here in St. Louis, Missouri. Plenty of immigrants come to our office, call us, phone us, visit us on the web, and they’re complaining about delays at the immigration service or delays at the State Department in getting a visa approved and they’re really at their wits end. They don’t know what else to do.

These very good people have called the 1-800 number at USCIS, they’ve made infopass appointments, they’ve gone down to the immigration service to ask and complain, they’ve documented all of their efforts to try to get relief at immigration or with the State Department, they’ve called their senator, they’ve called the CIS Ombudsman, they’ve called the main office. They’ve gone up the chain of command and they just can’t get any relief. At this point, they’re completely frustrated. Some people wait for benefits like citizenship or green card or visa approval for years and years. The immigration service or the State Department basically tell people just to wait.

This brings in the writ of mandamus. It’s a very old phrase. It’s basically a legal mechanism that allows you to go into federal court and to ask a federal judge to make the immigration service, or the State Department, decide your case. Obviously the State Department and USCIS have discretion and whether or not to give somebody an immigration benefit. That means they can either approve or deny a case. That part’s clear. What the writ of mandamus does is it makes them actually decide the case. It’s not a guarantee that your case is going to be approved but what happens is that the federal judge looks at the case and asks why is it taking so long. If all the lawsuit seeks to do is to obtain action on behalf of the federal agency that has the case, then the court has jurisdiction to compel action on behalf those agencies.

It’s not a nice way of doing things. It’s not necessarily the easiest thing to do but in our experience it’s the only thing that gets the immigration service or the State Department to pay attention to a case. I’m sure if you’re watching this video, you’ve been experiencing delays yourself. You’ve heard a little bit about this writ of mandamus so we wanted to shoot this video to try and break it down for you.

Basically what we do is we draft a complaint and we file it federal court. After that, the government has 60 days to respond. In many of the cases, we get movement within those 60 days. Things start happening. Interviews get scheduled. Requests for evidence get sent so they can update their records and you can sort of find out what the problem is. In some instances, after the law suit it filed, you get called in for another interview or your first interview. Basically, the government has to respond within 60 days to that lawsuit. In most cases, they try to moot out the case and they do that by deciding the case. It costs extra money. It’s not fun. It’s not fair that you have to do this but in our experience, it’s the only thing that works.

We thought when we started filing these lawsuits that the immigration service would take it personally and would be upset that we sued. In fact, we found that really they sort of understand the process. They understand what’s going on and it really is that scrutiny from a federal judge that makes them work to decide the case. In some instances, the government does decide to fight and they do that sort of on a case by case basis but we can probably count on one hand the number of instances where they actually did go ahead and fight. In the vast majority of cases, they decide to work on the case and to reach a conclusion either right before the 60 days are up or shortly thereafter. They can ask for a continuance which we’re happy to provide if that means that they’re going to finally decide the case.

These lawsuits work in certain kinds of cases. They work in naturalization delays, green cards delays, and we’ve even had success suing the State Department over people’s spouse-base visas overseas. In our research, we’ve come across all kinds of cases where this has actually worked. A lot of it depends on which judge you get. Some judges are receptive to the plight of the aggrieved immigrant. Other judges bend over backwards to try to help the immigration service and to give them as much latitude in deciding the case as they can. There is certainly an element of luck to it. We no means guarantee that the case is going to be approved but we have filed lawsuits like this on behalf of 70 or 80 people so far and our clients have been very happy with the results.

I was a litigator before I practiced immigration law. I feel comfortable in the courtroom and drafting lawsuits and dragging the immigration service into court so we can bring into the light what’s been delayed, what’s been hassled about, and what we’ve been frustrated with is actually a really good way to use my legal skills and to help people at the same time. If you have experienced delays at the immigration service and you’re thinking about filing a writ of mandamus, if you have questions about how this works, about how the Administrative Procedures Act requires the government to decide things in a reasonable amount of time, these are the kinds of things that we talk about. These are the kinds of things that we put into the lawsuit. If you have questions about that, feel free to give us a call at 314-961-8200 or you can email us at jim@hackinglawpractice.com.