Author: Jim Hacking

Domestic Violence Convictions and Immigration Law

A non-U.S. citizen facing the possible conviction of a domestic-related criminal charge needs to consider the fact that domestic violence convictions can trigger the start of “removal” or deportation proceedings. In removal proceedings, the U.S. government argues that a non-citizen needs to be ordered to leave the U.S. This can happen even if you are a lawful permanent resident or have a “green card.”

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What is considered by the U.S. government a conviction for domestic violence?

  1. A “crime of violence” charged against a person:
    1. where the victim is a current or former spouse,
    2. where victim and accused share a child in common,
    3. where the accused and the victim were cohabitated or cohabitated as spouses,
    4. where the victim is similarly situated to a spouse,
    5. Under family violence laws of the jurisdiction where the offense occurs, or
    6. or any other person who is protected under domestic or family violence laws of the U.S. or any State, Indian tribal government, or unit of local government.
  2. Violation of a protective order (including temporary or final orders)
  3. Crime of stalking;
  4. Crime of Child abuse, neglect or abandonment

A “crime of violence” is one in which the crime involves the use, attempted use, or threatened use of physical force against a person or property. The second type of “crime of violence” is a felony that by its nature involves the risk of physical force.

For purposes of immigration law, it does not matter if your conviction was only a misdemeanor or that that you received a particular minimum sentence. The definition of what is a conviction for immigration law is different than what is a conviction for criminal purposes. It does matter if your conviction is from before September 30, 1996 because that it was when the law changed.

There are certain defenses in immigration court if you have been convicted of a domestic violence related charge and there are certain pleas that can mitigate any damage done to your immigration status.

Diversity Visa (DV) Lottery Allows Foreign Born Individuals to Obtain Green Card

Section 203(c) of the Immigration & Nationality Act provides for immigrants from historically underrepresented countries to apply for a green card through a system known as the diversity visa lottery.  The DV lottery was put in place to increase diversity in the number of people allowed to come to the U.S. as immigrants each year.

Each year, people seeking the opportunity to come to the U.S. apply through the State Department in the hopes of obtaining the coveted visa. For 2015, nationals from the following countries are ineligible for the DV lottery:

Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador,  El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea,  United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

Diversity visas are distributed among 6 geographic regions.  No one country can receive more than 7 percent of the diversity visas each year.  DV applicants have to have a high school education or its equivalent OR two years of work in a job that requires two years of training.

Applications for 2015 were due by Nov. 2, 2013.  Applications for the following year will be accepted starting early October of 2014.  Applications are filed electronically here:

https://www.dvlottery.state.gov/

One last note, there are many DV lottery scams so you should be careful when navigating the DV lottery process.

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DHS Narrows Material Support for Terrorist Organizations Bar to Immigration Benefits

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On February 5, 2014, new Secretary of Homeland Security Jeh Johnson issued a revised determination on how DHS would interpret the material bar statute.  For years, DHS has taken the position that any association with any group on the terrorist list was a permanent bar from any immigration benefit.  This prevented many otherwise qualified individuals who came to the U.S. as refugees or asylum seekers or in some other immigration category from every obtaining lawful permanent resident status.

Our office handled several cases for people who should have received a green card.  But because they simply had been a member of a group that their home country required them to be in or a group that had formerly been an ally of the U.S., they were barred from any immigration benefit.

Under yesterday’s change in the regulations, if an alien seeks an immigration benefit, has undergone and passed allrelevant background and security checks and has fully disclosed the nature of any “material support” to the organization in question, they may now be eligible for the immigration benefit requested.

The regulation calls on the investigating officer to determine whether (1) the support was “insignificant”?, (2) the alien was attempting to further the terrorist activities of the organization, (3) the alien has provided material support that he/she knew or should have known would have furthered terrorist or violent activity; and (4) the support was given to someone the alien knew would advance terrorist gains.  If the alien meets this standard and can show “in the totality of the circumstances” that they deserve a waiver of the inadmissiblity standard, then they may be able to adjust status.

This is a big deal for people who have been waiting for a long time for lawful permanent resident status.  It will be interesting to see how the regulations are implemented.

What is the PERM process?

What is the PERM process?

If a U.S. employer wishes to hire a foreign-born worker for lawful permanent resident status, the employer should be prepared for a long, arduous process.  The green card process for employees involves multiple government agencies and is one of the most confusing and convoluted areas of the law.

The first step of the process is called PERM – the Program Electronic Review Management.  The PERM system falls under the jurisdiction of the U.S. Department of Labor (“the DOL”).  The process is frequently referred to as the PERM labor certification.  Employers must undergo the PERM labor certification process for all employees in the EB-2 (except those employees applying for a National Interest Waiver) and the EB-3 job classifications.

Before a U.S. employer can file an immigration petition for a foreign worker with U.S. Citizenship and Immigration Services (“USCIS”), the DOL must first issue a labor certification.  In order to obtain the labor certification, the employer submits a form called an ETA Form 9089.  In doing so, the employer will be asking the DOL to certify (1) that there are not enough U.S. workers able, willing and qualified to perform the job at the prevailing wage and that employment of this foreign worker will not adversely affect the salaries and working conditions of U.S. workers.

Indeed, the law requires that there be a bona fide (“good faith”) job opening available to U.S. workers.  The employer must be willing to hire the foreign worker on a permanent, full-time basis.  The employer cannot tailor the job requirements to the qualifications of the specific foreign worker, but rather must use requirements typically associated with the job, unless the employer is prepared to demonstrate that the “extra” requirements arise from a true business necessity.

The first step in the recruitment process requires the employer to perform a series of good faith activities designed to test the labor market before filing the application.  If there are not a sufficient number of U.S. citizens or green card holders who can fill the position, the employer can submit a PERM labor certification application.

PERM regulations are detailed and complicated.  An employer must comply with all of the PERM regulations or risk the denial of the application or, perhaps even worse, a DOL audit of the recruitment process.  Even though the employer does not submit supporting documents at the time of the PERM filing, it is essential that all required recruitment activities are satisfied.  Employers should retain all recruitment evidence for 5 years to make sure they can comply fully with a DOL audit of the process used.

The DOL states that the current processing time for PERM applications is 45-60 days (unless an audit is ordered); however, they usually take about 3 months to approve.  If an audit is ordered, the employer has 30 days to fully respond with all requested documents.  Failure to reply in a timely manner will deem the case abandoned and may lead to “supervised recruitment” procedures on any future recruitment efforts by the employer.  An approved PERM application is good for 180 days and the employer must file the next applications with USCIS within that time frame.

What is a PERM prevailing wage determination?

One of the first steps in filing a PERM application is to obtain a prevailing wage determination.  Until 2010, individual state workforce agencies processed prevailing wage determinations.  In 2010, that changed as the Department of Labor (“DOL”) began requiring all such determinations to be handled by the National Prevailing Wage and Helpdesk Center (“the NPWHC”).

A formal prevailing wage determination is required for every PERM application.  The prevailing wage is a rate of pay calculated by DOL based on the average wages for a particular job in a certain geographic area.  This amount represents the minimum allowable wage that an employer can pay someone that it wishes to sponsor for permanent residence through the PERM process.

Remember: whenever considering the way DOL regulations work regarding the PERM process, the overarching theme of the regulations is the protection of the American worker.  Members of Congress have no interest in being portrayed as favoring foreign workers over U.S. citizen voters.  So while some provisions may seem burdensome or unduly restrictive, immigration is essentially a political issue and protecting the people who can actually vote is usually at the forefront of a member of Congress’s mind.

Prevailing wage requests are submitted to the NPWHC through Form ETA-9141, the Application for Prevailing Wage Determination (“PWD”).  The applications are adjudicated in the first in, first out order.

The relevant factors used by DOL in determining a prevailing wage rate are:

  • The nature of the job offer.  DOL reviews the requirement of the employer’s job offer and determines the appropriate occupational classification through O*NET.
  • The area of intended employment.  This means the area within normal commuting distance of the work site address.  The prevailing wage can vary greatly from area to area.
  • Job duties for workers with similar jobs.  DOL verifies that the submitted job description and position requirements match those duties of employees holding similar jobs.

If the position is in an occupation covered by a collective bargaining agreement between the employer and a union, the wage rate in the agreement shall be deemed the correct prevailing wage.

Absent a collective bargaining agreement, the NPWHC uses O*NET information to determine the tasks, work activities, knowledge and skills generally needed for performance in an occupation.  Employers should therefore make sure that the job description included in the request for a prevailing wage include sufficient information to determine how complex the job is, the level of judgment that the employee has, the amount and level of supervision and how much understanding of the job that the employee needs.  Employers may be asked by NPWHC to provide additional information.

Another thing to keep in mind s that O*NET job zones also provide guidance in determining whether the job offer is for an entry level, qualified, experienced or fully competent employee in determining the wage level.  A prevailing wage determination at a higher level may be warranted if the employer requirements are at the upper range of the occupation scale.  That is, a low level position within the occupation may allow for a Level 1 Wage, while a supervisory or experienced role may require a Level 4 Wage within that job classification.

The law provides that in instances where there is no collective bargaining agreement, the employer may choose to use a current wage determination from certain private services, at the employer’s cost.  This employer survey may be submitted initially or after the NPWHC issues a prevailing wage determination.  If the employer submits the wage survey after the initial NPHWC prevailing wage determination, the new wage data from the survey is treated as a new PWD request.

The NPWHC has the authority to request additional information from the employer if it lacks enough information to make the prevailing wage determination.  The NPWHC issues its wage termination on the ETA Form 9141, which is sent back to the employer.  The response states the specific wage rate and cites the source of the information.  PWD start and end dates must also be provided to the employer.

If the employer disagrees with the PWD, they have the right to request a redetermination from the Center Director and, if unsuccessful there, with the Board of Alien Labor Certification Appeals (“BALCA”).

Once the employer obtains a final, approved PWD, they may begin job recruitment efforts.

Is My Child Already a US Citizen?

Parents always want the best for the children and U.S. citizenship is one of the most important gift that a parent can give to their child. It opens doors that normally would be closed and offers protection from deportation from the U.S.  But first, let’s define what is a child under the immigration laws.

A child for citizenship purposes is the:

·         Genetic child of a person – a child born in wedlock and this also includes some children that are conceived through artificial reproductive technology even if they do not share the mother’s DNA.

·         Legitimated – this is a biological child that was born out of wedlock but recognized after their birth as the legitimate child of the father.

·         Adopted – children adopted before reaching the age of 16 (some exceptions under 18), in the legal custody for two years of the parent, and can be an adoption in the U.S. or abroad.

You might be wondering about step-children. Step-children are considered children for visa purposes but not for citizenship purposes. This means you can apply for an immigrant visa for your step-child to come live with you in the U.S. but they’ll have to apply for citizenship on their own.

Most children will get U.S. citizenship by being born in the U.S.  so this information only applies to children born outside of the U.S.

Other children will get U.S. citizenship from the moment they are born if the following is true:

·         They have at least one parent who is a U.S. citizen when they are born and

·         That U.S. citizen parent meets certain residence and physical presence requirements. These requirements are complicated so we encourage you to speak to a lawyer. Also, it matters if the parents were married or not when the child is born.

Some children will get U.S. citizenship after they are born if the following is true (only applies to children born after 02/27/2001):

·         The child has at least one parent who is a U.S. citizen by birth or naturalization;

·         The child’s U.S. parent meets certain physical presence requirements;

·         The child is under 18;

·         The child is living in the legal and physical custody of the U.S. citizen parent;

·         The child entered the U.S. with permission and remains in legal status.

A final and important point for parents to consider is that you only get one chance to request a Certificate of Citizenship for your child. If you are denied, you cannot reapply. You can only ask USCIS to let you reopen the case if you have new evidence or if you reconsider their decision if were denied improperly. For this reason, do not apply for a Certificate of Citizenship unless you are sure your child fits the above rules.

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DHS Policy statement on new policies for apprehension, detention and removal of aliens in the U.S.

The Department of Homeland Security (DHS) has issued its first policy update in light of President Obama’s recent executive order on immigration issues.  Secretary Jeh Johnson issued a memo on November 20, 2014 to the heads of Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP) and Citizenship and Immigration Service (CIS).  The memo rescinds and updates prior agency memos on the use of prosecutorial discretion.

Secretary Johnson issued the memo to “provide clearer and more effective guidance” on enforcement priorities.  The agency will continue to focus deportation efforts on:

  • Threats to national security
  • Threats to public safety
  • Securing the border

The memo acknowledges “limited resources” and flatly admits that DHS simply cannot respond to all immigration violations or remove all persons who are in the U.S. without status.  In light of this, DHS must exercise prosecutorial discretion and focus on these priorities.

Importantly, Secretary Johnson called upon the three agencies to use prosecutorial discretion not only in deciding whether to file for deportation, but at every stage of those proceedings as well.  Although early use of discretion is encouraged so as to allow for efficient use of government resources, the memo specifically envisions and recognizes the use of discretion throughout the process, including in deciding:

whom to stop, question and arrest; whom to detain or release; whether to settle, dismiss, appeal or join in a motion on a case; and whether to grant deferred action, parole or a stay of removal instead of pursuing removal in a case.

The memo then discusses the three civil immigration enforcment policies.

Threats to national security, border security and public safety

The highest priority is to be given to aliens engaged in terrorist activity or posing a threat to national security, aliens caught at the border, gang members, convicted felons and aggravated felons.

Aliens with misdemeanors or new immigration violations

The second priority is for aliens with 3 or more misdemeanor offenses (other than traffic), aliens convicted of a “significant misdemeanor” such as domestic violence, burglary, sexual assault, aliens who illegally entered or reentered the U.S. after January 1, 2014 and aliens who have significantly abused the visa or visa waiver program.

Other immigration violators

The third priority is for aliens who have been issued a final order of removal on or after January 1, 2014.

The memo goes into effect on January 5, 2015.

My perspective

Some interesting thoughts from this part of the memorandum.  The memo suggests that DHS attorneys can use their new level of discretion in agreeing or disagreeing to join in motions with an alien’s attorney.  Perhaps this means that DHS counsel will be more willing to enter into motions to reopen cases that were previously decided.  T

he fact that the memo distinguishes between people who received a removal order before January 1, 2014 and after suggests that people ordered deported before 2014 may have avenues of relief previously prohibited.  Time will tell on this issue.

The memo does certainly allow for the continued apprehension, detention and removal of anyone in the U.S. without authorization, but again encourages the use of the priority system set out in the memo.  The memo also addresses DHS detention and allows for release from mandatory detention including the sick, primary caregivers of children or anyone else in whom the continued detention does not serve the federal government’s interests.

Stay tuned for more updates.  If you know someone who would like these updates, please forward them this and tell them to click here.

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Deferred Action for Parental Accountability (DAPA)

As part of President Obama’s recently-signed executive orders, a new form of prosecutorial discretion has been announced.  The program is called Deferred Action for Parental Accountability (DAPA) and provides relief from deportation temporarily and allows those eligible for DAPA to get a work authorization card.  In some respects, DAPA tracks the President’s prior grant of deferred action for certain childhood arrivals, but it is important to remember that DAPA has its own set of rules.

In order to be eligible for DAPA, the person must:

  • have a son or daughter who is a U.S. citizen or lawful permanent resident born before November 20, 2014;
  • have been physically present in the U.S. on November 20, 2014;
  • have no lawful immigration status on November 20, 2014;
  • have continuously resided in the U.S. since at least January 1, 2010;
  • not be on the government’s list of enforcement priorities – felons, those convicted of certain misdemeanors, gang members, terrorists, recent unlawful entrants and other immigration law violators;
  • have no other factors that would lead the government to not want to give deferred action; and,
  • pass a background check.

According to news reports, the Department of Homeland Security has directed Immigration and Customs Enforcement (ICE) personnel and attorneys to identify individuals who are eligible for DAPA.  If those DAPA-eligible individuals are in custody, in removal proceedings, or scheduled for deportation to exercise discreton and to close or terminate their cases.

DAPA beneficiaries are expected to be able to work and a grant of DAPA should last 3 years.  The filing fee will be $465 for DAPA.  DAPA individuals will not be eligible for federal benefits including food stamps, financial aid or housing subsidies.  Regulations will be enacted to prohibit DAPA folks from coverage under the Affordable Care Act as well.  USCIS is expected to start taking applications for DAPA in May of 2015.

Finally, as with all aspects of deferred inspection, it is important to discuss what these changes are not.  The changes are not permanent. They could be revoked by the next President or overridden by Congress.  This is not lawful status.  This is not a path to citizenship. People applying for DAPA would, in effect, be raising their hand and saying “I’m here in the U.S. without status.”  This could carry some risk as a new President could cancel deferred action and (re)institute deportation proceedings.  Also, this only applies to undocumented aliens with US citizen children or LPR children.  There is no similar change for undocumented immigrants who are married to US citizens or LPRs.

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Can a student on OPT continue to work while H-1B application is pending?

USCIS accepts H-1B applications subject to the cap up to 180 days before the beginning of the government fiscal year that starts on October 1. Thus, the first day of filing for cap subject H-1Bs is April 1 of each year.   Questions arise regarding what is supposed to happen when a student working on Optional Practical Training (OPT) has their work authorization run out before October 1.  This time period is called the “cap-gap.”

USCIS addressed the “cap-gap” of employment authorization between OPT ending on or after April 1 but not lasting till the October 1 start date by extending the authorized period of employment for all F-1 students who have a properly filed H-1B petition (filed under the cap for the next fiscal year) pending with USCIS. If USCIS approves the H-1B petition, the student receives a work extension that enables him/her to remain in the United States until the requested start date indicated on the H-1B petition, i.e., October 1 of that year.

The student’s Designated School Official (DSO) should process the Cap-Gap Extension I-20 on behalf of the student. The student will need to provide the I-129 receipt for the H-1B application to the DSO so an extended I-20 may be issued.

The cap-gap extension of status applies to all F-1 students in all fields of study with pending H-1B petitions (whether the 12 month card or STEM extension). For employment authorization to be extended during the cap-gap, the student must have an approved period of post-completion or 17 month extension with a future OPT end date.  Stated another way, the OPT end date must always fall after the date the H-1B petition was filed.

A student who does not have post-completion OPT or 17-month extension, or whose post-completion OPT or 17-month extension has expired before the H-1B petition was filed, will have the duration of status extended as a grace period for 60 days, but will not have cap-gap work authorization.

 

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The benefits of citizenship

If you are thinking about becoming a U.S. citizen, you probably have a LOT of questions.  We are going to try and simplify the process for you and answer some common questions that people have.
What are some of the benefits of becoming a citizen?
  • Citizens are entitled to vote in local, state and federal government elections.  Under U.S. law, it is illegal for non-citizens to vote.  Only citizens of the United States are allowed to vote in any type of election.  By becoming a U.S. citizen, you have the chance to participate in American democracy and electing officials.
  • Citizens are entitled to travel inside and outside of the U.S. with no restriction on time spent outside of the U.S.  As immigration attorneys, our office hears of delays and denials at the border or port of entry all the time.  When you become a U.S. citizen, you get preferential treatment coming through Customs with a separate line dedicated only to U.S. citizens.
  • Citizens can serve on juries.  Only U.S. citizens are allowed to serve on state or federal juries.  The jury system is an important part of our judicial system.  By sitting on a jury, you can contribute back to American society and help determine the fate of people involved in criminal and civil court cases.
  • Citizens are often entitled to more healthcare and benefits.  Many state and federal health benefits are only available to U.S. citizens.  Other benefits are available to lawful permanent residents, but end after a certain number of years.  By becoming a citizen, you are eligible to all of the benefits available to any other U.S. citizen.
  • Citizens cannot be deported.  Crimes (other than fraud related to the naturalization process) cannot lead to a citizen being placed in removal (deportation) proceedings.  This is a very big deal.  Our office has handled numerous deportation cases that could have been avoided entirely if the person eligible for citizenship had applied for naturalization before getting into trouble with the law.
  • Citizens have expanded and streamlined opportunities to petition for immigration benefits for their relatives.  A big part of dealing with the immigration service and with the State Department is waiting.  The fact is that citizens who sponsor a loved one for an immigration benefit have faster processing times than lawful permanent residents who try and sponsor.  And some benefits are only available to U.S. citizens.

If you have any questions or would like more information, please call us at (314) 961-8200 or email us at info@hackinglawpractice.com.