Law Offices of Lal Varghese, PLLC, Dallas

Thursday, May 12, 2016

USCIS Reaches FY 2017 H-1B Cap

Lal Varghese, Attorney at Law, Dallas

Beginning April 1, 2016, U.S. Citizenship and Immigration Services (USCIS) began accepting H-1B petitions subject to the fiscal year (FY) 2017 cap. USCIS fiscal year begins on Oct. 1st and end on Sep. 30th of every year. The new petitions for H-1B quota for next fiscal year will be accepted only from April 1st ie; within 6 months of the start date of the job which is Oct. 1st, which is the first day of the fiscal year. In order to file a petition with the USCIS both prevailing wage and labor condition application must be approved by the Dept. of labor. It requires lot of time attorney time, legal assistant time once the employer and employee provided documents to a law firm. The best time to contact a law firm for filing new H-1B cases will be in the month of January of February of each so that there will be enough time both for the employer and employee to collect all required documents and also for the law firm to prepare and file a good case with the USCIS which is approvable. U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering and computer programming. Please remember that this program is only for highly specialized persons to fill the specialty occupations, which requires a minimum of 4 years of U. S bachelor’s degree or its foreign equivalent.

The congressionally mandated cap on H-1B visas for FY 2017 is 65,000. The first 20,000 H-1B petitions filed for individuals with a U.S. master’s degree or higher are exempt from the 65,000 cap. USCIS has received more than 65,000 petitions during the first five business days of this year’s program, but they are not disclosing how many petitions they received this year. Last year they received about 237,000 petitions for 65,000 cap subject petitions for 2016 quota. The agency had monitored the number of petitions received and notified the public when the H-1B cap has been met. If USCIS receives an excess of petitions during the first five business days, the agency will use a computer-generated lottery system to randomly select the number of petitions required to meet the cap. USCIS will reject all unselected petitions that are subject to the cap as well as any petitions received after the cap has closed.

H-1B petitioners may still continue to request premium processing together with their H-1B petition. However, please note that USCIS has temporarily adjusted its current premium processing practice based on historic premium processing receipt levels and the possibility that the H-1B cap will be met in the first five business days of the filing season. In order to prioritize data entry for cap-subject H-1B petitions, USCIS will begin premium processing for H-1B cap-subject petitions requesting premium processing no later than May 16, 2016.

H-1B petitioners are reminded that when the temporary employment or training will be in different locations, the state where your company or organization’s primary office is located will determine where you should send your Form I-129 package, regardless of where in the United States the various worksites are located. Please ensure that when temporary employment or training will be in different locations, the address on page 1, part 1 of Form I-129 is for your organization’s primary office. Please note that when listing a “home office” as a work site location on Part 5, question 3, USCIS will consider this a separate and distinct work site location.

H-1B petitioners must follow all statutory and regulatory requirements as they prepare petitions in order to avoid delays in processing and possible requests for evidence. USCIS has developed detailed information, including an optional checklist, Form M-735, Optional Checklist for Form I-129 H-1B Filings, on how to complete and submit an FY 2017 H-1B petition. The optional checklist for FY 2017 will be available within the next week. Cases will be considered accepted on the date USCIS receives a properly filed petition with the appropriate fees.

On April 07, 2016, U.S. Citizenship and Immigration Services (USCIS) has reached the congressionally mandated H-1B cap for fiscal year (FY) 2017. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the U.S. advanced degree exemption. USCIS will use a computer-generated process, also known as the lottery, to randomly select the petitions needed to meet the caps of 65,000 visas for the general category and 20,000 for the advanced degree exemption. This 20,000 U. S master’s degree petitions are not counted for the 65,000 regular H-1B quota.

USCIS will first randomly select petitions for the advanced degree exemption. All unselected advanced degree petitions will become part of the random selection process for the 65,000 general cap. The agency will reject and return filing fees for all unselected cap-subject petitions that are not duplicate filings. Before running the lottery, USCIS will complete initial intake for all filings received during the filing period, which ended April 7. Due to the high number of petitions, USCIS is not yet able to announce the date it will conduct the random selection process.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap, and who still retain their cap number, will also not be counted toward the congressionally mandated FY 2017 H-1B cap. USCIS will continue to accept and process petitions filed to: •Extend the amount of time a current H-1B worker may remain in the United States; •Change the terms of employment for current H-1B workers; •Allow current H-1B workers to change employers; and •Allow current H-1B workers to work concurrently in a second H-1B position. U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering and computer programming.

Disclaimer: Lal Varghese, Attorney at Law, with more than 36 (about 21 years in U. S. Immigration Laws) years of experience as an Attorney, mainly practices in U. S. immigration law and is located in Dallas, Texas. He does not claim authorship for above referenced information since it is obtained from several sources including USCIS, DOS web sites, AILA and other Internet based legal sources, and published for the benefit of the general public. Lal Varghese, Attorney at Law or the publisher is not responsible or liable for anything stated above, since it is generalized information about the subject matter collected from various legal sources. For individual cases and specific questions you are advised to consult any attorney of your choice or contact your State Bar Organizations or local Bar Associations or American Immigration Lawyers’ Association (AILA) for finding an attorney or for any legal help. You can visit our website at: www.indiaimmigrationusa.com or www.indiaimmigrationusa.blogspot.com or www.facebook.com/groups/usattorney for information about U. S. immigration law related matters. Lal Varghese, Attorney at Law can be reached at (972) 788-0777 or at his e-mail: attylal@aol.com if you have any questions.

DHS Extends Eligibility for Employment Authorization to Certain H-4 Dependent Spouses of H-1B Nonimmigrants Seeking Employment-Based Lawful Permanent Residence

Lal Varghese, Attorney at Law, Dallas

There is lot of misunderstandings about the work authorization for the spouses of H-1B visa holders. The final rule was published on Feb. 24, 2015 by the U.S. Citizenship and Immigration Services (USCIS) in the Federal Register with an effective date of May 26, 2015. By this new rule, the Department of Homeland Security (DHS) is extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status. DHS amended the regulations to allow these H-4 dependent spouses to accept employment in the United States.

Finalizing the H-4 employment eligibility was an important element of the immigration executive actions President Obama announced in November 2014. Extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants is one of several initiatives underway to modernize, improve and clarify visa programs to grow the U.S. economy and create jobs. Allowing the spouses of these visa holders to legally work in the United States makes perfect sense, and it helps U.S. businesses keep their highly skilled workers by increasing the chances these workers will choose to stay in this country during the transition from temporary workers to permanent residents. It also provides more economic stability and better quality of life for the affected families.

Eligible individuals include certain H-4 dependent spouses of H-1B nonimmigrants who:

•Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or

•Have been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act. The Act permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status.

In other words this new rule provides only those spouses of H-1B nonimmigrants who have an approved I-140 petition or those H-1B nonimmigrant workers who are allowed to stay beyond the initial 6 year period on the reason that their labor certification is pending for more than one year. This means that all other spouses of H-1B nonimmigrants are not eligible to apply for work permit under these rules. Recently there are several news appearing in desi papers especially here to create an impression that all spouses of H-1B nonimmigrants are eligible to apply for work permit.

DHS expects this change will reduce the economic burdens and personal stresses H-1B nonimmigrants and their families may experience during the transition from nonimmigrant to lawful permanent resident status, and facilitate their integration into American society. As such, the change should reduce certain disincentives that currently lead H-1B nonimmigrants to abandon efforts to remain in the United States while seeking lawful permanent residence, which will minimize disruptions to U.S. businesses employing them. The change should also support the U.S. economy because the contributions H-1B nonimmigrants make to entrepreneurship and science help promote economic growth and job creation. The rule also will bring U.S. immigration policies more in line with those laws of other countries that compete to attract similar highly skilled workers. Under the rule, eligible H-4 dependent spouses must file Form I-765, Application for Employment Authorization, with supporting evidence and the required $380 fee in order to obtain employment authorization and receive a Form I-766, Employment Authorization Document (EAD). USCIS will begin accepting applications on May 26, 2015. Once USCIS approves the Form I-765 and the H-4 dependent spouse receives an EAD, he or she may begin working in the United States.

USCIS estimates the number of individuals eligible to apply for employment authorization under this rule could be as high as 179,600 in the first year and 55,000 annually in subsequent years. USCIS reminds those potentially eligible that this rule is not considered effective until May 26, 2015. Individuals should not submit an application to USCIS before the effective date, and should avoid anyone who offers to assist in submitting an application to USCIS before the effective date.

Applying for Admission into United States

Lal Varghese, Attorney at Law, Dallas

Lot of people thinks that if they have multiple entry visitor visa to United States they can come at any time and visit here. It is true to a certain extent, but if you stay majority of time in a any given year in United States and not in your home country, then the CBP officers are the airport may deny your application for admission to United States. Visa is only a documents which allows you to board the plane from your country of origin and to come to the immigration counter at the port of entry (airport in U. S. A. or pre-clearance port of entry in another country on your way to U. S. A) and to seek permission to enter United States. In other words visa is not a guarantee for anyone to enter into United States. It is just like a passport issued by your country to travel outside while a visa allows you to board a plane finally ends its destination in United States.

All persons arriving at a port-of-entry to the United States or pre-clearance port of entry in another country or in the originating country are subject to inspection by U.S. Customs and Border Protection (CBP) officers. CBP officers will conduct the Immigration, Customs and Agriculture components of the Inspections process. Aliens seeking to lawfully enter into the United States must establish their admissibility to the satisfaction of the CBP officer. This is done as part of the inspection process since all travelers who are applying for admission into the United States at the port of entry may not be eligible to be admitted and are classified as inadmissible aliens.

Under INA § 212(a)(1)(A), aliens seeking to travel into the United States who have certain health-related issues may be inadmissible. Should it be necessary, a physical and/or mental examination of an applicant for admission should be conducted by a panel physician. When CBP officers encounter an alien at a port of entry who may be inadmissible under public health grounds, the CBP officer may refer the alien to a panel physician. In those circumstances, the CBP officer will provide the alien with the list of panel physicians. In that case, the alien will have to go to one of the panel physicians for an evaluation before again presenting themselves for admission. The panel physician will notify CBP of the results of the examination, so that CBP can make an admissibility determination. The panel physician evaluation is valid for only one year. Thus, even if you have previously had such an evaluation, if it has been more than a year since the examination was conducted, a new examination will likely be necessary.

Before you travel, if you have any concerns about your admissibility, you should seek legal counsel. CBP cannot provide legal advice to members of the public. If you are determined to be inadmissible you could, in certain circumstances, be placed into removal proceedings. In some circumstances an officer may, in his or her sole discretion, determine to permit you to withdraw your application for admission. A determination of inadmissibility may have an impact on your future admissibility and may result in the cancellation of your visa, if you have one. If you withdraw your application for admission and returns to your home country it may not prohibit you from obtaining some other visa or additional documents to prove your eligibility and seek admission again. It should be remembered that you should not never ever use fraudulent documents to enter United States and if found it will be a permanent bar for you to enter United States for the rest of your life.

In order to increase efficiency, reduce operating costs and streamline the admissions process, U.S. Customs and Border Protection has automated Form I-94 at air and sea ports of entry. The paper form will no longer be provided to a traveler upon arrival, except in limited circumstances. The traveler will be provided with a CBP admission stamp on their travel document. If a traveler needs a copy of their I-94 (record of admission) for verification of alien registration, immigration status or employment authorization, it can be obtained from. www.cbp.gov/I94.

Form I-94 is the DHS Arrival/Departure Record issued to aliens who are admitted to the U.S., who are adjusting status while in the U.S. or extending their stay, among other things. A CBP officer in the past generally attaches the I-94 to the non-immigrant visitor’s passport upon U.S. entry. The visitor must exit the U.S. on or before the departure date stamped on the I-94. I-94 automation will not impact a traveler’s ability to enter the U.S. CBP will continue to create an I- 94 record for all travelers who require one, but the paper form will be created in an electronic format and not provided to the traveler. If a traveler re- quires a paper version of Form I-94, it will be available at www.cbp.gov/I94

CBP will provide each traveler with an admission stamp that is annotated with date of admission, class of admission and admitted until date. Travelers will not need to do anything differently upon exiting the U.S. Travelers issued a paper Form I-94 should surrender it to the commercial carrier or CBP upon departure. The departure will be recorded electronically with manifest information provided by the carrier or by CBP. If travelers did not receive a paper Form I-94 and the record was created electronically, CBP will record their departure using manifest information obtained from the carrier.

The I-94 admission record is created electronically and maintained in CBP systems. CBP will verify the I-94 electronically to re-validate an expired visa if the traveler meets the conditions of automatic revalidation. If entry occurred prior to automation, a paper form must be presented in order to comply with validation requirements. Rather than distributing a paper Form I-94, CBP will scan a traveler’s passport, generating an electronic arrival record with data elements found on the current paper Form I-94. CBP will make the electronic I-94 available at www.cbp.gov/I94. Travelers may visit this website to print their electronic I-94 number before applying for immigration or public benefits, such as a driver’s license or a Social Security number.

Since automation only affects air and sea arrivals, a paper Form I-94 is still issued at the land border ports of entry. Also, CBP intends to continue to provide a paper Form I-94 to certain classes of aliens, such as refugees, certain asylees and parolees, and whenever CBP determines the issuance of a paper form is appropriate. Individuals without a foreign passport will be sent to CBP’s secondary inspection upon arrival into the U.S., where they will receive their electronic I- 94 number. These individuals will be issued a paper I-94 with the pre-printed number crossed out, and the actual electronic I-94 number handwritten upon it. If an applicant was admitted incorrectly to the U.S., the applicant should visit a local CBP Deferred Inspection Site or port of entry to have his or her admission corrected. A list of Deferred Inspection Sites and ports of entry can be found at www.cbp.gov, under the “Ports” link at the bottom of the page.

Humanitarian Reinstatement

Lal Varghese, Attorney at Law, Dallas

Recently, lot of people are confused about the scope of humanitarian re-instatement. There are two types of humanitarian re-instatement available under the U. S Immigration Laws. It is a discretionary form of relief available to the principal beneficiary of an approved Form I-130, Petition for Alien Relative, that was approved prior to the death of the petitioner. The first one is provided under section 204(l) of the Immigration and Nationality Act when the principal beneficiary living in United States when the petitioner dies. The other one is provided when the petitioner dies and the principal applicant is living outside United States. The humanitarian reinstatement is needed since under the U. S Immigration Laws when the petitioner dies prior to the approval of the petition, it cannot be continued to be processed and other scenario is that when the petitioner dies after the approval of the petition and before the principal enters on immigrant visa. After the approval of the petition if the petitioner dies the approved petition is automatically revoked under law. Hence, a humanitarian reinstatement request need to be filed to cancel the automatic revocation under the laws.

The basic eligibility for humanitarian reinstatement under section 204(l) cases is that it is only be requested by the principal beneficiary when the petitioner of an approved Form I-130, Petition for Alien Relative, has died. Humanitarian reinstatement cannot be granted if the petitioner died while the petition was pending, but see Basic Eligibility for Section 204(I) Relief for Surviving Relatives to see if you may qualify for another form of relief.

Most immediate relatives and family-based immigrants are required to have Form I-864, Affidavit of Support under Section 213A of the Act. The petitioner’s death does not change the way that the Form I-864 requirement applies to each case. If you were required to have Form I-864 and the petitioner died, you must have either a new Form I-864 from a substitute sponsor or Form I-864W, Intending Immigrant’s Affidavit of Support Exemption. The substitute sponsor must be:

A U.S. citizen, national, or lawful permanent resident;

• At least 18 years old; and
• Your spouse, parent, mother-in-law, father-in-law, sibling, child, son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian.

The above named relatives must the relatives of the principal beneficiary and not of the deceased petitioner. Lot of people are confused about this also, since you cannot simply find someone related to you and submit new affidavit of support and continue to process the case. You must submit copy of the death certificate and submit your request with evidence that you are eligible along with the affidavit of support from a qualified relative.

Humanitarian reinstatement is a discretionary benefit. Exercising discretion means weighing positive factors against negative factors to make a decision. In addition to meeting the basic requirements for humanitarian reinstatement, your request must warrant a favorable exercise of discretion, meaning that the “pros” in granting your request outweigh the “cons.” There is no form or fee to ask for humanitarian reinstatement. You need to make a written request with supporting evidence to the USCIS office that originally approved the petition. When you request humanitarian reinstatement, be sure to include evidence that a favorable exercise of discretion is warranted, which may include, but is not limited to:

◦ Impact on family living in the United States (especially U.S. citizens, lawful permanent residents, or others lawfully present);

◦ Advanced age or health concerns;

◦ Lawful residence in the United States for a lengthy period;

◦ Ties or lack thereof to your home country;

◦ Other factors, such as unusually lengthy government processing delays; and

◦ Any and all other factors you believe weigh in favor of reinstatement, with supporting documentation

On the other hand when a petitioner dies in an approved petition while the principal beneficiary is outside United States and if the case is at National Visa Center or at Consulate, a copy of the death certificate of the petitioner must be submitted immediately alerting NVC or Consulate about the death of the petitioner. You are not allowed to conceal the death of the petitioner and if continue to process the case either before NVC or at Consulate it considered as fraud. Once NVC or consulate receives the copy of the death certificate they will return the file to USCIS since the approved file is automatically revoked. If you believe that there are favorable factors in your case, a humanitarian re-instatement request must be filed with the USCIS which approved the petition. As stated above there is no form or fee need to be paid to USCIS, but a request in writing by the principal beneficiary with enough supporting documents need to be filed in order exercise the humanitarian reinstatement.

In the case of family relations like spouse, parents, children, the exercise of the discretion may be warranted provided enough supporting documents and evidence are filed along with the request. There are lot of misunderstanding about this discretionary relief. In the case of brother and sister case this discretion is very seldom exercised since there is no such circumstances existed to warrant discretion. Similarly, when the principal beneficiary dies, no one can file humanitarian reinstatement. There are lot of agents misguiding people in India about this discretionary relief and you should always consult with an experienced immigration attorney before doing anything. Also, lot of agents in India advise people to conceal the death of the petitioner, which is very serious matter and whoever signs the affidavit of support with petitioner’s signature is committing fraud and will be liable for criminal fraud charges.

Child Status Protection Act (CSPA)

Lal Varghese, Attorney at Law, Dallas
The Child Status Protection Act (CSPA) amended the Immigration Nationality Act (INA) by changing who qualifies as a child for purposes of immigrant. This permits certain beneficiaries (see the glossary for a definition of the term “beneficiary”) to retain classification as a “child,” even if he or she has reached the age of 21.
A “child” is defined as an individual who is unmarried and under the age of 21. Before CSPA took effect on August 6, 2002, a beneficiary who turned 21 at any time prior to receiving permanent residence could not be considered a child for immigration purposes. This situation is described as “aging out.” Congress recognized that many beneficiaries were aging out because of large backlogs and long processing times for visa petitions. CSPA is designed to protect a beneficiary’s immigration classification as a child when he or she ages out due to excessive processing times. CSPA can protect “child” status for family-based immigrants, employment-based immigrants, and some humanitarian program immigrants (refugees, asylees, VAWA).
How to Qualify for CSPA is based upon several eligibility requirements governed by the CSPA related memos and rules issued by USCIS and also by the Dept. of State. Immediate Relatives are the spouses, parents and under 21 unmarried children of U. S citizens. Preference Classification for Permanent Residence or Derivative and those who come under four different categories of the family category. The basic requirements to become eligible under CSPA are given below. If a child is eligible such child can apply for visas with parents and come with parents to USA and obtain Green Card without any problems. In order to be eligible it is very important that when you receive the Choice of Agent Form from National Visa Center (NVC) you should contact an experienced immigration attorney. If you do not contact an Attorney and decide to process the case by yourself by remitting the fee for those who are only listed in the fee bills, it will be very difficult to add the names of aged out children. It is because you did not remit the fee for them, you did not submit online visa application for them, you did not submit affidavit of support for them. Hence, it is very important you need to contact experiences immigration attorneys in CSPA matters to add the names of aged out children when you receive the Choice of Agent Form from NVC.
The basic provisions under the CSPA laws enacted by Congress are as follows:
•If the petition (Form I-130, Petition for Alien Relative) was filed by a U.S. citizen parent for his or her child, the beneficiary’s age “freezes” on the date of filing.
•If the petition (Form I-130) was filed by a permanent resident parent and the parent naturalizes before the beneficiary turns 21, the beneficiary’s age “freezes” on the date the petitioner naturalized.
•CSPA allows the time a visa petition was pending to be subtracted from the beneficiary’s biological age at the time of visa availability so that the applicant is not penalized for the time in which USCIS did not adjudicate the petition.
The following are the main eligibility criteria to be eligible under CSPA.
•Must be the beneficiary of a pending or approved visa petition on or after August 6, 2002.
•The beneficiary must not have had a final decision on an application for adjustment of status or an immigrant visa before August 6, 2002.
•The child must “seek to acquire” permanent residence within 1 year of a visa becoming available.

USCIS interprets “seek to acquire” as having a Form I-824, Application for Action on an Approved Application or Petition, filed on the child’s behalf or the filing of a Form I-485, Application to Register Permanent Residence or Adjust Status, or submit Form DS-230, Application for Immigrant Visa and Alien Registration from the Department of State. The date of visa availability means the first day of the first month a visa in the appropriate category was listed as available in the Department of State’s visa bulletin or the date the visa petition was approved, whichever is later.
Note: Individuals may be eligible to apply for permanent residence under CSPA after 1 year of a visa becoming available if all of the following are true:
•They are a beneficiary of a visa petition that was approved prior to August 6, 2002
•They had not received a final decision on an application for permanent residence based or immigrant visa on that visa petition prior to August 6, 2002
•The visa became available on or after August 7, 2001
•They met all of the other eligibility requirements for CSPA (see above)

CSPA provides another type of relief referred to as the “opt-out.” This is very limited in scope. If a permanent resident petitioner filed a Form I-130, Petition for Alien Relative, for an unmarried son/daughter and then the petitioner naturalized, the beneficiary can choose to remain in the second preference classification instead of automatically converting to a 1st preference classification. The reason that this may be beneficial is that sometimes the waiting time for the second preference visa is shorter than the waiting time for the first preference visa. If this situation applies, check the visa bulletin to see if the opt-out may be helpful. If the beneficiary wants to opt-out, he or she must make a request in writing to USCIS.
CSPA provides protections for refugee and asylee children who aged out on or after August 6, 2002. The child must remain unmarried to benefit from CSPA protection. The child’s age is determined based on the time the parent’s Form I-589, Application for Asylum and Withholding of Removal, or Form I-590, Registration for Classification as a Refugee, was filed. After August 6, 2002, as long as the child was unmarried and under 21 at the time either of these forms was filed, and the child was listed on the Form I-589 or I-590, the child will remain a “child” regardless of age and can continue adjustment of status or consular processing on that basis. For Forms I-730 or I-485, Application to Register Permanent Residence and Adjust Status, (under Section 209) that were pending on or after August 6, 2002, the child’s age is determined by using the age on the date the principal filed Form I-589 or Form I-590, as long as the child was unmarried and under 21 at that time and remains unmarried.
Disclaimer: Lal Varghese, Attorney at Law, with more than 36 (about 21 years in U. S. Immigration Laws) years of experience as an Attorney, mainly practices in U. S. immigration law and is located in Dallas, Texas. He does not claim authorship for above referenced information since it is obtained from several sources including USCIS, DOS web sites, AILA and other Internet based legal sources, and published for the benefit of the general public. Lal Varghese, Attorney at Law or the publisher is not responsible or liable for anything stated above, since it is generalized information about the subject matter collected from various legal sources. For individual cases and specific questions you are advised to consult any attorney of your choice or contact your State Bar Organizations or local Bar Associations or American Immigration Lawyers’ Association (AILA) for finding an attorney or for any legal help. You can visit our website at: www.indiaimmigrationusa.com or www.indiaimmigrationusa.blogspot.com or www.facebook.com/groups/usattorney for information about U. S. immigration law related matters. Lal Varghese, Attorney at Law can be reached at (972) 788-0777 or at his e-mail: attylal@aol.com if you have any questions.

DHS Announces Intent to Expand Preclearance to 10 New Airports

Lal Varghese, Attorney at Law, Dallas

While returning from a visit outside United States, you might have wondered that in some airports like in Abhu Dhabi you have to go through the customs and immigration clearance and you straight come out of the airport while landing in United States. This is because U.S. Customs and Border Protection (CBP) an agency under the Department of Homeland Security has implemented pre-clearance in couple of foreign airports already. The intention is to stop potential threats before they arrive in U. S soil. This preclearance facility is available for all passengers including U. S citizens, Green Card holder and other nonimmigrant visa holder traveling to United States from various countries.

Secretary of Homeland Security announced recently that the United States intends to enter into negotiations to expand air preclearance operations to ten new foreign airports, located in nine separate countries: Belgium, the Dominican Republic, Japan, the Netherlands, Norway, Spain, Sweden, Turkey and the United Kingdom. If negotiations are successful, preclearance – where each traveler undergoes immigration, customs, and agriculture inspection by (CBP) before boarding a direct flight to the United States– could be completed before departure from these foreign airports rather than upon arrival in the U.S. Expanding the preclearance program is both a security imperative – enabling CBP to stop potential threats before they arrive on US soil – as well as a strong economic opportunity.

This is a significant homeland security priority of in building more preclearance capacity at airports overseas. CBP has this pre-clearance facility now in 15 airports including Abu Dhabi if you fly by Ithihad Airways . The CBP spokesperson said they are pleased that CBP is seeking negotiations with ten new airports in nine countries. CBP wants to take every opportunity that comes across to push the homeland security out beyond the borders of United States so that it is not defending the homeland from the one-yard line. Preclearance is a win-win for the traveling public. It provides aviation and homeland security, and it reduces wait times upon arrival at the busiest U.S. airports.

After nearly a year-long process that began with soliciting expressions of interest from foreign airports, CBP identified these airports in coordination with the Transportation Security Administration and the Department of State (DOS) and prioritized them based on the greatest potential to support security and travel facilitation. More than two dozen foreign airports expressed an interest in opening Preclearance facilities. DHS and DOS evaluated all interested foreign airports in collaboration with stakeholders across the government, and with the U.S. and global aviation industry.

The 10 airports identified for possible preclearance locations include: Brussels Airport, Belgium; Punta Cana Airport, Dominican Republic; Narita International Airport, Japan; Amsterdam Airport Schipol, Netherlands; Oslo Airport, Norway; Madrid-Barajas Airport, Spain; Stockholm Arlanda Airport, Sweden; Istanbul Ataturk Airport, Turkey; and London Heathrow Airport and Manchester Airport, United Kingdom. These countries represent some of the busiest last points of departure to the United States in 2014, nearly 20 million passengers traveled from these ten airports to the US.

CP’s preclearance operations are an important step in the U.S. government’s effort to prevent terrorism from coming to the borders of United States and where it can identify foreign airports willing to partner with CBP, additional preclearance agreements will further protect the safety and security of our citizens while also streamlining legitimate travel and commerce. The United States and the governments of the host countries are expected to begin negotiations which could result in a final air preclearance agreement, paving the way for the establishment of a new preclearance facility.

Preclearance is the process by which CBP Officers stationed abroad screen and make admissibility decisions about passengers and their accompanying goods or baggage heading to the United States before they leave a foreign port. TSA requires that passenger and accessible property screening at a foreign preclearance airport conforms to U.S. aviation security screening standards so that the U.S.-bound aircraft can disembark passengers at a domestic U.S. air terminal without needing to be rescreened. CBP officers do, however, retain the authority to inspect passengers and their accompanying goods or baggage after arriving in the United States. Today, CBP has more than 600 law enforcement officers and agriculture specialists stationed at 15 air preclearance locations in 6 countries: Dublin and Shannon in Ireland; Aruba; Freeport and Nassau in The Bahamas; Bermuda; Calgary, Toronto, Edmonton, Halifax, Montreal, Ottawa, Vancouver, and Winnipeg in Canada; and Abu Dhabi, United Arab Emirates. Last year, CBP cleared over 16 million passengers through these preclearance locations.

CBP is transforming the international arrivals experience for travelers creating a faster and more traveler-friendly process. Programs like Global Entry, NEXUS, SENTRI, Automated Passport Control (APC) and Mobile Passport Control (MPC) are streamlining and expediting travelers’ entry into the United States, while maintaining the highest standards of security. With the expansion of CBP’s Trusted Traveler Programs, APC and MPC, average wait times were down 13 percent at the top 10 airports last year.

The recent preclearance announcement is one in a series of steps the Administration has taken to accelerate the growth of the American travel and tourism industry, while enforcing the highest level of security. For example, the Administration has facilitated travel to the United States by decreasing wait times for a visa from countries like China, India, and Brazil from a few months to just a few days.

Executive Actions on Immigration (Part 4 of 4 Part Series)

Lal Varghese, Attorney at Law, Dallas

Q8: What if someone’s case is denied or they fail to pass a background check?

A8: Individuals who knowingly make a misrepresentation, or knowingly fail to disclose facts, in an effort to obtain deferred action or work authorization through this process will not receive favorable consideration for deferred action. In addition, USCIS will apply its current policy governing the referral of individual cases to Immigration and Customs Enforcement (ICE) and the issuance of Notices to Appear before an immigration judge. If the background check or other information uncovered during the review of a request for deferred action indicates that an individual’s presence in the United States threatens public safety or national security, USCIS will deny the request and refer the matter for criminal investigation and possible removal by ICE, consistent with existing processes.

Q9: If I currently have DACA, will I need to do anything to receive the third year of deferred action and work authorization provided by the executive initiatives?

A9: The new three-year work authorization timeframe will be applied for applications currently pending and those received after the President’s announcement. Work authorizations already issued for a two-year period under the current guidelines will continue to be valid through the validity period indicated on the card. USCIS is exploring means to extend previously issued two-year work authorization renewals to the new three-year period.

Q10: Will the information I share in my request for consideration of deferred action be used for immigration enforcement purposes?

A10: Information provided in your request is protected from disclosure to Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings unless you meet the criteria for the issuance of a Notice to Appear or a referral to ICE under the criteria set forth in USCIS’ Notice to Appear guidance. Individuals who are granted deferred action will not be referred to ICE. The information may be shared, however, with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including:

•Assisting in the consideration of the deferred action request;

•To identify or prevent fraudulent claims;

•For national security purposes; or

•For the investigation or prosecution of a criminal offense.

This policy covers family members and guardians, in addition to you.

Q11: What is USCIS doing to assist dependents of U.S. armed services personnel?

A11: USCIS is working with the Department of Defense to determine how to expand parole authorization to dependents of certain individuals enlisting or enlisted in the U.S. armed services. For information on the existing parole-in-place policy for military personnel, please read this policy memorandum.

Note: This is the fourth and final part of a four part series on the subject matter. The same information is available at www.uscis.gov web site of the Dept. of Homeland Security. Thanks.

Executive Actions on Immigration (Part 3 of 4 Part Series)

Lal Varghese, Attorney at Law, Dallas

Key Questions and Answers

Q1: When will USCIS begin accepting applications related to these executive initiatives?

A1: While USCIS is not accepting applications at this time, individuals who think they may be eligible for one or more of the new initiatives may prepare now by gathering documentation that establishes factors such as their:

•Identity;

•Relationship to a U.S. citizen or lawful permanent resident; and

•Continuous residence in the United States over the last five years or more.

USCIS expects to begin accepting applications for the:

•Expanded DACA program approximately 90 days after the President’s November 20, 2014, announcement; and

•Deferred action for parents of U.S. citizens and lawful permanent residents (Deferred Action for Parental Accountability) approximately 180 days after the President’s November 20, 2014, announcement.

Others programs will be implemented after new guidance and regulations are issued.

We strongly encourage you to subscribe to receive an email whenever additional information is available on the USCIS website. Remember that the only way to get official information is directly from USCIS. Unauthorized practitioners of immigration law may try to take advantage of you by charging a fee to submit forms to USCIS on your behalf or by claiming to provide other special access or expedited services which do not exist. To learn how to get the right immigration help, visit www.uscis.gov/avoidscams for tips on filing forms, reporting scams and finding accredited legal services.

Q2: How many individuals does USCIS expect will apply?

A2: Preliminary estimates show that roughly 4.9 million individuals may be eligible for the initiatives announced by the President. However, there is no way to predict with certainty how many individuals will apply. USCIS will decide applications on a case-by-case basis and encourages as many people as possible to consider these new initiatives. During the first two years of DACA, approximately 60 percent of potentially eligible individuals came forward. However, given differences among the population eligible for these initiatives and DACA, actual participation rates may vary.

Q3: Will there be a cutoff date for individuals to apply?

A3: The initiatives do not include deadlines. Nevertheless, USCIS encourages all eligible individuals to carefully review each initiative and, once the initiative becomes available, make a decision as soon as possible about whether to apply.

Q4: How long will applicants have to wait for a decision on their application?

A4: The timeframe for completing this new pending workload depends on a variety of factors. USCIS will be working to process applications as expeditiously as possible while maintaining program integrity and customer service. Our aim is to complete all applications received by the end of next year before the end of 2016, consistent with our target processing time of completing review of applications within approximately one year of receipt. In addition, USCIS will provide each applicant with notification of receipt of their application within 60 days of receiving it.

Q5: Will USCIS need to expand its workforce and/or seek appropriated funds to implement these new initiatives?

A5: USCIS will need to adjust its staffing to sufficiently address this new workload. Any hiring will be funded through application fees rather than appropriated funds.

Q6: Will the processing of other applications and petitions (such as family-based petitions and green card applications) be delayed?

A6: USCIS is working hard to build capacity and increase staffing to begin accepting requests and applications for the initiatives. We will monitor resources and capacity very closely, and we will keep the public and all of our stakeholders informed as this process develops over the course of the coming months.

Q7: What security checks and anti-fraud efforts will USCIS conduct to identify individuals requesting deferred action who have criminal backgrounds or who otherwise pose a public safety threat or national security risk?

A7: USCIS is committed to maintaining the security and integrity of the immigration system. Individuals seeking deferred action relief under these new initiatives will undergo thorough background checks, including but not limited to 10-print fingerprint, primary name and alias name checks against databases maintained by DHS and other federal government agencies. These checks are designed to identify individuals who may pose a national security or public safety threat, have a criminal background, have perpetrated fraud, or who may be otherwise ineligible to request deferred action. No individual will be granted relief without passing these background checks.

In addition, USCIS will conduct an individual review of each case. USCIS officers are trained to identify indicators of fraud, including fraudulent documents. As with other immigration requests, all applicants will be warned that knowingly misrepresenting or failing to disclose facts will subject them to criminal prosecution and possible removal from the United States.

Note: This is the third part of a four part series on the subject matter. The same information is available at www.uscis.gov web site of the Dept. of Homeland Security. Thanks.

Executive Actions on Immigration (Part 2 of 3 Part Series)

Lal Varghese, Attorney at Law, Dallas

2. Deferred action for parents of U.S. citizens and lawful permanent residents

•An undocumented individual living in the United States who, on the date of the announcement, is the parent of a U.S. citizen or lawful permanent resident and who meets the guidelines listed below.

•Allows parents to request deferred action and employment authorization if they:◦Have continuous residence in the United States since January 1, 2010;

◦Are the parents of a U.S. citizen or lawful permanent resident born on or before November 20, 2014; and

◦Are not an enforcement priority for removal from the United States, pursuant to the November 20, 2014, Policies for the Apprehension, Detention and Removal of Undocumented Immigrants Memorandum.

•Approximately 180 days following the President’s November 20, 2014, announcement.

3. Provisional waivers of unlawful presence

•Undocumented individuals who have resided unlawfully in the United States for at least 180 days and who are:◦The sons and daughters of U.S. citizens; and

◦The spouse and sons or daughters of lawful permanent residents.

•Expands the provisional waiver program announced in 2013 by allowing the spouses, sons or daughters of lawful permanent residents and sons and daughters of U.S. citizens to get a waiver if a visa is available. There may be instances when the qualifying relative is not the petitioner.

•Clarifies the meaning of the “extreme hardship” standard that must be met to obtain a waiver.

•Upon issuing of new guidelines and regulations.

4. Modernize, improve and clarify immigrant and nonimmigrant programs to grow our economy and create jobs

•U.S. businesses, foreign investors, researchers, inventors and skilled foreign workers.

•Work with the Department of State to develop a method to allocate immigrant visas to ensure that all immigrant visas authorized by Congress are issued to eligible individuals when there is sufficient demand for such visas.

•Work with the Department of State to modify the Visa Bulletin system to more simply and reliably make determinations of visa availability.

•Provide clarity on adjustment portability to remove unnecessary restrictions on natural career progression and general job mobility to provide relief to workers facing lengthy adjustment delays.

•Clarify the standard by which a national interest waiver may be granted to foreign inventors, researchers and founders of start-up enterprises to benefit the U.S economy.

•Authorize parole, on a case-by-case basis, to eligible inventors, researchers and founders of start-up enterprises who may not yet qualify for a national interest waiver, but who:◦Have been awarded substantial U.S. investor financing; or

• Otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research.

•Finalize a rule to provide work authorization to the spouses of certain H-1B visa holders who are on the path to lawful permanent resident status.

•Work with Immigration and Customs Enforcement (ICE) to develop regulations for notice and comment to expand and extend the use of optional practical training (OPT) for foreign students, consistent with existing law.

•Provide clear, consolidated guidance on the meaning of “specialized knowledge” to bring greater clarity and integrity to the L-1B program, improve consistency in adjudications, and enhance companies’ confidence in the program.

5. Promote the naturalization process

•Lawful permanent residents eligible to apply for U.S. citizenship

•Promote citizenship education and public awareness for lawful permanent residents.

•Allow naturalization applicants to use credit cards to pay the application fee.

•Assess potential for partial fee waivers in the next biennial fee study.

Note: This is the second part of a three part series on the subject matter. The same information is available at www.uscis.gov web site of the Dept. of Homeland Security. Thanks.

Disclaimer: Lal Varghese, Attorney at Law, with more than 36 (about 21 years in U. S. Immigration Laws) years of experience as an Attorney, mainly practices in U. S. immigration law and is located in Dallas, Texas. He does not claim authorship for above referenced information since it is obtained from several sources including USCIS, DOS web sites, AILA and other Internet based legal sources, and published for the benefit of the general public. Lal Varghese, Attorney at Law or the publisher is not responsible or liable for anything stated above, since it is generalized information about the subject matter collected from various legal sources. For individual cases and specific questions you are advised to consult any attorney of your choice or contact your State Bar Organizations or local Bar Associations or American Immigration Lawyers’ Association (AILA) for finding an attorney or for any legal help. You can visit our website at: www.indiaimmigrationusa.com or www.indiaimmigrationusa.blogspot.com or www.facebook.com/groups/usattorney for information about U. S. immigration law related matters. Lal Varghese, Attorney at Law can be reached at (972) 788-0777 or at his e-mail: attylal@aol.com if you have any questions.

Executive Actions on Immigration (Part 1 of 3 Part Series)

Lal Varghese, Attorney at Law, Dallas

On November 20, 2014, the President announced a series of executive actions to crack down on illegal immigration at the border, prioritize deporting felons not families, and require certain undocumented immigrants to pass a criminal background check and pay taxes in order to temporarily stay in the U.S. without fear of deportation.

These initiatives include:

•Expanding the population eligible for the Deferred Action for Childhood Arrivals (DACA) program to young people who came to this country before turning 16 years old and have been present since January 1, 2010, and extending the period of DACA and work authorization from two years to three years

•Allowing parents of U.S. citizens and lawful permanent residents who have been present in the country since January 1, 2010, to request deferred action and employment authorization for three years, in a new Deferred Action for Parental Accountability program, provided they pass required background checks

•Expanding the use of provisional waivers of unlawful presence to include the spouses and sons and daughters of lawful permanent residents and the sons and daughters of U.S. citizens

•Modernizing, improving and clarifying immigrant and nonimmigrant programs to grow our economy and create jobs

•Promoting citizenship education and public awareness for lawful permanent residents and providing an option for naturalization applicants to use credit cards to pay the application fee

These initiatives have not yet been implemented, and USCIS is not accepting any requests or applications at this time. Beware of anyone who offers to help you submit an application or a request for any of these actions before they are available. You could become a victim of an immigration scam. Subscribe to this page to get updates when new information is posted.

USCIS and other agencies and offices are responsible for implementing these initiatives as soon as possible. Some initiatives will be implemented over the next several months and some will take longer.

Over the coming months, USCIS will produce detailed explanations, instructions, regulations and forms as necessary. The brief summaries provided below offer basic information about each initiative.

While USCIS is not accepting requests or applications at this time, if you believe you may be eligible for one of the initiatives listed above, you can prepare by gathering documents that establish factors such as your:

•Identity;

•Relationship to a U.S. citizen or lawful permanent resident; and

•Continuous residence in the United States over the last five years or more.

Unauthorized practitioners of immigration law may try to take advantage of you by charging a fee to submit forms to USCIS on your behalf or by claiming to provide other special access or expedited services which do not exist.

Below are summaries of major planned initiatives by USCIS, including:

•Who is eligible

•What the initiative will do

•When you can begin to make a request

•How to make a request

1. Deferred Action for Childhood Arrivals (DACA) program

•Current DACA recipients seeking renewal and new applicants, including individuals born prior to June 15, 1981, who meet all other DACA guidelines.

• Allows individuals born prior to June 15, 1981, to apply for DACA (removing the upper age restriction) provided they meet all other guidelines.

•Requires continuous residence in the United States since January 1, 2010, rather than the prior requirement of June 15, 2007.

•Extends the deferred action period and employment authorization to three years from the current two years.

•Approximately 90 days following the President’s November 20, 2014, announcement.

•Go to the Consideration of Deferred Action for Childhood Arrivals (DACA) page for instructions which will be updated

Note: This is the first part of a three part series on the subject matter. The same information is available at www.uscis.gov web site of the Dept. of Homeland Security. Thanks.

Law Offices of Lal Varghese, PLLC, Dallas

Thursday, May 12, 2016

Law Offices of Lal Varghese, PLLC, Dallas

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Law Offices of Lal Varghese, PLLC