Valentine Brown discusses Difficulties of Representing Detained Immigrant Families

In this NPR story by Emma Jacobs, which aired on Hear and Now, November 20, 2014, she investigates the Berks County Family Shelter for Immigrants. Many families wait here for months or even years for an immigration hearing before a judge.  Valentine discusses the difficulties in  providing robust legal representation when immigrants are detained by DHS. Listen Here

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President Obama’s Options for Executive Action on Immigration

On August 5, 2014 Law 360 published an article I wrote on President Obama’s options for executive action on immigration reform. The article discusses ways to speed up the long waits for employment based immigrants, options for the undocumented and some new ideas. Law 360 Article. Please leave a comment and let me know your ideas about how to make our system better. 

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7500 Comments Received for H-4 Work Authorization Regulation

The comment period for a USCIS regulation which would allow certain H-4 status holders to receive work authorization ended on July 11, 2014. 7,500 comments were received. These will be reviewed and considered by DHS to determine whether the proposal can be implemented as is or will need to be revised in response to the comments.

The White House’s stated goal of the regulation is to lessen the financial burden on H-1B families during the green card process; thus minimizing disruptions to U.S. employers and furthering the goals of attracting and retaining highly skilled foreign workers. It is estimated that upon implementation, 100,600 people will be eligible during the first year with 35,900 new applicants each year.

Under current law, no work authorization is available for any H-4 nonimmigrant. (H-4s). H-4s are the spouses and children (under 21 years of age) of H-1B specialty workers. Under the proposed version of the regulation, only those H-4 spouses of H-1B workers who have reached certain milestones in the lengthy green card process, would be eligible to apply for work authorization: The H-1B worker must either have an approved I-140, Immigrant Petition or have been granted an extension of H-1B status under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21). These extensions are granted to H-1B workers who have been in the green card process for more than 365 days, but do not yet have an I-140 approved.

Suggested changes to the regulation made by the American Immigration Lawyers Association (AILA), include the following:

Expand Eligibility for Work Authorization to All H-4s: AILA argues that if one of the goals of the regulation is to attract more highly skilled workers, then there is no reason to treat the spouses of H-1B workers differently than the spouses of L-1 workers or E-1, E-2 and E-3 workers, all of whom are authorized to work in the United States. Allowing the benefit to all H-4s would also bring US immigration policy more in line with our international economic competitors such as Canada, and the UK, which both allow spouses of highly skilled workers to work when accompanying spouses on foreign assignments.

Expand Eligibility for Work Authorization to A Larger Pool of H-4s: If USCIS will not expand the program to cover all H-4s, AILA comments that it should at least be expanded to include the spouses of H-1B workers who have a labor certification or I-140 pending for less than 365 days. AILA reasons that if an employer has taken the determinative step of sponsoring an H-1B worker for permanent residence by filing a PERM or I-140 application, that is sufficient to demonstrate an intent to move forward with green card sponsorship and to see the process through. AILA also urges the administration to include H-4 children in the regulation. Work authorization would be especially beneficial for high school and college students holding H-4 status, allowing them to more fully integrate into their communities and American society.

AILA also makes several practical recommendations for making the regulation more user-friendly while reducing the work of USCIS:

  • Employment Authorization Documents (EADs) should be issued for the duration of the H-4 status, not the normal 1 or 2 year term.
  • Extend the EAD filing window from 120 days prior to expiration to 180 days prior to expiration: This change will facilitate the filing of both an H-4 extension and EAD extension simultaneously, as the regulation currently allows.
  • Make plain in the regulation that concurrent filing of H-4 change of status applications and EAD applications is permitted.

7500 is a lot of comments, and by law USCIS is required to review and consider them all. There is no time limit requirement on the review period. Once reviewed, USCIS must determine what if any of the comments to incorporate into the final rule. Once the final rule is drafted, it may be sent to the Office of Management and Budget (if considered a significant rule) and then published in the Federal Register. At the time of publication, the rule will give an effective date, which would be the first date that EAD applications could be received for adjudication at USCIS. The effective date would likely be 30 days from publication, but no more than 60 days. With so many comments, and several steps left in the process, we anticipate that the rule will be published midway through the 4th quarter of 2014.

If you have any questions or believe you may be eligible once the rule goes into effect, please call Valentine Brown (215) 979-1840.

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Unofficial Predictions from the Visa Office

This information is courtesy of the American Immigration Lawyers Association. (AILA InfoNet Doc. No. 12012349 (posted Nov. 27, 2013)

During a recent conversation with Roberta Freedman, AILA Students & Scholars Committee member, Charlie Oppenheim of the Department of State’s Visa Office provided the following information and updates regarding demand in the employment-based immigrant visa categories. Please note that these notes are based on Mr. Oppenheim’s impressions at the time and are subject to change based on usage or new developments.

  • As of November 20, 2013 no additional EB-2 numbers will be allocated for EB-2 India adjustment of status applications for the rest of November. This means that no additional EB-2 India green cards can be approved with a priority date after November 2004 (the December Visa Bulletin’s cutoff date), even though the November Visa Bulletin had not yet retrogressed. The November Visa Bulletin confirmed that as soon as retrogression was announced for December, it could take effect immediately.
  • The demand for India EB-2 visa numbers has been unprecedented. In fact from the 10th to the 20th of November, the Visa Office received requests for approximately 150 EB-2 India green card numbers per day from USCIS. The demand was so great, that the unusual action of cutting off the category during the month had to be taken. A majority of these requests were from “upgrades” where the beneficiary had established a priority date in the EB-3 category, and now qualified for EB-2.
  • It is very possible that in August or September 2014, the last two months of the 2014 fiscal year, EB-2 India will advance again to around December 2008. However, that is only an educated guess at this time. No exact date is certain.
  • In the last fiscal year, close to 15,000 EB-2 visa numbers were allocated to pending EB-2 India cases in August and September 2013, for cases that were pre-adjudicated by USCIS.
  • A number of factors will affect the forward movement of the category and the availability of extra visa numbers, for India EB-2 and other categories, between now and the end of the 2014 fiscal year:
    1. Usage of visa numbers in the EB-1 category that would “drop down” to EB-2;
    2. The number of EB-3 to EB-2 “upgrades” from Worldwide and other countries;
    3. The number of EB-2 India visa numbers used for applicants with priority dates before November 2004; and
    4. The fact that the total worldwide quota is about 8,000 visa numbers lower than the previous year.
  • The Worldwide EB-3 category moved forward a year in December because there does not appear to be very many of these applications currently pending with USCIS. As demand builds over the fiscal year, and more conclusions can be drawn from the number of pending cases, the EB-3 Worldwide category may retrogress during this fiscal year.

On Wednesday, October 23, 2013, Mr. Charlie Oppenheim spoke to the Washington D.C. Chapter of AILA. Below are notes from that meeting. These notes are Mr. Oppenheim’s impressions at this time, and are subject to change based on usage or new developments.

  • His office is concerned again this year that the EB-5 numbers for China are moving too fast and there could be a cut-off for China EB-5 in June 2014 or later, if usage remains at the current levels. Worldwide EB-5 usage is up as well.
  • India EB-3 will continue to move very slowly.
  • Upgrades continue to be a tough issue to manage. USCIS does not appear to be working to develop any processes or procedures to better capture upgraded employment-based cases so there is no better information expected from that agency to assist Mr. Oppenheim’s office in better managing these numbers.
  • Worldwide EB-2 is expected to remain current.
  • Worldwide EB-1 is expected to remain current.
  • China EB-2 will continue to move slowly.
  • China EB-3 is expected to continue to be ahead of a China’s EB-2 priority date. Applicants are reminded that they may be able to use an expired EB-2 PERM for a new EB-3 category. As long as the first EB-2 I-140 was approved, the PERM can be used to file a second I-140 under EB-3. See this USCIS memo for more information (AILA Doc. No. 07062172)

For more information on the Visa Bulletin, priority dates and re-filing in EB-3, please contact Valentine Brown at 215 979 1840.

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New E-Verify SSN Safeguard May Be More Harm than Help

On Monday, November 18, 2013, USCIS Director Alejandro Mayorkas announced the release of a new E-Verify enhancement designed to combat identity fraud. The enhancement is designed to detect and prevent the fraudulent use of Social Security Numbers (SSNs) to gain work authorization by enabling USCIS to lock an SSN within the E-Verify system if it appears to be misused. Once the SSN is locked, E-Verify will generate a Tentative Nonconfirmation (TNC), and the employee receiving this TNC will have to contest the finding at the local Social Security Administration field office. Once a Social Security field officer confirms the employee’s identity and matches the SSN, the TNC will be changed to “Employment Authorized” status in E-Verify.

While this solution seems like a reasonable fix for one of the glaring deficiencies in E-Verify, it could also pose significant problems for the true owners of the Social Security Numbers that get locked. As anyone who has been a victim of identity theft and all it entails knows, there is no quick resolution to an identity theft problem, especially when the Social Security Administration is involved. When encountering this situation, employers must be vigilant and remember that no adverse employment action may be taken against an employee while a Tentative Non-Confirmation remains unresolved.

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Compliance Week: Immigration Compliance Audits Hit Record High Levels

In this November 19, 2013 article by Jaclyn Jaeger for Compliance Week, I discuss the importance of internal I-9 compliance, including centralizing a company’s I-9 function, and conducting internal audits.  Read the full article:immigration-compliance-audits-hit


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December Visa Bulletin Update, EB-2 for India Retrogresses

The employment-based second preference category is current for all countries of chargeability, except India and China. December will have a retrogression of India EB-2 applicants to a cutoff date of November 15, 2004, in large part due to the rapid advancement of the India EB-2 cutoff dates in the past several months. Further retrogression is possible, since the demand for visa numbers is exceeding the available supply. The EB-2 cutoff date for China advanced by a month, to November 8, 2008. In the December 2013 Visa Bulletin, EB-3 cut-off dates for all countries of chargeability, China, and Mexico advances by a full year, to October 1, 2011. The cutoff date for the Philippines moves forward to January 8, 2007. India’s EB-3 cutoff date retrogresses by a few weeks to September 1, 2003, and Philippines’ cutoff date only advanced by a few weeks.

Due to the likelihood of retrogressions, it is important to do everything possible to submit adjustment of status applications in the first mnonth of visa availability. If you need assistance with your adjustment of status application please call Valentine Brown on 215 979 1840.

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