Volume Sixteen, Number Nine
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SHUSTERMAN’S IMMIGRATION UPDATE is the Web’s most popular e-mail newsletter regarding U.S. immigration laws and procedures with over 40,000 subscribers located in more than 150 countries. It is written by a former INS Trial Attorney (1976-82) with over 30 years of experience practicing immigration law.
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Newsletter US Immigration Update September 2011
TABLE OF CONTENTS:
1. New Deportation Priorities: How Will This Work?
2. New Immigration Policy: A Step in the Right Direction
3. Schedule of Shusterman’s Upcoming Immigration Law Seminars
4. CSPA: 9th Circuit Panel Defers to Matter of Wang, Now What?
5. Success Story: Hardship Waiver Brings Dog Trainer Home to His Pack
6. Immigration Trivia Quiz: Immigrants in Extreme Sports
7. Ask Mr. Shusterman: How Should I Notify USCIS of My New Address?
8. Immigration Government Processing Times
9. Don’t Get Caught in Your Own “Nannygate”
10. No Winner of Our August 2011 Trivia Quiz!
- AIC Releases Practice Advisory Regarding New Immigration Policy – The American Immigration Council has released a new practice advisory regarding DHS’s plans to review and close some “low priority” deportation cases on a case-by-case basis. The advisory includes information on how this new prosecutorial discretion will relate to enforcement, individuals with criminal records, and other questions left unanswered by last month’s announcement.
- Change in Overseas I-130 Filing Procedures – U.S. citizens and lawful permanent residents residing in countries without U.S. Citizenship and Immigration Service (USCIS) offices are now required to file Form I-130 family-based immigrant petitions with the agency’s Chicago lockbox facility. Overseas petitioners residing in a country with a USCIS office can elect to file at that office or use the lockbox. The change in filing procedures, which took effect on August 15, is expected to cause delays for families, though USCIS has stated that for the first 90 days of the new process, it will monitor and assess the implementation of the procedures to identify areas requiring additional policy updates. USCIS also posted for public comment a memorandum outlining some of the circumstances that may warrant expedited processing of a Form I-130 by the Department of State at a local embassy or consulate where USCIS does not have a presence.
- DHS Publishes Business Transformation Regulation – The Department of Homeland Security (DHS) recently published the first in a series of regulations intended to promote the migration of USCIS benefit filings from a paper-based environment to an electronic one. Over the next several years, the USCIS will transition to a web-based online account system with secure ways to submit applications and supporting documents online. The regulation is an important step toward modernizing how USCIS handles the more than 6 million benefit applications submitted annually.
- Employment Authorization Extended for Liberians – On August 16, the USCIS announced its intention to automatically extend employment authorization for Liberian nationals covered under Deferred Enforced Departure (DED) through March 31, 2012. USCIS’s announcement followed President Obama’s announcement of his decision to extend DED through March 31, 2013, for qualified Liberians and those persons without nationality who last habitually resided in Liberia. The six-month automatic extension of existing Employment Authorization Documents (EADs) will permit eligible Liberians to continue working while they file their applications for new EADs. The new EADs will cover the full 18 months of the DED extension.
- H-1B Cap Update – The USCIS started accepting H-1B petitions subject to the numerical caps starting on April 1. The number of petitions submitted through August 26th was 44,900. We update the number of H-1B petitions received by the USCIS on a weekly basis.
- Immigration “How-To” Videos – Our 30 “How-To” Immigration Videos have been viewed well over 200,000 times. Subjects include how to obtain a green card, how to become a U.S. citizen, how to win your case in immigration court and how to select an immigration attorney. Our video “Green Cards through Marriage”has been viewed over 80,000 times. We encourage you to take advantage of this free resource.
- Padilla Retroactive? – The U.S. Courts of Appeals for the 7th and 10th Circuits issued decisions in August holding that Padilla v. Kentucky, 130 S. Ct. 1473 (2010), in which the Supreme Court announced that the Sixth Amendment right to counsel includes advice about deportation consequences of pleading guilty, does not apply retroactively. United States v. Hong, No. 10-6294, slip op. (10th Cir. Aug. 30, 2011); Chaidez v. United States, No. 10-3623, slip op. (7th Cir. Aug. 23, 2011). This creates a split in the circuits since the 3rd Circuit Court of Appeals has ruled that the Padilla does apply retroactively.
- USCIS Issues Policy Memo on B-2 Change of Status for Cohabitating Partners – The USCIS memo establishes that cohabitating partners and other household members of nonimmigrant visa holders who may be ineligible for derivative status may be issued B-2 (visitor) visas, which may be extended to match the stay of the principal nonimmigrant. When evaluating an application for change to or extension of B-2 status based on cohabitation, the cohabitating partner’s relationship to the nonimmigrant principal alien in another status will be considered a favorable factor in allowing the household member to obtain or remain eligible for B-2 classification.
- USCIS Revises Handbook for Employers (Yet Again) – The Handbook for Employers instructs employers how to comply with I-9 rules as well as how to steer clear of antidiscrimination and document abuse penalties when completing I-9 forms. Although, the USCIS revised the Handbook as recently as January 2011, it revised it again in June. However, the agency inadvertantly linked to the old Handbook on its website. Now, it links to the new Handbook. Many of the changes in the new Handbook are quite nuanced. There are new instructions for employees in completing Section 1 of the I-9 (see page 4 of the Handbook) as well as changes for asylees and refugees completing this section of the form. There are also changes in completing Section 2 of the form for employers of persons working pursuant to Temporary Protected Status when the government grants an automatic extension of their work permits by means of a notice in the Federal Register (see page 11), for rehiring former employees (see page 19), for reverifying an employee’s work authorization when the employer previously used an older version of form I-9 (see page 19) as well as a number of other changes in the instructions. If your last internal audit occurred prior to the publication of the new Handbook, it is a good idea to insure that you are in compliance with the latest version of the USCIS’ Handbook for Employers.
1. New Deportation Priorities: How Will This Work?
On August 18, the Obama Administration announced that all 300,000+ persons currently in removal proceedings as well as those subject to final orders of removal will have their cases reviewed by ICE, and that many of them will have their cases terminated and some will even be granted work permits.
This announcement was greeted with great delight by immigration advocates and with angry blasts of vitriol from the anti-immigrant right wing. Congressman Luis Gutierrez (D-IL) was effusive in his praise, calling this “a victory not just for immigrants but for the American people as a whole” and calling on ICE Director John Morton to appear before Congress to explain how the new program will be implemented. Senator Richard Durbin, (D-IL) a co-sponsor of the DREAM Act, and one of 22 Senators who had called on the Obama Administration to halt DREAM Act deportations, stated that “the Administration’s new process is a fair and just way to deal with an important group of immigrant students and I will closely monitor DHS to ensure it is fully implemented.” However, House Judiciary Committee Chairman Lamar Smith (R-TX) denounced the new program as a “backdoor amnesty”.
However, whatever you may wish to call the new policy, it is not an amnesty. The American Immigration Lawyers Association released a very helpful consumer guide entitled “The Obama Administration’s Immigration Announcement is NOT an Amnesty Program!”
The big questions left unanswered are who will benefit from this new program and how?
Although Senators Durbin and Lugar (R-IN) and 20 of their colleagues wrote solely about the DREAM Act students to Secretary Napolitano, her reply is written more broadly:
“Accordingly, the June 17, 2011 prosecutorial discretion memorandum is being implemented to ensure that resources are uniformly focused on our highest priorities. Together with the Department of Justice (DOJ), we have initiated an interagency working group to execute a case-by-case review of all individuals currently in removal proceedings to ensure that they constitute our highest priorities. The working group will also initiate a case-by-case review to ensure that new cases placed in removal proceedings similarly meet such priorities. In addition, the working group will issue guidance on how to provide for appropriate discretionary consideration to be given to compelling cases involving a final order of removal. Finally, we will work to ensure that the resources saved as a result of the efficiencies generated through this process are dedicated to further enhancing the identification and removal of aliens who pose a threat to public safety.”
A case-by-case review on all individuals currently in removal proceedings in order to implement the June 17 prosecutorial discretion memorandam will be quite an undertaking. First, the number of individuals involved exceeds 275,000. That’s a lot of files to evaluate. It will take not days or weeks to evaluate all of these cases, but many months. Secondly, the government not only needs to review pending court cases, but those on appeal and those with final orders. Finally, the government will need to evaluate who will be placed in removal proceedings in the future. This will truly be a massive undertaking, and given the immensity of the bureaucracy and varied outlooks of ICE District Counsels (who must coordinate with the USCIS, CBP and other governmental agencies), the results may be highly divergent.
Another wild card is the ambiguity of the June 17th Morton memo. This memo builds on seven previous prosecutorial discretion memos, most of which are listed on our website. The Morton memo lists 19 factors that should be considered in exercising prosecutorial discretion and cautions that “this list is not exhaustive and no one factor is determinative. ICE officers, agents, and attorneys should always consider prosecutorial discretion on a case-by-case basis. The decisions should be based on the totality of the circumstances, with the goal of conforming to ICE’s enforcement priorities.”
What’s that suppposed to mean, you ask? Wait, there’s more!
Consider the concluding paragraph of the White House Blog:
“So DHS, along with the Department of Justice, will be reviewing the current deportation caseload to clear out low-priority cases on a case-by-case basis and make more room to deport people who have been convicted of crimes or pose a security risk. And they will take steps to keep low-priority cases out of the deportation pipeline in the first place. They will be applying common sense guidelines to make these decisions, like a person’s ties and contributions to the community, their family relationships and military service record. In the end, this means more immigration enforcement pressure where it counts the most, and less where it doesn’t – that’s the smartest way to follow the law while we stay focused on working with the Congress to fix it.”
And what are these “common sense guidelines”? Here, the Blog wisely punts on this issue by linking these three key words to the Morton memo.
And none of the above statements deal with persons who are not in removal proceedings which raises the question: If you want to obtain a work permit, do you have to find a way to get yourself in removal proceedings, and then ask ICE to terminate proceedings? Curious immigrants want to know.
And, finally, what is a “low-priority case”?
2. New Immigration Policy: A Step in the Right Direction
If you had to choose between prosecuting murderers and rapists or persons with traffic tickets, who would you give priority to?
Sort of a no-brainer, isn’t it?
You would think so, but the way the federal government has prosecuted illegal aliens accused of crimes has traditionally not followed this logic. On Aug. 18, however, the Obama administration announced that all 300,000 illegal aliens currently in removal proceedings or subject to final orders of removal will have their cases reviewed by the U.S. Immigration and Customs Enforcement (ICE), and many of them will have their cases terminated. Some will even be granted work permits.
This makes sense for several reasons. The first is that it will allow more focus to be put on prosecuting those accused of the most serious crimes. In addition, terminating some cases could reduce delays and backlogs.
There are over 10 million illegal aliens in the United States, and over 100,000 of them have been convicted of serious crimes. The 260 immigration judges in the country have a backlog of over 275,000 cases. This results in tremendous delays. If an illegal alien simply denies the charges against him, he can postpone his day of reckoning for up to two years.
Another drawback of the old system is that it often resulted in the painful separation of families. The fact that a wife is a green card holder and the children are U.S. citizens does not stop the government from deporting the husband even though he is the breadwinner of the family and has no prior criminal record. Clearly, there was a need for the system to be reformed.
The announcement was greeted with great delight by immigration advocates and with angry blasts of vitriol from anti-immigrant groups. As the rhetorical smoke clears, the big questions left unanswered will be who will benefit from this new program and how?
Clearly, DREAM Act students who are in removal hearings or are subject to orders of removal will benefit. DREAM Act students typically were brought to the United States as children by their parents, and are now either college students or college graduates. Such students and others requesting immigration benefits must be persons of good moral character.
Consider the Duran family. Twenty years ago, Jessica Duran and her two brothers were brought to the United States as children by their mother. They were placed in deportation proceedings in front of an immigration judge. The proceedings dragged on for many years. During this time, Jessica and her brothers all graduated from high school and later from college. In the meantime, their father became a permanent resident, and immediately sponsored them for green cards. Unfortunately, the waiting time for this process is almost 20 years, so they will be waiting in line for quite a while.
When the Durans came to our office last year, they had the final orders of deportation in their hands. We applied for naturalization for their father, and crossed our fingers that Congress would pass the DREAM Act, which would have prevented the government from deporting them. Although the father became a U.S. citizen, Congress failed to pass the DREAM Act. What now? Would ICE deport the wife and children of a U.S. citizen?
We never found out, because fortunately, a member of Congress introduced a rare private bill which saved the family from deportation.
Under the Obama administration’s new policy, DREAM Act children will no longer need private bills to protect them from deportation. They may even be able to obtain permits to work in the U.S.
What about DREAM Act students who are not under removal proceedings? The administration’s new policy at this point does not seem to provide them with work permits, but time will tell if this changes.
Who else will benefit from the new policy?
Spouses and children of persons serving in the U.S. Armed Forces will be safe from deportation, and may be able to obtain work permits.
Does the government actually place such persons under removal proceedings?
Yes, it does. Karina Magana, the wife of Air Force Staff Sergeant Luis Magana, a veteran of Iraq and Afghanistan, was ordered to appear before an immigration judge in Los Angeles recently.
Magana was a green card holder who had applied for U.S. citizenship. Why would the government want to deport her? Because it came to light at her naturalization interview that the government had issued her green card in error over five years before. Her U.S. citizen father had sponsored her, but the case dragged on for so many years that she had married and was pregnant with her first child. Her marriage placed her in another immigration category.
While this was clearly an error on the part of the government, the bureaucrats charged Magana with fraud. Sgt. Magana didn’t know how he was supposed to raise his two U.S. citizen children if he were deployed to Afghanistan again and his wife was deported. I had no answer.
The government’s prosecutor refused to drop the fraud charges. Fortunately, his supervisor was willing to do so, and now Magana is on her way to becoming a citizen of the United States.
These are but two examples of the type of cases, which are unnecessarily clogging the judges’ dockets.
As a former INS prosecutor, I believe in enforcing our immigration laws. However, there is a need to prioritize who gets prosecuted. There are simply not enough resources to prosecute everyone, and the government’s attempts to do so have separated families and delayed the deportation of the bad guys.
3. Schedule of Shusterman’s Upcoming Immigration Law Seminars
- University of Texas School of Law
- 35th Annual Conference on Immigration and Nationality Law
- Austin, Texas
- October 19-21, 2011
Finding What You Need: Practice Tips for Immigration Attorneys On How To Find Key Statutes, Forms, Regulations, Government Memoranda, Manuals, and More
- AILA California Chapters
24th Annual CLE Conference
San Francisco, CA
November 10-12, 2011
Topic: “Practicing Before the U.S. Court of Appeals for the Ninth Circuit”
- South Florida AILA Chapter
South Florida AILA Conference
February 9-10, 2012
Topic: Understanding the Child Status Protection Act
- Immigration Boot Camp
Los Angeles, California
- FBA 8th Annual Immigration Law Seminar
Federal Bar Association
- AILA California Chapters
4. CSPA: 9th Circuit Panel Defers to Matter of Wang, Now What?
On September 2, 2011, the 9th Circuit Court of Appeals issued its long-awaited decision regarding the “automatic conversion” clause of the Child Status Protection Act (CSPA) in De Osorio v. Mayorkas.
The Court upheld the decision of the District Court which deferred to the decision of the Board of Immigration Appeals in Matter of Wang which drastically restricted the operation of the “automatic conversion clause” of CSPA.
Consider the case of one of the plaintiffs in the lawsuit, Elizabeth Magpantay, a permanent resident of the United States who was born in the Philippines. Ms. Magpantay and her husband and four young children were sponsored for green cards by her father, a citizen of the United States, in 1991. Fifteen years later, in 2006, Ms. Magpantay, her husband and one of their children were finally able to immigrate to the U.S. Her other 3 children were forced to remain behind in the Philippines because, in the intervening 15 years, they had turned 21 years of age and were no longer considered “children” under the law. Their mother sponsored them for green cards in 2007, but the waiting time in this category is over 10 years. If any of the children marry during this period, they will lose the ability to immigrate through their mother.
In 2002, while their case was pending, Congress passed and the President signed the Child Status Protection Act which is expressly designed to prevent the separation of immigrant families.
One section of CSPA provides that in order to alleviate the problems of administrative delays, the time that a visa petition was pending can be subtracted from the age of the children in calculating their eligibility for green cards. However, in the case of the Magpantays, the visa petition was pending for only six weeks in 1991.
Fortunately, CSPA cures more than just administrative delays. It also helps families remain united by giving children credit for the number of years that they were forced to wait for their priority date to become current. In the case of the Magpantay family, this was 15 years. CSPA’s “automatic conversion” clause provides that the children “shall retain the original priority date issued upon receipt of the original petition”. Secondly, CSPA provides that the children’s petitions “shall automatically be converted to the appropriate category”.
It seems clear that the appropriate category is the family-based 2B category since Ms. Magpantay is a lawful permanent resident and her now-adult sons and daughters are unmarried.
Since the original priority date is January 1991, over 20 years ago, and the current wait under the 2B category is “only” ten years, Ms. Magpantay’s children should be able to join the rest of the family in the United States immediately.
However, the government believes that this is simply wishful thinking and that this would make the Magpantay children “line jumpers”.
After we sued the government in 2008 of behalf of Ms. Magpantay and a number of other families in similar circumstances, the Board of Immigration Appeals (BIA) disregarded two of their previous decisions which fully agreed with our reading of CSPA, and issued a decision in Matter of Wang in 2009 which interpreted the “automatic conversion” clause in a restrictive fashion.
The Board held erroneously that CSPA only applies to administrative delays, not to delays caused by the numerical preference system, and that, therefore, the automatic conversion clause only applied to children moving from the 2A to the 2B category.
In 2010, a Federal District Court Judge found the language of the automatic conversion clause to be “ambiguous” and deferred to the BIA decision in Matter of Wang. We appealed this ruling to the 9th Circuit Court of Appeals which consolidated our case with a class action lawsuit on the same issue filed by another law firm (Reeves & Associates).
The oral arguments in the consolidated case, Osorio v. Mayorkas, took place on July 15, 2011. On that date, both me and Attorney Amy Prokop of our office were not present in Los Angeles. Attorney Nancy Miller of Reeves & Associates represented our side in the oral arguments. I listened to the oral arguments online during a stop-over at JFK Airport in New York. It was obvious to me from the tone of the questions that the 9th Circuit panel would rule for the government. That same morning, I also listened to the oral arguments on a similar case still pending before the 5th Circuit Court of Appeals in Texas, and it seemed equally obvious to me that the this panel of judges would rule against the government. The 5th Circuit has yet to rule.
On September 2, the 9th Circuit panel issued a 22-page decision in De Osorio v. Mayorkas. The panel found that CSPA’s automatic conversion clause was ambiguous, and deferred to the BIA’s decision in Matter of Wang.
In my opinion, the Court’s decision is flawed in a number of respects:
1) On page 16801, the decision states that “in order to obtain the visa and become an LPR, however, the beneficiary must act within one year of notification of visa availability…” This is untrue, and the decision cites no authority to justify this statement.
2) On page 16810, the decision finds that “despite paragraph (3)’s plain language, it does not practicably apply to certain of the petitions described in paragraph (2).” Here, the court relies, as the BIA did in Matter of Wang, on a regulation at 8 C.F.R.. 204.2(i), for the proposition that the word “automatic” requires that “the same petition, filed by the same petitioner for the same beneficiary, converts to a new category.” We explained in our briefs why this is untrue, yet the panel’s decision does not address our arguments regarding this important issue.
3) On page 16811, the decision states that “after the derivative turns 21, there is no qualifying relationship between the petitioner and the derivative, because a U.S. citizen cannot petition on behalf of an adult grandson or granddaughter” and therefore, the no “appropriate category” for the petition to “automatically be converted to”. However, this erroneously assumes that the word “automatic” means that the conversion must also be “instantaneous”. Yet, this latter word is not used in CSPA. In our briefs, we cited many examples of conversions from other preference category to another where for many years, the beneficiary has no preference category at all. However, the panel’s decision makes no attempt to rebut these arguments.
4) Also on page 16811, the decision declares that “Paragraph (3) operates when…the derivative has applied for a visa within one year…” This is incorrect. There is no one year requirement in paragraph (3).
5) On page 16811, the decision declares that “appellants essentially ask us to ignore the word ‘automatically’ in paragraph (3)”. This is untrue. As stated above, we simply request that the Court not rely exclusively on 8 C.F.R. 204.2(i)
in defining the meaning of the word, and that the Court not misinterpret the word “automatically” to mean “instantaneously”. If Congress wanted the conversion to occur instantaneously, they would have used this word in the statute.
6) On page 16813, the Court finds that paragraph (3) is “ambiguous”. Although we disagree, we note that the U.S. Court of Appeals for the 2nd Circuit, in Li & Cen v. Renaud, even though they agreed with the government’s restrictive interpretation of the automatic conversion clause, found the statutory language to be “unambiguous”. The panel here makes no attempt to distinguish this holding from a sister court on the same issue.
7) Also, on page 16813, after finding subsection (3) to be ambiguous, the Court moves on to the second step of the analysis: “The step two test ‘is satisfied if the agency’s interpretation reflects a plausible construction of the statute’s plain language and does not otherwise conflict with Congress’ expressed intent”.
In this analysis, the Court, on page 16816, examines whether it is proper to restrict the reach of subsection (3) of section 1153(h) solely to derivative beneficiaries of 2A petitions rather than to all derivative beneficiaries which the Court (and the government) concede are covered under subsection (1). Congress uses the identical language “for purposes of subsections (a)(2)(A) and (d)” to define the reach of both subsections. If the benefits of subsection (1) apply to all derivative beneficiaries, one wonders how the same words used in subsection (3) can be held to benefit only derivative beneficiaries of 2A petitions.
8) On pages 16815 and 16816, the panel attempts to rebut our argument that “the BIA’s interpretation is unreasonable because it effects no significant change from the status quo”. Frankly, I am at a loss to understand this rebuttal.
9) On pages 16816 and 16817, the decision discusses “Congress’ express intent”. Here, it is instructive to quote from Matter of Wang: “While the CSPA was enacted to alleviate the consequences of administrative delays, there is no clear evidence that it was intended to address delays resulting from visa allocation issues, such as the long wait associated with priority dates.”
However, as we pointed out in our briefs to the 9th Circuit, Wang erroneously reached this conclusion because it failed to consider Senator Feinstein’s introductory remarks when she introduced CSPA in the Senate on April 2, 2001:
“The legislation I have introduced today would provide a child, whose timely filed application for a family-based, employment-based, or diversity visa was submitted before the child reached his or her 21st birthday, the opportunity to remain eligible for that visa until the visa becomes available…
“…a family whose child’s application for admission to the United States has been pending for years may be forced to leave that child behind either because the INS was unable to adjudicate the application before the child’s 21st birthday, or because growing immigration backlogs in the immigration visa category caused the visa to be unavailable before the child reached his 21st birthday. As a result, the child loses the right to admission to the United States. This is what is commonly known as ‘aging out.’
“Situations like these leave both the family and the child in a difficult dilemma. Under current law, lawful permanent residents who are outside of the United States face a difficult choice when their child ‘ages-out’ of eligibility for a first preference visa. Emigrating parents must decide to either come to the United States and leave their child behind, or remain in their country of origin and lose out on their American dream in the United States. In the end, we as a country stand to lose when we are deprived of their cultural gifts, talents and many contributions.” (Emphasis added.)
The panel’s decision cites the Feinstein quote, yet it defers to the obviously erroneous reasoning of Matter of Wang which interprets CSPA contrary to this quote. How is this possible?
The panel holds that since subsection (1) provides relief for derivative beneficiaries of 2A petitions and for other derivative beneficiaries of visa petitions who are subject to administrative delays, Senator Feinstein’s wishes are fulfilled even though subsection (3) only benefits derivative beneficiaries under the 2A category. The Court, on page 16817, declares that “we point out that limiting section 1153(h)(3)’s application to F2A petitions is ‘a reasonable policy choice for the agency to make.” Really?
The Magpantay (“Magpantay” means “to be equal” in Tagalog.) family might beg to differ. Congress passed CSPA to keep families intact, but under this panel’s logic, the law only helps them if they were less than six weeks over 21 years old when their priority dates became current, and they get no credit whatsoever for the 15 years that they waited in their own country to immigrate to the U.S. Reasonable policy choice indeed!
10) And finally, the 9th Circuit has spoken out on CSPA before, but the prior decision, Padash v. INS, which struck down another overly-restrictive interpretation of the statute by the government, was not cited by the panel in this case. Yet, Padash should have a strong bearing on this case.
Padash, in interpreting a section of CSPA, cites Supreme Court, 9th Circuit and BIA decisions in holding that
“Because the legislative history makes it clear that the Act was intended to address the often harsh and arbitrary effects of the age-out provisions under the previously existing statute, our interpretation of the term “final determination” also adheres to the general canon of construction that a rule intended to extend benefits should be “interpreted and applied in an ameliorative fashion.” Hernandez, 345 F.3d at 840. This rule of construction applies with additional force in the immigration context “where doubts are to be resolved in favor of the alien.” Id. (quotations and citations omitted); Alvary-Santos v. INS, 332 F.3d 1245, 1250 (9th Cir. 2003) (same); St. Cyr, 533 U.S. at 320 (quoting Cardoza-Fonseca, 480 U.S. at 449 (emphasizing that there is a “long-standing principle construing any lingering ambiguities in deportation statutes in favor of the alien”); Matter of Vizcaino, 19 I. & N. Dec. 644, 648 (BIA 1988) (noting that the expansion of relief “clearly was intended as a generous provision, and it should therefore be generously interpreted”).
If the panel in this case had followed the Supreme Court and 9th Circuit decisions cited in Padash, it would not have defered to the BIA’s decision in Matter of Wang.
During the next few days and weeks, we will be discussing the options of requesting a rehearing or a rehearing en banc before the 9th Circuit, or submitting a request for a Writ of Certiorari before the Supreme Court of the United States.
5. Success Story: Extreme Hardship Waiver Brings Dog Trainer Home to His Pack
Emeril (not his real name) had already made a name for himself in the U.S. as a dog trainer when he was taken into custody by US Customs and Border Protection (CBP) at the Texas border and deported back to his native European nation. He had been driving cross-country through Texas for business purposes and, not knowing the area, had accidentally driven into a border area—one of the perils of relying on GPS directions. Emeril had come to the U.S. through the Visa Waiver Program in 2005. Since then, Emeril had established a successful business here in the U.S., training German Shepherds for police work. He had a real talent with the dogs. Through a mutual friend he met and later married a woman who we will call Patricia, a U.S. citizen who shared his passion for dog training. After they were married, Patricia began the process of petitioning Emeril for a green card, but they were very busy with the dogs and their business and had put the immigration papers on the back burner for a while.
When Emeril was detained in Texas, he was not even allowed to present his case before a judge. While the Visa Waiver Program allows those from certain nations to visit the U.S. relatively hassle-free, it also punishes more severely those who take advantage of the system. While nearly any detained foreign national is granted their “day in court,” those who overstay on the Visa Waiver Program, if caught, are swiftly deported back to their country without so much as a “so help me God”.
At this point, Patricia came to us to see if there was any way we could bring her husband back to their home in Southern California. If they had gone to see an attorney about their case in the first place, Emeril may never have been deported, as he might have already had his green card when he drove through the border area on that fateful day.
Patricia was beside herself. Not only was she missing her “better half,” but also her business partner. Patricia handled the administrative aspects of their dog-training business, but without her dog trainer she could not keep the business afloat. There was nothing our office could do to stop the deportation in this situation; the only way we could bring him back to the U.S. was to show evidence that the couple’s separation would bring extreme hardship to Patricia. This is known as an I-601 waiver. Because Emeril was deported, we would also need an additional waiver (I-212) to show that Emeril’s work and presence is beneficial to the United States.
After developing the initial strategy, I turned the case over to another attorney in our firm: Raj Iyer. Patricia informed him that since their marriage, she and Emeril had been working together for many years in their dog training business, which was their sole source of income. Patricia ran the office, and Emeril trained the dogs. Without Emeril there to work, Patricia could not afford to pay the rent on their home and office, the clients were disappearing, and the whole business was falling apart. Patricia was also the primary caretaker and financial support for her elderly parents, which meant that she could not go to join Emeril in Europe. Her parents could not legally drive, so Patricia had to take them to the doctor, purchase medical supplies and fill their prescriptions, and make sure they were comfortable and had food to eat. There was no one else to do this for them, not to mention any money to hire someone.
We obtained statements from Patricia’s parents and Emeril’s clients, recommendation letters from K-9 police officers who could attest to the work Emeril does, and newspaper articles illustrating the shortage and critical need for dog trainers in the United States to train security dogs for airports and other facilities. With this evidence, USCIS was convinced that the ten-year bar Emeril was ordinarily subject to would in turn subject his U.S. citizen wife and other family members to extreme hardship, and that Emeril’s work sufficiently benefits the United States. The waivers approved, Emeril and Patricia will soon be reunited.
6. Immigration Trivia Quiz:
7. Ask Mr. Shusterman: How Should I Notify USCIS of My New Address?
You are in the US on a non-immigrant visa and your green card application is moving smoothly—you are feeling pretty good about the whole process. One day, you go online to check the status of your pending I-485 and you are shocked to find that it has been denied! You panic and immediately call an immigration attorney. The very first question she asks: “Have you moved?” Your answer: “yes.” The second question she asks: “Did you file an AR-11?” Your answer: “no.”
Therein lies the problem.
Almost all foreign nationals residing in the United States are required by law to notify the U.S. Citizenship & Immigration Service (USCIS) of a change of address within 10 days. With the exception of A and G visa holders as well as certain nonimmigrants without a visa and in the country for less than 30 days, this notification requirement applies to all foreign nationals regardless of age or immigration status.
We have seen many cases in which a person walks in to our office where the USCIS denied their application for immigration benefits after sending out a request for evidence to the applicant at their last known address. Even if the individual did not receive the notice, if they moved without informing the USCIS, they probably have no case. USCIS has fulfilled its obligation by sending out the request for additional evidence. If they do not receive a response to their request by the deadline, USCIS is well within its rights to deny the application. Sometimes USCIS makes a mistake, so if the applicant filed the AR-11, but the USCIS still sent the correspondence to the previous address, the applicant can file a motion to reopen the denied case on the grounds that they have fulfilled their obligation of informing the USCIS of the new address.
Even US Citizens are required to change their address with USCIS if they have submitted Form I-864, an affidavit of support undertaking financial responsibility to support someone who has become a legal permanent resident. They are only required to change their address while the affidavit of support remains active, which is until the sponsored immigrant becomes a US Citizen, or if any of the other qualifying events stated on forms I-864 occur.
A willful failure to provide USCIS with written notice of a change of address within 10 days of moving to the new address is a misdemeanor. If convicted, you (or your parent or legal guardian if you are under the age of 14) can be fined up to $200 or imprisoned up to 30 days, or both. The foreign national may also be subject to removal from the United States. Compliance with the requirement to notify the USCIS of any address changes is a condition of your stay in the United States. Failure to comply could also jeopardize your ability to obtain a future visa or other immigration benefit.
The notification requirement is met by completing and submitting a Form AR-11 to the USCIS. This form can also be completed and submitted electronically at www.uscis.gov/addresschange. For US citizens, the reporting requirement is met by completing and submitting Form I-865. Form I-865 is available for download from our Free Forms Download page. US citizens have 30 days after they move to complete this form.
Keep in mind that completing the Form AR-11 does not automatically update your address on file. If you change your address while you have a pending application with USCIS, you also need to call the USCIS customer service number (1-800-375-5283). If you submit form AR-11 online, you do not need to call and change your address, but you need to make sure that you not only complete Step 1 of the process online, but also Step 2 when prompted. There is no fee to access and submit Form AR-11 online.
8. Immigration Government Processing Times
We link to the most recent immigration waiting times for each of the four USCIS Service Centers, the National Benefits Center and the Administrative Appeals Office. We also link to the processing times of all of the 83 USCIS District Offices and Sub-offices. We link to the Labor Department’s page entitled “Processing dates for labor certification applications”. Finally, we link to the State Department’s “Visa Wait Times” page.
9. Don’t Get Caught in Your Own “Nannygate”
In 1993, when then President Bill Clinton nominated corporate attorney Zoë Baird to be Attorney General, he had no idea that her unauthorized employment of a woman from Peru to work in her home as a nanny would derail her nomination in what is now commonly referred to as a “nannygate.” After she was forced to withdraw her name from consideration, Clinton’s second choice for the job, Kimba Wood, also had to bow out after it was revealed that she, too, had illegally employed a nanny.
California’s 2010 Republican gubernatorial candidate, Meg Whitman, former Nevada Governor Jim Gibbons, and former New York Police Commissioner and nominee for the cabinet post of Homeland Security Secretary Bernard Kerik, are among the notable public officials who have been caught in their own “nannygates”. Even the current Commissioner of the United States Customs and Border Protection, Alan Bersin, had to face questions regarding his employment of nannies as we discussed in a May 2010 article entitled, “Above the Law?”
If these high-powered public figures have such difficulty navigating the complex immigration regulations that govern the hiring of a foreign national as a nanny, it is easy to see the importance of consulting with an experienced immigration attorney before considering hiring someone who is not a US worker (citizen or greencard holder) as a nanny to help you and your family.
The main thing to remember is that if you hire a nanny or other domestic worker, you are an employer and are subject to the laws governing the employment eligibility of your employees.
A US citizen living abroad, but returning temporarily to the United States, may sponsor his nanny for a B-1 visa. A US citizen who is assigned abroad by his or her employer but is returning to the United States for no more than 4 years may similarly sponsor his nanny for B-1 status. In both of these scenarios, the nanny must have been working for the US Citizen for at least 6 months abroad and must be able to demonstrate he or she has at least one-full year of paid experience as a domestic worker.
A nonimmigrant worker, including an H-1B visa holder, may sponsor his or her nanny for B-1 status if the nanny was employed by the nonimmigrant worker for at least one full year prior to the H-1B worker’s admission to the United States, or the nonimmigrant worker must have a history of hiring domestic workers abroad and the nanny must demonstrate that he or she has been employed as a domestic worker for one full year. The employment of the nanny by the nonimmigrant temporary worker must have preceded the foreign national’s entry to the United States.
The visa application process requires that there be an employment contract in place that provides the nanny with free private room and board and guarantees that the nanny will be paid a salary equal to or greater than the prevailing wage for similarly employed workers in the US.
The nanny should demonstrate he or she has no intent of remaining in the United States permanently and intends to return to his or her home country, or country of last residence abroad, after working in the US. If the B-1 visa is issued to the nanny, he or she will be admitted for no more than 180 days and once inside the United States must then file a form I-765 application for employment authorization document (EAD) card. The nanny may not begin working until the EAD card is received.
These hurdles make it exceedingly difficult for US citizens or temporary workers to bring their nannies with them to the United States and require an in-depth understanding of the law and a firm grasp on the current procedures at the USCIS.
10. No Winner of our August 2011 Immigration Trivia Quiz!
Certified Specialist in Immigration Law, State Bar of California (1988-Present)
Former Immigration and Naturalization Service Trial Attorney (1976-82)
Board of Governors, American Immigration Lawyers Association (1988-97)
Law Offices of Carl Shusterman, 600 Wilshire Blvd., Suite 1550
Los Angeles, CA 90017, Phone: (213) 623-4592 x0, Fax: (213) 623-3720
Immigration is, on the whole, good for economies; and right now, rich countries can do with all the economic help they can get. Rather than sending immigrants home, with their skills, energy, ideas and willingness to work, governments should be encouraging them to come. If they don’t, governments elsewhere will.”
– The Economist, August 27, 2011.
Newsletter US Immigration Update September 2011 – Quick Links
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Disclaimer: This newsletter is not intended to establish an attorney-client relationship. All information contained in this newsletter is generalized. Any reliance on information contained herein is taken at your own risk.
September 6, 2011