Articles Posted in Adjustment of Status

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Joergelman [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayThe Department of Homeland Security (DHS), which oversees petitions for employment-based immigrant and nonimmigrant visas through U.S. Citizenship and Immigration Services (USCIS), has issued a notice of proposed rulemaking (NPRM) intended to clarify various aspects of the employment-based visa system. 80 Fed. Reg. 81899 (Dec. 31, 2015). The agency is currently accepting public comments through February 29, 2016, after which it may issue a revised NPRM or a final rule.

Among many other changes, the new rule would affect the first three preference categories of employment-based immigrant visas (EB-1, EB-2, and EB-3) and the H-1B specialty worker nonimmigrant visa program by amending the rules implementing the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), Pub. L. 106-313, 114 Stat. 1251. Congress enacted AC21 in part to facilitate immigrant and nonimmigrant visas for various highly skilled workers. The NPRM includes rule changes that, according to DHS, would better facilitate several goals established by these statutes.

The annual number of employment-based visas that may be issued to nationals of any one country is capped at seven percent of the total number of visas. 8 U.S.C. § 1152(a)(2). As a result, petitions for employment-based visas are backlogged for certain countries. According to the State Department’s Visa Bulletin for January 2016, all EB-1 visa petitions are current, but the priority dates currently under review for EB-2 beneficiaries from mainland China are from January 2013, and July 2009 for India. All EB-3 visa petitions are backlogged, with the longest wait being India’s priority date of July 2005.

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By Furfur [GFDL (http://www.gnu.org/copyleft/fdl.html) or CC BY-SA 4.0 (http://creativecommons.org/licenses/by-sa/4.0)], via Wikimedia CommonsRefugees fleeing the ongoing conflict in Syria have been arriving in the U.S. in small numbers for some time, but the issue has only recently gained widespread attention. Much of this attention focuses on alleged threats to U.S. national security, with elected leaders, presidential candidates, and others calling for additional screening of refugees before they may enter U.S. territory. Federal immigration law already requires prospective refugees to undergo extensive background screening, which only begins after they receive formal “refugee” status from the United Nations High Commissioner for Refugees (UNHCR). The screening process, which is conducted by the U.S. Department of State (DOS), U.S. Citizenship and Immigration Services (USCIS), and other agencies, can take two years or more to complete.

Background of the Refugee Crisis

The crisis in Syria began in early 2011, with a series of protests against the Syrian government. This eventually led to a civil war between the government and rebel forces seeking to remove the country’s president. The group calling itself the Islamic State (IS) also got involved in the conflict. It now controls large areas of eastern Syria, while the rest of the country is divided between the government and other forces. Estimates of the total death toll exceed 250,000 people. As of December 2015, the UNHCR states that more than 4.3 million have been driven from their homes.

The total number of Syrian refugees that may be admitted to the U.S. during the current fiscal year is set at 10,000, approximately 0.2 percent of the total number of refugees from this conflict. About 2,200 have reportedly already been admitted. By comparison, the UNHCR reports that Turkey currently has over 2.2 million Syrian refugees, Lebanon more than 1 million, and Jordan more than 600,000. European nations have reportedly received more than 800,000 asylum applications from Syrian refugees.

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U.S. Department of State [Public domain], via Wikimedia CommonsThe war in Syria, and the refugee crisis it has created in Europe and elsewhere, has occupied a significant portion of the nation’s attention in recent weeks. With millions of people fleeing violence in the region, other countries are evaluating their ability to take people in and considering issues of security. Recent events, such as the terror attacks in Paris, France in early November, have led some people, including members of Congress, to question whether the U.S. should accept any refugees from Syria. Whether the two matters are related or not, the federal government has a strict definition of who may qualify for refugee status and an extensive system for screening prospective refugees. It is worth examining how this system works.

Refugee Status in the U.S.

Under federal immigration law, the President has the authority to determine the total number of refugees the government may admit during a fiscal year, after “appropriate consultation” with Congress. 8 U.S.C. § 1157(a)(2). For fiscal year 2016, which began on October 1, 2015, the President has authorized the admission of up to 85,000 refugees, with further allocations for different regions of the world. The Department of Homeland Security (DHS) must maintain a “current numerical accounting” of the number of refugee spots still available. 8 C.F.R. § 207.6.

The “Near East/South Asia” region, which includes Syria, may account for up to 34,000 spots in fiscal year 2016, and the President has specifically set aside 10,000 spots for Syrians. The U.S. House of Representatives passed a bill purporting to place additional restrictions on Syrian refugees, but no companion bill has passed in the Senate.

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By A. Coeffler [Public domain], via Wikimedia CommonsImmigrant visas are available to certain family members of U.S. citizens and lawful permanent residents, as well as investors, employees, and prospective employees of American businesses. Recent announcements from federal immigration authorities and others have brought changes to immigrant visa procedures, as well as the potential for additional changes in the future. One recent change affects all immigrant visa categories, while others specifically apply to the EB-5 program for immigrant investors.

Procedural Changes at USCIS

In September 2015, U.S. Citizenship and Immigration Services (USCIS) announced new procedures for determining the availability of immigrant visas. Previously, visa bulletins issued by the U.S. Department of State (DOS) identified “final action dates” for each immigrant visa category. This date represents the priority date for immigrant visa petitions that the government is currently processing.

Many employment-based categories are current, but low-priority family-based applications can have distressingly long backlogs. According to the November 2015 visa bulletin, the government is now processing applicants from the Philippines in the fourth preference group—siblings of adult U.S. citizens—with priority dates in June 1992.

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tpsdave [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayThe U.S. Constitution gives the federal government exclusive authority over immigration law and policy. State and local governments have no direct authority to enforce immigration law, and the federal government generally cannot compel state or local agencies to do so. See Printz v. United States, 521 U.S. 898 (1997). In certain cases, however, federal immigration enforcement requires local government input. The New Jersey Supreme Court recently ruled on two consolidated cases from the Family Division that involved children seeking Special Immigrant Juvenile (SIJ) status. H.S.P. v. J.K., et al., Nos. 074241, 074527, A-114 Sept. Term 2013, A-117 Sept. Term 2013, slip op. (N.J., Aug. 26, 2015). The court found that New Jersey family courts lack jurisdiction to rule on actual immigration benefits, but they play a limited role in the immigration process because of their expertise in family law and child welfare.

Federal immigration law allows “special immigrant” status for unmarried children under the age of 21, for whom a return to their country of origin “would not be in [their] best interest.” 8 U.S.C. § 1101(a)(27)(J). U.S. Citizenship and Immigration Services (USCIS) makes a determination as to whether a child qualifies for SIJ status. It must find that the child has been declared a dependent of a state-level juvenile court, that this court has ruled that reunification with the child’s parents is not viable, that it would not be in the child’s best interests to be removed from the U.S., and that this situation is likely to continue until the child reaches the age of majority. 8 C.F.R. § 204.11. This requires certain specific findings from a state juvenile court. Once a child receives SIJ status, they may be able to obtain permanent residency and naturalization.

The two cases consolidated in the H.S.P. ruling involve child custody proceedings. In the first case, the child came to the U.S. from India without documentation in 2011 at the age of 16. When he was 15, he took a construction job working 75 hours per week to support his mother, who was too sick to work. When he also became sick, his mother sent him to the U.S. to live with her brother, H.S.P. In 2012, H.S.P. petitioned for legal custody of the child and requested the findings needed to obtain SIJ status. The family court declined to make those findings, holding that neither parent had “abandoned” the child.

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1329056_54448191_02242012.jpgLidiane Carmo, a 15 year-old undocumented immigrant from Brazil, learned on Tuesday, January 31 that a massive auto accident on Florida’s Interstate 75 had killed her entire immediate family. The family was headed home to Georgia after a conference in Orlando, Florida when the accident occurred on January 29. A brush fire allegedly caused such severe smoke and smog that drivers on the highway near Gainesville were blinded. In all, eleven people died and eighteen more, including Carmo, were injured. The girl’s parents, 17 year-old sister, uncle, and uncle’s girlfriend lost their lives in the crash.

Concerns immediately arose that, with no immediate family and no legal immigration status, the government would move to deport Carmo to Brazil. A spokeperson for Immigration and Customs Enforcement (ICE) issued a statement dispelling any rumors of any intent to deport her, saying that “reports of her facing deportation are completely false.”

Carmo’s family came to the United States from Brazil on nonimmigrant visas twelve years ago, when she was a toddler. They remained after their visas expired, and have resided here ever since. According to relatives, the family wanted to obtain legal immigration status, but no laws allowed them to do so. Friends and relatives describe Carmo as being a “regular American girl” who just “wasn’t born here.” She can barely speak Portuguese and has little knowledge of Brazil, according to a pastor at her church in Marietta, Georgia. Members of her church have expressed readiness to fight to help her gain citizenship, which may be possible through a special status granted to juveniles under the immigration laws.

ICE specifically cited the Obama administration’s policy, announced last year, of using discretion in pursuing removal cases, focusing on violent criminals and threats to national security. A memorandum dated June 17, 2011 from ICE Director John Morton outlines positive and negative factors to consider in deciding whether to pursue removal of a particular person. People who are low on the list of priorities may never face a deportation action. This gives people like Carmo an opportunity to look at options for obtaining legal status.
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435236_72050185_12182011.jpgThe Unauthorized Practice of Immigration Law Initiative, a joint project of U.S. Citizenship and Immigration Services (USCIS) and five other federal agencies, aims at educating both documented and undocumented immigrants about recognizing immigration scams. USCIS formally announced the campaign at its Newark office in early December. The campaign will start in seven U.S. cities, including New York City.

More and more individuals and businesses who lack the credentials or authority to render legal assistance are targeting immigrants for what appears to be help preparing applications for immigration benefits. In reality, these scammers pocket the immigrants’ money and leave them in a worse position than before. An immigrant might miss an important filing deadline or even end up in removal proceedings if they seek help from the wrong people.

The Star-Ledger tells the story of a Honduran immigrant who fell prey to a common scam that targets Latin Americans. Sagario Mendoza, a 48 year-old mother of three had lived in Newark for five years when she sought immigration assistance from a “notario.” In many parts of Latin America a “notario publico” is a licensed legal professional, authorized to perform many of the same services as an attorney. In the United States, a “notary public” has authority from the government for a very limited set of duties, usually to administer oaths and witness signatures. People advertise their services as “notarios” to Latin American immigrants, creating the false impression that they can offer legal assistance with immigration applications. Only licensed immigration attorneys can offer legal assistance with immigration documents in New Jersey. Mendoza learned that the “notario” had taken her for $1,000 and never filed any documents on her behalf. She now faces the risk of deportation.

Another common scam is an advertised promise by a business guaranteeing benefits such as a green card or employment authorization. They often charge a high fee to fill out and file immigration applications and claim they can obtain a faster processing time. Websites that resemble official government immigration agency websites also promise fast turnarounds on applications. They may charge a fee to download official immigration forms, then charge another fee to assist in filling out the forms. This is a sure sign of a scam, as all forms are free to download from USCIS’s website.
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