Month: July 2007

The CIS has released its second set of FAQs.  I will be on vacation through Sunday and will not be updating this blog until then.  Consider this some light weekend reading!

The following is not legal advice. Please contact a qualified immigration lawyer to discuss the specifics of your situation.

Under Section 245(i) of the INA, certain aliens who are unlawfully in the US can pay a $1000 fine to the government and be forgiven for having: (1) entered without inspection, (2) worked without authorization, and/or (3) overstayed their non-immigrant status.

The following conditions must be satisfied to qualify under this provision: (1) the applicant must have been physically present in the US on December 21, 2000; (2) the applicant must have been the beneficiary, spouse of the beneficiary or minor child of the beneficiary of a labor certification application or immigrant petition that was filed on or before April 30, 2001; (3) the applicant must not have left the US since December 21, 2000.

If the applicant has documentary evidence to establish that these conditions have been met, (s)he is eligible to either start a new process or continue the initial process. It does not matter whether the initially filed petition or labor certification application was later withdrawn, abandoned or denied, as long as it was not frivolous.

Doesn’t this sound a lot like the controversial plan that had the country in a frenzy earlier this year? It passed both Houses with little fanfare as President Clinton left office.  Eligible aliens who meet the criteria discussed above are eligible to grandfather under the law that was passed at that time.

A compromise on the harsh border security bill that fizzled yesterday took place today, according to Forbes.com.

An AP article in the San Jose Mercury News reports that “a federal judge on Thursday struck down Hazleton’s tough anti-illegal immigration law, ruling unconstitutional a measure that has been copied around the country.” 

Are we seeing a trend?  The Senate voted down a harsh enforcement-only immigration measure,  New Haven, CT is documenting the undocumented and now this.  Let’s see if it continues.

The Seattle Times reports on the Senate’s rejection of a harsh enforcement-only immigration plan introduced by Senator Lindsey Graham (R, SC).  Senator Graham, who is up for reelection next year, argued passionately in favor of comprehensive immigration reform in the Senate debates.

The following is not legal advice. Please consult a qualified immigration lawyer to discuss your specific situation.
As I have been writing for a few days now, USCIS filing fees will increase on July 30, 2007. However, the filing fees for EB cases that were current per the July Visa Bulletin will be accepted through August 17, 2007. When filing other applications with the I-485, it is recommended that separate filing fee checks be used for each application.

Why?  Because if there is a mistake with the fee amount enclosed, or with a missing signature etc., the USCIS will return only the application with the incorrect fee.  For example, if you apply for Employment Authorization with your I-485 Adjustment Application and you enclose separate checks for each, if there is a mistake with the Employment Authorization Application, only that form should be returned and your I-485 application should remain safely filed.  On the other hand, if you submit only one check for the incorrect amount, the whole package will be returned, probably after the August 17th deadline, and you may be in for a very long wait before you can file again.

Forbes.com reports that at a recent conference, Al Sharpton and Walmart CEO, Lee Scott voiced their support for Comprehensive Immigration Reform. Sharpton, who in my opinion was the most entertaining of the 2004 Democratic presidential nomination contenders, made the following astute observation: “I want to say what a lot of people won’t say. The immigration debate is not simply about border security, it is a problem of America dealing with race.”

According to AILA:

“USCIS has informed AILA Liaison that the I-485 form that has been found on the USCIS website with a revision date of 07/30/07N was posted in error. A new I-485 form will be posted on July 30, 2007, but, previous editions of the I-485 form may be used, including the 04/01/06 edition. USCIS is in the process of correcting their website.”

The American Immigration Law Foundation (AILF) is considering filing a class-action lawsuit against the Department of Labor on behalf of those who were adversely affected by the PERM Fraud Rule (also known as “Substitution Plus”) that came into effect on July 16, 2007.  The new rule: places restrictions on who can pay legal and other fees related to the labor certification process, prohibits the substitution of aliens, and sets an expiration date on approved labor certs.

So far, AILF reports that there has been insufficient interest from potential plaintiffs to proceed with the suit.  If you are an alien or employer and would like to participate in this potential lawsuit, please contact AILF at www.ailf.org to obtain the potential plaintiff questionnaire.

Laws and regulations related to US immigration are complex, tricky, fluid and oftentimes unforgiving. As illustrated by the Frequently Asked Questions published by the USCIS this week on filing applications related to the July Visa Bulletin debacle, a minor error such as including the incorrect fee amount, could lead to being unable to refile for a very long time.

The consequences of mistakes, omissions or poor strategy can be severe. For example, obtaining permanent residence (green card) through employment is generally a three-step process: (1) Labor Certification (PERM), (2) I-140 – Immigrant Petition for Alien Worker; and finally (3) I-485 – Application to Adjust Status to Permanent Resident.

If proper strategy is not implemented from the get-go, a foreign national could spend years, lose thousands of dollars, and risk falling out of status. Among other issues that need to be considered in such a case are:: (A) the alien’s documented qualifications for the minimum requirements of the position, (B) the employer’s willingness and ability to pay the prevailing wage, advertising costs and certain legal fees, and (C) the alien’s eligibility to adjust status. Failing to consider any of these factors, among others, could lead to denial of the process at any of these stages.

The funny thing about US immigration laws is that the process seems deceptively simple. The forms are straightforward, so how hard can it be? The reality is: the instructions and fees stated on the forms’ are sometimes incorrect; a call to the USCIS toll-free number will get you very little (sometimes inaccurate) information; new policies, regulations, updates and memos are released by various agencies at break-neck speed; forms are revised; filing fees increase; and filing locations constantly change.