Month: July 2007

Nothing on this site should be construed as legal advice. Please consult a qualified immigration lawyer to discuss the specifics of your unique case.

Now that many of the eligible Employment-Based applicants who were yoyo’d because of the July visa bulletin scandal have filed or will soon file their I-485 – Applications to Adjust Status, they want to know what will happen next.

For those who applied for an Employment Authorization Document (EAD) and/or a Travel Document (Advance Parole), these should arrive within 90 days of filing.  The USCIS will schedule a fingerprint and biometrics appointment for EAD applicants.  This will take place at a USCIS Support Center.

If interim benefits are taking too long, applicants can request an InfoPass appointment at their local district office online. In Boston, where I practice, the current procedure allows those who have been waiting more than seventy days to inquire (which usually results in expediting the application) by making an InfoPass appointment. However, these policies vary by district and are subject to change somewhat frequently. Usually immigration lawyers are aware of such changes and will advise clients of the current policy if they inquire.  In light of the volume of applications the USCIS will be receiving by mid-August, I suspect there will be delays.
Both the Employment Authorization Document (EAD) and Advance Parole are renewable annually (for a fee) until the I-485 application has been adjudicated. The EAD allows the holder to work for any employer and Advance Parole allows the applicant to travel internationally while his or her I-485 application is pending.

At this point it is impossible to accurately predict how long the process of obtaining permanent residence will take. Given the high volume of applications the USCIS is expected to receive by mid-August and the limited availability of visa numbers, it will likely take several years. Hopefully Congress will act to at least temporarily make additional numbers available.

Immigration law is fluid and everything is subject to change with little notice. I will do my best to update you with important developments as I learn of them.

In an interesting article by Brian Koonz that appeared in today’s www.NewTimesLive.com edition, the story of how ICE (Immigration and Customs Enforcement) agents chose to exercise their discretion illustrates what happens when the country’s immigration policy is based in punishment rather than compassion.

If CIR as proposed (or probably as modified through debates and negotiation) had become the law of the land, the detention of this family would not have occurred.  Even under existing law, it strikes me as poor judgment to choose to detain a family under the circumstances described.

When I was in grade school, I had a teacher who, if one student did something wrong, would hold the entire class in detention. That always struck me as unfair. Yet twenty-five years later, I feel as though immigrants and their lawyers are being treated the same way. We are being punished for the wrongdoings of others.

Two recent examples of the price we pay are: (1) the new PERM “Fraud Rule” and (2) excessive scrutiny and delays by the USCIS with Religious Worker cases.

The Department of Labor calls the new PERM rule: “Final Rule to Reduce the Incentives and Opportunities for Fraud and Abuse and Enhancing Program Integrity of May 17, 2007″ or “The Fraud Rule” for short. Immigration Lawyers refer to it as the “Substitution Plus Rule” because, among other things, the rule prohibits alien substitutions by employers PLUS it imposes a 180 day validity for certified applications PLUS it heavily restricts who pays for what in the labor certification process (in a nut shell, the employer must pay for everything). In spite of the DOL’s goal of minimizing fraud, this rule will have a chilling effect on smaller employers (and as a result, on the foreign nationals they would have hired), who, but for the requirements of new rule, would have been ready, willing and able to hire a foreign national. A lawsuit was being contemplated by AILF and they were seeking plaintiffs who were harmed by the Substitution plus Rule. However, everyone was sidetracked by the Visa Bulletin debacle, so I am not sure what became of the suit. I will look into the status of that and report back soon.

Another area of immigration law that has been affected by the wrongdoings of a few is Religious Workers. There have been cases of religious institutions filing fraudulent cases where the sponsored aliens were brought to the US and violated their status by not working for the petitioning organization. Outright fraud. However, what this has led to, is virtually every religious petition filed is held up while immigration officers physically verify the employment. Moreover, almost all cases receive very long Requests for Additional Evidence (RFE), often requesting documents that were submitted with the originally filed package. Earlier this year, the USCIS was sending out an exhaustive, template RFE for all religious worker cases as a matter of course until they were instructed in a Memo by Headquarters to cease the practice. It is the equivalent of the IRS auditing every single tax return. Is the government’s goal to reduce fraud necessary? Of course it is. However, cases need to be screened to determine the need for the extra delay and scrutiny.

The International Herald Tribune reports on the worries faced by families who come to the US for the serious medical needs of a child and are not permitted to be gainfully employed.  Just another example of how our immigration system is dysfunctional, for doctors (see previous post) and patients alike.

Even though Congress cannot agree on a comprehensive solution to our immigration crisis, improving it piecemeal is better than nothing.  They could start with:  (1) increasing the number of visas (immigrant and non-immigrant) available, (2)  the Dream Act, and (3) Humanitarian Work Authorization in cases such as the ones described in the article.

According to an Associated Press article that appears in today’s Washington Post: “A national shortage of doctors is hitting poor places the hardest, and efforts to bring in foreign physicians to fill the gap are running into a knot of restrictions from the war on terror and the immigration debate.”

Looks like we continue to shoot ourselves in the foot with our failed immigration policies, and we now lack the doctors to bandage the wound.

The following is for informational purposes only and is not legal advice. Please call a qualified immigration lawyer to discuss the specifics of your case.

There are several issues relating to the USCIS filing fee increase that are worth noting:

1. On July 30, 2007, the new filing fees go into effect.

2. Employment-Based I-485 applications for those with priority dates that were current in July that are filed through August 17, 2007 can be filed with the present filing fee ($325 + $70 biometric fee). Can these applications be filed with the new filing fees or will they be rejected? That’s a question that remains unanswered. However, it is important to note that forms that are filed with the wrong filing fees will be rejected. If the rejected application is returned after the August 17th deadline for current July EB cases, applicants will have to wait until the priority dates become current again to reapply. Could be a very long time.
3. Will concurrently-filed I-140 – Immigrant Petitions for Alien Workers for those who file after July 30 whose priority dates are current have to include the new I-140 fee or the present fee? Another important question that needs clarification. Not because of the money, but to avoid having the entire package rejected.

My two cents (or after July 30, my five cents!)

The new I-485 fee is $1010 and includes biometrics, as well as Employment Authorization Applications and an Application for Travel Document (for those who are eligible and apply). The current fee (until July 30, 2007) is $325 application fee + $70 Biometric Fee + $180 for the Employment Authorization + $170 for the travel document. This totals $745.

The new filing fee represents a 50% increase for those who would have opted for the Employment and Travel Documents and a whopping 255% increase over the $395 filing fee for those who would simply have filed their I-485 applications without Travel or work permission. These are not the most dramatic of the filing fee increases either.

Imagine if the cost of a movie ticket jumped from $10 on July 29 to $25.50 on July 30 or if the price of a $10,000 car increased to $25,500 overnight. Most of us probably wouldn’t go for it.

This outrageous increase can only happen in the case of a monopoly, and in this case a monopoly where there is no choice but to pay the fee or leave the country.

What a business!

A Business Week article that came out today states that: “Congressional leaders have begun to discuss legislation that would sharply increase the number of high-skilled foreign workers who could become permanent U. S. residents in the next few years.”

Many are wondering how long it will take the government to process the surge in permanent residence applications and how long applicants would have to wait to actually get their green cards.  Making more numbers available for skilled workers would be a welcome solution.  Stay tuned for developments on this front.

“Anchor Babies”, the Dream Amendment in the Senate, and a toddler facing deportation proceedings in Boston. Children are being used as pawns in the immigration debate.

“Anchor Babies”

In addition to opposing anything but punishment for the ten to twenty million undocumented persons in the US, anti-immigrants are trying to tighten immigration laws in such a way that even more “illegals” will be counted among us. They argue that birth right US citizenship should be abolished because the undocumented have US born babies as a ticket to stay in the country.

Although this argument appeals to anti-immigrant emotion, the truth is that children cannot sponsor parents for permanent residence until they are 21 years old. Add to that the time it takes for such applications to be processed (currently 9 to 15 years), and it becomes clear that having a child and waiting 30 to 36 years is not the most efficient way to legalize one’s status.

The Dream Amendment

This amendment would provide a six-year path to permanent residence for undocumented students and restore the authority of state governments to determine residency criteria for in-state tuition. Many of those who would benefit from such a law came to the US as young children, speak primarily or exclusively English and have no ties or familiarity with their “native” countries.

However, as I posted earlier this week, a MercuryNews.com article reported that in response to students going on a fast to express support for the DREAM amendment, Michael Savage, a talk radio personality said the following on the air: “let them fast until they starve to death, then that solves the problem,” followed by “then we won’t have a problem about giving them green cards because they’re illegal aliens.”

Deportable Toddler

A recent Boston.com article serves as as an illustration of how out of control our immigration system has become, there is the true story of Karla, a 5 year-old girl who was smuggled into the US, sitting in immigration court with her lawyer asking that she not be deported.

If we were to disallow so-called “anchor babies”, perhaps we would need a hybrid nursery/day care/immigration court to handle this new class of “illegals.”

According to a Reuters article to which I link to the left, a study by New York-based Human Rights Watch takes issue with deportations that are ordered, often for minor violations, without an immigration judge having discretion to weigh the facts:  “the study said mandatory deportations contradicted human rights law which requires a fair hearing in which family ties and other connections to an immigrant’s host country are weighed against a country’s interest in deporting him.”

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

AILA is seeking clarification of certain issues related to the government’s resolution of the visa bulletin mess.  Questions such as what filing fee should be included for an I-140 that is filed concurrently with an I-485, where the applicant’s priority date was current in July and filed in August.

Remember, the USCIS filing fees will increase on July 30, 2007, but the agency is accepting the present fees for I-485 applications from those whose priority dates are current in July through August 17, 2007.  The CIS is in the habit of rejecting files with incorrect filing fees (whether too high or too low).  Given the thousands of applications that they are now forced to deal with, it is possible that a rejected application may not be returned until after August 17, 2007, which would leave the potential applicant waiting until the priority date becomes current again.

The lesson?  Include the correct filing fee with your application.