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New DMV Factsheet from DHS regarding drivers' licences for nonimmigrants

This factsheet is primarily aimed at F, M or J nonimmigrants, however it is useful for all. In particular, this paragraph is interesting:

Quote:

Does a nonimmigrant need an SSN to apply for a driver’s license or ID? No. A nonimmigrant does not need an SSN; however, the nonimmigrant will need to apply for a social security number. Follow the instructions on how to apply for a social security card as described on the SSA Web site at http://www.ssa.gov/pubs/10096.html#3. If the nonimmigrant is ineligible for an SSN, he or she will receive a decision letter stating that ineligibility. The nonimmigrant must present this SSA letter when applying at the DMV office to fulfill the SSA requirement.

Photo thanks to http://www.flickr.com/photos/corydisbrowphotography/3617533905/

AC21 - Changing Employers/Positions while Permanent Residence is Pending

One of the biggest areas of concern for foreign nationals now if what happens if they are laid off or find another job before their permanent residence is approved. Under immigration laws, specifically the American Competitiveness in the 21st Century Act (AC21), the US government introduced some job flexibility to foreign nationals with long-pending permanent residence applications.

AC21 provides that a person's labor certification or I-140 approval remains valid when an alien changes jobs if:
(a) A Form I-485, Application to Adjust Status, on the basis of the immigrant petition has been filed and remained unadjudicated for 180 days or more; and
(b) The new job is in the same or similar occupational classification as the job for which the certification or approval was initially made.

This means that a foreign national can change positions within the same employer, or even change employers and locations, provided that the new position is in the "same or similar occupational classification."

What does "same or similar occupational classification" mean?

The AC21 decision is based on the duties of the position, not the title. Many people think that if they are moving from Engineer 1 to Engineer 2, they are safe, or that if they move from Engineer 1 to Software Analyst, they will have problems. This is not necessarily the case. USCIS refers to the Dictionary of Occupational Titles (DOT) for guidance. CIS advises comparing the DOT code assigned to the original position, and that attached to the new position, to see if they are "same or similar." A Programmer does not have to stay a programmer forever, however she could not move to a Manager role and use AC21.

Can I use AC21 to "port" to self employment?

Yes. USCIS guidance from December 2005 allows this, if the "same or similar" requirements are met.

What if I leave the original employer before the 485 is pending for 180 days?

The December 2005 memo explains that just you leave the employer before 180 days, does not make you ineligible to port to similar employment. There must have been a bona fide job offer by the first employer, and the you must have intended to take that job.

What if my original employer withdraws my I-140?

If the employer withdraws the I-140 before the 485 has been pending for 180 days, you are not portable. This is why we recommend not porting until after 180 days.

What if my I-140 is denied?

AC21 portability only applies if the I-140 was approvable when filed and CIS has said that it must actually be approved before a favorable decision on portability can be made.

How does portability affect my priority date?

Your priority date stays the same and continues to be the date that the labor cert or I-140 (if no labor cert.) was first filed.

What happens if I am laid off and can't find a new job?

This is tricky situation. In theory, the permanent residence process is for a future opening, so that you don't have to currently have a position until the 485 is approved. However, CIS has recently been "pre-adjudicating" cases even though the priority date might be very backlogged. In many of these cases, CIS has issued Requests for Evidence, looking for updated letters confirming an offer of employment. A person who is unemployed clearly cannot provide such a letter, and it is possible that these 485s might be denied.

For more AC21 information, see the USCIS guidance memos:
August 2003
May 2005
December 2005
May 2008
Photo by: http://www.flickr.com/photos/alberto_sechi/2231789372/

Who can pay the H-1B costs - employer or employee?

Many foreign nationals report that their employers ask the employees to pay the costs of getting H-1B status for themselves. If the employees are not asked to pay up-front, they may be asked to sign a reimbursement agreement, agreeing to repay the costs if they leave the company within a certain time.

H-1B Costs

There are 2 main costs in getting H-1B approved: government filing fees and legal fees. The filing fees are:
A. $320 I-129 fee
B. $1500 Education and Training Fee (For 1st H-1B petition and first extension) fee is $750 if under 25 employees.
C. $500 Anti-Fraud Fee (for employer's first H-1B petition for that foreign national).

Legal fees vary by attorney, of course.

What can the employee pay?

An employee cannot pay any part of the training fee listed at B. above. This is not permitted under any circumstances. Many attorneys believe that the employee legally can't pay the $500 Anti-Fraud Fee either. This is not correct - CIS has specifically said that this fee "does not need to be paid only by the petitioner." (AILA Service Center Operations teleconference 4/11/05).

There is a possible restriction on employees paying any of the rest of H-1B fees, if the salary being paid to the employee is very close to the "prevailing wage" or the "actual wage" for the position.

"Prevailing wage"is what the employer must agree to pay the foreign national, and it is what a survey shows is the normal salary for that position in that location.
"Actual wage" is defined as "the wage rate paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question." If there is nobody else with similar experience and qualifications for the job (because the H-1B worker is the only person in that category), then the "actual wage" would be whatever is paid to the H-1B employee.

There is an argument that if an employee pays any of the H-1B fees, this must be considered as a deduction from salary. If the salary, after this deduction, is below the "prevailing wage" or "actual wage" (whichever is higher), then there is a problem.

Are reimbursement agreements enforceable?

Apart from the limitation on recouping fees above, the question of whether a reimbursement agreements is enforceable is a matter of local state employment and contract laws.

Permanent residence not abandoned despite being outside the US for 2.5+ years - BIA

Many people with US permanent residence (green cards) want to know how long they can stay outside the US without abandoning their permanent residence. The Board of Immigration Appeals (BIA) recently made a very interesting decision in a case involving this issue. They ultimately considered that a person had not abandoned his permanent residence despite being outside the US for over 2.5 years.

In this BIA case, the foreign national (Mr. X) returned to the US in 2000, having been outside the US for 2 years and 9 months. On re-entering the US, Mr. X explained that he had left the US to care for his sick grandmother. The Department of Homeland Security (DHS) claimed that Mr. X did not leave to care for a family member and that he intended to abandon his lawful permanent resident status.

The BIA considered case history on this issue, including Katebi v. Ashcroft, 396 F.3d 463 (1st Cir. 2005). In Katebi, the court stated that "when an alien has a colorable claim to [permanent] resident status, the DHS has the burden to prove that the alien is not eligible for admission by clear, convincing, and unequivocal evidence."

The BIA, citing Katebi stated that

a permanent resident returns from a temporary visit abroad only when (a) the permanent resident's visit is for a period relatively short, fixed by some early event, or (b) the permanent resident's visit will terminate upon the occurrence of an event having a reasonable possibility of occurring within a relatively short period of time.

Ultimately, the issue is one of intent, and not, as the Immigration Judge's opinion suggests, whether the absence from the United States was "necessary" in the first place...... In other words, a returning resident does not necessarily abandon his status if he extends his trip beyond a relatively short period; the key remains whether his activities are consistent with an intent to return to the United States as soon as practicable....

Factors to be considered in evaluating the alien's intent include the alien's family ties, property holdings, and business affiliations within the United States, and the alien's family, property, and business ties in the foreign country.

In the instant case, Mr. X took no steps to establish significant ties in Hong Kong that would show that he intended to live there permanently. Instead, he apparently spent his time caring for an elderly relative and helping his sister, who was going through a divorce while caring for two small children. The BIA notes that Mr. X "did not have traditional employment in Hong Kong, did not have significant income there or open a bank account, and did not attempt to secure housing for himself." In addition, Mr. X had lived in the US for about 12 years after becoming a permanent resident, and had considerable family ties in the US.


Despite the above decision, which is non-precedent, we still urge all permanent residents who will spend 6+ months outside the US to get re-entry permits to be safe. See prior posts on this issue: http://martinvisalaw.blogspot.com/search/label/reentry%20permit.

Visa Bulletin for August 2009 issued.

The US Department of State has released the new Visa Bulletin for August 2009. In family-based categories, there is very slight movement forward, but just by a few weeks in most categories.

Employment-based categories have not changed for 1st preference applicants, and the entire 3rd preference and Other Workers category remains "Unavailable", like it has been since May 2009. The biggest change is that the priority date for India and China EB-2 categories have moved forward again. In June and July 2009, these categories retrogressed by 4 years (India) and 5 years (China). Both categories advance by almost 4 years, each to October 1, 2003.

USCIS to stop issuing I-551 stamps routinely

USCIS has announced that is is rescinding the May 2009 policy that asked CIS district offices to issue I-551 stamps as a matter of course. The I-551 is a stamp in a passport that confirms that permanent residence has been approved. It is temporary evidence of permanent residence until the "green card" is produced.

In recent years, green cards have been created and mailed withing a couple of weeks of permanent residence approval, so CIS did not issue the I-551 stamps unless there was an emergency. However, in May 2009, card production was delayed while they upgraded equipment, so CIS started issuing the I-551 stamps again.

Hopefully card production is back to normal, and approved permanent residents won't have problems because of having no evidence of permanent residence approval. CIS will still issue I-551 stamps, but only in emergency cases.

FAQ on immigration for military personnel

USCIS recently published immigration information aimed at members of the US armed forces and their families. The information covers naturalization for members of the military, what happens if to interviews and filings when a person is deployed overseas, expediting spousal petitions for military personnel, and more.

See here for details.

For more details about the MAVNI (Military Accessions Vital to National Interest) program generally, see here.

FAQs on E-Verify

The National Conference of State Legislatures has published a document with frequently-asked questions about e-verify: http://www.ncsl.org/?tabid=13127.

The FAQs answer the following questions

• What is Basic Pilot/E-Verify?
• When and how was it created?
• When will E-Verify expire?
• How does E-Verify work?
• What is the current usage and capacity?
• How well does E-Verify work?
• How is it enforced?
• What is required of federal contractors?
• What states currently address the use of E-Verify?

Although the document purports to have been updated on June 30, 2009, some information is out-of-date, so be careful using it. For example, the FAQs say that the requirement for federal contractors to use e-verify has been "delayed until February 20." In fact, that delay is now September 8, 2009, as noted here and here.

ICE starts workplace immigration crackdown

The U.S. Immigration and Customs Enforcement (ICE) agency issued Notices of Inspection (NOIs) to 652 businesses nationwide yesterday. This is more than ICE issued in all of the last fiscal year. The notices warn the employers that ICE will be examining their records to ensure that the companies have been complying with employment verification procedures.

This focus on employers is consistent with the Obama administration's promises to direct resources in the worksite enforcement program towards the criminal prosecution of employers who knowingly hire illegal workers in order to target the root cause of illegal immigration. See this blog post for more details.

For yesterday's ICE news release, see here. It states that

The 652 businesses being presented with a NOI today for a Form I-9 audit have been selected for inspection as a result of leads and information obtained through other investigative means. Due to the ongoing, law enforcement sensitive nature of these audits, the names and locations of the businesses will not be released at this time.

H-1B cap count updated - now 44,800

USCIS has updated the H-1B cap count. As of June 30, 2009, the agency has 44,800 cases against the regular (non-Master's) H-1B cap, compared with 47,500 on May 29. For more information, see the previous blog post here.

New State Department Pamphlet on Nonimmigrant Rights

The Department of State has published a pamphlet educating nonimmigrant visa holders on their rights. The pamphlet covers the visa process, important documents, workplace and employee rights, human trafficking, and how to file a complaint. This is a very useful document, not just for immigrants. As quoted in the publication,

The U.S. Government has issued this pamphlet to honor the rule of law and uphold the dignity of all who come to this country. The U.S. Government is committed to combating human trafficking and labor rights violations.

Obama tells lawmakers immigration a priority - The Boston Globe

Obama tells lawmakers immigration a priority - The Boston Globe


President Obama said yesterday that a bipartisan bill on the sensitive and volatile political issue will be difficult but must get underway this year. He spoke after he and members of his administration met with Congresspeople from both parties. The meeting was intended to begin mapping a plan to build support for an immigration measure that the president has said he would like to pass later this year or early next year, according to a senior White House official.

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CIS resumes Premium Processing for I-140s

CIS has just announced that it will resume Premium Processing for I-140 petitions, starting on June 29. The following petitions will be affected:

• EB-1 Aliens with Extraordinary Ability;
• EB-1 Outstanding Professors and Researchers;
• EB-2, Members of Professions with Advanced Degrees or Exceptional Ability not seeking a National Interest Waiver;
• EB-3 Professionals,
• EB-3 Skilled Workers, and
• EB-3 Workers other than Skilled Workers and Professionals.

Premium Processing guarantees a decision within 15 days for an additional government filing fee of $1000. The decision could be an approval, denial, request for additional evidence, or some other action.

See the CIS website and Press Release for details.

CBP issues Fact Sheet on Automatic Visa Revalidation

The US Customs and Border Protection Agency (CBP) recently published a fact sheet about automatic visa revalidation. This revalidation allows a nonimmigrant to travel to Canada or Mexico for less than 30 days, and return using an expired visa if the foreign national also has an unexpired I-94. The provision applies to people who are returning in a different status to that on their visa, as well as to people who have had their initial status extended. For example, a person can return from a short trip to Canada with an expired L-1 visa stamp and an L-1 extension approval notice with an unexpired I-94. Another example would be a person returning from a short trip to Mexico, and using an expired F-1 visa stamp and a change of status H-1B approval notice to enter.

The revalidation provision does NOT apply if the foreign national:

• has applied for a visa while on that trip to Canada or Mexico;
• is from Iran, Syria, Sudan or Cuba; or
• entered under the Visa Waiver Program.

CBP recommends that people who intend to use Automatic Visa Revalidation bring a copy of the fact sheet with them when they travel.

Immigration raids deemed abusive by panel

The San Francisco Chronicle today reported that a national commission has blasted the federal government for its tactics in a series of workplace immigration raids. The commission was set up by the United Food and Commercial Workers, and the panel included Agriculture Secretary Tom Vilsack, Alameda County Superior Court Judge Dennis Hayashi, UC Davis Law Professor Bill Ong Hing and others.

The commission found that US immigration agents had "violated workers' rights and traumatized communities." The article explains that

The report described the 2006 Swift raids in which thousands of workers - most of them U.S. citizens or legal immigrants - were held by heavily armed ICE agents for up to eight hours without food, water or the opportunity to use a bathroom or a telephone.

Testimony alleged racial profiling and violations of constitutional protections against unreasonable searches and detention without due process. Out of an entire Swift workforce of 12,000, ICE had warrants identifying 133 suspects of identity theft, the report said.

[emphasis added]

The comments on the newspaper's website show the level of hatred against undocumented workers. Most commentators ignore the fact that most of the people rounded up were lawful, even US citizens in some cases.

I have a green card, can I live outside the US for a few years?

People with permanent residence (green cards) often inquire as to whether they can live outside the US and still maintain their permanent residence (PR). Many people believe that if the green card holder returns to the US at least once every 12 months, there will be no risk of losing permanent residence. Immigration regulations do state that if a PR is outside the US for one continuous year, there is a presumption that PR has been abandoned. However, DHS (Department of Homeland Security) can decide that a person has abandoned PR after they have been gone for less than a year. The key is whether the person intended the stay abroad to be temporary, not the length of time outside the US.

If you want to live outside the US for 6 months or more, it is critical that you can show your intention to return to the US. This intent can be shown by as many of the following as possible:

1. Continuing to file US tax returns;

2. Keeping a house or other residence here;

3. Putting furniture and other belongings in storage rather than selling them;

4. Having some immediate family members staying in the US;

5. Definite plans to return to a job or studies in the US;

6. Maintaining memberships in clubs, church groups, etc in the US.

We recommend getting a reentry permit if you will be on an extended stay outside the US of 6 months or longer. A reentry permit allows a permanent resident or conditional resident to apply for admission to the US upon returning from abroad during the permit’s validity, without having to obtain a returning resident visa from the U.S. Embassy or consulate. A reentry permit does not guarantee admission into the United States. Aliens with reentry permits are still subject to inspection at the port of entry and may be denied admission if they are inadmissible.

Reentry permits are generally valid for 2 years from the date the reentry permit was issued. A 2^nd reentry permit might be approved for another 2 years, and therafter they are approved for one year at a time. You should apply for this benefit before leaving the United States. Ideally, you will file at least a few months before you leave, to allow time for the biometrics appointment to be scheduled before you travel.

For more information, please see these prior blog posts: http://martinvisalaw.blogspot.com/search/label/reentry%20permit

State Department to open new passport offices

The Department of State (DOS) issued a press release announcing that it plans to expand the existing network of 21 passport agencies and centers nationwide by opening new passport agencies in the following locations:

• Vermont
• Buffalo, New York
• El Paso, Texas
• Atlanta, Georgia
• San Diego, California.

DOS will also establish public counters at two existing locations, the National Passport Center in Portsmouth, NH, and the Arkansas Passport Center in Hot Springs, AR.

The Press Release notes that

"These new agencies will be open to the public and will provide the citizens of these communities with easy access to the full range of passport services. These agencies will have the capability to issue passports onsite and provide same-day service to qualified applicants."

DOS opened a new apssport agency in Detroit in March, and plans to open facilities in Dallas and Tucson later this summer.

H-1B cap count updated - number reduced

USCIS has updated the H-1B cap count, and now says it has 1,300 fewer cases than last time. It now has 44,400 cases against the regular (non-Master's) H-1B cap, compared with 47,500 on May 29. We wonder if this means that 1,300 cases have been denied or withdrawn, or if CIS discovered duplicate filings that it rejected. For more information, see the previous blog post here and here.

DHS Establishes Interim Relief for Widows of U.S. Citizens

I recently blogged about a court case which held that a woman from Cambodia could continue with her permanent residence (green card) application although her US citizen husband had died before the paperwork was processed. US immigration service argued that the woman no longer qualified as a "spouse" since her husband had died before the case was approved.

Yesterday, U.S. DHS Secretary Janet Napolitano granted deferred action for two years to widows and widowers of U.S. citizens and children under 18 years old, who live in the US and who were married for less than two years before their spouse’s death.

U.S. Citizenship and Immigration Services (USCIS) is to suspend adjudication of visa petitions and adjustment applications filed for widow(er)s where the sole reason for reassessment of immigration status was the death of a U.S. citizen spouse prior to the second anniversary of the marriage.

DHS Establishes Interim Relief for Widows of U.S. Citizens

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