USCIS Issues Duplicate (or more) Biometrics Notices

Contributed by Melanie Corrin, Partner

The United States Citizenship & Immigration Service published an article today stating that it has recently issues duplicate (or triplicate) Application Support Center (ASC) biometrics notice.  The article indicates that if you have already been to one appointment, and have a stamped notice which verifies completion of biometrics, there is no need to go to the second appointment.  USCIS believes the reissuance of notice occurred during a system transition for generating the notices.  If you have questions, please call Joseph Law Firm and we will assist you.

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Increase in International Student Population Benefits the U.S.

Contributed by Kim Tremblay, Associate Attorney

To the chagrin of some students, the new academic year has officially begun.  An increasing number of those students are not from the United States.  Foreign students come to the United States on F-1 visas in most cases and on J-1 visas in others.  According to the Institute of International Education, over 800,000 international students attended colleges and universities in the United States during the 2012-2013 academic year; this represented a seven percent increase over the previous year.  An increase has been reported for the last seven years.   Most of these students are from China and India.  As high as that number may seem, only about four percent of the U.S.’s total student population is from abroad. 

In contrast, only about 200,000 American students studied abroad during the 2011-2012 academic year and roughly ten percent of American students study abroad during their undergraduate years.  

Thus, the U.S. benefits from brain gain and from the billions of dollars−about 24 billion last year−students spend on tuition and living expenses while in the United States

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New Driver’s License Law Fraught with Problems, Particularly for Eagle County Residents

Contributed by Koby Polaski, Senior Attorney

As of August 1, undocumented immigrants are eligible to obtain driver’s licenses under a new law passed by the State Legislature in 2013. The passage of this law was seen as exciting progress for the more than 150,000 undocumented people in Colorado who might be eligible to obtain licenses.

Unfortunately, many people, especially in certain areas – like Eagle County – might not be getting driver’s licenses anytime soon. Issues with implementation of the new law are making it difficult for potential applicants to sign up.

The first problem is that only five locations of the state’s 56 licensing centers will be issuing the cards, and each requires applicants to schedule an appointment before coming in. The five locations in Denver, Aurora, Colorado Springs, Fort Collins and Grand Junction leave many communities throughout the state underserved. For Eagle County residents, Grand Junction is the closest option and is at least 1.5 hours away. The result is that driving time alone might be prohibitive for someone without a license.

Next on the list of issues is the lengthy wait for an appointment. It is not currently possible to schedule an appointment at the Grand Junction location, as all available appointments have been booked for the foreseeable future. Many predict that potential applicants could be waiting years for an appointment.

This is a critically important bill, both for the thousands of people in need of licenses and also to ensure road safety; hopefully the legislature will figure out a way to address its rocky rollout.

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DACA Grantee Johana Mejias Welcomed to Medical School at Loyola University Chicago

Contributed by Aaron Hall, Partner

On August, 4, 2014, Loyola University Chicago Stritch School of Medicine welcomed Johana Mejias and the rest of its Class of 2018 to school.  Johana is one of seven medical students starting school at the Stritch School of Medicine there who was granted Deferred Action for Childhood Arrivals (DACA) under the Department of Homeland Security’s program which started in 2012. 

Johana arrived in the United States at age three and has lived here ever since.  Despite not having immigration status, she remained focused on her studies and has excelled at every level.  She studied cellular and molecular biology and the psychology of neuroscience at the University of Colorado in Boulder.

Johana first applied for DACA through Joseph Law Firm the day after DHS started accepting applications and was quickly approved. 

At the welcome event for the incoming medical school class, she was asked to speak and explained, “Today, what was once just a dream starts to become a reality. I find myself as part of Loyola Stritch, a loving, professional and courageous institution that believed in my ability to one day become a successful practicing physician.”  Illinois Governor Pat Quinn, U.S. Senator Dick Durbin, and other dignitaries were on hand at the event to welcome the incoming class of medical students.

Johana’s hard work and achievement are an inspiration and we at Joseph Law Firm are proud to have gotten the chance to work with her.  Johana’s story also shows the potential in our talented and driven young adults that have been granted DACA.  Grants of deferred action under DACA allow our communities to reap the benefits from the talent, passion, and creativity of these young people. 

Congratulations, Johana!  You make us proud.  We can’t wait to follow your career and see all of the great things you achieve and all of the people you will help.

-To see the press release from the Loyola University Chicago Stritch School of Medicine, click here.

-For more about the DACA program, click here. 

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Is Colorado Ready for Unaccompanied Minor Children?

Contributed by Kim Tremblay, Associate Attorney

Recently, the media has been relaying stories about the surge of children appearing at our borders; indeed, more than 50,000 minors have entered the United States since October. They are fleeing violence and poverty.  They are mostly citizens of in Mexico, Guatemala, Honduras, and El Salvador.  Many of them are deemed “Unaccompanied Minor Children” (“UAC”), individuals under 18 who lack status in the United States, who are without parents or legal guardians in the United States or without parents or guardians in the United States who can provide them with care and legal custody.

Although the state of Colorado has not seen a significant number of these children yet, there are existing systems in place to process UAC through the immigration courts and to help them with their various needs, as there are a number of UAC who arrive in Colorado every year.  In addition, the legal community, government agencies, and local municipalities are preparing for the possible arrival of  more UAC in Colorado. 

For example, some Colorado attorneys have already spent time near the border representing UAC before the immigration courts or participating in presentations and individuals screenings to ensure that UAC are aware of their rights and to determine there is any relief available to them.  Other attorneys are being trained to do the same in Colorado.

Moreover, the immigration court in Denver already has a juvenile docket set up to handle the deportation cases of minors.

In addition, the Rocky Mountain Immigrant Advocacy Network (“RMIAN”), a non-profit organization near Denver, already runs a program to represent immigrant children. RMIAN engages in direct representation, but also attempts to match attorneys with children who need representation.

Finally, cities and charitable organizations are gearing up to provide shelter, food, clothing, and even foster care for any UAC who may come our way.

Despite these preparations, it is unknown whether UAC will be sent to Colorado in great numbers. If they are, hopefully these efforts will be enough to support them adequately and to process their cases in a fair and timely manner.

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Employment Authorization Verification: A Fine Line Between Compliance and Discrimination

Contributed by Amber L. Blasingame, Associate Attorney, Colorado Springs Office

The I-9 Form is an enigma among so many complex immigration forms. Employers and employees often may overlook the significance of the form and reasons why the form exists. Created in 1986, the form was intended to reduce the allure of unauthorized employment in the United States. However, a zealous employer must not only focus on the employment authorization verification section of the law, but should also be wary of the anti-discrimination requirements of the law. A recently published settlement agreement between the Office of Special Counsel (OSC) and Commercial Cleaning Systems, Inc. (CCS) reminds employers that the anti-discrimination section of the law is just as important as the employment authorization verification requirements of the I-9 Form.

Anyone who has been hired by an employer since November 6, 1986, has at one time or probably multiple times completed an I-9 Form. It is a two page form (previously only one page) in a myriad of one and two page forms that you complete as part of your hiring process. You may even have called the employer in advance asking her what you should bring with you on your first day of employment. If he or she told you to specifically bring a driver’s license and social security to verify employment without providing you with the full list of acceptable documents, the employer may actually have been in violation of the discrimination portion of the I-9 Form. While other factors may be necessary to actually pursue a claim, it can be that easy for an employer to cross the line, especially if it becomes a practice.

In the OSC settlement with CCS, CCS crossed the line when it “engaged in unfair documentary practices,” specifically “practices of over-documentation” requirements for non-U.S. citizen applicants for employment. The law governing the employment authorization verification process lays out the type of documents that an employer may accept and/or require that a new hire present for employment authorization verification and identification. INA §§ 274A(b)(1); 274B(a)(6). On your first day of work or even prior, your employer may have presented you with a list divided into three columns marked A, B, or C. Each column requests acceptable documents that establish employment authorization and/or identification. The employer should leave it up to the employee as to which of the documents he chooses to present to establish eligibility for employment. If the employee satisfies the document requirement, the employer may not request any additional documents. An employer may also not restrict the documents that an employee may provide, per the example above, or reject a valid employment authorization document with an expiration date. These practices are especially a problem if a pattern emerges of limiting requests for excessive or restrictive documentation to immigrants or persons perceived to be immigrants or foreign nationals. An employer may not discriminate in hiring and firing practices on the “basis of citizenship status or national origin.” INA § 274B(a)(1).

While an employer may think these practices are minor infractions in a good faith effort of compliance, a necessary evil, the consequences of such a practice may lead to civil fines and/or back-pay obligations. In the case of CCS, the employer was fined a total of $53,550, and required to set aside at least $25,000 “to compensate work-authorized individuals” who were not considered for a position, “denied or delayed job placement, suspension, termination, or other periods of lost work” as a result of CCS’s unauthorized hiring practices. Civil fines for unfair documentary practices or document abuse may range from $110 to $1,100 “for each individual discriminated against,” according to the Form M-274 Handbook for Employers available on the USCIS website. Discrimination in hiring on the basis of citizenship status or national origin may lead to fines as much as $3,200 per individual for first time offenders and as much as $16,000 for each individual if the practice continues.

Employers are strongly advised to regularly audit their I-9 Forms and continually train staff on proper and updated workforce compliance procedures and policies. To help in this process, we would encourage employers to seek out counsel from licensed immigration attorneys who can not only assist with the audit process but also provide direction and training to authorized representatives of the employer assigned to collect and retain employment authorization verification forms. In certain states, such as Colorado, this may include state required documentation retention procedures. The US Citizenship and Immigration Services website also provides guidance, including the M-274 Handbook and I-9 Central at http://www.uscis.gov/i-9-central.

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The Congressional Hispanic Caucus’s Eleven Theses on Immigration Reform

Contributed by Amber L. Blasingame, Associate Attorney, Colorado Springs Office

In the wake of congressional “do-nothingism,” per Rep. Luis Gutierrez, President Obama announced plans on June 30, 2014, to implement additional immigration relief within the power of the executive branch before the end of this summer. The President did not provide more specifics on his intentions. However, in April, the Congressional Hispanic Caucus (CHC or Caucus) presented a draft of a confidential memorandum to Homeland Security Secretary Jeh Johnson outlining possible options within the power of the executive branch “to end the needless separation of American families” affected by immigration enforcement. The memo, which was subsequently leaked to the media, includes suggestions both on affirmative administrative relief and immigration enforcement.

The CHC offers five possible affirmative administrative relief actions that the President could execute with the “confines of the law.” The options for relief presented in the memo include the following: (1) Expansion of the Deferred Action for Childhood Arrivals (DACA) program to family members of DACA recipients who would qualify for relief per the Senate Immigration Reform Bill (S. 744); (2) Expansion of “Parole in Place” benefits to undocumented immigrants other than family members of military personnel; (3) Eligibility to adjust to permanent residence for DACA or Temporary Protected Status (TPS) recipients who travel and reenter on “advance parole” despite prior unlawful presence; (4) Expansion of Humanitarian Parole to immediate family members of DACA recipients and immediate relatives of US Citizens and Permanent Residents; and (5) Extending eligibility for enlistment in the military to recipients of DACA, TPS, Asylum, or Refugee Status under the Military Accessions Vital to the National Interest (MAVNI) program.

In addition, the CHC memorandum advises the Department of Homeland Security (DHS) to modify the agency’s “policies and practices to reflect a more humane approach to immigration enforcement.” The Caucus advocates a clarification of the “extreme hardship” standard for waivers and provisional waivers of grounds of inadmissibility, such as for unlawful presence, that incorporates prior DHS decisions and memorandums. Furthermore, the Caucus proposed an expansion of the provisional waiver to spouses and children of permanent residents. On the subject of deportation proceedings, the memorandum requested a review of enforcement priorities and a refinement of prosecutorial discretion practices to provide “case-by-case use of deferred action” and adjusting the weight of positive factors over negative factors, a limitation on “deportations without hearings” which includes expedited removals at the border, and restricting detainment of immigrants to the “highest priority cases.” The CHC likewise counseled a termination of Secure Communities to improve safety, reduce racial profiling, rebuild community trust, and relieve local law enforcement of any obligation to participate in immigration enforcement programs. As a final point, the Caucus called for improvements in “short term custody” to improve the conditions and treatment of immigrants in immigration detention facilities.

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No Comprehensive Immigration Reform in 2014, Executive Actions Imminent

Contributed by Aaron Hall, Partner

After months of languishing in the House of Representatives with only the occasional flicker of hope, it appears that the prospect of immigration reform is officially dead for 2014. 

The Obama Administration has announced that by the end of the summer, it would be implementing a new serious of executive actions.  In the summer of 2012, the administration implemented the Deferred Action for Childhood Arrivals (DACA) program as an executive action.  It is unclear if this summer’s policy changes will include an expansion of the DACA program or whether they will be different in scope and purpose. 

According to a Politico article, the White House acknowledges the risks of turning to executive authority and knows that many will complain that it has gone too far while many others will feel like it has not done enough.  The administration has not released any specific plans but has stated that it plans to “go as far as we think is good policy and is permitted under the law.”

See the Politico Article here.

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Just What the Doctor Ordered: One State’s Proposed Solution to the H-1B Insanity

By Amber Blasingame, Associate Attorney, Colorado Springs Office

According to Albert Einstein the definition of insanity is doing the same thing over and over again and expecting different results. Submission of a cap subject H-1B petition, especially in the last two years, comes dangerously close to insanity. It is no wonder that a state government, in an effort to stop the insanity, would feel compelled to create a “workaround” for bright, up-in-coming, foreign-national entrepreneurs who have paid into the state economy directly and indirectly in the form of tuition for over four years. Massachusetts’ Governor Deval Patrick proposed just such a plan, the “Global Entrepreneur in Residence Program,” on April 10, 2014.

The governor introduced the Residence Program soon after USCIS announced reaching the cap for the second year in a row on April 1, 2014, which lead to yet another lottery for cap subject petitions. Only 65,000 H-1B temporary worker visas are available annually, starting October 1, with an exemption of 20,000 for beneficiary’s who have earned an Advanced Degree from a post-secondary educational institution in the United States. H-1B visas are a popular choice for professionals who have earned at least a four-year bachelor’s degree and received an offer of employment in the United States consistent with their education. As the economy has slowly recovered in the last six years, the H-1B visas have become more and more coveted. For fiscal years 2014 and 2015, USCIS received twice as many petitions than visas available which created a lottery system. No longer is an employer guaranteed at least consideration of its petition if received exactly on April 1, 2014.  For fiscal year 2015, USCIS received approximately 172,500 petitions as reported on April 7, 2014.

The “Global Entrepreneur in Residence Program” would establish the Massachusetts Tech Collaborative “to place foreign workers with participating university employers.” Institutions of higher education are exempt from the annual H-1B cap. As long as a beneficiary is employed by a university or college or employed by an organization in association with a University or college, the resulting petition for H-1B status is not counted against the annual 65,000 and/or 20,000 exemption quota.

The program would be available to recipients of advanced degrees in the STEM fields (Science, technology, engineering, science) or accounting, finance, economics, business or business administration, and who “desire to move to or remain in the commonwealth.” Universities would sponsor the foreign nationals in H-1B status and employ them on a part-time basis, 8-15 hours per week, “while they develop entrepreneurship skills.”

Developed skills may include starting a new venture. Such skills and development could actually open foreign nationals to other avenues for nonimmigrant or immigrant status in the United States such as intercompany transferee status, treaty trader or investor visas or green card status based on investment or multi-national manager capacity.

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DACA Renewal Procedure Finally Posted

Contributed by Kim Tremblay, Associate Attorney

On June 5, 2014, USCIS finally announced the procedure for the renewal of Deferred Action for Childhood Arrivals (“DACA”) applications and released a new I-821D form and instructions.   

USCIS accepted and approved the first DACA applications in August 2012; as DACA is granted for two years, many early DACA grantees have been waiting for this information.  USCIS states it may provide deferred action and employment authorization to cover any gaps between the expiry of a previous DACA application and the approval of a renewal application filed 120 days before expiry.  However, to avoid possible gaps in work authorization or the accumulation unlawful presence, current DACA recipients should file their renewal applications 120 days before their current DACA expires, but no more than 150 days before expiry, and file as soon as possible if their status is expiring in less than 120 days.   

   

Moreover, DACA grantees should use the updated form I-821D and file forms I-765 and I-765WS, along with the requisite filing fee and supporting documents.  Applicants will have to submit documents pertaining to new removal proceedings or criminal incidents.    

  

Previous DACA grantees will remain eligible for DACA as long as they did not depart the US without advance parole after August 15, 2012, have continuously resided in the U.S. since their last DACA application was approved, and did not committed any disqualify crimes.   

Finally, individuals who think they qualify for DACA and have not applied still can do so and should consult and immigration attorney or accredited representative.  

For more information:           

http://www.uscis.gov/news/secretary-johnson-announces-process-daca-renewal

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