SNL & School House Rock: “You’re Right, There Oughta Be a Law”

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

On the Saturday following President Obama’s announcement, Saturday Night Live, in all its comedic glory, presented an opening skit satirizing the President’s Immigration Accountability Executive Order. The skit parodies the School House Rock public service announcement on how a bill becomes a law (“I’m just a Bill, yes, I’m only a Bill; And I’m sitting here on top of Capitol Hill”). Before the weekend was up, the skit was posted all over social media by individuals on both sides of the immigration debate. While the skit is certainly entertaining, it expresses misinformation about the President’s executive order announced on November 20, 2014.

In the skit, President Obama throws the hapless Bill down the stairs of the capitol in favor of his Executive Order. Conversely, in the President’s address on November 20, 2014, he was clear that his executive action was not intended to replace any act of Congress. In fact, he appealed to Congress to pass an immigration bill for his signature. The executive actions are only meant as a stop gap measure until Congress and the President can agree on the best way to reform our broken immigration system. The President can only issue an executive order within the parameters and limitations of the existing laws passed by Congress. Nevertheless, those existing, immigration laws desperately need to be clarified and updated to meet the needs of our country in the Twenty-First Century. The president’s actions do not fix our broken system. The order only provides temporary relief in anticipation of a more permanent solution from Congress. We still need Congress to pass a bill or bills to reform immigration.

When presenting the Executive Order in the skit, the President declares that the Executive Order is going to give “legal status” to millions of “illegal immigrants.” The misnomer of “illegal immigrants” aside, the Executive Order does not offer “legal status” to undocumented immigrants. The President’s order offers a contract with undocumented immigrants that, if accepted and maintained, would protect applicants from deportation (“removal”) temporarily. This is not a “status” in the legal sense; at best it may be considered a “benefit” since applicants may also qualify for employment authorization or, more apt, temporary “relief” from deportation. The contract does not implement a “path to citizenship” or even “legalization.” The benefit of relief is precarious and may be breached by either party at any given point in time. If the executive order is not extended or is rescinded, then the contract is terminated. If a recipient violates any of the terms of her application, then the contract is breached and the applicant could be subject to removal proceedings. The Immigration Accountability Executive Order in no way grants legal status to any undocumented immigrant.

Finally, the Executive Order, smoking his stogie, expressed surprise to hear that he would be doing something more than creating a national park or holiday. Presidents throughout the centuries have used executive orders for far more than establishing national parks or holidays, including immigration relief to millions of undocumented immigrants. The predecessor of the executive order was the presidential proclamation, two of which comprised President Lincoln’s Emancipation Proclamation. More recently, President George W. Bush signed into existence more than 290 Executive Orders during his two terms in office. He too was called a king or a tyrant on many occasions when he unsheathed his mighty pen to sign yet another executive order. Among those executive orders, in 2003, was one that was passed with little fanfare, but it permitted a do-not-pass-go-do-not-collect-$200 path to citizenship to any “nonimmigrant” who enlisted in the military during the conflicts with Afghanistan and Iraq. Of course very few people are likely to protest such action for those who are lawfully in the country and who want to serve their adopted country and the action only extended to a few thousand foreign nationals who could qualify for the MAVNI program (Military Accessions Vital to the National Interest). However, the order provided far more than just a contract to recipients and even more than just legal status, but actual citizenship – the right to vote, the right to run for office, the right to the protection of the United States. President Reagan signed 381 Executive Orders during his time in office, more than any president since President Franklin D. Roosevelt, who signed a whopping 3,721 Executive Orders before retiring from office. President Reagan, among his order, signed an executive order that offered relief to thousands if not millions of undocumented immigrants in the wake of Immigration Reform and Control Act of 1986 as a stop gap measure. The same executive order was extended by President George H. W. Bush. President Obama’s actions are in good company, and it should have been of no surprise to the Executive Order just how much he could do.

So, by all means enjoy the SNL skit for what it is – entertainment. However, just know that it is not a reliable source of information on the matter of immigration reform or the recent executive actions. And we still “hope and pray” that immigration reform will become a law, “but today [it is] still just a bill.”

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Executive Action Expands Protection for Victims

Contributed by Koby Polaski, Senior Attorney

Included in Obama’s sweeping changes to our nation’s immigration system are two important provisions that apply to U and T visas. The U visa is available for certain crime victims in the United States, and the T visa is available to victims of human trafficking.

First, President Obama expanded the Department of Labor’s (DOL) U visa certification protocol to include three additional qualifying criminal activities. Specifically, the DOL will begin certifying U visa requests that include: extortion; fraud in foreign labor contracting; and forced labor. Additionally, the DOL will certify applications for trafficking victims seeking T visas when the Wage and Hour Division detects human trafficking activity in the course of its workplace investigations. The DOL will publish a Federal Register notice delegating authority to issue T visa certifications and will amend procedures and protocol to reflect these changes.

Obama’s changes also call for the establishment of an interagency working group addressing consistent enforcement of federal labor, employment, and labor laws, which will seek to ensure that federal enforcement authorities are not used to undermine worker protections. The changes also call for the implementation of strategies to strengthening workers for asserting workplace claims.

Finally, under a new prosecutorial discretion memo released last week, domestic violence is now classified as a significant misdemeanor. The memo contains a footnote instructing that in determining whether a crime is a significant misdemeanor, careful consideration should be taken in cases where the convicted individual was the victim of domestic violence. This indicates sensitivity to the fact that survivors of domestic violence are often arrested along with the perpetrator. Hopefully, under this guidance, ICE will not only help “perfect” crime victims.

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Expansion of Parole in Place Benefits to Family Members of Military Enlistees

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

President Obama’s Executive Action announced on November 20, 2014, expands in Parole in Place to family of US Citizens and Permanent Residents who are “seeking to enlist” in the military. Secretary Jeh Johnson’s memorandum published on the same day as the President’s announcement would widen the pool of eligible beneficiaries of parole in place and procedures published by US Citizenship and Immigration Services in November 2013.

Parole in place permits an applicant for permanent residence, who is otherwise eligible, to adjust status in the United States, even if the applicant entered the United States without inspection. A person who has been lawfully admitted or paroled into the United States, who has an immigrant visa available, may apply for permanent residence under INA § 245(a) without having to leave the United States for consular processing. The Department of Homeland Security may offer parole in the discretion of the Attorney General “on a case-by-case basis for urgent humanitarian reasons or significant public benefit.” Parole “in place” allows an applicant who may have previously entered without inspection to be “paroled” into the United States without having to first leave the United States to correct the prior entry, thus extending to the applicant the equivalent of a lawful admission.

The spouse, parents, or children of a United States Citizen benefit the most from parole in place. Because the Immigration and Nationality Act forgives any period of unauthorized stay or employment for the “immediate relative” of a US Citizen and allows the person to adjust if she provides evidence of a lawful entry. However, parole in place is also available for the immediate family members of Lawful Permanent Residents. In the latter case, the family would be allowed to adjust status upon issuance of parole in place, but may have to qualify for and submit a waiver of any unlawful presence in the United States of six months or more.

The memorandum published in November 2013, provided a more structured process by which family members of enlisted or retired military personnel could obtain parole in place. Previously the documentation and eligibility for parole in place was up to the individual field offices. The November 2013 memorandum not only provided a form and required documents, but also clarified who was eligible, including the spouses, parents, and children of active duty and retired or honorably discharged military personnel.

In an effort to comply with President Obama’s executive action and increase military recruitment, the November 2014 memorandum now expands the benefit of parole in place to the immediately family members of US Citizens or Permanent Residents “seeking to enlist” in the military who have not yet been assigned as active duty. The memorandum also “direct[s] USCIS to consider” offering deferred action to the family of service members and veterans who entered lawfully into the United States but may not be eligible for other immigration benefits.

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Bringing Business Immigration into the Twenty-First Century

Contributed by Melanie Corrin, Partner

The President’s announcement regarding Executive Action on immigration Thursday, November 20, 2014 did not only reach some individuals who are in the United States without documentation, it also addresses needs in other areas of immigration that can be evaluated and bettered for our nation’s businesses.

In the coming months the United States Citizenship & Immigration Service (USCIS) will be tasked with working with the United States Department of State to develop a method to allocate immigrant visas to ensure that all immigrant visas authorized by Congress are issued to eligible individuals when there is sufficient demand for such visas.  This includes all Employment Based categories.  Additionally, USCIS will work with the Department of State to modify the Visa Bulletin system to more simply and reliably make determinations of visa availability.

Additionally, USCIS has been tasked with providing clarity on adjustment portability to remove unnecessary restrictions on natural career progression and general job mobility to provide relief to workers facing lengthy adjustment delays.  Given that some individuals are waiting seven years before they are adjustment eligible, the current system stymies career development and employer’s ability to promote based on archaic reading of immigration laws and regulations. 

Other Steps the Executive Action Seeks to Take:

• Clarify the standard by which a national interest waiver may be granted to foreign inventors, researchers and founders of start-up enterprises to benefit the U.S economy.
• Authorize parole, on a case-by-case basis, to eligible inventors, researchers and founders of start-up enterprises who may not yet qualify for a national interest waiver, but who have been awarded substantial U.S. investor financing; or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research.
• Finalize a rule to provide work authorization to the spouses of certain H-1B visa holders who are on the path to lawful permanent resident status.
• Work with Immigration and Customs Enforcement (ICE) to develop regulations for notice and comment to expand and extend the use of optional practical training (OPT) for foreign students, consistent with existing law.
• Provide clear, consolidated guidance on the meaning of “specialized knowledge” to bring greater clarity and integrity to the L-1B program, improve consistency in adjudications, and enhance companies’ confidence in the program.

Please contact Joseph Law Firm, P.C. if you have any questions about the above information, we look forward to working with you.

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Timeline for Deferred Action Applications Following President’s Announcement

Contributed by Aaron Hall, Partner

United States Citizenship and Immigration Services (USCIS) is the agency that will be deciding applications for deferred action under the new programs announced by President Obama on November 20, 2014.  USCIS is not currently accepting applications but has announced the following timeline:

-Applications for deferred action under the newly expanded Deferred Action for Childhood Arrivals (DACA) program will be accepted beginning on about February 18, 2015.  Applicants must have (1) entered the U.S. before turning 16, (2) resided in the U.S. since at least January 1, 2010, (3) graduated from high school or obtained a GED, or be actively pursuing their high school education or its equivalent in school, (4) not had any disqualifying criminal offense.

-Applications for deferred action for parents of U.S. citizens or lawful permanent residents will be accepted beginning on about May 19, 2015.  Applicants must (1) have resided in the U.S. since at least January 1, 2010, (2) have a U.S. citizen or lawful permanent resident son or daughter, (3) not have disqualifying crimes or otherwise be an enforcement priority.

While USCIS is not currently accepting applications, those who will want to apply should begin gathering evidence to support their applications.  Anyone who thinks he or she might qualify but has an order of deportation or voluntary departure from an immigration judge may need to take immediate action, even before USCIS begins accepting applications.

Call 303-297-9171 to set up a consultation to talk about your eligibility and the timeline for filing an application.

-Jeff Joseph explaining the impact of the President’s Announcement (VIDEO)

-Aaron Hall explicando el impacto del anuncio del Presidente (VIDEO en español)

-Amber Blasingame on the new policies and programs from the 11/20/2014 announcement

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Impact and Analysis of the President’s Executive Action on Immigration

Contributed by Amber Blasingame, Associate Attorney, Colorado Springs

President Obama’s announcement brings much needed relief to millions of undocumented immigrants. However, President’s executive action on immigration will not be a panacea for all undocumented immigrants and will only extend temporary relief until and if Congress passes a more permanent solution. The executive action also calls to develop and improve current legal immigration processes for employment based status and naturalization.

The President’s actions have been calculated to reach the widest population possible within his executive authority. The order will extend benefits to various categories of undocumented immigrants, but not status or a path to citizenship. The order will include the following relief and expansion of existing benefits: (1) Deferred Action for Parental Accountability to parents of United States Citizens and Lawful Permanent Residents who have been present since January 1, 2010; (2) An extension of Deferred Action for Childhood Arrivals (DACA) to applicants regardless of age who arrived before January 1, 2010; and (3) Extending provisional waivers to immediate relatives of lawful permanent residents and children of United States citizens. In the interest of economic growth and job creation, US Citizenship and Immigration Services will work with the Department of State to “modernize, improve and clarify immigrant and nonimmigrant programs” including the employment based immigrant visa preference category system, adjustment portability, national interest waivers to foreign inventors, researchers, and entrepreneurs, expanding optional practical training, offering employment authorization to H-4 dependents of H-1B temporary workers, and clarifying guidance on defining the L-1B “specialized knowledge” nonimmigrant status.

Only those applicants who “meet strict requirements” will benefit. As usual, all applicants will be subject to criminal and national security background checks and must not be considered a “priority” for removal purposes, i.e., no substantial criminal record or immigration violations and not a threat to public safety or national security. Each case will be reviewed carefully, and any evidence of fraud, misrepresentation, or failure to disclose a material fact will subject applications to criminal prosecution and possibly removal proceedings. Applicants will be eligible for employment authorization and required to pay taxes as well as applicable government filing fees for processing.

Applications will not be accepted until early 2015. The agencies involved in the process will need time to implement the President’s call to action including creation of necessary forms, determination of fees, and reallocation of resources to accept and process millions of applications. Potential applicants may begin collecting documentation to show presence for at least the last 5 years and should consult with an immigration attorney concerning eligibility and risks.

While the executive order brings relief to millions, the action does not extend to recently arrived immigrants. For example, it does not extend benefits to the influx of immigrants from Central America in the past six months.  The President’s action will finance additional resources to Customs and Border Patrol to increase security at the borders and deterrence of illegal immigration.

For many immigrants, this is the chance that they have been waiting for.  Eligible immigrants should be careful in seeking assistance with their application process. Many people who are not licensed or authorized to practice immigration law will take advantage of applicants desperate for relief and security from deportation. Applicants must make sure that they have a qualified expert evaluating their case and file any application correctly. 

Call us at 303-297-9171 to make an appointment with one of our experienced immigration attorneys to discuss how the President's executive action might change your immigration status.

We will also be providing a free information session to explain the details of the program. If you are interested in attending the information session, email us at mail@immigrationissues.com to be added to the invitation list.

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DHS Announces Temporary Protected Status Designations for Liberia, Guinea, and Sierra Leone

Contributed by Melanie Corrin, Partner

Realizing the need for people from certain African countries to refrain from traveling due to the outbreak of Ebola virus disease in West Africa, the Secretary of Homeland Security, Jeh Johnson, has announced his decision to designate Liberia, Guinea, and Sierra Leone for Temporary Protected Status (TPS) for 18 months.  As a result, eligible nationals of Liberia, Guinea, and Sierra Leone who are currently residing in the United States may apply for TPS with U.S. Citizenship and Immigration Services (USCIS).

If you are from one of these countries and believe you may be eligible, please call Joseph Law Firm, P.C. to make an appointment to discuss your case options. 

http://www.uscis.gov/news/dhs-announces-temporary-protected-status-designations-liberia-guinea-and-sierra-leone

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PRESIDENT OBAMA TO ANNOUNCE EXECUTIVE ACTION ON IMMIGRATION TOMORROW

Wednesday, November 19, 2014

President Obama will announce this Thursday at 6:00pm mountain time, that he will use his executive power to expand temporary protections to undocumented immigrants. He will then travel to Las Vegas, Nevada, where he will provide additional details from Del Sol High School where he unveiled his plan for comprehensive immigration reform last year.

The plan is believed to contain measures that will expand temporary protections to millions of undocumented immigrants in the United States, broaden visa programs for highly-skilled technology workers, as well as the possible bolstering of security along the U.S.-Mexico border.

The attorneys at Joseph Law Firm, P.C. will be analyzing the new plan and how it might help you, your friends, and family.

Call us as soon as possible at 303-297-9171 to make an appointment with one of our experienced immigration attorneys to discuss how President Obama's plan might change your immigration status.

Soon after the plan is released, we will also provide a free information session to explain the details of the program. If you are interested in attending the information session, email us at mail@immigrationissues.com to be added to the invitation list.

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ICE to Close Detention Center in Artesia, New Mexico; Normal Operations at Denver Immigration Court Likely to Resume in January

Contributed by Kim Tremblay, Associate Attorney

Immigration and Customs Enforcement (ICE) announced today that it would close its detention center in Artesia, New Mexico.  Since June, ICE has been detaining migrant adults found with their children near the border at this facility.  The migrants are detained while the immigration court processes their cases.  ICE will move the detainees to another facility in Dilley, Texas sometime in December.  

Two immigration court judges in Denver had been conducting hearings for the Artesia detainees via video conference since September.  Their regular dockets were cancelled and cases were taken off the calendar indefinitely on a rolling basis, about three weeks in advance.  Now that the detention center in Artesia is closing, the Denver immigration court is likely to resume its regular operations in January and to reschedule cases with cancelled hearing dates.  This remains to be confirmed.         

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President Obama Expected to Take Executive Action on Immigration in the Coming Days

Contributed by Koby Polaski, Senior Attorney

President Obama plans to announce as soon as this week a broad overhaul of the United States immigration system that will reach up to five million undocumented immigrants. Major news sources report that President Obama will use the full force of his executive power to implement a plan with a broad scope, reaching everyone from undocumented immigrants facing deportation to legal immigrants in technology fields. 

One of the most far-reaching components of the plan would allow parents of children who are American citizens or lawful permanent residents to obtain work authorization and protection from deportation. The remaining parts would provide clear guidance on enforcement priorities - directing Immigration and Customs Enforcement to focus enforcement resources on those with no family ties to the United States and serious criminal histories; expand opportunities for immigrants in technology fields; and provide protections for farm workers who have been employed for a to-be-determined amount of time in the agricultural industry. In what is likely an effort to appease Republican protestors, the proposed reform also includes increased security at the southern border.

President Obama clearly feels that Congress will remain gridlocked on passing any kind of immigration reform, so he is doing what he can within his power to change the nation’s immigration laws. This move is reminiscent of the President’s 2012 executive order offering deferred action to the “Dreamers,” who came to the United States as young children.

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Non-Agricultural Guest Workers: 2B or not 2B

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

As the US economy recovers and unemployment decreases, many employers are finding it more difficult to find available workers in various non-agricultural labor industries. On occasion when the US labor force is lacking, some employers turn to a more global pool of skilled labor. Unfortunately, the current immigration laws limit the type of labor for which foreign skilled and unskilled labor may be hired.

The Immigration and Nationality Act (INA) allows employers to hire skilled and unskilled laborers in H-2B status for non-agricultural work. However, among other requirements, employers must prove that the offered position is commonly seasonal, peakload, or a one-time need. These restrictions alone eliminate almost all year-round jobs. The regulations and rules applied by the US Departments of Labor and Homeland Security further restrict time periods. The US Department of Labor will generally not grant a seasonal or peakload position for more than 10 months, even though an employer, technically, could request up to 12 months at a time. For a one-time need, an employer could employ an H-2B worker for up to 3 years, but may only request labor certification for up to 12 months at a time.

Many employers in this situation may decide that the need is “one-time.” Even if the worker can only work for up to 12 months to fill the gap until an available US worker may be identified. However, a “one-time” need is strictly enforced and narrowly defined by the Departments. In general the category was created for true “one-off” situations, such as construction or demolition workers needed to clean up after a natural disaster. The offered position must have a definite end date. In limited cases, the government may extend H-2B status to a worker or workers hired to train US workers. However, the employer must establish an organized training plan, define the training period, and identify the US workers who will be hired and receive training at the hands of the foreign worker. In addition, the foreign trainer may not engage in “productive” work for the employer, only training of the US workers, and intend to depart the United States as soon as the training schedule has ended. In addition, an employer must convince not one, but three different departments of the United States that the position is a “one-time” need and will not jeopardize the integrity of the H-2B program. In other words, an employer could devote a lot of time and money to develop the training, hire the US workers, prepare and submit a labor certification, recruitment, gathering of documentation, payment of fees, and the application could be denied before the foreign workers are even selected.

The alternatives to a “guest worker” type status are minimal at present. A more entrepreneurial foreign national could consider an E-2 Treaty Investor status. However, an E-2 status may require more of a commitment of time, money, and effort on the part of the foreign national than an H-2B status. In very limited cases, if the employer has a foreign affiliated entity which has been in business for one year or more, the foreign national may qualify for an L-1 Intracompany Transferee visa. However, due to the political climate surrounding L-1 status, in many cases, unless you can prove that the skilled worker invented the product or methodology, it is often difficult, if not impossible, to come by an L-1 visa. If the foreign national is seeking to expand her work experience to better her prospects of employment in her home country, then she may be eligible as a J-1 Exchange Visitor trainee, depending on the type of work in which she seeks training. However, similar to the one-time need “trainer,” a “trainee” may also not engage in productive work and the period of stay could be limited to only one year in certain industries. The J-1 Trainee category is also highly regulated and attempts to extend or change status are prohibitive.

If none of the above seem appealing, then the congressional optional is always available, i.e., the employer speaks to their congressional representatives to promote a less restrictive guest worker program. The Senate passed S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act, in June 2013, which included a W-1 nonimmigrant visa for non-agricultural temporary workers. The Senate Bill would condition the number of visas available based on unemployment rates in a geographical area and labor shortages in the field of occupation. The House of Representatives has not proposed an equivalent for non-agricultural workers.

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Former DHS Secretary Napolitano Calls For Executive Action on Immigration

Contributed by Aaron Hall, Partner

If, as expected, Congress does not address immigration reform by passing any legislation, Former Department of Homeland Security (DHS) Secretary Janet Napolitano supports executive action to step in and use lawful executive authorities to take action in the immigration arena.

While she did not address any parameters for a potential executive action, Napolitano described some of the behind the scenes maneuvering in the process for the 2012 executive action titled Deferred Action for Childhood Arrivals (DACA) and explained that the DACA program could be “a good petri dish on how you set [a broader executive action] up, the budget stuff, all of those nuts and bolts.’’

President Obama has said that he intends to take executive action by the end of 2014 (after delaying on his previous statement that he would implement it by the end of summer).  Speculation is that the new executive action could resemble the DACA program but would impact a much broader class of potential applicants.

Further Reading:

-Washington Post story on Napolitano’s Statement

-Joseph Law Firm DACA page

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Will We See Changes to the H-1B Program Before the New Year?

Contributed by Koby Polaski, Senior Attorney

In early October, President Obama announced his plans to make the H-1B system “more efficient” through executive action. In a White House transcript, Obama specifically said, “What I’ve committed to is, is that assuming Congress doesn’t act, I will use all the executive authority that I legally have in order to make fixes in some of the system. And that includes potentially making the H-1B system that is often used by tech companies and some of the other elements of our legal immigration system more efficient so we can encourage more folks to stay here.”

This announcement drew criticism from some Republican senators who argue that Obama should instead focus on protecting US workers. Senator Grassley is a leading critic who contends that all employers should be required to attest that they aren’t displacing or replacing US workers with foreign workers. H-1B using companies aren’t required to first offer an available job to a US worker.

On the opposing side, urging Obama to exercise the full force of his executive power in this area, are companies like Microsoft. Microsoft is arguably the leading corporate critic of our country’s current H-1B program. Microsoft’s situation portrays clearly the current problems with the H-1B system. Because of the H-1B cap and lottery, H-1B visas are hard to come by, and petitioning employers face high rejection rates. For example, Microsoft will apply for roughly 1,000 H-1B visas in the coming fiscal year, and will only get about 50% of those.

Unfortunately, because Obama cannot raise the H-1B cap, it is hard to imagine what action he can take that will create the lasting and drastic changes we need. 

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EOIR Announcement for Denver Court

Contributed by Melanie Corrin, Partner

On September 10, 2014 the United States Executive Office for Immigration Review (EOIR) announced that it will assign all immigration cases originating at the Artesia, NM Detention Center to the Immigration Court in Denver, Colorado. 

As an update to this announcement, Immigration Judges Trujillo and Livingston are now assigned to cases for the Artesia Detention Center until further notice.  The court has been cancelling all hearings for these two judges, initially in six week increments and increasing in three week increments as needed.  If your case is before one of these judges you will receive a cancellation notice in the mail, as will we if we are your attorney of record.  As of right now, the court is not re-calendaring these cases, but has stated that it will as soon as possible.  Considering the number of pending cases before the immigration court, and the fact that these cases are being put off indefinitely, this will certainly have an immediate effect on removal proceedings for individuals who are not currently detained.  Hearings will most likely be scheduled into 2017 and beyond.  If you are a current client, we will contact you as soon as we receive a notice and discuss strategy and options going forward. 

Please contact Joseph Law Firm, P.C. with any immediate questions or concerns.

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USCIS Extends TPS Registration for Honduras and Nicaragua

Contributed by Kim Tremblay, Associate Attorney

This week, DHS announced that it was extending Temporary Protected Status (TPS) for Hondurans and Nicaraguans in the United States.  DHS first announced the availability of TPS for citizens of these countries in January 1999.

If you currently have TPS and have maintained your status, you must reregister during the reregistration period.  This period will be between October 14, 2014 and December 15, 2014.   Your status will be extended until July 5, 2016.  The employment authorization document that you have will be automatically extended until January 5, 2015 while you are waiting for your new employment authorization document. 

If you do not currently have TPS or if you did not reregister, you may register if you meet certain conditions. For example, if you could not register because of compelling circumstances, you may be eligible to do so now.  You should consult an immigration attorney to determine whether you meet the conditions for late initial registration or late reregistration.

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Revised Colorado Affirmation Form Use Mandated as of October 1, 2014

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

The Colorado Department of Labor and Employment (CDLE) published a revised Colorado Affirmation Form on September 1, 2014. The CDLE will not accept any other version of the form on or after October 1, 2014. You may access the revised form at: https://www.colorado.gov/pacific/sites/default/files/EVL-MandatoryAffirmationForm9-1-14.pdf.

Any company that employs workers in Colorado must complete and maintain a Colorado Affirmation Form for each employee hired on or after January 1, 2007. The Affirmation Form must be completed by the employer within 20 days of the date of hire for all new hires. The employer essentially attests that she has complied with the federal Form I-9 Employment Authorization Verification requirements. Among other attestations, the employer must attest that she has “examined the legal work status” and “retained file copies of the documents required” for completion of the Form I-9 pursuant to 8 U.S.C. § 1324a. However, unlike the federal form, Colorado requires that the employer copy the documents an employee presents to prove employment authorization and file the copies with the Colorado Affirmation form. The Affirmation Form must be maintained as long as the employee continues to work for the employer. Form I-9s and Affirmation Forms should be maintained in separate locations or files and not in general personnel files.

The CDLE is auditing employers and assessing fines if employers fail to comply with the Affirmation Form. The CDLE has conducted over 7,000 such audits, most at random, since the law’s enactment in 2007. Out of that pool, as many as 180 employers have been fined for violations. Penalties for the “reckless disregard” of the documentation requirement or submission of false or fraudulent documentation may be subject to fines as much as $5000 for each first offense and up to $25,000 for each subsequent offense. Employers should conduct regular self-audits both of the Form I-9s and the Colorado Affirmation forms, train all staff responsible for the collection of personnel documentation, and include Colorado Affirmation requirements in policy and procedure documentation. Employers are also wise to consult with immigration and employment law attorneys to assure compliance both with the federal and state government employment authorization verification laws.

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DACA Grantees Now Eligible to Join the Military through the MAVNI Program

Contributed by Kim Tremblay, Associate Attorney

This week, Pentagon officials announced that individuals who have been granted Deferred Action for Childhood Arrivals (“DACA”) will be able to enlist in the military through the Military Accessions Vital to National Interest Program (“MAVNI”).  The MAVNI program allows the military to recruit non-U.S. citizens who have certain skills vital to the national interest.  These skills include training as a medical doctor, nurse, or speaking certain languages and being familiar with the cultural norms of the speakers of that particular language.  The maximum number of recruits under this program is capped at 1,500.  The recruits must meet several additional standards.

Although this announcement does not open the doors of the military to a broad number of immigrants, it will give individuals with the requisite skills an opportunity not only to serve in the army, air force, or navy, but also to be on a fast path to U.S. citizenship.   

For more information on the MAVNI program:

http://www.defense.gov/news/mavni-fact-sheet.pdf

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Update to DMV Appointment Scheduling

Contributed by Jennaweh Leyba, Associate Attorney

The Colorado Road and Community Safety Act (SB251) provides an opportunity for some undocumented immigrants living in the United States to obtain a driver’s license. However, due in part to the incredibly high demand and limited resources for issuing these types of licenses, the process has not been without its challenges. Fortunately, the DMV liaison committee from the American Immigration Lawyers Association (AILA), along with community members and stakeholders have been working hard to communicate with the DMV about these challenges and strategies for improvement. Due to their efforts, there has been a recent, and hopefully beneficial change in scheduling appointments.

Initially, applicants were only able to schedule appointments beginning at midnight every night for appointments ninety days in advance. This caused problems because there was a flood of applicants calling for appointments at the same time, in addition to the fact that many “notarios” were scheduling appointments in blocks so they could sell the appointments to applicants.

In an effort to improve the scheduling process, the DMV will now start accepting appointments at four different times throughout the day. Appointments can now be scheduled at 8:00 a.m., 12:00 p.m., 4:00 p.m. and 8:00 p.m. daily. Twenty-five percent of the appointments will be allocated to each time slot.

The contact information remains the same for scheduling appointments.

You may schedule an appointment online at: https://www.colorado.gov/apps/jboss/dor/online/appointment/scheduling/index.xhtml or by telephone at 303-205-2335.

There are several different requirements and considerations to be made in deciding whether to apply for a driver’s license under this program. Please seek the advice of legal counsel if you have any questions about your eligibility for a driver’s license under the SB251 program.

To speak to one of our experienced immigration attorneys, please call our office at (303)297-9171.

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What’s the Status of the Child Status Protection Act?

Contributed by Koby Polaski, Senior Attorney

We are all privy to the recent news regarding the horrific violence in Central America driving floods of women and children across our borders. In the midst of this tragedy, we in the immigration world can’t help but think and wonder what can be done to help these families attain legal status in the United States.

This brings to mind a section of the Immigration and Nationality Act written specifically to apply to children, which has also been in the news over the past several months. Congress passed the Child Status Protection Act (CSPA) into law in 2002, but as a result of recent litigation it can, in many cases, do very little to “protect” children.

Congress enacted the CSPA to keep intending immigrant families united despite long waiting times (in some cases up to 23 years!) in both the employment-based and family-based visa categories. The ultimate goal behind the CSPA is that sons and daughters can immigrate to the United States together with their parents.

For the visa preference categories, the CSPA provides a formula intended to minimize the number of age-outs. The CSPA formula allows the time that the visa petition was pending to be subtracted from the child’s age when the priority date becomes current. Absurdly, under this formula, the longer USCIS takes to approve the visa petition, the better. For example: assume a beneficiary’s priority date becomes current on his 27^th birthday after the visa petition was pending for 7 years. Under the CSPA formula, the beneficiary’s “age” is 20 (27 – 7). Because the beneficiary’s CSPA age is under 21, he can immigrate with his parents. Let’s say now that USCIS took 1 year, instead of 7, to approve the petition. Applying the formula, the beneficiary’s age is now 26 (27 – 1). Under the second scenario, the child will not be permitted to immigrate with his parents simply because USCIS took less time to adjudicate the pending petition. Age preservation under the CSPA is often simply a matter of luck.

In addition to the above formula, the CSPA “freezes” the ages of children in the following 3 circumstances: 1) If a United States citizen parent submits an I-130 visa petition for a child prior to his or her 21^st birthday. The age of the child here will be frozen on the date that the government receives the I-130; 2) If a parent with lawful permanent residence submits an I-130 visa petition for a child under the family-based 2A category and then naturalizes before the child’s 21^st birthday, the child’s age will be frozen on the date of naturalization; 3) if the US citizen parent files an I-130 visa petition for a son or daughter under the family-based 3^rd preference category, as the US citizen parent of a married son or daughter, and the child divorces before his or her 21^st birthday, the child’s age freezes on the date of divorce. Before the CSPA, once a child turned 21 years of age, he or she “aged-out” and was no longer able to immigrate with his or her parents. The intent of the CSPA is to freeze the age of children when their petitioning United States citizen parent submits a visa petition on their behalf; when a petitioning permanent resident parent naturalizes; or when a married son or daughter who has been petitioned by a U.S. citizen parent becomes divorced or widowed.

Finally, and most controversially, section 203(h)(3) of the CSPA, also known as the “Automatic Conversion Clause” has been the subject of extensive litigation recently. This section provides that “if the age of an alien is determined to be 21 years of age or older for purposes of (a)(2)(A) and (d), the alien’s petition shall automatically convert to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.” Clearly, this section does not explicitly limit automatic conversion to a certain preference category.

In the 2009 precedent decision, Matter of Wang, however, the Board of Immigration Appeals held that the CSPA’s automatic conversion clause applies only to aged-out beneficiaries in the 2A family-based category. The Court ruled that beneficiaries of family-based 3^rd and 4^th preference visa petitions do not qualify for automatic conversion. The practical implication of this decision is that children and families who have been waiting in line for years in the 2A preference category cannot retain their original priority dates when they age out into the 3^rd and 4^th-based preference categories. 

The automatic conversion clause, therefore, benefits only a small subset of children.

Matter of Wang has been hotly litigated in federal court since its publication, and, last year went before the United States Supreme Court. In a disappointing plurality decision issued on June 9, 2014, the Supreme Court in Scialabba v. DeOsorio, ruled that the automatic conversion clause of the CSPA does not provide benefits to most immigrant families, agreeing with the BIA’s decision in Matter of Wang.

The bottom line is that hundreds of thousands of immigrant children in the United States, from those detained in Artesia to those subject to the CSPA, are essentially stranded without options through no fault of their own. The Supreme Court’s recent decision in Scialabba v. DeOsorio leaves children in the even more desperate position of needing Congress to act to clarify its intent.

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EOIR Announces Change to Immigration Judges Hearing Cases Out of Artesia

Contributed by Melanie Corrin, Partner

The United States Executive Office for Immigration Review (EOIR) announced this afternoon that it will assign all immigration cases originating at the Artesia Detention Center to the Immigration Court in Denver, Colorado.  This will certainly have an immediate effect on removal proceedings for individuals who are not currently detained. Please contact Joseph Law Firm, P.C. with any immediate questions or concerns.

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