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Carl Shusterman's Immigration Update

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  1. USCIS Filing Fees to Increase Starting December 23

    Need a good reason to file your application for an immigration benefit sooner rather than later?


    The USCIS will significantly raise filing fees for over 3 dozen types of applications and petitions beginning on December 23, 2016, some by over 100%.


    While the steepest increases will be for EB-5 investors and regional centers, filing fees for commonly-used applications and petitions will also be raised.


    • US Citizenship


    Want to become a US citizen through naturalization? The price for filing an N-400 form (which used to be $15 when I was an INS Citizenship Attorney) is slated to rise from $595 to $640.


    However, there will be a new partial fee waiver for N-400s filed by qualified low-income individuals.


    Do you have foreign-born children who either acquired US citizenship through you at birth or derived citizenship as minors? I hope you are sitting down while you are reading this. The filing fees for forms N-600 and N-600K will almost double, from $600 to $1,170!


    Suggestion: Save your money and apply for a US passport instead.


    • Family-Based Immigration


    Applying for a green card for your spouse? Time to pool your money together.


    The filing fees for forms I-130, I-131, I-765 and I-485 are all rising: (1) by $115 for form I-130; (2) by $215 for form I-131; by $155 for form I-485 and by $30 for form I-765.


    However, if the I-131 and the I-765 are filed together with the I-485, you will be able to continue to pay only the I-485 fee.


    The filing fee for a form I-751 petition to remove conditions for a spouse of a US citizen will be increased to $595.


    The fee for filing a petition for a fiancée of a US citizen will rise from $340 to $535.


    • Employment-Based Immigration


    The filing fee for form I-129 which is used to petition a nonimmigrant worker will increase from $325 to $460 while the fee for an I-140 will rise from $580 to $700.


    • Fees That Will Stay The Same


    1. Biometric Services Fee
    2. Premium Processing
    3. Refugee Travel Documents
    4. Forms I-821 and I-821F


    • What You Should Do


    To the extent possible, make sure that your petitions and applications for immigration benefits are filed with the USCIS before December 23.


    Folks with low incomes will still be able to request fee waivers using form I-912.
  2. USCIS Introduces “Ask Emma”

    On December 2, 2015, the USCIS introduced the feature “Ask Emma”, a virtual assistant, on www.uscis.gov. Emma is named after Emma Lazarus, the woman who wrote the sonnet “The New Colossus” which appears on a bronze plaque at the base of the Statute of Liberty (“Give me your tired, your poor…”)


    The USCIS press release states as follows: “Although Emma can currently answer many questions our customers commonly ask, her knowledge base is still growing. As customers ask more questions, Emma gets smarter and can better assist future customers.


    You can access Emma on a desktop or laptop. Soon, she’ll be expanding to mobile devices, and her Spanish language capabilities will be arriving early next year.”


    However, unlike her older Sister Siri who was born in 2011 and who speaks over a dozen languages, Emma prefers to answer your questions in writing and in English, rather than by speaking to you.


    You can ask Emma questions by clicking the “Ask a Question” link in the upper right corner of www.uscis.gov, right next to the “Search Our Site” link and typing in your question(s).


    Carl and Emma’s First Conversation


    I first talked with Emma on December 3. Below is a transcript of our brief conversation. While Emma directed me to the same pages that USCIS’s internal Bing search engine did, I found her answers to my question a bit more precise. Please share your experiences with Emma with me.


    Emma: Hi, I’m Emma. I’m here to help you with your questions about this site. What would you like to ask me?


    Carl: Can my child immigrate with me under CSPA?


    Emma: The Child Status Protection Act (CSPA) amended the Immigration Nationality Act (INA) by changing who qualifies as a child for purposes of immigrant. This permits certain beneficiaries to retain classification as a “child,” even if he or she has reached the age of 21.


    Before CSPA took effect on August 6, 2002, a beneficiary who turned 21 at any time prior to receiving permanent residence could not be considered a child for immigration purposes. This situation is described as “aging out.” Congress recognized that many beneficiaries were aging out because of large backlogs and long processing times for visa petitions. CSPA is designed to protect a beneficiary’s immigration classification as a child when he or she ages out due to excessive processing times.


    Please see the page I have opened for you for additional information on how to qualify under the act and for a list of the eligibility criteria or select the link below to review visa availability.View Page


     Visa Availability and Priority Dates


    Need to go back?


     Return To Previous Page


    Carl: He was 15 when my sister filed a visa petition for me. Now, my priority date is current, but he is 22 years old.


    Emma: The Immigration and Nationality Act (INA) sets the number of immigrant visas that may be issued to individuals seeking permanent resident status (a green card) each year. Immigrant visas available to “immediate relatives” of U.S. citizens are unlimited, so are always available. Immediate relatives include, parents of a U.S. citizen, spouses of a U.S. citizen and, unmarried children under the age of 21 of a U.S. citizen.


    Immigrant visa numbers for individuals in a “preference category” are limited, so are not always available. Because the demand is higher than the supply of visas for a given year for some categories, a visa queue (waiting list) forms. To distribute the visas among all preference categories, the Department of State gives out the visas by providing visa numbers according to the preference category and one’s priority date.


    See the page I've opened for you for more information.View Page


     Family Preference Categories Eligibility
    Need to go back?


     Return To Previous Page


    Updated 12-04-2015 at 02:24 PM by CShusterman

  3. Dilley - The Good, The Bad & the Ugly

    The LA4 – Attorney Cheryl Gertler, her translator Naz, me and Paralegal Elsa Garcia – volunteered at the Dilley Detention Center (aka South Texas Family Residential Center) during the first weekend of September.


    We did our best to help unaccompanied mothers and children from El Salvador, Honduras and Guatemala prepare for their Credible Fear Interviews with the USCIS.


    We all agree that this was one of the most important, if heart-breaking, experiences of our lives.




    The Good


    1. We received great training and support from the CARA Family Detention Pro Bono Project – Thank you Isabel, Ian and Aseem. See our Dilley Photo Gallery.
    2. The approval rate for Credible Fear Interviews has risen to 87% resulting in more women and children being freed from Dilley.
    3. We were able to meet with 2 top immigration advisers to DHS Secretary Johnson to discuss our concerns.
    4. On our last evening in Dilley, DHS released the 5 longest-held detainee families and we were able to share a meal with them.


    The Bad


    1. Dilley is a detention camp, not a “residential center”. Full-body scans are required to enter the facility and all sorts of items are banned including cell phones and cameras.
    2. The vast majority of the facility is off-limits even to attorneys representing inmates.
    3. CCA imposes arbitrary rules. Example: An aunt who had driven to Dilley all the way from Houston was prohibited from visiting her niece because she arrived at the camp wearing open-toed shoes. Seriously!
    4. The children are constantly wheezing and coughing and the doctor routinely tells them to drink more water. A sign on the door warns visitors that they are in danger of catching the chicken pox if they enter the facility.




    The Ugly


    1. Though a Federal Judge has ruled that facility should be closed down, the government is fighting the decision tooth and nail.
    2. 1,800 women and children populate the facility and the number of inmates continues to grow.
    3. CBP officers frequently produce “affidavits” which are false and misleading. They mark false answers to questions asking why the women and children came to the US. They purport to take affidavits from 3 and 4-year-old children!
    4. During my week in Dilley, the Los Angeles Times ran an article about ICE going from home to home in Los Angeles to round up undocumented felons including child rapists who had been freely walking the streets of LA. Yet, they continue to lock up women and children who pose no danger to society. Great priorities!




  4. USCIS Launches Redesigned Websites

    http://www.hudsonlg.com/wp-content/uploads/2013/05/USCIS.jpg
    On October 30, the USCIS introduced new websites, in English and in Spanish.

    The new sites are designed to enhance the user experience. In the past, I’ve always had a difficult time finding the information I needed on uscis.gov. Because of this, I made sure that our website links to the most helpful pages on USCIS website from our temporary visas page, our green cards page, our citizenship page, our forms page, our USCIS page, etc. Hopefully, this saves our users a lot of time.

    However, it seems that it is much easier to find the information I need on the new USCIS website than on the old one. Bravo!

    The green menu near the top of the page contains the following items:


    1. Forms
    2. News
    3. Citizenship
    4. Green Card
    5. Tools
    6. Laws


    Place your cursor over the word “Forms”, and a pull-down menu provides links to a lot of useful information. The first row links to the most commonly searched for USCIS forms. The second row links to a chart showing the filing fees for various types of USCIS forms. It also links to a section regarding e-filing procedures and an explanation of how to order forms by phone and by mail. Finally, there is a link to the most searched for State Department forms and a link to the CBP page explaining the new I-94 procedures. The third row breaks down the forms according to category: Citizenship, Family-Based, Employment-Based, etc.

    Most of the other 5 menu items also have multiple rows of menu items which link to commonly searched for topics. The “Citizenship” tab links to various items concerning naturalization, citizenship through parents, and State Department passport information. The “Tools” tab provides links to a host of helpful services. It explains how to get a copy of your file, find a civil surgeon, check the status of your pending application, etc.

    Other menu items may still need a little work. For example, the “News” item contains only 3 links in the pull-down menu. While the “News Releases” and “Alerts” links are up-to-date, the “Questions and Answers” link stops in July 2012. Perhaps there is a reason for this, but if so, the page does not explain what it is.

    There are other items which need additional work. For example, when I worked as an INS Attorney (1976-82), I spent a couple of years interviewing persons claiming U.S. citizenship through their parents. The laws pertaining to “acquisition” and “derivation” of U.S. citizenship are complex, and the legal requirements change every few years. For this reason, INS Attorneys always relied on 4 handy charts published by the government.

    When I created our website in 1995, I wanted to link to these charts on the INS/USCIS website. However, it was extremely difficult to find them. When I finally did so, I linked to them from our “US Citizenship Through Parents” page. However, every few months, the government would change the URL/Address of these pages, thereby breaking my links. After repairing the broken links over a dozen times, I decided to put the 4 Nationality Charts on our website.

    Ever the optimist, I hoped that the new USCIS website would make it easier to find the 4 charts. In order to test my thesis, I placed my cursor of the “Citizenship” tab and down came the various menu items. I clicked on the link entitled “Citizenship Though Parents”. Two charts instantly appeared, but where were the other 2?

    I decided to try a new approach. I clicked on the website’s internal search engine which reads “What are you looking for?” and entered the words “Nationality Charts”. I got 89,900 results, but wait, the first 4 were links to the elusive Nationality Charts. Eureka!

    However, when I clicked on the first link, I did not see the chart, but the following message:

    Please be aware that the Adjudicators Field Manual (AFM) Chapters 71 to 76 and Appendices 71-1 to 75-7 have been superseded by USCIS Policy Manual, Volume 12: Citizenship & Naturalization as of January 22, 2013.

    Hmm… I then clicked the “Policy Manual” link, and from there, I clicked on “Part H: Children of U.S. Citizens”. This provided me with a lot of great information, but very complex. Where were the charts? Perhaps, if I were willing to spend a considerable amount of time clicking links, I would have found them, but for now, I’ll stick to my own website.

    Subscribe to our free, monthly e-mail newsletter, and follow us on Facebook, Twitter, Google+ and YouTube.

    Updated 12-02-2013 at 12:11 PM by CShusterman

    Tags: uscis, uscis.gov Add / Edit Tags
  5. Employers Beware: The I-9 Dragon Grows a Second Head!


    http://shusterman.com/images/carl.jpg On March 8, the USCIS published the 7th edition of a two-page Employment Eligibility (I-9) form. The passage of the Immigration Reform and Control Act of 1986 made the form mandatory for all new hires. The new form may be used by employers now and becomes mandatory on May 8, 2013.

    Until now, the I-9 has always been a one-page form. However, it is probably the most complex and misunderstood one-page form ever issued by the Federal Government.

    Employers should take care to avoid mistakes when completing the form since even simple paperwork fines can range from $110 to $1,100 per violation and several companies have had to pay multimillion dollar fines. Some employers have been subject to criminal penalties including jail time for knowingly hiring undocumented workers and keeping them on the payroll.

    The aim of the new I-9 form is laudable, to clear up many of the ambiguities that have existed in the past: How should persons with temporary visas complete Section One? What should employers do in Section Two if they are presented with a receipt instead of a listed document? How does one perform the reverification process in Section Three?

    Besides, its new two-page format (three including a page entitled "Lists of Acceptable Documents"), the instructions are now 5-6 pages in length. In addition, the USCIS has updated its Handbook for Employers. The new Handbook is 70 pages long.


    Changes in the Form

    On the new form, page one must be completed by the new hire while page two is solely the employer's responsibility.

    Section One now gives new hires the option of providing their telephone numbers and e-mail addresses. The Department of Homeland Security (DHS) plans to use this information to contact an employee whose information on the I-9 does not match DHS or Social Security records. If workers choose not to complete these fields, they should write "N/A".

    Certain foreign nationals who are not lawful permanent residents of the U.S. may be required to list the country of issuance of their passports and their passport numbers on the I-9. The rules regarding this subject are complicated, and employers will want to read both the instructions and the handbook carefully, and consult with their attorneys where necessary. In general, the passport information is required if the person's I-94 Arrival-Departure document was issued by the Customs and Border Protection (CBP) agency when they arrived in the U.S. However, if they extended or changed their status or their employer and their I-94 was issued by the USCIS, they should write "N/A" in these fields.


    It's Complicated

    Since these are new requirements, it is not yet clear how the government will classify errors. Errors which are classified as "procedural" means the government will not impose fines on the employer. The government will, however, fine the employer if they classify the error as "substantive".

    When completing I-9 forms, both the old and the new, employers are faced with a formidable task. Many of the fields on the forms are far more complex than they appear. Below are a few examples:

    In Section One, how many employers or new hires know what a "noncitizen national" is?Almost zero. The instructions to the new form define this term as follows: "Noncitizen nationals of the United States are persons born in American Samoa, certain former citizens of the former Trust Territory of the Pacific Islands and certain children of noncitizen nationals born abroad." Unlike the old instructions, the USCIS has, at last, defined the term. However, this definition is about as clear as mud. The use of the words "certain" and "former" make this definition ambiguous. Are new hires and employers expected to know the definition of "former Trust Territory or the Pacific Islands"? They can always look this up on Wikipedia and learn about "Chuuk, Yap, Kosrae and Pohnpei". Seriously!

    Few employers know that new hires need not list their Social Security numbers in Section One. Unless, of course, the employer is part of the E-Verify system, in which case the listing of the Social Security number is mandatory. The new instructions make this clear.

    Because the penalties for noncompliance are so severe, many employers lean over backwards in attempting to comply with these complex rules. Ironically, these efforts are often to the employer's detriment. The Justice Department's Office of Special Counsel has fined numerous employers, some over $100,000, for demanding too many documents from new hires and for discrimination.

    In the world of I-9s, things that may seem obvious often are not. For example, if a new hire is a Conditional Permanent Resident, his permanent residence expires after two years. Shouldn't the employer reverify his employment authorization before it expires? Simple logic says "yes", but the instructions say "no". If the employer does so, it is violating the law.

    And once the discussion shifts to temporary working status, there is little in the law or the regulations to guide employers. So, in its "Handbook for Employers: Guidance for Completing Form I-9", the USCIS must simply resort to making things up.

    Virtually every time the agency issues new policy guidance regarding employment authorization, it is forced to invent a method for employers to incorporate this guidance into their I-9 compliance procedures. For example, consider the "cap-gap". F-1 students, upon graduation, can apply to work using "Optional Practical Training" (OPT), usually for one year. However, students typically graduate and obtain their OPT in June. If an employer wants to sponsor them for an H-1B temporary professional working visas, this must be done in April, yet their H-1B employment authorization does not begin until October 1st. So, what are students supposed to do between the time that their OPT expires in June and when their H-1B starts in October? Quit their jobs and return to their country? This is impractical both for the student and for the employer. So a few years back, the government issued a "cap-gap" memo that permits students employed using OPT to continue to work throughout the summer as long as their employers had submitted H-1B petitions and applications for a change of status on their behalf, and they were either pending or approved. Great idea on the USCIS' part, but how is an employer supposed update a student's I-9 in such circumstances? Obviously, the employer cannot rely on either the law or the regulations as a guide since the "cap-gap" rule is solely a creature of an agency memo. So, as usual, the USCIS simply made something up, and employers can find the answer on page 21 of the Handbook.

    This is so true with regard to some programs which provide work permits like Temporary Protected Status (TPS). The USCIS often waits until the last minute and simply publishes an item in the Federal Register, automatically extending TPS and work permits. I often wonder how many Human Resource Directors start each day with a cup of coffee and a copy of the Federal Register with its wide array of new and fascinating Federal regulations. Virtually zero, I suppose. Yet, when it comes to sponsoring employees for work visas and green cards, the Federal Government is very exacting in requiring employers to place advertisements in newspapers "of general circulation" and posting job notices for a certain number of business days in specified locations. When comparing how immigration rules impact Federal agencies and private employers, what is good for the goose is not necessarily good for the gander.


    Conclusion

    If you are an employer with hundreds or thousands of employees, you probably have an experienced Human Resources Manager. You send him or her to I-9 seminars and make sure that he/she carefully reads the new I-9 form, instructions, the USCIS Handbook, etc. Also, you probably have an attorney who is well-versed in I-9 issues, and you consult him/her on a regular basis. You perform regular internal audits to make sure that you are fully compliant with I-9 rules.

    It is also a good idea to bookmark USCIS' I-9 Central and our Employer Compliance Guide, both of which are free online resources.

    However, if you are a small business and you have neither the time nor the personnel to do any of this, it's probably time for you to say a little prayer or sign up for E-Verify, or perhaps, both.

    Subscribe to our free, monthly e-mail newsletter, and follow us on Facebook, Twitter, Google+ and YouTube.

    Updated 12-02-2013 at 01:08 PM by CShusterman

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