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Carl Shusterman's Immigration Update

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  1. Registered Nurses Immigration Update (June 2018)

    Never in the past 40 years have I seen the immigration process for RNs applying for working visas and green cards change as much as it has in the past few months.

    On Friday, June 8, nurse recruiter Tanya Freedman and I will speak about some of these changes on Facebook Live and what foreign-born nurses and healthcare providers in the US can do to better prepare and take advantage of these changes.


    For the first time ever, RN staffing companies across the US have seen I-140 visa petitions for RNs denied by the hundreds by the USCIS. As with IT staffing companies, the USCIS is demanding that the staffing companies be directing the day-to-day activities of the nurses in order to be considered their “employer” for immigration purposes.

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    On the bright side, thousands of RNs from the Philippines, India and many other countries have immigrated to Canada during the past 10 years. Many of these nurses preferred to come to the US, but the lack of job opportunities and long waiting times discouraged them from doing so. Now, they are Canadian citizens and are eligible to work in the US on TN (Trade NAFTA) visas.


    Also, the waiting times for Filipino RNs to get green cards in the US have considerably improved over the past few years. As recently as June 2016, the backlog was nearing 8 years. Now, it is less than 2 years. RNs from other countries (except India and China) have no backlogs whatsoever.

    Many of the hospitals and other health care providers that we represent have been doing the following:

    1. Sponsoring RNs for green cards whose petitions for green cards filed by staffing companies have been denied and who are looking for employment opportunities;

    2. Hiring RNs who are Canadian/Mexican citizens and sponsoring them for TN status; and

    3. Sponsoring RNs for green cards who have EAD work permits in the US or who are living
    abroad.


    Updated 06-14-2018 at 04:04 PM by CShusterman

  2. Tired of Waiting for the USCIS? Think Mandamus!

    What’s the most common complaint of people who have applied for immigration benefits? And for those who have been interviewed by the USCIS?

    Take a wild guess or simply click the video below and close your eyes!



    Back in the 60s, a British Rock Group called the Kinks had a major hit with a song that began:

    I’m so tired,
    Tired of waiting,
    Tired of waiting for you…

    In the 1970s when I worked as an Attorney for the U.S. Immigration and Naturalization Service (INS), immigrants sometimes had to wait for what seemed like forever to get their appointments or to get a decision on their application even after an in-person appointments.

    Fast forward to 2018. These days, it takes even longer for you just to get an interview date and can sometimes take months or even years after your appointment to get a decision.

    Are You Tired of Waiting?

    You may be able to solve your problem by making an InfoPass appointment with the USCIS. If that doesn’t work, you may want to meet with someone from the staff of your Member of Congress’s office and have them write an inquiry letter to the USCIS. Sometimes, these strategies work, and sometimes they do not.

    But you’ll be happy to know that there is a strategy that almost always works, and we have been successfully using this strategy for over 30 years!

    Petition for a Writ of Mandamus

    If you have applied for asylum, a green card or US citizenship, and all you have got from the USCIS is a receipt and maybe a biometrics appointment, and you have waited way more than what the USCIS has stated on their website is the average waiting time, wait no more!

    The same applies if you have been interviewed and it is now months later, and you have yet to receive a decision.



    You can have an immigration lawyer file a Petition for a Writ of Mandamus in Federal Court to force the USCIS make a decision in your pending case.

    The Federal Judge can not tell the USCIS whether they should approve or deny your case but the Judge can order the USCIS to make a decision on your pending application and to do it quickly.

    In fact, it has been our experience over the past 30+ years that just filing a Mandamus action in Federal Court usually prompts the USCIS to grant our request way before the matter even comes before the Judge.

    Of course, we only bring Mandamus actions when our client has a good case and in almost all of the actions that we have filed, our clients have received a positive response from the USCIS.

    This year, we filed a Mandamus action in Sacramento and received a long delayed adjustment of status interview. Our client is now a lawful permanent resident. Earlier, we filed a Mandamus action in San Francisco which prompted the USCIS to our client’s asylum application.

    Of course, going to Federal Court is certainly not the least expensive way to solve your case, but if you are so tired, tired of waiting, Mandamus may be your best bet!

    Mandamus Resources

    Updated 04-09-2018 at 12:07 PM by CShusterman

  3. IMMIGRANT WORKER PROTECTION ACT (IWPA) - A SIMPLE GUIDE FOR CALIFORNIA EMPLOYERS

    The California Immigrant Worker Protection Act also known as IWPA became effective on January 1, 2018.



    IWPA imposes the following restrictions on California employers:


    1. They are prohibited from giving federal immigration agents access to non-public areas of the workplace or employee records without a judicial warrant or subpoena;
    2. They are required to give employees and union representatives (if any) notification before and after I-9 inspections; and
    3. They cannot reverify the immigration eligibility of employees to continue working unless mandated by federal law.


    Access to Non-Public Areas of the Workplace or to Employee Records


    In order for a federal immigration agent to be able to access non-public areas of the employer’s workplace, the agent must present an warrant issued by a judge. An administrative warrant signed by an Department of Homeland Security (DHS) officer does not suffice. The IWPA law provides that an employer can not voluntarily permit a federal immigration agent to enter these areas without a warrant.
    IWPA also prohibits employers from sharing employee records with a federal immigration agent unless they first present a subpoena or a judicial warrant.

    However, the requirement that the agent present a subpoena or a judicial warrant is waived where the agent serves the employer with a Notice of Inspection (NOI) to review the employer’s I-9 forms and attached documents.


    Required Notifications Before and After I-9 Inspections


    Upon receiving a Notice of Inspection, an employer is required by IWPA to post a notice informing it’s employees (and their union representative, if any) of the NOI within 72 hours. The notice must be in the language or languages normally used to communicate employment-related matters. The posting notice must contain the following information:


    1. The name of the federal immigration agency conducting the inspection;
    2. The date that the NOI was received by the employer;
    3. The nature of the inspection to the extent known; and
    4. A copy of the NOI.


    The California Labor Commissioner is obligated to issue a standard posting notice by July 1, 2018. Until then, employers and their attorneys should create their own posting notices.


    Within 72 hours after receiving the results of the I-9 inspection, the employer must provide each “affected employee” (and their union representative, if any) with a copy of the written results and the obligations of the employer and the employee arising from the results of the inspection. An affected employee is one who lacks proper work authorization documents or whose documents have been found by the federal immigration agency to be deficient. This notice must be hand-delivered, or if this is not possible, delivered by mail.


    This notice must contain the follow information:


    1. A description of any and all deficiencies or other items identified in the written immigration inspection results notice related to the affected employee;
    2. The time period for correcting any potential deficiencies identified by the immigration agency;
    3. The time and date of any meeting with the employer to correct any identified deficiencies; and
    4. Notice that the employee has the right to representation during any meeting scheduled with the employer.


    Reverifying Employment Eligibility


    IWPA prohibits employers from reverifying the employment eligibility of current employees at a time or manner not required by federal law. Employers are required to conduct reverification before an employee’s existing work authorization expires.

    This provision creates problems for employers who wish to conduct internal I-9 audits to rectify any deficiencies in their I-9s.


    Penalties for IWPA Violations


    IWPA violations can result in civil fines of up to $10,000.

    A violation of the reverification provision can lead to a penalty of up to $10,000.


    Failure to satisfy any of the other provisions can result in penalties ranging from $2,000 up to $5,000 for a 1st violation, and from $5,000 to $10,000 for any subsequent violations.


    IWPA Advice for Employers


    IWPA can prevent some California employers from becoming compliant with federal immigration laws.

    For the past 30+ years, we have advised employers to perform internal audits of their I-9 forms in order to comply with Federal immigration laws and to avoid huge fines for I-9 violations. However, IWPA penalizes California employers who audit and fix deficiencies in their I-9 forms. Now, many employers would well advised to sign up for the E-Verify program allow this will not cure any past mistakes in completing I-9 forms.


    Employers need to properly train their human resource staffs what to do in case of a visit by federal immigration agents. If an HR employee is unable to distinguish between an ICE agent and a person working for the FDNS or between an administrative and a judicial warrant, this could have disastrous consequences.


    In addition, HR staff should be trained in how and when to post notices when a Notice of Inspection is received and how to notify affected employees (and union representatives, if any) of the results of a federal I-9 audit. They should also be aware of when I-9 forms can be reverified and when it is a violation of IWPA to do so.


    Related Pages




    Updated 03-12-2018 at 12:04 PM by CShusterman

  4. California Immigration Laws Challenged in Federal Lawsuit

    On March 6, 2018, the US Department of Justice filed a lawsuit in Federal Court challenging 3 California immigration laws.


    The lawsuit contends that the laws “reflect a deliberate effort by California to obstruct the United States’ enforcement of federal immigration law” and that they “impede consultation and communication between federal and state law enforcement officials.”


    California Governor Jerry Brown responded calling the lawsuit a “political stunt”.


    The California immigration laws which are being challenged are as follows:

    The California Immigrant Worker Protection Act (AB 450) became effective on January 1, 2018. It prohibits businesses from allowing federal immigration agents to gain access to employee records without a court order or subpoena. However, if federal agents have a Notice of Inspection, they can gain access to I-9 forms within 72 hours. California employers are required to provide notice to employees about any Notice of Inspection as well as the results of I-9 audits by the Federal government. Employers can be fined up to $10,000 for violating this law.


    The California Values Act (SB 54) which also went into effect on January 1, 2018 limits state and local agencies from sharing information with federal officers about criminals or suspects unless they have been convicted of serious crimes.

    The Detention Review Act (AB 103) which was enacted as part of the California state budget prohibits new contracts for immigration detention in California and gives the state attorney general the authority to monitor all state immigration detention centers.

    US Department of Justice Challenges California Immigration Laws





    California Immigrant Worker Protection Act (AB 450)





    California Values Act (SB 54)





    Detention Review Act (AB 103)





    We will keep you informed as the lawsuit makes it’s way through the Federal Court system
    .

    Updated 03-09-2018 at 05:04 PM by CShusterman

  5. The H-1B Cap And Filing Tips USCIS National Stakeholders Engagement (3-06-18)

     The congressionally mandated number for H-1B cap cases is 65,000 H-1B regular cap and 20,000 H-1B master’s exemptions.Please note that up to 6,800 visas are set aside from the 65,000 each fiscal year for the H-1B1 program for citizens of Chile and Singapore.

    When should you file an H-1B cap subject case?

    USCIS Fiscal Year 2019 begins on October 1, 2018, which is the first day employment is authorized for H-1B 2019 cap case filings. USCIS can begin to accept cases 180 days before H-1B employment begins, which is April 1, 2018.
    April 1, 2018 is a Sunday so USCIS will begin to accept FY 2019 H-1B cap cases on April 2, 2018.

    USCIS advised the following additional documents are required with the H-1B petition:


    1. Labor Condition Applications (LCA)


    When filing the H-1B petition a signed and certified LCA must be included and can be either original or copy.

    2. Evidence of Beneficiary’s Educational Background


    You must submit evidence of the beneficiary’s education credentials (with English translations when applicable) at the time you file your petition. If the beneficiary has met all of the requirements for a degree, but the degree has not yet been awarded, you may submit the following alternate evidence.

    • A copy of the beneficiary’s final transcript; or
    • A letter from the registrar confirming that the beneficiary has met all of the degree requirements. If the educational institution does not have a registrar, then the letter must be signed by the person in charge of educational records where the degree will be awarded.

    If you indicate that the beneficiary is qualified based on a combination of education and experience you need to provide substantiating evidence at the time you file your petition.

    3. A Copy of the H-1B Petition

    If the beneficiary will be applying for a nonimmigrant visa abroad, you should submit a copy of your H-1B petition with your petition. If you receive a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) then you should also submit a duplicate copy of your response.

    If you do not submit a copy of the petition it could result in delays with processing the petition or processing a visa abroad at the U.S. Consulate.

    4. Filing Fees


    The fees are different depending on the type of H-1B petition you are filing. The H-1B petition I-129 form fee is $460. The American Competitiveness and Workforce Improvement Act of 1988 (ACWIA) fee is $750 for employers with 1 to 25 full-time employees and $1,500 for employers with 26 or more full-time employees, unless exempt. The fraud prevention fee is $500 and applies to all cases except Chile and Singapore H-1B1 petitions.

    The check must be payable to the Department of Homeland Security, dated within the last six months, and include the proper amount and signature. USCIS prefers a separate check for each fee. If you submit one check and the combined payment is wrong, USCIS will reject the H-1B petition.
    The check or checks should be stapled to the bottom right corner of the top page.

    USCIS discussed and advised on the following during the call:


    Premium Processing


    USCIS will accept premium processing H-1B cap cases during the cap filing period. However, the 15-day processing time will be put on hold. USCIS which will announce at a later date when they will resume premium processing for the H-1B cap cases.

    Premium processing will continue as usual for all other H-1B filings with USCIS

    USCIS Requirements for H-1B Petitions


    • USCIS Forms must have original signatures, USCIS prefers black ink be used to sign forms. USCIS suggests reviewing the February 15, 2018 Policy Memorandum for signatures on Paper Applications, Petitions, Requests and other Documents Filed with USCIS.
    • The evidence submitted with the petition must establish the position is a specialty occupation and there is specialty occupation work available for the entire time requested for the petition.
    • Submit evidence confirming an Employer/Employee relationship.
    • Submit all evidence to support the H-1B qualifying criteria and the beneficiary’s qualifications to meet the criteria.
    • LCA must correspond to the position identified in the H-1 petition.
    • The petitioner address listed in the first section of the form I-129 should be the primary U.S. office address for the petitioner.
    • If filing for a change of status, the petition should include evidence establish the beneficiary has valid status in the United States. This evidence should include an I-94 and I-797 or any other status documents.

    Make sure the following information for the beneficiary is accurate:


    • Name spelled correctly
    • Date of birth listed properly with correct month, day and year
    • Valid passport
    • Correct country of birth
    • Correct country of citizenship

    Submission of Petitions to USCIS


    • Clearly label all H-1B cap cases in red ink on the top margin of Form I-129.
    • Write “Regular Cap” on petitions subject to the 65,000-regular cap case not including Chile and Singapore.
    • Write “C/S Cap” on Chile/Singapore cases.
    • Write “U.S. Master’s” on petitions subject to the 20,000 exemptions for beneficiaries with U.S. master’s degrees or higher.

    Preferred Order of Documents at Time of Submission:


    1. Form G-28 (if represented by an attorney or accredited representative)
    2. Form I-129, Petition for a Nonimmigrant Worker
    3. Addendums/Attachments
    4. H Classification Supplement to Form I-129 and/or Free Trade Supplement (for H-1B1 Chile- Singapore petitions)
    5. H-1B Data Collection and Filing Fee Exemption Supplement
    6. All supporting documentation to establish eligibility. Provide a table of contents for supporting documentation and tab the items as listed in the table.
    7. Arrival-Departure Record (Form I-94) if the beneficiary is in the United States
    8. SEVIS Form I-20 if the beneficiary is a current or former F-1 student or F-2 dependent
    9. SEVIS Form DS-2019 if the beneficiary is a current or former J-1 or J-2
    10. Form I-566 if the beneficiary is a current A or G nonimmigrant
    11. Department of Labor certified LCA, Form ETA 9035
    12. Employer/attorney/representative letter(s)
    13. Other supporting documentation
    14. Copy of the petition, if necessary. Clearly mark it as “COPY” so that it is not mistaken for a duplicate filing.

    Additional comments for submitting H-1B petitions to USCIS


    • If filing more than one petition in the same package, place petitions in separate envelopes and mark each envelope in red ink with the type of H-1B cap case.
    • The case must be filed with the correct Service Center.
    • Please refer to the USCIS Form I-129 web page for direct filing locations.
    • If the petition is filed at the wrong Service Center the petition may be rejected
    • Rejected petitions will not be accepted or counted against the cap

    USCIS: Review the Following Memos Before Preparing H-1B Cases:



    Updated 06-14-2018 at 04:04 PM by CShusterman

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