Category: Articles

Article: Nothing About Trump Policies On Immigration; The Effect Of Visa Retrogressions; The Iron-Doming Of DHS; And Watch Out For Closed Loop Voyages

As published in the Immigration Daily on June 24, 2019

I said in my last article that this one would be about recent Trump administration moves against immigration, DHS including U.S.C.I.S. iron-doming itself, and another interesting topic. I have to take the first topic off the list because there have been so many of them, and they have all been well publicized. What more is there to say about his threat to start deporting millions of undocumented immigrants, playing musical chairs with DHS Secretary and U.S.C.I.S. Chief and topping it off with a new position, “Border Czar,” which would impinge upon the authorities of the heads of CBP and ICE? The flawed EB-5 program remains untouched as it benefits his class, real estate developers, and especially his son-in-law and his family, the Kushners, and he has been exposed in both the North Korean and Iran crises as a bully who pushes and pushes but is indecisive when his bluff is called. His reason for calling off airstrikes in Iran over concern of 150 projected deaths would be more convincing if he showed more care for the 3000 deaths in Puerto Rico after Hurricane Maria, the many migrant deaths including children and lack of justice in prosecuting those who leave food and water in the desert or pick them up to deliver them to safety, and the 5000 deaths caused in great part by American weapons and intelligence in the Saudi coalition airstrikes in Yemen fueled by his desire to continue selling billions of dollars in arms to Saudi Arabia.

So I am amending the list of topics to the following:

1. The Effect Of Visa Retrogressions

The visa chart is king. It is the one most important item in an immigration lawyer’s toolbox. With no inkling of chart progression and retrogression, a lawyer can place a client in a dead-end situation. Current chart progression means that the EB-5 program for China-born is dead. For the month of July 2019, immigrant visa availability is only open to those from China who filed their I-526 immigrant petitions based on entrepreneurship before November 1, 2014. Although this may appear to be only a 4 ½ year wait, visa chart time is not real-time. Charlie Oppenheim, Chief of the Immigrant Visa Control and Reporting Division of the Department of State, reported at the Invest in the USA (IIUSA) conference on May 6, 2019, that a native of China starting an EB-5 case today could wait up to 16.5 years for the visa to become available. In the meantime, the July visa chart shows that the worldwide availability dates for EB-2 (those with advanced degrees) and EB-3 (those with baccalaureate degrees or 2 years working experience) are open at present, but expected to have corrective action as early as August. It is known that visa retrogression around the end of the fiscal year (FY 2019 runs from 10/1/18 – 9/30/19) is usually temporary, and the open worldwide dates with the exception of those born in China and India make cases in those categories especially attractive because of the short wait times involved in a successful case.

2. The Iron- Doming of DHS

Here we go back to the 1970s-early ‘80s when legacy INS looked like a monolith without humanity. Back then, people sat hours upon hours in windowless hot rooms cooled by only 1 or 2 fans and many of the officers were not trained in customer courtesy. The Trump administration now wishes to present an unfriendly DHS in which information flow is highly restricted. The National Customer Service Center from which the public obtains most of its information on pending cases by dialing 1-800-375-5283 has had its friendly name deleted and replaced with U.S.C.I.S. Contact Center. Representatives are harder to reach, and give less information. U.S.C.I.S. processing times are ridiculously long, and even ridiculously longer for the agency even to accept a telephone call about a pending case. For example, the F-2B (LPR parent filing for unmarried son or daughter over the age of 21) final action visa availability date for the month of July is up to 5/15/13, but if the applicant is overseas and has an open and current priority date of April 2013, the petitioner or legal representative could not even call to discuss the case if it is being held for adjudication at the U.S.C.I.S. Vermont service center since its current processing time (as per U.S.C.I.S.’s current declared processing times) is between 75-97.5 months, and the agency will only entertain inquiries if the petition was submitted prior to 6/27/11. Infopasses (individual appointments at the local field offices to ask about cases) are almost impossible to obtain. Liaison meetings between interested groups like the American Immigration Lawyers Association and U.S.C.I.S. have been discouraged from the top. Methods by which the public can pay U.S.C.I.S. at its field offices have been limited. Window service at ICE for delivery of papers has been closed in many locations. The use of discretion by ICE has been largely abolished. Many immigration hearings are conducted by video in which lawyer and client are separated, not allowing for proper preparation. Dissemination of ICE’s Office of Immigration Litigation publication, OIL Litigation Bulletin, to the public has been stopped. Cooperation between ICE attorneys and private attorneys has largely ceased. And of course, CBP is greatly in the news in iron-doming itself against migrants not only at the border, but for 100 miles inland. There is a sense of agency bravado and zeal in which the tone is enforcement as opposed to customer service and prosecutorial discretion to the deserving.

3. Closed Loop Voyages Involve Entries to CBP

This topic has been a source of confusion to many – does someone make a new “entry” to the USA entitling Customs and Border Protection (CBP) to make an inspection of a traveler where that person has taken a Caribbean island cruise or other short cruise and come back to the same port from which he or she departed? It would seem to make sense that a new entry is not made in the immigration sense, especially where the traveler does not disembark except on U. S. territories such as the Virgin Islands, St. Thomas, St. John’s or St. Croix. Yet the question was answered to the contrary in the 4/8/19 agenda questions for the American immigration Lawyers Association New York Chapter liaison meeting with New York/New Jersey CBP. On the question of whether a round-trip cruise back to the same port could be done by an applicant for change of status without a grant of advance parole, the CBP reply was that closed loop cruises are cruises departing from and arriving at the same port, and for all individuals who are not U. S. citizens or lawful permanent residents, that counts as a departure and upon return, even to the same port, the individual must present a valid passport and visa (if applicable) or valid I-512 (advance parole document if applicable). If the answer is the last word on the subject by CBP, that is important to know as there are occasions for which families or other groups may plan gala birthday or reunion island cruises including grandparents, uncles and aunts, and it would be disastrous to have one of the party flagged and placed in removal proceedings after sailing back to port.

Article: Protecting The Green Card When Taking Extended Trips From The U. S.; Entitlement To 10 Day Or 60 Day Grace Periods For Nonimmigrant Workers; Public Charge Danger Signals

As published in the Immigration Daily on May 23, 2019

1. Protecting the green card.

After obtaining the green card, permanent residents many times leave the U. S. for extended periods of time, placing their green cards in jeopardy during the inspection process when reentering the country. What is there to do except to hang back or try to somehow get into the line of the Customs and Border Protection (CBP) officer that one thinks will afford the most favorable inspection? The general rules are that a permanent resident should be maintaining a main domicile in the U. S., which generally means over 6 months of each year; that trips of over 180 days may subject the individual to harder inspection as an alien “seeking admission”; and that frequent trips of extended duration even if not over 180 days may still cause challenge to the right to keep the green card.

What can one generally expect from CBP where extended absences are concerned? Usually the first step will be a warning and a notation in the passport of the person’s extended absence. The applicant may be instructed to apply for a reentry permit. The reentry permit allows a permanent resident to be outside the U. S. for up to but not including 2 years and is a favorable factor for entry as the individual has in effect informed DHS of his or her plan to take extended trip(s) outside the U. S. However, it is not a guarantee for reentry. So in what other ways can a green card holder protect his or her permanent resident status? If the absence or absences was to take care of someone in ill health, perhaps a statement from the treating physician, hospital records or test reports along with proof of relationship would be helpful. Although some CBP officers have said tax returns are not particularly persuasive, it would not hurt to have proof of the payment of U. S. taxes so long as the person is not taking an income exemption for income earned overseas because of having declared himself or herself a nonresident for the year.

In a deferred inspection or before an immigration court, other items that might be helpful could be proof of real and personal property owned in the U. S., job letters, proof of pay, proof of family members in the U. S. and their maintenance of domicile here, bank books and banking statements, use of U. S. credit cards, ownership of U. S. stocks, insurance policies, membership in associations, clubs, and organizations, evidence of payment of long-term debt over a period of time, e.g. mortgage and automobile payments, library cards, state driver’s licenses or state identity cards, etc.

This is a new age in which immigration officials have become emboldened by the Administration to take adverse actions against immigrants, legal or otherwise. It behooves all permanent residents who travel outside the United States for extended periods of time to be more cautious and be prepared to meet a challenge upon arrival.

2. Is the nonimmigrant worker entitled to a grace period of 10 days or 60 days?

In the final rule of November 18, 2016, “Retention of the EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers,” U.S.C.I.S. expanded application of the 10 day grace period given at the end of the expiration of nonimmigrant working status to nonimmigrant working classes E-1 (Treaty trader), E-2 (Treaty investor), E-3 (Australian specialty occupation), L-1 (intracompany transferee), and TN (NAFTA or soon to be CUSMA). H-1B (specialty occupation), O-1 (extraordinary aliens) and P (performers, athletes and entertainers) categories were already covered. Significantly U.S.C.I.S. clarified that the 10 day period could be used to apply for purposes of extension of status or change of status.

The same rule also allowed a 60 day grace period for each authorized validity period to allow individuals who had left or been dismissed from their authorized work to find new work if in categories E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN. The 60 day grace period can only be used once within each petition’s validity.

It is clear that the purposes of the two grace periods are different – one to allow 10 days at the end of the authorized period of stay and the other to protect nonimmigrant workers caught in unsuitable situations of employment. Yet can the two meet and be combined to give more than 60 days? The final rule allowed for that possibility in a situation wherein the applicant leaves or is dismissed during the last 60 days of the validity period of the authorized stay, at which point U.S.C.I.S. might consider the applicant to have maintained status for up to 60 days immediately preceding the expiration of the validity period (since the applicant is within the 60 day grace period), and the applicant might also use the 10 day grace period after the validity period ends.

So how would that work out in practice? Would the rule allow an individual in H-1B status whose period of validity had just ended and is in the 10 day grace period another 60 days on the basis that the employer had not decided to let him or her go and was contemplating an extension and only gave the decision to not extend the visa status during the 10 day grace period? I think not. However, it might certainly apply to an individual who is dismissed with 40 days left to go on the petition validity, and because the 60 day grace period would cover the ending date of the H-1B petition and be considered the new ending date (albeit without work authorization), the 10 day grace period would then be appended to the end of the 60 day grace period to afford more time for the individual to depart the U. S., change or extend status.

3. Public charge danger signals.

Current prohibited public benefits for persons applying for permanent residence are SSI, cash assistance from the Temporary Assistance for Needy Families (TANF) program, food stamps, State Child Health Insurance Program (SCHIP) and public assistance including Medicaid used for long-term care such as in a nursing home or mental health institution. The proposed rule of October 10, 2018, “Inadmissibility on Public Charge Grounds,” would also include Medicare part D low income subsidies, Section 8 housing choice voucher program, Section 8 project-based rental assistance, and public housing. The Trump administration is also moving to draft a regulation to deport green card holders who use government assistance within 5 years of admission, as per a Reuters report on May 3, 2019. According to Reuters, the public benefits would include SSI, the food stamp program, Section 8 housing vouchers, many Medicaid benefits, and TANF.

The October 10, 2018, proposal garnered over 210,000 comments in the 60 day comment period. Yet the number of comments does not mean that it will not become law although the Administration can expect much litigation in the courts. What should people do at this point? The best advice is probably to stay on the public benefit(s) if you need it, and get off of it if you only consider it a “freebie” of the U. S. government. The proposed rule has a 60 day exit ramp after the rule’s finalization within which participants can disenroll from the program(s). In addition, persons who are adjusting status to permanent residence or going overseas to apply for immigrant visas would not be penalized for using benefits which were not previously targeted by the new rule before the effective date. It can be assumed that any proposed rule for green card holders would contain the same or similar 60 day exit ramp.

In our next article, we will discuss the recent Trump Administration moves against immigration, DHS (including U.S.C.I.S.) iron-doming itself, and another interesting topic(s).

Article: Payment Of Fees Becomes More Restrictive At U.S.C.I.S.; Aliens Being Defrauded By DHS Look-Alikes; H-1B Denial Rates Show Need For Lawyers And Sharper Lawyering

As published in the Immigration Daily on April 24, 2019

The purpose in writing about the above 3 topics is to inform on new restrictions on U.S.C.I.S. fee payments, warn readers who are not already aware of a doppelgänger DHS scam, and to encourage use of lawyers and sharper lawyering in the face of record H-1B denials.

  1. How to pay at U.S.C.I.S. – Your wife’s mother is dying in the home country and she has already applied for I-485 adjustment of status through you her U. S. citizen husband, but not for travel permission through advance parole. You look up all the rules on required documents, and go to your local U.S.C.I.S. field office with your wife to request advance parole. You bring the Form I-131 Application for Travel Document to the cashier where your payment of $575 in cash is summarily rejected. In the same scenario, your payment with a $575 money order is rejected. Do you remember when legacy INS/U.S.C.I.S. wanted payment in cash, money orders, or cashier’s checks? That was because these forms of payment would not bounce. Not anymore. Cash is no longer accepted, and there are significant limitations on the use of money orders and cashier’s checks. According to U.S.C.I.S. instructions on fee payment, 33 offices including Chicago, Detroit, Hartford, Jacksonville, Louisville, Los Angeles, Miami, Milwaukee, Newark, Sacramento, San Antonio, San Francisco, and Tampa will only accept personal checks, attorney checks, business checks, debit cards, credit cards, or reloadable prepaid credit or debit cards. Money orders and cashier’s checks are no longer accepted at these offices. Filing at the service centers is less restrictive as payment by checks can be by bank drafts, cashier’s checks, certified checks, personal checks, and money orders drawn on U. S. financial institutions. It can also be made with cards such as credit cards, debit cards, or prepaid cards such as Visa, MasterCard, American Express and Discover. If by card, petitioners or applicants must complete and sign Form G-1450 Authorization for Credit Card Transactions, place the form on top of the application or petition, and mail the entire package to the appropriate U.S.C.I.S. service center lockbox. U.S.C.I.S. justifies its changing payment policy at field offices under its new use of electronic payment processing to increase transaction security and reduce processing errors. However, this change is another blow to many U.S.C.I.S. customers who are poor, traditionally process most of their transactions by cash, money orders, and cashier’s checks, and need to deal with U.S.C.I.S.’s field offices.

  2. Aliens defrauded by DHS look-alikes – To show the prevalence of scams that are affecting persons dealing with U.S.C.I.S., the agency says in its payment instructions that when paying fees with a credit, debit, or prepaid card, its system will automatically direct you to the secure Department of Treasury site, gov, to pay the fees online. It then repeats that “We only use pay.gov to process fees. Always check the website address before you pay. Beware of scam websites and scammers who may pretend to be a U.S.C.I.S. website.” That is just one part of a growing endemic problem of scammers using Department of Homeland Security numbers and look-alike email addresses to gain access to private information and money. The DHS’s office of the Inspector General issued a fraud alert on March 1, 2019, that DHS telephone numbers have been used recently as part of a telephone spoofing scam targeting individuals throughout the country. They alter caller ID systems to make it appear that the call is coming from the DHS Headquarters operator number or the DHS Civil Rights and Civil Liberties number. They obtain or verify identifiable information from victims through various tactics including telling persons that they are victims of identity theft. They also pose as law enforcement or immigration officials and threaten victims with arrest unless they make payments to the scammers using a variety of methods. The scammers also email victims from email addresses ending in “uscis.org” when the correct email address for U.S.C.I.S. is “uscis.gov.”

  3. Skyrocketing H-1B denial rates show the need for H-1B familiar lawyers and for sharper lawyering among them. Stuart Anderson’s article “New Data Show H-1B Denial Rates Reaching Highest Levels,” 4/10/19, com, examined information from U.S.C.I.S.’s new H-1B employer data hub showing that denial rates for initial H-1B petitions increased from 6% in FY-2015 to 32% in FY- 2019 (through the first quarter of FY-2019 which was 10/1/18 – 12/31/18). This dovetails with earlier statistics from another source that 60% of all completed H-1B cases received an RFE (Request for Further Evidence) in that same first quarter. The article further showed that for those who already held H-1B status and filed for continuation, the denial rate grew from 3% in FY-2015 to 18% through the first quarter of FY-2019. A wry observation among attorneys doing H-1B work used to be that a client would wonder what the lawyer was doing wrong if he or she received an RFE, much less a denial. These days, the RFE is commonplace among all attorneys handling such cases. The above points out that the area has become so complex that organizations that have been using human resources department staff without attorneys to process H-1B petitions should seriously consider legal assistance from attorneys versed in H-1B law. They are the best equipped to effectively answer RFE’s and take the government further to task if required. For most effectiveness, they should be engaged from the beginning of the process. H-1B attorneys have had to sharpen their skills constantly in the recent past in considering how to approach H-1B petitions and consider pitfalls/possible problems and how to answer them even prior to filing labor condition applications (LCA’s) to begin the process.

In our next article, we will discuss ways to protect the green card if one takes extended trips out of the country, when a nonimmigrant worker is entitled to the 10 day and/or 60 day grace periods, and dangers signals for findings of public charge under current rules. 

 

Article: Will EB-5 Regulation Ever Come Out? Why More H-2B’s When America is “Full”? New Form Changes – Make Sure to Use the Right Forms to Avoid Rejection.

As published in the Immigration Daily on April 15, 2019

The above 3 topics question why certain events are happening or not happening, and remind or inform of new immigration forms and deadline dates for their use.

  1. Will EB-5 regulation ever come out? When Mr. Trump’s White House wants to move on regulations, he can make it happen fast. Witness one of his pet peeves, the H-1B program, and his attempts to fashion it more to his liking. The proposed regulation for the preregistration of organizations to file H-1B petitions and to flip-flop the selection process cap to favor Masters degree holders (“Registration Requirements for Petitioners Seeking to File Cap Subject H-1B Petitions”) came out on December 3, 2018, and was finalized on January 31, 2019, not even 2 months later. In the meantime, the proposed EB-5 rule (“EB-5 Immigrant Investor Program Modernization ”) which would raise required investment amounts dramatically and cut out the tricks of gerrymandering/cobble-stoning areas together in illogical ways to justify development in affluent districts including Midtown Manhattan when EB-5 law only allows targeted employment areas (TEAs) to exist in high unemployment and rural areas, has been slow walked almost to death by the Trump administration. The proposed rule came out over 2 years ago on January 31, 2017, and was only passed to the Office of Management and Budget (OMB) for study on February 22, 2019. The inordinate delay has been so concerning that it occasioned a March 11, 2019, formal communication to the Department of Homeland Security (DHS) Secretary and the Acting Director of the OMB by Senators Charles Grassley (R), Chairman of the Senate Finance Committee, and Patrick Leahy (D), Vice Chairman of the Senate Appropriations Committee, urging the Trump administration and in particular OMB to finalize and publish the rule in the national interest. Why the slow walk since Mr. Trump became President? Could it be that he is a real estate man and the real estate industry has seen great benefit through EB-5 investments in affluent areas providing cheap financing that it could not otherwise obtain? Could it be that his son-in-law Jared Kushner’s family has benefited greatly from the EB-5 program in its present state? If none of these reasons apply for why this proposed regulation has taken so long to be finalized, then it should be at this stage without further delay.
  1. Why more H-2B’s when America is “Full”? During a Southwest border visit last week, Mr. Trump said, “Can’t take you anymore… Our country is full… Can’t take you anymore… So turn around. That’s the way it is.” At the same time, both DHS and the Department of Labor stated that they intended to issue another 30,000 H-2B temporary work visas through September 30 on top of the present annual quota of 66,000. H-2B visas are generally given to those individuals with less skills, and most of the jobs could be fulfilled by many of the migrants attempting to enter the U. S. and plead for asylum due to the inhumane conditions in their home countries. Typical H-2B jobs are seasonal like waiters, maids and cooks and groundskeepers, meat, poultry, and fish cutters and trimmers, animal caretakers, and counter attendants for cafeterias and food concessions. Could it be that America is really not “full”? As you drive through this great land, anyone can see that there are large stretches of open territory and spaces between towns and cities with hardly anyone. For a real look at “full”, we can look at Japan with a population of 127 million, more than 3 times the 40 million population of California which has similar land size; or even China with a population of 1.34 billion, over 4 times the 311 million population of the United States which has only 2% less land. So why give the extra numbers if Mr. Trump says that the country is really “full”? Could it be that he knows the country is not “full”, but that he wants a large guest worker program in which the workers are bused in and bused out or flown in and flown out without a chance of obtaining permanent status? It must be noted that he is deeply familiar with the intricacies of the H-2B program, having employed a large number in all of his hotel and other hospitality properties. He knows that the prominent feature of the program is that the job itself must be temporary and so cannot serve as a basis for PERM labor certification, the most important step in most employment-based green card applications. A large guest worker program in lieu of other forms of work that might serve as the basis for permanent residence would ensure that the workers would never truly become part of the fabric of this country as permanent residents or citizens with voting power.
  1. Make sure to use the right forms – For long stretches of time, legacy INS/U.S.C.I.S. forms never changed. The agency, its employees, and the public were very comfortable dealing with the same forms year after year. The Paperwork Reduction Act of 1980 also discouraged government bureaucracy from expanding forms and using more paper. That has changed, and U.S.C.I.S. is in the throes of taking every opportunity these days to use as much paper as possible in expanding forms and form instructions ad infinitum. Some forms change on almost a yearly basis. Use of old forms when U.S.C.I.S. has declared them obsolete results in the rejection of petitions and applications. In time sensitive petitions and applications, rejection can be deadly. Current form changes that readers should be aware of are the following:
  • I-290B – As of 1/20/19, only the 5/17/18 version is accepted.
  • I-539 – As of 3/22/19, only the 2/4/19 version is accepted.
  • I-129F – As of 4/29/19, only the 11/7/18 version will be acceptable.
  • I-131A – As of 4/29/19, only the 2/13/19 version will be acceptable.
  • I 191 – As of 4/29/19, only the 2/13/19 version will be acceptable.
  • I-130 – As of 5/6/19, only the 2/13/19 version will be acceptable.
  • I-134 – As of 5/6/19, only the 2/13/19 version will be acceptable.
  • I-129 – As of 5/20/19, only the 1/31/19 version will be acceptable.

Readers should also be aware that U.S.C.I.S. has lately even incorporated significant changes amounting to differing interpretations of law in some form instructions, and so current instructions should certainly be read to ensure complete understanding of any hidden dangers in completing and filing the forms.

Our next article will cover which filing fee modes of payment are allowed or disallowed and at which offices, how people are being defrauded by U.S.C.I.S. look-alike scams, and why organizations that do not use lawyers for H-1B petitions should do so now.