PIERCE'S IMMIGRATION LAW E-NEWSLETTER “Informative * Innovative * Interesting” WWW.CPVISA.COM
December 2007, Vol. XI.
PIERCE'S IMMIGRATION LAW E-NEWSLETTER is free. It is published by the Law Offices of Curtis Pierce, Certified Specialist, Immigration & Nationality law, The State Bar of California Board of Legal Specialization. If you do not wish to continue receiving this monthly e-newsletter on immigration law, please click "Leave mailing list" on the bottom of this page. http://www.cpvisa.com/. (213) 327-0044
Although this article deals with the American Embassy in Paris, it provides valuable insights into visa processing at many other United States Consulates and Embassies throughout the world.
CURTIS PIERCE NAMED CALIFORNIA SUPER LAWYER FOR THE THIRD CONSECUTIVE YEAR.
Curtis Pierce was honored by Super Lawyers Magazine as one of the top 5% of attorneys in California. Super Lawyers are chosen by their peers and through independent research. Mr. Pierce has been chosen for the years 2008, 2007, and 2006.
H-1Bs ARE SUBJECT TO CAP. NOW IS THE TIME TO PREPARE TO APPLY FOR FISCAL YEAR 2009.
Last year, the quota for cap subject H-1Bs was reached on the first day of filing. It is important to begin the application procedure in a timely manner for FY 2009. Congress allocates the number of available H-1Bs. Current laws limit the number to 65,000.
The H-1B is a non-immigrant visa that enables professionals in "specialty occupations", i.e., those that require a minimum of a baccalaureate, to work in the United States. A U.S. degree or acceptable foreign alternative is required.
In some cases, work experience and education may be combined to meet the requirements. Non-graduates may be employed on an H-1B VISA where they can claim to be “graduate equivalent” with twelve or more years work experience in the occupation (three years of relevant work experience may substitute for one year of education).
We at the Law Offices of Curtis Pierce strongly urge employers who are seeking to employ a foreign national on an H-1B visa for fiscal year (FY) 2009 to begin preparation early so as to be able to file visa petitions with the U.S. Citizenship and Immigration Services (USCIS) on April 1, 2008.
The petitions are submitted by employers based on their need for non-U.S. resident employees in “specialty occupations”. The H-1B non-immigrant work visa may be issued to applicants seeking temporary work in a "specialty occupation" which requires the skills of a professional such as scientists, engineers, information technology or other computer professionals, engineers, financial analysts, management consultants, architects, system analysts, journalists, lawyers, market research analysts, teachers in elementary or secondary schools or colleges, accountants, nurses, physicians, surgeons, and dentists. This list is by no means exclusive.
2009 DIVERSITY VISA LOTTERY: APPLICATION PERIOD IS FROM OCTOBER 3, 2007 TO DECEMBER 2, 2007.
IMPORTANT NOTE FOR DV-2009: ALL APPLICATIONS MUST BE ELECTRONICALLY SUBMITTED. NO PAPER ENTRIES WILL BE ACCEPTED.
WHAT IS THE DIVERSITY VISA LOTTERY?
Each year, the Diversity Lottery (DV) Program makes 55,000 immigrant visas available through a lottery to people who come from countries with low rates of immigration to the United States. The State Department (DOS) holds the lottery every year, and randomly selects approximately 110,000 applicants from all qualified entries. If you receive a visa through the Diversity Visa Lottery Program you will be authorized to live and work permanently in the United States. You will also be allowed to bring your spouse and any unmarried children under the age of 21 to the United States.
WHO MAY PARTICIPATE IN THE 2009 DIVERSITY VISA LOTTERY?
1. You or your spouse must be a native of a country that is eligible to participate in the Diversity Visa Lottery. You may also be eligible to apply if your parent was born in a country that is eligible to participate. The State Department has published a list of countries by region whose natives qualify. See the following link:
2. You must have a high school diploma or the equivalent, defined in the United States as successful completion of a 12-year course of elementary and secondary education; OR you must have two years of work experience within the last five years in an occupation that requires at least two years of training or experience to perform.
ARE NATIVES OF ALL COUNTRIES ELIGIBLE TO APPLY FOR THE 2009 DIVERSITY VISA LOTTERY?
No. For DV-2009, natives of the following countries are not eligible to apply because they sent a total of more than 50,000 immigrants to the U.S. over the period of the previous five years: BRAZIL, CANADA, CHINA (mainland-born), COLOMBIA, DOMINICAN REPUBLIC, ECUADOR, EL SALVADOR, GUATEMALA, HAITI, INDIA, JAMAICA, MEXICO, PAKISTAN, PHILIPPINES, PERU, POLAND, RUSSIA, SOUTH KOREA, UNITED KINGDOM (except Northern Ireland) and its dependent territories, and VIETNAM. Persons born in Hong Kong SAR, Macau SAR and Taiwan are eligible.
If you have any questions about eligibility, please contact the Law Offices of Curtis Pierce
WHEN CAN I ENTER THE DV-2009 LOTTERY?
Entries for the DV-2009 Diversity Visa lottery must be submitted electronically between noon Eastern Daylight Time (EDT) (GMT-4), Wednesday, October 3, 2007 and noon Eastern Standard Time (EST) (GMT-5) Sunday, December 2, 2007. Applicants may access the electronic Diversity Visa entry form at http://www.dvlottery.state.gov/ during the registration period.
Paper entries will not be accepted. Applicants are strongly encouraged not to wait until the last week of the registration period to enter. Heavy demand may result in website delays. No entries will be accepted after noon EST on December 2, 2007.
HOW DO I ENTER THE DV-2009 LOTTERY?
THERE IS ONLY ONE WAY TO ENTER THE DV-2009 LOTTERY. This is important to note. You must submit an Electronic Diversity Visa Entry Form (E-DV Entry Form), which is accessible only at www.dvlottery.state.gov.
Beware of anyone trying to sell you any paper application forms. Paper forms are not accepted and all applications procedures must be submitted electronically. Failure to complete the form in its entirety will disqualify the entry.
CAN A HUSBAND AND WIFE EACH SUBMIT AN ENTRY?
Yes, a husband and a wife may each submit one entry if each meets the eligibility requirements. If either were selected, the other would be entitled to derivative status.
WHAT FAMILY MEMBERS MUST I INCLUDE ON MY DIVERSITY VISA ENTRY?
On your entry you must list your spouse, that is husband or wife, and all unmarried children under 21 years of age, with the exception of children who are already U.S. citizens or Legal Permanent Residents. You must list your spouse even if you are currently separated from him/her, unless you are legally separated (i.e. there is a written agreement recognized by a court or a court order). If you are legally separated or divorced, you do not need to list your former spouse. You must list ALL your children who are unmarried and under 21 years of age, whether they are your biological children, your spouse’s children, or children you have formally adopted in accordance with the laws of your country, unless such child is already a U.S. citizen or Legal Permanent Resident. List all children under 21 years of age even if they no longer reside with you.
ARE THERE ANY CHANGES OR NEW REQUIREMENTS IN THE APPLICATION PROCEDURES FOR THIS DIVERSITY VISA REGISTRATION?
Yes. All DV-2009 lottery entries must be submitted electronically at www.dvlottery.state.gov during the registration period. No paper entries will be accepted. We have repeated this point several times in this article for emphasis. All applications must be submitted electronically.
Several questions and options for answers have been added to DV-2009 to gather additional information.
• Country where you live today?
• What is the highest level of education you have achieved, as of today? You must choose one of the ten options indicating the highest level of education you have achieved: (1) Primary school only, (2) High school, no degree, (3) High school degree, (4) Vocational school, (5) Some university courses, (6) University degree, (7) Some graduate level courses, (8) Master degree, (9) Some doctorate level courses, and (10) Doctorate degree.
• “Legally Separated” replaces the term “Separated” used in previous DV programs as an option under the question “What is your marital status?” Legal separation means that a court has formally declared that you and your spouse are legally separated. Legal separation means that your spouse would not be eligible to immigrate as your derivative.
BE AWARE OF POSSIBLE FRAUD
In the age of computer technology, fraud abounds. Be on the lookout. Imposter or fraudulent websites may try to mislead customers and members of the public into thinking they are official websites. These websites may attempt to require you to pay for services such as forms and information about immigration procedures, which are otherwise free on the Department of State Visa Services Website, or overseas through the Embassy Consular Section Websites.
Additionally, these websites may require you to pay for services you will not receive. These websites may contact you by e-mail to lure you to their offer. Additionally, be wary of sending any personal information that might be used for identity fraud/theft to these websites.
There have been instances of fraudulent websites posing as official U.S. Government sites. Some companies posing as the U.S. Government have sought money in order to "complete" lottery entry forms. Again, if you have any questions about which websites are legitimate, please contact the Law Offices of Curtis Pierce.
HOW WILL I BE NOTIFIED IF I AM SELECTED?
Applicants selected in the Diversity Visa random drawing are notified by the Department of State, Kentucky Consular Center, by letter, NOT by e-mail and are provided instructions on how to proceed to the next step in the process. No other organization or company is authorized by the Department of State to notify Diversity Visa lottery applicants of their winning entry.
WILL I BE REQUIRED TO PAY FEES IF I WIN THE DIVERSITY VISA LOTTERY?
Remember, there is no fee for simply entering the Diversity Visa Lottery. If you win, you must pay a fee for an immigrant visa and a separate visa lottery surcharge.
Delete this section for December 2007
ATTENTION EMPLOYERS: EMPLOYMENT VERIFICATION FORM I-9 HAS BEEN REVISED.
USCIS (U.S. Citizenship and Immigration Services) issued a revised I-9 form on November 7, 2007. Employers are required to complete a Form I-9 for all employees (unless exempt) hired in the United States.
It is the employer's responsibility to ensure completion of the entire Form I-9 no later than close of business on the employee's third day of employment. The employer must review documentation presented by the employee and record document information on the form. Proper documentation establishes both that the employee is authorized to work in the U.S. and the employee who presents the employment authorization document is the person to whom it was issued.
The most significant change to the Form I-9 was a reduction in the number of documents that employees may present to establish their identity and work eligibility. This is List of Acceptable Documents and is found on the back of the form and is labeled as "List A".
The new acceptable List A documents are:
US passport (unexpired or expired)
Permanent Resident Card or Alien Registration Receipt Card (Form I-551)
Unexpired foreign passport with a temporary I-551 stamp
Unexpired Employment Authorization Document that contains a photograph (Forms I-766, I-688, I-688A or I-699B). Form I-766 is a new addition to List A.
Unexpired foreign passport with an unexpired Arrival-Departure Record, Form I-04, bearing the same name as the passport and containing an endorsement of the alien's nonimmigrant status, if that status authorizes the alien to work for the employer.
Employers may no longer accept the following five documents:
Certificate of U.S. Citizenship (Form N-560 or N-561)
Certificate of Naturalization (Form N-550 or N-570)
Alien Registration Receipt Card (I-151)
Unexpired Reentry Permit (Form I-327)
Unexpired Refugee Travel Document (Form I-571)
The above forms were removed because they lack sufficient features to help deter counterfeiting, tampering, and fraud.
The employer may accept any List A document, establishing both identity and work eligibility, or combination of a List B document (establishing identity) and List C document (establishing work eligibility). Employers, remember that your may only accept original documents, not photocopies, with the single exception of a certified photocopy of a birth certificate.
Employers are required by law to keep on file a hard copy or electronic version of Form I-9 for three years after the employee's date of hire or for one year after the date of termination, whichever date is later.
For questions on signing and retaining Form I-9 electronically and/or training for E-Verify, contact the Law Office of Curtis Pierce. E-Verify is an Internet-based system operated by DHS (Department of Homeland Security) in partnership with the SSA (Social Security Administration) that allows participating employers to electronically verify the employment of new hires. E-Verify is free and voluntary.
Both the revised Form I-9 and the "Handbook for Employers, Instructions for Completing the Form I-9" are available online at www.uscis.gov.
IMMIGRATION EDUCATION
E-2 Visa Processing At The American Embassy In Paris: Uncovering The Mystery
(This article was previously published in the September 2007 issue of the newsletter of the
French American Chamber of Commerce in Los Angeles)
By Curtis Pierce
In May of this year, I had the privilege of being invited by the American Business School Paris to present a seminar en français on US Immigration Law, specifically business immigration. The event drew a large following of enthusiastic Parisians, students as well as professionals, all hungry for the American dream. I discussed business visas such H-1Bs for professionals, L-1 for intracompany transferees, as well as many other commonly sought visas.
Although I had lived five years of my adult life in Paris, I had not been back in France since 1995, when I was teaching anglais juridique at the University of Paris. When I left, Jacques Chirac had just been elected President.
To make good use of time, I requested a meeting at the American Embassy in Paris to resolve several questions that clients have regarding visa processing at the American Embassy. In many ways, visa processing at the American Embassy in Paris has been something of a mystery to me. I have over the years represented many clients who have gone to the Embassy for their visa appointments, but had never actually been there myself. When asked what to expect, I could not provide my clients with a definitive answer based on personal experience.
After several faxes and emails, my request for a meeting with high level officials at the Embassy was finally approved. I decided to use the opportunity to ask questions pertaining to one of the most sought after nonimmigrant visas by French nationals, the E-2. The E-2 visas is for “Treaty Investors.” The applicant must demonstrate a “substantial investment” in a commercial enterprise. It must be demonstrated that the applicant is trying to do more than simply earn a living. The investor should be putting money at risk with the intention of making a serious profit.
COMBIEN D’ARGENT FAUT-IL INVESTIR? (How much money should one invest?)
My clients often ask: What is meant by substantial investment? How much is enough? How much do I need to invest in a company in order to have this E-2 visa? The regulations state that there must be a substantial investment and there are no clear guidelines. What is “substantial” depends on the type of business involved. In other words, a small French restaurant would require less of an investment than a petroleum company. The officials corroborated this. I did not get any indication of precise dollar amounts that would increase the chances of getting an E-2 visa approved.
JE PEUX MONTRER BEACOUP D’ARGENT DANS MA COMPTE BANCAIRE.CA SUFFIT POUR LE VISA E-2? (I can show a high balance of funds in my bank account. Will this be enough to get the visa?) For an E-2 visa application to be approved, the funds must be at risk, at risk of being lost. They must really be invested in a commercial enterprise. Simply showing funds in a bank account will not be sufficient.
LES EMPLOYES, C’EST VRAIMENT NECESSAIRE? (Are employees really necessary?)
Some of my attorney colleagues believe that it is necessary to have employees in order to get an E-2 visa approved. Therefore, I asked if this is true. “Is it indeed necessary to have employees in order to get an E-2 approved?” The answer was negative. The officials indicated that theses cases, like other cases, are decided on an individual case by case basis. And it is not correct to assume that employees are necessary for approval of an E-2 visa.
JE SUIS CONSULTANT, MOI. C’EST BIEN, NON? (No.) (I'm a consultant. That's good, right? Wrong.)
The officials indicated that they tend to look with disfavor on “consultant” type businesses. Anyone can open an office and say they are a consultant. Officials want to see a substantial investment in an ongoing commercial enterprise. (To this end, commercial space, equipment, supplies, inventory, are all helpful.)
QU’EST-CE QU’ILS CHERCHENT DONC? (What are they looking for?)
The officials strongly suggested that what they like to see is that the person applying for the visa really wants the business and believes the enterprise will be successful. The applicant should not be creating a business or getting incorporated simply as a means of obtaining an E-2 visa. If the consular officer feels that the company has been set up simply as a means of obtaining a visa, the visa will be denied.
This point seems self-evident. Nevertheless, it is a good point to keep in mind in determining whether or not someone should really pursue the E-2 visa as an option.
JE SUIS ENTRE AVEC LE VISA WAIVER ET JE SUIS RESTE PLUS DE 90 JOURS. C’EST FOUTU, NON? Not necessarily. (I entered with the visa waiver and remained longer than 90 days. I've got no chance, right? Not necessarily.)
I also brought up the issue of unlawful presence. If a national from France enters the United States on a visa waiver, they are allowed 90 days to stay in the United States. I often meet clients who have overstayed beyond this 90 day period. The law specifically states that if someone stays over 180 days in unlawful status and they depart from the United States, they are barred for three years from re-entering. If someone has remained unlawfully for over one year, and departs from the United States, the rule is they cannot re-enter for 10 years. (There are exceptions and waivers, but that is the subject of another article.)
I asked what the Embassy position is in regard to someone who has overstayed for less than 180 days. What effect does this have on visa processing? (This has been something I have been wondering for many years but this was the first time I actually had the opportunity to ask this question to the individuals responsible.)
Once again, the answer was not definitive. Applications are decided on a case to case basis. Therefore, a couple of weeks of unlawful presence in the US may not be fatal. In my experience as an immigration attorney, I have often found that most cases in immigration law whether E-2 visa applications before a consular officer or asylum applications before an Immigration Judge are all decided on a case by case basis. The system is such that the success of the case often depends on who the adjudicator is and many other factors other than case’s merits. A case denied by one officer could very well have been approved by another officer.
The most important thing to remember is if you are going to be submitting an application for an E-2 visa it should be properly prepared, well documented, have a good business plan, and convince the consular officials that you really want the business and that your are not simply creating a corporation/business as a means of obtaining a visa.
Curtis Pierce, Esq. is a Certified Specialist in Immigration & Nationality Law by the State Bar of California Board of Legal Specialization. He has successfully argued several cases before the Ninth Circuit Court of Appeals including Lopez v. INS, 184 F. 3d 1097 (9th Cir. 1999), Cardenas v. INS, 294 F.3d 1062 (9th. Cir. 2002) and Hoxha v. Ashcroft, 319 F.3d 1179 (9th Cir. 2003). He is a graduate of Loyola Law School and completed his undergraduate studies at UCLA. From 1992-1995, he taught Constitutional Law at the University of Paris-1. His firm’s website may be found at www.cpvisa.com.
Le processus du Visa E-2 à l'Ambassade Américaine de Paris: Le mystère dévoilé (Cet article a été publié dans le numéro de septembre 2007 du journal de la chambre franco-américaine de Los Angeles)
Par Curtis Pierce
En mai de cette année, j'ai eu l'honneur d'etre invité par l' American Business School of Paris pour présenter une conférence en français sur la loi d'immigration américaine, en particulier sur l'immigration par la voie des affaires. L'événement a attiré de nombreux Parisiens enthousiastes, étudiants aussi bien que professionnels, tous en quête du rêve americain. J'ai discuté des visas d'affaires tels que le H1B pour les professionnels, le L1 pour les employés transférés, ainsi que de nombreux autres visas couramment recherchés.
Bien qu'ayant vécu cinq ans à Paris, je n'étais pas retourné en France depuis 1995, lorsque j'enseignais l'anglais juridique à l'université de Paris. Lorsque je suis parti, Jacques Chirac venait d'être élu président.
Pour faire bon usage de mon temps, j'ai demandé une audience à l'ambassade américaine de Paris pour pouvoir résoudre plusieurs des questions de mes clients sur le processus des visas à l'ambassade américaine. En fait, sous de nombreux aspects, le processus d'obtention d'un visa à l'Ambassade américaine de Paris restait pour moi un mystère. J'ai au fil des années représenté de nombreux clients qui étaient allés à l'ambassade pour leur entretien, mais n'y étais jamais allé moi-même. Lorsqu'ils me demandaient ce à quoi s'attendre, je ne pouvais donner à mes clients de réponse définitive basée sur mon expérience personnelle.
Au bout de plusieurs faxes et e-mails, ma demande d'audience avec des officiers de haut rang de l'Ambassade a enfin été approuvée. J'ai décidé de profiter de l'occasion pour poser des questions sur l'un des visas non-immigrants les plus recherchés, le E-2. Le visa E-2 est pour les "Investisseurs". Le demandeur de visa doit démontrer un "investissement considérable" dans une entreprise commericale. Le candidat doit démontrer qu'il essaie de faire plus que de simplement gagner sa vie. L'investisseur doit placer son argent en risque avec l'intention de faire un profit substantiel.
COMBIEN D’ARGENT FAUT-IL INVESTIR?
Mes clients me demandent souvent : combien d'argent veulent-ils dire par investissement considérable? Quelle somme est suffisante? Combien dois-je investir dans une compagnie afin d'obtenir ce visa E-2? Les réglementations déclarent qu'il doit y avoir un investissement considérable et il n'y a pas de règles claires. Ce qui est "considérable" dépend du type de commerce. Autrement dit, un petit restaurant français aurait besoin de moins d'investissemsnt qu'une compagnie pétrolière. Les officiers de l’ambassade ont confirmé ceci. Je n’ai reçu aucune indication d'une somme précise qui augmenterait les chances de voir approuvée sa demande de visa E-2.
JE PEUX MONTRER BEAUCOUP D’ARGENT SUR MON COMPTE BANCAIRE.CA SUFFIT POUR LE VISA E-2?
Pour qu'une candidature au visa E-2 soit approuvée, les fonds doivent être en risque, en risque d'être perdus. Ils doivent véritablement être investis dans une entreprise commerciale. Il ne suffit pas de montrer des fonds sur un compte bancaire.
LES EMPLOYES, C’EST VRAIMENT NECESSAIRE?
Certains de mes collègues avocats pensent qu'il est nécessaire d'avoir des employés pour pouvoir obtenir un visa E-2. Ainsi, j’ai demandé si tel était le cas. "Est-ce bien nécessaire d'avoir des employés pour obtenir un visa E-2?" La réponse a été négative. Les officiers m’ont signalé que l'on décide de ces dossiers, comme des autres, individuellement, au cas par cas. Il est incorrect de présumer que les employés sont nécessaires à l'approbation d'un visa E-2.
JE SUIS CONSULTANT, MOI. C’EST BIEN, NON?
Les fonctionnaires m’ont indiqué qu'ils ont tendance à ne pas favoriser les types de commerce de consultants. N'importe qui peut ouvrir un bureau et se déclarer consultant. Les officiers veulent voir un investissement considérable dans une entreprise commerciale continue. (A ces fins, un espace commerical, de l'équipement, un inventaire, tout cela aide)
QU’EST-CE QU’ILS CHERCHENT DONC?
Les officiers ont fortement suggéré que ce qu'ils veulent voir, c'est que le candidat au visa veut vraiment son opération commerciale et croit au succès de son entreprise. Le candidat ne doit pas créer un commerce ou une corporation dans le seul but d'obtenir un visa E-2. Si l'officier consulaire estime que la compagnie a été montée dans le seul but d'obtenir un visa, le visa sera refusé.
Cela tombe sous le sens. Néanmoins, il est important de s'en souvenir pour établir si oui ou non on doit vraiment poursuivre le visa E-2 comme une option viable.
JE SUIS ENTRE AVEC LE VISA WAIVER ET JE SUIS RESTE PLUS DE 90 JOURS. C’EST FOUTU, NON? (Pas forcément.)
J'ai aussi abordé la question de la présence illégale. Si un ressortissant français rentre sur le territoire américain avec une exemption de visa, il a droit à un séjour de 90 jours aux Etats-Unis. Je rencontre souvent des clients qui sont restés au-delà de cette période de 90 jours. La loi dit expressément que si quelqu'un passe plus de 180 jours en statut illégal et qu'il quitte les Etats-Unis, il lui sera interdit de retourner sur le sol américain pendant trois ans. Si quelqu'un a plus d'un an de présence illégale et part des Etats-Unis, il lui sera interdit de retourner sur le sol américian pendant 10ans. (Il existe des exceptions mais ce serait l'objet d'un autre article.)
J'ai demandé quelle était la position de l'ambassade envers quelqu'un qui serait resté en présence illégale moins de 180 jours. Quel effet aurait-ce sur le processus du visa? (C'était une question que je me posais depuis de nombreuses années mais c'était la première fois que j'avais en fait l'occasion de poser la questions aux individus responsables.)
Une fois de plus, la réponse n’a pas été définitive. Les demandes sont décidées au cas par cas. Ainsi, quelques semaines de présence illégale aux Etats-Unis ne seront pas forcément fatales. Selon mon expérience en tant qu'avocat d'immigration, j'ai souvent constaté que la plupart des cas d'immigration, que ce soit pour des demandes de E-2 devant un officier consulaire ou des demandes d'asile devant un juge d'immigration sont toutes décidées au cas par cas. Le système fait que le succès du cas dépend souvent de qui est le juge et de nombreux autres facteurs que les seuls mérites du cas. Un cas refusé par un officier pourrait très bien avoir été approuvé par un autre officier.
Le plus important à retenir, c'est que si vous allez présenter une demande pour un visa E-2, elle devrait être préparée comme il faut, bien documentée, contenir un bon business plan, et convaincre les officiers consulaires que vous voulez vraiment le business et n'êtes pas simplement en train de créer une corporation ou une entreprise pour obtenir un visa.
Curtis Pierce, Esq. est un Spécialiste Certifié en Immigration et Loi de la Nationalité par le State Bar of California Board of Legal Specialization. Il a défendu avec succès plusieurs cas devant la Ninth Circuit Court of Appeals, dont Lopez v. INS, 184 F. 3d 1097 (9th Cir. 1999), Cardenas v. INS, 294 F.3d 1062 (9th. Cir. 2002) and Hoxha v. Ashcroft, 319 F.3d 1179 (9th Cir. 2003). Il est diplômé de Loyola Law School et a complété ses premières années d’étude à UCLA. De 1992 à 1995, il a enseigné le droit constitutionnel à l’Université de Paris-1. Le site de son cabinet peut être consulté sur www.cpvisa.com.
PROCESSING TIMES & CASE STATUS
Processing Times
· To view processing times and your case status, click one of the links below to connect to the correct U.S. Citizenship and Immigration Services information page.
It is published by the Law Offices of Curtis Pierce, 213-327-0044, www.cpvisa.com.
Disclaimer: The information contained in this newsletter is analysis and commentary of a general nature. Nothing in this newsletter applies to a specific case nor does it constitute legal advice.
Schedule appointment: For legal advice on your case, please schedule an appointment with Curtis Pierce, Certified Specialist, Immigration & Nationality Law, The State Bar of California Board of Legal Specialization.
“The only title in our democracy superior to that of President (is) the title of citizen”.
Former Supreme Court Justice Louis Brandeis. (In the case Ng Fung Ho v. White, 259 U.S. 276, 284 (1922), Justice Brandeis wrote that deportation can deprive an individual of "life, or of all that makes life worth living.")
IMMIGRATION LAW E-NEWSLETTER
curtis f.pierce
Attorney At Law
certified specialist, immigration & nationality law
the state bar of california board of legal specialization
Curtis F. Pierce Attorney At Law Certified Specialist, Immigration & Nationality Law The State Bar of California Board of Legal Specialization 523 West Sixth Street, Suite 348 Los Angeles, CA 90014 Tel: 213 327 0044 Fax. 213 327 0066 www.cpvisa.com
PIERCE'S IMMIGRATION LAW E-NEWSLETTER is free. It is published by the Law Offices of Curtis Pierce, Certified Specialist, Immigration & Nationality law, The State Bar of California Board of Legal Specialization. If you do not wish to continue receiving this monthly e-newsletter on immigration law, please click "Leave mailing list" on the bottom of this page. http://www.cpvisa.com/. (213) 327-0044
CURTIS PIERCE NAMED CALIFORNIA SUPER LAWYER FOR THE THIRD CONSECUTIVE YEAR.
Curtis Pierce was honored by Super Lawyers Magazine as one of the top 5% of attorneys in California. Super Lawyers are chosen by their peers and through independent research. Mr. Pierce has been chosen for the years 2008, 2007, and 2006.
FEDERAL JUDGE HALTS DHS REGULATION ON NO-MATCH LETTERS. ADMINISTRATION'S LATEST ATTEMPT AT IMMIGRATION WORKSITE IS ON HOLD FOR NOW.
On Wednesday, October 10, 2007, U.S. District Judge Charles Breyer issued a preliminary injunction against the Department of Homeland Security's (DHS) No-Match regulation that would force companies to either resolve within 90 days discrepancies between a worker’s name and Social Security number or fire the employee.
The administration is attempting to step up worksite enforcement by cracking down on employers who knowingly hire undocumented workers using the "No Match" Rule. In short, information on employee records must match records of the Social Security Administration (SSA) and the Department of Homeland Security. Otherwise, the employer receives a "No Match Letter". The employer has ninety-three days to re-verify the information, once notified. If the employer is not able to do so, his recourse is to terminate employment or to continue employment and to risk civil and criminal sanctions from DHS.
Employers argue that legitimate clerical errors often occur. For example, a middle name and surname can be inverted on the records submitted by the employer and can result in a "no match" with the Social Security Administration. Good faith efforts to correct an error may take more than ninety-three days, in some instances. Hence, the employer is left with a dilemma. The employer risks a potential lawsuit from a terminated employee or legal action from the government if the employment is not terminated.
Judge Breyer’s ruling freezes a mailing of so-called “no-match” packets that were to be sent in September to 140,000 employers and would have affected 8 million employees.
In addition to the normal Social Security Administration's no-match letter, the mailing was to include guidance from DHS explaining that under the new regulation, a company’s failure to act on a no-match letter could be construed as a violation of immigration law. If an employer follows the regulation's guidance in good faith, which entails various steps to rectify the no-match within 90 days of receiving the letter, U.S. Immigration and Customs Enforcement will not use the letter as evidence in an enforcement action against the employer. However, if the company does nothing to resolve the problem it can be held liable for employing an unauthorized worker and could face stiff penalties or sanctions.
Companies currently aren’t compelled to clear up inconsistencies. Mismatches occur in about 4 percent of the 250 million earnings reports submitted annually to the Social Security Administration.
Business and labor groups filed a lawsuit against the DHS rule in late August, which led to a temporary restraining order in early September. The plaintiffs persuaded Judge Breyer, who serves on the federal district court for Northern California, that the DHS rule would cause significant harm to employers and workers. They argued that DHS did not calculate the compliance costs that would be foisted on businesses. They also asserted that millions of mistakes in the Social Security database would create havoc in the labor market and lead to discrimination against immigrants—even legal ones.
“As demonstrated by the plaintiffs, the government’s proposal to disseminate no-match letters affecting more than eight million workers will, under the mandated time line, result in the termination of employment to lawfully employed workers,” Breyer wrote in his opinion.
DHS Secretary Michael Chertoff said that the government would consider appealing the decision and vowed to maintain work-site crackdowns. “We will continue to aggressively enforce our immigration laws while reviewing all legal options available to us in response to this ruling,” Chertoff said in a statement.
The October 10, 2007 statement issued by Chertoff summarized the goal of the DHS's present course of action.
"Ultimately, employer diligence will make it more difficult for illegal aliens to use a fraudulent social security number to get a job".
U.S. Immigration and Customs Enforcement (ICE) has expanded criminal investigations against employers who knowing hire undocumented workers. Arrests of employers have increased from 24 in FY 1999 to 716 in 2006. The numbers for the current year are more striking. Arrests number 742 from the beginning of FY 2007 (through July 31).
Given stepped up enforcement procedures, what is an employer to do? How can an employer reduce the number of mismatched social security numbers from applicants? E-Verify, the Federal Electronic Employment Verification System is one option. In fact, federal contractors and vendors are required to use E-Verify.
E-Verify (formerly known as the Basic Pilot/Employment Eligibility Verification Program) is an Internet-based system operated by the Department of Homeland Security in partnership with the Social Security Administration that allows participating employers to electronically verify the employment eligibility of their newly hired employees.
E-Verify is free and voluntary and is the best means available for determining employment eligibility of new hires and the validity of their Social Security Numbers. The E-Verify program will be launching new and exciting changes later next month, such as photo screening features and online resources for employees.
For more information on the Administration's initiative, see the August 10, 2007 White House Press Release: Improving Border Security and Immigration Within Existing Law.
2009 DIVERSITY VISA LOTTERY: APPLICATION PERIOD IS FROM OCTOBER 3, 2007 TO DECEMBER 2, 2007.
IMPORTANT NOTE FOR DV-2009: ALL APPLICATIONS MUST BE ELECTRONICALLY SUBMITTED. NO PAPER ENTRIES WILL BE ACCEPTED.
WHAT IS THE DIVERSITY VISA LOTTERY?
Each year, the Diversity Lottery (DV) Program makes 55,000 immigrant visas available through a lottery to people who come from countries with low rates of immigration to the United States. The State Department (DOS) holds the lottery every year, and randomly selects approximately 110,000 applicants from all qualified entries. If you receive a visa through the Diversity Visa Lottery Program you will be authorized to live and work permanently in the United States. You will also be allowed to bring your spouse and any unmarried children under the age of 21 to the United States.
WHO MAY PARTICIPATE IN THE 2009 DIVERSITY VISA LOTTERY?
1. You or your spouse must be a native of a country that is eligible to participate in the Diversity Visa Lottery. You may also be eligible to apply if your parent was born in a country that is eligible to participate. The State Department has published a list of countries by region whose natives qualify. See the following link:
2. You must have a high school diploma or the equivalent, defined in the United States as successful completion of a 12-year course of elementary and secondary education; OR you must have two years of work experience within the last five years in an occupation that requires at least two years of training or experience to perform.
ARE NATIVES OF ALL COUNTRIES ELIGIBLE TO APPLY FOR THE 2009 DIVERSITY VISA LOTTERY?
No. For DV-2009, natives of the following countries are not eligible to apply because they sent a total of more than 50,000 immigrants to the U.S. over the period of the previous five years: BRAZIL, CANADA, CHINA (mainland-born), COLOMBIA, DOMINICAN REPUBLIC, ECUADOR, EL SALVADOR, GUATEMALA, HAITI, INDIA, JAMAICA, MEXICO, PAKISTAN, PHILIPPINES, PERU, POLAND, RUSSIA, SOUTH KOREA, UNITED KINGDOM (except Northern Ireland) and its dependent territories, and VIETNAM. Persons born in Hong Kong SAR, Macau SAR and Taiwan are eligible.
If you have any questions about eligibility, please contact the Law Offices of Curtis Pierce
WHEN CAN I ENTER THE DV-2009 LOTTERY?
Entries for the DV-2009 Diversity Visa lottery must be submitted electronically between noon Eastern Daylight Time (EDT) (GMT-4), Wednesday, October 3, 2007 and noon Eastern Standard Time (EST) (GMT-5) Sunday, December 2, 2007. Applicants may access the electronic Diversity Visa entry form at http://www.dvlottery.state.gov/ during the registration period.
Paper entries will not be accepted. Applicants are strongly encouraged not to wait until the last week of the registration period to enter. Heavy demand may result in website delays. No entries will be accepted after noon EST on December 2, 2007.
HOW DO I ENTER THE DV-2009 LOTTERY?
THERE IS ONLY ONE WAY TO ENTER THE DV-2009 LOTTERY. This is important to note. You must submit an Electronic Diversity Visa Entry Form (E-DV Entry Form), which is accessible only at www.dvlottery.state.gov.
Beware of anyone trying to sell you any paper application forms. Paper forms are not accepted and all applications procedures must be submitted electronically. Failure to complete the form in its entirety will disqualify the entry.
CAN A HUSBAND AND WIFE EACH SUBMIT AN ENTRY?
Yes, a husband and a wife may each submit one entry if each meets the eligibility requirements. If either were selected, the other would be entitled to derivative status.
WHAT FAMILY MEMBERS MUST I INCLUDE ON MY DIVERSITY VISA ENTRY?
On your entry you must list your spouse, that is husband or wife, and all unmarried children under 21 years of age, with the exception of children who are already U.S. citizens or Legal Permanent Residents. You must list your spouse even if you are currently separated from him/her, unless you are legally separated (i.e. there is a written agreement recognized by a court or a court order). If you are legally separated or divorced, you do not need to list your former spouse. You must list ALL your children who are unmarried and under 21 years of age, whether they are your biological children, your spouse’s children, or children you have formally adopted in accordance with the laws of your country, unless such child is already a U.S. citizen or Legal Permanent Resident. List all children under 21 years of age even if they no longer reside with you.
ARE THERE ANY CHANGES OR NEW REQUIREMENTS IN THE APPLICATION PROCEDURES FOR THIS DIVERSITY VISA REGISTRATION?
Yes. All DV-2009 lottery entries must be submitted electronically at www.dvlottery.state.gov during the registration period. No paper entries will be accepted. We have repeated this point several times in this article for emphasis. All applications must be submitted electronically.
Several questions and options for answers have been added to DV-2009 to gather additional information.
• Country where you live today?
• What is the highest level of education you have achieved, as of today? You must choose one of the ten options indicating the highest level of education you have achieved: (1) Primary school only, (2) High school, no degree, (3) High school degree, (4) Vocational school, (5) Some university courses, (6) University degree, (7) Some graduate level courses, (8) Master degree, (9) Some doctorate level courses, and (10) Doctorate degree.
• “Legally Separated” replaces the term “Separated” used in previous DV programs as an option under the question “What is your marital status?” Legal separation means that a court has formally declared that you and your spouse are legally separated. Legal separation means that your spouse would not be eligible to immigrate as your derivative.
BE AWARE OF POSSIBLE FRAUD
In the age of computer technology, fraud abounds. Be on the lookout. Imposter or fraudulent websites may try to mislead customers and members of the public into thinking they are official websites. These websites may attempt to require you to pay for services such as forms and information about immigration procedures, which are otherwise free on the Department of State Visa Services Website, or overseas through the Embassy Consular Section Websites.
Additionally, these websites may require you to pay for services you will not receive. These websites may contact you by e-mail to lure you to their offer. Additionally, be wary of sending any personal information that might be used for identity fraud/theft to these websites.
There have been instances of fraudulent websites posing as official U.S. Government sites. Some companies posing as the U.S. Government have sought money in order to "complete" lottery entry forms. Again, if you have any questions about which websites are legitimate, please contact the Law Offices of Curtis Pierce.
HOW WILL I BE NOTIFIED IF I AM SELECTED?
Applicants selected in the Diversity Visa random drawing are notified by the Department of State, Kentucky Consular Center, by letter, NOT by e-mail and are provided instructions on how to proceed to the next step in the process. No other organization or company is authorized by the Department of State to notify Diversity Visa lottery applicants of their winning entry.
WILL I BE REQUIRED TO PAY FEES IF I WIN THE DIVERSITY VISA LOTTERY?
Remember, there is no fee for simply entering the Diversity Visa Lottery. If you win, you must pay a fee for an immigrant visa and a separate visa lottery surcharge.
DREAM ACT WILL NOT BECOME A REALITY ANYTIME SOON: CLOTURE VOTE IN SENATE FAILED ON 10/24/07
A cloture vote on the DREAM Act (S. 2205) failed in the U.S. Senate on 10/24/07. The Development, Relief and Education for Alien Minors (DREAM) Act addresses the plight of young people who grew up in the United States and have graduated from U.S. high schools but whose future is circumscribed by current immigration laws. Under current law, these young people generally derive their immigration status solely from their parents, and when the parents are undocumented or have no immigration status, their children have no mechanism to obtain legal residency. Under the proposal, men and women who fulfilled several conditions -- they had to be under 30, had to have been brought into the country illegally before they were 16, had to have been in the United States for at least five years and had to be graduates of U.S. high schools -- would have been given conditional legal status. If they went on to complete two years of college or two years of military service, they would have been eligible for permanent residency.
The American Immigration Lawyers Association had harsh words for the Senate in a statement released on October 24, 2007 calling the vote against cloture "heartlessness and gutlessness".
Further, the AILA statement asserted that ".....the Senate voted today to quash the dreams and aspirations of hundreds of thousands of American students. The 52-44 vote in favor of proceeding to debate on the DREAM Act (S. 2205) fell eight votes short of the necessary 60 vote threshold. That eight-vote shortfall means a generation of American kids will remain stranded at the schoolhouse door. And while the vote is a nightmare for children, families, educators, and military recruiters throughout the country, it will also haunt the long-term political fortunes of those Senators standing on the wrong side of justice." (Source: AILA Document # 07102470, http://www.aila.org/)
Cloture is the only procedure by which the Senate can vote to place a time limit on consideration of a bill, and therefore, overcome a filibuster. Failure to reach cloture means that the bill will not move forward at the present time.
ATTENTION EMPLOYERS: NEW I-9 FORM IS IMMINENT.
A liaison for the American Immigration Lawyers Association (AILA) has learned that the Department of Homeland Security (DHS) has decided to move forward with a new I-9 form and employer handbook at this time, perhaps as early as the week of November 5. Instead of publishing a new regulation now, which we understand had been the original plan, DHS will go forward now with an I-9 based on the 1997/98 regulations, and then will publish a new regulation, with a newer I-9 form, in 2008. (Source: AILA Info Net Document # 07103162, http://www.aila.org/)
IMMIGRATION EDUCATION
AN OPTION FOR NATURALIZATION THROUGH MILITARY SERVICE: NEW FACT SHEET FROM THE USCIS
Even if the dreams of young people with no current immigration status cannot be achieved through the DREAM Act, naturalization through military service is another option. Members and current veterans of the US armed forces are eligible to apply for US citizenship under provision of the Immigration and Nationality Act (INA). The processed has been streamlined for active duty or recently discharged members of the military. For details about qualification and application, see the following link for the new fact sheet from the United States Citizenship and Immigration Service (USCIS) or contact the Law Offices of Curtis Pierce.
· To view processing times and your case status, click one of the links below to connect to the correct U.S. Citizenship and Immigration Services information page.
It is published by the Law Offices of Curtis Pierce, 213-327-0044, www.cpvisa.com.
Disclaimer: The information contained in this newsletter is analysis and commentary of a general nature. Nothing in this newsletter applies to a specific case nor does it constitute legal advice.
Schedule appointment: For legal advice on your case, please schedule an appointment with Curtis Pierce, Certified Specialist, Immigration & Nationality Law, The State Bar of California Board of Legal Specialization.
“The only title in our democracy superior to that of President (is) the title of citizen”.
Former Supreme Court Justice Louis Brandeis. (In the case Ng Fung Ho v. White, 259 U.S. 276, 284 (1922), Justice Brandeis wrote that deportation can deprive an individual of "life, or of all that makes life worth living.")
IMMIGRATION LAW E-NEWSLETTER
curtis f.pierce
Attorney At Law
certified specialist, immigration & nationality law
the state bar of california board of legal specialization
Curtis F. Pierce Attorney At Law Certified Specialist, Immigration & Nationality Law The State Bar of California Board of Legal Specialization 523 West Sixth Street, Suite 348 Los Angeles, CA 90014 Tel: 213 327 0044 Fax. 213 327 0066 www.cpvisa.com
PIERCE'S IMMIGRATION LAW E-NEWSLETTER “Informative * Innovative * Interesting” WWW.CPVISA.COM
October 2007, Vol. IX.
CURTIS PIERCE NAMED CALIFORNIA SUPER LAWYER FOR THE THIRD CONSECUTIVE YEAR.
Curtis Pierce was honored by Super Lawyers Magazine as one of the top 5% of attorneys in California. Super Lawyers are chosen by their peers and through independent research. Mr. Pierce has been chosen for the years 2008, 2007, and 2006.
ADMINISTRATION CRACKS DOWN ON EMPLOYERS WHO KNOWINGLY HIRE UNDOCUMENTED WORKERS USING "NO MATCH" RULE. FEDERAL JUDGE EXTENDS TRO.
After a hearing on October 2, 2007, a federal judge extended for 10 days an order that temporarily stops the government from implementing a new Department of Homeland Security (DHS) rule. The judge's order also stops the Social Security Administration (SSA) from beginning to send notices to approximately 140,000 employers across the country notifying them of the new rule, which would impact approximately eight million workers.
"We are pleased that the judge saw the need to continue to block this rule that would lead to increased exploitation of workers," said John Sweeney, president of the AFL-CIO. "More than 70 percent of SSA discrepancies refer to U.S. citizens, but the DHS regulation would encourage employers to fire any worker based on these erroneous discrepancies, especially if she has an accent or is perceived to be foreign born."
The background of the "No Match" rule is this. The administration is stepping up worksite enforcement by cracking down on employers who knowingly hire undocumented workers using the "No Match" Rule. In short, information on employee records must match records of the Social Security Administration (SSA) and the Department of Homeland Security (DHS). Otherwise, the employer receives a "No Match Letter". The employer has ninety-three days to re-verify the information, once notified. If the employer is not able to do so, his recourse is to terminate employment or to continue employment and to risk civil and criminal sanctions from DHS.
On August 31st, a federal judge issued an order temporarily blocking the government from implementing this new rule. Judge Maxine Chesney's order also stopped the Social Security Administration (SSA) from beginning to send notices on Tuesday to approximately 140,000 employers across the country notifying them of the new rule, which would impact approximately eight million workers.
The order came as a result of a lawsuit filed by the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), the American Civil Liberties Union, the National Immigration Law Center (NILC), and the Central Labor Council of Alameda County, along with other local labor movements. A hearing on the groups' request to permanently bar the implementation of the DHS rule is scheduled for October 1 before U.S. District Court Judge Charles Breyer.
Employers argue that legitimate clerical errors often occur. For example, a middle name and surname can be inverted on the records submitted by the employer and can result in a "no match" with the Social Security Administration. Good faith efforts to correct an error may take more than ninety-three days, in some instances. Hence, the employer is left with a dilemma. The employer risks a potential lawsuit from a terminated employee or legal action from the government if the employment is not terminated.
The President of the American Immigration Lawyers Association (AILA) is quoted saying that, "Stepping into the vacuum created by Congress' inability to enact workable comprehensive immigration reform, the Administration ramped up its enforcement arsenal today, leaving many employers between a rock and hard place...The real solution, recognized by the Administration, is comprehensive immigration reform."
U.S. Immigration and Customs Enforcement (ICE) has expanded criminal investigations against employers who knowing hire undocumented workers. Arrests of employers have increased from 24 in FY 1999 to 716 in 2006. The numbers for the current year are more striking. Arrests number 742 from the beginning of FY 2007 (through July 31).
Given stepped up enforcement procedures, what is an employer to do? How can an employer reduce the number of mismatched social security numbers from applicants? E-Verify, the Federal Electronic Employment Verification System is one option. In fact, federal contractors and vendors are required to use E-Verify.
E-Verify (formerly known as the Basic Pilot/Employment Eligibility Verification Program) is an Internet-based system operated by the Department of Homeland Security in partnership with the Social Security Administration that allows participating employers to electronically verify the employment eligibility of their newly hired employees.
E-Verify is free and voluntary and is the best means available for determining employment eligibility of new hires and the validity of their Social Security Numbers. The E-Verify program will be launching new and exciting changes later next month, such as photo screening features and online resources for employees.
For more information on the Administration's initiative, see the August 10, 2007 White House Press Release: Improving Border Security and Immigration Within Existing Law.
NEW LIFE FOR THE DREAM ACT?: DREAM ACT INTRODUCED IN SEPTEMBER 2007 AS AMENDMENT TO H.R. 1585. PODCAST ABOUT THE DREAM ACT AVAILABLE.
Senator Richard Durbin, D-Ill. introduced the DREAM ACT (Development, Relief, Education of Alien Minors) as an amendment to a Defense Department authorization bill for fiscal year 2008. The purpose of the DREAM ACT is to give young people who were illegally brought to the U.S. as minors a chance to become U.S. citizens.
The DREAM Act would provide a path to legality for persons brought illegally to the United States by their parents or guardians as children, or whose parents attempted to immigrate legally but were then denied legality after several years in application, and whose children thus derived their legal status solely from their parents (the child also becoming illegal upon the parent's denial).
To qualify, the immigrant student would have to meet certain requirements such as:
Proof of having arrived in the United States at age 15 or younger;
Proof of residence in the United States for a least five (5) consecutive years since their date of arrival.
Having graduated from an American High School, or obtained a GED.
"Good moral character," essentially defined as the absence of a significant criminal record (or any drug charges whatsoever).
An estimated 65,000 immigrant students who meet these requirements graduate from high school each year.
Immigrants who meet the above requirements would be eligible to apply for a temporary six (6) year "conditional" residence permit which would allow them to live legally in the United States, obtain driver's licenses, attend college as in-state residents, work legally (including obtaining a social security number), and apply for special travel documents which would allow for travel outside of the country for limited amounts of time.
POD CAST AVAILABLE: Senator Dick Durbin discusses the DREAM ACT in a podcast. To listen to that pod cast, click the link below.
A version of the bill, though not yet called the "DREAM Act", was introduced during the 107th Congress in 2001 in the House and Senate. The text of the bill has also been placed in various other immigration-related bills (none yet successful), including the Comprehensive Immigration Reform Act of 2006 (S. 2611) and the Comprehensive Immigration Reform Act of 2007 (S. 1348).
LETTER FROM 13 GOVERNORS SUPPORTS RAISING H-1B CAP.
In spite of the failure of comprehensive immigration reform, certain issues remain alive, such as the need to increase the H1-B cap. California's Arnold Schwarzenegger, Deval Patrick of Massachusetts, and New York's Eliot Spitzer, were among thirteen governors who signed a Sept. 11, 2007 letter to Senate Majority Leader Harry Reid, House Speaker Nancy Pelosi, Senate Minority Leader Mitch McConnell and House Minority Leader John Boehner urging them to raise the cap on the number of H1-B visas.
The H-1B Visa is for foreign professionals with specialized knowledge such as scientists, hi-tech professionals, engineers, and management consultants. The thirteen governors wrote that the current base of 65,000 H-1Bs was arbitrarily set in 1990 and does not meet the demands of today's economy for skilled professionals.
This is an issue of interest to employers, since the H1-B is employer specific. The H-1B petition must be filed by the employer requesting permission for the alien professional to work temporarily in the United States. The beneficiary employee may only work for the employer that was approved on the petition unless a transfer is arranged.
On September 12, 2007, President George W. Bush issued a Memorandum directing the Secretary of Homeland Security, Michael Chertoff, to defer the enforced departure for 18 months, until March 31, 2009, of any qualified Liberian national (or person without nationality who last habitually resided in Liberia) who is currently present in the United States and who is under a grant of Temporary Protected Status (TPS) as of September 30, 2007. The President also directed that the Department of Homeland Security (DHS) take steps to implement continued employment authorization for these individuals during the 18-month DED period. U.S. Citizenship and Immigration Services (USCIS) will be issuing a Federal Register notice very soon that will provide details regarding the extension of employment authorization until March 31, 2009 for individuals who are eligible for Liberian DED, including further details regarding Employment Authorization Documents (EADs) and information for employers. The notice, as well as an updated Fact Sheet and updated Questions and Answers will also be available on the USCIS website at www.uscis.gov.
Deferred Enforced Departure (DED) The authority to allow for deferred enforced departure (DED) of a class of aliens derives from the President’s constitutional powers to conduct foreign relations. It is an authority exercised previously by President George W. Bush and by Presidents William J. Clinton and George H. W. Bush. Although DED is not a specific immigration status, individuals covered by DED are not subject to enforcement actions to remove them from the United States, usually for a specific period of time. TPS for Liberia is scheduled to terminate at 12:01 a.m. on October 1, 2007. (See 71 FR 55000 (Sept. 20, 2006)). TPS was originally granted for Liberia due to armed conflict and widespread civil strife. That conflict ended in 2003, and conditions have improved such that TPS is no longer factually warranted. While acknowledging the progress in Liberia, the President cited political and economic conditions in the country that justify deferring the enforced departure for 18 months of those individuals who have expiring TPS status.
Who is Covered? Liberian nationals (or persons without nationality who last resided in Liberia) who are present in the United States under a grant of Temporary Protected Status (TPS) as of September 30, 2007, and who have continuously resided in the U.S. since October 1, 2002. Currently, there are approximately 3,500 Liberians in the U.S. under TPS designation.
Who is Not Covered?
The President’s directive specifically states the following persons are ineligible for Liberian DED coverage:
Those ineligible for TPS (includes persons whose TPS status has been withdrawn);
Those whose removal is determined to be in the best interest of the U.S.;
Those whose presence or activities in the U.S. would have potentially serious adverse foreign policy consequences for the U.S.;
Those who voluntarily returned to Liberia;
Those who were deported, excluded or removed prior to the President’s announcement; and
Those subject to extradition.
No Application or Registration Necessary
DED is automatic for qualified Liberians and persons without nationality who last resided in Liberia, regardless of age.
Length of Coverage The President’s Deferred Enforced Departure directive will cover eligible Liberians for 18 months: from Oct. 1, 2007, to March 31, 2009.
Extension of Employment Authorization For details on the implementation of the automatic extension of employment authorization through March 31, 2009 for individuals who are eligible for DED, the extension of certain TPS-related EADs previously issued to such individuals, and related matters, please refer to the Federal Register notice that USCIS will be publishing in the very near future regarding these subjects. That Federal Register notice, and related Questions and Answers, will be available at www.uscis.gov. Employers and individuals under DED are also reminded that any legally acceptable document or combination of documents described on the Form I-9, Employment Verification Form, may be presented as evidence of employment authorization and identity.
IMMIGRATION ITEMS OF INTEREST
BASICS FOR EMPLOYERS HIRING WORKERS FOR PERMANENT POSITIONS
Hiring foreign workers for employment in the U.S. normally requires approval from several government agencies. In most instances, employers first seek labor certification from the U.S. Department of Labor (DOL). Once the application is certified by DOL (approved), the employer must petition the U.S Citizenship and Immigration Services (USCIS) for a visa. Approval of labor certificate does not guarantee a visa issuance. The Department of State (DOS) will issue an immigrant visa number to the foreign worker for U.S. entry. Applicants must also establish that they are admissible to the U.S. under the provisions of the Immigration and Nationality Act (INA).
The foreign labor certification process is the responsibility of the employer, not the employee. This is a common misunderstanding on the part of employers.
PERM Qualifying Criteria:
Applications filed on or after March 28, 2005, must be filed using the new PERM process and adhere to the new PERM Regulations
The employer must hire the foreign worker as a full-time employee;
There must be a bona fide job opening available to U.S. workers;
Job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be tailored to the worker's qualifications. In addition, the employer shall document that the job opportunity has been and is being described without unduly restrictive job requirements, unless adequately documented as arising from business necessity.
The employer must pay at least the prevailing wage for the occupation in the area of intended employment.
For more information, see Curtis Pierce's article PERM and Labor Certification for Dummies. This article can be found on our website, www.cpvisa.com. See Immigration Law Simplified and drop down for PERM and Labor Certification for Dummies.
IMMIGRATION EDUCATION
PROPOSED IMMIGRATION LEGISLATION: HOW A BILL BECOMES A LAW
While we have devoted space this past year to the failed comprehensive immigration reform legislation and to the DREAM ACT, some readers may be fuzzy on the process of how a bill becomes a law.
Introduction of Legislation
House - Legislation is handed to the clerk of the House.
Senate - Members must gain recognition of the presiding officer to announce the introduction of a bill during the morning hour. If any senator objects, the introduction of the bill is postponed until the next day.
The bill is assigned a number. (e.g. HR 1 or S 1)
The bill is labeled with the sponsor's name.
The bill is sent to the Government Printing Office (GPO) and copies are made.
Senate bills can be jointly sponsored.
Members can cosponsor the piece of Legislation.
B.
Committee Action - The bill is referred to the appropriate committee by the Speaker of the House or the presiding officer in the Senate. Most often, the actual referral decision is made by the House or Senate parliamentarian. Bills may be referred to more than one committee and it may be split so that parts are sent to different committees. The Speaker of the House may set time limits on committees. Bills are placed on the calendar of the committee to which they have been assigned. Failure to act on a bill is equivalent to killing it. Bills in the House can only be released from committee without a proper committee vote by a discharge petition signed by a majority of the House membership (218 members).
Committee Steps:
Comments about the bill's merit are requested by government agencies.
Bill can be assigned to subcommittee by Chairman.
Hearings may be held.
Subcommittees report their findings to the full committee.
Finally there is a vote by the full committee - the bill is "ordered to be reported."
A committee will hold a "mark-up" session during which it will make revisions and additions. If substantial amendments are made, the committee can order the introduction of a "clean bill" which will include the proposed amendments. This new bill will have a new number and will be sent to the floor while the old bill is discarded. The chamber must approve, change or reject all committee amendments before conducting a final passage vote.
After the bill is reported, the committee staff prepares a written report explaining why they favor the bill and why they wish to see their amendments, if any, adopted. Committee members who oppose a bill sometimes write a dissenting opinion in the report. The report is sent back to the whole chamber and is placed on the calendar.
In the House, most bills go to the Rules committee before reaching the floor. The committee adopts rules that will govern the procedures under which the bill will be considered by the House. A "closed rule" sets strict time limits on debate and forbids the introduction of amendments. These rules can have a major impact on whether the bill passes.
C.
Floor Action
Legislation is placed on the Calendar
House: Bills are placed on one of four House Calendars. They are usually placed on the calendars in the order of which they are reported yet they don't usually come to floor in this order - some bills never reach the floor at all. The Speaker of the House and the Majority Leader decide what will reach the floor and when. (Legislation can also be brought to the floor by a discharge petition.)
Senate: Legislation is placed on the Legislative Calendar. There is also an Executive calendar to deal with treaties and nominations. Scheduling of legislation is the job of the Majority Leader. Bills can be brought to the floor whenever a majority of the Senate chooses.
Debate
House: Debate is limited by the rules formulated in the Rules Committee. The Committee of the Whole debates and amends the bill but cannot technically pass it. Debate is guided by the Sponsoring Committee and time is divided equally between proponents and opponents. The Committee decides how much time to allot to each person. Amendments must be germane to the subject of a bill - no riders are allowed. The bill is reported back to the House (to itself) and is voted on. A quorum call is a vote to make sure that there are enough members present (218) to have a final vote. If there is not a quorum, the House will adjourn or will send the Sergeant at Arms out to round up missing members.
Senate: debate is unlimited unless cloture is invoked. Members can speak as long as they want and amendments need not be germane - riders are often offered. Entire bills can therefore be offered as amendments to other bills. Unless cloture is invoked, Senators can use a filibuster to defeat a measure by "talking it to death."
Vote - the bill is voted on. If passed, it is then sent to the other chamber unless that chamber already has a similar measure under consideration. If either chamber does not pass the bill then it dies. If the House and Senate pass the same bill then it is sent to the President. If the House and Senate pass different bills they are sent to Conference Committee. Most major legislation goes to a Conference Committee.
D.
Conference Committee
Members from each house form a conference committee and meet to work out the differences. The committee is usually made up of senior members who are appointed by the presiding officers of the committee that originally dealt with the bill. The representatives from each house work to maintain their version of the bill.
If the Conference Committee reaches a compromise, it prepares a written conference report, which is submitted to each chamber.
The conference report must be approved by both the House and the Senate.
E.
The President - the bill is sent to the President for review.
A bill becomes law if signed by the President or if not signed within 10 days and Congress is in session.
If Congress adjourns before the 10 days and the President has not signed the bill then it does not become law ("Pocket Veto.")
If the President vetoes the bill it is sent back to Congress with a note listing his/her reasons. The chamber that originated the legislation can attempt to override the veto by a vote of two-thirds of those present. If the veto of the bill is overridden in both chambers then it becomes law.
F.
The Bill Becomes A Law - once a bill is signed by the President or his veto is overridden by both houses it becomes a law and is assigned an official number.
PROCESSING TIMES & CASE STATUS
Processing Times
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