Wednesday, December 8, 2010

DREAM Act before Congress Today in Its Fifth Version

To appease opponents of the legalization of undocumented foreigners, even those that were brought to the US when they were minors, the DREAM Act draft bill S.3992 increases the conditions for eligibility, thus reducing the number of illegal aliens who would be able to legalize. The original versions of the DREAM Act drew on political momentum started on college campuses where illegal immigrants accepted to prestigious private school programs on scholarship were “coming out” with their undocumented status. Even in its current version,, the DREAM Act would chip away at the huge number of undocumented aliens in the US by allowing a path to legalization for some of the most sympathetic candidates, those brought here as children who have never known another homeland.

The draft bill before Congress today “The Development, Relief and Education for Alien Minors Act of 2010” exists in its fifth iteration. The DREAM Act in all its versions have had the goal of giving undocumented foreign nationals who were brought to the US as minors a path to legalization. Conditions for that legalization would be military service or educational achievements. The latest version is an attempt to compromise with some opponents of the bill. The drafters have lowered the total number of undocumented foreign nationals that could be legalized by increasing the conditions for legalization.

Birth right citizenship is based on a fateful birth in the US, even when one’s parents are foreigners. The DREAM Act would similarly allow those who were brought to the US by undocumented or visa-overstay foreign parents a path to legal status.

New Legal Status Created. Drafters call the new legal status offered by this bill “conditional nonimmigrant.” CNI status would be granted for ten years. It could then be converted to regular green card status, and in three years time after that, US citizenship. The status itself is conditional on maintaining “good moral character,” a clean criminal record, and other good immigrant behavior. It would not permit a dishonorable discharge from the military.

Deadline for Application. Under the current draft of the bill, an alien may apply for the new status offered under the DREAM Act no later than one year after the date of the enactment of this Act, the date of admission to a US institution of higher learning, or the date of graduation from high school or attainment of a GED, which ever comes latest.

Restrictions and Conditions for Conditional Nonimmigrant Status. In general CNI status would be granted to those who had:

long residence, at least five years in the US;

entry as a minor, at less than 16 years of age;

a US high school diploma, GED or admission to a US college program,

less than 30 years of age, on the date of enactment of the DREAM Act,

good moral character maintained since they were brought to the US;

no inadmissibility or deportability grounds for the most part, they have not committed crimes that would make them inadmissible or deportable or had other grounds of inadmissibility or deportability. This condition continues to expand uncomfortably for proponents of the bill;

no acts of persecution committed against others on the basis of race, religion, nationality, political opinion, or membership in a social group;

no felonies or prison terms in aggregate over 90 days for three or more misdemeanors; and

no existing final order of exclusion, deportation or removal, unless the alien has remained in the US under “color of law” or the order was given while the alien was still a minor (under age 16).

Unfortunately, the current iteration of the DREAM Act still does not offer a path to those who came here as children and have committed minor felonies. Even if they have served their time and now have good moral character, they will still have to “serve time” as an undocumented person, or return to a strange or even hostile ‘home’ country.

Conversion from CNI to Green Card Holder. To convert CNI status to green card status, a CNI would need to show

two years of higher learning or military service in the US,

secondary school attendance in the US,

good moral character during the entire period of holding this status (ten years at least),

not inadmissible or deportable, no acts of persecution and no felonies or prison terms in aggregate over 90 days for three or more misdemeanors, as above, and

continuous residence in the US, no absences of more then one year, other than for US military service.

Higher Education Assistance.  Earlier versions of the DREAM Act would have untied the hands of state legislatures to allow them to grant federal financial benefits like student loans and work-study programs to undocumented aliens similar to that granted to other state residents. This version states only that CNIs or green card holders shall be eligible for such assistance.

Wednesday, July 21, 2010

Private Bar Wants Information on Perceived Change of H-1B Policy

July 20, 2010
Frustrated with what it perceives as a dramatic uptick in denials and use of the request for evidence/information (RFE) to decrease the number of H-1B visa approvals, the private bar’s American Immigration Lawyer Association (AILA) has filed suit against the US Citizenship & Immigration Service (USCIS) and Department of Homeland Security (DHS) to obtain a declaratory judgment from the US District Court in for the District of Columbia to release internal documents revealing the new policy being followed internally that would cause this new trend. The suit was filed after numerous Freedom of Information Act requests filed by AILA starting in February 2009. All the requests have been denied. The FOIA requests were fairly open ended given that AILA does not really know what documents it is seeking.

US companies may petition the USCIS for H-1B visa status for highly skilled foreign nationals that they would like to hire temporarily.

Sunday, May 30, 2010

New Non-immigrant Visa Consular Fees Effective June 4, 2010

Effective June 4, 2010, the US Department of State is increasing its non-immigrant (temporary) visa processing fees at all US embassies and consular posts and moving to a tiered schedule of fees.  Previously, non-immigrant visa fees were set at a uniform $131.  The new schedule is as follows:

Nonimmigrant visa and border crossing card application processing fees (per person):

(a) Non-petition-based non-immigrant visa (except E category):  $140

These include include B1/B2 tourist and business visitor visas and all student and exchange visitor (F, M and J) visas

(b) H, L, O, P, Q and R category non-immigrant visa:  $150

- H visa - temporary workers and trainees

· L visa - intracompany transferees

· O visa - aliens with extraordinary ability

· P visa - athletes, artists and entertainers

· Q visa - international cultural exchange visitors

· R visa - religious occupations

(c) E category nonimmigrant visa:   $390

      E covers Treaty Traders and Treaty Investors.

(d) K category nonimmigrant visa:  $350

     The K category includes fiance visas and those for foreign nationals married to US citizens who are waiting for approval of a Form I-130.

(e) Border crossing card--age 15 and over (valid 10 years) :$140

(f) Border crossing card--under age 15 (for Mexican citizens if parent or guardian has or is applying for a border crossing card (valid 10 years or until the applicant reaches age 15, whichever is sooner):  $14

By law, the fees may only be set at cost. The Department of State therefore commissioned an independent study conducted from August 2007 through June 2009 to determine their actual processing costs. Average cost numbers were then rounded up to the nearest ten for easy of foreign currency conversion. The additional revenue resulting from this rounding will be used for GSS services.

The implementing legislation's list of reasons why some “petition based” visa types are more expensive (H, L, O, P, Q, and R) gives a brief insight into the processing activities conducted at the consulates for them:

 review of extensive documentation

 a more in-depth interview of the applicant

 receiving petition information from DHS,

 conducting reviews of government and commercial databases to confirm the existence of the petitioning business, and

 entering that data into the Petition Information Management Service (PIMS) database.

Visa reciprocity fees vary from country to country and still apply, so consult with your local post, consulate or embassy to find the exact visa application fees applicable in your case.

Fee changes are only in effect for non-immigrant visas applied for at consular posts (consulates and embassies).  Fee changes are under review for other consular services like US passports, immigrant visas.  Department of State, May 24, 2010 press release, Nonimmigrant Visa Application Fees to Increase June 4,

These new fees were set forth in the Federal Register: May 20, 2010 (Volume 75, Number 97),Rules and Regulations, pages 28188-28194. From the Federal Register Online via GPO Access [][DOCID:fr20my10-3] DEPARTMENT OF STATE, 22 CFR Part 22, Public Notice: 7018, RIN 1400-AC57. Title: Schedule of Fees for Consular Services, Department of State and Overseas Embassies and Consulates.

Thursday, February 18, 2010

USCIS Collaboration Session, February 18, 2010 – Determining Employer-Employee Relationships for Adjudication of H-1B Petitions

I’ve attended two Collaboration sessions sponsored by the new U.S. Citizenship & Immigration Services - Office of Public Engagement (OPE) via telephone. The creation of OPE was announced by USCIS head Alejandro Mayorkas’ on September 14, 2009. Although USCIS officials attend them, they seem to be mostly listening sessions, not heavy on content outflow from the USCIS. The agendas for the sessions are very general. They do not list the featured attendees from the USCIS.

Symbolically, the introduction by the main USCIS spokesperson on the substantive topic, Barbara (last name inaudible), was inaudible because of technical difficulties. She seemed to be too far from the microphone for most of her opening remarks.

The Collaboration Session today, February 18, 2010 – Determining Employer-Employee Relationships for Adjudication of H-1B Petitions – yielded few tidbits from the USCIS on the topic of discussion, the January 8, 2010 “Neufeld” Memo “Determining Employer-Employee Relationships for Adjudication of H-1B Petitions, Including Third-Party Site Placements.” The main ones were:

1. The Memo was developed internally over the past year.

2. Its purpose from the USCIS’s point of view was to get more consistency in the requests for evidence (RFEs) issued to petitioners. The USCIS stated that they wanted to “level the playing field” for those seeking H-1B benefits. They sought to strengthen the integrity of the program by making adjudications consistent.

3. The USCIS’s goal with the Memo was also to have more “strategic RFEs,” rather than reckless template RFEs, that ask for all but the kitchen sink. They would like adjudicators to ask only for information that will “impact the overall eligibility.”

4. It is not the USCIS’s intent to extend the Neufeld Memo to L visa petitions. Practitioners voiced concern that the Memo would bleed into the adjudication of other visas, like L visas, that it would cause problems for those who are starting branches of their businesses in the US and wanted to hire themselves under the intra-company transferee program.

5. The USCIS is considering adding “trusted employer concept” to the H-1B program to reduce the stress of H-1B petitioning for some employers who use the program frequently. I assume this might be like the “blanket L” visa program

There were several stakeholders, interested parties, who spoke for and against the H-1B program in general, and many brought up what has already been discussed in the blogosphere:

1.  Many suggested that the Memo was rulemaking and should it have gone through the Administrative Procedure Act (APA).

- There were several calls to withdraw the memo in its entirety, and to go through the APA procedures, calling for comments to draft regulations etc.

- A caller from Immigration Voice found the Memo’s issuance to be contrary to the goal of transparency that the USCIS and its Office of Public Engagement espouse and a “huge shift” in attitude toward third party worksite consultants.

- The USCIS representatives, including Donald Neufeld, Associate Director, Service Center Operations, himself, did not respond to the accusations of non-transparency and improper rulemaking, except to say that the intent of the memo was to offer guidance to adjudicators and stakeholders.

2.  Practitioners voiced their opinion that the Memo was causing adjudicators to focus only on the “control” element of the four or five elements of determining an employer-employee relationship.

3.  Bruce Martin, immigration attorney Greg Siskind and a practitioner from New Haven emphasized the problems with hospital staffing that the memo is causing. Hospitals in some states cannot be the employer of foreign national physicians because of insurance liability. Staffing companies have long been used to structure the temporary work of foreign physicians in US hospitals.

Of the economic based attacks on the Neufeld Memo, the two themes were that (1) it will encourage companies to move jobs offshore because of an inability to hire the skilled labor that they want here in the US – where at least the H-1B employees are paying taxes, renting apartments and helping to create jobs for US workers with their flexible hire contributions; and (2) it discourages entrepreneurship, the engine of growth for the US economy.