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Extraordinary Circumstances may extend filing deadline under Child Status Protection Act.
Before the enactment of the Child Status Protection Act, CSPA, by Congress on August 2, 2002, immigration procedures involving children would be expedited only on a case by case basis to prevent them from turning 21 before being able to timely immigrate before turning 21 years of age. At 21, they would no longer be a child, creating ineligibility to immigrate alongside their parents immigration process, or causing them to wait many more years to immigrate through their parent’s petition. The CSPA assisted many immigrant children by freezing their age upon the filing of petitions for themselves or their parents and requiring them to seek to acquire status within a year of being eligible to do so. However, where extraordinary circumstances beyond their control prevents them from meeting this one year deadline, until recently, these children were out of luck. Now, the US Citizenship and Immigration Service, USCIS, has implemented policy considerations to determine when seeking status is impaired by extraordinary circumstances, beyond the control of the applicants or their parents, so as to allow late filing. The attached memo provides more information. Link 1- Extaordinary Circumstances- Jeh JohnsonSurvivorship- A Family Petition Can Survive the Death of the Petitioner
For years, the death of a petitioner meant the death of a family based petition, causing the beneficiary and his or her family tremendous sorrow through family separation. Yet, on October 29, 2009, prompted by President Obama, Congress created a law permitting the USCIS to re-instate petitions terminated by the death of the petitioner, where his or relative, or their spouse or child were living in the United States when the qualifying petitioning relative died. The exercise of discretion in such re-instatement is to be liberally granted, yet, under narrower and more stringent circumstances, even beneficiaries living outside the United States at the time of their petitioning relative’s death can apply at the nearest US Consulate for “humanitarian re-instatement.” To learn more, see the attached article on INA § 204(l). Link 2- INA sec. 204(l).
Human Rights News
The Asylum Interview Process at the border of the US and Mexico Is Unfair and Illegal
Procedures currently applied at the US border by the Department of Homeland Security (DHS) hinder and prevent most asylum seekers asylum from having legal counsel present during their interview. The barriers created by cultural, linguistic, and psychological differences between refugees and DHS officers conducting an asylum interview and the pace at which these interviews move forward fail to conform with legal safeguards. Asylum seekers must, under US law, have the opportunity to secure representation from a lawyer, at no expense to the US government, in order to prepare themselves for the asylum interview and to present their case in a meaningful manner. To be successful, asylum seekers must prove their “well-founded fear of persecution” based on the “nexus requirement of race, religion, membership of a particular social group, or political opinion.” Legal counsel can help persons seeking asylum break through the barriers that culturally diverse refugees encounter when facing our legal system, making limitations placed on access to attorney representation, as illustrated in this New York Times article. http://www.nytimes.com/2015/07/28/opinion/why-cant-refugees-get-lawyers.html?smid= tw-nytimes&_r=1Federal Judge Drops the Hammer on ICE
On July 25, 2015, United States District Judge Dolly Gee ruled that refugee women and children currently being detained in Kearns and Dilley, Texas, must be released due to the “deplorable” conditions of said facilities. In the summer of 2014, an unusually high number of women and their children from Central America presented themselves at the US/Mexico border, attempting to illegally cross into the United States. In response, the Obama administration, through the Immigration and Customs Enforcement agency, detained over 1,700 parents and children who were sent to three detention facilities, two in Texas and one in Pennsylvania. However, the two facilities in Texas have failed to meet the minimum standards set by 1997 settlement, known as Flores Agreement, created to establish specific legal requirements to house detained immigrant children. For more, please read the attached linked article: http://www.latimes.com/local/lanow/la-me-ln-judge-orders-release-of-immigrant-children-mothers-from-detention-centers-20150725-story.html#page=1, and,if you are interested in reading the 25-page ruling from Judge Dolly Gee, please see this link: http://www.nytimes.com/interactive/2015/07/25/us/Ruling-on-Immigrant-Children-in-Detention.html?_r=0.
Deplorable Conditions for Pregnant Detainees
According to Immigration and Customs Enforcement (ICE) statistics, between 2012 and 2014, 559 women detained in ICE facilities were expecting. According to reports, women experiencing high amounts of stress have been told by medical staff to simply drink more water, without any further review by non-agency physicians. The detention of expecting mothers continues despite prior policy, created within the Flores Agreement, not to hold pregnant women “absent extraordinary circumstances or the requirements of mandatory detention.” For more information, please read the attached article. http://www.theguardian.com/commentisfree/2015/jul/27/immigration-detention-pregnant-women-conditions?CMP=share_btn_link.
Social Worker Speaks-out about Deplorable Detention Facility Conditions
Olivia Lopez, a family social worker, speaks-out against grossly substandard conditions imposed upon immigration detainees at the detention center in Karnes, Texas. The facility is operated by Geo Group, which is the second largest for-profit prison company in the United States, under the direction of Immigration and Customs Enforcement (ICE). Lopez’s first impression of the detention facility is that it was really a “prison”. Although the Geo Group and ICE both deny these allegations, Lopez goes on to report that children and their mothers would be isolated in the medical unit as punishment, pointing a finger at the Obama administration’s continued failure to protect the human rights of detained asylum seekers near the US/Mexico border. Please read this link for more: http://www.mcclatchydc.com/news/nation-world/national/article28696174.html.
The Obama Administration Delays Release of Refugee Mothers and Children
The Obama Administration has deferred compliance with Judge Gee’s Order to release refugee mothers and children from Dilley and Karnes Detention Centers. Instead, the administration is delegating to DHS the appointment of an Immigration and Customs Enforcement panel on the oversight of “Family Residential Centers.” Link 3- Federal Residential Centers
Business Immigration News
A Bill Amending the EB5 Immigrant Investor Program May Actually Kill Jobs
The United States Citizenship and Immigration Service oversees the Immigration Investor program, also known as the EB5 program. The overall intent of this program is to encourage foreign investors to help create jobs inside the United States. The USCIS uses Regional Centers as the one-stop shop for promoting economic wealth and helping create jobs that put the foreign investors’ money to work. Currently, each foreign investor must contribute $500 thousand to $1 million in order for the Regional Center to create ten jobs. Recently, two United States Senators introduced bill that, if passed, will raise that initial capital investment to $800 thousand to $1.2 million. This initial capital will be used to create the same ten jobs, per investor. To read more, follow this link: http://www.ilw.com/immigrationdaily/.DOL Posts New FAQ List for H-1B & E-3 Employees
The H1B non-immigrant visa category applies to foreign born persons seeking to perform services in three job classifications: 1) specialty occupation (another term describing professional occupations), (H-1B1) 2) services of exceptional merit and ability relating to a Department of Defense research and development project, (H-1B2) or 3) services as a fashion model of distinguished merit or ability,.(H-1B3). A special set-aside of 10,500 E-3 non-immigrant visas is available Australian non-immigrant workers who fit these three categories. To qualify an employee for an H-1B or E-3 non-immigrant visa, petitioning employers must first meet the certification requirements set forth by the Department of Labor by making a detailed attestation that regional wages and working conditions will be met. Second, the US employer and foreign employee must receive final approval from the United States Citizenship and Immigration Services through approval of Form I-129, Petition for Non-immigrant Worker with an H Supplement. The Department of Labor discusses these three classifications to clarify them to the public within the following link: http://www.foreignlaborcert.doleta.gov/pdf/H1B_H1B1_E3_Round3FAQs.pdf.
USCIS Posts Instructions on when to refile a new Form I-129 for multi worksite employees.
H-1B employees are paid according to what the Department of Labor determines to be the regional prevailing wage. Yet, what happens when the employee moves outside of the region of the employer in service to clients around the country? Regional wage differences can cause confusion. To see how the USCIS has resolved these problems, Matter of Simieo Solutions, LLC, was issued as a precedent decision for guidance. Moreover, the USCIS has issued the following instructional memo as guidance. Link 3- Matter of Simieo Solutions, LLC Memo.
Is the United States Turning Highly Skilled Foreign Investors and Inventers Away?
The technology industry is still booming. In recent years, America has invested nearly $50 billion in this industry alone. In response to this annual investment, most technology companies continue to rake-in revenue in the billions of dollars. However, these American companies are not all ran by native born Americans. The United States can thank foreign-born entrepreneurs and inventors for seeking the American dream by helping to stimulate the US economy. Yet, given today’s current political climate, investors and highly-skilled foreign workers are finding increasingly more difficult to get here. Opponents to nonimmigrant visa reform continue to argue that offering employment-based visas will kill American jobs. Yet, it is not the US entreprenuer and inventor who complains about foreign confrontation, which knows no borders. Rather, highly skilled foreign workers and entreprenuers actually boost the economy and their contributions create jobs for US workers. The technology sector is living proof of that fact. See this link for more information:http://www.entrepreneur.com/article/248577.
Department of Labor Has Spoken for Default Wage on Highly Paid Occupations
During a forum between the Department of Labor and experts from the American Immigration Lawyers Association, AILA, the DOL confirmed that the $90/hour default wage rate can be cited without having to submit a prevailing wage determination request when there is no online wage library, OWL, data for highly compensated occupations. A DOL FAQ is soon to follow.
Employment Based Toolbox Resources- Did you know?
P-1A for the Internationally Recognized Athletes
Did you ever wonder how exactly a foreign athlete, probably one of your favorite athletes, gets to play and compete in the United States? Many people believe that foreign born athletes come to the US with significant funds to enter and exit the Unites States at will. This is certainly what is required for admission to play professional sports. The P-1A visa for internationally recognized athletes provides the key to their admission. There are clear requirements to qualify an Internationally Recognized Athlete. Form I-129, Petition for a Nonimmigrant Worker, must be submitted with a P Supplement, and evidence to demonstrate eligibility, which includes, but is not limited to, the following:
Evidence of having participated to a significant extent in a prior season with a major United States sports league
Evidence of having participated to a significant extent in international competition with a national team
Evidence of having participated to a significant extent in a prior season for a U.S. college or university in intercollegiate competition
A written statement from an official of a major U.S. sports league or an official of the governing body of the sport which details how you or your team is internationally recognized
A written statement from a member of the sports media or a recognized expert in the sport which details how you or your team is internationally recognized
Evidence that you or your team is ranked, if the sport has international rankings
Evidence that you or your team has received a significant honor or award in the sport
E-1 Treaty Traders
The E-1 Treaty Trader nonimmigrant visa allow a businessperson from a country that has a standing treaty of commerce or navigation with the United States to be admitted so as to conduct international trade from inside the United States with his or her home country. If the nonimmigrant is already in the United States, the trader files Form I-129, E Supplement, in order to secure nonimmigrant status. From outside the United States, the trader can submit Form DS 156, with an E Supplement with a US consulate under the Department of State, DOS. See the DOS Website at (www.dos.gov). In addition, to qualify for the E-1 visa as the employee of a treaty trader, he or shemeet the following qualifications:
Be the same nationality of the principal alien employer (who must have the nationality of the treaty country)
Meet the definition of “employee” under the relevant law
Either be engaging in duties of an executive or supervisory character, or if employed in a lesser capacity, have special qualifications.
Visa Waiver & National Security
For years, travelers who are citizens of countries with extremely low rates of fraud or visa violations have been permitted admission to the United States without a visa. However, heightened post 9-11 security concerns have provided grounds for the DHS to clearly define remaining documentary requirements for visa waiver travelers. For more information, please see the attached link. Link 4- Visa Waiver- Jeh JohnsonTrusted Traveler Program Expanded to Mexico and Canada
For years, US citizens have been entitled to enroll, and if accepted, receive expedited customs clearance treatment at US airports with the Trusted Traveler program. Now, Canadians and Mexicans qualify to apply as well. For more information, please see the attached link. Link 5- Trusted Traveler.
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