A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Wednesday, July 29, 2015

“Stop-Time” Rule Not Triggered If Removal Case Was Not Commenced

In a recent case regarding "cancellation of removal”, the Board of Immigration Appeals  ruled that the language and structure of section 240A(d)(1) of the INA do not support giving “stop-time” effect to a notice to appear (NTA) that was served on an alien but was never used to commence proceedings. Consequently, a NTA served on the respondent in 1998 did not terminate the respondent’s continuous physical presence as a requirement for his application for cancellation of removal. 

In Matter of ORDAZ, the respondent is a native and citizen of Mexico who first entered the United States in 1990. On April 2, 1998, he was served with a NTA which advised him to appear before an Immigration Judge. However, because the notice was not filed with the Immigration Court in accordance with the regulation, removal proceedings were never formally started. On September 1, 2004, the Department of Homeland Security (DHS) served him with a second NTA and commenced the proceedings in the case. The respondent then applied for cancellation of removal, claiming that he has a strong cancellation application since he had continuously resided in the United States for ten years. The Immigration Judge denied the application, holding that the “stop-time” rule broke the period of continuous physical presence when he was served with the first NTA in 1998.

Foreign nationals who are deportable from the United States may still be able to stay if are eligible for some form of relief from removal. “Cancellation of removal” is one such relief application. The main purpose of cancellation of removal is to allow longtime residents of the U.S. with family ties and equities a way to remain here despite their transgressions. When a non-resident of the U.S. applies for cancellation, he must establish that he  has continuously resided in the United States for at least ten (10) years.  According to the “stop time” rule, accrual of the continuous physical presence stops when the non-resident was served with an NTA, or when the individual commits a crime that triggers the stop-time rule.

The court first reasoned that the language and structure of section 240A(d)(1) of the Act do not support giving “stop-time” effect to a NTA that was served on a foreign national but was never served on the Immigration Court to start proceedings.  The reference to a NTA is merely “definitional in nature", which does not break a foreign's period of continuous residence or physical presence. The commencement of proceedings is a separate issue from the service of the notice to appear. The “stop-time” rule is triggered by the commencement of proceedings, not the service of the NTA. Perphaps more importantly, the BIA is concerned about the lack of opportunity for a foreigner to contest the charges in the NTA if removal proceedings were not commenced.  Such a result would go against the Congressional goals in creating cancellation of removal.

This is an important decision as it is not unusual for the Government to have served the NTA of a foreigner without actually commencing removal proceedings with the Immigration Court.  In these situations, the foreigner will be able to continue accruing time to meet the ten-year continuous physical presence requirement for cancellation of removal. 

Wednesday, July 22, 2015

Filipino WWII Vets Family Reunification

Family members of Filipino veterans of World War II may be able to enter the United States in "parole" status, according to a new policy announced by the White House on July 15.  The new policy is part of President Obama's executive actions to improve and modernize the U.S. Immigration System.  The purpose of the new policy is to "Allow certain family members of Filipino veterans, who are currently in the family immigration backlogs, to seek parole so they can care for these aging veterans," as written in a White House fact sheet.  

A quarter million of Filipino soldiers responded to President Roosevelt’s call-to-arms in 1941 and fought for America during World War II.  Yet, family reunification continues to be a challenge for Filipino nationals.  Oftentimes, family members of U.S. citizens and residents must wait up to 10 to 20 years before they can be granted immigrant visas.  See, e.g., August 2015 Visa Bulletin.  This new policy will provide some temporary relief to prolonged family separation, although DHS has not yet announced any specifics on this matter.

Tuesday, July 21, 2015

Final Guidance on H-1B Change of Employment Location Pursuant to Simeio

In the final guidance on Simeio, USCIS extends the deadline for compliance from 08/19/2015 to 01/15/2016. 

According to the BIA decision of Matter of Simeio, changes in place of employment for an H-1B employee are considered material changes in terms and conditions of employment.  Such changes require the employer to file an amended or new H-1B petition and a new LCA with the USCIS. Previously USCIS had issued guidance on this matter in May, which provides a 90-day window for employers to comply with the new requirements.  After gathering additional comments from the public, USCIS issued its final guidance today.  

To comply with Simeio, USCIS issues the following revised guidelines:

1) Pre-Simeio changes in the place of employment requiring certification of a new LCA: 

"If a petitioner’s H-1B employee moved to a new area of employment (not covered by an existing, approved H-1B petition) on or before the date of publication of Matter of Simeio Solutions, LLC (April 9, 2015), USCIS will generally not pursue new adverse actions (e.g., denials or revocations) solely based upon a failure to file an amended or new petition regarding that move after July 21, 2015. USCIS will, however, preserve adverse actions already commenced or completed prior to July 21, 2015 and will pursue new adverse actions if other violations are determined to have occurred."

2) Safe harbor period: 

"If a petitioner wishes, notwithstanding the above statement of discretion, to file an amended or new petition to request a change in the place of employment that occurred on or before the Simeio decision, the petitioner may file an amended or new petition by January 15, 2016. USCIS will consider filings during this safe harbor period to be timely for purposes of the regulation and meeting the definition of “nonimmigrant alien” at INA section 214(n)(2). "

3) Post-Simeio changes in the place of employment requiring certification of a new LCA:

"If by January 15, 2016 (deadline for filing) a petitioner does not file an amended or new petition for an H-1B employee who moved to a new place of employment (not covered by an existing, approved H-1B petition) after the date of publication of Matter of Simeio Solutions, LLC (April 9, 2015) but before August 19, 2015, the petitioner will be out of compliance with DHS regulations and the USCIS interpretation of the law, and thus subject to adverse action. Similarly, the petitioner’s H-1B employee will not be maintaining nonimmigrant status and will also be subject to adverse action.

If the change in the place of employment (not covered by an existing, approved H-1B petition) occurs on or after August 19, 2015, then the petitioner must file an amended or new petition before the employee begins working at the new location."

There are situations in which amendments are not required.  Please see my previous blog entry for details. 

Monday, July 20, 2015

Green Card Without Signature Okay

When a person applies for a green card in the U.S., a signature is normally required and printed on the green card itself.  Applicants usually provide their signatures at the biometrics appointments or at the actual green card interviews.  However, for those individuals who are not capable of signing, e.g., young children and the physically disabled, the signature requirement is waived.  Since February 2015, USCIS has also been waiving the signature requirement for people who applied for permanent residence status at an overseas U.S. consulate and arrive at the U.S. as a landing immigrant.  For these immigrants, their green cards will have a notation of "Signature Waived" at the bottom (See sample green card). 

USCIS To Conduct Home Visits to Recall DACA EADs

Texas Federal Judge Andrew Hanen imposed a 07/17/2015 deadline for USCIS to recall a few thousand incorrectly issued 3-year Employment Authorization Documents (EADs) from DACA beneficiaries, in relation to his temporary injunction against USCIS execution of the DAPA Program

These beneficiaries should have been issued 2-year EAD cards instead.  Some applicant had already returned their 3-year EAD cards to USCIS,  but there are still some outstanding cards out there.   USCIS has informed the immigrant communities that it will be conducting home visits to retrieve these EADs. USCIS will at first conduct a “pilot” program in Chicago, Los Angeles, Houston, Dallas, and potentially San Francisco, to be expanded to other areas with large percentages of DACA beneficiaries.  A receipt will be issued to DACA beneficiaries who return their EADs. DACA beneficiaries may also return their EAD cards to any USCIS Field Offices.  

It is very important for DACA beneficiaries to return their incorrectly issued 3-year EAD cards as soon as possible, if they haven't done so.  Otherwise, they could lose eligibility to DACA and other immigration benefits. 

August Visa Bulletin: EB-3 India Advances / EB-3 China Retrogressed / EB-3 Philippines Available

In August, the employment categories have some significant changes. EB-3 China retrogresses almost 7 years to 06/01/2004 while EB-3 India advances 4 months, also to 06/01/2004. The State Department expects that EB-3 China will return to September 2011 in October, when new fiscal year begins.  Philippines changed from "Unavailable" to a cutoff date of 06/01/2004.  Family visa categories advance moderately in general. 

Other Countries

1st: Unmarried Sons and Daughters of Citizens (about 23,000 per year).
2A: The 2 "A" preference is for Spouses and Children (under 21 & unmarried) of LPR's.
2B: The 2 "B" Preference is for Unmarried Sons and Daughters (21 or older) of LPR's.
3rd: Married Sons and Daughters of Citizens.(about 23,000 per year)
4th: Brothers and Sisters of Adult Citizens.(about 65,000 per year)

Other Countries
Other Workers

1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers, outstanding prof./researchers)
2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.
3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)
4th: "Special Immigrants" (Religious & others)
5th: Employment Creation (Investors)

Wednesday, July 15, 2015

Proposal: Expand Provisional Waivers to All Applicants / Hardship to LPR Relatives Allowed

On July 14, 2015, DHS proposes to expand its current provisional waiver process in two important ways.

First, DHS proposes to allow all eligible foreigners to apply for a provisional waiver. Currently, provisional waivers are only available to immediate relatives of U.S. citizens.  

Secondly, hardship to lawful permanent resident relatives may also be considered in the adjudication of the waiver application.  In order to be eligible for a provisional waiver, an applicant must demonstrate with evidence that his or her citizen spouse or parent will suffer extreme hardship if the waiver application is denied. The new rule proposes to expand these so-called "anchor relatives" to include also LPR spouses and parents.

This is only a proposed rule and DHS is seeking public comments on it.  The effective date will be published with the final rule in the future.  Applicants may not file applications based on the proposal.

Monday, July 13, 2015

Premium Processing for H-B Extensions Resumed

USCIS resumes premium processing service (Form I-907) for all Form I-129 as of July 13, 2015.  Previously the agency had suspended premium processing service for H-1B extension petitions due to heavy workload from H-4 Dependent Spouses' EAD applications.  

Saturday, July 11, 2015

August Bulletin: EB-3 China Retrogressed 7 Years

In the newly released August Visa Bulletin, China's EB-3 retrogressed from 09/01/2011 to 06/01/2004.  The good news, according to the State Department is that, this category will likely rebound back to 2011 when new fiscal year begins in October. 

Friday, July 10, 2015

U.S. Citizen Has No Constitutional Right to Know the Specific Reasons for Husband's Visa Denial

When the husband of United States citizen Fauzia Din applied for an immigrant visa from the US, he was denied. Din’s husband, Kanishka Berashk, is a citizen of Afghanistan and a former civil servant of the Taliban regime. His visa application was denied under the statutory provision INA §1182(a)(3)(B), which excludes aliens who had participated in “[t]errorist activities”. The provision is somewhat broad, detailing various reasons for exclusion. No further explanation was given. 

When this happened, Fauzia Din sued in the Federal District Court, claiming that the State Department had violated the Constitutional requirement that “[n]o person … be deprived of life, liberty, or property, without due process of law.” U.S. Const., Amdt. 5. She argued that she had been denied due process when the Department had failed to provide any detailed explanation regarding the denial of her husband’s visa, barring her from her constitutional right to live in the country with her spouse. 

The Federal District Court dismissed Din’s claim, but this decision was reversed by the Ninth Circuit Court. The case made its way to the Supreme Court, which upheld the Federal District decision. Please see my previous discussion about this case.

The Ninth Circuit Court based its reversal on the reasoning that the Government had violated Din’s liberty interest in her marriage by preventing her from reviewing her husband’s visa denial. It further asserted that, as her right to liberty had been deprived, Din was Constitutionally entitled to “due process of the law,” which she did not receive. The provision cited in her husband’s visa application denial did not provide a sufficiently detailed explanation.

In a 5-4 decision, the divided U.S. Supreme Court disagreed with the Ninth Circuit ruling in Kerry v. Din. According to the Supreme Court, Din was not deprived of life, liberty, or property when her husband was refused a visa. In particular, her liberty interests do not extend so far as to overturn existing immigration policy. She remains free to live with her spouse in any place where both are allowed to reside. Furthermore, the Court held that even if Din’s liberty interest had been violated, due process was indeed served with the State Department’s citation of provision  §1182(a)(3)(B). It had provided a “facially legitimate and bona fide” reason for its refusal of the visa.

Despite this Supreme Court decision, applicants may continue to request for specific reasons from consulate offices regarding the denial of visa applications.  Individual consulate office or officer will decide whether or not to provide the specific reasons for their decisions.  

Removal Orders Can be Reopened Despite Failure to Report Address Change

A person in removal proceedings moved to a new address, but he keeps his mailing address the same, and the immigration court has that address.  In this situation, even if the court hearing notices sent to his mailing address are returned as "attempted, addressee unknown," the immigration judge may not categorically order his deportation in his absence, according to a recent decision by the First Circuit Court of Appeals. (Renaut v. Lynch, 6/4/15)

The respondent in this case was living with his friend and used his address as his own.  However, a few years later, the respondent moved out to another address. After his move, he still kept on using his friend's address.  Later on, the court's hearing notices sent to this address were returned as "attempted, addressee unknown".  It appeared that his friend also moved away afterwards.  Eight years later, the respondent married a U.S. citizen and attempted to remove his removal case so that he may apply for permanent residence status.

Both the immigration judge (IJ) and BIA held that he could not reopen his case because he failed to notify the immigration court his new address.  The IJ and BIA held that his failure to report his change of address amounted to evasion of hearing notice, and therefore his motion could not be reopened.

The Appellate Court disagreed, holding that an IJ may rescind an in absentia removal order if the respondent demonstrates that he failed to receive his court notice.  While the issue to consider in entering in absentia order is whether the notice is properly mailed, the focus is shifted to whether the respondent actually received the hearing notice in deciding on a motion to reopen.

The Appellate Court also could not find any legal basis to support the proposition that the respondent
 was required to provide a residential address, as opposed to just a valid mailing address. The Court observied that the Notice to Appear actually advised the respondent that he was "required to provide . . . your full mailing address."   The Notice of Appear does not  specifically mention a residential or physical address.

This issue is important because both the IJ and BIA concluded that the respondent evaded delivery of the court hearing notice by his failure to update his physical address.  And such an evasion is the basis for the denial of his motion to reopen.  The Appellate Court noted that there is insufficient factual basis in the record to further investigate this issue.  Therefore, it decided to remand the case to the immigration court to re-consider the motion to reopen again.

This decision is important as many removal orders (deportation orders) are entered every year due to address changes.  It is also important to understand that this decision does not mean that the respondent's case will definitely be reopened at the end; it merely provides another way for respondents with in absentia orders to attempt to reopen their cases.

Thursday, July 9, 2015

4-Year Residence Required for Canadian Citizenship Under New Rules

New rules affecting the process of applying for Canadian citizenship went into effect on June 11, 2015.  These reform changes, aimed at strengthening citizenship laws, make it much harder and more expensive to become a Citizen of Canada. Below is a brief outline of the changes, as well as important information for current and future citizenship applicants: 

Key Changes (effective June 11, 2015):

  • The new rules require the applicants to be: living in Canada for 4 years (1,460 days) out of 6 years for citizenship eligibility; Physically present in Canada for 183 days (minimum) per year in 4 out of 6 years.
  • Adult applicants must declare their intent to reside in Canada once they become citizens and meet personal income tax obligations in order to be eligible for citizenship.
  • Applicants between the ages of 14 and 64 must meet a knowledge requirement in English or French (cannot use an interpreter) and must pass the citizenship test. 
  • Citizenship will be automatically extended to additional “Lost Canadians” who were born before 1947, and did not become citizens on January 1, 1947 when the first Canadian Citizenship Act came into effect. This will also apply to their children born in the first generation outside Canada.
  • As of June 11, 2015, the Citizenship and Immigration Canada (CIC) will only accept the new application forms, which will be available on the CIC website (http://www.cic.gc.ca/). Applications that were received on or after June 11, 2015 that do not use the latest version of the application will be considered incomplete and will be returned. Incomplete applications that were returned prior to June 11, 2015 must be resubmitted using the new application forms. 
  • To help the program implemented, Immigration Consultants of Canada Regulatory Council (ICCRC) has been newly designated as the regulatory body for citizenship consultants. Only members of the ICCRC, lawyers or notaries (including paralegals and students at law) can be paid to provide citizenship applicants with representation or advice.
  • There are now stronger penalties for fraud and misrepresentation (to a maximum fine of $100,000 and/or up to five years in prison). 
  • The CIC Minister can decide to grant citizenship on a discretionary basis. 
  • Citizenship can be revoked or denied if the applicant is: a dual citizen or a permanent resident in Canada; AND a member of an armed force or an organized armed group engaged in armed conflict with Canada; AND/OR convicted of terrorism, high treason, treason, or spying offences, depending on the sentence received.

Thursday, July 2, 2015

USCIS Memo on CSPA Retention of Priority Date

On June 9th, 2014, the U.S. Supreme Court held in Scialabba v. Cuellar de Osario that the Child Status Protection Act (CSPA) only applies to retain the original priority date for aged-out children in family-based immigrant petitions if a new visa petition (e.g., one filed by their parents) is not needed. For more detailed discussion of this issue, please see our earlier blogging on this issue.
USCIS recently issued a policy memo to direct its immigration officers to process immigrant petitions previously put on hold pending the outcome of Scialabba. The policy memo, entitled "Updated Guidance to USCIS Offices on Handling Certain Family-Based Automatic Conversion and Priority Date Retention Requests Following the Supreme Court Ruling in Scialabba v. Cuellar de Osorio",  provides the following guidance to immigration officers:

  • Earlier priority date under CSPA may only be assigned in those petitions filed by the same petitioner on behalf of the same principal beneficiary. Further, only approved petitions that have not been denied, revoked, or used for another immigrant visa may qualify. See 8 CFR 204.2(h).
  • For adjustment of status cases automatically converted from a derivative in the F2A category to a principal in the F2B category (upon reaching the age of 21), the original priority date from the initial petition is retained and available to the new F2B classification.  A new petition by the petitioner is not necessary.  See 8 C.F.R. 204.2(a)(4).
  • For other adjustment of status cases pending solely upon a request for priority date retention and the the applicant is not eligible based on the Supreme Court decision, the officer should deny the application unless the applicant appears to be eligible to adjust based on a different visa petition or different section of law.  Requests of evidence may be issued to gather evidence to confirm eligibility.
  • For pending motions to reopen or motions to reconsider based on the same priority date retention issue, the immigration officer should deny the motion if it is clear now that the applicant is not eligible unless there are other ways for the applicant to obtain an immigrant visa.  Eligibility for adjustment of status must have existed at the time the adjustment application was filed. 

VSC Requests for Evidence on White Paper

The Vermont Service Center announced that as if July 6, 2015, its Requests for Evidence (RFEs) will be printed on white paper instead of yellow or golden paper.  As usual, the RFEs must be returned with any additional documents.

Taiwan to Increase Minimum Wage to US$623 Per Month

"Taiwan will hike its monthly minimum wage by 3.81% from NT$19,273 (US$623) to NT$20,008 and the hourly minimum wage rate will rise 4.35% from NT$115 to NT$120, with the new wage schemes to take effect on July 1, according to the labor ministry.
About 1.8678 million workers will see their incomes increase because of the monthly pay rise, and another 449,700 will benefit from the hourly wage increase, the ministry said."
Adam Hwang, DIGITIMES, Taipei [Tuesday 30 June 2015]