US Immigration Blog

The United States Supreme Court has ruled that Courts can review denials of Motions to reopen proceedings. The opinion, Kucana v. Holder will provide safeguards in judicial review of such motions and is a win for those seeking review of their cases on appeal.  It debunks the previous position that Courts lacked jurisdiction over discretionary decisions made by the Board of Immigration Appeals.

For those who are new to removal proceedings, a removal case is initially decided by a US Immigration Judge.  The Immigration Judge may grant or deny the relief requested by the person being removed.  In that case, the person being removed (often called Respondent), then can either file a motion to reopen proceedings with the Judge who denied his or her case, or file a direct appeal with the Board of Immigration Appeals.  (BIA).

In most cases, failure to appear will result in an order of removal being entered in absentia (as in this case).  The respondent ordered deported in absentia can file a Motion to reopen proceedings and the Immigration Judge would then decide if the Motion ought to be granted or denied, as matter of law and as a matter of discretion.    Some Courts (this case emanated from the Seventh Circuit) had taken the position that they lacked jurisdiction to review denials of such Motions decided by the Board of Immigration Appeals per (Real ID Act of 2005).    The Supreme Court of the United States disagrees in this new ruling written by Justice Ruth Bader Ginsburg.

Citizens and Nationals of Haiti living in the United States can apply for TPS starting today, January 21, 2010.  Temporary Protected Status (TPS), once granted, will allow those eligible to obtain an Employment Authorization Document (EAD).  Those in removal or deportation proceedings can halt such proceedings by having their cases administratively closed.

Haitians in the United States must show that they were living in the United States on January 12, 2010 and must not have been convicted of a felony or two misdemeanors.

Some key things to note:

- You are eligible for TPS even if you had applied for asylum and the asylum application was denied

- You are eligible for TPS even if another Immigration application you had filed was denied

- You can still file for any other Immigration benefit while on TPS

- You might be eligible for Advance Parole (permission to leave the United States and to re-enter after a short stay abroad)

-  Temporary Protected Status is a short-term relief and for Haiti this program will run for 18 months.

- Your application must received during the registration period (for Haiti within 6 months).

Nationals of Haiti living in the United States will be allowed to apply for Temporary Protected Status (TPS), Homeland Security Secretary Janet Napolitano announced Friday, January 15, 2010.

Temporary Protected Status is offered to nationals of countries facing extreme civil strife or natural disasters (such as hurricanes and earthquakes).

TPS offers relief in two ways.  First, nationals of the designated country (Haiti) cannot be removed or deported to Haiti during the designated period.  Therefore those in removal proceedings can file motions to have their cases administratively closed.  Second, it allows those granted TPS to apply for an Employment Authorization Document (EAD).

Nationals of Haiti would need to establish that they were in the United States on January 12, 2010, the date of the earthquake, to deter those in Haiti from traveling to the United States to seek TPS.  The TPS designation is for an 18 month period.

People often ask: what can I do to increase the odds of my case being approved?   Well, here are seven easy things that you can do to make sure your case gets approved the first time:

1.  Make sure you are using the correct application form.  Sounds easy enough, but many people will send the wrong form when trying to file for citizenship or a change of status application.

2. Make sure you completely respond to each item on the correct form.  Leaving gaps and failing to respond to items on the form will result in a rejection of the application.

3.  Make sure you sign the application.  Sounds easy but again many people forget to sign the application where required.

4.  Make sure you send the application to the correct address.  The USCIS has different addresses for different applications and some depend on where you reside.

5.  Make sure you send in the correct filing fee attached to your application.  Underpayment or overpayment will result in a rejection of your application.

6.  Make sure you attach the required basic/primary evidence for your case.  For example, where a birth certificate is required, failure to attach it to the application will result in delays as the agency has to write to you and ask for it.

7. Make sure you case is ripe for filing.  In other words, if you have to wait for a visa number, make sure the visa is available when you send in the application.  If you are filing for citizenship and need to prove you have five years of permanent residence, make sure you meet that requirement before sending in your application.  An application filed prematurely will be rejected.

Effective immediately, the USCIS has annouced new filing locations for N-400 Applications for Naturalization and Citizenship.  Depending on the State where you reside, the Applications are to be mailed to a new address in Dallas, Texas or Phoenix, Arizona.

The new address in Dallas, Texas is:

USCIS

P.O Box 660060

Dallas, TX 75266

The new address in Phoenix is:

USCIS

P.O Box 21251

Phoenix, AZ 85036

To avoid delays in mail-forwading, send the application to the correct new address.

Applicants in the United States military will submit their applications to the Nebraska Service Center as was the case before, therefore no change here.

A new Immigration Reform Bill was introduced in the United States Congress on December 15 by Rep. Gutierrez and a number of other Congressional leaders.

The Bill proposes to reform key areas including border and point of entry security.  It hopes to streamline employment verification for employees and proposes penalties for Employers violating this provision.

The proposed Bill would also redefine “immediate family” to include spouses and children of permanent residents.  More contentious provisions will be re-assertion of the legalization of more than 10 million illegal immigrants, a provision that doomed the Immigration reform bill during the last Congress even with the support of President Bush.

The Bill also includes The Dream Act which proposes to allow the adjustment of children who were brought to the United States before they were 16.

The Bill hopes to grant more discretion to Immigration Judges who review removal orders by making certain discretionary waivers available.  There are proposed provisions that amend H-2B Temporary worker program as well as the EB Investor visa program.  A full version of the Bill will be posted here.

E-Verify Federal Contractor Rule Effective Today

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) is reminding federal contractors and subcontractors that effective today, they may be required to use the

E-Verify system to verify their employees’ eligibility to work in the United States if their contract includes the Federal Acquisition Regulation (FAR) E-Verify clause.

In July, Department of Homeland Security (DHS) Secretary Janet Napolitano strengthened employment eligibility verification by announcing the Administration’s support for the regulation that will award federal contracts only to employers who use E-Verify to check employee work authorization.

The E-Verify federal contractor rule extends use of the E-Verify system to cover federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds.  Applicable federal contracts awarded and solicitations issued on or after today will include a clause committing government contractors to use E-Verify.

Companies awarded a contract with the E-Verify clause on or after today will be required to enroll in E-Verify within 30 days of the contract award date.  With certain exceptions, E-Verify must be used to confirm that all new hires, whether employed on a federal contract or not, and existing employees directly working on these contracts are legally authorized to work in the United States.

More than 148,000 participating employers at nearly 560,000 worksites nationwide currently use
E-Verify to electronically verify their workers’ employment eligibility.  Since Oct. 1, 2008, more than 7.8 million employment verification queries have been run through the system and approximately 96.9 percent of all queries are now automatically confirmed as work-authorized within 24 hours or less.

More information on the program is available on the E-Verify Web site at www.dhs.gov/e-verify.  E-Verify customer support is also available by calling toll free (888) 464-4218.

Deferred Action Authorized for Certain Spouses and Children

WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) today issued guidance on requesting deferred action for surviving spouses of U.S. citizens who died before the second anniversary of their marriage. Surviving spouses qualify for this temporary program if they were married to, but not legally separated from, their U.S. citizen spouse at the time of that spouse’s death; did not remarry; and are currently residing in the United States.

Surviving spouses qualify for deferred action regardless of whether the U.S. citizen spouse filed a Form I-130 petition for them. Surviving spouses may ask to have their qualifying children included in their deferred action request. To be considered a “qualifying child” of a surviving spouse, the child must be younger than age 21 or otherwise qualify as a child when the deferred action request is submitted; currently reside in the United States; and be unmarried.

USCIS has revised the instructions to the Forms I-360, Petition for Amerasian, Widow(er), or Special Immigrant, I-765, Application for Employment Authorization, and I-131, Application for Travel Document, as they relate to this temporary new program.

Surviving spouses who apply for deferred action will need to file Form I-360 with supporting documentation and the $375 filing fee with the Vermont Service Center.

Work authorization will be available to surviving spouses and qualifying children who are granted deferred action and who can establish economic necessity. Form I-765 is used for this purpose (separate applications are required for each person seeking work authorization).

Travel authorization will also be available to surviving spouses and qualified children granted deferred action under this program.

Information for Federal Contractors

Federal contractors and subcontractors will be required to begin using the U.S. Citizenship and Immigration Services’ E-Verify system starting May 21, 2009, to verify their employees’ eligibility to legally work in the United States.   The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council amended the Federal Acquisition Regulation (FAR) to reflect this change.

The new rule implements Executive Order 12989, as amended by President George W. Bush on June 6, 2008, directing federal agencies to require that federal contractors agree to electronically verify the employment eligibility of their employees.   The amended Executive Order reinforces the policy, first announced in 1996, that the federal government does business with companies that have a legal workforce. This new rule requires federal contractors to agree, through language inserted into their federal contracts, to use E-Verify to confirm the employment eligibility of all persons hired during a contract term, and to confirm the employment eligibility of federal contractors’ current employees who perform contract services for the federal government within the United States.

Federal contracts awarded and solicitations issued after May 21, 2009 will include a clause committing government contractors to use E-Verify. The same clause will also be required in subcontracts over $3,000 for services or construction. Contracts exempt from this rule include those that are for less than $100,000 and those that are for commercially available off-the-shelf items. Companies awarded a contract with the federal government will be required to enroll in E-Verify within 30 days of the contract award date. They will also need to begin using the E-Verify system to confirm that all of their new hires and their employees directly working on federal contracts are authorized to legally work in the United States.