President Obama has always made it known that he favors the enactment of some form of comprehensive immigration reform to allow for a “path to citizenship” for at least some of the approximately 12 million living in the U.S. without legal immigration status. During his term, it’s been a Republican Congress that’s been the main obstacle to getting any type of immigration reform initiative passed, whether it be the DREAM Act, or more comprehensive reform proposals. If you are wondering how the Republican candidates for President would approach the issue – below are direct quotes attributed to each of them, along with my own peanut gallery assessment:

Mitt Romney
“My view is, people who have come here illegally, we welcome you to apply but you must get at the back of the line, because there are millions of people who are in line right now that want to come here legally. I want those to come here legally. Those that are here illegally have to get in line with everybody else.” [Republican Debate, December 15, 2011]

RH – What line are you talking about Mr. Romney? The vast majority of undocumented individuals currently have no avenue toward legal status in the first place, and thus have no line to get into! This sounds good, but has no basis in reality. Maybe, like most politicians, he is just saying what he thinks the public wants to hear just to get elected, and once elected will do whatever suits his political agenda and survival. After Iowa, it looks like BS and nice sound bytes take you places though. Slick guys finish first?

“If I were elected and Congress were to pass the DREAM Act, would I veto it? The answer is yes.” [Washington Post, December 31, 2011]

RH – Same assessment as above. Sounds tough, and that’s what Romney thinks he has to sound like on immigration issues. Any reasoning he would cite, like in the first quote, would likely have no basis in reality. Nevertheless, slick guys appear to finish first.

“As President, [I] will also work to establish a policy that staples a green card to the diploma of every eligible student visa holder who graduates from one of our universities with an advanced degree in math, science, or engineering. As President, a first step that [I] will take is to raise the ceiling on the number of visas issued to holders of advanced degrees in Math, Science, and engineering who have job offers in those fields from US companies.” [Believe in America, September 6, 2011]

RH – Great idea, and sounds great.

Newt Gingrich
“I do not believe that the American people are going to tolerate going after somebody who has been here 25 years, who has a family, has children and grandchildren, belongs to a local church. What I proposed is very standard things. Control the border by January 1, 2014. Make English the official language of government. Go to a much better visa program that’s much…that makes it more desirable to visit the U.S. legally. Go to a better deportation program to move people out who shouldn’t be here.” [CBS News, December 18, 2011]

RH – Congratulations Newt. You may win the award for the most honest of this bunch. Your answer is practical and real. Be careful though, honesty may not get you too far in this race. The tougher, “law and order” talk seems to be what most of the other politicians think will win the day.

“Let me start and just say I think that we ought to have an H-1 visa that goes with every graduate degree in math, science and engineering so that people stay here.” [Republican Debate, November 22, 2011]

RH- Great idea! Sounds great.

Ron Paul
“Somebody who’s been here and it’s their country I think there should be a program to bring them into the fold…but I want it to be done systematically. I think we need more efficiency at our borders, and allow the people to come in, especially for people who can take care of themselves. But you ask about what we do with 11 million and I would say you have to work out a program of assimilation, but you can’t just say borders don’t count and people should be rewarded for breaking the law.” [Univision, October 2, 2011]

RH- same commentary as for Newt. Its honest, real talk. Not as sexy as law and order though.

“End Birthright Citizenship – As long as illegal immigrants know their children born here will be granted U.S. citizenship, we’ll never be able to control our immigration problem.” [Ron Paul 2012]

RH- whether you agree with his stance or not, he is honest and truly believes what he is saying, particularly regarding the attractiveness of US citizenship for all children born here. His blunt commentaries appear to be getting him places.

Voted “yes” on H.R. 3736, a bill that increased the number of highly skilled workers from 65,000 to 115,000 by the year 2000. [U.S. House of Representatives, September 24, 1998]

RH- consistent with earlier commentary, he is honest and realistic on this issue as well. What planet he lives on other issues, such as foreign policy, is a whole other question.

Rick Perry
“Amnesty is not on the table period. There will be no amnesty in the United States. We’re a country of law and the idea that we’re going to tell people that somehow or another that that’s all forgiven is not going to happen.” [ABC News, November 29, 2011]

“But I do think that there is a way. That after we secure that border that you can have a process in place for individual who are law- abiding citizens who have done only one thing, as Newt says, 25 years ago or whatever that period of time was, that you can put something in place that basically continues to keep those families together.” [Republican Debate, November 22, 2011]

RH – Amnesty…a word loaded with toxicity in the immigration debate. However Rick, there is already a de facto amnesty in place now, as the US government is looking the other way for the millions in the U.S. without status. True to his inner character, Rick comes off like he wants it both ways and talks from both sides. He is not brave like Newt and some of the others – who says it like it is. Too slick for his own good it seems.

“But if you say that we should not educate children who have come into our state for no other reason than they’ve been brought there by no fault of their own, I don’t think you have a heart. We need to be educating these children, because they will become a drag on our society. I think that’s what Texans wanted to do.” [Republican Debate, September 22, 2011]

RH – sounds a little braver, but he tends toward back pedaling whenever one of his controversial positions, such as this, are taken issue with. After Iowa, he seems to be on his way out anyway.

“We need highly technical, trained engineers and biomedical scientists. And a lot of times, you can’t get those people because they can’t get an H-1B visa, for instance.” [CNBC, September 29, 2011]

RH- True!

Rick Santorum
“The idea people who are here 20 or 25 years and came here illegally only committed one illegal act, well, you can’t be here and commit one illegal act because almost everything you’re doing while you’re here is doing things against the law…So we say, we should let that happen. We shouldn’t break up families. We should let them all come…This is false compassion.” [CNN, December 6, 2011]

RH – Honest and practical. No waffling, so it seems.

“First off, I’m actually for a system that allows for people to come here, if they come here on a student visa or they come here on a visa that — you know, where they’re getting some sort of higher education or they’re learning some great skills that are good and necessary for the country — my feeling is, you know, if they graduate and do well, we should — you know, we should have — actually give folks the opportunity to have a green card and to stay here and work.” [Fox News, November 29, 2011]

RH – Sounds good. Is good.

Michele Bachmann
“Well, I don’t agree that you would make 11 million workers legal, because that, in effect, is amnesty. And I also don’t agree that you would give the DREAM Act on a federal level.” [Republican Debate, November 22, 2011]

RH – She sure is honest, and she does not waffle. Is she crazy? Is there any practicality to her approach? Those are separate questions. My take on the practicality of deporting 11 million people – including placing them in removal proceedings and providing “due process”? – HA, Good luck federal government! Anyway, after IOWA, all of her talk, and my commentary, is perhaps moot.

“We think about the United States and what’s in the best interests of the United States. If we can utilize these workers, like Steve jobs wanted to, then we need to offer those visas. That will help the United States. But I don’t agree that we should make 11 million workers who are here illegally legal.” [Republican Debate, November 22, 2011]

RH – Practical and smart on the visas for professionals and skilled workers. Not so much on the other issue.

Jon Huntsman
“I think you have to take a very practical approach to having them [undocumented immigrants] wait in line. There have to be certain requirements. Language requirements. English as an official language for example. Paying back taxes, if that is applicable. There needs to be some steps along the way that would suggest that they have paid whatever price and penalty in order to come out of the shadows and to gain citizenship in this country. You have to create a system whereby you can move towards citizenship. You can’t wish people away. You can’t just use rhetoric that says we’ll ship people back.” [Think Progress, September 19, 2011]

RH – Honest and practical, except for that “line” comment.

“I believe immigration is a human as well as an economic issue, and that children of illegal immigrants shouldn’t be punished for the sins of their parents.” [CBS News, September 23, 2011]

RH – Honest and practical.

“We can’t process people. The H1B visa process is broken. We need to bring in brain power to this country to shore up our economic might. We need to bring in foreign capital to raise real estate prices as well.” [Republican Debate, September 12, 2011]

RH – Smart, practical and honest!

PUBLISHED January 4, 2012 – “IMMIGRATION LAW FORUM”
Copyright © 2012, By Law Offices of Richard Hanus, Chicago, Illinois

As of November 22, 2011, the allotment of 85,000 H-1B work visas for Fiscal Year 2012 (which includes 20,000 visas reserved for those receiving advanced degrees in the US) has been exhausted.  Thus, any H-1B petitions received by CIS after November 22, 2012 will be rejected, with all paperwork and filing fees returned to the filing party.

In the meantime, petitions involving workers that are otherwise exempt from the cap will continue to be accepted, including petitions to:

• extend a current H-1B worker’s status in the U.S.;
• change the terms of employment for current H-1B workers;
• allow current H-1B workers to change employers; and
• allow current H-1B workers to work concurrently in a second H-1B position.

Also exempt from the H-1B cap are prospective workers for various types of not for profit petitioning entities, such as institutions affiliated institutions of higher learning.  In the meantime, most parties interested in pursuing a petition for a new H-1B worker are left having to gear up for April 1, 2012, the first day an H-1B petition can be filed for fiscal year 2013, which starts on October 1, 2012.

PUBLISHED November 23, 2011 – “IMMIGRATION LAW FORUM”
Copyright © 2011, By Law Offices of Richard Hanus, Chicago, Illinois

This column is as much a warning to prospective victims as it is a source of basic immigration law information – especially for the 12- 15 million individuals living in the U.S. without immigration status.  Why a warning?  Because no matter the intelligence level of the prospective victim, the combination of his vulnerable state and the scammer’s profit motive, leads to the formation of the perfect storm in which the undocumented individual gets swindled.  The swindlers are neighborhood “notaries” or consultants, as well as even a few established attorneys.  Compared to the honest attorney who will conduct a consultation and advise the undocumented individual that no options to legalize his status exist at this time (and without a change in the law), the swindler will invent fictitious avenues toward legal status.

And the fictitious avenues sometimes will present as genuine, since after the swindled client plops down his $5,000 or $10,000 retainer, some type of approval notice may get issued by either the U.S. Department of Homeland Security/Citizenship and Immigration Services or the U.S. Department of Labor.  As the con progresses, and the swindled client further convinces himself that a bona fide service is being provided, he avoids asking and/or getting real answers to questions like:  A) “ok, yes, we have an approval on this stage of the case, but what is my end game?” or B) “when will I be issued my employment authorization, or green card?”   In the context of the scamming lawyer/consultant – client relationship, the answers to those questions – which should have been asked from the start of the relationship – are:  A) none and B) never.

An important step an undocumented, or any type of immigration law client can take to avoid getting scammed is by requesting that the attorney or service provider put in writing exactly which services are being provided and which goals are sought to be achieved.  Although a lawyer can never ethically guarantee a result in any given case, he/she certainly can confirm in writing what the client qualifies to be considered for under present law, and that such goals are viable or achievable under present law.   As to the fictitious avenues referenced above, the only way the swindled client will eventually achieve an end game, such as obtain employment authorization or green card is IF the law changes.

My guess is very few, if any, of the clients presented with fictitious avenues, would be otherwise willing to fork over tens of thousands of dollars to initiate a process if they knew the process they were initiating will only yield a result if the law changes.  It’s the “if the law changes” part that I have seen the swindling attorney purposely forget to include in his discussion with potential victims who are all too ready and willing to put money in the swindler’s pocket.

For most of the undocumented population, it’s a waiting game – a wait for some type of change in the law to allow a genuine avenue to legalize their status.  In the meantime, below is a summary of options at legalization or adjusting status for the undocumented or visa overstay under present law:

1. )  Visa Overstays May Be Able to Adjust Status if: they are the spouse of a U.S. Citizen, a parent of an adult (over 21) U.S. citizen, or child (under 21) of a U.S. Citizen.  This class of immigrant may have the option to adjust status in the U.S. without having to return to their home country for any step in the process, notwithstanding unauthorized employment or overstaying their authorized period of stay in the U.S. (does not include those entering as “crewman”, or K-1 fiancés who did not marry their petitioner).  Spouses of U.S. citizens, parents of adult U.S. citizens, and under 21 children of U.S. citizens are known as “Immediate Relatives” in immigration law talk and do not require additional legal qualification for eligibility to adjust status in the U.S. such as coverage under INA Section 245(i) – see below – to adjust status in the U.S.

Other types of non-“Immediate Relative” family based immigration applicants or employment based applicants who are visa overstays may be able to adjust their status in the U.S. but only if they were included in some sort of family or employment based immigration filing submitted prior to April 30, 2001, or January 14, 1998 - pursuant to Section 245(i) of the Immigration and Nationality Act –see below.

2)  Entered Without Inspection (EWI): If you are the spouse of a U.S. Citizen, a parent of an adult (over 21) U.S. citizen, or child (under 21) of a U.S. Citizen who entered without being inspected by an immigration official (e.g. no visa), the option to adjust status in the U.S. only exists if you were previously included in some sort of family or employment based immigration filing submitted pursuant to Section 245(i) – see below.

Other types of non-“Immediate Relative” family-based or employment-based applicants who entered without visas (EWI) may be able to adjust their status in the U.S. but only if they were included in some sort of family or employment based immigration filing submitted prior to April 30, 2001, or January 14, 1998 – pursuant to Section 245(i) of the Immigration and Nationality Act.

3) EWI’s or Visa Overstays with an employer willing to facilitate a green card process, and they are a professional and/or have some special skills that may be scarce in the U.S. labor market, an employment based immigration filing may be an option if they are grandfathered under Section 245(i). Word of warning though: most candidates for this option may very well be waiting 5 years – give or take – before any type of immigration benefit, such as an employment authorization is in sight.

4) EWI’s or Visa Overstays who are Battered Spouses or Children of U.S. citizens or residents:   whether you entered with or without a visa, or overstayed your visa, individuals who were the targets of their U.S. citizen or resident spouse’s or parent’s physical abuse or extreme mental abuse are eligible to be considered for US residence, and without having to depart the US for processing in their home country.  No 245(i) grandfathering is required for this type of immigration benefit.

5)  EWI’s or Visa Overstays who are the victims of certain types of crimes:   whether you entered with or without a visa, or overstayed your visa,  victims of certain types of crimes may be eligible for temporary status (U visa), including employment authorization, and eventually U.S. resident status.  Victims of the following types of crime will be eligible for consideration for U visa status, and eventually U.S. residence:  abduction, blackmail, domestic violence, extortion, false imprisonment, felonious assault, incest, involuntary servitude, kidnapping, manslaughter, murder, obstruction of justice, perjury, prostitution, rape, sexual assault, torture, trafficking, unlawful criminal restraint and, witness tampering – among others.  No 245(i) grandfathering is required for this type of immigration benefit.

What is Section 245(i) of the Immigration Nationality Act? Section 245(i) allows for certain otherwise ineligible visa overstay/undocumented immigrants to undergo all steps in the U.S. immigration process in the U.S. and without having to return to a U.S. consular post in their home country (aka “245(i)grandfathering”). To be “grandfathered” under Section 245(i), the applicant must have been:

a.  included in some sort of family or employmentbased immigration filing submitted prior to April 30, 2001, and they were physically present in the U.S. on December 21, 2000 OR

b.  included in some sort of family or employment based immigration filing submitted prior to January 14, 1998 (with no physical presence requirement)

Relief in Removal Proceedings: If the visa overstay or undocumented immigrant gets arrested by immigration authorities and placed in removal proceedings, options to remain in the U.S. and even be awarded permanent residence by the Immigration Court indeed are available.  Most notably, relief known as “Cancellation of Removal” allows those without status to be considered for a green card by the Immigration Court if: 1) they have been present in the U.S. for more than 10 years or more prior to being placed in removal proceedings. 2) they are of good moral character and 3) their U.S. citizen or permanent resident spouse, parent or child will suffer “exceptional and extremely unusual hardship” if they were forced to return to their home country.

For those who fear return to their home country due to persecution they might face on account of their race religion, political belief or “social group”, asylum-related relief (and eventually green card issuance) may be available from the Immigration Court.

Getting back to the discussion regarding the immigration law consultation: Sometimes the most valuable piece of information the client will pay for in the course of an immigration law consultation is that no option to legalize his status truly exists under the present law, and that for the time being, he should put his wallet away.

PUBLISHED November 9, 2011 – “IMMIGRATION LAW FORUM”
Copyright © 2011, By Law Offices of Richard Hanus, Chicago, Illinois

For most government agencies, including Department of Homeland Security’s Citizenship and Immigration Services (CIS), fiscal year 2012 starts on October 1, 2011.  Starting on that date, U.S. employers are able to benefit from a new crop of foreign workers who are issued H-1B work visas.  As early as April 1, 2011, interested employers and foreign workers have had an opportunity to start the process of accessing the annual supply of 85,000 visas – with 65,000 visas in the general supply and 20,000 reserved for U.S. graduate school degree holders – with workers then becoming eligible to commence employment in the U.S. as of October 1, 2011.

As of this writing, the supply of 20,000 visas specifically allotted for US educated advanced degree holders has been exhausted.  However, employers seeking to petition this class of worker still will have an opportunity, as CIS will dip into the general supply of 65,000 to accommodate such a request.  To date, however, the general supply of 65,000 has dwindled down to approximately 20,000.   Based on the increased demand shown for H-1B visas for the current fiscal year (as compared to demand in recent years), I would not be surprised if the general supply of H-1B’s is exhausted by mid-December, 2011, if not sooner.

As a reminder, H-1B visa eligibility is generally premised upon a bona fide job offer in a “specialty occupation” (where the attainment of a university degree is usually required), and the prospective employee must possess a degree or experiential equivalent in the field at issue.  Also, positions with a government agency or not-for-profit organization affiliated with an institution of higher learning (e.g. university) are among the type of jobs that are not subject to the H-1B cap described above.  Further, the H-1B visa cap does not impact those who already have an H-1B visa and are otherwise eligible to extend their status or change H-1B employers.

PUBLISHED October 23, 2011 – “IMMIGRATION LAW FORUM”
Copyright © 2011, By Law Offices of Richard Hanus, Chicago, Illinois

For an H-1B work visa to be issued to a foreign worker, there must be the right type of job offer from the right type of company for the right type of worker.  The right type of job offer, in general, is one that involves duties that are of a “specialty occupation” or “professional” in nature where the worker typically is required to have attained the equivalent of at least a U.S. Bachelor’s Degree to competently carry out the proposed duties.  The right type of company is one that is of a size and nature that would ordinarily have use for the proposed worker.  And the right type of worker is one who possesses the equivalent of a US bachelor’s degree in the form of education and/or experience, and with such education or experience having a correlation to the job being offered.  At present, nearly two thirds of the 85,000 supply of H-1B visas for the upcoming fiscal year continue to be available.

Over the past several years, the immigration service centers reviewing H-1B petitions have been applying a fine tooth comb in the decision making process, and below are what appear to be, rightly or wrongly, the three most common reasons an H-1B petition is denied.

1)  The position offered is not truly a “specialty occupation”. Indeed, the petition and supporting job offer may say that a 4 year university degree is a prerequisite to perform the duties set forth, and the worker may have the degree deemed by the parties to be necessary and appropriate – BUT, the officer reviewing the petition at the Department of Homeland Security/Citizenship and Immigration Services “Service Center” alleges that the position is not suitable for H-1B classification because workers without Bachelor Degrees typically fill such a position.

The employer is first notified of such an assessment in a “Request for Evidence”, where boilerplate, laundry list type language points out all the reasons the position is inappropriate for H-1B classification.  The employer though is then given an opportunity to respond and provide evidence such as a) previous company advertisements for the position where a BS or BA was listed as a requirement, b) affidavits from professional associations or colleagues in the industry confirming that a BS or BA is a standard industry requirement for such a position or c) job advertisements posted by companies of similar size and for similar positions where a 4 year university degree is listed as a requirement.  Recently, our office has had H-1B petitions for Interior Designers, Rehabilitation Manager and Quality Assurance Coordinator (Healthcare) scrutinized in this regard.  In most cases our office’s responses to Requests for Evidence in such cases have led to DHS/CIS issuance of approval notices.

2)  The position is not truly the position the petitioner claims it to be.  What? Sounds silly, right?  However, if for example, we have a company that consists of 3 or 4 employees with annual revenues of say $150,000.00 or less, and are submitting an H-1B petition for an accountant (universally recognized as an “specialty occupation” and suitable for H-1B classification), the typical DHS/CIS response will be to the effect:  come on, why in the world would this company need to employ a staff accountant at a rate of $40,000.00 per year?  Despite employer claims that the company is growing and has a tremendous horizon for expansion, DHS/CIS will second guess the plan and usually deny the petition, alleging that the position is really that of a “bookkeeper”, if that, and a position that can be carried out by a worker with far less education that a Bachelor’s Degree.

3)  The petitioning employer will not be the true employer, but instead just a company to facilitate the worker’s employment at a third party location.  This type of allegation most often rears its ugly head in the context of H-1B petitions filed by IT consulting companies looking to assign a computer programmer, software engineer or systems analyst to a third party location, or a healthcare staffing company looking to assign a healthcare professional, such as a physical therapist or occupational therapist, to a third party site.  To respond to such an allegation, the employer will usually be requested to provide documentation that unequivocally confirms the job duties and that the worker will be under the control and supervision of the petitioning H-1B employer and not some manager from the third party client/location.

As is the case with most immigration related filings, careful planning and strategizing (including deciding when not file!) will maximize the chances for avoiding a denied H-1B petition.

PUBLISHED June 30, 2011 – “IMMIGRATION LAW FORUM”
Copyright © 2011, By Law Offices of Richard Hanus, Chicago, Illinois

For most government agencies, including Department of Homeland Security’s Citizenship and Immigration Services (CIS), fiscal year 2012 starts on October 1, 2011.  Starting on that date, U.S. employers will be able to benefit from a new crop of foreign workers who are issued H-1B work visas.  As early as April 1, 2011, interested employers and foreign workers have had an opportunity to start the process of accessing the annual supply of 85,000 visas – with 65,000 visas in the general supply and 20,000 reserved for U.S. graduate school degree holders – with workers then becoming eligible to commence employment in the U.S. as of October 1, 2011.  As of this writing, more than 40,000 H-1B visas continue to be available from the general supply, and approximately 9,000 from the supply allotted for U.S. educated advanced degree holders.

Taking into account the trend from the previous fiscal year along with the plentiful supply of visas still available as of this writing, it may very well be the case that H-1B visas will continue to be available for the upcoming fiscal year throughout the spring or even summer 2012.

As a reminder, H-1B visa eligibility is generally premised upon a bona fide job offer in a “specialty occupation” (where the attainment of a university degree is usually required), and the prospective employee must possess a degree or experiential equivalent in the field at issue.  Also, positions with a government agency or not-for-profit organization affiliated with an institution of higher learning (e.g. university) are among the type of jobs that are not subject to the H-1B cap described above.  Further, the H-1B visa cap does not impact those who already have an H-1B visa and are otherwise eligible to extend their status or change H-1B employers.

PUBLISHED June 30, 2011 – “IMMIGRATION LAW FORUM”
Copyright © 2011, By Law Offices of Richard Hanus, Chicago, Illinois

We are already talking fiscal year 2012, and for Department of Homeland Security/Citizenship and Immigration Services, it starts October 1, 2010. As early as April 1, 2011, interested employers and foreign workers can start the process of accessing the 85,000 visas that will be available, with 65,000 visas in the general supply and 20,000 reserved for U.S. graduate school degree holders – with workers then becoming eligible to commence employment in the U.S. as of October 1, 2011. As of this writing, those are the numbers for the annual allotment of new H-1B visas that employers and their (prospective) foreign national employees will be scrambling for come April, 2009. 65,000 is the general supply, and an additional 20,000 are for individuals who have been awarded graduate degrees in the U.S. Unlike in years past, last year’s April 1 filing date came with far less hoopla as a result of a depressed economy and far fewer job opportunities being offered to foreign professionals. In fact, job opportunities in the H-1B context were so scarce last year that H-1B visas remained available all the way through the end of January, 2011. This scenario is in sharp contrast to the frenzy of previous years where the H-1B visa supply was exhausted within just days of April 1 – and more than 5 months before the fiscal year in question began. In those years, DHS/CIS, by the end of the first week of April, would receive 3 petitions for every H-1B visa slot available. Oh my, how times – and our economy – have changed!

If accepted and approved, an H-1B petition allows the beneficiary worker to commence work in the U.S. come the following October. With October, 2011 less than 7 months away, now is the time to start thinking about filing a petition.

As a reminder, H-1B visa eligibility is generally premised upon a bona fide job offer in a “specialty occupation” (where the attainment of a university degree is usually required) , and the prospective employee must possess a degree or experiential equivalent in the field at issue. Also, positions with a government agency or not-for-profit organization affiliated with an institution of higher learning (e.g. university) are among the type of jobs that are not subject to the H-1B cap described above. Further, the H-1B visa cap does not impact those who already have an H-1B visa and are otherwise eligible to extend their status or change H-1B employers

PUBLISHED January 26, 2011 – “IMMIGRATION LAW FORUM”
Copyright © 2011, By Law Offices of Richard Hanus, Chicago, Illinois

This past week the U.S. Department of Homeland Security/Citizenship and Immigration Services (CIS) announced the merger of the Employment Authorization Document (EAD) and Advance Parole Travel Document (AP) for certain applicants for adjustment of status applicants. Previously, CIS issued separate documents authorizing employment and international travel for eligible applicants for adjustment of status, and their issuance and renewal required two separate applications. Now, however, a single document will be issued to eligible, pending adjustment of status applicants to prove their ability to work lawfully in the U.S. as well as facilitate a return trip back into the U.S. following international travel. The document will be issued for a period of 1 or 2 years, depending on the how long the applicant’s adjustment of status application is expected to remain pending.

As a reminder, AP’s and EAD’s are available to foreign nationals undergoing permanent residence processing in the U.S. by way of the filing of Form I-485. To be eligible to file Form I-485, an applicant must be the beneficiary of a qualifying family-based, or employment-based visa petition, and where a visa is immediately available in the applicant’s particular visa category. However, applicants who are out of status for 180 days or more, at the time of the filing of their I-485 Adjustment of Status application are strongly advised NOT to travel internationally while awaiting their permanent residence processing – and even if they are issued an advance parole. For these types of out of status applicants, a 3 or 10 year bar to readmission will kick in upon their departure, leading to the likely denial of their I-485 application and non-issuance of their green card.

Lastly, as long as they are valid, EAD’s and AP’s that are not in a single document will continue to be honored for purposes of proving employment authorization or to facilitate reentry following international travel. Further, separate EAD’s and AP’s will continue to be issued to applicants under certain circumstances.

PUBLISHED February 15, 2011 – “IMMIGRATION LAW FORUM”
Copyright © 2011, By Law Offices of Richard Hanus, Chicago, Illinois

Effective November 23, 2010, filing fees for most immigration applications and petitions are set to increase, on average, some 10-15%. On the other hand, filing fees for 6 categories of applications are actually set to be reduced, including for I-129F/Petition for Fiance, I-539/Application to Extend/Change Nonimmigrant Status, N-565 Application for Replacement Naturalization/Citizenship Document and I-131 – Application for Travel Document – but only when filed for Refugee Travel Document. Also, fee waivers based on an applicant’s economic hardship will be accepted in more types of application categories.

Approximately 90% of U.S. Citizenship and Immigration Services’ budget comes from the fees it collects for the various immigration related applications and petitions that get filed each year. For fiscal years 2008 and 2009, revenues collected – according to CIS – were significantly less than what was projected, thus prompting this new increase. For certain, the decrease in filings and revenues is not based on a decrease in demand for immigration benefits, such as for green cards, just that the population of eligible immigration benefit applicants is smaller and the options available for the tens of millions of interested applicants are fewer – especially for those in the U.S. without legal status.

It is important to note that the filing fee for standard N-400 Applications for Naturalization did NOT increase, although the required biometrics fee (which must accompany many types of commonly used applications) does increase from $80.00 to $85.00. Below is the new fee schedule (MAKE SURE TO ADD THE INCREASED $85.00 BIOMETRICS FEE TO APPLICATIONS SUCH AS I-485, I-90, N-400, I-751 and several others)

PUBLISHED November 17, 2010 – “IMMIGRATION LAW FORUM”
Copyright © 2010, By Law Offices of Richard Hanus, Chicago, Illinois

Pricey filing fees for certain companies seeking to employ H-1B and L-1 workers have gotten even pricier in the past month – specifically, where the petitioning company employs 50 or more workers, and more than 50 percent of the workforce is currently on an H-1B or
L-1 visa. This new rule will add $2,000.00 to the base H-1B visa petition fee, and $2,250.00 to L-1 visa petitions. Current H-1B filing fees for mid to larger companies submitting an initial petition are $2,320.00 (now $4,320.00), and for L-1 petitions, $820.00 (now $3,070.00). Clearly the U.S. government is set on penalizing midsize to larger companies that rely heavily on foreign professional, managerial, and executive workers.

PUBLISHED August 25, 2010 – “IMMIGRATION LAW FORUM”
Copyright © 2010, By Law Offices of Richard Hanus, Chicago, Illinois