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    Published on 09-22-2014 01:59 PM

    Role of Medical Hardship in Obtaining Approval of Form I-601A Application for Provisional Unlawful Presence Waiver

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    Since March of last year, when USCIS began allowing individuals to apply for waivers of unlawful presence, our offices have been applying and successfully obtaining these waivers on behalf of our clients. Each case we have presented has had some element of medical hardship, although not necessarily medical hardship as we would think of it in the traditional sense. We want to share with other practitioners our experience with cases involving mental health hardship, a unique case involving substance abuse as a medical hardship, and cases involving what most would consider very minor medical ...

    Published on 09-19-2014 12:19 PM

    Immigrant Women in the United States: A Portrait of Demographic Diversity

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    There are more than 20 million immigrant women and girls in the United States today, and they are a formidable presence in U.S. society and the U.S. economy. Immigrant women come from every corner of the globe and slightly outnumber immigrant men. They are more likely than men to come to the United States through the family-based immigration system, and nearly half are naturalized U.S. citizens. More than a quarter of immigrant women have a bachelor’s degree or more education, with women from India being the most highly educated, followed by those from the Philippines and China. Foreign-born women account for 15 percent of all employed women over the age of 16 in the United States. In fact, women from the Philippines, El Salvador, Vietnam, the Dominican Republic, and Guatemala have higher rates of participation in the labor force than native-born women. Immigrant women work in every occupation, with one-third being in management and professional occupations, while nearly a third work in service occupations and under a quarter in sales and office occupations. Despite their hard work and educational achievements, immigrant women earn less than foreign-born men, and less than native-born men or women. Given their numbers and diversity, however, the scale of their economic contributions cannot be denied.

    Mexico is the Single Largest Country of Origin for Female Immigrants

    • Mexico accounted for more than one-quarter (26 percent) of all foreign-born females in 2012, followed by China at 6.1 percent, the Philippines at 5.3 percent, and India at 4.5 percent {Figure 1}.
    • In a sign of their diverse range of national origins, more than two-fifths (or 42.9 percent) of foreign-born females came from countries other than the top 10 {Figure 1}.

    Figure 1: Female Foreign-Born Population by Country of Origin, 2012

    Immigrant Females Slightly Outnumber Immigrant Males

    • There were 20.9 million female immigrants in the United States in 2012, accounting for just over half (51.3 percent) of the total foreign-born population. Similarly, females accounted for roughly half (50.7 percent) of the native-born population.
    • Immigrants accounted for slightly more than 13 percent of the female population.
    • Males outnumbered females among immigrants from Mexico, India, El Salvador, and Guatemala {Figure 2}.
    • Among immigrants from China, the Philippines, Vietnam, the Dominican Republic, Cuba, and Canada, females outnumbered males {Figure 2}. 

    Figure 2: Foreign-Born Population by Gender & Select Countries of Origin, 2012

    • The Pew Hispanic Center estimates that 4.1 million unauthorized-immigrant women comprised approximately 39 percent of the adult unauthorized population in the United States in 2008. This is in line with a 2009 survey of immigrant women by New America Media, which found that 35 percent of respondents identified themselves as undocumented.

    Immigrant Females Are More Likely Than Males to Come to the United States Through the Family-Based Immigration System

    • Data from the Department of Homeland Security (DHS) indicate that female immigrants are more likely than male immigrants to come to the United States through the family-based class of admissions, rather than through employment {Figure 3}.
      • In Fiscal Year (FY) 2012, 106,458 females obtained legal permanent resident (LPR) status under family-based “preference” categories, compared to 95,554 males. Likewise, 287,926 females obtained LPR status because they were an immediate relative of a U.S. citizen, compared to only 190,839 men.
      • In contrast, 73,312 men obtained LPR status under employment-based categories, compared to 70,684 women.

    Figure 3: Foreign-Born Females Who Obtained LPR Status by Class of Admission, FY 2012

     

    Immigrant Females from Vietnam and the Philippines Have Particularly High Naturalization Rates

    Published on 09-18-2014 03:23 PM

    New Definition of Dependent in Canadian Law

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    ‘DEPENDENT’ REDEFINED

    Effective August 1, 2014, the definition of the term ‘dependent’ has changed. Dependents are those people allowed to accompany a principal applicant who is approved to reside in Canada permanently or temporarily.

    The Old Law

    Until the change, the law has provided that a dependent could be:

    • An unmarried child of the principal applicant who is under the age of 22 (as of the date of application)
    • An unmarried financially dependent child of the principal applicant, who is 22 or older, if the child has been continuously in school to the point of visa/status issuance, or
    • A financially dependent child of the principal applicant, who is 22 or older, if the child is unable to support him/herself due to a mental or physical condition (as of the date of ...
    Published on 09-17-2014 02:11 PM

    Canadian Immigrants in the United States

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    September 15, 2014 Spotlight

    Visit the Data Hub’s collection of interactive remittances tools, which track remittances by inflow and outflow, between countries, and over time.

    Sources

    Department of Homeland Security, Office of Immigration Statistics. 2012. Yearbook of Immigration Statistics. Available Online.

    Dion, Patrick and Mireille Vezina. 2010. Emigration from Canada to the United States from 2000 to 2006. Statistics Canada, Canadian Social Trends 90. Available Online.

    Finnie, Ross. 2004. Who Moves? – A logit Model Analysis of Inter-Provincial Migration in Canada. Applied Economics 36 (16): 1759-79.

    Gibson, Campbell J. and Emily Lennon. 1999. Working Paper No. 29, Historical Census Statistics on the Foreign-Born Population of the United States: 1850 to 1990. ...

    Published on 09-16-2014 02:13 PM

    The Family That Is Counted Together Stays Together: How To Eliminate Immigrant Visa Backlogs

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    There is nothing in the Immigration and Nationality Act that requires each derivative family member to be counted on an individual basis against the worldwide and country caps.  That being so, President Obama tomorrow can issue an executive order providing that this long-established practice be stopped.  That single stroke of the pen would revolutionize United States immigration policy and, at long last, restore balance and fairness to a dysfunctional immigration system badly in need of both. If all members of a family are counted together as one unit, rather than as separate and distinct individuals, systemic visa retrogression will quickly become a thing of the past.

    We proposed this idea in our 2010 article The Tyranny of Priority Dates  long before it achieved the intellectual acceptance in many quarters that it now enjoys. We are pleased to now find that President Obama is considering this proposal as part of the package of administrative reform measures he will unveil before the end of this year. That this is so suggests the broad possibilities for change when the vigorous and disciplined exercise of executive initiative allows genuine progress to overcome the paralysis of political stalemate.

    We know of no explicit authorization for derivative family members to be counted under either the ...

    Published on 09-15-2014 03:02 PM

    Sponsored Immigrant's Unjust Enrichment: Is There A sixth Way To Cut-off A Sponsor's Obligation Under The Affidavit Of Support (Form I-864)?

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    Sponsored Immigrant's Unjust Enrichment: Is There A sixth Way To Cut-off A Sponsor's Obligation Under The Affidavit Of Support (Form I-864)?

    Affidavit of Support under Section 213A of the Immigration and Nationality Act (INA) is required for most family-based and some employment-based immigrants to show that they have adequate means of financial support and are not likely to become public charge. Immigrants who are deemed likely to become public charges may gain admission to the United States if a sponsor signs United States Citizenship and Immigration Services Form I-864, Affidavit of Support, thereby promising to maintain the sponsored immigrant at no less than 125% of the Federal Poverty Guidelines for the immigrant’s household size. See 8 CFR § 213a.2(c)(2). The Sponsor’s promise to maintain the immigrant is intended not only to protect the immigrant from poverty, but to protect the Government from a public burden.

    Form I-864 is a “legally binding contract” between the Sponsor and the U.S. Government, which can be enforced by the onsored immigrant. Note that the Sponsor’s support obligation begins not just by signing the Form I-864. It begins when the immigration officer or the immigration judge grants the immigrant’s application for admission as an immigrant or for adjustment of status on the basis of an application for admission or adjustment that included an Affidavit of Support. See 8 CFR § 213a.2(e)(1).

    As stated in the regulations there are only five (5) events which could end Sponsor’s obligation. It is important for the Sponsor to note that his/her obligation ends in the event the sponsored immigrant: (1) becomes a U.S. citizen; (2) works (or can be credited with 40 quarters) as defined by the Social Security Act; (3) no longer has lawful permanent resident status and permanently leaves the United States; (4) obtains in a removal proceedings a new grant of adjustment of status as a relief from removal; ...

    Published on 09-12-2014 11:32 AM

    Canadian Permanent Residence: Consider Action Now or Face Restrictions in 2015

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    Reprinted with permission.

    Citizenship and Immigration Canada (CIC) has announced that effective January 2015, Canada’s permanent residence system will undergo a complete overhaul, and will work on an ‘express entry’ model. This will have serious ramifications for foreign workers in Canada wishing to become permanent residents (or independent applicants abroad), as well as for employers in Canada for whom prospective applicants already work, as set out below.

    Background

    Currently, there are essentially three programs by which skilled workers can seek permanent residence (in addition to provincial programs). Briefly, these programs are:

    ...
    Published on 09-12-2014 11:30 AM

    September 10, 2014 USCIS EB-5 Stakeholder Meeting Summary

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    September 10, 2014 USCIS EB-5 Stakeholder Meeting Summary

    Mona Shah, Esq.

    Yi Song, Esq.

    Today’s EB-5 Stakeholder’s Meeting (held on September 10, 2014), in Washington, DC. was the first EB-5 Stakeholder’s Meeting following the State Department’s critical announcement last month, relating to the unavailability of current visas for mainland Chinese nationals.

    Seasoned practitioners, eager for clarification on pressing issues such as the impact of the visa backlog, had high expectations of the event. Below is a summary of the meeting.

    EB-5 Program Updates

    The Chief of the Immigrant Investor Program Mr. Nicholas Colucci provided the program updates. USCIS as promised continued to hire and train adjudicators. Currently USCIS have 83 full-time adjudicators on board and another 10-12 new employees scheduled to start at the middle of October. The new adjudicators will review the incoming I-526 and I-829 petitions. The Service plans to have another round of recruitment. The staffing goal is to have ...

    Published on 09-11-2014 04:43 PM

    The Impact of EB-5 Quota Backlogs on Chinese Families

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    September 8, 2014

    In recent times, we have published two blogs and one Client Alert on the impending EB-5 quota backlogs for investors born in mainland China. If anyone reading this blog has not read those analyses, they can be found at www.eb5immigration.com.

    The purpose of this blog is to highlight what this means to families with children and to discuss the likelihood that the EB-5 quota backlog problem will be resolved by the U.S. Congress.

    In order to understand the impact of an EB-5 quota backlog for a Chinese family, it is necessary to make reference to the Child Status Protection Act. The Child Status Protection Act was passed by the U.S. Congress to prevent a child from turning 21 (and therefore becoming ineligible to immigrate with his or her ...

    Published on 09-11-2014 04:16 PM

    Holding The Senate Is The Goal, But Could President Obama Be Wrong About The Means To Do It?

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    This writer has continually stated that keeping the Senate is the goal.1 Republican dominated agenda for 2015 and 2016. This nation cannot afford 2 years of agenda items led by rolling back or repealing the Affordable Care Act (ACA), attempts to impeach the President for future executive actions, or congressional discussions on blameworthiness in Benghazi. Any immigration reform written by a Republican controlled Senate and House would be lopsided towards enforcement with minimal benefits to the undocumented. The bright hope of many, S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, passed by the Senate last year, will expire as active legislation at the end of this Congress in December. Legislators will have ...

    Published on 09-10-2014 03:30 PM

    Moving H-1b Employees to a New Location

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    On October 7, 2011, U.S. Citizenship & Immigration Services (“USCIS”) released new instructions to accompany Form I-129, Petition for Nonimmigrant Worker. The I-129 form is used when an employer petitions USCIS to sponsor an H-1b worker. The new instructions require that the petitioning employer state the basis upon which the H-1b classification is sought. An employer can respond in one of two ways: (1) the classification is based on a non-material change in a previously approved employment, or (2) the classification is accompanied by an amended petition that will notify USCIS of a material change to the original application. While there are a number of changes that can affect an employee’s status, this article will only address situations where an organization moves an H-1b employee from one location to another. It will begin by providing an overview of the government entities that are involved in determining whether to allow an organization to hire a temporary foreign worker and whether to grant that individual H-1b status. Next, the article will provide a step-by-step guide that should be followed when an H-1b employee moves from one job site to another. Finally, it reviews the different positions that the Department of Labor (“DOL”), USCIS, and the Department of State (“DOS”) take in regards to whether or not a change in job location is a material change that would require an amended petition. The article concludes that employers should ensure that they are filing new labor condition applications (“LCA”) when employees who hold H-1b status move from one job location to another. In regards to whether or not an amended petition should be filed, employers should carefully weigh the benefits and risks in filing an amended petition when a change in job location occurs to determine an appropriate course of action. However, if the employee is planning on attending a visa stamping appointment at a U.S. Consulate, employers should file an amended petition because the DOS takes the position that a change in job location is a material change that would require an amended petition.

    A. Government organizations that are involved in the H-1b process

    There are three government organizations that play a role in the H-1b application process. The DOL considers the LCA.1 The LCA serves two purposes: (1) ensuring that U.S. ...

    Published on 09-10-2014 02:16 PM

    Is the Visa Waiver Program as secure as it is supposed to be? By Nolan Rappaport

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    The Visa Waiver Program (VWP) began 28 years ago as the Visa Waiver Pilot Program.[i] It was established to promote the effective use of government resources and facilitate international travel without jeopardizing United States security. It appears to be facilitating international travel, but opinions differ on whether it is doing it without jeopardizing United States security.

    The VWP allows nationals from designated countries to enter the United States and stay for up to 90 days without obtaining a visa. In FY2012, it allowed 19.1 million nonimmigrant visitors to enter the United States without visas.[ii] The following countries participate in the program.[iii]

    Is VWP a gaping hole in United States border security?

    Some people describe the VWP as a gaping hole in our border. They emphasize that the questions on the very short electronic application form that foreign visitors fill out to participate in the program just requires demographic and contact information. Once the applicant has completed this online application and received approval, he/she just needs a valid passport from one of the VWP countries. The only remaining barrier to entering the United States is the U.S Customs and Border Protection (CBP)[iv] officer at the port of entry who stamps the passport after asking a few questions.[v]

    The CBP officer’s inspection of a VWP passenger is very brief. It usually lasts no longer than a minute. The officer makes a cursory check of the traveler’s documents, checks the Interagency Border Inspection System (IBIS), and enters the foreign visitor into the United States Visitor and Immigrant Status Indicator Technology (US-VISIT) system. The US-VISIT system uses biographical (e.g., passport information) and biometric identification (finger scans and digital photographs) to check the VWP alien’s identity. The CBP officers at the border collect the following information on aliens entering under the VWP: name, date of birth, nationality, gender, passport number, country of issuance, a digital photograph, and prints for both index finders. If the CBP officer is suspicious that the VWP alien may be inadmissible, he/she can refer the traveler for a secondary inspection. Secondary inspections are more thorough. Aliens in secondary inspections are questioned extensively, travel documents are further examined, and additional databases are queried.[vi]

    Other people are not so concerned about the possibility that terrorists will use the VWP program to enter the United States. Janice Kephart, founder and CEO of the Secure Identity and Biometrics Association and former counsel to the 9/11 Commission thinks this is less likely because of reforms implemented on the recommendations of the 9/11 Commission. She says that if al-Qaeda or the Islamic State wants to enter the United States, they probably would choose a land border such as at the one with Mexico where they could cross anonymously and unofficially.[vii] Although an entry without inspection across the southwest border almost certainly would be preferred by a terrorist whose identity is known to American authorities, or one who is smuggling weapons or explosives into the country, it would be much easier, and certainly more pleasant, to enter at an official Port of Entry (POE) with a visa or through the VWP.

    Would it be better to require every foreign visitor to have a visa?

    Aliens who are not citizens or nationals of a VWP country generally need a visa to enter the United States temporarily for business or pleasure, and this is a more involved process than the one for alien visitors from a VWP country. First, the person seeking the visa must complete an online visa application, Form DS-160, which among other things requires the applicant to upload a photograph of himself/herself.[viii] If the applicant is between the ages of 14 and 79, an interview is required. In addition to bringing the required documentation (passport, Form DS-160 confirmation, and application fee payment receipt), additional documentation may be required to establish such things as the purpose of the trip, evidence of intent to depart the United States at the end of the trip, and evidence of ability to pay all costs of the trip. During the interview, a consular officer will determine whether the applicant is qualified to receive a visa, and, if so, which visa category is appropriate. Then the person’s fingerprints are taken with digital fingerprint scans. Other requirements may apply depending on the circumstances of the individual applicant and the requirements of the consulate office at which the interview is being conducted. This clearly has security advantages over the VWP program, but do these advantages make a difference? Maybe, but it is a certainty that just requiring every foreign visitor to have a visa will not prevent terrorists from getting into the United States. All of the 9/11 hijackers had visas, and they used them to enter at official POEs.[ix] In fact, they used these visas to enter the United States a total of 33 times.[x]

    Modernizing the VWP

    Section 711 of the Implementing Recommendations of the 9/11 Commission Act mandated modernization of the VWP. Section 711 begins by stating that it is the sense of Congress that the United States should modernize and strengthen the security of the VWP by extending visa-free travel privileges to nationals of foreign countries that are partners in our war against terrorism. This partnership should include bilateral cooperation on critical counterterrorism and information sharing initiatives. Section 711 also requires the development of an electronic system for travel authorization (ESTA) that would electronically collect the information necessary to determine in advance of departure whether the foreign travelers are eligible to participate in the VWP. It also would determine whether there would be law enforcement ...


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