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What new Bills are on the Horizon?

Posted on December 16, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have heard that there are a large number of new immigration bills that are in Congress. Can you give a summary?

Answer: Yes, there are a significant number of bills. Whether they actually become law will only be determined by time. However, it does appear that there should be a significant number of changes in the coming year. Below are just a few of the bills introduced.

The Uniting American Families Act or the Permanent Partners Immigration Act: Introduced on June 21 by Senator Patrick Leahy (D-VT), S. 1278 would provide a mechanism for U.S. citizens and lawful permanent residents to sponsor their permanent partners for residence in the United States. S. 1278 defines the term “permanent partner” to mean an individual 18 years of age or older who (a) is in a committed, intimate relationship with another individual 18 years of age or older in which both parties intend a lifelong commitment; (b) is financially interdependent with that other individual; (c) is not married to or in a permanent partnership with anyone other than that other individual; (d) is unable to contract with that other individual a marriage cognizable under the INA; and (e) is not a first, second, or third degree blood relation of that other individual. The bill is companion legislation to H.R. 3006 below.

The Unaccompanied Alien Child Protection Act of 2005: Introduced on January 24, 2005, by Senator Dianne Feinstein (D-CA), S. 119 would build upon the Homeland Security Act, which transferred the care and custody of unaccompanied alien children from the former INS to the Department of Health and Human Services’ Office of Refugee Resettlement (ORR). Among other things, the bill would ensure that unaccompanied alien children have access to counsel; give ORR the authority to provide guardians to such children; establish minimum standards for the care and custody of unaccompanied alien minors; and strengthen policies for permanent protection of unaccompanied alien children. The bill is similar to legislation that Senator Feinstein introduced in the 108th Congress.

The Civil Liberties Restoration Act: Introduced on April 6 by Representative Howard Berman (D-CA), H.R. 1502 seeks to roll back some of the most egregious post-9/11 policies and strike an appropriate balance between security needs and liberty interests. Among other things, H.R. 1502 would secure due process protections and civil liberties for non-citizens in the U.S., enhance the effectiveness of our nation’s enforcement activities, restore the confidence of immigrant communities in the fairness of our government, and facilitate our efforts at promoting human rights and democracy around the world.

The Secure America and Orderly Immigration Act: Introduced on May 12 by Senators John McCain (R-AZ), Edward Kennedy (D-MA) and others, S. 1033 would comprehensively reform our immigration laws so that they enhance our national security and address the concerns of American businesses and families. Among other things, the bill would establish a break-the-mold new essential worker visa program (the H-5A visa) while also providing a mechanism by which eligible undocumented immigrants present in the U.S. on the date of the bill’s introduction could adjust to temporary nonimmigrant (H-5B) status; promote family unity and reduce backlogs; call for the creation and implementation of a national strategy for border security and enhanced border intelligence; create new enforcement regimes; and promote circular migration patterns. House companion legislation (H.R. 2330) was introduced on May 12 by Representatives Jim Kolbe (R-AZ), Jeff Flake (R-AZ), and Luis Gutierrez (D-IL).

The Agricultural Job Opportunities, Benefits, and Security (AgJobs) Act of 2005: Introduced on February 10, 2005 by Senators Larry Craig (R-ID) and Edward Kennedy (D-MA), S. 359 would create an earned adjustment program for undocumented farm workers who would be eligible to apply for temporary immigration status based on their past work experience, and could become permanent residents upon satisfying prospective work requirements. The legislation would also streamline the existing H-2A foreign agricultural worker program while preserving and enhancing key labor protections. Representatives Chris Cannon (R-UT) and Howard Berman (D-CA) introduced a companion measure in the House (H.R. 884). The bill is similar to legislation that the two Senators introduced in the 108th Congress.

The Save America Comprehensive Immigration Act of 2005: Introduced on May 4 by Representative Sheila Jackson Lee (D-TX), H.R. 2092 would, among many other things, increase the allocation of family-based immigrant visas; provide age-out protection for children; provide earned access to legalization; provide adjustment of status for certain children; update the registry provisions; and enhance border security.

We have fought long and hard to try to get reform of unfair immigration laws, and hopefully, this will be the year that much of the positive reform happens.

Filed under: Congress, Immigration, Immigration Law, immigration provisions, USCIS | Tagged: , | Leave a comment »

What does the REAL ID Act mean?

Posted on December 16, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have heard so much about the REAL ID Act, but do not really understand what it is. Can you explain?

Answer: The REAL ID Act made two changes to INA § 242(a)(2)(B), an INA subsection added by IIRIRA that precludes federal court jurisdiction over certain discretionary decisions. One of these changes purports to expand § 242(a)(2)(B) to non-removal cases.

Courts have only recently begun to interpret the REAL ID Act.

Question: What is INA § 242(a)(2)(B)?

Answer: INA § 242(a)(2)(B), entitled “Denials of Discretionary Relief,” restricts when federal courts have jurisdiction over certain types of discretionary decisions and action by the government in immigration cases.

INA § 242(a)(2)(B) includes two subparts. The first limits federal court jurisdiction over a “judgment regarding the granting of relief under section criminal and fraud waivers, cancellation of removal or adjustment proceedings. The second subpart restricts federal court jurisdiction over “any other decision or action … the authority for which is specified under this title [Title II] to be in the discretion or the Attorney General or the Secretary of Homeland Security.” Asylum decisions are specifically exempted from this bar on jurisdiction.

For § 242(a)(2)(B) to apply, a case must fall within one of these two subsections. Each subpart has been interpreted narrowly, in accord with the specific language chosen by Congress.

The REAL ID Act also expanded the scope of § 242(a)(2)(B) so that it now applies “regardless of whether the [discretionary] judgment, decision, or action is made in removal proceedings.” Prior to the REAL ID Act, some – though not all courts had held that § 242(a)(2)(B) was applicable only in removal cases. Presumably, this amendment was intended to reverse these earlier court decisions.

Question: Do these amendments eliminate all mandamus and other types of affirmative suits in non-removal cases?

Answer: No, these changes do not eliminate all jurisdictions over mandamus and other affirmative lawsuits in non-removal cases. To determine whether jurisdiction remains available in a particular case, a practitioner may carry out a several step analysis. This analysis is essentially the same as the analysis to determine whether jurisdiction exists in a removal case involving agency discretion. Consequently, court decisions interpreting § 242(a)(2)(B) in the removal context will be helpful in determining whether the provision applies in a non-removal case.

Question: What steps are involved in determining whether a court has jurisdiction under § 242(a)(2)(B) in a removal or non-removal case?

Answer: While there are several issues in such an analysis, the first issue will be looked at in this article. INA § 242(a)(2)(B) does not apply to every immigration-related case. Thus, the first step is to determine if the case is entirely outside the reach of § 242(a)(2)(B). There are at least four general categories of cases that arguably fall outside the reach of this section.

A. INA § 242(a)(2)(B) only limits jurisdiction over certain discretionary actions and decisions. Neither this section nor the REAL ID Act stripped federal courts of jurisdiction where the government has a nondiscretionary duty to act. In mandamus cases in particular, the existence of a mandatory, non-discretionary duty on the part of the government is an essential element of the claim. Thus, mandamus actions by definition generally should not fall within the restrictions of INA § 242(a)(2)(B).

B. INA § 242(a)(2)(B) does not apply to asylum decisions. Asylum is not one of the forms of discretionary relief specifically mentioned in § 242(a)(2)(B)(i), and thus this subsection does not apply to asylum cases. Additionally, asylum is specifically exempted from § 242(a)(2)(B)(ii), and thus this subsection also does not apply to asylum cases. Consequently, § 242(a)(2)(B) should never be an issue with respect to federal court jurisdiction over asylum cases, even if the challenged agency action is a discretionary one.

C. INA § 242(a)(2)(B) also does not apply to naturalization decisions. Additionally, § 242(a)(2)(B)(ii) states that it applies to agency decisions or action, “the authority for which is specified under this title” to be discretionary. Consequently, INA § 242(a)(2)(B) should never be an issue in federal court jurisdiction over a naturalization decision, even one involving discretion.

D. INA § 242(a)(2) should not apply to S, T and U visas. While generally, this provision contains definitions that do not authorize discretion, there are a few exceptions. For example, the definition of the non-immigrant “T” visa category includes as an eligibility requirement that the Attorney General determine if the individual “would suffer extreme hardship involving unusual and severe harm upon removal.” The determination of extreme hardship has been held to be a discretionary determination. Arguably, however, the exercise of the Attorney General’s discretion with respect to a T visa would not fall within the bar to jurisdiction in § 242(a)(2)(B)(ii) because the statutory authority for this discretion is found in Title I, not Title II. The definitions of the “S” and “U” visa categories contain similar grants of discretion that fall outside the scope of § 242(a)(2)(B).

Thus, the REAL ID Act did not completely eliminate federal court jurisdiction.

Filed under: asylum, Immigration Law, immigration provisions, REAL ID Act, USCIS | Tagged: , | Leave a comment »

Can I get review of my denied case under the REAL ID Act?

Posted on December 16, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have had my case denied in Immigration Court and I have heard about the REAL ID act and am very confused if I can get some type of judicial review of my case. Can you clarify?

Answer: The REAL ID Act did not change the language of either subpart (i) or (ii) of the statute giving/denying review. Rather, the Act made two changes to the paragraph preceding these subparts. First, it specified that the phrase “notwithstanding any other provision of law” applied to “statutory and nonstatutory” law and included the habeas corpus statute, the mandamus statute, and the All Writs Act. Second, the REAL ID Act also expanded the scope of § 242(a)(2)(B) so that it now applies “regardless of whether the [discretionary] judgment, decision, or action is made in removal proceedings.” Prior to the REAL ID Act, some – though not all – courts had held that § 242(a)(2)(B) was applicable only in removal cases. Presumably, this amendment was intended to reverse these earlier court decisions.

Question: Do these amendments eliminate all mandamus and other types of affirmative suits?

Answer: No, these changes do not eliminate all jurisdiction over mandamus and other affirmative lawsuits in non-removal cases. To determine whether jurisdiction remains available in a particular case, it is necessary to carry out a several step analysis. This analysis is essentially the same as the analysis to determine whether jurisdiction exists in a removal case involving agency discretion. Consequently, court decisions interpreting § 242(a)(2)(B) in the removal context will be helpful in determining whether the provision applies in a non-removal case.

Question: What steps are involved in determining whether a court has jurisdiction under § 242(a)(2)(B) in a removal or non-removal case?

Answer: There are several items that one must look at to determine if this section applies. 1. Does the issue/case fall completely outside the scope of INA § 242(a)(2)(B)? A. INA § 242(a)(2)(B) only limits jurisdiction over certain discretionary actions and decisions. B. INA § 242(a)(2)(B) does not apply to asylum decisions.

C. INA § 242(a)(2)(B) also does not apply to naturalization decisions and D. INA § 242(a)(2) should not apply to S, T and U visas.

Question: What if the case is one that appears to have fallen under the provision not permitting discretionary review?

Answer: Again, it is necessary to do an analysis. First, has there been an actual exercise of discretion? Even where there has been an actual exercise of discretion, is this exercise of discretion the issue in the case? Is the challenged action or decision discretionary? Is the decision or action specified by statute to be discretionary? Is the grant of discretion one of pure discretion unguided by legal principles? (9th Circuit cases.)

Thus, while the REAL ID Act may seem to completely limit judicial review of cases, if you fight the matter and analyze the case, there are different ways to still get judicial review of your case.

Filed under: Case Denied, Immigration Law, immigration provisions, REAL ID Act, USCIS | Tagged: , | Leave a comment »

H-1B’s

Posted on December 16, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

The H-1B’s are about to close. Get the petition filed right now to have a realistic chance of still getting in.

Filed under: H-1B, Immigration, Immigration Law, immigration provisions, USCIS | Tagged: | 1 Comment »

What exactly is the ‘Prevailing Wage’?

Posted on December 15, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: What changes to the prevailing wage process are caused by the H-1B Visa Reform Act of 2004?

Answer: The two changes to the prevailing wage determination process for foreign labor certification due to the H-1B Visa Reform Act (effective on March 8, 2005) are: The wage required to be paid shall be 100 percent of the prevailing wage; and where the Secretary of Labor uses, or makes available to employers, a governmental survey to determine the prevailing wage, such survey shall provide at least 4 levels of wages commensurate with experience, education, and the level of supervision.

Question: What changes to the prevailing wage process are caused by the publication of the Labor Certification for the Permanent Employment of Aliens in the United States, or PERM, regulation?

Answer: The PERM regulation (effective date of March 28, 2005) modified the prevailing wage determination process in three significant ways. (1) The use of Davis-Bacon or the McNamara-O’Hara Service Contract Act is no longer controlling for prevailing wage determinations although an employer may request that either be considered as an employer-provided wage source. (2) If an employer-provided survey does not contain an arithmetic mean, and only provides a median, the median wage figure can be used for determining the prevailing wage.

Question: When and where does the employer obtain prevailing wage information when filing a PERM application?

Answer: Prior to filing the Application for Permanent Employment Certification, ETA Form 9089, the employer must request a prevailing wage determination from the State Workforce Agency (SWA) having jurisdiction over the proposed area of intended employment. The employer is required to include on the ETA Form 9089 the SWA provided information: the prevailing wage, the prevailing wage tracking number (if applicable), the SOC/O*NET(OES) code, the occupation title, the OES skill level (if applicable), the wage source, the determination date, and the expiration date.

Question: How do employers get a prevailing wage if filing an H-1B, H-1B1, or E-3 Labor Condition Application?

Answer: The Immigration and Nationality Act provides that, unlike the other labor certification programs, the employer has the option of using one of three sources: (1) requesting a prevailing wage determination from the appropriate SWA; (2) using a survey conducted by an independent authoritative source; or (3) using another legitimate source of information.

Question: How do employers get a prevailing wage if filing an H-2B temporary nonagricultural labor certification application?

Answer: Employers have the option of using one of three sources: (1) requesting a prevailing wage determination from the appropriate SWA; (2) using a survey conducted by an independent authoritative source; or (3) using another legitimate source of information. Otherwise, the prevailing wage for an H-2B application is provided by the SWA as part of the standard processing of the application.

Question: Can wage information be obtained over the telephone?

Answer: No. Prevailing wage determinations will not be provided over the phone. All prevailing wage determinations provided by the State Workforce Agencies must be in writing.

Question: Where can an employer get a prevailing wage request form from the State Workforce Agency (SWA)?

Answer: Employers must request and receive the determination of the prevailing wage from the SWA having jurisdiction over the geographic area of intended employment. Many SWAs provide prevailing wage request forms electronically through their own websites. If the form is not available electronically, the employer should contact the SWA representative and request the form be faxed or mailed.

Question: What are the primary factors to be considered in making the prevailing wage determination?

Answer: Determining the appropriate wage level depends on full consideration of the experience, education, and skills required by the employer as indicators of the complexity of the job duties, the level of judgment required and the amount of supervision involved. The step-by-step process provided in the guidance is not intended to be an automatic process. The wage level assigned to a prevailing wage request should be commensurate with the wage level definitions.

Question: How does the SWA determine the prevailing wage?

Answer: If the SWA determines the job opportunity is covered by a collective bargaining agreement (CBA) negotiated at arms length and a wage rate has been negotiated under the agreement as evidenced by information provided by the employer, than the CBA wage rate is the prevailing wage.

Question: Are the SWAs instructed to process prevailing wage determinations on a first in, first out (FIFO) basis?

Answer: SWAs generally process prevailing wage determinations on a FIFO basis.

Question: What is the average processing time for the SWA to respond to a prevailing wage request?

Answer: Although the time frames vary from state to state due to the number of requests pending at the time of submission, SWAs generally provide responses within 14 business days of the receipt of the request. If the employer provides its own survey, responses to such requests are generally done within 30 business days of the receipt of the request.

Question: How can an employer check the status of a prevailing wage request?

Answer: An employer can check the status of a prevailing wage request by contacting the SWA. However, an employer should take into consideration the fact that frequent calls to the SWA may result in more time responding to such requests rather than processing the request itself.

Question: Does the offered wage need to be included in the advertisement?

Answer: The offered wage does not need to be included in the advertisement for applications for permanent labor certification, but if a wage rate is included, it must be at or above the prevailing wage rate. The wage offer does need to be stated in the advertisements for H-2B applications.

Filed under: H-1B, Immigration, Immigration Law, immigration provisions, Prevailing Wage | Tagged: , | Leave a comment »

212(c) Deportation Relief Expanded.

Posted on December 15, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have been in the U.S. for the last 25 years and committed only 1 crime in 1996. However, I am in deportation now and they claim that I am an aggravated felon and not eligible for 212(c) relief and that I will be deported for the rest of my life. I committed the crime in August of 1996, and plead guilty the following October. Is there anything I can do to avoid deportation?

Answer: If you happen to live in the jurisdiction of the 9th Circuit you are in luck. If you live elsewhere, I would get a good immigration attorney to fight for you up to the appellate level to make the same similar arguments that were made in the newly published 9th circuit case. First, it is necessary to have a little background. In 1996, Congress passed IIRAIRA which expanded quite considerably the definition of what crimes constitute an aggravated felony. It also repealed or took away 212(c) relief. This is a type of relief whereby if a person had a certain number of years in the U.S. as a lawful permanent resident and committed a crime that was not an aggravated felony (basically any crime that they received less than five years of jail time), they could apply for this relief in deportation proceedings. If they won, they would get their Green Card back and could remain in the U.S.

From 1996 until sometime in 2001, every court was denying 212(c) relief because it was repealed by IIRAIRA. However, the Supreme Court of the United States came out with a case called St… Cyr. Which essentially stated that it was unconstitutional to retroactively apply IIRAIRA to these people. It stated that if someone PLEAD guilty before April of 1996, that they could now apply for 212(c).

While St.. Cyr was a great case, it left a group of people out of its ruling that were similarly situated, but did not fall under the exact parameters of this case. It was those people who COMMITTED the crime before the passage of IIRAIRA, but were CONVICTED after the passage. In these cases, these people for all these years have not been eligible for 212(c) and have been deported for the rest of their lives.

Question: What did this new case rule?

Answer: Cordes v. Gonzales held that post-IIRIRA case law (namely INS v. St. Cyr) limiting the availability of §212(c) relief, to legal permanent residents who had not committed deportable offenses at the time of their conviction offends equal protection when §212(c) is available to similarly situated permanent residents who committed deportable offenses at the time of their conviction. The “only discernible difference” between the two groups, the court said, is that “those entitled to section 212(c) relief faced deportation at the time they entered their guilty pleas.” “This difference, however, is ‘irrelevant and fortuitous’ since the [immigrant in this case] quite obviously faces deportation now,” the court said. The court also found there is no rational basis for the disparate treatment of lawful permanent residents who are eligible for §212(c) relief under St. Cyr based on the “ironic fortune of facing the prospect of deportation at the time that they entered their guilty pleas” and permanent residents, like Petitioner, who are not eligible simply because their crime was not serious enough to render them deportable at the time they pled guilty. The court said:

“Allowing permanent residents who have committed worse crimes than Cordes to apply for section 212(c) relief, while denying the same opportunity to Cordes, does not achieve Congress’ express purpose behind the expanded definition of aggravated felony and its retroactive application: to expeditiously remove criminal aliens and make it more difficult for them to obtain relief from removal. Indeed, the disparate grant of section 212(c) relief here does not increase the total number of criminal aliens subject to removal, as Congress intended, but rather perversely increases only the number of less dangerous criminals subject to removal.”

Thus, this case now opens up the possibility of applying for 212(c) relief to those previously not eligible (at least in the 9th circuit court of appeals) and gives a much better fighting position to those in other jurisdictions to fight on this same basis.

Filed under: 212(c), Deportation, Immigration, Immigration Law, immigration provisions | Tagged: , | 2 Comments »

Can I get a new visa in Mexico?

Posted on December 15, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I came here on an F1 Visa and later applied for a change of status to H-1B. However, I have been told that if I go back to the Philippines, that I must have an interview at the U.S. Embassy in the Philippines which could be denied (even though I was approved for the change of status.) Is there any way to get a visa in Mexico without having to go through the interview process in the Philippines?

Answer: There are several qualifications to be able to go to Mexico. Applicants seeking to renew their C1/D, D, F, H, I, J, L, M, O, P and R visas, if the initial visa was issued in the applicant’s home country or at one of the border posts in the past few years.

Applicants for visas that reflect a change of status (e.g., F1 to H1B or F1 to J), provided the applicant originally entered the US in other than B status and possesses an original change of status notice (I-797) from the Department of Homeland Security.

Applicants possessing B visas issued in their home country with annotations showing intent to change visa status, such as “Prospective Student.”

Question: Who Cannot Apply in Mexico?

Answer: Applicants who entered the U.S. with a B visa issued in their home country that changed status to another visa category, e.g., F, J, H1B, but the visa did not have an annotation indicating intent to change status.

Applicants who have been out of status in the U.S. having violated the terms of their visas or having overstayed the validity indicated on their I-94s.

A, B, E, G and Q visa applications, including renewals are not accepted from Third Country Nationals (TCN) that are not resident in the appropriate consular district.

Citizens of Iran, Sudan, Libya, Iraq, North Korea, Cuba and Syria.

Question: How can I go about making an interview appointment.

Answer: You can actually make it online at the website available 24 hours a day, 7 days a week at http://www.visa-usa.com.mx. In order to use the service the applicant must purchase a PIN for US$10.00 payable by Visa or Mastercard. Please note that the PIN will expire 10 days after the appointment date. If an appointment is not scheduled, the PIN will expire 90 days after purchase. The PIN provides for 3 scheduling opportunities so that an applicant can schedule an appointment and reschedule it up to 2 additional times if necessary. Appointments cannot be changed or cancelled within 5 business days of the appointment date.

For further information the US Embassy Mexico Customer Service Center is available Monday through Friday from 7am to 9pm Central and Saturday and Sunday from 9am – 3pm Central. There are several payment options for accessing the Customer Service Center, including a new option to pay by Visa or MasterCard via a toll-free number from the United States which is 1-900-476-1212 with a cost of US$1.25 per minute.

 

Filed under: H-1B, Immigration Law, immigration provisions, Third Country National (TCN), USCIS | Tagged: , | Leave a comment »

The New Year’s Hope for Immigration

Posted on December 15, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have been fighting my case for some time and yet do not have anything. What can I do?

Answer: As the year comes to an end, you need to try to give thanks for what you do have and then start again after the New Year. I am sure that you can appreciate and understand that practically everything is getting more difficult at Immigration. Whether your case is in Immigration Court, on Appeal to the Board of Immigration Appeals or the Circuit Courts or in front of USCIS, things are taking longer. Whether you have a Labor Certification or are applying for a Religious Visa, or a multitude of other types of visas, everything has gotten harder. Whether you are applying for a particular kind of Waiver or relief in Immigration Court, the evidence needed to present is much more than it used to be.

Therefore, you must keep fighting and you must keep your hopes up high. No matter how hard it is to get what you want from Immigration, you can always make a better case than before and you can always submit more evidence. We as a people cannot let the forces at Congress, USCIS, BICE, BCBP, and DOL or any other government agency drive immigrants and nonimmigrants away. If we permit the forces against the natural flow of immigration to win, then the United States will become the opposite of a land of dreams. It will become a land that will become unwelcoming.

As an immigration attorney, I am committed to keeping the fight going. Since IIRAIRA passed in 1996, lawyers across the U.S. have fought against provisions that were hurtful and spiteful to immigrants. Slowly, bit by bit, we have had successes to show that certain parts of legislation aimed against immigrants were unfair or unconstitutional. Now, there are more cases in Circuit Courts across the U.S. that are immigration related than ever before. The Circuit Courts are inundated with immigration cases because we must keep appealing and keep fighting what are laws that are aimed to deprive the immigrant of their dreams. If we give up, then we are validating the unfair laws, the discrimination, and the laws that will keep immigrants out of the U.S.

Therefore, do not despair that it is taking a long time to resolve your visa or your status. Keep in mind that there are multitudes of people in a much worse situation than you. There are people whom did not have anyone to fight for them and have been deported; had their appeals denied; had their Labor Certifications denied or had their relief denied. However, as long as you have an immigration attorney fighting for you, keep up your hope. It is only the fighting by that immigration attorney and other immigration attorneys across the country that will eventually prevail against antiquated laws and the discrimination against immigrants that exists by some of Congress.

It is almost New Year’s. Let’s give thanks for our health and our family. Let’s give thanks that we are still in the U.S. fighting to stay and fighting to get what is deserved. Let’s look at the people who did not win and hope that someday they have a successful return to the U.S. Hope is a powerful emotion and all of us can have hope to get what we eventually want.

I would like to wish all of my readers a Happy and Prosperous New Year’s and a hope that next year will give each and everyone of you prosperity and happiness.

Brian D. Lerner is an Immigration Attorney Specialist. This firm does every aspect of immigration law including family and employment based petitions, deportation defense and criminal related immigration issues, asylum, naturalization, appeals, nonimmigrant visas, immigrant visas, and all other areas of immigration law. An appointment can be made by calling    (866) 495-0554    or    (562) 495-0554   . The Firm website is www.californiaimmigration.us.

Filed under: Congress, Immigration, Immigration Law, immigration provisions, USCIS | Tagged: | Leave a comment »

I AM A PERMANENT RESIDENT… HOW DO I…GET A RE-ENTRY PERMIT?

Posted on December 15, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I need to leave the U.S. and am wondering if there is anything I need to do. Can you help?

Answer: As the Holiday Season approaches, it is important for Permanent Residents to review the rules and regulations regarding travel outside of the United States and proper procedures for obtaining a Reentry Permit. A re-entry permit can help prevent two types of problems: (1) Your Permanent Resident Card becoming technically invalid for re-entry into the United States (U.S.), if you are absent from the U.S. for 1 year or more. (2) Your U.S. permanent residence being considered as abandoned for absences shorter than 1 year, if you take up residence in another country.

A re-entry permit establishes a presumption that you did not abandon status, and it allows you to apply for admission to the U.S. after traveling abroad for up to 2 years, without having to obtain a returning resident visa. Re-entry permits are normally valid for 2 years from the date of issuance.

You may also want to get a re-entry permit if you plan on traveling outside the U.S. and cannot, or do not wish to get a passport from your home country. Many countries throughout the world may allow you to use a re-entry permit much like you would use a passport–placing necessary visas, and entry and exit stamps in the permit–so you may use it as your main travel document. Be sure to check with the country(ies) you plan on visiting about their requirements before you travel.

Question: What will happen if I do not apply for a re-entry permit before I travel outside of the U.S.?

Answer: If you are a permanent resident who plans to travel outside of the U.S. for one year or more, it is important that you apply for a re-entry permit before you depart the U.S. If you stay outside of the U.S. for one year or more and did not apply for a re-entry permit before you left, then you may be considered to have abandoned your permanent resident status and may be refused entry into the U.S. if you try to return. If you are in this situation, you should try to apply for a returning resident visa.

Question: Can I apply for the re-entry permit and then leave, even though I don’t have the re-entry permit in my possession yet?

Answer: U.S. immigration law does not require that you have the re-entry document in your possession when you depart, but it does require that you apply for the permit before you leave the U.S. It is possible to send your re-entry permit to the U.S. Consulate or Embassy in the country you plan on visiting, but you’ll need to specifically request this when you file your I-131. If you choose this option, you should contact the U.S. Consulate or Embassy in the country you plan on visiting when you arrive, to let them know how to contact you while you are in that country. The U.S. Consulate or Embassy may then contact you if your application is approved and your permit has arrived there.

If you are planning to use the re-entry permit as a passport, then you will need to wait for it before leaving the U.S. If you cannot wait, you may want to contact the consulate of the country you are planning to visit to find out if you can use other documents to enter.

Question: How do I get a re-entry permit?

Application: If you want to get a re-entry permit, file Form I-131, Application for Travel Document. You should file this application well in advance of your planned trip.

Filed under: Immigration Law, immigration provisions, LPR, Re-entry Permit, USCIS | Tagged: , | 1 Comment »

Why can’t I file My Adjustment?

Posted on December 14, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have just filed under the PERM program and it was very fast. In fact, it only took two weeks after filing. Now I was prepared to file for my Adjustment of Status application, but am told I cannot. What is going on?

Answer: The U.S. Department of State (DOS) has released its monthly Visa Bulletin for July 2005. This is a document which tells us which categories of employment based visas are current and which are not current. It basically lets us know what the processing priority date is. As of July 1, 2005, the third employment-based immigrant visa categories for professional workers, skilled workers, and unskilled workers will have reached their annual limits, and no further allocations of visas in these categories will be possible for citizens of any country through the end of 2005 fiscal year (FY 2005), which ends on September 30, 2005. With the start of the new fiscal year on October 1, 2005, immigrant visas will once again become available in these categories, but it is not possible to predict at this time what cut-off dates the DOS will impose. When retrogression occurs, the adjustment can no longer be filed.

Question: So what is the priority date that is being processed?

Answer: Note that through June 30, 2005, the cut-off date for professional and skilled workers is June 1, 2002; the cut-off date for unskilled workers from all countries is January 1, 1999. This means that you would have needed a Labor Certification priority date before that time. As of now, those categories are ‘U’ or unavailable.

Basically, individuals approved I-140 petitions in the third employment-based preference category for professional and skilled workers may apply for adjustment of status to permanent residence or for immigrant visas through June 30, 2005 only if their priority dates were before June 1, 2002. Adjustment applications received at a U.S. Citizenship and Immigration Services (USCIS) service center on or before June 30, 2005 with the above met criteria are fine. Concurrent filings of the I-140 and adjustment applications were also permissible through June 30, 2005, provided the individual has a current EB-3 priority date for which an I-140 petition has not yet been filed. Again, such cases must have been received at the service center by June 30, 2005.

Question: What happened after June 30, 2005?

Answer: After June 30, 2005, the USCIS will reject all I-485 adjustment applications for third preference workers unless they are for occupations on the Department of Labor’s Schedule A. Individuals who are applying for immigrant visas abroad must have obtained their visas by June 30, 2005.

Recent legislation provided for the recapture of 50,000 employment-based immigrant visa numbers that were unused in FY 2001 through FY 2004. Such numbers are to be made available to employment-based immigrants described in the Department of Labor’s Schedule A and their accompanying spouses and children. Schedule A applies only to professional nurses, physical therapists, and certain aliens of exceptional ability in the sciences or arts. The Schedule A category is now current, meaning that immigrant visa numbers are available to Schedule A workers. The DOS estimates that immigrant visa numbers for Schedule A beneficiaries should be unaffected by the lack of professional and skilled worker EB-3 numbers for the foreseeable future.

With regard to properly filed adjustment applications (whether filed alone based on an approved I-140 petition or concurrently filed with an unapproved I-140 petition), such applications will be held in abeyance for the foreseeable future once EB-3 numbers retrogress on July 1. However, applicants will be entitled to employment authorization documents (EADs) and advance parole while their adjustment applications remain pending.

Filed under: Immigration Law, immigration provisions, PERM, Retrogression, USCIS | Tagged: , | Leave a comment »

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