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New Affidavit of Support Requirements.

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

Question: I heard that there are new requirements for the affidavit of support requirements. Can you let me know what they are?

Answer: A person completing an Affidavit of Support (Form I-864) on behalf of an adjustment of status applicant is now only required to file one Federal income tax return, for the tax year that is most recent as of the date the Form I-864 was signed, rather than having to submit a Federal income tax return for each of the three most recent tax years.

Question: Can you clarify exactly what year you must now submit the tax returns?

Answer: For any Form I-485 filed on or after the date of this memorandum, the sponsor shall not be required to file any Federal income tax return for any year other than the tax year immediately preceding the sponsor’s signing of the Form I-864. For example, if the sponsor signed the Form I-864 after April 15, 2005, only the sponsor’s 2004 Federal income tax return would be required. However, the sponsor may file the three most recent returns if the sponsor believes that the additional returns will make it more likely that the Form I-864 will be found to be sufficient. This rule shall apply to petitioning sponsors, as well as substitute or joint sponsors signing a Form I-864 for an adjustment case.

Question: How does the officer determine the sufficiency of the I-864?

Answer: USCIS officers shall, as a general rule, determine the sufficiency of a Form I-864 based upon whether evidence shows that the annual income at the applicable threshold set forth in the Form I-864P, Poverty Guidelines, from the calendar year in which the Form I-864 was filed. Accordingly, adjudicators will determine whether the current income listed on Form I-864 is at least 125% (or 100% as applicable) of the governing threshold set forth in the Poverty Guidelines. Adjudicators will also determine whether the sponsor’s total income (line 22 on the 2004 IRS Form 1040, line 15 on the 2004 IRS Form 1040A), or adjusted gross income for those who filed IRS Form I040EZ (line 4 of the 2004IRS Form I040EZ), meets the Poverty Guidelines threshold. The adjudicator should request additional evidence (i.e., employment letter(s), pay stub(s), or other financial data) only if the tax return reflects income below the Form I-864P, Poverty Guidelines and the record does not already contain additional evidence that would establish the sponsor meets the current income requirements. The adjudicator should also request additional evidence (i.e., employment letter(s), pay stub(s), or other financial data) if there is a specific reason (other than the passage of time) to question the veracity of the income stated on Form I-864 or the accompanying document(s).

If the officer determines that the tax return and/or the evidence in the file do not establish that the sponsor meets the government Form I-864P, Poverty Guidelines threshold, the adjudicator shall request current year income information, not additional information from the year the sponsor signed Form I-864. In this situation, the sufficiency of the Form I-864 is determined based upon the additional evidence as it relates to the applicable threshold set forth in the Form I-864P from current year rather than the Form I-864P, Poverty Guidelines from the calendar year in which the Form I-864 was signed.

Question: Can each immigration office have a different policy than stated above?

Answer: Previously USCIS has permitted each local office to establish its own policy on whether to require submission of Form I-864 at the time of filing for adjustment or at the time of the adjustment interview. Effective as of now, all applicants are required to submit Form I-864 with their adjustment application.

Filed under: Affidavit of Support, Immigrant Visa, Immigration, Immigration Law, USCIS | Tagged: , | Leave a 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 »

What is Registry?

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

Question: I have been in the U.S. for over 30 years. I’m illegal here, but cannot seem to find a way to get my status. Is there anything I can do?

Answer: If you have been present in the United States since January 1, 1972, you may be eligible for the “registry” provisions of our immigration laws which would allow you to obtain lawful permanent residence even if you are illegally in the United States now, or if you initially entered the U.S. illegally.

Question: Where Can I Find the Law?

Answer: The part of the law concerning the registry provisions is located at INA §249. The specific eligibility requirements and procedures for becoming a permanent resident through registry are included in the Code of Federal Regulations (CFR) at 8 CFR 1259 .

Question: Who Is Eligible?

Answer: You are eligible to apply for permanent residence based on 8 CFR 1259 if you: Entered the United States prior to January 1, 1972; Have continuously resided in the United States since entry; Are a person of good moral character; Are neither ineligible for citizenship, except for the requirement of five years of lawful permanent residence, nor inadmissible for participation in terrorist activities, certain criminal or security grounds, or for alien smuggling and never participated in Nazi persecutions or genocide.

Any alien who has at any time engaged in terrorist activities is ineligible for registry. Further, any alien who fails to appear at a removal hearing, or who fails to depart after agreeing to voluntary departure, is ineligible for registry for a period of ten years.

Question: How Do I Apply?

Answer: You must submit a completed Form I-485 with filing fee, and a completed Form G-325A with evidence that you have continuously resided in the United States prior to January 1, 1972, to the USCIS district office having jurisdiction over the place in which you live. You must establish that you are eligible and that registry should be granted in the exercise of discretion. There is no appeal from the decision of the District Director but your application may be renewed in front of an Immigration Judge.

Question: Will I Get a Work Permit?

Answer: Applicants who are inside the United States and have filed Form I-485 (Application to Register Permanent Residence or Adjust Status) are eligible to apply for a work permit while their case is pending. You should use Form I-765 to apply for a work permit.

You do not need to apply for a work permit once you are accorded permanent resident status. As a lawful permanent resident, you should receive a permanent resident card that will provide evidence that you have a right to live and work in the United States permanently.

Question: Can I Travel outside the United States while I am waiting for my application under the registry provision to be processed?

Answer: If an alien obtains Advance Parole from the USCIS following approval of a Form I-131, he or she may travel outside of the United States and return without jeopardizing their registry application. However, any alien who has accrued more than 180 days of unlawful presence in the United States and then travels outside the United States is inadmissible for a period of 3 to 10 years. Registry applicants have, by definition, accrued long periods of time in unlawful status. If you are applying for permanent residence using the section 249 registry provisions, you should not travel outside of the United States without first obtaining advance parole from the Service, or you will be unable to return to the United States.

Filed under: Advance Parole, Immigration, Immigration Law, Registry, 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 »

Are H-1B’s and H-2B’s used up yet?

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

 Question: I have heard that H-1B’s and H-2B’s are going quickly. Are they used up yet?

Answer: The DHS recently published numbers of H-1B’s and H-2B’s currently used. The H-1B nonimmigrant visa category allows U.S. employers to augment the existing labor force with highly skilled temporary workers. H-1B workers are admitted to the United States for an initial period of three years, which may be extended for an additional three years. The H-1B visa program is utilized by some U.S. businesses and other organizations to employ foreign workers in specialty occupations that require theoretical or technical expertise in a specialized field. Typical H-1B occupations include architects, engineers, computer programmers, accountants, doctors and college professors. The current annual cap on the H-1B category is 65,000. It appears that for non advanced degree holders, the cap of about 58,000 has approved over 22,000 and has about 30,000 pending. This means there are only about 5,000 left. You should get your H-1B in right away.

However, if you have an advanced degree, there was an extra 20,000 H-1B’s allocated. For the rest of the 2005 fiscal year, there have been about 10,300 that have been approved. Thus, there is still a reasonable amount left. For the fiscal year of 2006, there have already been about 8,000 used up.

The H-2B visa category allows U.S. employers in industries with peak load, seasonal or intermittent needs to augment their existing labor force with temporary workers. The H-2B visa category also allows U.S. employers to augment their existing labor force when necessary due to a one-time occurrence which necessitates a temporary increase in workers. Typically, H-2B workers fill labor needs in occupational areas such as construction, health care, landscaping, lumber, manufacturing, food service/processing, and resort/hospitality services.

Of the 35,000 left until October 1, 2005, about 16,000 have been used. There have only been about 300 used up for the first half of 2006. Therefore, there seems to be quite of bit of H-2B’s left.

Question: Do you think there is any problem with filing an H-1B or an H-2B at this time?

Answer: You never know how soon all of the visas will be used up. There are people across the U.S. who are aware that there is a limit on these visas and are trying to get their visas in right away. Therefore, you should have your visa petition prepared right away to ensure you get in this years allotment. All kinds of status problems could occur if the allotment is used up and your stay in the U.S. expires afterwards.

Question: Should we file the H-1B and/or H-2B with premium processing?

Answer: Definitely. You never know if your application will be filed one after the last one. Therefore, to ensure your chances, pay the $1,000 premium processing fee and have peace of mind.

Filed under: H-1B, H-2B, Immigration, Immigration Law, USCIS | Tagged: , | Leave a comment »

PERM: LULAC and CSS are still not over

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

 Question: I think I’m under LULAC, but never knew I could file again. I believed I missed the deadline. Is there anything I could do?

Answer: Yes. U.S Citizenship and Immigration Services (USCIS) announced today that the filing deadline for applications for legalization under the terms of the CSS and LULAC (Newman) settlement agreements is extended from May 23, 2005 until December 31, 2005.

This is not a new amnesty program. The CSS and LULAC (Newman) settlement agreements allow for those who meet certain requirements to apply or reapply for Temporary Resident status under the 1986 amnesty program of Section 245A of Immigration and Nationality Act.

Eligible individuals may apply by submitting a Form I-687, Application for Status as a Temporary Resident under Section 245A of the Immigration and Nationality Act, and a CSS/ LULAC (Newman) Class Membership Worksheet.

Question: What are the basic requirements to be eligible?

Answer: 1) You had to live in the United States unlawfully from before January 1, 1982, to a date between May 5, 1987, and May 4, 1988, when you went to an office of the Immigration Service or a Qualified Designated entity to apply for legalization.

2) You, your parent or your spouse visited an INS office or Qualified Designated Entity between May 5, 1987, and May 4, 1988, to apply for legalization.

3) The INS or QDE told you that you were ineligible for legalization because you had traveled outside the United States without INS permission. You, your spouse or your parent returned to the United States with an immigration issued document such as a Student Visa, Visitor Visa or some other Immigration issued document.

4) You do NOT need to have previously “registered” as a LULAC class member or even had a completed application. However, you did need to go the QDE in the specified time period.

Question: What type of evidence do I need to present to win under this LULAC Settlement agreement?

Answer: Clearly, many people do not have the original documents, or even any stamped documents from Immigration. Usually, if the former INS had rejected the application because of what is known as ‘front-desking’, the person was just turned away. Thus, it is not possible in many instances for an applicant to prove that they were rejected. However, the LULAC settlement specifically states that persons who fall under this settlement may establish eligibility for legalization by way of declarations, and not only by original documents. The settlement also provides class members the right to appeal to a “special master,” a judicial officer with the authority to correct the CIS’s errors in the event the agency does not decide a class member’s legalization application promptly, fairly, and in accordance with the settlement’s guidelines.

Question: When can I apply for this?

Answer: The settlement provides that CIS must begin accepting legalization applications no later than May 24, 2004, but the government might decide to begin the one-year application somewhat earlier. This means that individuals will now have until December 2005, to apply for legalization under the settlement.

Question: Is there any other previous amnesty related provisions that this settlement agreement is applicable toward?

Answer: Actually there are others. Catholic Social Services is another program that is applicable to this settlement agreement. There are a couple of differences. First, you would have had to travel outside the U.S. without authorization after November 6, 1986. Second, you returned to the U.S. without permission.

Therefore, since it has been extended, do not let the deadline pass again if you qualify.

Filed under: CSS, Immigration, Immigration Law, immigration provisions, LULAC | Tagged: , | 10 Comments »

PERM: The Online Perm System

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

 Question: I understand that the new PERM applications can be submitted online. However, where the employer has established a sub-account for an attorney or agent is the attorney or agent permitted to submit applications on-line?

Answer: Yes, attorney or agent may submit applications under the following circumstances. An employer must complete the registration process as explained at http://www.plc.doleta.gov, including the initial log-in. During the initial log-in, the employer will change the employer’s temporary password (as assigned by the system during registration) and once logged-in, the employer can establish a sub-account for an attorney or agent. The employer will select a username for the attorney or agent, and the system will assign a temporary password. The attorney or agent will receive an e-mail with the username, temporary password, and the employer’s PIN. When the attorney or agent logs in and changes the attorney’s or agent’s password, the attorney or agent is then permitted to complete and submit applications on-line on behalf of the employer using the PIN of the employer in whose name the application is being filed.

Question: Are there any circumstances under which mailing in a labor certification application would prove more successful than electronically submitting an application on-line?

Answer: No, mailing-in an application will not prove more successful, as the mailed-in application, upon receipt at the National Processing Center, is date stamped. Until the application is data entered into the system by a data entry person (using the exact information shown on the form 9089), processing will not begin on the application. Once entered in the system, the mailed-in application receives the exact same automated analysis and manual scrutiny as an application submitted electronically. If there are two identical applications, one submitted electronically and one mailed-in, there will be no difference in how they are processed. The only difference will be in processing time; a mailed-in application will take longer, as not only mailing but also the data entry time will be involved. Remember: the on-line system will identify mistakes (e.g. entering four digits for a zip code instead of five digits) before allowing the application to be submitted, but the data entry person must enter the information exactly as shown on the application; a mistake on the form may trigger an audit or denial.

Question: Are there some tips you might have to get the process done quicker?

Answer: DOL verifies the existence of each employer that attempts to register. At first, this process went very quickly and employers received their PIN numbers and passwords sometimes within hours. Now that more employers are registering, it is taking an average of two weeks to get feedback on a registration. Because of the length of time it’s taking to register an employer, some are attempting to register multiple times, thus exacerbating the problem.

In many cases, DOL is sending back emails indicating that it cannot verify the employer’s existence and/or asking for documentation to verify that existence. DOL provided some pointers to avoid these requests or, if received, to respond to them:

• On the form, please make sure that the company’s Headquarters address is included as the company address. You can put the address of the office where the beneficiary will work in the appropriate box, but it’s the overall corporate address that is pivotal on the “existence check”.

• Avoid “doing business as (dba)” names wherever possible, and instead use the company’s legal name. The dba may complicate an existence check.

• For companies that have several EINs, please use the EIN that the company had when it filed its articles of incorporation. If a separately incorporated subsidiary is registering, do use that subsidiary’s EIN, but don’t use a different EIN if the employer is just a division, or otherwise is not a legally separate entity.

• The DOL recognizes that the Form SS-4 may not be readily available to some employers. If you’ve received a request for documentation to verify the employer’s existence that requests a Form SS-4, the DOL indicates that it will accept the employer’s most recent quarterly tax return instead. It has recently changed its requests to include that option, but if you received one of the old requests that give no alternative to the Form SS-4, please be advised that the quarterly tax return is nonetheless an option.

• To create a sub-account for an attorney, the employer must log on using the designated PIN and password and create the account.

• The employer can view all filings prepared by attorneys for which it has set up sub-accounts, but an attorney can view only the applications he or she has done, and cannot view any filings done by the employer or its other attorneys.

• Because DOL wants the employer to be answerable for the process, an attorney will need to have a separate user account and password for each of its client companies. DOL realizes the difficulties this presents in managing multiple passwords, but is insistent on this system.

• When an employer registers, it gets two emails, one providing the PIN and one providing a password. The employer is then supposed to log on and change the password to one of its own choosing. DOL notes that some employers have been simply forwarding the PIN and password to the attorney, and then the attorney logs in and changes the password. The employer then loses control of the account, as it no longer has control of the password. DOL asks that employers make the password change themselves, as DOL want the employer to maintain control of the master account.

• Some employers have been having trouble receiving the emails with the PINs and passwords because of their spam filters. Because they come in two consecutive emails from the same sender—Dept. of Labor—some spam filters clear the emails out into the spam box. This, apparently, is a particular problem with those who use AOL as their ISP. One solution DOL suggests (apart from checking your spam box) is to create a free email account on Yahoo or hotmail for this purpose and thereby bypass the AOL filters. You might also be able to turn off some of AOL’s spam blocking.

Therefore, it seems as though it might take some time to get used to, but once familiar, it should go faster.

Filed under: Immigration, Immigration Law, immigration provisions, PERM, USCIS | Tagged: , | 1 Comment »

Removal Proceedings – What is it?

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

 Question: I am now in removal proceedings. I also have many friends who are in the same type of removal proceedings. However, all of us have different situations. Under what basis can we be put into removal proceedings?

Answer: The Executive Office for Immigration Review (EOIR), an agency of the Department of Justice, oversees three components which adjudicate matters involving immigration law matters at both the trial and appellate level. Under the Office of the Chief Immigration Judge, more than 200 Immigration Judges located in 53 Immigration Courts nationwide conduct proceedings and decide individual cases. The agency includes the Board of Immigration Appeals (BIA), which hears appeals of Immigration Judge decisions, and the Office of the Chief Administrative Hearing Officer, which handles employment-related immigration matters.

Immigration Judges conduct removal proceedings, which account for approximately 80 percent of their caseload. Removal hearings are conducted to determine whether certain aliens are subject to removal from the country. Beginning April 1, 1997, the distinction between exclusion and deportation proceedings was eliminated, and aliens subject to removal from the United States were all placed in removal proceedings. Thus, the removal proceeding is now generally the sole procedure for determining whether an alien is inadmissible, deportable, or eligible for relief from removal. The Department of Homeland Security (DHS) is responsible for commencing a removal proceeding.

Removal proceedings generally require an Immigration Judge to make two findings: (1) a determination of the alien’s removability from the United States, and (2) thereafter deciding whether the alien is eligible for a form of relief from removal.

Usually at the beginning, an Immigration Judge conducts a bond redetermination hearing for aliens who are in DHS detention. The person in proceedings makes a request to the Immigration Judge to lower or eliminate the amount of the bond set by the DHS. These hearings are generally informal and are not a part of the removal proceedings. This decision can be appealed by either the alien or by DHS to the BIA.

Question: One of my friends actually already has their Green Card. Why would he be in removal proceedings?

Answer: An Immigration Judge can conducts a rescission hearing to determine whether a lawful permanent resident (LPR) should have his or her residency status rescinded because he or she was not entitled to it when it was granted. Additionally, it is possible for someone who is an LPR to commit a crime making them ineligible to keep their Green Card.

Question: What about someone who fears going back to their home country?

Answer: An asylum-only hearing will be used to determine whether certain aliens who are not entitled to a removal hearing but claim a well-founded fear of persecution in their home country are eligible for asylum. In normal circumstances, asylum claims are heard by Immigration Judges during the course of a removal hearing.

Thus, there are many different types of hearings that can be conducted. There is many times relief from removal proceedings, so you need to fight hard during the proceedings and do not let anyone walk over your rights.

 

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

PERM: More on Terrorism.

Posted on December 10, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have heard a great deal of new regulations and rules regarding anti-terrorism efforts. Have there been any new provisions recently that have been added?

Answer: Yes. If you are in Immigration Court and have submitted several different types of applications, there is a new procedure being implemented which is another layer of security checks.

Question: Which applications are applicable?

Answer: The applications are divided into two areas. First, if you apply for Asylum and Withholding of Removal. Secondly would be if you are applying for Adjustment of Status, Cancellation of Removal for Lawful Permanent Residents, Cancellation of Removal for Non Permanent Residents, Suspension of Deportation or Special NACARA Suspension of Deportation.

Question: If you are applying for the first category of Asylum and Withholding of Removal, what must you now do?

Answer: You must send certain documents now to the USCIS Nebraska Service Center. It should be entitled ‘Defensive Asylum Application with Immigration Court.’ You need to send a clear copy of the first three pages of your completed Form I-589 (Application for Asylum and for Withholding of Removal) that you will be filing or have filed with the Immigration Court, which must include your full name, your current mailing address, and your alien number (A number). Do Not submit any documents other than the first three pages of the completed I-589) and (2) A copy of Form EOIR–28 (Notice of Entry of Appearance as Attorney or Representative before the Immigration Court) if you are represented by an attorney.

Question: What will happen after these documents are sent in?

Answer: A USCIS receipt notice in the mail indicating that USCIS has received your asylum application, and an Application Support Center (ASC) notice for you and each dependent included in your application. Each ASC noticewill indicate the individual’s unique receipt number and will provide instructions for each person to appear for an appointment at a nearby ASC for collection of biometrics (such as your photograph, fingerprints, and signature). You should receive the notice within three weeks after submitting the documents to the USCIS in Nebraska. You (and your dependents) must then attend the biometrics appointment at the ASC, and obtain a biometrics confirmation document before leaving the ASC, and retain your ASC biometrics confirmation as proof that your biometrics were taken, and bring it to your future Immigration Court hearings.

Question: What is the procedure for the other applications you stated will be filed in Immigration Court?

Answer: A clear copy of the entire application form that you will be filing or have filed with the Immigration Court. (Do not submit any documents other than the completed form itself); (2) the appropriate application fee; (3) the $70 USCIS biometrics fee and (4) A copy of Form EOIR–28 (Notice of Entry of Appearance as Attorney or Representative before the Immigration Court) if you are represented. You should send it to the USCIS Texas Service Center.

Question: After you send these documents to Texas, will the same procedure be followed as with the Asylum application.

Answer: Most of it is exactly the same. However, with these applications, after you receive your biometrics appointment and get your fingerprints taken, you must file the following with the Immigration Court within the time period directed by the Immigration Judge: (1) the original application Form, (2) all supporting documentation, and (3) the USCIS notice that instructs you to appear for an appointment at the ASC.

Hopefully, this new procedure will not delay proceedings and will move efficiently through the process.


 

Filed under: asylum, Deportation, Immigrant Visa, Immigration, Immigration Law | Tagged: , , | Leave a comment »

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