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TPS HAS BEEN EXTENDED FOR SYRIANS

Syrian nationals are now able to file for TPS status whether it is to extend the applicant’s current TPS status or whether to file a new application for TPS as a Syrian national. If the applicant’s TPS status petition is approved, then USCIS will issue work authorization valid from October 1, 2013 until March 31, 2015. USCIS has issued guidelines for the different types of scenarios possible, as explained below:

1. Applicants that have TPS status: You must re-register during the time period from June 17, 2013 until August 15, 2013. This deadline is fast approaching, so please do Not delay in completing and mailing the application to USCIS, along with all the USCIS filing fees, etc.

2. Applicants that do Not currently have TPS status: You may apply for TPS from June 17, 2013 until December 16, 2013.

3. Applicant currently has TPS pending: Call USCIS ASAP to see whether you need to file anything to follow up or consult with a lawyer to check the status.

You should consult with an immigration lawyer to obtain further information on how to file for TPS and whether you are eligible, etc. Please also note that any criminal convictions in your past can affect your TPS application, so be sure to consult with an immigration lawyer first especially if you have any criminal convictions in your past.

No More I-94 Cards – CBP Has a New System

The I-94 card, known by those in the immigration field as your most important proof of last entry into the U.S., is no longer going to be issued for the majority of travelers entering the U.S. U.S. Customs and Border (CBP) officials have created a new online, automated system that will replace the I-94 card paper system. The new system is called the CBP Trusted Traveler Program, and it has been established to expedite entry for international travelers into the U.S. This program applies to all travelers entering the U.S. by air or sea.

The most important point to remember is that travelers Must still retain proof of their last date of travel into the U.S. Instead of an I-94 card, CBP will now place a stamp in the person’s passport. There will also be an electronic record made, and I strongly encourage everyone to log into www.cbp.gov/I94 to print out the electronic record made of their last entry into the U.S. For filings with USCIS, the stamp in the passport may be enough in some circumstances, but I still strongly encourage travelers to log into the www.cbp.gov website and obtain secondary proof as well. I am an immigration lawyer, after all! The paper print out may also be needed when applying for a driver’s license or social security number, etc.

A paper print out of the proof of entry is also important in case CBP’s electronic system is down and the record cannot be accessed by government officials when needed, etc. Therefore, it is wise to print out the proof of your last entry into the U.S. at your earliest convenience. Be sure to hold onto this proof just like you would keep your I-94 card safe and sound.

This new requirement does not affect individuals traveling into the U.S. via a land border, asylees, refugees or those being paroled into the U.S. These individuals will still get a traditional I-94 card.
For those especially careful, they can request a paper I-94 card from CBP at the port of entry, but the applicant must go to secondary inspection to obtain the paper I-94 card. The paper I-94 card will be the electronic print-out accessed at www.cbp.gov/I94.

Also, as a side note, it is the name on your passport (not the name on the applicant’s visa) that CBP will enter into the system. If there is a mistake in the record or you cannot access your record even though you entered the name on your passport, then contact CBP directly at deferred inspection or seek the assistance of an immigration lawyer so that you can obtain proof of your last entry into the U.S. and proof of your expiration date.

Removal Cases: What is Prosecutorial Discretion and Am I Eligible for this Benefit?

At my law office, I have been receiving many calls from individuals in deportation / removal proceedings asking whether a new law has been passed that helps them avoid removal from the U.S.  There has been a change, but it is not a new law per se.  Basically, the Obama administration has issued a policy change in how they will treat OPEN deportation and removal cases by setting “low priority” and “high priority” case standards. Those individuals with what are considered low priority cases are eligible for prosecutorial discretion, which means that the Immigration Court can “administratively close” or even terminate removal proceedings.

The new policy change is that John Morton, Director of ICE, has explained the benefit called Prosecutorial Discretion and has even created a system whereby an immigration lawyer can file a prosecutorial discretion request on behalf of their clients.  The request is usually made to the Chief Supervising Attorney at the Office of the Chief Counsel.

I have filed many requests for prosecutorial discretion on behalf of my clients, and I have received calls directly from the Chief Supervising Attorney about some of those pending applications.  I mainly look for the following factors when choosing whether an individual is a good candidate for prosecutorial discretion:

  • Length of time in the U.S.
  • Any family in the U.S. especially immediate relatives
  • Any health conditions for the applicant or his / her U.S. citizen or lawful permanent resident relatives
  • Completing an education in the U.S.
  • Entering the U.S. at a young age
  • Lack of a criminal history as well as other factors detailed in a Memo issued by John Morton OR
  • Any other “humanitarian” type of factors

It is important to note that you do not need all of the above points to qualify for prosecutorial discretion.  I look for one or more of the above factors, and I organize our request in a way that maximizes our chances of success by attaching legal arguments and documentation.

The reason for this policy change is that there are more removal cases than the current immigration court system can handle. In other words, Obama wants to focus on criminal aliens more than the aliens that have no criminal record and the aliens that have a possible means to obtain immigration relief.

We have noticed an increase in the cooperation of the trial attorneys for cases where the individual has no criminal history, and we are thankful for this new policy change.  For individuals who already have a Final order of removal, we have been successful in filing a prosecutorial discretion request asking the Office of Chief Counsel to Join our Motion to Reopen based on other grounds, and they can cite this policy change as a reason for the Judge or the BIA to have mercy on them and grant their request.

The above policy is in line with the thoughts reiterated by Homeland Security Secretary Janet Napolitano, who has stated that the work raids where hundreds are arrested will stop, and focus of immigration officials will turn to prosecuting and removing criminal aliens.

NEW Immigration Reform: Update on Senate Judiciary Committee’s Ruling

As most people know by now, immigration reform is on the horizon and the Senate has just completed its ruling on the many different parts combined into one bill, all regarding various issues in Immigration Reform. The Senate has ruled favorably to the biggest immigration reform we have seen the year of 2001. Specifically, if passed, this Bill would allow the more than 11 million undocumented people in the U.S. to become U.S. Citizens within a 13-year plan for them to become documented.

The Bill has also proposed an increase in the number of H-1B work visas. An H-1B visa is a work visa that is available to individuals who hold a bachelor’s degree in a specialized field and have a bona fide job offer from a U.S. company for a specialized position, such as a position in IT, engineering, accounting, science, etc. The increase in H-1B visa numbers is extremely needed, as in this year alone, there were more than 120,000 applicants and only 65,000 H-1B visas available.

We look forward to the passing of this Bill to become Law, especially since TRAC states that more than 1,500 people are arrested Daily for immigration violations. A large number of those arrested are in the state of Texas, which again shows us that we need an immigration law that will provide help to the undocumented foreign nationals in our country.

While we have all been waiting for this “new law” for years now, it seems that this Bill is not yet Law. The next step is that the Bill would be fully debated on the Senate floor during the first week of June 2013.

More Travel News for Students (F-1 visa) applying for an H-1B visa

Individuals on a student visa can often have the cap gap issue when they apply for an H-1B visa and yet their F-1 status expires before the start date of the H-1B visa. In other words, they can start working for the H-1B visa employer on October 1, 2013, and their student visa expired on May 1, 2013, for example. All New H-1B visas have the start date of October 1st for that year because that is when the fiscal year starts for H-1B visa availability.

To correct the problem of a student’s visa expiring before October 1, USCIS created what they call “Cap Gap” rules to protect students in that situation. Basically, the student can remain in the U.S. even though their visa will expire before the H-1B start date of October 1st. Without the beneficial cap gap rules, the student would otherwise have to depart the U.S. and consular process his H-1B visa through a U.S. Embassy.

Regarding whether students can travel during the cap gap period, USCIS has recently issued guidance that states that travel during this period of time is strongly discouraged. Generally, USCIS will consider the change of status petition to be abandoned if the student travels outside the U.S. before the H-1B is approved. The underlying H-1B itself may still be approved, but the change of status request will be denied. The end result is that the foreign national will then need to apply for the H-1B visa at a U.S. Consular post in their foreign country.

If the foreign national applies for the H-1B to be issued by the U.S. Consular post, he or she will only be granted entry ten (10) days prior to October 1st, which is on or about September 20th of that year. It is important to note that obtaining the H-1B visa at a U.S. Consular Post can be more complicated than filing a change of status request, as the U.S. Consular Post may want additional documentation, such as original degrees, new offer of employment letter on original letterhead from the potential employer, and other documentation before the H-1B visa will be issued.

Update on Travel for Student Visa Holders

The once “standard” stamp that students entering the U.S. would receive from Customs and Border patrol (CBP) on their I-120 / DS-2019 is now being discontinued. As of on or about August 10, 2012, CBP will no longer stamp the I-20 / DS-2019 form for any students re-entering the U.S., upon completion of their foreign travel.

If some agencies still require a stamped I-20, a student can make an appointment with their local USCIS office via an info pass system to obtain a stamp. In addition, a student encountering problems because their I-120 is not stamped can either call 1-703-603-3400 or send an email to SEVP@dhs.gov.

The above contact information was provided by the CBP website and the information was released on or about September 5, 2012 to the general public.

How Many Alien Numbers Should I have?

Generally speaking, an immigrant should only have one alien number throughout the course of their immigration process and the same alien number should be placed on that applicant’s naturalization certificate. These days, though, there have been some complaints online that applicants will receive one alien number on their employment card and then will receive a completely different alien number on their newly issued green card.

If you receive your green card and you notice that the alien number is a different one than the alien number that was previously issued to you on the employment card, you should take some action to ensure that the mistake is corrected. For instance, you can file a form I-90 and mark that there is a mistake on the green card resulting from USCIS error. In other words, check the box that says that a service error took place. You do Not need to attach a filing fee, but be sure to follow the instructions for the I-90 form.

However, some people do not want to mail in their newly issued green card. As a result, those individuals can write a letter to USCIS and request that the two alien numbers be merged into one file. Be sure to keep a copy of this letter and send it to USCIS via certified mail so that you can keep proof of mailing for your records. Please also call USCIS at 1-800-375-5283 after you mail the letter, to see if any action has taken place on merging your two files. It is best to keep records of your letter to USCIS, though, as you may have no record of the details of your phone call to USCIS.

Until you have a new green card issued with the correct alien number or you have knowledge that the two alien number files have been consolidated, be sure to list all alien numbers on future applications with USCIS, including address changes, for example.

Visa Bulletin for November 2012: Lawful Permanent Resident Priority Date

The most recently issued Visa Bulletin has some good news for family category 2A, which is the category for lawful permanent residents filing for their spouses and / or children under 21 years old and unmarried. The current priority date for this category is now July 15, 2010. This means that applicants that filed their cases for their loved ones on or before July 15, 2010 have now reached their priority date.

It is important to note that just because USCIS approves the petition form, this alone does Not mean that the case is ready for processing. In order for the case to be processed and sent over to the U.S. Embassy, the petition form must first be approved AND the priority date must be current. The priority date system applies to lawful permanent residents filing for their spouse and children, but U.S. citizens filing for their spouses and children under 21 years old (and unmarried) do not have to wait for any priority date.

Hopeful case: A Mexican national who was ordered removed was allowed re-entry to US

I want to share this case with you, because I personally found it quite interesting. This is not a case that I have handled, but one that I heard about from Fox news Latino. The case involves a Mexican national who was previously ordered deported from the U.S. He has three children here in the U.S.

The Mexican national, Mr. Felipe Montes, was given legal permission to return to the U.S. so that he can physically appear for his court battle in North Carolina regarding fighting for custody of his three (3) biological children. Mr. Montes received permission to remain in the U.S. for ninety (90) days, based on Humanitarian grounds.

This case is interesting because it is the U.S. Department of Homeland Security that allowed him to re-enter the U.S. This case hopefully will give hope to people in similar situations to apply for Humanitarian permission to temporarily enter the U.S. Of course, a grant of humanitarian parole is in the discretion of the Officer.

In Mr. Montes’ case, he has three U.S. citizen children with his U.S. citizen wife, and his wife remained in the U.S. while he was deported back in 2010. Unfortunately, his wife could not take care of those kids and the kids were placed in foster care where they were about to be adopted by foster families. Mr. Montes was the primary bread winner, and when he was deported, his wife would not financially support the children.

Thankfully, Mr. Montes was allowed to re-enter the U.S. so that he could fight for custody of his biological children, and according to his family law attorney, his presence was desperately needed at the hearing.

This case points to the reality that there are about 5,000 children of deported or detained immigrants currently being placed in foster homes, mainly due to the parents’ not having the appropriate immigration status to remain in the U.S.

So Which Name should I place on my Application?

As part of my practice as an immigration lawyer for eleven years now, I have seen numerous cases with applicants that have several last names or different spellings of their last names. Some of my clients have a different last name in their passport than on their birth certificate translation, etc.

To end the confusion regarding which last name spelling or variation to include in the immigration paperwork, the Vermont Service Center (VSC) has provided a brief guidance in their Stakeholders newsletter. The following information applies to the following cases only: All I-129 cases (work visas, religious visa, fiancé visa, etc.), I-539, I-765 (employment card), and I-131 (travel document). This information does Not apply to green card applications.

The Vermont Service Center has indicated that regardless of what name the applicant places on the application form, the VSC Officer will list the applicant’s name as spelled on the applicant’s passport. The only exception provided to this basic rule is that the applicant’s name will be changed to the name on the visa issued to the applicant, if this visa was issued subsequent to the passport. If there is no visa that was issued to the applicant subsequent to the passport, then the VSC will change the applicant’s name as according to the passport provided by the applicant.

From previous experience, it is generally a good idea to have the passport contain the same name as the applicant’s birth certificate and translation of the birth certificate. In this way, the confusion will be lessened as to the applicant’s identity.

In any event, be sure to list ALL variations of names used in the appropriate box for other names used. Carefully placing all previous names used in this box will ensure the USCIS Officer that the applicant is being truthful as to their identity and exact name.