PRESIDENT OBAMA EXECUTIVE ORDER ON IMMIGRATION 2014

Posted on by
ALEX NOWRASTEH

President Obama will soon announce an executive action to defer the deportations of somewhere between 1 million and 4.5 million unauthorized immigrants. Those whose deportations are deferred will be eligible for a temporary work permit through a 1987 provision in the Code of Federal Regulations.

Those who support immigration reform note that any executive action by the President will poison the well for reform, making it impossible for Congress to move piecemeal bills to the President’s desk.  Last year, one of the most effective arguments against immigration reform was that President Obama would not enforce the law as written, a prediction that seems to be borne out with this executive action.

To poison the well of reform there actually had to be water in the well to begin with. I’m not convinced there was.  If there was a serious Congressional effort to reform immigration in the immediate future, then the President’s actions here would totally derail it…

NATURALIZATION THROUGH MILITARY SERVICE

Posted on by

Naturalization Through Military Service

Special provisions of the Immigration and Nationality Act (INA) authorize U.S. Citizenship and Immigration Services (USCIS) to expedite the application and naturalization process for current members of the U.S. armed forces and recently discharged members. Generally, qualifying military service includes service with one of the following branches: Army, Navy, Air Force, Marine Corps, Coast Guard, certain components of the National Guard and the Selected Reserve of the Ready Reserve. In addition, spouses of members of the U.S. armed forces who are or will be deployed may be eligible for expedited naturalization. Other provisions of the law also allow certain spouses to complete the naturalization process abroad.

Qualifications

A member of the U.S. armed forces must meet the requirements and qualifications to become a citizen of the United States. He or she must demonstrate:

  • Good moral character
  • Knowledge of the English language
  • Knowledge of U.S. government and history (civics), and
  • Attachment to the United States by taking an Oath of Allegiance to the U.S. Constitution

Qualified members of the U.S. armed forces are exempt from other naturalization requirements, including residence and physical presence in the United States. These exceptions are listed in Sections 328 and 329 of the INA.

All aspects of the naturalization process, including applications, interviews and ceremonies are available overseas to members of the U.S. armed forces and certain “command-sponsored” spouses.

A person who obtains U.S. citizenship through his or her military service and separates from the military under “other than honorable conditions” before completing five years of honorable service may have his or her citizenship revoked.

Service in Peacetime

Section 328 of the INA applies to all members of the U.S. armed forces and those already discharged from service. An individual may qualify for naturalization if he or she has:

  • Served honorably in the U.S. armed forces for at least one year,
  • Obtained lawful permanent resident status, and
  • Filed an application while still in the service or within six months of separation.

Service during Periods of Hostilities

Under special provisions in Section 329 of the INA, the President signed an executive order on July 3, 2002, authorizing all noncitizens who have served honorably in the U.S. armed forces on or after Sept. 11, 2001, to immediately file for citizenship. This order also covers veterans of certain designated past wars and conflicts. The authorization will remain in effect until a date designated by a future presidential executive order.

Naturalization at Basic Training

USCIS established the Naturalization at Basic Training Initiative in August 2009 with the Army to give noncitizen enlistees the opportunity to naturalize when they graduate from basic training. Under this initiative, USCIS conducts all naturalization processing including the capture of biometrics, the naturalization interview and administration of the Oath of Allegiance on the military installation. Since 2009 USCIS has expanded the initiative to the Navy, Air Force, and finally to the Marine Corps in 2013, giving enlistees of these branches equal opportunity to (in most cases) leave basic training as U.S. citizens.

How to Apply

Every military installation has a designated point-of-contact, generally in the personnel division or the Judge Advocate General’s Office, to assist members of the military prepare and file their naturalization application packet. That packet includes:

  • Application for Naturalization, USCIS Form N-400 (Members of the military are not charged a fee to file the Form N-400.)
  • Request for Certification of Military or Naval Service, USCIS Form N-426 (The military must certify this form before sending it to USCIS. Individuals separated from the military may submit an uncertified Form N-426 with their DD Form 214.)

Once the packet is complete, send it to the specialized military naturalization unit at the USCIS Nebraska Service Center for expedited processing.

Customer Service to Assist the Military

 USCIS customer service specialists are available to respond to inquiries from military members and their families Monday through Friday from 8 a.m. until 4:30 p.m., Central Time, except federal holidays. Military families may contact USCIS by:

  • Calling the military toll-free telephone help line — 1-877-CIS-4MIL (1-877-247-4645), or
  • Sending an e-mail to the military customer service specialists at: [email protected].

Posthumous Benefits

 Section 329A of the INA provides for grants of posthumous citizenship to certain members of the U.S. armed forces. A member of the U.S. armed forces who served honorably during a designated period of hostility and died as a result of injury or disease incurred in or aggravated by that service (including death in combat) may be eligible to receive posthumous citizenship, as long as the next-of-kin applies for posthumous citizenship within two years of the service member’s death. Other provisions of the law extend immigration benefits to the service member’s surviving spouses, children and parents.

Statistics (through Fiscal Year 2014)

  • Since Oct. 1, 2002, USCIS has naturalized 102,266 members of the military, with 11,548 of those service members becoming citizens during USCIS naturalization ceremonies in 34 foreign countries: Afghanistan, Albania, Australia, Bahrain, China (Hong Kong), Cuba (Guantanamo), Djibouti, El Salvador, Georgia, Germany, Greece, Haiti, Honduras, Iceland, Iraq, Italy, Jamaica, Japan, Jordan, Kenya, Korea, Kosovo, Kuwait, Kyrgyzstan, Libya, Mexico, the Philippines, Qatar, South Korea, Spain, Thailand, Turkey, United Arab Emirates and the United Kingdom.

  • Since the beginning of fiscal year 2008, USCIS has naturalized 2,318 military spouses during ceremonies in the following 30 countries: Afghanistan, Australia, Bahrain, Bulgaria, Chile, Cuba, China (Hong Kong), El Salvador, Georgia, Germany, Greece, India, Italy, Jamaica, Japan, Kuwait, Mexico, Norway, Oman, Panama, the Philippines, Poland, Portugal, South Korea, Spain, Tanzania, Thailand, Turkey, United Kingdom and the United Arab Emirates.

  • Since the beginning of fiscal year 2009, USCIS has presented 90 children of members of the military with citizenship certificates during ceremonies in Italy, Germany, Japan, South Korea and the United Kingdom.

U.S. DEPARTMENT OF LABOR CHANGE ITS PROCEDURES ON HOW TO REQUEST REVIEW OF A PERM DENIALS

Posted on by

Recently the U.S. Department of Labor changed its procedure on how an employer seeks review of a denial of Permanent Labor Certification (PERM). As of October 27, 2014, the Atlanta National Processing Center is no longer automatically forward to BALCA all PERM case Requests for Reconsideration where the original case decision was upheld. Rather, a Notice of Decision will be issued where the case is upheld, and the employer must affirmatively request review before BALCA no longer than 30 calender days after the date the Notice of Decision is issued. 

The H-2B Program For Non-Agricultural Temporary Workers

Posted on by

The H-2B program is a program that allows U.S. employers to bring foreign nationals to the United States to fill temporary non-agricultural jobs.

The H-2B program has a statutory numerical limit, or “cap,” on the total number of H-2B visas that  can be issued during a fiscal year.  Currently, the H-2B cap set by Congress is 66,000 per fiscal year, with 33,000 to be allocated for employment beginning in the 1st half of the fiscal year (October 1 – March 31) and 33,000 to be allocated for employment beginning in the 2nd half of the fiscal year (April 1 – September 30). Any unused numbers from the first half of the fiscal year will be made available for use by employers seeking to hire H-2B workers during the second half of the fiscal year.  There is no “carry over” of unused H-2B numbers from one fiscal year to the next.

 If the cap is not reached for the 1st half of the fiscal year, those numbers will be made available for use during the 2nd half of the fiscal year. In some fiscal years, therefore, depending on demand for H-2B workers, more than 33,000 cap-subject persons may be granted H-2B status during the 2nd half of the fiscal year.

See the USCIS chart below for Fiscal Year of 2015.

Fiscal Year 2015 H-2B Cap Count Updated

As USCIS receives H-2B petitions for Fiscal Year 2015, the chart below will be regularly updated.

Cap Type Cap Amount Beneficiaries Approved Beneficiaries Pending Target Beneficiaries Total Date of Last Count
 H-2B: 1st Half FY 2015 33,0002 9,574 1,528   11,102 10/31//2014
 H-2B: 2nd  Half FY 2015 33,000         10/31/2014

 

2016 DIVERSITY VISA

Posted on by

The Congressionally mandated Diversity Immigrant Visa Program is administered annually by the Department of State. Section 203(c) of the Immigration and Nationality Act (INA) provides for a class of “diversity immigrants,” from countries with historically low rates of immigration to the United States.

For fiscal year 2016, 50,000 diversity visas (DVs) will be available. There is no cost to register for the DV program.
Applicants who are selected in the lottery (“selectees”) must meet simple, but strict, eligibility through a randomized and no single country
may receive more than seven percent of the available DVs in any one year.
For DV-2016, natives of the following countries are not eligible to apply, natives of these countries immigrated to the United States in the previous five years:
Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, Vietnam.
There are no changes in eligibility this year. Good luck to all applicants.

ARE THE WORDS “VISA” AND “IN STATUS” SYNONYM?

Posted on by
  1. I am an immigrant in the United States who entered with a student visa. A friend of mine asked me if I am in status.  I answered “Yes. I have a visa.” Then I started thinking – are the words “Visa” and “In Status” synonym?
  2. No. ” In status” is typically reflected in the visa, but “visa and in status” are two vastly different things.

When someone wishes to come to the U.S. temporarily (whether for a number of weeks as in the case of a tourist, an international student or a number of years as in the case of an H-1B worker), he or she must obtain a “visa” to enter the U.S. When admitted into the country -at an air, land or sea port, also referred to as port of entry- the individual obtains a status.

Let’s take the example of an international student. Before the student arrives in to the United States, she must apply for a visa at the U.S. embassy abroad. She submits the applications and the supporting documents. Once the visa application is approved, the student receives her visa. The “visa” is the adhesive label covering one entire page of the passport. This is often referred as the “visa stamp.”

Each “visa” has its own classification. Every “visa classification” has a set of requirements that the visa holder must follow and maintain. Those who follow the requirements maintain their status and ensue their ability to remain in the United States. Those who do not follow the requirements violates their status and are considered “out of status”. “In Status” means you are in compliance with the requirements of your visa type under the immigration law.

Therefore, it is important to understand the concept of immigration status and the consequences of violating that status.

Well-Founded Fear of Persecution

Posted on by

In an asylum claim, what is a well-founded-fear of persecution?

With regard to  the “well-founded fear of persecution ” standard applicable to asylum claims, the regulations state that an applicant meets the standard if he establishes that (a) the applicant has a fear of persecution in his country of nationality or last habitual residence on account of race, religion, nationality, membership in a particular social group, or political opinion; (2) there is a reasonable possibility of actually suffering such persecution if he returns to that country; and (3) the applicant is unable or unwilling to return to or avail himself of the protection of that country because of such fear. The rules also provide that an alien need not prove that he will be singled out individually for persecution if he shows that there is a pattern or practice of persecution of groups or categories of person situated similarly to the applicant based on one of protected based.
An asylum application based on past persecution must demonstrate that persecution was actually suffered and that the reason for such persecution was one of the enumerated bases covered under the Immigration and Nationality Act. If the applicant is able to show past persecution based on one of the enumerated bases (e.g. political opinion or religious belief), the burden shifts to the government to show that conditions have changed so substantially that the applicant’s fear of persecution if he returns to his home country is no longer well founded.

PAROLE IN PLACE

Posted on by

The decision whether to grant parole in place is discretionary.

Generally, parole in place is to be granted only sparingly. The fact that the individual is a spouse, child or parent of an Active Duty member of the U.S. Armed Forces, an individual in the Selected Reserve of the Ready Reserve or an individual who previously served in the U.S. Armed Forces or the Selected Reserve of the Ready Reserve, however, ordinarily weighs heavily in favor of parole in place. Absent a criminal conviction or other serious adverse factors, parole in place would generally be an appropriate exercise of discretion for such an individual. If USCIS decides to grant parole in that situation, the parole should be authorized in one-year increments, with re-parole as appropriate.

Eliminate Mandatory Detention Except For Serious Offenders

Posted on by

Each year mandatory detention results in the jailing of tens of thousands of people who pose no danger to their communities and are not a flight risk. Feeding this detention system is the mandatory detention provision of Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRAIRA), requiring that most people in deportation proceedings, base on their past offenses, no matter how remote in time, are held in custody, even if they are non-violent and the criminal system has determined they are not a risk to the community. Such a system cannot differentiate between a terrorist and a single mother of a U.S. children or a green card holder who’s lived here his whole life. The respondent remains in custody until completion of the immigration court case, and pending any appeals to the Board of Immigration Appeals and federal circuit courts, which can easily amount to years of detention.

Do we really want to be paying for such individuals when they could be out working and helping to sustain their families and the economy?

NATIONAL BENEFITS CENTER PREPARES I-485 and N-400 APPLICATIONS FOR ADJUDICATION

Posted on by

I have noticed that there is some confusion out there about what our National Benefits Center (NBC) is and what it does.  The NBC serves a unique role within our organization as part of the Field Operations Directorate. The NBC was founded in 2001 in Lee’s Summit, Missouri and was originally called the Missouri Service Center (which is why receipt notices from the NBC will begin with the letters “MSC”).

The NBC’s primary mission is to prepare applications for adjudication that require an interview at a USCIS Field Office.   The NBC’s largest workload is Form I-485, Application to Register Permanent Residence or Adjust Status, and Form N-400, Application for Naturalization.

The NBC does not determine processing times of I-485 and N-400 application. NBC does not conduct final adjudication of those cases—a USCIS Local Field Office does. To check the processing times on I-485 and N-400 applications, go to local USCIS Office processing times.