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The state of Colorado is set to pass a new bill known as HB16-1391 that will prosecute non-attorneys posing as licensed immigration attorneys or legal representatives in matters relating to immigration. Colorado Senator Dan Pabon, first introduced the bipartisan bill, HB 16-1391 the Immigration Consultants Deceptive Trade Practice, before the Colorado Senate earlier this year. The focus of HB16-1391 is to crackdown on “notarios” targeting the Hispanic community, who are not licensed to practice law in the United States. The word “notario” in some Latin American countries refers to a person that is either highly trained to conduct legal matters or is an attorney. The word notary in the United States takes on a different meaning. A notary public in the United States is not an attorney and cannot conduct legal matters. They cannot provide legal advice nor represent individuals before court. Instead, a notary public can attest or certify writings to make them authentic. Notary publics are typically involved in the certification of affidavits, depositions, and other negotiable documents. In the United States they witness the making of documents and sign in order to attest that documents are authentic. The Hispanic community is often misled by these “notarios” who advertise themselves as authorized legal representatives and/or attorneys for compensation. Despite the fact that these “notarios” are not authorized to offer legal consultations, they often do causing irreparable damage to the people they serve. They often give false hope to people in the United States unlawfully and mislead them into applying for an immigration benefit they are not eligible to receive, prompting their removal from the United States. The bill, Immigration Consultants Deceptive Trade Practice, will prohibit non-attorneys from conducting consultations, receiving compensation, and providing legal services to individuals related to immigration.

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The U.S. Department of State (DOS) recently released the June Visa Bulletin. The Chief of Visa Control and Reporting Division, Charles Oppenheim has provided new insights and developments pertaining to the June 2016 Visa Bulletin. Cutoff dates listed below form part of the final action (FA) chart of the Visa Bulletin. Currently, USCIS has advised adjustment of status family-sponsored and employment-based applicants to refer to cutoff dates that appear on the final action chart for the month of June, and not the date of filing chart.

Employment-Based, First Preference (EB-1)

Demand for the EB-1 category remains at a very high level. DOS has said that should demand continue to remain at the same rate, some form of “corrective action” would be necessary before the close of the fiscal year to regulate worldwide visa numbers. This may require the establishment of a cutoff date or other form of regulation.

India Employment-Based, Second Preference (EB-2)

Demand for the EB-2 category is also very high. Due to increasing demand, there will no longer be unused numbers available in excess of the normal EB-2 per-country limit. EB-2 Worldwide and EB-2 India demand is expected to increase. The high level of demand for visa numbers in the EB-2 India Category and lack of excess numbers from EB-2 worldwide has caused the EB-2 India final action date to retrogress to October 1, 2004 for the month of June.The DOS expects that the EB-2 India cutoff date will advance slowly for the rest of the fiscal year, at a pace similar to the EB-3 advancement.

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In this segment, we answer 4 of your most frequently asked questions received on our social media platforms and our website. Please remember that every case is different and every immigration journey is unique. You should not compare your situation to anyone else’s. We hope that our answers will provide you with further guidance while you embark on your immigration journey. If you have any further questions, please call our office to schedule a free first time consultation. We serve international clients and domestic clients in all 50 states. We thank you for your continued trust in our law office. For more information on the services we offer please click here.

Consular Report of Birth Abroad (CRBA) and the Affidavit of Support

Q:  I am a US Citizen married to a foreign national. We have a child together. We recently moved to the United States from abroad.  My husband and son entered the United States on a B-2 visa and we are planning to apply for their adjustment of status. My question is regarding the Form I-864 Affidavit of Support. I have just secured employment and will be able to sponsor my family. I want to know what documents are required in support of the Affidavit of Support as proof that I have sufficient income to support my family. At the moment I do not have pay stubs. I plan to start my employment next month.

A: Thank you for your question. If your child was born abroad, your child may acquire U.S. Citizenship by filing for a Consular Report of Birth Abroad (CRBA, Form FS-240) before your child reaches their 18th birthday. To do so, the U.S. Citizen parent must report the birth of the child at their nearest U.S. Embassy or Consulate. Anytime that a child of a U.S. Citizen parent is born abroad, the parent must report the birth to nearest U.S. Consulate as soon as possible. This will allow the Consulate to issue a Consular Report of Birth Abroad as an official record of your child’s claim to U.S. Citizenship. The CRBA may be used as proof of your child’s U.S. Citizenship and allows the child to obtain a U.S. passport. A child with a consular report of birth abroad receives the same privileges as a child born in the United States. It is recommended that you first contact your closest U.S. embassy or Consulate before filing a petition for your son, because it is likely that you will not need to go through the immigration process for your son.

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According to a new study by the Pew Research Center, the number of permanent residents applying for U.S. Citizenship has risen 5% when compared to the 2012 election cycle. This fiscal year USCIS received the highest number of applications for naturalization in four years. The Pew Research Center suggests that the recent surge in applications for naturalization is not due to political reasons.

This fiscal year approximately 249,609 permanent residents applied for naturalization, a 13% increase from the previous fiscal year, according to preliminary data provided by the U.S. Citizenship and Immigration Services. During the last election cycle, in fiscal years 2011 and 2012, there was a 19 % increase in applications, compared to this year’s election cycle at 13%. Research conducted by the Pew Research Center indicates that the increase in the number of applications is due to practical reasons, such as avoiding fee increases and criminal prosecution, and not for political reasons. For instance, during fiscal years 2007 and 2008, the number of naturalization applications decreased by 62%, at a time when USCIS announced an increase in the application fee for adults, from $330 to $595, taking place on July 30, 2007. As a result of this announcement, an unusual number of applications were filed before the planned increase in filing fees. In fiscal year 2007, before the increase in filing fees, the number of naturalization applications increased by 89% compared to fiscal year 2006. This was the largest increase in naturalization applications ever seen since 1907.

From fiscal year 1995 to 1998, more than 900,000 people applied for citizenship every fiscal year, reaching a record high 1.4 million naturalization applications in fiscal year 1997, due to a series of Congressional legislation enacted in the mid 1980s. According to the Pew Research Center, one such legislation was the Immigration Reform and Control Act of 1986, which gave approximately 2.7 million undocumented immigrants the opportunity to become legal permanent residents. This piece of legislation increased the pool of potential citizens who would apply for naturalization within 5-10 years. By 2009, nearly 40% of permanent residents had become U.S. Citizens. In 1996 Congress passed laws restricting public benefits and legal protections of noncitizens, and expanded the list of offenses for which legal permanent residents could be prosecuted and deported. These laws prompted millions of permanent residents to apply for naturalization out of fear of deportation.

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The United States Citizenship and Immigration Services will allow the families of certain Filipino World War II veterans to reunite with veterans beginning June 8, 2016 as a result of a new policy change called Filipino World War II Veterans Parole Policy. In order to qualify, extended family members of veterans must be beneficiaries of approved family-based immigrant visa petitions, and be awaiting the availability of an immigrant visa. Certain extended family members of U.S. Citizen or LPR Filipino World War II Veterans will have the opportunity to receive advance parole on a ‘discretionary’ case-by-cases basis in order to travel to the United States to be with their loved ones, while they await an immigrant visa to become available. In addition, certain relatives of deceased Filipino World War II veterans, will be able to seek parole for themselves. This new policy change has been implemented to honor Filipino veterans who enlisted in the World War II Veterans Parole Program to fight for our country during World War II. The initiative will also allow extended family members to care and support their U.S. Citizen or LPR veteran family members during the advanced stages of their life. According to the policy, approximately 2,000 to 6,000 family members will be able to benefit from this new policy change. Applications for the the Filipino World War II Veterans Parole Program will not be accepted until June 8, 2016.

Presently, the process of immigrating extended family members of U.S. Citizens and Legal Permanent Residents residing abroad is a very complex and antiquated process. This is because there is a limit to the number of immigrant visa applications that can be issued for extended family members. The Visa Bulletin outlines the numerical immigrant visa limitations for family-sponsored and employment-based preference categories established by the Immigration and Nationality Act (INA).

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On May 04, 2016 the Department of Homeland Security published a proposed rule in the Federal Register, announcing that filing fees for many USCIS petitions and applications are expected to increase for U.S. employers and foreign nationals. The proposed regulation stipulates that filing fees may be adjusted for certain immigration and naturalization benefit requests by USCIS. The increase in filing fees was considered after USCIS conducted a comprehensive review of its fees and found that the current fees do not cover the cost of services provided by USCIS. According to USCIS, in an effort to fully recover costs and maintain adequate services, “an adjustment to the fee schedule will be necessary”. According to the regulation, fees for most employment-based petitions and applications would be raised by an average of 21%, though other types of petitions may experience a higher increase in filing fees.

According to DHS, the higher fees will more accurately reflect the current cost of processing immigration applications and petition. A portion of the increased fees would provide additional funding for refugee and citizenship programs as well as system support for interagency immigration status verification databases.  The increase in filing fees will not take effect until the federal government approves the regulation, which is expected to take several months following the close of the 60-day comment period on July 5, 2016.

According to the new fee schedule under consideration, employment-based petitions would be the most impacted by the increase in filing fees. The filing fee for Form I-129, Petition for a Nonimmigrant Worker, would increase by 42% to a fee of $460, from the current rate of $325.  Similarly, the filing fee for Form I-140, Immigrant Petition for Alien Worker, would increase by 21% to a fee of $700, from the current rate of $580. The complete fee schedule under consideration has been provided below for your reference.

The EB-5 Immigrant Investor Visa Program is expected to be the most heavily affected by the new fee schedule. The filing fee for Form I-924, Application for Regional Center Under the Immigrant Investor Pilot Program, would increase by a rate of 186% requiring Regional Centers seeking designation under the program to pay a filing fee of $17,795 instead of the current rate of $6,230. In addition, Regional Centers would be required to pay a $3,035 annual fee to certify their continued eligibility for the designation. Currently, there is no fee in place for annual certification. The filing fee for the I-526 Immigrant Petition by Alien Entrepreneur, an application associated with the EB-5 visa program, would also increase to a rate of $3,675, a 145% increase up from the current rate of $1,500. The filing fee for an investor’s petition to remove conditions on residence would remain unchanged under these new regulations.

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Today May 2, 2016 USCIS announced that data entry for all selected H-1B cap-subject petitions has been completed for fiscal year 2017. Our office expects to receive the final receipt notices of selection for H-1B cap-subject petitions within the next 1-2 weeks. We do not believe that USCIS will be mailing out any more receipt notices for H-1B cap-subject petitions after May 13, 2016. USCIS will begin the process of returning all H-1B cap-subject petitions that were not selected in the random lottery conducted on April 9, 2016. In past years, unselected H-1B petitions have typically been received by our office in the month of June. USCIS recommends that petitioners wait until they have received either a receipt notice or unselected petition in the mail, before contacting USCIS to inquire about the status of a petition. USCIS will issue an additional announcement once all unselected petitions have been returned.

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The Department of Homeland Security is currently under pressure to provide Temporary Protected Status (TPS) to Ecuadorians, following a 7.8 magnitude earthquake that rocked the Northern coast of Ecuador on April 16, causing nearly 600 fatalities. Dozens of people remain missing under the rubble, while thousands of Ecuadorians have sustained injuries. The Obama administration is expected to respond to a request from American lawmakers, which would allow Ecuadorians physically present in the United States, to apply for an extension of stay to remain in the country temporarily. Furthermore, New York City Mayor Bill de Blasio and other politicians have called on the Obama administration to intervene, by designating Ecuador as a country temporarily eligible to receive Temporary Protected Status (TPS). In a statement issued last week, De Blasio noted that New York City alone is home to nearly 140,000 Ecuadorian immigrants. Many of these New Yorkers face additional uncertainty about whether it is safe for them to return to Ecuador at this time. We must extend whatever support we can at this critical moment.” Approximately 143,000 Ecuadorians currently reside in the United States illegally in the states of New York, New Jersey, Illinois, California and Florida.

The administration is also being pressured by lawmakers to extend temporary protected status to migrants from Central America, due to the criminal and security concerns in the region including gang violence. The administration has not yielded to this pressure as of yet.

Enacted by the United States Immigration Act of 1990, TPS allows the government to extend the stay of foreign nationals whose countries have been affected by war, civil unrest, violence, natural disasters, or other emergent needs that concern the safety of foreign nationals from troubled regions. The provisions of the Immigration and Nationality Act (INA) allow this temporary status to exist, as well as other blanket forms of relief from removal of individuals from these affected regions. Under the INA, the executive branch and legislative branch are authorized to grant TPS as relief from removal for individuals from designated countries. The Secretary of Homeland Security and Secretary of State, are given the authority to issue TPS for a period of 6 to 18 months that can be extended if conditions remain the same in the designated countries. TPS recipients receive a registration document and temporary employment authorization for the duration that the foreign national is granted Temporary Protected Status. Temporary Protected Status is NOT a visa or a path to permanent residence. Foreign nationals who have been found inadmissible to the United States or in other words have been subject to a “bar” are not eligible to receive Temporary Protected States.

Authority of Law Statue

On April 18, 2016 the United States Supreme Court heard arguments in the lawsuit United States v. Texas, a lawsuit brought by 26 states, led by the state of Texas, challenging President Barack Obama’s executive actions on immigration. These executive actions include the expanded Deferred Action for Childhood Arrivals (DACA) program, and the new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program announced by President Obama in November of 2014. Following this announcement, the Obama administration received push back from the Republican led House of Representatives. There was also public outcry from conservatives, when President Obama announced that these programs would not only shield eligible individuals from deportation, but allow them to obtain employment authorization. In February 2015 these initiatives came to a screeching halt, when a federal district court granted these states a preliminary injunction preventing the implementation of expanded DACA and DAPA to take place. Since then, the lawsuit has moved through the courts, and now remains at the Supreme Court. On Monday April 18th eight justices heard oral arguments in the case arguing for and against these executive actions on immigration. A final decision is expected from the justices in June. The Director of Advocacy at the American Immigration Lawyers Association (AILA) Greg Chen, AILA’s Legal Director Melissa Crow, and UCLA Law Professor Hiroshi Motomura weighed on what happened in the court Monday morning and what we can expect from the Court moving forward.

The experts identified 2 key issues that were discussed during Monday’s oral arguments.

The court mainly focused on:

  1. Threshold question: Whether or not the Supreme Court should consider the case in the first place. The court asked themselves if the plaintiff states have standing to sue in the first place to bring the case to the court.
  2. The Merits of the case: Whether or not the President has the authority to implement these executive actions based on the ‘Take Care’ clause of the constitution.

Greg Chen highlighted that this case is particularly important because for the first time in 20 years, we have not seen any real immigration reform from any of the three branches of government. Chen also noted that these executive actions on immigration, if implemented, would shield millions of undocumented immigrants from deportation. States also have a huge interest in passing these executive actions for the economic and tax revenue benefits alone, since undocumented immigrants have not been able to properly abide by tax laws due to their unlawful presence in the United States.

Melissa Crow highlighted that in Court proceedings, the traditionally four ‘liberal’ justices on the bench Breyer, Sotomayor, Ginsburg, and Kagan seemed to be sympathetic to the Obama administration in the questions they posed to the attorneys representing both sides in this lawsuit. Melissa noted that in order to overturn the federal injunction halting expanded DACA and DAPA, a fifth vote is required from the conservative camp either from Chief Justice Roberts or Justice Kennedy. The questions posed by the traditionally ‘conservative’ justices did not necessarily provide clues into their stance on these issues. Their questions simply showed that they were engaged in the issues and mostly focused on the issue of standing to sue.

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9152815014_f344695012_zU.S. Citizenship and Immigration Services (USCIS) has announced that premium processing for cap-subject H-1B petitions (Bachelor’s cap and Master’s cap) will begin on May 12, 2016. USCIS had previously announced that premium processing would begin no later than May 16, 2016. During fiscal year 2016, USCIS began premium processing on April 27th. This year there will be a slight delay in premium processing due to the large volume of cap-subject H-1B petitions received for fiscal year 2017. Approximately 3,000 more petitions were received this year, when compared to the previous year. USCIS guarantees a 15-calendar-day processing time for certain employment-based petitions as part of the premium processing service. If you did not submit Form I-907 Request for Premium Processing Service with your initial H-1B petition, and you receive notification that your petition has been accepted, you can upgrade your petition to premium processing at any time by filing Form I-907 with the filing fee.

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