Visa Lawyer Blog

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Finally some good news coming from USCIS. The Immigration Service today issued guidance on requesting deferred action for surviving spouses of U.S. citizens who died before the second anniversary of their marriage. Surviving spouses qualify for this temporary program if they were married to, but not legally separated from, their U.S. citizen spouse at the time of that spouse’s death; did not remarry; and are currently residing in the United States. Until this Memo there has been a lot of confusion in this area of law.

Until there is a legislative solution to remedy the situation commonly referred to as the “widow penalty,” USCIS is providing interim administrative relief in the form of deferred action to surviving spouses whose U.S. citizen spouses died before the second anniversary of their marriage. The “widow penalty” prevents widow(er)s of deceased U.S. citizens, who were married less than two years at the time of the U.S. citizen’s death, from becoming permanent residents based on the marriage. Under this action USCIS also will consider favorably requests for humanitarian reinstatement where previously approved petitions for widow(er)s had been revoked because of the law.

Surviving spouses qualify for deferred action regardless of whether the U.S. citizen spouse filed a Form I- 130 petition for them. Surviving spouses may ask to have their qualifying children included in their deferred action request. To be considered a “qualifying child” of a surviving spouse, the child must be younger than age 21 or otherwise qualify as a child when the deferred action request is submitted; currently reside in the United States; and be unmarried. Surviving spouses who apply for deferred action will need to file Form I-360 with supporting documentation and the $375 filing fee with the Vermont Service Center. Work authorization will be available to surviving spouses and qualifying children who are granted deferred action and who can establish economic necessity.

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Attorney General Andrew M. Cuomo announced on August 20 that his Office has shut down three New York companies providing unauthorized and fraudulent legal services to immigrant communities, in the latest stages of his ongoing investigation into immigration fraud. Under the terms of the agreements secured by Cuomo’s Office, Immigration Solutions and Systems, Inc. of New York, Alisandra Multiservices, Inc. of Brentwood, Long Island, and All Immigration Services of Great Neck, Long Island are permanently barred from operating a business that provides immigration-related services and must collectively pay approximately $118,000 in penalties.

Cuomo also announced separate lawsuits filed today in New York State Supreme Court against three additional companies providing legal services to immigrants which they were neither authorized nor accredited to provide. According to the lawsuits filed today in New York State Supreme Court, Immigration Community Service Corporation of Manhattan, and Professional Solutions Consultants (doing business as Reliable Clerical Services and Reliable Immigration Services), and Centro Santa Ana, both located in Queens, offered legal counsel to immigrants without being licensed attorneys or having the proper accreditation. In thousands of cases across New York City and Long Island, these companies unlawfully filed immigration petitions with United States Citizenship and Immigration Services (USCIS) on behalf of immigrants and their families, jeopardizing efforts to obtain legal status.

“The consequences of bad legal advice can be absolutely devastating,” said Attorney General Cuomo. “Fraudulent legal services can haunt individuals and their families for a lifetime. Companies and individuals that represent someone in a legal proceeding without having the authority to do so must be stopped, and my office will hold them accountable.”

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U.S. Immigration and Customs Enforcement (ICE), under the Department of Homeland Security is conducting massive I-9 Audits to trap the employers. As part of an I-9 audit, ICE agents review I-9 forms, company payroll records, W-2 reports, and other documents. They seek to determine whether the employer has properly checked the new employee’s identity and work authorization, and re-verified authorization, as needed for temporary authorizations. They also ascertain whether any counterfeit documents were used as proof of identity and/or employment authorization. John T. Morton, the new Assistant Secretary of U.S. Immigration and Customs Enforcement (ICE), under the Department of Homeland Security, recently stated that ICE intends to increase its attention to auditing I-9, employment eligibility verification forms. We all are aware that I-9 forms must be completed and retained by U.S. employers under specific requirements.

I-9 audits have dramatically increased in recent months. The audits stand at 652 Notices of Inspection (NOIs) for July 2009, alone. Many more employers will be notified by ICE in the coming months that their I-9s and company records will be audited. Fines for I-9 violations range from $110 for one single, minor or technical violation, up to $3,200 per violation for serious first offenses. A third offense can lead to a fine of up to $16,000, per offense. Employers should take compliance with Form I-9 requirements seriously, as there are multiple possible violations per form.

An I-9 audit may lead ICE agents to evidence that criminal law violations have occurred. ICE may accuse employers of knowingly hiring, retaining, or even harboring workers who are not authorized for employment in the U.S. The first immigration enforcement action by the Obama Administration came to a partial conclusion on August 18, 2009 in Washington state. ICE issued a press release on August 18, 2009 announcing that two corporate directors of a family-owned business in Bellingham, Washington had pled guilty to felony immigration violations. These two directors, siblings, each pled guilty to one federal felony count of aiding and abetting The said company itself has been charged with encouraging and inducing illegal aliens to reside in the U.S. and may face stiff fines for its actions.

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Employers and potential employees (and some immigration lawyers) are very confused when it comes to H1B visa numbers this year. The major reduction in the number of filings for H1B petitions has risen questions from employers regarding whether there is a set closing date for filing H1B cap petitions for fiscal year 2010, starting October 1, 2009. The answer to this is NO. Cap-subject H1B petitions can be filed for the full FY 2010 season, or until the numbers are all used up. As of 8-27-2009, cap numbers remain available and overall usage remains insignificant. Approximately 45,000 H1B visa numbers had been used toward the regular FY2010 H1B cap.

Also playing into the availability of H1B numbers is the increased scrutiny of H1B petitions, particularly those filed by software consulting companies. This has resulted in higher rates of denials and a general crippling effect on those companies that might otherwise file additional H1B petitions. If the U.S. Citizenship and Immigration Services (USCIS) does not receive enough approvable H1B petitions to exhaust the regular H1B cap for 2010, it will continue to accept H1B petitions against this cap until the end of 2010 which will be September 30, 2010.

If the numbers of visas out until October 1st, then employers will be able to request immediate start dates for employees. This may result in some additional filings, as it is more in keeping with the actual needs of employers. I predict an increase in H1B filings as of October 1, hoping the economy will rebound at that time as well.

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Facebook be careful, DHS now offers a social network website called Our Border that allows for an open dialogue with a wide network of people interested in Southwest border issues. The website offers groups such as Comprehensive Immigration Reform, USCIS, CBP, and ICE.

I guess they have a lot of resources from our filing fees:))

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Any Immigration attorney with clients from the Philippines, China and Mexico, knows about the suffering of families from these countries due to the lengthy visas backlogs. Now immigrants across the country are suing the federal government to try to get their adult children into the country without another lengthy waits, sometimes decades.

Under U.S. immigration law, children 21 and older cannot immigrate under their parents’ applications for green cards. Under the Child Status Protection Act of 2002, aimed at preventing children from “aging out” due to lengthy processing times, means these grown children should be allowed into the country soon after their parents file new paperwork on their behalf. But the government argues that many of those who aged out during the wait are now new applicants and must start from the beginning. They want them to start all over, this will result in many years of wait for these relatives.

The waiting crisis resulted in other social crisis. The dilemma has prompted many immigrant parents to urge their adult children to remain single while the lawsuits are pending or until they get green cards. That’s because permanent residents cannot apply for their married children to get green cards and must wait to become U.S. citizens to be able to do so.

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U.S. Attorney Tim Johnson, Southern District of Texas has announced sentencing and convicting of a Houston based Immigration attorney for money laundering and conspiring to engage in visa fraud. Kenneth L. Rothey, of Houston, pleaded guilty last Tuesday and was sentenced to 14 months in prison by U.S. District Judge Keith Ellison.

Rothey was a fugitive living in China from 2005 until July 2008 The ICE investigation, initiated in May 2001, lead to the indictment and subsequent extradition of Rothey from China to United States.

Evidence submitted in court said that Rothey and others created an illusory business relationship with Chinese and U.S. companies by entering into contracts of sale in exchange for a fee. On paper, each of the eight US companies was shown as a Chinese subsidiary. Rothey and members of his firm prepared and presented fraudulent petitions and supporting documents on behalf of their clients to the former INS. Ten Chinese clients were willing to pay hundreds of thousands of dollars to obtain permanent resident status through employment-based visas.

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United States DOL has advised AILA of that the iCERT system will be taken out of service on Tuesday, August 25, from approximately 5:00 AM to 11:00 AM EDT for system upgrades. DOL will be adding many new features to the application in order to better serve our needs.

Salient features in the new release include:

• The ability to Withdraw Certified LCAs on-line

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President Barack Obama gave a new hope to Immigration reform movement yesterday, when he attended in a White House meeting with more that 100 immigration supporters, and indicating to go ahead with reform soon. However, there is no set deadline but it is expected to hear something in this fall unlike Mr. Obama’s earlier indication for the year to come.

The session was officially hosted by Secretary of Homeland Security Janet Napolitano, who has been sharply criticized by immigrant advocates in recent days for putting too much emphasis on enforcement and too little on reform legislation and making the immigration system more humane.

The meeting was attended by advocacy groups, religious organizations, unions, employers and law enforcement. United Farm Workers Union President Arturo Rodriguez said participants delivered blunt messages to Napolitano that she needed to adjust her public message “Very frankly, one issue was that we want to make sure you’re communicating the importance of immigration as much as you are communicating the importance of enforcement,” Rodriguez said. “We are a nation of laws. We all understand that, but simultaneously we are a nation of immigrants as well that treats people with dignity and respect. We delivered that. I think she got that message loud and clear from everybody.”

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US economy is finally coming out of recession and one of the worst financial crisis since the economy meltdown. This was declared recently by Ben Bernanke, Chairman of Federal Reserve. Bernanke added that situation is improving in rest of the world too including US.

Bernanke stressed that despite much progress in stabilizing financial markets and trying to bust through credit clogs, consumers and businesses are still having trouble getting loans. The situation is not back to normal, he said. Restoring the free flow of credit is a critical component to a lasting recovery.

“Although we have avoided the worst, difficult challenges still lie ahead,” Bernanke told the gathering. “We must work together to build on the gains already made to secure a sustained economic recovery.” The remark made by Fed chief’s is crucial as it two years after the financial crisis broke out and about one year after it showed its effect across US.

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