.
THE OH LAW FIRM
Dedicated Professionals in Immigration Law for
Over 24 Years@
www.immigration-law.com
(home page)
Breaking
News Archive XIV
Reported by Matthew Oh, Attorney
(06/15/06 - 04/01/2007)
*
|
The Oh Law Firm and its Lawyers
are not responsible for reliance by the reader on this information
as each individual situation may be unique and different. The
readers are advised to seek legal counsel from a qualified immigration
attorney. The information stated here is subject to change. |
The posting in the Breaking
News requires visitors' some level of knowledge of immigration
issues. Reading one posting without closely following previous
postings will result in reading it out of context. The laws, policies,
and practices of agencies are constantly changing and people should
be careful in reading old postings. People should not take the
news in this page as a legal advice. The purpose of Breaking
News is to feed into the immigrant communities up to the minute
news, especially inside information of agencies' decision
making. Just like any other news reporting, the life span
of the news can be very short. This is not a text book
or a law book. It is a "news report." This site will
welcome "only" those visitors who follow the news reports
everyday just like the subscribers of daily newspapers. The sole
purpose of this site is to serve the immigrant communities..
Home Page: www.immigration-law.com
Current
Page[06/01/2008 - Present]/Archive XVII[03/31/2008
- 05/31/2008]Archive
XVI[08/01/2007 - 03/31/2008/Archive XV [04/30/2007 - 07/31/2007]/Archive XIV[06/15/2006 - 03/31/2007]Archive XIII [12/01/05 - 06/14/06]/ Archive XII [08/01/05
- 11/30/05]/Archive
XI [04/30/05 - 07/31/05
Hypothetical Facts and Legal Analysis (II) (current)
Hypothetical Facts and Legal Analysis (I) (Archives 2005 & Mid-2006 re: 2005
Retrogression and Immigration Reform Legislation)
t
"We
Celebrate Eleven Million Visits"
03/30/2007: Last-Minute H-1B Filing Still Do-Able Tomorrow
via Saturday Pick-Up Overnight Delivery Services
- People who failed to ship out the H-1B filing
today can still ship it out tomorrow through the Saturday Pick-Up
services,which will be delivered to the agency on Monday, 04/02/2007.
- There are a large number of people who think
they cannot file H-1B petition before the cap reaches because
either they have a problem of being unable to submit nonimmigrant
status through October 1, 2007 or they will not be able to maintain
nonimmigrant status. They should know that their employers can
still file the H-1B petitions for them for consular processing
without submitting any information or documents on the employees'
status in the U.S. Since they may not be able to apply for H-1B
until October 1, 2008 unless they get H-1B visa before the FY
2008 cap reaches on Monday or so, they should seriously consider
this option and file it tomorrow. In that case, they should not
ask change of status. They should rather request the consular
visa processing. Remember that LCA can be filed even during the
weekend.
03/30/2007: Special News for Last
Minute H-1B Filers
- The Labor Department's LCA
filing system is undergoing system glitch and people have a problem
of printing out the certified LCA. Since the H-1B filing requires
the certified LCA, this creates a huge problem. Since people
can even file via Saturday pickup overnight delivery service
tomorrow, Saturday, this could have been a nightmare.
- In order to accomodate the
unusual crisis, Mr.Michael Aytes, Associate Director of USCIS
has released a special memorandum dated 03/30/2007 addressed
to the Service Center Directors that Service Centers may accept
the H-1B petitions without a copy of the certified LCA if the
filings are accompanied by "screen prints" from the
DOL website showing that the LCAs were in fact certified on March
30, 2007 (or any other date on which USCIS can verify with the
DOL that the DOL LCA website malfunctioned). The screen print
must display the ETA case number, the petitioner EIN, and the
employer name. However, prior to final adjudication of the petitions,
USCIS may require copies of the certified LCAs.
03/30/2007: Bush Backed Off From Initial Proposal &
Moved to the Right in the New CIR Proposal Sputtering Party-Line
Division Rather Than Bi-Partisan Chances in Congress
- In the yesterday's meeting with the legislators
in the White House, reportedly Bush proposed his CIR which deviated
from his previous proposal and moved to the right making the
immigration reform more restrictive than his previous proposal
as well as the pending House bi-partisan STRIVE Act. Reportedly
the right-wing Republicans are taking side with Bush's proposal
creating party-line division in the CIR in the Congress rather
than bi-partisan collaboration. Read on. For the full
text of the White House proposal, please click here.
03/29/2007: One of the Busiest Days for Employment-Based
Immigration Lawyers and Law Firms
- Tomorrow will be probably marked one of the
busiest days for these law practitioners as they will have to
ship out literally tons of FY 2008 H-1B cap filing. Report indicates
that certain overnight delivery services have hired additional
temporary workers to meet the unusual crushing business (60,000
or 80,000?). These practitioners are going through a tremendous
stress and pressures because of the time-sensitive workloads.
- On top of the amount of work they need to
accomplish before the end of the day tomorrow, they faced some
last-minutes questions which they had to find answers quickly.
Among others, the following two questions just pushed some of
these practitioners to the edge or corner, whichever term you
may want to use. In the end, they received the answers through
the AILA, but it was indeed a stressful experience for these
practitioners.
- Question one involved those lawyers and lawfirms
that use UPS for overnight delivery services. California Service
Center released a list of overnight carriers which are acceptable.
Believe it or not, the list did not include UPS. Those who have
prepared the package for UPS delivery of filings had to experience
a sort of "panicking?' Late this afternoon, the AILA confirmed
that CSC would accept the UPS delivery as well. What a relief!
- Question 2: USCIS released their tips for
customers as to how the H-1B cases should be prepared and filed.
Somehow, there was a statement that the filers should sign the
LCA in blue ink and file it. Since this could be taken wrongly
by the filers as a requirement for filing of original LCA, for
a while, there was mind-boggling struggle for these practitioners.
Fortunately, the USCIS timely revised its announcement acknowledging
that it was an error and people should file a "copy"
of the certified and signed LCA and not original. We thank the
USCIS HQ for clarifying the issue "timely."
- People may as well forget about calling or
contacting these lawyers and firms tomorrow. Their schedules
will be so chaotic that they may not even remember your name!?
Please give them a break. That includes this reporter. Please
do not even think about calling this office tomorrow.
- Once this frenzy is over, someone will have
to figure out how much the USCIS was able to collect the fees
in such a short period of time and whether this mountain of checks
plus additional mountain of checks from the to-be-increased filing
fees in June or so will be able to meet the USCIS obligation
to raise a monstrous amount of fund through the collection of
user fees under the FY 2007 USCIS appropriation legislation.
03/29/2007: USCIS Implements 2007 Poverty Guideline for
I-864 Affidavit of Support Eligibility Effective 04/01/2007
- The poverty guidelines are annually released
by the HHS. For 2007, the HHS released the 2007 poverty guideline
in February. However, thie HHS poverty guidelines did not take
effect for the I-864 Affidavit of Support requirement as both
the DOS and USCIS did not fix their effective date for the purpose
of the immigrant visa adjudication and the immigrantion benefit
adjudication. Under the HHS rule, effective date for implementation
of the published poverty guidelines is determined by each relevant
federal department. Accordingly, even if the poverty guideline
was released by the HHS in February, it was not binding for the
determination of eligibility of I-864 affidavit of support.
- Earlier this month, the State Department
released a cable to the visa posts to implement the 2007 poverty
guideline. Since then the 2007 HHS poverty guidelines has been
binding for the purpose of immigration visa application. However,
unlike the last year, the USCIS has been delaying implementation
of the new poverty guidelines for 2007. USCIS has just released
new I-864P
which sets out the poverty guidelines for immigration proceeding
effective April 1, 2007. Accordingly, the sponsors of the family
petitions must now meet the 2007 income guidelines beginning
from 04/01/2007.
03/28/2007: Testimony of Dr. Gonzalez, USCIS Director,
Before the House Committee on Immigration Reform and Temporary
Guest Worker
03/27/2007: USCIS Released 04/02/2007 FY 2008 H-1B Cap Petition Filing Tips:
"MUST-READ" Material for H-1B Filers
- The USCIS announced today that the USCIS will begin accepting H-1B petitions
subject to the fiscal year 2008 (FY08) H-1B cap on Monday, April
2, 2007. USCIS will not reject cases delivered during the weekend
(March 31 or April 1). Instead, USCIS will treat those petitions
as if they arrived on April 2. The deciding factor for USCIS
is when the agency takes possession on the petition and not when
the petition was postmarked.
- In reading these two important
materials of the USCIS, there are two points which need people's
attention. First: Any delivery to the agency on Friday will face
rejection. This announcement is related to the deliveries made
on Saturday and Sunday. Second: The filing tips ask to use blue
color pens to sign the forms. Unfortunately, the USCIS also instructed
people to file LCA with the petition and asked to sign LCA using
a blue color pen, giving impression that people should file the
original LCA with the USCIS. It is not true. People should not
file "original" signed LCA with the USCIS. They should
file a "copy" of the signed LCA and not original, according
to the AILA. The original signed LCA must be kept by the petitioner
under the DOL's and USCIS' rule.
03/27/2007: STRIVE Act and USCIS Rule-Making Agenda
- Our review of this proposed legislative bill
reflects the probably participation of the USCIS in the draft
of the bill. There are several sections of the bill which were
reflected in the USCIS's long-term rule-making agenda such as
precertification of certain employers in the immigration process,
premium processing of certain proceedings, etc. We commend the
sponsors of the bill for their job well done for seeking and
coordinating with the stakeholder agencies.
03/27/2007: USCIS International Offices Resumes I-130 Petitions
for the Overseas Residents U.S. Citizens
- We have already reported the identical State
Department announcement. For the USCIS announcement, please click here.
03/27/2007: Continuing Confusion in Immigration Reform Legislation
- It is only one week that the immigrant community
was elated by the introduction of a fantastic immigration reform
bill (STRIVE) by Congressman Gutierrez in the House, but on the
Senate side, there is a mess that is continously developing.
We reported earlier that the two bipartisan leaders of Senator
McCain and Senator Kennedy reportedly rifted their partnership.
Now, another Senator is about to add confusion to this mess.
News report indicates that Senator Durbin
of Illinois may introduce within this week a legislation to put
a block on the H-1B abuse and restrict the H-1B worker petitions.
This move is totally shocking considering the fact that a rosy
H-1B reform was just introduced as part of the STRIVE Act of
2007.
- Reportedly, Senator Durbin will propose to
make it mandatory that the employers engage in the recruitment
of U.S. workers prior to filing a H-1B petition and file sworn
statement in the form of attestation that they failed to locate
a qualified U.S. worker as part of the H-1B petition. Currently,
such attestation is mandated for the so-called H-1B dependent
employers only. Additionally, the proposal reportedly would mandate
the DOL's annual audit of the employers hiring 100 or more employees
out of which 15% constitutes H-1B employees. Once such proposal
is enacted, there will be substantial changes in the flow of
foreign professional workers. At this time, H-1B visas lay a
stepping stone for foreign professional workers to land in this
country and to apply for permanent residence.
- The late news that the FY 2008 H-1B cap may
reach in one day on April 2, 2008 indeed raised a concern in
the country as it can be taken as a pervasive abuse of this visa
petitions by some employers. Part of the current clog in the
employment-based immigrant visas for professional workers is
arguably associated with the abuse of these visa petitions. Please
stay tuned to this website for the development of this important
news.
03/26/2007: Reminder of Changes After This Week
- This is a critical week in the immigration
business in that the following changes, among others, will take
effect after this week:
- Nonimmigrant Immigration Benefits Petitions/Applications
of I-129 and I-539 must be filed either with VSC or CSC as part
of the Phase III Bi-Specialization Program. Until now, the petitioners
and applicants were allowed to file with the CSC even though
the official filing window was VSC, but such filing will no longer
work unless the jurisdiction which is determined by the job site
or residence under the new filing procedure falls under the CSC
jurisdiction.
- EAD Application will be rejected unless the
form is 02/28/2007 version. Most of the commercial immigration
form businesses have updated their databases, but those who intend
to ship out at the end of this week should make it sure that
they use the new form.
- The Hold Harmless RIR conversion package
must be filed by April 1, 2007 with a few exception involving
those who received the prevailing wage determination late. When
the hold harmless RIR conversion was requested but one fails
to file the recruitment packed timely, not only RIR conversion
will be denied but also the original TR case will be denied and
terminated!!
- USCIS filing fee increase proposed regulation
comment period will end on 04/02/2007. Those who want to have
their voices heard in this rule making process must make it sure
that their comments are timely sent out within today.
- FY 2008 H-1B cap filing starts on 04/01/2007.
The rumor goes that the FY 2008 cap will reach on the first day
of 04/02/2007, Monday. Obviously, if it is true, unless people
send out the overnight delivery services at the end of this week
so that it will be delivered on next Monday, one will have to
wait until October 1, 2008 to get a new H-1B status unless the
pending STRIVE Act, H.R. 1645 or the Senate CIR bill becomes
a law.
- If you file H-1B on 04/02/2007 with Premium
Processing Request, unless your request uses the form I-907 of
08/28/2006 version, such I-907 will be rejected. If you wrote
one check including the PPS fee of $1,000 and PPS I-907 is rejected,
the entire H-1B petition will also be rejected. Careful.
- Most importantly, April Fools Day begins
next week. Unless you enjoy the April Fools Day, please take
care of your business within this week.
- Just a reminder. Weather is turning beautiful
all over. Please enjoy your Spring and lie down on the grass
and enjoy the blue sky and clouds during your lunch break for
your day dreams!
03/26/2007: USCIS Announces FY 2007 Second Half H-2B Cap Reached
03/25/2007: Completion (90%) of Main Portion of Legal Immigration
Reform in STRIVE Act of 2007
- We have almost completed the summaries of
legal immigration reform part of STRIVE Act of 2007. People will
see above two links. One is the link to the STRIVE Act Summary
and the other is the archive Q&A related to the previous
comprehensive immigration reform and legal immigration reform
legislations. The archive Q&A will give an opportunity for
the readers to review the STRIVE Act in perspectives and analysis
of the involved issues from previous experience in the legislative
activities.
03/24/2007: Our Plan for Summarization and Q&A of STRIVE
Act of 2007
- This proposed legislation encompasses reforms
in almost all segments of immigration, and as such is a huge
document. Accordingly, it would be impossible for anyone to summarize
the entire text of the bill in a short period of time. We have
thus decided to summarize the bill by each subject area step
by step. This plan is based on our assumption that different
stakeholders and different immigrants have primary interest in
only certain type of issues. For the overall outlines, readers
are encouraged to read the outlines which have been released
by the Congressman Luis Gutierrez, the sponsor of the bill. We
thank the Congressman Gutierrez for sharing the copy of his summary.
- The bill includes the following Titles:
Title I - Border Enforcement
Title II - Interior Enforcement
A - Reducing the Number of
Illegal Aliens in the U.S.
B - Passport and Visa Security
C - Detention and Removal of Aliens Who Illegally Enter or Remain
in the U.S.
Title III - Employment Verification
Title IV - New Worker Program [New H-2C Temporary Guest
Worker Program]
Title V - Visa Reforms
A - Backlog Reduction
B - Preservation of Immigration Benefits for Victims of a Major
Disaster or Emergency
Title VI - Legalization of Undocumented Individuals
A - Conditional Nonimmigrants
B - DREAM Act of 2007
C - AgJOBS Act of 2007
Title VII = Miscellaneous
- Quick perusal of the titles
indicates that the bill covers following four broad categories:
- Border Immigration Inspection
and Enforcement Under Title I: Primarily current CBP
functions within the DHS
- Immigration Enfocement Under Title II and Title III: Primarily current ICE
and immigration court functions including removal and deportation
of aliens.
- Illegal Immigration Relief Under Title IV and Title VI: Primarily current functions
of USCIS. This is the area of reform which is extremely
politically controversial and can determine the fate of this
legislation.
- Legal Immigration Reform Under Title V: Primary interest lies with the current
backlog reduction, readjustment of immigrant visa allocation
and numbers, reform in immigration procedures.
- We will start with the subject of "Visa
Reform" or "Legal Immigration" part of the bill.
Readers are requested to frequently visit our Temporary File
site to review these summaries. We are also planning to restart
Q&A soon focusing on the immigration reform. Please stay
tuned.
03/23/2007: Senate's Likely Schedule for
CIR Mark-Up
- Report indicates that Senate Leader Harry
Reid has told House members he wants to have a bill on the floor
of the Senate during the last two weeks of May. We will monitor
closely the CIR legislative activities in each House during the
next two months.
03/23/2007: STRIVE Act Bill (H.R. 1645)
Sponsors and Status
- The bill was introduced on the floor yesterday
and referred to the House Judiciary Commitee and the Homeland
Security Committee. The sponsors of this bill are: Mr. GUTIERREZ
and 29 co-sponsors of Flake, Baca, Lincoln Diaz-Balart of Florida,
Emanuel, Radanovich, Jackson-Lee of Texas, Lahood, Crowley, Mario
Diaz-Balart of Florida, Giffords, Ros-Lehtinen, Schakowsky, Fortuno,
Becerra, Cardoza, Cuellar, Gonzalez, Grijalva, Hinojosa, Napolitano,
Ortiz, Pastor, Reyes, Rodriguez, Roybal-Allard, Salazar, Serrano,
Sires, and Solis.
- Please stay tuned to this website for the
full text and summaries.
03/22/2007: What Was the Sources of Bad
Blood Between McCain and Kennedy?
- They are veteran politicians and unless they had certain
calculated hidden agenda, this news would not have been blown
out through Boston media. Who is to be blamed, McCain or Kennedy?
Was Senator Kennedy immatured enough to completely alienate his
allies in the opposite party driving them into the corner or
it was Senator McCain who attempted to send a "cute wink"
to ultra-conservative right-wing community? It is indeed an irony
that last year, it was the House that had destroyed the CIR legislation
and the Senate was the strong ally of the immigrants. With such
assumption, the new ruling party reportedly planned to initiate
CIR in the Senate followed by the House consent. Now because
of the current rift at issue in the Senate, it has to work the
other way around and unless the House passes the new CIR bill
in favor of immigrants, the chances for the passage of the new
CIR may not be too promising. What a circus!
03/22/2007: Sen. McCain and Sen. Kennedy
Partnership for Joint CIR Proposal Falters
- There is a shocking news that the rift between
Senator McCain and Senator Kennedy broke down casting dark shadow
for the fate of CIR on the Senate side. The partnership totally
collapsed and there will no longer be "McCain-Kennedy"
joint CIR bill. The rift between the Democrats and the Republicans
has developed so wide and the Republicans are reportedly seeking
their own immigration proposal. Are we returning to the painful
course of post-S.2611 travesty in 2006 experienced during the
hot Summer in 2006? The news is particularly shocking when there
is a bi-partisan immigration reform initiative on the House side!!
Read on.
03/22/2007: NSC Special Announcement on
Typos in I-485 Transfer Notice Issued to Applicants on 02/26/2007
- If people have received a I-485 transfer
receipt notice dated 02/26/2007 from the NSC that the NSC received
the transfer of their applications from the Department of State
rather than CSC, people may ignore such typos. NSC promises that
they will process the CSC transferred cases in a normal fashion
without being affected by the typos. This notice was forwarded
to the AILA.
03/22/2007: House Version CIR "STRIVE
ACT" and EB-Based Immigration Reform
- This bill is scheduled to be introduced in
the House shortly. Pending the introduction, some organizations
were successful in obtaining advance copy of the bill and released
the summaries.
- As for the Employment-Based Immigration Reform,
it appears that the key provisions include:
- Total EB Annual Quota: 290,000
- Recapture of Unused Number for the future
years
- Groups Exempt from the Numerical Limitation
- EB Spouses and Children whose visas are issued
after 10/01/2004 upto the annual maximum of 800,000.
- Certain Professionals including Extraordinary
Ability in the Sciences, Arts, Business, and Other Critical Fields
- Foreign Students with an Advanced Degree
in STEM from a U.S. Institutions or Foreign Institutions
- H-1B Exempt from the Annual Caps
- Those with Advanced Degree in STEM from
a U.S. Institutions or Foreign Institutions
- H-1B Quota Increase: 115,000with a flexible market based annual adjustment
upto 180,000/year
- U.S. STEM Degree Holders: New visa classification and Labor Certificatioin
Waiver Immigration upon receiving a job offer in the U.S.
- New H-2C Unskilled Worker: Basically temporary guest workers with the opportunity
to apply for permanent resident status after five years of employment
in this visa status.
- As soon as the copy is made available, we
will summarize and post it.
03/22/2007: BIA Rules Certain Criminal Convicts
on Probation Subject to Mandatory Detention
- Yesterday, the Board of Immigration Appeals
ruled that an alien who has been apprehended at home while on
probation for criminal convictions is subject to mandatory detention
under the Transition Period Custody Rules regardless of the reason
for the most recent criminal custory inasmuch as it is ascertained
that he/she was released from criminal custody after 10/08/1998.
See, In re Kotliar, 24 I&D 124 (BIA 2007),
Interim Decision #2558, March 21, 2007.
03/21/2007: Consular Offices Abroad Resume
Accepting I-130 Immigrant Visa Petitions
- Consular processing of I-130 petitions by
the U.S. citizens residing in a foreign country has been suspending,
but effective today, visa posts reinstated acceptance and processing
of I-130 petitions. For the announcement, please click here.
03/21/2007: House Version Immigration Reform
Bill Poised to be Introduced Shortly
- A bi-partisan House bill led by Rep. Gutierrez
is expected to be introduced shortly. The details have yet to
be disclosed. When it comes to illegal immigration reform, this
bill apparently mirrors the last year's CIR. As for the legal
immigration including visa number adjustment, it may not be as
broad and favorable as the CIR which was passed in the Senate
last year. Read on. Please stay tuned.
03/21/2007: Extension of Recruitment Package
Filing for Hold Harmless RIR Conversion Request Filers Receing
Prevailing Wage E-mail From BEC Between 03/01/2007 to 03/16/2007
- Report indicates that there are some employers
who filed hold-harmless RIR conversion request timely but failed
to receive the prevailing wage determination response from the
BEC until the period between March 1 and March 16, 2007. Since
these employers are required to complete the required recruitment
and file the recruitment packet on or before April 1, 2007, some
of these filers did not have enough time to complete the recruitment
process so that they can submit the recruitment packet by April
1, 2007.
- According to the AILA, the DOL has decided
to extend the deadline for the recruitment packets until April
13, 2007. Remember that this extension applies only to those
who received the prevailing wage determination response between
March 1 and March 16, 2007 and no others. These filers should
immediately contact the BEC to obtain the confirmation of the
extension. All other applicants should file the required recruitment
packet by April 1, 2007.
03/21/2007: Revision of PERM Application
Form Under Consideration
- Sources indicate that the DOL is considering
revision of the current ETA 9089. Please stay tuned to this website
for the developing news.
03/21/2007: Iranian Visas
- US Department of State has released the following
information relating the issue of biometric collection for Iranian
government and diplomatic officials: Are Iranian diplomats and
party subject to the same fingerprinting and security screening
procedures as other travelers? Answer: All visa applicants are
subject to robust security screening procedures. However, applicants
for diplomat visas (A and G) are not subject to biometric finger
scanning procedures at U.S. Consulates and Embassies. The Iranian
President and his party did not provide biometric finger scans
to obtain their visas. Their visas are single entry and valid
for 3 months specific to the U.N. visit. Any travel outside a
25-mile-radius of New York City must have the prior approval
of the Office of Foreign Missions of the U.S. Department of State.
03/18/2007: USCIS District/Field Offices Facility Revitalization
Strategy and Southeast Florida Field Offices New Facilities
- USCIS has released this strategy on 03/16/2007.
Under this strategy, the USCIS will renovate or revitalize the
district and field office facilities step by step each year.
The USCIS has now secured the leases and building plans and blueprints
for the Southeast Florida Field Offices. The fact
sheet for each new field office facility is as follows:
- The AILA is scheduled to have its annual
national conference in June 2007 at Orlando, Florida. This reporter
and his family members will attend and visit Orlando at the time.
We look forward to visiting the new facility in the summer.
03/18/2007: NSC & Concurrently Filed
I-140 Denial & Refiling of I-140 Pending Appeal at AAO
- Nowadays, I-140 petitions are denied in a
large numbers not because of the defects in the underlying certified
labor certification applications but because of the employer's
financial ability to pay the proffered wage. When the I-140 is
denied in the context of current filing of I-140/I-485 and such
denial has been appealed to the AAO, question remains whether
the petitioner can refile I-140 pending the appeal and what procedure
the petitioner should follow. The rules and NSC policies appear
to be as follows:
- (1) Denial of I-140 petition does not invalidate
the underlying certified labor certification application unless
it is invalidated for fraud or revocation. Accordingly the petitioner
can refile I-140 petition at any stage.
- (2) However, a single certified labor certification
application cannot support two I-140 petitions when one of which
supports concurrently filed I-485 application, particularly when
the petition is denied and appealed to AAO. For the reason, the
NSC requires that the petitioner first withdraws the denied I-140
petition and appeal which is pending at the AAO in order to refile
I-140 petition. Otherwise, refiling of I-140 petition will be
denied. Once it is withdrawn, the NSC will accept the withdrawal
letter and proof of its delivery to the AAO as evidence of withdrawal.
- (3) Once the concurrently filed I-140 is
denied, accompanied I-485 is also usually denied by the agency.
Thus if I-485 is also denied by the agency, unless the NSC, on
its own motion, reopens the decision of denial of I-485 upon
reversa of denial of I-140 petition by the AAO, the I-485 application
remains denied. Accordingly, if that happens, the parties should
also refile I-485 application at the time when new I-140 petition
is refiled pending the appeal.
- (4) If I-140 is denied, but for whatever
reasons the agency has yet to deny I-485 application, it appears
that NSC may exercise a discretion holding the decision of denial
of such I-485 application once the parties timely refiles I-140
petition with the proof of withdrawal of pending appeal of I-140
denial before the AAO.
- Caveat: The foregoing policy does not answer one critical
question of impact of withdrawal of appeal and refiling of I-140
petition and I-485 application on retrogression of the visa numbers.
When the NSC requires refiling of I-485 application, one may
assume that unless the visa number is available at the time of
refiling of I-485 application, one may not be able to file the
new I-485 application. Accordingly the withdrawal of denied I-140
and refiling of new I-140 petition in the context of the concurrent
I-140/I-485 filing may accompany a huge risk unless
the visa number is available when the parties seek such option.
Accordingly, people should never, repeat never, take such action
unless the circumstances are carefully and thoroughly reviewed
by their legal counsels first. The huge risk includes that once
one wins on appeal and the agency reopens the denial of accompanying
I-485 application, the retrogression at the time of motion to
reopen may not affect the "pending" status of I-485
application. However, when the appeal is withdrawn and they will
have to file new I-140 petition and I-485 application, depending
on the visa number retrogression, they may not be able to file
the concurrently new I-140 and I-485 application. Beware, Beware!!
03/17/2007: I-140 Processing Standards of Nebraka Service
Center
- AILA has summarized the NSC policies on I-140
processing based on its meetings and Q&As with the NSC as
tips and updates for I-140 practice guidance. Readers are reminded
and warned that the following summary is neither binding as a
law or rule and is not even a memorandum. It just represents
the NSC's current "practice" which can vary or change
in the specific cases depending on the individual-specific facts
or change any time. Readers should seek legal counsel on their
specific situations.
- Bachelor's Degree Equivalency involving
3-Year Post-Secondary Foreign Degree:
- Issue of Completion of Four-Year Degree
Equivalent Credits in Three Years:
Despite its general policy not recognizing
a foreign three-year degree as equivalent to a U.S. bachelor's
degree, NSC is also examining the specific educational sequence
and content of individual cases and if they find such addtional
credits would make it equivalent to a U.S. bachelor's degree,
they would recognize such equivalency. The catching words are
"sequence" and "content." Accordingly, even
if one earned enough additional credits that are normally required
in a U.S. bachelor's degree, they can refuse to accept the equivalency
if the sequence and content of additional courses or credits
fail to meet their standards. Accordingly, they will not only
consider the quantity of the credits and programs but also quality
of the credits and programs. It thus appears that evalution of
the specific courses and credits based on these standards by
academic institutions may have a better chance to obtain approval
than other evaluation reports that only count the number of credits.
[Caveat]: Despite the exceptional rule, I-140
will be still denied if the labor certification application specifically
required "4-year" in college for a bachelor's degree
or equivalent. NSC will stick to the specific language in the
labor cerification application. Accordingly specifying 4-year
education as requirement of a bachelor's degree in the labor
certification application may lead to a trap.
- Issue of Equivalency of Three-Degree
Foreign Degree Plus Two-Year Foreign Post-Graduate Degree: The rule on this issue remains still up in the air.
Experiences varied.
- Combination of 4-Year Bachelor's degree
in Unrelated Field and Master's Degree in the Field of Specialty: The NSC distinguishes
between the graduate degree earned in the U.S. and the same degree
earned in a foreign country. If the alien was admitted to and
granted a master's degree in the field of specialty by a U.S.
graduate school, the NSC will accept the bachelor's degree equivancy
in the field of specialty even though three-year foreign degree
was earned in a different field. However, the same will not apply
in the foreign earned master's degree in that a foreign master's
degree in the specialty field will not "automatically"
lead to a U.S. bachelor's degree equivance in the specific field
of specialty. NSC will evaluate each situation case by case and
determine this issue. Probably they may apply the same rule of
reviewing sequence and conent for the purposes. Accordingly,
a careful selection of credential evaluators will be critically
important.
- EB-31 (Skilled Worker) vs. EB-32 (Professional)
Issue: From the standpoint of
EB-3 applicant, it does not matter whether one obtains EB-3 approvals
in EB-31 or EB-32 as the visa number falls under the same category.
Accordingly, their strategy is to obtain EB-3 I-140 approval,
no matter whether in Skilled Worker classification or in Professional
classification. In achieving this goal, one should draft the
labor certification application carefully considering the following
NSC policy: (1) If the petitioner requires I-140 for "professional"
when the labor certification and the alien's background supports
only Skilled Worker classification, NSC will still approve such
I-140 not as a "Professional" classification but "Skilled
Worker" EB-3. In this case, the alien's goal is achieved.
(2) On the other hand, if the labor certification application
required a professional backgound and the alien fails to meet
the professional background, NSC will refuse to approve it as
Skilled Worker classfication and deny such I-140 petition on
the ground that the labor certification requirements cannot be
downgraded to accomodate the beneficiary's qualifications. It
is thus critically important that in presenting the I-140 petition,
petitioner may require professional or skilled worker classification
such that should one fail to meet one of the two classifications,
one's EB-3 petition can still be approved.
- Availability of Multiple Petitions
(EB-2 and EB-3) Using Single EB-2 Labor Certification Application:
This strategy is particularly
valuable when one's EB-2 I-140 can be potentially deniable but
EB-3 I-140 petition is approvable in either professional classification
(EB-32) or skilled worker classfification (EB-31). Additionally,
one never knows whether EB-2 retrogression will become worse
than EB-3 retrogression for a specific country.
- We hope to learn the position of TSC for
the identical issues.
03/16/2007: Clarification of USCIS Fee Increase Timeline
- The USCIS published a proposed rule to increase
the immigration filing fees SUBSTANTIALLY. The published rule
says public should submit their comments "on" or "before"
April 2, 2007.
- This message is posted because it appears
that there is a grave misunderstanding of the date of fee increase
as April 2, 2007 and there tends to be a frenzy of filings of
applications or petitions for the fear that unless their papers
are filed with the USCIS by April 2, 2007, they will have to
pay a huge filing fee. It appears that the rumor that FY 2008
H-1B cap may reach on the first day, April 2, 2007 must have
been partially affected by this misunderstanding. The released
rule is not a binding rule but a non-binding "proposed"
rule. This rule is not binding until the comment period is over
and the USCIS drafts and obtains another cycle of OMB review
and approval for the final or interim rule. The final or interim
or interim final rule is binding.
- Careful review of the released proposed rule
will indicate that the comment must be received by April 2, 2007,
the first working weekday in April. Some people want to file
their cases such that they cases will be received by the agencies
at the last by April 2, 2007 without knowing that their understanding
of the fee increase timeline is wrong. We reported earlier that
it may take sometime before the fee increase will be shaped in
a final or interim or interim final rule for the two reasons,
among others. First, the rule making law requires that once comments
are received and carefully considered by the agencies, they will
have to draft a final rule or interim or interim final rule reflecting
the opinions of the stakeholders, public in general or related
government agencies. Once this draft of final or interim or interim
final rule is presented to the OMB of the White House, it should
take from 30 days to 90 days unless there is an emergency or
special reasons that justify earlier completion of the OMB review.
Hypothetically, let's assume that the OMB will approve it in
ten days. Still it does not mean that the fee will increase on
April 12, 2007. Why not? Because the USCIS is legally required
to carefully and fully review, analyze, and consider every comment
presented to them. Accordingly depending on the number of comments
the USCIS will receive and the procedural or substantive issues
which they received should refute their justification for the
rule (fee increase), the USCIS will take time either to revise
or redraft or withdraw the proposed rule based on the review
of these comments. Currently the proposed fee increase is hotly
debated all over and even in the House of Represenatatives. Under
the circumstances, only god will know how soon they can draft
the final or interim final rule or decide to withdraw. Educated
guess will indicate that it will take some time before they can
draft the final or interim or interim final rule.
- Granted that April 2, 2007 is not the date
when the fee will skyrocketed. It is mysterious as to what is
currently causing the frenzyness or the insanity. It is hoped
that people are not taken advantage of by the wrong people with
hidden agenda or suspicious motives. Eventually people will learn
the truth after April 2, 2007, until which time unresolved fear
will keep haunting the immigrants.
03/16/2007: Disappointing Delays in Congress Action on Immigration
Reform Legislation
- Immigrant community was indeed looking forward
to the introduction of McCain-Kennedy bill last week. Then, Senator
Kennedy's office released an information that more likely date
was this week. Surrounding this delay in introduction of so-called
Kennedy bill, the media noticed development of a serious political
hurdle which had been created by the Senate Democrats' sideling
of the Republicans from the process and emotional revolt of the
Republican Senators against the Leahy-Kenndy move, forecasting
a dark stormy cloud ahead.
- As expected, the Senator Kennedy's move to
introduce this new bill has been eventually abandoned and the
fate of CIR has returned to ground zero. The Senate Judiciary
Committee that has to act on this legislation is currently obsessed
with a drama involving political scandal of firing of U.S. attorneys
allegedly as motivated by political agenda of the White House
and U.S. Attorney General. Under the circumstances, the Judiciary
Committee is unlikely to mark up the CIR debate in the next one
week or so. How disappointing!
- There is a concensus in the community that
the longer the Congress delays, the slimmer the chances will
be for the Congress to enact a CIR legislation. This is particularly
true as more and more states are moving up the 2008 national
election primary to earlier dates. Yesterday, California governor
signed a legislation moving up the primary to February 2008!
There may be a few other states that will follow the suit of
California, including Florida. This change of primary in the
key states has already charged the country politically hotter
and hotter. Amen!
03/15/2007: USCIS 03/15/2007 Processing Times
03/14/2007: U.S. Passport Processing Backlog - 10 Weeks!
- Currently the U.S. Department of State is
experiencing tremendous delays in issuing U.S. passport to the
citizens. Regular processing times is 10 weeks and expedite processing
times is 4 weeks. Those who need a trip either for pleasure or
business should apply for the passport sufficiently in advance
before they book the flight. For the DOS announcement, please
click here.
03/14/2007: Beware of Upcoming Final Rule to Eliminate Labor
Certification Substitution Elimination and 45-Day Validity Cap
- This is currently reviewed by the OMB since
January 26, 2007. The OMB usually has upto 90 days to make a
decision unless either the OMB or the agency (DOL) decides to
extend the period. Just reminder!
03/14/2007: OMB Cleared USCIS Proposed Rule Change on Religious
Worker Immigrant/Nonimmigrant Worker
- This rule was submitted for the OMB review
by the USCIS last year but the OMB clerance has been extended
for a number of reasons. Yesterday, the OMB cleared this proposed
rule and the USCIS is expected to publish it soon with certain
period of comment period before finalizing the rule making process.
- This rule addresses concerns about the integrity
of the religious worker program by proposing a petition requirement
for religious organizations seeking to classify an alien as an
immigrant or nonimmigrant religious worker. This rule also proposes
including an on-site inspection for religious organizations
to ensure the legitimacy of petitioner organizations and employment
offers made by such organizations. USCIS is proposing to establish
a fee, in addition to the standard fee required for special immigrant
or nonimmigrant visa petitions, to cover the cost of the on-site
inspections. This rule would also clarify several substantive
and procedural issues that have arisen since the religious worker
category was created. This rule proposes new definitions that
describe more clearly the regulatory requirements, as well as
add specific evidentiary requirements for petitioning employers
and prospective religious workers. Finally, this rule also proposes
to amend how USCIS regulations reference the sunset date, the
statutory deadline by which special immigrant religious workers,
other than ministers, must immigrate or adjust status to permanent
residence, so that regular updates to the regulations are not
required each time Congress extends the sunset date.
03/13/2007: 270 Businesses and Higher Learning Institutions
Presented Today Urgency of Employment-Based Immigration Reform
to Every Single Member of Congress
- The report indicates that a proclaim was
signed and presented to every member of Congress today by 270
businesses and higher learning institution leaders urging the
Congress to enact the employment-based immigration reform legislation
to keep and attract foreign brains. Read on.
- In parallel with the so-called legal immigration
reform, illegal immigrant relief reform supporting groups, particularly
Hispanics, has just started to mobilize all the forces to pressure
the political leaders to pass the Comprehensive Immigration Reform
legislation.
- It thus appeared that immigant groups started
showing impatience with the Congress, particularly the House,
for dragging their feet, and their samo, samo "do-nothing"
play of politics. Please watch how these dramas will unfold for
the next several weeks. Immigrants are particularly unhappy about
the House leaders who do not have any specific agenda on the
immigration reform after two and a half months reign by the Democrats.
03/13/2007: Sen. Kennedy Reportedly Abandons "New"
CIR Bill Initiatives
- New York Times has reported today that facing
a rebellion from some crucial Republicans, Senator Edward M.
Kennedy has abandoned efforts to produce a new immigration bill
and is proposing using legislation produced last March by the
Senate Judiciary Committee, then controlled by Republicans, as
the starting point for negotiations this year, lawmakers said
Monday. What an interesting development! Well, we will have to
pull out of the closet the CIR which the Senate passed in 2006
to get some ideas about the upcoming CIR debates in the Senate.
For the news, please click here.
- Please review the full text of S. 2611 which the Senate passed last year.
03/13/2007: Bush Expressed His Planned Push for CIR Legislation
Before Congress' August Recess
- Bush has been visiting the South American
countries and Mexico and reportedly expressed his desire and
intended push for the CIR legislation such that the CIR be passed
in Congress before August. This timeline is consistent with the
Democrats' timeline. Considering the fact that the Chairman of
the Senate Judiciary Committee wanted to see Bush's push for
CIR before the Committee would mark up of the CIR, this report
of Bush's intended push will help the Senate leaders to move
on the CIR legislation process. It is one thing that Senator
McCain-Senator Kennedy presents the new CIR in the Senate and
it is the other when the Judiciary Committee will mark up the
CIR debate. The immigrant community wants to see both of these
actions taking place in the Senate as soon as possible. For the
news, please click here.
03/13/2007: Senate "DREAM Act of 2007" Bill Text,
S774 [Oh Law Firm Edited]
- Senator Durbin from Illinois reintroduced
this bill on March 6, 2007 and this bill is currently pending
before the Senate Judiciary Committee. It is expected that the
following bill will be debated as part of the CIR.
- SECTION 1. SHORT TITLE.
- This Act may be cited as the ``Development,
Relief, and Education for Alien Minors Act of 2007'' or the ``DREAM
Act of 2007''.
- SEC. 2. DEFINITIONS.
- (1) INSTITUTION OF HIGHER EDUCATION.--Meaning
given that term in section 101 of the Higher Education Act of
1965 (20 U.S.C. 1001).
- (2) UNIFORMED SERVICES.--Meaning given that
term in section 101(a) of title 10, United States Code.
- SEC. 3. RESTORATION OF STATE OPTION TO
DETERMINE RESIDENCY FOR PURPOSES OF HIGHER EDUCATION BENEFITS.
- (a) In General.--Section 505 of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (8
U.S.C. 1623) is repealed.
- (b) Effective Date.--The repeal under subsection
(a) shall take effect as if included in the enactment of the
Illegal Immigration Reform and Immigrant Responsibility Act of
1996
- SEC. 4. CANCELLATION OF REMOVAL AND ADJUSTMENT
OF STATUS OF CERTAIN LONG-TERM RESIDENTS WHO ENTERED THE UNITED
STATES AS CHILDREN.
- (a) Special Rule for Certain Long-Term Residents
Who Entered the United States as Children.--
- (1) IN GENERAL.--The Secretary of Homeland
Security may cancel removal of, and adjust to the status of an
alien lawfully admitted for permanent residence, subject to the
conditional basis described in section 5, an alien who is inadmissible
or deportable from the United States, if the alien demonstrates
that--
- (A) the alien has been physically present
in the United States for a continuous period of not less than
5 years immediately preceding the date of enactment of this Act,
and had not yet reached the age of 16 years at the time of initial
entry;
- (B) the alien has been a person of good moral
character since the time of application;
- (C) the alien--
- (i) is not inadmissible under paragraph (2),
(3), (6)(E), or (10)(C) of section 212(a) of the Immigration
and Nationality Act (8 U.S.C. 1182(a)); and
- (ii) is not deportable under paragraph (1)(E),
(2), or (4) of section 237(a) of the Immigration and Nationality
Act (8 U.S.C. 1227(a));
- (D) the alien, at the time of application,
has been admitted to an institution of higher education in the
United States, or has earned a high school diploma or obtained
a general education development certificate in the United States;
and
- (E) the alien has never been under a final
administrative or judicial order of exclusion, deportation, or
removal, unless the alien--
- (i) has remained in the United States under
color of law after such order was issued; or
- (ii) received the order before attaining
the age of 16 years.
- (2) WAIVER.--The Secretary of Homeland Security
may waive the ground of ineligibility under section 212(a)(6)(E)
of the Immigration and Nationality Act and the ground of deportability
under paragraph (1)(E) of section 237(a) of that Act for humanitarian
purposes or family unity or when it is otherwise in the public
interest.
- (3) PROCEDURES.--The Secretary of Homeland
Security shall provide a procedure by regulation allowing eligible
individuals to apply affirmatively for the relief available under
this subsection without being placed in removal proceedings.
- (b) Termination of Continuous Period.--For
purposes of this section, any period of continuous residence
or continuous physical presence in the United States of an alien
who applies for cancellation of removal under this section shall
not terminate when the alien is served a notice to appear under
section 239(a) of the Immigration and Nationality Act (8 U.S.C.
1229(a)).
- (c) Treatment of Certain Breaks in Presence.--
- (1) IN GENERAL.--An alien shall be considered
to have failed to maintain continuous physical presence in the
United States under subsection (a) if the alien has departed
from the United States for any period in excess of 90 days or
for any periods in the aggregate exceeding 180 days.
- (2) EXTENSIONS FOR EXCEPTIONAL CIRCUMSTANCES.--The
Secretary of Homeland Security may extend the time periods described
in paragraph (1) if the alien demonstrates that the failure to
timely return to the United States was due to exceptional circumstances.
The exceptional circumstances determined sufficient to justify
an extension should be no less compelling than serious illness
of the alien, or death or serious illness of a parent, grandparent,
sibling, or child.
- (d) Exemption From Numerical Limitations.--Same
rule to apply a numerical limitation on the number of aliens
who may be eligible for cancellation of removal or adjustment
of status under this section.
- (e) Regulations.--
- (1) PROPOSED REGULATIONS.--Not later than
180 days after the date of enactment of this Act, the Secretary
of Homeland Security shall publish proposed regulations implementing
this section. Such regulations shall be effective immediately
on an interim basis, but are subject to change and revision after
public notice and opportunity for a period for public comment.
- (2) INTERIM, FINAL REGULATIONS.--Within a
reasonable time after publication of the interim regulations
in accordance with paragraph (1), the Secretary of Homeland Security
shall publish final regulations implementing this section.
- (f) Removal of Alien.--The Secretary of Homeland
Security may not remove any alien who has a pending application
for conditional status under this Act.
- SEC. 5. CONDITIONAL PERMANENT RESIDENT
STATUS.
- (a) In General.--
- (1) CONDITIONAL BASIS FOR STATUS.--An alien
whose status has been adjusted under section 4 to that of an
alien lawfully admitted for permanent residence shall be considered
to have obtained such status on a conditional basis subject to
the provisions of this section. Such conditional permanent resident
status shall be valid for a period of 6 years, subject to termination
under subsection (b).
- (2) NOTICE OF REQUIREMENTS.--
- (A) AT TIME OF OBTAINING PERMANENT RESIDENCE.--At
the time an alien obtains permanent resident status on a conditional
basis under paragraph (1), the Secretary of Homeland Security
shall provide for notice to the alien regarding the provisions
of this section and the requirements of subsection (c) to have
the conditional basis of such status removed.
- (B) EFFECT OF FAILURE TO PROVIDE NOTICE.--The
failure of the Secretary of Homeland Security to provide a notice
under this paragraph--
- (i) shall not affect the enforcement of the
provisions of this Act with respect to the alien; and
- (ii) shall not give rise to any private right
of action by the alien.
- (b) Termination of Status.--
- (1) IN GENERAL.--The Secretary of Homeland
Security shall terminate the conditional permanent resident status
of any alien who obtained such status under this Act, if the
Secretary determines that the alien--
- (A) ceases to meet the requirements of subparagraph
(B) or (C) of section 4(a)(1);
- (B) has become a public charge; or
- (C) has received a dishonorable or other
than honorable discharge from the uniformed services.
- (2) RETURN TO PREVIOUS IMMIGRATION STATUS.--Any
alien whose conditional permanent resident status is terminated
under paragraph (1) shall return to the immigration status the
alien had immediately prior to receiving conditional permanent
resident status under this Act.
- (c) Requirements of Timely Petition for Removal
of Condition.--
- (1) IN GENERAL.--In order for the conditional
basis of permanent resident status obtained by an alien under
subsection (a) to be removed, the alien must file with the Secretary
of Homeland Security, in accordance with paragraph (3), a petition
which requests the removal of such conditional basis and which
provides, under penalty of perjury, the facts and information
so that the Secretary may make the determination described in
paragraph (2)(A).
- (2) ADJUDICATION OF PETITION TO REMOVE CONDITION.--
- (A) IN GENERAL.--If a petition is filed in
accordance with paragraph (1) for an alien, the Secretary of
Homeland Security shall make a determination as to whether the
alien meets the requirements set out in subparagraphs (A) through
(E) of subsection (d)(1).
- (B) REMOVAL OF CONDITIONAL BASIS IF FAVORABLE
DETERMINATION.--If the Secretary determines that the alien meets
such requirements, the Secretary shall notify the alien of such
determination and immediately remove the conditional basis of
the status of the alien.
- (C) TERMINATION IF ADVERSE DETERMINATION.--If
the Secretary determines that the alien does not meet such requirements,
the Secretary shall notify the alien of such determination and
terminate the conditional permanent resident status of the alien
as of the date of the determination.
- (3) TIME TO FILE PETITION.--An alien may
petition to remove the conditional basis to lawful resident status
during the period beginning 180 days before and ending 2 years
after either the date that is 6 years after the date of the granting
of conditional permanent resident status or any other expiration
date of the conditional permanent resident status as extended
by the Secretary of Homeland Security in accordance with this
Act. The alien shall be deemed in conditional permanent resident
status in the United States during the period in which the petition
is pending.
- (d) Details of Petition.--
- (1) CONTENTS OF PETITION.--Each petition
for an alien under subsection (c)(1) shall contain information
to permit the Secretary of Homeland Security to determine whether
each of the following requirements is met:
- (A) The alien has demonstrated good moral
character during the entire period the alien has been a conditional
permanent resident.
- (B) The alien is in compliance with section
4(a)(1)(C).
- (C) The alien has not abandoned the alien's
residence in the United States. The Secretary shall presume that
the alien has abandoned such residence if the alien is absent
from the United States for more than 365 days, in the aggregate,
during the period of conditional residence, unless the alien
demonstrates that alien has not abandoned the alien's residence.
An alien who is absent from the United States due to active service
in the uniformed services has not abandoned the alien's residence
in the United States during the period of such service.
- (D) The alien has completed at least 1 of
the following:
- (i) The alien has acquired a degree from
an institution of higher education in the United States or has
completed at least 2 years, in good standing, in a program for
a bachelor's degree or higher degree in the United States.
- (ii) The alien has served in the uniformed
services for at least 2 years and, if discharged, has received
an honorable discharge.
- (E) The alien has provided a list of each
secondary school (as that term is defined in section 9101 of
the Elementary and Secondary Education Act of 1965 (20 U.S.C.
7801)) that the alien attended in the United States.
- (2) HARDSHIP EXCEPTION.--
- (A) IN GENERAL.--The Secretary of Homeland
Security may, in the Secretary's discretion, remove the conditional
status of an alien if the alien--
- (i) satisfies the requirements of subparagraphs
(A), (B), and (C) of paragraph (1);
- (ii) demonstrates compelling circumstances
for the inability to complete the requirements described in paragraph
(1)(D); and
- (iii) demonstrates that the alien's removal
from the United States would result in exceptional and extremely
unusual hardship to the alien or the alien's spouse, parent,
or child who is a citizen or a lawful permanent resident of the
United States.
- (B) EXTENSION.--Upon a showing of good cause,
the Secretary of Homeland Security may extend the period of conditional
resident status for the purpose of completing the requirements
described in paragraph (1)(D).
- (e) Treatment of Period for Purposes of Naturalization.--For
purposes of title III of the Immigration and Nationality Act
(8 U.S.C. 1401 et seq.), in the case of an alien who is in the
United States as a lawful permanent resident on a conditional
basis under this section, the alien shall be considered to have
been admitted as an alien lawfully admitted for permanent residence
and to be in the United States as an alien lawfully admitted
to the United States for permanent residence. However, the conditional
basis must be removed before the alien may apply for naturalization.
- SEC. 6. RETROACTIVE BENEFITS UNDER THIS
ACT.
- If, on the date of enactment of this Act,
an alien has satisfied all the requirements of subparagraphs
(A) through (E) of section 4(a)(1) and section 5(d)(1)(D), the
Secretary of Homeland Security may adjust the status of the alien
to that of a conditional resident in accordance with section
4. The alien may petition for removal of such condition at the
end of the conditional residence period in accordance with section
5(c) if the alien has met the requirements of subparagraphs (A),
(B), and (C) of section 5(d)(1) during the entire period of conditional
residence.
- SEC. 7. EXCLUSIVE JURISDICTION.
- (a) In General.--The Secretary of Homeland
Security shall have exclusive jurisdiction to determine eligibility
for relief under this Act, except where the alien has been placed
into deportation, exclusion, or removal proceedings either prior
to or after filing an application for relief under this Act,
in which case the Attorney General shall have exclusive jurisdiction
and shall assume all the powers and duties of the Secretary until
proceedings are terminated, or if a final order of deportation,
exclusion, or removal is entered the Secretary shall resume all
powers and duties delegated to the Secretary under this Act.
- (b) Stay of Removal of Certain Aliens Enrolled
in Primary or Secondary School.--The Attorney General shall stay
the removal proceedings of any alien who--
- (1) meets all the requirements of subparagraphs
(A), (B), (C), and (E) of section 4(a)(1);
- (2) is at least 12 years of age; and
- (3) is enrolled full time in a primary or
secondary school.
- (c) Employment.--An alien whose removal is
stayed pursuant to subsection (b) may be engaged in employment
in the United States consistent with the Fair Labor Standards
Act (29 U.S.C. 201 et seq.) and State and local laws governing
minimum age for employment.
- (d) Lift of Stay.--The Attorney General shall
lift the stay granted pursuant to subsection (b) if the alien--
- (1) is no longer enrolled in a primary or
secondary school; or
- (2) ceases to meet the requirements of subsection
(b)(1).
- SEC. 8. PENALTIES FOR FALSE STATEMENTS
IN APPLICATION.
- Whoever files an application for relief under
this Act and willfully and knowingly falsifies, misrepresents,
or conceals a material fact or makes any false or fraudulent
statement or representation, or makes or uses any false writing
or document knowing the same to contain any false or fraudulent
statement or entry, shall be fined in accordance with title 18,
United States Code, or imprisoned not more than 5 years, or both.
- SEC. 9. CONFIDENTIALITY OF INFORMATION.
- (a) Prohibition.--Except as provided in subsection
(b), no officer or employee of the United States may--
- (1) use the information furnished by the
applicant pursuant to an application filed under this Act to
initiate removal proceedings against any persons identified in
the application;
- (2) make any publication whereby the information
furnished by any particular individual pursuant to an application
under this Act can be identified; or
- (3) permit anyone other than an officer or
employee of the United States Government or, in the case of applications
filed under this Act with a designated entity, that designated
entity, to examine applications filed under this Act.
- (b) Required Disclosure.--The Attorney General
or the Secretary of Homeland Security shall provide the information
furnished under this section, and any other information derived
from such furnished information, to--
- (1) a duly recognized law enforcement entity
in connection with an investigation or prosecution of an offense
described in paragraph (2) or (3) of section 212(a) of the Immigration
and Nationality Act (8 U.S.C. 1182(a)), when such information
is requested in writing by such entity; or
- (2) an official coroner for purposes of affirmatively
identifying a deceased individual (whether or not such individual
is deceased as a result of a crime).
- (c) Penalty.--Whoever knowingly uses, publishes,
or permits information to be examined in violation of this section
shall be fined not more than $10,000.
- SEC. 10. EXPEDITED PROCESSING OF APPLICATIONS;
PROHIBITION ON FEES.
- Regulations promulgated under this Act shall
provide that applications under this Act will be considered on
an expedited basis and without a requirement for the payment
by the applicant of any additional fee for such expedited processing.
- SEC. 11. HIGHER EDUCATION ASSISTANCE.
- Notwithstanding any provision of the Higher
Education Act of 1965 (20 U.S.C. 1001 et seq.), with respect
to assistance provided under title IV of the Higher Education
Act of 1965 (20 U.S.C. 1070 et seq.), an alien who adjusts status
to that of a lawful permanent resident under this Act shall be
eligible only for the following assistance under such title:
- (1) Student loans under parts B, D, and E
of such title IV (20 U.S.C. 1071 et seq., 1087a et seq., 1087aa
et seq.), subject to the requirements of such parts.
- (2) Federal work-study programs under part
C of such title IV (42 U.S.C. 2751 et seq.), subject to the requirements
of such part.
- (3) Services under such title IV (20 U.S.C.
1070 et seq.), subject to the requirements for such services.
- SEC. 12. GAO REPORT.
- Not later than seven years after the date
of enactment of this Act, the Comptroller General of the United
States shall submit a report to the Committee on the Judiciary
of the Senate and the Committee on the Judiciary of the House
of Representatives setting forth--
- (1) the number of aliens who were eligible
for cancellation of removal and adjustment of status under section
4(a);
- (2) the number of aliens who applied for
adjustment of status under section 4(a);
- (3) the number of aliens who were granted
adjustment of status under section 4(a); and
- (4) the number of aliens whose conditional
permanent resident status was removed under section 5.
03/12/2007: Visa Number Predictions During the Coming Months
- Family-sponsored:
It is likely that the Mexico Family First preference cut-off
date will retrogress for the month of May.
- Employment-based:
It is likely that the Employment Third Preference Other
Worker (EW) category will become unavailable beginning
in May.
- Both of these issues are the direct result
of low annual limits and very heavy demand for numbers, primarily
for adjustment of status cases at Citizenship and Immigration
Services Offices.
03/12/2007: April 2007 Visa Bulletin
- EB no changes.
- Retrogression of Mexico and Philippines Family
Third Preference cutoff dates: Further retrogression or unavailability
in future months cannot be ruled out.
03/12/2007: Disappointing News of Sen. Cornyn and Rep. Kyl
to Introduce Separate Border Security Only Bills in the Two Chambers
to Oppose CIR
- It is extremely disappointing to read a news
that these two gentlemen have not changed their attitude on the
immigration issues. We really understand how upset they are over
the recent Democrats' behavior alienating the Republicans in
the immigration reform legislation process, but it would not
justify their repetition of the past behaviors in the CIR process.
We rather hoped that he quickly introduce the SKIL bill and negotiate
with the CIR legislative leaders for an assurance that the SKIL
bill is included in the CIR and not neglected. We urge these
respected legislators not to repeat the past mistake of the Republican
Congress.
03/12/2007: USCIS Confirms 485 Transfers from VSC, CSC to
TSC, NSC
- AILA has reported the USCIS HQ confirmation
that I-485 applications are currently being transferred from
CSC to NSC, and from VSC to TSC, including the cases which are
subject to visa retrogression and security and background checks.
The USCIS has also confirmed our report that the USCIS online
system is being updated to reflect the transfers and that transferred
cases will go into the queue based on original filing date and
not the date of the transfer.
03/11/2007: Delays in EAD Extension Processing for TPS Hondurans,
Nicaraguans, and El Salvadorans and Ongoing Panic in These Communities
- These communities have experience extreme
stress and panicking lately because of the delays in the USCIS
EAD extension processing.
- However, now the relief is on the way. The
USCIS announced on 03/09/2007 that certain Hondurans, Nicaraguans
and Salvadorans who are eligible for TPS re-registration and
whose application is pending with the USCIS and waiting for an
EAD will receive in the mail a letter giving them the opportunity
have an extension sticker affixed to their EAD while USCIS completes
their TPS application. They will receive an extension valid through
June 2007 to serve for I-9 employment authorization purposes.
The USCIS began mailing letters giving eligible re-registrants
the opportunity appear at an ASC to receive the extension sticker
beginning on Monday, March 5, 2007. Their current EAD expired
on 01/05/2007 for Hondurans and Nicaraguans, and on 03/09/2007
for Salvadorans.
- They advise that applicatns should not appear
at USCIS district offices to seek an extension sticker or an
interim EAD. They should wait for the mail. For the details,
pleaser read announcement.
03/10/2007: Advisory for First Day Filing of FY 2008 H-1B
Cap Filing
- Caveat: Under the Labor Condition Application
and H-1B rules, one cannot submit an LCA
earlier than six months prior to the beginning date of the period
of intended H-1B employment. Accordingly, if people want their
LCA filed before April 1, they should set their employment start
date on the LCA for a date in September rather than October 1,
and set the expiration date for a date no more than three years
from the start date rather than three years from October 1. However,
they should file the I-129 with a start date of October 1, but
the expiration date should coincide with the expiration date
of the LCA. Accordingly, they will lose a few days in the H-1B
three-year request, but in this way, they will be able to file
and obtain the LCA before April 1 such that they can file the
H-1B petitions timely on April 2, 2007.
- Caveat: USCIS has advised that there is no advantage to submitting
a petition for delivery on Saturday, March 31st, as all petitions
delivered on Saturday will not be opened and processed until
Monday, April 2nd. Besides, people should keep in minde that
any cases which are received on Friday, March 30, 1007 will be
rejected. [USCIS has announced that if a sufficient number of
petitions are received to reach the cap on the first day, the
agency will apply the lottery process for the cases which they
received on the first and second days. Accordingly, if the cap
is reached on the first day, USCIS will randomly apply all of
the numbers among the petitions filed on the final receipt date
and the following day.
- Caveat: The first day of FY 2008 H-1B cap
filing coincides with the USCIS new I-129/I-539 CSC or VSC direct
filing procedure effective 04/02/2007. Accordingly, it must be
addressed correctly. Even though there is a 15-day grace period
for the wrong address filings, should the cap number reaches
indeed either on the first date or in a few days, the wrong address
filing can face a serious problem.
- Caveat: If the cases are filed in Premium
Processing Request, be mindful of the changes in the specific
address for each Preimum Processing filing. Please read the Direct
Filing announcement and the updated Premium Processing filing
instructions before drafting and filing the petitions/applications.
- Caveat: Flaws in the filing fee checks and
missing signatures on the forms will face rejection of filing
with the deadly consequences, should the cap reach on the first
day or in the first few days. Double check to make it sure that
the checks are properly executed and all the immigration forms
are property signed and dated.
03/09/2007: On-Going Insanity Involving FY 2008 H-1B Cap
Reaching On the First Day
- There is a wild forest fire burning mountains
with the speculation and rumor that FY 2008 H-1B cap may reach
on the first day, April 2, 2007. The H-1B annual cap is 65,000
including special numbers for Free Trade Agreement aliens of
Singapore and Chile. For the U.S. master degree holders, there
are additional 20,000. Speculation runs that all these numbers
will run out on April 2, 2007.
- Well, who knows, but there is something wrong
with the current immigration system. It is sickening to stomach
even to think about such insanity. Distinguished ladies and gentlemen
in the Beltway, I hope you share this madness and sickness with
this reporter.
03/09/2007: Revised I-129 & I-539 Direct Filing Instructions
of USCIS Adding Filing Location Charts
- USCIS has revised its previously released
direct I-129 and I-539 filing instructions which will take effect
on April 2, 2007 adding the filing locations. Please follow this
revised posting for filings on or after April 2, 2007./
03/09/2007: USCIS March Newsletter "Today"
03/08/2007: Employment-Based Visa Numbers Used in 2006
- According to the Department of State, in
2006, the following visa numbers were taken out:
- Numerical Limitation Employment-Based Total:
133,623
- Schedule A: 33,343
- Largest consumers of each sample preference
categories were as follows:
- EB-1: Great Britain(4,3850, Canada(3,397),
China(3,281), India(3,156), South Korea(1,960), and Germany(1,434)
- EB-2: India(3,720), China(3,347), Canada(1,248)
- EB-3 Skilled: Mexico(6,766), Korea(4,375),
Philippines(4,114), Ecuador(3,747), Brazil(3,670), Poland(3,230),
India(3,006), China(2,477), Pakistan(2,091)
- For the full visa statistics, please click here.
03/08/2007: 7th-Year H-1B Extension
Alert for Backlog Case Refiling for PERM
- There is a report of an incident
where BEC case applicant filed a PERM application with the request
to retain the BEC case priority date, and pending the PERM application,
filed a 7th-year H-1B extension based on 365-day LC pending.
Apparently the H-1B extension eligibility is challenged by the
USCIS in this incident based on the fact that PERM application
has been pending less than 365 days and BEC application which
had been pending for years has been withdrawn at the time PERM
application was filed. This is a very novel issue which is not
covered by any existing USCIS memorandums or rules or opinions.
Obviously the issue involves distiction of retention of priority
date from AC-21 7th year extension eligibility based on a "specific"
labor certification application.
- We post this as an alert
for the two reasons. First, this is a novel issue and until the
issue is resolved by the USCIS or by the courts, it will remain
in a grey area. Secondly, because of the EB-3 backlogs, EB-3
BEC applicants tend to refile the labor certification for EB-2
under the PERM system, and should the USCIS come forward with
a hardline stance on this issue. the number of victims can grow
large. Without doubt, AILA will seek the official opinion from
the USCIS Headquarters, and until this issue is cleared, people
are reminded to pay extra caution to this potential volatile
issue.
03/08/2007: Time for SKIL or PACE Act Introduced In the
Senate
- The secretary of Senator Ted Kennedy reportedly
opined that the new CIR bill is likely to be introduced next
week. In time for the March 2007 CIR debates, some Senators have
already introduced bills which will eventually form important
parts of the new CIR. For instance, AgJOBS bill for low-end industry
workers, so-called "essential workers," and guest workers
and DREAM Act for illegal alien youngsters. Obviously main body
of the CIR will focus on the legalization of 13 million illegal
aliens and these bills will form additional reform involving
illegal aliens.
- The other important part of the immigration
reform should be reform in immigration of legal immigrants, particularly
high-end industry worker employment-based immigration system.
In the last CIR, the reform in the employment-based immigration
was presented initially in the form of PACE Act, and afterwards,
in the form of SKIL Act. All these bills passed in the Senate
as part of the CIR bill, which was killed afterwards by the House.
- In the current immigration reform debates,
politicians and legislators remain silent on this important part
of immigration reform for employment-based immigrants. It is
plainly wrong that this issue is more or less handled as a back-burner
in the legislation process. Mr. Bill Gates testimony should have
reminded the legislators of importance of this issue. As the
Senate Judiciary Committee is poised to debate the CIR legislation
in the near future, we urge Senator Cornyn to quickly act and
reintroduce his SKIL Act bill so that the employment-based immigration
reform receives at least equal attention in the Congress.
03/08/2007: Sudan TPS Designation Extension and EAD Automatic
Extension Notice of USCIS
- The extension of the TPS designation of Sudan
is effective May 3, 2007, and will remain in effect until 11:59
p.m. on November 2, 2008. The 60-day re-registration period begins
March 8, 2007, and will remain in effect until May 7, 2007. To
facilitate processing of their applications, applicants are strongly
encouraged to file as soon as possible after the start of the
60-day re-registration period beginning on March 8, 2007.
- Given the timeframes involved with processing
TPS re-registrants, the Department of Homeland Security (DHS)
recognizes that re-registrants may not receive a new EAD until
after their current EAD expires on May 2, 2007. Accordingly,
this Notice automatically extends the validity of EADs issued
under the TPS designation of Sudan for six months, through November
2, 2007, and explains how TPS beneficiaries and their employers
may determine which EADs are automatically
extended. New EADs with the November 2, 2008 expiration date
will be issued to eligible TPS beneficiaries who timely re-register
and apply for an EAD.
- For other details, read the federal register notice.
03/07/2007: Full Text of Bill Gates Testimony Before the Senate Committee
on Health, Education, Labor & Pensions (Oops!)
- His testimony was important to highlight
the employment-based immigration reform which can be neglected
or minimized in the midst of nation's CIR debates that focus
on the relief for undocumented aliens. We thank CompeteAmerica
for the posting of this text on their site. We also extend our
congratulation to Mr. Bill Gates for the job well done.
03/07/2007: "DREAM" Act Bill Reintroduced by Sen.
Richard Durbin of Illinois with Bi-Partisan Co-Sponsors
- This is a counter-part bill to "American
Dream Act" which was recentrly introduced in the House with
slightly different name. This is also the bill which the Senator
introduced and was successful in the last Congress as part of
the ill-fated and Senate passed CIR. The co-sponsors of this
bill in the Senate are: Sen Craig, Larry E. [ID]; Sen Crapo,
Mike [ID]; Sen Feingold, Russell D. [WI]; Sen Hagel, Chuck [NE];
Sen Kennedy, Edward M. [MA]; Sen Leahy, Patrick J. [VT];
Sen Lieberman, Joseph I. [CT]; Sen Lugar, Richard G. [IN] ; Sen
McCain, John [AZ]; and Sen Obama, Barack [IL]. For the full text
of the bill, please stay tuned.
- It is expected that this bill will again
be incorporated as part of the upcoming CIR.
- We hope to see the SKIL bill as incorporated
in the new CIR which is expected to be introduced in the Senate
shortly.
03/07/2007: Business and Employment Immigration and CIR
- The Congress' agenda is to legislate all
the immigration issues as part of the Comprehensive Immigration
Reform legislation rather than taking care of piecemeal immigration
legislations. Report indicates that the anti-immigration forces
are penetrating community and business groups and immigrant groups
to oppose the CIR legislation in order to block allegedly "amnesty"
legislation. They are also intimidating business and community
groups that advocate the CIR as the supporters of CIR and amnesty
of 13 million illegal aliens. Read what Lou Dobbs of CNN has to say.
- Report indicates that such tactics of the
anti-immigration groups are working effectively leading to the
two deadly consequences for immigration legislation. One is reluctance
of businesses and business community to voice their support of
the CIR legislation despite their motive to pass the business/employment
immigration legislation which is part of the CIR for fear that
they may be labelled as illegal alien amnesty advocates. The
second fallout is reluctance of legislators and political forces
to aggressively pursh forward the CIR legislation for fear of
the negative impact on the 2008 elections and the perception
of the public as the illegal alien supporters. There is no evidence
that the motives of the Chairman of the Senate Judiciary Committee
recent statement that unless Bush pushed the CIR, the Judiciary
Committee would not mark up the CIR bill was affected by the
sense of CIR legislation on the 2008 elections, but obviously
it could have been one of the factors that affected his announcement.
- Well, anti-immigration forces, congratulations
for your job well done. The same should go to the groups in the
community that actively joined these forces campaign one way
or another without knowledge of their suicidal acts.
03/07/2007: DOS and Overseas USCIS Offices Launch Processsing
of Iraqis Refugee and Resettlement Applications
- The Iraq has produced estimated two million
displaced Iraqis who will not be able to return to their home
countries. Out of estimated two million, 80,000 displaced Iraqis
have already registered with UN Refugee Program seeking a safe
haven in foreign countries. They are displaced in Syria, Jordan,
Turkey, and Egypt. The report indicates that the U.N. will refer
7,000 of these Iraqis during the next nine months for admission
as refugees.
- The Department of State has just announced
that the overseas USCIS offices in the region has just begun
processing the refugee applications from these displaced Iraqis
and their eventual resettlement in the United Statges. The Iraqis
refugees are not subject to the annual cap of the U.S. refugee
program and there is no limited to the numbers of these displaced
Iraqis who can be admitted to the U.S. as refugees for resettlement
in the U.S. For the details, please click here.
03/07/2007: TPS and EAD Extension for Sudanese
- USCIS will publish the notice extending the
designation of TPS and automatic EAD extension for the Sudanese
tomorrow. Please stay tuned to this website.
03/07/2007: USCIS Aytes Memorandum on 2-Year Extension of
International Medical Graduates (IMG) Conrad Program
- As the IMGs know, the lame duck Congress
passed the legislation to extended States' Conrad program for
two years beginning from May 31, 2006 through June 1, 2008. Mr.
Aytes issues this memorandum to notify and guide the field offices
of USCIS for processing of two-year residency requirements for
these eligible foreign medical doctors under the states' Conrad
sponsorship. Read on.
03/06/2007: USCIS Announced Direct Filing of I-129 and I-539 with VSC (East)
or CSC (West) Per Phase III Bi-Specialization Proposal Effective
04/02/2007
- The USCIS is inching close to implementation
of the Phase III Bi-Specialization Program. We have already reported
that the I-485 cases have been in the process of transfer from
VSC to TSC and from CSC to NSC. This announcement implies the
two decisions of the USCIS. One is that the agency is more or
less accelerating the Phase III implementation. Secondly, the
agency has decided not to centralize the FY 2008 H-1B cap filing
and processing at the VSC. Accordingly, the USCIS Phase III plan
can be pushed ahead without such temporary hurdle.
- Advisory: Effective April 2, 2007, all the I-129
and I-539 including FY 2008 H-1B cap filing should be filed with
either VSC or CSC depending on the place of employment or residence.
Those who are not familiar with these new jurisdictions should
visit our previous posting on these jurisdictions. There will
be a grace period when the I-129 or I-539 which are filed with
a wrong VSC or CSC will be accepted until April 16, 2007. However,
any I-129 petitions or I-539 applications which are received
by a wrong service center on or after April 17, 2007 will be
rejected and considered not filed. This direct filing policy
will include the Premium Processing Requests.
- The jursidctions under Phase
III Bi-Specialization Program were known to be as follows: [Please
double check with the USCIS]
- Vermont Service Center for those with employment
(including family members concurrently filing I-539) or residence
(non-petition based I-539 cases only) in Alabama, Arkansas, Connecticut,
Delaware, District of Columbia, Florida, Georgia, Kentucky, Louisiana,
Mississippi, Maine, Maryland, Massachusetts, New Hampshire, New
Jersey, New Mexico, New York, North Carolina, South Carolina,
Oklahoma, Pennsylvania, Puerto Rico, Rhode Island, Tennessee,
Texas, Virginia, Virgin Islands, Vermont and West Virginia.
- California Service Center for Those with employment (including family members
concurrently filing I-539) or residence (non-petition based I-539
cases only) in Alaska, Arizona, California, Colorado, Guam, Hawaii,
Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota,
Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oregon,
South Dakota, Utah, Washington, Wisconsin and Wyoming.
- Stay tuned to this website for additional
announcements.
03/05/2007: Comprehensive Immigration Reform Bill
- The Comprehensive Immigration Reform bill
is currently pending in the Senate Judiciary Committee. The bill
number is S.9. Accordingly, the Kennedy-McCain bill may be introduced
in the form of Amendment to the pending S.9 bill. The Senate
Judiciary Committee is not scheduled to debate on this legislation
this week, but it does not mean that the bill may not be introduced
to the Senate this week. Please stay tuned to this website for
the development of this news.
- The problem is regardless of timing of introduction
of CIR bill, reportedly the Chairman of the Senate Judiciary
is not ready to mark up this bill unless the President pushes
the Republicans first. Read on.
03/05/2007: Immigrant Women "Fuel" Small Business
Growth in the United States
- The State Department Washington Journal reports
a startling statistics on the role and contribution of immigrant
women in the United States. Reportedly, immigrant women start
small business at 41% higher than the women born in the United
States. They fuel the growth of small business in the country.
This statistics is interesting and important as when the immigrant
workers contribution to the country is concerned, people tended
to talk only about the role and contribution of high tech foreign
brains. Immigrant women,
you should be proud of yourself for playing such an important
role and contribution to this country!
Read on.
03/05/2007: Snow-Storm Affected Government Offices in Minnesota
and Dakotas Closing on 03/02/2007 and Rescheduling of Naturalization
Ceremonies
- The St. Paul USCIS office and the federal
court in Sioux Falls were closed on March 2, 2007 because of
the snow storms in the areas. Accordingly, the naturalization
applicants who were scheduled to be sworn in on March 2, 2007
could not take the oath that day.
- The St. Paul USCIS Field Office has informed
that these ceremonies will be reschedules as follows:
- St. Paul Field Office Ceremony: April 4,
2007, 11:00 a.m.
- Sioux Falls Federal Court House Ceremeny:
March 23, 2007, 10:00 a.m. and 2:00 p.m.
- (Courtesy of AILA Minnesota-Dakotas Chapter)
03/05/2007: Summary of American Dream Act
- This bill, H.R. 1275, was introduced in the
House on March 1, 2007 and the main provisions are as follows:
- SEC. 4. CANCELLATION OF REMOVAL AND
ADJUSTMENT OF STATUS OF CERTAIN LONG-TERM RESIDENTS WHO ENTERED
THE UNITED STATES AS CHILDREN.
- (a) Special Rule for Certain Long-Term Residents
Who Entered the United States as Children-
- (1) Secretary of Homeland Security may cancel
removal of, and adjust to the status of an alien lawfully admitted
for permanent residence, subject to the conditional basis described
in section 5, an alien who is inadmissible or deportable from
the United States, if the alien demonstrates that--
- (A) the alien has been physically present
in the United States for a continuous period of not less than
5 years immediately preceding the date of enactment of this Act,
and had not yet reached the age of 16 years at the time of initial
entry;
- (B) the alien has been a person of good moral
character since the time of application;
- (C) the alien--
- (i) is not inadmissible under paragraph (2),
(3), or (6)(E) of section 212(a) of the Immigration and Nationality
Act (8 U.S.C. 1182(a)); and
- (ii) is not deportable under paragraph (1)(E),
(2), or (4) of section 237(a) of the Immigration and Nationality
Act (8 U.S.C. 1227(a)); and
- (D) the alien, at the time of application,
has been admitted to an institution of higher education in the
United States, or has earned a high school diploma or obtained
a general education development certificate in the United States.
- (2) WAIVER- Notwithstanding paragraph (1),
the Secretary of Homeland Security may waive the grounds of ineligibility
under section 212(a)(2) of the Immigration and Nationality Act,
and the grounds of deportability under paragraphs (1)(E) and
(2) of section 237(a) of such Act, if the Secretary determines
that the alien's removal would result in extreme hardship to
the alien, the alien's child, or (in the case of an alien who
is a child) to the alien's parent.
- (3) PROCEDURES- The Secretary of Homeland
Security shall provide a procedure by regulation allowing eligible
individuals to apply affirmatively for the relief available under
this subsection without being placed in removal proceedings.
- (b) Termination of Continuous Period- For
purposes of this section, any period of continuous residence
or continuous physical presence in the United States of an alien
who applies for cancellation of removal under this section shall
not terminate when the alien is served a notice to appear (NTA).
- (c) Treatment of Certain Breaks in Presence-
- (1) IN GENERAL- An alien shall not be considered
to have failed to maintain continuous physical presence in the
United States for purposes of subsection (a)(1)(A) by virtue
of brief, casual, and innocent absences from the United States.
- (2) WAIVER- The Secretary of Homeland Security
may waive breaks in presence beyond brief, casual, or innocent
absences for humanitarian purposes, family unity, or when it
is otherwise in the public interest.
- (d) Exemption From Numerical Limitations-
Nothing in this section may be construed to apply a numerical
limitation on the number of aliens who may be eligible for cancellation
of removal or adjustment of status under this section.
- (e) Regulations-
- (1) PROPOSED REGULATIONS- Not later than
180 days after the date of the enactment of this Act, the Secretary
of Homeland Security shall publish proposed regulations implementing
this section. Such regulations shall be effective immediately
on an interim basis, but are subject to change and revision after
public notice and opportunity for a period for public comment.
- (2) INTERIM, FINAL REGULATIONS- Not later
than 90 days after publication of the interim regulations in
accordance with paragraph (1), the Secretary of Homeland Security
shall publish final regulations implementing this section.
- (f) Removal of Alien- The Secretary of Homeland
Security may not remove any alien who has a pending application
for conditional status under this Act.
- SEC. 5. CONDITIONAL PERMANENT RESIDENT
STATUS.
- (a) In General-
- (1) CONDITIONAL BASIS FOR STATUS- Except
as provided in section 6, an alien whose status has been adjusted
under section 4 to that of an alien lawfully admitted for permanent
residence shall be considered to have obtained such status on
a conditional basis subject to the provisions of this section.
Such conditional permanent resident status shall be valid for
a period of 6 years, subject to termination under subsection
(b).
- (2) NOTICE OF REQUIREMENTS-
- (A) AT TIME OF OBTAINING PERMANENT RESIDENCE-
At the time an alien obtains permanent resident status on a conditional
basis under paragraph (1), the Secretary of Homeland Security
shall provide for notice to the alien regarding the provisions
of this section and the requirements of subsection (c) to have
the conditional basis of such status removed.
- (B) EFFECT OF FAILURE TO PROVIDE NOTICE-
The failure of the Secretary of Homeland Security to provide
a notice under this paragraph--
- (i) shall not affect the enforcement of the
provisions of this Act with respect to the alien; and
- (ii) shall not give rise to any private right
of action by the alien.
- (b) Termination of Status-
- (1) IN GENERAL- The Secretary of Homeland
Security shall terminate the conditional permanent resident status
of any alien who obtained such status under this Act, if the
Secretary determines that the alien--
- (A) ceases to meet the requirements of subparagraph
(B) or (C) of section 4(a)(1);
- (B) has become a public charge; or
- (C) has received a dishonorable or other
than honorable discharge from the uniformed services.
- (2) RETURN TO PREVIOUS IMMIGRATION STATUS-
Any alien whose conditional permanent resident status is terminated
under paragraph (1) shall return to the immigration status the
alien had immediately prior to receiving conditional permanent
resident status under this Act.
- (c) Requirements of Timely Petition for Removal
of Condition-
- (1) IN GENERAL- In order for the conditional
basis of permanent resident status obtained by an alien under
subsection (a) to be removed, the alien must file with the Secretary
of Homeland Security, in accordance with paragraph (3), a petition
which requests the removal of such conditional basis and which
provides, under penalty of perjury, the facts and information
so that the Secretary may make the determination described in
paragraph (2)(A).
- (2) ADJUDICATION OF PETITION TO REMOVE CONDITION-
- (A) IN GENERAL- If a petition is filed in
accordance with paragraph (1) for an alien, the Secretary of
Homeland Security shall make a determination as to whether the
alien meets the requirements set out in subparagraphs (A) through
(E) of subsection (d)(1).
- (B) REMOVAL OF CONDITIONAL BASIS IF FAVORABLE
DETERMINATION- If the Secretary determines that the alien meets
such requirements, the Secretary shall notify the alien of such
determination and immediately remove the conditional basis of
the status of the alien.
- (C) TERMINATION IF ADVERSE DETERMINATION-
If the Secretary determines that the alien does not meet such
requirements, the Secretary shall notify the alien of such determination
and terminate the conditional permanent resident status of the
alien as of the date of the determination.
- (3) TIME TO FILE PETITION- An alien may petition
to remove the conditional basis to lawful resident status during
the period beginning 180 days before and ending 2 years after
either the date that is 6 years after the date of the granting
of conditional permanent resident status or any other expiration
date of the conditional permanent resident status as extended
by the Secretary of Homeland Security in accordance with this
Act. The alien shall be deemed in conditional permanent resident
status in the United States during the period in which the petition
is pending.
- (d) Details of Petition-
- (1) CONTENTS OF PETITION- Each petition for
an alien under subsection (c)(1) shall contain information to
permit the Secretary of Homeland Security to determine whether
each of the following requirements is met:
- (A) The alien has demonstrated good moral
character during the entire period the alien has been a conditional
permanent resident.
- (B) The alien is in compliance with section
4(a)(1)(C).
- (C) The alien has not abandoned the alien's
residence in the United States. The Secretary shall presume that
the alien has abandoned such residence if the alien is absent
from the United States for more than 365 days, in the aggregate,
during the period of conditional residence, unless the alien
demonstrates that alien has not abandoned the alien's residence.
An alien who is absent from the United States due to active service
in the uniformed services shall not be considered to have abandoned
the alien's residence in the United States during the period
of such service.
- (D) The alien has completed at least 1 of
the following:
- (i) The alien has acquired a degree from
an institution of higher education in the United States or has
completed at least 2 years, in good standing, in a program for
a bachelor's degree or higher degree in the United States.
- (ii) The alien has served in the uniformed
services for at least 2 years and, if discharged, has received
an honorable discharge.
- (E) The alien has provided a list of all
of the secondary educational institutions that the alien attended
in the United States.
- (2) HARDSHIP EXCEPTION-
- (A) IN GENERAL- The Secretary of Homeland
Security may, in the Secretary's discretion, remove the conditional
status of an alien if the alien--
- (i) satisfies the requirements of subparagraphs
(A), (B), and (C) of paragraph (1);
- (ii) demonstrates compelling circumstances
for the inability to complete the requirements described in paragraph
(1)(D); and
- (iii) demonstrates that the alien's removal
from the United States would result in exceptional and extremely
unusual hardship to the alien or the alien's spouse, parent,
or child who is a citizen or a lawful permanent resident of the
United States.
- (B) EXTENSION- Upon a showing of good cause,
the Secretary of Homeland Security may extend the period of the
conditional resident status for the purpose of completing the
requirements described in paragraph (1)(D).
- (e) Treatment of Period for Purposes of Naturalization-
Except as otherwise provided under this Act, an alien who is
in the United States as a lawful permanent resident on a conditional
basis under this section shall be considered to have been admitted
as an alien lawfully admitted for permanent residence and to
be in the United States as an alien lawfully admitted to the
United States for permanent residence. However, the conditional
basis must be removed before the alien may apply for naturalization.
- SEC. 6. APPLICABILITY.
- If, on the date of the enactment of this
Act, an alien has satisfied all the requirements of subparagraphs
(A) through (D) of section 4(a)(1) and section 5(d)(1)(D), the
Secretary of Homeland Security may adjust the status of the alien
to that of a conditional resident in accordance with section
4. The alien may petition for removal of such condition at the
end of the conditional residence period in accordance with section
5(c) if the alien has met the requirements of subparagraphs (A),
(B), and (C) of section 5(d)(1) during the entire period of conditional
residence.
- SEC. 7. EXCLUSIVE JURISDICTION.
- (a) In General- The Secretary of Homeland
Security shall have exclusive jurisdiction to determine eligibility
for relief under this Act, except where the alien has been placed
into deportation, exclusion, or removal proceedings either prior
to or after filing an application for relief under this Act,
in which case the Attorney General shall have exclusive jurisdiction
and shall assume all the powers and duties of the Secretary until
proceedings are terminated, or if a final order of deportation,
exclusion, or removal is entered the Secretary shall resume all
powers and duties delegated to the Secretary under this Act.
- (b) Stay of Removal of Certain Aliens Enrolled
in Primary or Secondary School- The Attorney General shall stay
the removal proceedings of any alien who--
- (1) meets all the requirements of subparagraphs
(A), (B),