Jane Lees ran a landscaping business in Great Britain. She visited Sarasota in 1998 for a friend’s wedding and happened to meet her future partner. No longer content to stay in Great Britain she and her partner began searching for ways for Jane to immigrate to the United States.
For most people the easiest way to immigrate would be to marry their partner, but in a same sex relationship like Jane’s, that was not an option. She had to find another way.
Immigration attorney Victoria Jaensch Karins advised forming a landscaping business in Sarasota and transferring Jane as its manager from the UK to the US under an L-1 visa. Jane agreed. Her partner opened a corporation for the business here in the US and the new business venture, JML Gardens of Sarasota, was born.
A year later the L-1 renewal was denied despite the fact that her business was thriving. Now Jane was an undocumented alien, in legal limbo. Jane could not return to the UK without triggering a bar from coming back to the US. Even worse, the business in the UK was struggling without her attention.
Victoria advised applying for a green card under Section 245(i) and appealing the L-1 application. For four years Jane remained in the United States in legal limbo and during that time, her Mother became seriously ill. Finally, in early 2004, Jane’s green card application was approved and she was able to see her mother before she passed away, which occurred in April 2004.
Today Jane still runs her business out of her home, with 1 full-time employee and her partner, who is also her business partner. She became a citizen of the US in August 2012. The business supports her and was recently featured in the Sarasota Herald-Tribune. Spring is a very busy time for her and she advises all the green thumbs reading this article to check their irrigation systems are functioning correctly to minimize water loss, fertilize their gardens and get ready for the growing season.
The Supreme Court is currently hearing arguments for and against California’s Proposition 8. Jane can attest to the legal disadvantages of being gay, not only in terms of immigration law, but in terms of healthcare and tax law as well. The decision is still months away but could be momentous. In the meantime, immigration reformers are considering whether to expand the definition of married immigrant couples to include LGBT couples. Although this is now a non-issue for Jane, she knows there are other couples out there who are kept apart because of this law and she hopes reformers consider her story when deciding on this issue.
Automation will eliminate paper forms, streamline admission process
U.S. Customs and Border Protection recently announced that it has submitted to the Federal Register a rule that will automate Form I-94 Arrival/Departure Record to streamline the admissions process for individuals lawfully visiting the United States. Form I-94 provides international visitors evidence they have been lawfully admitted to the U.S. which is necessary to verify alien registration, immigration status, and employment authorization. The automation means that affected visitors will no longer need to fill out a paper form when arriving to the U.S. by air or sea, improving procedures and reducing costs. The change will go into effect 30 days after the rule is published in the Federal Register.
“Automation of the I-94 will increase efficiency and streamline the admission process,” said CBP Deputy Commissioner David V. Aguilar. “Once fully implemented, the process will facilitate security and travel while saving CBP an estimated $15.5 million a year.” Travelers wanting a hard copy or other evidence of admission will be directed to www.cbp.gov/I94 to print a copy of an I-94 based on the electronically submitted data, including the I-94 number from the form, to provide as necessary to benefits providers or as evidence of lawful admission. (www.cbp.gov/I94 )
As part of CBP’s work to bring advances in technology and automation to the passenger processing environment, records of admission will now be generated using traveler information already transmitted through electronic means. This change should decrease paperwork for both the officer and the traveler and will allow CBP to better optimize its resources.
Immigration reform is coming and we are keeping the Sarasota area informed.
Last week, in our ongoing effort to know what Sarasota residents think about immigration reform, we attended a talk hosted by the Sarasota Nation Discussion Group by noted attorney Greg Schell. Greg Schell graduated from Harvard Law School and is currently working with the “Gang of 8” Senators to craft the farm worker aspect of immigration reform. He represents low-wage workers in Florida.
To illustrate the fact that we live in a global economy and immigration is an issue everywhere, Mr. Schell began by telling the story of Haitians who travel to the Dominican Republic every year to cut sugarcane, a job that Dominicans are apparently unwilling to do. Many of these Haitians end up staying and starting families in the DR, as well as using publicly-funded services such as education. At the same time many Dominicans travel to Puerto Rico every year to pick cotton. And many Puerto Ricans travel to the United States every year to work on Eastern farms. Jobs in the Maquiladoras on the US-Mexico border are actually disappearing and going to China. Immigration has no easy answers.
The last major piece of reform in the U.S. was the 1986 Immigration Reform and Control Act – IRCA. Before IRCA it was not illegal to hire an undocumented alien. The immigrant population was small, concentrated in 10-15 states, and there was no global economy. Organized labor fought against increased immigration.
When IRCA passed it legalized 2.7 million people. Employers now had to use the I-9 form to document new workers. Workers had to prove their legal status by showing a green card or other documentation. Documents were easily forged. In 1988 95% of immigrants were legal. Fifteen years later 95% are undocumented.
In 1998 Congress compounded the issue by mandating that an illegal alien marrying a citizen had to leave the country for ten years first, and that legal immigrants couldn’t receive social security until after paying in for ten years first. This policy is now largely null thanks to the new Stateside Waiver. Border security became important after 9/11.
Today the issues are similar to what they were in 1986 except the number of undocumented immigrants is much larger – 11 million as opposed to 2.7 million. The issue of “Temporary Protected Status” puts people in legal limbo and should be addressed. Businesses want to increase the number of work visas but the opportunities for abuse are high. Immigrants who are in the country on work visas can only work for the sponsoring employer and are regularly paid lower comparative wages. Mr. Schell is also concerned about the possibility of guest workers taking the jobs of newly legalized residents.
Business and Labor are united on the need to reform immigration. The business community, especially many IT firms, would like to be able to bring more guest workers in to the country. Currently the government allots 65,000 work visas a year. Some proposals would increase that number to 360,000. Labor unions want to organize these workers and work towards better conditions for the ones who are already here. The last election demonstrated that immigration reform could have implications for national politics and many legislators seem anxious to get something done.
Mr. Schell supported immigration reform and he is working to ensure that guest workers and farm workers have a place at the negotiating table when the legislation is crafted.
Jaensch Immigration Law Firm announces the launch of its latest initiative, SMILE (Sarasota-Manatee Immigrants Lift the Economy). The initiative’s objective is to keep area residents informed with up-to-the-minute news on the immigration debate, demonstrate district support for immigration reform, and collect and share immigration stories.
“We are all immigrants to some extent,” says Jaensch Immigration Law Firm attorney Victoria Jaensch Karins. “This very firm was founded by an immigrant, and today 12% of Sarasota and Bradenton county residents are foreign-born and that percentage is rising.”
Immigration reform received cheers and a standing ovation when mentioned in Tuesday’s State of the Union address. SMILE will keep area residents informed on the debate with up-to-the minute news on their website and Facebook page.
In addition, SMILE will demonstrate district support for immigration. Supporters can publicly “like” SMILE’s Facebook page, or privately fill out their survey. SMILE organizers will stay in touch with their adherents through regular email updates. They will be organizing events and holding one-on-one talks with area leaders to discuss immigration and its economic impact.
Most importantly, SMILE will be a place for immigrants to share their stories – good and bad. “We want to hear from area immigrants about their experiences to clarify the issue and rally support for reform,” says Ms. Karins. “Area immigrants are welcome to share their stories on our Facebook page or via email.”
To share your story with SMILE visit their Facebook page or email email@example.com.
Two pieces of news today that give us continuing hope that immigration reform may become a reality this year.
- President Obama and his staff continued meetings today with the Congressional Hispanic Caucus (this is a group of 27 Hispanic Congresspersons). ABC News reports that President Obama will make a significant announcement on immigration next Tuesday during a trip to Las Vegas.
- The Washington Post reports that a bipartisan group of influential senators, who have been meeting quietly since the election, have reached agreement on core principles and may announce a plan for comprehensive immigration reform as early as Friday next week. The Post article states that this agreement, represents “the most substantive bipartisan effort” towards immigration reform in years.
There have been no details released from either the Administration or Congress. However, we believe that the political will for immigration reform in both the Democratic and Republican parties is at its highest level in years.
(From USCIS Email)
As part of our ongoing commitment to improving customer service, USCIS has recently introduced new options for customers to obtain information and check on the status of their application electronically and has also expanded its call center hours.
We expanded the capabilities of two of our online tools, My Case Status and e-Request, to provide these more flexible options:
- My Case Status now allows customers to view the current status of applications they submit, no matter which USCIS form they used. My Case Status now lets them track, through our Secure Mail Initiative (SMI), the mailing and delivery of USCIS-produced cards and documents. SMI permits customers to use our website to access the U.S. Postal Service tracking numbers of their documents.
- e-Request now allows customers to inquire electronically about applications and petitions they submit to USCIS. They can use this tool to request a follow-up on their case status if they do not receive documents related to three of our most-used forms:
- Form I-485, Application to Adjust Permanent Residence or Adjust Status;
- Form I-765, Application for Employment Authorization; and
- Form I-130, Petition for Alien Relative.
In addition, USCIS is expanding operating hours at our National Customer Service Center to include Saturdays. Beginning Jan. 12, customers nationwide can call our toll-free number (800-375-5283) from 9 a.m. to 5 p.m. on Saturdays to receive nationwide assistance for immigration services and benefits offered by USCIS. Our customer service representatives can answer routine questions on a wide variety of topics related to immigration services and benefits, including ordering forms, processing times, and information on local offices and civil surgeons. For individuals seeking answers to more complex issues regarding their case, we recommend calling the NCSC Monday through Friday for access to case adjudication officers.
In reading the final rule, some notes I wanted to share regarding the provisional waiver:
- There will be no fee waivers
- There are no interim benefits like EAD or advance parole with provisional waiver application
- It only applies to immediate relatives of U.S. citizens
- The extreme hardship must be to a U.S. citizen spouse or parent (not a US child, or LPR spouse or parent – this is different than the waivers abroad which allows for extreme hardship to LPR relatives)
- Does not apply to those with final orders of removal
- Applies to those currently in proceedings but only if a) the proceedings have been terminated or administratively closed or b) the NTA has been cancelled
- Does not apply to those who have already been scheduled for their consular interview prior to January 3, 2013
- Does not apply to those subject to permanent bar
- Filing fees: $585 for the I-601 and $85 for biometrics. Also, don’t forget the new USCIS immigrant visa fee which will be added to the $230 IV fee and $88 Affidavit of Support fee
- Must have I-130 already approved and NVC fees paid
- Proving extreme hardship will still be case by case although they will provide examples in the Form I-601A instructions
- Does not apply to any other ground of inadmissibility except three or ten year bar – can’t apply if they have other grounds such as prior removal, fraud or misrepresentation, criminal, health-related grounds etc.
As seen on ICE.gov:
ICE priorities include the identification and removal of those that have broken criminal laws, threats to national security, recent border crossers and repeat violators of immigration law. Overall, in FY 2012 ICE’s Office of Enforcement and Removal Operations removed 409,849 individuals. Of these, approximately 55 percent, or 225,390 of the people removed, were convicted of felonies or misdemeanors – almost double the removal of criminals in FY 2008. This includes 1,215 aliens convicted of homicide; 5,557 aliens convicted of sexual offenses; 40,448 aliens convicted for crimes involving drugs; and 36,166 aliens convicted for driving under the influence.
ICE continues to make progress with regard to other categories prioritized for removal. Some 96 percent of all ICE’s removals fell into a priority category – a record high.
With potential changes in the procedures regarding I-601 Waivers or Stateside Waivers, we decided to clarify this document’s role in the immigration process.
People who are married to U.S. citizens can file their green card applications in the U.S. if they entered the country legally and overstayed a visa. Being out of status doesn’t matter so long as they entered legally with a visa.
People who are married to U.S. citizens but who entered without inspection (crossing the border illegally) are not eligible to file their green card applications in the U.S. Under current law these people first need their U.S. citizen spouse to submit an I-130 petition, designating them as an approved family member, then they need to return to their country of origin and apply for a green card there. If they had been in the U.S. illegally for more than a year, by leaving, they are subject to a 3 to 10-year bar from returning to the U.S.
The 3 year bar is for people who accrue more than 180 days but less than a year of time out of status and then depart the U.S. The 10 year bar is for people who accrue a year or more out of status and then leave the U.S. A waiver of these grounds of inadmissibility is available if one can show their U.S. citizen or lawful permanent resident (LPR) spouse or parent would suffer extreme hardship if they were not permitted to stay in or return to the U.S. This is the I-601 extreme hardship waiver. Historically, and currently, these waivers were filed and decided in the country of origin. They can often take more than a year. Counting the time that it takes an EWI to apply for the I-601 Waiver and the green card, the applicant can be separated from his/her family for a long time.
There is a possibility that USCIS will change the procedure for applying for an I-601 Waiver. The latest USCIS report tells us that we should expect to hear the full story before then end of this year (2012). The indication is that the new procedures will allow people to apply for an I-601 Waiver from within the U.S.; not at the consulates as was the previous procedure. The person would still have to leave the U.S. and go to the U.S. consulate in their country of origin to obtain the green card, but at least they’d have some idea of their chances of approval and how long they may need to be out of the U.S. before they left.
The latest EB-5 news reports that adjudication of EB-5 visa applications will be moving to Washington, DC.
On December 3, 2012, U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas noted on a stakeholder conference call that within four to six months, EB-5 responsibilities will be moved to Washington, DC, under a new EB-5 Program Office. The chief of the new office will report to the USCIS Deputy Director. According to unofficial reports on the call, Director Mayorkas said a goal is to move toward a more dynamic, direct e-mail relationship between adjudicators and the public, and to move away from the current “request for evidence” model. The new EB-5 Program Office will handle adjudications, legislative affairs, and policy, in addition to having full-time staff devoted to identifying fraud.
In other news, USCIS released the latest DACA statistics on December 13. As of that date there were 367,903 submitted applications of which 355,889 were accepted. There have been a total of 336,464 biometrics scheduled and there are 157,151 cases under review. Of the total applications that were submitted, only 102,965 have been approved. This means that only 27.9% of cases have been approved thus far. To see the most updated graph, please see here.
A new practice pointer from Customs and Border Protection (CBP) entitled, Frequent Travel Abroad and Abandonment of Lawful Permanent Resident Status, clarifies the CBP’s position on Legal Permanent Residents (green card holders) who frequently leave the country. Be aware that Customs takes more into account when determining whether a legal permanent resident has abandoned their status than simply the dates of exit and entry.
In fact, during an October 20, 2011 meeting with the D.C. Chapter’s CBP Liaison Committee, Baltimore (BWI) CBP representatives confirmed that “CBP officers are less focused on the length of time abroad and more on where does the person actually live.” According to the representatives, CBP officers will look at the totality of the circumstances, including “how many years the person has lived in the U.S.; whether the person is employed in the U.S. or abroad; where family members live; [and] whether U.S. taxes have been paid.”
Washington Dulles Airport’s CBP representatives concurred:
Abandonment issues were also discussed during the Committee’s January 25, 2012 meeting with Washington (Dulles) CBP representatives. During the meeting, CBP representatives indicated that “[d]omicile is the major issue for WAS CBP inspectors, so the applicant should have evidence with him/her of where s/he lives.”
Carry additional documentation such as a drivers license of employment ID with you to be safe.
The CBP Inspector’s Field Manual (“IFM”) similarly explains that the length of time spent abroad is not the sole indicator of abandonment (AILA Doc. No. 11120959). The IFM notes that other indicators of possible abandonment are “employment abroad, immediate family members who are not permanent residents, arrival on a charter flight where most passengers are non-residents with return passage, lack of a fixed address in the U.S., or frequent prolonged absences from the U.S.” In questionable cases, the IFM advises officers “to ask for other documentation to substantiate residence, such as a driver’s license and employer identification cards.”
(From USCIS Website)
Implementation of New USCIS Immigrant Fee Feb. 1
New fee allows USCIS to recover the costs of processing immigrant visas after individuals receive their visa packages from the Department of State abroad
WASHINGTON—On Feb. 1, 2013, U.S. Citizenship and Immigration Services (USCIS) will begin collecting a new USCIS Immigrant Fee of $165 from foreign nationals seeking permanent residence in the United States. This new fee was established in USCIS’s final rule adjusting fees for immigration applications and petitions announced on Sept. 24, 2010.
USCIS has worked closely with the Department of State (DOS) to implement the new fee which allows USCIS to recover the costs of processing immigrant visas in the United States after immigrant visa holders receive their visa packages from DOS. This includes staff time to handle, file and maintain the immigrant visa package, and the cost of producing and delivering the permanent resident card.
In order to simplify and centralize the payment process, applicants will pay online through the USCIS website after they receive their visa package from DOS and before they depart for the United States. DOS will provide applicants with specific information on how to submit payment when they attend their consular interview. The new fee is in addition to fees charged by DOS associated with an individual’s immigrant visa application.
USCIS processes approximately 36,000 immigrant visa packages each month. Prospective adoptive parents whose child will enter the United States under the Orphan or Hague processes are exempt from the new fee.
For more information visit our USCIS Immigrant Fee webpage.
The latest Department of State Visa Bulletin warns that a cut-off date for EB-5 Visas for Chinese citizens may have to be established. This is not surprising due to the overwhelming number of Chinese citizens who apply for the EB-5 Investor Visa. 70% of current applicants are Chinese.
Approximately 10,000 EB-5 Visas are allocated each year for investors from around the world. However, when the number of applicants from a particular country reaches a certain level, the Department of State establishes a cut-off date for that country. When this happens, applicants can submit their green card petitions, but an immigrant visa or green card will not be issued to the applicant until his or her place is reached on a waiting list.
Residents of countries that send many immigrants to America such as China, Mexico, India and the Philippines, often experience cut-off dates. In some cases, waiting times develop only for family sponsored green card applications and in other cases it is for employment based green card applications.
The EB-5 Investor Visa is awarded to foreigners who invest a minimum of $500,000 in a qualified, job-creating project in the United States. The funds must have been lawfully gained. To read more about the EB-5 Visa and other investor visas check out VisaAmerica.com.
From the USCIS:
U.S. Citizenship and Immigration Services (USCIS) reminds customers affected by Hurricane Sandy of certain U.S. immigration benefits or relief that may be available to them.
USCIS understands that a natural disaster can affect an individual’s ability to maintain lawful immigration status or obtain certain other immigration benefits. Eligible individuals may request or apply for temporary relief measures, including:
- A change or extension of nonimmigrant status for an individual currently in the United States, even when the request is filed after the authorized period of admission has expired;
- Extension or re-parole of individuals previously granted parole by USCIS;
- Expedited adjudication of off-campus employment authorization applications for F-1 students experiencing severe economic hardship;
- Expedited adjudication of employment authorization applications; and
- Assistance to Legal Permanent Residents (LPR) stranded overseas without immigration or travel documents, such as Permanent Resident Cards (Green Cards). USCIS and the Department of State will coordinate on these matters when LPRs are stranded in places that do not have a local USCIS office.
For more information, visit the USCIS website.