9th Circuit Finds Affidavit of Support Enforceable Against Ex-Spouse, Despite Pre-Nuptial Agreement and Divorce Decree

June 10th, 2016 by W. Scott Railton

The 9th Circuit recently issued an interesting decision concerning an immigrant sponsor’s continuing obligations to support a sponsored immigrant, based on the I-864 Affidavit of Support that is submitted in the immigration process. The decision is called Erler v. Erler (No. 14-15362). Basically, the Court ruled that the Affidavit of Support obligation is enforceable, regardless of pre-nuptial agreements and divorce decrees. The decision also limited the sponsor’s obligation based on the originally sponsored household size.

As a condition of family based immigration, immigrant sponsors must complete an affidavit of support which basically ensures that the immigrant will not become a public charge. The sponsors agrees to provide “any support necessary to maintain [the immigrant] at an income that is at least 125 percent of Federal Poverty Guidelines for [their] household size.” Once executed, the affidavit becomes a contract between the sponsor and the U.S. Government, for the benefit of the sponsored immigrant, and of any Federal, State or local governmental agency or private entity that administers any “means-tested public program.” 8 C.F.R. § 213a.2(d).

The Affidavit binds a sponsor until: a.) the immigrant become a U.S. citizen; b.) has worked 40 quarters under the SSA; c.) no longer is a permanent resident and has departed the U.S.; d.) becomes subject to removal, but then adjusts status in removal; or e.) death. The affidavit clearly says divorce does not terminate the obligation.

In Erler, a prenuptial agreement existed, which said neither party would be entitled to alimony or support in the event of divorce. The Erlers divorced, and the judgment was based on the pre-nuptial agreement. Subsequently, Ms. Erler, the immigrant, went to District Court to enforce the Affidavit of Support.

The 9th Circuit acknowledged that the Affidavit of Support is enforceable, despite the pre-nuptial agreement and divorce decree. The decision is largely based on a 2012 decision in the 7th Circuit, Liu v. Mund, which is cited multiple times. The rest of the decision discusses how to calculate the obligation, and focuses on household size.  The larger the household size, the greater the sponsor’s obligation, and so this is an important determination.  The calculation of the actual obligation is a question several courts have wrestled with, and the Erler decision leaves open a number of questions, while answer a couple key ones. Most importantly, the 9th with this decision confirms that the Affidavit of Support is enforceable.

The Affidavit of Support obligation should therefore be addressed in divorce proceedings, if applicable.  One pro-active solution may be to make a naturalization application a condition of any settlement. Most immigrants can naturalize five years after becoming a permanent resident, if they’ve been living in the U.S. and have no criminality. Another may be to assess how many quarters have been worked at the time of the divorce.

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Doing Business in the USA – June 9th Seminar – Register Now!

May 12th, 2016 by Heather Fathali

 

DBusa16

Join us on June 9th for a fast paced guide to expanding your sales into the U.S. Whether opening a store front with a U.S. address or partnering with a distribution centre for your ecommerce activity, our seasoned cross-border lawyers, accountants, customs brokers and logistics professionals will present options that will help you determine your export strategy  and understand your responsibilities with government departments such as U.S. Customs and Border Protection and immigration.

Small and medium sized businesses in the export development planning stage who attend this event will:

Determine:

  • Optimal structure for your U.S. business presence
  • Cost effective distribution channels fit for your goods
  • Responsibility for Federal and State tax
  • What is considered ‘working’ in the U.S.

Understand:

  • Purchasing behaviour of U.S. consumers
  • Canadian export requirements
  • U.S. import compliance
  • Resources available to you

 

Event Type: In-class seminar

Date: June 9th, 2016

Time: 8:00 – 12:00 pm

Place:  Signature Sandman Hotel 8828 201 Street Langley, BC (Note:Access from 88th Ave.)

Fee: $75.00

Register here! 

 

 

 

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USCIS Proposed Filing Fee Increases – Open for Public Comment

May 4th, 2016 by Heather Fathali

Some very significant filing fee increases have been proposed by USCIS, now open for public comment in the Federal Register.

USCIS News Release:

“On May 4, 2016, USCIS published a notice of proposed rulemaking in the Federal Register inviting public comment, for 60 days, on the proposed U.S. Citizenship and Immigration Services Fee Schedule.

Title of Notice Type of Notice  Comment Period Expiration Date  FR Number 
U.S. Citizenship and Immigration Services Fee Schedule 60-Day Notice  

07/05/2016

 

81 FR 26903

The Chief Financial Officers Act of 1990 requires USCIS to conduct fee reviews for the Immigration Examinations Fee Account (IEFA) on a biennial basis. The FY 2016/2017 biennial fee review indicates a 21 percent weighted average fee increase is necessary to ensure full cost recovery.

The IEFA represents approximately 94 percent of USCIS’ FY 2015 funding. The remaining funding comes from other fee accounts and a small discretionary appropriation.

USCIS has authority to set its IEFA fees at a level that recovers the full cost of providing adjudication and naturalization services. This includes the cost of providing similar services to asylum applicants or other immigrants without charge and any additional costs associated with the administration of the fees collected.

USCIS last adjusted its fees in November 2010, based on the FY 2010/2011 Fee Review.

To submit a comment, follow the instructions in the notice.

After the 60-day period, we will address the comments received and publish a final rule in the Federal Register.”

 

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New Rules for STEM Optional Practical Training Work Authorizations Effective May 10th

May 2nd, 2016 by W. Scott Railton

A new rule was published by DHS last month concerning changes to the “STEM” (science, technology, engineering, and mathematics) extension program for F-1 students in Optional Practical Training.  The new rule is effective May 10th.

Under the old rule, students with degrees in STEM programs who obtained employment with an E-Verify employer could extend their standard 12 month period of work authorization by an additional 17 months.

The new rule extends this period to 24 months for qualifying persons with qualifying employers.  A person can have two of these 24 month extensions in a lifetime (e.g. if they go back and get a Master’s in a STEM field, they can get another period of work authorization).

The new rule comes with several caveats:

-A student’s OPT must be directly related to their field of study.

-Students have to prepare and execute a formal training plan with their employer, which identifies learning objectives and a means for achieving these objectives. There are reporting requirements for the student, with their designated school official.  These include (a) a six month validation requirement (fulfilled by the student with their school); (b) an annual self-evaluation requirement for the student, which must be signed by the student’s employer; (c) student and employer must report changes in employment status, including termination or departure from the employer; and (d)both the student and the employer are obligated to report to the school official material changes to, or material deviations from, the student’s formal training plan.

-Employers must be enrolled and remain in good standing with E-Verify.  They must assist with the reporting and training plan requirements.  They will have to attest that a) they have sufficient resources and trained personnel available to provide training in connection with the opportunity; that the STEM OPT extension will not replace a full or part-time U.S. workers; and the opportunity helps attain the training objectives. These attestations will be made on a Form I-983 which covers the training plan.

USCIS has tables posted at their website about the rule, which may be helpful for anyone who this rule change may apply to:

https://www.uscis.gov/working-united-states/students-and-exchange-visitors/students-and-employment/stem-opt

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Save the Date – Doing Business in the USA Seminar – June 9th

April 25th, 2016 by Heather Fathali

 

Save the date!

The next Doing Business in the USA trade seminar will be held June 9th at the Signature Sandman Hotel, in Langley, B.C. Co-sponsored by Cascadia Cross-Border Law, Pacific Customs Brokers and UCanTrade, Inc.; the half-day event will provide small to medium-sized businesses with advice on expanding sales in the U.S. Seasoned attorneys, accountants, customs brokers, and logistics professionals will explain your options and responsibilities when engaging in cross-border trade. Our presentation will of course focus on U.S. immigration and work authorization options.

Stay tuned- more details to come!

 

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The Supreme Court Hears Oral Argument in U.S. v. Texas

April 19th, 2016 by W. Scott Railton

The U.S. Supreme Court heard oral arguments in U.S. v. Texas on Monday. This is one of the most anticipated cases on this year’s calendar, and it centers on President Obama’s program to allow certain undocumented persons come out of the shadows, be listed as a low priority for removal, obtain work authorization, and consequently gain a social security number and/or perhaps a driver’s license. Some say the President’s program could impact over 4.5 million persons. Texas and 25 other states sued to enjoin the program, as an overreach of the Executive branch. Certain harms were alleged, including the costs of issuing driver’s licenses. Texas et al. prevailed in the lower courts.  A 4-4 ruling, based on the current composition of the court, would mean the lower court rulings stand.

I think the Supreme Court should rule in favor of the United States in this case, but based on the questions, a 4-4 partisan split seems likely. Congress has empowered the Executive Branch to enforce the nation’s immigration laws.  If Congress wants to change the scope of that power, Congress can legislate accordingly. That’s my take, but Justice Kennedy wears the robe, and he seemed to take a different view on Monday. See his comment below in the transcripts excerpts (p. 24).

The U.S. Solicitor General really pushed the argument that Texas et al. do not have standing.  Justice Breyer seems to be in agreement, and he was ready with case cites. Justice Roberts and Justice Alito seemed very skeptical of the U.S.’s position, but they also had questions about who else might be impacted by an adverse decision.  (p. 27-28, p. 90, below.)  The Solicitor General said 4.5 million adjustment of status applicants have received work authorization since 2008.

As Justice Breyer put it, this is a case with “tremendous political valence.” Four disparate issues are presented, involving judicial standing, constitutional authority of the Executive, the Administrative Procedures Act, and the Take Care clause. Both sides presented slippery slope type arguments, saying an adverse verdict will open the floodgates of litigation. There’s a good chance that’s where this is headed, unless someone (I’m looking at you, Justice Kennedy) is moved by the greater implications of standing and getting unnecessarily involved in what is fundamentally a political dispute.

Here are some excerpts from the 100+ pages of transcripts which I found interesting:

P. 24

JUSTICE KENNEDY: What we’re doing is defining the limits of discretion. And it seems to me that that is a legislative, not an executive act.

P. 27-28

GENERAL VERRILLI: The reason I had no problem writing it is because that phrase, “lawful presence,” has caused a terrible amount of confusion in this case; I realize it. But the reality is it means it means something different to people in the immigration world. What it means in the immigration world is not that you have a legal right to be in the United States, that your status has changed in any way. That you have any defense to removal. It doesn’t mean any of those things, and it never has. And – and so it doesn’t – and so at that fundamental level, we are not trying to change anybody’s legal status on the immigration- –

CHIEF JUSTICE ROBERTS: Lawfully present does not mean you’re legally present.

GENERAL VERRILLI: Right. Tolerated

CHIEF JUSTICE ROBERTS: I’m sorry, that just so I get that right.

GENERAL VERRILLI: Yes.

CHIEF JUSTICE ROBERTS: Lawfully present does not mean you’re legally present.

GENERAL VERRILLI: Correct

JUSTICE ALITO: But they are –the DAPA beneficiaries are –may lawfully work in the United States; isn’t that correct?

GENERAL VERRILLI: That’s right.

JUSTICE ALITO: And how is it possible to lawfully work in the United States without lawfully being in the United States?

GENERAL VERRILLI: There are millions of people, millions of people other than the DAPA recipients about whom this is true right now. And this gets to the point of why their reading of Section 1324 is completely wrong.

JUSTICE ALITO: I’m just talking about the English language. I just don’t understand it. How can you be–

GENERAL VERRILLI: Well, let me

JUSTICE ALITO: How can you – how can it be lawful to work here but not lawful to be here?

P. 46

JUSTICE SOTOMAYOR: You know, you keep saying that, “deep economic significance.” Those nearly 11 million unauthorized aliens are here in the shadows. They are affecting the economy whether we want to or not. The answer is, if Congress really wanted not to have an economic impact, it would – it would allot the amount of money necessary to deport them, but it hasn’t.

P. 55

JUSTICE KAGAN: But then it seems to me, General Keller, that your –that what you should be attacking is not DAPA. What you should be attacking is the work authorization regulations that the DHS, or before that the INA, has had for years. Or you should be attacking other connections that DHS is making with respect to these people, but not DAPA itself.

MR. KELLER: But Justice Kagan, I think it is DAPA itself that we’re challenging. And the reason why is because that is what is transforming unlawful conduct into authorized lawful conduct.

JUSTICE GINSBURG: Where does it say that in DAPA? We have the DAPA directive. I didn’t see anything in it about work authorization or about Social Security.

P. 60

JUSTICE BREYER: I would like to ask a question. The only thing I found here is about money, really. If there’s something else that’s worrying you, it’s – -it’s sort of hidden. But money is money; I understand that. And my question is about standing.

And this is technical, but it’s important to me.

Looking at the briefs, awful lot of briefs, senators, both sides. Awful lot of briefs from States, both sides. Members of Congress. Why? Because this has tremendous political valence. Keep that in mind.

Now, keeping that in mind, let’s go back to two old cases which are scarcely mentioned. But old Supreme Court cases never die.

(Laughter.)

JUSTICE BREYER: –unless, luckily, they’re overruled. And a few have been. They’re submerged like icebergs.

(Laughter.)

JUSTICE BREYER: The one I’m thinking of is Frothingham v. Mellon, Massachusetts v. Mellon. And there, in those cases, the Federal government had given something to some people. There were beneficiaries. Other people wanted to sue because they said that means we’re going to have to pay more money. And the Court said, you other people from Massachusetts, I’m sorry Massachusetts lost, but lo and behold, it did. That’s just because I’m
from Massachusetts.

(Laughter.)

JUSTICE BREYER: But the point is they lost, because, says the Court, we can’t let you just sue on the basis that you, as a taxpayer, will have to spend more money. Because if we do, taxpayers all over the country will be suing in all kinds of cases, many of which will involve nothing more than political disagreements of all kinds.

P. 90

GENERAL VERRILLI: Exactly. And there are all kinds of statuses that don’t qualify as lawful status that people have always been allowed to get work authorization during the period in which – time where their presence is tolerated.

CHIEF JUSTICE ROBERTS: How – how many people are we talking about with those?

GENERAL VERRILLI: Millions. Millions. There are

CHIEF JUSTICE ROBERTS: The asylum applications?

GENERAL VERRILLI: No, but the adjustment of status, 4.5 million since 2008, and cancellation removal, 325,000 since 2008. Huge numbers.

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USCIS Completes H-1B Lottery Selection Process

April 13th, 2016 by W. Scott Railton

U.S. Citizenship and Immigration Services announced that it has completed the H-1B lottery process for non-cap exempt employers.  The agency received over 236,000 applications for approximately 85,000 slots.

The system is flawed. The annual H-1B lottery process highlights the failure of Congress to meet the needs of employers nationally, as well as the administrative shortfalls of an agency stuck in the 20th century. The severe shortage of available slots, in an already expensive and highly regulated process, shows how unconnected the rhetoric on H-1Bs in Congress is to the business realities American employers face.

As an immigration attorney, I find the administrative dysfunction of USCIS on H-1B handling appalling.  The agency could very reasonably hold an electronic lottery for those who wish to apply, and then issue tickets or permissions-to-file for those selected.  If they did, employers could save substantially in time and money invested in preparing full applications.  After weeks of discussion and preparation, I do not enjoy telling clients that their application was not selected. Further, with a pre-lottery system, the Department of Labor would not need to field 236,00 applications for labor condition applications, and USCIS would save on all the costs related to handling the petitions it receives. Reports are the agency receives truckloads of petitions on April 1st each year. Welcome to bureaucracy, I suppose.

Enough with my rant. Here is USCIS’s announcement today on completing the selection process:

U.S. Citizenship and Immigration Services (USCIS) announced on April 7, 2016, that it has received enough H-1B petitions to reach the statutory cap of 65,000 visas for fiscal year (FY) 2017. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the advanced degree exemption, also known as the master’s cap.

USCIS received over 236,000 H-1B petitions during the filing period, which began April 1, including petitions filed for the advanced degree exemption. On April 9, USCIS used a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption. USCIS will reject and return all unselected petitions with their filing fees, unless the petition is found to be a duplicate filing.

The agency conducted the selection process for the advanced degree exemption first. All unselected advanced degree petitions then became part of the random selection process for the 65,000 limit.

As announced on March 16, 2016, USCIS will begin premium processing for H-1B cap cases no later than May 16, 2016.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will also not be counted towards the congressionally mandated FY 2017 H-1B cap. USCIS will continue to accept and process petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States;
  • Change the terms of employment for current H-1B workers;
  • Allow current H-1B workers to change employers; and
  • Allow current H-1B workers to work concurrently in a second H-1B position. U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering, and computer programming.

For more information on USCIS and its programs, please visit uscis.gov or follow us on Facebook (/uscis), Twitter (@uscis), YouTube (/uscis) and the USCIS blog The Beacon

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IRS-Impersonation Telephone Scam

April 1st, 2016 by Heather Fathali

With tax season in full swing, a telephone scam has been targeting unsuspecting taxpayers, including noncitizens. Scammers impersonate IRS agents; making aggressive and often convincing phone calls, demanding that the subject owes the IRS money and that if payment is not made immediately the subject will be arrested or deported. The IRS does not pursue payment in this way.

The IRS has published the following advisory, available at https://www.irs.gov/uac/Tax-Scams-Consumer-Alerts:

IRS-Impersonation Telephone Scam

An aggressive and sophisticated phone scam targeting taxpayers, including recent immigrants, has been making the rounds throughout the country. Callers claim to be employees of the IRS, but are not. These con artists can sound convincing when they call. They use fake names and bogus IRS identification badge numbers. They may know a lot about their targets, and they usually alter the caller ID to make it look like the IRS is calling. 

Victims are told they owe money to the IRS and it must be paid promptly through a pre-loaded debit card or wire transfer. If the victim refuses to cooperate, they are then threatened with arrest, deportation or suspension of a business or driver’s license. In many cases, the caller becomes hostile and insulting. Or, victims may be told they have a refund due to try to trick them into sharing private information. If the phone isn’t answered, the scammers often leave an “urgent” callback request.

Note that the IRS will never: 1) call to demand immediate payment, nor will the agency call about taxes owed without first having mailed you a bill; 2) demand that you pay taxes without giving you the opportunity to question or appeal the amount they say you owe; 3) require you to use a specific payment method for your taxes, such as a prepaid debit card; 4) ask for credit or debit card numbers over the phone; or 5) threaten to bring in local police or other law-enforcement groups to have you arrested for not paying.

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DHS Launches Known Employer Pilot Program

March 5th, 2016 by W. Scott Railton

The Department of Homeland Security announced the launch of its “Known Employer Pilot Program” this week. The intent of the program is to create efficiencies for USCIS and employers. Under the pilot program, up to nine pre-selected employers will upload information about themselves, requesting that they be evaluated in advance for meeting qualifications for certain types of immigration applications.  This program is created based on recommendations for the agency to modernize the immigration system.

As a practitioner, my first reaction is if the agency is seeking efficiencies, it needs to look no further than at the size of its forms. The Notice of Appearance that attorneys must file has gone from one page to four; naturalization applications have doubled in length; and the same is true for most other types of applications.  Instead of going paperless, the agency has gone paper-more.

Stepping off that soapbox—we’ll have to wait and see how this program goes, but on paper the goals of the program seem laudable.

Here’s the USCIS Press Release:

Press Release
March 3, 2016
Contact: DHS Press Office, (202) 282-8010

DHS LAUNCHES KNOWN EMPLOYER PILOT PROGRAM

WASHINGTON – The U.S. Department of Homeland Security (DHS) today announced the launch of a Known Employer pilot to assess a new process for employers seeking to hire certain workers through employment-based visa categories.

By modifying the process U.S. Citizenship and Immigration Services (USCIS) uses to reviews an employer’s eligibility to sponsor individuals under certain employment-based immigrant and nonimmigrant classifications, the Known Employer pilot is expected to reduce paperwork, costs, and delays in the processing of these benefit requests. USCIS will oversee the pilot in collaboration with the DHS Office of Policy, U.S. Customs and Border Protection (CBP) and the U.S. Department of State (DOS).

“Last year, DHS announced it would explore a Known Employer pilot to modernize and streamline the process for U.S. employers seeking to employ certain foreign workers,” said USCIS Director León Rodríguez. “Today, we’re partnering with a select group of representative organizations across a variety of industries to determine how we can improve efficiency and cut costs. If successful, we will continue to build on this trial program and promote robust trade, travel, and economic prosperity.”

DHS first announced in January 2015 that it would explore a Known Employer pilot under the United States-Canada Beyond the Border initiative. The pilot also was highlighted as a recommendation in a report from federal agencies submitted to the President in July 2015, Modernizing and Streamlining Our Legal Immigration System for the 21st Century.

The goals of the Known Employer pilot are to make the employment eligibility adjudication process more efficient while reducing delays for U.S. employers that wish to employ foreign workers under certain immigrant and nonimmigrant visa programs by:

• Reducing the amount of paperwork filed by employers and retained by USCIS;
• Promoting consistency in the adjudication of employment-based petitions and applications;
• Streamlining the adjudicative process to achieve greater efficiency within USCIS; and
• Providing greater support to CBP and DOS in support of greater efficiency and consistency at ports of entry and consular posts.

Under the Known Employer pilot, up to nine preselected employers will file applications requesting that USCIS predetermine that they meet certain requirements relating to certain immigrant and nonimmigrant visa classifications. When making this request, employers will create a profile in the Web-based Known Employer Document Library (KEDL), and upload documents relating to the requirements. USCIS officers will review and predetermine whether a prospective employer has met certain requirements relating to the visa classifications, and if USCIS approves the employer’s predetermination request, the employer may then file petitions or applications for individual employees without needing to resubmit company information with each petition or application.

Employers will not be charged any additional fees to participate in the Known Employer pilot. The pilot is scheduled to last for up to one year; however, USCIS may terminate or extend the pilot at any time. DHS and DOS will solicit ongoing feedback from the participants.

For more information, including a list of participating employers, see the Known Employer pilot page.

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“Lo Mein Loophole: How U.S. Immigration Law Fueled A Chinese Restaurant Boom”

February 23rd, 2016 by Heather Fathali

From the finest dining, to hole-in-the wall gems, to dim sum, to classic take-out; our nation celebrates it all when it comes to Chinese food. Ever wonder how and why Chinese food became an all-American classic? According to Jennifer Lee, author of the Fortune Cookie Chronicles, there are “some forty thousand Chinese restaurants in the United States – more than the number of McDonalds, Burger Kings, and KFCs combined”!

In large part, it was actually our nation’s xenophobic anti-immigration policies of the 19th and early 20th centuries that sparked this delicious culinary wildfire. Maria Godoy of NPR reports on the fascinating history of an investment-based visa exception to the Chinese Exclusion Act, otherwise known as the “Lo Mein Loophole”:

http://www.npr.org/sections/thesalt/2016/02/22/467113401/lo-mein-loophole-how-u-s-immigration-law-fueled-a-chinese-restaurant-boom

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