U.S. v. Windsor, Marriage Equality, and State Law: Considerations for Same-Sex Couples Who Travel or Reside Outside of Marriage Equality States **

January 8th, 2014 by Greg Boos

The Supreme Court’s decision in U.S. v. Windsor was fantastic news for same-sex immigrant couples: their marriages are now valid for U.S. immigration purposes. United States Citizen (USC) spouses can finally petition for their same-sex noncitizen spouses, USC parents for their same-sex noncitizen married sons or daughters, and much more.

However, while the Windsor decision answered many questions regarding federal recognition of same-sex marriage, it also resulted in new questions regarding the application of the law in the majority of states that do not recognize same-sex marriage. Post-Windsor, will a valid same-sex marriage that took place in a jurisdiction that recognizes same sex marriage still be void in a state that does not?

For example, if a same-sex couple living in Washington (which recognizes same-sex marriage) crosses state lines into Oregon (which does not), does that valid marriage suddenly become void upon entry into Oregon and then suddenly valid again the second that couple crosses state lines back into Washington? At this point, the answer appears to depend on whether the marriage is being examined through the lens of federal or state law.

For immigration purposes, the Board of Immigration Appeals (BIA) recognizes the “place of celebration” rule, under which “the validity of a marriage is determined by the law of the State where the marriage was celebrated.” Matter of Lovo-Lara, 23 I. & N. Dec. 746, 753 (BIA 2005). However, under DOMA, regardless of what the state recognized, the federal government was barred from defining a same-sex union as a marriage.

Post-Windsor, the BIA has affirmed the place of celebration rule and lack of federal recognition is no longer an issue. Matter of Zeleniak, 26 I. & N. Dec. 158 (BIA 2013). So if our couple was married in Washington State, Canada, or any other marriage equality jurisdiction, that marriage is valid for immigration and other federal purposes during the entirety of their travels. If our couple instead resides in Oregon and traveled to Washington or Canada to marry, their marriage will remain valid under federal law after their return to Oregon. Because no U.S. state with marriage equality maintains a residence requirement to marry there, our couple could theoretically enter a marriage equality state, obtain a marriage license, marry, and return to their home state all on the same day with a marriage valid under federal law.

However, regardless of the fact that the federal government will recognize the marriage as valid for its own purposes, for state law purposes, that marriage will be void in the majority of states that do not recognize same-sex marriage. One very relevant implication of this disparity is divorce. Because half of marriages end in divorce, and because state law governs divorce, this is a significant issue for married same-sex couples living in non- marriage equality states. Although their marriage may be federally valid, because it is void under state law, they may not be able to divorce there.Unlike with marriage, all states maintain residency requirements for divorce, with six months to a year being most common. Even Nevada, with the shortest residency requirement, still requires a period of six weeks.

The above discussion raises the question: Can a marriage recognized by both the jurisdiction of celebration and the federal government really be against the public policy of a state such that the Full Faith and Credit Clause of the U.S. Constitution does not demand recognition? Or are we left to resolve the issue through legislation? This conflict in applying federal and state law will no doubt continue to be litigated in the months and years to come.

**This blog was penned by Heather Fathali. Heather is a 3rd year law student at Seattle University School of Law who spends her spare time working with Greg Boos at Cascadia Cross-Border Law.

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EB-5 Investor Scams Target Immigration Lawyers

December 27th, 2013 by Margaret Stock

Much attention in the press recently has focused on encouraging foreign investors to set up businesses in the United States through the EB-5 Investor Visa program, but there has been little attention to a related phenomenon: “Man-in-the-middle” fraud schemes targeting immigration lawyers who handle EB-5 cases. In these cases, the scam artists seek to victimize immigration lawyers by using counterfeit checks to “invest” in EB-5 businesses.

Here’s how the fraud scheme works: An attorney receives an email from a person purporting to be a wealthy foreigner who wants to obtain an EB-5 immigrant visa by investing in a business in the United States. The person asks for an attorney-client fee agreement and is anxious to know the attorney’s fee. The person also says that he will send a check (often a cashier’s check) for the attorney’s fee, plus the full amount of the investment.

The check that arrives looks like a real check and may have the name of a real company and real account number on it; it may even appear to be a valid cashier’s check. The attorney deposits the check, which initially results in a large balance appearing in the attorney’s trust account. Shortly thereafter, the client directs the attorney to wire some or all of the funds elsewhere, typically to an overseas account. Later, the attorney learns that the check was phony, and the attorney now must repay the bank for the wired funds.

This scheme works because the attorney’s bank merely acts as the agent of the owner of a check for the purpose of collecting the check; the bank may provide provisional credit on a deposited item, pending final settlement or payment of the check, but if the original check turns out to be phony, the bank will demand repayment from the depositor (in this case, the attorney). It may take months for a US bank to determine that a check from a foreign country is phony. If an immigration lawyer accepts a large check from a client, deposits the check, and then wires the provisional funds back to the client for the client to use for other purposes, the lawyer may end up being victimized if the check turns out to be fraudulent.

Banks around the United States are currently publishing customer service articles describing similar schemes that have victimized business and divorce lawyers, but now the fraudsters are attempting to use the EB-5 program as a means of targeting immigration lawyers. Attorneys are advised to be wary of anxious EB-5 investors who want to send large checks directly to the attorney for deposit in the attorney’s trust account, and who later direct the attorney to wire the money elsewhere. Any attorney who suspects that such a scheme is fraudulent should contact the bank or law enforcement for assistance.

My thanks to Jason Feeken of Wells Fargo Bank for assistance in writing this blog post; Jason has written similar articles about fraud schemes targeting lawyers who practice divorce or business law.

See the original article here: EB-5 Investor Scams Target Immigration Lawyers

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Immigration and the Legalization of Marijuana in Washington State and Colorado

December 17th, 2013 by W. Scott Railton

Washington State voters passed Initiative 502 in 2012, legalizing the use of marijuana products for adults 21 and over. Colorado voters approved Amendment 64 to its Constitution in 2012. These interesting developments have received widespread media attention. In turn, we’ve been getting a lot of questions on how these laws will impact U.S. immigration and the border, since marijuana possession and other related offenses are still illegal under federal law. In fact, I was recently quoted in a Canadian Press article on this subject, and then interviewed on Vancouver’s CKNW’s morning show (Listen to the full interview below).

Beware. There are plenty of reasons to believe that federal law will continue to trump state law when it comes to immigration and marijuana, at least in the short term. Marijuana continues to be listed as a controlled substance under the U.S.’s Controlled Substances Act, and the illegal use of controlled substances continues to be prohibited under the U.S. Immigration and Nationality Act. Initial indications from U.S. Customs and Border Protection are that the officers at the border will continue to enforce the federal laws over Washington and Colorado’s experiments in legalization.

Immigration and marijuana don’t mix well. U.S. immigration law is particularly strict in regards to narcotics, and there is a long history of federal cases related to marijuana use. Probably the most famous case was in 1973 when John Lennon was ordered to be deported for a past marijuana conviction in England. He won that case, but only after a long court battle. The cause of deportation order was supposedly a pretext for Lennon’s removal, as his activist efforts were unpopular in certain quarters. In 2006, the battle was memorialized in the movie The U.S. v. John Lennon.

Under current law, a person can be found inadmissible to the United States for (1) a conviction related to marijuana, (2) for simply admitting to committing the essential elements of any marijuana related offense; (3) for reason to believe a person is trafficker of controlled substances; (4) or for being a drug abuser.  This is a non-exhaustive list, but it is particularly noteworthy that a conviction isn’t required to bar admission. Once a person is deemed inadmissible, they’ll likely need to seek a waiver, which is expensive and time-consuming to obtain.

Conversations with border officers may go down any number of ways, and of course will be steered by the officers. Some may take an interest in the issue, and some may not. There is always a human element involved when seeking admission. However, lying to a border officer can have serious consequences, as misrepresentation is a basis for inadmissibility and immediate expedited removal.

Now, if an officer at the border knows that a person intends to engage in a violation of the Controlled Substances Act, they can find that person inadmissible at that time, for seeking to enter for an illegitimate purpose. Such a finding would not necessarily necessitate future waivers, though it could, if, for example, the agency decided to require a person to prove they are not a drug abuser. Hopefully U.S. Customs and Border Protection adopts a transparent and uniform approach, as these state laws are sure to confuse people.

Other issues are bound to come up too. For example, a violation of the Controlled Substances Act could impact all sorts of future immigration-related applications, such as trusted traveler applications (e.g. NEXUS), permanent residence applications, and naturalization applications. Foreign investors risk running afoul federal controlled substance trafficking laws if they get involved in financing marijuana businesses. This in turn could have serious immigration implications for both the investors and their families.

Time will tell how this all plays out. The U.S. Attorney General has issued at least three separate memos to its attorneys on how to address state legalization of marijuana cases in the medical and recreational contexts. In brief, these memos encourage prosecutorial discretion in certain circumstances, but by no means cede federal authority over marijuana-related activities. The federal government has on occasion and recently closed some medical marijuana dispensaries and grow operations in Washington State and Colorado, and so it is clearly not turning a blind eye.

For the time being, better safe than sorry seems to be the most advisable policy for noncitizens in relation to these new state legalization laws.

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US Army Bars Dual US Citizens from Most Jobs

December 12th, 2013 by Margaret Stock

In 2011, the US Army issued a revised personnel regulation in which the Army announced that dual citizens of the United States and another country are not permitted to enlist in the Army, Army Reserve, or Army National Guard into jobs that require a security clearance “unless they already possess a security clearance.” The regulation is important because it potentially bars millions of Americans from most Army jobs: The vast majority of Army jobs require a security clearance–including officer appointments, Special Forces, Military Intelligence, and Military Police jobs, but also most others.

Dual citizenship is something that millions of Americans possess, often inadvertently. Whether a person holds citizenship in a particular country is a matter of that country’s law, not U.S. law, and one’s citizenship is thus not always within the control of the individual or the United States Government. Although some countries allow their citizens to expatriate, others do not. Some people are dual citizens because their parents or grandparents hold citizenship in a foreign country; others are dual citizens because they were born in another country. The U.S. Office of Personnel Management has published “Citizenship Laws of the World,” a document that explains the wide variety of rules regarding citizenship. Although this document is not completely up-to-date (some countries have changed their laws since it was published), it can give a reader a good idea of the potential problems posed by the Army’s personnel regulation. According to OPM, for example, the country of Iran considers the children of male Iranian citizens to be Iranian citizens as well, and prevents them from renouncing Iranian citizenship–so any US-born child of an Iranian citizen is necessarily a dual citizen of the United States and Iran, and can’t rid himself of Iranian citizenship. Should the US Army bar a young American of Iranian descent from serving in the US Army Special Forces, merely because his father is an Iranian immigrant to the United States? One would hope not.

The Army’s regulation preventing all dual US citizens from enlisting in most Army jobs is a much broader bar than the military has previously applied. Previously, dual citizenship did not prevent enlistment into any job and did not automatically bar a person from holding a security clearance; instead, security officials would evaluate each person’s case individually. Ironically, famous Americans such as George Washington, John F. Kennedy, John Shalikashvili, Marco Rubio, and even Barack Obama would likely have been barred from serving in most Army jobs had they attempted to join the US Army at a time when this regulation was in effect.

The rule barring dual citizens from enlisting in most jobs also cedes American sovereignty to other countries, because it lets foreign countries control who can serve in the US Army. As discussed above, a foreign country–not the United States–determines who is a citizen of that country. When a foreign country determines that an American holds its citizenship, that American necessarily is a dual citizen of that country and the United States. Barring these dual citizens from enlisting thus lets foreign countries use their citizenship laws to control which Americans can serve in the Army. Allowing foreign laws to control who gets to enlist in the US Army is clearly not in America’s national security interest. Let’s hope that Army leaders rescind this new rule soon, before it damages the Army’s ability to recruit from the ranks of talented American citizens.

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DHS Clarifies Immigration Benefits for Family Members of Selected Reserve and Veterans

December 12th, 2013 by Margaret Stock

On November 15, 2013, United States Citizenship & Immigration Services (USCIS), the United States Department of Homeland Security (DHS) sub-agency that administers immigration benefits, announced a new national “parole in place” policy that affects the immigrant parents, spouses, and children of current military members on active duty or who serve in the Selected Reserve of the Ready Reserve, or veterans of such service. The policy clarifies that USCIS should generally allow such immigrant relatives to be granted an immigration “parole” so that they may adjust to a lawful immigration status while in the United States. Previously, some USCIS offices had required these military family members to leave the United States in order to obtain a lawful immigration status, but the family members’ departure from the United States often triggered a lengthy separation—sometimes more than ten years—because of overseas visa processing rules.

United States immigration law has long been excessively complicated, [2] and one of the complications is an infamous “Catch-22” that affects the immigrant parents, spouses, and children of American citizens and lawful permanent residents. Noncitizens who are the parents, spouses, and children of American citizens are normally eligible for an immediate relative immigrant visa—but typically they cannot obtain lawful status in the United States based on that visa unless they can prove that they have been “inspected and admitted or paroled” into the United States by immigration authorities.[3] If they cannot prove that they have been admitted or paroled, they must depart the United States and apply for an immigrant visa outside the United States. Under Section 212(a)(9)(B) of the Immigration & Nationality Act; however, a person who leaves the United States after being unlawfully present for more than six months is punished by being prohibited from returning for a three-year or ten-year period, depending on how long the person has been unlawfully present.[4] This punishment does not kick in if the person does not leave the United States; but a person who has entered the United States without the permission of the United States Government is generally barred from adjusting to legal status in the United States, so such a person necessarily must leave the United States to obtain proper legal status by applying for a visa at a consulate outside the United States.

This Catch-22 has affected thousands of military family members adversely. In 2009, for example, a U.S. Army captain serving in Germany married a German woman and filed an immigrant visa petition with USCIS to bring his spouse to the United States. Visa processing times are lengthy, and while the captain was waiting for USCIS to approve the visa petition, he received orders to return to the United States. On the advice of a military attorney, he brought his wife back to the United States with him—but when his wife entered the United States at Tampa, Florida with her family member ID card, she was never given an entry document by US Customs and Border Protection. As a German citizen, the wife was eligible to enter the United States for up to ninety days under a visa-free travel program that waives the visa rules for certain countries like Germany that have bilateral agreements with the United States. After residing with her husband on an Army post in the United States for more than a year and a half, the wife traveled back to Germany to attend her immigrant visa interview. At the interview, she was advised by a United States Department of State consular officer that she was banned from the United States for ten years because she had departed after being “unlawfully present” in the United States for more than a year; the consular officer took the position that she had only been admitted to the United States for ninety days, and she had stayed for more than a year after the initial 90-day period, and hence her departure to Germany to seek an immigrant visa had triggered a ten-year bar to her return to the United States. Luckily in this particular case, the U.S. Army captain was able to obtain an “extreme hardship” waiver after several months of effort, and his wife was allowed to return—but many military family members trapped in this dilemma have not been so fortunate or are not eligible for a waiver.

The United States Government has long recognized the dilemma posed by this legal Catch-22, and the law provides a remedy—DHS agencies are permitted by law to grant an immigration “parole in place” to anyone who has not been admitted or paroled previously, as long as the parole is “for urgent humanitarian reasons or significant public benefit.”[5] For decades, this parole authority has been used to benefit Cubans who have entered the United States unlawfully; such Cubans would normally be barred from adjusting status and would be required to return to Cuba to obtain an immigrant visa, but the immigration agencies have for decades had a formal policy of granting Cubans an immigration “parole in place” that allows them to adjust status in the United States, rather than forcing them to return to Cuba. The parole authority has similarly been used in the past to benefit other groups such as battered spouses or government informants.

In 2008, under the Bush Administration, the parole authority was first publicly used to benefit a military family member. Michael Chertoff, then the Secretary of DHS, ordered his agency to grant parole in place to the wife of a missing US Army soldier; the woman was then permitted to adjust status and obtain a “green card” without leaving the United States.[6] Following this incident, grants of parole in place to military family members became increasingly common, and in August 2010, Secretary of Homeland Security Janet Napolitano wrote to Congress that her agency was granting parole in place on a case-by-case basis to the parents, spouses, and children of members of the US Armed Forces.[7] The letter, however, was not a formal USCIS agency policy, and USCIS field offices differed widely in their interpretation of the Napolitano letter. Some offices, for example, would only grant parole-in-place to spouses, or would only grant the benefit to family members of active duty military members; or would only grant the benefit if a service member was deployed to a combat zone.

Accordingly, on November 15, 2013, USCIS published a formal policy memorandum directing that parole in place should ordinarily be granted to the parents, spouses, and children of current and past military members who have served on active duty or in the Selected Reserve of the Ready Reserve.[8] The policy does not change the law; it merely clarifies how the agency will apply the legal authority that it has been given by Congress.

The agency has stated that the policy is designed to reduce the “stress and anxiety” of military members and veterans who are worried about the immigration status of their family members in the United States; the policy is also designed to enhance military readiness. The policy does not apply to family members who have criminal convictions or “other serious adverse factors.”

Members or former members of the Selected Reserve of the Ready Reserve may benefit from this policy. The law defines the Selected Reserve as including those persons who (1) participate in at least forty-eight scheduled drills or training periods during each year and serve on active duty for training at least fourteen days each year, or (2) participate in training at encampments, maneuvers, outdoor target practice, or other exercises at least fifteen days each year.[9] Most members of the Army National Guard and Air National Guard are in the Selected Reserve of the Ready Reserve, as are persons who perform paid duty each year in the Army Reserve, Air Force Reserve, Navy Reserve, Marine Corps Reserve, and Coast Guard Reserve. The Selected Reserve of the Ready Reserve includes some members of the Individual Ready Reserve who perform duty each year, but does not include inactive or retired Reservists or IRR members who perform no duty in the course of a year.

Military members or veterans who have immigrant parents, spouses, and children present in the United States who do not currently have a proper immigration status should consult an experienced immigration attorney. As stated above, US immigration laws and regulations are extremely complex, and this policy may help a family member adjust his or her immigration status, but it does not apply to every family member. An experienced immigration attorney can help a military member or veteran determine if it is appropriate or necessary for a family member to apply for benefits under this new policy.

———————————–

[1] Margaret D. Stock is an attorney admitted in Alaska who practices primarily in the areas of immigration, citizenship, and military law. She is the author of the book Immigration Law and the Military, published by the American Immigration Lawyers Association in 2012. She is also a Life Member of the Reserve Officers Association and a 2013 MacArthur Foundation Fellow.

[2] Karen Kraushaar, a spokeswoman for the former Immigration & Naturalization Service (INS), once famously said on the record in the Washington Post that “Immigration [law] is a mystery and a mastery of obfuscation . . .” See Washington Post, Apr. 24, 2001, at B1.

[3] Section 245(a) of the Immigration & Nationality Act requires persons who apply to adjust their status inside the United States to demonstrate that they have been “inspected and admitted or paroled,” with few exceptions. The statute states that “[t]he status of an alien who was inspected and admitted or paroled into the United States . . . may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if the alien makes an application for such adjustment, the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and an immigrant visa is immediately available to him at the time his application is filed.”

[4] See INA §212(a)(9)(B) (“In general.–Any alien (other than an alien lawfully admitted for permanent residence) who–was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States . . . , and again seeks admission within 3 years of the date of such alien’s departure or removal, or has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien’s departure or removal from the United States, is inadmissible.”).

[5] See INA §212(d)(5)(A) (“The Attorney General may . . . in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States . . . “).

[6] The author testified before Congress about this incident in 2008. See http://judiciary.house.gov/hearings/pdf/Stock080520.pdf (testimony of Margaret D. Stock, at pages 7-8)

[7] The Janet Napolitano letter to Congress may be found at page 60 of the hearing testimony for a House Judiciary subcommittee hearing held on July 26, 2011, see http://judiciary.house.gov/hearings/printers/112th/112-50_67575.PDF.

[8] The USCIS policy may be found at the following link:
http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2013/2013-1115_Parole_in_Place_Memo_.pdf.

[9] See 10 United States Code §10143(a) (“Within the Ready Reserve of each of the reserve components there is a Selected Reserve. The Selected Reserve consists of units, and, as designated by the Secretary concerned, of Reserves, trained as prescribed in section 10147(a)(1) of this title or section 502(a) of title 32, as appropriate.”).

See the original article here: DHS Clarifies Immigration Benefits for Family Members of Selected Reserve and Veterans

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J-1 Waiver Recommendation Rates Posted by Department of State

December 10th, 2013 by W. Scott Railton

The U.S. Department of State released its figures recently concerning the issuance of J-1 waiver recommendations. The Department of State has authority to issue waivers of the two year foreign residency requirement which often accompanies the issuance of a J-1.  The standards for obtaining a J-1 waiver are typically rigorous and fraught with bureaucracy. However, once a recommendation to approve a waiver has been made to the Department of State, the approval of the waiver seems to be largely a formality.

For example, for State Department of Health waivers, in 2013 there were 1033 favorable recommendations and 0 unfavorable recommendations. These waivers include the Conrad 30 waivers for physicians. For these waivers, the State Department of Health must issue a recommendation, and each State has different standards. For example, Washington State requires at least six months of specific forms of recruitment for the position, amongst many other requirements. As such, to be successful, a fair amount of advance Human Resource planning is required.

Similarly, the Department of State reports that in the Fiscal Year 2013 it issued 111 favorable findings for Interested Government Agency-Physician waivers, and none unfavorable.

Exceptional hardship waivers were approved more often than not, with 228 recommendations. However, in this case, there were 50 cases where there was an unfavorable finding. Similarly, most No Objection statements were approved (4269), but a slight number of cases (119) were not.  As far as the percentages go, a waiver based on Persecution had the least likely chance, with 31 approved and 6 cases not approved.

When it comes to obtaining a J-1 waiver, a certain amount of due diligence and planning is necessary.  Identifying the appropriate waiver to pursue in the first instance is paramount.  This decision will be made based on any number of program and person specific factors.

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Troubleshooting the New Automated I-94 Admission Document System

November 21st, 2013 by W. Scott Railton

One of the bigger changes in U.S. immigration law in the past year is the “automation” of the I-94. We’re hearing various stories from travelers, and so I thought it might be good to post a bit about this.

First, what is an I-94? An I-94 is the arrival/departure form issued by the U.S. Customs and Border Protection to nonimmigrants, most typically upon entry to the United States. The document typically identifies class of admission (e.g. L-1A, or intracompany transfer), date of admission, and the date of status of status expiration.  I say “typically” because there are always exceptions, and often enough errors are made in the creation of this document. Not all admittees are issued an I-94. Most Canadian visitors for business or pleasure are not.

Second, what is “automation”? In an effort to save money, the government has stopped issuing the forms at airports and sea ports of entry, and instead is putting it upon admittees to print the form after arrival. The government calls it “automation” because they are still collecting and inputting the data related to the arrival.  They’re just not going through the process of having the inspectors issue the form to arrivals. The information still lives on-line.

Land ports of entry for now are operating as usual, and still printing the cards when required for arrivals.

Recommendation

So, if you are coming to the U.S. by air or sea, we recommend that you take the steps to print your I-94, as soon as possible after entry. You’ll have to do this if you need the I-94 for other purposes, such as obtaining a driver’s license, a Social Security Number, or establishing work authorization for an employer. Regardless, though, it is best to print the I-94, if only to verify its accuracy. Errors happen. They’re easier to fix the more quickly they’re caught.

Here’s how to obtain your I-94 information:

1. Visit CBP’s website at https://i94.cbp.dhs.gov/I94/
2. Input the information below exactly as it appears on the travel document you used to enter the U.S.
• Last/Surname
• First (Given) Name
• Birth Date
• Passport Number
• Country of Issuance of Passport
• Most Recent Date of Entry into the U.S.
• Class of Admission
3. Hit “submit”

Still have questions? CBP has a video you can watch, as well as a Frequently Asked Questions page.

For a more thorough step-by-step process of the electronic I-94 system, you can watch CBP’s video on the process here.  You can also view the FAQ page about the automated I-94 here.

Troubleshooting

If you can’t find your electronic I-94, there are a couple of things you can try. Obviously, double check that everything was inputted above as it should be. If that doesn’t work, here’s a few other troubleshooting tips:

• Do not use dashes or titles in names.
• If you entered your first and middle name, try using one or the other.
• Enter your name as it appears on your passport and not your visa, if these are different.
• Enter your country of citizenship, not which country you physically reside in.
• Enter the passport number that appears on the upper right hand corner of your passport.
• Enter the visa/status classification you were granted (i.e., H-1B, TN, B-1, L-1, E, etc.).

If you’ve followed all of these steps and you still cannot access your automated I-94, or you’ve found a discrepancy between the electronic record and the notation on your passport, you can contact CBP through a deferred inspection office, which can be found on CBP’s website here.  Of course, in some circumstances, it may be worthwhile consulting with us prior to further contacting the agency.

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The Waiting Is The Hardest Part

October 30th, 2013 by W. Scott Railton

One of the most common questions we are asked is “How long will it take?” I’m reminded of Tom Petty’s song, The Waiting, where he sings, “You take it on faith, you take it to the heart, the waiting is the hardest part.”

“How long?” can be a tricky question to answer.  It requires a quick assessment of a client’s readiness to file, an idea of the current processing times with the agency or agencies in question, as well as a sense of the bureaucracy and delays that may be encountered along the way.  Delays are more predictable in some cases than others, but every case can get delayed.  Often times there are more than one way to file an application, with two separate timelines.

That said, here’s a sampling of current timelines for some common cases we handle:

USCIS Petitions.  The California Service Center for US Citizenship and Immigration Services adjudicates most Washington State based petitions. They report relatively fast times for many common business petitions, and for the most part this is what I’ve observed of late. For example, they say they will adjudicate H-1Bs and E petitions in two months, and L petitions in 1 month. However, for a number of years now, the California Service Center has shown a propensity for issuing burdensome and time consuming requests for additional evidence. Nonimmigrant petitioners have the option of paying for premium processing, and receiving 15 day adjudication for the price of $1225. Sometimes this can be a prudent purchase, just to get guarantee a fast initial adjudication, and have the same 15 day response time in regards to any response to a request for evidence.

E-1 and E-2 Treaty Petitions in Vancouver. We help Canadian clients with a lot of E-1 Trader and E-2 investor visa applications at the U.S. Consulate in Vancouver. Timelines here tend to be a few weeks, but really can depend on where the business is at and acquiring necessary documentation up front.

TN Petitions.  NAFTA TN professional applications can be submitted at the border, pre-flight inspection, or via the USCIS Service Center. CBP will adjudicate a TN petition on the spot. Adjudications vary, but the timeline doesn’t get any better. USCIS publishes that it will take one month to initially adjudicate a TN petition.

Prevailing Wage Determinations.  Initial prevailing wage requests for H-1Bs and PERM applications take between 45 and 60 days. Long gone are the days when we could get a wage determination in a day, or even a week or two. If the employer disputes the wage determination, a request for a redetermination can be filed, but these are taking about the same amount of time to adjudicate.

Labor Certifications. Initial analyst review for PERM application for labor certifications are taking about six months. The Department of Labor’s website today says that as of September 3, the agency was conducting review on cases received on February 28th, 2013. If an audit request is issued, review of that audit request will take about a year under current processing timelines.

Nonimmigrant Waivers.  I-192 nonimmigrant waivers for Canadians are taking about 5 months, though it can really vary. U.S. Customs and Border Protection’s website says to wait over 130 days before making inquiry into the case.

Immigrant visas in Montreal. The immigrant visa process was taking nine months to a year through Montreal, but recent processing time reports from USCIS suggest this timeframe may be slowing down. If so, perhaps we’ll see more people interested in filing for the K-3 visa, which in the past used to be a way to reunite cross-border couples faster.

Naturalization. Naturalization applications are moving very fast, generally speaking. We’re seeing waits of two to four months in most cases from time of filing to taking the oath of naturalization.

As I said, you can’t trust the published timelines of an agency as to adjudication timelines, though sometimes they are worth noting and are sometimes spot on. For USCIS’s latest timeline, visit here.  For the Office of Foreign Labor Certification’s latest published timelines, visit here.  http://icert.doleta.gov/. And, for the Department of State’s interview wait time at Consulates around the world, visit here.

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Shutdown Over: What Happens Now

October 18th, 2013 by W. Scott Railton

Congress ended the self-imposed government shutdown this week. The shutdown was a bit odd, from my view, insofar as not everything shut down. In the immigration sphere, some immigration courts remained open, others didn’t. USCIS continued to adjudicate petitions, but the Department of Labor went on hiatus. Whatever the case, the bureaucracy is now finding its legs again.

A few items worth posting in the aftermath:

  • USCIS says that if an H-1B, H-2A or H-2B petition is now submitted with evidence establishing that the primary reason for failing to timely file an extension of stay or change of status request was due to the government shutdown, USCIS will consider the government shutdown as an extraordinary circumstance and excuse the late filing, if the petitioner meets all other applicable requirements. More specifically, this means if a petitioner was unable to work with Department of Labor due to the shutdown, to obtain labor condition application or a prevailing wage determination, such a delay will not be held against the petitioner.
  • The Office of Foreign Labor Certification is once again processing labor condition applications, prevailing wage requests, and labor certification applications. The on-line PERM and ICERT systems are reportedly running slow today, due to backed up demand and capacity.  The sites did not get up an running until this morning.
  • The electronic E-Verify system is back up and running.
  • All other immigration-related agencies seem to be up and running, with minor adjustments being made in scheduling as are practically required for those coming back to work.

Perhaps most importantly, there is some suggestion that immigration reform is the top agenda item for many legislators and the President, now that the budget and debt issues have been temporarily resolved. Some experts suggest that immigration is a good issue for the Republican Party to tackle right now, to try to recover a bit from the public opinion hit the G.O.P. has taken in relation to the shutdown. Time will tell.

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E-Verify System Out of Service During Government Shutdown

October 4th, 2013 by W. Scott Railton

USCIS’s E-Verify system is not operating during the government shutdown. This will be a hardship for some businesses.

E-Verify is the Internet-based system which compares information from an employee’s Form I-9, Employment Eligibility Verification with data from U.S. Department of Homeland Security and Social Security Administration records to confirm employment eligibility.

To be clear, employers are still required to complete I-9s for all new employees and update them when necessary.

Here’s what USCIS says about the shutdown:

 E-Verify is currently unavailable due to a government shutdown.

While E-Verify is unavailable, you will not be able to access your E-Verify account. As a result, you will be unable to:

•Enroll any company in E-Verify
•Verify employment eligibility
•View or take action on any case
•Add, delete or edit any User ID
•Reset passwords
•Edit your company information
•Terminate an account
•Run reports
•View ‘Essential Resources.’ Please note that all essential resources may be found by visiting www.dhs.gov/e-verify.

In addition, E-Verify Customer Support and related services are closed. As a result:

•Employees will be unable to resolve Tentative Nonconfirmations (TNCs).
•Telephone and e-mail support will be unavailable. You may send e-mails, however, we cannot respond until we reopen.
•E-Verify webinars and training sessions are cancelled
•E-Verify Self Check will not be available

We understand that E-Verify’s unavailability may have a significant impact on your company’s operations. To minimize the burden on both employers and employees, the following policies have been implemented:

•The ‘three-day rule’ for E-Verify cases is suspended for cases affected by the shutdown. We’ll provide additional guidance once we reopen. This does NOT affect the Form I-9 requirement—employers must still complete the Form I-9 no later than the third business day after an employee starts work for pay.
•The time period during which employees may resolve TNCs will be extended. Days the federal government is closed will not count towards the eight federal government workdays the employee has to go to SSA or contact DHS. We will provide additional time once we reopen.
•For federal contractors complying with the federal contractor rule, please contact your contracting officer to inquire about extending deadlines.
•Employers may not take any adverse action against an employee because of an E-Verify interim case status, including while the employee’s case is in an extended interim case status due to a federal government shutdown (consult the E-Verify User Manual for more information on interim case statuses).

We apologize for any inconvenience and look forward to serving you once we resume operations.

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