USCIS Announces Procedures for April 1st H-1B Filings

March 26th, 2014 by W. Scott Railton

U.S. Citizenship and Immigration Services issued a press release today, saying it will accept cap-subject petitions for H-1Bs on April 1st. The filing window will again be five business days, until April 7th. Premium processing will not commence until April 28th.  We are in the process of preparing many applications for clients for the April 1st filing date.

The annual H-1B week is really not a way to run an effective immigration system, from the business immigration standpoint.  Once the numbers are used up, they’re gone for another year, which leaves employers with one less immigration option for the other 51 weeks of the year.

Here’s the press release:

USCIS to Accept H-1B Petitions for Fiscal Year 2015 Beginning April 1, 2014
Release Date: March 25, 2014

Premium Processing for Cap-Subject Petitions to Begin by April 28, 2014

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions subject to the fiscal year (FY) 2015 cap on April 1, 2014. Cases will be considered accepted on the date that USCIS receives a properly filed petition with the correct fee. USCIS will not rely on the date that the petition is postmarked.

The congressionally mandated cap on H-1B visas for FY 2015 is 65,000. The first 20,000 H-1B petitions filed on behalf of individuals with a U.S. master’s degree or higher are exempt from the 65,000 cap.

USCIS anticipates receiving more than enough petitions to reach both caps by April 7. The agency is prepared to use a random selection process to meet the numerical limit. Non-duplicate petitions that are not selected will be rejected and returned with the filing fees.

Due to the high level of premium processing receipts anticipated, combined with the possibility that the H-1B cap will be met in the first 5 business days of the filing season, USCIS has temporarily adjusted its current premium processing practice. To facilitate the prioritized intake of cap-subject petitions requesting premium processing, USCIS will begin premium processing for H-1B cap cases no later than April 28, 2014. For more information on premium processing for FY 2015 cap-subject petitions, see the USCIS Alert.

H-1B petitioners should follow all requirements to avoid processing delays and possible requests for evidence. USCIS has detailed information, including an optional checklist, to assist in completing and submitting an FY 2015 H-1B petition. The processing worksheet is available on the USCIS website,

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 the H-1B nonimmigrant visa program and current Form I-129 processing times, visit the H-1B FY 2015 Cap Season Web page. Or call the National Customer Service Center at (800) 375-5283 or (800) 767-1833 (TDD for the hearing impaired).

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

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Washington State Passes State Version of DREAM Act

February 19th, 2014 by W. Scott Railton

The Washington State Legislature passed its State version of a DREAM Act this week, which is intended to create opportunity for certain undocumented students through the increased availability of state-based need grants. According to the Seattle P-I, this was the first major bipartisan bill to pass the legislature this year. The bill will be signed into law by Governor Inslee, who stated via Twitter that he is “Proud to give fair access and financial support to aspiring Washington students.” The passage of the bill has been more than 6 years in the making.

Senate Bill 6523 expands the availability of state need grants to:

• Any person who has completed the full senior year of high school and obtained a high school diploma, either at a Washington State public high school or an approved private high school, or a person who has received the equivalent of a diploma;

• Who has lived in Washington State for at least three years immediately before receiving the diploma or its equivalent;

• Who has continuously lived in Washington State after receiving the diploma or its equivalent and until such time as the individual is admitted to an eligible institution of higher education and has been granted deferred action for childhood arrival status (DACA) pursuant to federal rules.

The act itself says that is it to be known and cited as the Real Hope Act, and includes an appropriation of $5 million.

The concept behind the law is that hardworking students should be provided with opportunity, which is good for all. More than 15 states have now passed variations of their own DREAM act. Washington State will be the fourth state, along with New Mexico, California and Texas, to allow financial aid to undocumented students. Washington State includes the grant of DACA status as a prerequisite to receiving aid, and so the underlying requirements and costs of the DACA program will qualify eligibility.

Besides creating opportunity for education, this law also shows the growing reach of President Obama’s DACA program, which has been implemented without the vote of Congress.  The President said in his recent State of the Union address that he would act where Congress does not, to meet the immediate needs of the U.S. people.  Washington’s Dream Act is yet another case where a state government took action to deal with the on-the-ground realities of Congress’ inaction on immigration reform.

National politics aside, this law feels like a win for Washington’s young people and the economy, and is great to see the State Legislature support this bill in bipartisan fashion..

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USCIS Doubles the Length of its N-400 Naturalization Form

February 4th, 2014 by W. Scott Railton

U.S. Citizenship and Immigration Services today released a new 21 page N-400 form that must be completed to naturalize as a U.S. citizen. The old form was only 10 pages. This is the most significant change to the format in a long, long time.

The Government’s official statement on the revision says:

The revised Form N-400 contains:
• Clearer and more comprehensive instructions which highlight general eligibility requirements and specific instructions on how to complete the application;
• 2D barcode technology used for each page on the revised Form N-400, which will enhance our ability to quickly and accurately process the application; and
• New questions based on legal requirements related to national security and good moral character.

Although USCIS revised the Form N-400, it is important to note that:

• The naturalization eligibility requirements have not changed; and
• The filing fee remains the same where applicable.

USCIS will continue to accept previous versions of Form N-400 for a period of 90 days until May 5, 2014. After May 5, USCIS will only accept the revised version of the Form N-400.

A brief comparison of the old and new forms shows many differences:

• The new form calls out the legal basis for requesting exemption from the English Language Test.
• A more detailed personal contact information section, separate from the residence section.
• A new, full section on parentage, presumably for better examination of existing claims to citizenship.
• More exhaustive questioning about past employment, education, and residences in the new form. Gathering the information will provide headaches on occasion, I’m sure.
• The new form also goes to greater lengths to investigate marital and children history. For example, the new form specifically calls out the need to list all children, including children alive, missing, deceased; born in and outside the U.S.; married and unmarried; living with you or not; current stepchildren; legally adopted children; and children born out of wedlock. The old form did not get into this level of detail in explaining information needed.
• Additional new questions regarding hereditary titles and orders of nobility.
• “Have you ever called yourself a “non-U.S. resident” on a Federal, State or local tax return since you became a Permanent Resident?” is a new question.
• The new form seeks more information about any Group an applicant has been a member of, including the “Purpose of the Group” and the “Dates of Membership.”
• Many, many more questions with specificity regarding being involved or attached to terrorist activities and human rights violations (e.g. “Were you ever involved in any way with any of the following: “badly hurting, or trying to hurt, a person on purpose?”
• The new form requests more information concerning arrests, and specifically asks for a year/month/day count on served jail or prison time.
• Other new questions on the new form include, “Have you ever married someone in order to obtain an immigration benefit?”; “Have you ever made any misrepresentation to obtain any public benefit in the U.S.?”; and “Have you ever given any U.S. Government official(s) any information or documentation that was false, fraudulent or misleading?”
• The new form adds and modifies questions regarding U.S. armed service.

On the one hand, the new form provide adjudicators more information about each applicant. On the other, I expect it will take longer to prepare and adjudicate, and there will most certainly be some questions that end up creating issues of interpretation.  The current fee to naturalize is $680 for most applicants. I hope that USCIS is not creating a basis for asking even higher fees to adjudicate the same form, as a raised fee would make it all the tougher for long-time residents to apply.

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H-1B Season Is Upon Us

January 28th, 2014 by W. Scott Railton

H-1B filing season is upon us. H-1Bs are specialty occupation work authorizations, and are one of the more common ways U.S. employers are able to employ foreign professionals.

Here are a few things to know:

• April 1st is important for H-1Bs. Most employers must file on or very soon after this day for H-1B start dates of October 1st.

• H-1Bs availability is governed by quotas. The current quota allows for 65,000 approvals per year, plus an additional 20,000 approvals for persons with graduate degrees from a U.S. school. Additionally, some employers are exempt from this cap, including those affiliated with institutions of higher education and non-profit research organizations. Cap exemption can sometimes be a sticky subject.

• If it’s anything like last year, the quotas will probably be filled up by the end of the first week of April. In fact, in recent years, the agency has had to hold a lottery because the applications received have exceeded the quotas.

• Waiting until the last minute is a mistake. Proper preparation of the applications takes a while. Employers are required to first file a labor condition application with the Department of Labor, and this can take a week. Gathering the appropriate supporting documentation can slow things down as well.

• H-1Bs are typically granted to employees for 3 years, and renewable for another 3 years. H-1Bs are permitted to have immigrant intent, and so lawful permanent residence can be sought during this time, without DHS repercussion to the status.

• Filing fees are somewhat expensive for H-1Bs. They can include a $325 filing fee related to the I-129 form; $1500 or $750 “training fee”, based on the number of employees a company has; and a $500 fee for fraud prevention. There is an optional $1225 fee for premium processing, which guarantees initial adjudication in 15 days or less.

• H-1B applications can be complicated by any number of factors. U.S. Citizenship and Immigration Services has shown a propensity for challenging applications in recent years.

This is just a snapshot of things. The H-1B program is laden with rules and exceptions to those same rules.  We make it our business to know the ins and outs. Along those lines, April 1st is one of the most important “ins” for clients to be aware of, and so I’m putting up this post.

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After-Lease Service Agreement Admissions for Temporary Business Visitors Authorized By New Agency Memo

January 8th, 2014 by W. Scott Railton

I’m pleased to post here that Greg Boos recently procured a U.S. Customs and Border Protection (CBP) memorandum of great significance, through persistent use of the Freedom of Information Act. This is really a great find.

The memo, dated February 22, 3103, instructs CBP officers to admit persons as Visitors for Business (B-1) who seek to enter the United States to provide services to commercial or industrial equipment, machinery, or computer software that has been leased from an enterprise located outside the United States.  Such admissions have in the past been limited strictly to after-sales agreements.  This memo helps businesses who wish only to lease their equipment, machinery or computer software to U.S. customers. It amounts to an expansion of the rules for temporary admission for business visitors.

The full memo and guidance to agency officers is available here.

This memorandum reflects a policy decision which favors business interests at the border, and is a result of U.S.-Canada “Beyond The Border” discussions, which Greg has been following very closely for some time. We commonly work with clients that would prefer or need to enter into lease agreements rather than sales agreements.

The after-sales service agreement visitor rules which are spelled out in 8 C.F.R. § 214.2(b) are now also applicable to lease agreements. The rules apply to persons seeking to enter to install equipment, provide warranty work, or training related to agreement. One of the key requirements is the service agreement must be called for in the original lease agreement.

Applicants for admission on this basis should bring with them a copy of the lease or sales agreement, to point to the actual clause which authorizes the after-lease or sale work. The memo also restates the basic rules for admission for any B-1  Visitor for Business, including:

• Establish and maintain employment with the foreign entity
• Maintain a residence in a foreign country which the applicant does not intend to abandon
• Maintain the principal place of business and place of remuneration in the foreign country
• Temporary intent for entry
• The nature of the temporary work must require specialized knowledge which would not be something that could be hired out locally.

After-sales and lease visitors for business can include installers, repair and maintenance personnel, and supervisors having specialized knowledge of equipment, machinery or computer software that was sold or leased.

We routinely help businesses with immigration challenges related to after-sales installation, service, and training issues related to immigration, and will of course be available now in relation to after-lease agreements as well. Advanced planning is key to the process.

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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 (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

[8] The USCIS policy may be found at the following link:

[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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