DELAWARE IMMIGRATION LAWYER BLOG

In April 2010, the United States Citizenship and Immigration Service (“USCIS”) issued a revised Frequently Asked Questions on Federal Contractors and E-Verify. The FAQ addresses what Federal contracts are impacted by the Federal Acquisition Regulation (FAR), what employees are impacted by FAR, information regarding the initiation of E-Verify inquiries, how the rule impacts subcontractors and more.

E-Verify is a free, Internet-based system operated by USCIS in partnership with the Social Security Administration (SSA).  It allows employers to verify the employment authorization of newly hired employees.  Based on the information provided by the employee on his or her Form I-9, E-Verify checks this information electronically against records contained in USCIS and SSA databases.

Conditional resident aliens are required to file a Form I-751 within 90 days before the second anniversary of the date on which the alien obtained permanent resident. If the marriage is terminated by divorce, the resident alien can file a waiver of the joint petition requirement. However, if the divorce is filed but not finalized before filing of I-751, the conditional resident is not allowed to apply for the waiver based on good faith marriage. In this case, the conditional resident can still file a joint I-751 if the spouse is willing to cooperate. Otherwise, the conditional resident has to file a waiver under other grounds and then amend the application or file under a waiver once the divorce is final. Other grounds for waiver include (1) The marriage was entered into in good faith, but the conditional resident has been battered or subjected to extreme cruelty by the citizen spouse; or (2) Termination of permanent residency and deportation would result in extreme hardship.

USCIS on January 4, 2007 issued a “fact sheet” regarding traveling outside the U.S. as an asylum applicants, asylees, and lawful permanent residents who obtained such status based on their asylum status. Those people are subject to special rules.

For an asylum applicant, if he leaves the U.S. without first obtaining advanced parole, he will be presumed to have abandoned his or her asylum application. Advance parole does not guarantee that the alien will be paroled into the U.S.

For an asylee, he can travel with a refugee travel document which is valid for one year. Like advance parole, a refugee travel document does not guarantee admission into the U.S.

For lawful permanent residents who obtained such status based on their asylum status, they can also travel abroad with refugee travel documents.

There may be serious consequences of those people returning to the county of claimed persecution. Asylum status could be terminated based on fundamental change in circumstances in the asylee’s country of persecution. Termination could also occur due to fraud in the asylum application. Return to the country of feared persecution can in some circumstances, be considered evidence that the asylee’s alleged fear of persecution is not genuine.

An individual’s underlying asylum status may be terminated even if the individual has already become a lawful permanent resident. Accordingly, an asylee or a lawful permanent resident may be questioned as to why he was able to go back to the country of alleged prosecution, and in some circumstances, may be subject to proceedings to terminate asylum status.

Supreme Court holds that criminal defense counsel has a Sixth Amendment obligation to inform a defendant about immigration consequences or to advise when  consequences are clear.

http://www.supremecourt.gov/opinions/09pdf/08-651.pdf

The case, Padilla v. Kentucky, involved a Vietnam War veteran who has resided lawfully in the U.S. for over 40 years.  His criminal defense lawyer advised him on the guilty plea which made Mr. Padilla subject to mandatory deportation from the United States.  The state of Kentucky’s position was that Mr. Padilla had no right to withdraw his plea when he learned of the deportation consequence.  The Supreme Court  reversed the Kentucky court’s decision and rejected the federal government’s position that a noncitizen is protected only from “affirmative misadvice” and not from a lawyer’s failure to provide any advice about the immigration consequences of a plea.

“These changes to our immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. The importance of accurate legal advice for noncitizens accused of crimes has never been more important.These changes confirm our view that, as a matter of federal law, deportation is an integral part—indeed, sometimes the most important part — of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.”

Many petitioners after the filing of I-130 for their foreign spouses choose to file an I-129F so that their spouses can get a K3 visa to enter the U.S. to await the approval of the previously filed I-130. Normally, the I-129F petition will be approved before the I-130 petition. However, sometimes, before the foreign spouse’s K3 interview, the I-130 is approved. If the I-130 petition has been approved and received at the consular post, a K-3 visa will not be issued. If the foreign spouse begins the K3 process at the post by returning the DS-2001 thereby notifying the post they are ready to be interviewed, she or he may opt to continue the K3 process even if the approved I-130 has arrived at the post.

U.S. Citizenship and Immigration Services (USCIS) announced that it will begin accepting H-1B petitions subject to the fiscal year (FY) 2011 cap on April 1, 2010. Cases will be considered accepted on the date that USCIS takes possession of a properly filed petition
with the correct fee; not the date that the petition is postmarked. The fiscal year cap (numerical limitation on H-1B petitions) for FY 2011 is 65,000. Additionally, the first 20,000 H-1B petitions filed on behalf of individuals who have earned a U.S. master’s degree
or higher are exempt from the H-1B cap.

USCIS will monitor the number of petitions received and will notify the public of the date on which USCIS received the necessary number of petitions to meet the H-1B cap. If needed, USCIS will randomly select the number of petitions required to reach the numerical limit from the petitions received on the final receipt date. USCIS will reject cap-subject petitions that are not selected, as
well as those received after the final receipt date.

For more information on the H-1B nonimmigrant visa program and current Form I-129 processing times, visit www.uscis.gov or call the National Customer Service Center at (800) 375-5283.

USCIS recently announced revised filing instructions and addresses for filing several forms, including Form I-765 (Application for Employment Authorization), and I-485 (Application to Register Permanent Residence or Adjust Status). To download most recent forms, please visit www.uscis.gov.

If a Permanent Resident is out of U.S. continuously for more than one year, DHS takes the position that residency has been abandoned. The criteria in determining whether a LPR abandons his residency include purpose of departure, existence of fixed termination date for visit abroad, and objective intention to return to U.S. as place of permanent employment or actual home.

When a Permanent Resident seeks to be out of U.S. for more than one year, he must apply for a re-entry permit (Form I-131). However, possession of re-entry permit does not prevent DHS from inquiring as to whether holder abandoned his residency. It simply prevents the DHS from relying solely on the duration of the holder’s absence as a basis to determine abandonment.

When applying for citizenship, one must show a continuous resident subsequent to LPR status. An absence between 6 months and 1 year raises a rebuttable presumption that continuity of residence has been interrupted. With certain statutory exemptions, an absence of 1 year or more shall disrupt the continuity of residence.

Employees who work for the U.S. government, an American research institute, a U.S. firm engaged in the development of foreign trade and commerce, or a public international organization of which the U.S. is a member can file form N-470 to preserve their residency for naturalization purpose. N-470 is not a re-entry permit.

Foreign physicians who received medical training in J-1 program must either return to their country or obtain a waiver before they can apply for an immigration visa, or change to almost any other nonimmigrant status. A J-1 waiver can be granted when the physician commits to practice medicine in an underserved area of the United States for at least three years. An area that is designated as Health Professional Shortage Area, Medically Underserved Area/Population or a VA facility normally qualify such requirement.

J-1 waiver applicants first submit their application (DS-3035) to DOS (Department of State) processing center. Subsequently, the applicants and the sponsoring employer must submit all information to IGA (Interested Government Agency) which will review the application and then forward the recommendation to DOS Waiver Review Division (WRD). After WRD issued its own recommendation, the case will be forwarded to USCIS for final decision.

J-1 waiver once granted, the physician will work in H-1b status. Therefore, J-1 waiver applicants must also qualify for H-1b requirements. As soon as WRD issued its recommendation, H-1b application can be submitted so that it can be adjudicated with the J-1 waiver application.

IGA can be a state department of health or any other federal agency, including Department of Veterans Affairs, the Appalachian Regional Commission, Delta Regional Authority and US Department of Health and Human Services.

Please also see State of Delaware website for more information: http://dhss.delaware.gov/dhss/dph/hsm/j1visahome.html