Immigration Visa Lawyer Blog

A 19 year-old Guatemalan who has resided in the United States since he was three years old hopes to get a reprieve from deportation one year after the government first tried to send him back to his country of origin. Bernard Pastor, who lives in the Cincinnati area, is requesting an extension from Immigration and Customs Enforcement (ICE) officials in Detroit. He obtained a one-year deferral from ICE last year, which expires on December 17. He has amassed support from friends, fellow students, clergy, and immigration advocates, who maintain that deporting him "would serve no useful purpose," according to as Associated Press report.

Pastor's parents brought him to the U.S. from Guatemala when he was three years old in order to escape religious persecution by the military regime then in power. Although Pastor's uncle reportedly obtained legal asylum, his parents did not. They nevertheless chose to stay in the U.S. By all accounts, Pastor is an all-American teenager. He became an honors student, a soccer star, and the homecoming king of his high school. He graduated among the top 5 students of his high school class in 2010.

A fender bender in Springdale on November 17, 2010, when Pastor could not produce a driver's license, brought him to the attention of police, and then ICE got involved. Pastor spent a month in jail, during which time an attorney and many friends and supporters advocated for him. ICE agreed to a one-year extension for Pastor to stay in the country and released him from jail on December 17 of last year.

Pastor's supporters and advocates widely publicized his case through the media and the internet. Facebook pages and a Change.org petition pleaded his case. Pastor was at the U.S. Capitol in Washington, DC on December 18, the day after his release, to support the DREAM Act in the Senate. The DREAM Act would have given him a path to legal immigration status if he attended college. While the bill passed the House of Representatives, it failed in the Senate.

Continue reading "Guatemalan-Born Ohio Teen Seeks Additional Reprieve from Deportation" »

US Citizenship & Immigration Service announced this afternoon that it has received sufficient H-1B visa petitions to reach the annual numerical quota for this federal fiscal year. The announcement came one day before the Thanksgiving holiday while Immigration lawyers nationwide were scrambling to file last minute H-1B visa petitions. Our own law firm attorneys had planned to work through the holiday weekend to meet the demands of our clients when the news was released thereby bringing H-1B visa petition filing this year to a screeching halt.

Our law firm had performed a statistical and progression analysis and announced in our newsletter that the cap will be met by Thanksgiving this year. "We were right on the mark!!" said attorney Gus Shihab, founder and CEO of the Law Firm of Shihab & Associates. "our analysis were almost perfect in predicting when the H-1B visa cap will be reached this fiscal year."

We are now in federal fiscal year 2012; the H-1B visa quota was just met in November 2011. In comparison, federal fiscal year 2011 H-1B visa quota was met by January 2011 while federal fiscal year 2010 H-1B visa quota was met in December 2009. Hence, this year's H-1B visa cap announcement comes earlier than the last 2 years indicating a recovering economy since there is a strong correlation between H-1B visa usage and the employment of highly skilled US workers.

Is the H-1B Visa Numerical Cap Needed?

Congress instituted the H-1B visa cap limitation in order to "protect" US workers. The idea is that importing foreign nationals in highly skilled jobs could adversely affect the working conditions of Americans. This premise, however, has been unequivocally disproved by numerous studies which concluded that the employment of foreign nationals in Specialty Occupations (H-1B), has a positive impact on the country's innovations and advancement. Furthermore, the linear relationship between H-1B visa demand and a stagnant economy showed that as the economy slowed down, so did the number of H-1B visa petitions filed. Hence, employers were not racing to replace US workers with, as opponents claim, cheap foreign labor. To the contrary, when the US economy suffered, demand for H-1B visa workers was drastically reduced.

Since there is a strong correlation between innovation and H-1B visa workers, and since the employment of foreign nationals in H-1B visa status does not adversely affect American workers, it follows that the H-1B visa numerical cap stifles US innovation and technology.

The H-1B visa cap should be abolished.

Under a program led by U.S. Immigration and Customs Enforcement (ICE), companies are opening their books to federal investigators voluntarily. Immigration officials tout the ICE Mutual Agreement between Government and Employers (IMAGE) program's benefits to businesses by reducing fines for immigration violations and by improving their image, presumably as a law-abiding employer. ICE Director John Morton told the Associated Press that the program is necessary to supplement an "enforcement-only approach." The E-Verify program is already becoming common for employers around the country, through mandatory and voluntary compliance. The IMAGE program purports to add another level of security by catching more complicated document fraud.

The Obama administration has led a crackdown on employers that use undocumented immigrant labor recently. It generally prefers to use audits of employment records instead of workplace raids, which were more common under the Bush administration and can draw a great deal of attention. One construction contractor who voluntarily signed on to the program described it as a "major advantage" in his business, saying it prevents more cumbersome immigration audits or raids and improves the business' image with its customers.

ICE launched the IMAGE program in 2006. It grew slowly, reaching 117 members by July 2011. That month, ICE introduced new, simpler requirements for membership and began promoting the program to more businesses. Between July and November 2011, the program added 22 new members. ICE identifies an increase in enforcement, primarily through company audits, as the main factor driving the rise in membership.

The program supplements the E-Verify system by catching people who use false documents with a a different person's real name and corresponding social security number. This could be a stolen identity, a deceased person, or identity documents freely given to the person. A fraudulent employment document using a matching name and social security number could pass the E-Verify system. The IMAGE program claims to give employers additional resources to screen out unauthorized workers.

IMAGE members must enroll in the E-Verify program, which allows companies to check a new employee's eligibility against a national database. They must also submit I-9 forms collected from new hires to audit by ICE agents, and they must establish hiring and eligibility verification policies in a form approved by ICE. Member companies must also sign a "partnership agreement" with ICE.

Continue reading "Employers Voluntarily Join ICE Enforcement Program" »

U.S. Citizenship and Immigration Services (USCIS) recently announced that it is extending Temporary Protected Status (TPS) designations for Nicaragua and Honduras for 18 months. TPS statuses for these countries will be effective through July 5, 2013. The agency published new Federal Register notices on November 4 offering guidance on eligibility to re-register, fees, and filing procedures.

TPS is a temporary immigration status granted to eligible nationals of certain designated countries. It is available to people already present in the United States, not as a means of entering the country. Countries selected for TPS usually have some condition making it unsafe for people to return, such as a natural disaster or armed conflict. Since 2003, the Secretary of Homeland Security has had authority to designate countries for TPS and to grant, extend, and terminate TPS designations. USCIS, which is part of the Department of Homeland Security (DHS), has responsibility for administering the program.

TPS beneficiaries may remain in the country and obtain authorization for employment while their TPS status is in effect. Once TPS status expires, they revert to whatever immigration status they had previously. A person present in the U.S. illegally might be able to remain under a TPS designation, but would have no further benefit once the TPS designation expired. A TPS designation cannot, in and of itself, lead to a green card or some other permanent benefit.

USCIS currently administers TPS designations for nationals of six countries: El Salvador, Honduras, Nicaragua, Haiti, Somalia, and Sudan. Guatemala and Pakistan have requested TPS designations. Both Honduras and Nicaragua were selected for inclusion in the TPS program because of the devastation to the region by Hurricane Mitch in 1998, which killed at least 11,000 people and caused an estimated $6.2 billion in damage. In extending TPS for Honduras, DHS noted that "[t]here continues to be a substantial, but temporary, disruption of living conditions in Honduras resulting from Hurricane Mitch, and Honduras remains unable, temporarily, to handle adequately the return of its nationals." It used similar language for Nicaragua.

Continue reading "USCIS Grants 18-Month Extension on Temporary Protected Status for Nicaragua and Honduras" »

The Obama administration announced a revision to its policy on deportations earlier this year, stating that it would review cases for over 300,000 undocumented immigrants facing removal that it characterized as "low priority." These immigrants included those who have been present in the U.S. for a long period of time with little to no criminal record and those who arrived here as children and remained. This policy, while undoubtedly well-intentioned, has faced criticism from both opponents and advocates of immigration rights. Advocates contend that the administration has not applied the policy consistently, causing frustration for immigrants facing deportation and their attorneys.

The change in policy came after last year's failure of the Development, Relief and Education of Alien Minors (DREAM) Act in the Senate, which would have provided a path to legal permanent residence for youth who came to the U.S. illegally as children and who fulfilled certain educational requirements. We previously reported on the highly partisan nature of the bill's failure, and what it might portend for immigrants' rights in the future. Immigration advocates therefore welcomed the new policy, hoping it would bring more compassion and common sense to the deportation system.

Since the new policy took effect in August, results have been mixed at best. Immigrant advocates now charge that the sort of deportation cases supposedly put on hold by the new policy have continued almost unabated. One person caught in the confused implementation of the new policy is Shamir Ali, originally from Bangladesh, who now faces deportation after living in the U.S. since he was seven years old. He apparently would have been eligible for DREAM Act relief had it passed. Another case involves Guatemalan Eulalia Barrientos, who has resided in the U.S. for almost twenty years and has two U.S. citizen children. On the verge of deportation, she suddenly received a one-year stay of deportation after her case received extensive media attention. Immigration and Customs Enforcement (ICE) simply stated that her reprieve was a result of "prosecutorial discretion."

Continue reading "Obama Administration's New Policy on "Low Priority" Immigration Offenders Draws Criticism" »

Recent events have offered mixed news for immigrants and the attorneys who advocate for them, with some positive events occurring in the midst of an often-negative atmosphere for immigrants. Ohio is now experiencing the effects of the dispute between, on one side, those who support the rights of immigrants and tout the benefits immigration can have for local economies, and those who advocate greater restrictions on immigration at all levels.

We have previously reported on limits placed by the courts on some of the harsher provisions of anti-immigrant laws enacted in Arizona and Alabama, but the broader effect of those laws elsewhere in the nation remains to be seen. Last week saw the successful recall of Republican Arizona state senator Russell Pearce, the author of that state's controversial 2010 immigration law. Immigration advocates tout this as a victory for immigrant rights and a move towards a sensible immigration policy. Of course, many issues factored into Arizona voters' decision, but it is difficult not to see this as a major win for immigrants.

Ohio has also seen recent progress in immigrants' rights, with efforts from business leaders to attract immigrant investors and the decision by the city of Dayton to formally become "immigrant-friendly." A Chippewa Herald op-ed recently touted the importance of immigrants to Ohio's economy and the folly of blaming immigrants for the state's economic problems, noting recent efforts to attract immigrant investors and entrepreneurs to the area. The author makes the uncomfortable, but perhaps necessary, argument that immigrants will often perform jobs that others in Ohio will not, citing the example of Alabama farms that cannot attract non-immigrant labor.

At least one Ohio leader does not share this enthusiasm for immigrants, however. Sheriff Richard K. Jones of Butler County recently sent a letter to Governor John Kasich requesting assistance in creating stiffer penalties for immigrants and employers who hire undocumented labor. The sheriff's letter cites certain economic problems he associates with illegal immigration. He asks the governor to assist state legislators who are trying to pass legislation that would increase punishments for employers hiring undocumented workers and undocumented immigrants who break Ohio laws, as well as empower local law enforcement to make arrests for immigration violations. The similarities to the Arizona and Alabama laws are clear.

Continue reading "Controversy Over State Immigration Laws Comes to Ohio" »

The Department of State has issued its Visa Bulletin for December 2011. The new bulletin shows a five month jump in the priority date cutoff in the EB-2 category for foreign nationals born in India and China. Persons in this category with a priority date of March 15, 2008 or earlier are now eligible for immigrant visas. Because of the five month jump, some people in the EB-2 category are now current who may not have been expecting it. Others may be unaware completely. Persons with pending or approved I-140s in the EB-2 category should double check their priority dates and contact the Law Firm of Shihab and Associates with any questions about their current eligibility for lawful permanent residency.

Unfortunately, the EB-3 category for China and India born foreign nationals only advanced one month from the current priority dates in the November 2011 Visa Bulletin. The EB-3 category remains stagnant, with the backlog for Indian born persons now over nine years. Some people with labor certifications qualifying them for EB-3 classification may now have the requisite years of experience or an advanced degree allowing them to now pursue an EB-2 classification. Persons interested a possible "EB-2 upgrade" should contact the Law Firm of Shihab and Associates for a consultation to see if they qualify.

Manuel Bartsch, a 23 year-old college student at Ohio's Heidelberg University, came to the United States from Germany as a child in 1997. After a brush with federal immigration authorities when he graduated from high school, he went on to college. He recently came to the attention of immigration agents again, as he was beginning his senior year at Heidelberg. He learned last week that authorities are deferring his case again, which is a reprieve, but hardly cause to rest easy.

Bartsch had no idea that he was not a legal resident of the United States until his senior year of high school. Bartsch had arrived in the United States on a temporary visa in 1997 with his step-grandfather, an American citizen, after his grandmother, who was his legal guardian, passed away in Germany. Although his step-grandfather took Bartsch in and cared for him, he never legally adopted him. Once the temporary visa expired, this child in need from Germany became an "illegal alien."

Bartsch's problems began when he applied to college. He needed a social security number, so he filed an application. He received a letter from the local immigration office telling him he had filled out the wrong form and asking him to come in for a meeting. Upon his arrival, he was handcuffed and taken to jail, where he stayed for sixteen days.

He received enormous support from friends and teachers, and even politicians rallied behind him. Ohio politicians across the state presented resolutions urging immigration authorities to allow him to stay in the U.S., and Ohio senator Mike DeWine introduced a special bill in Congress in April 2006 to let him to stay legally. The senator noted specifically that Bartsch's undocumented status was not his fault, since he had arrived here as a child. Bartsch got his first reprieve from deportation that year when Texas senator John Cornyn, who was chair of the Senate Judiciary Subcommittee on Immigration, formally requested a report from Immigration and Customs Enforcement (ICE). This meant that authorities could not deport him under any circumstances until the report was issued.

Legislators introduced a private bill in 2007, H.R. 738, "For the relief of Manuel Bartsch," which died in committee. The bill would have granted Bartsch permanent resident status. At the present time, Bartsch is still technically an "illegal alien," albeit a higher-profile one than most. His best chance for legal immigration status, given the media attention he has received, is still some form of waiver or legislative relief. He appeared at a press conference in 2007 with Illinois senator Dick Durbin in support of the DREAM Act, which would have helped undocumented students who arrived in the U.S. as children.

Continue reading "German-born College Student Who Considers Ohio His Home Gets Another Reprieve from Deportation" »

An immigration judge in Ohio has ordered the deportation of a dance troupe member after the group was stopped by police passing through the state on their way to Joliet, Illinois from New York. Five members of an Aztec dance group were on their way to a dance ceremony on October 21 when they were pulled over by police in Ohio, as reported by Fox News Latino. Four members of the group are from Mexico and one is from Guatemala. All five are undocumented. When police discovered their immigration status, they turned them over to Immigration & Customs Enforcement (ICE). Their case illustrates some of the problems faced by entertainers seeking to come to or stay in the United States.

The judge's order met with alarm in New York, where the dance group is well-known in the arts scene. Supporters in New York raised around $3,000 for the members' legal defense, and a group in Chicago has formed to help the members' families.

Four members of the group were released on bail. Of those four, two have until December to voluntarily depart the country, and two have another court date. Only one, Joel Almeida Gonzalez, was ordered deported right away. According to the judge's order, he is to be returned to Mexico on November 8.

A representative of a dance group in Chicago who is familiar with the five dancers, Roberto Ferreyra of Nahui Ollin, stated that the case demonstrates the need for a change in immigration law that would allow productive immigrants to remain in the country. "There should be a way that people who contribute to this country can work," he said. Currently, immigration law does not have a specific procedure for legal immigration of artists, unless they come on an employment-based petition. Given that entertainers and artists rarely have full-time, long-term employment with a single company or organization, this may not be a viable alternative for most. Options available specifically to artists include the "O" or "P" visa, nonimmigrant visas available to artists visiting for specific events. They only apply to temporary visits and do not, by themselves, lead to any permanent immigrant status. They also require a sponsor in the U.S. to file the petition, and they have a large number of criteria that a prospective visitor must meet.

Continue reading "Judge Orders Deportation of Undocumented Dancer Passing Through Ohio" »

The United States Citizenship and Immigration Services (USCIS) announced last week that it is changing the format of two important documents: the Employment Authorization Document (EAD) and the Form N-560 Certificate of Citizenship. The agency's intent in modifying these documents is to enhance some security features and deter fraud and counterfeiting. It began issuing new EAD's on October 25, 2011 and new Certificates on October 30. The agency has launched several initiatives in recent years to combat immigration document fraud, including the E-Verify system, used to validate identity documents.

The EAD, commonly known as a "work permit," allows nonimmigrants who are lawfully present in the United States on certain types of temporary visas to work for a specified period of time. USCIS must adjudicate an application for a work permit within ninety days of receiving it, or else it must issue an "interim EAD" to the applicant. The interim EAD allows the applicant to work for some period of time or until USCIS adjudicates the application. Employers may hire individuals with a valid EAD without any further authorization from immigration authorities. Form I-9, the Employment Eligibility Verification form that employers must collect from every new hire, lists the EAD among its "List A" documents. These are documents that, by themselves, confirm an employee's eligibility to work in the U.S. These include a passport or a green card in addition to an EAD. Employers often use the E-Verify system to confirm the validity of identification documents submitted with a Form I-9. An EAD typically does not limit the type of work someone may do.

USCIS developed the new design in collaboration with the Forensic Document Laboratory at Immigration and Customs Enforcement (ICE). It features more complex design elements and multilayered components to deter copying or counterfeiting, and each card will have some personalized elements for fraud prevention. The new card displays the worker's alien registration number more prominently and includes other identifying information.

The Form N-560 Certificate of Citizenship serves as evidence that a person has become a U.S. citizen through certain processes. It is available children of U.S. citizens born abroad and children whose parents became naturalized before the children turned 18. This form is different from the Certificate of United States Naturalization available to citizens who went through the full naturalization process. The N-560 is no longer a "List A" document on Form I-9, and so is not sufficient by itself to establish a person's eligibility to work.

The revised form uses a printing process that offers additional protection against fraud and document tampering, and it incorporates design features that deter copying or counterfeiting. USCIS claims that the new processes reduce the reliance on human labor and therefore cut down on the possibility of human error.

Continue reading "Design Changes, Meant to Improve Security and Fight Fraud, are Coming for Employment and Citizenship Forms" »