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The immigration lawyers at Zneimer & Zneimer learned of a proposed regulations by the Department of Homeland Security  to make it easy for enterprising foreign nationals to set up business in the US without the constraints of employer sponsored petitions that limited foreign nationals to an employer specific job and location. Under the proposed rule the DHS will use parole on a case-by-case basis for certain “entrepreneurs of start-up entities whose entry into the United States would provide a significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation. Such potential would be indicated by, among other things, the receipt of significant capital investment from U.S. investors with established records of successful investments, or obtaining significant awards or grants from certain Federal, State or local government entities.” According to the proposed regulations, “If granted, parole would provide a temporary initial stay of up to 2 years (which may be extended by up to an additional 3 years) to facilitate the applicant’s ability to oversee and grow his or her start-up entity in the United States.” This is good news because immigrants have made significant contributions to the US economy and have created hundreds of thousands of jobs.

Comments can be submitted through web, email, mail, or hand delivery. The prposed rule is identified by DHS Docket No. USCIS-2015-0006. To submit comments

  • Federal eRulemaking Portal: https://www.regulations.gov. Follow the Web site instructions for submitting comments.
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Recently addresses in our accident blog, was the issue of DUI checkpoints that disproportionately target minority communities in Chicago’s 22 districts. Intertwined with this issue, though, is a much deeper one, which pro-immigrant activists say suggests possible collusion between Chicago Police and Immigration and Customs Enforcement (ICE). For undocumented immigrants, the impact of Chicago’s approach to selecting sobriety checkpoints locations can be described as two-fold, because not only are they targeted more frequently, but they also face harsher consequences. As immigration attorneys, we take issue with sobriety checkpoints being used as a tactic to detain and deport immigrants, rather than a means to reduce and prevent drunk driving.

Disproportionate Targeting

Crash data shows that alcohol-related incidents occur at similar rates in all communities, irrespective of racial make-up. Yet, more than 80% of DUI checkpoints are placed in minority neighborhoods. Because, undocumented immigrants often reside in these minority communities, the potential for encountering a sobriety checkpoint is far greater.

Disproportionate Penalties

Under Illinois law, driving under the influence is considered a ‘class A misdemeanor offense’. ICE, though, classifies them as a “significant misdemeanor,” which by definition, is defined as:

“an offense of domestic violence, sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or driving under the influence, or if not an offense listed above, one for which the individual was sentenced to time in custody of 90 days or more […].”  

For immigrants, simply being charged with an offense classified as a ‘significant misdemeanor’ can be devastating, regardless as to whether conviction for the crime actually occurs. Under policy guidelines “for the apprehension, detention and removal of undocumented immigrants,” issued by President Obama in November 2014, offenses categorized as “significant misdemeanors” are ranked amongst the highest priority for deportation. Consequently, undocumented immigrants charged with DUI face deportation, unless they qualify for asylum, other relief, or “there are factors indicating that the alien is not a threat to national security, border security, or public safety […].”

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On September 9, 2015, USCIS announced revised procedures for determining when applicants can file  for Adjustment of Status.  Currently, a person cannot file for adjustment of status until his or her priority date becomes current.  Under the revised guidelines, the USCIS will permit employment-based applicants to file for adjustment of status at an earlier date determined by a cut-off date in the Visa Bulletin on a separate chart.
In coordination with Department of State, the USCIS will monitor the two charts per visa preference category that will be published in the DOS Visa Bulletin:

  • Application Final Action Dates (dates when visas may finally be issued); and
  • Dates for Filing Applications (earliest dates when applicants may be able to apply).

The USCIS will monitor the visa numbers and will include cutoff dates in the Department of State Visa Bulletin Chart.  Each applicant can use the chart to determine whether he or she could apply for adjustment of status.  The October 2015 Visa Bulletin currently shows the two charts.

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Imagine that a company is in engaged in a labor dispute with a union over the conditions of employment. Soon after a tentative agreement is made, but not signed, Immigration and Customs Enforcement (ICE) sends a subpoena for I-9 forms and notice of inspection.  Based on the ICE inspection, the company disregards its agreement, hires temporary workers, and asks its union workers to train the temporary workers.  Soon thereafter, it begins firing its union worker on the basis of “suspect” work authorization documentation.  The immigration attorneys of Zneimer & Zneimer PC think that if anything is “suspect,” it would be the insertion of ICE in the middle of a labor dispute.

The above story is not hypothetical.  It is happening to union workers in Ruprecht Company in Mundelein, Illinois.  Citing the ICE investigation, Ruprecht disregarded its bargaining obligation to UNITE HERE Local 1 and began firing workers after having them train their replacements.

ICE needs to step out of the fray.  The Revised Memorandum of Understanding between the Departments of Homeland Security and Labor Concerning Enforcement Activities at Worksites is not ambiguous.  It states:

Except as noted in paragraph C, ICE agrees to refrain from engaging in civil worksite enforcement activities at a worksite that is the subject of an existing DOL investigation of a labor dispute during the pendency of the DOL investigation and any related proceeding. ICE will continue its existing practice of assessing whether tips and leads it receives concerning worksite enforcement involve a worksite with a pending labor dispute. DOL agrees to assist ICE’s efforts under this paragraph by providing ICE with timely and accurate information to allow for identification of overlapping enforcement activity.

Paragraph C states:

Notwithstanding paragraph A, ICE may engage in worksite enforcement activities at a worksite that is the subject of a pending labor dispute if-

  • the Director or Deputy Director of ICE determines the enforcement activity is independently necessary to advance an investigation relating to national security, the protection of critical infrastructure (e.g., ports, power plants, or defense facilities), or a federal crime other than a violation relating to unauthorized employment;
  • the enforcement activity is directed by the Secretary of Homeland Security; or
  • the enforcement activity is requested by the Secretary of labor, the Solicitor of labor, or
    another Department of labor official designated by the Secretary of labor.

Ruprecht is a meatpacking plant, which does not implicate national security, nor has the Department of Labor requested enforcement activity.   The involvement of ICE is highly suspect as it provides a pretext to the company to fire union workers.  Continue reading →

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The immigration lawyers of Zneimer & Zneimer remind foreign nationals to monitor their passport expiration dates.  Many foreign nationals traveling to the United States do not realize that their period of admission is tied to the expiration date of their passports.

The general rule is that visitors coming to the U.S.  must have passports that are valid for six months beyond the period of their intended stay in the U.S.   This means that a foreign national who has an approved petition for three years, but whose passport expires in eight months, will be admitted only for two months.  This is so because the foreign national must have a passport valid for at least six months beyond the period of admission.  As the foreign national’s passport is valid for eight months, he or she will only be admitted for two months.

There are certain countries, which are exempted from the general passport requirements.  However, citizens of these countries must still have a valid passport for the full period of intended stay but are not required to have a valid passport for six months beyond the intended period of stay.   If a foreign national from such country has an approved petition for three years, but presents at the border for a passport valid for eight months, he or she will be admitted only for eight months instead.

Foreign nationals who fail to realize timely that they have been admitted for a lesser period,  may find themselves and any derivatives out of status and unlawfully present, with possible severe consequences, including termination from employment, inadmissibility, and removability. 


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In a highly-anticipated decision, the United States Supreme Court held that “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.”   Obergefell v. Hodges, 14-556, 2015 WL 2473451 (U.S. June 26, 2015).  The Court held that “same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them.”  Id.  
In reaching its decision, the Court examined how marriage has evolved over the years and noted that “it has not stood in isolation from developments in law and society. The history of marriage is one of both continuity and change.”  The Court noted that “[t]here is no difference between same- and opposite-sex couples with respect to this principle” and yet  same-sex couples have been harmed in many ways.  They were “consigned to an instability many opposite-sex couples would deem intolerable in their own lives.”  This exclusion has “the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society. Same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning.”Obergefell v. Hodges, 14-556, 2015 WL 2473451 (U.S. June 26, 2015)
The Court recognized the urgency of resolving this legal disability and discrimination:

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The Chicago immigration attorneys at Zneimer & Zneimer P.C., learned that the State Department issued an alert that due to a systems issue affecting global passport operations, “there is currently a delay in the printing of U.S. passports that were approved at overseas passport facilities.”  The State Department announced that the delay will affect passport applications accepted on or after May 26, 2015.   If you need to apply for U.S. passport after May 26, consider applying for emergency passports.  The instructions would be on the embassy and consulate’s website.  To find the website for each country, here is a U.S. Consulates around the world.

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In the non precedential decision In re Grace Estrellado, the Board of Immigration Appeals states that alien may not utilize the priority date form her original I-140 petition because it was withdrawn by her prior employer and the USCIS revoked it.

Background

The case involved an alien who had an approved I-140 petition for which the priority date was not current.  She had a prior I-140 petition with January 10, 2006, priority date, but the prior employer had withdrawn the petition, and the USCIS had revoked its approval, following the withdrawal.  Nevertheless, the foreign national argued to the immigration judge that she can use the old January 10, 2006 priority date and apply it to the new I-140, so that she can adjust status right away as the old priority date was current.  The immigration judge determined that because the first I-140 had been withdrawn and the approval revoked, the alien could not use the old priority date for the new petition.  He also denied the alien a continuance because the new priority date was far into the future.

Analysis

The Board of Immigration Appeals, applying de novo standard of review to the legal issues, agreed with the immigration judge that the alien cannot use the old priority date because the first I-140 had been withdrawn.  The foreign national argued that the regulations provide that she could keep the old priority date.  She cited 8 C.F.R. 204.5(e) in support of her proposition.

This regulation reads:
(e) Retention of section 203(b) (1), (2), or (3) priority date. A petition approved on behalf of an alien under sections 203(b) (1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b) (1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b) (1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date. A petition revoked under sections 204(e) or 205 of the Act will not confer a priority date, nor will any priority date be established as a result of a denied petition. A priority date is not transferable to another alien.

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In a recent decision the Administrative Appeals Office affirmed the revocation of an H-1B petition where the geographical location of employment had changed triggering a requirement for a new Labor Condition Application.  In Matter of Simeo Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), the AAO determined that a change in the beneficiary’s location of employment is a material change to the terms and conditions of employment as originally listed in the H-1B petition.  Because such change is material, the petitioning employer was required to file an amended H-1B petition corresponding to a new LCA that reflects the change.  The AAO noted that Section 212(n) of the Immigration and Nationality Act ties the prevailing wage to the “area of employment.”  Therefore, the AAO reasoned, “a change in the beneficiary’s place of employment to a geographical area not covered in the original LCA would be material” for both the LCA and the H-1B petition, since such change may affect eligibility for H-1B petition.

Background

In this case, the employer filed H-1B petition changing the beneficiary’s status from F-1 student to H-1B employee.  In the  Labor Condition Application and the H-1B petition, the employer identified an

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The new H-1B fiscal year begins on October 1, 2015, when U.S. employers can add to their workforce up to 65,000 foreign nationals, plus additional 20,000 foreign nationals with a U.S. master’s or higher degree.  In addition, any unused H-1B1 numbers from Chile and Singapore will be added to the regular H-1B visa pool.  As the USCIS regulations permit the filing of H-1B petition no more than 180 days before the start date, and since the earliest state date for new H-1B employees would be October 1, 2015, the filing season begins today.  Most petitioners had everything ready for mailing on March 31, 2015 (yesterday) for USCIS receipt on April 1, 2015.

Based on prior experience, USCIS expects to receive more petitions than the Congressionally mandated numerical limitations.  The agency stated that it would monitor the number of petitions and will announce to the public when the cap has been met.

 

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