Proposed H-4 EAD: The “106(a) and (b)” Problem Explained

Last week I outlined the sections of the proposed rule that USCIS will hopefully clarify in the final rule.  As the time approaches for the final rule to be released, people are asking more questions about the eligibility requirements for the second group of H-4s – when the “...H–1B nonimmigrant’s period of stay in H–1B status in the United States is authorized under sections 106(a) and (b) of [AC21]”.

The basic rule is that H-1Bs are allowed a maximum of six years in H1B status.  Several exceptions exist to this six year limit.  AC21 106(a) is one of those exceptions.  106(a) allows H1B status to be extended in one-year increments beyond the basic six years if the workers’ Alien Labor Certification OR Immigrant Petition (I-140) has been pending for over one year.  The most common scenario for using this provision are when there are delays during the Alien Labor Certification process (audits, appeals, supervised recruitment, etc.) or petition adjudication.

USCIS indicated in the Proposed Rule that the H-1B must actually be in that 106(a) extension time before the H-4 spouse is EAD eligible.  At first reading, this seems simple enough.  Just determine the exact date when the basic six years ended, and then any H-1B time after that must be under a 106(a) extension.  So, on the exact first date after the basic six years, H-4 EAD eligibility will begin.  And there is the problem

106(a) time only begins after six years IN H-1B status, not six years after H-1B status begins.  In many cases, these are two separate dates because only time spent in the U.S. and in H-1B status counts toward the basic six years.  There are many situations where a person is within the H-1B time periods shown on their approval notice, but their time is not being counted towards H-1B status.  For example, any time spend outside of the U.S. does not count against the basic six years of H-1B (you are not an H-1B if you are not in the U.S.).  Similarly, because of delays at the consulate in obtaining that first H-1B visa, it is not uncommon to enter the U.S. weeks or months after the H-1B was approved by USCIS.  The time between the approval notice start date and the U.S. entry is not counted towards the basic six years.  There are many other similar events that will cause the actual end of the basic six years to be much, and sometimes years, later than just the six calendar years that might be indicated if only looking at the H-1B approval notices.

The problem determining the exact date when the basic six years ends is further complicated by the frequent need to request the 106(a) extension at the same time as requesting to “recapture” the non-H-1B time described above, and also to request “remainder” time left on the basic six-years caused by prior USCIS approvals of less than 3-year durations.

As you can see, determining exact beginning dates of 106(a) extensions are not always simple.  USCIS does not specifically track H-1B cases that include 106(a) extensions, and they have acknowledged in the past the evidentiary problems encountered for accurately determining the correct end date of the basic six years.  Of course, for several reasons I need not discuss here, it was rarely important to determine that all six years had been used before requesting the 106(a) extension.  But that will change if the exact beginning date of the 106(a) extension becomes the actual triggering event for H-4 EAD eligibility.

Several suggestions were made in comments to the proposed rule that would make this EAD eligibility ground more expansive and easier to document.  We will have to wait until the Final Rule is released to see what changes were made to this H-4 eligibility category.

 

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NVC Changes Document Handling

On November 12, 2014, the Department of State made a significant change to the way original documents are handled for Immigration Visa Applications.

The National Visa Center (NVC) will no longer require you to mail them the original civil documents, such as police, birth and marriage certificates.  Instead, you will send NVC photocopies of the documents and take the originals to your consular interview.  You will still need to send NVC the affidavit of support containing an original signature.

This action was taken to help reduce the workload of the NVC.  In recent months, the rapid advancing of some cutoff dates resulted in the contractors for NVC being unable to keep up with the increased immigrant visa demand.

This change is really just a step back in time.  It was not that many years ago that we never sent originals to the National Visa Center (or its predecessor TIVPC).  However, now it will be the U.S. Petitioner’s responsibility to be sure the visa Applicant will have ALL of the necessary originals before their consular interview.

The advantages of this new (old) system is that it eliminates the need for original documents to be mailed to the United States, and also reduces the hassle of ensuring that the embassy returns your originals.  Now, at the interview, the consular officer will already have copies of your documents and in most cases will just compare and return your original.

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Early Adjustment of Status Benefits [Immigration Executive Actions Update]

One provision of the President's immigration Executive Actions allows select nonimmigrants with approved I-140s, and their derivative family members, to file their Applications for Adjustment of Status (to become Permanent Residents) without waiting for their priority date to become current in the Visa Bulletin.

Only a brief description of this proposal has been released, although the White House acknowledges that this policy change must go through the formal regulatory process.  The need for formal written rulemaking is obvious:  8 C.F.R. 245.1(a) specifically requires that “... an immigrant visa is immediately available at the time of application”.  A simple policy shift is insufficient to directly contradict a formal regulation.  

The stated purpose of this proposal is to give these intending immigrants the many benefits available to applicants whose Adjustment application has been filed and accepted by USCIS.  So, what are those benefits?

The most obvious benefit, and often the most valued, is multi-year employment authorization for the principal (sometimes dangerous) and derivatives.  Other benefits include the potential availability of advance parole for travel and enhanced access to portability options.

Notice how this advanced-adjustment filing proposal is also very closely tied to two other IAEA initiatives: 1) increased portability for applicants waiting for a current priority date, and, 2) clarification of portability’s “same or similar occupational classification” requirement.

AC21 Section 106(c) allows a worker with an application for Adjustment of Status to change employers for their Permanent Residence if the new job is the “same or similar” when compared to their original position, AND IF the application for Adjustment of Status has been pending over 180 days.  Under today's proposed change, applicants are able to file for Adjustment of Status many years before their priority date is current.  Since the wait for visa availability in many employment-based categories will almost always be over six months, the opportunity to switch employers is greatly increased.

Like most initial announcements, we have few details and many questions.  For those of you who followed the legal discussion on this blog about the proposed H-4 EAD rule, you know that what may appear to be a simple policy idea can become extremely complex when all ramifications of the rule are explored.

There are many questions that come to mind about this new proposed regulation.

Remember, nothing that has been said so far to indicate that this rule would have any effect on priority dates.  No change in the wait to become a Permanent Resident.  The discussion so far is only about the benefits of being able to file the Adjustment application many years earlier then is now allowed.

Will there be any special protections given to derivative children, unaided by the Child Status Protection Act, who age-out after filing for Adjustment and before PR is granted?   How will USCIS (and especially the embassies) view cases where a person obviously ineligible for Adjustment of Status fradulently reaps the benefits of a pending application before being denied residence?  Further, the government talking points only refer to Employment-Based cases.  Will this rule also cover those occasional Family-based cases where the applicant is in a lawful nonimmigrant status and thus also Adjustment-eligible?

Few facts, but many questions, and the biggest is, “When”?  Conventional wisdom says a regulatory change takes at least six months, usually more.  It is also possible that we will never see this provision in effect if Congress acts on immigration reform before the regulatory process is completed.  However, there is a also very small possibility that USCIS may effect this change as an Interim Rule with a request for comments, allowing the policy to be in effect while the regulatory process is ongoing. 

More updates after more facts are disclosed.  Stay tuned...

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Still Time to Rescue an RN’s Dream

Occasionally it is my good fortune to be an invited guest at various Filipino professional gatherings.  This month’s event was the Chinese General Hospital Nursing Alumni reunion in Las Vegas.  I always enjoy visiting with these exceptional people who seized an opportunity to come and contribute to the U.S., doing well for themselves and their family in the process. 

Which brings me to the point.  There are a group of Registered Nurses in the Philippines who were petitioned by healthcare facilities and have patiently waited for years to come to the US for the same opportunity that lead to the success of the many those who came before them.  But their plans have been crushed because the jobs no longer exist.  They need new job offers or their opportunity will disappear.  You can read the details and how to help here.

With all the Filipino nursing organizations in the United States, with all the medical contacts of their respective members, finding positions for these nurses so they also can fulfill their dreams should be an easy and rewarding project.  Please contact me and I will be happy to put you in contact with others trying to assist.

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The End of Filipino 1st Preference “Opt Outs”

Back in January I discussed the Family-based 1st and 2nd preference immigrant categories, and used that opportunity to explain how a provision in the Child Status Protection Act (CSPA) allows the son or daughters of Permanent Residents (FB2B) to “opt out” of the automatic conversion to the FB1 category when their parent become U.S. Citizens.  To review the information on CSPA “opt-out” provisions for Filipinos, click here.

I also warned in my January writing of how the cutoff date for FB1 was rapidly catching up with FB2B, so people SHOULD NOT REQUEST AN OPT-OUT from the automatic conversion until they first determine which category – FB1 or FB2B – will be the best choice for their priority date.  (If some of these terms are confusing, you may wish to review Basicsand Tips for Reading the Visa Bulletin).

Well, it has happened.  For the first time in 22 years, the cutoff date for Philippines FB1 is ahead of FB2B.  Starting August 1, 2014, their is no longer a need to “opt-out” of the automatic conversion to FB1 when the petitioning parent becomes a U.S. Citizen.  Instead, accept the automatic conversion to FB1 and take advantage of the somewhat shorter wait for an immigrant visa.

But there is a problem.  Hundreds of Filipinos, either on their own or after receiving poor advice, prematurely requested their FB1 petition be downgraded back to FB2B, and now find themselves waiting longer for an immigrant visa than had they done nothing.

As of now there is no reliable fix for this problem, and a review of the law offers little hope.  A permanent resident files a petition for an unmarried son or daughter over 20.  By law, the petition is in the FB2B category.  Then when the Permanent Resident petitioner becomes a U.S. citizen, the law automatically changes the petition to FB1 at the very moment of naturalization – UNLESS (thanks to the CSPA) either before or after the petition is approved, the son or daughter makes a written request to USCIS to remain or return to FB2B.

Once the written request is approved, the petition moves back to FB2B, and the law says the petition is FB2B.  There is no law allowing the petition to return to FB1.  In fact, CSPA emphasizes the finality of the decision by stating, “Where such an election has been made, any determination with respect to the son or daughter's eligibility for admission as a family- sponsored immigrant shall be made as if such naturalization had not taken place.”  This phrase in the statute has the full force of law.  Once the election is made, the petition is FB2B.

This problem is still new and has yet to be raised with USCIS as part of any public discussion. Conceivably, CIS could allow a beneficiary to withdraw the earlier request to return to FB2B, but that has yet to be tested.  I know of two requests pending with USCIS to rescind a previous downgrade request.  I will post the result when received.  

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Embassy Press Release Raises Hopes

Yesterday the Philippine Embassy in Washington issued a press release entitled: 

 13/08/2014: US DEPARTMENT OF HOMELAND SECURITY TELLS FILIPINO-AMERICAN COMMUNITY: ‘WE HEAR YOU ON TPS’.

This press release came after statements were made by Homeland Security officials during a dialogue arranged by the Embassy, where the officials stated that deliberations were continuing on designating TPS for the Philippines.

I have been an advocate for Philippine TPS from the beginning.  I want the Philippines to get TPS.  But from my objective observer's position, this announcement does not raise my hopes.  Not at all.

You ask these excellent U.S. Government officials about TPS-Philippines while at the Philippine embassy and in front of an exclusive crowd from the Filipino-American community.  Remembering that the US government never publicly says “no” to TPS (discussed previously here), what other answer could they give?  Yes, they hear you and are considering it. 

I pray I am wrong, but this sounds more like a polite diplomatic response than a promise of good things to come.

For those who wish to keep up the clamor and pressure, do so.  No one would be happier than I if DHS issues the most delayed designation in TPS history!

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No TPS for The Philippines Based Solely On Haiyan

I though I was finished discussing the hope of TPS for the Philippines.  The possibility of TPS ended in early June.

Yet, over the weekend, I received an email asking for “support” and a “donation” to keep pushing the U.S. government to grant TPS to the Philippines.

As much as I wished TPS to be granted, the Philippines will not get TPS based on Typhoon Haiyan.

But as I sit here watching live coverage of Typhoon Rammasun skirting Metro Manila, I remember the circumstances in other countries before they were granted TPS.  The cumulative effect of multiple occurrences may also be a consideration when bestowing TPS.

El Salvador suffered a substantial earthquake, but TPS was not granted until a second, lesser quake struck.  Haiti was pummeled by several major storms, but it was the later earthquake that triggered TPS.  While a single disastrous event may raise the possibility of TPS, subsequent catastrophes while still recovering from the first may cause reconsideration of TPS.

Heaven forbid the Philippines is struck with another serious calamity, and for that reason I hope to never see the Philippines need TPS, yet with the country’s propensity towards natural disasters, TPS in the Philippines’ future is never really out of the question.

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Can You Help These Filipino RNs?

A large group of Filipino nurses are now ready to immigrate to the United States, but they need new sponsors.

Here is the situation.  Several healthcare facilities filed petitions for RNs from 2008 to 2010.  USCIS approved the petitions long ago, leaving the nurses to wait the usual 4 to 7 years for their priority dates to become current.  Now it is time to apply for their immigrant visas and report to work in the U.S. but the facilities no longer have enough open RN positions available.

There is no fault or blame in this; business needs change over time and future plans do not always work out as was expected.  Now we are left with many skilled RNs ready to immigrate, but only if we find new healthcare employers.  These nurses have been waiting for many years for their chance at U.S. Permanent Residence, an agonizing experience shared by many of you.  If no new employers are found, their hopes of a life in the U.S. will be lost. 

These are experienced nurses, some with years of experience in Saudi, New Zealand, Canada and elsewhere.  Most have already passed the NCLEX and are licensed in some U.S. state. 

Any new healthcare sponsor must have a legitimate R.N. position available and must prove they will pay the appropriate wage for the position.  Additionally, as with most immigrant workers, the company may also be asked to assist with certain fees, orientation and travel assistance.   Although the company will be required to file a new immigrant petition for the nurse, the employee will still be able to use the earlier priority date, greatly reducing or eliminating completely the wait time before they can enter the U.S. and begin working.

If you are a nurse or physician, consider the possibility of one or more of these nurses being placed with your employer.  If there are persistent RN openings in your area, this may be a good opportunity for a company to bring in skilled RNs available for employment in a matter of months instead of many years.  If you find someone who would like more information or wishes to view the credentials of these applicants, please have them contact me directly at jim@austinferguson.com.  All applicants will be available for telephonic/video interviews.

Please feel free to also share this with your friends who may know of a facility willing to consider employing on or more of these deserving nurses.  After years of waiting, it would sad to see this opportunity wasted.

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H1Bs: Get your FULL Six Years thru Recapturing

There is an important difference between six calendar years of H1B and six years in H1B status.

After being granted H1B status, any full day you spend outside of the U.S. will NOT be counted as part of your initial six year limit of H1B time.  Although this seems simple, employers and lawyers continue to struggle with the concept. 

The process of adding time spent outside of the US to an H1B extension is called "recapturing".

Last week, I reviewed two more cases where the H1B workers were already in their 7th and 8th year of H1B, yet they never received - or ever requested - the unused H1B time from their first six years.  One of them had forfeited over four months of H time they could have added to their 7th year extension.

Not everyone can benefit from recapturing H1B time.  If you changed status to H1B and received a full three year initial grant, then received a three year extension, all while never leaving the US, there is no time available to be recaptured.  In this case, you have spent a full six years in the US as an H1B.  In some other cases, the small amount of time available to be recaptured is not worth the trouble if you are not eligible for an AC21 extension beyond just six years anyway.

Yet, in other situations, especially when the Alien Labor Certification (ALC) is filed during the 6th year, recapturing time can be a life-saver. 

Consider this scenario.  ALC filed March 15, 2014 and is on appeal.  Meanwhile, your 6th calendar year of H1B expires January 1, 2015.  One of the ways you can extend H1B status beyond the initial six years is if your Alien Labor Certification has been pending more than one year (AC21 Sec.106), but that will not be until March 15, 2015, leaving a 73 day gap between H1B expiration (January 1, 2015) and eligibility for a one-year H1B extension (March 15, 2015).

There are many possible solutions for this problem.  One answer would be to leave the US on or before your H1B expires, then return on a new, 1-year petition with a start date of March 15, 2015.  Of course, that would require missing around 2 ½ months of work and enduring the delays and uncertainties of consular processing for a new H1B visa.  Or, you can consider recapturing time to fill that 73 day gap.

In this scenario, if your first H1B petition had a validity date of January 2, 2009, but you did not enter the US as an H1B until January 13, 2009, you can recapture 11 days of unused H1B time (you cannot recapture the day you arrived or departed the US). 

Also, if you have taken four 2-week vacations home during your first five years as an H1B, this may be another 44 days you spent out of the US.  Combining this 44 days with the 11 days for the late entry, we now have 55 days of H1B time available to claim, but this still leaves us 18 days short of the 73 days needed to cover the gap between the H1B expiration and 1-year extension eligibility.

The most convenient course of action now is to take one or more trips outside of the US that total at least 18 full days.  Go home, hang out in Toronto or Cancun, it doesn't matter where as long as it is not in the United States.  When you return using your current visa, have your H1B extension filed for both the 73 recaptured days PLUS the 1-year AC21 extension.  You no longer have a gap in your H1B time.  Your H1B extension will now be from January 2, 2015, to March 15, 2016.

Here are a few pointers for recapturing time.

--Do not expect USCIS to do the computations for you.  USCIS internal guidance says to not honor requests to recapture time unless all of the evidence is submitted with the request.

--Keep track of your trip evidence.  Passport stamps are used extensively, but boarding passes and itinerary printouts are often necessary to prove when you departed the United States.

--Full copies of all passports used are not necessary with normal H1B extensions, but are required if requesting recapture time.

--The possible scenarios and solutions are endless if you are creative, but the best solutions incorporate the use of your current visa, thus avoiding the need to consular process for a new visa before returning.

--A single H1B extension can include time from several different immigration provisions.  As long as the requested time does not exceed three years, you can combine all the time remaining in your current H1B, PLUS any time you wish to recapture, PLUS any AC21 extension time for which you may be eligible.


One of the problems highlighted in the proposed H4 EAD rule is how to prove an H1B is actually beginning their 1 year extension under AC21 section 106(a).  In both petitions I reviewed last week, the employer asked only for 1-year extensions under AC21, but since the employees' time out of the US was never recaptured, the workers never completed a full six years of H1B before they were in their "7th year" AC21 extension!  In the proposed rule, USCIS specifically opened the floor for suggestions on how to deal with the issue of evidence.  Unfortunately, it is difficult to wade through the river of non-substantive comments to review any valid suggestions.

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DACA Renewal Begins

USCIS has finally released the form required for DACA renewals and a special web page with basic renewal intormion.  

The form and instructions are essentially the same as the drafts released back in January, so my comments on the drafts accurately describe the renewal process and will not be repeated here.

Initial Applications are Still Being Accepted
 
Unlike most other immigration benefits, there is no deadline for filing a first application for Deferred Action for Childhood Arrivals.  If you:

(1) Continuously resided in the U.S. since June 15, 2007 (with some exceptions);
(2) Were under 16 on June 15, 2007;
(3) Were under 31 on June 15, 2012; and
(4) Not in a lawful immigration status on June 15, 2012,

you should consult with an attorney to see if you meet the additional educational and criminal record elements of DACA eligibility.

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H-1B Workers: Read Your LCA!

With every H1B extension or initial petition filed, the employer is required to submit to USCIS a Labor Condition Application (LCA) that has been approved by the U.S. Department of Labor (DOL).  The LCA is a very important document and contains your employer's promises regarding your pay and some job conditions.

Did you receive a copy of the LCA?

Your employer is absolutely required by law to give you a copy of the LCA that covers the time period of the H1B petition.  The copy can be given when the extension is filed with USCIS, or, if it is your first petition, no later then the first day of employment.  There are no exceptions to this major fraud prevention requirement - you must be given a copy of the LCA to ensure you are being paid at least the wage your employer promised the government they would pay you.

You may receive the LCA copy by itself, but often the LCA will be included in your copy of the I-129 filing packet.  No law requires you be given a copy of the entire I-129 filing packet, but sending a copy to the worker (with some private information about the employer removed) is just part of good customer service provided by some law firms.  Do not confuse the filing receipt or approval notice with the I-129 filing packet.  Along with the I-129 and LCA, the filing packet contains all the supporting documents and often an attorney "true copy" certification.  Just like with the LCA, protect yourselves by always review the filing packet for errors and misstatements.

Be Concerned Mainly with Wage Information

Do not be too concerned with the exact working hours, unless it effects the wages you should be receiving.  The form does not apply well to all the different types of positions and shifts worked, so accuracy in this area is not usually an issue as long as you are making the same (or higher) wage and under the same working conditions as U.S. workers in the same or similar job position.  Usually, the workplace address on the LCA is not a crucial fact as long as the correct address is in the same metropolitan statistical area.  Also ignore any variations of the validity end date of the LCA when the date is later than the time requested in the H1B petition.  There are times when a longer end date is requested then will be on the H1B petition.

Are you receiving the Correct Wage?

You can be paid more than the wage shown on the LCA, but not less.  With very few exceptions, such as employee-requested unpaid leaves of absence, you cannot be paid less than the amount show on the LCA.

Filing Complaints with the Department of Labor
 
It is easy to file a complaint against an employer over LCA violations, but you may wish to consult with an attorney before taking such actions to be sure you are correct in your belief that you are being underpaid. 

If you have not been receiving the LCA copies, you can file a complaint, although a simple reminder of the requirement may be sufficient for you to obtain past and future copies.  If you are given "late" copies of LCAs, review them carefully.  I can understand how some employers filing H1Bs on their own may have overlooked this requirement.  However, it the H1B was filed by an attorney, I would be a little suspicious as to why this very basic and simple requirement was not met.

Complaints are filed with the Department of Labor using the easy to complete form WH-4. The form must be sent to the DOL Wage & Hour Division office that has jurisdiction over your work location.  An interactive map giving the correct address for the complaint can be found on the DOL website. 

With few exceptions, complaints must be made within one year of the violation.


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EB-2 Errors - Do Not Jepordize Your Future

I am seeing an increasing number of Filipinos petitioned in the EB-2 category although their jobs do not qualify for EB-2.  I will generously call these cases mistakes.  USCIS will call it fraud.  These cases are rare, but not as rare as they once were.

To understand the problem, you have to first understand the category.

Everyone with a Master's degree wants to be in the Employment-Based 2nd Preference (EB-2) immigrant category, and with good reason.  The wait for Filipinos before finally becoming a Permanent Resident in the EB-3 category is many, many years.  The wait in EB-2 is zero.  In EB-2, an employer can file a Petition for Immigrant Worker, and at the same time the employee (and some family members) can file an applications for Permanent Residence. 

There are two subcategories of EB-2, commonly known by the short phrases of "professionals holding advanced degrees" and workers of exceptional ability".  Today I'm only talking about advanced degree "professionals.

There are two parts for qualifying as an EB-2 advanced degree professional. 

The first, obviously, is that the worker must have an advanced degree.  There are three ways to meet this requirement; (1) Possess a U.S. degree beyond a baccalaureate (usually a Master's);  (2) Possess a foreign equivalent of a U.S. advanced degree; or (3) have a U.S. bachelor's degree (or foreign equivalent) PLUS five years of progressive experience.  The degree requirement is easy to meet and is usually handled correctly, although sometimes USCIS' definition of "equivalent" is different from what we wish.

It is the second requirement for EB-2 where I am seeing a problem.  For EB-2, the job position itself must require an advanced degree (or similar equivalents above).  Absolutely required.  Not just preferred or desired.

 EB-2 petitions done legally are wonderful. A quick green card.  But in those cases where EB-2 is granted improperly, it becomes a time bomb for the worker.

There is always a small amount of attempted fraud in any government program and immigration is no exception.  When employers misrepresent the "advanced degree" requirement on labor certifications and immigrant petitions I become concerned, and I have seen some blatant examples lately of employers overstating the job requirements.  While the Department of Labor and USCIS catch most of these cases as they move through the processing system, some still make it though to approval.

This causes me to worry, but not for the company.  If I am seeing an increase in these cases, so is USCIS, and they have their own methods for detecting these patterns.  If USCIS and the Department of Labor determine a particular company has submitted false information, the prior filings by that employer will be reviewed.  Fines, criminal charges, and a bar on future petitions are possible if a pattern of falsifying petitions is discovered. 

Who I worry for are the immigrant workers and the consequences they will suffer when even individual case ‘mistakes' are discovered.  At best, if Permanent Residence has not yet been granted, they may be able to convert their petition back to EB-3.  Any residence application filed with the petition would normally just be denied (without a refund of filing fees).  If Permanent Residence was granted before the mistake was found, and it has been less than five years, USCIS can withdraw the grant of Permanent Residence through a process called "recission".  If more than five years, the case would be handled by an Immigration Judge in removal proceedings.

Sometimes these problems can be fixed.  Sometimes not.

Remember, the vast majority of EB-2s have nothing to worry about.  The odds are very high that your case is perfectly correct and legal.  But considering the harsh future penalties for falling victim to an overreaching employer, it never hurts to step back and take an objective look at your work position just to be sure. 

Do ALL the workers in your same job classification meet the advanced degree requirement?  How about similar positions with similar duties?  Did the job advertisements clearly require an advanced degree, or were the requirements vague?  Is the same requirement being applied to U.S. workers?  Is it rare to require an advanced degree in your area or region for the job you are perfoming?

A "no" answer to some of these questions is cause for serious concern.  For other questions, a "no" answer should lead to other questions until you are satisfied that no problem exists.

The purpose of this post is to raise awareness and remind everyone not to rely on questionable promises.  In other words, look out for yourselves.  The truth is, everyone I've seen in this situation had suspicions from the beginning, but they let their intense desire for permanent residence overcome good judgement. 
 

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Basics and Tips for Understanding the Visa Bulletin

The revised and expanded version of Understanding the Visa Bulletin, including the "Dates for Filing" charts, canbe found by clicking here.

Find and Help Victims of Illegal Labor Trafficking

I would like to call attention to a problem bigger than most people believe:  Coerced Labor.

The problem can range from basic visa fraud (employer lying to the workers & USCIS about the true nature of the job) to involuntary detention and physical abuse.  These crimes can plague any group of foreign workers, yet Filipino workers constitute a substantial part of the U.S. temporary worker population, and studies show how the economic conditions in a home country can create additional vulnerabilities to unscrupulous recruiters using false promises to lure people into oppressive working conditions.

All of this falls under the general term of "Human Trafficking", basically defined as the use force, fraud, extortion or coercion for the purpose of forced labor or sexual exploitation.  Think about it.  You have heard of this happening, quite possibly have seen this and may have been a victim of these practices yourself in the past.

Some of the most common tactics used by traffickers include:

Withholding passports and immigration papers;
‘Switching' contracts after they enter the US;
Threatening deportation;
Threatening or using violence;
Preventing contact with outside friends or family;
Forcing them to use ‘company' housing;
Restricting their movements away from work;
Withholding money from paychecks for ‘expenses';

Bear with me.  This is a long post, but with information you can use at the end.

Thousands of immigration attorneys in the U.S. routinely assist victims of trafficking and other serious crimes because the events often relate directly to the person's U.S. immigration status.  Of course, the rules of confidentiality, and basic common decency, prevent attorneys from publicly identifying these victims or discussing their case except in the most broadest of terms without the victim's full consent.  And even then, no one wishes to be seen as using the suffering of victims for personal gain or prestige.  Unfortunately, this respectful silence is one of the reasons labor trafficking is so poorly publicized by those who frequently deal with the victims.

Generally, for immigration attorneys, these are often simple cases, as long as the government cooperates.  The U.S. Department of Labor and the Attorney General handle most of the litigation, while we work to save or convert their immigration status.  Two of the most useful tools granted by Congress for this purpose are the "U" and "T" statuses. 

A "U" provides protection to victims who "have suffered substantial mental or physical abuse" as a direct result of a serious criminal act and assist the government in their investigation or prosecution of the crime.

The "T" is similar to the "U", but is directed specifically to the victims of human trafficking.

Both the "U" and the "T" allow the victim to temporarily remain in the United States with work authorization and both may eventually lead to being granted Permanent Residence.

I must acknowledge the inspiration for this post, the Philippine Nurses Association of America (PNAA), one of my favorite professional organizations, well known for their especially generous community service, both in the US and abroad. 

Last week, at the PNAA North Central Regional Conference, I learned of the Association's commendable efforts to publicize the dangers of illegal recruiting practices and labor trafficking.  Unfortunately, the outreach ability of the PNAA by itself is limited, being just a single organization, but no doubt others among the hundreds of Philippine-American organizations in the United States are also working to raise awareness of illegal labor trafficking.

What You Can Do

 

All of us should aware of these abuses and know how to provide help.  The victims are usually presented to an attorney by a shelter or community group, but most often the case comes to light through a single individual who has been entrusted with the victim's story.  That is where you can help, by being observant and listening, but seeing an immigration lawyer should not be the first step.

Help these victims by first calling (800) 373-7888.

This is the hotline number for the U.S. Department of Homeland Security's Blue Campaign.

The Blue Campaign resulted from the President's Interagency Task Force to Monitor and Combat Trafficking in Persons (PITF), a coordinated multiagency effort to enforce the prohibitions against trafficking in persons.  Participating agencies include the Departments of State, Justice, Labor, FBI, USAID and the Equal Employment Opportunity Commission.  A powerful group that can provide immediate assistance to trafficking victims.

For more information and many downloadable handouts, from posters to shoe cards, visit the Blue Campaign Resource Page.

If you wish to pass this information to others, please feel free to make use of the social media links below.


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The Value of Good Advice IF TPS-Philippines Happens

This writing supplements the information in the general TPS video posted April 24th prepared by the American Immigration Lawyers Association (AILA).  Although written in the context of the possibility of TPS-Philippines, this advice applies equally for any immigration benefit.

An application for TPS is a very serious event that will have a major effect on your U.S. immigration status.  In many cases, filing the application on your own can be a perfectly acceptable way to save some money.  But before you apply for anything with USCIS, you must be sure you fully understand the benefit you are requesting, and are sure that it is YOUR best course of action.

Unfortunately, this means doing something you probably do not want to do -- have a personal talk with an immigration attorney.  Read below to see why this is true.

Before filing, you need someone to answer these THREE BIG QUESTIONS:

1.  is this is really the best thing for you to do, or are there better options?
 
2.  Do you fully qualify for TPS?
 
3.  How would TPS effect your current status and your future immigration plans?

These questions cannot be answered UNTIL an attorney has a complete understanding of you and your unique personal situation.  

People don't want to believe this, but everybody's case really is different.  It is the little personal details of your life that determine the best actions for you.  Details such as:

--When and how you entered the US?
--Was your visa application truthful?
--What have you been doing since you came here?
--What is the status of your family relationships?
--What is your employment background?
--How you've been employed? 
--What other benefits you or a relative may be eligible for now, or later, and how the TPS application can harm those benefits or, better yet, how TPS can be used to enhance them?

This important list of potential questions about your history and future plans goes on and on.  Without having this conversation with you, any advice you are given is just someone's guess.

That is why the information you read on the internet (even here!) is often incomplete or overly-simple.  ‘General' advice is merely informational.  Only specific advice is what you act upon.  And the advice given to someone else - even a close relative - may be bad advice for you, no matter how alike your personal circumstances seem to be.

One last caution.  If the Philippines is designated for TPS, many wonderful community groups will offer "clinics" or "workshops" to explain and help prepare the immigration forms.  These organizations also play the very important role in getting the word out to the public that this benefit is available, and serve to encourage people to come forward to apply.  If you feel comfortable with the reputation and knowledge of the sponsoring group, by all means use them.  But if they do not have a qualified person available on-site to spend private time with you and thouroughly discuss your personal situation, and ARE ABLE TO ANSWER THE THREE BIG QUESTIONS above, seek out good advice SOMEWHERE before you drop that form in the mailbox.



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How We Keep Quality High with Reasonable Fees

I never thought I would have to explain this, but I was just "lectured" by someone who believes people equate higher attorney fees with better legal advice.  I think people are smarter than that, but anyway...

This office was founded for only two purposes, and every attorney and staff member understands this:  We are here to provide for our own families and to help our clients.  It is that simple.

Our fee structure is the result of lower operating costs in the Midwest, and, more importantly, by operating an extremely efficient office capable of routinely handling a high volume of cases without any reduction in quality or personal service.  You can pay more, but that does not mean you will get better immigration advice.  Simply put, we serve a lot of people.  We do not have to charge the higher fees that would be needed to achieve the same income with a smaller client base.

Everyone at Austin & Ferguson, LLC is aware of the importance of the work they do and take personal satisfaction in being able to help our clients achieve their goals.  Often, those goals greatly improve their lives.  This work is rewarding and we wish to help as many people as we can.  We keep our fees reasonable so everyone can have access to good immigration advice.

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Video of Basic TPS Information

First, let me be clear.  

As of Thursday night, a decision has NOT been announced on if the Philippines will be designated for TPS, and the information below should not be taken as an indication of what may happen later.

Today, the American Immigration Lawyers Association (AILA), which is composed of over 13,000 immigration attorneys and educators, released a short video discussing basic TPS requirements, some problem areas and suggestions when seeking assistance to register for TPS.  This is just general information.

This video was also added to AILA's "Philippines TPS" resource page, a central location containing various documents relating to the call for TPS-Philippines.  




If your device does not display the embedded video above, the video can be viewed here. 



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No, Filipinos Cannot enter the U.S. Without a Visa

A post on the satire news site Adobo Chronicles, reported that the United States is waiving visa requirements for Filipino visitors as a reward for "making the U.S. look really good" in a survey of countries with a favorable view of the United States. 

Of course, the article was written in jest, as are all of the site's articles, such as, "Miley Cirus to Sue Kris Aquino", "Japan Offers to Buy Metro Manila....", and "Weapons of Mass Destruction Discovered on Mars".

However, enough people believed the article to call the U.S. Embassy in Manila, leading the Embassy to post a denial on their website.  It also explains the unusually high hit counts on this blog after the article was posted.

I found the article humorous, but there are times when these capers can go too far and people object to the content.  I will stay out of that discussion here, but this does give me a chance to acknowledge the contributions of the person who alerted me (and many others) to this story.

Angelita "Boots" Felixberto, a GMA7 news stringer in the Washington DC area, has a blog at www.thecatalystwriter.blogspot.com where, as a community service, she continually updates a running list of the known Filipino events in the areas of  "DC, MD, VA, New England and continually expanding".

If you do not already send your own group's announcements to Angelita, consider it.  Just seeing so many quality activities listed in a single place speaks highly of the energies within the U.S. Filipino communities.

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Handling H1B Cap Returns

Receipts are arriving from USCIS for the cases accepted under the H-1B cap, but the returns will soon follow.  If you are in the U.S. on a student visa and a company has filed with USCIS to change your status to H-1B, missing out on the cap can be devastating.  No one is happy.
 
The first thing you must do is schedule time with your attorney to review all of your options.  Advice you read on the internet is always incomplete and overly simplified - even mine.  Often there is no good way out, but do not abandon hope until you are sure nothing has been overlooked. 

Below are just some of the possibilities your attorney may discuss:

---Try to find a position with an institute of higher education before your OPT runs out.  Many educational facilities post-high school are exempt from the cap and can file an H-1B petition anytime for an immediate start dates.

---Return to school and remain in F-1 status, if even to just remain in status until a new H-1B petition can be attempted next April.  Start working towards that Master's degree.  Remember that a U.S. Master's degree, even if not required for the job, will greatly increase your odds of being selected in a future H-1B lottery.

---Consider changing to a different status.  If your spouse is already an H-1B, change to an H-4.  Similarly, although much less desirable, consider you and/or your spouse becoming J-1s/J-2s.  If you have sufficient funds to finance a qualifying small/medium-sized business, the United States has a treaty of commerce treaty with the Philippines that allows the possibility of opening a business and changing your status to E-2.  There is also the possibility of changing your status for a short period to a B-2 visitor, but USCIS has stringent requirements in these circumstances, and the time allowed will may not be worth the cost and effort.

---STEM OPT, not often overlooked, but worth a reminder, that students with a science, technology, engineering or mathematics degree are often eligible for 17 months of OPT, sometimes in addition to the normal 12 months of OPT.

---Do not forget the grace period in which you can stay in the U.S. after your OPT expires:  60 days for F-1, 30 days for M-1 and J-1.  Although you cannot work during this time, you are still considered to be in lawful status for changing to some other visa category.

These are just some of the most common options.  Your attorney may find other possibilities based on your own individual circumstances.

And lastly, a little straight talk about money.  Obviously, all filing fees are returned to the employer once USCIS returns the checks.  As for professional fees, different attorneys have different contract provisions.  However, it is normal for professional fees to not be refunded as the work under most contracts was completed as long as the petition was properly prepared and filed.  We all know that success is never guaranteed and, with H-1B cap cases, a properly advised employer agrees before filing to accept the risk created by the H-1B cap.  However, at a minimum, many good attorneys will often offer a significant discount on next year's filing if the company wishes to give it another try.


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DACA Renewal Instructions Released

USCIS has posted its first guidance on DACA renewals, found here, and probably copied to websites all over the internet.  DACA, or Deferred Action for Childhood Arrivals, grants employment authorization and protection from removal for those who qualify for the benefit.

Several interesting items to note if you are renewing DACA granted by USCIS (slightly different renewal rules apply if DACA initially granted by ICE):

You MUST use the new form for renewals, and it does not yet exist.  A draft of the new I-821D was released for comments on December 8, 2013.  After review of the comments, a new, modified draft of the form (7 pages) and instructions (14 pages) was issued last week on April 9th.  The final version will not be available until the end of May, 2014.

You cannot file more than 150 days before your current DACA expiration.  My advice is to file as early as possible for the best chance of getting your new work authorization before your old card expires.  USCIS believes it can issue new work authorizations within five months of filing.  Historically, sometimes they do, sometimes they don't.  With TPS, a very similar program, USCIS has moved to the practice of automatically extending the current work authorization for an additional six months past the card's expiration date.  But since the DACA renewals will be spread out over a longer time period than allowed for TPS renewals, hopefully USCIS can keep card issuance within the five month window.

Less evidence will be required for renewals then you submitted with the initial application.  This is very useful.  For DACA renewal, NONE of the evidence sent with the original application needs to be resubmitted.  While this may just seem to be common sense, it is not the normal practice of USCIS when renewing some other immigration benefits.

No evidence required of continued enrollment, even if your initial DACA was based on a GED program (or similar) enrollment.  Neither the form or the instructions indicate any evidence of continued enrollment or successful program completion will be required for DACA renewals.  However, there is always a chance this might change when the final instructions are released.

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Last Call for TPS Philippines?

Please click on this to see the 7/16/14 end of hope for TPS Philippines.

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Philippines TPS Update

Please click on this to see the 7/16/14 end of hope for TPS Philippines.

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DACA Still Available for Filipinos

The number of DACA applications for citizens of the Philippines continues below expectations.  I previously discussed possible reasons for this reluctance to apply.  If you know someone eligible for Deferred Action for Childhood Arrivals, they should consider applying soon.  The opportunities of DACA will not last forever.

DACA Can Help Adults 

DACA is not just for children.  You can be as slightly older than 32½ now and still apply for DACA as long as you were under 16 when you entered the United States before 6/16/2007, and your immigration status expired before 6/16/2012.  Your previous visa category does not matter.  B (visitor), H (worker), F/M (student), J (exchange) -- ANY prior visa category --  as long as it expired before 6/16/2012.  

So, keeping in mind these entry and status expiration dates, here are examples of some adults that may benefit from DACA:

--U.S. college graduate, 28 years-old, whose visitor visa expired fifteen years ago.

--Thirty year-old married father of three who came to the U.S. with his parents 20 years ago as an H-4.

--Thirty-one year-old who entered as child and left to be raised by an aunt, was caught by immigration when he was 20 and ordered deported, but never left the United States.

 
As these examples show, DACA is not just for today's children, and deserves some serious consideration for some adult Filipinos who are out of status.

Other eligibility requires exist and I am not going to discuss all the details of every benefit, requirement and risk of applying for DACA.  Requirements and limitations have been posted everywhere, including this USCIS webpage.

Will DACA Expires?

DACA recipients are granted work authorization and protection from deportation for two years, and the current administration policy is that it will be renewed in two-year increments.  But remember, the DACA program is not a "law".  It is a "policy".  DACA was created by a memo and can be canceled by a memo if this, or the next, administration wishes it so.  Additionally, the U.S. Congress has the power to cancel DACA.  As talk continues in Congress about changes to U.S. immigration law, the continuation of DACA will be part of that discussion.

There is an old adage in immigration law that says, "If you're eligible for a benefit, grab it.  You don't know how long it will be around".

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Philippines FB1, FB2B, and Opt Out Cases

Immigration law is complicated.  The more you understand your case, the less likely you will be taken advantage of or follow poor advice.

First, a few background facts. 

1.  FB1 is the family immigrant category for a petition beneficiary who is the unmarried son or daughter (at least 21 or over) of a U.S. Citizen.

2.  FB2B is the family immigrant category for a petition beneficiary who is the unmarried son or daughter (at least 21 or over) of Permanent Residents.

3.  If a Permanent Resident files a FB2B petition, and then later becomes a U.S. Citizen, the FB2B petition automatically changes to an FB1 petition.  This is called "automatic conversion".
Since July 1, 1992, the wait to get a green card for the Filipino son/daughter of a U.S. Citizen was longer than for the son/daughter of a Permanent Resident.  This is still true today.  Next month, February 2014, immigrant visas will finally be available to FB1 beneficiaries whose petition was August 15, 2001, yet FB2B beneficiaries from May 23, 2003 can now become Permanent Residents.  This is backwards of what it should be, but since Filipinos became naturalized US Citizens at a much higher rate then other countries, the demand in FB1 increased while demand in FB2 decreased.

In 2002, Congress provided a fix for this problem by creating a law giving FB2B beneficiaries a one-time option to "opt out" of the automatic conversion to FB-1 after their Permanent Resident parent becomes a U.S. Citizen.  The opt out request is nothing more than a simple letter to the USCIS office that approved the petition.  However, Congress did not provide a way to undo an opt out.

This opting-out has worked well for ten years as FB1 is still slower than FB2B. But that may change.  It is very possible that sometime in the next few years, FB1 cutoff dates will overtake and pass FB2B, making FB1 the category with the shorter wait.  Beneficiaries whose FB2B priority dates are still many years away, and who followed bad advice and already opted out of FB1, may find themselves stuck in the slower FB2B category!

Two pieces of general advice:

1.  In most cases, if you are a Permanent Resident now, and have an older unmarried son or daughter, file the FB2 petition now and get them in the line for an immigrant visa.  Remember, it the date the petition is filed, not the date it is approved, that marks their place in line for a visa.  USCIS may take 2-4 years before approving the petition, but it does not matter.  USCIS knows it will be many years before a visa is available so they take their time, and just the filing gets them in line as long as the petition is approved later.

2.  DO NOT OPT OUT UNTIL YOU SEE WHICH CATEGORY WILL BECOME CURRENT FIRST!  There is no reason to change back to FB2B years before your priority date is current.  Wait until you see which category is advancing quicker, then opt out of FB1 only if FB2B is still the best choice.


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USCIS Continues to offer "Special Benefits" for Filipinos

Even without TPS, the US Government still provides token benefits to citizens of countries struck by natural disasters.  These special benefits have been available to Filipinos since November 15th, but unlike TPS, there are very few Filipinos in the United States who can use these tools.  Below is a list of these benefits and a very short description of how they might be used:

Late-filed applications for a change or extension of nonimmigrant status.  Applications to change or extend a nonimmigrant status must be filed before your current status expires.  However, if you file late and can show the reason for filing late is directly related to Typhoon Haiyan,  USCIS may approve the application and grant the status.

Favorable consideration for off-campus employment authorization of F-1 Students. 
F-1 students can always apply for employment authorization based on "economic hardship".  Although work authorization is not guaranteed, USCIS will look more favorably on requests from students whose source of funding was decreased by Typhoon Haiyan.  Consider carefully before making such a request, since being able to finance your education is one of the requirements to maintain your F-1 status!  Carefully review the description of your financial support indicated on your I-20 and be able to explain how Typhoon Haiyan directly effected your source of support.  Also, this does not waive the work hour limitations!  These requests for economic hardship EADs will receive expedited attention from USCIS.

Expedite for Immediate Relative Petitions.  In 2013, the time required for USCIS to make a decision on Immediate Relative petitions grew from 3-4 months to the present ridiculous 8-10 months.  They are now trying to work through a huge backlog of petitions.  Because of Typhoon Haiyan, USCIS states that they are trying to pull Immediate Relative petitions for Filipino beneficiaries out of the queue and issuing decisions.  This only applies to petitions for Immediate Relatives (parents, spouse or children of U.S. Citizens).  This does not apply to the spouses or children of Permanent Residents (FB-2A).

Extension of parole grants.   If you are currently in the United States and have been given "parole" status by USCIS, your parole can be extended by showing you the area where you are to be returning was adversely effected by Typhoon Haiyan.

Expedited advance parole document. Parole requests can be expedited if the purpose of the trip is related to Typhoon Haiyan.  You must already be in an immigration status eligible to request advance parole, the largest group being Filipinos with an application for adjustment of status on file.

Extension of advance parole.  If you have already been granted an advance parole and feel it does not give you enough time for the emergency purpose of your trip, the USCIS office at the Manila Embassy can grant parole extensions.

Expedited select employment authorization applications.  If you are in a status that allows you to request a employment authorization and you are applying for your first work card, you can request the card be expedited if you need immediate employment to assist your family in the Philippines, or to compensate for the loss of overseas support as a result of Typhoon Haiyan.  This would mostly apply to new applicants for permanent residence, spouses of J-1s, and parolees.


These are the main points and perhaps some Filipinos may benefit from these small favors.  Before applying for these benefits, it is best to consult with someone aware of the procedural requirements and who can verify your eligibility.


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Filipino Fear of Filing for DACA

If the Philippines is given Temporary Protected Status, will we see the same reluctance to apply for TPS that we are experiencing with Deferred Action for Childhood Arrivals (DACA)?

DACA is an immigration program that helps young persons who entered the U.S. when under 16 years old to obtain work authorization and other legal documents. A recent story on National Public Radio (NPR) claimed that less than 20% of eligible Filipinos have applied for DACA. The story blames social embarrassment as the reason for the low number of Filipino DACA registrants, implying that Filipinos fear humiliation from their own community if it becomes known that they are not in valid immigration status.

TPS can provide important benefits to Filipinos in a legal status (such as H-1B, H-4, F-1 or F-2), but like DACA, TPS is of even more help to those out of status. When other countries were granted TPS, those without legal status gained the most from TPS. Being able to legally work, get a valid social security card and travel are amazing benefits.

Protecting the privacy of our clients is a mandate at Austin & Ferguson, LLC. Because USCIS uses a centralized filing system, all DACA and TPS cases are easily handled by mail and over the internet. This allows us to successfully handle not just DACA cases but most other types of immigration cases as well for clients from all over the United States. If the Philippines is designated for TPS, it would be sad if the fear of social scorn deters anyone from privately getting the wonderful benefits of the TPS program.


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