U.S. IMMIGRATION LAWS

U.S. Immigration Laws

Business Immigration Laws

Importance of Reasonable Immigration Laws

Paper on U.S. Immigration Laws (Updated August 18 2014)

UNITED STATES IMMIGRATION LAWS

I. INTRODUCTION

The threat of terrorism triggered Congressional and administrative actions that have dramatically changed United States immigration laws. The most significant change arose from the Homeland Security Act of 2002 that transferred immigration enforcement and adjudication services functions from the now defunct Immigration & Naturalization Service into the Department of Homeland Security. Security and enforcement concerns have taken priority over timely adjudications of applications for immigration status submitted by employers for foreign national employees as well as by U.S. citizens for their relatives.

Immigration laws are constantly changing. This is a heavily regulated field with laws intended both to protect the United States workforce and to unify families. Congress must juggle competing interests in determining immigration policy: employers want to be able to hire skilled foreign labor, while labor unions and professional societies want to improve wages and working conditions for employees; immigrant families want to bring their relatives to the U.S., while the quota system lags ever farther behind; a global economy demands decreasing barriers, while an influx of unlawful immigration and the threat of terrorism results in tightening controls.

Parole in Place (PIP)
On November 15, 2013, the USCIS released a new Policy Memorandum which spelled out the process for applying for Parole in Place (PIP). PIP may be sought for spouses, children, and parents of persons serving on active duty in the U.S. Armed Forces in the Selected Reserve of the Ready Reserve, or who previously served in either of the two mentioned above (i.e. veterans). An application is submitted without fee to the USCIS Field Office with jurisdiction over the applicant’s residence, and if granted, the applicant receives an I-94 card indicating parole in the U.S. for one year. Those applicants who would not normally be eligible to apply for adjustment of status within the United States because of their manner of entry may then solicit permanent resident status from within the United States despite unauthorized entries. It is important to note that the applicant should not actually leave the United States and use the PIP I-94 card to seek to return from travel abroad. The intent of PIP is to keep families together, especially the loved ones of those who fight to keep our country safe.

DOMA: Defense of Marriage Act Declared Unconstitutional
Perhaps the most significant development in 2013 was that Section Three of the Defense of Marriage Act (DOMA) was declared unconstitutional by the U.S. Supreme Court on June 26, 2013. This meant that the federal government had to recognize the legal marriages of same-sex couples. Same-sex couples in committed relationships who were married in a state or country that recognizes such marriages can now receive a variety of federal protections, including the right to seek permanent resident status for foreign-born spouses of U.S. citizens, even if living in another state [that does not recognize same-sex marriages].

Deferred Action for Childhood Arrivals
There was one very significant immigration law development in 2012. On June 15, 2012, President Obama announced that many children whose parents brought them into our country prior to age sixteen would be eligible for some immigration benefits. Deferred Action for Childhood Arrivals (DACA) provides eligible applicants a two year Employment Authorization Document (EAD) which the first DACA recipients are now starting to renew. Qualified applicants must have entered the U.S. prior to age 16, have been younger than 31 on June 15, 2012, and have been continuously present in the U.S. for at least 5 years. They must have either served in the military or be enrolled in school or have graduated from high school or obtained a GED. In addition, they must not have been convicted of a felony, three misdemeanors, or any “significant misdemeanor.” Significantly, driving under the influence is considered to be a significant misdemeanor. As of March, 2014, the USCIS indicated they had received a total of 673,417 requests for DACA relief.

Prosecutorial Discretion
The Obama Administration has been exercising “prosecutorial discretion” to terminate or not initiate removal proceedings against certain foreign nationals who have not been convicted of a significant criminal offense and who are not a terrorist threat or national security risk to our country.

The U.S. Citizenship & Immigration Services (CIS) concentrates on the intent of the individual: Is he/she an intending immigrant or nonimmigrant? The wrong answer might result in a return trip to the home country. Nonimmigrant status is temporary: one may only remain in the U.S. for a limited period of time. Immigrant status, commonly called “green card” status, signifies that a person has been granted permanent resident status and may reside in the U.S. indefinitely.

These government websites provide useful information about immigration laws:

www.uscis.gov (U.S. Citizenship & Immigration Services)
www.dol.gov (U.S. Department of Labor)
www.travel.state.gov (U.S. Department of State)
www.twc.tx.us (Texas Workforce Commission)

II. IMMIGRANT STATUS: EMPLOYMENT BASED

Generally either a close family relative or an employer must sponsor someone for immigration. The first method relies on a close tie to a U.S. citizen or permanent resident. If a foreign national does not have such a relative, he/she might qualify under one of the employment based categories. Currently the Immigration & Nationality Act sets an annual limit of 226,000 immigrant “preference” numbers for family based categories, and 143,949 immigrant “preference” numbers for employment based categories. The per-country limit for preference immigrants is now 25,896.

Employment Based Categories

1st Preference: Extraordinary Ability
Outstanding Professors & Researchers
Managers & Executives

2nd Preference: Advanced Degree Professionals
Exceptional Ability

3rd Preference: Professionals (Bachelors degree)
Skilled Workers (two years training)
Other Workers (unskilled)

4th Preference: Special Immigrants (religious workers)

5th Preference: Immigrant Investors

A. First Preference

The First Preference is for “priority workers” and includes individuals of extraordinary ability, outstanding professors or researchers, and certain executives and managers of multinational corporations. Because Congress regards them as priority workers, they are exempt from Department of Labor requirements for labor certification

1. Extraordinary ability

The first subgroup of the priority worker category is reserved for applicants with extraordinary ability in the sciences, arts, education, business, or athletics. The CIS considers “extraordinary ability” to be a level of expertise indicating that the individual is one of a few who have risen to the top of his/her field. The petitioner must demonstrate extraordinary ability through extensive documentation showing sustained national or international acclaim, and that the foreign national’s achievements have been recognized by others in the field of expertise. The regulations provide a list of criteria for guidance, which are summarized below:

• Major prizes or awards.
• Memberships in organizations that require outstanding achievement.
• Cites to or articles about the individual’s work.
• Participation as a judge of the work of others.
• Evidence of original scientific, scholastic, artistic, athletic or business related contributions.
• Authorship of scholarly articles.
• Artistic exhibitions or showcases.
• Performance in a leading or cultural role for organizations that have a distinguished reputation.
• High salary in relation to others in the field.
• Commercial success in the performing arts.
• Other comparable evidence.

2. Outstanding Professors or Researchers

The second subgroup of the priority worker category is reserved for certain professors or researchers who are internationally recognized as being outstanding in specific academic areas. The applicant must have at least three years teaching or research experience. Under certain conditions the CIS will count teaching or research experience gained while working toward an advanced degree. The individual must either be (a) in a tenure track position teaching or conducting research at a university, or (b) in a research position with a private employer who employs at least three full time researchers and who has achieved documented accomplishments in the academic field.

As with extraordinary ability, the petitioner must demonstrate outstanding ability through extensive documentation showing international recognition in the field. The regulations provide a list of criteria for guidance, which are similar to extraordinary ability:

• Major prizes or awards.
• Membership in organizations that require outstanding achievement.
• Cites to or articles about the individual’s work.
• Participation as a judge of the work of others.
• Evidence of original scientific research.
• Authorship of scholarly articles or books

3. Multinational Executives and Managers

The third subcategory of priority workers is reserved for certain executives and managers of multinational companies. To be eligible the manager or executive must have been employed at least one of the three preceding years by the overseas parent, subsidiary, affiliate, or branch of the U.S. employer. They must have filled a position in a managerial or executive capacity for at least one year, and be coming to the U.S. to fill a position in a similar capacity.

The petitioner must document that the proper relationship exists between the two entities. In some cases a joint venture may be acceptable to the CIS. In situations where there is less than 50% ownership, there might be equal control and veto power. The CIS definition of “managerial capacity” includes both managers of an organization and managers of a function; however, first line supervisors are not considered managers unless the employees they supervise are also professionals.

B. Second Preference

The Second Preference category includes members of the professions holding advanced degrees, and those who have exceptional ability in the sciences, arts or business. The CIS regulations define a profession as an occupation that requires at least a Bachelor’s degree to enter into the field. An employee seeking to enter in this category must obtain a labor certification from the Department of Labor unless the CIS determines that a waiver of the labor certification requirement would be in the “national interest.” A labor certification certifies that the employment of the foreign worker in a particular position will not adversely affect the U.S. labor market.

1. Advanced Degree

This subcategory requires the professional to have at least a Master’s degree or equivalent. An advanced degree means any degree higher than a Baccalaureate degree. The CIS will also consider an applicant who has a Baccalaureate degree plus five years of progressive experience in the profession to be equivalent to a Master’s degree. Note that to require five years of experience in a job offer for purposes of labor certification may conflict with minimum job standards set by the Department of Labor. For this reason it may not always be possible to include an individual’s full experience to meet the advanced degree category.

2. Exceptional Ability

This subcategory is reserved for those who have “exceptional ability” in the sciences, arts or business, and who will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States. The CIS is looking for a level of expertise significantly above that ordinarily encountered in the field. It is lower than the “extraordinary ability” standard, and has different guidelines:

• Degree relating to area of exceptional ability.
• Ten years of experience.
• Professional license.
• High salary in relation to others in the field.
• Membership in professional associations.
• Recognition for achievements and significant contributions.
• Other comparable evidence.

C. Third Preference

The Third Preference category includes professionals who hold a Baccalaureate degree (or foreign degree equivalency); skilled workers capable of performing a job requiring at least two years of training or experience; and “other workers,” who are defined as those who work in positions requiring less than two years of training or experience. Visas are equally available to professionals and skilled workers under this category. Congress has limited the quota for “other workers” to only 10,000 per year.
All employees seeking to enter in the Third Preference category must obtain a labor certification from the Department of Labor.

D. Fourth Preference

The Fourth Preference category is for Special Immigrants, which primarily includes ministers and religious workers. To be eligible, the applicant must have been a member of a religious denomination that has had a bona fide non profit religious organization in the U.S. for at least the two years immediately preceding the application. The applicant must be entering the United States to work (1) as a minister of religion, (2) for the organization in a religious capacity, or (3) for the organization or a related tax exempt entity in another professional capacity. The applicant must have been carrying on such work as a minister, professional or other worker for at least two years preceding the application. The applicant must have at least a Baccalaureate degree to qualify as a religious professional. A combination of experience and education may not be substituted for a Baccalaureate degree.

E. Fifth Preference

The Fifth Preference category is for foreign investors. It allows conditional residency for a person who invests $ 1 million (or under certain circumstances $500,000) in a new commercial enterprise that employs ten full time U.S. workers. The investor must directly manage the business or at least be involved through policy formation. A “new commercial enterprise” includes creating a new business, purchasing a business and reorganizing it, or expanding an existing business by forty percent. The investment might be in cash or cash equivalents, equipment, inventory, or other tangible property. Indebtedness secured by the assets of the entrepreneur might also be considered part of the investment.

III. LABOR CERTIFICATION

For most employees, labor certification will be a prerequisite for obtaining employment based permanent residence. The Immigration & Nationality Act requires that most foreign nationals who seek to enter the U.S. to perform skilled or unskilled labor are not admissible unless the U.S. Secretary of Labor certifies that there are not sufficient U.S. workers available for the position, and that employment of the foreign national will not adversely affect the wages and working conditions of similarly employed U.S. workers.
The labor certification program for the permanent employment of aliens in the U.S. is administered by the Dept of Labor’s Employment & Training Administration (www.doleta.gov).

How does it work?

The labor certification process involves a test of the labor market to ensure that the employer is not overlooking minimally qualified U.S. workers for the position. The employer must perform certain recruitment steps, evaluate each applicant’s background, and determine whether any are qualified for the position. Upon conclusion of the recruitment activities, the employer must prepare a recruitment report and file an Application for Permanent Employment Certification (ETA Form 9089) with one of the ETA’s National Processing Centers. In order to ensure that U.S. workers will not be adversely affected by the foreign worker’s employment, the employer must offer a salary that meets at least the “prevailing wage” as determined by the U.S. Department of Labor. Employers may also submit private surveys for consideration, but there are stringent criteria governing how the survey was conducted, its sampling size, and how the median or mean wage was calculated.

Who must be considered?

The employer must consider any U.S. workers who apply for the position, but does not need to consider non-U.S. workers (e.g., F-1 students and H-1B temporary workers). The employer must determine the minimum job requirements for education and experience, but may not tailor these job requirements to the foreign worker’s background or include unduly restrictive job requirements or duties in the job description. The ETA’s Certifying Officer will utilize the O*NET (www.onetcenter.org) to evaluate and determine if the employer’s stated job requirements and duties are normal to the occupation involved. The O*NET is based upon the Standard Occupational Classification (SOC) system used by Federal statistical agencies to classify workers into occupational categories for the purpose of collecting, calculating, or disseminating data.

As a general rule, the employer may not include as a requirement any experience which the foreign worker has gained in the same or similar position with the firm, nor require knowledge or skills that could only be obtained in-house with the firm’s products or services. Any special requirements, such as a foreign language, must be thoroughly documented as business necessity. This labor market test is structured to determine if there are any minimally qualified candidates available for the position—it is not relevant to the Certifying Officer that the incumbent foreign worker is the best qualified of the candidates. U.S. candidates may be rejected for only lawful job-related reasons, i.e., they do not meet the stated minimum education/experience requirements, or it is clear from their backgrounds that they would not be able to perform the job duties. The Certifying Officer will consider an applicant qualified if he/she could learn the necessary job skills within a reasonable period of on-the-job training.

What must be done under PERM?

PERM stands for Program Electronic Review Management system. After conducting the required recruitment and evaluating the candidates, the employer will usually submit electronically the ETA9089 application to the National Processing Center. On the application the employer will attest to the job requirements, the recruitment steps, the prevailing wage, and that no qualified candidates could be found. The application should be reviewed within sixty days and a determination made to either conduct an audit or to certify the employer’s application. If an audit is required, then the employer must submit the ads, postings, resumes, and recruitment report to the Certifying Officer within thirty days. The Certifying Officer will conduct random audits to ensure the integrity of the program.

Under PERM, the employer will post a notice on-site for ten consecutive business days, and conduct
six recruitment steps. These steps will involve the following:

(1) Job ad in Sunday newspaper classifieds,
(2) Second job ad in Sunday paper or in an appropriate professional journal, and
(3) Job order with the state workforce agency for thirty days.

The employer must select three additional recruitment steps from these alternatives:
a) Job Fairs
b) Employer’s Web Site
c) Job Search Web Site (other than employer’s)
d) On-Campus Recruiting
e) Trade or Professional Organizations
f) Private Employment Firms
g) Employee Referral Program with Incentives
h) Campus Placement Offices
i) Local and Ethnic Newspapers
j) Radio and Television Ads

The ad or posting must contain the company name, direct applicants to report or send resumes to the employer, provide enough detail to adequately apprise the potential applicants of the job opportunity, and indicate the area of employment if not apparent from the employer’s address. Upon conclusion of the recruitment steps, the employer will review the resumes, conduct any interviews necessary to better ascertain a candidate’s qualifications, and prepare a recruitment report summarizing the results. The recruitment report will describe the recruitment steps undertaken and the results achieved, the number of hires (if any) and the number of applicants rejected (categorized by the lawful job related reasons for such rejections). In the event of an audit, the Certifying Officer may request the U.S. workers’ resumes or applications (sorted by the reasons the workers were rejected).
An approved labor certification is valid only for the specific job opportunity and for the area of intended employment stated on the application. The labor certification can no longer be used if it is not filed within 180 days of approval with an employer petition (I-140) submitted to the US CIS. The ETA may revoke a labor certification if they discover that there has been fraud or willful misrepresentation in the process.

IV. NONIMMIGRANT STATUS

Nonimmigrants may remain in the U.S. for only a temporary period of time and are restricted to the activity consistent with their visas. Nonimmigrants are expected to depart the U.S. by the expiration date on their I 94 entry/departure cards unless they have filed for an extension. There can be serious legal consequences for anyone who overstays his/her authorized period of admission. The following is a description of some of the commonly used employment or business related visas:

A. F 1 Student

An F 1 student is usually granted “Duration of Status” which is the period required to complete the program of study, plus any authorized period of practical training. Students are expected to maintain a full time course load. Eligibility to work includes part time employment on campus (full time during break periods). Off campus employment based on economic hardship can be authorized by the CIS if a student can verify that the hardship is based on unforeseen circumstances. Both hardship authorization and practical training are available only after a student has been enrolled full time for a consecutive nine- month period.

There are two types of practical training: curricular and optional. Curricular practical training may be authorized by a Designated School Official (DSO) during the student’s course of study, and may include internships, cooperative education programs, work/study programs, or practicums. The employment training offered must be integral to the student’s curriculum. Optional practical training is authorized by the CIS upon completion of the student’s studies. This employment should relate to the student’s major area of study. One important caveat: if the F 1 student has used twelve or more months of full time curricular practical training, then he/she will normally be ineligible for optional practical training after graduation.

F 1 students, M 1 vocational students, and J 1 exchange visitors are now closely monitored by educational institutions and the CIS under the Student and Exchange Visitors Information System (SEVIS) mandated by the U.S.A. Patriot Act.

B. J 1 Exchange Visitor

The J 1 category includes certain students as well as visiting scholars, corporate trainees, professors, research assistants, and other field specialists. The J 1 program is administered by the U.S. Department of State. As with F 1 students above, J 1 students may be eligible for incidental on campus employment if their school is also their program sponsor. For students on another sponsor’s program, that sponsor would need to authorize any on campus employment. The Responsible Officer (RO) can authorize off campus employment based on hardship or academic training. The academic training is available during or after the student’ s academic program for a maximum of 18 months based on an employment offer in the field of study. Bona fide post doctoral positions allow up to 36 months of academic training. Many (but not all) exchange visitors are obligated to a two-year foreign residence in their home country prior to seeking an H 1B specialty worker or immigrant status in the U.S. Sometimes waivers of this requirement are not granted even if the foreign national marries a U.S. citizen and has U.S. citizen children.

C. B 1 Business Visitor

The B 1 visa is intended for business trips to the U.S. to conduct business on behalf of a foreign employer. The B 1 visitor may not be employed to work for a U.S. employer. Permitted B 1 activities include business meetings, conferences or seminars, contract negotiations, consultations, litigation, sales calls, plant tours, market research, contract or warranty follow up, and formal classroom training (but not on the job training). Tourists are eligible to seek B-2 visitor visas.

D. Visa Waiver Program

The visa waiver program may be used for the same purposes as a B 1 business visitor or B 2 tourist visa. This program waives the requirement to first obtain a visa at a U.S. consulate. Instead, the visitor may fly to the U.S. and apply at an inspection point for entry into the U.S. The immigration inspector will make an immediate decision and there is virtually no appeal of a negative decision. This program is only for visitors from certain countries where there has been traditionally low fraud. Entry will be authorized for ninety days, and no extensions or changes of nonimmigrant status are allowed (except for “immediate relatives” of U.S. citizens who might be eligible to seek immigrant status).

E. TN Status

The TN category arose from the North American Free Trade Agreement (NAFTA). Individuals from Canada or Mexico must qualify under one of the occupations listed in the treaty. Some of the professions listed include engineers, architects, accountants, economists, computer systems analysts, foresters, graphic designers, mathematicians, research assistants, and scientific technicians/technologists. A Canadian may apply at an international airport or border post for TN status; however, Mexicans must first obtain a visa from a U.S. consulate. TN status is
approved for up to three years, and may be extended by the CIS.

F. H 1B Specialty Worker

The H 1B category is for workers in specialty occupations, which means an occupation that normally requires attainment of at least a Bachelor’s degree. Generally one must have a degree in the specialty to qualify, or the degree equivalent. Positions in education, engineering, accounting, finance, and research are normally considered professional. For nontraditional professions, the CIS will look to the complexity or uniqueness of the job duties, and whether a degree requirement is common to the industry.

An employer must file a Labor Condition Application (LCA) with the U.S. Department of Labor (DOL) attesting that the hiring of H 1B workers will not adversely affect the wages and working conditions of other U.S. workers in the same position at that location. The employer must determine the “prevailing” wage for the region, and attest that the wage offered to the foreign national is the higher of the “actual” and of the “prevailing” wage. Notice must be posted on site, and an LCA file maintained for public inspection.

There is a numerical limit on the number of H-1Bs issued each year. The employer must plan well in advance of hiring an H 1B nonimmigrant worker because the annual allotment of H-1B numbers is used up soon after applications are accepted for the upcoming fiscal year. The H 1B petition can be approved for three years, and extended for an additional three years for a maximum stay in the U.S. of six years. Section 11030 of the 21st Century Department of Justice Appropriation & Authorization Act allows an H 1B employee to obtain extensions beyond the traditional six year limit if an alien labor certification has been pending for over one year. If a PERM labor certification has been obtained and an employer’s I-140 immigrant petition approved, an H-1B worker who has used up the traditional six-year limit could seek a three year extension if no immigrant visa numbers are available. A person with an H 1B might be “portable” to a new employer once a LCA is filed with the DOL and a petition filed with the CIS. An additional $1225 fee can be paid to the CIS for “premium processing” so that the CIS will adjudicate an H 1B (or L 1) petition within 15 days (or at least issue a request for more evidence needed to promptly adjudicate such a petition).

G. L 1 Intracompany Transferee

The L 1 category allows multinational corporations to temporarily transfer certain employees to their U.S. facilities. The threshold requirement is that the employee has worked for the company for at least one year (in the last three) prior to transferring to the United States.

An L 1 petitioner must document that a qualifying relationship exists between the U.S. company and its foreign parent, subsidiary, affiliate or branch. The general rule is that one company must have effective control of the other. The CIS will consider joint ventures or situations where there is less than majority ownership but effective control of the other, such as by veto power.

There are two types of L 1s: the L 1A for managers and executives, and the L 1B for those who have “specialized knowledge” of the company’s product or an advanced level of knowledge of processes and procedures of the company. The CIS definition of managerial capacity includes management of an organization or management of a function of the company. This category does not include front line supervisors unless the employees they supervise are other professionals.

Usually an L 1 petition may be initially approved for three years, and extended in two-year increments. An L 1A manager/executive may normally stay a maximum of seven years in the U.S.; an L 1B “specialized knowledge” professional may stay a maximum of five years.

The usual procedure is to file an individual L 1 petition with the CIS. For larger companies with many transferees each year, there is an option to file for a blanket L 1 petition approval. Upon approval of a blanket petition, individual petitions no longer need be filed with the CIS, thus cutting processing times. CIS processing times for individual L 1 petitions can be several months. An additional $1225 fee can be paid to the CIS for “premium processing” so that the CIS will adjudicate an L 1 (or H 1B) petition within 15 days (or at least issue a request for more evidence needed to promptly adjudicate such a petition).

H. O 1 Extraordinary Ability

The O 1 category is for aliens with extraordinary ability in the sciences, arts, education, business, or athletics. Generally extraordinary ability means a level of expertise indicating that the individual is one of a small percentage who has risen to the top of his/her field. The CIS guidelines for proving “extraordinary ability” under this category are virtually the same as those for the First Preference “extraordinary ability” petitions:

• Major prizes or awards.
• Membership in organizations which require outstanding achievement.
• Cites to or articles about the individual’s work.
• Participation as a judge of the work of others.
• Evidence of original scientific, scholarly, or business related contributions.
• Authorship of scholarly articles.
• Employment in a critical or essential capacity for an organization or establishment that has a distinguished reputation.
• High salary in relation to others in the field.

Criteria for artists:
• Perform services as a lead/starring participant in a production or event with a distinguished reputation.
• National or international recognition for achievements.
• Commercial or critically acclaimed success.
• Significant recognition from critics, experts, or government agencies.
• High salary in relation to others in the field.

I. E 2 Treaty Investor & E 1 Treaty Trader

Nationals of over forty countries with an appropriate treaty might qualify for a nonimmigrant treaty trader or treaty investor visa. A treaty trader normally is involved with an exchange of goods or services between his/her country and the United States. A treaty investor must invest a “substantial” amount of capital into a business enterprise that he/she will personally develop and direct. The treaty investor must place the funds at risk, have other resources, and not merely invest a marginal amount of capital into the business for the purpose of earning a living for the investor and his/her family. The amount of the investment is not defined but rather depends on the nature of the enterprise.

J. Other Types of Employment-Based Nonimmigrant Visas

There are many other types of employment related nonimmigrant visas for qualified foreign nationals who will be employed in particular positions. These categories include but are not limited to: A visas for diplomats and their dependents, D visas for crewmen, H 2A visas for seasonal agricultural workers, H 2B visas for temporary skilled or unskilled laborers, I visas for international media representatives, M visas for vocational students, P visas for athletes and group entertainers, Q visas for participants in international cultural exchange programs, and R visas for certain religious workers.

V. DEVELOPMENTS AFFECTING EMPLOYMENT-BASED CASES

A. Department of Homeland Security

The most significant change arose from the Homeland Security Act of 2002 (Pub. L. No. 107 296, 116 Stat. 2135) which moved both immigration enforcement and adjudication services from the now defunct Immigration & Naturalization Service into the new Department of Homeland Security. Security and enforcement concerns continue to take priority over timely adjudications of applications for immigration benefits submitted by employers for foreign national employees and by U.S. citizens and residents for their relatives.
The Department of Homeland Security includes three distinct immigration agencies. Customs and Border Protection (CBP) focuses on the movement of goods and people across our borders. Immigration and Customs Enforcement (ICE) focuses on the interior enforcement of immigration and customs laws. Citizenship and Immigration Services (CIS) is responsible for adjudications of visa petitions and applications for naturalization, asylum, or refugee status.
This law requires in Section 458 that the Department of Homeland Security (DHS) eliminate immigration backlogs. Prompt adjudication of applications and petitions for immigration benefits is now a priority for the CIS. The immigration courts remain under the Executive Office for Immigration Review of the U.S. Department of Justice. The functions of the INS moved to the DHS on March 1, 2003.

B. Special Registration

The Department of Homeland Security (DHS) implemented a call in “Special Registration” program which required males over age sixteen who are citizens or nationals of designated countries and who are not U.S. citizens, permanent residents, diplomats, refugees or asylees to register with the CIS. This registration was part of the National Security Entry Exit Registration System (NSEERS), which was the DHS’ first step towards developing a comprehensive entry exit program. The first group required to appear for registration interviews were citizens and nationals from Iran, Iraq, Libya, Sudan and Syria. Another twenty countries were later added to the list. This registration required a designated foreign national to discuss with a CIS officer his stay and activities in the U.S, provide fingerprints, and have his photo taken.

C. Employment Authorization for Dependent Spouses

Legislation now allows E 2 spouses of treaty traders and treaty investors, as well as L 2 spouses of L 1 intracompany transferees, to work and obtain employment authorization documentation from the CIS. The CIS is considering employment authorization for H-4 spouses but this has not yet been implemented.

D. Premium Processing

An additional $1225 fee can be paid to the CIS for “premium processing” so that the CIS will adjudicate an H 1B, O 1, L 1, or certain other types of nonimmigrant petitions within 15 days (or at least issue a request for more evidence needed to promptly adjudicate such a petition).
Premium processing is available for most employer I-140 Immigrant Petitions for Alien Worker. Presently the CIS will not accept premium processing for multinational manager or for national interest waiver petitions.
E. Extensions of H-1B Nonimmigrant Status
Section 11030 of the 21st Century Department of Justice Appropriation & Authorization Act allows an H 1B nonimmigrant employee to obtain extensions beyond the normal maximum time limits if an alien labor certification has been pending for over one year or if an I-140 petition was approved and visa numbers are unavailable.

F. Monitoring of International Students

F 1 academic students, M 1 vocational students, and J 1 exchange visitors are now closely monitored by educational institutions and the CIS under the new Student and Exchange Visitors Information System (SEVIS) mandated by the U.S.A. Patriot Act.

G. Protecting Immigration Benefits for Children

The Child Status Protection Act amended the Immigration & Nationality Act on August 6, 2002. Children of foreign nationals seeking U.S. permanent resident status previously lost the opportunity to immigrate with their parents if they reached age twenty one while waiting for the CIS to adjudicate pending immigration applications. Fairly complicated rules essentially require the CIS and U.S. consular officers to establish such a child’s age as the date of filing and not the date of adjudication of the application for permanent resident status.

H. Address Change Notification Requirements

The CIS now requires all foreign nationals, including permanent residents, to report any change in address within ten days of moving. Failure to provide notification is a misdemeanor offense that could result in a fine and/or sentence. If the failure to provide notice is found to be willful, the alien could be removable from the U.S. The form to use for an address change is the AR 11 which is available in the Immigration Forms tab on the CIS website at:

http://www.uscis.gov

I. Additional Security Clearances

Due to the terrorist attacks of 9/11, and to enhanced computer technology, many additional security checks must be completed before the CIS or U.S. consular officials will approve nonimmigrant visas, immigrant status, or naturalization for U.S. citizenship. Employers have seen and will probably continue to see longer delays before foreign national workers and their dependents will be able to enter the U.S. or obtain extensions of status. Congress passed the Enhanced Border Security and Visa Entry Reform Act of 2002, which included a new security system known as CHIMERA. Many other new laws such as the National Security Entry Exit Registration System (NSEERS) seek to coordinate security clearances between the CIA, FBI, CIS, CBP, ICE, Department of State, and other agencies. The move of all immigration functions into the Department of Homeland Security sought to coordinate these new security clearances; however, applications and petitions for employment authorization and other benefits continue to be delayed.

J. Employer or Job Changes While Immigration Applications Pending

Downturns in the economy trigger new problems for employers as well as foreign national employees. The U.S. Department of Labor issued requirements relating to applications for permanent alien labor certifications in situations when the employer has laid off workers during the prior six months as well as when there have been layoffs in a particular industry. If the employer has terminated workers, the employer must provide documentation about the number of workers laid off in the particular occupation and provide lawful, job related reasons that any laid off workers were rejected for the position for which certification is sought. Laid off foreign national employees often must scramble to change to another nonimmigrant immigration status, if eligible, or seek to take advantage of the H 1B portability provisions. A useful change allows an intending immigrant whose adjustment of status application has been on file for over 180 days to transfer to a “same or similar” position with another employer without abandoning the pending immigration applications if the employer’s I-140 petition has been approved. There are still no regulations to interpret the definitions of a “same or similar” position; however, many of these cases have been approved by the CIS.

VI. FAMILY BASED IMMIGRANT STATUS

The immediate relatives of U.S. citizens do not come under the quota system, so immigrant visas are always available. “Immediate relatives” are defined as spouses of U.S. citizens, parents of U.S. citizens over the age of 21, and unmarried children (under the age of 21) of U.S. citizens. Note that the spouse of a U.S. citizen will only be granted “conditional” permanent resident status for an initial two years if the couple has been married less than two years at the time of adjudication. The CIS will want to verify at the end of this period that the couple still resides together and/or that no fraud was involved. A waiver could be sought if the couple divorced during this period. Waivers could also be sought if the U.S. citizen died, or based upon extreme hardship or if the foreign national was battered or subjected to extreme cruelty.

If not an immediate relative, an applicant must show a relationship under one of the family based categories listed below:

Family Based Categories

1st Preference: Unmarried sons and daughters (age 21 or older) of U.S. citizens.

2nd Preference: Spouses and children (under 21) of permanent residents, or unmarried sons and daughters (over age 21) of permanent residents.
3rd Preference: Married sons and daughters of U.S. citizens (over age 21).

4th Preference: Brothers and sisters of U.S. citizens (over age 21).

A. First Preference

The First Preference category is reserved for the adult children of U.S. citizens, i.e., those children who are now over the age of 21 and therefore traditionally fell out of the “immediate relative” definition. The adult child must be unmarried. As with all the family based categories, there is typically a backlog since there are more applicants than visas available under the annual allocations. Currently applicants from most countries have waited over seven years for a visa number to become available in this category. Applicants from certain countries have faced an even longer backlog: ten years for nationals of the Philippines. Visa numbers in this category for Mexican nationals are only available if they registered prior to June 1, 1994. Unless Congress increases the annual limit of 226,000 immigrant visas for family based categories, it seems likely these backlogs will continue to increase. The Child Status Protection Act (CSPA) allows some children to still be considered under the Second Preference category even if they turned age twenty one before their cases were completed.

B. Second Preference

The Second Preference category is split into two subcategories: 2A is reserved for the spouses and unmarried children (under the age of 21) of permanent residents, and 2B is reserved for unmarried children age 21 or over. There is always a backlog. The waiting period for most 2A applicants has recently been about eight months, and seven years for 2B applicants. The backlogs are even longer for 2B applicants from Mexico and the Philippines.
Note that this category is reserved for petitioners who have lawful permanent resident (“green card”) status. After a certain period of time (usually three to five years) a permanent resident has the option to seek naturalization, i.e., become a U.S. citizen. In some cases it may be in the interest of the permanent resident to seek citizenship in order to petition for certain relatives and avoid the long delays in the Second Preference category.

C. Third Preference

The Third Preference category is reserved for the married sons and daughters of U.S. citizens, regardless of age. The backlog for most Third Preference applicants is now nearly eleven years; however, for applicants from Mexico it has been almost twenty-one years, and applicants from the Philippines have been waiting over twenty-one years.

D. Fourth Preference

The Fourth Preference category is reserved for brothers and sisters of U.S. citizens. Note that a U.S. citizen must be at least age 21 to petition for siblings. This category also has significant backlogs. Currently applicants from most countries have been waiting over twelve and a half years; however, for the Philippines the wait has been over twenty-three years. In other words, a U.S. citizen originally from the Philippines who filed petitions for brothers and sisters on or before May 15, 1991 would only now be able to immigrate his/her siblings born in the Philippines. Once permanent residents obtain U.S. citizenship, they sometimes petition for other family members. Since so many people have obtained their citizenship during the intervening years, it is expected that the backlogs in this category will continue to grow and reach thirty years or longer.

VII. CONCLUSION

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 made our complex immigration system even more restrictive for aspiring immigrants. In 2003, the legacy Immigration & Naturalization Service (INS) was absorbed by the Department of Homeland Security. This complete reorganization as well as the concentration on security issues might result in even longer delays for families seeking to reunite and for employers seeking to obtain temporary as well as permanent employment for needed foreign national personnel. Despite these concerns, there have been a few changes that benefit employers and their foreign national employees as well as U.S. residents and citizens sponsoring their relatives.