When Immigration Matters

Karen-Lee Pollak

Recent Posts

Enforcement Alone Will Not Solve Immigration Issues

Posted by Karen-Lee Pollak on Thu, Jun 15, 2017 @ 8:50 AM

Managing Partner Page image (1).jpgKaren-Lee PollakKaren-Lee was featured in Law360's Expert Analysis Section writing about President Trump's deportation plan.  

As part of President Trump’s massive deportation plan, several anti-immigration bills have recently come before the U.S. House of Representatives that focus on immigration enforcement. On May 24, 2017, the House Judiciary Committee passed three bills  the “Michael Davis, Jr. and Danny Oliver in Honor of State and Local Law Enforcement Act” (the Davis Act), H.R. 2406, and H.R. 2407. And on the evening of June 7, 2017, the House passed The Anti-Border Corruption Reauthorization Act (H.R. 2213). These four bills create an unprecedented expansion of immigration enforcement.


The first bill, known as the Davis-Oliver Act, H.R. 2431 cracks down on sanctuary cities, and strengthens the authority of U.S. Immigration and Customs Enforcement to arrest and deport unauthorized immigrants by granting states and localities the authority to enforce federal immigration laws. "Sanctuary city" is a broad term applied to jurisdictions with policies in place to limit cooperation or involvement with federal immigration actions. Many U.S. cities, counties and some states have a myriad of informal policies and laws that qualify as "sanctuary" positions.

This bill gives additional authority to and encourages local police and sheriffs to engage in immigration enforcement like Arizona’s SB1070 “show me your papers law”  key provisions of which were held unconstitutional by the U.S. Supreme Court. Not only does the bill authorizes police to arrest and detain anyone based solely on suspicion of being unlawfully present in the U.S., it also prevents local government from restricting its personnel from engaging in immigration enforcement in concert with ICE. This bill passed the House Judiciary Committee even though federal courts have held that local governments violate the Fourth Amendment when they jail individuals without probable cause.

To ensure local law enforcement cooperates in immigration enforcement, the Davis Act calls for the withholding of federal funds from state and local governments notwithstanding Fourth Amendment concerns or the goal of ensuring that victims and witnesses cooperate with law enforcement and report crimes. The bill also creates a private right of action allowing crime victims or their family members to sue localities if the crime was committed by someone who was released by the locality that did not honor an ICE detainer request.

This is particularly disturbing since in April 2017, federal Judge William H. Orrick, blocked the Trump administration from enforcing its threat to take away funds from sanctuary cities. Judge Orrick, in his ruling, sided with jurisdictions such as Santa Clara County in California and the city of San Francisco, who argued that a threat to take away federal funds from cities that do not cooperate with some federal immigration enforcement could be unconstitutional.

In addition, under the Davis Act, if people overstay their visas even by a single day, they could be liable for a six-month prison term. The Davis Act criminalizes unlawful presence and permits the prosecution and incarceration of every unauthorized individual at immense cost to the American people. According to Homeland Security, 628,799 people overstayed their visas in 2016. Furthermore, children who have been afforded protection under the Deferred Adjudication for Childhood Arrival Act (DACA) would no longer be exempt from deportation if they knew they were brought here illegally.

The Davis Act includes many provisions that would heighten visa screening procedures and clearly violates due process for individuals who have already been screened and admitted to the United States. Under this act, a lawfully admitted individual whose visa has been revoked could be removed from the United States without any administrative or judicial review of the decision. The Davis Act would also significantly restrict the ability of consular posts to waive the visa interview process, and imposes burdensome and unnecessary requirements on individuals seeking immigration benefits such as a thorough review of all social media and genetic testing of those seeking immigrant visas through a family relationship.

The House Judiciary Committee also passed H.R. 2406, which, together with the Davis Act, authorizes 12,500 more ICE detention or deportation officers, and both bills require officers to be armed with M-4 assault rifles and other weapons. H.R. 2407 would also make E-Verify permanent without implementing any of the important due process protections to ensure authorized workers are not mistakenly identified as being unauthorized. These are common errors in the E-Verify pilot system which have erroneously harmed U.S. workers seeking employment.

There is still a long way to go before these bills become law but they are concerning. These bills would require at least eight Democratic votes in the Senate to pass there, assuming all Republicans support the bills.

More likely to become law is the Anti-Border Corruption Reauthorization Act (H.R. 2213) passed by the House on the evening of June 7, 2017, by a 282 to 137 vote  largely on party lines. H.R. 2213 now moves to the Senate, where the Homeland Security and Government Affairs Committee passed a similar bill S. 595 out of committee last month known as the "Boots on the Border Act."

Both bills would weaken the U.S. Customs and Border Protection hiring process by waiving the polygraph examination requirements for certain law enforcement and military applicants. Two-thirds of applicants fail the polygraph. Criticizing these bills, James Tomsheck, former head of the Office of Internal Affairs for CBP stated “I know from first-hand experience that the bills moving in Congress, backed by current CBP leadership desperate to hire more agents, would exacerbate corruption and abusive misconduct by adding unsuitable personnel who conceal criminal pasts …”

The Davis Act would also be extremely expensive. An earlier version of the Davis Act, reported out of the House Judiciary Committee in 2014, received an estimated cost of $23 billion over five years from the Congressional Budget Office. While these bills increase enforcement, of ICE officers and immigration prosecutors, these bills do not address our overburdened immigration courts and the shortage of immigration judges.

Although immigration enforcement is necessary to keep our nation safe, we need comprehensive immigration reform to address both unauthorized and authorized immigration. Enforcement alone will not solve the problems present in our outdated immigration system which has not been revised in 25 years.

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Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at karenlp@pollakimmigration or under her twitter handle law_immigration.

Sponsoring an Employee on an H-1B Visa | Public Access File

Posted by Karen-Lee Pollak on Tue, Jun 13, 2017 @ 9:00 AM

dream-act-button-resized-120.jpgh-1b visaThe H-1B is a non-immigrant visa that allows U.S. employers to temporarily employ foreign workers in a specialty occupation for a period of three years. The visa can be extended for an additional three years. The employer can also employ the employee part-time.

Public Access File 

Regulations require that the employer maintain a public access file which is to be made available for public inspection. As part of the LCA and H-1B visa petition process, the employer must agree to make certain information relating to the LCA available for public examination at the employer’s principal place of business in the U.S. or at the place of employment within one working day after the date on which the LCA is filed with the Department of Labor. Such information is referred to as the Public Access File and should consist of the following items: 

  • A copy of the LCA and related cover pages.
  • Documentation providing the wage rate to be paid to the employee.
  • A detailed explanation of the employer’s system used to set the actual wage to be paid to the employee.
  • Documentation used by the employer to determine the prevailing wage.
  • Documentation evidencing that the employer has complied with the union employee notification requirements, if there is a union.
  • A summary of the employer’s benefits offered to U.S. workers in the same occupational classification, an explanation regarding the difference in benefits offered to such employees if all employees in the same occupational classification are not offered the same benefits and, if applicable, an explanation of any home-country benefits the employee will receive.
  • Additional information is required to be placed in the Public Access File if the employer is H-1B dependent or a willful violator.

The employer should maintain a Public Access File for each employee and should keep this file separate from the employee’s personnel file. The Public Access File must be maintained by the employer for at least one year past the date of the employee’s related employment. 

Additional requirements for H-1B dependent employers. Employers are considered to be dependent if they have less than 25 workers and more than 7 H-1B workers; between 26 to 50 workers and more than 12 H-1B workers; or more than 50 workers with 15% or more of them being H-1B foreign nationals. In this case, H-1B dependent employer must fulfill 2 additional requirements. Displacement of US workers: An H-1B dependent employer must attest that by hiring a H-1B worker, it is not displacing any US worker for a similar position within 90 days before or after filing a H-1B petition. 

Recruitment efforts: The H-1B dependent employer must also attest to making good faith attempts to recruit US workers and offering prevailing wages for this position. 

Terminating an H-1B Visa Holder

Upon terminating an H-1B visa holder, the employer is obligated to pay for the reasonable costs associated with the employee’s return flight home. In most instances, this is not an issue because typically when an H-1B visa holder leaves one employment, he or she is accepting another employment opportunity and, as a result, does not return to his or her home country. 

When Should You File?

The H-1B visa has an annual numerical limit, or cap, of 65,000 visas each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher are exempt from the cap. Additionally, H-1B workers who are petitioned for or employed at an institution of higher education (or its affiliated or related nonprofit entities), a nonprofit research organization, or a government research organization are not subject to this numerical cap.  

Cap numbers are often used up very quickly, so it is important to plan in advance if you will be filing for an H-1B visa that is subject to the annual H-1B numerical cap. The U.S. government’s fiscal year starts on Oct. 1. H-1B petitions can be filed up to 6 months before the start date, which is generally April 1 for an October 1 start date. In recent years there has been more H-1B applications than visas available so USCIS has resorted to a lottery system in selecting H-1B visa applications for adjudication.

Learn More

To learn more about how to sponsor an employee on an H-1B specialty occupation visa, contact the team at Pollak PLLC today.

We are passionate about helping people realize the American Dream, reuniting families, and bringing the best and brightest minds to the U.S. so they can pursue their goals and make a positive, meaningful contribution to the community.

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Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at karenlp@pollakimmigration or under her twitter handle law_immigration.

Sponsoring an Employee on an H-1B Visa | Employer Responsibilities

Posted by Karen-Lee Pollak on Mon, Jun 12, 2017 @ 9:00 AM

dream-act-button-resized-120.jpgh-1b visaThe H-1B is a non-immigrant visa that allows U.S. employers to temporarily employ foreign workers in a specialty occupation for a period of three years. The visa can be extended for an additional three years. The employer can also employ the employee part-time.

Employer Responsibilities 

The first step in the H-1B process is to submit a Labor Condition Application (LCA) to the Department of Labor (Form ETA 9035). The LCA contains a number of important attestations that the employer agrees to. They are the following:

  • Agree to pay the prevailing wage: The actual wage is the wage that the company has set for the position for all employees with similar experience and skill. Usually, the prevailing wage is a wage set by the Department of Labor. The employer must pay the higher of the two wages. If the employee is employed part-time then the salary will be the hourly prevailing wage for the position or the actual hourly salary whichever is higher.
  • Working conditions: The employer must state that employing the foreign national will not adversely affect the working conditions of other similarly employed workers.
  • Strikes, lockouts, and work stoppages: If any of these develop after the Labor Condition Application is filed with the Department of Labor, the petitioning employer must inform the Department of Labor.
  • Notice regarding the LCA: employers must provide notice of the LCA to its employees through posting the LCA on the premises for at least ten business days. The posting must be done in two different conspicuous locations.

Next Topic - Public Access File

The next topic covered in our four part series on the H-1B specialty occupation visa will discuss public access file.

Learn More

To learn more about how to sponsor an employee on an H-1B visa, contact the team at Pollak PLLC today.

We are passionate about helping people realize the American Dream, reuniting families, and bringing the best and brightest minds to the U.S. so they can pursue their goals and make a positive, meaningful contribution to the community.

--

Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at karenlp@pollakimmigration or under her twitter handle law_immigration.

Sponsoring an Employee on an H-1B Visa | Filing Fees

Posted by Karen-Lee Pollak on Sun, Jun 11, 2017 @ 9:00 AM

dream-act-button-resized-120.jpgh-1b visaThe H-1B is a non-immigrant visa that allows U.S. employers to temporarily employ foreign workers in a specialty occupation for a period of three years. The visa can be extended for an additional three years. The employer can also employ the employee part-time.

Filing Fees 

  • Standard (Base Filing) Fee: The standard (base) H-1B visa processing fee is $460 and this is for the I-129 petition. This H1B visa fee is also applicable to transfers, amendments and renewals. 
  • ACWIA (Training) Fee: For employers who have between 1-25 full-time workers, the American Competitiveness and Workforce Improvement Act fee is $750. For employers with 26+ full-time employees, the fee is $1,500. Some organizations are exempt from this training fee including non-profits with affiliations to educational institutions, governmental research organizations and primary/secondary educational institutions. 
  • Fraud Prevention & Detection Fee: This $500 fee is applicable to new H-1B petitioners or those changing employers. This H-1B visa fee is not required for extensions with the same sponsoring employer.
  • Public Law 111-230 Fee: This H-1B visa fee is applicable to companies that have upwards of 50 employees with over half on H-1B or L1 status. The PL 111-230 was suspended in October 2015, but was replaced by PL 114-113 on December 18, 2015. This law requires H-1B petitioners that employ 50 or more employees in the United States if more than 50 percent of these employees are in H-1B, L-1A or L-1B nonimmigrant status to pay an additional $4,000 per applicant
  • Optional H-1B Visa Fees: Premium processing is an option available to those who want to expedite the H-1B visa process. This service is offered by the Department of Homeland Security and guarantees a 15-day time frame. In order to do so you must complete form I-907 along with the $1225 fee. Again, this is one of the optional H-1B visa fees. Another option is to have family members apply to be dependents of the petitioner by filing out Form I-539. Currently, United States Citizenship and Immigration Service has suspended premium processing and it is not available.

Fee Breakdown

Fee type

Fee in USD

Details

 Base filing fee

$460

 For every petition ( went up in Dec 2016)

AICWA Fee
(American Competitiveness and Workforce Improvement Act of 1998)

$750

or
$1,500

 $750 – for employers with 1 to 25 full time employees )

$1500 – for employers with 26 or    more full time equivalent employee )

Fraud prevent & detection fee

$500

Only applies to New H1Bs and Change of employers petitions only. Does not apply to Chile and Singapore based H1B1 petitions

Fee based on Public Law 114-113

$4000

Applicable, if 50 or more employees and more than 50% of employees are on H1B or L1 Visa status, required for new H1B filing and change of employers.
Read H-1B fee increase $4000 rule to check if it applies to your case

Premium processing fee (Optional)

$1,225

 For faster adjudication within 15 calendar days.   USCIS has currently suspended premium processing for H1-B visas

Immigration Attorney Fee

 

 

 

Who Pays Filing & Legal Fees 

  • For legal fees the H-1B employer cannot require that an employee pay for or reimburse the employer for attorney fees associated with an H-1B Visa.
  • The employer is required to sign an attestation in the labor condition application that they paid the fees and that they will not seek reimbursement from the employee.
  • The same rule applies to most filing fees except that the employee can pay the premium processing fee

Next Topic - Employer Responsibilities

The next topic covered in our four part series on the H-1B specialty occupation visa will discuss employer responsibilities.

Learn More

To learn more about how to sponsor an employee on an H-1B visa, contact the team at Pollak PLLC today.

We are passionate about helping people realize the American Dream, reuniting families, and bringing the best and brightest minds to the U.S. so they can pursue their goals and make a positive, meaningful contribution to the community.

--

Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at karenlp@pollakimmigration or under her twitter handle law_immigration.

Sponsoring an Employee on an H-1B Visa | Who Qualifies?

Posted by Karen-Lee Pollak on Sat, Jun 10, 2017 @ 9:00 AM

dream-act-button-resized-120.jpgh-1b visaThe H-1B is a non-immigrant visa that allows U.S. employers to temporarily employ foreign workers in a specialty occupation for a period of three years. The visa can be extended for an additional three years. The employer can also employ the employee part-time.

Must Be a Specialty Position 

  • A bachelor’s degree or higher degree or its equivalent is normally the minimum requirement for the particular position; 
  • The degree requirement is common for this position in the industry, or the job is so complex or unique that it can only be performed by someone with at least a bachelor's degree in a field related to the position;
  • The employer normally requires a degree or its equivalent for the position; or
  • The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's or higher degree. 

Next Topic - Filing Fees

The next topic covered in our four part series on the H-1B specialty occupation visa will discuss filing fees.

Learn More

To learn more about how to sponsor an employee on an H-1B visa, contact the team at Pollak PLLC today.

We are passionate about helping people realize the American Dream, reuniting families, and bringing the best and brightest minds to the U.S. so they can pursue their goals and make a positive, meaningful contribution to the community.

--

Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at karenlp@pollakimmigration or under her twitter handle law_immigration.

How Can You Sponsor an Employee for a Work Visa?

Posted by Karen-Lee Pollak on Fri, Jun 09, 2017 @ 11:30 AM

Find The Right People written on road sign-763974-edited.jpegFind The Right People written on road sign-763974-edited.jpegWhen a U.S. citizen is not available to fill a position, many employers across the country want or need to sponsor an employee for a work visa. While the process is detailed and complex, here are some fundamental things to keep in mind if this scenario applies (or might soon apply) in your organization:

  • Permanent or Temporary? 

The first thing to determine is whether the employee that you wish to sponsor for a work visa would fill a permanent or a temporary position.

  • Sponsoring Permanent Workers

If the position is permanent, then the foreign employee may apply for permanent residence (a.k.a. “a green card”), provided they have unique skills that fit into one of the five preference categories (noted below). As the prospective employer, you will also need to demonstrate to the Department of Labor’s satisfaction that hiring them will not displace a U.S. worker, or have a negative impact on wages or working conditions for U.S. workers.    

  • Permanent Worker Visa Preference Categories 

There are five permanent worker visa preference categories: First Preference EB-1, Second Preference EB-2, Third Preference EB-3, Fourth Preference EB-4, and Fifth Preference EB-5 (note that EB-5 is for investors, and so typically will not apply to employers who wish to sponsor foreign employees). For a description of each preference category, click here.

  • Sponsoring Temporary Workers

The USCIC has several nonimmigrant categories of temporary workers (noted below). As part of the sponsorship application, you will have to attest to certain commitment and conditions, including that: you will pay a wage that is no less than that paid to similarly qualified workers in the geographic area; you will provide working conditions that will not negatively impact other similarly employed workers; there is no strike or lockout where the sponsored employee would be working. 

  • Temporary (Nonimmigrant) Worker Categories

As noted, USCIS offers several non-immigrant categories of temporary workers, including (but not limited to): H1B Visa - Specialty Occupation; O1 Visa - Extraordinary Ability; L1 - Intracompany Transferee; TN Visa - Nonimmigrant NAFTA Professional. For a description of each category, click here.

  • Working with an Experienced Team

To learn more about how to sponsor an employee for a work visa, contact the experienced Pollak team today. We will help you clearly understand the rules and process — including those that have recently changed and may shift in the near future — and ensure that your application to the USCIS is complete, accurate and timely. Contact us to learn more.

We are passionate about helping people realize the American Dream, reuniting families, and bringing the best and brightest minds to the U.S. so they can pursue their goals and make a positive, meaningful contribution to the community.

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Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at karenlp@pollakimmigration or under her twitter handle law_immigration.

What’s the Difference Between a Green Card and an Immigrant Visa?

Posted by Karen-Lee Pollak on Thu, May 18, 2017 @ 11:30 AM

Portrait of a student peeking behind flag of USA-230779-edited.jpeggreen card vs immigrant visaWhile outside of the legal world and government sector the terms Green Card and non-immigrant visa are sometimes used interchangeably, they are categorically separate types of permits. Here are the key distinctions: 

  • Residence 

A Green Card – which is officially known as a “permanent residence card” – is permanent, and entitles the holder to remain in the U.S. for the unconditional amount of time. Non-immigrant visas (of which there are several types) are temporary, and allow the holder the right to enter and remain in the U.S. for a specified period of time (typically up to a maximum of 6 years in two 3-year terms). 

  • Legal Right to Work

Green Card holders are legally entitled to work in any industry, sector or field, anywhere in the U.S. or its territories. Non-immigrant visa holders may be allowed to work under certain conditions and for a specific employer, depending on the type of visa they hold. 

  • Mobility

Green Card holders may leave and return to the U.S. as often as they wish, provided that their card and passport are valid. Non-immigrant visa holders face restrictions and limitations on travel, such as travel dates, number of re-entries, and so on. Again, the type of non-immigrant visa determines these rules.

  • Citizenship

Provided they have no serious criminal convictions, Green card holders may apply for U.S. citizenship after 5 years (or 3 years if they are married to a U.S. citizen). Non-immigrant visa holders cannot apply for U.S. citizenship. They must first obtain a Green Card and apply accordingly. 

  • Criminal Behavior 

Generally, Green Card holders are granted somewhat more flexibility and tolerance for committing certain non-severe criminal acts. However, non-immigrant visa holders must ensure that they comply with all laws at all times. A transgression that many people (including the courts) might view as relatively minor or non-serious, such as a DUI that does not result in an injury or accident, can result in a non-immigrant visa being revoked by USCIS

  • Voting

This is not a distinction between the two types of permits, but it is worth noting because there is some confusion and misunderstanding around this aspect; especially in light of the prevailing political discourse. Here are the facts: neither Green Card holders nor non-immigrant visa holders have the right to vote. Only U.S. citizens have this right. While it’s true that Green Card holders enjoy many of the rights afforded to U.S. citizens, such as serving in the military, this does not extend to voting in any election (local, state or federal). 

Learn More 

To learn more about the differences between a Green Card and non-immigrant visa, including specific details about various non-immigrant visa types such as (but not limited to): EB-1, EB2, EB-3, H-1B, F-1, R-1, L-1 and more, contact the team at Pollak PLLC today.

We are passionate about helping people realize the American Dream, reuniting families, and bringing the best and brightest minds to the U.S. so they can pursue their goals and make a positive, meaningful contribution to the community.

--

Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at karenlp@pollakimmigration or under her twitter handle law_immigration.

Argument That Trump's Executive is the Same As Obama's Travel Ban is Flawed

Posted by Karen-Lee Pollak on Wed, Feb 22, 2017 @ 10:37 PM

Trump_Obama.jpgTrump_Obama.jpgThe world has closely been watching the chaos that has ensued in implementing and staying President Trump's January Executive Order (the “Executive Order”) announced on January 27, 2017. As everyone knows, the Executive Order bars citizens of Iraq, Syria, Iran, Yemen, Somalia, Sudan and Libya from entering the United States for 90 days, suspends admission of refugees for 120 days and puts Syrian refugee admissions on hold indefinitely. In 2011, Obama’s State Department stopped processing Iraqi refugee requests for six months. I am constantly asked why is there outrage over President’s Trump’s Order but not President Obama’s Order?

Before we look at the merits of the Orders, the first glaring distinction between these Orders is that one was passed by Congress in 2011 with bipartisan support after discussion, revision and tremendous input from White House counsel. The other was drafted by Steve Miller with in-put by Steve Bannon and Trump himself--nobody else. It was not discussed with White House counsel, the Department of State or the Department of Homeland Security. Customs and Border Protection who was charged with implementing the order were only notified a few hours before implementation. 

As to the merits, Trump claims "My policy is similar to what President Obama did in 2011 when he banned visas for refugees from Iraq for six months. The seven countries named in the Executive Order are the same countries previously identified by the Obama administration as sources of terror."  Well are these Orders the same? On a very basic level, I must say yes. They both limit immigration into the United States in the interests of national security. But when you dig a little deeper and read the actual text there is nothing similar about them. 

President Obama’s suspension was in response to a failed attempt by two Iraqi citizens to send money and weapons to Al-Qaida. The Iraqi citizens lived in Bowling Green, Kentucky and entered the USA after lying about their past terrorist activities. The FBI arrested the two men for actions committed in Iraq and trying to assist foreign terrorist groups. Thankfully nobody was injured even though certain individuals in the Trump Administration have recently described this incident as the Bowling Green Massacre. 

President Trump’s ban is preemptive. While I agree, it is far better to be preemptive than to deal with the aftermaths of a terrorist attack, there must be a rational, constitutional basis for the Executive Order that does not discriminate based on religion. None of the refugees or immigrants from the seven countries targeted by the ban have been implicated in any fatal terrorist attack in the United States (although 2 non-deadly attacks implicate citizens of Somalia and Iran). In fact, the perpetrators of 911 came from Saudi Arabia, United Arab Emirates and Egypt. None of these countries are mentioned in the current President’s executive ban, which makes the argument that it is in the interest of national security very weak.  

While President Obama’s ban simply paused the processing of refugee visas for 6 months, President Trump’s Executive Order is a blanket ban. It denies entry to lawful permanent residents who have already been granted the right to live permanently in the USA. It also denies entry to dual citizens and those already issued visas to enter the USA. Further, it bars Syrian refugees indefinitely until President Trump (and nobody else) thinks it’s safe for them to be admitted to the United States. President Obama did not issue a blanket ban on visitors from the seven countries. He also did not retroactively prohibit admission to lawful permanent residents without due process. President Obama’s suspension was also limited to refugees. 

I also get told that the seven countries on the list were countries picked by the Obama administration not the Trump administration. What people are referring is the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 signed into law by President Obama revising the visa waiver program. The visa waiver program allows citizens of certain countries entry to the USA without a visa for up to 90 days. Under the 2015 legislation, citizens of those 38 countries who had traveled to Iraq, Syria, Iran, and Sudan after March 2011 were no longer eligible for the visa waiver. Libya, Yemen, and Somalia were later added to the list. The 2015 Act also complicated the visa application process for citizens of those countries but did not prohibit them from entering the USA. 

President Trump’s order certainly differs from the December 2015 law in its scale. It violates commitments the USA has made under international law and quite frankly is imprudent policy which only bolsters the claims of Jihadist groups that the U.S. is waging a war on Islam. 

A quick fix for the Trump Administration is to withdraw the order and issue a new one that addresses its current pitfalls. If not, the United States Supreme Court will opine on the stay (spoiler alert-the Supreme Court does not like to hear cases where there is no final order in place) and then send the case back to the District Court for trial on its merits. That decision will again most likely be appealed to the Court of Appeals and then ultimately it will go back to the Supreme Court for review of the final order. That is a lot of time our President will be focusing on litigation instead of governing our country. 

Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues.  She can be reached at karenlp@pollakimmigration or under her twitter handle law_immigration.

What You Need to Know About Expedited Removal & Trump's New Executive Order

Posted by Karen-Lee Pollak on Wed, Feb 22, 2017 @ 10:25 PM

executive_order_immigration.jpgexecutive_order_immigration.jpgexecutive_order_immigration.jpgexecutive_order_immigration.jpgOn February 21, 2017, DHS Secretary John Kelly released a pair of memos implementing President Trump's January 25, 2017, Executive Orders (EOs) on border and interior enforcement. What do these memoranda mean and what can you do if you or a relative are confronted by Immigration and Customs Enforcement in Expedited Removal?

Expedited removal is a procedure that allows the Department of Homeland Security (“DHS”) to remove a noncitizen from the United States without a hearing before an immigration judge or the Board of immigration Appeals. Where a noncitizen arrives at a port of entry and is inadmissible due to misrepresentations or false claims to U.S. Citizenship or does not possess valid documents for entry they are subject to expedited removal. 

To date, DHS has limited its application of expedited removal to noncitizens inadmissible for one of the above-stated grounds who either arrive at a port of entry or are apprehended within 14 days of their arrival and within 100 miles of an international land border.

Expedited removal may also occur if a person is apprehended at a place other than a port of entry and is admissible due to one of the two above grounds, has not been admitted or paroled into the USA and cannot show that they have been present in the USA for at least two years. 

Expedited removal, as applied by DHS, does not have any of the procedural protections of a hearing before an Immigration Judge. The DHS officer who is authorized to issue an order of expedited removal operates as prosecutor and judge and often arrests an individual and orders him or her deported on the same day. With limited exceptions, the government takes the position that noncitizens subject to expedited removal have no right to an appeal. At least one court has even held that certain immigrants in expedited removal proceedings have no right to counsel. United States v. PeraltaSanchez, Nos. 14-50393, 14-50394, _ F.3d_, 2017 U.S. App. LEXIS 2165 (9th Cir. Feb. 7, 2017). 

Application for Asylum and/or Fear of Returning to Your Home Country

If at any time during the expedited removal, an individual expresses intent to apply for asylum or fear of returning to their home country, the DHS Officer must refer them to an asylum officer for an interview. Upon referral, the asylum officer will conduct a “credible fear interview,” which is designed “to elicit all relevant and useful information bearing on whether the applicant has a credible fear of persecution or torture.

If the asylum officer determines that the individual satisfies the credible fear standard, the applicant is taken out of the expedited removal process, is served with a Notice to Appear, and is placed in removal proceedings before an immigration judge.

If the asylum officer makes a negative credible fear determination, the officer must provide a written record of the determination. Upon request, the individual must be provided with prompt review of the determination by an immigration judge. If the immigration judge determines that the individual has a credible fear of persecution, the expedited removal order will be vacated and DHS will institute removal proceedings. If the immigration judge determines that the individual does not have a credible fear, the case will be remanded to DHS to execute the expedited removal order.

Does the New Executive Order Expand Expedited Removal?

The new Executive Order instructs the Secretary of Homeland Security to apply expedited removal to the fullest extent of the law. It has not been implemented yet and Secretary Kelly has advised that he will publish in the Federal Register who will be subject to Expedited Removal and such notice may state the extent to which Expedited Removal is expanded from its current application. It is possible that immigration officers will use expedited removal against any noncitizen apprehended anywhere in the USA and who entered the USA without inspection less than 2 years prior to the date of expedited removal.

It is too early to know how DHS will implement an expansion of expedited removal. DHS has discretion to elect between issuing an expedited removal order, allowing withdrawal of an application for admission or issuing a Notice to Appear and placing the individual in removal proceedings before an immigration judge. Requesting that DHS exercise its prosecutorial discretion to either allow withdrawal of an application for admission or issue a Notice to Appear is advisable. Furthermore, the INA provides that an individual may be subject to expedited removal only if she or he “has not affirmatively shown, to the satisfaction of an immigration officer, that [she or he] has been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility.  DHS officers are obligated to put an individual into immigration court proceedings, rather than expedited removal, if that person provides proof that she or he has been present in the United States for two years (or a lesser amount of time depending upon the scope of any expansion of expedited removal).

It is extremely important that if you have been here for two or more years you weigh up the pros and cons of carrying evidence that you have resided in the USA for two years.  DHS may incorrectly ignore it, see it as an admission of alienage and use it as proof against the individual either of unlawful status or working without work authorization.  If you do decide to carry such evidence, evidence may include any applications you have filed with immigration and/or documents that evidence you are eligible for an immigration benefit such as marriage to a United States citizen or Lawful Permanent Resident. It can also include tax returns, school, work, medical and bank records. 

Finally, have a back-up plan for small children or elderly family members if you are placed in expedited removal. Who will pick up your children from school? Who will care for them if you are placed in expedited removal? Perhaps consult with attorneys about guardianship and power of attorney documents for medical and other important decisions if you are suddenly removed from your family with little or no notice.   And for all the permanent residents and citizens reading this—call your representatives daily and let them know that we are a nation of immigrants. It is unamerican to tear families apart. This is not who we are as a nation. 

Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues.  She can be reached at karenlp@pollakimmigration or under her twitter handle law_immigration.

September Visa Bulletin and What Lies Ahead for Fiscal Year 2017

Posted by Karen-Lee Pollak on Tue, Aug 16, 2016 @ 3:47 PM

E--Documents_and_Settings-mpollak-My_Documents-My_PowerPoints-Statue_of_Liberty_&_US_Flag-resized-6.jpg

E--Documents_and_Settings-mpollak-My_Documents-My_PowerPoints-Statue_of_Liberty__US_Flag-resized.jpgThe U.S. Department of State (DOS) issues a monthly visa bulletin summarizing the availability of immigrant visa numbers.  The DOS has now issued the September 2016 Visa Bulletin.  This is the final visa bulletin for fiscal year 2016, and the new FY will begin October 1st.   

CURRENT EMPLOYMENT BASED VISA BULLETIN.  MONTH OF SEPTEMBER 2016.

EMPLOYMENT BASED:  COMPARING AUGUST 2016 VISA BULLETIN TO SEPTEMBER 2016 VISA BULLETIN

First Preference, EB1.  Cutoff date of 1/1/2010 for India and China remain the same. 

Second Preference, EB2.  India has advanced by a few months but continues to be retrogressed.   Cutoff date of 2/1/2014 remain in place for the all chargeability areas plus El Salvador, Guatemala, Honduras, and Mexico.  The cutoff date of 01/01/2010 for China remains unchanged.

Third Preference, EB3.  China remains the same. The rest of the cutoff dates have moved forward. 

Other Workers, Third Preference, EB3.  China remains the same.  The rest of the cutoff dates have moved forward.

Fourth Preference, EB4.  All have remained the same. 

Fifth Preference, EB5.  All have remained the same. 

 CURRENT FAMILY BASED VISA BULLETIN.  MONTH OF SEPTEMBER 2016.

 FAMILY BASED:  COMPARING AUGUST 2016 VISA BULLETIN TO SEPTEMBER 2016 VISA BULLETIN

F1.  Cutoff dates have moved forward by a few months. Mexico only moved forward by a couple of weeks. 

F2A.  Have remained unchanged for all categories.

F2B.  Cut off dates for China, India and worldwide have jumped to 2/1/2010 .   

F3.  China, India and all chargeability areas remain unchanged. Mexico jumped ahead by a few weeks and the Philippines by a few months. 

F4.  China and India remained unchanged.  All chargeability areas jumped ahead by a few weeks, while the Philippines jumped ahead by a month. Mexico also jumped ahead, but by a few days.

 

         

INSIGHTS AND PREDICTIONS FROM CHIEF OF VISA CONTROL AND REPORTING-DOS, CHARLIE OPPENHEIM

Please note these are only short-term predictions.  “Charlie must make assumptions regarding upcoming demand based on the available data and his prior experience in an effort to stabilize Final Action Date movements. Charlie prefers to advance the Final Action Dates conservatively in the hope of avoiding a retrogression later in the fiscal year, especially in categories that are subject to upgrades and downgrades. Unfortunately the need to generate sufficient demand to use all numbers available under the annual limits often requires aggressive forward movement of the dates.” 

 

As noted in AILA’s DOS Liaison Committee’s monthly report, the following is a summary of a check-in with DOS’s Charlie Oppenheim (AILA Doc. No. 14071401 | Dated July 26, 2016):

 

  • “Charlie projected possible Final Action Date movement for September.
  • EB4. Though EB-4 Mexico and EB-4 India will become current again in October, the prospects for a full recovery for EB-4 El Salvador, Guatemala, and Honduras are much less likely. A 2015 cut-off date will likely be established in these categories for October, with date(s) moving forward slowly through the next fiscal year. However, uncertainty surrounding the movement of the EB-4 Final Action dates for these Central American countries remains, given the lack of visibility into the number of adjustment of status filings that were received in April 2015, prior to the establishment of the cut-off date in May.
  • Family-Based Projections. Charlie expects a full recovery from retrogressions in all of the family-based categories in October, with the exception of F-4 China and F-4 India which will take some time. Beginning in November 2016, beneficiaries of F-4 China and F-4 India started responding to NVC Agent of Choice letters in larger numbers, which has given Charlie better visibility into the demand in these categories, but ultimately resulted in the retrogression of these cut-off dates.
  • F-4 China, which previously shared the F-4 Worldwide Final Action date until retrogressing in June (AILA Doc. No. 16050607) to January 1, 2003, while this category will not advance in September, there should be a full recovery to the prior Final Action date of July 22, 2003 by November.
  • Similarly, F-4 India also shared the F-4 Worldwide Final Action date until it retrogressed in June. Charlie continues to predict that the Final Action date for F-4 India will remain at January 1, 2001 through September. A full recovery of this category to the Worldwide level will not happen in October. Given the high level of demand, the Final Action date should advance to around November 2002 in October, with a full recovery unlikely to happen prior to June 2017.
  • Charlie will be watching the F-2A and F-3 preference categories very carefully. Both categories are likely to retrogress temporarily in September, and then return to their respective August 2015 Final Action dates in October.
  • EB Preference Categories. EB-2 India will continue to track one week ahead of the EB-3 India Final Action date in September.  EB-3 Worldwide has been hovering close to “current” for some time, and is expected to do so through at least October.
  • October Final Action dates for the EB-5 Regional Center categories remain uncertain as that category will sunset unless Congress acts prior to the end of the fiscal year.
  • In setting cut-off dates for EB-1 China and EB-1 India, Charlie hoped to avoid having to establish a cut-off date for EB-1 Worldwide. Charlie expects that EB-1 China and EB-1 India will become current again in October, or November at the latest.”

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