February 2012 Archives

February 21, 2012

Why You Need to Update Your Address with USCIS

All non-US citizens inside the US are required by law to notify the government of any changes of their addresses. This is a cautionary tale about what can happen if they don’t.

One recent Monday evening, a client came to me because, just a few short hours earlier, his wife had been arrested and taken into custody during their immigration interview. During our consultation, he provided me with the following background information.

His wife previously lived in Minnesota. Her then-husband didn’t trust lawyers, so they submitted all of the paperwork to USCIS on their own. Unfortunately, the marriage didn’t work out and they got divorced. Wanting a fresh start, she moved to California.

Several years later, she met the love of her life in Los Angeles. They got married and she again submitted the applications to USCIS — on her own — for her to obtain a green card. Everything seemed to be progressing normally and the happy couple was summoned to the federal building for their interview.

Unbeknownst to the client, several months before the paperwork was submitted, USCIS had denied the wife’s previous application for adjustment of status. The notice of the denial — and the notice of a hearing date in front of the Immigration Court — were sent to the address that USCIS had on file for the wife . . . in Minnesota. When she didn’t appear for her hearing, the Immigration Court proceeded on its case without her and issued an order of removal in absentia.

When the couple went in for their interview at the Los Angeles federal building, they essentially walked into a trap. As soon as the immigration officer confirmed her identity, she was taken into custody by Immigration and Customs Enforcement agents. ICE began to prepare for her deportation. (See also Immigration Marriage Interview: Hollywood Myths Dispelled.)

The fastest way to stop this deportation would be to file a motion to reopen with the Court in Minnesota asserting that the client never received notice of the court hearing, which is what the client retained me to do.

I interviewed the wife in her jail cell. I was able to piece together all of the events that had resulted in her being in jail: the prior application in Minnesota, her ex-husband’s failure to notify her of the court date in Minnesota (perhaps out of vindictiveness?), and the events that led her to Los Angeles. I asked her why she and her husband didn’t hire a lawyer to help them and her reply was: “We read some articles on the internet that explained how we could do it ourselves.”

Three days later, the motion and all of the supporting documents were provided to FedEx for priority overnight delivery. On Friday, the Immigration Court in Minnesota received the motion and placed a stay of removal in effect. I also worked with the local ICE Office of Detention and Removal Operations to ensure that they were aware that the motion prohibited any further deportation actions. A week later, the Immigration Court granted the motion and my client’s wife was released.

How could the client’s wife have avoided being placed in jail on the verge of deportation? Simple. First, keep her address updated, as required by law. Second, a good lawyer would have checked for prior immigration applications before submitting any new applications.

I invite you to come talk to me about your immigration questions . . . preferably before someone ends up in ICE custody.

February 7, 2012

H-4 Work Authorization and Other Reforms to Attract and Retain Highly Skilled Workers

Magnet with Key.jpg
Last week, Department of Homeland Security announced several proposed reforms to "attract and retain highly skilled workers." These reforms include employment authorization of certain H-4 spouses and other concrete incentives.

DHS released a press release describing these administrative reforms, which would impact the benefits and the adjudications process in several different ways, ultimately benefiting employers, universities, scholars and workers (and their spouses):

  • Allowing H-4 dependent spouses to apply for EADs (employment authorization documents) if the principal H-1B spouse has extended their period of stay under AC 21 Section 104(c) or 106(c)
  • Expanding STEM OPT extensions to F-1s whose underlying or previous degrees were STEM related, even if their current course of study is not a STEM major
  • Expansion of the list of eligible STEM majors
  • Allowing F-1 spouses to engage in part-time studies other than vocational or recreational classes
  • Giving universities and colleges more flexibility to increase the number of DSOs or Designated Student Officers at universities and colleges to meet both the administrative and guidance needs of incoming students
  • Increase the type of evidence that Outstanding Professors and Researchers can provide in order to establish eligibility to include "comparable evidence"
  • Allow for the 240-day continued employment authorization of E-3s and H-1B1s upon timely extension, which is already the case for H-1s and L-1s

    At present, the proposed reform to allow EADs for H-4 dependent spouses is in rulemaking, though at a very early stage. We should be prepared to hear updates on the process of each of these administrative reforms, though we have been notified that changes will take time. It is still encouraging in that we have some concrete information on how such reform will impact the highly skilled workers and their spouses who are waiting in the priority date queues or just beginning to prepare for H-1Bs, labor certifications, national interest waivers, extraordinary ability workers and outstanding researcher or professor petitions, etc.

    If you are interested in learning more about these administrative reforms, be sure to subscribe to our blog for updates. If you have a case that you'd like for us to assess, call the business immigration law attorneys at Fong & Aquino. ---ecf

  • February 6, 2012

    Circuit Court to Announce Prop. 8 Decision on Tuesday

    Thumbnail image for rainbow_flag.gifThe issue of same-sex marriage is an important issue. Fong & Aquino gets questions all the time at our offices in Los Angeles and Palm Springs, and throughout the nation from US citizens who wish to immigrate a same-sex spouse. The Los Angeles Times is reporting that the US Court of Appeals for the Ninth Circuit in San Francisco, California will release its decision regarding the constitutionality of Marriage Equality and Proposition 8 on Tuesday, 7 February 2012 at 10:00 a.m. (PST).

    at Fong & Aquino, we are counseling our clients that whether the decision is a positive one or not, couples should not submit I-130 Family Petitions and I-485 Applications for Adjustment of Status based on a same-sex marriage without first consulting with an immigration attorney experienced in working with non-traditional families. --jcf