Change to law for widow(er)s of US Citizens

For years, widows and widowers of United States Citizens were not eligible to apply for lawful permanent resident status (Green Card) unless they showed, among other things, that they had been married at least two years and that they applied within two years of the death.

Recently, the U.S. government decided to amend that law and USCIS has subsequently changed their policy regarding widow(er)s petitions to make it easier for them to apply for lawful immigration status in the United States.

The major change is the removal of the two-year marriage requirement previously necessary for a widow(er). Additionally, when a widow(er) qualifies as an immediate relative under the law, his or her unmarried minor children will also qualify for the same status. The law applies equally to widow(er)s living abroad, who are seeking immigrant visas and widow(er)s in the United States, who want to become permanent residents based on their marriage. Also, the two year deadline to file a petition for immigrants who became widow(er)s prior to October 28, 2009 has been extended to october 28, 2011, a date which is just around the corner. So a lot of people who thought previously they would not be eligible or had their petition denied because of the 2 year requirements could now file a new petition, have their old petition converted or file a motion to reopen their case.

This is however fairly new legal territory and potential petitioners need to tread carefully.

A useful memo on the new law can be found on the USCIS website here. There is also a Fact Sheet available here. However, these memo and fact sheet are more useful for attorneys than the general public. And the potential immigrants need to be warned that even if they qualify for such a petition, this might not be the smooth path to citizenship that they believed it was.

The new law, for example, does not make any exceptions or give preferential treatment to any immigrant widow(er)s who have had previous immigration violations. These types of petitioners will need to file additional applications for waivers of those violations and they will most likely need to depart the United States and apply for a visa and waiver from abroad. Although there is a program called parole-in-place to allow military widow(er)s to remain in the United States during the pendency of the application process, this benefit has not been extended so far to other widow(er)s. The law regarding widow(er)s is complex and it would be highly advisable to consult with an attorney before filing anything.

Free Immigration Law Fair in Los Angeles on May 6

For those of you residing in the Los Angeles area, the Los Angeles County Bar Association (LACBA) Immigration Section has scheduled its annual “Law Day” Immigration Information Fair, for Friday, May 6, 2011.

PLACE: La Placita Church (patio), located at " Olvera Street ", 535 N. Main St. Los Angeles , CA 90012 .

TIME: 9:00 AM to 2:00 PM

The goals are to:

1) Provide professional legal advice concerning immigration cases;

2) Deter the immigrant community from seeking out “notarios” or immigration “consultants”;

3) To discuss immigrant rights;

4) To promote a better understanding of our legal system in the eyes of the immigrant community and;

5) To support the pro bono responsibilities of attorneys.

For more information, go to LACBA's official website here.

USCIS Assoc. Director testifies about H1B visas

This morning, Donald Neufeld, Associate Director for the USCIS, testified before the House Committee on the Judiciary, Subcommittee on Immigration Policy and Enforcement on "H-1B Visas: Designing a Program to Meet the Needs of the U.S. Economy and U.S. Workers."

As I explained in an earlier blog, H1B visas are temporary visas for foreign workers to work in the United States for a certain period of time. They do not lead to permanent resident status or citizenship, and there are a limited number of visas for a great many applicants, forcing every petitioner to rush their applications before the visa numbers are exhausted, and they are exhausted very quickly each year.

The Associate Director explains procedural requirements to petition for an H1B visa, talks about Requests for Evidence (RFEs) which many petitioners and attorneys have complained about being repetitive and unduly burdensome (concerns that Neufeld dismisses) and also talks about fraud-prevention measures, including surprise on-site visits, that resulted in approximately 13%-14% of fraudulent petitions that were revoked.

The entire testimony can be read here.

Immigration Attorney sentenced to 17 years for corruption

In my practice, I often get clients from so called "developing" nations sometimes referred to as "third world" countries where government corruption is high. Actually, it is a daily facet of life. For many clients, paying off a government official to speed up a case or get an approval is not only routine, it IS the rule of law. So sometimes, we engage in an awkward, uncomfortable conversation where they are assuming that I, as a private attorney, have some know-how or behind the scenes "connection" to guarantee a speedy or successful outcome in their immigration cases. Of course, that is not the case but even when I protest that not only I don't have any such connections, it is completely morally unethical and criminally illegal to engage in such practices, they often shrug their shoulders or smirk like they don't believe me.

News stories like this one about Constantine Kallas, a former government immigration attorney who DID take hundreds of thousands of dollars in bribes to obtain immigration status for foreigners, (including his housekeeper's daughter!!!) make my protestations seem even less credible. I would like to think that people like this are aberrations and that on the whole our government is not rampant with corruption. At least, there is some comfort knowing the federal prosecutors went against him with all their might and they did not just slap him on the wrist. He was sentenced to 17 years in prison. But it does not make the situation any better for all those individuals who obtained what they thought was lawful status through Mr. Kallas.

What I mean is that it could certainly be possible that the people who paid the bribes to this government attorney, who falsely claimed to them sometimes that he was an immigration judge, and basically let them know it was within his power to grant them relief in what was often a life and death situation, could very well have believed that this was just more of the same bureaucratic corruption that ran rampant in their own countries. That this was the way things were done here. So does that make them accomplices in a crime? Or victims of fraud themselves?

I actually had a client once who was told by a man posing as an immigration officer (with a uniform and badge and everything)at a seminar she was attending that he would speed up her work permit application if she paid him a "fee". My gullible client did, not believing she was doing anything wrong but actually thinking this was a legitimate filing fee, since she was filing her green card application by herself and without any assistance from an immigration attorney. When she came to our office and my then boss researched her case and told her due to the fraudulent activities of that fake officer, she had been placed under a deportation order unbeknownst to her, the poor woman actually FAINTED right then and there in our office, because she was in such shock. Fortunately, when we exposed all the facts to the Immigration Judge and the Department of Homeland Security attorney, they agreed with us that this was case where she should get a chance to undo the mistake and she actually eventually obtained her Green Card. This case was many many years ago when there was not such a frenzy of anti-immigrant sentiments in the popular media. How many victims of Mr. Kallas today will get the same understanding by authorities?

More information about this particular case can be found on the Los Angeles Times website here.

Japanese citizens: no TPS yet but other benefits

Though USCIS has not issued TPS status for Japanese citizens yet, which I hope they will do in light of the increasingly horrific news about the dangerous radiation levels caused by their nuclear meltdown, it has agreed to assist Japanese citizens in the US or Japanese LPRs (Green Card holders) abroad with extensions of their visas in some cases. I personally think being hit by an earthquake, tsunami, and nuclear meltdown all at once would qualify them for temporary protection from USCIS and I really hope that we soon see an announcement for that. For more information about humanitarian assistance and other assistance programs offered by USCIS, you can go to their official website here.

Temporary Protected Status for Japan?

With the news of the devastating earthquake and tsunami hitting Japan, and President Obama's pledge for assistance, I wonder if the next step is for the Secretary of Homeland Security to declare Temporary Protected Status for Japanese citizens.

Temporary Protected Status or TPS is a form of protection for citizens of a certain country who find it impossible to return safely to their country of origin due to the conditions there. The USCIS may grant TPS to eligible nationals of certain countries (or parts of countries), who are already in the United States. Eligible individuals without nationality who last resided in the designated country may also be granted TPS. The Secretary of Homeland Security may designate a country for TPS due to the following temporary conditions in the country:

-Ongoing armed conflict (such as civil war)
-An environmental disaster (such as earthquake or hurricane)
-Other extraordinary and temporary conditions

During a designated period, eligible individuals:

-Are not removable from the United States
-Cannot be detained by DHS
-Can obtain an employment authorization document (EAD)
-May apply for travel authorization

Although having TPS, by itself, does not lead to permanent resident status (a green card), a TPS beneficiary may immigrate permanently under another provision of law if qualified.

The last 2 countries that were granted TPS by the Secretary are El Salvador and Haiti (although not too effectively, according to a former chief counsel for USCIS, which I blogged about previously).

While the application of TPS may leave a lot to be desired, it certainly may be the only option available to many. More information about designation of countries, the application process and whether the applicant can find a path to citizenship based on TPS can be found on the uscis website here.

Stop Notario Fraud

The American Immigration Lawyers Association (AILA) has set up a website to help victims of immigration fraud at www.stopnotariofraud.org. As I mentioned in a previous blog, USCIS Director Alejandro Majorkas has only recently addressed years of complaints by private immigration attorneys, immigration clients and governmental immigration officers about the practice of "notarios", basically unregulated, unlicensed, and often unknowledgeable and unreliable if not outright criminal individuals posing as immigration experts in vulnerable immigrant communities, bilking people out of hundreds of thousands of dollars to apply for immigration benefits they were never eligible for in the first place. The "Stop notario fraud" website provides useful information for victims of this type of fraud, pending more information from USCIS on how exactly they are going to implement the goals of their initiative against notarios.