August News From Trow & Rahal, P.C.

Change is afoot this month with Arizona's immigration statute, and reporters at the popular Washington, DC publication LegalBisnow interviewed Steve Trow to learn more about what the attorneys at Trow & Rahal think about the Department of Justice lawsuit challenging Arizona's immigration law.

Steve said: "Congress dropped the ball on immigration reform, but that doesn't give Arizona the right to run onto the field and pick it up. DOJ needs to get Arizona off the field, then Congress needs to fix our broken immigration system."

For more information on the Arizona law debate, don't miss this month's Immigration Update, which provides additional details about the preliminary injunction that blocked key provisions of the 2010 Arizona Immigration Statute. You'll also find details about the ICE final rule, which allows for electronic storage of Form I-9; USCIS clarification on the O-1 validity period; and we'll tell you about the O-1 and P-1 visa petitions to be adjudicated this month.

Also in this issue: You'll find an article by Linda Rahal, which discusses the controversy surrounding the memo leaked from U.S. Citizenship and Immigration Services. Don't miss it.

As always, we appreciate your comments and feedback. Don't hesitate to contact us to help you with all of your immigration-related needs.

With best regards from all of us at Trow & Rahal,

Steve Trow, Attorney / Owner / Founder, strow@trowlaw.com
Linda Rahal, Attorney / Owner / Founder, lrahal@trowlaw.com
Cynthia Hemphill, Attorney / Owner, chemphill@trowlaw.com

Memo Leaked from U.S. Citizenship and Immigration Services Causes Much Controversy

By Linda Rahal
Attorney / Owner / Founder
Trow & Rahal, P.C.

A new controversy around immigration was unleashed on July 30th when four senior officials at U.S. Citizenship and Immigration Services (USCIS) sent an internal 11-page memo to their director. Entitled, "Administrative Alternatives to Comprehensive Immigration Reform," it outlines possible ways to provide immigration relief administratively – in both legal and illegal immigration.

As one could expect, Republican senators are up in arms, suggesting that the memo indicates that the Obama administration is "conspiring" and "scheming" to allow millions of illegal immigrants to stay and work in the U.S.

Understanding the controversy

The memo was reportedly obtained by Iowa Republican Sen. Charles Grassley, who said that the intent is "to find very secret creative ways to unilaterally circumvent the law and have a backdoor to amnesty."

According to the memo: "The following options … used alone or in combination … have the potential to result in meaningful immigration reform absent legislative action." It also suggests ways to reduce the threat of removal for many illegal immigrants through administrative and regulatory changes, characterizing one as "a non-legislative version of amnesty."

There have been numerous stories in the news about the memo, including passionate requests from Republican senators who have called for an investigation into what they say is "an end-run around Congress."

However, the memo can also be seen as an attempt by the Department of Homeland Security to think open-mindedly about solutions to some of the problems in our immigration system. In fact, many of the solutions proposed could foster economic growth, family unity, and further other goals that serve the country's interest.

USCIS proposals that should NOT be widely controversial, and could assist the business and legal immigration community

Expanding the concept of dual intent. The USCIS memo proposes to extend the concept of dual intent to long-term nonimmigrants, including those with F, O, TN, P, and E visa status. At this time, USCIS regulations only permit individuals holding H-1 (specialized workers) and L-1 (intra company transfers) visa status to be in nonimmigrant visa status while at the same time pursuing their permanent resident status, which is their immigrant ("green card") status. However, foreign nationals holding any other visa status can have potential problems when they re-enter the U.S. after travel abroad if they have started the green card process, because they are not protected by dual intent.

Extending employment authorization to dependent spouses in H-4 visa status. One proposal in the memo would allow the dependent foreign national spouses of people in the U.S. in H-1B visa status to obtain work authorization. Currently, a person holding H-4 status is unable to work in the U.S. Under current regulations, spouses of people who are in another visa status such as L-1 or E-2 are already able to obtain employment authorization. The proposed change would allow spouses in H-4 status to apply for employment authorization in a limited circumstance where the principal H-1B visa holder has started the green card process and has had to extend his or her visa status under specific circumstances.

Creating reasonable grace periods at the end of a nonimmigrant visa status. The memo explains that the current grace period of 10 days at the expiration of a visa status is insufficient. It recommends that USCIS amend its regulations to permit longer periods ranging from 30 to 90 days, depending on the employment category and the overall time spent in the U.S. by the foreign national. It is important to note that by statute, only H-1B visa status has a grace period of 10 days. Most other visa categories do not indicate any grace period at all – except for F-1 students who are given 30 days, and J-1 exchange visitors who are given 60 days.

Expanding expedited service under the Premium Processing Program (PPP). By statute, only certain types of petitions or applications are designated for the PPP, which does allow the payment of an extra $1,000 filing fee to have the case adjudicated in 15 days. The memo recommends expanding the PPP to include additional employment-based classifications – such as changes or extensions of all nonimmigrant status categories, applications for employment authorization, applications for advance parole, and all employment-based immigrant visa petitions (I-140).

Automatic extension of Employment Authorization Document (EAD). Currently, the USCIS is required to adjudicate applications for a work authorization (EAD) document within 90 days. If the application is not filed more than 90 days before the expiration date, or the USCIS takes longer to adjudicate the application, there is a gap in the work authorization for the foreign national until the new EAD is issued. Under a proposal in the memo, USCIS would permit an automatic extension of work authorization for up to 240 days when an application to extend the EAD has been filed prior to its expiration. Note that this is not a new concept. USCIS currently allows this benefit when filing for an extension of nonimmigrant visa petitions, where the foreign national is able to continue working for 240 days, as long as the extension request was filed in a timely manner.

Issuing EADs valid for 2 years, rather than 1 year, in wider circumstances. Currently, a 2-year EAD is issued only in a limited circumstance when the foreign national has filed the last stage of the green card application. The memo proposes to issue a 2-year EAD in "wider circumstances," which is not defined, but most likely would apply to those nonimmigrants who are permitted to file for work authorization, such as dependent spouses of those holding L-1 or E-1 status.

Increasing job creation through the EB-5 Investor Immigrant Program by partnering with the U.S. Department of Commerce (DOC). The EB-5 Immigrant Investor Program provides permanent resident status to certain foreign nationals who have made investments in U.S. businesses ($500,000 or $1 million) and who create at least 10 jobs for U.S. workers, among other eligibility requirements. In the released memo, USCIS notes that the EB-5 program has been under-utilized. As a result, job creation under the program has been limited. USCIS views the EB-5 program as an important tool in assisting the U.S. economy. It proposes setting up a working group with the DOC to determine how the DOC can assist USCIS in making the EB-5 program more accessible to foreign investors through administrative efficiencies and promotion.

USCIS proposals that created the controversy

In the memorandum, the USCIS makes several proposals that would aid individuals who are unlawfully in the U.S. These controversial provisions include:

Allowing foreign nationals who entered illegally, but who have Temporary Protective Status (TPS), to change or adjust status. TPS is granted by the U.S. government to people in the U.S. from a designated nation, even if they entered the U.S. illegally, when it is considered that those people cannot go home. The proposal would allow these people to change to a nonimmigrant visa status or adjust status to permanent resident. TPS was most recently granted to people from Haiti.

Expanding the use of Parole-in-Place (PIP). PIP is a method of letting individuals who were not lawfully admitted to the U.S. remain in the U.S. where the public benefit would be served. This provision could be used for "urgent humanitarian reasons" or "significant public interest." PIP was recently applied to unlawful family members of people serving in the U.S. military, and is proposed for other situations where maintaining family unity is a concern.

Allowing applicants for adjustment of status to permanent resident status to travel abroad using Advance Parole (travel document). Under the current immigration law, the ability to file an application to adjust status to permanent resident status if you are not legal in the U.S. is very limited. If these applicants are granted a travel document and then leave the U.S., they could be barred from reentering the U.S. for either 3 or 10 years. The goal of this proposal is to allow foreign nationals, who are likely to get green cards, to travel abroad while their green card applications are pending using the advance parole documents that are routinely issued by USCIS.

Increasing use of Deferred Action (for those not eligible for PIP). Deferred Action is the government's exercise of prosecutorial discretion not to pursue removal of an unlawful foreign national. This is perhaps the most controversial proposal because, in the broadest sense, Deferred Action could be applied to all people who are in the U.S. without authorization. However, the memo proposes to apply it in limited circumstances. Granting Deferred Action does not confer any immigration status, but does allow individuals to obtain employment authorization. Deferred Action was granted to foreign nationals affected by Hurricane Katrina whose authorized U.S. visa status had expired.

Changing policy concerning when USCIS issues a Notice to Appear (NTA). A NTA is typically issued to start removal proceedings. It can be precipitated by someone who has been legal in the U.S., but a recent application was denied by USCIS – such as a denial of an adjustment of status application. In the memo, there is a proposal to stop the practice of issuing an NTA. The memo suggests that the CIS stop putting foreign nationals in removal proceedings when there has been a denial of an application, and that the CIS should first weigh the likely impact on the applicant and focus on issuing NTA's to individuals who pose a danger to the community.

Keep this in mind: The USCIS memo was only a list of administrative proposals that could be used to solve some current immigration problems. It is not possible to say how many of these proposals are being considered, or will ever be implemented.

Questions? Contact us at info@trowlaw.com.

Immigration Update

ICE Final Rule Allows for Electronic Storage of Form I-9

According to the final rule of U.S. Immigration and Customs Enforcement (ICE), effective August 23, 2010, an employer may now sign the Employment Eligibility Verification Form (I-9) electronically and retain it in electronic format. The final rule makes minor changes to an interim final rule promulgated in 2006.

The final rule's supplementary information notes that the completed I-9 is not filed with the Department of Homeland Security (DHS), but is retained by the employer, who must make it available for inspection upon request by ICE investigators or other authorized federal officials.

Employers must keep the I-9 in their own files for three years after the date of hire of the employee or one year after the date that employment is terminated, whichever is later. Failure to properly complete and retain each I-9 may subject the employer to civil money penalties.

Among other things, the final rule clarifies that:

1. employers must complete the I-9 within three business (not calendar) days;
2. employers may use paper, electronic systems, or a combination of paper and electronic systems;
3. employers need not retain audit trails recording each time an I-9 is electronically viewed, but only when the I-9 is created, completed, updated, modified, altered, or corrected; and
4. employers may provide employees with an electronic copy or confirmation of the completed I-9, but are not required to do so unless the employee requests a copy.

The final rule, which includes performance standards for electronic filing processes and systems, is available here.

USCIS Clarifies O-1 Validity Period When Gap Exists in Itinerary

An O-1 nonimmigrant visa petition is used for aliens of extraordinary ability in arts, science, education, business, or athletics. As part of an O-1 visa petition, the employer or agent must describe an itinerary of events at which the beneficiary of an O-1 visa petition will perform or appear.

On July 20, 2010, U.S. Citizenship and Immigration Services (USCIS) issued clarifying guidance on how the adjudicators are to determine the appropriate validity period of an approvable O-1 visa petition, when a gap exists between two or more events reflected in the itinerary.

Typically with an O-1 visa petition, an itinerary of the performances or events is provided, and the petition requests approval of the O-1 for the full duration of the itinerary.

The issue is whether a new petition is needed when there is a gap between performances or events in the itinerary, or whether a single petition can be granted to cover the entire itinerary. Recently, it seems that adjudicators have been only approving O-1 visa petitions up until the date before a gap in the itinerary, thereby requiring a second O-1 visa petition for the remainder of the itinerary.

The memo issued by USCIS instructs adjudicators to evaluate the totality of the evidence submitted to determine if the activities described in the itinerary are related in such a way that they would be considered as one "event" for purposes of the validity period. In such cases, the memo instructs that the adjudicator should approve a petition for the length of the validity period requested.

The memo also notes that there is no statutory or regulatory authority for the proposition that a gap of a certain number of days in an itinerary automatically indicates a new event.

Instead, the statute and regulations provide flexibility on the length of the validity period that may be granted. They allow for an approval of an O-1 visa petition for a period necessary to accomplish the event or activity, not to exceed 3 years.

The memo is available here.

O-1 and P-1 Visa Petitions To Be Adjudicated in 14 Days

During a public meeting with stakeholders on July 20, 2010, U.S. Citizenship and Immigration Services (USCIS) promised that processing times would not exceed 14 days for regularly filed O-1 and P-1 visa petitions for performers and athletes.

This does not require them to be filed with the extra form and fee for premium processing. In some previous cases, adjudications reportedly have taken up to four months and delays have led to last minute scrambles and missed performances. While many performing arts groups say more needs to be done, many are hopeful about this recent development.

Preliminary Injunction Blocks Key Provisions of Arizona Immigration Statute

U.S. District Judge Susan Bolton of Phoenix, Arizona, issued a preliminary injunction against key provisions of Arizona's recently passed immigration law that were due to take effect on August 1. The U.S. Department of Justice had filed suit to challenge the Arizona law. While not striking down the entire law, Judge Bolton blocked the key provisions that:

1. required an officer to determine the immigration status of a person stopped, detained, or arrested if there existed a "reasonable suspicion" that the person was unlawfully present, and required verification of the immigration status of any person arrested, before release;
2. made it a crime to fail to apply for or carry alien registration papers;
3. made it a crime for an unauthorized alien to solicit, apply for, or perform work; and
4. authorized the warrantless arrest of a person, where there is probable cause to believe the person has committed a public offense that makes him or her removable from the United States.

Judge Bolton found that the U.S. was likely to prevail on a trial of these issues, based primarily on the conclusion that immigration is a federal matter. The case will likely end up at the U.S. Supreme Court.

View the preliminary injunction here.