Flynn & Clark, P.C.
Immigration Update
November 2009
Ø 1. USCIS Reminds Applicants for Travel Documents To Apply Early - USCIS issued a fact sheet outlining eligibility requirements, the consequences of traveling without advance parole for affected persons, and the possible consequences of using advance parole after being unlawfully present in the U.S. or to return to the country of claimed persecution.
Ø 2. State Dept. Cautions Waiver Travelers To Disclose Visa Delays as Denials - Certain travelers are advised to indicate that they have been refused a visa under INA § 221(g) when completing their ESTA registrations.
Ø 3. USCIS Temporary Accepts Incorrectly Denied LCAs for Certain H-1B Cases - USCIS announced that it would temporarily accept certain H-1B petitions filed without LCAs that have been certified by the DOL for a 120-day period, through March 4, 2010.
Ø 4. USCIS Releases Fact Sheet on 'Public Charge' Determinations - The agency noted, among other things, that receiving public benefits does not automatically make an individual a public charge.
Ø 5. Obama Appointment of Roxana Bacon to USCIS a Major Step in Immigration Reform Efforts - President Obama's October 21st appointment of Roxana Bacon, Esq. as Chief Counsel of USCIS.
Ø Also in this issue:
Recent News from FLYNN & CLARK, P.C.
Details...
1. USCIS Reminds Applicants for Travel Documents To Apply Early
U.S. Citizenship and Immigration Services (USCIS) has reminded applicants for advance parole (permission to reenter the U.S. after traveling abroad) to apply early. USCIS said that travelers must obtain advance parole if they have been granted temporary protected status, or have a pending application for (1) adjustment of status to lawful permanent residence; (2) relief under § 203 of the Nicaraguan Adjustment and Central American Relief Act; (3) asylum; or (4) legalization.
The agency issued a fact sheet outlining eligibility requirements, the consequences of traveling without advance parole for affected persons, and the possible consequences of using advance parole after being unlawfully present in the U.S. or to return to the country of claimed persecution.
2. State Dept. Cautions Waiver Travelers To Disclose Visa Delays as Denials
The Department of State has taken the position that those who have applied for a visa that cannot be granted due to a need for further security clearances, or additional documents or information, have been effectively "denied" a visa and must disclose this when completing their ESTA (Electronic System for Travel Authorization) application should they later wish to use the Visa Waiver Program as a visitor while their visa application remains pending. Flynn & Clark warns that this situation can be confusing because the applicants may have been told simply that their applications require further processing rather than that they have been denied, but then they may be refused admission later for misrepresentation if they do not disclose the denial. Such travelers are advised to indicate that they have been refused a visa under INA § 221(g) when completing their ESTA registrations. Those who have completed an ESTA registration without revealing the denial are advised to re-register and indicate the specifics. This is a fluid situation, and the Department's position is controversial. Consult your immigration attorney for more specific guidance in particular cases.
Information on the ESTA system is available at https://esta.cbp.dhs.gov/esta/esta.html?_flowExecutionKey=_c2E5A4D95-E27C-3FCA-B3E1-C3866F0FF391_k8329F60B-FD9E-61A1-1777-C748F6B4CB86. The new Department of State position was made in consultation with U.S. Customs and Border Protection (CBP), which announced it to the American Immigration Lawyers Association's (AILA) CBP liaison committee. A public announcement by CBP is awaited.
3. USCIS Temporary Accepts Incorrectly Denied LCAs for Certain H-1B Cases.
In August and September 2009, the U.S. Citizenship and Immigration Services (USCIS) ombudsman received complaints about H-1B cases with incorrectly denied labor condition applications (LCA/ETA-9035) filed with the U.S. Department of Labor (DOL). The ombudsman said that LCA processing delays and errors at the DOL, when coupled with USCIS's current H-1B petition initial filing requirements, "are prejudicing employers and individuals who are unable to timely file original or extension H-1B visa petitions." Untimely H-1B petition filings lead to problems, the ombudsman noted, including: (1) the potential loss of employees' legal status; (2) business operation disruptions due to the loss of continuity in the employment of key employees; and (3) economic loss to employees in the form of lost wages and costs of travel overseas because of the loss of status.
The ombudsman said that USCIS has the authority to mitigate these effects, and the ombudsman recommended that USCIS: (1) reinstate its previous practice of temporarily accepting an H-1B petition (Form I-129) supported by proof of timely filing of an LCA application with the DOL, and issue a Request for Evidence (RFE) whereby the H-1B petitioner later provides the certified LCA; and (2) establish a temporary policy under which USCIS would excuse late H-1B filings where the petitioner has documented an LCA submission to DOL that was improperly rejected.
On November 5, 2009, USCIS announced that it would temporarily accept H-1B petitions filed without LCAs that have been certified by the DOL for a 120-day period, through March 4, 2010. USCIS noted, however, that it will only accept such H-1B petitions if they are filed at least seven calendar days after the LCAs were filed with the DOL and include evidence of these filings. The only acceptable evidence of filing is a copy of the DOL's e-mail giving notice of receipt of the LCA.
Petitioners who seek to take advantage of this temporary flexibility in the normal filing procedures for H-1B petitions must wait until they receive a request for evidence (RFE) before they submit the DOL-certified LCA to USCIS in support of the H-1B petition, USCIS said. The agency will give petitioners 30 calendar days within which they must send in a DOL certified LCA in response to the RFE. USCIS will only approve H-1B petitions that include certified LCAs. See http://www.uscis.gov/USCIS/New Structure/Press Releases/2009 Press Releases/Nov 2009/Attachment to Temporary Acceptance of H-1B Petitions.pdf.
The ombudsman's report, "Temporary Acceptance of Labor Condition Applications (LCAs) for Certain H-1B Filings," was released on October 23, 2009, and is available at http://www.dhs.gov/xlibrary/assets/cisomb_recommendation_43_LCAs_October_2009.pdf.
U.S. Citizenship and Immigration Services has released a fact sheet on public charge determinations. The agency noted that although an individual who is likely at any time to become a public charge is inadmissible to the U.S. and ineligible to become a legal permanent resident, receiving public benefits does not automatically make an individual a public charge. The fact sheet outlines benefits that could make a noncitizen inadmissible as a public charge if other criteria are met, and also lists benefits that are for special purposes rather than income maintenance and therefore not subject to public charge consideration, such as Medicaid, Food Stamps, the Children's Health Insurance Program, foster care and adoption assistance, job training programs, and emergency disaster relief.
The fact sheet is available at http://www.uscis.gov/USCIS/New Structure/Press Releases/2009 Press Releases/Oct 2009/public_charge_fact_ sheet_11_06_09.pdf.
5. Obama Appointment of Roxana Bacon to USCIS a Major Step in Immigration Reform Efforts.
As Thanksgiving approaches, we find ourselves, in spite of a challenging year for so many of us, listing the many things for which we are grateful. One of them is President Obama's October 21st appointment of Roxana Bacon, Esq. as Chief Counsel of USCIS. Besides supervising the agency's several hundred lawyers, and advising the agency on legal issues related to policy, she will help draft the immigration reform legislation.
Ms. Bacon is a longtime friend and colleague of our managing partner, Steve Clark, from his participation in IMMLAW (a national consortium of immigration law firms whose members are experienced immigration lawyers, each dedicated to providing the highest quality legal services to his or her clients, and representing national leaders in the field). Fellow IMMLAW member Michael Bander of Miami said of our friend:
Ms. Bacon has written passionately in defense of expansive immigration policies; was the first female president of the State Bar of Arizona; was general counsel of the American Immigration Lawyers Association; and was managing director of a leading immigration law firm.
She is dedicated, smart, a superb writer and brilliant strategist. Her appointment is a concrete step in the move to 2010 immigration reform, as well as a significant step in assuring reforms that can be handled administratively (without Congressional action).
We share his delight over this appointment and wish you and yours a bountiful and joyous Holiday Season.
Recent News from Flynn & Clark, P.C.
Steven A. Clark (bio: http://www.flynnclark.com/steve.html) participated in a telephonic panel discussion of immigrant options for entrepreneurs sponsored by Immigration Lawyers on the Web (ilw.com) on November 18, Mr. Clark covered issues of timing and eligibility under PERM, and the uses of B-1 business visitor visas in setting up an establishment and visiting on behalf of a parent company abroad. See http://www.ilw.com/seminars/200926.shtm.
On November 2, 2009, Flynn & Clark, P.C., was invited by Harvard University to present to its post-doctoral fellows and other graduate students a seminar covering the various pathways to permanent residence. Speakers Vincent Lau, Mary Walsh, Jane Devlin and Steve Clark addressed employment-based greencards (including PERM, EB-1, and national interest waivers) and family-based sponsorship, as well as immigration through the diversity visa lottery program. Concerns of special interest to foreign medical graduates, such as J-1 waivers, were also addressed. A lively question-and-answer session followed the presentation.
Jane Devlin, an attorney in Steve Clark's immigration practice at Flynn & Clark, P.C. has been selected as a Connector for Boston World Partnerships (www.bostonworldpartnerships.com). The Connectors have as their mission informing the world about everything that Boston offers. Boston World Partnerships (BWP) is a new non-profit founded by Boston's Mayor Thomas Menino to grow Boston’s economy. BWP is creating a global network of Bostonians, like an alumni network, which uses innovative web strategies to share information about Boston’s assets and opportunities, and to connect people to those resources.
Mary E. Walsh, Associate at Flynn & Clark, P.C., began her two year appointment as Co-Chair of the Boston Bar Association’s Immigration Law Committee this fall. The BBA focused on education, community service and access to justice and, to this end, the Immigration Law Committee holds many educational programs and networking events throughout the year.
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers:
USCIS Service Center processing times online: https://egov.uscis.gov/cris/processTimesDisplay.do
Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/times.cfm
Department of State Visa Bulletin: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html
Contact Your Flynn & Clark Attorney for Further Information
FLYNN & CLARK, P.C., is a member of ABIL, The Alliance of Business Immigration Lawyers. ABIL is an entity that offers a single point of contact for customer needs, news alerts, staff training and other programs that benefit the client through the collaboration of the 140 member attorneys and their 460 staff. Corporate counsel, human resource professionals, in-house immigration managers and other corporate decision-makers turn to ABIL attorneys for outstanding legal skills and services. ABIL's work also includes advocating for enlightened immigration reform, providing speakers and media sources, presenting conferences, publishing books and articles on cutting-edge immigration topics, and sharing best practices, all with the ultimate goal of offering value-added services to business immigration clients. This newsletter if produced through Flynn & Clark's collaboration with ABIL.
Disclaimer/Reminder
This e-mail does not constitute direct legal advice and is for informational purposes only. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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