Dallas Lawyer Weighs in on Temporary Protected Status Designations
Dallas-based immigration lawyer Stewart Rabinowitz of the firm Rabinowitz &Rabinowitz offers some informed comment about recent 18-month extensions of Temporary Protected Status designations for foreign nationals from Nicaragua and Honduras.
U.S. Citizenship and Immigration Services (USCIS) recently announced that the Department of Homeland Security (DHS) will extend Temporary Protected Status (TPS) for nationals of Nicaragua and Honduras from the current expiration of July 5, 2010, to the new expiration date of January 5, 2012. During the past year, DHS and the Department of State have reviewed the conditions in Nicaragua and Honduras. Based on this review, Secretary of Homeland Security Janet Napolitano has determined that an 18-month extension is warranted because the conditions that prompted the TPS designation in 1999 following the environmental disaster caused by Hurricane Mitch persist and prevent Nicaragua and Honduras from adequately handling the return of its nationals.
“This timely extension will help nearly 70,000 nationals from Nicaragua and Honduras remain in the U.S. legally and maintain work until their home countries have been able to recover from the damage accrued,” Rabinowitz says.
Under the extension, individuals who have been granted TPS are eligible to re-register and maintain their status for an additional 18 months provided they remain otherwise eligible for TPS. There are approximately 3,000 nationals of Nicaragua and approximately 66,000 nationals of Honduras (including people having no nationality who last habitually resided in either country) who may be eligible for re-registration. TPS does not apply to Nicaraguan or Honduran nationals who entered the United States after December 30, 1998.
To maintain TPS status, Nicaraguan and Honduran TPS beneficiaries must re-register during the re-registration period from May 5 until July 5, 2010. It is important for eligible Nicaraguans and Hondurans to re-register as soon as the re-registration period opens to allow sufficient time for USCIS to complete all the routine background checks and further application processing. Applications from Nicaraguan and Honduran TPS beneficiaries will not be accepted before May 5, 2010.
“USCIS will issue a new Employment Authorization Document to eligible TPS beneficiaries who can re-register in a timely fashion and apply for EADs,” states Rabinowitz. “USCIS is automatically granting a 6-month extension for existing EADs held by Nicaraguan and Honduran TPS beneficiaries, through January 5, 2011.This extension will allow sufficient time for eligible TPS beneficiaries to re-register and receive new EADs without any break in their authorization to be employed,” concludes Rabinowitz.
To learn more about Rabinowitz & Rabinowitz, P.C., call 1.972.233.6200 or visit http://www.rabinowitzrabinowitz.com.
DHS adopts new dynamic and flexible security steps to protect the flying public
Department of Homeland Security (DHS) Secretary Janet Napolitano announced on April 2, 2010 that the Transportation Security Administration (TSA) will begin implementing new enhanced security measures.
Department of Homeland Security (DHS) Secretary Janet Napolitano recently announced that the Transportation Security Administration (TSA) will begin implementing new enhanced security measures for all air carriers with international flights to the United States to strengthen the safety and security of all passengers—superseding the emergency measures put in place immediately following the attempted terrorist attack on Dec. 25, 2009.
These new, more flexible security protocols—tailored to reflect the most current information available to the U.S. government—will apply to all passengers traveling to the United States.
“These new measures utilize real-time, threat-based intelligence along with multiple, random layers of security, both seen and unseen, to more effectively mitigate evolving terrorist threats,” said Secretary Napolitano. These new, enhanced measures are part of a dynamic, threat-based aviation security system covering all passengers traveling by air to the United States while focusing security measures in a more effective and efficient manner to ensure the safety and security of the traveling public. Passengers traveling to the United States from international destinations may notice enhanced security and random screening measures throughout the passenger check-in and boarding process, including the use of explosives trace detection, advanced imaging technology, canine teams, or pat downs, among other security measures.
Secretary Napolitano, in conjunction with the United Nations specialized agency International Civil Aviation Organization, has been leading a global initiative to strengthen the international aviation system against the evolving threats posed by terrorists, working in multilateral and bilateral contexts with governments as well as industry. Over the past three months, Secretary Napolitano has participated in regional aviation security summits around the world in Spain, Mexico and Tokyo, forging historic agreements with her international colleagues to strengthen the civil aviation system through enhanced information collection and sharing, cooperation on technological development and modernized aviation security standards.
Secretary Napolitano also commended release of the Surface Transportation Security Priority Assessment as another important step in efforts to protect the nation’s traveling public from acts of terrorism. The assessment is part of a review of the nation’s surface transportation security efforts conducted by the Obama Administration, which cover mass transit, commuter and long-distance passenger rail, commercial vehicles and pipelines.
H-1B Petition Filings for Fiscal Year 2011 Continue
USCIS continues to accept H-1B nonimmigrant petitions subject to the Fiscal Year 2011 (FY2011) cap. USCIS will monitor the number of petitions received for both the 65,000 general cap and the 20,000 U.S. master’s degree or higher education exemption.
U.S. Citizenship and Immigration Services (USCIS) has announced that it continues to accept H-1B nonimmigrant petitions subject to the Fiscal Year 2011 (FY2011) cap. USCIS will monitor the number of petitions received for both the 65,000 general cap and the 20,000 U.S. master’s degree or higher educational exemption.
As of April 14, 2010, USCIS has received approximately 13,500 H-1B petitions counting toward the 65,000 cap. The agency has received approximately 5,600 petitions for individuals with advanced degrees.
USCIS will provide regular updates on the processing of the FY 2011 H-1B petitions. These updates and filing information can be found at the USCIS Web site. Should USCIS receive the necessary number of petitions to meet the cap, it will issue an update advising the public that the FY 2011 H-1B cap has been met as of a certain date (the “final receipt date”). The final receipt date will be based on the date USCIS physically receives the petition, not the date that the petition has been postmarked. The date USCIS informs the public that the cap has been reached may differ from the actual final receipt date.
To ensure a fair system, USCIS may randomly select the number of petitions required to reach the numerical limit from the petitions received on the final receipt date. USCIS will reject cap subject petitions that are not selected, as well as those received after the final receipt date.
For cases filed for premium processing during the initial five-day filing window of April 1-7, the 15-day premium processing period began April 7th. For cases filed for premium processing after the filing window, the premium processing period begins on the date that the petition is physically received at the correct USCIS Service Center.
Petitions filed by employers who are exempt from the cap or petitions filed on behalf of current H-1B workers who have been counted previously against the cap within the past six years will not count toward the congressionally mandated H-1B cap.
U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in fields, such as scientists, engineers, or computer programmers.
Supreme Court requires criminal lawyers with non-citizen clients to advise of possible immigration consequences of guilty plea
Stewart Rabinowitz, of the Dallas-based law firm Rabinowitz & Rabinowitz, offers some astute observations about this recent Supreme Court decision.
The March 31, 2010 Supreme Court decision on the obligations of counsel for noncitizens charged with committing a crime has been applauded generally by immigration lawyers. The Court held that criminal defense lawyers must advise their noncitizen clients about the risk of deportation if they accept a guilty plea. The Court recognized that current immigration laws impose harsh and mandatory deportation consequences arising out of criminal convictions, and that Congress eliminated from these laws the Attorney General’s discretionary authority to cancel removal in meritorious cases. The Court said, “These changes to our immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. The importance of accurate legal advice for noncitizens accused of crimes has never been more important.”
The case, Padilla v. Kentucky, involved a Vietnam War veteran who has resided lawfully in the U.S. for over 40 years. His criminal defense lawyer told him not to worry about the immigration consequences of pleading guilty to a crime, but that advice was wrong. In fact, the guilty plea made Mr. Padilla subject to mandatory deportation from the United States. The state of Kentucky said that Mr. Padilla had no right to withdraw his plea when he learned of the deportation consequence. The high Court’s decision reverses the Kentucky court. It also rejected the federal government’s position (which had been adopted by several courts) that a noncitizen is protected only from “affirmative misadvice” and not from a lawyer’s failure to provide any advice about the immigration consequences of a plea.
“Everyone should have the right to effective counsel,” explained Stewart Rabinowitz of the Dallas-based law firm Rabinowitz & Rabinowitz, “it’s perhaps the most crucial tenet of our criminal justice system. By this decision, the Supreme Court affirms that immigrants should not be considered at fault when they rely on incorrect advice from their lawyers or where their lawyers fail to provide any immigration advice at all.” According to Rabinowitz, this decision is also a stark reminder that the lockstep increased criminalization of immigration law coupled with limitations on judicial discretion is not a solution to potential immigrant malfeasance. “In a compassionate or just nation, each person facing deportation should at least get an opportunity to have a day in court,” Rabinowitz concludes.
U.S. Consular posts in Canada limit nonimmigrant visas issued to certain non-Canadian applicants
With increasing regularity, U.S. consular posts in Canada are refusing visas to third country national applicants (TCNs) with foreign degrees who have not previously been issued H-1B visas from their home posts, and are referring them to their home countries for visa processing. Stewart Rabinowitz, of the Dallas-based firm Rabinowitz & Rabinowitz, offers some informed commentary on the matter.
U.S. consular posts in Canada are increasingly refusing visas to third country national applicants (TCNs) with foreign degrees who have not been previously issued H-1B visas from their home posts, and are referring them to their home countries for visa processing. U.S. posts in Canada have long shown a distrust of degrees that are not from the U.S. or Canada, in large measure due to past discoveries of fraudulent degrees from certain parts of the world.
While US posts in Canada do not publish this as official policy, they provide the following warning for H-1B applicants, “Evidence of qualifications must be original or certified copy. Consular offices in Canada may refuse to issue a visa to H-1B applicants if their education and/or work experience is based solely or predominately from a country other than the U.S. or Canada.”
Examining this issue from a historical perspective, Stewart Rabinowitz of the Dallas-based law firm Rabinowitz & Rabinowitz makes reference to situations that would arise in both Canada and the United States involving purported nurses from the Philippines. “Women, and occasionally men, would present nursing degrees from the Philippines that could not be verified, and in some cases turned out to be fraudulent,” Rabinowitz asserts, “an element of distrust became a natural outgrowth.”
More specifically, Rabinowitz considers the Canadian policy in light of policy at the US post in Ciudad Juarez. “The position of US posts in Canada mirrors that of the US post in Ciudad Juarez (“CDJ”) regarding nonimmigrant applicants who last entered the US in B-2 visitor visa status and who later changed to a different status through USCIS. If a foreign national enters the US in B-2 visitor visa status, changes status to H-1B, and then applies for an H-1B visa at CDJ, CDJ will not accept the visa application. The concern is that there may be inconsistencies between what the foreign national said to obtain the visitor’s visa and what the foreign national did by subsequently changing status while in the US which are best resolved by the home country. Putting aside concerns of whether such a position is actually justified, the policy also lessens the volume of third country nationals – non-Canadians – applying for nonimmigrant visas at US posts in Canada.”
USCIS to issue new permanent resident cards that are actually green
The USCIS will soon issue a redesigned green card that will actually be green.
U.S. Citizenship and Immigration Services (USCIS) announced recently that it has redesigned the Permanent Resident Card—commonly known as the “Green Card”—to incorporate several major new security features. The Green Card redesign is the latest advance in USCIS’s ongoing efforts to deter immigration fraud. State-of-the-art technology incorporated into the new card is designed to prevent counterfeiting, obstruct tampering, and facilitate quick and accurate authentication. Beginning May 11, 2010, USCIS will issue all Green Cards in the new, more secure format.
Despite the name, Permanent Resident Cards, once called Alien Registration Receipt Cards, have not been green in more than 30 years.
“Redesigning the Green Card is a major achievement for USCIS,” said Director Alejandro Mayorkas.
“The new security technology makes a critical contribution to the integrity of the immigration system.”
The enhanced features will better serve law enforcement, employers, and immigrants, all of whom look to the Green Card as proof of authorization to live and work in the United States. Among the benefits of the redesign: Secure optical media will store biometrics for rapid and reliable identification of the card holder. Holographic images, laser engraved fingerprints, and high resolution micro-images will make the card nearly impossible to reproduce. Tighter integration of the card design with personalized elements will make it difficult to alter the card if stolen. Radio Frequency Identification (RFID) capability will allow Customs and Border Protection officers at ports of entry to read the card from a distance and compare it to file data. Finally, a preprinted return address will enable the easy return of a lost card to USCIS.
In more detail, new features of the new redesigned cards will include a shift in ink color from gold to green; an embedded radio frequency identification device; tactile laser personalization, an infogram (the holographic image); the before mentioned laser engraved fingerprint, and a unique background design. Other aspects of the new cards will be a featured micro-image, with high resolution pictures of state flags. Optical media will store all digital files, including biometrics, and finally, the cards will incorporate a micro-image, high resolution picture of the current U.S. president.
In keeping with the Permanent Resident Card’s nickname, it will now be colored green for easy recognition. USCIS will replace Green Cards already in circulation as individuals apply for renewal or replacement.
ICE releases guidance in investigating U.S. citizenship claims
A recently released memorandum dated November 19, 2009 superseded a prior memorandum issued on November 6, 2008 that provided guidance in investigating claims of U.S. citizenship. The more recent guidance was intended to ensure that claims to U.S. citizenship receive immediate and careful investigation and analysis.
While performing their duties, U.S. Immigration and Customs Enforcement (ICE) agents may encounter aliens who are not certain of their status or claim to be United States citizens (USC). As the Immigration and Nationality Act (INA) provides numerous avenues for a person to derive or acquire U.S. citizenship, ICE agents are directed to handle these matters with the utmost care and highest priority. While some cases may be easily resolved, because of the complexity of citizenship and nationality law, many may require additional investigation and substantial legal analysis. As a matter of law, ICE cannot assert its civil immigration enforcement authority to arrest and or detain a USC. Consequently, investigations into an individual’s claim to U.S. citizenship should be prioritized and Office of Investigations (OI) and Detention and Removal Operations (DRO) personnel must consult with the Office of the Principal Legal Advisors (OPLA)’s local Office of the Chief Counsel (OCC).
When ICE agents encounter an individual who they suspect is without lawful status but claims to be a USC, the situation will fall into one of three categories:
1) evidence indicates the person is a USC; 2) some evidence indicates that the individual may be a USC but is inconclusive; and 3) no probative evidence indicates the individual is a USC.
If evidence indicates the individual is a USC, ICE should neither arrest nor place the individual in removal proceedings. Where there is some probative evidence that the individual is a USC, ICE agents should consult with their local OCC as soon as practicable. After evaluating the claim, if the evidence of U.S. citizenship outweighs evidence to the contrary, the individual should not be taken into custody.
The person may, however, still be placed in removal proceedings if there is reason to believe the individual is in the United States in violation of law. Finally, where no probative evidence of U.S. citizenship exists and there is reason to believe the individual is in the United States in violation of law, the individual may be arrested and processed for removal. In all cases, any uncertainty about whether the evidence is probative of U.S. citizenship should weigh against detention.
If an individual already in custody claims to be a USC, an ICE agent is directed to immediately examine the merits of the claim and notify and consult with his or her local OCC. If the individual is unrepresented, an officer must immediately provide the individual with the local Executive Office for Immigration Review (EOIR) list of pro bono legal service providers.
Stewart Rabinowitz is President of Rabinowitz & Rabinowitz, P.C. Mr. Rabinowitz is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. To contact a Dallas immigration lawyer or Dallas immigration attorney visit Rabinowitzrabinowitz.com
Congresssional Research Office Issues Report on US Immigration Policy.
Dallas-based immigration lawyer Stewart Rabinowitz offers insights on recently released report: According to Rabinowitz, of the firm Rabinowitz & Rabinowitz, the report released on April 1, 2010 by Congressional Research Services on U.S. Immigration Policy on Permanent Admissions implies that U.S. policy faces conflicting and still unresolved issues.
Four major principles underlie current U.S. policy on permanent immigration: the reunification of families, the admission of immigrants with needed skills, the protection of refugees, and the diversity of admissions by country of origin. These principles are embodied in the Immigration and Nationality Act (INA). The INA specifies a complex set of numerical limits and preference categories that give priorities for permanent immigration reflecting these principles. Legal permanent residents (LPRs) refer to foreign nationals who live permanently in the United States.
During FY2008, a total of 1.1 million aliens became LPRs in the United States. Of this total, 64.7% entered on the basis of family ties. Other major categories in FY2008 were employment based LPRs (including spouses and children) at 15.0%, and refugees/asylees adjusting to LPR status at 15.0%. Over 17% of all LPRs come from Mexico, which sent 189,989 LPRs in FY2008.
“But U.S. Immigration Policy is not working well,” asserts Stewart Rabinowitz, a Dallas-based lawyer of the firm Rabinowitz & Rabinowitz, “and neither are efforts to reform it.”
Substantial efforts to reform legal information have failed in the recent past, prompting some to characterize the issue as a “zero-sum game” or a “third rail.”
“The trick is to initiate reforms that balance employer needs by increasing the supply of legally present foreign workers whom the country needs. These include temporary, low skilled, guest workers, and permanent high skilled “best and brightest” workers to keep the US globally competitive while allowing foreign workers to re-unite with their families, and by improving the policies governing immigration comprehensively – and simultaneously,” explains Rabinowitz.
But while state initiated solutions like the controversial Senate Bill 1070 in Arizona have become law to solely address the undocumented population, and an existing federal piece meal enforcement policy such as the somewhat similar 287 (g) program deputizing local and county police to act as immigration officers, neither can be mistaken for an elusive comprehensive policy for immigration reform. Comprehensive reform must address strengthening our borders, creating and implementing a meaningful guest worker program, adequately providing for the high skilled worker needs of the country, and deciding upon a policy to address the sizable undocumented population in the country.
“The Arizona law is poorly conceived and sets a dangerous precedent, acting more to polarize and foster discrimination,” Rabinowitz asserts, “and 287 (g) has been an unmitigated disaster, if only from the perspective of documented abuses involving foreign nationals detained by ICE. As far as addressing the significant issues involved, we are still very distant from any sort of comprehensive or meaningful reform. To address competing priorities, some genuine leadership and far-sighted initiatives will be needed, but right now, such a solution seems more like a pipedream,” Rabinowitz concludes.
DHS Extends Temporary Protected Status for Nicaraguans and Hondurans in the U.S.
Dallas-based immigration lawyer Stewart Rabinowitz of the firm Rabinowitz & Rabinowitz offers some informed comment about recent 18-month extensions of Temporary Protected Status designations for foreign nationals from Nicaragua and Honduras.
U.S. Citizenship and Immigration Services (USCIS) recently announced that the Department of Homeland Security (DHS) will extend Temporary Protected Status (TPS) for nationals of Nicaragua and Honduras from the current expiration of July 5, 2010 to the new expiration date of January 5, 2012. During the past year, DHS and the Department of State have reviewed the conditions in Nicaragua and Honduras. Based on this review, Secretary of Homeland Security Janet Napolitano has determined that an 18-month extension is warranted because the conditions that prompted the TPS designation in 1999 following the environmental disaster caused by Hurricane Mitch persist and prevent Nicaragua and Honduras from adequately handling the return of its nationals.
“This timely extension will help over 70,000 nationals from Nicaragua and Honduras remain in the U.S. legally and maintain work until their home countries have been able to recover from the damage accrued,” Rabinowitz says.
Under the extension, individuals who have been granted TPS are eligible to re-register and maintain their status for an additional 18 months provided they remain otherwise eligible for TPS. There are approximately 3,000 nationals of Nicaragua and approximately 66,000 nationals of Honduras (including people having no nationality who last habitually resided in either country) who may be eligible for re-registration. TPS does not apply to Nicaraguan or Honduran nationals who entered the United States after December 30, 1998.
To maintain TPS status, Nicaraguan and Honduran TPS beneficiaries must re-register during the re-registration period from May 5 until July 5, 2010. It is important for eligible Nicaraguans and Hondurans to re-register as soon as the re-registration period opens to allow sufficient time for USCIS to complete all the routine background checks and further application processing. Applications from Nicaraguan and Honduran TPS beneficiaries will not be accepted before May 5, 2010.
“USCIS will issue a new Employment Authorization Document to eligible TPS beneficiaries who can re-register in a timely fashion and apply for EADs,” states Rabinowitz. “USCIS is automatically granting a 6-month extension for existing EADs held by Nicaraguan and Honduran TPS beneficiaries, through January 5, 2011.This extension will allow sufficient time for eligible TPS beneficiaries to re-register and receive new EADs without any break in their authorization to be employed,” concludes Rabinowitz.
Bipartisan Standalone Proposed Immigration Legislation Seeks to Increase Investment in the U.S. and Create Jobs
Stewart Rabinowitz, of the Dallas-based law firm Rabinowitz & Rabinowitz, weighs in on the Kerry-Lugar Visa Bill.
On February 24, 2010, U.S. Senators John Kerry (D-Mass.) and Richard Lugar (R-Ind.) introduced bipartisan legislation to drive job creation and increase America’s global competitiveness by helping immigrant entrepreneurs secure visas to the United States.
The StartUp Visa Act of 2010 will allow an immigrant entrepreneur to receive a two year visa if he or she can show that a qualified U.S. investor is willing to dedicate a significant sum – a minimum of $250,000 – to the immigrant’s startup venture.
“The Kerry-Lugar bill represents an opportunity for both foreign investors and the U.S. economy to benefit from the energy, ideas, and capital of foreign nationals,” asserts Stewart Rabinowitz, of the Dallas-based law firm Rabinowitz & Rabinowitz.
Rabinowitz is especially intrigued by the source and amount of the investment. “By lowering the actual initial investment amount to $250,000 and shifting the source of funds to a U.S. investor for this new entrepreneurial visa, and similarly lowering the created U.S. workplace expansion to five persons – an underutilized visa category can offer a real benefit to further help kick start the U.S. economy,” Rabinowitz explains, “Because the investment must either attract additional investment totaling $1 million or generate revenue of $1 million to successfully grant a long-term U.S. immigration benefit, the program represents a welcome sign from America to the best and brightest entrepreneurial minds worldwide: Come up with great ideas and plans to implement them; we will come up with the money.”
The Startup Visa Act of 2010 would amend immigration law to create a new EB-6 category for immigrant entrepreneurs, drawing from existing visas under the EB-5 category, which permits foreign nationals who invest at least $1million into the U.S., and thereby create ten jobs, to obtain a green card. After proving that he or she has secured initial investment capital, and if, after two years, the immigrant entrepreneur can show that he or she has generated at least five full-time jobs in the United States, attracted $1 million in additional investment capital or achieved $1 million in revenue, and then he or she would receive permanent legal resident status.
Rabinowitz is optimistic about the bill. “This is a win-win for the U.S. and an opportunity for foreign nationals to bring their energy here to help America grow,” he says.
But he’s also pragmatic. “We will see how much traction the bill actually gets in the highly partisan Washington D.C. environment during a midterm election year with a lightning rod issue such as immigration, even with bipartisan support, being at stake,” Rabinowitz concludes.
Stewart Rabinowitz is President of Rabinowitz & Rabinowitz, P.C., a Dallas based Immigration Law Firm (http: //www. rabinowitzrabinowitz.com). He is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization.
To learn more about Rabinowitz & Rabinowitz, P.C., call 1.972.233.6200 or visit http://www.rabinowitzrabinowitz.com.