Progress on Senate Bill Signals Time to Prepare for Filings

June 12, 2013

 

Progress on Senate Bill Signals Time to Prepare for Filings

 

Yesterday’s 85-15 vote to allow S. 744 to proceed to full debate signals a high level of momentum in favor of passage, at least in the Senate.   What will happen in the House is still subject to question.  Even so, the basic outline of a path to legal status is clear, and the time has come for potential applicants to begin collecting documents and taking other action that will increase the chances of filing a successful application.

 

Below are a number of comments on what kind of proof may be required to file for this new legal status.   In preparing their cases, applicants should seek the assistance of a qualified immigration lawyer or BIA accredited organization.  UNDER NO CIRCUMSTANCES SHOULD AN APPLICANT SEEK THE ASSISTANCE OF A NOTARIO.  Notarios may seem like they know the law, and a few of them may have good intentions.  However, most of them do not have good intentions, and there are too many critical and complex issues that have to be addressed both before and at the time of filing these cases. 

 

Notarios are not qualified to help with these cases and applicants should avoid them at all costs.

 

Timing:  the bill gives applicants one full year (and gives DHS the right to extend that time period up to 18 months) after the bill is signed into law.   That may seem like a long time, but with so many potential applicants, the time to begin preparing is now.  The final form of the bill likely will change, but the documents described below probably will be helpful, regardless of the changes.

 

In broad terms, S. 744 will create a legal status called “Registered Provisional Immigrant” or “RPI” status for certain undocumented individuals.    The status will be good for 6 years and will allow approved applicants to work in the US and travel internationally.  To qualify for the status, the Senate bill requires the applicant to prove that he or she:

 

1.      Entered the US on or before 12/31/11 (later for family members)

2.      Has been physically present in the US since then

3.      Has paid all back taxes

4.      Pays a $500 fine (DREAMers are excluded from this fee requirement)

5.      Pays a standard filing fee

6.      Is not inadmissible due to

a.      Conviction of an aggravated felony (as currently defined in the INA) or any other felony

b.      Conviction of 3 or more misdemeanors (not including minor traffic offenses)

c.      Conviction of an offense under foreign law

d.      Unlawful voting

e.      Other major grounds of inadmissibility

 

 Several points become clear right away:

 

First, potential applicants should begin collecting and keeping safe all documentation that can prove how long he or she has been in the US, including the date he or she first arrived, as well as all time since then.     The types of proof that will be useful here will include a very wide range of documentation, but it will need to be presented properly and in a persuasive way. 

 

Second, if the applicant has left the US after 12/31/11, he or she will have to show clear documentation of the dates, locations and reasons for leaving; the length of the time out of the US will be critical.

 

Third, proof of payment of back taxes can be very tricky, especially if the applicant has been using an ITIN to file until now.   As S. 744 now reads, it will be important for the applicant to obtain formal IRS documentation for all years in which he or she has filed; the applicant also will need to file amended returns for any year in which an incorrect return was filed, and will need to file late returns for any year in which the person failed to file.   HOWEVER, AS STATED ABOVE, UNDER NO CIRCUMSTANCES SHOULD THE APPLICANT ASK FOR HELP FROM A NOTARIO.  Instead, seek help from a qualified accountant or reputable tax service such as H&R Block.

 

Fourth, a person with a disqualifying criminal conviction may be able to have the convictions nullified or set aside in a way that allows the person to file an approvable case.  In its current form, S. 744 will restrict eligibility to a limited number of people.  However, it also provides for certain relief that will allow the person to go forward with a proper case.   These provisions may change, but the important thing to do is to obtain certified copies of all court cases and bring them to the attorney helping you with your case.   That attorney should be able to determine if the convictions on your record will disqualify you or not, and if they do, the attorney may be able  to handle the criminal case properly, or refer you to an attorney who can do so.

 

To summarize:

 

1.      Seek help from a qualified attorney or BIA accredited entity.

2.      DO NOT SEEK HELP FROM A NOTARIO

3.      With the attorney's help, begin collecting documents that prove date of entry and time here since then, as well as time outside the US, if any.

4.      Get help with your taxes from a qualified accountant or reputable tax service.

5.      Get copies of your criminal records and bring that information to your attorney for analysis.

6.      Begin now.

 

Best regards,

 

Gerry Chapman

 

Gerard M. Chapman

Chapman Law Firm

P. O. Box 1477

Greensboro, NC 27402

403-A North Elm Street

Greensboro, NC 27401

Phone: (336) 334-0034

Fax: (336) 334-0036

E-mail: gerrychapman@chapman-immig.com

Website: www.chapman-immig.com

Senate Poised to Vote; Obama ready to push with diverse supporters

Senate Poised to Vote; Obama ready to push with diverse supporters

 

Just posted on AOL (although the “path to citizenship” comment is optimistic in realistic terms):

 

WASHINGTON (AP) — President Barack Obama is inviting law enforcement, labor and business leaders to the White House to show they support an immigration overhaul.

The White House says Obama will speak Tuesday about the economic and national security benefits of a bipartisan bill. The first votes in the full Senate are scheduled for Tuesday afternoon.

Obama is highlighting the disparate groups that are backing the bill even though they've opposed each other on immigration in the past.

U.S. Chamber of Commerce Tom Donahue will join Obama, as will AFL-CIO President Richard Trumka. Democratic Mayor Julian Castro of San Antonio and Bush-era Commerce Secretary Carlos Gutierrez also will be on hand. Faith leaders will be represented as well.

The bill creates a path to citizenship for 11 million people in the U.S. illegally.

 

Best

Gerry Chapman

US Businesses hurting for more EB green card numbers

US Businesses hurting for more EB green card numbers

 

As the Senate is poised to begin full debate on the Gang of 8’s proposed reform bill, it is important to realize just how many problems our current system causes American businesses. 

 

The H-1B visa, which is the standard work visa for professionals with a 4 year BS/BA degree,  is limited to 65,000 per year (with an additional 20,000 set aside for employees who have advanced degrees from US universities).  Many of these H-1B employees are sponsored for green cards, but for those with only a BS or BA degree, the green card category is backlogged to early 2009 (and to early 2003 for Indian nationals, and late 2006 for Filipino nationals).   Although H-1B status can be good for up to 6 years, employers do not want to make the green card decision until the employee has been sufficiently evaluated by all concerned.  Sometimes the employee needs to work in more than one position for everyone to decide it is a good fit.   Where that takes more than 3 years, problems with continuing work permission can arise.   The same is true if an employee is hired after he has been in the US in H-1B status with one or more other employers and does not start work for the new employer until after the 5^th year in H-1B status.

 

For instance, if the employer files the PERM case  at the very beginning of the employee’s 5^th year with the company, and if DOL issues an Audit, the case can drag on beyond the end of the employee’s sixth and final year in H-1B status.   The employer then has to begin using very creative strategies, such as filing for additional time in H-1B status, based on all of the days that the employee has been outside the US during his six years in H-1B status.   This can result in the employee “recapturing” H-1B time and therefore being able to remain in the US longer than six calendar years, but it may not give him enough time for other extension rules to kick in and give him a 7^th or 8^th year in H-1B status. 

 

If the employer is lucky enough to have an employee who worked for a foreign affiliate, it sometimes is possible to move the employee into a new work visa status (L-1) altogether.   However, this option is not very common, and even if it exists, the only time it really can benefit the parties is where the employee can be moved into a managerial position with the US employer.  Even then, the benefit is not for long, since L-1A employees are entitled to a total of 7 years of authorized stay, and there are no extension rules beyond that end date, as there are for H-1B employees.   

 

Where this is the case, the employee can be given a 7^th year, and if the PERM case is approved before the end of that 7^th year, the employer then can petition for the employee to move back into H-1B status and be given additional periods of stay in H-1B status, one year at a time.

 

As noted above, sometimes  these options are not available, as where the employer hires the employee too late and cannot show that the PERM case has been pending for a full year (the one year mark activates the rule that allows the employer to file for  a 1 year H-1B extension).  In that situation, the employee and his or her family may have to leave the US for a period of weeks or months, causing the employer and the employee significant disruption and career delay.    In the worst case scenario, the employee may return home for good.  This is happening more and more, as India and China, as well as many countries in Europe and South America compete for the highly skilled H-1B workers who have been trained here (and many times educated here) for years.   Canada also is taking bold steps to recruit these talented and very frustrated workers. 

 

The pending Senate reform bill, S. 744, contains good provisions for increased numbers of green cards in the employment based system.  If these provisions are passed into law, they should reduce the current green card backlogs, which should help many employers and employees avoid the type of turmoil and non-productive job changes that are required today under our antiquated system.

 

At the same time, Congress should consider allowing H-1B employees to file for additional 1 year extensions of stay as long as a PERM case is filed at any time prior to the end of the sixth year in H-1B status.   The same should be true for anyone in L-1A or L-1B status, because frequently these workers have to use the same, badly backlogged green card categories.  

 

H-1B and L-1A/B workers are the backbone of our STEM occupations in myriad industries in the US.  We lose them at our peril, and the losses become more frequent every day that Congress delays.

 

Best

 

Gerry Chapman

Landmark ruling for those with TPS status who seek to Adjust Status without leaving the US

On June 4, 2013, the Sixth Circuit Federal Court of Appeals issued a landmark ruling in Fonshea Flores v. USCIS (No. 12-3549). 

 

At issue in the case was a long-standing argument over whether a person with Temporary Protected Status (“TPS”) could start and finish a family based green card case in the US.   Many of these cases now have generated a “yes” answer, but only where the TPS beneficiary first travels outside the US on a travel permit known as “Advance Parole” and then returns to the US on that document.    Here the twist in the case was that the beneficiary had not traveled outside the US on advance parole, and simply filed for Adjustment of Status, based on an approved Immigrant Visa Petition filed by his US citizen wife.  

 

The government argued that the Court should dismiss the suit, based on a long line of USCIS interpretive memos.  As authority for its position, DHS cited  a case that gives the nod to the agency interpretation where the statute is vague or subject to differing readings.    The plaintiffs argued that the statute was not vague or subject to multiple readings, and that it clearly gave the Honduran applicant the right to adjust status, based on the plain  language of the statute that creates TPS status.  The Court rejected DHS’ argument that its interpretation should prevail.

 

The Court sided with plaintiffs, and held that, since the plain language of the statute gave the applicant proper status for purposes of seeking Adjustment of Status, there was no reason to give any deference to what was clearly a line of incorrect agency interpretations.  

 

If DHS appeals or asks for a rehearing by the Circuit Court of Appeals, the ruling can be stayed.  However, other courts outside the Sixth Circuit (such as the Fourth Circuit, which includes Virginia, West Virginia, North and South Carolina) can follow the decision, and arguably USCIS offices outside the Sixth Circuit can do so, too.  If this ruling ultimately stands, it will change the lives of literally thousands of people with TPS status who are married to US citizens and who otherwise are admissible to the US.  Many of them fear leaving the US, or cannot wait long enough to for USICS to process an Advance Parole application.  Under Fonshea Flores, they no longer will have to wait, and instead can file for adjustment of status once their US  citizen spouses are ready to sponsor them for the green card.

 

Regards,

 

Gerry Chapman

Congress poised to pass reform legislation

June 1, 2013

Friends and colleagues:

 

During a conference call last week with a nationally respected and well-connected immigration lawyer who has met with Senator Reid and Speaker John Boehner, we received further confirmation of several very significant pieces of information:

 

1.      The Senate Bill ( S. 744) should be up for a vote by the full Senate within 2 weeks.   This is a much more rapid schedule than we had anticipated, but seems to be a solid prediction.

2.      Speaker Boehner has confirmed that the House bill will be moving swiftly as well.

3.      He also has confirmed that one of the most conservative members of the House has drafted a bill that is quite similar to S. 744, and that this is the bill that he is likely to support and move to a vote in the House.    (This does not displace the possibility that the House “Gang of 8” bill may be the one to move first; that bill also appears to be similar to S. 744.)

4.      Obama sees this bill as a defining part of his legacy, so he is very supportive of the Senate and House efforts to bring a final bill to a vote soon.

5.      Reid believes he has at least 60 votes for passage, and may gain as many as 70 votes.   Either way, the momentum of S. 744 will be significant when it reaches the House.

6.      The core of the Republican Party has realized that this bill has to pass for the Party to be able to compete for Hispanic votes on a national level going forward.   If the immigration issue is not removed from the debate, the GOP will continue to see defeats such as Romney’s happen over and over.

7.      The 1986 IRCA legislation that legalized 3 million people was a short range success but a long range failure because it lacked a temporary work visa for manual laborers in year round jobs.   IRCA created an annual national limit of 5000 green cards for such workers (in the “Other Worker” category), but that number was unrealistically low, and has been useless almost from the start because the demand for those workers always has been much higher than the supply of green card numbers in that category.

8.      In 2004-07, several bills were introduced in both houses of Congress, but they never made it to a full vote, and many never made it out of committee.  

9.      The reason was simple:  the anti-immigrant forces were vocal and well organized, and members of Congress received their messages daily and in great numbers.  Some members reported as many as 100 anti messages to each 1 message in support of those bills!

 

WHAT CAN YOU DO?

 

You need to send emails to Senator Hagan and to Senator Burr NOW!   This vote will happen soon, and the discussions over what position to take are solidifying right now.

 

Tell them that it is time for reform, and that S. 744 represents a good compromise on many, many issues that is long overdue.

 

www.hagan.senate.gov

www.burr.senate.gov

 

DO NOT DELAY.  THIS IS A HISTORIC MOMENT THAT WE WILL NOT SEE AGAIN FOR YEARS, IF EVER.

 

WE MUST BE HEARD NOW, BECAUSE THE TIME IS NOW, AND WE ARE ON THE RIGHT SIDE OF HISTORY!!!!

 

Thank you for your prompt action.

 

Regards,

 

Gerry Chapman

 

 

 

Gerard M. Chapman

Chapman Law Firm

P. O. Box 1477

Greensboro, NC 27402

403-A North Elm Street

Greensboro, NC 27401

Phone: (336) 334-0034

Fax: (336) 334-0036

E-mail: gerrychapman@chapman-immig.com

Website: www.chapman-immig.com