I reported the other day of the implementation by USCIS of their new identification system for those coming to the local offices for interviews or to receive evidence of their status. Well, reports are in and, as I had stated, people are experiencing long delays at many USICS local offices. If you have an interview setup go early so you can complete the whole process and still be on time. (picture from colorlines.com)
Today USCIS is implementing its new customer verification program at all local offices. Customers will now submit biometric data, specifically fingerprints and photographs, when appearing at USCIS offices for interviews or to receive evidence of an immigration benefit.
In this way, USCIS is looking to combat fraud and improve its systems. Be prepared for the above when you go to an interview or to receive proof of an immigration benefit and build in extra time for this process.
Click here to view the USCIS press release with additional information.
Many times an attorney may talk about “period of authorized stay” or “unlawful presence” or even “lawful status”. It is important to understand what all these terms mean and refer as the subtle differences between them can make a very big difference on whether you may have to leave the US or if you are able to stay in the US.
This refers to someone in the United States in a non-immigrant status with an unexpired I-94 who is acting in compliance with such status. Acting in compliance with you status means, for example, attending school with a full time course load in F-1 status, working for your authorized employer in H-1B status, not working at all in H-4 status, etc. Each status has its own requirements and every person in that status is expiated to follow those requirements. If you do not, you would no longer be considered to be in lawful nonimmigrant status and, instead, would be considered to be out-of-stays.
Period of Authorized Stay/Unlawful Status
If your I-94 expires or you violate your status as discussed above, are you automatically considered “out of status”? The answer to this is it depends on your circumstances. Even in a situation where your I-94 expires or you have violated your status, you may still be in a “period of authorized stay”, that is a period of stay authorized by the Attorney General. It is important to remember, however, even if you are in a period of authorized stay this is NOT the same as being in a valid status, and you are still considered to be in an unlawful status i.e. you are not in a lawful non-immigrant status.
There are several situation in which you can be in a period of authorized stay:
First, if you filed a timely requires to change or extend your status and subsequently your I-94 expires you will be considered to be in a period of authorized stay and are allowed to remain in the United States. A “timely” request is one that is filed while you are still in a valid non-immigrant status – that is your I-94 has not yet expired and you have not violated your status. This period of authorized stay will continue until USCIS adjudicates the case. If they approved the case, the decision will be retroactive and the entire period you were in the US will be considered in a valid non-immigrant status. While you are allowed to stay in the US during this time, you are still in the US in unlawful status until the extension or change of status application is approved
Second, if you filed a timely application to adjust status (an I-485) you will also be considered to be in a period of authorized stay even if your non-immigrant status expires and as long as the I-485 is still pending. While you are allowed to stay in the US in this situation, you are still in the US in unlawful status until the adjustment application is approved or you leave and re-enter the US in parole status.
Lastly, if you are in F or J non-immigrant status, or any other status in which your I-94 reads D/S as opposed to having an actual end date, you will be considered to be in a period of authorized stay up until the time USCIS issues a formal finding of a violation of status (more on this below). Once again, you will not longer be in lawful nonimmigrant status, but you will be in the US in a period of authorized stay.
If you are not in a valid non-immigrant status, and you are not in a period of authorized stay, you are usually accruing unlawful presence towards the 3, 10 or permanent immigration bars. Every day you are in the US and are not in a valid non-immigrant status or in a period of authorized stay, you are accruing another day of unlawful presence. If you are in the US for more than 180 days AT ONE TIME (not cumulative) in unlawful status and you leave the US you are barred from re-entering for 3 years. If you are unlawfully present in the US for more than 1 year AT ONE TIME (not cumulative), you will be barred from re-entering for 10 years. There is also a permeant bar which requires one year (cumulative) of unlawful presence IN ADDITION TO having tried to re-enter the US after the 1 year of unlawful presence and being denied re-entry (there are some exceptions to this and you should discuss your specific situation with an attorney). Furthermore, even one day of accruing unlawful presence can mean that you are ineligible to adjust status to that of a permanent resident (although there are exceptions to this general rule – again discuss your specific situation with an attorney).
You can begin to accrue illegal presence if you stay past the expiration date of your I-94 and do not have a pending extension, change or adjustment of status application pending. The same is true if you have filed a change, extension or adjustment of application and that application is then denied (and your underlying I-94 has expired). If you are in a non-immigrant status and you violate that status (i.e. work for an unauthorized employer, etc.) you will be in the US unlawfully, you would have violated your status, but you would not be accruing unlawful presence as long as your I-94 had not yet expired AND as long as USCIS had not indicated that you were no longer in status. Since those in F and J status are in the United States for “Duration of Status” or D/S, their I-94s do not expire and therefore they will not accrue illegal presence until USCIS informs them that they are no longer in status.
It is very important to understand the distinctions between unlawful presence, unlawful status, status violation, etc. as it can affect your ability to remain in the US get a visa, and can affect what happens to you if you were to leave the US. There is no substitute to talking to an attorney to determine which, if any, term applies to your status.
There is a new telephone scam whereby someone claiming to be a USCIS officer is calling people and getting personal information and credit card/bank account information. Apparently, they are using a technique so that the called ID shown is USCIS. Be warned, according to UCSIS if a real USCIS officer were to call you they would not ask for ANY payment information or personally identifiable information besides your name.
E-Verify is the system touted by USCIS to help stop people working who are not in the US in a legal status. It requires employers to check social security numbers, names, etc. against the social security and USCIS database. If the databases do not recognize someone, they will send out a flag to the employer, who is suppose to notify the employee and give them a specified period of time to reply and fix the record. If they employee fails to act, the employer is required to fire the worker.
While this seems like it would be a great system, the question is does it work? Does it really stop those in the US who are not in a legal immigration status from being able to work? Does it protect those who are able to work? Well, according to an article in the Christian Science Monitor (See http://www.csmonitor.com/USA/DC-Decoder/2013/0607/US-immigration-reform-Why-E-Verify-screenings-while-flawed-will-pass/(page)/2), which quotes testimony from Ms. Emily Tulli of the National Immigration Law Center, the answer would be no. In that testimony, Ms. Tulli cited a 2008 research project, which found that “54 percent of unauthorized workers for whom E-Verify checks were run were erroneously confirmed as being work-authorized.”
In another survey of 376 immigrant workers in Arizona, it was found that more than 100 of them had been fired, apparently after the employer got TNC notices and failed to notify the workers about their opportunity to appeal.
“In fiscal year 2012, approximately 100,000 workers [nationwide] likely received erroneous findings from the system and may have lost their jobs as a result,” Tulli said in her prepared testimony. That number of people who lose their jobs in error could rise as high as 770,000 or more if E-Verify is mandated nationwide, she warned.
According to Department of Homeland Security statistics, E-Verify has a 1.35 percent error rate. While this may not seem like much, it resulted in 221,155 “tentative nonconfirmations,” as the DHS calls them, in 2012 alone.
Hopefully the system is improving and hopefully less people are having issues, but, unfortunately, this is not something USCIS or Congress looks into or tracks. They do not seem to care about these issues and are not actively working on fixing the system, or at least tweaking it to make it fairer and better. I do understand the need for such a system, but until it actually works, mandating the system would be a mistake.
The Department of State has released the latest visa bulletin for August 2013. In that bulletin there have been several significant movements. First, in terms of family based applications, the F2A category – spouses and children of permanent residents, has come current. Second, the EB-2 for India has moved forward to January 1, 2008. It should be noted that both of these moves were to stimulate demand. DOS has stated that there are many cases in the backlog in both categories but that people are not filing the I-485s and completing the process, so they have moved the dates up to use up the remaining visas for this year. With that in mind, they have stated that the dates will retrogress sometime after September, if not before.
USCIS has issued a memo implementing the US Supreme Court’s decision in overturning DOMA (the Defense of Marriage Act). In a statement, SecretaryNapolitano stated:
After last week’s decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly. To that end, effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse
In determining your ability to file, USCIS will generally look at the legality of the marriage in the State or Country in which you were married, not at the legality in the State in which you live. Below is a link to the USCIS webpage which has some additional information. It should also be noted that Secretary Kerry also issued a statement that the DOS will be revising its policies to come in compliance as well.