Now that the government shutdown has happened I would like to update everyone as to what is happening with US agencies that deal with immigration:
1. USCIS – they are up and running as normal EXCEPT for the e-verify system. E-Verify is NOT working, and USCIS has already issued a statement on this and extended any deadlines affected by the shutdown as employees cannot go to the Social Security office, etc. during the shutdown.
2. DOL: LCA and PERM operations are shut down. No PERM or LCAs submissions will be accepted or processed during the shutdown. You should still mail in Audit responses, but DOL will not be able to accept, open or process them during the shutdown.
3. DOS: Contrary to what they stated before, all Consulate activities are up and running. This means they are granting visas and processing all related cases. This will go on as long as they have funding for such activities. I would always check the Embassy/Consulate website to make sure the one you wish to visit is still open.
4. CBP: All ports are open and functioning as normal.
Please discuss any specific cases with your attorney.
With the current economic talks stalledand a potential shutdown as early as next week many people want to know what does this mean for immigration services? For those dealing with USCIS in the US, the answer is easy, nothing. USCIS is funded through user fees (i.e. the fees they charge for applications, not the general budget, so a government shut-down does not affect them. The only piece that is affected is e-verify, which is separately funded and would be shut down.
If you are not in the United States, it is a little murkier. The Department of State is in Charge of the US Consulates overseas as well as running the National Visa Center and handling immigrant and non-immigrant visas. They would be affected by the shut-down and would stop providing such services except in emergency situations and for diplomats (A visa holders) and International Organization members (G visa holders).
The Department of Labor, which handles the labor certification system and the LCA system (for H-1Bs and E-3 visas) would cease those operations in case of a shut-down. This would mean that any pending labor certification or LCAs would remain pending and not be worked on until the shut-down is over. It also means that there most likely be long backlogs created in the even of any shut-down.
The above is general, and only touches on some specifics of the situation. As always, please contact us with any specific questions or an answer about how the shut-down could affect your particular situation.
This topic has come up with several of our clients recently, those wanting to hire people not in the US, thosecurrently in the US who needed to leave because of a lost job or because they wanted to take ashort-term job opportunity, and those who were in their own country already and wanted to come to the US without having to necessarily get a temporary visa. The one thing most of these people had in common was most of them had a friend who told them that they needed to be in the US to get a green card (spoiler alert: this is not true) . Because of this upsurge in questions on this issue, it seemed wise to put the information out there for those interested.
If you are being sponsored by an employer you do NOT need to be in the US during the entire processing of the application (until your immigrant visa is approved, that is). The employer can perform recruitment (if needed), file the labor certification, and even file the I-140, all without your presence in the United States. This holds true for BOTH
PERM sponsorship and Outstanding Researcher applications. There is no requirement that you are either physically present in the US or presently working for the employer when being sponsored by an Employer. Of course, once the Immigrant Visa is approved and you are in the US, you should begin working for the employer.
The way the process would work is that once the I-140 (Petition for Alien Worker – the application to USCIS stating that an employer is sponsoring you and what type of petition is being filed (Outstanding Researcher, PERM for an advanced degree, etc.) is approved, that approval will be sent to the National Visa Center (NVC) for preliminary processing. The NVC makes sure you complete all forms, send in all necessary documents and pay all needed fees. Once the NVC confirms that all the forms, documents and fees have been received, they send the application overseas to the US Consulate listed on the I-140 application for an immigrant visa interview. At this interview it will be important to show that the employer is still willing to employee you at the wage level required and in the position you were sponsored for. Usually this is in the form of a current letter from the employer. Assuming you are able to provide the required documents, the Consulate will issue the immigrant visa. Once issued, you need to enter the US within 45 days. Once you enter the US you are a permanent resident immediately, and will receive a stamp in your passport so indicating. You will receive the actual card in the mail usually within about 30 days.
It is important to keep one thing in mind here, although as soon as you enter the US you are a permanent resident, if you fail to begin working for the employer that sponsored you, this could be construed as fraud and could jeopardize your green card. USCIS looks at your intent here and you want to be careful not to present such a case. We will discuss this issue more in a later blog post.
If you are sponsoring yourself for a green card (National Interest Waiver and/or Extraordinary Ability applications) you also DO NOT need to be in the United Stated to process the I-140 application. You can file the I-140 from overseas and, once approved, receive a green card through the US Consulate in your home country. The process is quite similar to above. The difference being that for the self-sponsored application you do NOT need to present an actual letter from a prospective employer. While that can certainly help, the regulations simply require that you show your intent to continue working in your field. To show intent, you can give a letter of employment, but you could also give emails from others in your field expressing interest in work or collaborating with you, continued publications, presentations or concerts (depending on your area) in your field plus a letter from you indicating your intent to continue working in your field. The possibilities are fairly wide in this regard. The process after approval of your application is the same as discussed above for those being sponsored by employers.
As you can see from the above, it is not only possible to file for, and get permanent residence without being in the United States, it is also just as easy as applying in the United States. It is true that it may take a little longer to get the green card, but for those who are not in the US and who want to come to the US but cannot get (or who do not want to go through the hassle of getting) a temporary visa to work, this can be a very attractive option. Please contact me with any questions or comments.
We are asked quite frequently by individuals, and especially companies, whether the documents and statements they are giving to USCIS in support of visa applications are “confidential” or can anyone request and receive a copy of such papers. The answer is complex, and involves the interplay of two statutes: The Privacy Act of 1974 and the Freedom of Information Act. The Privacy Act protects ALL records keep by all agencies from disclose except in certain situations (more on these below). The Freedom of Information Act, on the other hand, opens up all documents to public inspection, except for documents that fall within its exceptions (which will not be open to the public). So these statutes serve opposite purposes from each other, but do actually end up working in unison.
The Privacy Act has the following exceptions listed, which allow disclose of documents kept by all agencies: (1) to those officers and employees of the agency which maintains the record who have a need for the record in the performance of their duties; (2) required under section 552 of this title; (3) for a routine use as defined in subsection (a)(7) of this section and described under subsection (e)(4)(D) of this section; (4) to the Bureau of the Census for purposes of planning or carrying out a census or survey or related activity pursuant to the provisions of Title 13; (5) to a recipient who has provided the agency with advance adequate written assurance that the record will be used solely as a statistical research or reporting record, and the record is to be transferred in a form that is not individually identifiable; (6) to the National Archives and Records Administration as a record which has sufficient historical or other value to warrant its continued preservation by the United States Government, or for evaluation by the Archivist of the United States or the designee of the Archivist to determine whether the record has such value; (7) to another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of the agency or instrumentality has made a written request to the agency which maintains the record specifying the particular portion desired and the law enforcement activity for which the record is sought; (8) to a person pursuant to a showing of compelling circumstances affecting the health or safety of an individual if upon such disclosure notification is transmitted to the last known address of such individual; (9) to either House of Congress, or, to the extent of matter within its jurisdiction, any committee or subcommittee thereof, any joint committee of Congress or subcommittee of any such joint committee; (10) to the Comptroller General, or any of his authorized representatives, in the course of the performance of the duties of the General Accounting Office; (11) pursuant to the order of a court of competent jurisdiction; or (12) to a consumer reporting agency in accordance with section 3711(e) of Title 31.
As you can see, only in very limited situations can documents be released. Most such exceptions are to allow the agency that has the records to use the records in its operations or for the government to use them for criminal or congressional investigations. Under the Privacy Act, all documents given to USCIS are protected unless one of these exceptions apply. The second document that deals with disclosures of such information is the Freedom of Information Act (commonly known as FOIA). Generally FOIA requires agencies to release documents when requested by the public. However, as with the Privacy Act, there are limits to FOIA requests. Specifically, in the following situations, documents are exempted, if:
(1)(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order; (2) related solely to the internal personnel rules and practices of an agency; (3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld; (4) trade secrets and commercial or financial information obtained from a person and privileged or confidential; (5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency; (6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; (7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual; (8) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or, (9) geological and geophysical information and data, including maps, concerning wells.
The important exception here are number (3) and (4). Number (3) specifically exempts from being released all documents that other statutes clearly and unambiguously state should not be released and Number (4) specifically prohibiting the release of trade secretes and commercial or financial information obtained from a person. Since the Privacy Act does specifically guarantee the privacy of documents given in support of an Immigration Application, the FOIA statute will not override this prohibition. Further, even if it did, if the documents constituted trade secrets or commercial or financial information about the company, those records would still be protected from release directly by the FOIA statute. However, some of the exceptions in the Privacy Act may also apply in certain situations. If there is a specific Court order that the specific records be released, then the government will release those records. The Attorney General’s office has specifically stated that a discovery request is NOT a Court Order that would compel such release of the documents. The Court would have to issue an actual order requesting those specific documents be released by the Government. However, if the Government is investigating you or your company for criminal wrongdoing, the records can be released to those agencies without court order.
I do wish to emphasis that the above is a general discussion of the privacy act and FOIA statutes and is not legal advice. Every situation is different and specific situations would require individual consultations.
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.