Understanding the U Visa and the Long Waiting Times

 

Understanding the U Visa and the (Long) Waiting Times   The U visa program, created to protect victims of certain crimes who have suffered substantial mental or physical abuse and are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity, is limited by a statutory cap. Congress has allocated 10,000 U visas per fiscal year (FY) for principal petitioners.  Since Fiscal Year 2010, the U visa program has consistently met this 10,000 annual visa limit. Beginning in Fiscal Year 2011, the Department of Homeland Security (DHS) started receiving more U visa petitions than the number of visas available under the statutory cap, resulting in a growing backlog of cases. This is what is causing longer and longer delays for receiving a decision on pending U visa applications.    The Waiting List Process To address the excess petitions filed beyond the statutory cap, DHS introduced the waiting list process through a 2007 interim rule. This process allows eligible petitioners whose petitions are considered "approvable but for the statutory cap" to be placed on a waiting list when the cap has been reached for that fiscal year. Being placed on the waiting list provides critical protections to petitioners who would otherwise be left in limbo. Petitioners on the waiting list are eligible for: Employment authorization: This allows petitioners to work legally in the United States while awaiting the availability of a U visa. Deferred action: This grants protection from removal (deportation) while the petitioner waits for their U visa to become available. In limited cases, parole may also be granted, allowing the individual to remain in the United States while awaiting a final decision.   William Wilberforce Trafficking Victims Reauthorization Act of 2008 (TVPRA 2008) In 2008, the William Wilberforce Trafficking Victims Reauthorization Act (TVPRA) was signed into law, introducing key changes to the U visa process. One of the most significant amendments to the Immigration and Nationality Act (INA) was the provision allowing DHS discretion to grant employment authorization to noncitizens with pending, bona fide U visa petitions. This was a game-changer, as it provided some petitioners with a pathway to work legally while awaiting the final decision on their U visa. The Introduction of the Bona Fide Determination (BFD) Process In June 2021, the Bona Fide Determination (BFD) process was implemented by USCIS to help streamline the handling of U visa petitions. This process allows principal petitioners and their qualifying family members with pending, bona fide U visa petitions to receive interim relief more quickly, based on a case-by-case favorable exercise of discretion by USCIS. The BFD process offers several advantages over the waiting list process: BFD Employment Authorization Documents (EADs): Eligible petitioners may be granted employment authorization much earlier in the process, allowing them to work legally while waiting for their U visa. Deferred action: As with the waiting list process, petitioners under the BFD process also receive deferred action, protecting them from removal. The BFD process is distinct from the waiting list process. Prior to June 2021, employment authorization and deferred action were only granted when a principal petitioner was placed on the waiting list. Now, under the BFD process, petitioners may receive these benefits much earlier in the U visa process if their petition is deemed bona fide.   How These Processes Work Together While the BFD process aims to provide earlier relief to U visa petitioners, it is not a replacement for the waiting list process. Both mechanisms work together to ensure that petitioners receive employment authorization and protection from removal while waiting for a U visa. Petitioners who are placed on the waiting list have already been determined to meet the eligibility requirements for a U visa but are waiting for one of the 10,000 visas to become available. Those who benefit from the BFD process are given work authorization and deferred action even sooner, provided their petition is bona fide.   Long Delays; The Waiting Period for U Visa Applicants If you are currently awaiting a decision on your U visa petition, the annual numerical cap of 10,000 visas per year for principal petitioners is significantly impacting processing times for those waiting. Given the high demand for U visas, the process can be lengthy. According to the latest data on USCIS.gov, the average time it takes to receive a bona fide determination (BFD) notice, or a notice that your petition will be considered for waiting list placement, is approximately 54.5 months (about 4.5 years). Note that the 4.5 years is only to be placed on the waiting list or the BFD, not the final decision of the U visa.    What Happens at the 54.5 Month Mark? When your U visa petition reaches this point in processing, one of two things will happen: Bona Fide Determination Notice: If USCIS determines that your petition is "bona fide," meaning that it meets basic eligibility criteria, you may receive a work authorization document (EAD) based on this determination. However, it’s important to note that you must have filed an Application for Employment Authorization with your initial U visa petition, or submit it as soon as possible if you haven't already done so. If you do not file the application, you will not receive work authorization, even if your petition is found to be bona fide. Notice of Waiting List Consideration: If your petition is not yet eligible for a bona fide determination but meets other requirements, it may be placed on the U visa waiting list. Once you are placed on the waiting list, you will not immediately receive U nonimmigrant status, but you may still be granted deferred action and work authorization until a visa becomes available.   The Overall Processing Time: Over 10 Years for Final Decision While the 54.5-month timeline reflects the wait for a BFD or waiting list notice, the actual processing time for a final decision on your U visa petition can take more than 10 years. USCIS processes cases in the order they are received, but due to the volume of petitions and the annual cap, it can take several years before your case is fully adjudicated.   Factors That Can Affect Processing Times It’s important to understand that processing times are based on how long it took USCIS to process 80% of cases over the last six months. Each case is unique, and factors such as the complexity of the case, incomplete applications, or the need for additional evidence can affect how long it takes to process your petition. What You Should Do Next  If you haven’t already submitted an application for a work permit with your initial U visa petition, it is crucial that you do so now.  Conclusion The U visa process can be challenging, and while the 10,000 annual cap adds to the wait times, it’s important to stay informed and take proactive steps. Ensure you have filed Form I-765 to potentially receive work authorization after a bona fide determination. Be patient with the process, and consult with your immigration attorney if you have any questions or concerns about your case.

About Authors: Liliana Gallelli and Christopher Kerosky, have been practicing immigration law in the States of California and Nevada and represented over 25,000 clients with family, fiancée and marriage, and employment-based immigration, work-related, dependent and visitor visas, investors, company management and business owners, asylum seekers and deportation defense, specialty cases like U-visa, VAWA, SIJS, PIP and DACA.  Originally Published on K & G Immigration Law website (October 2024) English (EN)  Spanish (ES)  Portuguese (PT)

SpaceX wields the Constitution against the government

 By Liliana Gallelli Esq.

Rocket innovator SpaceX is evoking US founding fathers and the Constitution in its lawsuit against the US government. The impetus for the litigation is in response to a recent complaint filed at the Office of the Chief Administrative Hearing Officer (OCAHO), an office within the Executive Office for Immigration Review, an administrative court of the US Department of Justice.

The lawsuit, brought by the Justice Department’s Civil Rights Division, alleges SpaceX discriminated against hiring asylees and refugees, thereby violating the Immigration and Nationality Act (INA) in that “...SpaceX failed to fairly consider or hire asylees and refugees because of their citizenship status and imposed what amounted to a ban on their hire regardless of their qualification, in violation of federal law.” SpaceX cited export control laws as the reason why it was precluded from hiring immigrants who held asylee or refugee status.

National security issues are prevalent in an enterprise such as SpaceX where technology and data are highly protected and therefore the company is subject to export controls such as the International Traffic in Arms Regulations and the Export Administration Regulations. However, it turns out that those laws do not require employers to treat asylum or refugee immigrants differently than U.S. citizens or green card holders.

Perhaps interpreting the export control laws is not so easy. Indeed, in April of 2023 - 4 months before filing its complaint against SpaceX - the US Department of Justice Civil Rights Division issued a “Fact Sheet” for employers to use titled “How to Avoid Immigration Related Discrimination When Complying with U.S.Export Control Laws.”

Whether this was a SpaceX management misinterpretation of the law or outright discrimination is to be determined, but SpaceX has countersued in a Texas Federal District Court claiming that the government’s complaint is unconstitutional. In summary, the lawsuit states that the administrative proceeding violates SpaceX’s constitutional right to have the case heard in an “Article III” court and calls for enjoining the government from pursuing the claim, among other remedies.

Article III refers to the Judicial Branch of the U.S. Constitution and it gives US District Court, US Appellate Court, and US Supreme Court judges the highest level of independence with life tenures and provides a judicial forum protected by the Seventh Amendment right to a jury trial. By contrast, administrative courts and their arbiters, Administrative Law Judges (ALJ), have been established by Congress to adjudicate federal disputes brought before executive agencies and are considered part of the executive branch, not the judicial branch. ALJ’s adjudicate Social Security and disability hearings, immigration removal hearings, Environmental Protection Agency Hearings, and Security Exchange Commission hearings, among others.

These ALJ’s have the power to rule on preliminary motions, conduct prehearing conferences, issue subpoenas, conduct hearings (which may include written and/or oral testimony and cross-examination), review briefs, and prepare and issue decisions, along with written findings of fact and conclusions of law. See Office of Personnel Management; Administrative Law Positions.

Certainly, administrative courts have a very practical place in the judicial landscape; otherwise we would have relatively few Article III courts, laboriously adjudicating millions of claims. But a Federal District Court - an Article III court - is what SpaceX wants. Naming US Attorney General Merrick Garland, the head of OCAHO, and even the assigned Administrative Law Judge as defendants, SpaceX heavily relies on a case currently under review in the US Supreme Court.

Securities and Exchange Commission v. George R. Jarkesy, Jr., et al., No. 22-859. In fact, the injunction SpaceX’s lawsuit seeks asks the Texas District Court to enjoin the administrative proceeding, at least until the US Supreme Court makes its decision in Jarkesy in case it’s favorable to its position. In Jarkesy, the Securities Exchange Commission (SEC) imposed a civil penalty of $300,000, and to pay back $685,000 in improperly held and gained funds, among other remedies for misrepresentation and various violations of the securities laws.

SpaceX essentially narrowed in on two of Jarkesy’s main arguments: 1) That the imposition of civil penalties in an agency adjudication violated the Seventh Amendment (i.e. depriving the respondent its right to a jury trial) and 2) That the ALJ is “unconstitutionally insulated” from Presidential authority because firing an ALJ is limited by two levels of scrutiny before an ALJ can be removed (arguing that Article II vests the entire power to execute laws in the President alone and therefore the President must have unrestricted removal power).

SpaceX also claims that the ALJ is unconstitutionally appointed because the Appointments Clause of the Constitution mandates that only the President can appoint the head of an agency, with the advice and consent of the US Senate. SpaceX argues that an ALJ acts like the head of the agency, with its long list of judicial powers and ability to render a final decision in the federal dispute. As such, the judge is essentially “adjudicating without Executive oversight” because, it turns out, the President did not appoint the ALJ at all. Rather, the appointment is made by the Attorney General who was given power by Congress to appoint an “inferior officer,” which results in the ALJ appointment. U.S. Const. art. II, §2, cl.2.

While the arguments are bold and a strict reading of the Constitution, there is a stark contrast to the SEC case SpaceX is betting on. The SEC can choose whether to initiate enforcement proceedings either in an administrative court (15 U.S.C. 77h-1, 78u-2, 78u-3, 80b-3), or in federal district court (15 U.S.C. 77t, 80b-9). 

But here, with SpaceX, the Department of Justice is acting on discrimination based on immigration status under 8 USC §1324b (of the Immigration and Nationality Act (the “INA”). Unlike the statute regulating the SEC, the INA does not mention a choice of venue in which to initiate enforcement. In fact, it directs the special counsel to “file a complaint with the OCAHO” (and thus present the matter in front of an ALJ). 8 USC §1342b(c)(2), (d) (1). Given this distinct directive and the recognized place for administrative proceedings, this battle may not fall in favor of SpaceX.

Article (c) by K & G Law LLP.

Originally published at Daily Journal (September 2023)

Temporary Protected Status for Ukraine

 

Temporary Protected Status for Ukraine

By Liliana Gallelli, Immigration Attorney

TPS is a temporary immigration status granted to eligible nationals of a foreign state designated for TPS under the Immigration and Nationality Act (INA). A country may be designated for Temporary Protected Status (TPS) when conditions in the country fall into one or more of the three statutory bases for designation: ongoing armed conflict, environmental disasters, or extraordinary and temporary conditions. This designation is based on both ongoing armed conflict and extraordinary and temporary conditions in Ukraine that prevent Ukrainian nationals, and those of no nationality who last habitually resided in Ukraine, from returning to Ukraine safely.

Under this designation, individuals must submit an initial Ukraine TPS application and may also submit an application for Employment Authorization during the 18-month initial registration period that runs from April 19, 2022, through October 19, 2023. In addition to demonstrating continuous residence in the United States since April 11, 2022, and meeting other eligibility criteria, initial applicants for TPS under this designation must demonstrate that they have been continuously physically present in the United States since April 19, 2022, the effective date of this designation of Ukraine, before USCIS may grant them TPS. DHS estimates that approximately 59,600 individuals may be eligible for TPS under the designation of Ukraine.

TPS beneficiaries may also apply for and be granted travel authorization as a matter of discretion. You must file for travel authorization if you wish to travel outside the United States. If granted, travel authorization gives you permission to leave the United States and return during a specific period. To request travel authorization,

Our law firm can assist Ukrainians to for TPS and an Employment Authorization Document (EAD/work permit).  After TPS is granted, we can also assist with travel authorization.  

The following are the documents required to apply for Ukrainian TPS: 

The requirements:

1) Be a national of Ukraine (or a noncitizen without a nationality who last habitually resided in Ukraine);

2) Have continuously resided in the United States since April 11, 2022; and

3) Have been continuously physically present in the United States since April 19, 2022.

Documents that will be required:

1) Proof of Ukrainian nationality (passport, birth certificate and form of photo ID, or other government issued identification such as driver’s license, voter registration card, etc.)

2) Proof of date of entry into the United States (passport, visa, and I-94 card or proof of presence in the United States after unlawful entry, see below);

3) Proof of continuous residence in the United States since April 11, 2022 and physical presence since April 19, 2022. Documents with the name of the applicant and date that indicate presence in the United States are acceptable, including pay stubs, medical records, educational records, bills, banks statements, etc.;

4) 2 passport-style photos;

5) If applicable, certified court dispositions from any criminal case;

6) Filing fee of $545 if applying for a work authorization permit (ages 14-65).

When the Secretary terminates a foreign state's TPS designation, beneficiaries return to one of the following:

·         The same immigration status or category that they maintained before TPS, if any (unless that status or category has since expired or terminated); or

·         Any other lawfully obtained immigration status or category they received while registered for TPS, as long as it is still valid beyond the date TPS terminates.

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(c) K & G Immigration Law - helping immigrants with reliable legal assistance since 1989

CAN UKRAINIAN REFUGEES COME TO THE U.S. AND HOW DOES ONE APPLY?

 

Why do we make it so hard for refugees fleeing violence in their homeland?

By Christopher Kerosky

Published in the Sonoma County Gazette: https://www.sonomacountygazette.com/sonoma-county-news/can-ukrainian-refugees-come-to-the-u-s-and-how-does-one-apply/

In the 1980’s our country permitted large numbers of refugees from countries of the former Soviet Union to immigrate here. Our nation also opened it’s doors to those fleeing the repressive regimes in Vietnam, Cambodia and Laos.  And Cubans were entitled to asylum as soon as they landed on U.S. soil.

Almost all of these refugees were provided legal status, a right to work and even limited government assistance; and later they could apply for permanent residence and U.S. citizenship. 

So why has it been so hard for refugees fleeing Syria and Afghanistan to come here? Will the same fate await the refugees from the Ukraine – now numbering 3 million and growing?

Our Refugee Program and Procedure.

When a refugee applies for admission to the U.S. from abroad, they are governed by the U.S. refugee law and the limited numbers and long waits that apply. 

Under the Immigration and Nationality Act (INA), foreign nationals qualify for status as a refugee if they can prove they have experienced past persecution or have a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.  This definition is based on the United Nations Convention on the Status of Refugees, to which the U.S. is a signatory.  Congress passed the Refugee Act of 1980, which incorporated the Convention’s definition into U.S. law. 

Persons applying for refugee status must be approved through the U.S. Refugee Admissions Program.  First, applicants mustt apply with the United Nations High Commissioner for Refugees (UNHCR) in the country to which they have fled.  If UNHCR deems the applicants eligible and suitable for resettlement to the U.S., they will then undergo a lengthy vetting process by the U.S. Department of State in conjunction with the U.S. Department of Health and Human Services. 

They are also subject to annual numerical limitations set by each administration. Usually, there are non-governmental organizations (NGOs) involved in assisting the refugee family with transition to life in the U.S.  Refugee immigration to the U.S. takes a long time due to these annual numerical quotas and the limited resources of these NGOs.    

Numerical Limits on Refugee Acceptance.

Historically, the U.S. offered refuge to more people than all the other countries of the world combined.  That changed recently. 

Donald Trump slashed the annual quota of refugees from 110,000 per year under Barack Obama to an all-time low of 18,000.  Moreover, due to budget cuts and extreme vetting implemented by the Trump Administration, far fewer refugees were actually admitted – only 11,814 in 2020.  Moreover, under the so-called “Muslim Ban”, refugees from countries like Syria were banned altogether.

Shortly after taking office, President Biden raised the refugee quota to 65,000. 

Some good news for Ukrainians: relief from COVID bar and Temporary Protected Status

The Biden Administration also announced an exception to the continuing Title 42 policy restricting asylum applications at the Southern border due to COVID.  Ukrainians seeking asylum at the Mexican border will not be automatically turned away, but will be considered on a case-to-case basis.   

The Administration also granted Temporary Protected Status to Ukrainian citizens already here.  This means those already here can stay at least 18 months and obtain a work permit.

It remains to be seen whether our country’s refugee policies will be more generous in light of the flood of those fleeing Ukraine.  Almost certainly, the road to a U.S. border will be a long one and far fewer refugees will be admitted by our country than most European nations.  Poland has already admitted over 2 million through its borders for resettlement; Hungary, Moldova, Slovakia and Romania: about one million more.  Germany, France, England, and almost all the EU countries have agreed to accept hundreds of thousands.   

Give Us Your Tired, Huddled Masses, Yearning to Be Free.

“Send these, the homeless, tempest-tossed to me, I lift my lamp beside the golden door!”  Those words of Emma Lazarus on the base of the Statue of Liberty have inspired generations of immigrants to seek refuge here.

It’s hard to imagine clearer images of “tired, huddled masses yearning to be free” then those of the refugees fleeing Ukraine – as well as those from Syria, Afghanistan and Central America before them. 

It’s time the U.S. once again step forward and adopt more humane refugee policies worthy of its long immigrant tradition.  The need has never been greater.

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CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced immigration law for over 25 years.   He graduated from University of California, Berkeley Law School and was a former counsel for the U.S. Department of Justice in Washington D.C. 

Mr. Kerosky has been recognized as one of the top lawyers in Northern California for over 10 years by “Super Lawyers”.  See https://profiles.superlawyers.com/california-northern/san-francisco/lawyer/christopher-a-kerosky/358dc9f1-b1c2-46b5-80cc-6e9610b1cd43.html

WARNING: The foregoing is a summary generally discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case before filing any application or petition.

Temporary Protected Status for Afghan Nationals

Temporary Protected Status (TPS) for Afghanistan Nationals

By Immigration Attorney Liliana Gallelli, Esq 

The Department of Homeland Security (DHS) has announced the designation of Afghanistan for Temporary Protected Status (TPS) for 18 months. Only individuals who are already residing in the United States as of March 15, 2022, will be eligible for TPS.

A country may be designated for Temporary Protected Status (TPS) when conditions in the country fall into one or more of the three statutory bases for designation: ongoing armed conflict, environmental disasters, or extraordinary and temporary conditions. This designation is based on extraordinary circumstances that include a lack of infrastructure, an economic crisis, lack of basic needs such as food, water and access to healthcare, human rights abuses and repression by the Taliban, among other issues.

“This TPS designation will help to protect Afghan nationals who have already been living in the United States from returning to unsafe conditions,” said Secretary Alejandro N. Mayorkas. “Under this designation, TPS will also provide additional protections and assurances to trusted partners and vulnerable Afghans who supported the U.S. military, diplomatic, and humanitarian missions in Afghanistan over the last 20 years.”

Most Afghan nationals who arrived as part of the US evacuation effort were paroled for a period of two years and received work authorization. These individuals may also register for TPS. Those who attempt to travel to the United States after March 15, 2022, will not be eligible for TPS.

The 18-month designation of TPS for Afghanistan will go into effect on the publication date of the forthcoming Federal Register notice. The Federal Register notice will provide instructions for applying for TPS and an Employment Authorization Document.

Although the instructions have not yet been formally published, in our experience with TPS applications, the following will be some of the documents required to apply: 

The requirements:

1) Be a national of Afghanistan (or a noncitizen without a nationality who last habitually resided in Afghanistan);

2) Have continuously resided in the United States since March 15, 2022;

3) Undergo and pass security checks; and

4) Have been continuously physically present in the United States since March 15, 2022.

Documents that will likely be required:

1) Proof of Afghan nationality (passport, birth certificate and form of photo ID, or other government issued identification such as driver’s license, voter registration card, etc

2) Proof of date of entry into the United States (passport, visa, and I-94 card or proof of presence in the United States after unlawful entry, see below);

3) Proof of continuous residence in the United States since March 15, 2022 and physical presence since March 15, 2022. Documents with the name of the applicant and date that indicate presence in the United States are acceptable, including pay stubs, medical records, educational records, bills, banks statements, etc.;

4) 2 passport-style photos;

5) If applicable, certified court dispositions from any criminal case. (Some crimes may disqualify an applicant based on discretion)

6) Filing fee (must wait for publication in the federal register for the amount, if any)

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(c) K & G Immigration Law - helping immigrants with reliable legal assistance since 1989

Temporary Protected Status for Ukrainians

 Temporary Protected Status (TPS) for Ukraine nationals

By Liliana Gallelli, Esq

A country may be designated for Temporary Protected Status (TPS) when conditions in the country fall into one or more of the three statutory bases for designation: ongoing armed conflict, environmental disasters, or extraordinary and temporary conditions. This designation is based on both ongoing armed conflict and extraordinary and temporary conditions in Ukraine that prevent Ukrainian nationals, and those of no nationality who last habitually resided in Ukraine, from returning to Ukraine safely.

Individuals eligible for TPS under this designation must have continuously resided in the United States since March 1, 2022. Individuals who attempt to travel to the United States after March 1, 2022 will not be eligible for TPS. Ukraine’s 18-month designation will go into effect on the publication date of the forthcoming Federal Register notice.

The Federal Register notice which has not yet been published, will provide instructions for applying for TPS and an Employment Authorization Document (EAD). TPS applicants must meet all eligibility requirements and undergo security and background checks.

Although the instructions have not yet been formally published, in our experience with TPS applications, the following will be some of the documents required to apply: 

The requirements:

1) Be a national of Ukraine (or a noncitizen without a nationality who last habitually resided in Ukraine);

2) Have continuously resided in the United States since March 1, 2022; and

3) Have been continuously physically present in the United States since March 1, 2022.

Documents that will likely be required:

1) Proof of Ukrainian nationality (passport, birth certificate and form of photo ID, or other government issued identification such as driver’s license, voter registration card, etc

2) Proof of date of entry into the United States (passport, visa, and I-94 card or proof of presence in the United States after unlawful entry, see below);

3) Proof of continuous residence in the United States since March 1, 2022 and physical presence since March 1, 2022. Documents with the name of the applicant and date that indicate presence in the United States are acceptable, including pay stubs, medical records, educational records, bills, banks statements, etc.;

4) 2 passport-style photos;

5) If applicable, certified court dispositions from any criminal case.

6) Filing fee (must wait for publication in the federal register for the amount, if any)

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(c) K & G Immigration Law - helping immigrants with reliable legal assistance since 1989

LAST WEEK TO SIGN UP FOR H-1B LOTTERY

 

LAST WEEK TO SIGN UP FOR H-1B LOTTERY

H-1b Visas for Professional Workers will be available again this Spring

By Christopher Kerosky

[This was the subject of a prior article in the March edition of the Sonoma County Gazette]

Every year, in the spring, about 200,000 foreign nationals roll the dice by entering a lottery for a chance to be able to obtain a coveted professional visa.

This visa is necessary for virtually all foreign-born professionals-- from IT workers in Silicon Valley to winemakers in Napa Valley.  For many years now, these workers and their employers have been required to participate in an annual lottery to see if they are lucky enough to be able to apply.

The visa is the H-1B  – a lightning rod for debate over how many immigrants are good for the economy, and whether or not wages are depressed by allowing foreign workers here.  For good or bad, that application season has started again.

H-1b Visa Application Process.

Persons holding an H-1B visa can be hired only for "specialty occupations" – essentially jobs requiring the equivalent of at least a Bachelor's Degree in the field.  Employers must also pay every H-1B worker the “prevailing wage”;  that is, at least as much as what is typically paid in the region for that type of work  

There is a limited number (65,000) of H-1Bs every year and in the recent past, these visas were used up soon after April 1^st.  For the last ten years, more than 3 times that number have applied for the visa in the first week of the application period.

Until 2019, it was necessary to submit the entire application so that it arrived at the U.S. Department of Homeland Security (DHS) on April 1^st.  It was always the best day of the year for Federal Express.  Immigrant lawyers would send about 200,000 of these heavy applications by overnight mail the day before to ensure receipt on the first day of the program. 

New H1b Registration System

For the last two years, DHS has streamlined the process.  The lottery is now conducted first and employers can simply fill out a simple on-line form to register.  This year, employers who wish to file H-1B petitions for potential employees can register between noon March 1st to noon March 18^th EST.

That means this week is the last week to register.

During this period, the electronic registration must be submitted by the employer or its authorized representative. If the number of registrations exceeds the H-1B numerical allocation (which is virtually certain), a lottery will be conducted in late March. Only those petitioners who “win the lottery” – in other words are selected in the first group of eligible applicants – will be able to file a petition for that candidate.   Then the entire application must be submitted to DHS by the employer.  The H-1B petition will then still need to be found eligible in all respects in order to obtain approval.  

Path to a green card?

A person holding an H-1B visa can bring their spouse and children to live with them in the U.S. while they are legally holding the visa.  Dependents obtain an H-4 visa.

The H-1B visas are good for three years and can be extended for another three years.  After six years of working in the U.S., the person must return home for one year prior to obtaining a new H-1B. 

In many cases workers can obtain permanent residence during that six year period.  To do that, the employer needs to prove that no qualified American wants that job.  That is done through a complicated process called “PERM”.  The employer must recruit for the position on line, in newspapers and among its workforce, and show those recruitment efforts failed to locate an American qualified for the position. 

TN Visas for Mexican and Canadian citizens

There is a special visa for Canadians and Mexicans that gives them an advantage over applicants from other countries in obtaining such working visas.  It is called the“TN” visa and it allows Canadians or Mexican citizens to come and work in the U.S. with less difficulty than persons from other countries, provided they have the required training and education.  This visa was the subject of a prior article in the Gazette.  https://www.sonomacountygazette.com/sonoma-county-news/a-special-visa-for-canadian-and-mexican-professionals/

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CHRISTOPHER A. KEROSKY of the law firm of KEROSKY & GALLELLI has practiced law more than 25 years and has been recognized as one of the top immigration lawyers in Northern California for 12 years by“Super Lawyers” www.SuperLawyers.com

https://profiles.superlawyers.com/california/san-francisco/lawyer/christopher-a-kerosky/358dc9f1-b1c2-46b5-80cc-6e9610b1cd43.html

He graduated from University of California, Berkeley Law School and was a former counsel for the U.S. Department of Justice in Washington D.C.  His firm has offices in San Francisco, Los Angeles and six other locations in California. 

WARNING: The foregoing is an article discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.

UKRAINIANS GRANTED PROTECTED STATUS (TPS) BY BIDEN ADMINISTRATION.

 

Thursday, the Department of Homeland Security announced a Temporary Protected Status (TPS) program for Ukrainians in the U.S. This means all Ukrainians here since prior to March 1, 2022 can now apply for protection from deportation and a work permit.

Homeland Security Secretary Alejandro Mayorkas said the move was justified because of the dire conditions created by "Russia's premeditated and unprovoked attack."

Designed for nationals of countries beset by war, natural disasters or other emergencies, TPS is supposed to be temporary and does not allow beneficiaries to obtain permanent U.S. residency. The protected status will be granted for 18 months.  In the past, the DHS has extended this status for other countries, and that could be the case for Ukraine as well. 

One can apply for TPS using USCIS form I-821.  https://www.uscis.gov/i-821

#TPSforUkrainians

THE INVASION OF UKRAINE MAY JUSTIFY ASYLUM CLAIMS BY UKRAINIANS LIVING HERE IN U.S.

 THE INVASION OF UKRAINE MAY JUSTIFY 

ASYLUM CLAIMS BY UKRAINIANS LIVING HERE IN U.S.

Asylum Procedure Explained

 By Christopher Kerosky and Liliana Gallelli

            

It is too early to tell what will be ultimate outcome of the Russian invasion of the Ukraine but it’s probably clear that the safety of activists for Ukrainian sovereignty and independence will be less certain in the Ukraine as a result of this action by the Putin-controlled regime. 

 For persons here from the Ukraine who support their country’s independence this may open the possibility of filing for asylum, if they can show they would now face persecution if returned there.

 Asylum cases that were denied can be reopened by the filing of a motion to reopen with the immigration court or the Board of Immigration Appeal based upon “new circumstances”.  The invasion of the Ukraine may justify such a motion.

 Even more so, visitors from the Ukraine who fear persecution from a future Russian-controlled or Russian-influenced government there may be eligible to file a claim here in the U.S. with the Asylum Office of the U.S. Department of Homeland Security.   

 This applies to Ukrainians living here many years who still lack legal status.

 Procedure for Filing for Asylum in the U.S.

 Here is a short summary of the procedure for seeking asylum for persons already living in the U.S.:

             Like a refugee, an asylum applicant must prove that he or she has a “well-founded” fear of persecution based on the same grounds, that is: race; religion; membership in a social group; political opinion; or national origin.  In most cases, an individual must apply for asylum within one year of arriving in the U.S. but changed circumstances like the invasion can provide a grounds for filing late.

The process starts with an application sent to a CIS office which is the central receiving location for asylum applications.  If the applicant lives in Northern California, the file is then sent to the CIS asylum office at 75 Hawthorne St., San Francisco.  At some future point after applying, the applicant is given an interview.  The interviews are held at the Hawthorne St. office and typically last about one hour.  The CIS has a well-trained staff who only conduct asylum interviews.  The confidential interviews are conducted by one CIS officer, who then makes a recommendation to his superior to either approve or deny the application.  Usually, a decision is made on applications two weeks after the interview. 

If the application is approved, the immigrant is entitled to stay in the U.S. and obtain similar “asylee” status for their spouse and minor children.  In one year, the successful applicant can apply for permanent residence.

If an asylum application is denied, the case is “referred” to Immigration Court.   That process can take from 2-5 years, depending upon the judge’s caseload and other factors.  There will be a final court hearing where the applicant will be allowed to present evidence and testimony again in support of their case.  The immigration judge usually makes a decision at the conclusion of the hearing. 

If the judge denies the case, the applicant can appeal to the Board of Immigration Appeals, and then to the U.S. Court of Appeals for the Ninth Circuit.  These appeals are often denied, but the appeal process can take up to five years or even more. 

During this process, the applicant is permitted to remain legally in the U.S. and their time waiting is not considered time “out of status” for purposes of the law penalizing persons out of status in the U.S. 

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K & G Immigration Law offering legal representation for immigrants since 1988.

WARNING: The foregoing is a
summary generally discussing legal issues. It is not intended to be a
substitute for legal advice. We recommend that you get competent legal advice
specific to your case before filing any application or petition.

HERE’S THE LATEST ON IMMIGRATION REFORM

 

The Congress of the U.S. is busily considering immigration reform legislation that would impact the lives of many undocumented immigrants.  Here’s an update:

• The House of Representatives have now passed the Build Back Better bill with  an immigration “parole” proposal that would help approximately 7.1 million undocumented and over 1 million Californian immigrants;
• Also, many would then be eligible to adjust their status to a green card here without leaving the country; 
• Basically, most everyone with an adult child born here then could file for permanent residence who are now currently ineligible;
• The parole option has to survive the judgment of the Senate Parliamentarian that it is sufficiently related to the budget to pass with 51 votes through reconciliation;
• If the Parliamentarian approves, this has a real chance; the Democrats would just have to make sure all 50 of their own voted for it

#K&G Immigration Law #CIR #ImmigrationReform

 Relevant links:

 

The Democrats' Bill Could Change the Lives of More Than 7 Million Undocumented Immigrants. https://time.com/6111649/reconciliation-bill-immigration/

 

https://www.americanprogress.org/issues/immigration/news/2021/10/12/506301/including-immigration-parole-reconciliation-will-help-millions/

 

https://www.rollcall.com/2021/11/03/divisions-among-democrats-threaten-immigration-plan/

 

https://www.npr.org/2021/02/26/971793277/who-the-senate-parliamentarian-who-ruled-against-a-minimum-wage-increase

 

https://www.ppic.org/publication/undocumented-immigrants-in-california/

 

 

 

Eliminación del sistema de cuotas para jueces de inmigración

 Liliana C. Gallelli, abogada de inmigración

(707) 433-2060 / liliana@legalkg.com 

La Administración Biden ha derogado el sistema métrico de la era Trump para evaluar el desempeño del juez de inmigración, en función de la cantidad de casos que el juez adjudicó por año. En ese sistema, la finalización de 700 casos por año se consideraría un desempeño "satisfactorio" por el juez. El nuevo memorando de política, publicado el 19 de octubre de 2021, ya se ha distribuido a los jueces de inmigración para su implementación inmediata.

 

Esta autora ha ido a juicio en cientos de casos ante un juez de inmigración y un caso debidamente escuchado presentado por el inmigrante, incluido el testimonio del inmigrante y de los testigos, por lo general toma alrededor de una audiencia de 4 a 10 horas (continúa en dos fechas). Luego, el juez debe emitir una decisión escrita de varias páginas, analizando cada elemento de la ley y todas las pruebas presentadas por las partes. El abogado generalmente tiene que escuchar al juez de inmigración emitir su decisión y generalmente toma más de una hora. Entonces, en promedio, la audiencia de cada individuo debería tomar al menos 5 horas. Los jueces de la era Trump tomaban decisiones en una hora, lo que necesariamente incluía tácticas como usurpar el testimonio directo del inmigrante y negar las solicitudes de testimonio de testigos. Por razones obvias, incluidos los principios del debido proceso, las políticas de inmigración de la era Trump generaron inmensas críticas de los jueces y defensores de la inmigración. Los jueces de inmigración argumentaron con razón que la política les quitó autoridad.

 

"La Agencia está en el proceso de desarrollar nuevas medidas de desempeño, basándose en medidas pasadas exitosas y aportes apropiados, que reflejarán con precisión la carga de trabajo de un juez de inmigración. Estas nuevas medidas de desempeño se enfocarán en el equilibrio y la equidad para los diversos tipos de asignaciones de expedientes ", dice el memorando del martes.

La presidenta del sindicato de jueces de inmigración, Mimi Tsankov, declaró en respuesta que "La suspensión de las métricas es un excelente primer paso ... Ahora esperamos la oportunidad de que la gerencia reconozca al sindicato de la Asociación Nacional de Jueces de Inmigración y trabaje con nosotros para establecer las medidas adecuadas. para que la agencia evalúe su productividad y garantice el debido proceso para las partes ante nosotros y los propios jueces ".

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La abogada Liliana Gallelli ejerce la abogacía desde 2004, se especializa en inmigración y actualmente es socia del bufete de abogados Kerosky & Gallelli. Todos los aspectos de la inmigración, incluida la defensa contra la deportación, el asilo, las peticiones familiares, la naturalización y las visas de negocios. También eliminación de antecedentes penales. Para comunicarse con la Sra. Gallelli, envíe un correo electrónico a liliana@legalkg.com. El contenido de este artículo no pretende ser un consejo legal. Abogado de inmigración (Liliana@legalkg.com)

www.kgimmigrationlaw.com, 707-433-2060, info@legalkg.com

Copyright, Liliana Gallelli, Esq. 

Quota System for Immigration Judges Eliminated

 By Liliana C. Gallelli, Immigration Attorney

(707) 433-2060 / liliana@legalkg.com

The Biden Administration has repealed the Trump era metric system for evaluating Immigration Judge’s performance, based on how many cases the judge adjudicated per year.  In that system, a completion of 700 cases per year would be deemed a “satisfactory” performance by the judge.  The new policy memorandum, released October 19, 2021, has already been disseminated to Immigration Judges for immediate implementation.

This author has gone to trial in hundreds of cases before an immigration judge and a properly heard case presented by the immigrant, including the immigrant’s and witness testimony, usually takes about a 4-10 hour hearing (continued over two dates).  Then, the judge must render a multiple page written decision, analyzing each element of the law and all the evidence submitted by the parties.  Counsel usually has to sit and listen to the immigration judge render his or her decision and it usually takes over an hour.   So, on average, each individual’s hearing should take at least 5 hours.  Trump era judges were rendering decisions within an hour, which necessarily included tactics such as usurping direct testimony from the immigrant and denying requests for witness testimony.  For obvious reasons, including due process principles, the Trump-era immigration policies drew immense criticism from immigration judges and advocates.  Immigration judges rightfully argued that the policy took away from their authority.

"The Agency is in the process of developing new performance measures, drawing from past successful measures and appropriate input, that will accurately reflect the workload of an immigration judge. These new performance measures will focus on balance and equity for the various types of docket assignments," the Tuesday memo reads. The president of the immigration judge union, Mimi Tsankov, stated in response that "Suspension of the metrics is an excellent first step…We now await the opportunity for management to recognize the National Association of Immigration Judges union and work with us to establish appropriate measures for the agency to assess its productivity and ensure due process for the parties before us and judges themselves."

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Liliana C. Gallelli

Attorney Liliana Gallelli has been practicing law since 2004, focusing in immigration law and currently a partner at the law firm Kerosky & Gallelli. All aspects of immigration including deportation defense, asylum, family petitions, naturalization and business visas. Also elimination of criminal record. To contact Ms. Gallelli, please email liliana@legalkg.com. The content of this article is not intended to be legal advice.

 www.kgimmigrationlaw.com, 707-433-2060, attorney@legalkg.com

Copyright Immigration Attorney (Liliana@legalkg.com)