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Business Immigration - What's New

• Special Registration

• E-Filing: How to Apply for Immigration Benefits Without Shoes

• Money for Nothing and Your Chicks for Free

• E-filing at the BCIS

• Jack and Gunter: A Love Story

• Observations from a Casual Observer

• They’re Coming to Get You, Well Maybe Not You: Part I

• They’re Coming to Get You, Well Maybe Not You: Part II

• What the INS Giveth, They Taketh and Then Giveth Again ... Maybe: Part I

• What the INS Giveth, They Taketh and Then Giveth Again ... Maybe: Part II

topSpecial Registration

The BIC has a Special Registration Portal, where you can download Form AR-11. AILA has posted a press release, urging the repeal of the registration provisions and has made additional information available on its Advocacy Center.

topE-Filing: How to Apply for Immigration Benefits Without Shoes

Summer is often associated with laziness. (The dog days of summer.) Well the Bureau of Citizenship and Immigration Services (BCIS, formerly the INS) has made it easier to be lazy this summer. They have made two of the most popular forms available for E-filing. Forms I-90 (green card replacement application) and the I-765 (work authorization application) are now available to for E-filing.

These forms were chosen because they account for almost 30% of all BCIS applications and because they are not accompanied by very many supporting documents.

For those who file electronically, the identity of the applicant is confirmed early in the application process. BCIS will also electronically collect a photograph, signature, and fingerprint for the individual. These biometric data are stored and can be used later for verification of the person’s identity. Approved applicants receive immigration documents with special security features produced from BCIS’ centralized card production facility.

E-filers do not have to submit photographs at the time they file their applications. Instead, they will schedule themselves for an appointment to visit an Application Support Center (ASC) at a convenient time for the electronic collection of a photograph, signature, and fingerprint. After filing electronically, customers will schedule their appointment by calling the National Customer Service Center at (800) 375-5283.

As an added convenience, E-filers will also be able to pay the fees for these applications online through the electronic transfer of U.S. funds from their checking or savings account, eliminating the need to obtain a money order or cashier’s check. The BCIS plans to start accepting credit card payments for e-filed cases later this year. For additional information on e-filing requirements, please visit them at www.uscis.gov.

E-filers or those who have an application pending at one of BCIS’ Service Centers can check the status of their application on line by visiting www.uscis.gov.

This is a brand new program and early indications from other practitioners is that it is working well, so far. We have yet to have an opportunity to use this feature, but when we do we will pass along our review.

topMoney for Nothing and Your Chicks for Free

Any immigration lawyer who practices for more than one week will inevitably be faced with questions regarding immigration through marriage. Marriage is such an attractive immigration tool because all you need is someone of the opposite sex and true intentions of love and desire to be married. The opposite sex part is easy and lure of quick money often takes care of the “love” part.

Immigration lawyers are often faced with questions on how to pull off this scam or as the government likes to call it, “marriage fraud.” The vast majority of practitioners will tell these inquirers politely that what they are proposing is illegal and not the right thing to do.

Last week two Californians found this out. The two, originally from Cambodia were arrested and charged with fraud and conspiracy to evade immigration laws in an 11-count indictment handed up by a federal grand jury in New Haven, Connecticut.

Tin Iv, 72 and Chan Champa, 28 were accused of taking money from the families of Cambodian nationals as payment for arranging the marriages. Federal prosecutors said U.S. citizens in California and Connecticut were paid to travel to Cambodia and marry Cambodian nationals, allowing the Cambodians to obtain U.S. immigrant visas. The U.S. citizens, including 15 from Connecticut, were allegedly paid cash for taking part in the marriage ceremonies.

Iv is named as a defendant in all 11 counts of the indictment and faces a maximum of 55 years in prison and $2.75 million in fines. Champa is charged in one count and faces up to five years in prison and a $250,000 fine.

topE-filing at the BCIS

The Bureau of Citizenship and Immigration Services has entered the age of E-Filing.

Forms I-90 (green card replacement application) and the I-765 (work authorization application) make up about 30 percent of the 7 million applications filed with the Bureau ever year and they now will be able to be e-filed.

According to the BCIS, these two forms were selected for starters because they account for 30% of all BCIS applications and because they usually are not accompanied by very many supporting documents.

Note that not all I-765 applications may be submitted electronically. Applicants who fall under the following categories are not able to file electronically:

Category 274a.12(a)

(1) Lawful Permanent Resident

(2) Legalization Temporary Resident

(9) K-3 Nonimmigrant Spouse of U.S. Citizen or K-4 Dependent

(12) Temporary Protected Status

(TPS) - Angola, Burundi, El Salvador, Liberia, Montserrat, Sierra Leone, Somalia, Sudan

(14) LIFE Legalization

(15) V-1, 2 or 3 Nonimmigrants

Category 274a.12(c)

(1) Dependent of A-1 or A-2 Foreign Government Officials

(4) Dependent of G-1, G-3 or G-4 Nonimmigrants

(7) NATO Dependent

(10) NACARA Section 203 Applicants who are eligible to apply for NACARA relief with INS

(13) Not in use.

(14) Deferred Action

(15) Not in use.

(19) Temporary Treatment Benefits - Angola, Burundi, El Salvador, Liberia, Montserrat, Sierra Leone, Somalia, Sudan

(21) S Nonimmigrant

(23) Irish Peace Process

(24) LIFE Legalization

The BCIS is already working on six other forms that should be ready for e-filing in the future.

• Form I-129, Petition for Nonimmigrant Worker;

• Form I-131, Application for Travel Document;

• Form I-140, Immigrant Petition for Alien Worker;

• Form I-539, Application to Extend/Change Nonimmigrant Status;

• Form I-821, Application for Temporary Protected Status;

• Form I-907, Request for Premium Processing

The BCIS believes that these forms will be ready for e-filing sometime this autumn or at least by the end of the year.

topJack and Gunter: A Love Story

The story of a rugged German boy who marries an idealistic young American boy. Follow their tale of love and Gunter’s immigration to the United States as Jack’s permanent partner.

As U.S. immigration law stands today, this would be a purely fictional story. U.S. immigration law does not currently recognize marriages of same-sex couples, but there is a movement to change that. A bill in the U.S. House of Representatives that would grant same-sex couples the same benefits afforded to legally married couples under U.S. immigration law now has the support of 100 cosponsors. James Greenwood, a Republican congressman from Pennsylvania, was the 100th House member to sign on to the bill.

The most prominent feature of the Permanent Partners Immigration Act is allowing U.S. citizens and lawful permanent residents who are in a permanent partnership to sponsor their partners for immigration purposes, just as any legal spouse would.

"The legislation is just common sense," Nadler said. "That's why it has reached the triple-digit mark in cosponsorship two Congresses in a row--and bipartisan cosponsorship at that."

topObservations from the Casual Observer

Illegal Immigrants often give their employers fake documents and the employers often accept them!

Richard M. Stana of the General Accounting Office told a congressional immigration panel that many employers, who are required by federal law to check a prospective employee's Social Security card or other identity papers, knowingly accept counterfeit documents. "Often times employers don't want to know," Stana told the House Judiciary Subcommittee on Immigration, Border Security and Claims. "It's a source of cheap labor, so they'll look at the card and say, 'That looks good to me.' " There have been many reported cases of employers actually providing new employees with “safe” names and social security numbers.

In 1986 Congress passed an act granting amnesty to about 3 million illegal aliens. Incorporated within the act were sanctions established for employers who knowingly hired persons not authorized for work in the United States.

Illegal aliens quickly began to produce and purchase either fake identification or identification of others eligible to work. Employers began to be faced with the dilemma of having to turn away illegal aliens, who they have traditionally relied upon to provide them cheap, reliable labor, or face the consequences of sanctions for the use of these illegals.

False documentation, spotty enforcement efforts by federal immigration authorities and willful blindness by employers have led to this provision of the 1986 act being all but a joke. The Social Security Administration has increased their efforts to issue “No-Match Letters” to employers and employees who social security numbers do not match their names or is not valid for employment. The SSA has begun sharing this information with the Internal Revenue Service who will issue a warning to the company that any W-2 which contains a false or inappropriate social security number will result in a fine of $50 for every non-corrected W-2. That will teach ‘em!

topThey’re Coming to Get You, Well Maybe Not You

Part I

New teams of federal agents with orders to hunt and expel some illegal immigrants are producing large numbers of deportations, according to federal officials, government documents and immigrant advocates. As we used to say in grade school, “You have three guesses of which illegal immigrants they are focusing on, and the first two don’t count.” That’s right, the Muslims.

The teams target illegal immigrants who have been ordered to leave the country and who have committed serious crimes or are from nations, mostly Muslim, that sponsor terrorism. The operation is broken into two parts: the Absconder Apprehension Initiative Teams, which hunt illegal immigrants from nations that sponsor terrorism, and Fugitive Operation Teams, which target criminals. The following is directly from the Department of Justice’s Website:

Absconder Apprehension Initiative (AAI). On January 25, 2002, the Deputy Attorney General directed the INS, FBI, USMS, and the United States Attorneys' Offices to implement the AAI to target for removal the more than 300,000 absconders in the United States. The FBI and USMS were directed to assist the INS with apprehensions while the United States Attorneys, at the INS's request, would prosecute absconder cases. Under the AAI, backlogged cases are reviewed and those containing sufficient biographical information are entered into the National Crime Information Center (NCIC).20 As of December 2002, the INS reported that the AAI program had resulted in 2,070 apprehensions and 522 removals. The AAI initially focused on absconders from countries with an active al Qaeda presence, followed by absconders with criminal records, and finally on non-criminal cases and cases of unverified voluntary departure.

Al Qaeda has been found to operate in more then sixty countries around the world, including Germany, the United Kingdom, Spain and of course right here in the U.S. Citizens from these countries have not yet been the targets of this team, however. There are an estimated 8 million illegal immigrants in the United States. About 300,000 illegal immigrants have been ordered to leave and are still in the country, according to a Department of Justice report issued in February.

"We never had the resources to go after these people before," said a federal Homeland Security official who spoke on the condition of anonymity, saying homeland security officials are not supposed to discuss the initiative because it's in the early stages. The teams operate quickly and with little publicity.

The teams, the official said, "are kicking some butt. I know their deportation numbers are just skyrocketing." Dearborn, Mich., immigration lawyer Nabih Ayad agrees that the government is "extremely aggressive now" but said the tactics unfairly single out Muslims. "It's a witch hunt out there," Ayad said.

Both teams were established as part of antiterror measures following the Sept. 11, 2001, attacks.

topThey're Coming to Get You, Well Maybe Not You

Part II

In April, the Justice Department's Office of Legal Counsel concluded that local law enforcement authorities had the right to make arrests for civil violations of federal immigration laws, such as the overstaying of visas. That reversed a 1996 Justice Department decision that precluded local police from doing so.

This decision worries many immigrant rights advocates. This new policy's effect could very well be to discourage immigrants from coming forward to report crime or to assist the police in the investigation of crime.

Sylvester Johnson, the Chief of Police for the Philadelphia Police Department, has stated repeatedly that the City of Philadelphia Police force does not inquire into the status of anyone reporting or assisting officers in the investigation of crime.

Outlying areas of Philadelphia have not been as generous. The District Attorney of nearby Northampton County, John Morganelli, stated well before this Justice Department ruling, that he was making it a priority to go after illegal immigrants. Back in November of 2001, The Morning Call, a paper out of Lehigh, Pennsylvania reported that Northampton County District Attorney John Morganelli has requested the names, addresses and visa status of foreign students attending Lehigh, as well as Lafayette, Moravian and Northampton Community colleges.

According to the article, he requested the information in response to the federal governments crackdown on illegal immigration since the Sept. 11 terrorist attacks.

While the Justice Department's Office of Legal Counsel public assertion regarding the role local authorities can rightfully play in the enforcement of immigration law is new, the suspicion that the Justice Department has been encouraging this for sometime, is not.

Immigrant advocates and civil rights groups are suing the Justice Department for documents explaining the extent state and local police are to enforce non-criminal immigration laws. The suit, filed Monday April 14, in federal court in Manhattan, comes after the advocates and groups tried to obtain the documents through a Freedom of Information Act request.

"What's at stake here is the public's ability to know what the government is doing," said Omar Jadwat, an attorney with the Immigrants' Rights Project at the American Civil Liberties Union, one of the groups suing to get the information released. "We're in the dark about how this policy is being used."

Seeking to understand the justification for the change led many of the immigrant groups, including the Manhattan-based New York Immigration Coalition, to file a Freedom of Information Act request in August. The request was denied by the Justice Department, citing "deliberative process privilege."

A subsequent appeal also was denied by the agency. The Justice Department has 30 days to respond to the lawsuit.

Parts Taken from the April 16, 2003 Newsday Article “Immigration Policy Challenged, "By Mae M. Cheng STAFF WRITER for Newsday

topWhat the INS Giveth, They Taketh and Then Giveth Again ... Maybe

Part I

Effective January 24th the INS lowered most of their application fees. The Homeland Security Act of 2002 (HSA) directed the INS to stop collecting the portion of fees which went to fund asylum and refugee services and the fee waiver and exemption programs. What the HSA did not do was to provide an alternative source of funding for these services. Eventually someone in Congress noticed and Congress passed a $347.4 billion spending bill, which included an order for the INS to raise the lowered fees to again pay for these services.

Many immigrant advocates have long argued that it is unfair for immigrants to bear the cost of asylum and refugee services and that Congress should directly provide the funding. INS spokesman Bill Strassberger said the agency is reviewing the new law, but did not indicate when and if fees will again be raised.

topWhat the INS Giveth, They Taketh and Then Giveth Again ... Maybe

Part II

Every year some lucky immigrants learn that they have won the lottery. They did not win Powerball or another one of the lotteries around the country, they have won the Department of State's annual diversity lottery. This lottery is held for citizens of countries that are underrepresented on America's immigration rolls. Winning this lottery does not guarantee the immigrant riches beyond belief, but it does allow the immigrant to receive permanent residency on the way to citizenship, or that is what is supposed to happen.

Charles Kibaara Nyaga from Kenya was one of the lucky ones to win the diversity lottery in 1997. He and his wife were understandably excited and filed the diversity visa application in February of 1998 with the INS. INS did nothing to process the application beyond the sending the fingerprints to the FBI, while Nyaga's eligibility for the diversity visa expired at midnight on September 30, 1998.

Nyaga did not find out that he and his wife's hopes for the visa had expired as the calendar turned to October of 1998 until January 2001. Nyaga foolishly followed the instructions on the diversity visa application by not inquiring as to the status of his case. In January of 2001 he was called in with his wife to the INS offices for an interview regarding permanent residency. He must have felt that his three year wait was almost over. He was wrong.

When Nyaga and his wife arrived for the interview, an INS representative told the couple that Nyaga's diversity visa lottery information could not be located and thus his request for a visa based on the visa lottery was denied. Nyaga sued the INS in the US District court for the Northern District of Georgia and won. Chief Judge Orinda D. Evans ordered the INS to process Nyaga's application.

John Ashcroft and the INS appealed to the Eleventh Circuit and won. The Eleventh Circuit reversed the District Court declaring the issue moot. “Nyaga's eligibility for a diversity visa expired at midnight on September 30, 1998. Therefore, Nyaga is not ‘eligible to receive an immigrant visa,’ and the Attorney General lacks the authority to adjust Nyaga's status to that of a lawful permanent resident ... As a consequence, the district court could not provide meaningful relief to the Plaintiffs, and should have dismissed the action as moot,” reasoned the 11th Circuit.

In briefs submitted to the 11th Circuit, Linda S. Wernery, a Justice Department lawyer representing the INS wrote, "The INS inadvertently failed to expedite Nyaga's adjustment application and was unable to adjudicate the application within fiscal year 1998 because it is simply overburdened." Wernery concluded that the INS did not violate any statute or regulation: "At most, this is simply a case of unexplained delay or inaction and thus does not rise to the level of affirmative misconduct."

US Senator Zell Miller, D-Ga., pledged his support to the couple. "The INS' handling of this couple's visa application was deplorable," Miller said in a statement issued by his spokeswoman. Miller added that the case was the latest example of the INS being "dysfunctional and incompetent," a reason he supported the bill that placed immigration decisions within the new Department of Homeland Security's Bureau of Citizenship and Immigration Services.

Circuit Judge Barkett dissented stating, “I question the propriety of this judgment because, under the majority's reading of the statute, Nyaga faces an intractable conundrum. Nyaga was rendered technically ineligible for relief ..., not due to any error of his own, but rather as the result of the INS' unilateral failure to comply with the directives of the INA (Immigration and Nationality Act). Such a result is particularly offensive because it is clear from the statute that Congress expected the INS to perform the ministerial duties required by the program (i.e. to assure the distribution of the allotted visas) and, thus, ...Nyaga was entitled to have the INS adjudicate his timely filed diversity visa application.”