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President Trump’s  Executive Order signed on January 27, 2017, “Protecting the Nation from Foreign Terrorist Entry into the United States”, also affects  Legal Permanent Residents from Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen.  The Executive Order cites to 8 U.S.C. Sec. 1182(f), which permits the President “by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”  The Immigration and Nationality Act defines an “alien” as “any person not a citizen or national of the United States.”  8 U.S.C. Sec. 1101(a)(3).  Legal Permanent Residents fall under this definition.  Even though Legal Permanent Residents are not “applicants for admission” unless they have committed certain acts, the broad language of 8 U.S.C. Sec. 1182(f) references “entry” and not “admission” and therefore, the Executive Order will affect Legal Permanent Residents’ entry in the United States.

The Order provides DHS with limited discretion to permit entry to certain aliens on a case-by-case basis.  Sections 3(g) and 5(e) provide for discretion on a “case by case basis” but only if they determine that admission of such person is in the national interest.  Continue reading →

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President Trump issued an executive order entitled Enhancing Public Safety in the Interior of the United States, which includes a list of violations or acts that may make an alien a priority for removal.  The list describes aliens who are inadmissible or removable for having committed certain crimes, pose security threat, have committed fraud or have willfully misrepresented a material fact to apply for immigration benefits, arriving aliens, aliens who have entered without inspection and have been present for less than two years in the United States.

The order specifically states that the administration will treat as enforcement priority removable aliens (which includes aliens that may have overstayed, or are here unlawfully) if such aliens (a)  Have been convicted of any criminal offense; (b)  Have been charged with any criminal offense, where such charge has not been resolved; (c)  Have committed acts that constitute a chargeable criminal offense; (d)  Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency; (e)  Have abused any program related to receipt of public benefits; (f)  Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or (g)  In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

The order also requires DHS to use a report from sanctuary jurisdictions that refuse to comply with a federal detainer, and to publish on a weekly basis a “list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.”

The order also seeks from all federal agencies “to the extent consistent with applicable law” to ensure that their privacy policies do not cover aliens other than lawful permanent residents.  In other words, the “personally identifiable information” of aliens (other than permanent residents) that may be on this list will be not be protected.  The Office of Management and Budget (OMB) defines personally identifiable information as follows:  “information which can be used to distinguish or trace an individual’s identity, such as their name, social security number, biometric records, etc. alone, or when combined with other personal or identifying information which is linked or linkable to a specific individual, such as date and place of birth, mother’s maiden name, etc.”

The executive order does not appear to consider DACA recipients a priority, nor people who have been in the US unlawfully for more than two years, unless they have committed a crime, engaged in fraud, abused program to received public benefits, or otherwise present security threat.  There is hope that law abiding undocumented aliens will not be considered as priority for removal now and in the future. Continue reading →

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The Administrative Appeals Office (“AAO”) recently scrapped the “national interest waiver” test of In re N.Y. STATE Dep’t OF Transp., 22 I. & N. Dec. 215 (1998) and replaced it with a new one in Matter of DHANASAR, 26 I. & N. Dec. 884 (AAO 2016).

The AAO determined that the test USCIS has been following for the last 18 years was too subjective, and promised that the new framework “will provide greater clarity, apply more flexibility to circumstances… and better advance the purpose of the broadd discretionary waiver provisions to benefit the United States.”   Id. at 888.

National Interest Waiver

To receive a national interest waiver, the petitioner must meet the statutory requirements in Section 203(b)(2) of the Immigration and Nationality Act.  This Section states in relevant part:

(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of Exceptional Ability. —

(A) In General. — Visas shall be made available . . . to qualified immigrants who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States.

(B) Waiver of Job Offer. — The Attorney General may, when he deems it to be in the national interest, waive the requirement of subparagraph (A) that an alien’s services in the sciences, arts, professions, or business be sought by an employer in the United States.

Under Section A, the petitioner must establish that the alien is (i) either a “member of the professions holding advanced degrees or their equivalent” or (ii) has “exceptional ability” in one or more of the enumerated fields; and (iii) will “substantially benefit prospectively” the national economy, cultural or education interests, or welfare of the United States.  Once the petitioner meets the threshold requirement of subsection A, the petitioner must demonstrate that forgoing the requirement for a job offer and labor certification (a test for availability of U.S. workers) can be “deemed to be in the national interest.”Id. Continue reading →

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The immigration attorneys at Zneimer & Zneimer PC reviewed a noticed the Department of Homeland Security published in the Federal Register that announced the decision of DHS to increase its fees for numerous USCIS applications, effective December 23, 2016.  Even though the notice euphemistically calls the fee increase “adjustment” of fees, the result is a significant fee increase “by a weighted average increase of 21 percent.”  The applications for naturalization will have three levels. The N-400 will increase from from $595 to $640.  DHS will charge no fee to some applicants who have received a waiver or who have served in the military.  DHS will also have a reduced fee of $320 for applicants with family income greater than 150 percent but not more than 200 percent of the Federal Poverty Guidelines.  Additionally, USCIS will remove the regulatory provisions that prevent “USCIS from rejecting an immigration or naturalization benefit request paid with a dishonored check or lacking the required biometric services fee until the remitter has been provided an opportunity to correct the deficient payment.” The fee increase is substantial and becomes effective on December 23, 2016. This is the first fee adjustment since November 23, 2010.  The new fee must be submitted with all applications “mailed, postmarked, or otherwise filed” on or after December 23, 2016.

Applicants who want to avoid this increase should contact an immigration attorney as soon as possible to ensure that their application is filed before December 23, 2016.

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CalendarA foreign national can file an application to become a permanent resident if the foreign national has an immediately available visa.  A petitioner files an immigrant petition on behalf of a foreign national to establish the foreign national’s eligibility to immigrate to the United States and the US government sets aside an immigrant visa for the foreign national based on the approved immigrant petition.  The immigrant petition can be based on family relationship or on employment, and the filing date of the petition with USCIS determines the “priority date” of the foreign national for purposes of visa availability.

USCIS announced that for the purposes of adjustment of status, it will not be bound by the State Department decision, but it will decide every month which date to use – the “filing date” or the “final action date” from the Visa Bulletin. For the month of October, the USCIS will accept adjustment applications earlier as it will use the October Visa Bulletin “filing date” for all family based categories and for most employment based categories.  People who qualify should file as soon as possible before the November Visa Bulletin as the USCIS may change its mind at that time.

Continue reading →

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The immigration lawyers at Zneimer & Zneimer learned of a proposed regulations by the Department of Homeland Security  to make it easy for enterprising foreign nationals to set up business in the US without the constraints of employer sponsored petitions that limited foreign nationals to an employer specific job and location. Under the proposed rule the DHS will use parole on a case-by-case basis for certain “entrepreneurs of start-up entities whose entry into the United States would provide a significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation. Such potential would be indicated by, among other things, the receipt of significant capital investment from U.S. investors with established records of successful investments, or obtaining significant awards or grants from certain Federal, State or local government entities.” According to the proposed regulations, “If granted, parole would provide a temporary initial stay of up to 2 years (which may be extended by up to an additional 3 years) to facilitate the applicant’s ability to oversee and grow his or her start-up entity in the United States.” This is good news because immigrants have made significant contributions to the US economy and have created hundreds of thousands of jobs.

Comments can be submitted through web, email, mail, or hand delivery. The prposed rule is identified by DHS Docket No. USCIS-2015-0006. To submit comments

  • Federal eRulemaking Portal: Follow the Web site instructions for submitting comments.
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Recently addresses in our accident blog, was the issue of DUI checkpoints that disproportionately target minority communities in Chicago’s 22 districts. Intertwined with this issue, though, is a much deeper one, which pro-immigrant activists say suggests possible collusion between Chicago Police and Immigration and Customs Enforcement (ICE). For undocumented immigrants, the impact of Chicago’s approach to selecting sobriety checkpoints locations can be described as two-fold, because not only are they targeted more frequently, but they also face harsher consequences. As immigration attorneys, we take issue with sobriety checkpoints being used as a tactic to detain and deport immigrants, rather than a means to reduce and prevent drunk driving.

Disproportionate Targeting

Crash data shows that alcohol-related incidents occur at similar rates in all communities, irrespective of racial make-up. Yet, more than 80% of DUI checkpoints are placed in minority neighborhoods. Because, undocumented immigrants often reside in these minority communities, the potential for encountering a sobriety checkpoint is far greater.

Disproportionate Penalties

Under Illinois law, driving under the influence is considered a ‘class A misdemeanor offense’. ICE, though, classifies them as a “significant misdemeanor,” which by definition, is defined as:

“an offense of domestic violence, sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or driving under the influence, or if not an offense listed above, one for which the individual was sentenced to time in custody of 90 days or more […].”  

For immigrants, simply being charged with an offense classified as a ‘significant misdemeanor’ can be devastating, regardless as to whether conviction for the crime actually occurs. Under policy guidelines “for the apprehension, detention and removal of undocumented immigrants,” issued by President Obama in November 2014, offenses categorized as “significant misdemeanors” are ranked amongst the highest priority for deportation. Consequently, undocumented immigrants charged with DUI face deportation, unless they qualify for asylum, other relief, or “there are factors indicating that the alien is not a threat to national security, border security, or public safety […].”

Continue reading →

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On September 9, 2015, USCIS announced revised procedures for determining when applicants can file  for Adjustment of Status.  Currently, a person cannot file for adjustment of status until his or her priority date becomes current.  Under the revised guidelines, the USCIS will permit employment-based applicants to file for adjustment of status at an earlier date determined by a cut-off date in the Visa Bulletin on a separate chart.
In coordination with Department of State, the USCIS will monitor the two charts per visa preference category that will be published in the DOS Visa Bulletin:

  • Application Final Action Dates (dates when visas may finally be issued); and
  • Dates for Filing Applications (earliest dates when applicants may be able to apply).

The USCIS will monitor the visa numbers and will include cutoff dates in the Department of State Visa Bulletin Chart.  Each applicant can use the chart to determine whether he or she could apply for adjustment of status.  The October 2015 Visa Bulletin currently shows the two charts.

Continue reading →

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Imagine that a company is in engaged in a labor dispute with a union over the conditions of employment. Soon after a tentative agreement is made, but not signed, Immigration and Customs Enforcement (ICE) sends a subpoena for I-9 forms and notice of inspection.  Based on the ICE inspection, the company disregards its agreement, hires temporary workers, and asks its union workers to train the temporary workers.  Soon thereafter, it begins firing its union worker on the basis of “suspect” work authorization documentation.  The immigration attorneys of Zneimer & Zneimer PC think that if anything is “suspect,” it would be the insertion of ICE in the middle of a labor dispute.

The above story is not hypothetical.  It is happening to union workers in Ruprecht Company in Mundelein, Illinois.  Citing the ICE investigation, Ruprecht disregarded its bargaining obligation to UNITE HERE Local 1 and began firing workers after having them train their replacements.

ICE needs to step out of the fray.  The Revised Memorandum of Understanding between the Departments of Homeland Security and Labor Concerning Enforcement Activities at Worksites is not ambiguous.  It states:

Except as noted in paragraph C, ICE agrees to refrain from engaging in civil worksite enforcement activities at a worksite that is the subject of an existing DOL investigation of a labor dispute during the pendency of the DOL investigation and any related proceeding. ICE will continue its existing practice of assessing whether tips and leads it receives concerning worksite enforcement involve a worksite with a pending labor dispute. DOL agrees to assist ICE’s efforts under this paragraph by providing ICE with timely and accurate information to allow for identification of overlapping enforcement activity.

Paragraph C states:

Notwithstanding paragraph A, ICE may engage in worksite enforcement activities at a worksite that is the subject of a pending labor dispute if-

  • the Director or Deputy Director of ICE determines the enforcement activity is independently necessary to advance an investigation relating to national security, the protection of critical infrastructure (e.g., ports, power plants, or defense facilities), or a federal crime other than a violation relating to unauthorized employment;
  • the enforcement activity is directed by the Secretary of Homeland Security; or
  • the enforcement activity is requested by the Secretary of labor, the Solicitor of labor, or
    another Department of labor official designated by the Secretary of labor.

Ruprecht is a meatpacking plant, which does not implicate national security, nor has the Department of Labor requested enforcement activity.   The involvement of ICE is highly suspect as it provides a pretext to the company to fire union workers.  Continue reading →

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The immigration lawyers of Zneimer & Zneimer remind foreign nationals to monitor their passport expiration dates.  Many foreign nationals traveling to the United States do not realize that their period of admission is tied to the expiration date of their passports.

The general rule is that visitors coming to the U.S.  must have passports that are valid for six months beyond the period of their intended stay in the U.S.   This means that a foreign national who has an approved petition for three years, but whose passport expires in eight months, will be admitted only for two months.  This is so because the foreign national must have a passport valid for at least six months beyond the period of admission.  As the foreign national’s passport is valid for eight months, he or she will only be admitted for two months.

There are certain countries, which are exempted from the general passport requirements.  However, citizens of these countries must still have a valid passport for the full period of intended stay but are not required to have a valid passport for six months beyond the intended period of stay.   If a foreign national from such country has an approved petition for three years, but presents at the border for a passport valid for eight months, he or she will be admitted only for eight months instead.

Foreign nationals who fail to realize timely that they have been admitted for a lesser period,  may find themselves and any derivatives out of status and unlawfully present, with possible severe consequences, including termination from employment, inadmissibility, and removability. 

Continue reading →