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The Chicago immigration lawyers of Zneimer & Zneimer handle employment-based immigration and are very familiar with the lengthy priority date line.  Many Indian and Chinese people who contribute to the economic engine of our country with knowledge, creativity, and skills, have been stuck for years in an invisible visa line that barely moves forward.  These neighbors and friends among us do their job and pay their taxes, but they never stop worrying if their sponsored job will last until the end of the visa line, if a whimsical regulation will deny them H-1B extension and make them out of status, if by the time they reach the end of the line, their minor kids will age out unable to become permanent residents.  Many people turn down a well-deserved promotion because it is not the sponsored job, and they need to keep the job with the same title, same description, same company, and work address, until they can file for the last step of the process, adjustment of status.

Priority date.  The law presumes that when an employer offers a permanent position to a noncitizen, the employer displaces a U.S. worker.  To sponsor a foreign worker, the employer therefore must test the U.S. market for U.S. workers, and only if there are no U.S. workers who are willing, able, qualified, and available to fill the job, the employer can receive a labor certification from the Department of Labor, and then file an immigrant petition on behalf of the foreign worker.  In some cases, where the work is in the national interest, the USCIS can waive the test of the U.S. market.  Once a petition is filed and approved, the foreign worker receives a “priority date”, which is the date in the Visa Bulletin that shows when a worker can receive his or her green card.   The “priority date” is like a number, that places the noncitizen in the visa line, and will be called when the visa becomes available.  For people born in India and China, this number is distant and the line is a decade-wait long.

These are legal immigrants, in jobs that U.S. workers were not willing, able, qualified, or available to take, but employers and our economy needed to be filled.  They may be doctors in rural and medically underserved areas, software engineers with unique skills, cancer researchers, radiation oncology physicists, and others.  All have Bachelor or higher degrees.  Due to the per country quota, a janitor born in another country does not have to wait for an immigrant visa, while a Nobel Prize winner from India must wait at least 2.5 years. Immigrants from India with Master Degree, M.D., Ph.D., even when the USCIS has found that their employment is in the national interest, must wait to receive an immigrant visa, or green card, for many years.

Visa Bulletin. That is why, when the State Department published the Visa Bulletin for October 2020, it created a stir.  Visas that could not be used due to the pandemic for consular processing, were released for people waiting on the employment line, moving the priority date forward.  The category for EB-3 (skilled workers and workers with Bachelor Degrees) moved faster than the category for EB-2 (advanced degrees or petitions in national interest). Continue reading →

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The Government must “turn square corners in dealing with the people” said on June 18, 2020, the United States Supreme Court in rejecting the Administration’s explanations why it wants to terminate DACA.  The Government instead of “turning square corners” skipped a few corners and the Court decided that its action in terminating DACA was arbitrary and capricious.   The Chicago Immigration lawyers of Zneimer & Zneimer PC finds very significant that  Supreme Court acknowledged that “there is so much at stake” and  characterized the relationship between the Government and the people as one that has demands on both sides.

Justice Holmes famously wrote that “[m]en must turn square corners when they deal with the Government.” Rock Island, A. & L. R. Co. v. United States, 254 U. S. 141, 143 (1920). But it is also true, particularly when so much is at stake, that “the Government should turn square corners in dealing with the people.” St. Regis Paper Co. v. United States, 368 U. S. 208, 229 (1961) (Black, J., dissenting).  DHS et al. v. Regents of Univ. of California, et al.  591 U. S. ____ (2020)(emphasis added)

On June 18, 2018, the United States Supreme Court determined that the Trump Administration violated the Administrative Procedure Act in their 2017 attempt to terminate DACA.  The Supreme Court did not answer the question whether or not DACA is lawful.  The Court only answered the question whether or not the DHS “complied with the procedural requirements” to provide a “reasoned explanation for its action.”  The Court stated that the Administrative Procedures Act requires agencies to engage in “reasoned decisionmaking” and that the DHS’s decision making was inadequate.

The Court stated:

Whether DACA is illegal is, of course, a legal determination, and therefore a question for the Attorney General. But deciding how best to address a finding of illegality moving forward can involve important policy choices, especially  when the finding concerns a program with the breadth of DACA. Those policy choices are for DHS.  DHS et al. v. Regents of Univ. of California, et al.  591 U. S. ____ (2020)

Continue reading →

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The Chicago immigration attorneys of Zneimer & Zneimer follow closely regulatory changes in the J waiver process and learned that recently the U.S. Department of Health and Human Services (HHS) has revised its guidelines for J Waivers for physicians subject to the 2-years foreign residency requirement.  HHS will now process applications for waivers from any facility in or with a health professional shortage area (HPSA) score of 7 or higher for foreign physicians to practice in a primary care specialty (family medicine, general internal medicine, general pediatrics, obstetrics & gynecology) or general psychiatry.

HHS acts as an Interested Government Agency (IGA) on behalf of  foreign physicians subject to the 2-years foreign residency requirement who agree to work for 3 years in certain areas.  Previously, the HHS only processed applications for facilities which were either:

  • A health center as defined under Section 330 of the Public Health Service Act, and  which is receiving a grant from the U.S. Health Resources and Services  Administration under this section;
  • A rural health clinic as defined under Sections 1102 and 1871 of the Social Security Act; or
  • A Native American/Alaskan Native tribal medical facility as defined by the Indian Self-Determination and Education Assistance Act (P.L. 93-638)

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Our Chicago immigration lawyers have sifted through the DHS’s regulations and answers to the regulatory comments to understand the DHS decision making process when applying the public charge rules.  The Public Charge rule prescribes how DHS and the State Department will determine whether a foreign national who is applying for admission or adjustment of status is inadmissible in the United States because the foreign national is likely at any time to become a public charge.  The rule defines as a public charge a person who receives one or more public benefits for 12 months during a 36-month period.  If the person receives two benefits in one month, this will count as two in the 12 months, and a person who receives two benefits for 6 months within any 36-months-period will be considered a public charge.

The public charge rule does not apply to U.S. citizens, even if the citizens are related to the foreign national that is subject to the public charge inadmissibility ground.  However, if a U.S. citizen sponsor receives public benefits, the DHS will consider this receipt a negative factor for the alien.  The public charge inadmissibility does not apply to aliens whom Congress has exempted.  In addition, DHS has statutory discretion to waive the grounds of inadmissibility for public charge.

DHS does not have a crystal ball to determine whether an alien is likely to become a public charge.  Instead, the agency adopted a totality of the circumstances framework. Under this framework, the DHS adjudicators will review several factors and make a decision based on all of the evidence that supports each factor, and all of the evidence that supports all factors.  Because each factor can be positive or negative, and some factors are heavily positive or heavily negative, it is essential to recognize which factors can tip the scale in either direction and to offset the negative factors with positive evidence.  If overcoming a negative factor is not possible, for example,  age,  concentrate on increasing the weight on other factors to tip the scale in your favor.  Remember that the burden is the preponderance of the evidence, which means more likely than not.

Age

As already mentioned, some factors are immutable.  You cannot change your age at the time of the application, and the age will be either a negative or a positive.  However, other factors provide more flexibility, and with good lawyering, one can make a convincing argument in one’s favor.  For example, a person may be elderly. Still, if the person has an education, good health, work experience, or is a caretaker of someone else,  these positive factors will offset the negative factor of age.   To show age, you can submit your passport or your birth certificate.  If your age is between 18 and 61, this is a positive factor.

Applicant’s Health

Good health is a positive factor.  Poor health is not necessarily a negative factor.  A negative factor will be a medical condition documented by the civil surgeon as likely to require extensive medical treatment or institutionalization or that will interfere with the applicant’s ability to provide and care for himself or herself, to attend school, or to work upon admission or adjustment of status.

If you have a medical condition, don’t despair as the agency is willing to review expert reports that can mitigate the negativity of this factor.  Your treater can provide a description, explaining that your condition is Continue reading →

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IMG_2890-225x300Our Chicago immigration attorneys at Zneimer & Zneimer PC assist people who need immigration help.  With the Coronavirus closing borders and keeping airplanes grounded, many foreign travelers are scared that they may not be able to leave the United States before their periods of admission expire.   The inability to leave the United States, however, does not suspend the application of the U.S. immigration laws.  Stranded passengers should apply for extension of status, if their current status can be extended, or change to a different status if it cannot, so that they do not accrue unlawful presence.  Yet travelers participating in the Visa Waiver Program (VWP), which enables citizens or nationals of participating countries to travel to the United States for tourism or business for stays of 90 days or less without obtaining a visa,1 are ineligible to either change their status or to extend their stay.  The only option for people admitted on ESTA is to make a Satisfactory Departure request that, if granted, provides additional time for them to leave the country without overstaying their authorized stay.  

According to the Code of Federal Regulations, “If an emergency prevents an alien admitted under [the VWP] from departing from the United States within his or her period of authorized stay, the district director having jurisdiction over the place of the alien’s temporary stay may, in his or her discretion, grant a period of satisfactory departure not to exceed 30 days. If departure is accomplished during that period, the alien is to be regarded as having satisfactorily accomplished the visit without overstaying the allotted time.”2 This is called a Satisfactory Departure.  Continue reading →

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The Chicago immigration attorneys of Zneimer & Zneimer follow closely the legal developments and litigation in the application of the Public Charge Rule.  The Department of Homeland Security’s regulations interpreting the Public Charge Inadmissibility include definitions and explanations about what factors DHS will consider in determining that a person is likely to become a public charge.  The DHS has enumerated the following factors:

  • Applicant’s Age
  • Applicant’s Health
  • Family Status
  • Applicant’s Assets, Resources, and Financial Status
  • Applicant’s Education and Skills
  • Applicant’s Immigration Status and Expected Period of Admission
  • Sponsor’s Ability to Support
  • Previous Public Charge Inadmissibility

The DHS will weigh each factor individually and cumulatively.  The DHS will assess the weighed degree to which each factor is negative or positive.  The factors will be weighed as positive, heavily weighed positive, neither positive or negative, negative, or heavily weighed negative.  The DHS (USCIS) and the DOS (Consulates) will apply the totality of circumstances framework to determine whether an alien is more or less likely to become a public charge in the future. Continue reading →

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The immigration attorneys of Zneimer & Zneimer PC have compiled a comprehensive checklist with resources for gathering the documents required to meet the public charge inadmissibility provision.   People who apply for an immigrant or nonimmigrant visa, unless statutorily exempt from the public charge inadmissiblity must complete form DS-5540.  People who apply for adjustment of status, unless statutorily exempt from the public charge inadmissibility must submit Form I-944.

Where applicable, you must also submit an Affidavit of Support.   You can download and use our checklist to gather your documents.

Checklist – Public Charge (Z&Z)

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A new legal wall for immigrants and nonimmigrants will go up on February 24, 2020.  The Department of Homeland Security will begin implementing the new Public Charge Rule.

The U.S. Citizenship and Immigration Services announced that it will begin implementing the Public Charge Rule on and after February 24, 2020.  The rule will not be applied for applicants with physical address in Illinois as a result of an injunction by the U.S. District Court for the Northern District of Illinois. The DHS has requested a stay of the injunction from the Seventh Circuit in light of the U.S. Supreme Court decision to stay the nationwide injunction.   If the Seventh Circuit lifts the injunction, the USCIS will provide additional guidance.  The USCIS has a special address and webpage for applicants from Illinois who live in Illinois.

According to public announcement, the USCIS will apply the rule to petitions and application postmarked on or after February 24, 2020.  For petitions or applications sent by commercial carrier, the postmark date will be reflected on the courier receipt.  For applications that are postmarked prior to February 24, 2020, the Department of Homeland Security will not consider the alien’s application, certification or approval to receive, or receipt of certain non-cash public benefits before Feb. 24, 2020. Similarly, when determining whether the public benefits condition applies to applications or petitions for extension of stay or change of status, USCIS will only consider public benefits received on or after Feb. 24, 2020.

Continue reading →
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The Chicago immigration lawyers of Zneimer & Zneimer follow all immigration cases at the United States Supreme Courts to keep our clients and the public informed.  The U.S. Supreme Court recently heard arguments in a case which will have far-reaching implications for undocumented workers.  Whether a state can prosecute identity theft if a person gives false documents to gain employment, is one of the questions before the United States Supreme Court in the case of Kansas v. Garcia, Court 17-834.  The decision below is State v. Garcia, 401 P.3d 588 (Kan. 2017).

Kansas makes identity theft a crime.  Defendants are foreign nationals who had been convicted of identity theft for using stolen identity to gain employment.  The Defendants’ attorneys maintain that the information on an I-9 form can only be used for employment verification and for no other purpose, including criminal prosecution because federal law limits the use of the information on the I-9 form to federal crimes.  The Defendants’ attorneys state that because the information to gain employment that workers provide on the I-9 form is also on the tax forms that are required at the same time, the State of Kansas cannot prosecute identity theft.  Otherwise, in essence, it would be using the information from the I-9 form to prosecute the crime, and the use of this information from the I-9 form is limited by federal law.  Even if Kansas bases the prosecution on information provided in the tax forms, as long as the tax form are provided at the same time with the I-9 form, and the information on the tax form is the same that the worker provided on the I-9 form, any prosecution will implicate information from the I-9 form, which is preempted by federal law.

As the name and the social security number were listed on the I-9 and the tax forms, by prosecuting identity theft in this scenario, Kansas is attempting to enforce federal immigration law, which cannot be done because federal law preempts such enforcement.  Section 1324a(b)(5)  of 8 U.S.C. states that the form “designated or established by the Attorney General under this subsection and any information contained in or appended to such form, may not be used for purposes other than for enforcement of this chapter and  [specific federal provisions].” Continue reading →

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The Chicago immigration attorneys of Zneimer & Zneimer P.C. have been tracking the proposals to amend the public charge regulations, which will make it more difficult for immigrants to receive permanent residence if they or the sponsoring family had received public benefits for a specific period of time prior to the sponsorship.  According to a Politico article, between Oct. 1 and July 29, “the State Department denied 5,343 immigrant visa applications for Mexican nationals on the grounds that the applicants were so poor or infirm that they risked becoming a “public charge,” according to the statistics.”  In comparison, in the 2016 fiscal year, only seven people received denial based on “public charge”.

Today, the Department of Homeland Security announced that on August 14, 2019, it will publish the final rule, that amends the regulations by “prescribing how DHS will determine whether an alien applying for admission or adjustment of status is inadmissible to the United States under section 212(a)(4) of the Immigration and Nationality Act (INA or the Act), because he or she is likely at any time to become a public charge.”  The DHS final rule defines what is a “public charge” and what will be considered a “public benefit”:

Continue reading →

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