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On March 31, 2017, USCIS rescinded a memorandum from December 22, 2000, called “Guidance memo on H-1B computer related positions.”  According to USCIS rescinding this 2000 memorandum will prevent inconsistencies because it was based on outdated information about computer occupations.  This new policy will affect our clients in Chicago and in other cities and states.

USCIS will now zoom in on computer occupations to scrutinize H-1B petitions for jobs with entry level wages.  According to USCIS, “[t]hrough the wage level, the petitioner reflects the job requirements, experience, education, special skills/other requirements, and supervisory duties” citing to U.S. Dep’t of Labor, Emp’t & Training Admin., Prevailing wage Determination Policy Guidance (Nov. 2009).  An employer cannot offer an entry level wage and argue that the “proffered position is particularly complex, specialized, or unique compared to other positions within the same occupation.”  Therefore, USCIS will review the Labor Condition Applications to check whether the wage level corresponds to the petitioner’s representation of the position.  An entry-level computer programmer position generally will not meet the “specialty occupation” requirement.

It will be more difficult to have H-1B approved for computer occupations even if the employer proffers a higher wage.  USCIS states that according to the most recent edition of U.S. Dept of Labor’s Occupational Outlook Handbook, an “individual with an associate’s degree may enter the occupation of computer programmer.”  This does not mean that all computer programming positions would automatically be ineligible for H-1B for failing the specialty occupation requirement.  However, the petitioner must submit “probative evidence from objective and authoritative sources” that the position qualifies as an H-1B specialty occupation.

USCIS also will target positions that require a general purpose bachelor degree such as a business administration degree.  Although such degree may be a prerequisite for a position, “requiring such a degree, without more, will not justify the granting of a petition for an H-1B specialty occupation visa.”  The burden is on the petitioner to prove that the position is in a specialty occupation.

Therefore, employers that wish to file H-1B petitions for computer occupations will have to provide detailed information about: Continue reading →

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President Trump today signed a new Executive Order, explaining the reasons to suspend admission of foreign nationals from certain countries.  The Order, entitled Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States  restricts admissions of foreign nationals from six countries: Iran, Somalia, Yemen, Syria, Libya, and Sudan.  It removes the prior restrictions for citizens of Iran, and exempts permanent residents of the United States.    The Order states that Iraq represents a “special case”.  While [p]ortions of Iraq remain active combat zones”….”the close cooperative relationship between the United States and the democratically elected Iraqi government, the strong United States diplomatic presence in Iraq, the significant presence of United States forces in Iraq, and Iraq’s commitment to combat ISIS justify different treatment for Iraq.”

The Order applies to foreign nationals from these countries who are:

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On February 20, 2017, John Kelly, the Homeland Security Secretary issued two Memoranda implementing President Trump’s Executive Orders.  The first Memorandum is entitled “Enforcement of the Immigration Laws to Serve the National Interest.”  It implements the Executive Order entitled “Enhancing um Public Safety in the Interior of the United States” that President Trump issued on January 25, 2017. The second Memorandum is entitled “Implementing the President’s Border Security and Immigration Enforcement Improvement Policies,” and implements President Trump’s Executive Order “Border Security and Immigration Enforcement Improvements,” issued by President Trump also on January 25, 2017.

The subject of this blog is the first Memorandum, “Enforcement of the Immigration Laws to Serve the National Interest.”

This Memorandum rescinds all prior directives, memoranda, or field guidance, to the extent that they conflict with this Memorandum (“Kelly Internal Enforcement Memorandum”).  There are two exceptions that Secretary Kelly informs will be subject to future memoranda.  The first exception is the June 15, 2012 Memorandum that established DACA (“Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children”), and second is the November 20, 2014 Memorandum that tried to establish DAPA (“Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents”), to the extent that these do not conflict with the Kelly Internal Enforcement Memorandum ((because of crimes, gang activities, drug trafficking, or security risk),

The following people then should be exempted from the Kelly Internal Enforcement Memorandum for now.  The June 15, 2012 Memorandum establishing DACA covers the following people:

  • An undocumented person who was under the age of 31 as of June 15, 2012;
  • Who came to the United States before reaching 16th birthday;
  • Who continuously resided in the United States since June 15, 2007, and up to the present time;
  • Was physically present in the United States on June 15, 2012, and at the time of applying for DACA;
  • Entered without inspection before June 15, 2012, or lawful immigration status expired as of June 15, 2012;
  • Is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a general education development (GED) certificate, or was an honorably discharged veteran of the Coast Guard or Armed Forces of the United States.
  • Has not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

The following people should also be exempted for now under the November 20, 2014 Memorandum.  That Memorandum tried to establish DAPA.  It also removed the requirement that limited DACA only to people who were under 31 as of June 15, 2012 (born  since June 15, 1981).  The November 20, 2014 Memorandum added the following persons yhsy should be currently exempt but subject to future memoranda and to the extent they do not conflict with the Kelly Internal Enforcement Memorandum:

  • An undocumented individual living in the United States who is the parent of a U.S. citizen or lawful permanent resident;
  • Who has lived in the United States continuously since January 1, 2010;
  • Had, on November 20, 2014, a son or daughter who is a U.S. citizen or lawful permanent resident; and
  • Is not an enforcement priority for removal from the United States under the Kelly Internal Enforcement Memorandum.

The Kelly Internal Enforcement Memorandum Except directs ICE to hire 10,000 officer and agents “subject to available resources” and to take actions “consistent with available resources.” While rescinding any prior memoranda regarding enforcement priorities, the Kelly Internal Enforcement Memorandum sets its own priorities, which includes aliens that are inadmissible or deportable for crimes, are security threat, or who have committed fraud or material misrepresentation for immigration benefits.  The Memorandum also priorities removal of applicants for admission, including people who have been physically present in the United States for less than two years.

The Memorandum further prioritizes removal aliens who:

  1. have been convicted of any criminal offense;
  2. have been charged with any criminal offense that has not been resolved;
  3. have committed acts which constitute a chargeable criminal offense;
  4. have engaged in fraud or willful misrepresentation in connection with any official matter before a governmental agency;
  5. have abused any program related to receipt of public benefits;
  6. are subject to a final order of removal but have not complied with their legal obligation to depart the United States; or
  7. in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

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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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A 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.

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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 […].”

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