USCIS extends use of old G-28 form

USCIS annouced that the old G28 form will be accepted until further notice, though it is encouraged to use the new version.  This is to accommodate law students who represents immigrants and are not listed on the new version of the form.

 

 

 

WIL in the community- Updates

On November 4th 2009, Tahmina attended Seattle University Law School to participate on a panel giving advice to law students.  The Brown Bag session organized by KCWWL and S.U. was attended by approximate 40 students from all levels at law school.  The session was aimed at giving advice to students who are facing tough times after graduation due to the poor economy. 

In other news, WIL paralegal and an avid runner, Gulsima Nation participated in the Tri Cities marathon.  She completed the race in 3. 40 hours.  By virtue of completing this marathon, Gulsima qualified for the Boston marathon, in which she will participate in due course.  WIL is very proud of her!

Public Charge Fact Sheet

Reprinted from USCIS:

Introduction Public charge has been part of U.S. immigration law for more than 100 years as a ground of inadmissibility and deportation.  An individual who is likely at any time to become a public charge is inadmissible to the United States and ineligible to become a legal permanent resident.  However, receiving public benefits does not automatically make an individual a public charge. This fact sheet seeks to inform non-citizens about public charge determinations and help them to make informed choices about whether to apply for certain public benefits.

 Background

Under Section 212(a)(4) of the Immigration and Nationality Act (INA), an individual seeking admission to the United States or seeking to adjust status to that of an individual lawfully admitted for permanent residence (green card) is inadmissible if the individual, “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.”   If an individual is inadmissible, admission to the United States or adjustment of status is not granted.  Immigration and welfare laws have generated some concern about whether a non-citizen may face adverse immigration consequences for having received Federal, state, or local public benefits.  Some non-citizens and their families are eligible for public benefits – including disaster relief, treatment of communicable diseases, immunizations, and children’s nutrition and health care programs – without being found to be a public charge.
 
Definition of Public ChargeFor purposes of determining inadmissibility, agency guidance has, since 1999, defined “public charge” to mean an individual who is likely to become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.” See “Field Guidance on Deportability and Inadmissibility on  Public Charge Grounds,” 64 FR 28689 (May 26, 1999).  In determining whether an alien meets this definition for public charge inadmissibility, a number of factors must be considered, including age, health, family status, assets, resources, financial status, education, and skills.  No single factor – other than the lack of an affidavit of support, if required -  will determine whether an individual is a public charge. Benefits Subject to Public Charge ConsiderationThe agency guidance specifies that cash assistance for income maintenance includes Supplemental Security Income (SSI), cash assistance from the Temporary Assistance for Needy Families (TANF) program and State or local cash assistance programs for income maintenance, often called “General Assistance” programs.  Acceptance of these forms of public cash assistance could make a non-citizen inadmissible as a public charge, if all other criteria are met.  However, the mere receipt of these benefits does not automatically make an individual inadmissible, ineligible to adjust status to lawful permanent resident, or deportable on public charge grounds.  See “Field Guidance on Deportability and Inadmissibility on  Public Charge Grounds,” 64 FR 28689 (May 26, 1999).  Each determination is made on a case-by-case basis in the context of the totality of the circumstances.In addition, public assistance, including Medicaid, that is used to support aliens who reside in an institution for long-term care – such as a nursing home or mental health institution – may also be considered as part of the public charge analysis of the totality of the circumstances.  Short-term insitutionalization for rehabilitation is not subject to public charge consideration. Benefits Not Subject to Public Charge ConsiderationUnder the agency guidance, non-cash benefits and special-purpose cash benefits that are not intended for income maintenance are not subject to public charge consideration.  Such benefits include: • Medicaid and other health insurance and health services (including public assistance for immunizations and for testing and treatment of symptoms of communicable diseases, use of health clinics, short-term rehabilitation services, prenatal care, and emergency medical services) other than support for long-term institutional care
• Children’s Health Insurance Program (CHIP)
• Nutrition programs, including Food Stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs
• Housing benefits
• Child care services
• Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP)
• Emergency disaster relief
• Foster care and adoption assistance
• Educational assistance (such as attending public school), including benefits under the Head Start Act and aid for elementary, secondary, or higher education
• Job training programs
• In-kind, community-based programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter)
• Non cash benefits under TANF such as subsidized child care or transit subsidies
• Cash payments that have been earned, such as Title II Social Security benefits, government pensions, and veterans’ benefits, among other forms of earned benefits, do not support a public charge determination.
• Unemployment compensation is also not considered for public charge purposes 

Some of the above programs may provide cash benefits, such as energy assistance, transportation or child care benefits provided under TANF or the Child Care Development Block Grant (CCDBG), and one-time emergency payments under TANF.  Since the purpose of such benefits is not for income maintenance, but rather to avoid the need for on-going cash assistance for income maintenance, they are not subject to public charge consideration.

USCIS offering free naturalization sessions!

USCIS is offering the public free naturalization sessions.  Learn about the requirements of citizenship, the application process and much more. Click here to find a location near you.

New immigration law goes into effect; “widow’s penalty” ends

Reprinted from wrdw.com:

Reporter: Melissa Tune

AUGUSTA,Ga. — A new immigration law is now in effect and this means new changes for Americans who marry foreign nationals.
What’s known as the widow penalty has ended now that President Barack Obama put the pen to the paper. This is especially meaningful to our military community, but it can affect anyone.

If you married someone from outside the United States and you died within two years of the marriage, they were deported. Now under the new law, they can stay.

“Tomorrow is tomorrow. We don’t know what’s going to happen tomorrow,” says Rev. Masaki Chiba.

Rev.Chiba is Japanese born and can’t imagine a “tomorrow” without his wife and children. He married his wife Charisse, an American after the met in college. He became a U.S.citizen almost 20 years ago.

“What I did was, when we went back to Japan, I applied for a green card in Japan,” he adds. “That was five years after we got married.”
Marrying a foreign national can be as beautiful as it has been for the Chibas, or it can be a nightmare experience.

Up until October 29, 2009 – what’s known as the “widow’s penalty” was in effect, meaning if an immigrant married an American and the American spouse died within two years of the marriage – it was automatic deportation. Hundreds of people were forced to leave the states.

“Unfortunately the law in this area is very unforgiving, there’s no exception, you basically will be deported,” says Paul Balducci, an immigration attorney.

Up until now that was the case. Balducci, who has had clients affected by the previous law, says this new law – is good news for them.

“Anytime the government’s willing to step back and say you we’re not just going to have a blanket policy that doesn’t take into account the particular facts of each case — I mean that a big victory,”adds Balducci.”It’s a big win, it’s a big success.”

The new law removes the two-year marriage requirement, permitting widows and widowers of U.S. citizens to apply for a green card for themselves and on behalf of their foreign-born children. It is also retroactive, therefor anyone qualifying for relief can file a petition for permanent residency up to two years from October 29, 2009.

 

H1b update

Reprinted from USCIS website:

As of October 25, 2009, approximately 52,800 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. Any H1-B petitions filed on behalf of an alien with an advanced degree will now count toward the general H1-B cap of 65,000. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

WIL Participates in KCBA Solo CLE Panel

On Friday October 30, 2009, King County Bar Association (KCBA) held a one day CLE on Small and Solo practice strategies.  I was very honored to be invited to speak on one of the panels.  Approximately 50 people attended the event.  Ms. Jill Pugh, Solo Section Chair organized the event.  All attendees benefitted greatly from all the valuable sessions.

Senate Measure Gives Rights to Widows of Citizens

Reprinted from the New York Times:

By KIRK SEMPLE

Published: October 20, 2009

The Senate approved a measure on Tuesday that would end what has become known as the “widow penalty” — the government’s practice of annulling foreigners’ applications for permanent residency when their American spouses die before the marriage is two years old.

The measure, which passed 79-19, was contained in a conference report that accompanied an appropriations bill for the Department of Homeland Security. The House of Representatives passed the conference report last week. President Obama is expected to sign the bill into law.

While the foreign spouse of a United States citizen may be eligible for residency under American law, the government has argued that the spouse’s death before the two-year mark ends the marriage, canceling the foreigner’s right to be considered for residency and opening the door to deportation.

The new provision does not directly address the government’s definition of marriage, but it allows foreigners married to Americans for less than two years to submit their own petition for residency within two years of the spouse’s death, as long as they have not remarried and can prove a good-faith marriage.

The law is also retroactive; any immigrant whose citizen spouse died less than two years after they wed, no matter how long ago, would have two years from the law’s enactment to petition for residency.

Lawyers and other advocates who have been lobbying for years to abolish the government’s two-year marriage requirement celebrated the vote.

“I feel an indescribable calm right now; it’s a little unreal,” said Brent Renison, a lawyer in Portland, Ore., and the pro bono counsel for Surviving Spouses Against Deportation, a nonprofit advocacy group. “It rights an injustice that has sorely needed to be corrected for a long time.”

The measure would provide relief to a few hundred aggrieved immigrants who entered the country legally, followed the rules and have been subject to deportation because their spouses died, Mr. Renison said.

Among them is Osserritta Robinson, a Jamaican immigrant whose husband of eight months died in the Staten Island ferry crash on Oct. 15, 2003. Her application for residency was tossed out because of the death, so she sued the Department of Homeland Security. The case has wound its way through the court system, and last summer, her lawyer filed an appeal with the United States Supreme Court.

The bill approved Tuesday would appear to moot Ms. Robinson’s case, along with about a dozen similar court cases around the country that are challenging the widow penalty.

Ms. Robinson’s lawyer, Jeffrey Feinbloom, said Tuesday that it remained unclear exactly how his client’s case would be resolved, though a settlement “in some capacity” seemed likely.

“The good news is that one way or another, Osserritta should be able to legalize her status,” he said.

The measure was championed by four Democratic senators: Robert Menendez of New Jersey, Kirsten E. Gillibrand of New York, Bill Nelson of Florida and Patrick J. Leahy of Vermont.

AILA – American Immigration Lawyers Association: BALCA–Just Say No

Reprinted from AILA’s Facebook fan page. I am really enjoying AILA posts on Facebook.  Wanted to share this one as it really is a poignant issue in the world of employment-based Green Card petitions.

Over the course of the last year, AILA has been posting a series of BALCA decisions. These BALCA decisions routinely deny the labor certification appeal, even for minor, de minimis errors of the employer and/or counsel. An example of today’s postings include the following:

BALCA Affirms Denial Based on Lack Of FEIN on Date of Filing for Domestic Household Employer http://www.aila.org/content/default.aspx?docid=30340 BALCA affirms denial based on the fact that the employer, a domestic household, lacked a valid FEIN on the date of filing the labor certification. Matter of Edward J. Tierny, 2009-PER-00314 (7/13/09). AILA Doc. No. 09102061.

BALCA Affirms Denial Because the Job Order Was Conducted Outside the 180 Day
Requirement http://www.aila.org/content/default.aspx?docid=30342 BALCA affirms the PERM denial based on the fact that the application was filed 187 days after the job order was placed, and consequently, the job order was conducted outside the 180 day requirement. Matter of Spires Restaurant, 2009-PER-00125 (8/25/09). AILA Doc. No. 09102063.

BALCA Affirms Denial Based on Employer’s Failure to State Experience Requirement on PWD Request http://www.aila.org/content/default.aspx?docid=30343 BALCA affirms the PERM denial based on the employer’s failure to state the experience requirement on the Prevailing Wage Determination request to the State Workforce Agency. Matter of Florida Restaurant Group, LLC, 2009-PER-00014 (8/25/09). AILA Doc. No. 09102064.
I could list dozens of other denials from BALCA on similar ticky-tack issues, but I think you get the point–BALCA does not care that you or the employer misread one line in a hundreds of pages of FAQs, regulations, or liaison minutes. You or your client missed it and that is not DOL’s problem. No Soup For You. Refile. Get to the Back of the Line. We do not care how it affects your business. The real tragedy here is that BALCA gives you this decision 4-5 YEARS after you filed the original labor certification, adding insult to injury.

Some would say this is a reason to have a simplified immigration system as it relates to the permanent employment of foreign nationals in the United States. I cannot disagree. The promise of PERM–quick approvals and denials based upon “real world” recruitment, is an illusion, nothing more. PERM is a blight on our immigration system. It does not protect American workers in any serious way, it asks employers to jump through more hoops than a show dog, and puts lawyers in the unenviable positions of advising employers on how to navigate a set of non-real world regulations, FAQs, and liaison minutes (when we can actually get answers), using a poorly developed computer filing program so complex that Einstein would have to invent a new Theory of PERM Relativity to explain it to a layman!

Who would have thought that we would pyne for days of “regular” labor certifications! What a farce this system has become in the name of progress.

WIL Attends KCWWL Wine Tasting & Silent Auction

On Tuesday October 20, 2009, King County Washington Women Lawyers held their annual Wine Tasting and Silent Auction event at the Tasting Room in Pike Place Market in downtown Seattle.  The funds raised at the auction were to benefit YWCA’s GirlsFirst Program.  The GirlsFirst program empowers girls to achieve more in life.  The event was well attended.   The sum raised will be announced at a later time.