I-601 Centralized: What You Need to Know

Filing for Form I-601, an application for Waiver of Grounds of Inadmissibility, has been centralized as of June 4, 2012. Persons who cannot qualify for an immigrant visa because they cannot be admitted to the US without a waiver must file an I-601 if they are qualified.

Filing Applications

Applicants who are located outside the US must now apply for Form I-601 through a USCIS Lockbox; the application is then delivered to the Nebraska Service Center for adjudication. Applicants in Mexico will have the choice of submitting their application to the USCIS Lockbox, or to the USCIS Ciudad Juarez Field Office during the first six months of the organizational change. When the six-month period is over, applicants in Mexico must submit through the USCIS Lockbox in the US.

Applicants in Cuba will still be able to file through the USCIS Havana Field Office; adjudications will carry on at this field office.

Compelling Circumstances

Sometimes there are compelling circumstances for which USCIS will make an exception and where the USCIS Field Office Director will accept and decide Form I-601 locally. Such exceptions could be,

1. Medical emergency of the applicant or qualifying family member which requires immediate travel;
2. Imminent threats to the personal safety of the applicant or qualifying family member;
3. A beneficiary is within a few weeks of aging out of visa availability;
4. A petitioner has adopted a child locally and has an imminent need to depart the country.
(source)

Tips for Filing at the USCIS Lockbox

To reduce the likelihood of your Form I-601 being rejected, follow these tips:

• Read the form filing instructions, ensure that the form is neat and legible, and keep all entries within the spaces provided on the form.
• Use the current form version, and mail all pages of the form.
• If completing the form by hand, only use black or blue ink, and avoid highlighters and correction fluid.
• Submit all required documentation or evidence as indicated in the form instructions.
• Sign the form in the correct section. The signature must be in the original and in the correct section, or the form will be rejected.
• Pay the correct fee. USCIS cannot refund the amount of any overpayments. Checks or money orders must be payable in U.S. dollars.
• Complete the entire form as indicated in the instructions. Form I-601 will be rejected if any of these fields are missing:
– Family Name
– Address
– Date of Birth
– Signature in Part D
• Form I-212 will be rejected if any of these fields are missing:
– Last Name
– Address
– Signature in Part V
(source)

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

Tara Mahadevan

Copyright 2012. All rights reserved.

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Missouri Lawyers Weekly: Immigration decision may have impact on Missouri laws

My coworker, Diane Metzger, and I were recently interviewed for an immigration article in Missouri Lawyers Weekly. The article focuses on the Supreme Court’s ruling of Arizona immigration law, and how the ruling may affect Missouri immigration law.

Reprinted with permission from Missouri Lawyers Media.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

Tara Mahadevan

Copyright 2012. All rights reserved.

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Arizona Immigration Law

Arizona’s aggressive immigration law was recently challenged in the Supreme Court on the grounds that it may be unconstitutional. However, while multiple provisions were struck down, one still remains: “papers, please”.

Papers Please

“Papers, please”– Section 2(B) in SB 1070 — allows police to inquire about immigration status if there is any “reasonable suspicion” that the person in question is an illegal immigrant. Many believe that this provision will invite the police to employ racial profiling.

Questionable Constitutionality

Arizona’s immigration law was largely brought to trial because of its questionable unconstitutionality — the Supreme Court unsure if state laws were hindering the federal government’s right to maintain immigration laws. However, SB 1070 was upheld because the Justices were unable to decide whether the law was replacing or reinforcing federal immigration laws. Along with “papers, please”, police are also allowed to check an arrestee’s immigration status before release.

Constitutional Rights Attacked

There is much room for debate with the “papers, please” provision. Equal protection, free speech and due process are all issues that could strike the provision. While Arizona won Section 2B, the Supreme Court was successful in striking down three provisions that were unconstitutional. Two provisions deemed it a crime for illegal immigrants to reside and look for employment while in Arizona. The third provision allowed the police to arrest anyone whom they believe carried out a deportable offense.

There are several states, including Missouri, that have similar bills in the state Senate and House that are waiting passage. These laws strengthen the law enforcement’s ability to “racially profile” drivers on the road. However unless it is in the course of an offense, law enforcement cannot stop a person to check for the immigration papers.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

Tara Mahadevan

Copyright 2012. All rights reserved.

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Obama Administration to Stop Deportation of some Children of Illegal Immigrants

Immigrants May No Longer Live in Fear

Approximately 800,000 immigrants will not live in fear of deportation due to an Obama Administration policy change, which states that the US will no longer deport young law abiding illegal immigrants who have been in the US for at least five years.

Conditions to Be Met Before You Apply

Janet Napolitano, the Secretary of Homeland Security, affirmed this policy change. DHS’s new directive states that if a young illegal immigrant does not pose a threat to national security or public safety, and meets certain criteria, then s/he will be eligible to receive deferred action from deportation.

DHS’s new directive mandates that individuals must meet the following conditions in order to qualify for deferred action:

1. Came to the United States under the age of sixteen;
2. Have continuously resided in the United States for a least five years preceding the date of this memorandum and are present in the United States on the date of this memorandum;
3. Are currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
4. Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;
5. Are not above the age of thirty.

Illegal immigrants who meet this criteria will have legal status for two years in the US, but will have to reapply every two years. They will also be able to apply for work authorization. However, this is not a direct pathway to citizenship or permanent residency.

Caveat Emptor

One of the dangers lurking in the shadows is the fact that applicants may have to disclose not only their own names but names of family members, who may be ineligible for any immigrant benefits because of their lack of status in the US. The danger is that once these relatives and family members have been disclosed, they can be deported or charged with crimes for which they have not yet been charged or arrested by law enforcement.

Significant Misdemeanor

A significant misdemeanor is either punishable by less than a year in prison or no imprisonment. Significant misdemeanors include violence, threats or assault, specifically domestic violence; sexual abuse or exploitation; burglary, larceny or fraud; driving under the influence of alcohol or drugs; obstruction of justice or bribery; unlawful flight from arrest, prosecution or the scene of an accident; unlawful or use of a firearm; drug distribution or trafficking; or unlawful possession of drugs.

Individuals convicted of three or more other misdemeanors, not committed on the same day or arising out of the same act, are not eligible for deferred action. This means that if the individual has not committed a significant misdemeanor listed above, but has been convicted of three “simple” misdemeanors not on the same day — can be three different days or three different incidents –can be similarly ineligible for deferred action under the new process.

Individuals will have to jump through several hoops in order to qualify for an EAD under deferred action.

DUIs are becoming a more significant crime that USCIS is targeting as a disqualification for immigration benefits.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

Tara Mahadevan

Copyright 2012. All rights reserved.

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Visiting India

India is a very beautiful, colorful place–but like many countries, tourists must apply for a visitor’s visa in order to gain entrance. A foreigner is only granted a tourist visa if he/she does not possess property or a job in India, and whose only goal is recreational: sight-seeing and meeting friends and family.

Apply by Mail

To apply by mail, applicants should fill out and print the application with all the required documents. Send it through a carrier with trackable mail: FedEx, UPS or USPS. Applications sent by mail will take 7-9 business days to process. Once the India Visa Center receives an application, they will notify the applicant of receipt via email and attach an individualized URL that allows the applicant to check on the status of his/her application.

Apply in Person

To apply in person, visit the nearest India Visa Center; bring all required documents and a completed application.

Same Day Visas

Sam day visa applications for US-born US citizens will only be accepted in person by appointment at the India Visa Center. Applicants can choose an appointment time when filling the online application, and will need to pay the application fee in cash or by money order.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

Tara Mahadevan

Copyright 2012. All rights reserved.

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How US Immigration Policy on H-2As Will Shrink the US Economy

The US Department of Agriculture’s May 2012 Economic Research Service (ERS) Report Summary conducted a study titled, “The Potential Impact of Changes in Immigration Policy on U.S. Agriculture and the Market for Hired Farm Labor: a Simulation Analysis”, to analyze the effects of large shifts in the US’s supply of foreign workers.

US immigration laws often have drastic effects for our foreign workers, and the government isn’t lenient in implementing immigration policy. Hired labor is an important facet of our economy, particularly in the US’s agricultural market. In the last 15 years, almost half of our foreign workers haven’t had the correct authorization to work in the US. Alterations in US immigration law and policy could either negatively or positively effect our agricultural production and overall economy.

The report compares a “156,000-person increase in the employment of temporary nonimmigrant agricultural workers” in the H-2A visa category; and “a 5.8-million-person decrease in the total number of unauthorized workers in all sectors of the economy, including agriculture” (ERS Report Summary), based on a 15 year projection.

If we employ the first scenario of an increase in 156,000 H-2A visas, that would raise agricultural output and exports. For example, fruits, tree nuts, vegetables and nursery products, would benefits more of the scenario’s benefits, and would increase by 1.1% to 2% output and 1.7% to 3.2% export growth. However, over the 15 years, the earnings of the agricultural workers would decrease by 4.4%.

If we deport 5.8 million unauthorized workers from all sectors of the economy, there would be an overall large-scale decline in output and exports in the economy. Fruits, tree nuts, vegetables and nursery products would be the most distressed areas of the agricultural market, suffering a 2% to 5.4% reduction in output and 2.5% to 9.3% reduction in exports. Long term, wages would increase fro 3.9 to 9.9 percent.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

Tara Mahadevan

Copyright 2012. All rights reserved.

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ICE Targets F-1 Visa Violators

ICE targets visa violators:

Forty immigration status violators, visa overstays and foreign students were arrested by special agents with US. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI). These violators disobeyed the conditions of their nonimmigrant visas during a 12-day operation that ended Friday, June 1.

Immigration Status Reviewed

Twenty-one men and 19 women were arrested by HSI’s Counterterrorism and Criminal Exploitation Unit (CTCEU), part of a national program designed to prevent terrorists and other criminals from exploiting the nation’s immigration system. In addition, CTCEU reviews the immigration statuses of known and suspected terrorists; combats criminal exploitation of the student and exchange visitor visa program; and leverages HSI’s investigative expertise to identify national security threats.

Countries Targeted for Removal for Overstay and Visa Violations

Those arrested are from the following 17 countries: Saudi Arabia(1), Yemen(1), Kenya(15), Azerbaijan(1), Zimbabwe(1), Zambia(1), Nepal(2), Nigeria(4), Gambia(2), Cameroon(3), Grenada(2), Thailand(1), Spain(1), Jamaica(1), Dominican Republic(1), Mexico(2), and Antigua and Barbuda(1).

The 40 arrested were encountered in Edmond, OK, and the following 12 north Texas Cities: Wichita Falls, Tyler, Lubbock, Amarillo, Abilene, Arlington, Prosper, Irving, Dallas, Plano, Carrollton And Mansfield. All have been processed for immigration removal proceedings.

Grounds for Removal

In addition to their immigration violations, three of those arrested falsely claimed US citizenship, which is a felony and results in being permanently barred from legally re-entering the US. A Mexican national was also arrested and charged for illegally re-entering the US after having been previously deported twice.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

Tara Mahadevan

Copyright 2012. All rights reserved.

Any information here is not meant as legal advice, but strictly educational.

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Part XII: Retaining and Storing I-9

This is Part XII of our I-9 blog series, which explains how employers can best avoid audit by ICE. In our last segment, we will be detailing the most affective methods of retaining and storing Forms I-9.

Retaining Form I-9

Employers must have a completed Form I-9 and Employment Eligibility Verification on file for each person on their payroll. The employer must also determine how much longer to keep the employee’s Form I-9 after the employee leaves.

To calculate how long to keep an employee’s Form I-9, enter the following:

Employers must retain Form I-9 until the date on Line C.

Employers are required to retain the page of the form on which the employer and the employee enter data. Copies of the employee’s documents should also be kept with the I-9. Employers may store the instructions and Lists of Acceptable Documents page as well. The I-9 may be stored on paper, microfilm, microfiche or electronically.

Storing Form I-9

Form I-9 requires the collection of personal information about individual employees. Employers should keep this in mind when determining how to retain and store completed Forms I-9. Employers should store completed Forms I-9 and accompanying documents in a manner that fits their business needs, and fits the requirement to make Forms I-9 available for inspection. Typically, employers store completed Forms I-9 and accompanying documents:

• on-site or at an off-site storage facility
• with personnel records or separate from personnel records
• in a single format or a combination of formats
• paper
• microfilm or microfiche
• electronically

No matter how you choose to store Forms I-9, you must be able to present them to government officials for inspection within three days of the date on which the forms were requested. Officers from the Department of Homeland Security (DHS), employees from the Office of Special Counsel for Immigration-Related Unfair Employment Practices at the Department of Justice (DOJ), and employees from the Department of Labor (DOL) may ask to inspect these forms.

Storing the Original Paper Forms I-9
Form I-9 contains personal information about employees. When storing these forms, USCIS recommends that employers provide adequate safeguards to protect employee information. If an employer chooses to keep paper copies of an employee’s documents, the employer may store them with the employee’s Form I-9 or with the employees’ records.  However, USCIS recommends that employers keep Forms I-9 separate from personnel records to facilitate an inspection request.

Storing Forms I-9 on Microfilm or Microfiche
Employers may keep copies of original, signed Forms I-9 on microfilm or microfiche. Select film stock that will preserve the image and allow for access and use for the entire retention period.

Microfilm or microfiche must:
• exhibit a high degree of legibility and readability when displayed on a reader, or reproduced on paper.
• include a detailed index of all data so that any particular record can be accessed immediately.

If an officer notifies an employer of an inspection, the employer must provide the microfilm or microfiche and a reader-printer that provides safety features; is in a clean condition, properly maintained and in good working order; and is able to display and print a complete page of information. Once employers have preserved Forms I-9 on microfilm or microfiche, they may destroy the paper originals.

Storing Forms I-9 Electronically
Employers may use a paper system, an electronic system or a combination of paper and electronic systems to store Forms I-9. An electronic storage system must include:
• controls to ensure the integrity, accuracy and reliability of the electronic storage system.
• controls to detect and prevent the unauthorized or accidental creation of, addition to, alteration of, deletion of or deterioration of an electronically stored Form I-9, including the electronic signature, if used.
• controls to ensure an audit trail so that any alteration or change to the form since its creation is electronically stored and can be accessed by an appropriate government agency inspecting the forms.
• an inspection and quality assurance program that regularly evaluates the electronic generation or storage system, and includes periodic checks of electronically stored Forms I-9, including the electronic signature, if used.
• a detailed index of all data so that any particular record can be accessed immediately.
• production of a high degree of legibility and readability when displayed on a video display terminal or reproduced on paper.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

Tara Mahadevan

Copyright 2012. All rights reserved.

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Part XI: Correcting I-9

This is Part XI of our I-9 blog series, which explains how employers can best avoid audit by ICE.

Correcting Mistakes

When correcting errors on Form I-9, only the employee can correct Section 1; the employer can correct Sections 2 and 3. If the employer discovers an error in Section 1, then the employer should ask the employee to make the corrections. The best way to correct the form is to cross-out any inaccurate information. After entering the correct information, initial and date the correction.

Multiple Errors

If the employer needs to correct multiple errors, then the employer may redo the section on a new Form I-9 and attach it to the old form. A new Form I-9 can be completed if major errors, such as entire sections being left blank, need to be corrected. A note should be included in the file detailing the reason the employer made changes to an existing Form I-9, or completed a new Form I-9. It is not in the employer’s best interest to conceal any changes made on the form–doing so may lead to increased liability under federal immigration law.

Make the method of correction uniform for all Form I-9 corrections. If the employer uses abbreviations, keep an index of abbreviations for use by the auditor.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

Tara Mahadevan

Copyright 2012. All rights reserved.

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H1Bs may be over by mid-June, 2012!

If you are an employer with plans to employ a student on an H1B visa or employ someone from abroad or transfer an H1B employee from a US non-profit to your company, ACT FAST.

FY 2013 H-1B Cap Count
65000 Cap subject visas are issued every year. About 6800 visas are set aside for fashion models and citizens from Chile and Singapore under treaties with those countries. For the sake of simplicity, these visas have not been excluded from the H1B visa count below.

H1B visas receipted by USCIS so far:
Regular Cap Count             H-1bs Receipted             Difference from week to week
April 4                                     16,742                                0
April 9                                     17,400                                658
April 13                                    20,600                               3200
April 20                                    25,000                               4400
April 27                                    29,200                               4200
May 4                                      32,500                                3300
May 11                                    36,700                                4200
May 25                                    48,400                                11700

Forecast: All dates are approximate, and meant for planning purposes only.
If the Regular Cap Count is 65000, and the Balance of H-1bs remaining as of 5/4/2012 is 32500:

If 3500 visas are received per week, H-1b cap will be reached in 9 weeks, or July 13th.
If 5000 visas per week, the cap will be reached in 6.5 weeks, or June 27th.
If 6000 visas per week, the cap will be reached in 5.4 weeks, or June 15th.
If 7000 visas per week, the cap will be reached in 4.64 weeks, or June 10th.
If 8000 visas per week, the cap will be reached in 4 weeks, or June 6th.

There was an uptick in filings for the last 2 weeks in May, from the 4th to the 15th. Filings increased to pre-May levels. With this progression, the regular cap visas may be finished by mid-June, 2012.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

Tara Mahadevan

Copyright 2012. All rights reserved.

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