USCIS releases FAQ on Immigration Benefits for Same Sex Marriages

USCIS Makes Good on its Promise

After the Defense of Marriage Act (DOMA) was struck down as unconstitutional, USCIS issued a two-point FAQ today on filing for same-sex spouses. Secretary of Homeland Security Janet Napolitano issued the following statement:

“After last week’s decision by the Supreme Court holding that Section 3 of DOMA is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly. To that end, effective immediately, I have directed USCIS to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”

Now Same-Sex Partners can be Sponsored for Immigration Benefits

US citizens married to a same-sex spouse can now sponsor them for a family-based immigrant visa, both overseas and in the US. They can file the petition for a green card and any accompanying application. Eligibility will be determined according to applicable immigration law, and will not be automatically denied as a result of the same-sex nature of the marriage.

Jurisdictional Issues

If the marriage was celebrated in a state that recognizes same-sex marriages, but domicile in a state where recognition is not legal, some deference will be given to the ‘Full Faith & Credit Clause’ of the US Constitution. This allows the couple to file the petition. In evaluating the petition, as a general matter, USCIS looks to the law of the state where the marriage took place when determining whether it is valid for immigration law purposes. That general rule is subject to some limited exceptions under which federal immigration agencies historically have considered the law of the state of residence in addition to the law of the state of celebration of the marriage. Whether those exceptions apply may depend on individual, fact-specific circumstances. If necessary, USCIS may provide further guidance on this question in the future.

Questions Remaining

Can fiance petitions be filed for same-sex couples? Will a couples’ consular processing for these benefits be accorded the same deference by the Department of State? I suspect that issues of marriage fraud will be applied with equal vigor to these cases as well.

See you in my next blog.

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

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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E-Verify & Comprehensive Immigration Reform

Another new component to immigration reform Senate Bill 744, “The Border Security, Economic Opportunity, and Immigration Modernization Act”, is coming out of the woodwork. The new legislation calls for an extended, nationwide computer network of driver’s license photographs and biographic information of US citizens, run by DHS’s USCIS.

Seven percent of US employers use a similar network, the DHS-run system E-Verify, which helps USCIS to validate identity and legal status of new hires. The broadened network comes from the need to further prevent fraud during the hiring process, by allowing employers to re-verify any photographic or biographic identification presented by new workers. The system would ultimately make it more difficult for illegal immigrants to secure jobs in the US.

E-Verify isn’t mandatory in all states: those US employers who utilize the system, do so voluntarily. If the new immigration bill passes, then E-Verify will have to undergo significant expansions, obligating all employers to send new employee — both foreigners and citizens — information to the system, in order to prove work eligibility.

Many fear that a nationwide computer network will be akin to a national ID system, allowing the government to keep tabs on its citizens. Another fear is that an expanded system would be available to other federal agencies, such as TSA or FBI, which would mainly use it to find suspects.

The federal government assures us that E-Verify doesn’t maintain its own information — it instead taps into other systems to establish information; the information vanishes once the task is accomplished. However, privacy guidelines released by DHS affirm that E-Verify can, depending on the situation, “give law enforcement agencies extracts of information on potential fraud, discrimination or other illegal activities, which points to information gathering at some level and analysis of identity data.”

If passed, the Senate bill will present grants to the states that give DHS access to their driver’s license photo records, clarifying that such access wouldn’t breach federal privacy law. Mississippi is the only state that has given DHS admission to its motor vehicle database, but only for biographic information and not photographs.

The Senate bill does not directly forbid DHS, or any other government agency, from using the information for anything other than work authorization, unlike the law that administers the census.

The Takeaway

E-verify is very likely to become mandatory for all employers, as it is supported by The Chamber of Commerce and employers. The issue of misuse of sensitive and private  information has been enhanced by the leaks of NSA surveillance methods; clearly these dangers need to be balanced with the needs for a workplace security.

See you in my next blog.

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

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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Facts About Immigrants in Missouri

In 1990, the percentage of foreign-born in Missouri was only 1.6%; since then, Missouri’s cultural makeup has changed drastically to include large amounts of Latinos, Asians and other immigrant populations. Missouri’s current foreign-born population is 4%; 41.6% of “New Americans” in Missouri have become naturalized citizens who can vote. About 5% of Missouri’s ‘New Americans’ are either Latino or Asian.

These New Americans also contribute economically to Missouri as business owners, workers, professionals, tax-payers and consumers. Together, Latinos and Asians possess $9.8 billion in consumer purchasing power — their businesses make $5.1 billion and employ 34,000 people. Foreign students also enrich the community: Missouri’s total of 16,061 foreign students contribute $417.9 million to the state’s economy.

A little bit of food for thought: if Missouri’s unauthorized immigrants — which total 1.3% of our workforce — were deported from the state, we would lose $2.3 billion in economic activity and roughly 13,859 jobs.

See you in my next blog.

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

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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Why Is I-94 so important?

Form I-94 and its Uses

This piece of paper that measures 4×5 inches is how a non-immigrant visa (NIV) holder proves that he or she has exited the country. Clients often call us because they were told when they re-entered the US that they did not surrender their Form I-94 on exit. The paper is also very important to international students because it shows that they are here for the duration of the status of their visa — i.e. they do not have to exit until their program is over, and this stay could, under the right circumstances, exceed the length of their stamped visa. The I-94 is also used for Form I-9 purposes, to record the foreign passport, visa and I-94 number, and serves as a List A document for purposes of worker identity and work authorization. No other document needs to be produced by the worker as eligibility to work, which protects both the employer and employee.

Now with the electronic I-94, the apple cart has been tipped! Years of procedure and practice are to be replaced by a new process that State DMVs, federal agencies and employers need to learn. Software has to be amended to accept electronic I-94 cards.  The good news is that a duplicate I-94 can be printed as long as the NIV is in the US; the I-94 record disappears as soon as the NIV exits the US.

Form I-102 should still be used to correct mistakes in the record (filing fee $330); however, US Customs and Border Protection (CBP) should be contacted in case of mistakes in the I-94 passport stamp. If CBP issued you Form I-94, I-94W, or I-95 with incorrect information (ex: misspelled name, incorrect date of birth, visa classification or date of admission), you should not file Form I-102. You will need to go in person to the nearest CBP port of entry (POE), or the nearest CBP deferred inspection office (DIO), to have the information corrected. For locations and hours of operation, visit CBP’s website at www.cbp.gov.

If you would like more information, please read my overview of electronic I-94.

More resources:
FAQ on what to enter to retrieve an I-94
How to obtain a copy of the new I-94
ICE I-94 Fact Sheet

See you in my next blog.

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

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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A Second Look at Comprehensive Immigration Reform

In February, I wrote about why comprehensive immigration reform has a chance to pass this year; now, it’s time to discuss how immigration reform can strengthen the US as a whole.

Immigration reform has heavy bipartisan support, spearheaded by President Obama and Republican Sen. Marco Rubio (FL). Sen. Rubio is a member of the “Gang of Eight”, the four Democrat and four Republican Senators who have introduced new immigration legislation to Congress — Rubio has also assumed the role of spokesperson for the pending bill in the Senate. The House is also sponsoring several other bills on immigration.

There are security and economic reasons for the US to reform its immigration policy, both of which will have a major impact on the US economy.

The Security Side and the Impact on Employers

Immigration reform is not going to happen without enhanced border security and metrics to measure the levels of security reached. Another measure of security to guarantee a legal workforce is to make both E-verify and Form I-9 compliance mandatory for all employers.  Senate has already earmarked $110 million dollars to these programs — employers should see new compliance regulations soon after a new immigration bill has passed.

In addition, electronic checking of departures by CBP will ensure that non-immigrants depart on the date their authorized stay expires, according to their Form I-94 record. Departures are currently recorded with a paper I-94, which is surrendered upon exiting the US. The new electronic I-94 will record departures from passenger manifests issued by airlines. Entries are currently recorded, but exits from the US are not recorded uniformly at all ports. In addition, the new bill will mandate that all passports be electronically read, which would reduce human error.

It is a misconception that highly skilled visa holders somehow depress US wages. On the contrary, where certain technical skills are in short supply, employers pay top dollar wages for visa holders and high fees to the federal government, as well as jump through legal hurdles to employ these workers. The cost of employing a foreign worker is more expensive than a domestic worker.

The Economic Side

Granting legal status to more immigrants will relieve our labor shortages in both high-skill and low-skill arenas. The educational background of native-born Americans typically includes high school and college education — few are without high school diplomas, and hardly any have Ph.D.s in science, technology, engineering or mathematics (STEM). The educational background of immigrants, on the other hand, is quite different: while many lack high school education, others hold Ph.D.s in STEM fields.

Most of the debate on immigration reform has focused on giving legal status to undocumented immigrants, upon the condition that they pay fees and back taxes. This will certainly have positive effects on our economy; however, we have more to gain from immigrants, both young and old, who, after gaining legal status, decide to further their careers in the US. Once these immigrants feel reassured about their future in the US, they will be more willing to invest in their careers.

One of our current problems is that many skill workers have trouble gaining a foothold onto the path to citizenship. Foreign entrepreneurs and technologists who study in the US are often denied works visas and return to their home country to find success. This issue is both stunting economic growth and causing a brain drain in America.

The number of available temporary visas is rarely revised and is still dependent upon caps and quotas. Our economic conditions have not been taken into consideration. Increasing visas both for high skilled workers, and lower skilled entrants in agriculture and forestry, could have a positive effect on wages and reduce the number of illegal entrants and overstays.

Immigrants also bolster our productivity growth. According to the Wall Street Journal, foreign scientists and engineers, who came to the US with an H1B visa, contributed 10-20% of the yearly productivity growth in the US from 1990-2010. Attracting innovators to our country will undoubtedly create more jobs, as more innovation means more labs, universities and companies doing research. Yet, the US’s H1B visa program only creates 65,000 visas per year for highly skilled workers. That amount has proved to be insufficient, as H1B visas quotas fill very quickly as in the last cap.

There are clear economic and security needs for streamlined and comprehensive immigration reform, and lawmakers and politicians must take action. Congress is set to vote on immigration reform before the July 4 congressional recess.

See you in my next blog.

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

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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CBP Announces Electronic Form I-94 Arrival/Departure Record

Form I-94 is the main way in which persons who are not US citizens, and who are not legal permanent residents, demonstrate their legal entry into the US. Customs and Border Protection (CBP) have announced the digital automation of Form I-94 Arrival/Departure, which will standardize travelers’ arrival and inspection processes, and ultimately lower costs and travelers’ wait time. Currently, CBP does not have a fail-safe method of keeping track of non-immigrant departures — an electronic I-94 could eliminate this loophole.

In late March, CBP published an interim final rule to the Federal Register, which redefines the definition of Form I-94 to include the electronic format and will be effective on April 26, 2013. Non-immigrants, who enter the US by air or sea will not have to submit paper Forms I-94.  But those who are subject to secondary inspection and asylees, refugees and parolees, will be required have to submit a paper form given to them by a Customs and Border Patrol officer. Travelers who enter through land border ports of entry will receive paper versions of Form I-94.

CBP will maintain I-94 records for all travelers who require one, but all records will instead be entered into the system in an electronic format and not given to the traveler. CBP will scan the traveler’s passport, creating an electronic arrival record for that person. Travelers will receive a CBP admission stamp on their travel documents, which detail the date and class of admission, and the admitted-until date. Departures will also be recorded electronically — if the traveler has a paper I-94, then he/she must surrender it upon leaving the US.

Some agencies will require a paper copy of Form I-94. USCIS will ask applicants to fill out paper copies when requesting particular benefits; and the State Department of Motor Vehicles (DMVs) will ask for paper copy submissions. In addition, non-immigrants with work authorization can present paper copies of Form I-94 to their employers during the Form I-9 process. If a traveler needs a paper copy of Form I-94, it will be available at www.cbp.gov/I94.

The Takeaway

Since this program is very new, we can expect confusion from all corners for a while, and differences in enforcement and paper documentation requirements from agencies. If you are a non-citizen, who is not a permanent resident, you will not receive a paper I-94 form from CBP as you enter the US, if you come by air or by sea. You will continue to receive a paper I-94 if you come by land from Canada or Mexico, if you require a secondary inspection, or you are a refugee or asylee. The problem is that USCIS and individual state-run agencies, such as drivers licence bureaus, will continue to require the now defunct I-94 form. In addition, it will become important to log onto the CBP website to ascertain that all your details on the electronic record are correct, and to print out a copy for your non-immigrant record. The electronic record will be erased from the system on departure from the US — maintaining a paper copy to prove departure may be useful under these new circumstances.

See you in my next blog.

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

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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H1B cap has reached!

USCIS received 124,000 H1B visa applications from Monday April 1, 2013 to Friday April 5, 2013 — the cap has not been filled this fast for about 4 years. The number of applications received includes both cap subject bachelor degree holders and US Master Degree holders for whom a special 20,000 visas are allotted.

US Master degree holders get two bites of the apple, when it comes to ‘cap’ time. All US Master degree applications not counted towards the 20,000 cap will be considered again in the regular cap of 65,000 visas. Master degree applications are subject to the lottery first, before the bachelor degree holders. Please keep in mind also that this 65,000 number is reduced by 5,800 visas set aside for Chile and Singapore, under Free Trade Treaties that the US has signed with these countries. The unused visas from this ‘carve out’ is added back to the general pool of available cap subject visas.

USCIS announced that it conducted a lottery to allot visas using a computer generated selection process on Sunday, April 7, 2013. All those applications not selected will be returned to the employers or attorneys. Of course, the return process may not occur for a while, as applications are vetted for accuracy and correct application fees. Application fees will be returned with the applications if the package is not selected in the lottery.

H1B applications filed with premium processing will be processed in 15 days, if they are selected in the lottery.

No more applications will be accepted by USCIS, but H1B applications to change employers, or extension of visa applications filed by non-profit employers and concurrent H1B employment, can still be filed with USCIS.

The Takeaway

Contact your Senator and Congressional representative to encourage an increase in the number of visas available for H1B visas. H1B visas filed by entrepreneurs are also subject to the cap. Entrepreneurs are employment multipliers for the U.S. economy.

See you in my next blog.

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

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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2014 H1B Cap Might Hit in the First Week

Speculation about the H1B visa cap has been all-consuming in the business community. For 2014, USCIS has stated that all 65,000 H1B visas, and 20,000 H1B visas reserved for US Masters degree holders, would be finished in the first 5 days of filing from April 1 (Monday) to April 5 (Friday).

USCIS also stated that it would monitor the number of petitions received and notify the public of the date on which the numerical limit of the H-1B cap had been met, which is called the final receipt date. If USCIS receives more than 85,000 visa application petitions (regular and cap visas, disregarding the carve-outs for Singapore and Chile under Free Trade Agreements signed by the US with those countries), USCIS will use a lottery system to randomly select the number of petitions required to reach the limit of 85,000 visas.

USCIS will reject petitions that are subject to the cap and are not selected. USCIS will also reject any petitions that are received after the necessary number of petitions needed to meet the cap are filled. The last time USCIS conducted a lottery for the H-1B cap was in April of 2008.

The Consequences

Pronouncements like this have led to a frantic need to file on the first day, so that the cap is not missed. The problem is that this artificial season does not necessarily meet the hiring cycles for US business and employers. In other words, US business employment practices are artificially constrained by the necessity to tailor employment hiring practices to coincide with a start on April 1. Depending on the industry, employers hire throughout the year, varying with the ebbs and flow of business.

The Takeaway

Immigration reform proposed by the 8 Senators has a more realistic view of the business world — i.e. releasing visas as the demand grows, in a stepped up basis. Now that we are talking about the ‘reality’ on the ground for employers and business, could we have a more realistic PERM labor system? I know, if wishes were horses…. But I can dream the immigration dream, can’t I?

See you in my next blog.

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

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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Information Sharing Between Canada and the US

On December 13, 2012, US Ambassador to Canada, David Jacobson, and the Canadian Minister of Citizenship, Immigration and Multiculturalism Jason Kenney signed a US-Canada Visa and Immigration Information-Sharing Agreement.

The agreement stipulates that the US and Canada are allowed to share information that concerns third country nationals who are applicants for visa or permit to visit the US and Canada. Such sharing will assist in safeguarding and protecting the security of Canadians and Americans, while promoting travel and business. Additionally, information sharing will cultivate improved decision-making by the two countries: visa applicants will be better screened and risks will be identified more quickly. It will also aid both countries in identifying terrorists, violent criminals and those who are a danger to the respective countries. Officers working in both immigration and refugee protection sectors will be given ample information about all applicants.

The US and Canada have the ability to send an automated request for data to each other, in the even that a third country national applies to either country for a visa or asylum. A request will normally have specific information; biographic information would include name and date of birth, whereas biometric sharing would include an anonymous fingerprint. If any information corresponds with a former applicant, then immigration information — such as if a person already applied for a visa and was refused, or was deported from the country — can be shared between the two countries.

Biographic immigration information sharing will begin in 2013, while biometric sharing will begin in 2014.

See you in my next blog.

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

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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The New and Improved I-9 Form

On March 8, 2013, USCIS published a new Form I-9 for employers to use for new hires, which is for immediate use. USCIS received over 6,000 comments on the form and has tried to incorporate some of the suggestions. To ensure that the correct form is being used, look for the form’s date in the lower right-hand corner of the form.

When Should Employers Use the New I-9

The new form is to be used for all new hires. The 3 day rule remains, which is to fill Section 1 within 3 days of starting work. The form can also be filled in advance, as long as an offer of employment has been made and accepted. If the old form was used and the employee has not started work, a new form should be used in lieu of the old form.

The new form should be used for both US citizens and non-citizens, if they are working within the geographical boundaries of the United States of America. If a new office or an employee is hired in Mexico or Canada, there is no obligation to maintain a Form I-9 for the new hire. Employers should use the new Forms I-9 from 8 March, 2013 onwards. Older forms dated 02/02/2009 and 08/07/2009 can be used until May 7th, 2013.

The Spanish version can be filled out by new hires only in Puerto Rico. On the mainland, the Spanish version can be utilized as a translation tool for Spanish speaking new hires, but only an English language version Form I-9 can be filled out by both the employer and employee and retained by the employer.

The New Form

The new form is 7 pages of instruction and two pages of form to be filled. Section 1 occupies its own page, with expanded areas for the employee to fill personal identifying information. The expanded area allows work-authorized non-citizens to complete their information.

Page 2 of the form is divided between Section 2 and 3. Section 2 is renamed to include authorized representative review and Section 3 is now called “Reverification and Rehires”, instead of “Updating and Reverification”. Section 3 is to be used for employees who return to work after an absence of time. Once the initial I-9 is filled out by the employee, the employer cannot ask legal permanent residents or US citizens to present new documents to complete reverification for work authorization.

The Takeaway

The form is more detailed and thus, may have more pitfalls. Print the new form on both sides of the paper to keep both pages together. The 67 page book of “Instructions” is now called “Guidance”. The important step is to start using the new form and to cease using the old form. Section 1 cannot be populated by electronic programs used to ‘onboard’ new hires. Employer liability, audits and monetary fines remain the same under the old and new forms.

We are available to discuss the new form or needs for training and assistance.

See you in my next blog.

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

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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