Join our FREE E-Newsletter today!

Backlog News-Breaking News
For those of you who have been anxious to know (and you know who you are) the Department of Labor PERM website at www.plc.doleta.gov now indicates that the Backlog will be eliminated by September 30, 2007.

Volume I-2 March Newsletter

Welcome back. The debate over the shape of comprehensive immigration reform legislation began to heat up the first week in March. Anti-immigration advocates are out in full force lobbying for an enforcement only immigration reform bill. Senator Spector from Pennsylvania is playing a key role in this debate as Chairman of the Judiciary Committee.

WHAT'S IN IT FOR ME?

Every non-immigrant, overstay and undocumented alien has a stake in the outcome of this debate. Contact your Senators and members of Congress to let them know what is important to you. Some of the things we support are listed below:

•  Provide a path to earned permanent residence or citizenship for the 11 million undocumented immigrants living and working in the United States and reject a mandatory return policy;

•  Provide border security to prevent terrorists from surreptitiously entering the United States;

•  Provide for a reduction in the backlogs in the family immigration system that keeps family members separated for long periods of time;

•  Provide for solutions to problems with employment based immigration

          •  H-1B cap

          •  employment authorization for spouses of H-1 and L-1's

          •  revise employment based preference categories and eliminate per country quotas

•  Provide the funding and support for all agencies involved in the process to process application efficiently and in a timely manner.

On March 7, 2006 Senator Spector released a draft of the bill called the Chairman's Mark. Although there are many positive points in the legislation, the bill does not provide a permanent status for the undocumented population. The phone number for Senator Spector's office is 202-224-4254. The fax number is 202-228-1229. Express your views and encourage others to do the same. Those individuals who oppose the bill are calling members of the Judiciary Committee in record numbers. The debate over the final contents of the bill continues. We anticipate that a final bill will reach the Senate floor at the end of March or early April at which time the debate will continue in the full Senate.

We will continue to do our best to update you as to developments through the newsletter and postings on the website.

PERM- WHAT'S NEW?

DOL has provided us with additional guidance on PERM filings. These FAQs are available at www.plc.doleta.gov.

The American Immigration Lawyers Association reported that they have sent 700 PERM and BEC cases to DOL illustrating numerous problems. Some common problems are reported below:

1)  Failure of employer to receive verification email;

2)  Failure of employer to respond when they did not secure the verification email;

3)  Denials due to alleged DOL date miscalculations;

4)  Inability to correct minor non-substantive typographical errors resulting in denials;

5)  Failure to approve a case as a re-file to obtain the original priority date;

6)  Denials when recruitment is included in the application outside the 180 day/30 day window;

7)  Denials due to the worker qualifying through alternative experience requirements when the magic language is not used;

8)  Problems characterizing the nature of prior experience when different employers use different job titles for the same position

These are just a few things keeping us awake at night.

Last month we reported that new graphics appeared on the DOL website in which they indicate the backlog will be cleared by September 2007. We at S&K are still receiving approvals from 2002. The Backlog Centers have their share of problems. Many cases were improperly closed for lack of response to the 45 day letter when indeed a response was made.

POWERBALL FEVER

Last month three of the eight meat packers who claimed the largest Powerball jackpots ever were immigrants to the United States. If you can't win the DV, there is always the POWERBALL.

FAILURE TO DEPART – WHAT HAPPENS NOW?

Many individuals are currently living in the United States and have previously been granted voluntary departure by an Immigration Judge. Some of these individuals may be eligible for Adjustment of Status, particularly under 245(i). Don't hope the government doesn't know about this. Tell your attorney. Depending when you were granted voluntary departure you may no longer be statutorily barred from Adjustment of Status. However, a Motion to Re-Open your deportation case must be filed, which in most cases requires the government to join in the Motion because of the length of time which has passed from the date of the voluntary departure.

The bottom line is that you are doing yourself a favor by telling your attorney your complete immigration history. It may just save you.

PHILADELPHIA ICE – Doing their job or roughing them up?

Recently there was a report of a pregnant alien “allegedly” being pushed into a van headed for JFK during her removal from the United States. She suffered a miscarriage during this incident. Our experience with ICE has on the whole been a positive one. The incident, while regrettable, demonstrates the need for on-going training for these men and woman performing an admittedly difficult job. We certainly do not support actions which are excessive which are all too often reported. However, we do understand that ICS has a tremendously difficult job.

TPS - El Salvador, Nicauragua and Honduras

It's that time again. DHS has announced a one year extension for TPS. Details have yet to be announced. Hopefully guidance will be issued so that employment cards are issued prior to the expiration of the current cards in September. Hey, how about addressing TPS beneficiary's in the new law. These individuals are living and working legally in the United States, paying taxes and acquiring equities.

PETITION TO REMOVE CONDITIONS-WHO DECIDES?

On January 30, 2006 a Memo was issued entitled ‘Delegation of Authority for I-751, Petition to Remove Conditions on Residence.' As a result of this Memo, Service Center Directors now have authority to deny a 751 when the Service Center Director is satisfied the marriage is for the purpose of evading the immigration laws. Previously this authority rested solely with the District Director. Most people believe the I-751 to be deceptively simple. Be careful or you will end up with a Service Center denial.

GREEN CARDS-QUICK AND WRONG

CIS is doing a great job in issuing the I-551 card very quickly after adjudication or interview. More and more individuals are reporting errors on their card. Correction of the errors has become difficult. Individuals do not want to give up a card they worked hard to obtain and CIS is not issuing corrected cards in a timely manner. Check your card when you receive it. Make sure everything is correct.

SECURITY CHECKS-THE RATE LIMITING STEP

Don't get us wrong. We do not want terrorists in this country. However lack of a security clearance may hold a benefit up for years. CIS is running security checks on virtually every application filed. It is called a “hit” when a security check comes back with derogatory information. Many times the “hit” may be information unrelated to you. However, CIS must confirm from the agency entering the information in the system that you are not the person to whom the information relates.

We would think that we would want to immediately know if the person subject to the hit is a security risk? However it sometimes take years to find out. Thank goodness that we have not had any issues arise as a result in the delay in clearing individuals.

Martin Kascavage has had success in filing an action in mandamus when the case has languished for unreasonable periods of time. An action in mandamus is not filed in an effort to get your case “approved.” An action in mandamus filed in the Federal District Court simply requests the Court to compel the agency to perform a duty, in this case the adjudication of an application, be it favorable or unfavorable.

EXPORT LICENSING-WHAT DOES IT HAVE TO DO WITH IMMIGRATION

Export controls are not new. They have been a part of the law for at least 100 years. However as we talk about security checks, export licensing of foreign nationals has become a topic that has been getting more and more attention. Company's may be required to obtain an export license from the Commerce Department's Bureau of Industry and Security or the State Department's Office of Defense Trade Controls depending on the technology that will be released to them during the course of their employment.

The trend seems to be not just focusing on goods that are physically sent abroad but the technologies that would allow the production, development or manufacture of strategic products. The release of that information in the United States to certain foreign nationals is considered an “export.” Most of what we are referring to is considered dual use technologies, those that may have both a military and civilian applications.

The determination of whether the technology to be released to a foreign national is controlled by BIS or ODTC is beyond the scope of our practice. We bring this to employer's attention so that Corporate counsel are alert to the fact that export licensing requirements must be considered.

S&K NEWS

Birthdays - Matt will be celebrating his 38th on March 29th, Jane will be celebrating her 21st on March 11th (OK-48th but she looks 21)

Marty, Scott and Matt recently attended a conference on Family Immigration and waivers on March 3, 2006. Scott and Jeff will be attending the annual AILA conference in San Antonio in June.

Jane will be part of a panel discussion at Muhlenberg College on March 15, 2006 dealing with various immigration topics.

For all of you who have been waiting - we will be accepting Master Card and Visa beginning April 1, 2006.

The information contained in our newsletter is not meant as legal advice. The information is of a general nature and does not create an attorney client relationship. Please consult a qualified attorney and discuss the specific facts of your case before taking any action.