May 2012

Immigration News + Analysis

Maggio + Kattar

11 Dupont Circle NW, Suite 775
Washington, DC 20036
202.483.0053 t
202.483.6801 f
www.maggio-kattar.com

In it's March 2012 E-Verify Newsletter, United States Citizenship and Immigration Services (USCIS) announced that more than 345,000 employers have elected to participate in its E-Verify program.  E-Verify is the web-based system that verifies the employment eligibility of newly hired employees by comparing information from an employee's Form I-9 to the information in the U.S. Department of Homeland Security  (DHS) and Social Security Administration (SSA) records.  On April 1, 2012, Alabama joined seven other states that require all employers to use E-Verify.  On July 1, 2012, Georgia will follow suit for its employers with more than 100 full-time employees. 

Although not embraced by all members of the business community, the momentum of the program is undeniable.  Employers, concerned about the possibility that they may not recognize false documentation provided by an employee for the Employment Eligibility Verification Form I-9, may gain a higher degree of confidence that all of their employees are, in fact, authorized to work in the U.S. when their documentation is "blessed" by the on-line system.  Employer participation in E-Verify is free and use of the system may seem relatively easy.  It is important to understand, however, that the use of E-Verify does not replace the compliance requirements of the Form I-9 and in fact, adds extra layers of compliance.  To some employers, these added steps are worth the rewards of the program.  If you are considering signing up for the E-Verify program, we recommend  training and preparation so that the additional requirements can be integrated into your typical new hire routine. 

E-Verify involves three main steps that occur after the employee has completed the Form I-9:

1. Create the case.  Enter the information provided for the Form I-9.
2. Review the case.  You'll know within a few seconds whether everything is fine, or additional steps are required
3. Close the case.  Confirm if the employee is still working for you.  You must close the case to receive the verification report that must be printed and kept with the employee's Form I-9.

However, there are additional steps, both before beginning to use E-Verify, and once the employer commits to using E-Verify including:


E-Verify isn't exactly as easy as 1-2-3 and employers should be certain that they have properly reviewed and established processes that support compliance with the  requirements that  E-Verify requires.    Choosing to participate in E-Verify requires a careful analysis of the requirements both for the initial implementation of the system as well as the ability to engage in on-going management of its compliance mechanisms.  We recommend that any employers considering enrolling in E-Verify consult with their immigration counsel on whether it makes sense for their particular situation.

The Supreme Court has granted certiorari, a petition for review,  in Chaidez v. United States, a decision from the Seventh Circuit Court of Appeals ruling against the retroactive application of the Supreme Court's 2010 decision in Padilla v. Kentucky.  In Padilla, the Court found that a noncitizen charged with a crime had received ineffective assistance of counsel under the Sixth Amendment when his criminal defense attorney failed to advise him that his guilty plea would subject him to deportation from the U.S.  

Since the Padilla decision, state and federal courts across the country have addressed the issue of whether the Court's decision applies to persons whose convictions became final before the Padilla decision   Lower courts have been squarely divided on the issue. The Seventh and the Tenth Circuit Courts of Appeal have decided that Padilla does not apply to prior cases on collateral review.  In addition, twelve federal district courts and three state courts have agreed and decided similarly.  However, the Third Circuit Court of Appeals has found the opposite, deciding that Padilla did, in fact, apply retroactively.  In addition, ten federal district courts as well as five state appeals courts have adopted the same position. 

Roselva Chaidez, the petitioner in Chaidez v. United States, was born in Mexico, but has lived in the United States since the 1970's.  She has been a lawful  permanent resident (LPR) since 1977 and lives in Chicago with her U.S. citizen children and grandchildren.  Ms. Chaidez pled guilty to two counts of mail fraud and received a sentence of four years probation and was ordered to pay restitution.   She was later placed in removal proceedings and ordered deported as an aggravated felon.  The issue to be decided by the Court is whether its decision in Padilla v. Kentucky applies to persons whose convictions became final before its announcement; and, specifically, whether  Ms. Chaidez can challenge her guilty plea where she was not effectively counseled on the potential immigration consequences of her criminal conviction. 

Thousands of immigrants and their family members are anxiously awaiting the Supreme Court's decision in this case.  Many long-time LPRs have pleaded guilty to crimes subjecting them to deportation or removal from the United States without the benefit of adequate advice on the immigration consequences of their pleas.  Where a conviction constitutes a so-called "aggravated felony", under current immigration laws, there is little available relief from removal, and an Immigration Judge cannot consider a noncitizen's subsequent rehabilitation and ties to the U.S. in removal proceedings.  In such cases, the only possibility to avoid removal and separation from their families is to seek to vacate their prior criminal convictions based on an ineffective assistance claim under Padilla.

The Board of Immigration Appeals (Board) has issued a decision in Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), deciding that a noncitizen who leaves the United States temporarily with advance parole does not make a "departure" from the United States as defined in the regulation for purposes of triggering the three and ten year bars to re-entry.   Typically, under the Immigration and Nationality Act and its implementing regulations, a noncitizen who leaves the United States after having been unlawfully present for 180 days or more is barred from returning to the U.S. for at least 3 years; an individual who is unlawfully present for more than one year and who departs thereafter is barred from re-entry for a period of ten years, unless he or she obtains a waiver. Noncitizens with pending applications for adjustment of status have a right to apply for and receive an advance parole document, permitting them to travel abroad during the pendency of their applications. 

In reaching its decision in Matter of Arrabally and Yerrabelly, the Board found that a noncitizen's departure under Advance Parole is different than other departures, because it presupposes that the noncitizen will be permitted to return to the United States and continue to pursue his or her application which had been properly filed prior to departure. The Board noted that it did not believe that Congress intended a noncitizen to become ineligible for adjustment of status solely because of a trip abroad that was approved in advance by the government on the basis of a pending adjustment application.  It stated that Congress presupposed the noncitizen's authorized return afterwards from overseas travel, and that the travel document was requested and granted solely for the purpose of preserving the noncitizen's eligibility for adjustment of status. 

It is important to emphasize that although the Board has held that a noncitizen cannot become inadmissible solely by virtue of a trip abroad with a valid advance parole document, this decision does not preclude a trip under advance parole from being considered a "departure" for other purposes.  Thus, a noncitizen who leaves the United States and returns under a grant of advance parole remains subject to other grounds of inadmissibility, such as criminal grounds.   As always, noncitizens who have had any contact with law enforcement should speak with an immigration attorney prior to overseas travel to determine if they may be subject to inadmissibility upon a return to the United States. 

As noted in the April edition of Immigration News + Analysis,  the visa number availability in the employment based second preference category (EB-2) for individuals from India and China is "Unavailable" for the month of June.  In addition, the Department of State's Visa Office (VO) which determines and publishes the monthly Visa Bulletin has noted that there will likely be no further visa numbers available in these categories through the end of the 2012 Fiscal Year on September 30, 2012.  Further, the VO projects that returning to the cut off dates that we enjoyed in April 2012 (May 1, 2010) may take until Spring 2013. 

The VO noted that, as a result of many individuals "upgrading" their employment based third preference (EB-3) petitions to the EB-2 category, an unexpected demand for EB-2 visa numbers for cases pending before United States Citizenship and Immigration Services (USCIS) now exists.  Specifically,  USCIS requests a visa number in a case where an "upgrade" is sought based on a newly approved immigrant visa petition (I-140) in order to adjudicate a pending I-485 application to adjust status.  The number of cases meeting this criteria far exceeded expectations and thus has caused excessive  demand.

USCIS is continuing to accept adjustment of status filings during the month of Maybased on the dates published in the May Visa Bulletin, however, no new EB-2 cases for individuals born in India or Mainland China are being approved by USCIS.

Importantly, the VO has also noted that establishing a cut off date for individuals in the first employment based preference category (EB-1) before the end of fiscal year 2012 may be necessary based on current demand by individuals in the EB-1 category -- Multinational Managers/Executives, Outstanding Researchers and Extraordinary Ability Petitions.  Similarly, the June Visa Bulletin notes that a cut off date for "all other" countries in the second employment based preference category may occur.  

Please contact the attorney who you work with for more information if you are concerned about how these changes may impact your case. 

The Department of Labor's Office of Foreign Labor Certification (DOL - OFLC) has issued the fourth in a series of permanent labor certification program statistics fact sheets.

The fact sheet presents statistics on applications during fiscal year 2012 (starting on October 1, 2011 to continuing to present). It notes that thus far in FY 2012, the DOL- OFLC has received 28,750 cases and processed 20,980. It has certified 15,720 cases, denied 3,980, and withdrawn 1,280. 

The Department of Homeland Security (DHS) announced that Temporary Protected Status (TPS) has been re-designated and extended for nationals of Somalia who currently have TPS status.  DHS determined that the potential harm that Somali nationals currently present in the U.S. would face if they were forced to return to Somalia remain strong, as a result of continued detrimental country conditions. 

The extension is for 18 months and is effective from September 18, 2012 through March 17, 2014.   In addition, the re-designation means that Somali nationals who are physically present in the U.S. and do not presently have TPS may apply now for TPS status. 

TPS is designated to establish a temporary safe haven in the U.S. for nationals of a foreign state when it has been determined that there is an armed conflict within the state posing a serious threat to the personal safety of the country's nationals or if there has been a natural disaster such as a flood, earthquake, an epidemic or environmental disaster that substantially disrupts living conditions in a foreign country or there are extraordinary and temporary conditions that prevent a country's citizens from safely returning. 

During a period of TPS, an individual is eligible to legally remain in the U.S. for the designated period and any designated extensions.  In addition, the foreign national is eligible to apply for an unrestricted work permit (Employment Authorization Document) and a travel document (Advance Parole). 

The National Labor Relations Board (NLRB) has issued guidance on investigating and litigating compliance issues under the December 2011 case, Flaum Appetizing Corp. The memo notes that the 2002 Supreme Court in Hoffman Plastics Compounds, Inc. v. NLRB bars the NLRB from awarding backpay to any individual who was not legally authorized to work in the United States during the back pay period under the Immigration Reform and Control Act of 1986 (IRCA).  However, if an employee's work authorization status generally is irrelevant to the merits of an unfair labor practice complaint; it only becomes a triable issue at the compliance stage.  The NLRB memo states, a respondent "may not use the compliance phase as a means to fish for disabling employee conduct under IRCA, i.e., no legal authorization for its employees to work in the United States."

In Flaum, the NLRB concluded that "IRCA does not require that the Board permit baseless inquiry into immigration status in every case in which reinstatement or back pay is granted." In the compliance phase, the NLRB memo says regional enforcement actions should require a full accounting of evidence upon which a respondent intends to rely to assert that employees are ineligible for back pay under Hoffman Plastics. The NLRB memo also notes that before Flaum, an employer was permitted to require individuals alleging discrimination to complete the appropriate portion of the I-9 employment authorization verification form and submit appropriate documentation as a condition of reinstatement. "A reinstatement offer will no longer be considered valid if it is conditioned on re-verification of employment status," the NLRB memo states.

Kids in Need of Defense (KIND) and Maggio + Kattar are pleased to invite community organizations, local immigration practitioners and anyone working with immigrant children to an Immigration Community Forum on "Representing Juveniles."  The forum will be held on Wednesday, June 6th from 9 am until 11 am.   The expert panel will cover the full lifecycle of representing juveniles in the immigration law context, including the following:

 The discussion will be led by a panel of experts, including:

+    Laura Nally, Pro Bono Coordinator, Kids in Need of Defense      (KIND), Washington DC;

+    Maureen Dunn, Division Director, Office of Refugee Resettlement Administration for Children and Families; and

+    Dree K. Collopy, Senior Attorney, Maggio + Kattar.

 

To RSVP email us at: events@maggio-kattar.com or contact us by phone at 202-483-0053.   

Anna Gallagher is presenting at the District of Columbia Bar Association's Continuing Legal Education program entitled "What Every Lawyer Needs to Know about Immigration Law" course series on an introduction to immigration law and particularly court related practice on May 22, 2012.   To learn more or register, please visit the District of Columbia Bar Association's website.

Alix Mattingly is presenting at the District of Columbia Bar Association's Continuing Legal Education program entitled "What Every Lawyer Needs to Know about Immigration Law" course series on an introduction to immigration law with a focus on the ethical implications of practicing immigration law on June 5, 2012.   To learn more or register, please visit the District of Columbia Bar Association's website. 

Maggio + Kattar provides Immigration News + Analysis as a service to its clients and friends to highlight and provide opinions on changes within the field of immigration and nationality law. The information contained in this newsletter is not intended as legal advice, and persons receiving this information should not act on it without consulting professional legal counsel.


Maggio + Kattar, P.C. | 11 Dupont Circle, N.W. Suite 775 | Washington, DC 20036
maggio-kattar.com | phone 202.483.0053 | fax 202.483.6801

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