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Immigration Newsletter
August 2012 - Volume 4, Issue 4
Common Acronyms
AILA: American Immigration Lawyers Association


DOS: Department of State


USCIS: U.S. Citizenship & Immigration Services 

Ross Silverman LLP
59 Temple Place, Suite 605
Boston, MA  02111
Phone: (617) 542-5111
Fax: (617) 542-2331
Attorneys at RS

Christine C. Gannon
Marianne Staniunas

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Since our last issue, the H-1B cap for Fiscal Year (FY) 2013 has been met, which means that no new cap-subject H-1B visas will be available until October 1, 2013; employers may file petitions with USCIS requesting FY 2014 H-1B visas beginning on April 1, 2013. Additionally, EB-2 immigrant visa availability for applicants worldwide has become more limited, retrogressing to January 1, 2009 in July and remaining retrogressed through the end of FY 2012 (i.e. September 30). The State Department has not yet indicated whether visa numbers for the EB-2 worldwide category (for all other countries besides India and China) will advance as of October 1; we will know more once the October Visa Bulletin is issued in mid-September.


Immigration has also been in the news quite a bit over the past several months with the advent of Deferred Action for Childhood Arrivals (DACA), discussed below. In addition to DACA, we'd like to make you aware in this issue of the U.S. Customs and Border Protection's recently-announced intent to eliminate Form I-94, the white card that all nonimmigrants currently receive in their passports when entering the U.S., as well as the Department of State's continued expansion of the nonimmigrant visa interview waiver initiative.



Impending Elimination of Form I-94


United States Customs and Border Protection (CBP) has announced plans to eliminate the paper Form I-94, the white Arrival/Departure Record which nonimmigrants receive in their passports when entering the U.S., and which must be turned in upon departure. The I-94 card currently serves as evidence of a nonimmigrant's status in the U.S. (either alone or in conjunction with other status documents). CBP is working with other agencies, such as USCIS, the Social Security Administration, and state motor vehicle bureaus, to determine how this change will impact the benefits administered by those agencies, which currently are tied to presentation of Form I-94. For instance, USCIS will need to issue revised instructions to employers regarding how to complete Form I-9 for nonimmigrant employees, since Form I-94 is currently a List A document in these instances. The agency is considering continuing to issue paper Forms I-94 during a transitional period, but indicated that such a document would not have any legal significance.


Initially, CBP intended a phased rollout of the paperless I-94 beginning in late summer 2012 at several smaller airports. However, it has revised these plans and now intends to eliminate the paper Form I-94 system-wide in the near future (though no date has been announced yet) for any ports of entry which utilize the Advance Passenger Information System (APIS), which is used by commercial air carriers and the private aviation community. Those nonimmigrant aliens arriving at a land border, unless otherwise exempted, will continue to receive a valid paper Form I-94 for the time being. In addition, certain classes of arriving aliens, such as refugees, will continue to be issued a valid Form I-94.


In lieu of a paper I-94 card, CBP plans to issue an admission stamp in the nonimmigrant's passport. The stamp will include a handwritten notation indicating the alien's status and authorized period of stay in the U.S., similar to procedures now utilized for travelers under the Visa Waiver Program. CBP will create an electronic record for arriving nonimmigrant aliens, but does not anticipate creating a receipt or other documentation, other than the stamp in the passport, for the alien. It is not clear yet whether the alien will have the ability to verify that the information handwritten on the passport accurately reflects the data electronically captured by CBP upon admission.


We will continue to follow this matter closely and will provide further information once it becomes available.


Deferred Action for Childhood Arrivals


On June 15, 2012, Secretary of Homeland Security Janet Napolitano announced that certain people who came to the United States as children and meet specific guidelines may request consideration for deferred action for a period of two years, and may be eligible for work authorization. This policy directive is being referred to as Deferred Action for Childhood Arrivals, or DACA.


There has been much confusion and misinformation regarding the meaning of this announcement. Deferred action does not give an individual any immigration status and it is not an amnesty. It is a discretionary determination to defer immigration enforcement action (such as deportation proceedings) against an individual for a period of time. It is a form of prosecutorial discretion that existed previously, and could be granted on a case-by-case basis. The difference is that DACA sets out specific guidelines for who will be considered for a grant of deferred action.


The basic qualifying criteria to request DACA are: (1) Applicant must be under the age of 31 as of June 15, 2012; (2) Must have arrived in the U.S. before reaching 16th birthday; (3) Must have continuously resided in the U.S. since June 15, 2007 to the present; (4) Applicant was physically present in the U.S. on June 15, 2012; (5) Applicant entered without inspection before June 15, 2012, or lawful immigration status expired as of June 15, 2012; (6) Applicant is currently in school, obtained a high school diploma or GED, or was honorably discharged from the U.S. Coast Guard or Armed Forces; and (7) Applicant has not been convicted of certain criminal offenses. USCIS has indicated that applicants may be granted work authorization if they can show economic need.


Applicants must apply for DACA through USCIS, which began accepting deferred action requests on August 15th. We strongly encourage any individuals who think they may be eligible to consult with an immigration attorney before submitting an application to USCIS. For more information about DACA, visit the USCIS website at


Nonimmigrant Visa Interview Waivers


Earlier this year, the U.S. Department of State (DOS) announced a two-year pilot initiative to waive the in-person interview requirement for certain nonimmigrant visa applicants. To qualify, the applicant must have been interviewed and thoroughly screened (including biometric screening) in conjunction with a prior visa application in the same country, and must be applying for a visa in the same classification as the previous visa, which remains valid or expired within the past 12 months (or within the past 48 months if applying for a B-1/B-2 visa). This initiative is being rolled out to U.S. Consulates around the world, though some Consulates have restricted eligibility to only those individuals applying for a new B-1/B-2 visitor's visa.


DOS has indicated that applicants do not qualify for an interview waiver if they have previously been denied a visa, violated U.S. immigration laws, or if they are considered to potentially pose a security threat. Furthermore, all interview waiver decisions are case-specific, and not all applicants who qualify will be granted a waiver.


In the News: What's Happening at RS


July 2012 to June 2013: Howard Silverman has been reappointed as AILA's New England region liaison to Immigration and Customs Enforcement's Enforcement and Removal Operations (ERO), and Ellen Driver has been reappointed as Co-Liaison of AILA New England's New Members Division. Ellen Driver and Marianne Staniunas are also continuing to serve on the Immigration Section of the Boston Bar Association; Ellen has been reappointed as Co-Chair of the Family Committee, and Marianne has been reappointed as Co-Chair of the Asylum Committee.


September 2012 to August 2013: Sara Fleming has been appointed to serve on the Immigration Law Section Council of the Massachusetts Bar Association. 


October 5, 2012 and October 19, 2012: Howard Silverman will be conducting training sessions for state court judges on Criminal Immigration Consequences. These sessions are sponsored by the Massachusetts Bar Association and will be held in Worcester and Boston, respectively. 


December 12 - 13, 2012Rhonda Tietjen will be speaking on a panel about the PERM process at the Massachusetts Continuing Legal Education (MCLE) Immigration Law Basics Conference in Boston, MA. Ellen Driver will be co-chairing Day 2 of the conference, which focuses on family-based immigration, naturalization, and removal proceedings.


This newsletter does not constitute legal advice and is not a substitute for consulting with an attorney.  Please contact us by phone or email if you have questions about any of the topics discussed here or if you have any other immigration or naturalization questions.