|
|
Maggio + Kattar
11 Dupont Circle NW, Suite 775
Washington, DC 20036
202.483.0053 t
202.483.6801 f
www.maggio-kattar.com
|
|
|
Compliance Corner:
TPS Extended for Sudan, Employers Still Struggle to Accurately Update I-9s for TPS Extensions
| |
DHS has redesignated Sudan and South Sudan Temporary Protected Status ("TPS") and extended their existing TPS designations from May 3, 2013 through November 2, 2014. Those who already have TPS must re-register during the 60-day re-registration period that began on January 9, 2013 and runs through March 11, 2013. Those who do not have TPS may apply during a six-month registration period that began on January 9, 2013 and runs through July 8, 2013.
TPS is designated to establish a temporary safe haven in the United States 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, 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 United States 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).
From an application perspective, TPS is a straightforward benefit. In our experience, however, the manner in which this benefit is extended often presents challenges for an employer's Form I-9 compliance processes for both new and existing employees. Employers should maintain a reliable system for tracking and monitoring work authorization expiration dates for all employees who have indicated a status of "Alien Authorized to Work Until" on the Form I-9. While it is the employee's responsibility to provide the employer with updated work authorization, it is the employer's responsibility to ensure that work authorization is monitored and the Form I-9 is updated before work authorization expires.
The tricky part about ensuring employment verification compliance for TPS beneficiaries is that, unlike individuals with other forms of temporary employment authorization, a TPS beneficiary may be allowed to work beyond the expiration date indicated on their EAD (which the employee should have indicated in Section 1 or with their latest reverification) if the Department of Homeland Security (DHS) has automatically extended the validity date for all individuals from their country (or part of country) by issuing an appropriate notice published in the Federal Register. When the DHS issues such a notice, employers do not need to reverify an existing employee's I-9 (Complete Section 3) until the automatic extension expires. Instead, employers would update the expiration date information from the last EAD listed on the form, initial, date and indicate "TPS Extension" in the margins. Employers would then update their I-9 tracking systems to ensure reverification by the expiration date from the Federal Register. By that time, the employee should have received a new EAD. New employees may present an expired EAD with a copy of the relevant Federal Register Notice indicating an extension. In such cases, be sure to use the expiration date on the Federal Notice as the work authorization expiration date, rather than the date on the expired EAD in Section 1 and Section 2.
For more information and specific guidance on completing an I-9 update for individuals with TPS, contact your Maggio + Kattar immigration professional. Our I-9 guide has detailed information on this and other challenging areas of I-9 compliance.
|
| |
| |
|
|
Effects of Mexico's New Immigration Act*
|
On November 9, 2012, the Immigration Act, its Regulations and the Immigration Guidelines were enforced after their publication in the Official Gazette of the Federation. The following are the most important changes made as a result of the enactment of the Immigration Act.Any foreign national that intends to enter into the country must hold one of the following visas: a visitor visa (with or without authorization to conduct economic activities); a visitor visa with adoption intentions; a temporary resident visa; a temporary resident visa for students; or a permanent resident visa. Under the new law, the FMM and FM3 Nonimmigrant visas, the FM2 Nonresident Immigrant Visas and the Resident Immigrant Visas have been eliminated and replaced by the new Visitor, Temporary Resident, and Permanent Resident Visas, respectively.
However, any visa suppression treaty entered into by the Mexican government shall remain valid and effective. As of November 9, 2012, pursuant to the Acuerdo Multilateral de Cooperación Turística (Multilateral Tourism Cooperation Treaty) under the Pacific Alliance between Mexico, Colombia, and Peru, citizens of Colombia and Peru may travel to Mexico for tourism purposes without a visa. Likewise, foreign U.S.-visa holders (regardless of their nationality) can travel to Mexico without obtaining a visa from a Mexican Consulate, provided that the trip is for leisure or business purposes.
Any foreign national who does not require a visa, or who takes advantage of benefits granted by the Mexican Government, shall receive an FMM upon arriving in Mexico and must check the box for "tourism" or "business" on the form, depending on the purpose of the trip. The foreign national is only entitled to engage in activities indicated in the FMM and must leave the country after 180 days have elapsed.
Mandatory Employer Registration Certificate
Under the new law, the Employer Registration Certificate procedure is a mandatory requirement for any company that is legally established in Mexico and that aims to hire foreign staff. This new procedure replaces the Basic File procedure, and aims to create a registry and control the companies that hire foreign staff. Additionally, any individual that hires foreign staff must apply for the Employer Registration Certificate. This applies to individuals hiring housekeepers.
Obtaining a Work Visa
Foreign nationals who receive a job offer to work at and receive remuneration from a company duly organized in Mexico during a period ranging from one to four years must obtain advanced authorization from the INM in Mexico that is referred to as entry permit. In comparison, foreign nationals who work in Mexico, but who continue to receive remuneration from an outside source, have to file an application directly with a Mexican consulate.
Change of Immigration Status from Tourism/Business Visa to Work Visa
Under the new immigration regulations, there are limitations on foreign nationals who enter Mexico under one status and apply to change to a different immigration status. A foreign national's immigration status may only be changed in the following situations: (1) foreign nationals who enter as business visitors or tourists can only change their immigration status to "temporary resident" if a kinship exists with a Mexican citizen or other foreign national who is a temporary or permanent resident; (2) visitors or temporary resident students can only change their immigration status to "temporary resident" if a kinship exists with a Mexican citizen or other foreign national who is a temporary resident; and (3) temporary residents can only change their immigration status to "permanent resident" after having resided regularly in Mexico for four years.
Renewal Process
Temporary residents in Mexico can renew their initial work visa for periods of one, two, or three years, depending on the term originally authorized. Under the old regime, renewals could only be granted for periods of one year. The new law also reduces the maximum period of stay for foreign nationals with temporary residence status (known as FM3 and FM2) from five to four years.
Foreign nationals who hold the former immigration visas (FM2 and FM3) must renew their status within a period of 30 days before the expiration date.
Under the new law, foreign nationals outside of Mexico are given 55 calendar days, (instead of 60 for FM3 and 30 for FM2 under the old regime) from the date of expiration, to enter the country with the same document and apply for a renewal of their temporary resident status. Foreign nationals will need to file the renewal application within five business days of entering Mexico (instead of 30 calendar days under the old regime).
*Maggio + Kattar's Global Immigration Practice we would like to thank our partner,Enrique Arellano Rincón,for his contribution to our Global Spotlight on Mexico. Working directly and through our dedicated partners around the globe on business visas, Maggio + Kattar facilitates international visa transfers for individuals and corporations. Please contact Global Practice Chair, Anna Gallagher, for more information on a global visa matter.
|
Deferred Action for Childhood Arrivals Beneficiaries May Be Eligible for Federal Tax Refunds **
|
Qualifying for Deferred Action for Childhood Arrivals ("DACA") has many advantages for eligible individuals, including U.S. work authorization, the ability to travel outside the United States, the ability to attend college and, in many states, the ability to obtain a drivers license. However, one of the most valuable short-term financial benefits is the ability to claim retroactive tax refunds. Individuals with Social Security Numbers (SSN) are entitled to claim certain tax credits, including the Earned Income Tax Credit (EITC), which are designed to help low income families. Individuals who have an Individual Taxpayer Identification Number (ITIN) cannot claim these credits. The credits can be up to approximately $6,000 per year. A refund can retroactively be claimed for the three years prior to the current tax year. Therefore, it is possible to claim the refunds for years 2009, 2010, 2011 and 2012, through April 15, 2013. After April 15, 2013, individuals cannot claim the refund for 2009 but they can still use these credits to offset debt in that year.
The EITC is the largest of the potential credits. It is the second largest anti-poverty program in the United States, second only to food stamps. It is called a refundable credit, which means an individual can receive the refund based upon this credit even if he or she paid or owed zero in tax. Thus, you might get a refund if you worked in cash and never paid any money toward your tax liability. If you previously filed a return with an ITIN because you worked for a paycheck or in cash, then you would file an amended return to claim the SSN-based refunds.
The amount of the refunds are dependent on your filing status (married, head of household, married filing separate or married filing jointly), your income and the number of qualifying children you have with SSNs. The following are the basic eligibility requirements for the EITC:
- An individual must have a valid SSN for purposes of the EITC. It cannot say "NOT VALID FOR EMPLOYMENT." SSNs that contain the annotation "VALID FOR EMPLOYMENT ONLY WITH INS/DHS AUTHORIZATION" are acceptable.
- The individual must have earned income between $0 and $50,000.
- File in the status of single, head of household, or married filing joint.
- Have investment income of less than $3,200.
The definition of Qualifying Children is very exact. A qualifying child must meet the following tests to be claimed for the EITC:
- Relationship: a son/daughter, niece/nephew, grandchild, stepchild, or foster child that lived with the individual for more than six months of the year.
- Age: Less than 19, unless a full-time student up to the age of 23.
- Residency: Lived with the tax filer for more than six months of the year.
Often tax preparers claim children, falsify income, and file tax returns in an incorrect filing status to increase or obtain the EITC for individuals who would not qualify. This is tax fraud. If your tax preparer encourages you to claim a child that does not meet one of the above tests, file as single or head of household when you are married, or misstate your income, then you should go to someone else. Claiming retroactive refunds based upon a change in immigration status is a complicated process that is sure to draw IRS attention due to the amount of the refunds that can be claimed, in some cases close to $20,000. In 2012, the Supreme Court of the United States ruled that tax fraud can be an aggravated felony under the Immigration and National Act, which means that an individual can be removed if convicted of tax fraud. Needless to say, you should be careful in making these claims. Therefore, you should have an attorney, Certified Public Account, or Enrolled Agent assist you rather than an unenrolled tax preparer.
** Maggio + Kattar thanks Rock & Hardin for sharing this information with us. Should you wish to consult with them about these matters, they can be reached at http://rockandhardin.com.
|
DHS Publishes Final Rule for Provisional Unlawful Presence Waivers
|
On January 2, 2013, USCIS published the final rule for the provisional unlawful presence waiver process. The new rule will be effective as of March 4, 2013 and it will allow certain immediate relatives of U.S. citizens who are physically present in the United States to request provisional unlawful presence waivers prior to departing from the United States for consular processing of their immigrant visa applications. USCIS's approval of an applicant's provisional unlawful presence waiver prior to departure also will allow the DOS consular officer to issue the immigrant visa without further delay, if there are no other grounds of inadmissibility and if the immediate relative is otherwise eligible to be issued an immigrant visa. The U.S. Consulate in the applicant's home country may review the unlawful presence waiver for a second time after it has been approved by the USCIS in cases where the applicant's circumstances change (e.g., they become subject to another ground of inadmissibility). The new rule is expected to reduce the amount of time family members must be separated during the immigrant visa and waiver application process. In addition to minimizing hardship to U.S. citizen family members brought about by prolonged separation, the provisional waiver is welcome news for foreign nationals who face dangerous circumstances in their home countries.
USCIS will start accepting applications on March 4, 2013. Applicants filing the new provisional waiver will use Form I-601A, which will become available sometime before the March 4, 2013 filing start date. The government filing fee will be $585 for the waiver application and $85 for biometrics. There is currently no estimated timeline for a denial or an approval of a provision unlawful presence waiver.
Eligibility Requirements
Under the new rule, a foreign national would be eligible to apply for a provisional waiver of the unlawful presence bar in the United States if she is a beneficiary of an approved visa petition by a U.S. citizen, classifying her as an "immediate relative," and she demonstrates that the denial of the waiver would result in extreme hardship to her U.S. citizen spouse or parent. An immediate relative is the spouse, child under the age of 21, or parent of a U.S. citizen. Sons and daughters of U.S. citizens must be 21 years old in order to petition for their parents. Applicants must also be 17 years or older to file a provisional unlawful presence waiver, have an approved I-130 or I-360 application, and be present in the United States to file the application and have their biometrics taken. USCIS will not accept concurrently filed Forms I-130 and I-601A, or allow for the filing of the Form I-601A before approval of the immediate relative petition. Moreover, DHS will not permit concurrent filing of Forms I-601A and I-212.
Foreign Nationals Who Are Not Included in the Final Rule
Foreign nationals facing grounds of inadmissibility aside from unlawful presence (criminal offenses, fraud, etc.), would be ineligible for the provisional waiver. The proposed rule also excludes applicants with an interview appointment letter from the National Visa Center (NVC) dated before January 3, 2013 from filing the I-601A. Only applicants scheduled by the NVC on or after January 3, 2013 for an upcoming initial immigrant visa interview are eligible to apply for the I-601A. "Scheduled" means the date on which NVC took the action to schedule the case and not the date of the visa interview appointment. This rule applies even if the foreign national failed to appear for her immigrant visa interview, cancelled the interview, or requested that the interview be rescheduled. However, a foreign national who is ineligible to apply for a provisional unlawful presence waiver because of a previously scheduled immigrant visa interview may still qualify for a provisional unlawful presence waiver if she has a new DOS immigrant visa case because (1) DOS terminated the immigrant visa registration associated with the previously scheduled interview, and she has a new immediate relative petition; or (2) the foreign national has a new immediate relative petition filed on her behalf by a different petitioner.
Significant Changes to the Rule Following Comment Period
There have been significant changes due to the responses received during the comment period. DHS adopted most of the proposed regulatory amendments, with a few exceptions. DHS has stated that it will consider expanding the provisional unlawful presence waiver to other categories of aliens seeking to immigrate to the United States, beyond immediate relatives of U.S. citizens. Additionally, DHS removed the one-time filing limitation on I-601A waiver applications. The new rule allows individuals to file another provisional unlawful presence application, if the first application is denied, especially in cases where a foreign national's circumstances have changed or she was a victim of individuals or entities not authorized to practice immigration law. Individuals can also file for a second time if they withdrew their first application for a provisional unlawful presence waiver before final adjudication.Individuals in removal proceedings will also be eligible to apply for the waiver if their removal proceedings are administratively closed or have been re-calendared at the time of filing the Form I-601A. However, proceedings will not be closed by virtue of filing a waiver application. DHS also clarified that the application for provisional unlawful presence waiver will be filed only with USCIS, even if a foreign national is in removal proceedings before EOIR. Additionally, DHS clarified that a pending or approved provisional unlawful presence waiver does not authorize any interim benefits such as employment authorization or advance parole.
|
Advance Parole Travel Questions Linger despite Board of Immigration Appeals decision in Matter of Arrabally and Yerrabelly
|
In a landmark decision last year, the Board of Immigration Appeals ("BIA") found that a non-citizen who leaves the United States temporarily with advance parole based on a pending adjustment of status application does not make a "departure" from the United States for purposes of triggering the three- and ten-year bars to admission. Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012). This welcome decision reversed fifteen years of USCIS policy treating a trip outside the United States pursuant to advance parole as a departure that would trigger the bars.
Since the decision, however, questions remain about the applicability of Matter of Arrabally and Yerrabelly to other circumstances. The most commonly raised questions have been regarding those who hold Temporary Protected Status ("TPS") and those who hold DACA. Both TPS and DACA holders may apply for and receive advance parole for travel outside the United States. The unanswered question is whether, if they travel, they will be deemed to have triggered the three- and ten-year bars to admission. Based on the reasoning of Matter of Arrabally and Yerrabelly, the answer should be no. In September 2012, the USCIS Administrative Appeals Office issued a non-precedent decision finding as much in the context of a TPS holder, and determined that the applicant did not require a waiver of inadmissibility to adjust status. USCIS later re-issued the decision in October 2012 and removed references to the applicant's temporary protected status.
Such a legal interpretation is advantageous for an applicant with an immediate relative who can file a petition on his or her behalf, but is ineligible to adjust status because of an entry without inspection. A trip outside the United States and a return pursuant to advance parole would allow for adjustment of status, which is available to those who, among things, were "admitted or paroled" into the country, without the need to apply for a waiver of inadmissibility. Such a strategy remains somewhat risky, however, without further guidance from USCIS. It is hoped that there will be further guidance on this topic issued in the near future to determine the agency policy regarding this issue. In the meantime, those who confront these issues can and should argue that Matter of Arrabally and Yerrabelly applies outside of the adjustment of status context.
|
Department of State Launches New NIV/IV Case Status Check
|
On January 8, 2013, the State Department announced the launch of a new Visa Status Check tool that can be accessed from the Consular Electronic Application Center. Visa applicants and counsel seeking to ascertain the status of pending NIV and IV cases can use Visa Status Check to submit their inquiries. In both instances, the applicant's case number, which can be found on the confirmation form following submission of the DS 160, and the type of visa (immigrant or nonimmigrant), must be entered.
The new tool is designed to make it easier for applicants to find out the status of pending NIV and IV adjudications without having to contact consular sections by email or phone. However, it is not designed to provide any information concerning the reasons for processing delays or to provide any guidance concerning processing times. Applicants experiencing unusual visa processing delays will still find it difficult to determine why this is the case or when their cases could be resolved.
|
Reminder to Employers - Initiate New H-1B filings Now for FY 2014!
|
USCIS will start accepting H-1B petitions subject to the annual cap beginning on Monday, April 1 for an October 1 start date. Cap-subject petitions are subject to an annual 65,000 numerical limit and an additional 20,000 slots are available for individuals with U.S. master's degrees or higher. If USCIS receives more petitions than it can accept - in recent years the H-1B cap has taken several months to meet - it will announce a final receipt date and may randomly select cases to be included in the cap and reject other petitions. Of course, many H-1B petitions are exempt from the cap, including those on behalf of H-1B workers previously counted against the cap.
If you have any questions about how the H-1B quota may impact your foreign national population, please contact us.
|
U.S. Consulates in China Plan Transition to New Visa Collection System
|
The U.S. Consulates in China are transitioning to a new visa fee collection system for the payment of visa application fees in mid-March 2013. As a result of this new system, the U.S. visa fee receipts that applicants currently purchase from select CITIC Bank branches will be phased out and will not be valid after March 14, 2013.
All visa applicants should use current CITIC fee receipts before they expire on March 14, 2013. According to U.S. Mission China: "After the expiration date, we will be unable to accept receipts issued before March 14 and refunds for expired receipts will not be available. Visa applicants who plan to apply close to or after March 14 should wait to pay their visa fees until after this date." Further details on how applicants should pay visa application fees will be announced closer to the transition date.
|
|
|
After over twenty years of fear and uncertainty, Maggio + Kattar client Alvaro was granted lawful permanent residency in 2012 after having won asylum based on his sexual orientation the year before. This win demonstrates in some ways how the immigration system worked exactly as intended - to ultimately provide protection to those who most deserve it. However, it also highlights how unfair the one-year filing deadline for asylum applicants negatively impacts the most vulnerable persons seeking help. For example, many lesbian, gay, bisexual, and transgender (LGBT) persons are unaware that they actually may have a claim for asylum. Additionally, a significant number suffer from debilitating depression and post-traumatic stress disorder (PTSD) based on the persecution they experienced in their home countries. Finally, many have not fully completed the coming out process and, even if aware of the option, are hesitant to seek asylum.
Alvaro fled his small hometown in Mexico after having been bullied, insulted, abused, and attacked since childhood. Shortly before fleeing, he had been left for dead in the streets of his hometown after having been beaten by neighborhood bullies, including off-duty police officers. The reason for his beating - he was gay. During his hospital stay, a schoolmate, Mariana, came to visit and gave him supplies and some money. She told him to run for his life and he did. Alvaro traveled north and crossed the border into the United States, hoping and praying for a better life.
As many know, an asylum applicant must file his or her application within a year of entry. This deadline can be waived under certain circumstances, including where a person proves he or she was unable to file because of depression. In Alvaro's case, we were able to establish that he suffered ongoing depression because of his past trauma and persecution in Mexico which prevented from filing within a year of his entry in 1990. Additionally, we argued that his coming out process was not final even at the time that he filed for asylum. Although Alvaro has a partner, they lived in separate residences and Alvaro only shared his sexual orientation with a small number of people. These two arguments convinced the asylum officer that the one-year filing deadline did not apply and Alvaro was granted asylum 20 years after he fled his country. His employer rehired him and Alvaro is now a lawful permanent resident of the United States. He looks forward with great pride to applying for his citizenship when he is eligible.
Maggio + Kattar represents a large number of LGBT clients in a broad variety of immigration matters, especially in asylum proceedings. What is striking about almost all of the asylum cases is how few LGBT clients know of their rights to seek asylum after entering the United States. Many also have not fully completed the coming out process as they are still recovering from the persecution they suffered at home. Excellent advocacy groups, such as Immigration Equality, are working to educate those seeking asylum based on their orientation and have made great in-roads in reaching out to communities throughout the country. Maggio + Kattar is proud to be part of these efforts and to advocate on behalf of persons who have suffered so much simply because of who they are. Alvaro's case is one of our greatest victories and proof that the system can work to protect those who most need protection, especially if they have a strong advocate on their side.
|
|
|
Maggio + Kattar is pleased to announce that its 5th Annual Founders Day Benefit will be held on Wednesday, April 10th at the PEPCO Art Gallery from 6:30 to 8:30pm. All proceeds from this benefit will support the work of Empowered Women International. Further details will be provided in our February edition of Immigration News + Analysis.
|
Maggio + Kattar Attorneys About Town
|
Steve Pattison was a panelist in a series of ILW Seminars on Consular Processing for Experts in December and January, and will complete the series with a final broadcast on February 7.
Meg Hobbins will be teaching a class on Waivers of Inadmissibility for the District of Columbia Bar Association's Continuing Legal Education program on January 30, 2013.
|
|
