Despite high hopes for an overhaul of the U.S. immigration system after the November 2012 elections (and again after the Senate passed a comprehensive reform bill in June), the push for comprehensive immigration reform is not moving forward. We will keep you posted if there are any significant developments in this area.

Residual Effects of Government Shutdown

As most of you know, the federal government's shutdown caused delays for many immigration services. For the most part, services provided by USCIS, CBP and DOS are back to normal. DOL was the only agency to completely cease performing all immigration-related services during the shutdown, and thus has taken longer to get back up and running. LCAs are now being processed within the normal timeframe, but PERM applications and Prevailing Wage requests continue to take a long time to be adjudicated. PERM cases are currently taking about 7-8 months to be reviewed, and Prevailing Wage requests are taking 2-3 months or more. We anticipate that these delays will continue through early 2014 and possibly beyond, so employers should keep this in mind with regard to the timing of beginning PERM applications. For pending PERM cases in which the employee is approaching the end of his/her initial six years in H-1B status, feel free to contact the attorney handling the case to discuss the impact of these delays.

I-94 Automation

Starting in April 2013, U.S. Customs and Border Protection instituted a new automated I-94 system. Most nonimmigrant travelers to the United States no longer receive a white paper Form I-94 stamped with their date of entry; instead, CBP enters the nonimmigrant's arrival information into an electronic database and provides each traveler with an admission stamp annotated with date of admission, class of admission and expiration date. Nonimmigrants can subsequently access the CBP database located at www.cbp.gov/I94 to print their electronic I-94 record.

The introduction of a new system is never without problems, and many clients have reported difficulty in accessing their I-94 record online. This is particularly problematic for those individuals admitted to the U.S. in a nonimmigrant category that authorizes temporary employment, since the I-9 Employment Eligibility Verification Form must be completed within the first three days of employment, and doing so requires an I-94 admission number. CBP has continued to update the system since implementation and has indicated that the number of reported issues (i.e. nonimmigrants unable to locate their records) has decreased dramatically, but the agency acknowledges that some problems persist.

In our September newsletter, we provided a number of tips to assist clients in locating their electronic I-94 record if initial efforts are unsuccessful. We strongly suggest that clients attempt to access their electronic record as soon as possible after being admitted to the United States, and let us know if any problems arise. Those travelers with more complex names may wish to access CBP's I-94 website from their smartphones before leaving the secured inspections area, so that any issues locating the record can be resolved prior to departing the airport.

Immigration Benefits Post-DOMA

As many of you know, in June of this year, the U.S. Supreme Court held that a section of the Defense of Marriage Act (DOMA) is unconstitutional. Subsequently, federal government agencies, including USCIS and the Department of State (DOS), were instructed to review their policies and analyze any implications for same-sex married couples. USCIS issued an FAQ and statement that the agency would begin reviewing immigration visa petitions filed on behalf of same-sex spouses in the same manner as those filed on behalf of opposite-sex spouses.

In continuing efforts to clarify immigration policy in the wake of the Court's decision, DOS has posted additional guidance on visas for same-sex spouses. Specifically, DOS states that "the same sex spouse of a visa applicant coming to the U.S. for any purpose - including work, study, international exchange or as a legal immigrant - will be eligible for a derivative visa. Likewise, stepchildren acquired through same sex marriages can also qualify as beneficiaries or for derivative status."

At this time, DOS and USCIS will only recognize same-sex marriages if the marriage is legally recognized in the jurisdiction where it took place. This means that couples in civil unions or domestic partnerships continue to be ineligible for visas as derivatives (dependents) of their same-sex partners. From all reports, USCIS and DOS continue to accept and adjudicate cases for same-sex spouses. Our firm has successfully handled multiple same-sex marriage-based petitions, and we would be happy to accept new cases of this nature.

Deferred Inspection for Childhood Arrivals (DACA): How it's working

On June 15, 2012, Secretary of Homeland Security Janet Napolitano announced that certain people who came to the United States without authorization as children and meet specific guidelines may request consideration for deferred action for a period of two years. This policy directive is known as Deferred Action for Childhood Arrivals, or DACA. If a DACA application is granted, the individual is not given any status, but immigration enforcement action will not be taken against the individual for a period of two years, and he or she may be eligible for employment authorization. For more information about DACA eligibility requirements, see our August 2012 newsletter.

USCIS began accepting DACA applications on August 15, 2012. As of August 31, 2013, USCIS reported that it had received a total of 588,725 applications, approved 455,455, and denied 9,578. The applications are being accepted on a rolling basis and there is currently no deadline to submit applications.

In the News: What's Happening at RS

For the fourth year in a row, Ross Silverman LLP has been named by U.S. News Media Group and Best Lawyers as a First-Tier law firm in the area of Immigration Law in Boston in the 2014 U.S. News Best Law Firms rankings.
We are proud to announce that two of our Associates, Sara Fleming and Christine Gannon, have been named by Super Lawyers Magazine as Massachusetts Super Lawyers Rising Stars in the field of immigration law for 2013. Howard Silverman and Sharryn Ross have once again been named Massachusetts Super Lawyers for 2013, as well.
December 16 - 17, 2013: Rhonda 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 the conference, organizing the day focused 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.