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Spring 2004

The Immigrant Rights News Update; a publication of HEATHER L. POOLE, PC, Professional Law Corporation, © 2004.

Spring 2004

InfoPass Scheduling System Now In Effect at Los Angeles CIS
 
CIS is finally trying to take measures to reduce the long line that is created outside the doors to the main entrance of the CIS building when people do not have appointments but merely have documents to “drop off” regarding their case.  InfoPass is the latest solution. 
 
InfoPass is an internet-based scheduling system, which prints out appointment letters for individuals to file petitions, see an immigration information officer, renew work permits or file replacement green card applications at the local office. One of the obvious downsides of this program is that it is available only through the internet. The site is www.uscis.gov (click on InfoPass icon on the right hand side of the webpage). The upside is that it is relatively easy to use and most appointments can be scheduled quickly and based, partially, on your availability. 
 
Although this program is useful for some things, never go to any US CIS office to ask questions if you are undocumented. CIS officers are not there to give you legal advice and you may be detained. Always consult an attorney before going to a local CIS office is you are able.
 
Policy Evolving on I-751 Waivers in LA District
 
I-751 waivers based on bona-fide marriage that have been denied in the LA District at interview because the divorce was not final at the time the waiver was filed, may be re-filed with the CSC and again, scheduled for interview, according to the Soto Street  sub-office policy of the LA District Office.  
 
The Soto Sub-Office is also reporting a backlog on all I-751 interviews, now working on cases filed in “2001”.
 
 
Bill Defeated Requiring Hospitals to Report Undocumented Immigrants Seeking ER Care
 
A new effort was underway to cut vital health care needs of undocumented immigrants.  Rep. Rohrabacher’s bill, HR 3722, which was defeated in the U.S. House of Representatives by a vote of 331 – 88,  would have required hospitals to report undocumented immigrants seeking emergency care to the Office of Homeland Security.  The bill required certain hospitals to report undocumented immigrants who seek emergency services to the Office of Homeland Security if they wish to be reimbursed under provisions that were set by the Medicare Prescription Drug bill.  The bill also allowed hospitals to deny certain emergency services to undocumented immigrants. 
 
Hospitals are in the business of providing health care to sick people, not enforcing federal immigration law.  This bill would have forced hospitals to obtain private information about undocumented individuals in order to be reimbursed by the federal government for the services they have provided.  Specifically, hospitals would need to determine the citizenship, immigration, and financial status of these individuals, as well as obtain employer information and biometric identifiers such as fingerprints.  This information would then be sent to the Department of Homeland Security (DHS) to initiate deportation proceedings. 
 
Imposing such requirements on hospitals poses a number of legal problems.  First, hospitals should not be performing the tasks of immigration officers, especially in the emergency room.  The enforcement of federal civil immigration law is under the exclusive jurisdiction of the federal government, and hospital personnel do not qualify as trained immigration officials.  Second, the requirement that hospitals obtain certain information exclusively from “undocumented aliens” raises concerns about racial profiling and unlawful discrimination.  Under Title VI of the Civil Rights Act of 1964, federally funded health care providers are prohibited from discriminating on the basis of national origin.  Finally, this bill would have forced hospitals to violate their legal and ethical duty to protect the privacy of their patients and to provide emergency care to any individual regardless of their ability to pay.  
 
The bill, which was part of The Medicare Prescription Drug, Improvement and Modernization Act of 2003, would have been devastating to local communities. People would simply not go to the hospital because they’d be afraid to get deported. This would certainly lead to deaths and serious health complications, not only of immigrants, but also their citizen children since many immigrant parents would be afraid that they would be asked questions at the hospital.
 
CIS Fees Increased April 30
 
US CIS increased the immigration government filing fees for each type of immigration application by approximately $55 per application, and increased the biometric fee (fingerprint fee) by $20, in order to ensure sufficient funding to process incoming applications. 
 
Right now, in the U.S., a U.S. citizen-based spousal green card application package including work authorization, costs $555 in CIS filing fees, a hefty financial burden for many low income families. This fee increase raises that fee to at least $745.  The new fees, posted on www.uscis.gov, went into effect on April 30, 2004.
 
Immigration Proposal Introduced to End Unlawful Presence Bars

Sen. Hagel, a Republican and Sen. Daschle, a Democrat joined forces to introduce a bipartisan bill for comprehensive immigration reform. The bill would end of the 3 and 10 year bars, which currently exclude those who have been unlawfully present in the U.S. for more than six months from re-entering the U.S. for years, once they leave the U.S. for any amount of time. 
 
The bill would also mean the end of registry and 245(i) by substituting a rolling registry-like provision for which millions of the undocumented would be eligible. The bill would also increase the permanent immigration quotas, allowing for the availability of more visa numbers and thereby, decreasing the backlog in waiting time for processing petitions. 
 
The House will likely have a different view on the extent of immigration reform necessary than the Senate bill, but we’ll have to wait and see when the text of the actual bill is released to see how welcome it is in the other branches of the federal government.
 
US VISIT system to track foreign visitors now up and running
 
The Homeland Security Department launched the first phase of the U.S. Visitor and Immigrant Status Indicator Technology (US VISIT) program at 115
airports and cruise ship terminals at 14 seaports. This new law requires that visitors with nonimmigrant visas are now required to give biographic, travel and biometric information before entering the country.
 
Biometric information consists of a digital photo and two fingerprint scans, which are entered into a database and compared to terrorist and criminal
watch lists. Visitors from 27 countries participating in the Visa Waiver Program are exempt from the new program.
 

2004 Poverty Guidelines Released, Lowers Affidavit of Support Income Requirements

The 2004 Poverty Guidelines, effective as of March 30, 2004, are the measure that CIS adjudications officers look to when determining whether an immediate relative or sibling has enough income to be able to support the alien being sponsored for U.S. legal permanent residence.

If a U.S. citizen or legal permanent resident petitioner is only sponsoring one immigrant beneficiary for a green card and has no dependents under his or her care, the sponsor will only have to show that s/he makes more than $12,490 in income in 2004 to be able to cover the affidavit of support requirements (if living in the 48 contiguous U.S. states).This impacts those sponsors who attend green card interviews with their spouses or relatives during 2004, at which point the CIS officer will reference the current 2004 poverty guidelines to ensure that the sponsor has enough income to take financial responsibility for the immigrant, if the immigrant is granted legal permanent residency.The new guidelines is also relevant to new green card filings for family members, for which the sponsor must show the ability to support the immigrant, relying on 2004 poverty guidelines instead of 2003 guidelines, which were higher at $15,150.

H-1B Visas Run Out Early

The 65, 000 available visas for FY 2004, beginning October 1, 2003, for the H-1B program ran out 4 months into the new year, making it impossible for new employees to start working for sponsoring companies until the next fiscal year, beginning October 1, 2004.  The H-1B visa is a nonimmigrant, temporary employer-sponsored visa for an individual serving in a professional capacity in a “specialty occupation”, defined as one normally requiring at least the equivalent of a U.S. bachelor’s degree for entry into the profession. H-1B visas are popular visas for employers and foreign professionals such as accountants, computer programmers, and financial analysts, to name just a few, because the H-1B visa allows work authorization for the employer and temporary immigration status for the employee for up to 6 years.

CIS has not yet released procedural memoranda as to whether students on practical training who planned to begin work for their H-1B employers at the end of their studies or practical training would be able to remain in valid immigration status until October 1, 2004, the new fiscal year, instead of being forced to return to their home countries and await the new visa allotment.  The last time the H-1B cap was reached so quickly, the CIS (INS) commissioner used her special legal authority to extend an F-1 student’s D/S status (duration of status) until the time an H-1B visa could be obtained. This means that when a student immigrant’s OPT expires, his/her valid immigration status of “D/S” would allow the student to stay in the U.S. legally until October 1, 2004.
Congress is being heavily lobbied right now from immigration advocates, lawyers, and businesses that are losing valuable workers because of this cap.  What is likely to happen? Unless new H-1B numbers for 2004 are not created in the next two months, the earliest an immigrant can apply for an H-1B is April 2004, 6 months prior to the earliest possible start of employment date of October 1, 2004.   This new minimum start date means that many potential employees will have to return home to a foreign country in order to obtain their visa through consular processing, instead of being able to stay in the U.S. and benefit from change of status procedures.   The best option for any immigrant depends on their visa history and current situation and any immigrant trying to navigate these new procedures and laws should speak with any attorney instead of risking falling out of status or making an incorrect move, thereby jeopardizing the attainment of an H-1B.

Immigration Soundbites :

Bush budget adds hundreds of immigration enforcement jobs
 
Ø       President Bush’s fiscal 2005 budget proposes the creation of hundreds of new immigration enforcement jobs, including 236 personnel to find aliens that have defied final deportation orders. The budget would add staff to the Bureau of Immigration and Customs Enforcement’s detention and removals branch, which expels illegal aliens from the United States. The unit extradited 142,008 aliens in fiscal 2003, but faces a daunting backlog of roughly 400,000 aliens who have fled have fled after receiving a final order of deportation from an immigration judge.
Immigration benefits backlog growing despite increased budget allocations
Ø       The number of immigrants awaiting decision – including citizenship and permanent resident status—increased 59 percent in the past three years, and that despite $160 million appropriated in the past two years to remedy the logjam, nearly 6.2 million applications were pending at the end of September, according to a new General Accounting Office report.
 
“While Congress was funneling money to reduce the backlog, the backlog increased by merely 2.3 million cases,” said a spokesman for House Judiciary Chairman James Sensenbrenner, R-Wisc. Source: CongressDailyPM
 
 

Abused Immigrants Update:


Traffickers Sentenced in Sex Slavery Smuggling Ring
 
The Justice Department announced on January 31, 2004 the sentencing of seven men who earlier pled guilty to confining women in alien smuggling “safe houses” near the US-Mexico border and raping them repeatedly.  The men were sentenced on various trafficking and forced servitude-related charges, arising out of an alien smuggling ring run out of a series of mobil homes in Edinburg, Texas from August 2002 – March 2003. 
 
During their period of operation, the traffickers and their henchmen smuggled groups of young women from Mexico into the United States, using the trailers as “safe houses.” After housing them there for a short period of time, the smugglers then transported the aliens north, guiding them around internal Border Patrol checkpoints and on to Houston, Texas. From January through March of 2003, four women were held in a condition of involuntary servitude, as sex slaves. A handgun was brandished and force and threats were used to rape the women or to force them to engage in sexual activity with other members of the trafficker’s organization. In addition to raping the women repeatedly, one of the traffickers forced the women to work during the day, cooking and cleaning for the men at the trailer complex. On February 7, 2003, one of the traffickers, enraged that two of the women had tried to contact a neighbor for help, ordered his men to transport the women in the trunk of one of the alien smuggling vehicles to an irrigation ditch. There, he and his men raped and beat the two women to punish them for trying to escape. He then ordered some of his workers to kill the women, but instead they dropped them off on the outskirts of town.
 
Ultimately, all defendants pled guilty, including the lead defendants on trafficking charges. U.S. District Court Over the last three fiscal years, 111 traffickers, 79 of which included allegations of sex-trafficking, were charged, the highest number of suspected traffickers charged to date.
 
VSC Now Issuing Prima Facie Case Notice Initial Extension Beyond 60 Days
 
Violence Against Women Act-based Prima Facie Case Determinations are now being issued for 180 days and renewed for up to 180 days. Previously, prima facie case determinations were initially issued for only 150 days and had to be renewed every 60 days (even the initial extension) for an abused immigrant to be able to obtain certain public benefits.
 
The new notices are being sent on blue paper (taking some off guard, because they are on blue paper – the same paper that RFEs – requests for further evidence, are being issued on) but CIS believes that the blue paper will help CIS workers match evidence to files faster, to speed up processing.  To be clear, the first extension of a prima facie case notice can be issued for 180 days but all second and subsequent extension requests are still subject to renewal only every 60 days, not every 180 days.  This new system became effective April 16, 2004.  The VAWA unit at Vermont Service Center is also issuing preliminary RFEs to those self-petitioners who have not established a prima facie case finding to begin with. Previously, the self-petitioner was not notified of any deficiency and the failure to ever receive a prima facie case notice.
 
Department of Homeland Security in Favor of Granting Asylum to Guatemalan victim of domestic violence
 
The Department of Homeland Security asked Attorney General John Ashcroft to grant asylum to a Guatemalan woman who had been repeatedly beaten and raped by her husband for a decade. The request will determine whether battered women are eligible to receive sanctuary in the United States. The case could have far-reaching repercussions for women who live in countries where domestic violence goes unpunished.  Homeland Security spokesman Bill Strassberger said the department wasn’t “endorsing asylum for all battered women who arrived on U.S. shores.
 
But in Alvarado’s case, her husband found her when she ran away.  Alvarado entered the U.S. in 1995, seeking protection under U.S. asylum law, from her abusive husband who punched and kicked her, whipped her with an electrical cord and a pistol, dragged her down the street by the hair and broke a mirror over her head, while the authorities did nothing to protect her. When she finally fled in 1995, her husband pledged to kill her if she ever returned.  A U.S. immigration judge granted her asylum based on the severe abuse she had suffered.
 
The Board of Immigration Appeals reversed that decision and Attorney General Janet Reno intervened and instructed immigration authorities to draw up regulations to clarify whether victims of domestic abuse or other gender-based persecution were eligible for asylum.  Reno left office before regulations were issued and the issue remains open to current Attorney General, John Ashcroft, to decide, much to the chagrin of many immigrant advocates who fear a restrictive reading of current asylum law. 
 

Federal Judge Orders CIS (INS) to Give Thousands of Asylees Green cards, calling INS a “National Embarrassment”

A federal judge condemned the former Immigration and Naturalization Service for “widespread,” “egregious” and “plainly harmful” violations of law that “constitute nothing short of a national embarrassment.”

Ngwanyia v. Ashcroft, a national class action filed on behalf of more than a 150,000 asylees in the United States by the American Immigration Law Foundation, et al, was brought on behalf of immigrants who were granted asylum but are still waiting in a long queue to obtain their green cards.Plaintiffs successfully argued that over the last decade, the INS — now known as the U.S. Citizenship and Immigration Services within the Department of Homeland Security — unlawfully failed to adjust the status of almost 22,000 asylees through simple mismanagement.The INS’s failures lengthened the individuals’ wait before they could become U.S. citizens and extended the waiting list for all asylees in the queue by more than two years.

U.S. District Judge Richard H. Kyle, of the District Court of Minnesota, ordered the government to adjust the status of nearly 22,000 waiting asylees now that plaintiffs have uncovered the INS’s past failures.

The judge also railed against the INS’s “Kafkaesque” procedures for asylees to obtain work permits.He held that the defendants improperly required individual asylees to reapply for a work permit every year at a cost of $120 Months of delay and mounds of unnecessary paperwork resulted.The law requires the government to grant a work permit automatically and to keep it valid as long as an asylee remains an asylee: “not a minute shorter, and not a minute longer” the Judge held.

Judge Kyle condemned the INS for their “one-law-for- Tuesdays-and-another -law-for-Wednesdays” mismanagement, including practices that varied office-by-office and day-by-day.

[Courtesy of AILF]

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