We are still working on fighting U.S. Citizenship and Immigration Services on the issue as to whether a widower of a U.S. citizen spouse is entitled to the classification of beneficiary when trying to adjust status in the U.S. after their U.S. citizien spouse is deceased, but before the I-130 and I-485 is approved. This is still a very highly-litigated issue, so much so that a widower out of the Second Circuit in New Yok has just filed an appeal with the U.S. Supreme Court on July 23, 2009 to request that they settle a three to one circuit split. As far as the 11th Circuit here in Atlanta, we are still in the District Court level and awaiting the outcome of the Judge’s decision on the government’s Motion to Dismiss and our Opposition to the Motion to Dismiss. Thus far, approximately six circuit courts across the country have dismissed defendants motions to dismiss and disagreeing with their claim that widows of U.S citens are no longer considered beneficiaries for adjustment purposes.
Archive for July, 2009
Update on Widower Penalty Litigation
Tuesday, July 28th, 2009Article on Undocumented Aliens and In-State College Tuition
Tuesday, July 28th, 2009I came across this article by Greg Abbott, Attorney General of Texas, where he addressed questions regarding Texas’ law allowing undocumented aliens to receive in-state tuition over U.S. citizens who are not residents of the state of Texas. Each state will have its own laws regarding a foreign national’s ability to receive in-state tuition from a public college or university. In Texas, one is eligible for in-state tuition if they graduated from a high school in Texas and maintained a residemce continuously for three years preceding graduation. The Texas law is more lenient than the law in Georgia in that one who can provide an affidavit stating that they will apply to become a permanent residence as soon as they are eligible. In contrast, Georgia law requires that a foreign national is a lawful permanent resident or U.S. citizen before they can be eligible for in-state tuition. This is a tricky situation becuase foreign nationals can easily be confused due to the varying laws from state to state. This topic is interesting to me because in the last two weeks more than a few clients have asked me this very question because they are in the process of seeking admission and paying tuition fees to the univerisites they are attending this fall. One client said that the school is considering allowing him to receive in-state tuition even though he only has a pending adjustment application, although Georgia law does not allow this. My advice to him was that he must be very careful to read the application thoroughly before he takes in-state tuition. Even if the school allows him to do so, if immigration looks back and realizes that he received in-state tuition because he accidently misrepresented himself to be a lawful permanent resident, they may find him to be inadmissible as a lawful resident and could potentially be deported. It is always best to consult your immigration attorney regarding these issues because the schools may not necessarily know how one small checked box may severely impact your future in the United States.
Adoption from India
Wednesday, July 15th, 2009It seems that Indians can’t get a break these days. Priority dates have retrogressed for those seeking to immigrate through employment and the priority dates for family based intending immigrants are also horrendous. Most Indians don’t know that they will also face an up hill battle if they wish to adopt a child from their home country however; this time it’s the Indian law that causes the problems and not the US law. Everyone who seeks to adopt a child has to comply with US immigration law and the law of the country of residence of the child. Since India is a Hague country- the adoptive parents have a number of hoops they must jump through before the child is eligible for a green card. Indian adoptive parents should also remember that Indian law does not allow you to adopt a child of the same sex as any children that you already have. And if you happen to be Muslim, the process is complicated further because Indian law will only allow you to become a guardian of the child you seek to adopt. While this is sufficient for cases where the child falls under the definition of orphan; you won’t be able to sponsor the child for an immigrant visa as an immediate relative. On the bright side- there were over three hundred immigrant visas granted to adopted Indian children last year- that’s one for every business day of the year so with hard work and perseverance it can be done.
The Senate is on the Immigration Path!
Wednesday, July 8th, 2009The Senators are coming, the Senators are coming! That’s right, the Senate is debating the DHS Appropriations bill right now, and immigration amendments are being offered. I blogged about the Sessions E-Verify proposal yesterday. Well bill, that passed by voice vote this morning, but not before the Senate voted down a proposal from Senator Schumer to table the Sessions proposal. Senator Leahy, in an astute move prior to the vote on Sessions’ E-Verify bill, amended that bill to include a permanent extension of the EB-5 Regional Pilot Program. So, Leahy’s amendment permanently extending the EB-5 Regional Pilot Program was approved too!
Senator DeMint from South Carolina threw in a bill to mandate the construction of actual fences along 700 miles of the Southern Border, taking away the right of DHS/CBP to decide how best to protect that border. That has also passed.
Senator Hatch has now introduced a bill which includes positive changes including undoing the Widow Penalty, and a religious worker extension and a rural doctors program extension. You can still call the Senate Switchboard to voice your support for this latter bill, and your disgust with the Senate passage of laws without debate that will affect millions of lives and cost billions of dollars. You can reach your Senator by calling 202-224-3121.
All of these amendments, of course, must now go back to a conference committee with the House, and there is no guarantee that any of them will become law. But, lest you thought your time to relax from calling your Congressman was over, it has now started again. Get on the phone and start demanding REAL Immigration Reform, rather than this piecemeal junk.
Senator Sessions Tries to Sneak Through A Mandatory E-Verify Bill!
Tuesday, July 7th, 2009Senator Sessions cannot leave his hands off of E-Verify. Now in “stealth” mode, Senator Sessions has slyly introduced an E-Verify amendment (SB 1371) during today’s full Senate vote on the DHS appropriations bill. The vote will take place tomorrow morning. This bill MUST be opposed!
The Sessions amendment calls for a permanent reauthorization of the Basic Pilot/E-Verify program, and mandates its use for all federal contractors and subcontractors – including the verification of all existing employees. This amounts to a massive expansion of a program that is still not ready for prime-time.
We must call our Senators and tell them to oppose this sneak attack by Senator Sessions for the following reasons:
It would impose exorbitant costs on businesses at a time when our economy is most vulnerable:
An economic analysis commissioned by the U.S. Chamber of Commerce
concluded that the net societal costs of the program would be $10 billion a year
– a cost that would be felt disproportionately by small businesses.
It would make Basic Pilot/E-Verify permanent without addressing its well documented database inaccuracies:
A 2007 independent evaluation of the program commissioned by DHS found that
the Basic Pilot/E-Verify database “is still not sufficiently up to date” to meet
the requirements for “accurate verification.”
SSA has estimated that if Basic Pilot/E-Verify were to become mandatory and
the databases were not improved, SSA database errors alone could result in 3.6
million workers a year being misidentified as not authorized for employment.
This would result in 6 out of every 100 workers having to visit an SSA office to
correct their records or lose their job.
It would force workers and businesses to pay a high price for Basic Pilot/E-Verify’s inaccuracies:
Queries submitted to Basic Pilot/E-Verify by Intel Corporation in 2008 resulted
in nearly 13 percent of all workers being initially flagged as unauthorized for
employment. All of these workers were cleared by Basic Pilot/E-Verify as
work-authorized, but only after “significant investment of time and money”
and “lost productivity.”
We urge all AILA members to call their Congressman today and oppose the Sessions amendment (SB 1371). Don’t let Senator Session’s stealth tactics create a nationwide crisis for employers
ICE Starts I-9 Audits of U.S. Employer
Wednesday, July 1st, 2009Immigration and Customs Enforcement (”ICE”) announced today that it will now begin investigating workplaces in every state, as it beings random (or targeted) audits of Form I-9 compliance.
ICE launches workplace immigration crackdown
By SUZANNE GAMBOA July 1, 2009
WASHINGTON (AP) — Immigration officers are investigating workplaces in every state in the U.S. to check whether they are hiring illegal workers.
Immigration and Customs Enforcement told members of Congress in an e-mail Wednesday morning that it is beginning audits of documents that employees fill out when they are hired. The documents are known as I-9’s.
President Barack Obama has said his administration’s strategy for stemming illegal immigration is focusing on employers who hire illegal workers.
The Bush administration was criticized for raiding businesses and arresting workers but not doing enough to go after the employers who hire them.
Frankly, it is about time. ICE has long avoided this most basic of enforcement tools. ICE has an obligation to conduct these random audits to ensure that employers are actually doing the Form I-9s, and also ensuring that employers are not skirting their Form I-9 compliance by doing a purposely bad job in completing these forms. For the same reason that the IRS conducts random and targeted tax audits, these Form I-9 compliance audits serve as a check on the overall compliance regime.
At the same time, we also note that the Form I-9 is the MOST COMPLICATED one page form ever created by man. Why does a one page form need a 65 page manual to explain how to properly complete it? The bottom line is this: It is good that ICE is conducting random audits (or even targeted audits of employers), but ICE must also understand that very few, if any, employers actually properly complete each Form I-9, and that education and good faith compliance leniency (in fining non-compliant employers) must be part of this audit process. Based upon our meeting this week with Assistant Secretary of the Department of Homeland Security John Morton, I believe we can expect a more holistic approach to this Form I-9 compliance focus.