News

USCIS NEW POLICY REGARDING APPLICATION DENIALS BEGINS TODAY: UPDATE

USCIS’ new policy of initiating removal proceedings against anyone whose application is denied and that denial leaves the applicant out of status goes into effect today.  In a stakeholder meeting September 27th USCIS addressed a number of concerns.

Phase-In of the New Policy

The policy will be phased in,and will not immediately apply to employment-based petitions or cases of humanitarian relief.  Forms I-129 and I-601A will not be included in this initial implementation.  It will apply to applications for permanent residence (adjustment of status) and to other applications to extend/change non-immigrant status.

Removal (formerly deportation) proceedings begin with the issuance of a Notice to Appear (NTA), and a foreign national is officially in removal proceedings when ICE files the NTA with the immigration court.

At the September 27th meeting USCIS stated it generally will wait for the statutory period of time to file a motion to reopen/reconsider or appeal to expire prior to issuing the NTA, although they reserve the right to issue the NTA at any time.

If a motion or appeal is still pending when an NTA is issued, and later the motion or appeal is granted, USCIS will work with ICE to advise them of the favorable action in the case.  Note, however, at that point the favorable action in itself has no impact on the removal proceedings.

What Happens if an Appeal or Motion to Reopen or Reconsider is Granted?

If the appeal is granted, and the grant puts the applicant back in lawful status, the applicant’s lawyer must make a motion to the court to terminate the removal proceedings based on the fact that the applicant is in lawful status.

If the motion to USCIS to reopen or reconsider the original application is granted, then the person still isn’t back in lawful status.  Upon reopening or reconsideration, the application could still be denied.  In that instance, in the past the court was more likely to grant a continuance to wait for the final decision by USCIS, or to administratively close the case, an action that removes the case from the active docket, but allows either the applicant or the government to move the court to re-calendar it at a later date.

However, under new rules established by the attorney general in the past few months, immigration judges have quotas of cases to be completed, and their ability to administratively close (hold in abeyance) or continue a case is now notably curtailed.  Attorneys must carefully evaluate and draft the motion to the court to comply with the new rules on continuances, administrative closures, and terminations.

An Immigration Officer’s Decision Not to Issue an NTA will be Reviewed

USCIS stated that it will consider any positive and negative factors apparent in the record prior to deciding to issue an NTA.  Each office will create a panel consisting of a supervisory officer and an ICE attorney to review whether to issue the NTA.  Note (!) the panel will only review the case when a decision not to issue an NTA was recommended by the officer.  That would mean if the initial immigration officer recommends an NTA be issued, then, it will be issued.

Leaving the Country Prior to Issuance of the NTA—Verification of Departure

USCIS stated at the stakeholder meeting that it will provide adequate notice for the applicant to leave the country prior to issuing the NTA.  Note here that if an applicant should decide to leave (which should be decided only after a detailed review with an experienced attorney) it will be critical to follow procedures to validate the departure.  If the departure is not validated, USCIS will not know about it, and is likely to issue an NTA despite the person having already left the country.  There could be serious consequences in the future such as an in absentia removal order if the person doesn’t attend a hearing.

Finally, note that the new NTA policy does not replace or change prior existing policies regarding issuance of NTA’s by USCIS.  Rather, it expands the situations in which USCIS will issue an NTA.

 

This article is for general information only. It does not constitute legal advice for any specific situation, nor does it create an attorney/client relationship.

 

New Immigration Rules for Students: Unlawful Presence & Re-Admission into the US

What are the Rules for Re-Admission to the US if a Person Has Accrued Unlawful Presence?

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) created a new ground of inadmissibility based on unlawful presence.  Someone who is unlawfully present in the U.S. for 180 days but less than 365 days, if they leave, is barred from returning for 3 years.  Someone unlawfully present for 365 days or more, if they leave, is barred from returning for 10 years.

The Potential Waiver for Re-Admission

There may be a waiver available in limited situations.  An immigrant visa applicant must have a U.S. citizen or permanent resident parent or spouse to qualify for the waiver. If someone who is subject to the bar returns or attempts to return again illegally, they do not qualify for the waiver.

What Constitutes an “Unlawful Presence”?

The definition of what constitutes “unlawful presence” then is very important.  Extremely detailed analyses of the question have been published elsewhere (see e.g. https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/revision_redesign_AFM.PDF), but generally, unlawful presence automatically begins to accrue from the expiration of the applicant’s authorized period of stay.

Those in F, M, or J status are often not admitted until a fixed date, but rather are admitted for “duration of status,”  “D/S,” meaning that so long as they comply with the terms and conditions of the status, they are lawfully present.

Up to now the rule has been that those admitted D/S did not begin to accrue unlawful presence until an official finding was made by the appropriate authority such as a USCIS officer that the person failed to maintain status, and in that event unlawful presence began to accrue from the time of that finding; it was not counted retroactively to the date the violation of status occurred.  In the case of students, for example, a status violation could include events such as failing to attend the school program for which they were admitted, or dropping below the required number of credits.

New Rules for F, J, M Visas

As of August 9, 2018, that will no longer be trueThe new interpretation states that unlawful presence will automatically begin to accrue starting on the day after the date on which the status was violated.  For those admitted “D/S” in F, J, or M status who are already in the U.S. before August 9, 2018, they will begin to accrue unlawful presence as of that date.  If they already were found previously to have violated their status, and so already began accruing unlawful presence as of the earlier finding, they will continue to accrue unlawful presence as of that earlier date.

Determining When a Status Violation Occurred

In determining whether or when a status violation occurred, the memo instructs USCIS to consider information available to it in the systems to which it has access, information contained in the person’s A file, and information obtained through a response to a Request for Evidence or Notice of Intent to Deny.

Note that dependent spouses and children in F2, J2, or M2 status are dependent on the principal person, and so will also begin to accrue unlawful presence at the same time as the principal.  However, a dependent spouse or child may also begin to accrue unlawful presence due to their own actions that may violate their status directly.

NOTE TO BE CAREFUL ABOUT ADVANCE PAROLE.  The unlawful presence bars do not kick in unless the person leaves the U.S.  Someone who has an adjustment of status application pending is not accruing unlawful presence as of the time the adjustment application was received by USCIS.

However, it is very easily possible that person accrued unlawful presence prior to filing for adjustment.  For example, a student who dropped out of school now will begin accruing unlawful presence as of the next day.  If that student then marries a U.S. citizen and applies for adjustment more than six months after dropping out of school, that student accrued more than six months of unlawful presence from the student status violation to the filing of the adjustment.

Now if that adjustment applicant were to leave the U.S. on advance parole, he would become subject to the bar.  Note, however, that he will have been paroled into the U.S. upon his return, and therefore is not re-entering or attempting to re-enter illegally.  The significance is that he is subject to the bar, but may be able to apply for a waiver.  Clearly, the safest route in that situation would be not to leave, even if otherwise eligible for advance parole.

 

The Invisible Wall: New Barriers to Legal Immigration in 2018

While the media focus on a physical wall to bar foreign nationals from entering the U.S., little attention is paid to the ever higher barriers to legal immigration.  In just the past few months, some set to take effect September 11, 2018, the following key changes have been made to legal immigration:

Either of those informed the employer or applicant how USCIS viewed the petition and what concerns it had.  Commonly, the attorney was able to respond by explaining why a denial would be erroneous and/or submitting additional evidence.  Now petitions may be denied outright with no notice or opportunity to respond.

For all of these reasons, if a petition or application were denied in the past the applicant was not put into removal (deportation) proceedings.  Now, however, anytime an immigration officer denies a petition or application, and the denial will leave the person without other lawful status, the applicant will be put into removal proceedings–notwithstanding that the decision could still be appealed and so isn’t final.

Once in removal proceedings, the applicant cannot leave the country.  Doing so may constitute a removal (deportation) with resulting bars to re-entry.  Instead, the applicant must address the removal proceedings at a minimum by pleading to the charges and requesting voluntary departure, which does not have the bars to re-entry that a removal does, or by seeking any relief for which he may be qualified.

Never blindly plead to the charges without qualified legal counsel due to other possible future consequences.  The immigration courts are backed up for years.  An experienced immigration attorney is essential to address the situation.

H1B visa holders are skilled workers in a specialty occupation.  Often their spouses are also highly-skilled. Forcing the spouse to give up their own career is at a minimum unfair to that person and a waste of skilled human capital, and may also inhibit highly-skilled workers themselves from coming to the U.S.

Thus, the government previously deemed it appropriate that the spouses of H1B visa holders, under certain circumstances, may also obtain authorization to work in the U.S.  Now the government intends to end that benefit, forcing the spouses to abandon their own highly-skilled careers and lives they have built contributing to the U.S.

According to the Bureau of Labor Statistics, the unemployment rate at 3.9% is the lowest in a generation. https://data.bls.gov/timeseries/LNS14000000 An unemployment rate of 5% is considered to be full employment.  It is desirable that there always be some amount of unemployment to provide for changes of jobs and normal movement.

If the unemployment rate falls below the rate considered to be full employment, there is an imminent risk of inflation.  Wages need to rise to attract workers and in turn the cost of the products they produce and services they provide likewise increases, and we’re off into an inflationary economy.  A steady flow of workers is needed– now– to maintain a healthy balanced economy.

In 1945 there were 41.9 workers paying into Social Security for every 1 person receiving benefits.  That number had fallen to 2.9 in 2010, and it is expected to continue to fall. https://www.mercatus.org/publication/how-many-workers-support-one-social-security-retiree The Social Security system is unsustainable unless we have more workers paying into it.  This is another completely apolitical but demonstrable financial reason why balanced sensible immigration policies are needed now.  https://www.nytimes.com/2018/09/02/business/trump-legal-immigration-h1b-visas.html

Each immigration petition and application absolutely should be evaluated on its merit based on reasoned, consistent, justifiable considerations, and abuse should be punished.  But nonsensical Requests for Evidence such as one received by a colleague stating, ‘show how receiving a Grammy Award for Sound Engineer establishes the person is of exceptional ability in sound engineering,’ must be halted in favor of rational adjudications.

Neither should Requests for Evidence simply be replaced with an outright denial and, worse, removal proceedings.  Doing so adds straws to the back of the Administrative Appeals Office and the Immigration Courts that are already breaking. This author had a case reset by the court—at the court’s request—seven times.  Continuing a case for over six years constitutes denial of due process.  Now the government will pile on tens of thousands more cases of the type of applicant who typically simply would have left the country in the past.

We’ve already seen the damaging effect of recent policy changes.  Legacy INS (now USCIS) had determined that interviewing employment-based green card applications was a waste of resources, because by that step in the process the case had already been examined by the Dept. of Labor and USCIS.  In October 2017, however, they piled all those cases into the interview line without providing any additional resources including officers or office space to manage the influx.  In Seattle we’ve seen processing times go from 90 days from filing to interview to 1 ½ years!

These are the already-occurring consequences of recent policy changes, and those listed at the beginning of this article are only going into effect next week.  Those who would route out foreign nationals no matter who or what they contribute claim the system is broken.  The punitive policies, rather than mending or strengthening a lawful system, will take the broken pieces and shatter them, shattering the economy to boot. Policies that allow a reasonable flow of expertise, employees, and close family members provide the foundation for stability and growth for everyone’s benefit.

 

The Invisible Wall: New Barriers to Legal Immigration in 2018

While the media focus on a physical wall to bar foreign nationals from entering the U.S., little attention is paid to the ever higher barriers to legal immigration.  In just the past few months, some set to take effect September 11, 2018, the following key changes have been made to legal immigration:

USCIS will no longer take into consideration the fact that a visa petition was previously approved. Even if an applicant is extending an approved status without change in the circumstances that justified the prior approval, an immigration officer may deny the extension.  This change will result in inconsistent adjudications and denials of extensions for cases that were already approved by one or more officers.
Immigration officers may now deny visa applications without notifying the companies or applicants and without asking for clarification or information to be submitted. Previously, if the immigration officer questioned the approvability of a petition, USCIS would issue a Request for Evidence or a Notice of Intent to Deny.
Either of those informed the employer or applicant how USCIS viewed the petition and what concerns it had.  Commonly, the attorney was able to respond by explaining why a denial would be erroneous and/or submitting additional evidence.  Now petitions may be denied outright with no notice or opportunity to respond.

If an immigration officer denies a petition, nearly always that decision can be requested to be reopened and/or reconsidered, or appealed. Likewise, a new petition may be filed.  Depending on the specifics of the case, an applicant may leave the country and decide whether to re-apply through a U.S. consulate abroad.
For all of these reasons, if a petition or application were denied in the past the applicant was not put into removal (deportation) proceedings.  Now, however, anytime an immigration officer denies a petition or application, and the denial will leave the person without other lawful status, the applicant will be put into removal proceedings–notwithstanding that the decision could still be appealed and so isn’t final.

Once in removal proceedings, the applicant cannot leave the country.  Doing so may constitute a removal (deportation) with resulting bars to re-entry.  Instead, the applicant must address the removal proceedings at a minimum by pleading to the charges and requesting voluntary departure, which does not have the bars to re-entry that a removal does, or by seeking any relief for which he may be qualified.

Never blindly plead to the charges without qualified legal counsel due to other possible future consequences.  The immigration courts are backed up for years.  An experienced immigration attorney is essential to address the situation.

The Administration has announced its intent to eliminate employment authorization for certain spouses of H1B visa holders. This has not actually gone through yet, though the intent has been announced.
H1B visa holders are skilled workers in a specialty occupation.  Often their spouses are also highly-skilled. Forcing the spouse to give up their own career is at a minimum unfair to that person and a waste of skilled human capital, and may also inhibit highly-skilled workers themselves from coming to the U.S.

Thus, the government previously deemed it appropriate that the spouses of H1B visa holders, under certain circumstances, may also obtain authorization to work in the U.S.  Now the government intends to end that benefit, forcing the spouses to abandon their own highly-skilled careers and lives they have built contributing to the U.S.

According to the Bureau of Labor Statistics, the unemployment rate at 3.9% is the lowest in a generation. https://data.bls.gov/timeseries/LNS14000000 An unemployment rate of 5% is considered to be full employment.  It is desirable that there always be some amount of unemployment to provide for changes of jobs and normal movement.

If the unemployment rate falls below the rate considered to be full employment, there is an imminent risk of inflation.  Wages need to rise to attract workers and in turn the cost of the products they produce and services they provide likewise increases, and we’re off into an inflationary economy.  A steady flow of workers is needed– now– to maintain a healthy balanced economy.

In 1945 there were 41.9 workers paying into Social Security for every 1 person receiving benefits.  That number had fallen to 2.9 in 2010, and it is expected to continue to fall. https://www.mercatus.org/publication/how-many-workers-support-one-social-security-retiree The Social Security system is unsustainable unless we have more workers paying into it.  This is another completely apolitical but demonstrable financial reason why balanced sensible immigration policies are needed now.  https://www.nytimes.com/2018/09/02/business/trump-legal-immigration-h1b-visas.html

Each immigration petition and application absolutely should be evaluated on its merit based on reasoned, consistent, justifiable considerations, and abuse should be punished.  But nonsensical Requests for Evidence such as one received by a colleague stating, ‘show how receiving a Grammy Award for Sound Engineer establishes the person is of exceptional ability in sound engineering,’ must be halted in favor of rational adjudications.

Neither should Requests for Evidence simply be replaced with an outright denial and, worse, removal proceedings.  Doing so adds straws to the back of the Administrative Appeals Office and the Immigration Courts that are already breaking. This author had a case reset by the court—at the court’s request—seven times.  Continuing a case for over six years constitutes denial of due process.  Now the government will pile on tens of thousands more cases of the type of applicant who typically simply would have left the country in the past.

We’ve already seen the damaging effect of recent policy changes.  Legacy INS (now USCIS) had determined that interviewing employment-based green card applications was a waste of resources, because by that step in the process the case had already been examined by the Dept. of Labor and USCIS.  In October 2017, however, they piled all those cases into the interview line without providing any additional resources including officers or office space to manage the influx.  In Seattle we’ve seen processing times go from 90 days from filing to interview to 1 ½ years!

These are the already-occurring consequences of recent policy changes, and those listed at the beginning of this article are only going into effect next week.  Those who would route out foreign nationals no matter who or what they contribute claim the system is broken.  The punitive policies, rather than mending or strengthening a lawful system, will take the broken pieces and shatter them, shattering the economy to boot. Policies that allow a reasonable flow of expertise, employees, and close family members provide the foundation for stability and growth for everyone’s benefit.

 

PRK Lawyers Name to the 2017 Washington Super Lawyers and Rising Stars Lists

Peterson Russell Kelly is proud to announce that two of our attorneys have been named to the 2017 Washington Super Lawyers and Rising Stars lists. PRK partner, Patrick Moran, was named a Super Lawyer, and PRK associate, Erika Shinpaugh, was named a Rising Star.

The lawyers who are named to the Super Lawyer list are comprised of some of the top lawyers in our state, based on peer recognition, for their professional achievements and abilities.  The Rising Stars list recognizes the top 2.5% of lawyers, also based on peer recognition, who have been practicing for ten years or less, or who are under the age of 40.

Patrick Moran has been named a Super Lawyer every year since 2004.  His practice focuses on representing closely held businesses and individuals with an emphasis in federal, state, local, and international taxation, general business law, and estate planning.

Erika Shinpaugh’s practice focuses on commercial, residential, and mixed-use real estate, as well as litigation and transactional matters. This is Erika’s first year being recognized.  Congratulations, Patrick and Erika!

 

Changing the Face of Employmment – AtWork’s Annual Fundraising Breakfast on March 30, 2017

2017 AtWork! Fundraising BreakfastPRK is pleased to have a table of its attorneys at this year’s annual fundraising breakfast for AtWork! – Changing the Face of Employment.

AtWork! has been active in our area since 1998, providing work opportunities for people with disabilities.  Their mission is to empower people with disabilities to be productive, integrated, and contributing members of our communities.  Their mission is furthered through training and delivering innovative employment services to those with special needs, and connecting these people with employers seeking skilled and competent employees.

We are proud that one of our partners – Greg Russell – serves as one of the Members at Large for AtWork!, and we encourage employers to consider contacting AtWork! when assessing their employment needs.

More Information & Tickets

 

Changing the Face of Employment – AtWork’s Annual Fundraising Breakfast on March 31, 2016

We are pleased to attend this year’s annual fundraising breakfast for AtWork! – Changing the Face of Employment –Breakfast Banner at the Bellevue Hilton.

Created in 1998, AtWork! believes that people with disabilities are an integral part of our society, our businesses, and our lives.

AtWork!’s mission is to empower people with disabilities to be productive, integrated, and contributing members of their communities.  This mission is furthered through training and delivering innovative employment services to those with special needs, and helping connect these people with employers seeking skilled and competent employees.

We are proud that one of our partners – Greg Russell – serves as one of the Members at Large for AtWork!, and we encourage employers to consider contacting AtWork! when assessing their employment needs.

 

Puget Sound Business Journal presents: Meet Elena Donio, President of Concur Technologies

PSBJ 2

Elena Donio

Business Journal Live with Elena Donio, President of Concur

You are invited to join PRK as our guest on Friday, December 11 as PSBJ Publisher Emory Thomas, Jr. sits down for a one-on-one discussion with Elena Donio, president of Concur and a rare woman sitting at the top of a technology company. Learn about her passions for leadership in technology, philanthropy, mentorship and her experience as a woman leader in a male-dominated industry.

Friday, December 11

7:00 a.m. – 9:00 a.m.

 

The Westin Bellevue

600 Bellevue Way NE

Bellevue, WA 98004

7:00 – 7:20 a.m.| Coffee & networking
7:30 a.m.| Plated breakfast served; program begins

Please RSVP by December 3

Register

Union Bank seattle u OSprk

 

PRK clients have been named as some of Washington’s “Best Workplaces” in the Puget Sound Business Journal’s 2014-2015 Book of Lists.

book

The Mosaic Company, 110 Consulting Inc., Sunrise Identity and MOD Pizza, were all in the top 25 ranking based on business size. The method for ranking is based on extensive surveying of employees—essentially, if employees like their jobs, their bosses, their benefits, and the goals of their companies, businesses scored higher. PSBJ researchers surveyed thousands of employees, asking them to rate their companies based on categories including benefits, corporate culture, responsibility and decision making, and leadership of executives.

The Puget Sound Business Journal also pulled information from private-sector research firms for comprehensive information for readers. Businesses were rated within their prospective categories of company size, placing them into “small”, “mid-sized”, “large”, and “non-profit” distinctions. PRK Clients were ranked within mid-sized, and large categories.

PSBJ Research Director Stephanie Forshee noted in the issue, “It’s been thrilling to witness firsthand the tremendous growth that so many local companies are experiencing.”

Congratulations NW companies, PRK is proud to represent you!

 

South China Morning Post Highlights PRK’s Experience in Assisting Foreign Investors

south-china-morning-logo

PRK’s reputation for providing solid business legal advice and leadership was highlighted in an article in the US Country Reports section of the South China Morning Post this month, in which firm partner Rick Carlson was interviewed about the expanding Puget Sound business climate.

The article, PRK leverages expertise, supports businesses entering Puget Sound, notes that with more than 100 mergers and acquisitions transactions in recent years, PRK is highly sought for its skill and knowledge in handling business deals. PRK leverages the breadth of experience of its attorneys in helping clients seeking to invest in the Puget Sound area, which is continuing to attract high-quality foreign investment.

PRK’s clientele has grown to include a number of companies included in Seattle Business magazine’s list of “100 Best Companies to Work For” and the Puget Sound Business Journal’s “Fastest-Growing Companies.”

To read the full article, please click HERE to read the full article.