July 2010

News and Commentary written and edited by
Boyd F. Campbell, Attorney and Civil Law Notary

Published exclusively via the World Wide Web since 1994
© 2010 Boyd F. Campbell, All Rights Reserved

    Make Your Voice Heard:  Your call today to support safe, sane, and secure immigration policy could make the difference. You may call the Senate switchboard to be directed to your U.S. senator -- (202) 224-3121 -- or to your representative in the House -- 202-225-3121.

LEAD STORY

Visa, consular fees to increase July 13

     A long list of visa and consular processing and service fees will increase dramatically on July 13.  Nonimmigrant visa fees had already increased from $131 to as much as $390 on June 4.  For example, the consular fee for employment-based immigrant visas will increase from $355 to $720.  The Diversity Visa Lottery surcharge will increase from $375 to $440.  To view the complete list, CLICK HERE

Boyd Campbell speaks to American Immigration Lawyers Association

     Boyd Campbell addressed the American Immigration Lawyers Association (AILA) during a panel discussion of the EB-5 (immigrant investor) Program on July 3 in National Harbor, Maryland, across the Potomac River from Washington, D.C.  The discussion included such matters as how to evaluate regional centers and their investment projects, and how immigration lawyers should advise prospective client investors.  AILA's annual conference was held at the Gaylord National Resort & Convention Center from June 30 to July 3.

USCIS proposes to raise almost all user fees

     WASHINGTON -- U.S. Citizenship and Immigration Services (USCIS) is seeking public comment on a proposed federal rule that would adjust fees for immigration benefit applications and petitions.  The proposal, posted to the Federal Register today for public viewing, would increase overall fees by a weighted average of about 10 percent but would not increase the fee for the naturalization application. 
     USCIS is a fee-based organization with about 90 percent of its budget coming from fees paid by applicants and petitioners to obtain immigration benefits.  The law requires USCIS to conduct fee reviews every two years to determine whether it is recovering its costs to administer the nation’s immigration laws, process applications, and provide the infrastructure needed to support those activities.  This proposed rule results from a comprehensive fee review begun in 2009.        
     "We are mindful of the effect of a fee increase on the communities we serve and have worked hard to minimize the size of the proposed increase through budget cuts and other measures," said USCIS Director Alejandro Mayorkas.  "Requesting and obtaining U.S. citizenship deserves special consideration given the unique nature of this benefit to the individual applicant, the significant public benefit to the Nation, and the nation’s proud tradition of welcoming new citizens. Recognizing the unique importance of naturalization, we propose that the naturalization application fee not be increased."
     Thankfully, USCIS left the fee for naturalization (N-400) at $595, but that fee is still far too high and is not in accord with the work a USCIS officer or contractor has to do.  It should be public policy to encourage permanent resident aliens to apply for U.S. citizenship (naturalization); instead, the USCIS fee structure discourages it.
     There are three new fees:  $615 for a doctor to apply with USCIS for civil surgeon designation, a $165 fee for handling cases once the Department of State has granted an immigrant visa, and $6,230 to file an application for a regional center under the Immigrant Investor Pilot Program.
     The fee for filing a petition on behalf of an alien fiance(e) actually fell $115 (which rarely happens), the fee to file an application for adjustment of status (the green card) increased by $50, and the fee to remove conditions on an alien investor who creates jobs for U.S. workers increased by $900.  USCIS wants to make it tougher to decide whether to appeal a case by increasing the fee for a notice of appeal by $210 to $755.  And the agency also proposed a fee increase of $50 for U.S. couples wishing to adopt a foreign-born child.  The fee for I-600 orphan petitions would increase to $720.
     Congress cut USCIS loose in 1998 and forced the agency to rely on user fees.  Congress has been stingy with appropriations USCIS during the years since 1998.  Apparently Congress does not like immigration or the immigration service.

USCIS proposes new fee for regional center applications

     U.S. Citizenship and Immigration services has proposed a new fee to file an application for a regional center under the Immigrant Investor Pilot Program.  The new fee is $6,230 and will go into effect after the 45-day comment period following publication of the proposed rule and the final rule is published.
     According to USCIS stated "frequently asked questions" posted on its website that the new fee and standardized Form I-924 would:

     1.  Clarify requirements for regional center documents
     2.  Improve the quality of applications
     3.  Better document eligibility for the Pilot Program
     4.  Alleviate content inconsistencies among applicants' submissions
     5.  Support a more efficient process for adjudication of applications

     Is it just me?  Does anyone understand the above other than perhaps the government bureaucrat who wrote it?

Paper arrival-departure forms eliminated for travelers from Visa Waiver Program countries

     Arrival-Departure forms (Form I-94W) have been eliminated for travelers from Visa Waiver Program (VWP) countries, which may streamlining secure travel for millions of visitors to the United States every year.  The Department of Homeland Security (DHS) claims this will consolidate the collection of traveler information and enhance security by automatically providing DHS with important passenger information prior to departure.
     Following a successful seven-month pilot program conducted with the support of the Government of New Zealand on Air New Zealand flights from Auckland to Los Angeles International Airport, the use of paper I-94W forms will be eliminated for VWP travelers with an approved Electronic System for Travel Authorization (ESTA) arriving in the United States at all airports by the end of this summer. Customs and Border Protection will activate automated processing for U.S. airports on a rolling basis over the next several months.

Supreme Court case requires lawyers to advise clients about deportation

     The most remarkable event to occur in April was the Supreme Court's decision in Padilla v. Kentucky.  Padilla -- for the first time in U.S. history -- establishes that criminal defense lawyers have an obligation to advise whether pleading guilty to an offense will almost certainly result in deportation (aggravated felony), and if it is not clear-cut they still have to advise there could be adverse consequences. It would seem that this decision requires criminal defense lawyers to know the crimes where “the deportation is truly clear…” and advise their clients that deportation will certainly result. Padilla, who was born in Honduras in 1950 and has lived in the United States for nearly 40 years.  He served in the United States Army with a tour in Vietnam.  He is a legal permanent resident of this country, but he is not a U.S. citizen.  And therein lies the problem with Jose Padilla.
     In 2001, Padilla -- no relation to the other Jose Padilla imprisoned during the Bush Administration in the so-called "dirty bomb" case -- was indicted for trafficking in marijuana -- an offense designated as an "aggravated felony" under the Immigration and Naturalization Act (INA). He decided to accept a plea bargain.  But prior to entering a plea of guilty to that offense, Padilla asked his lawyer whether his guilty plea would affect his immigration status.  His lawyer incorrectly advised him that he "did not have to wory about immigration status since he had been in the country so long."
     Unfortunately, because Padilla's offense was considered under the Illegal Immigration Reform and Immigrant Responsibility Act and the Antiterrorism and Effective Death Penalty Act as an aggravated felony, Padilla's deportation was mandatory. Upon discovery of this fact, Padilla sought post-conviction relief in Kentucky's state courts arguing that his attorney had improperly advised him. The Supreme Court of Kentucky denied post-conviction relief holding that Padilla was not entitled to accurate advice from his attorney on immigration consequences because he had no Sixth Amendment right to counsel in that proceeding. Padilla sought certiorari to review the following questions:

     1. Whether the mandatory deportation consequences that stem from a plea to trafficking in marijuana, an "aggravated felony" under the Immigration and Nationality Act, is a "collateral consequence" of a criminal conviction which relieves counsel from any affirmative duty to investigate and advise; and

     2. Assuming immigration consequences are "collateral", whether counsel's gross misadvice as to the collateral consequence of deportation can constitute a ground for setting aside a guilty plea which was induced by that faulty advice.

Remember to register with Selective Service!

     Just because you're from Mexico or Costa Rica don't think the United States government will forgive you for failing to register with Selective Service.  Some of my clients have found out the hard way.  Remember, if you are a male in the United States, and you at least 18 years old and younger than 26, you must register with Selective Service.  You can do it at any post office.  It's easy.  Selective Service is not a draft, but is a method to identify young men capable of serving the United States in a time of national emergency.  If you are a male in the United States and are 26 years old or older, you do not have to register with Selective Service.  Foreign national males who are required to register with Selective Service and fail to do so may be denied U.S. citizenship and other federal government financial aid.

ICE goes on the warpath in southeastern U.S.

     Immigration and Customs Enforcement (ICE) issued 180 audit notices to businesses in five states this month, an extraordinary move in the Deep South.  ICE served the "Notice(s) of Inspection" to the businesses in Alabama, Arkansas, Louisiana, Mississippi, and Tennessee.  According a press release from ICE, this initiative is part of ICE's increased focus on holding employers accountable for their hiring practices and to insure a legal workforce.

325 EB-5 immigrant visas issued in 2009

    Incredibly, the Department of State has issued only 325 fifth preference immigrant visas for alien investors.  And this at a time when the U.S. economy is hemmorhaging jobs in the millions upon millions.  This figure does not represent the immediate relatives of these 325, so the total could go over 1,000 for the first time in the history of the EB-5 Program.  Still, it's a shame.

Homeland Security rule extends REAL ID compliance for states

    The REAL ID Act prohibits federal agencies from accepting driver’s licenses or personal identification cards for any official purpose unless the issuing state is meeting the requirements set forth in the Act.  ‘‘Official purpose’’ is defined in both the Act and in the regulations to include boarding federally-regulated commercial aircraft.  On December 28, 2009, DHA issued a final rule staying implementation of and compliance with the REAL ID Act.

    If the vast majority of states are unable to meet the January 1, 2010 material compliance deadline, in the absence of an extension, federal agencies, including Transportation Secuity Agency (TSA) screeners, would not be able to accept state-issued driver’s licenses or identification cards from residents of these states for an official purpose, including for use in boarding commercial aircraft. Travelers would have to use alternative, non-state-issued documents to demonstrate identity to pass through security at airports. All U.S. residents traveling by commercial aircraft would experience very significant travel delays; in fact, commercial aviation would be severely disrupted.

    State compliance with the REAL ID act was stayed until further notice.  With almost all state governments facing huge budget cuts as legislatures go into session, this rule was a wise move, totally out of character for the federal government.  Makes you wonder who is in charge.

USCIS describes types of site visits

     At a November 19, 2009, program put on by the Department of Homeland Security, titled "2009 Government and Employers: Working Together to Ensure a Legal Workforce," Ronald Atkinson, Chief of Staff of USCIS' Fraud Detection and National Security (FDNS) office, explained the three types of site visits that are currently being conducted:

    1. Risk Assessment Program fraud study. Applicable to any type of benefit program, including family and employment-based, this study is part of a joint program between USCIS and ICE. Applications and petitions are chosen at random, usually on a post-approval basis, for visits to help in designing profiles of potential fraud.

     2. Targeted site visits. These visits take place where fraud is suspected, and consist of a visit to ask questions. Advance notice, including notice to counsel, is supposed to be provided.

     3. Administrative site visits. These relate to religious worker and H-1B petitions. They generally are conducted by contractors who know nothing of immigration law. Religious worker visits are performed under the regulations for that category. For H-1B site visits, the contractors have been equipped with a set of specific questions, and all employers/beneficiaries should be asked pretty much the same questions, primarily reaching the issues of whether there's really an employer there, whether the employer knows it filed the petition, and whether the beneficiary is doing the work and receiving the wage indicated on the petition. H-1B visits are done on a post-adjudication basis, and are randomly selected. Each employer should receive only one such visit, but may receive different visits for different sites. -- AILA Infonet, www.aila.org

DHS announces Global Entry program

     The Department of Homeland Security has announced the publication of a new proposed rule that would establish the Global Entry program, designed to streamline travel for trusted travelers through biometric identification, as a permanent program.  Global Entry - currently available as a pilot program at 20 U.S. international airports - allows pre-approved members a streamlined, automated alternative to regular passport processing lines. The program currently reduces average wait times by more than 70 percent, with more than 75 percent of travelers using Global Entry processed in under five minutes.

Employment-based visas not available until October 1

    The U.S. Department of State advises there are no employment-based immigrant visas available until October 1.  That date begins a new federal fiscal year, so some "unavailable" categories of employment-based immigrant visas may become available.  Still, there is tremendous pressure on the employment-based immigrant visa categories, and not much chance -- in our opinion -- that Congress will deal with the problem this year or next.

Homeland Security to search private electronic media at the borders

    The Department of Homeland Security (DHS) has announced new directives to address circumstances under which U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) can conduct border searches of electronic media-consistent with the Department’s Constitutional authority to search other sensitive non-electronic materials, such as briefcases, backpacks and notebooks, at U.S. borders.
    The directives will enhance transparency, accountability and oversight of electronic media searches at U.S. ports of entry and includes new administrative procedures designed to reflect broad considerations of civil liberties and privacy protections-measures designed to ensure that officers and agents understand their responsibilities to protect individual private information and that individuals understand their rights.
    Searches of electronic media, permitted by law and carried out at borders and ports of entry, are vital to detecting information that poses serious harm to the United States, including terrorist plans, or constitutes criminal activity-such as possession of child pornography and trademark or copyright infringement.
    The DHS Privacy Office also released a Privacy Impact Assessment, available at www.dhs.gov/privacy, in connection with the new directives to enhance public understanding of the authorities, policies, procedures and controls employed by DHS during border searches of electronic data to protect individuals’ privacy. The DHS Office for Civil Rights and Civil Liberties (CRCL) will also conduct a civil liberties impact assessment within 120 days.

    HERE IS OUR WARNING AGAIN:  Your friends, relatives, and co-workers are good sources of bad information about immigration and nationality law and federal administrative procedures.  If you really want to know what to do about an immigration or visa situation, please consult a qualified immigration lawyer.  If you don't know one, please call the American Immigration Lawyers Association (AILA) Lawyer Referral Service in Washington, D.C., toll-free, at 1-800-954-0254.  AILA's Lawyer Referral Service cannot assure you that you will get the best immigration lawyer, but you should be able to get competent legal help and guidance.  Remember:  CIS considers every petition or application filed as a legal case for adjudication under the federal Administrative Procedures Act and federal regulations.  When people help themselves or others by filling out forms and filing them with CIS, they are filing a legal case before an administrative agency of the federal government for adjudication.  If the case runs into trouble or is denied, the alien and his family members rarely know what to do next or how to get the legal matter resolved.  Some visa applicants have monthly telephone bills that are larger than any fee they will ever pay to a qualified immigration lawyer.  For information about how to hire and work with an immigration lawyer, click on the following link: Why Hire an Immigration Lawyer?    Also, don't forget to check out our web links to other helpful (and FREE) information: CLICK HERE

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