The Ombudsman recommends USCIS provide an option for users to talk to a center representative immediately after reaching the main menu of the toll free number of USCIS. If this recommendation is adopted, it would help a lot.
Any one who has ever used the USCIS toll-free hotline would have frustrating experience to tell you. I still remember the first time I called that hotline, I had waited for over 45 minutes before connecting to an agent. In the last year or two, the waiting time had been significantly cut. Last time when I called I had to wait for about 3 minutes.
Despite this improvement, one thing I do not understand is why we cannot have an option to choose to talk to a representative in the main menu. A lot of times I have to randomly choose an option and either press the wrong button or ignore the instructions before I get connected to a USCIS representative.
Although I hope this option to immediately connect to an officer will come true, I hope users of the toll free hotline will not abuse it. If users want to find out their case status or have simple questions answered, I hope they will utilize the website of USCIS and find out the answers to their questions there. This will help maintain the efficiency of the hotline and allow those who really need the assistance of a representative to get help with the shortest amount of time possible.
Disclaimer: Information included in this page does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please call my office and schedule an appointment.
7/19/2010
7/15/2010
Women as a Particular Social Group for Asylum Purposes
A while ago in one episode of "Law and Order: Special Victim Unit", ADA Alex Cabot and Detective Olivia Benson had a discussion on how gender is not a basis for political asylum. Well, this may no longer be the case in states under the jurisdiction of the 9th Circuit, at least for now. On July 12, 2010, the 9th Circuit of ruled in a case named Perdomo v. Holder that being a woman could fall under the definition of "membership in a particular social group" and be eligible to claim political asylum.
Generally, under current law, an asylum applicant has the responsibility to show that the applicant either had suffered past persecution or will face future persecution if the applicant returns to his/her home country. Moreover, the persecution must be based on race, nationality, religion, political opinion, or membership in a social group.
In Perdomo, the petitioner is a female from Guatemala. Ms. Perdomo applied for political asylum and her primary argument was that because of the high murder rate for women in Guatemala, she had established well-founded fear of future persecution. Both the Immigration Judge ("IJ") and the Board of Immigration Appeals ("BIA") denied her asylum application because they did not agree that being a woman from Guatemala was a sufficient to prove fear of future persecution based on membership of a social group. Specifically, the BIA agreed with the IJ that gender alone was "too broad to qualify as a protected social group".
The 9th Circuit used a two-prong approach it had developed in a 2000 case to decide whether being a woman alone can fall under membership in a particular social group for asylum purpose. The first prong is to decide whether members of the "group" are united by "a voluntary association" or "innate characteristics." The 9th Circuit further explained that "innate characteristics" is a fundamental and common traits among the members that they either cannot or should not be asked to changed. The second prong is that the group has to be persecuted because of the innate characteristics. Based on this two-prong test and some precedents from the 9th circuit, the court reached the conclusion that females in a particular country could form a particular social group. Furthermore, the court ruled that the size and breadth of a group alone are not determinative.
This is certainly an interesting case and could possible open the door for many asylum applicants who cannot establish fear of persecution based on the other 4 grounds. We will see the implication of the ruling in the future.
Disclaimer: Information included in this page does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please schedule an appointment with my office.
Generally, under current law, an asylum applicant has the responsibility to show that the applicant either had suffered past persecution or will face future persecution if the applicant returns to his/her home country. Moreover, the persecution must be based on race, nationality, religion, political opinion, or membership in a social group.
In Perdomo, the petitioner is a female from Guatemala. Ms. Perdomo applied for political asylum and her primary argument was that because of the high murder rate for women in Guatemala, she had established well-founded fear of future persecution. Both the Immigration Judge ("IJ") and the Board of Immigration Appeals ("BIA") denied her asylum application because they did not agree that being a woman from Guatemala was a sufficient to prove fear of future persecution based on membership of a social group. Specifically, the BIA agreed with the IJ that gender alone was "too broad to qualify as a protected social group".
The 9th Circuit used a two-prong approach it had developed in a 2000 case to decide whether being a woman alone can fall under membership in a particular social group for asylum purpose. The first prong is to decide whether members of the "group" are united by "a voluntary association" or "innate characteristics." The 9th Circuit further explained that "innate characteristics" is a fundamental and common traits among the members that they either cannot or should not be asked to changed. The second prong is that the group has to be persecuted because of the innate characteristics. Based on this two-prong test and some precedents from the 9th circuit, the court reached the conclusion that females in a particular country could form a particular social group. Furthermore, the court ruled that the size and breadth of a group alone are not determinative.
This is certainly an interesting case and could possible open the door for many asylum applicants who cannot establish fear of persecution based on the other 4 grounds. We will see the implication of the ruling in the future.
Disclaimer: Information included in this page does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please schedule an appointment with my office.
7/13/2010
USCIS Ombudsman Annual Report (1)
On June 30, USCIS Ombudsman January Contreras released the annual ombudsman report. The report has some interesting findings and suggestions and I will discuss some of them in this and next few entries.
One interesting observation the Ombudsman report points out is that the demand for family-based immigrant visas is "very low" in the previous 15 months (p.32). In other words, immigrant visas available to petitioners who have a current priority date exceeds the number of petitioners who actually go to the consulate to apply for an immigrant visa. Why do not applicants, after waiting for so long to have their priority date to become current, go to apply for the actual visa when it becomes available?
Although the actual reasons are not clear, the ombudsman report makes a few guesses, such as change in health, employment, and family situations or financial and economic concerns (p.32). In addition, many petitioners choose not to leave the United States and return to their home country to go through consulate process because of their illegal or problematic immigrant status (p.33). Because many of the low demand, many visas number become unused.
This situation highlights the needs of a comprehensive immigration reform as soon as possible. It is obvious that the wait for these applicants, who have parents, siblings, and children that are citizens and legal permanent residents of the U.S., is simply too long. For example, according to the August Visa Bulletin released yesterday by the Department of State, unmarried children over 21 years old and born in Mexico to a U.S. citizen/legal permanent resident have to wait for about 18 years before they are eligible to apply for a green card. If they get married, they will have to wait in a different category or may even lose their eligibility to migrate to the U.S. (currently there is no immigrant visa category for married children of lawful permanent residents)!
Thus, we can see there is a real need to eliminate this backlog and allow family members of naturalized U.S. citizens and permanent residents to be reunited with them in a more effective manner. Of course some people will argue that those citizens do not need to choose to come to the United States at the first place. But given how many science and engineering graduates in our country are foreign-born and how many of these naturalized citizens gain their residency in the U.S. through jobs that need their advanced skills and knowledge, we simply cannot afford to tell them to all go home or stop coming, then expect our country to remain the same in innovation, technology research, and long-term development.
Meanwhile, it is wise for petitioners to remain alert to the monthly visa bulletin so they can apply for an immigrant visa at their local consulate as soon as a visa number is available to them. If there are concerns regarding prior violation of immigration status or change of family situation, it is a good idea to talk to an attorney instead of simply forgoing the chance to apply for a visa. Many attorneys are willing to give free initial consultation and will keep the content of their consultation confidential, so it would not hurt to talk to them.
Disclaimer: Information included in this post does not constitute as legal advice and receipt of this page does not constitute attorney-client relationship. For specific inquiries, please contact my office for an appointment.
One interesting observation the Ombudsman report points out is that the demand for family-based immigrant visas is "very low" in the previous 15 months (p.32). In other words, immigrant visas available to petitioners who have a current priority date exceeds the number of petitioners who actually go to the consulate to apply for an immigrant visa. Why do not applicants, after waiting for so long to have their priority date to become current, go to apply for the actual visa when it becomes available?
Although the actual reasons are not clear, the ombudsman report makes a few guesses, such as change in health, employment, and family situations or financial and economic concerns (p.32). In addition, many petitioners choose not to leave the United States and return to their home country to go through consulate process because of their illegal or problematic immigrant status (p.33). Because many of the low demand, many visas number become unused.
This situation highlights the needs of a comprehensive immigration reform as soon as possible. It is obvious that the wait for these applicants, who have parents, siblings, and children that are citizens and legal permanent residents of the U.S., is simply too long. For example, according to the August Visa Bulletin released yesterday by the Department of State, unmarried children over 21 years old and born in Mexico to a U.S. citizen/legal permanent resident have to wait for about 18 years before they are eligible to apply for a green card. If they get married, they will have to wait in a different category or may even lose their eligibility to migrate to the U.S. (currently there is no immigrant visa category for married children of lawful permanent residents)!
Thus, we can see there is a real need to eliminate this backlog and allow family members of naturalized U.S. citizens and permanent residents to be reunited with them in a more effective manner. Of course some people will argue that those citizens do not need to choose to come to the United States at the first place. But given how many science and engineering graduates in our country are foreign-born and how many of these naturalized citizens gain their residency in the U.S. through jobs that need their advanced skills and knowledge, we simply cannot afford to tell them to all go home or stop coming, then expect our country to remain the same in innovation, technology research, and long-term development.
Meanwhile, it is wise for petitioners to remain alert to the monthly visa bulletin so they can apply for an immigrant visa at their local consulate as soon as a visa number is available to them. If there are concerns regarding prior violation of immigration status or change of family situation, it is a good idea to talk to an attorney instead of simply forgoing the chance to apply for a visa. Many attorneys are willing to give free initial consultation and will keep the content of their consultation confidential, so it would not hurt to talk to them.
Disclaimer: Information included in this post does not constitute as legal advice and receipt of this page does not constitute attorney-client relationship. For specific inquiries, please contact my office for an appointment.
7/08/2010
H-1B
Every summer, a lot of college graduates enter into the job market. Given the state of the economy, many of the graduates are having a hard time to find a job. This is particularly true for international graduates.
In most situations, prior to their graduation, international students usually apply for work authorization under the optional practical training (OPT) program and then seek employment with their OPT. However, an OPT authorization is only valid for 12 months (and an additional 17 months for students who have graduated from science, technology, and math majors). As a result, many employers are not willing to consider international students because they are not willing to hire someone who may have to leave the job in 12 months or simply do not want to pay the immigration fees to sponsor an international student.
To make things worse, a student under OPT cannot accrue more than 90 days of unemployment. Therefore, unless an international student can find some kind of work within 3 months of the start date of his/her OPT, the student may risk falling out of status. Thus, many international students would have to take low-skill and/or low-salary jobs during their OPT while they seek long-term employment.
For those who are lucky enough to find an employer who is willing to hire and sponsor their work visa petition (usually H-1B visa for college graduates), there is still no guarantee that they will be able to stay in the U.S. and continue to work after their OPT authorization expires. Prior to 2009, H-1B visa applicants usually had to file their petition on the very first day USCIS start accepting petition (usually April 1) because Congress has set a quota for the number of H-1B visas that can be issued in every fiscal year. If an applicant failed to do so, his/her application might not even be considered if USCIS had received sufficient petitions to meet the annual quota. Since 2009, fewer petitions have been filed because 1) fewer employment opportunities are available; 2) fewer employers have the resources to sponsor international graduates; and 3) companies that have received TARP money from the government may not sponsor H-1B petitions.
Although there are fewer petitions, that does not mean approval is automatic. In order to improve the chance of approval, an H-1B applicant should do the following:
A) an applicant should ensure the proposed employment requires a professional to fill it, such as someone with a college degree. If in doubt, it would be wise to check case law and BIA precedents to see whether there are any cases that can support the proposed employment to be qualified for H-1B.
B) An applicant should show a strong connection between the applicant's college education and the proposed job duties. If an applicant is qualified to perform the job duties without his/her college education, then USCIS will likely reject the application. On the other hand, if the applicant's professional qualifications have nothing to do with the applicant's job duties, it is also difficult to get an H-1B visa approved. For example, if a student majored in chemical engineering but his proposed job duties are linguistic in nature, it may be difficult to get an approval by USCIS.
Disclaimer: Information included in this post does not constitute as legal advice and receipt of this page does not constitute attorney-client relationship. For specific inquires, please contact my office for an appointment.
In most situations, prior to their graduation, international students usually apply for work authorization under the optional practical training (OPT) program and then seek employment with their OPT. However, an OPT authorization is only valid for 12 months (and an additional 17 months for students who have graduated from science, technology, and math majors). As a result, many employers are not willing to consider international students because they are not willing to hire someone who may have to leave the job in 12 months or simply do not want to pay the immigration fees to sponsor an international student.
To make things worse, a student under OPT cannot accrue more than 90 days of unemployment. Therefore, unless an international student can find some kind of work within 3 months of the start date of his/her OPT, the student may risk falling out of status. Thus, many international students would have to take low-skill and/or low-salary jobs during their OPT while they seek long-term employment.
For those who are lucky enough to find an employer who is willing to hire and sponsor their work visa petition (usually H-1B visa for college graduates), there is still no guarantee that they will be able to stay in the U.S. and continue to work after their OPT authorization expires. Prior to 2009, H-1B visa applicants usually had to file their petition on the very first day USCIS start accepting petition (usually April 1) because Congress has set a quota for the number of H-1B visas that can be issued in every fiscal year. If an applicant failed to do so, his/her application might not even be considered if USCIS had received sufficient petitions to meet the annual quota. Since 2009, fewer petitions have been filed because 1) fewer employment opportunities are available; 2) fewer employers have the resources to sponsor international graduates; and 3) companies that have received TARP money from the government may not sponsor H-1B petitions.
Although there are fewer petitions, that does not mean approval is automatic. In order to improve the chance of approval, an H-1B applicant should do the following:
A) an applicant should ensure the proposed employment requires a professional to fill it, such as someone with a college degree. If in doubt, it would be wise to check case law and BIA precedents to see whether there are any cases that can support the proposed employment to be qualified for H-1B.
B) An applicant should show a strong connection between the applicant's college education and the proposed job duties. If an applicant is qualified to perform the job duties without his/her college education, then USCIS will likely reject the application. On the other hand, if the applicant's professional qualifications have nothing to do with the applicant's job duties, it is also difficult to get an H-1B visa approved. For example, if a student majored in chemical engineering but his proposed job duties are linguistic in nature, it may be difficult to get an approval by USCIS.
Disclaimer: Information included in this post does not constitute as legal advice and receipt of this page does not constitute attorney-client relationship. For specific inquires, please contact my office for an appointment.
Subscribe to:
Posts (Atom)