Atty. Daniel Hanlon

New law: Visa petitions survive the death of the petitioner

Tuesday, 03 November 2009 22:03 Atty. Daniel Hanlon

(1 vote, average: 5.00 out of 5)

ON October 28, 2009, President Obama signed into law amendments to the Immigration & Nationality Act (INA) reversing the longstanding rule that visa petitions filed for relatives are automatically revoked upon the death of the Petitioner. The new law will ameliorate the harsh, unfair consequences resulting to thousands of beneficiaries of family and employment-based visa petitions who have been waiting for years for their priority dates to become current, only to have their hopes dashed by the untimely death of the Petitioner before they could obtain their green cards. The signing of this new law could mark an end to nearly 15 years of anti-immigrant lawmaking and the beginning of an era of "common sense" fairness in new immigration legislation.

For decades, the rule was simple: The Petition dies with the Petitioner. The only way to avoid application of that law was through approval of a Request for Humanitarian Reinstatement with the office of the USCIS that originally approved the petition. Since the decision to grant such a request was solely within the discretion of the USCIS, these applications were assigned a very low priority within the USCIS offices, causing bereft Beneficiaries of petitions filed by recently deceased US Citizens and Green card holders to suffer inordinate delays and additional anxiety while their fate lay in the hands of a USCIS officer.

Nursing shortage should be top priority in health care and immigration reform

Sunday, 01 November 2009 22:28 Atty. Daniel Hanlon

AS policymakers, special interest groups, health care professionals and others discuss the need for health care reform in the US and debate how this reform should take place, one of the most important issues to health care is being left out of the debate: the national nursing shortage. So far, the debate over health care has hinged around whether there should be a "public option," creating room for divisive ideological debate at the expense of any real progress toward improvements to the current broken system. The nursing shortage continues to exacerbate the health care crisis, such that no true healthcare reform can occur without immigration law reform.

The health care industry has and continues to face a crisis in filling current open positions with trained, skilled nurses. As the baby boomers enter their golden years, an increasing strain is put on the health care system to provide care for this large, aging population. Further compounding the problem is the fact that the current nursing population is aging as well.

I received a notice to appear, now what?

Monday, 26 October 2009 20:05 Atty. Daniel Hanlon

THE past two years have seen an enormous increase in the rate of denial of applications for adjustment of status. With the denial of these applications, particularly employment-based adjustment of status, the USCIS is almost immediately issuing to the denied applicant a Notice to Appear (NTA) in removal proceedings. The USCIS is brazenly issuing denials on tenuous, and in some cases, patently incorrect, legal bases, leaving applicants and attorneys confused as to what to do next. An applicant for adjustment of status who has been placed in removal proceedings, or "Respondent," however, may have several legal options and must assert his rights in court in order to exercise them.

First of all, Respondents must understand that they should not panic merely because they have received an NTA. Lesson number one: Do not panic. Having adjustment of status denied or overstaying one’s visa is not a crime. Removal proceedings are civil proceedings, where people can be charged with immigration violations. The worst possible penalty for these violations is being sent home, assuming the Respondent is not eligible for relief from removal and all appeals have been exhausted.

What does ‘voluntary departure’ really mean?

Sunday, 18 October 2009 20:23 Atty. Daniel Hanlon

LATE last year, the US Department of Justice, Executive Office for Immigration Review (EOIR) issued a new rule changing the consequences of applying for and being granted voluntary departure (VR) in immigration court, when later filing a Motion to Reopen a case or a Petition for Review to a US Circuit Court. Effective January 20, 2009, the new rule stipulates that any grant of VR terminates upon certain filings after a hearing before an Immigration Judge and that a grant of VR is abandoned if proof of the payment of a VR bond is not provided to the Board of Immigration Appeals (BIA) within 30 days. Although the rule was purportedly issued to protect people who choose to appeal an order of removal while accepting an alternative grant of VR, critics believe that it may unfairly limit a person’s rights in immigration court.

DOL increasing audit frequency in PERM applications

Monday, 12 October 2009 19:40 Atty. Daniel Hanlon

PERHAPS due to a perceived lack of legitimate need for certain employees in the economic downturn, or lack of case load in new filings for the same reason, the US Department of Labor has recently increased the number of PERM labor certification cases selected for audit. Since March 2005, the US Department of Labor (DOL) has been processing Permanent Labor Certification applications under the Program Electronic Review Management system, or PERM.

PERM was designed to allow employers to continue to sponsor foreign workers to fill open positions in a streamlined manner, while still requiring employers to show that they could not find available "qualified, willing and able" US workers before filing an Immigrant Petition with the USCIS. While PERM has proved to be a much speedier and more manageable process, Employers must adhere to the strict rules and conduct recruitment of potential applicants in a fair and unbiased manner, without an immigration attorney’s undue influence or trying to take any "short-cuts" in the process.

USCIS launches H-1B auditCan

Sunday, 04 October 2009 23:36 Atty. Daniel Hanlon

AS of September 2009, the USCIS "Office of Fraud Detection and National Security" (FDNS) has been making unannounced visits to worksites of H-1B employers. Although the FDNS was created in 2004 to ferret out fraud and protect the country by denying immigration benefits to those who pose a threat to our National Security, the timing of and facts surrounding the H-1B "audit" suggest that a motive other than protecting "national security" may be at work. The audit does not appear to be aimed at any particular group and the scope of the program (currently 20, 000 cases have been slated for review) make the audit look more like a witch hunt than an effort to bolster National Security.

Adjustment of status for ‘T’ and ‘U’ visa holders

Tuesday, 29 September 2009 23:09 Atty. Daniel Hanlon

(1 vote, average: 5.00 out of 5)

THE USCIS has finally issued a rule allowing holders of "T" and "U" visa status to apply for "adjustment of status" to green card. Based on the Victims of Trafficking and Violence Protection Act Congress passed in 2000, the new rule will work to further protect the humanitarian interests of victims of trafficking and serious crimes, as well as provide assistance to law enforcement in investigating crimes and bring the perpetrators to justice. The new rule will go into effect on January 7, 2008.

The T visa provides immigration status and protection to people who have been victims of severe forms of human trafficking. The U visa is available to crime victims who have suffered physical or mental abuse and are willing to help police and government officials in the investigation of crimes, including domestic violence, sexual assault, and alien trafficking.

USCIS opens ‘office of public engagement’

Wednesday, 23 September 2009 01:19 Atty. Daniel Hanlon

ON September 14, 2009, USCIS Director Alejandro Mayorkas announced the opening of the USCIS’ new "Office of Public Engagement" (OPE). In keeping with the Obama Administration’s promise to provide open and transparent government, the OPE will dedicate itself to "open, candid and constructive" collaboration with all groups and individuals with a stake in the Immigration Debate, including public interest organizations and immigration attorneys. The news could not have come sooner, as most commentators expect the Immigration Reform debate to take center stage in the coming months as health-care reform legislation is finalized.

Although USCIS stands for US Citizenship and Immigration Services," the agency and its predecessor "Immigration and Naturalization Service" have long been criticized for not providing quality, dignified customer service to its many "customers," which include individuals, corporations and immigration attorneys. Declaring that "Public Service is our Mission," Director Mayorkas believes the OPE will "more actively and ably elicit the views of those whom (USCIS) serves, and will enable us to better collaborate with them as our agency develops and administers the policies that further our mission."

USCIS opens Office of Public Engagement

Sunday, 20 September 2009 23:08 Atty. Daniel Hanlon

LAST September 14, USCIS Director Alejandro Mayorkas announced the opening of the USCIS’ new "Office of Public Engagement" (OPE). In keeping with the Obama Administration’s promise to provide open and transparent government, the OPE will dedicate itself to "open, candid and constructive" collaboration with all groups and individuals with a stake in the Immigration Debate, including public interest organizations and immigration attorneys. The news could not have come sooner, as most commentators expect the Immigration Reform debate to take center stage in the coming months as health-care reform legislation is finalized.