Petition to Reinstate Drivers License

							Immigration In Troubled
 Times: What You Need
        to Know
    LA NAFSA 2009
          David A. M. Ware
      David Ware and Associates
           Attorneys at law
       dware@david-ware.com
            800 537 0179
        www.david-ware.com
              Student/EV News
• OPT Changes: 4/8/08 Rule (73 Fed. Reg.68, 18944-18956)
   – Creates 150 day application window: 90 days before
     completion, up to 60 after completion of course of study.
   – Extends OPT until October 1 of same year, if student’s OPT
     ends on or after April 1, and student’s H1B petition is
     ―selected‖ for adjudication in lottery. SEVP guidance also
     provides for mini extensions until notification of ―selection.‖
   – Allows 17 month extension for those earning degrees in
     Science, Technology, Engineering and Math.
     Ice.gov/sevis/stemlist.htm. Must apply during initial 12
     months of OPT; employer must enroll in E Verify. See
     dhs.gov/ximgtn/programs/gc_1185221678150.shtm.
     Automatic extension of 180 days if timely filed.
               OPT Changes
– Establishes maximum cumulative unemployment
  period of 90 days during initial 12 months; 120 days
  during 29 months if STEM extension granted.
   • But SEVP guidance allows self employment, contract or
     agency work, short gigs, and volunteer work during first 12
     months. Must be at least 20/hrs per week.
– Up to 10 day period between jobs does not count
  towards limit.
– Time outside US does not count if authorized leave or
  working for employer abroad.
– Only unemployment after April 8, 2008 counts
  towards limit.
– SEVP will enforce by denying future benefits,
  terminating record in individual cases.
– See, Ice.gov/sevis/updates_postcompletion_opt.htm
                  OPT Changes
• Reporting: New rule establishes triple reporting
  requirements:
   – Student to DSO:
      • initial 12 months: should report any change of address, name,
        interruption of employment, to DSO [within 10 days--SEVP];
      • STEM extension: must provide within 10 days change of legal
        name, address, employer name or address, and loss of
        employment; also ―validation report‖ each six months if on STEM
        extension [not in SEVIS 5.8]
   – Employer to DSO: (STEM ext. only) must report if student
     separated from employment within 48 hours
   – DSO to SEVIS:
   – Initial 12 months: must report in SEVIS within 21 days: any
     change of name, residential or mailing address,
   – Also during STEM extension: change of employer name or
     address, end date of employment, as reported by
     student/employer [ 8 CFR 214.3(g)(3)(i)].
               OPT Changes
• Excellent NAFSA analysis of new rule:
  – Nafsa.org/regulatory_information.sec/regulat
    ory_document_library.dlib/sevis/opt_29_mont
    h
  – Major questions:
     • Terminate record if student OOS due to
       unemployment? No.
     • What will CIS/CBP/SEVP do about student who is
       OOS? Terminate record, deny benefits?
     • Mitigating factors re unemployment? Illness, jail?
     • Affirmative contact with student necessary? (No--
       except informing them of responsibilities when
       applying)
   Travel and New OPT Rule
• Return to US while on initial OPT: valid OPT
  card, endorsed I-20, employment letter,
  valid visa.
• Return on ―cap gap‖ extension: same as
  above, except card will be expired; will
  need endorsed ―cap gap‖ I-20.
• Return on STEM extension: same as for
  initial grant.
• COS to H abandoned if travel prior to
  approval; ok after.
 Efren on ―Last Action Rule‖
• ―A change of status takes effect
  automatically on the effective date
  noted on the Notice of Action (Form I
  797), even if there is an intervening
  admission [as an F 1]…The ―Last Action
  Rule‖ does not affect the [approved]
  change of status [to H]… because the
  last action [on October 1] is the taking
  effect of the change of status.‖ Efren
  Hernandez, Chief, Business and Trade
  Services Branch, Office of Adjudications,
  USCIS, 8/18/04.
  New Fee Schedule—10/27/08
• I 901 F/M visa applicants $200
• I 901 J visa applicants    $180
• I 901 J au pair, camp counselor, summer
  work/travel               $35
• I 901 J govt sponsored     $0
• I 17 Initial SEVP cert    $1700 plus $655
  site visit
• I 17 Change of ownership $1700
• Site visit if adding campus $655
• Recertification             $0
           Student/EV News
• In March of last year, DOS issued its annual F,
  J, and M update:
  – Prioritize F, J, M applications
  – Attendance at community college, language
    program, lesser known school not per se reason
    to refuse visa
  – Whether course of study offered in home country
    not cause to refuse visa
  – SEVIS is final record regarding whether
    student/EV accepted into program and
    document properly issued
  – CCD now permits viewing SEVIS comments
    section
         Student/EV News
• SEVP 5.8 launched on April 18, 2008,
  incorporating functionalities related to
  the new OPT rule.
• SEVP slides on the launch can be
  found at ice.gov/sevis
         Student/EV News
• DOS has created new Student/EV Visa
  Center for inquiries on F, M, J visa
  applications
  – Schools and EV sponsors can email
    fmjvisas@state.gov
  – Foreign national applicants should call
    202 663 1225
  Student/EV News/Inquiries
• Inquiries must include date, nature (eg,
  delay, denial, etc) and:
• Post information
  –   Consular post involved
  –   Have you contacted post directly?
  –   When?
  –   How?
  –   Name of person contacted, if known
  –   Attach correspondence, if any
   Student/EV News/Inquiries
• Inquiries should include:
   – Foreign National’s information
      •   Full Name as in passport
      •   Nationality
      •   Place of Birth
      •   Date of Birth
      •   Current visa status if in US
      •   Type of visa applied for
      •   NIV appointment number
   – DSO/RO contact info
      • Name, institution, phone, email
• See
  http://www.nafsa.org/regulatory_information.sec/
  state_department_student_exchange
           General News
• Interfiling: In a recent liaison meeting
  between AILA and USCIS Service Center
  Operations, the latter suggested that the
  best way to ―interfile‖, that is, file a
  document or other information in a case
  that is already pending, is to attach a
  brightly colored sheet to the packet,
  clearly indicate that you are interfiling,
  and note the previous receipt number on
  the cover sheet.
       General News--TPS
• Burundi: terminated 5/2/09
• El Salvador: extended til 7/5/10
• Honduras: extended til 7/5/10
• Nicaragua: extended til 7/5/10
• Somalia: extended til 9/17/09
• Sudan: extended til 5/2/10
• Liberia: deferred enforced departure til
  3/31/09
             General News
• New I 765, revision date, 4/8/08, must be
  utilized as of May 8, 2008.
• Incorporates changes as a result of new OPT
  rule of April 8:
  – Three OPT codes instead of one: pre completion;
    post completion and STEM extension
  – If STEM chosen, requests information about major
    and employer’s E Verify registration number.
    Student must also submit copy of degree
    reflecting STEM major (if diploma silent, submit
    transcripts)
    General News—E Verify
• Launched in 2007
• Supplementary to I 9 Employment
  Eligibility Verification
• System compares employee’s SSN and
  other personal data to information in SSA
  and DHS databases. Does not verify
  immigration status.
• Still voluntary for most employers;
  however, federal contractors now
  required to enroll; several states require
  enrollment, eg, MS.
    General News-- E Verify
• Within three days of hire, employer
  must submit employee’s information.
  System responds:
  – Employment authorized
  – SSA tentative non confirmation
  – DHS verification in progress
• If tentative non confirmation received,
  employee, must be given eight federal
  business days to resolve with agency.
    General News –E Verify
• E Verify has bugs; up to 10% of its
  responses may be erroneous.
• Employer must sign Memorandum of
  Understanding allowing DHS and SSA
  to inspect its E Verify records and
  speak to enrolled employees
  periodically.
     Visa Processing Update
• Paperless consulates: DOS moving to
  entirely electronic visa applications
  using new Form DS 160. Program is
  being piloted at Nuevo Laredo,
  Monterrey, Vancouver, Montreal,
  Hong Kong. Will cover all of Mexico in
  a few months.
• Both Hands Now: as of 8/20/08 a ten
  print scan is required of all non
  immigrant visa applicants.
     Visa Processing Update
• Changes to VWP Program:
  – 11/17/08: Expanded to include Czech Republic,
    Estonia, Hungary, Latvia, Lithuania, S. Korea, and
    Slovakia.
  – 1026/08: Must have machine readable PP issued by a
    VWP country to use VWP; those who don’t must get
    visa.
  – 1/12/09: All VWP travelers must register in Electronic
    System for Travel Authorization (ESTA) prior to coming
    to US. See
    www.cbp.gov/xp/cgov/travel/id_visa/esta/
• Note that VWP entrants are unable to change
  status, generally unable to extend stay, and must
  go home to get a visa.
 VP: New TCN Rule in Mexico
• On about November 1, the 10 US
  consulates comprising ―Mission Mexico‖
  instituted new policies with regard to third
  country nationals (TCN’s) applying for
  non immigrant visas in Mexico.
• TCN’s who qualify under the new policy
  can apply for a visa at any of the 10
  posts throughout the country—Tijuana,
  Guadalajara, Nogales, Monterrey,
  Hermosillo, Mexico City, Nuevo Laredo,
  Matamoros, and Mérida.
      Visa Processing: TCN Rule
• Who is eligible: Persons renewing a visa in the
  same category where the original visa was
  obtained in the home country, country of
  residence, or at a Mexican post. This does not
  apply to B 1/B 2 tourists/business visitors.
• Who is ineligible:
  –  out of status or overstay
  –  VWP entrants
  – undocumented
  –  persons seeking a visa in a different category
    from their previous visa(s) [new]
  – Persons applying for a B 1/B 2
   Visa Processing: TCN Rule
• Ineligible classes:
  – Persons seeking a visa in same category
    as previous visa, but that visa obtained
    outside home country or country of
    residence (except that visa obtained at a
    Mexican post is ok)
  – Persons subject to NSEERS
  – Persons holding travel docs from Syria,
    Sudan, N. Korea, Cuba, or Iran
      Visa Processing News
• Drunks, Druggies, etc: Don’t forget that
  arrests or convictions for DUI, or any
  admission of drug use, can result in
  referral to DHS panel physician and
  refusal of visa. Also, any arrest or
  conviction, even if very minor, will
  result in delay of visa issuance, while
  DOS confirms criminal record and
  outcome with FBI.
The Undocumented
WHO ARE THE
UNDOCUMENTED?

  Entered without inspection (EWI) or by fraud.
  Entered legally but status has expired – see I-94.
  Entered legally and have facially valid status but have not
   complied with conditions of admission.
  Estimated number: 8 to 15 million
  Most EWI’s are Mexican, but increasing numbers are
   Brazilian, Central American, Asian.
  Undocumented do not rely on government services,
   except emergency medical care, and certain public
   health programs.
  Undocumented generally only accept work US workers
   will not perform.
CONSEQUENCES OF BEING UNDOCUMENTED

 Not eligible for COS or EOS
 Deportable
 Not eligible for F, M, J or other nonimmigrant benefits
   * OPT
   * Transfer
   * On- or off-campus work authorization
   * Endorsement of I-20 for travel
 Generally not able to get SSN or Drivers License
 Subject to 3 or 10 year bar if leave US, unless D/S
  and no formal finding of OOS. SEVIS termination by DSO or
automatically does not start accrual of unlawful presence.
         Consequences…
• Immigration and Customs Enforcement
  has identified three priority
  enforcement categories:
• Persons with final orders of removal
• Convicted criminals
• SEVIS violators
• And, sorry, folks, they have tons of new
  agents, so it’s not just Middle Eastern
  males on their radar anymore….
  CAN „T THEY JUST “GET LEGAL?”
  Usually not…..
 1996 restrictions on cancellation of removal
 1996 restrictions on dependency on juvenile court
 Expired I-94 –automatic visa cancellation – must return
  home for visa; does not apply to those who are D/S
  and OOS;
 Unlawful presence -- 3 or 10 year bar
 245(i) expiration 4/30/01
• F reinstatement regulations -- usually not granted if
   OOS more than five mos. J reg similar.
 OOS and reentry: POE’s have SEVIS termination data;
  may not be readmitted; may have to pay SEVIS fee.
    Difference between “Out of Status” and
    “Unlawful Presence”
• Unlawful presence – generally any period following expiration
  of I-94 or finding by Immigration Judge or INS that person not
  maintaining status. Exceptions: asylum applicants; those
  under 17; battered spouses/children; TPS; VD; Canadians with
  no I-94; timely filed EOS or COS; AOS.
• Out of Status – violation of conditions of admission. For F or J
  student:
 no show                   unauthorized employment
 drop out                  expired I-20/DS 2019
 improper transfer         below full load w/o DSO/RO permission
 expired passport          conviction of serious crime

    D/S who is OOS does not accrue unlawful presence until IJ or
    DHS finding of OOS.
If unlawful presence, can a visa be issued?
      More than 6 mos/less than 1 year -- 3 year bar
      1 year or more – 10 year bar
      ANY unlawful presence may indicate lack of NIV intent
      Section 212(d)(3) waiver unlikely, but possible


If D/S and OOS, or OOS but I-94 has not expired,
can a visa be issued?
    Yes, but negative factor
    Depends on length, severity and circumstances
   within/beyond student’s control
    Negative factors compounded by bad conditions in
   home country, insufficient ties
         THE BOTTOM LINE:

NEVER ISSUE AN I-20 OR DS-2019, AND ADVISE AN
UNDOCUMENTED PERSON TO LEAVE THE COUNTRY TO
OBTAIN A VISA OR ―REINSTATE,‖ WITHOUT CAREFULLY
EXAMINING ALL ISSUES RELATING TO STATUS AND/OR
UNLAWFUL PRESENCE, AND REFERRING THE PERSON TO AN
ATTORNEY IF NECESSARY.
Can I Admit The Undocumented?

Yes!
Despite changes in F, M and J law and regulations,
neither DHS nor Congress has taken steps to restrict
admission of the undocumented to higher education.


Legacy INS believed it needed Congressional
authorization to do this.
Official Legacy INS Statement re: Enrollment
“Congress has not adopted legislation which would permit
states and state-owned institutions to refuse admission to
undocumented aliens or to disclose their records to the
Immigration and Naturalization Service (INS). In addition,
aliens who are in proceedings or whose applications for
reinstatement to or extension of student status are pending
may enroll full-time pending resolution of their immigration
status.”


INS Memo dated 01/14/94, published in Interpreter Releases 3/14/94,
page 366.
Does any Law Require Me to Admit Them?

Probably not, though somewhat a gray area:

                        1
    LULAC v. Wilson – Supremacy Clause – defeated CA Proposition 187.
   US Constitution Supremacy Clause, Equal Protection Clause.
   Title VI of Civil Rights Act of 1964 – national origin discrimination: but if all
    treated equally?
   State human rights laws.
   No state, except VA, has a law or rule prohibiting their enrollment.
   DHS does not prohibit nor discourage enrollment.


    1
        99 F Supp. 1244 (C. D. Cal., November 14, 1997)
What do other schools/states do?
Most admit the undocumented, but policies vary widely. Many
“policies” are not in writing, not supported by opinion from legal
counsel. UGA System one of best (adopted 9/25/00).
Most schools do not have a written policy, and will admit.
Some schools do not have a written policy, but a “tradition” of not
admitting, but could provide no legal reason for doing so.
A few religious schools responded, “It is against our moral code
to admit the undocumented.”
     New Policy In Alabama
• Adopted September 2008 by Board of AL
  Community College System
• Affects all students admitted after 9/25/08
• Affects community college students only
• Does not mention undocumented specifically
• Requires presentation of certain documents in
  order to gain admission
• Most of these, eg, AL driver’s license, are
  unavailable to the undocumented.
  For Those Who Wear Many
             Hats
• Don’t forget to advise students about H1B
  filing deadline of April 7. Exempt from
  quota:
  – Previously counted in last six years
  – Employer is non profit affiliated with higher ed
    (may often include K 12 schools, state
    agencies)
  – Employer is govt or non profit research org
  – Employer is higher education institution
    (except vocational schools)
  – QUOTA STILL OPEN AGAINST ALL ODDS!
             Many Hats
• Don’t forget to advise about Diversity
  Visa Lottery, usually October to
  December each year. Warn students
  about ―services‖ which claim to
  increase chances of winning; some
  are fake, none can increase chances
• ONLY website for lottery:
  www.travel.state.gov
   E Verify—Contractor Rule
• Requires all federal contractors and
  subcontractors to verify (E-Verify) all existing
  employees on federal contracts and all new
  employees upon registration in E-Verify.
• Limited to contracts of more than $100,000
  and in duration of more than 120 days,
  which contain E Verify (FAR) clause.
• Defines employee as working ―directly for
  the federal contract‖ (does not apply to
  overhead).
         Contractor Rule
• Exception for institutions of higher
  education: Need only E Verify
  employees working on contracts, not
  all employees.
• Deadline postponed to June 30, 2009.
E-Verify and New Employees
• I-9 must be done as always within 3
  days of hire
• Extremely important E-Verify must also
  be done within 3 days of hire and at
  the same time as the I-9
• Only time E-Verify cannot be done
  immediately is when employee does
  not have Social Security Number
     Registering For E-Verify
• Enroll at https://www. vis-
  dhs.com/employerregistration
• Employer (federal contractor or
  subcontractor) must enter into an
  agreement with The Department of
  Homeland Security by signing a
  Memorandum of Understanding (MOU).
• The Memorandum contains the
  expectations and user guidelines of DHS.
    What the Economic Crisis
      Means for Intl Ed
• Decreased state tax revenues/budgets
• Fewer resources to attract students
• Fewer resources for exchange programs
• All countries affected to greater or lesser
  degree: fewer international
  students/exchange visitors
• Will stimulus help? Perhaps in limited ways
  with some research programs; hard to
  say until we see results.
           Legislative Update
• Despite Obama’s promises on the campaign trail and
  post election, the new Administration’s push for
  comprehensive immigration reform will probably be
  delayed this year as the economic picture worsens.
• It would be politically very difficult to talk about
  legalization, or increasing visa numbers for essential
  workers, when many Americans are losing their jobs.
• Expect small-bore improvements, such as the Dream Act
  (recently reintroduced in both houses), and bigger
  reforms in 2010 or 2011, depending on the economy.
• But the administration is starting the discussion now. See
  http://thecaucus.blogs.nytimes.com/2009/04/09/obama
  -to-push-immigration-bill-as-one-
  priority/?scp=2&sq=Obama%20immigration&st=cse
QUESTIONS?
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