California Immigration Lawyer Blog

In an interview with the New York Times, about comprehensive immigration reform, the director of United States Citizenship and Immigration Services (USCIS), Alejandro Mayorkas, indicated that the agency was making plans to accommodate the filing of more visa applications although no new laws have been passed. He stated that the goal was to be able to rapidly process a large increase in applications if some kind of comprehensive immigration reform bill is passed by Congress.

He told the paper that USCIS is currently able to handle applications for about six million applicants a year. Under some legalization proposals, the agency may receive that number of applications in a few weeks.

There are no serious legalization proposals currently pending before Congress. It is heartwarming to me though that USCIS thinks there might be and is actively planning on how to be prepared for it.

I previously wrote a post on the Department of State's Social networking site promoting cultural exchange. Now the Department of Homeland Security is following with their social networking site called, "Our Border." The purpose of the site is to facilitate conversation between people and groups interested in issues surrounding the southwest border. Groups that are established on the site include: Citizenship and Immigration Services ("CIS"), Customs and Border Protection ("CBP"), Immigration and Customs Enforcement ("ICE") and Comprehensive Immigration Reform. It is interesting that on the DHS social networking site, the Comprehensive Immigration Reform group has the most members.

Every day the site will feature a video from the DHS' Youtube channel. (Look how far DHS has come!) Users can also post their own videos or posts. There are currently over 290 members of the networking site.

As a San Francisco bay area immigration attorney, I was kind of skeptical at first about a social networking site on border issues, but at looking at the posts, I have changed my mind. There appears to be some interesting discussion from a variety of people about border issues. There are also some good links to news stories on immigration topics. I joined the site and hope that it really will be a tool for open discussion. I will report back.

On August 18, 2009, San Francisco county supervisor, David Campos, introduced legislation, "Confidentiality of juveniles' immigration status," which would permit San Francisco authorities to turn over youths to the Department of Homeland Security only if the youths are convicted of a felony. This is a change in the current law which requires the immigration authorities to be contacted when a youth is arrested for a felony.

Supporters of the proposed legislation like it because they view the current law as drastic. Currently If the Department of Homeland Security is alerted to all felony arrests and finds someone here illegally, they will take action to remove that person from the United States. Under the proposed law, fewer youths are likely to be turned over to the Department of Homeland Security because there will not be as many youths convicted of a felony.

Opponents of the proposed legislation state that it conflicts with federal law and that it would open up the City of San Francisco to legal challenges if it passes.

You may read more about the law in the San Francisco Chronicle article, "New Sanctuary Proposal protecting youths."

Requesting continuances of cases in Immigration Court can be tricky. You never know if it will be granted because it most often depends on the judge's discretion. There is very little case law on when continuances should be granted. Fortunately, a few days ago, the Board of Immigration Appeals ("BIA" or "Board") decided a case in which it has provided some guidance on when a continuance may be granted.

In Matter of Hashmi, 24 I&N Dec.785 (BIA 2009), the respondent (Mr. Hashmi) was married to an American citizen who had filed a visa petition (Form I-130) on his behalf. The Immigration Judge permitted several continuances in the proceedings to allow time for USCIS to adjudicate the visa petition. If the visa petition would have been approved, Mr. Hashmi would have been immediately eligible for adjustment of status (green card). Mr. Hashmi managed to obtain four continuances but the Judge denied the fifth request. The Judge denied it because he stated that he was forced to meet case completion goals and he needed to make a decision because the case had already been pending for 18 months in the Immigration Court. Mr. Hashmi appealed and after the Board of Immigration Appeals initially denied it, he was finally was successful at the Third Circuit. The Third Circuit reversed and remanded back to the Board of Immigration Appeals.

Upon the case's return to the Board, the BIA considered what factors would constitute good cause for the grant of a continuance in a situation in which the person in removal proceedings (known as the "respondent") has a visa petition pending and would be immediately eligible for adjustment of status (green card) but is waiting for USCIS to adjudicate the visa petition. The BIA decided that there are five factors that a Judge must consider before ruling on a Motion to Continue in this situation. These factors are:

1. the Department of Homeland Security's response to the Motion to Continue;


2. whether the visa petition is prima facie approvable;


3. the respondent's statutory eligibility for adjustment of status;


4. whether the respondent's application for adjustment of status merits a favorable exercise of discretion;


5. the reason for the continuance and any other relevant procedural factors.

The Board stressed that these factors were "illustrative, not exhaustive." (Id., at 790)

Finally, the BIA found that a judge's "case completion goals" "is not a proper factor in deciding a continuance request." (Id. at 794)

Overall this is a very helpful case because it provides us with some guidance in a situation in which we had none before. It will now hopefully be easier to obtain continuances in cases when, through no fault of their own, respondents have been waiting for USICS to adjudicate their petitions.

A few days ago I saw a client from the San Francisco Bay area who had different spellings of his name on his government issued documents: one version on the green card, one on the California Driver's License and finally another on the Social Security card. In the past, the different versions of spelling did not matter so much. A person could usually explain the difference to an employer if there was a question when completing the I-9 form. Unfortunately a discrepancy between what USCIS shows and what Social Security shows may now mean that he may not get hired because if an employer uses e-verify, the system could not verify that he is the same person authorized to work in the United States.

E-verify is an internet based system operated by the Department of Homeland Security in cooperation with the Social Security Administration that permits participating employers to electronically verify the employment eligibility of their newly hired employees. (For more about e-verify, see my previous post, "To e-verify or not to e-verify, that is the question.") One of the criticisms with e-verify is that there are mistakes such as this when a person has legal status but the data used is inconsistent.

The best way to resolve the problem is to make sure that both agencies have the correct spelling of your name. Not only is it necessary to get around the problems with e-verify but later in life, you may wish to receive Social Security and you will want to make sure that you have been credited with all of your earnings.

If the problem is with USCIS and you have a green card, you can file a Form I-90 to correct the spelling of your name and obtain a new green card. If the error is the fault of USCIS, the application is free. You must send the application in with proof of the correct spelling of your name.

If you are applying for citizenship and your name has a minor spelling or translation error, you may be able to convince the officer that you do not need to make a name change, but rather the mistake is simply due to a mistake in translation. You should bring a document with you that shows the correct spelling on it to show the officer. You will then obtain a certificate of naturalization with the correct spelling of your name and your name will be correct in USCIS records.

If you wish to change your name and then change your immigration documents, you will need to obtain a court order of your name change. Once you have the court order, you may submit it with either your Form I-90 (to obtain a new green card) or with your application for citizenship so that your new name will be placed on the naturalization certificate.

Continue reading "How to inform Social Security and Immigration if my name is misspelled or it changes " »

Photo by DeusXFlorida

The Department of Homeland Security ("DHS"), Office of Immigration Statistics, has recently released its report: Naturalizations in the United States: 2008. In 2008, United States and Citizenship Services ("USCIS") naturalized 1046,539 people. This number is the highest number of people naturalized in one year and broke all previous records. Out of that number, 297,909 resided in California. California's numbers make up 28.5% of the total number of people naturalized.

The San Francisco-Oakland-Fremont metropolitan area was the sixth highest area in terms of where people who naturalized were residing. The San Jose-Sunnyvale-Santa Clara area followed closely behind as the ninth highest area.

I am currently working on a H-1B petition for an accountant in a northern California accounting firm. I was therefore interested when I saw an article about H-1B fraud posted on AILA's (American Immigration Lawyer's Association) website. While the website is open to the public, there is a special area for members only and this is where I saw the article.

Basically an AILA member did a Freedom of Information Act ("FOIA") request and accidentally received the attached USCIS internal H-1B referral sheet. The sheet indicates areas which, if seen in a H-1B petition, United States Citizenship and Immigration Services ("USCIS") may think that the petition is fraudulent. For instance, one of the possible markers for fraud, in the eyes of the USCIS, is a petition for a position as an accountant. Another marker is if the size of the company. If the company has less than 25 employees, it apparently looks fraudulent to the USCIS. Both of these markers appear in my case.

It appears that the adjudicator, upon seeing possible indications of fraud, would complete this form and then send the case on for investigation.

This form contains useful information because it tells us how USCIS thinks. I cannot change the facts in my case but at least I know what the concerns of USCIS are and can prepare for them.

In a major change of policy, United States Citizenship and Immigration Services ("USCIS") is now allowing people to bring cell phones into the building located at 630 Sansome Street in San Francisco.

Previously, the policy was that if you had a cell phone with a camera, you were not permitted to bring it into the building. Effective immediately, you may now bring a cell phone in, even if it has a camera. This policy applies to all visitors with the only restriction being that you are not permitted to take any pictures or use the phone as a recording device while in the building. If you do take a photo, you will be fined $125.00 and your phone will be taken away from you by Federal Protective Services.

The new policy will be in effect for a 90 day trial period. If all goes well and there are no incidents, the policy will remain in place.

I think this is a great change and a very welcome development.

I previously wrote a post on the e-verify program and the mandatory rule for employers hiring federal contractors to use this program beginning on January 15, 2009.

Fortunately, the deadline for mandatory verification has been extended until February 20, 2009. The reason for the extension is because the U.S. Chamber of Commerce and four other associations have sued the government and litigation is pending. The name of the lawsuit is Chamber of Commerce of the United States of America, et al. v. Chertoff, et al (You will need an account on PACER, the federal court filing electronic system to view the whole case.) The lawsuit requests that the rule be declared invalid and that the court permanently enjoin it from going into effect on the grounds that neither the President nor the Department of Homeland Security ("DHS") had the authority to mandate the use of e-verify for federal contractors. The litigation also challenges e-verify on the grounds that it is an unfair burden to employers and that the database used by DHS is inaccurate.

USCIS has published a notice on their website announcing the delayed implementation. They also have published a good set of frequently asked questions about e-verify.

Effective January 22, 2009, residents of California will need to mail their naturalization applications to a new address. The new address is:
USCIS
P.O. Box 21251
Phoenix, AZ 85036

If you wish to file the application via courier or express mail, the address is:
USCIS
Attn: N-400
1820 E. Skyharbor Circle S Floor 1
Phoenix, AZ 85034

If you are in the armed forces or you a spouse of a member of the armed forces, you must file your naturalization application with the Nebraska Service Center, regardless of where you actually reside. The address is:

Nebraska Service Center
P.O. Box 87426
Lincoln, NE 68501–7426

The courier address for the Nebraska Service Center is:

Nebraska Service Center
850 S. Street
Lincoln, NE 68508

If you would like to see the entire Federal Register announcement listing all locations, you may access it here: Revision to Direct Mail Program for Submitting N-400.

I would think the American television watching public would be tired of reality tv by now. Well, apparently not. A new show will be premiering on January 6 called "Department of Homeland Security USA." According to ABC's press release the show is about the men and women who patrol more than 100,000 miles of America's borders. "The Department's missions include everything from vetting adoption papers and checking visitors' passports to intercepting undocumented immigrants, drugs and other contraband, and stopping potential terrorists trying to cross our borders. What viewers will see is powerful, dramatic, unforgettable and emotional, with unexpected moments of humor."

This show is apparently based on a popular Australian show called "Border Security." I have never seen the Australian show but I cannot imagine that the U.S. show is going to be so popular. If it becomes popular, it will only because the network has sensationalized it. Not every day of a border patrol officer is "dramatic, unforgettable and emotional."

Personally, I will not be watching the show. I get my dose of reality every day.