Immigrant Benefits and Visa Processing

Continued from Immigration Accountability Executive Action Overview on February 18, 2015.

Presidential Memorandum on Visa Modernization

The Presidential Memorandum on “Modernizing and Streamlining the U.S. Immigrant Visa System for the 21st Century” was issued on November 21, 2014, calling on immigration agencies to improve the current visa system starting with recommendations. Agencies called upon included the Secretaries of the Departments of Homeland Security and State to work with the White House, the Attorney General, the Secretaries of Agriculture, Commerce, Labor, and Education, and non-governmental stakeholders. Recommendations are to be submitted to President Obama by March 20, 2015 and must include metrics to measure said recommendations’ progress.

Recommendations are to ensure:

  1. That the processing of all immigrant (permanent) and non-immigrant (temporary) visas is done efficiently, with an emphasis on reducing costs, waste, and fraud while improving services;
  2. That all available immigrant visa numbers are used consistent with demand;
  3. That a stronger technology infrastructure exists to improve the applicant’s experience, enable better oversight, and eliminate duplicative systems

Employment-Based Visa Proposed Changes

The Department of Homeland Security (DHS) Secretary Jeh Johnson outlined new policies in a memorandum that supporting U.S. employers, high-skilled businesses, and workers.

First, the USCIS has been directed to improve visa processing and to begin reducing wait times for employment-based immigrant visas. Policy and regulatory changes are to be considered by USCIS that will ensure those with pending immigration visas who change jobs will not lose their place in line.

Second, policy changes have been announced with the intention of preventing high-skilled, creative, and ambitious persons, especially those whom received their higher education in the U.S., from leaving the country to work abroad.

  • Expand the Optical Practical Training (OPT) program – which authorizes work experience in their fields to foreign students before and after graduation from U.S. schools;
  • Expand opportunities for foreign inventors, founders of start-up enterprises, and researchers to to pursue research, development and create U.S. jobs;
  • Consolidate guidance for the adjudication of L-1B visas, which allow multinational companies to transfer specific executives, managers, or persons with specialized knowledge in their fields to the U.S. temporarily;
  • Increase flexibility for employment-based permanent resident status holders to change jobs, if their applications are stalled due to processing delays;
  • Review of the Department of Labor’s PERM certification process for foreign labor. This process determines if there is not a sufficient number of U.S. workers for the position and that employment of the foreign worker will not adversely affect U.S. workers;
  • Providing employment authorization to certain spouses of foreign workers with H-1B visas

What is a provisional waiver and how does it help family members of US citizens and LPRs?

The current process for unauthorized family members of U.S. citizens and lawful permanent residents (LPRs) can take years and is uncertain, often times separating the individual from his or her family. He or she must leave the U.S., request and obtain a waiver of inadmissibility for their unlawful presence in the U.S., and then apply for an immigration visa through a U.S. consulate abroad.

USCIS adopted regulations in 2013 allowing spouses, minor children, and parents of U.S. citizens to apply for the inadmissibility waiver while in the U.S. before traveling abroad for consular processing after USCIS granted the waiver. These changes significantly reduced the time family members were required to remain outside of the country.

New regulation to be adopted by USCIS to provide additional guidance for obtaining a “provisional waiver” has been directed by DHS. A person must demonstrate that his or her absence from the U.S. would cause “extreme hardship” to a spouse or parent who is a citizen or LPR in order to obtain a waiver. Family members eligible for the “provisional waiver” process to include adult children of U.S. citizens and LPRs and spouses and minor children of LPRs.

Changes to parole policies.

Individuals granted parole may be able to gain lawful permanent status without leaving the United States, if they are otherwise eligible. Parole refers to allowing an individual to temporarily enter the U.S. for purposes of significant public benefit or for humanitarian reasons without technically admitting them into the country. Advance parole refers to allowing an individual currently residing in a temporary status in the U.S. permission to travel abroad for a short period and return to the U.S. without jeopardizing the existing status. Parole-in-place grants parole to an individual who is already in the U.S., but who is her without permission, without having to leave the country.

  • Parole in place to protect military families
    • DHS issued guidance in 2013 permitting parole-in-place for unauthorized family members of military personnel and veterans. The new guidance expands availability of parole-in-place and deferred action to family members of citizens and LPRs who seek to enlist in the U.S. Armed Forces.
  • Department-wide advance parole policy
    • Ensure consistent application process across the department.
  • Parole for investors, researchers, and founders of start-up enterprises
    • USCIS has been directed to draft regulations to enable certain inventors, researchers, and founders of start-up businesses to enter the US before they become eligible for a visa under a new category for parole.

Source: American Immigration Council, http://www.immigrationpolicy.org/special-reports/guide-immigration-accountability-executive-action

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Employment Eligibility Extended to H-4 Dependent Spouses of H-1B Non-immigrants

On Tuesday, February 24, Citizenship and Immigration Services announced the Department of Homeland Security (DHS) will be extending eligibility for employment to certain H-4 dependent spouses of H-1B non-immigrants who are seeking employment based lawful permanent residence (LPR) status, effective May 26, 2015. The announcement is an important element of President Obama’s executive actions on immigration from November 2014. Extending eligibility for employment, according to USCIS, “…is one of several initiatives underway to modernize, improve and clarify visa programs to grow the U.S. economy and create jobs.”

This change is expected to help reduce the economic burdens of H-1B non-immigrants and their families during their transition from non-immigrant to lawful permanent residence status. It is also expected to assist in families’ integration into American society. The US economy will also benefit because of the contribution H-1B non-immigrants make to entrepreneurship and science, promoting economic growth and job creation. Not only will the change be a positive effect on the US economy, but it will also bolster US competitiveness with countries already competing for similarly high skilled workers.

“Allowing the spouses of these visa holders to legally work in the United States makes perfect sense. It helps U.S. businesses keep their highly skilled workers by increasing the chances these workers will choose to stay in this country during the transition from temporary workers to permanent residents. It also provides more economic stability and better quality of life for the affected families.”

Director León Rodríguez

Eligible individuals include certain H-4 dependent spouses of H-1B non-immigrants who:

  • Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
  • Have been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act. The Act permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status.

Source: http://www.uscis.gov/news/dhs-extends-eligibility-employment-authorization-certain-h-4-dependent-spouses-h-1b-nonimmigrants-seeking-employment-based-lawful-permanent-residence

DACA Injunction Not a Deterrent

Although the United States Citizenship and Immigration Services (USCIS) was scheduled to begin accepting applications for the expansion of the Deferred Action for Childhood Arrivals (DACA) on February 18th, a U.S. District Court judge issued an injunction to block the program. President Obama is expected to file an emergency stay in order to move forward with his executive action on immigration.

Officials at the Department of Justice (DOJ) plan to seek what is known as an emergency stay that would essentially undo a Texas-based federal judge’s injunction from earlier this week. If the stay is granted, the government could restart a pair of executive programs that will shield millions of undocumented immigrants from deportation.

-The Hill

Immigration Accountability Executive Action Overview

The “immigration accountability executive action” is a series of measures towards reforming our immigration system, announced by President Barrack Obama on November 20, 2014. The President’s action looks at how we process, enforce, and welcome immigrants to America, as well as encourage innovation for business. To provide temporary protection from removal the action authorized the Department of Homeland Security (DHS) in expanding its use of deferred action. Millions of unauthorized immigrants currently in the U.S. will be eligible for this protection, including children under the Deferred Action for Childhood Arrivals (DACA) and their parents under the new Deferred Action for Parental Accountability (DAPA).

Other methods of enforcement measures include focusing greater attention on those with criminal convictions, national security threats, and recent unlawful entrants. Streamlining current visa-processing practices, improving coordination between federeal agencies (such as DHS, Department of Labor, and others), and ensuring the protection of immigrant workers’ rights will be employed. U.S. Citizenship and Immigration Services (USCIS) has been tasked with increasing its efforts to encourage naturalization. Programs will be expanded or changed to better address the protection of family members of military, eligibility for in-country processing of waivers for the 3 and 10 year admission bars, and greater protection for high-skill workers in the transition from temporary to permanent legal status.

Learn more about the Deferred Action Programs in our next blog post!

Source: American Immigration Council, http://www.immigrationpolicy.org/special-reports/guide-immigration-accountability-executive-action

February 18 Set for DACA Expansion to Benefit Children of Undocumented Immigrants

The Deferred Action for Childhood Arrivals (DACA) program has been expanded! DACA was an initiative of President Barrack Obama’s 2014 executive action on immigration reform. This group of eligible immigrants will be the very first to benefit from the executive actions initiated last November. U.S. Citizenship and Immigration Services (USCIS) estimates that 4.9 million people are eligible to apply for DACA.

What are some of the changes happening because of the DACA expansion?

  1. There will be no age cap. Beginning on February 18, 2015, there will be no age cap placed on potential applicants as long as they meet all other requirements. Before, applicants had to be 30 years or younger to be eligible for DACA.
  2.  The number for how many years one has lived in the U.S. to be eligible has changed. Applicants must have been present in the U.S. from January 1, 2010 to present in order to qualify.
  3. DACA first-time and renewal applicants will receive deferred action and work permits for 3 years instead of 2.

To be eligible one must:

  • Entered the United States before the age of 16;
  • Have lived in the U.S. continuously since at least January 1, 2010;
  • Are of any age;
  • Meet all other DACA guidelines.

For more information, visit the USCIS.gov website.

Source: uscis.gov

Source: http://unitedwedream.org/blog/breaking-daca-expansion-applications-accepted-starting-february-18th/

Source: http://www.reuters.com/article/2015/01/30/us-usa-immigration-obama-idUSKBN0L303Z20150130

Nima Kulkarni Named “Attorney of the Month”

Nirupama Kulkarni, founder of Indus Law Firm, was named Kentucky’s Attorney of the Month by Attorney at Law Magazine. Dan Baldwin of Attorney at Law Magazine wrote an article highlighting Kulkarni’s business practices, hands-on approach to every one of her cases, and her background.

Attorney of the Month Nirupama Kulkarni

A Hands-On, Creative Approach to Immigration Law

Nirupama Kulkarni

 By Dan Baldwin

“I am personally involved in every case. And I work very hard to provide creative solutions for the immigration issues that my clients come to me with,” says Nirupama Kulkarni, founder of Indus Law Firm, PLLC.

Being hands-on and creative is necessary when working within the current system. Crafting long-term strategies is essential to success, she says.

“Our current immigration system doesn’t take a common-sense approach, focusing more on politically charged issues instead of trying to design a system that facilitates and bolsters our economic growth and global competitiveness.”

Through her practice, Kulkarni helps companies—ranging from startups to large multinationals—understand and navigate the complex immigration system so they can attract and retain world class talent to grow their business. She also focuses on foreign investors, students and entrepreneurs.

Kulkarni says the current system is definitely a big frustration for her and her clients. She always tries to educate clients, colleagues and the community about the immigration process, its drawbacks and its impact on individuals, families and employers.

That frustration and a sense of justice led to a lot of advocacy and awareness-building. She says she is not alone, noting that large corporations such as Microsoft and Google invest millions of dollars towards trying to fix the system so that they can bring in talented employees. “There are pervasive myths and a lot of misinformation out there about immigration in general. But we as a country are shooting ourselves in the foot if we don’t act soon to catch up to other countries that already design their immigration policies to achieve their economic growth objectives.”

She says that although the system is challenging, it does allow for a lot of creative thought in providing solutions. “It’s very rewarding when you’re able to help an employer acquire needed talent or to help a family stay together, which is a good trade-off. I think the country sees that this is something that has to happen and it will probably happen soon.”

She advocates tailoring the immigration system with an eye towards attracting and retaining talented and motivated people. The government seems to founder in a very politically affected system. Decisions often depend on who is in office and what the feeling of the country is at a given moment in time. It’s a very emotional issue.

A Focus on Business Immigration
Kulkarni started her firm in 2010 with a focus on corporate and business and employment-based immigration. Although she provides full immigration services to individuals and families, her focus is on high-skilled workers, physicians, investors, and companies wanting to expand to the U.S.

Since immigration law is federal, her trade area is nationwide. She currently has a staff of one paralegal, and is interviewing additional attorneys and support staff for a planned expansion to handle an increase in business volume. The firm also partners with and provides pro-bono work to organizations and nonprofits regionally and nationally who provide immigration services either free or at a reduced cost, and that are more humanitarian in nature, such deferred action, asylum, or victims of crime.

Kulkarni says, “I think a real advantage of my practice is my personal, hands-on approach with every case I take on. I make sure that I communicate personally with every client and closely monitor the case so I can be more flexible in the way I approach the strategy.”

She earned her B. A. in English literature from the University of Louisville, an MBA in Entrepreneurship from the University of Louisville, and her J.D. from the David A. Clarke School of Law.

She believes in a collaborative style with staff and with clients. She hires based on a person’s ability to learn and his or her passion for the field. “We don’t have just a faceless assembly line of cases, which can happen in larger firms. I have kept my firm small for that very reason. We provide clients with a lot of personal attention, and they know they can always reach me with any questions or concerns, which helps ease their mind during what is usually a very anxious time,” she says.

Kulkarni approaches every case as a learning experience that can help make her and her practice a little better. “It’s a matter of constant improvement for me. Each case is a learning experience because the immigration law and policy landscape is always changing. When I get a decision on a case I focus on understanding why so I can continue to improve and move forward,” she says.

On the Personal Side
Kulkarni was born in India in and moved to the U.S. with her family in 1986. Having been through the immigration process herself provides a unique perspective when guiding clients through the complicated immigration system. The entire family is actively involved with immigration issues. Her father serves as the Director of the Office of Globalization for Metro Louisville. Her mother runs the Beaded Treasures Project, a non-profit that helps refugee women become more economically self-sufficient.

Kulkarni is also active in many community and civic organizations. She is the co-founder and Vice-chair of the Louisville Bar Association Human Rights Section, a member of the Rotary Club of Louisville, serving on its International Service Committee, and is involved with many community organizations focusing on Louisville’s international population, including the Greater Louisville International Professionals, World Affairs Council, and the Indian Professional Council. Kulkarni also serves on the boards of the Kentucky Science Center and the Community Foundation of Louisville. Her commitment to improving her community and engaging the immigrant community has also led her to appear regularly on KET’s Kentucky Tonight as well as several seminars and panels on the subject of immigration and international law.

Kulkarni is optimistic about the future of immigration and immigration law. “I do think that at this point the majority of Americans are in favor of immigration reform and I don’t think that it’s been that way in the past. I think people realize that our attitude toward bringing in talented people from abroad is changing. There needs to be a more deliberate and inclusive immigration policy on that end. I think the rhetoric has always focused on people who are undocumented when they come to the U.S. and remain without status and that is one part of it, but a smaller part. There are many, many more people who are here legally who cannot move forward and are in limbo. It’s definitely ready for change.”

Source: http://www.attorneyatlawmagazine.com/kentucky/attorney-month-nirupama-kulkarni/

State of the Union & Immigration Reform

President Barrack Obama gave his 2015 State of the Union address on January 20, 2015 and here is what he had to say on immigration in the United States.

” We can’t put the security of families at risk by taking away their health insurance, or unraveling the new rules on Wall Street, or refighting past battles on immigration when we’ve got a system to fix. And if a bill comes to my desk that tries to do any of these things, it will earn my veto.”

“Yes, passions still fly on immigration, but surely we can all see something of ourselves in the striving young student, and agree that no one benefits when a hardworking mom is snatched from her child, and that it’s possible to shape a law that upholds our tradition as a nation of laws and a nation of immigrants.”

–President Obama, State of the Union Address, January 20, 2015

Watch the full State of the Union address on YouTube.

Ethical and Professional Obligations in Criminal Cases Involving Noncitizens (Part III)

PART III

This article [broken into four parts] discusses the constitutional obligations imposed on attorneys when representing noncitizens in criminal proceedings that could result in significant and adverse immigration consequences. The U.S. Supreme Court has addressed this issue in two cases involving post-conviction relief claims based on ineffective assistance of counsel, making it clear that criminal defense attorneys have an affirmative Sixth Amendment duty to advise a client of the consequences that a criminal disposition can have on the client’s eligibility to maintain or obtain lawful immigration status and/or seek relief from deportation.

Post-Chaidez

 

Chaidez preserves the right of an immigrant to obtain relief if the immigrant can show that he or she was affirmatively misadvised regarding the immigration consequences of his criminal case. The Court in Chaidez distinguished affirmative misadvice claims as not subject to its retroactivity holding since this “separate rule for material misrepresentations” pre-existed Padilla.

Some additional arguments for retroactive application of Padilla in post-conviction relief cases include:

  • State courts can apply broader state retroactivity principles to award relief on Padilla post-conviction relief motions;
  • There may be an independent state constitutional right to effective assistance of counsel, which is unaffected by Chaidez;
  • Chaidez does not impact the viability of a Padilla claim for a defendant whose conviction was not final (all possibility of appeal exhausted) as of March 31, 2010;
  • Padilla applies in a first post-conviction proceeding, whether federal or state, because such a proceeding is akin to the initial criminal proceeding for purposes of an ineffective assistance claim;
  • Padilla may continue to apply to state post-conviction cases filed prior to March 31, 2010; and
  • Chaidez does not interfere with the right of an immigrant whose criminal lawyer failed to investigate and advise regarding immigration consequences to present the claim for relief, where appropriate, as one that violated an earlier recognized constitutional duty, such as a duty to negotiate the best possible plea.

[END PART III]

Nima Kulkarni is an immigration attorney in Louisville with Indus Law Firm, PPLC, specializing in employment and family based immigration and advocacy and serves as the Vice-Chair of the LBA Human Rights Section.

President Obama’s Executive Action on Immigration

On November 20, 2014, President Barack Obama announced an executive action on immigration. In a move that both Democratic and Republican presidents have made for the past half century, Obama addresses longstanding issues in our broken immigration system affecting not only our undocumented population, but also our best and brightest students, high-skilled workers and entrepreneurs. “Accountability, not amnesty.”

 

“The President’s Immigration Accountability Executive Actions will help secure the border, hold nearly 5 million undocumented immigrants accountable, and ensure that everyone plays by the same rules. Acting within his legal authority, the President is taking an important step to fix our broken immigration system.

These executive actions crack down on illegal immigration at the border, prioritize deporting felons not families, and require certain undocumented immigrants to pass a criminal background check and pay their fair share of taxes as they register to temporarily stay in the U.S. without fear of deportation.

These are common sense steps, but only Congress can finish the job. As the President acts, he’ll continue to work with Congress on a comprehensive, bipartisan bill—like the one passed by the Senate more than a year ago—that can replace these actions and fix the whole system.”

– The White House, Office of the Press Secretary

Sources:

The White House YouTube, “The President Speaks on Fixing America’s Broken Immigration System” [https://www.youtube.com/watch?v=6Q_Xk66gsRU]

The White House, Office of the Press Secretary [http://www.whitehouse.gov/the-press-office/2014/11/20/fact-sheet-immigration-accountability-executive-action]

Immigration Policy Center, “Executive Action on Immigration: A Resource Page” [http://www.immigrationpolicy.org/executive-action-immigration-resource-page]

Louisville Metro Council to vote on CEDAW

Pack the House ~CEDAW

Louisville Metro Council votes on ratifying UN CEDAW November 6, 2014.

Louisville Metro Council is set to vote on adopting the Convention of the Elimination of All Forms of Discrimination Against Women (CEDAW) at the local level on Thursday, November 6, 2014. As the largest “Compassionate City,” Louisville is a city predisposed to adopting the principles of CEDAW. Women and girls make up 52% of Louisville Metro’s entire population who would benefit from the passage of this convention. They would benefit from the comprehensive framework that CEDAW outlines for governments to examine their policies and practices in relation to women and girls. Read the Metro resolution: LouisvilleCEDAWFinalVersion082414.

“Can your city government do anything to end gender discrimination, stop violence against women and girls and close the wage gap between men and women right here in Metro Louisville?

Yes. And we are stepping up, taking responsibility for community action that will ensure women and girls have equal rights and opportunities in all aspects of their lives.”

Courier-Journal | Council resolution supports women and girls

CEDAW History

The United Nations’ Convention on the Elimination of All Forms of Discrimination Against Women “…[was] adopted in 1979 by the UN General Assembly, [and] is often described as an international bill of rights for women. Consisting of a preamble and 30 articles, it defines what constitutes discrimination against women and sets up an agenda for national action to end such discrimination.

The Convention defines discrimination against women as ‘…any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.'” – UN Women

The United States is one of seven countries that has NOT ratified the convention. The other six include Iran, Palau, Somalia, South Sudan, Sudan, and Tonga.

Cities for CEDAW

“In 1980, President Carter signed CEDAW, the international women’s rights treaty, but the U.S. Senate has never ratified it. Beginning in 1995, frustrated advocates passed resolutions endorsing CEDAW ratification in over 40 municipalities, 20 counties and 15 states. Then, in 1998, San Francisco passed a binding ordinance integrating CEDAW into city and county governance and establishing the Department on the Status of Women. A couple of years later, Los Angeles did the same. In both cities, CEDAW has made a measurable difference in public safety, budgetary allocations and employment.

The 100 Cities for CEDAW campaign [was] launched at the UN Commission on the Status of Women in March 2014…

The Campaign’s goals are simple:

  • 100 Mayors for CEDAW by June 2015;
  • 100 municipal CEDAW ordinances adopted by January 2016;
  • Improving the lives of millions of women;
  • Building critical mass at the grassroots for national ratification;
  • Emboldening the U.S. Senate to finally ratify CEDAW by January 2017″ – Cities for CEDAW

Louisville, KY & CEDAW

Louisville Metro Ninth District Councilwoman, Tina Ward-Pugh, sponsored a resolution supporting Cities for CEDAW initiative by Louisville Metro Council. Louisville Metro Council will vote on ratifying the convention at the city-level on Thursday, November 6, 2014 at Metro Council Chambers. Read Ward-Pugh’s op-ed on CEDAW in the Courier-Journal.

What you can do!

Please join us in Metro Council Chambers on November 6th at 6 p.m. to support the CEDAW (Convention on the Elimination of all Forms of Discrimination against Women) Resolution to make Louisville a City for CEDAW. Come show your support for our women and girls!

Follow the Louisville Coalition for CEDAW on Facebook to show your support and SHARE with your friends!