The Department of Homeland Security posted today for public inspection, a final rule amending regulations governing H-1B cap-subject petitions. The final rule reverses the order by which U.S. Citizenship and Immigration Services (USCIS) selects H-1B petitions under the H-1B regular cap and the advanced degree exemption, and it introduces an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions. The rule will go into effect on April 1, though the electronic registration requirement will be suspended for the fiscal year (FY) 2020 cap season.
The school year is around the corner and parents all over the country are registering or have registered their kids to go back to school sometime next month.
The Public School system must accept students regardless of their immigration status. Thus, every year schools are filled with students who are U.S. citizens, legal permanent residents, or hold dependent status such as L-2, F-2, H-4, O-2, M-2, J-2, etc., and also the so called “undocumented immigrants” who have no immigration status at all.
However, in the last few years, we have encountered an increasing influx of families arriving in the U.S. as tourists holding B-1/B-2 visas, and registering their children in Public and Charter schools. Often, unbeknownst to them, they are not only jeopardizing the status of their children, but also violating their own tourist visas and sometimes committing fraud in the eyes of the immigration enforcement agencies.
Time and again, we seat through consultations with intending immigrants who have already registered their kids in a charter school or a district public school while they are in tourist visas or while their change of status applications are pending. Their stories are very similar, and go somewhat like this: “But the Public School didn’t ask for our immigration status!!” or “The government entity just asked for an address in the U.S. and, we registered our children for that Charter school lottery” or “We told the school’s principal we were tourist, but she said we could still register our children.”
To all these parents, we sadly explain during a consultation, too often too late to avoid consequences, that the school system and the immigration system are two different entities. Although the public school system will not turn away any family based on their immigration status, a family who entered the country for leisure, will be deemed as violating their tourist status, and may be even charged with fraud in their intent when first entering the United States, if registering their kids in school.
Parents shall understand that the Schools System must accept a child of age with the right requirements to attend that school, regardless of their immigration status. Thus, it is crucial that our Schools start, at a minimum, informing families of the possible immigration consequences of registering their child while in a tourist status or pending change of status. This will allow families to make an informed decision as to whether registering their child in school.
The consequences of attending school while in a tourist status may range from denying a future change of status of the parents and family, to charging them with immigration fraud. If the latest, it will close the doors for any future immigration benefit, and the family will most likely be placed in immigration proceedings.
With little effort, Public schools could include one more form to their registration package informing families of the potential ramifications of registering to school while holding a tourist status. This, in turn, will not only help immigrant families make the informed decision as to whether register their kids to school, but also allow schools to devote their limited spaces and resources to our taxpayers.
If you have question about your immigration status or wish to consult with our firm, please contact us at 954-843-3494
USCIS announced today that current TPS beneficiaries under the Haiti designation must re-register between now and March 19, 2018 in order to extend their TPS and employment authorization until July 22, 2019, the program is set to expire.
Current employment authorization cards will be extended automatically until July 21, 2018.
Following a recent preliminary injunction order by the Court in January 2018, USCIS announced that is will continue to accept DACA renewal applications. New DACA applications will not be accepted and approved.
It is extremely important for a DACA beneficiary to renewal his or her DACA now, even if it is not expiring within the next 150 days. This may be the only chance to extend the DACA protection and employment authorization.
More than ever, families with undocumented parents, and U.S. born children are living with a very real fear of arrest, removal and deportation. Above all, they worry about what would happen to their minor children if they are detained and there is no plan in place for whom will take care of the immediate, and the long term needs of the children. From picking them up from school, to buying a ticket and making arrangements for the children to fly to the parents’ country of citizenship and be reunited with family abroad, or caring for the children in the long term for them to continue living and studying in their country of birth, these are just a few of the long list of issues that these families could be facing.
There is also the question of what would happen to the families’ assets and possessions if the parents were deported without the opportunity to sell, transfer, or reassign them. Would the government seize their homes, cars, and bank accounts? How will the U.S. children have access to these assets!?
Many undocumented immigrants, are so scared that they are paralyzed, and avoid the topic altogether. Yet, there is an estimated 3.7 million undocumented immigrants in the U.S. with American-born kids, and the increase in arrests must serve as a reminder to immigrants nationwide that they must plan for the possibility of temporary and long-term separation from their children. Legal documents and agreements can be drafted to bring some peace of mind to the parents, and guidance to those who will be assisting them if they were to be detained by the immigration authorities.
Below are two ways these agreements can be formalized:
1. Power of attorney, a private agreement between parents and caregiver, which gives temporary custody to the nominated caregiver. It can be terminated or renewed by the parent if necessary. A power of attorney could also be drafted to allow a designated person to sell or rent real estate, sell other property, and manage or close a bank account. Stipulations in the power of attorney can act like a “living will,” spelling out exactly what should be done with assets left behind in the event that the signer is detained or deported.
2. A temporary guardianship: a formal agreement that can be prepared ahead of time and filed with a court if deportation occurs. It gives the caregiver full authority to make decisions as though they were the parent including what school the child attends or what vaccinations are given. Depending on the situation, guardianship can be binding until the child's 18th birthday.
In addition, planning for family reunification abroad, will require for the U.S. born children to have a valid passport. Thus, it may be a good idea to apply for U.S. passport for all U.S. born children, and depending on the country of citizenship of the parents, to apply for dual citizenship while the undocumented parents are present in the U.S. If the children have to be reunited with the parents abroad, they will likely need a visa, or proof of citizenship of the country of destination.
As stressful and terrifying it might be to even fathom this idea, if you are an undocumented immigrant with U.S. children, or assets in this country this is the time to make a plan and discuss it with your children and possible caretaker to minimize the possible terrible consequences of leaving it to fate!
For more information, contact us at Schonberg & Timerman, PL.
After almost one year of being current, the August Visa Bulletin imposed a priority date for the Employment Based Second (EB-2) category of 4/01/2015.
EB-2 allows members of a profession holding advance degree or persons of exceptional ability to apply for their green card. This category became oversubscribed due to the high demand of adjustment of status applications sent to USCIS.
The Department of State predicts that the category will be current once again in October, when the 2018 fiscal year begins.
A new bill introduced in the senate this August and endorsed by President Trump wants to create a point system based on factors such as English ability, education levels and job skills to rank applicants for the 140,000 employment-based green cards distributed annually.
In addition, the bill proposes a 50,000 annual cap for refugee admissions and the termination of the visa diversity lottery which awards 50,000 green cards a year.
On April 5, 2017, the United States Citizenship and Immigration Services (USCIS) published a document titled “Special Instructions for B-1/B-2 Visitors Who Want to Enroll in School”. The document presents important changes and is a must read for anyone who intends to study in the United States.
STUDY NOT PERMITTED ON B1 OR B2 STATUS
The USCIS explains that under 8 C.F.R. 214.2(b)(7), study in the United States is prohibited while on B1 or B2 status. Although this is not new, this a good reminder to so many immigrants who just pack their bags and arrive in the U.S. with the intention to study, but lacking the proper visa. In order for a B visitor to study in the United States, he or she must acquire either F1 or M1 student status. Studying while in the United States on B1 or B2 status will constitute a violation of status which could have many negative consequences including rendering the B visitor ineligible to extend B status or to change status to F1 or M1.
OBTAINING F1 OR M1 STATUS AS A B VISTOR
If you came to the U.S. as a tourist, and your intentions changed once being here, as a B2 visitor you may apply to change to F1 or M1 student status under the following circumstances:
So far, this is business as usual. Now, the following piece of information is the one you MUST read, review and keep in mind! While a change of status application is pending, a B visitor will be required to maintain his or her B status. Under the following circumstances, a B visitor with a pending change of status application must file a separate Form I-539 with a separate fee to request an extension of B1 or B2 status:
The B visitor's status will expire more than 30 days before the initial F1 or M1 program start date. Then USCIS may only approve the Form I-539 change of status request if the B visitor is maintaining his or her B1 or B2 status up to 30 days before the F1 or M1 program start date. If a necessary extension request is not filed on time, the USCIS will deny the Form I-539 change of status request. The USCIS advises that B visitors consult the processing times to determine if an extension of status application will be necessary.
The F1 or M1 program start date is deferred to the following academic term or semester because the USCIS did not render a final decision on the change of status application in before the original F1 or M1 program start date. In such event, the B visitor may need to file a second Form I-539 requesting an extension of B1 or B2 status in order to bridge the gap between the expiration of B status and the 30-day period before the F1 program start date.
The USCIS makes clear that if a B visitor enrolls in a course of study before a change of status application to F1 or M1 status is approved, the change of status application will be denied. An application for an extension of B1 or B2 status would also be denied.
Thus, before you start packing your bags to come to the U.S. with the idea of perhaps enrolling in school once you are here, you may want to apply for an F1 or M1 visa at a U.S. consulate abroad before you travel. The USCIS encourages prospective students to work with their designated school official (DSO) for guidance.
If you are considering the possibility of studying in the U.S., we suggest to schedule an appointment to discuss your plans with an experience attorney BEFORE arriving in the U.S.
For more information, contact us at Schonberg & Timerman, PL.
About the Authors
Laura Schonberg and Andrea Timerman developed their passion for immigration law through their own experience immigrating to the United States. Laura received a Bachelor of Arts in Political Science and Juris Doctor Degree from Florida International University. Andrea received a Bachelors in Business Administration from Pace University, NY, and her Juris Doctor Degree from Florida International University. Both attorneys obtained ample experience in the immigration field before partnering to work as immigration attorneys at Schonberg & Timerman, P.L.