All posts by Cheng, Cho, & Yee, Immigration Lawyers

With Donald Trump assuming office under a new Republican regime, immigrants without lawful status around the country are concerned about their futures. Many of these individuals are students who have spent the last several years developing skills and increasing knowledge to become productive members of society.

Individuals without lawful status face dangerous consequences, including the potential to be forcefully removed from the country or to face years behind bars if they are caught returning to the country. Even immigrants who had received some type of legal immigration status such as through an employment visa or family-based petition are concerned about their status. Knowing their rights and potential ways to protect their immigration status is important. An immigration lawyer can assess each individual case to determine the possible

Sanctuary

In some locales like the Harvard Memorial Church, community members set up sanctuary. This is a loose term that can mean any location where immigration enforcement officers are prevented from entering or requiring such officials to have a warrant before entering. Knowing of a nearby sanctuary may help buy some time for a student immigrant who is being pursued by immigration officials.

Deferred Action for Childhood Arrivals

Under President Obama’s immigration policies, thousands of young immigrants were provided with temporary legal protections under the Deferred Action for Childhood Arrival program. This program sought to provide a Social Security number and work permission to young people who immigrated to the United States while they were young. However, this program may be in jeopardy under the new regime.

Constitutional Rights

Everyone in the United States has constitutional protections. These protections include the right to remain silent if questioned by police and the right to consult an immigration lawyer or criminal defense lawyer. Additionally, undocumented immigrants may refuse entry to an immigration official until provided with a signed warrant.

Affirmative Immigration Options

Immigrants who have a valid basis to immigrate, such as being married or engaged to an American citizen or who are highly-skilled in a particular area may be able to petition for legal immigration status. An immigration lawyer can explain what options may be available, based on the particular circumstances of a case.

Defensive Immigration Options

Even if an undocumented student is apprehended, he or she may still have a number of defensive immigration options available. For example, the immigrant may be able to request a stay of removal. An immigration lawyer can provide further guidance.

Against a backdrop of President-elect Trump’s repeated talks about tightening immigration rules, two California Congressmen, Representatives Darrell Issa and Scott Peters have co-authored a bill that would harm small businesses by raising salary exemption amounts for highly skilled foreign workers from $60,000 to $100,000. The bill, called the Protect and Grow American Jobs Act, would limit a business’s ability to obtain an H-1B visa for a foreign worker unless the worker’s salary was at least $100,000 or more. Currently, the salary requirement is $60,000. If the bill passes, companies may be forced to concentrate in areas in which the prevailing wage is greater than $100,000.

The Protect and Grow American Jobs Act

According to USA Today, the act is meant to close a loophole that exists in the H-1B visa immigration law. Under current law, businesses may apply for H-1B visas for highly skilled workers whose salaries would be at least $60,000. There is an exemption for foreign workers who have Masters’ degrees. Issa and Peters wrote the pending legislation in response to a move by Southern California Edison to lay off its American workforce while replacing the workers with foreign workers who were paid less.

Under the proposed law, businesses would have to pay salaries of at least $100,000 to foreign workers under the H-1B visa program. The current exemption for workers with Masters’ degrees or higher would be eliminated.

Potential Harms to Small Businesses

The probable effect of the bill would be to make businesses that already take advantage of the loophole to simply concentrate in areas in which the prevailing wages for highly skilled positions is greater than $100,000. If they did so, then they could still replace American workers with foreign workers at cheaper salaries. For small businesses that rely on highly skilled foreign workers, the law could cause significant harm. Especially in the science, technology, engineering and mathematics fields, there are often not enough American workers who have the credentials needed to fill open positions. Small technology, engineering and biotech companies could have problems with finding Americans to fill their positions while also being unable to afford to pay the $100,000 salaries that would be required with the proposed restrictions.

A Chicago immigration lawyer may work to help his or her clients with submitting their petitions for H-1B visas. He or she may also advise his or her clients about legal changes that may impact the program.

A recent Supreme Court vote halted the expansion of the Deferred Action for Childhood Arrivals Program, which would defer deportation for more than four million immigrants. Many of the 280,000 immigrants who reside in Illinois have contacted an immigration attorney about the impact of the vote.

The Deferred Action for Childhood Arrivals Program

President Obama’s policy that calls for deferred deportation actions was established in 2012. It would allow deferred action for undocumented children who came to the United States. Deferred Action for Childhood Arrivals (DACA) applications started in August 2012.

The U.S. Supreme Court reached a split decision on President Obama’s executive orders under the DACA. Many state governors challenged the President’s orders, and the Supreme Court reached a 4-4 split decision. This program would have deferred deportation for more than four million immigrants. Due to the Supreme Court’s vote to halt expansion of the program, millions of immigrants could face deportation in upcoming years. Undocumented Illinois residents who are impacted by this decision are checking the status of their existing applications with an immigration attorney.

DACA Eligibility

According to Department of Homeland Security regulations, eligible candidates must request deferred action for childhood arrivals within a two-year period. Eligible candidates must meet the following requirements:

• Arrived in the U.S. before the age of 16

• At least 15 years old to apply and under age 31 on June 15, 2012. If an applicant is 31 years of age or older as of June 15, 2012, they are not eligible for DACA.
• Lawful visa status expired before June 15, 2012, or entered the U.S. without inspection
• Lived in the U.S. from June 15, 2007 to the present
• Present in the U.S. at the time of the DACA application
• Currently enrolled in school, or a high school graduate, or obtained a GED, or have been honorably discharged from the armed forces or the Coast Guard

In addition to the above requirements, Homeland Security requires that all candidates must have never been convicted of a major misdemeanor or a felony offense, and do not pose a threat to public safety or national security.

DACA applications are free, but fees total approximately $465. Fee waivers are not allowed for deferred applications, but an immigration attorney can explain fee exemptions for applicants who are disabled, in foster care, or have incomes below 150 percent of the poverty level.

USCIS has announced higher filing fees for K1 Fiance Visas beginning December 23, 2016. An immigration lawyer can explain fee increases and their impact on Illinois applicants who want to file for K1 Visas.

New K1 Fiance Visa Fees

Beginning December 23, 2016, individuals who want to file for K1 Fiance Visas will be required to pay higher filing fees:

• I-129 Petition for Alien Fiance will increase from $340 to $535
• I-130 Petition for Alien Relative will increase from $420 to $535

All applications that are postmarked or filed on or after December 23, 2016 will incur higher fees. Previous lower fees can only be accepted if applications are postmarked by December 22 or earlier. If new fees are not paid, USCIS will reject all benefit requests for nonpayment. There will no longer be a 14-day grace period to correct failed fee payments through an immigration lawyer.

Reduced Fee Options

Along with higher filing fees for K1 Fiance Visas, USCIS is introducing a reduced fee option for certain low-income naturalization applicants who don’t qualify for fee waivers. Individuals who wish to request a reduced filing fee should file Form N-400, Application for Naturalization, if their documented, annual household income is greater than 150 percent, but less than 200 percent of the Federal Poverty Guidelines at the time of filing. Filers must submit the reduced fee of $320 and a biometrics fee of $85 with the I-942 application for reduced fees. Applicants should note that a reduced fee is not the same as a fee waiver. An immigration lawyer can answer questions about eligibility requirements, fees, and necessary forms required for fee waivers.

Eligibility Requirements for K1 Fiance Visas

To be eligible for a K1 Fiance Visa, the law requires:

• A foreign citizen must intend to marry a U.S. citizen. The U.S. government will require proof of an upcoming marriage, such as the date and place of the wedding, even if the ceremony is performed by a judge.
• Parties must show proof that they are legally able to marry. If one spouse is under the age of 18, the visa may be denied. If one spouse has been previously married, there must be proof that the marriage legally ended by divorce, annulment or death.
• To prevent sham marriages, U.S. immigration law requires that K1 Fiance Visa applicants must have met their intended spouse in person within the two years preceding the date of the initial filing.

The changes proposed to the exempt category of the H-1B visa early in 2017 will disproportionately affect Chicago-based information technology companies and tech startups more than others.

A key provision of the proposed bill is the raising of the minimum salary for temporary workers to $100,000. The increase in minimum salary can potentially disqualify tens of thousands of foreign IT and tech personnel in the country.

How H-1B Visas Currently Work in Brief

The H-1B non-immigrant visa allows US employers to hire graduate level workers with a technical specialization. It helps employers to hire specialists without going through many of the extra steps required for other visas. The government caps these visas at 85,000 per year.

Specialists can stay in the country for 3 to 6 years. While here, H-1B workers can also work with a Chicago immigration lawyer who can help them apply for a green card. This makes H-1B workers ideal for many companies that can then hire them on permanently.

Specialists from India Receive the Greatest Percentage of the H-1B Visas

Outsourcing firms, most of which are Indian, place technical specialists with small and major American companies. Year after year, India accounts for over 60% of the issued H-1B visas. American tech companies hire these specialists with the current minimum salary of $60,000.

Increasing that minimum destroys one of the factors that made these specialists attractive to American companies to begin with. In addition, it will put a strain on the Indian IT industry that outsources specialists.

Many smaller American tech and IT businesses in Chicago hire a large amount of H-1B workers. A drastic increase in minimum pay would effectively put those companies out of business, or at least force them to make some very hard choices. Tech startups, which also employ many H-1B workers, would lose out on affordable skilled labor and innovators.