ICE ANNOUNCES STANDARDIZED 287(g) AGREEMENTS WITH 67 STATE AND

LOCAL LAW ENFORCEMENT PARTNERS

WASHINGTON—Assistant Secretary for U.S. Immigration and Customs Enforcement (ICE)

John Morton today announced standardized Memorandums of Agreement (MOAs) with 67 state

and local law enforcement agencies to participate in 287(g) partnerships—improving public

safety by prioritizing criminal aliens who are a threat to local communities, ensuring consistent

and uniform policies and providing a force multiplier for ICE’s immigration enforcement efforts

across the country.

“Coordinating with our state and local partners is important to smart and effective enforcement

of our immigration laws,” said Department of Homeland Security Secretary Janet Napolitano.

“These new agreements promote public safety by prioritizing the identification and removal of

dangerous criminal aliens and ensure consistency and stronger federal oversight of state and

local immigration law enforcement efforts across the nation. The rules set forth in these

agreements will enhance our efforts to work together effectively with our local partners.”

“These new partnerships are an essential tool for law enforcement to identify and remove

dangerous criminal aliens from local communities,” said Assistant Secretary Morton.

“Standardizing these agreements allows us to better use the resources and capabilities of our law enforcement partners, facilitates accountability and ensures that all participating jurisdictions are following uniform standards throughout the country.”

The state and local law enforcement partnerships announced today conform to the standardized

287(g) MOA announced by Secretary Janet Napolitano and Assistant Secretary Morton in July—

strengthening ICE’s overall immigration enforcement strategy by aligning local operations with

ICE’s major priorities, specifically the identification and removal of criminal aliens.

The 287(g) program acts as a force multiplier, training officers from local jurisdictions to carry

out smart, effective immigration enforcement efforts aligned with ICE priorities. Throughout the

country, 1,075 local officers have been trained through 287(g)—bolstering national immigration

enforcement efforts and saving hundreds of millions of dollars.

From January 2009 to date, 287(g)-trained local officers are credited with the removal of

approximately 24,000 aliens nationwide and have identified 48 percent more criminal aliens than during the same period in 2008. The new partnerships include the Jail Model, in which local law enforcement agencies designate Jail Enforcement Officers to identify aliens already incarcerated within their detention facilities who are eligible for removal, as well as the Federal Task Force Model, in which agencies designate officers to work with Federal agents in locating, processing and removing criminal aliens from the United States.

The agreements announced today fall into four categories:

   55 agreements have been signed by ICE and the partnering agency;

   12 agreements have been reached and await approval by the local jurisdiction’s

        supervisory authority; and

   Six agreements have negotiations underway.

   Six jurisdictions did not re-sign the new 287(g) agreement or withdrew during negotiations for a variety of reasons, including implementation of the Secure Communities program, budgetary constraints and limited program utilization.

The new MOA clearly defines the objectives of the 287(g) program, outlines the immigration

enforcement authorities granted by the agreement and provides guidelines for ICE’s supervision

of local agency officer operations—including information reporting and tracking, complaint

procedures, and implementation measures.

To address concerns that individuals may be arrested for minor offenses as a guise to initiate

removal proceedings, the new agreement requires participating local law enforcement agencies

to pursue all criminal charges that originally caused the offender to be taken into custody.

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) of 1996 added

Section 287(g) to the Immigration and Nationality Act, which authorizes the DHS Secretary to

enter into agreements with state and local law enforcement agencies to perform immigration

officer functions. Pursuant to these agreements, designated officers who receive appropriate

training and function under the supervision of sworn ICE officers are permitted to perform

immigration law enforcement duties.

 Religious workers who filed I-360s and who filed I-485s that were denied or rejected, have until September 9th, 2009, to re-file their I-485s.

For more information:

immigrationlaw@mac.com

Effective July 1, 2009, all Visa Waiver Program (VWP) emergency or temporary passports must be electronic passports (e-Passports) to be eligible for travel to the United States under the VWP. This includes VWP applicants who present emergency or temporary passports to transit the United States. An e-Passport contains an integrated chip that stores biographic data, a digitized photograph, and other information about the true bearer.

As an alternative, apply for a nonimmigrant visa class “B1” or “B2” from the U.S. State Department.

U.S. Customs and Border Protection may exercise discretion at the ports of entry for cases in which VWP applicants are traveling for medical or other emergency reasons.

A VWP national arriving in the United States with a non-compliant passport, for other than emergency travel reasons, may be detained for further processing and/or denied admission.

Widespread layoffs and increasing unemployment have led to questions about unemployment benefits in the U.S. and the impact of these on one's immigration status. Immigrants often have a strong sense of hard work and self-reliance, and a reluctance to ask for anything that may appear to be a government handout. Many are from countries where unemployment benefits are an unheard of luxury, so there is no such expectation. For the benefit of readers, we address concerns about eligibility for such benefits, as well as whether receiving such benefits might create problems with one's immigration status in the United States. 

Unemployment Benefits : What are They?

Unemployment benefits, essentially, are an insurance benefit for certain workers who are unemployed through no fault of their own. These programs are run by each respective state; each establishing its own requirements, based on federal guidelines. With limited exception, the money for these benefits comes from required payments made by employers. Benefits generally require employment for a minimum amount of time and/or a set earnings level. They also require that the employment has been lost through no fault of the worker. Thus, a worker who is fired for cause or who voluntarily leaves a job generally is ineligible. More information is available on the U.S. Department of Labor (DOL) WebSite. The appropriate state offices and contact information is also available.

Overview of Immigration Status and Employment Eligibility

The state laws related to immigration status and unemployment benefits must comply with federal requirements. Information (PDF 37KB) on these requirements is available through the DOL. As explained by the DOL, it is necessary that the foreign national had permission to work during the time of his/her employment, and that s/he is able and available for employment at the time the request for benefits is filed.

For Bulletin readers, it is the last part of this requirement that is at issue. Specific state requirements should be checked in each situation. For U.S. permanent residents (commonly referred to as "green card" holders) and others who can work without employer sponsorship, this requirement should not present a problem. For those in categories in which employer sponsorship is necessary to authorize employment (H1Bs, for example), the state authorizing benefits is likely to view this as a hindrance to the applicant's availability for immediate employment. Additionally, these individuals generally would be out of status after a job loss, absent a change in status or other legal basis for remaining in the United States.

Public Charge Provisions and Immigration Status

There are situations in which financial difficulties can impact immigration status. The relevant provisions in immigration law concern public charge issues. As readers of  and the Bulletin are aware from our January 30, 2009 article, 2009 Poverty Guidelines Released, the USCIS may deny applications for permanent residency if they determine that the applicant is likely to become a public charge.

H1B/H-4 and Other NIVs Can Be Denied Admission for Public Charge Reasons

Sometimes dependent family members applying for the H-4 or the F-2 are denied the visa on the grounds that the principal in H1B or F-1 status is not earning sufficiently to support him/herself and the family. Individuals determined by the U.S. Citizenship and Immigration Services (USCIS) to likely become public charges are inadmissible to the United States and, thus, also are not eligible to enter or adjust status to permanent residence.

Removal for Public Charge Reasons

Persons may be removed (deported) if they have become public charges within five years of entry to the United States. However, this can only occur if the cause of their financial condition existed before their entry to the U.S. The USCIS is not to view the use of public programs, including federal means-tested public benefits, as the single ground for the public charge determination. Case law requires that, in order to be removed under the public charge provisions, a foreign national must receive state or other government benefits for which there is a fee. The government must seek repayment from the foreign national and/or the sponsor, and there must be a failure to pay the government.

Unemployment Recipients Not Public Charges, Per Se

Unemployment benefits generally should not give rise to problems under the public charge removability provisions. As explained above, unemployment benefits are an insurance benefit, with the costs borne by employers. Employers are required to pay into their state programs. Thus, these benefits are not means-tested public benefits provided by the government, based on financial need. There is no financial assessment for eligibility; it is simply based upon meeting the state requirements for holding and losing employment through no fault of one's own. Under the removability provisions, as stated above, in order to be determined to be a public charge, there must be a government charge for a service, a demand for payment, and a failure to pay. Unemployment benefits do not fit into this model as there is no requirement for repayment.

For adjustment of status, the fact that one was eligible for unemployment does not necessarily lead to the likely conclusion that s/he will need public benefits in the future. Periods of unemployment do raise issues for the primary beneficiary in an employment-based permanent residence case, as this is based upon a future job offer. However, it is entirely possible that a person with an Employment Authorization Document (EAD) could be eligible for unemployment benefits at some point during case processing, but also eligible for approval of the adjustment of status to permanent residence, based upon an alternative job offer under the AC21 portability provisions. This is not an ideal situation, however, and should be discussed with an immigration attorney.

Spouse on EAD Safer to Enjoy Unemployment Benefits

A somewhat better situation would involve, for example, an individual with an EAD as a derivative spouse. This individual might become eligible for unemployment benefits, and would not be a public charge risk if the primary spouse was earning sufficient income to assuage any governmental concerns.

Current Economy and Likelihood of Public Charge

Given the current high rate of unemployment in the United States, it is possible that the USCIS could start examining the public charge admissibility requirements more closely. Arguably, the fact that one worked for a period sufficient to make him/her eligible for unemployment benefits actually makes it less likely that s/he will become a public charge. These benefits are granted based upon holding employment for a sufficient amount of time, and are designed to help individuals sustain themselves until they locate new employment.

In case this becomes a larger issue, individuals should be prepared to show sufficient personal or household earnings histories to prove that they are not likely to become public charges. It could also be helpful to show other financial resources that could be accessed, if needed. Public charge admissibility considerations are supposed to be big-picture considerations as to whether, overall, it is likely that a person is going to need help from the government. Financially, as well as from an immigration point of view, it may be better to take the unemployment funds and preserve one's savings. This way, if any questions arise, it can be argued that there are sufficient savings to avoid public charge concerns in the future.

Taking Unemployment Benefits - Not a Problem for Citizenship

There are often concerns regarding whether acceptance of unemployment benefits will create problems in one's naturalization (citizenship) case. The required forms carry no questions on this matter. The financial concerns that can create problems in naturalization cases are nonsupport of dependants and nonpayment of taxes. Neither of these issues is related to acceptance of unemployment benefits.

It is necessary to provide tax returns in connection with the naturalization interview. These will reflect any unemployment benefit payments. This normally should not create a problem. If a job was lost shortly after receiving an employment-based green card, questions could be raised. It is the termination of the job through which one obtained the green card that may be an issue, however; not the receipt of unemployment benefits.

Other Issues : Taxes and Benefit Levels

Recipients of unemployment benefits need to be aware that this money generally is taxable as income. It is also important to know that the benefits amount is only a fraction of one's lost income, both in terms of salary and duration. For many, the benefits are far below their regular earnings levels. For example, in Maryland the current maximum payment is $380 per week, which is often far below the salaries most professionals on H1B would take home.

Conclusion

No one wants to be in the position of having to request unemployment benefits. Immigration concerns should not stand in the way of accepting these benefits for most eligible individuals, however. Foreign nationals in nonimmigrant statuses generally are not eligible, since unemployment means that such individuals would be failing to maintain valid nonimmigrant status. Those in other legal, work-authorized statuses may qualify for these benefits. Questions regarding any potential impact on immigration status, when applying for unemployment benefits, should be discussed with a qualified, experienced immigration attorney

California Service Center (CSC) views and clarifications on various immigration matters and procedures were provided to American Immigration Lawyers Association (AILA) on January 28, 2009. This summary of the highlights of that report, including the 30-day timeline to respond to Requests for Evidence (RFEs), transfer of I-130s from the Vermont Service Center (VSC) to the CSC, and unusual RFEs on L-1 petitions are summarized here for our readers.

Deadlines for Responses to RFEs

A question was asked with regard to the deadlines set for RFE responses. The regulations for RFE responses were altered in 2007 to allow for flexible deadlines. The USCIS published guidelines on this topic on June 1, 2007. More information can be found in our June 22, 2007 article, USCIS Clarification on Response Time for RFEs/NOIDs. The guidelines set a 30-day response time when initial evidence is missing and for I-539 change and/or extension-of-status requests. (Initial evidence for each type of case is established separately, by regulation.) However, there were reported concerns over RFEs that only allowed 30 days when the evidence requested did not fit within the "initial evidence" category. The CSC was asked how one should obtain the adequate response time in these situations.

The CSC responded that adjudicators are trained to follow the guidelines on RFEs set forth in the June 1, 2007 USCIS memorandum issued by Donald Neufeld. It was explained that it is standard practice, in keeping with the memorandum, to allow 42 days for a response not involving initial evidence. However, it was also stated - without elaboration - that there are instances when only 30 days might be permitted, even when requesting additional, rather than initial, evidence.

VSC Transfers to CSC : I-130s and I-539s

CSC confirmed that approximately 60,000 Immediate Relative (I-130) petitions were transferred from the VSC. Initial shipments took place at the end of 2008, with the final shipment of 20,000 petitions arriving at the end of January 2009. For the upcoming two months (February and March 2009), all new I-130 petitions will be directed from the USCIS lockbox to the CSC for adjudication. This initial two-month period may be extended.

RFEs on L Petitions

AILA reported strange RFEs on L petitions requesting evidence of how the U.S. entity functioned without the L beneficiary and how the foreign parent company would continue to function without this employee. The CSC confirmed that these requests are not relevant to the adjudication of an L petition and that adjudicators have been instructed to limit RFEs to subjects related to the adjudication of the petition.

Conclusion

We appreciate the information provided by the CSC. readers will be updated on any important changes to policies and procedures at the USCIS service centers.

International Medical Graduates (IMGs), who are completing their graduate medical training in the H1B classification, and who seek to undertake employment with U.S. employers in H1B classification, must be mindful of the applicability of the H1B numerical cap. When moving from a cap-exempt H1B to cap-subject employment, there must be an H1B cap number available. This is a complication faced by those IMGs moving from H1Bs issued through university-affiliated hospitals, to private medical practices or other cap-subject employment. This is not an issue for former J-1 physicians who have obtained waivers to work in underserved areas, since they are cap exempt.

H1B Cap Applicability for IMGs

As regular readers of  Bulletin well aware, the law limits the number of H1Bs each year to 65,000. An additional 20,000 cap exemptions are available for those foreign nationals who hold U.S. masters' degrees or higher. These limits have not been sufficient to meet demand in recent years, and have resulted in an annual lottery to select the cases that will receive one of the coveted cap numbers or advanced-degree exemption H1Bs. Most IMGs do not qualify for the advanced-degree exemptions, as they do not hold U.S. masters' degrees or above. Thus, they typically fit within the general cap.

In most cases, IMGs completing their training in H1B classification are employed by institutions exempt from the H1B numerical cap, normally as nonprofit hospitals affiliated with institutions of higher education. As such, they have never been counted against the H1B cap. This is problematic for IMGs because a cap number must be available in order for an H1B holder who has not been counted against the H1B cap previously to move to cap-subject employment.

Cap-Exempt H1B Based on Employment "at" Exempt Institution

One solution to this problem is known as the "at" exemption. H1Bs are cap exempt in many situations where the employment will take place AT a cap-exempt location, even if the employer is not cap exempt. The USCIS issued guidance on this matter in a June 6, 2006 memo, explained in our June 16, 2006 article, USCIS Guidance on H1B Cap Exemptions.

In many cases, IMGs receive offers of employment with medical practices that are cap-subject. However, under the law and as explained in the June 6, 2006 memo, the H1B petitions for such physicians are not cap subject if the duties of these positions occur at cap-exempt institutions. Since nonprofit hospitals affiliated with institutions of higher education are cap exempt, there are many such examples. According to the memo, the statute reflects a congressional intent to exempt foreign nationals who will perform employment that directly and predominantly furthers the essential purposes of these cap-exempt institutions where they will be providing their services.

The work does not have to be performed exclusively at the cap-exempt institution. One of the examples given in the memo references a situation in which 55 percent of the employment is performed at the cap-exempt institution. It is not clear exactly where the limit is with respect to the time spent at the cap-exempt institution. This is a matter that would have to be properly presented in any filing involving work at multiple locations, with emphasis on the nature of the work as furthering the purposes of the cap-exempt institution.

Concurrent Employment Could Provide H1B-Cap Exemption

An additional pathway to cap exemption is possible for IMGs who would like to work for employers who are not H1B-cap exempt, but are able to maintain concurrent employment with their cap-exempt employers. The law provides for an avenue whereby the individuals maintaining H1B employment with cap-exempt employers may also hold concurrent H1B employment with cap-subject employers, without having to be counted against the cap. This was discussed in our July 11, 2008 article, Neufeld Memo of USCIS on H1B/GC Under AC21: Part 2. IMG beneficiaries must maintain employment with cap-exempt employers in order to use this provision.

This avenue is particularly valuable to those IMGs who can benefit from joint appointments with medical schools, hospitals affiliated with medical schools, or other cap-exempt employers on full-time or part-time bases, while concurrently being employed by the cap-subject employers.

Conclusion

The H1B cap is a major hurdle many employers and foreign nationals, including IMGs, contend with every year. This will continue unless Congress increases the number of H1Bs available to U.S. employers. Fortunately, the law provides some avenues that potentially can smooth the road for qualifying IMGs.