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Can An Injured Worker May be Eligible for a U-Visa?

Injured Worker Immigration U-Visa    Injured Worker Immigration U-Visa   Injured Worker Immigration U-Visa

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Can An Injured Worker May be Eligible for a U-Visa?   Injured Worker Immigration U-Visa

By Nikki Mehrpoo Jacobson
Certified Legal Specialist in Workers’ Compensation Law
by the State Bar of California Board of Legal Specialization   Injured Worker Immigration U-Visa

Can An Injured Worker May be Eligible for a U-Visa? AN INJURED WORKER MAY BE ELIGIBLE FOR LEGAL STATUS (U-VISA) IN THE UNITED STATES AND WCJs MAY HAVE AN INTEGRAL ROLE IN THE PROCESS**

(**Please note that this article is limited to the U Visa. Injured Workers may also be entitled to T Visa benefits)

The issue of “violent acts” and “catastrophic injuries” have been a hot topic of discussion ever since LC 4600.1 came into effect. Essentially, WPI increases are barred for injured workers claiming psych injuries that are compensable consequences of orthopedic injuries. However, if an exception applies, such as a “violent act” or a “catastrophic injury,” the injured worker will be able to obtain an increase in WPI, as well as medical treatment and temporary disability benefits.   Injured Worker Immigration U-Visa    Injured Worker Immigration U-Visa

Regardless of whether the applicant is eligible for WPI increases or not, what is not as well-known is that undocumented injured workers can file for legal status (U Visa) in the United States as a result of workplace related criminal activity or violence. The crime or violence does not have to be a violation of the penal code but a violation of administrative rules and regulations. This visa was specifically created to benefit victims of criminal activity or violence, including victims injured on the job. Congress has concluded that the U visa “will strengthen the ability of law enforcement agencies to detect, investigate, and prosecute [crimes] committed against aliens, while offering protection to victims of such offense in keeping with the humanitarian interests of the United States.” Pub. L. No. 106-386, Div. B, Title V, § 1513(a)(1)(A)-(B), Oct. 28, 2000, 114 Stat. §1513(a)(2)(A) (emphasis added)

There are situations where an undocumented worker has been violently injured, victim of a crime or sexual harassment at the workplace. Unfortunately, it is common for these injured workers to refuse to file a claim when this happens, for fear they may lose their jobs, or worse, lose their families and be subject to the wrath of immigration agencies and be deported.

It is important for these injured workers to know that they are eligible to pursue benefits in both the workers’ compensation and immigration systems.

An injured worker may be eligible for a U visa by submitting a certification by a certification entity (Judges [civil, criminal, administrative judges], local law enforcement agencies, any other civil, criminal or administrative authority involved with criminal activities or civil/administrative violations, including, Department of Industrial Relations and labor code violations) that verifies that she was a victim of the criminal activity or violence and is willing , or is likely to be helpful in the investigation or prosecution of the crime committed against her. See INA § 101(a)(15)(U)(i)(III), 8 U.S.C. § 1101(a)(15)(U)(i)(III). It is crucial to note that a victim may request and receive certification despite lack of a current investigation, the filing of charges, a prosecution or a conviction.

In addition, by signing the I-918 Supplement B certification, a Workers’ Compensation judge is not granting the injured worker a visa to reside legally in the United States. To the contrary, only U.S. Citizenship and Immigration Services (“USCIS”) is authorized to issue U visas. The I-918 Supplement B certification is submitted with the U visa application and other supporting documentation to CIS for its review and ultimate determination. In addition to the certification, the victim must also satisfy USCIS that she has satisfied the requirement that she was, is, or is likely to be helpful in the investigation or prosecution of a crime.   Injured Worker Immigration U-Visa

In order for USCIS to determine if an injured worker is eligible for a U visa because he/she meets the following requirements in addition to the required certification:

  1. is a victim of one of the enumerated crimes or similar activity, includes attempt, conspiracy, or solicitation to commit any of the enumerated crimes.
  2. possesses information concerning the criminal activity.
  3. was, is, or is likely to be helpful in the investigation or prosecution of the crimes against her.
  4. has suffered substantial physical or mental abuse as a result of the crimes.

The enumerated crimes include the following:

  • Abduction
  • Abusive Sexual Contact
  • Blackmail
  • Domestic Violence
  • Extortion
  • False Imprisonment
  • Female Genital Mutilation
  • Felonious Assault
  • Fraud in Foreign Labor Contractin
  • Hostage
  • Incest
  • Involuntary Servitude
  • Kidnapping
  • Manslaughter
  • Murder
  • Obstruction of Justice
  • Peonage
  • Perjury
  • Prostitution
  • Rape
  • Sexual Assault
  • Sexual Exploitation
  • Slave Trade
  • Stalking
  • Torture
  • Trafficking
  • Witness Tampering
  • Unlawful Criminal Restraint
  • Other Related Crimes*†

*Includes any similar activity where the elements of the crime are substantially similar.
†Also includes attempt, conspiracy, or solicitation to commit any of the above and other related crimes.

Not all WCJs are aware of this process, and may be reluctant to certify the request which is essential for the U-Visa application. Therefore, attorneys should carefully review the procedure for doing so:

  1. File a DOR for a status conference
  2. Alert opposing counsel as to the reason for the conference
  3. Present a mini brief at the conference explaining to the WCJ why they have authority to sign off on this certification.
  4. Prepare the certification form for the WCJ to sign.

COMMON WORKPLACE CRIMINAL ACTIVITIES:

The following are examples of common workplace criminal activities by the employer, coworkers, clients, customers or agents of the employer which can make the injured worker eligible for U Visa certification:

  • Injured worker filed a claim and/or testified about abuse or sexual assault in a court case, including WCAB and employment cases. Potential questions posed to the applicant: Did your employer post posters, drawings, pictures of a sexual nature? Did your employer make comments about clothing/appearance or make sexual jokes or comments? Look at you in a sexual manner? Did your employer ask for sexual favors, ask you to have sex with him/her, spread rumors? Did your employer touch you inappropriately? Force you to have unwanted sex?
  • A housekeeper who has been physically or mentally abused by her employer and/or deprived of her liberty by having her ID or Passport confiscated.
  • Did employer or coworker threaten violence? Did employer or coworker threaten to report applicant’s immigration status?
  • Obstruction of Justice: Attempts to influence, obstruct, or impede ANY pending proceeding through use of threats or force; Destruction, alteration, or falsification of records, including wage/hour records, birth certificates.
  • Witness Tampering: Did an employer ever intimidate or threaten applicant to delay or prevent testimony in any “official proceeding”; Alter, destroy, conceal records? Hinder, delay, or prevent communication to authorities; Threaten to damage property or cause bodily harm to delay or prevent witness participation?

LEGAL AUTHORITY & RESOURCES

  1. The application process and appropriate forms can be found USCIS website at www.uscis.gov.
  2. Judicial Council of California: Expert Guidance on Responding to U Visa and T Visa Certification Requests http://www.courts.ca.gov/documents/BTB24-PreCon1E-01.pdf
  3. New California Law on Certifications PC 679.10 U Visa Certifications – Effective January 1, 2016 https://www.ilrc.org/new-california-law-ensures-all-immigrant-crime-victims-california-can-access-u-visa

If you have further questions or inquiries about important immigration and workers’ compensation crossover issues, feel free to contact the author Nikki Mehrpoo Jacobson via email at N.Jacobson@rkmlaw.net

© 2018 by Nikki Mehrpoo Jacobson. All rights reserved

 

 

 

 

 

Nikki Jacobson, Attorney at Law
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Denaturalization Under the Trump Administration

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DenaturalizationNikki Jacobson   Los Angeles Immigration Attorney   Rose, Klein & Marias LLP

Justice Department Secures First Denaturalization As a Result of Operation Janus

On January 5, Judge Stanley R. Chesler of the U.S. District Court for the District of New Jersey entered an order revoking the naturalized U.S. citizenship of Baljinder Singh aka Davinder Singh, and canceling his Certificate of Naturalization, the Justice Department announced.

Following Judge Chesler’s order, Singh’s immigration status reverted from naturalized citizen to lawful permanent resident, rendering him potentially subject to removal proceedings at the Department of Homeland Security’s discretion.

Singh’s denaturalization is the first arising out of a growing body of cases referred to the Department of Justice by United States Citizenship and Immigration Services (USCIS) as part of Operation Janus. The action against Singh was filed contemporaneously with two other Operation Janus cases, as announced by the Justice Department on Sept. 19, 2017.

A Department of Homeland Security initiative, Operation Janus, identified about 315,000 cases where some fingerprint data was missing from the centralized digital fingerprint repository. Among those cases, some may have sought to circumvent criminal record and other background checks in the naturalization process. These cases are the result of an ongoing collaboration between the two departments to investigate and seek denaturalization proceedings against those who obtained citizenship unlawfully.

“The defendant exploited our immigration system and unlawfully secured the ultimate immigration benefit of naturalization, which undermines both the nation’s security and our lawful immigration system,” said Acting Assistant Attorney General Chad Readler of the Justice Department’s Civil Division. “The Justice Department will continue to use every tool to protect the integrity of our nation’s immigration system, including the use of civil denaturalization.”

USCIS dedicated a team to review these Operation Janus cases, and the agency has stated its intention to refer approximately an additional 1,600 for prosecution.

“We appreciate the dedication of our Justice Department partners as we work together to ensure the integrity of our nation’s legal immigration system,” said USCIS Director L. Francis Cissna. “I hope this case, and those to follow, send a loud message that attempting to fraudulently obtain U.S. citizenship will not be tolerated. Our nation’s citizens deserve nothing less.”

Baljinder Singh aka Davinder Singh, 43, a native of India, arrived at San Francisco International Airport on Sept. 25, 1991, without any travel documents or proof of identity. He claimed his name was Davinder Singh. He was placed in exclusion proceedings, but failed to appear for his immigration court hearing and was ordered excluded and deported on Jan. 7, 1992. Four weeks later, on Feb. 6, 1992, he filed an asylum application under the name Baljinder Singh. He claimed to be an Indian who entered the United States without inspection. Singh abandoned that application after he married a U.S. citizen, who filed a visa petition on his behalf. Singh naturalized under the name Baljinder Singh on July 28, 2006. Singh has been residing in Carteret, New Jersey.

This case was investigated by USCIS and the Civil Division’s Office of Immigration Litigation, District Court Section (OIL-DCS). The case was prosecuted by Counsel for National Security Aaron Petty of OIL-DCS’s National Security and Affirmative Litigation Unit, with support from Deputy Chief Patrice Rodman of USCIS’s Office of the Chief Counsel, Northeast Law Division and Immigration Services Officer Caroline D’Angelo of USCIS’s Field Operations Directorate.

 

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Nikki Jacobson
Los Angeles Immigration Attorney
Rose, Klein & Marias LLP

August 2017 Visa Bulletin – Visa Lawyer

Los Angeles Visa Lawyer

Visa Bulletin For August 2017

Los Angeles Visa Lawyer Visa Bulletin

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CHECK YOUR PRIORITY DATE NOW #AskNikki 

A. STATUTORY NUMBERS  Los Angeles Visa Lawyer

This bulletin summarizes the availability of immigrant numbers during August for: “Final Action Dates” and “Dates for Filing Applications,” indicating when immigrant visa applicants should be notified to assemble and submit required documentation to the National Visa Center.   Los Angeles Visa Lawyer   Los Angeles Visa Lawyer

Unless otherwise indicated on the U.S. Citizenship and Immigration Services (USCIS) website at www.uscis.gov/visabulletininfo, individuals seeking to file applications for adjustment of status with USCIS in the Department of Homeland Security must use the “Final Action Dates” charts below for determining when they can file such applications. When USCIS determines that there are more immigrant visas available for the fiscal year than there are known applicants for such visas, USCIS will state on its website that applicants may instead use the “Dates for Filing Visa Applications” charts in this Bulletin.  Los Angeles Visa Lawyer

1.  Procedures for determining dates. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; USCIS reports applicants for adjustment of status. Allocations in the charts below were made, to the extent possible, in chronological order of reported priority dates, for demand received by July 11th. If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed. The final action date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. If it becomes necessary during the monthly allocation process to retrogress a final action date, supplemental requests for numbers will be honored only if the priority date falls within the new final action date announced in this bulletin. If at any time an annual limit were reached, it would be necessary to immediately make the preference category “unavailable”, and no further requests for numbers would be honored.   Los Angeles Visa Lawyer  Los Angeles Visa Lawyer Los Angeles Visa Lawyer

2.  Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

3.  INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas:  CHINA-mainland born, EL SALVADOR, GUATEMALA, HONDURAS, INDIA, MEXICO, and PHILIPPINES.  Los Angeles Visa Lawyer

4.  Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows:

Los Angeles Visa Lawyer

FAMILY-SPONSORED PREFERENCES

First: (F1) Unmarried Sons and Daughters of U.S. Citizens:  23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents:  23% of the overall second preference limitation.

Third: (F3) Married Sons and Daughters of U.S. Citizens:  23,400, plus any numbers not required by first and second preferences.

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens:  65,000, plus any numbers not required by first three preferences.

A.  FINAL ACTION DATES FOR FAMILY-SPONSORED PREFERENCE CASES  

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are authorized for issuance to all qualified applicants; and “U” means unauthorized, i.e., numbers are not authorized for issuance. (NOTE: Numbers are authorized for issuance only for applicants whose priority date is earlier than the final action date listed below.)  Los Angeles Visa Lawyer

Family-
Sponsored 
All Chargeability
Areas Except
Those Listed
CHINA-mainland
born
INDIA MEXICO PHILIPPINES 
F1 22DEC10 22DEC10 22DEC10 01FEB96 15OCT06
F2A 22SEP15 22SEP15 22SEP15 01SEP15 22SEP15
F2B 01NOV10 01NOV10 01NOV10 01JUL96 08DEC06
F3 08JUL05 08JUL05 08JUL05 08APR95 22JAN95
F4 08MAY04 08MAY04 22SEP03 15SEP97 08APR94
22MAR05
22MAR05

*NOTE: For August, F2A numbers EXEMPT from per-country limit are authorized for issuance to applicants from all countries with priority dates earlier than 01SEP15. F2A numbers SUBJECT to per-country limit are authorized for issuance to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 01SEP15 and earlier than 22SEP15. All F2A numbers provided for MEXICO are exempt from the per-country limit.   Los Angeles Visa Lawyer

B.  DATES FOR FILING FAMILY-SPONSORED VISA APPLICATIONS

The chart below reflects dates for filing visa applications within a timeframe justifying immediate action in the application process. Applicants for immigrant visas who have a priority date earlier than the application date in the chart below may assemble and submit required documents to the Department of State’s National Visa Center, following receipt of notification from the National Visa Center containing detailed instructions. The application date for an oversubscribed category is the priority date of the first applicant who cannot submit documentation to the National Visa Center for an immigrant visa. If a category is designated “current,” all applicants in the relevant category may file applications, regardless of priority date.

The “C” listing indicates that the category is current, and that applications may be filed regardless of the applicant’s priority date. The listing of a date for any category indicates that only applicants with a priority date which is earlier than the listed date may file their application.

Visit www.uscis.gov/visabulletininfo for information on whether USCIS has determined that this chart can be used (in lieu of the chart in paragraph 4.A.) this month for filing applications for adjustment of status with USCIS.

Family-
Sponsored 
All Chargeability
Areas Except
Those Listed
CHINA-
mainland
born
INDIA MEXICO PHILIPPINES 
F1 22JUL11 22JUL11 22JUL11 01APR96 08SEP07
F2A 08APR16 08APR16 08APR16 08APR16 08APR16
F2B 01SEP11 01SEP11 01SEP11 08AUG96 22JUL07
F3 01DEC05 01DEC05 01DEC05 01MAY95 01FEB95
F4 15NOV04 15NOV04 22JUN04 08JAN98 08FEB95

Los Angeles Immigration Lawyers

5.  Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows:

EMPLOYMENT-BASED PREFERENCES

First:  Priority Workers:  28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second:  Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability:  28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third:  Skilled Workers, Professionals, and Other Workers:  28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “*Other Workers”.

Fourth:  Certain Special Immigrants:  7.1% of the worldwide level.

Fifth:  Employment Creation:  7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.

A.  FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are authorized for issuance to all qualified applicants; and “U” means unauthorized, i.e., numbers are not authorized for issuance. (NOTE: Numbers are authorized for issuance only for applicants whose priority date is earlier than the final action date listed below.)

Employ-
ment
based
All Charge-
ability
Areas Except
Those Listed
CHINA-
mainland
born
EL SALVADOR
GUATEMALA
HONDURAS
INDIA MEXICO PHILIPPINES
1st C 01JAN12 C 01JAN12 C C
2nd 01APR15 22APR13 01APR15 22JUL08 01APR15 01APR15
3rd C 01JAN12 C 15JUL06 C 01JUN15
Other Workers C 01JAN04 C 15JUL06 C 01JUN15
4th C C 15SEP15 15SEP15 15SEP15 C
Certain Religious Workers C C 15SEP15 15SEP15 15SEP15 C
5th
Non-Regional
Center
(C5 and T5)
C 15JUN14 C C C C
5th
Regional
Center
(I5 and R5)
C 15JUN14 C C C C

*Employment Third Preference Other Workers Category:  Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.   Los Angeles Visa Lawyer

B.  DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS

The chart below reflects dates for filing visa applications within a timeframe justifying immediate action in the application process. Applicants for immigrant visas who have a priority date earlier than the application date in the chart may assemble and submit required documents to the Department of State’s National Visa Center, following receipt of notification from the National Visa Center containing detailed instructions. The application date for an oversubscribed category is the priority date of the first applicant who cannot submit documentation to the National Visa Center for an immigrant visa. If a category is designated “current,” all applicants in the relevant category may file, regardless of priority date.

The “C” listing indicates that the category is current, and that applications may be filed regardless of the applicant’s priority date. The listing of a date for any category indicates that only applicants with a priority date which is earlier than the listed date may file their application.

Visit www.uscis.gov/visabulletininfo for information on whether USCIS has determined that this chart can be used (in lieu of the chart in paragraph 5.A.) this month for filing applications for adjustment of status with USCIS.

Employment-
based
All Chargeability
Areas Except
Those Listed
CHINA-
mainland
born
INDIA MEXICO  PHILIPPINES 
1st C C C C C
2nd C 01OCT13 01FEB09 C C
3rd C 01SEP15 01JAN07 C 01JAN16
Other Workers C 01JUN08 01JAN07 C 01JAN16
4th C C C C C
Certain Religious Workers C C C C C
5th
Non-Regional
Center
(C5 and T5)
C 01SEP14 C C C
5th
Regional
Center
(I5 and R5)
C 01SEP14 C C C

6.  The Department of State has a recorded message with the cut-off date information for Final Application Action which can be heard at:  (202) 485-7699.  This recording is updated on or about the tenth of each month with information on final action dates for the following month.

B.  DIVERSITY IMMIGRANT (DV) CATEGORY FOR THE MONTH OF AUGUST

Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years. The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This resulted in reduction of the DV-2017 annual limit to 50,000. DV visas are divided among six geographic regions.  No one country can receive more than seven percent of the available diversity visas in any one year.

For August, immigrant numbers in the DV category are available to qualified DV-2017 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region All DV Chargeability Areas Except Those Listed Separately
AFRICA CURRENT Except:
Egypt:     30,600
ASIA CURRENT Except:
Nepal:     7,075
EUROPE CURRENT Except:
Uzbekistan  13,300
NORTH AMERICA (BAHAMAS) CURRENT
OCEANIA CURRENT
SOUTH AMERICA,
and the CARIBBEAN
CURRENT

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2017 program ends as of September 30, 2017. DV visas may not be issued to DV-2017 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2017 principals are only entitled to derivative DV status until September 30, 2017. DV visa availability through the very end of FY-2017 cannot be taken for granted. Numbers could be exhausted prior to September 30.  Los Angeles Immigration Lawyers

C.  THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS  WHICH WILL APPLY IN SEPTEMBER

For September, immigrant numbers in the DV category are available to qualified DV-2017 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region All DV Chargeability Areas Except Those Listed Separately
AFRICA Current Except:
Egypt: 36,500
ASIA Current Except:
Nepal: 7,450
EUROPE Current
NORTH AMERICA (BAHAMAS) Current
OCEANIA Current
SOUTH AMERICA,
and the CARIBBEAN
Current

D.  OVERSUBSCRIPTION OF EMPLOYMENT-BASED SECOND PREFERENCE CATEGORY

WORLDWIDE, EL SALVADOR, GUATEMALA, HONDURAS, MEXICO, AND PHILIPPINES Employment-based Second (E2) Preference category:  Readers were advised in item D of the May Visa Bulletin number 6, that it was likely that a date would be imposed at some point. High demand for numbers for USCIS adjustment of status applicants has required the establishment of a date for August. This action will allow number use to be held within the Worldwide E2 annual limit.

The E2 date for these countries will once again become CURRENT for October, the first month of fiscal year 2018.

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#AskNikki   If you have any questions about this month’s visa bulletin, please contact us to schedule a consultation.  Los Angeles Visa Lawyer Nikki Jacobson would be more than happy to assist you with all of your family and employment based immigration petitions and applications.  L os Angeles Visa Lawyer 

 

Asylum Appeal – Board of Immigration Appeals Decision

Asylum Appeal

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Asylum Appeal – Board of Immigration Appeals (BIA) Decision: “Material Support” to a Terrorist Organization

Motion to Reconsider – Unpublished Board of Immigration (BIA) Appeals Decision:  BIA Dec. 5-18-17_Redacted

Asylum Appeal / Motion to Reconsider with BIA:  A motion to reconsider is a request that the Board of Immigration Appeals (BIA) reexamine its decision in light of additional legal arguments, a change of law, or perhaps an argument or aspect of the case that was overlooked. See section 240(c)(6) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(c)(6) ; 8 C.F.R. § 1003.2(b); Matter of O-S-G-, 24 I&N Dec. 56, 57 (BIA 2006) see also Ma v. Ashcroft, 361 F.3d 553, 558 (9th Cir. 2004).

A motion to reconsider filed with the Board of Immigration Appeals (BIA) must be accompanied by a statement of reasons and supported by pertinent authority. See 8 U.S.C. § 1229a(c)(6)(C); 8 C.F.R. § 1003.2(b)(1); see also Iturribarria v. INS, 321 F.3d 889, 895-96 (9th Cir. 2003).

Asylum Appeal / Motion to Reconsider with Board of Immigration Appeals (BIA)

In this case, the Board’s last decision concluded that the respondent was barred from receiving asylum and withholding of removal because he provided “material support” to a terrorist organization. In making this conclusion, the Board agreed with the DHS that the material support bar does not contain a de minimis exception. Accordingly, the Board found that the respondent’ s one-time payment of $50.00 to Al-Shabaab as part of an agreement made to secure his release from kidnapping, constituted “material support” and prevented the respondent from being granted asylum or withholding of removal. See section 212(a)(3)(B)(iv)(VI) of the Act, 8 USC § 1182(a)(3)(B)(iv)(VI).2

In his motion to reconsider, the respondent states that he is not arguing that there is an “exception” to the material support bar for de minimis support. Instead, he states that “material support” must always be, in fact, ” material.” According to the respondent, the plain language of the statute requires ” material support” to be something other than de minimis. The respondent further observes that the United States Court of Appeals for the Third Circuit, the controlling circuit in this matter, has held that the word “material” in “material support” must be “ascribed some meaning.” Sesay v. Att’y General, 787 F.3d 215,222 (3d Cir. 2015), (citing Singh-Kaur v. Ashcroft, 385 F.3d 293, 298 (3d Cir. 2004) (examining Black’ s Law Dictionary definition of the word)). The respondent correctly argues that the Board’s last decision conflicts with the controlling law of the Third Circuit.

Asylum Appeal / Motion to Reconsider with Board of Immigration Appeals (BIA)

Accordingly, we now reconsider our decision insofar as it held that any amount of funds provided to a terrorist organization constitutes “material support” of that organization. We conclude that it was error to give no meaning to the word “material” in “material support.” The question that follows is whether the respondent’s one-time payment of $50.00 shortly before fleeing Somalia, is sufficient to be material.

The Board has previously indicated that a packed lunch and the equivalent of $4.00 in United States funds would not be material. See Sesay v. Att’y General, supra, at 221-22, (citing with approval an unpublished Board decision from 2009). In contrast, the Board has determined that the equivalent of $685 in United States funds made in multiple payments over several months was sufficiently substantial by itself to have some effect on the ability of a terrorist organization to accomplish its goals. Matter of S-K-, 23 I&N Dec. 936, 945-46 (BIA 2006) (finding it unnecessary to decide whether a small amount of money provided to a terrorist organization would be material support).

The Immigration Judge in this case did not conduct fact-finding concerning the amount the respondent paid to Al-Shabaab and specifically whether it would be sufficiently substantial by itself to have some effect on the ability of the terrorist organization at issue to accomplish its goals. Id. Accordingly, we find it necessary to remand the record to the Immigration Judge for further fact-finding. Therefore, we will grant the respondent’ s motion to reconsider our decision dated January 23, 2017. We will vacate that decision insofar as it found the respondent provided material support to Al-Shabaab, and we will remand the record to the Immigration Judge for further proceedings. On remand, both parties will be given the opportunity to submit additional evidence.

Asylum Appeal / Motion to Reconsider with Board of Immigration Appeals (BIA)

Motion to Reconsider Filed with the Board of Immigration Appeals (BIA)
ORDER: The motion to reconsider is granted.  BIA Dec. 5-18-17_Redacted

 

Asylum Appeal / Motion to Reconsider with Board of Immigration Appeals (BIA)

Any appeal, motion or petition filed with the Board of Immigration Appeals (BIA) must comply with the Board of Immigration Appeals (BIA) Practice Manual.  An experienced immigration attorney must be very familiar and knowledgeable about the Board of Immigration Appeals (BIA) Practice Manual.

 

Los Angeles Immigration Attorney, Nikki Jacobson, Attorney at Law, Experienced Immigration Lawyers

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Los Angeles Immigration Seminar 05-10-2017

Los Angeles Immigration Lawyer, Los Angeles Work Injury Lawyer

Immigration U Visa: Victims of Violence/Crimes
May Be Eligible for Immigration Benefits

Speaker:  Nikki Mehrpoo Jacobson
Experienced Los Angeles Immigration & Workers’ Compensation Attorney
Certified Specialist Workers’ Compensation Law
The State Bar of California Board of Legal Specialization

What About Injured Workers
Who Are Victims of  Workplace Violence/Crimes???

CAAA LAVAAA (Los Angeles-Valley) Seminar:
Immigration for Injured Workers:  Immigration U Visa

May 10, 2017

6:00 p.m.

Anejo Cantina & Grill

14755 Ventura Blvd,  Sherman Oaks, CA

This program will cover various Immigration and Workers’ Compensation crossover issues, including:

  • How will injured workers be affected by Trump’s New Executive Orders and Immigration Policies?
  • What every injured worker should know?
  • Injured workers’ immigration rights.  What rights do our client have?
  • What can all immigrants do if they are stopped, detained or deported?
  • How to advise injured workers about their immigration rights?
  • How to advise injured workers about encountering various law enforcement agencies?
  • DHS, USCIS, CBP, ICE, Local Police, Immigration Raids, etc…
  • Immigration consequences of convictions, arrests and criminal issues.
  • Work Permits
  • Humanitarian Relief
  • U Visas:  Crime Victims
  • T Visas: Victims of Trafficking
  • Labor Codes Applicable to Undocumented Immigrants
  • Deposition Guidance

Experienced Los Angeles Immigration & Workers’ Compensation Attorney

PROGRAM MATERIALS:  Immigration & WC Final

 

Contact Attorney Nikki Jacobson Now for A Consultation.

Victims of Violence/Crimes May Be Eligible for Immigration Benefits – Los Angeles Immigration Attorney

What About Injured Workers Who Are Victims of  Workplace Violence/Crimes???

Experienced Los Angeles Immigration & Workers’ Compensation Attorney

May 2017 Visa Bulletin

Los Angeles Visa Lawyer

Visa Bulletin For May 2017

Los Angeles Immigration Lawyer Visa Bulletin

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If you have any questions about this month’s visa bulletin, please contact us to schedule a consultation.  Los Angeles Immigration Attorney Nikki Jacobson would be more than happy to assist you with all of your family and employment based immigration petitions and applications.

A. STATUTORY NUMBERS

This visa bulletin summarizes the availability of immigrant numbers during May for: “Final Action Dates” and “Dates for Filing Applications,” indicating when immigrant visa applicants should be notified to assemble and submit required documentation to the National Visa Center.

Unless otherwise indicated on the U.S. Citizenship and Immigration Services (USCIS) website at www.uscis.gov/visabulletininfo, individuals seeking to file applications for adjustment of status with USCIS in the Department of Homeland Security must use the “Final Action Dates” charts below for determining when they can file such applications. When USCIS determines that there are more immigrant visas available for the fiscal year than there are known applicants for such visas, USCIS will state on its website that applicants may instead use the “Dates for Filing Visa Applications” charts in this Visa Bulletin.

1.  Procedures for determining dates. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; USCIS reports applicants for adjustment of status. Allocations in the charts below were made, to the extent possible, in chronological order of reported priority dates, for demand received by April 11th. If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed. The final action date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. If it becomes necessary during the monthly allocation process to retrogress a final action date, supplemental requests for numbers will be honored only if the priority date falls within the new final action date announced in this visa bulletin. If at any time an annual limit were reached, it would be necessary to immediately make the preference category “unavailable”, and no further requests for numbers would be honored.

2.  Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

3.  INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas:  CHINA-mainland born, EL SALVADOR, GUATEMALA, HONDURAS, INDIA, MEXICO, and PHILIPPINES.

4.  Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows:

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If you have any questions about this month’s visa bulletin, please contact us to schedule a consultation.  Los Angeles Immigration Attorney Nikki Jacobson would be more than happy to assist you with all of your family and employment based immigration petitions and applications.

FAMILY-SPONSORED PREFERENCES

First: (F1) Unmarried Sons and Daughters of U.S. Citizens:  23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents:  23% of the overall second preference limitation.

Third: (F3) Married Sons and Daughters of U.S. Citizens:  23,400, plus any numbers not required by first and second preferences.

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens:  65,000, plus any numbers not required by first three preferences.

A.  FINAL ACTION DATES FOR FAMILY-SPONSORED PREFERENCE CASES

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are authorized for issuance to all qualified applicants; and “U” means unauthorized, i.e., numbers are not authorized for issuance. (NOTE: Numbers are authorized for issuance only for applicants whose priority date is earlier than the final action date listed below.)

Family-
Sponsored 
All Chargeability
Areas Except
Those Listed
CHINA-mainland
born
INDIA MEXICO PHILIPPINES 
F1 08DEC10 08DEC10 08DEC10 15JUN95 01FEB06
F2A 15JUL15 15JUL15 15JUL15 22JUN15 15JUL15
F2B 01OCT10 01OCT10 01OCT10 01FEB96 01AUG06
F3 15JUN05 15JUN05 15JUN05 22JAN95 22SEP94
F4 08MAY04 08MAY04 08SEP03 01JUL97 15OCT93
22MAR05
22MAR05

*NOTE: For May, F2A numbers EXEMPT from per-country limit are authorized for issuance to applicants from all countries with priority dates earlier than 22JUN15. F2A numbers SUBJECT to per-country limit are authorized for issuance to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 22JUN15 and earlier than 15JUL15. All F2A numbers provided for MEXICO are exempt from the per-country limit.

B.  DATES FOR FILING FAMILY-SPONSORED VISA APPLICATIONS

The chart below reflects dates for filing visa applications within a timeframe justifying immediate action in the application process. Applicants for immigrant visas who have a priority date earlier than the application date in the chart below may assemble and submit required documents to the Department of State’s National Visa Center, following receipt of notification from the National Visa Center containing detailed instructions. The application date for an oversubscribed category is the priority date of the first applicant who cannot submit documentation to the National Visa Center for an immigrant visa. If a category is designated “current,” all applicants in the relevant category may file applications, regardless of priority date.

The “C” listing indicates that the category is current, and that applications may be filed regardless of the applicant’s priority date. The listing of a date for any category indicates that only applicants with a priority date which is earlier than the listed date may file their application.

Visit www.uscis.gov/visabulletininfo for information on whether USCIS has determined that this chart can be used (in lieu of the chart in paragraph 4.A.) this month for filing applications for adjustment of status with USCIS.

Family-
Sponsored 
All Chargeability
Areas Except
Those Listed
CHINA-
mainland
born
INDIA MEXICO PHILIPPINES 
F1 22JUL11 22JUL11 22JUL11 01APR96 08SEP07
F2A 08APR16 08APR16 08APR16 08APR16 08APR16
F2B 01SEP11 01SEP11 01SEP11 08AUG96 22JUL07
F3 01DEC05 01DEC05 01DEC05 01MAY95 01FEB95
F4 15NOV04 15NOV04 22JUN04 08JAN98 08FEB95

5.  Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows:

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If you have any questions about this month’s visa bulletin, please contact us to schedule a consultation.  Los Angeles Immigration Attorney Nikki Jacobson would be more than happy to assist you with all of your family and employment based immigration petitions and applications.

EMPLOYMENT-BASED PREFERENCES

First:  Priority Workers:  28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second:  Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability:  28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third:  Skilled Workers, Professionals, and Other Workers:  28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “*Other Workers”.

Fourth:  Certain Special Immigrants:  7.1% of the worldwide level.

Fifth:  Employment Creation:  7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.

A.  FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are authorized for issuance to all qualified applicants; and “U” means unauthorized, i.e., numbers are not authorized for issuance. (NOTE: Numbers are authorized for issuance only for applicants whose priority date is earlier than the final action date listed below.)

Employ-
ment
based
All Charge-
ability
Areas Except
Those Listed
CHINA-
mainland
born
EL SALVADOR
GUATEMALA
HONDURAS
INDIA MEXICO PHILIPPINES
1st C C C C C C
2nd C 08FEB13 C 22JUN08 C C
3rd 15MAR17 01OCT14 15MAR17 25MAR05 15MAR17 01JAN13
Other Workers 15MAR17 08MAR06 15MAR17 25MAR05 15MAR17 01JAN13
4th C C 15JUL15 C 15JUL15 C
Certain Religious Workers U U U U U U
5th
Non-Regional
Center
(C5 and T5)
C 01JUN14 C C C C
5th
Regional
Center
(I5 and R5)
U U U U U U

*Employment Third Preference Other Workers Category:  Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

B.  DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS

The chart below reflects dates for filing visa applications within a timeframe justifying immediate action in the application process. Applicants for immigrant visas who have a priority date earlier than the application date in the chart may assemble and submit required documents to the Department of State’s National Visa Center, following receipt of notification from the National Visa Center containing detailed instructions. The application date for an oversubscribed category is the priority date of the first applicant who cannot submit documentation to the National Visa Center for an immigrant visa. If a category is designated “current,” all applicants in the relevant category may file, regardless of priority date.

The “C” listing indicates that the category is current, and that applications may be filed regardless of the applicant’s priority date. The listing of a date for any category indicates that only applicants with a priority date which is earlier than the listed date may file their application.

Visit www.uscis.gov/visabulletininfo for information on whether USCIS has determined that this chart can be used (in lieu of the chart in paragraph 5.A.) this month for filing applications for adjustment of status with USCIS.

Employment-
based
All Chargeability
Areas Except
Those Listed
CHINA-
mainland
born
INDIA MEXICO  PHILIPPINES 
1st C C C C C
2nd C 01OCT13 01FEB09 C C
3rd C 01SEP15 22APR06 C 01JUL14
Other Workers C 01JUN08 22APR06 C 01JUL14
4th C C C C C
Certain Religious Workers C C C C C
5th
Non-Regional
Center
(C5 and T5)
C 01SEP14 C C C
5th
Regional
Center
(I5 and R5)
C 01SEP14 C C C

6.  The Department of State has a recorded message with the cut-off date information for Final Application Action which can be heard at:  (202) 485-7699.  This recording is updated on or about the tenth of each month with information on final action dates for the following month.

B.  DIVERSITY IMMIGRANT (DV) CATEGORY FOR THE MONTH OF MAY

Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years. The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This resulted in reduction of the DV-2017 annual limit to 50,000. DV visas are divided among six geographic regions.  No one country can receive more than seven percent of the available diversity visas in any one year.

For May, immigrant numbers in the DV category are available to qualified DV-2017 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region All DV Chargeability Areas Except Those Listed Separately
AFRICA CURRENT Except:
Egypt:     24,500
Ethiopia:  29,100
ASIA CURRENT Except:
Iran:       6,300
Nepal:     5,300
EUROPE CURRENT
NORTH AMERICA (BAHAMAS) CURRENT
OCEANIA CURRENT
SOUTH AMERICA,
and the CARIBBEAN
CURRENT

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2017 program ends as of September 30, 2017. DV visas may not be issued to DV-2017 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2017 principals are only entitled to derivative DV status until September 30, 2017. DV visa availability through the very end of FY-2017 cannot be taken for granted. Numbers could be exhausted prior to September 30.

C.  THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN JUNE

For June, immigrant numbers in the DV category are available to qualified DV-2017 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region All DV Chargeability Areas Except Those Listed Separately
AFRICA Current Except:
Egypt:    26,250
Ethiopia: 34,700
ASIA Current Except:
Iran:   7,300
Nepal: 5,875
EUROPE Current
NORTH AMERICA (BAHAMAS) Current
OCEANIA Current
SOUTH AMERICA,
and the CARIBBEAN
Current

D.  VISA AVAILABILITY IN THE EMPLOYMENT-BASED PREFERENCES

During the past six weeks the level of Employment-based First and Second preference demand for adjustment of status cases filed with U.S. Citizenship and Immigration Services has increased dramatically.  Continued heavy demand for numbers will require corrective action to hold number use within these annual limits.

Employment First Preference: A Final Action Date will be established for both CHINA-mainland born and INDIA in the near future.  Once such a date has been established, there is some chance that it might advance slowly through September. The date for these countries will once again become CURRENT for October, the first month of fiscal year 2018.
Employment Second Preference:  Worldwide, El Salvador, Guatemala, Honduras, Mexico, and the Philippines can be expected to become oversubscribed no later than July. It is possible that there could be some forward movement of the established Final Action Date by September.  The date for these countries will once again become CURRENT for October, the first month of fiscal year 2018.

E.  SCHEDULED EXPIRATION OF TWO EMPLOYMENT VISA CATEGORIES

Employment Fourth Preference Certain Religious Workers (SR):

Pursuant to the continuing resolution signed on December 10, 2016, the non-minister special immigrant program expires on April 28, 2017.  No SR visas may be issued overseas, or final action taken on adjustment of status cases, after midnight April 27, 2017. Visas issued prior to this date will only be issued with a validity date of April 27, 2017, and all individuals seeking admission as a non-minister special immigrant must be admitted (repeat, admitted) into the U.S. no later than midnight April 27, 2017.

The final action date for this category has been listed as “Unavailable” for May.  If there is legislative action extending this category for FY-2017, the final action date would immediately become “Current” for May for all countries except El Salvador, Guatemala, Honduras, and Mexico which would be subject to a July 15, 2015 final action date.

Employment Fifth Preference Categories (I5 and R5):

The continuing resolution signed on December 10, 2016 extended this immigrant investor pilot program until April 28, 2017. The I5 and R5 visas may be issued until close of business on April 28, 2017, and may be issued for the full validity period. No I5 or R5 visas may be issued overseas, or final action taken on adjustment of status cases, after April 28, 2017.

The final action dates for the I5 and R5 categories have been listed as “Unavailable” for May.  If there is legislative action extending them for FY-2017, the final action dates would immediately become “Current” for May for all countries except China-mainland born I5 and R5 which would be subject to a June 1, 2014 final action date.

F.   SPECIAL IMMIGRANT VISA AVAILABILITY

The Department expects to exhaust the Special Immigrant Visas allocated by Congress under the Afghan Allies Protection Act of 2009, as amended, not later than June 1, 2017.  As a result, the Final Action Date for the SQ category for certain Afghan nationals employed by or on behalf of the U.S. government in Afghanistan will become “Unavailable” effective June 2017.  No further interviews for Afghan principal applicants in the SQ category will be scheduled after March 1, 2017, and further issuances will not be possible after May 30, 2017.

The SQ category for certain Iraqi nationals employed by or on behalf of the U.S. government in Iraq is not affected and remains current, though the application deadline was September 30, 2014.

The FY-2017 annual limit of 50 Special Immigrant Visas in the SI category was reached in December 2016 and the Final Action Date remains “Unavailable.”  As included in the January 2017 Visa Bulletin, further issuances in the SI category will not be possible until October 2017, under the FY-2018 annual limit.

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If you have any questions about this month’s visa bulletin, please contact us to schedule a consultation.  Los Angeles Immigration Attorney Nikki Jacobson would be more than happy to assist you with all of your family and employment based immigration petitions and applications.