One of the requirements to become a naturalized citizen of the United States is to pass a civics test. The knowledge contained within the civics test is supposed to be basic historical, social, and political information about the United States. There are many requirements to become a citizen – good moral character, physical presence, continuous residence – but the citizenship test is one that is symbolic of the process.

Ipsos Public Affairs gave the examination to 2,000 Americans. You can see how they performed here.

The post Citizenship Test appeared first on Wood Immigration Law.

Governor Jerry Brown of California has signed SB10, which allows for some undocumented migrants in the state to have access to health care through the Affordable Care Act. The federal government does not allow for undocumented migrants to receive health care under the Affordable Care Act. California is the first state to pass and sign legislation of this sort. The law would work by having the state negotiate a waiver with the federal government, so that individuals can purchase insurance on the state’s exchange. The point is to expand health insurance coverage and also to lower premiums for everyone.

California is the most populous state in the Union. 7% of its population is constituted of undocumented migrants (approximately 2.6 million – which is also over 20% of all undocumented migrants in the United States). California is the sole state to offer this kind of health insurance access. States are vastly different in various issues that affect their undocumented residents – in state tuition, drivers licenses, insurance.

The post CA Allowing Undocumented Migrants to Purchase Insurance appeared first on Wood Immigration Law.

The Supreme Court turned down an appeal yesterday, meaning that the justices will not review an appeals court ruling that only Congress, not courts, can change the law that birth in the American Samoa does not confer US citizenship. A law passed in 1900 declared that individuals born in the American Samoa are US nationals but not US citizens. The 1900 law reflected the ethos of its time: Supreme Court ruled that people in the newly acquired U.S. territories were not entitled to all the constitutional rights of American citizens. Justice Henry Brown said the “development of the American empire” could be set back by the “annexation of distant possessions,” which are “inhabited by alien races.”

Five American Samoans pointed to the 14^th Amendment in bringing their case, which confers birthright citizenship to individuals born in the United States. Other territories of the US received birthright citizenship in the 20^th century, but American Samoans remain without it.

Birthright citizenship was enshrined in the 14^th Amendment, which is one of the three post-Civil War amendments. The purpose of birthright citizenship is to ensure all individuals born in the United States are citizens, rather than creating classes of citizenship, such as that which existed antebellum.

The post No Birthright Citizenship for American Samoans appeared first on Wood Immigration Law.

A new bill – The High Skilled Integrity and Fairness Act of 2015 – is poised to be introduced by two Californian legislators: Zoe Lofgren (D) and Darrell Issa (R). The bill proposes multiple changes to the H-1B visa and employment-based immigration, particularly to the H-1B lottery. The highlights of the bill are listed below:

• It will fundamentally alter the way the lottery works. The lottery process is shrouded in mystery, hence a lawsuit to extract information. Theoretically, all petitions are equally treated. This bill proposes giving employers who pay their prospective H-1B employees the most over the prevailing wage the best chance at success in the lottery. For example, an IT company that is willing to pay its Software Developer 200% of the prevailing wage will have an advantage over the IT company that is going to pay its Software Developer a dollar above the prevailing wage.
• Wages would not solely determine a petition’s chance at success in the new lottery. Also taken into consideration would be companies that hire US workers mainly. H-1B dependent employers would be prejudiced in favor of those companies.
• 20% of the lottery H-1B visas would be allocated to small companies (firms with fewer than 50 employees). This is to address the complaint of small and medium companies that a few large companies eat up all of the H-1B visas in the lottery.
• H-1B dependent employers currently have to pay a $60,000 salary to count themselves as exempt from the recruitment process. That threshold would increase to $130,000 under the bill. There may be a loophole if the employer petitions the employee for a Green Card.
• Per country caps on employment-based immigration visas would be eliminated. There are 140,000 employment-based immigrant visas available a year. The nationals of a country cannot obtain more than 7% of that number. By sheer population, that puts nationals of India and China at a major disadvantage, and they have to spend extraordinary times waiting for their Permanent Residence, despite approved employment-based immigration petitions.
• The L-1 visa remains untouched by this bill. There is no mention of filing fees, which are due to increase anyway. Certain companies have been hit with an enormous filing fee for H and L visa petitions.

List most legislation concerning immigration reform, this could go by the wayside. The legislative process may create even more changes or dilute some of the proposals.

The post H-1B Bill Seeks Changes appeared first on Wood Immigration Law.

If you are planning on having a nonimmigrant visa interview at a US consulate in India, make your arrangements early. All of the US consulates in the country are badly backed up, with waiting times of:

Chennai – 75 days

Hyderabad – 93 days

Kolkata – 96 days

Mumbai – 88 days

New Delhi – 100 days

These are the average wait times for nonimmigrant visas outside of the B, F, and J category, which have different procedures.

There are possibilities for expediting a nonimmigrant interview, provided there is a family or business emergency. Another option could be to process the nonimmigrant visa in a different country’s US consulate, as a third country national.

The post India Visa Wait Times appeared first on Wood Immigration Law.

The Asylum office is badly behind on scheduling interviews for prospective asylees. It usually took 3 months to hold an interview after applying for asylum affirmatively with USCIS. The process has exceeded 2 years and has encroached beyond 2.5 years at times.

One little victory: the interview dates have moved from October 2013 to January 2014 in the Arlington office’s jurisdiction (Pittsburgh is in the Arlington jurisdiction). If you filed an application in January 2014, they are finally scheduling your asylum interview.

This could be Pyrrhic. Future releases of the interview schedule may stall at January 2014, much like the past few months of scheduling have remained on pause. Perhaps this could augur the beginning of the normalization of the scheduling process.

The post Asylum Interview Dates Update appeared first on Wood Immigration Law.

U Visa processing times have stalled for a year. Since June 2015, U visa applications have essentially not been adjudicated. Congress has mandated 10,000 U visas are available per year. That means once 10,000 U visas are granted, the other approvable U visas are waitlisted and backlogged. USCIS has a practice of placing U visa candidates on a wait list, so at least they can obtain an employment card while waiting for U visa approval.

The U visa is partly a humanitarian safe haven for immigration. It allows an applicant to overcome many grounds to inadmissibility, though a waiver can be required. The U visa is a grant of legal nonimmigrant status to someone who has been the victim of a qualifying crime. It requires certification from a government agency, such as the police department that handled the crime. The applicant must have also been willing to or actually have helped in the prosecution of the perpetrator. There is the potential for adjustment to Permanent Residence for U visa applicants and their derivative family members.

USCIS has had some dismal processing times recently affecting all swathes of the immigration spectrum. H-1B and L-1 processing times have been abnormally lengthy. This has caused issues for employees with driver’s licenses, college tuition, and travel. It has caused employers to pay the $1,225 premium processing fee for occasions that should not require it. U visa applications are at a standstill. Employment authorization applications are taking triple the amount of time that they mandated to take for first time asylum applications, and they are pushing against their regulatory period for all other types of applications. Green Card applications through employment-based petitions are beyond processing times. O and P visa petitions are 5xs beyond normal processing of two weeks. If you look at processing times for the service centers, you will see that they are well beyond their stated goals for processing times. USCIS has blamed the slow processing on a lack of resources, as evidenced in its proposed comment for increasing filing fees by 21%.

The post Demand to Speed Up U Visas appeared first on Wood Immigration Law.

A federal judge has blocked a Kansas law that demands Kansans who are registering to vote furnish proof of US citizenship. Many states over the past six years have focused legislative and financial resources on enshrining laws that increase the requirements that an individual has before she can vote. Voting is romantically seen as the right of every American, but states have strategically attempted to craft “voter ID” laws that disproportionately affect certain classes of people. Kris Kobach is the Secretary of State in Kansas and also one of the authors of SB 1070, the Arizona law that caused a furor and was struck down at the Supreme Court. The ruling means that he is not permitted to enforce the law. The judge ruled that minuscule impact of citizen voter dilution by non-citizen voting is outweighed by the disenfranchisement of US voters. At the time of this ruling, over a thousand Kansans were waiting for their voting verification.

As far as non-immigrant and permanent resident concerns go, the law would have no effect. Nonimmigrants and Permanent Residents are not allowed to vote in the United States (save for very few municipal exceptions for Permanent Residents). This is crucial, especially in an election year. Voting is a right of US citizens only. Only US citizens should register to vote. Many immigrants who obtain their driver’s licenses at the DMV may concurrently be given a voter registration form and may even be persuaded that they are permitted to vote and register to vote. That is not the case. Whether it is heard at a government agency or on a college campus, only US citizens are allowed to register to vote. Only US citizens can vote in US elections. Permanent Residence brings about the legal ability to travel, work, and sponsor certain family members for Permanent Residence. It does not enable you to vote. In Pennsylvania, you must be a citizen for 30 days before you can register to vote.

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The H-1B cap has been reached. April 7 was the fifth business day of April and that was the final day to submit a cap-subject H-1B petition for a position that starts on October 1, 2016. The reason that petitions are only accepted for the first five days of April is that there is a limit of 65,000 cap-subject H-1B visas issued per year (plus 20,000 for beneficiaries with US Masters in jobs that require Masters). There is a lottery in effect because over 65,000 and 20,000 petitions are received. Last year around 233,000 petitions were submitted by businesses (mostly).

An H-1B petition can be submitted 6 months prior to the starting date. October 1 is the first day of the new fiscal year, which refreshes the number of H-1Bs available. In the late 1990s and early 2000s, the H-1B cap was much higher than 65,000 (up to 195,000), but it has remained at 65,000 for over a decade. Proposed legislation has sought to increase that number, but movement has not been made. The 1990 IMMACT bill created the H-1B visa. Certain exemptions are made for H-1B petitions to avoid the cap and the lottery. A cap-exempt H-1B visa can be filed at any time during the year.

The post H-1B Cap Reached appeared first on Wood Immigration Law.

Section 204(j) provides that an approved Form I-140 petition for certain classifications remains valid for adjustment of status when an applicant switches jobs or employers if:

• The adjustment of status application has been filed and remains unadjudicated for 180 days or more, based on an employment-based immigrant visa petition AND
• The new job is in the “same or a similar occupational classification” as the job for which the petition was filed.

A new policy memorandum has been issued to assist immigration officers in determining what qualifies as a same or a similar occupational classification and which evidence should be used in making that determination. They are instructed to examine the job duties of the former and new job and skills, experience, education, training, licenses, and certifications required. Wages can also be important. The policy memorandum also repeats that a preponderance of the evidence standard is to be utilized.

Immigration officers are supposed to treat evidence favorably if the applicant establishes that the previous and new job are within the same broad occupation code in determining whether the two positions are similar. The memo gives the example of Computer Programmers, Software Developers Applications, Software Developers Systems Software, and Web Developers being found within the same broad occupational group of Software Developers and Programmers. It also gives warning: just establishing that the two jobs are described within the same broad occupation may not be enough for the two jobs to be in similar classifications for a preponderance of the evidence.

Of note, the memo dedicates analysis to career progression. It continues the analysis under the totality of the circumstances and preponderance of the evidence guidance. The analysis may be more straightforward when the promotion is to a more senior position that does not involve managerial or supervisory duties. The analysis becomes complicated when that transition is to a position that involves a managerial or supervisory role.

For that second scenario, the memo instructs that if the applicant establishes in the new job that she will be “primarily responsible for managing the same or similar functions of their original jobs or the work of individuals whose jobs are in the same or similar occupational classification(s) as the applicants’ original positions, the immigration officer can treat that evidence in the applicant’s favor for determining similar occupational classifications. The example used is a cook advancing to a food service manager. A food service manager supervises restaurant cooks and other individuals in similar positions.

There may also be situations where a normal career progression does not involve managing persons in jobs that in the same or similar occupational classification as the applicant’s original position. The example used is a cook that becomes a food service manager, while retaining many of the original job duties. That position may be devoid of supervisory duties, but the applicant would be able to demonstrate similar occupational classifications based on functions.

The memorandum is lengthy and detailed, delving into many scenarios that immigration officers encounter as they adjudicated portability petitions. Portability is an important provision of the AC21 law enacted in 2000. The express purpose of that law was to increase job flexibility for foreign workers who are stuck in delays and backlogs in the employment-based immigrant visa process.

The post Employee Portability appeared first on Wood Immigration Law.