Deadlines and more deadlines—and a fraud warning

We spend a lot of time feeling like Cassandra, the Trojan princess whom Apollo gave the gift to see the future, but then cursed her so that no one would believe what she said. People just don’t want to believe us when we say that there won’t be some magic grant of status for foreign workers beginning Nov. 28, that Congressman Kilili’s HR 1466 might not pass the U.S. Congress (or might not pass in time), that the U.S. citizens’ immediate relatives who have not obtained or at least applied for green cards by then will have to leave or be removed, that (with very limited exceptions) the old CNMI immigration categories are really and truly going to end right then, or that the skies aren’t going to rain green cards or passports—in short, that life is going to change for all of us.

Nag, nag, nag—sometimes it seems that all we do is to nag people to take care of themselves and their families by making the necessary immigration applications in the short term, and to make plans for the long term, so that they can avoid family separation and other disruption of their lives and communities. Before Nov. 28, 2009, the CNMI issued nearly 20,000 umbrella permits, of which nearly 15,000 were “240K” worker permits—we are talking about a lot of potential disruption.

So today we’re going to take a break from nagging. We’re just going to list some important immigration deadlines, and point out that if you are affected by them but don’t do anything, your alien family members will be at risk of being removed (deported) by U.S. immigration authorities. That’s not nagging, is it?

We’re also warning once again about fake lawyers and phony “immigration consultants.” It seems the closer we get to the deadlines, the more we hear about them.

These are, for the most part, topics we’ve written about before. But with Nov. 27—the last day of the old system—less than 3 ½ months from today, it’s important to remind everyone not to wait any longer.
[B] IRs of USCs: File for green cards before Nov. 28, 2011[/B]

We have repeatedly warned that immediate relatives of USCs must file for green cards before Nov. 28, but that you do not have to have the application completely processed and approved by then. That’s because, if you are the immediate relative of a U.S. citizens, or USC, you get a special break. If you entered the U.S. (or the CNMI, if you entered before Nov. 28, 2009) legally, and if you file for a green card, your application will be processed (and, if you are old enough, you will be issued a work authorization) even if during the processing period you overstay your admission. That means that despite the expiration of all CNMI-issued permits on Nov. 27, 2011, if your application is filed on or before that date, any overstay will be forgiven. This is because U.S. immigration law allows lawfully admitted immediate relatives to process their green card application, and that applies to all immediate relatives of USCs, except for those admitted under the Visa Waiver Program in effect throughout rest of the U.S.

Note that the Guam-CNMI Waiver Program is different. Pursuant to an “interim final rule” known as the Conforming Rule, published by USCIS on Oct. 27, 2009, “those [immediate relatives] who will be admitted under the new Guam-CNMI Visa Waiver Program[] may apply for adjustment of status to that of a lawful permanent resident.” This includes Russians and Chinese who, although not in the Guam-CNMI Visa Waiver Program, are being paroled into the CNMI as tourists. See the USCIS Q&A Fact Sheet at http://tinyurl.com/36dxawx. We have already successfully processed green card applications for immediate relatives of USCs who were paroled into the CNMI.

Remember: there are many classes of immediate relatives. The Conforming Rule only applies to the parents, spouses, and children (unmarried and under 21, including adoptees adopted under age 16 and stepchildren whose parents married USCs before the children turned 18); and the surviving spouses—widows and widowers—of USCs. It does not apply to the spouses and children of U.S. lawful permanent residents, or LPRs. (The immediate relatives of LPRs can also apply for green cards, but it takes a lot longer unless they qualify as the battered or abused spouses or children of an LPR under the Violence Against Women Act.)
[B] Special deadline for surviving spouses: Oct. 28, 2011[/B]

The widows and widowers of USCs are a special kind of immediate relative. In the bad old days, the general rule was that the surviving spouse of a USC had two years from the death of the USC spouse to file a Form I-360 self-petition for a green card—but could only file if the marriage had lasted at least two years, or if less than two years, there was already an approved Form I-130 petition for the alien relative at the time the USC died. That rule barred a large number of surviving spouses from applying for green cards, and also resulted in a lot of litigation.

In the CNMI, a lot of widows and widowers who were otherwise qualified to apply for green cards didn’t do so within the two-year period, for two reasons: (1) because the CNMI was considered “outside” the U.S. for immigration purposes, they would have had to move “inside” the U.S.—at least to Guam—leaving homes, jobs, friends, and even families behind, until such time as they qualified for U.S. citizenship; and (2) because CNMI immigration law provided unlimited “IR” status to surviving spouses, even after long absences from the CNMI, so long as the survivor did not marry someone else. A lot of widows and widowers therefore opted to stay in the CNMI and not disrupt their lives. When the CNRA—P.L. 110-229, the “federalization” statute—passed on May 8, 2008, the majority of these survivors had no immigration option open to them.

They got lucky. On Oct. 28, 2009, President Obama signed an amendment to the Immigration and Nationality Act, which provided for the first time that survivors whose spouses died before Oct. 28, 2009, had until Oct. 28, 2011, to file either a new Form I-360, or to follow up on a prior I-130. This is true no matter how long the couple was married before the USC died, or how long before Oct. 28, 2009, the death occurred, so long as the proper application was made before Oct. 28, 2011. Since then we have successfully processed green card applications for survivors who were married less than two years, and for survivors whose spouses died more than a decade ago.

Remember: Oct. 28, 2011, for widows and widowers whose USC spouse died before Oct. 28, 2009. Sorry, this benefit is for survivors of USCs only—it doesn’t apply to survivors of LPRs—but humanitarian reinstatement of a prior I-130 may be possible. After Oct. 28, a new two-year rule will be in place: if your USC spouse died after Oct. 28, 2009, you have two years to file an I-360 or follow up on previously filed I-130. And that’s it.

You can find the USCIS fact sheets at http://tinyurl.com/4saxrb8 and http://tinyurl.com/y8p3q5e.

[B]Students: CNMI student permits expire Nov. 28, 2011[/B]

CNMI-issued student entry permits were issued through the CNMI Department of Commerce to students at qualifying schools. Those permits, extended by umbrella permits, expire Nov. 27. Those foreigners who intend to remain students in the CNMI and have no other U.S. status allowing school attendance must obtain U.S. student visas (category F-1).

The process is supposed to be simple: a school qualified to admit foreign students issues a Form I-20 to students it admits. The student then takes the Form I-20 to the appropriate U.S. consulate in his or her home country, and the consulate is supposed to issue the F-1 visa, all other things being equal. (We have heard some stories of F-1 visas being refused, particularly at the U.S. consulate in Chengdu, China, most likely due to lack of familiarity with the CNMI and its immigration status, on the ground that the student was really an “intending immigrant” because of long prior residence. Hopefully, these errors will be rectified.)

U.S. student visas are issued under the Student and Exchange Visitor Program, or SEVP, which, we were surprised to find, is administered through Immigration and Customs Enforcement. The home page for SEVP is at http://tinyurl.com/2bj9xmy; a list of CNMI schools approved for student visas under SEVIS (Student and Exchange Visitor Information System) is at http://tinyurl.com/36y5cgf. We are aware of other CNMI schools currently applying for SEVIS approval; if your school isn’t on the list, ask the school administration.

Kudos to Northern Marianas College and its new president, Dr. Sharon Hart, for adjusting the termination date of the fall 2011 semester so that the term ends on Nov. 22. Over the past couple of months we were contacted by a number of students whose NMC registration was held up because they did not yet have student visas, and no time to obtain them before the term started. Because the term was scheduled to end after the students’ CNMI permits would expire, the school would not enroll them for the fall semester. Now, at least, these students will be able to finish this semester and, with prompt applications for U.S. student visas, not suffer too long a break in their education.

Note for student visa applicants: Because approval of a student visa is not guaranteed (apparently especially at Chengdu), be sure to obtain advance parole before leaving the CNMI, and plan your return before Nov. 27.

[B]H-1B, CW-1, CNMI-E2, E1/E2 and other employment-based and investment-based visa applicants: Prepare now, apply as soon as possible[/B]

These are, with the exception of some of the investor visas, employer applications for employees. Employers whose employees qualify for visas that do not require either a prevailing wage determination (like H-1B) or new final regulations (like CW-1) should apply for their employees as soon as possible. The same is true of investors, whether the CNMI’s own E2C or regular E-1 (treaty traders) or E-2 (treaty investors) and their qualifying employees. Most of these applications take at least several months, and it is doubtful the applications can be fully processed before Nov. 27. We are hoping that for applicants still in process, USCIS will issue appropriate paroles—but we do not have any firm guidance on this point.

For H-1B, we suggest gathering all the necessary documentation to support an application, but—unless you are an employee who intends to pay Guam-scale wages—waiting for the Chamber of Commerce’s prevailing wage survey results are available. If you are an employer who has not yet participated in the survey, please do so as soon as possible; the bigger the database, the better. (The CNMI government is also undertaking a prevailing wage survey, but the projected completion date is too far out to be of much immediate use.) Then apply immediately.

For CW-1, which is designed for the general workforce not qualified for other U.S. visas, the applications cannot be submitted until USCIS publishes its final rule. But we now understand that there will be little, if any, variation between the proposed regulations published nearly two years ago, and the final version. Therefore we are advising our employer clients to begin preparing (but not finalizing) the requisite Form I-129 and assembling the supporting documentation, and applying immediately upon publication of the final regulations.

For CNMI E-2 (aka E-2C), the deadline for application is Jan. 18, 2013—but you must demonstrate continuous residence in the CNMI prior to application. That effectively means that the application should be completed by Nov. 27, 2011. That is, apply now. We are generally recommending E-2 applications if the investor is eligible for both E-2 and E-2C—the necessary work is about the same—but some of our clients have decided to apply for E-2C while waiting for the business climate to improve.

We’ve said this before, in almost the same words: Nov. 27, 2011, is the last day of the two-year grace period mandated by the CNRA. Unless existing laws and regulations change, and except for the possible passage of HR 1466—there is little reason to believe that they will—beginning Nov. 28, USCIS and ICE (Immigration & Customs Enforcement) will no longer honor entry permits and umbrella permits issued by the CNMI government. Everyone who on that date does not have some immigration status issued or at least approved by the U.S. government will be “out of status,” an “overstayer,” or some other term that means “unlawfully present in the U.S., and subject to removal (deportation).” Ignore the facts at your own risk: ICE is already actively bringing investigations and filing removal cases.
[B] Warning: Fake lawyers, ‘immigration consultants’ and the unauthorized practice of law[/B]

In the past we have warned about immigration “services” provided by individuals who falsely pretend to be lawyers, or who pretend to know immigration law. In the past few months alone we have been consulted by people who paid for immigration services they didn’t get, or which were incompetently done, with the result that they must begin all over again, including payment of new filing fees. For some, their money simply disappeared in a raft of excuses. This weekend we were consulted by someone who paid a substantial fee to a “document handler” who told her that she was qualified for an EB-3 visa (that’s the green card equivalent of an H-1B specialty occupation visa). Not only is she not qualified, but he didn’t tell her that right now the average processing time for EB-3 visas is six years, and worse for some countries. Check out the August Visa Bulletin at http://tinyurl.com/5vsnxoq.

Recently USCIS publicized its initiative to combat the unauthorized practice of law. As USCIS states, “the unauthorized practice of immigration law occurs when those who are not attorneys or accredited representatives:

* Provide legal assistance to applicants or petitioners in immigration matters.

* Charge more than a nominal fee.

* Hold themselves out to be qualified in legal matters.”

An accredited representative “must work for [a Board of Immigration Appeals-approved] non-profit, religious, charitable, social service or similar organization in the United States. He or she may only charge nominal (small) fees, if any, for legal services.”

For more information about finding legitimate legal services, see the USCIS fact sheet at http://tinyurl.com/3bv78op; for information about the USCIS initiative, go to http://tinyurl.com/3cmskxo and http://tinyurl.com/3vvrx89.

[I]The information contained in this column is intended as general information only, and not as individual legal advice. Readers should obtain professional legal advice before taking action with respect to their individual situations. Readers may submit questions regarding federalization or immigration issues to the authors by email to lexmarianas@pticom.com. Readers may also e-mail written questions through the Saipan Tribune at editor@saipantribune.com. [/I]