Under the same Appropriations Bill that eliminated the “widow penalty,” Congress voted to protect surviving family members in certain cases where, once a petition was filed, a petitioner or primary beneficiary passes away.
In the past, if a family based petitioner died prior to the beneficiary obtaining lawful permanent resident status, the application typically died as well, although in limited situations, a beneficiary could seek reinstatement for humanitarian reasons. In most cases, the beneficiary and any derivatives would no longer be able to obtain a green card through the petition.
Another common scenario was, if the primary beneficiary of a family based petition passed away, any derivative beneficiaries would lose the ability to obtain permanent residence through the petitioner’s petition for the now-deceased family member. For example, if a U.S. citizen filed a petition for his or her brother, the beneficiary’s spouse and minor children would eventually be able to obtain residence with the primary beneficiary. In the past, if the primary beneficiary passed away before obtaining permanent residency, the derivative benefits to the spouse and child died as well. The new law changes this harsh result and the derivative beneficiaries can continue to seek adjustment of status.
Similarly, in the past if an employment based beneficiary passed away while awaiting his or her adjustment of status, the spouse and minor children of the employee had no recourse and lost their eligibility for permanent residence through the employer’s petition for the deceased family member.
Depending upon the family based or employment based category in which a petition was filed and the beneficiary’s country of birth, applicants can often wait anywhere between five to more than ten years to obtain permanent residency. During these long waiting periods, it is an unfortunate reality that sometimes people pass away. Before the new bill was signed into law, an already devastating event was exacerbated by beneficiaries’ ineligibility to qualify for permanent residence as a result of their family’s loss.
However, as of October 28, 2009, a new law has changed these unfortunate consequences. According to the new law, ongoing protection is offered to many primary and derivative beneficiaries after a death. If an immigrant petition or adjustment of status application is pending and a family-based petitioner passes away, the primary and derivative beneficiaries can continue to seek permanent residence.
Similarly, if the primary beneficiary in a family based or employment based case passes away, his or her spouse and minor children can continue to seek permanent residence. There are requirements that the primary or derivative beneficiaries have to satisfy:
• the beneficiaries were in the US when the death occurred and
• the beneficiaries continue to reside in the US.
Moreover, this law covers the following types of applications:
• Immediate Relatives: a spouse, parent, or minor child of a US citizen
• All Family Preference Categories
• Employment based derivative beneficiaries: the spouse and/or minor
children of an employee on whose behalf an employer filed a visa petition
• Refugee / Asylee relative petition beneficiary
• Nonimmigrants in T visa (victims of trafficking) or U visa (victims of crimes) status
This new law is a step in the right direction and gives some relief to families that are already suffering a serious loss.
For more information regarding the new law concerning surviving beneficiaries and derivative beneficiaries and to see if you qualify to file under this law, please contact our office at (212) 748-3335 to schedule a consultation.
Tuesday, December 22, 2009
USCIS Announces H-1B Cap Has Been Reached
As of December 21, 2009, USCIS has received sufficient petitions to reach the statutory cap for FY2010. USCIS has also received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY2010 that are received after December 21, 2009 USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on December 21, 2009.
Friday, December 18, 2009
USCIS has published the latest H-1B cap count
U.S. Citizenship & Immigration Services has updated the H-1B cap count for Fiscal Year 2010. As of December 15, 2009, 64,200 H-1B cap-subject petitions had been filed towards the general H-1B cap of 65,000 per fiscal year.
To read the complete USCIS report, visit:
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=138b6138f898d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=73566811264a3210VgnVCM100000b92ca60aRCRD
To read the complete USCIS report, visit:
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=138b6138f898d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=73566811264a3210VgnVCM100000b92ca60aRCRD
R-A- granted asylum as a domestic violence victim after a 14 year struggle.
As reported by the Associated Press, Rody Alvarado (referred to as R-A- in court documents) was officially granted asylum by an Immigration Judge in San Francisco last week after fourteen years spent fighting her case through the courts.
Ms. Alvarado applied for asylum based on the persecution she experienced at the hands of her husband during a decade of brutal domestic violence from which the Guatemalan police and government were unwilling to protect her. Ms. Alvarado's asylum claim raised many complicated issues including whether asylum was appropriate for someone who suffered persecution at the hands of an individual rather than a government and whether a woman who experienced ongoing domestic violence in a country where she could not expect police protection could form a "particular social group" for asylum purposes.
The Obama administration has stated that regulations are being drafted that would allow victims of domestic violence a basis for asylum. If the regulations are adopted, they would be a long-awaited victory for Ms. Alvarado and others like her who have lived through horrific abuse at the hands of a domestic partner.
To read more about the history of this case: http://www.google.com/hostednews/ap/article/ALeqM5iWsaxqo-ZIskHpIdEaSdRfVHLPMgD9CLL5O80
Ms. Alvarado applied for asylum based on the persecution she experienced at the hands of her husband during a decade of brutal domestic violence from which the Guatemalan police and government were unwilling to protect her. Ms. Alvarado's asylum claim raised many complicated issues including whether asylum was appropriate for someone who suffered persecution at the hands of an individual rather than a government and whether a woman who experienced ongoing domestic violence in a country where she could not expect police protection could form a "particular social group" for asylum purposes.
The Obama administration has stated that regulations are being drafted that would allow victims of domestic violence a basis for asylum. If the regulations are adopted, they would be a long-awaited victory for Ms. Alvarado and others like her who have lived through horrific abuse at the hands of a domestic partner.
To read more about the history of this case: http://www.google.com/hostednews/ap/article/ALeqM5iWsaxqo-ZIskHpIdEaSdRfVHLPMgD9CLL5O80
Monday, December 14, 2009
Yee Durkin & Puri cordially invites you to the 1st YDP LAW FORUM
Date: Saturday, January 9, 2010
Time: 12:00pm - 4:00pm
Location: Lewis Scaria & Cote, LLC
50 Main Street, 15th Floor
White Plains, NY 10606
Cost of Forum: FREE
(Street Parking available; parking also available in Galleria Mall / Sears parking lot)
Featuring attorneys with experience in immigration, personal injury, collections, wills, business litigation, real estate, criminal defense, vehicle & traffic, divorce and family law.
Come meet the attorneys and ask your questions without having to pay a consultation fee!
Tsui Yee, Jennifer Durkin & Richa Puri
Yee Durkin & Puri, LLP
www.YDPimmigration.com
Practice Area: Immigration Law
Susan A. Scaria, Esq.
Lewis Scaria & Cote, LLC www.lscesq.com
Practice Area: Personal injury,Collections and Wills
Geoffrey N. Prime, Esq.
Prime & O'Brien, LLP
Practice Area: Criminal Defense Law and Vehicle & Traffic Law
Riyaz G. Bhimani, Esq.
Lane Sash & Larrabee LLP
www.lanesash.com
Practice Area: Business Litigation and Real Estate (commercial and residential)
Jill F. Spielberg
Harold, Salant, Strassfield & Spielberg
Practice Area: Matrimonial (Divorce)and Family Law
Please bring your family, friends and colleagues!
If you have questions or to RSVP, call Yee Durkin & Puri at (212) 748 – 3335
Time: 12:00pm - 4:00pm
Location: Lewis Scaria & Cote, LLC
50 Main Street, 15th Floor
White Plains, NY 10606
Cost of Forum: FREE
(Street Parking available; parking also available in Galleria Mall / Sears parking lot)
Featuring attorneys with experience in immigration, personal injury, collections, wills, business litigation, real estate, criminal defense, vehicle & traffic, divorce and family law.
Come meet the attorneys and ask your questions without having to pay a consultation fee!
Tsui Yee, Jennifer Durkin & Richa Puri
Yee Durkin & Puri, LLP
www.YDPimmigration.com
Practice Area: Immigration Law
Susan A. Scaria, Esq.
Lewis Scaria & Cote, LLC www.lscesq.com
Practice Area: Personal injury,Collections and Wills
Geoffrey N. Prime, Esq.
Prime & O'Brien, LLP
Practice Area: Criminal Defense Law and Vehicle & Traffic Law
Riyaz G. Bhimani, Esq.
Lane Sash & Larrabee LLP
www.lanesash.com
Practice Area: Business Litigation and Real Estate (commercial and residential)
Jill F. Spielberg
Harold, Salant, Strassfield & Spielberg
Practice Area: Matrimonial (Divorce)and Family Law
Please bring your family, friends and colleagues!
If you have questions or to RSVP, call Yee Durkin & Puri at (212) 748 – 3335
Friday, November 6, 2009
“Widow Penalty” Eliminated!
On October 28, 2009 President Obama signed a new Department of Homeland Security Appropriations bill which contained a provision to eliminate the “widow penalty.”
In the past, if a foreign national was married to a US citizen who passed away prior to the couple’s second anniversary and before the foreign national received a green card, the surviving spouse had no immigration relief. The devastating effect this “widow penalty” had on grieving families has recently received a significant amount of media attention and many federal lawsuits had been filed attacking the provision. The elimination of the “widow penalty” is a wonderful step towards making the American immigration system more humane.
The new law removes the requirement pertaining to the length of the marriage. A surviving spouse and their children will now be able to file a self-petition even if the US citizen passed away prior to the second anniversary of the marriage. The applicant must also fulfill the other requirements for a widow self-petition which remain the same.
Additionally, the new law provides relief for many individuals who did not meet the requirements of the “widow penalty” provisions due to having been married for less than two years at the time the U.S. citizen died. Applicants who did not previously qualify now have two years from the date of the enactment of this new law to file an I-360 immigrant petition. After October 28, 2011, the widow(er) petitions must be filed within two years of the qualifying spouse’s death.
Republican Senator Orrin Hatch introduced the amendment to the appropriations bill which eliminated the widow penalty and the amendment passed unanimously in the Senate. We hope that this bodes well for bipartisan support of broad-based immigration reform and other smaller measures aimed at fixing a broken system.
For more information regarding the new law concerning widow(er)s of U.S. citizens and to see if you qualify to file under this new law, please contact our office at (212) 748-3335 to schedule a consultation.
In the past, if a foreign national was married to a US citizen who passed away prior to the couple’s second anniversary and before the foreign national received a green card, the surviving spouse had no immigration relief. The devastating effect this “widow penalty” had on grieving families has recently received a significant amount of media attention and many federal lawsuits had been filed attacking the provision. The elimination of the “widow penalty” is a wonderful step towards making the American immigration system more humane.
The new law removes the requirement pertaining to the length of the marriage. A surviving spouse and their children will now be able to file a self-petition even if the US citizen passed away prior to the second anniversary of the marriage. The applicant must also fulfill the other requirements for a widow self-petition which remain the same.
Additionally, the new law provides relief for many individuals who did not meet the requirements of the “widow penalty” provisions due to having been married for less than two years at the time the U.S. citizen died. Applicants who did not previously qualify now have two years from the date of the enactment of this new law to file an I-360 immigrant petition. After October 28, 2011, the widow(er) petitions must be filed within two years of the qualifying spouse’s death.
Republican Senator Orrin Hatch introduced the amendment to the appropriations bill which eliminated the widow penalty and the amendment passed unanimously in the Senate. We hope that this bodes well for bipartisan support of broad-based immigration reform and other smaller measures aimed at fixing a broken system.
For more information regarding the new law concerning widow(er)s of U.S. citizens and to see if you qualify to file under this new law, please contact our office at (212) 748-3335 to schedule a consultation.
Friday, October 9, 2009
Meeting with the new Director of USCIS, Alejandro Mayorkas
On October 1, 2009, one of our partners attended a meeting at which the new Director of USCIS, Alejandro Mayorkas, provided a glimpse of the new direction of USCIS.
According to Director Mayorkas, USCIS’ current focus is on the following:
1) Engaging the public
The Director stated that meeting the community and understanding people’s perspectives and desires was a prime focus of USCIS. In fact, at this time, he has been traveling and will continue to travel across our nation reaching out to communities to gain insight into immigrant needs;
2) Consistency, uniformity and predictability of the agency
The Director acknowledged that there is lack of regularity between USCIS offices throughout the nation. He is trying to resolve this issue so that there are straight forward instructions for applicants, clearer guidance to officers adjudicating applications and a better handling of the expectations of applicants; USCIS hopes to implement new regulations and policies to rectify the situation;
3) Efficiency
USCIS is a fee based agency. The currency collected from filing fees are being used more efficiently. For example, some of the finances were recently spent on recreating the USCIS website;
4) Transparency
As USCIS is a public agency, it needs to be more open and candid about many things such as changes within departments and the status of pending applications; per Director Mayorkas, the first step in fixing this problem was to create a new website where an applicant can monitor his or her own case more easily than in the past;
5) The Future
USCIS is modernizing its current practices, including moving from a paper-based facility to databases to give the community more access to information pertinent to their cases. USCIS is also preparing for the passing of Comprehensive Immigration Reform.
When asked further questions regarding Comprehensive Immigration Reform, Director Mayorkas commented vaguely that the President and Secretary Napolitano are managing the details of the reform. USCIS’ role is to implement the reform when it is passed. He did not add anything further regarding this topic.
We will closely monitor the upcoming changes within USCIS and report back on whether the changes are effective. We will also be paying close attention to any further news regarding Comprehensive Immigration Reform.
We are encouraged by the willingness of Director Mayorkas to meet with the public to provide insight into his vision for the future of USCIS. We hope that he can implement positive changes and provide better, more equitable service to the public.
According to Director Mayorkas, USCIS’ current focus is on the following:
1) Engaging the public
The Director stated that meeting the community and understanding people’s perspectives and desires was a prime focus of USCIS. In fact, at this time, he has been traveling and will continue to travel across our nation reaching out to communities to gain insight into immigrant needs;
2) Consistency, uniformity and predictability of the agency
The Director acknowledged that there is lack of regularity between USCIS offices throughout the nation. He is trying to resolve this issue so that there are straight forward instructions for applicants, clearer guidance to officers adjudicating applications and a better handling of the expectations of applicants; USCIS hopes to implement new regulations and policies to rectify the situation;
3) Efficiency
USCIS is a fee based agency. The currency collected from filing fees are being used more efficiently. For example, some of the finances were recently spent on recreating the USCIS website;
4) Transparency
As USCIS is a public agency, it needs to be more open and candid about many things such as changes within departments and the status of pending applications; per Director Mayorkas, the first step in fixing this problem was to create a new website where an applicant can monitor his or her own case more easily than in the past;
5) The Future
USCIS is modernizing its current practices, including moving from a paper-based facility to databases to give the community more access to information pertinent to their cases. USCIS is also preparing for the passing of Comprehensive Immigration Reform.
When asked further questions regarding Comprehensive Immigration Reform, Director Mayorkas commented vaguely that the President and Secretary Napolitano are managing the details of the reform. USCIS’ role is to implement the reform when it is passed. He did not add anything further regarding this topic.
We will closely monitor the upcoming changes within USCIS and report back on whether the changes are effective. We will also be paying close attention to any further news regarding Comprehensive Immigration Reform.
We are encouraged by the willingness of Director Mayorkas to meet with the public to provide insight into his vision for the future of USCIS. We hope that he can implement positive changes and provide better, more equitable service to the public.
Friday, September 4, 2009
Crackdown on employers who hire undocumented foreign nationals:
On July 1, Homeland Security Secretary Janet Napolitano announced that ICE was increasing audits of employers to verify whether their employees were eligible to work. According to ICE, at this time, records of over 600 companies are being reviewed.
One of the companies under review is clothing manufacturer, American Apparel. ICE reviewed the company’s I-9 records and notified the executives that there were approximately 1600 employees that may be in the country illegally. After the completion of the audit, a representative of the company announced that American Apparel would have to terminate the employment of approximately 1500 individuals. The company may also face an exorbitant fine.
The audit process begins with the review of the I-9 forms and other necessary employment records of a company. If an investigating agent believes that a business knowingly hired illegal workers, criminal investigations will be initiated. Additionally, fines for companies found to employ undocumented workers could exceed $800 per employee who was illegally employed.
According to an article in the Wall Street Journal, recent research indicates that there are over 11 million undocumented immigrants living in the U.S. However, without undocumented immigrants, industries such as construction and agriculture could be in trouble.
Whereas the Bush administration focused on workplace raids which led to the detention and removal of thousands of undocumented immigrants, the Obama administration has shifted its enforcement efforts towards employers. Although the administration is focusing on employers, it seems likely that any undocumented immigrants employed at the companies being reviewed could end up finding themselves on Homeland Security’s radar. We will be watching with concern to see how this develops over time.
For further information, please visit:
http://online.wsj.com/article/SB125055700606938851.html
http://online.wsj.com/article/SB125201213087984483.html
One of the companies under review is clothing manufacturer, American Apparel. ICE reviewed the company’s I-9 records and notified the executives that there were approximately 1600 employees that may be in the country illegally. After the completion of the audit, a representative of the company announced that American Apparel would have to terminate the employment of approximately 1500 individuals. The company may also face an exorbitant fine.
The audit process begins with the review of the I-9 forms and other necessary employment records of a company. If an investigating agent believes that a business knowingly hired illegal workers, criminal investigations will be initiated. Additionally, fines for companies found to employ undocumented workers could exceed $800 per employee who was illegally employed.
According to an article in the Wall Street Journal, recent research indicates that there are over 11 million undocumented immigrants living in the U.S. However, without undocumented immigrants, industries such as construction and agriculture could be in trouble.
Whereas the Bush administration focused on workplace raids which led to the detention and removal of thousands of undocumented immigrants, the Obama administration has shifted its enforcement efforts towards employers. Although the administration is focusing on employers, it seems likely that any undocumented immigrants employed at the companies being reviewed could end up finding themselves on Homeland Security’s radar. We will be watching with concern to see how this develops over time.
For further information, please visit:
http://online.wsj.com/article/SB125055700606938851.html
http://online.wsj.com/article/SB125201213087984483.html
Thursday, August 6, 2009
New Partner Announcement
We are very pleased to announce that Richa Puri, Esq. has joined our law firm as partner. Ms. Puri possesses more than 7 years of experience handling a broad range of immigration matters. Prior to joining the firm, Ms. Puri was an associate at Berry Appleman & Leiden LLP. Ms. Puri can be reached at (212) 748-3335 or rpuri@yee-durkin.com
Monday, July 6, 2009
A reminder about New York City's Executive Order 41
Since September 17, 2003, all immigrants residing in New York City have enjoyed the right to access city services, regardless of immigration status. This is all due to Executive Order 41, which directs all city employees to protect the confidentiality of certain personal information, including not only immigration status, but sexual orientation, status as a victim of domestic violence, and status as a crime witness. This means, for instance, that victims of crimes can report such crimes to police without fear of being inquired about their immigration status. Similarly, New York City residents can seek services or benefits from a city agency, without being asked about their immigration status, unless it is required by law or required to establish eligibility for such services or benefits.The following is a list of services available to non-US citizens regardless of immigration status:
-Healthcare for children under 19
-Emergency Medical Care
-Prenatal care for pregnant women (under PCAP)
-Immunizations
-Emergency Shelter
-Public School Education
-School Breakfast and Lunch Programs
-Senior Services and Center Programs
-Public Library Services
-Public transportation
-Police and Fire Protection
For more information regarding Executive Order 41, see http://www.nyc.gov/html/imm/downloads/pdf/eo41english.pdf.
-Healthcare for children under 19
-Emergency Medical Care
-Prenatal care for pregnant women (under PCAP)
-Immunizations
-Emergency Shelter
-Public School Education
-School Breakfast and Lunch Programs
-Senior Services and Center Programs
-Public Library Services
-Public transportation
-Police and Fire Protection
For more information regarding Executive Order 41, see http://www.nyc.gov/html/imm/downloads/pdf/eo41english.pdf.
Wednesday, July 1, 2009
Immigration Law Open House
YEE & DURKIN, LLP-A Fresh Approach to Immigration Law
You are cordially invited to attend our Immigration Law Open House for a free 15 minute consultation on Saturday, July 11, 2009 from 10:00am until 5:00pm at our law office located at:
74 Trinity Place, Ste. 1301, New York, NY 10006
Please call (212) 748-3335 or visit www.yee-durkin.com to register and for more information. Complimentary Refreshments will be served.
Wednesday, June 24, 2009
Immigration Law Open House
YEE & DURKIN, LLP-A Fresh Approach to Immigration Law
You are cordially invited to attend our Immigration Law Open House for a free 15 minute consultation on Saturday, July 11, 2009 from 10:00am until 5:00pm at our law office located at:
74 Trinity Place, Ste. 1301, New York, NY 10006
Please call (212) 748-3335 or visit www.yee-durkin.com to register and for more information. Complimentary Refreshments will be served.
Myths about ITIN’s
What is an ITIN? An Individual Taxpayer Identification Number (ITIN) is a tax processing number issued by the Internal Revenue Service (IRS) to individuals who are required to have a U.S. taxpayer identification number but who are not eligible to obtain a Social Security Number. To receive an ITIN, individuals must have a filing requirement and file a valid federal income tax return (unless they meet an exception). ITINs are for federal tax reporting only, and not for any other purpose. An ITIN does not authorize work in the U.S. or provide eligibility for Social Security benefits or the Earned Income Tax Credit. IRS issues ITINs to help individuals comply with the U.S. tax laws, and to provide a means to process and account for tax returns and payments for those not eligible for Social Security Numbers.
Many undocumented immigrants obtained ITIN’s in order to file tax returns with the IRS. However, there are misconceptions that having an ITIN gives individuals the right to live and work in the United States, obtain loans, and open bank accounts. We would like to caution readers that not only are these improper uses of the ITIN, but to be wary of immigration and tax consultants who charge individuals a fee to obtain an ITIN. The application for an ITIN is free of charge. For more information regarding ITIN’s, please visit http://www.irs.gov/individuals/article/0,,id=96287,00.html.
Many undocumented immigrants obtained ITIN’s in order to file tax returns with the IRS. However, there are misconceptions that having an ITIN gives individuals the right to live and work in the United States, obtain loans, and open bank accounts. We would like to caution readers that not only are these improper uses of the ITIN, but to be wary of immigration and tax consultants who charge individuals a fee to obtain an ITIN. The application for an ITIN is free of charge. For more information regarding ITIN’s, please visit http://www.irs.gov/individuals/article/0,,id=96287,00.html.
Tuesday, June 23, 2009
USCIS Announces Permanent Resident Card Delays
On 5/29/09 USCIS announced delays of up to eight weeks in the delivery of permanent resident cards while the agency is in the process of upgrading its card production equipment. USCIS will therefore issue I-551 stamps as temporary evidence of permanent residence to approved applicants after their adjustment interviews. Applicants whose applications were approved subsequent to their interviews may request an I-551 stamp by scheduling an INFOPASS appointment.
Immigration Law Open House
YEE & DURKIN, LLP-A Fresh Approach to Immigration Law
You are cordially invited to attend our Immigration Law Open House for a free 15 minute consultation on Saturday, July 11, 2009 from 10:00am until 5:00pm at our law office located at:
74 Trinity Place, Ste. 1301, New York, NY 10006
Please call (212) 748-3335 or visit http://www.yee-durkin.com/ to register and for more information. Complimentary Refreshments will be served.
Tuesday, June 9, 2009
DHS Establishes Interim Relief for Widows of U.S. Citizens
Today DHS Secretary Janet Napolitano granted deferred action for two years to widows and widowers of U.S. citizens (as well as their unmarried children under 18 years old) who reside in the United States and who were married for less than two years prior to their spouse’s death. While Secretary Napolitano's directive is not a permanent solution to the so-called "widow penalty," we nonetheless commend her efforts in recognizing and addressing the harsh results that can befall widows and widowers through no fault of their own. A press release regarding this directive can be found at http://www.dhs.gov/ynews/releases/pr_1244578412501.shtm
Tuesday, February 17, 2009
Welcome to our blog
We are excited to create our new blog through which we hope to share news, insights and commentary on issues relating to immigrants and immigration. As experienced immigration lawyers and descendents of recent immigrants ourselves, we have legal expertise and an understanding of the challenges that new immigrants face. This makes us both effective and compassionate advocates for our clients. We look forward to providing our readers with interesting and valuable information.
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