In November 2012 the US will be holding presidential elections. At various locations throughout the United States including Ohio voter registration activity will be heightened. All United States citizens are encouraged to participate in the election process. The qualifications to vote in United States require that you be a United States citizen and 18 years of age.

It is important that foreign nationals that are not United States citizens if asked to register to vote exercise extreme caution before registering. Immigration and Nationality act provides significant penalties for anyone that falsely claims United States citizenship.

Another common place where a false claim to United States citizenship may occur is when a foreign national is completing a form I9, employment eligibility verification form. The I-9 is used for all new hires and requires his checking a block indicating among other things whether the applicant is a United States citizen. DHS often requests copies of the form I-9 from employers when a foreign national seeks a nonimmigrant status, immigrant status or United States citizenship.

Any alien who falsely represents or has falsely represented himself or herself to be a citizen of the United States for any purpose or benefit under the immigration act or any other Federal or State law is inadmissible to the United States and is deportable from the United States.

There is an exception to the admissibility and deportability for a foreign national that makes a false representation holding out to be a citizen of the United States for any purpose under the immigration act or any Federal or State law. The exception is in the case of an alien making a representation to being a United States citizen if each natural parent of the alien or in the case of an adopted alien each adopted parent of the alien is or was a citizen, whether by birth or naturalization, the alien permanently resided in United States prior to attaining the age of 16, and the alien reasonably believed at the time of making such representation that he or she was a citizen. In this instance, the alien will not be considered to be inadmissible or deportable based on the false claim to United States citizenship.

These provisions of the immigration and nationality act apply to any false claims to United States citizenship made on or after September 30, 1996. The DHS has reminded all its officers that the law is broader than other laws since it does not just applied to citizenship claims made to obtain a benefit under the immigration law. Example, when someone claims to be United States citizen in order to vote and on form I-9.

Persons found inadmissible under these provisions of the immigration and nationality act up permanently inadmissible and there are NO waivers available.

Non-immigrants may, however, apply for a discretionary waiver. A nonimmigrant waiver is decided by DHS based on a legal standard outlined in cases determined by the Board of immigration Appeals (BIA). The BIA set out 3 factors to be considered when deciding nonimmigrant waiver applications. These factors are:

1.       the risk of harm in admitting the applicant to the United States;

2.       the seriousness of the acts that caused the inadmissibility; and

3.       the importance of the applicant's reasons for seeking entry to the United States.

Since a false claim to United States citizenship is considered a serious violation of the immigration law for which there is a lifetime bar to obtaining permanent residence unless you obtain a waiver as a nonimmigrant you will need a very strong case to receive the waiver.

Where a person has made a claim of United States citizenship prior to September 30, 1996 the claim must have been related to an immigration benefit such as for a visa, admission to the United States or a US passport and the false claim must have been made to a government official. After 1996 the claim no longer need be made to a government official nor is it limited to use relating to an immigration benefit.

Presently and under the proposed change the 3 to 10 year bar may be waived to allow spouses and children to return to their US families if they are able to demonstrate that the United States citizen or lawful resident family member would suffer extreme hardship as a result of the separation.

The proposal on January 6, 2012 does not eliminate the bar nor does it eliminate the waiver requirements but provides for a new procedure and filing process for the waiver of unlawful presence. Before the proposal and continuing until the proposal becomes final the CIS processed the waiver only after the foreign national departs United States. Processing the waiver in this matter often results in lengthy separation of families.  Under the new process proposal, the children and spouses of American citizens and lawful residents that are eligible for a visa to migrate to United States lawfully but who need the waiver  will be permitted to apply for a provisional waiver before they depart the United States for their immigrant visa processing at a US consulate or embassy abroad.

This new streamlined process is available only to those individuals that are not admissible because they have accrued unlawful presence in United States and who can demonstrate extreme hardship to their qualifying US relative. All persons that are affected by this new process are remain required to demonstrate that they meet all other legal standards for admission see United States, including the requirement that they process their visa application outside United States at a US consulate.

Those persons that currently qualify for a waiver of inadmissibility under the existing requirements who are able to demonstrate the separation will cause extreme hardship will be permitted to apply for the waiver while still in United States. The new proposal will permit CIS to provide a more predictable, improved, and transparent process minimizing the separation time of families from their United States relatives. This process will further s streamline the processing for both the CIS and the Department of State offices handling this type of waiver. Thus resulting in the elimination or significantly reducing the amount of time the foreign national needs to spend abroad.

Since the proposal on January 6, 2012 the CIS is undertaking additional analysis and establishing a collaborative effort with the Department of State to develop in greater detail the streamlined process. In the coming months CIS will publish a proposed rule providing additional details and permitting public comment. Subsequently, a final rule will eventually be published implementing the process.

Again, the new rule will not change or modify the standard for approving or denying a waiver for extreme hardship rather, it only modifies and streamlines the process for filing of the waiver application. Look for more on this exciting change in the near future.

Any properly filed case will be considered received on the date that the USCIS physically receives the case not the date of post mark. Any case received after November 22, 2011 will be rejected.

More than 20,000 H-1B petitions filed under the cap exempt provisions for the 'advanced degree' exception have also been received, however, USCIS will continue to accept and process petitions that are otherwise exempt the cap along with cases that have been previously counted against the cap. The petitions USCIS will continue to accept are petitions to:

• extend the amount of time a current H-1B worker may remain in the U.S.;
• change the terms of employment for current H-1B workers;
• allow current H-1B workers to change employers; and
• allow current H-1B workers to work concurrently in a second H-1B position.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields such as scientists, engineers or computer programmers.

The H-1B Visa Program

H-1B visas allow employers in the U.S. to temporarily employ foreign workers for up to six years in fields that require 'specialty occupations.' Specialty occupations are jobs that 'require theoretical or technical expertise in specialized fields.' Some examples of such occupations include those in law, medicine, accounting, science, engineering, and computer programming. The jobs generally require the employees to have the equivalent of a U.S. bachelor's degree and, for some jobs, appropriate licensure. H-1B visas allow the worker and his or her spouse and children under 21 years old to live in the U.S. during the duration of the visa. An H-1B visa is a 'dual-intent' visa, ('L' visas also permit dual intent), which means, unlike with other nonimmigrant visas, the government will not deny the H-B visa if the employee intends to become a permanent resident (green card).

Filing an H-B Visa Petition

An employer cannot begin the H-1B visa process more than six months before the start date of the visa. To obtain an H-1B visa (status) and employer must:

• Complete a Form I-129 petition, focusing special attention on the H Classification Supplement and the H-B Data Collection and Filing Fee Exemption Supplemen
•  Ensure each form has an original signature, preferably in blue ink
• Enclose a check or money order for the appropriate fee amount
• Attach the required additional documentation
• Mail the petition to the appropriate Service Center for processing

Some of the additional documentation that the employer needs to submit with the Form I-129 includes:

• Labor Conditional Application (LCA) Form ETA 9035
• Evidence of the employee's educational background

El secretario del Departamento de la Seguridad Nacional, Janet Napolitano dijo que el cambio permitirá que el Departamento de Seguridad Nacional pueda enfocar los recursos de inmigración (incluyendo a si a los tribunales de Inmigración) en los casos de alta prioridad, como los casos de deportación de inmigrantes no documentados con antecedentes penales.  Según Napolitano, los casos de menos prioridad obstruyen "la lista de los casos del tribunal de inmigración y desvían la atención de los recursos de DHS (Departamento de Seguridad Nacional) aquellos individuos que representan una amenaza a la seguridad pública.

En este momento hay tantos casos en el tribunal de inmigración que puede durar meses aun años hasta que los jueces de inmigración puedan ver un caso de deportación.

La adminstración comenzará con una revisión caso por caso de las personas que actualmente se encuentran en ser removidos.  Casos de menos prioridad serán aquellos que sean esposos de militares, aquellos que fueron traídos a los Estados Unidos cuando niños y aquellos sin antecedentes penales.

Esta decisión sigue de un memorandum de Junio por el Departamento de Inmigración y Aduanas (ICE) del director John Morton.  El memo describe la discreción de fiscales tienen que tomar decisiones en casos de deportación de los inmigrantes. Morton dijo a los agentes de considerar la cantidad de tiempo han estado en los Estados Unidos, la condición de miembros de la familia y los antecedentes penales entre otras cosas.

De acuerdo con el Wall Street Journal, mas de 390,000 de inmigrantes indocumentados fueron deporatados el año pasado.