Kathryn Karam in Lebanon Times Magazine on the H-1B Visa Petition Filing Rush: April Isn't Just Tax Season. See p. 56: http://www.lebanontimesmagazine.net/April_2014_number_23_from_page_42_to_page_68_.pdf
The American Immigration Council (AIC) has reported that Sen. Nancy Pelosi will file a Discharge Petition to bring HR 15, an immigration reform bill that has been sitting at the House of Representatives for months, to the floor for a vote.
The USCIS California Service Center (CSC), which processes EB-5 Immigrant Investor Petitions, has released processing times:
On January 30, 2014, the Board of Alien Labor Certification Appeals (BALCA) reversed the denial of a Labor Certification submitted by the Clariden School for the position of “AMI Montessori Elementary Teacher.” The certification was initially denied because the school indicated on the ETA Form 9089 that the minimum educational requirement for the position was a Bachelor’s degree. The school reported that the highest level of education achieved by the foreign worker was “AMI Certification.” Although the school submitted a document from the Montessori Training Center of Minnesota stating that a Bachelor’s degree is required for admission to its AMI Montessori Diploma program, the U.S. Department of Labor (DOL) contended that the school’s representation on Form 9089 did not enable DOL to verify that the foreign worker earned a Bachelor’s degree, and should have used the free form space on the Form to disclose that the foreign worker possessed a Bachelor’s degree on top of AMI Certification.
In minutes from a March 6, 2014 meeting between U.S. Customs and Border Protection (CBP) officials and representatives of the American Immigration Lawyers Association (AILA), CBP has indicated that Freedom of Information Act (FOIA) requests filed to obtain records from CBP are taking 10-12 months to complete. The CBP FOIA unit indicated that the ability to submit a FOIA request online to CBP has cut down on the amount of work required to process requests. CBP also stated that it would like to cut processing times down further.
USCIS posted an announcement indicating that it will begin processing cap-subject H-1B petitions filed with requests for Premium Processing on April 15, 2014. The announcement also stated that USCIS is anticipating that it may reach the cap during the first week of April. Where more petitions are received than H-1B visas during the first week of April, USCIS conducts a lottery to randomly select the petitions that will be counted in the H-1B cap.
The U.S. Embassy in Caracas posted a notice on its website that due to the expulsion of some consular officers and delays in visa issuance for other consular officials, it does not have sufficient staff to process first-time visitor visa applications except in "emergency situations." The alert noted that applicants may apply at other posts but must still prove sufficient ties to their home country.
Members of the American Immigration Lawyers Association (AILA) have indicated that they are not receiving email notifications that Labor Condition Applications (LCAs) have been certified through the Department of Labor's Icert Portal. However, the status of an LCA can be verified and a certified LCA may be printed by logging into the Icert portal. The LCA must be certified before an H-1B petition can be filed. April 1st is the first day to file H-1B petitions and petitions may only be filed until the fiscal year cap is reached. The cap is often reached in the first 1-2 weeks, so it is important for those preparing to file H-1B petitions to log into Icert to check the status of their LCAs.
Yesterday, U.S. Citizenship and Immigration Services (USCIS) indicated in correspondence to stakeholders that it will reopen "all I-601A waiver applications that were denied prior to January 24, 2014, solely because of a prior criminal offense, in order to determine whether there is reason to believe the prior criminal offense might render the applicant inadmissible."
Late Thursday, the Associated Press reported that President Obama has directed Jeh Johnson, Secretary of Homeland Security, to review the agency's deportation policy to operate "more humanely within the confines of the law." Critics, including a spokesman from the office of House Speaker John Boehner, have indicated that until immigration laws are reformed through the democratic process, the executive branch has a duty to enforce the laws as they are written. Supporters of immigration reform were encouraged by the President's showing of compassion toward the families of those facing deportation.
Read Kathryn Karam's latest publication in the March 16th edition of the Houston Business Journal.
On June 4, 2013, the Sixth Circuit Court of Appeals held that a person who originally entered the U.S. illegally but has since been granted Temporary Protected Status (TPS) is eligible to adjust status to Lawful Permanent Resident. The U.S. government's position was (and still is) that TPS is not a lawful nonimmigrant status and therefore a person granted TPS has not been admitted to the United States. Because the U.S. government takes this position with respect to TPS holders, USCIS has denied Adjustment of Status applications filed by people who entered the United States illegally but were later granted TPS.
Teresa and Joe Giudice, stars of the reality TV series Real Housewives of New Jersey, have reportedly reached a plea agreement in a federal bank fraud case according to a report in AbovetheLaw.com. The details of Joe's plea have not been released, but the damages alleged are over$1 million. A guilty plea will make Joe guilty of an aggravated felony under INA section 101(a)(43)(m) because he has committed a crime involving fraud or deceit which causes losses of over $10,000. Aggravated felonies carry serious consequences in our immigration system. Once a person pleads guilty or is otherwise convicted of an aggravated felony, he is not eligible for more forms of relief from deportation. In the Fifth Circuit (which covers Texas, Louisiana and Mississippi) under controlling precedent, he may apply to re-adjust his status to lawful permanent resident with a criminal waiver under INA section 212(h) if he adjusted his status to lawful permanent resident. If he entered the United States with an immigrant visa, the waiver would not be available to him and he would be ineligible to re-adjust his status. Since Joe resides in New Jersey, what will happen in his immigration case will depend on whether he entered the United States with an immigrant visa, and if not, whether the Third Circuit court of appeals will entertain the arguments made before the Fifth Circuit regarding a permanent resident's eligibility to file to readjust status with a 212(h) waiver.
The U.S. Department of Homeland Security has introduced a new web-based Freedom of Information Act (FOIA) request form. A FOIA request may be submitted to obtain a person's records from a government agency. In the immigration context, FOIA requests are often submitted to obtain copies of a person's immigration records in order to review their immigration history or obtain a copy of a notice or document that is contained in their files.
USA Today has cited a recent brief by the National Foundation for American Policy (NFAP). The brief notes increases in the denial rates of L-1B specialized knowledge transferee petitions. The USA today report also includes commentary from groups both in favor of and against higher levels of legal immigration. that the number of L-1B petitions filed has increased in recent years. Earlier this month, USCIS responded to a Freedom of Information Act Request filed by a representative of the American Immigration Lawyers Association by releasing statistics on the number of L-1B petitions filed, approved, and denied in FY 2012 and 2013.
The Alliance of Motion Picture and Television Producers (AMPTP) has revised its procedures for seeking a consultation to be included in an O-1 or O-2 visa petition. Beginning March 17, 2014 a deal memo or contract with specific items must be included with all requests for a consultation. The deal memo or contract between the employer and O visa petition beneficiary must include:
U.S. Citizenship and Immigration Services (USCIS) has released the Administrative Appeals Office (AAO) processing times as of March 1, 2014. In recent years, USCIS added adjudications officers in the hopes of reducing heavily-backlogged caseloads. Where an employment-based, third preference I-140 appeal used to take over two years to be adjudicated at the AAO, the same appeal would now be handled within 6 months according to the newly-released processing time information. The newly released AAO processing times are available here.
The Department of Homeland Security Announced that it was issuing a Final Rule implementing the Prison Rape Elimination Act (PREA) Regulations. The Rule covers immigration detention facilities where individuals are detained while in immigration proceedings or awaiting deportation, either of which may take weeks or months. The Rule also covers holding facilities used by Immigration Customs Enforcement (ICE) and Customs and Border Protection (CBP) to temporarily detain people who may ultimately be released or transferred to a jail, prison, court, or other agency or unit. These rules will also cover private prisons who contract their services to ICE, such as the Houston facility at 15850 Export Plaza Drive, when there is a substantive contract modification, a new contract, or a contract renewal. The new Rule is effective May 6, 2014 and is available here.
On February 28th, the U.S. Department of State announced that Chile would be added to the Visa Waiver Program. Beginning May 1, 2014, nationals of Chile may enter the United States without a visa, provided they meet the requirements of the Visa Waiver Program. The full announcement is available here.
Last week Charlie W. Oppenheim, Chief of Immigrant Control & Reporting of the State Department, indicated that the EB-5 employment-based visa category would remain current for the foreseeable future. This comes after speculation that EB-5 China might retrogress due to heavy demand in the EB-5 China category. Mr. Oppenheim further indicated that EB-5 availability might be affected in the June or July 2014 Visa Bulletin and that he would try to provide notice one or two months ahead of any retrogression.
USCIS announced on March 3rd that it will extend Temporary Protected Status (TPS) for nationals of Haiti for an additional 18 months, through January 22, 2016. This is good news for all Haitian nationals present in the U.S. pursuant to TPS. See the full announcement here.
The U.S. Department of State has released the April 2014 Visa bulletin. In the Family-Based categories, F-2A (spouses and minor children of permanent residents) is holding at September 8, 2013 for much of the world, In the Employment-Based categories, EB-3 (professionals holding at least a bachelor's degree) Rest-of-World, China and Mexico have progressed to October 1, 2012, while EB-3 India remains backlogged to September 15, 2003 and EB-3 Philippines is backlogged to July 15, 2007.
USCIS released statistics on the number of L-1B Specialized Knowledge Petitions it received, approved, and denied this week. The statistics indicate that USCIS issued Request for Evidence (RFE) in roughly half of L-1B petitions filed in FY 2013. The statistics were released In response to a Freedom of Information Act (FOIA) Request submitted by the American Immigration Lawyers Association (AILA) USCIS Liaison. The statistics also show that the California Service Center issued RFEs slightly more often than the Vermont Service Center.
Since June 2013, EB-3 China has been ahead of EB-2 China. This trend will continue during the month of March.
See Kathryn Karam's new article, Entering a Season of Luck and Hope, on p. 57 of this months' issue of Lebanon Times magazine.