Tag Archives: H-1B

Rescission of INA 212(a)(6)(C)(i) (Misrepresentation) Finding + Grant of H-1B Visa = A True Success Story

In September 2018, the U.S. Embassy issued an H-1B temporary worker visa to my client after previously finding he is permanently inadmissible under INA 212(a)(6)(C)(i), i.e. willful misrepresentation of material fact to gain U.S. immigration benefits. At the visa interview, he relied on my recommendations to explain why the misrepresentation bar does not apply to him.

The Embassy did not specify the factual basis for the misrepresentation finding. But years ago, my client’s H-1B visa was revoked by the U.S. Customs & Border Protection (CBP) and he was denied entry and allowed to withdraw his application for admission.

In particular, at primary inspection, the CBP officer asked him about his relationship with the H-1B petitioner (consulting firm) and the end client. Instead of naming the consulting firm as his U.S. employer, he mistakenly gave the name of the end client, where he was assigned to work. From there, confusion began.  At secondary inspection, the CBP questioned him extensively and ultimately denied his entry under INA 212(a)(7)(A)(i)(I)(intended immigrant without valid travel document) – which CBP often uses as a catch-all provision to refuse admission to the U.S.

A few years later, the Embassy did issue him a new H-1B visa based on an approved I-129 petition by another U.S. employer, without raising the misrepresentation bar. But when he later requested a visa renewal to enter the United States following a trip abroad, the Embassy requested several documents related to his previous employments in the United States. These included the I-797 (receipt and approval) notices for all H-1Bs; all I-129/H-1B petitions filed on his behalf; Labor Condition Applications in support of the H-1B petitions filed on his behalf; support letter from the end client; employment contracts; and pay statements.

Despite receiving the requested documents, the Embassy denied the H-1B visa  under INA 212(a)(6)(C)(i). When he applied again for the H-1B visa three months later – at the direction of his U.S. employer – the Embassy said nothing had changed and again refused the visa under section 212(a)(6)(C)(i).

After being denied the H-1B visa twice on misrepresentation grounds, he contacted me to prepare a Motion to Reconsider and Rescind Inadmissibility Determination Under INA 212(a)(6)(C)(i). The Embassy accepted my legal memorandum and some of the documentary evidence establishing the section 212(a)(6)(C)(i) bar was applied in error. It placed the case in administrative processing and then finally granted the visa two months later.

Although my client could have filed for a 212(d)(3) nonimmigrant waiver, I explained this would take a longer time to process and a waiver grant would still leave the section 212(a)(6)(C)(i) bar intact. He also had an approved I-140 immigrant petition filed on his behalf and the 212(d)(3) waiver would not overcome the inadmissibility ground to receiving an immigrant visa or green card. With no qualifying relative (U.S. citizen or permanent resident spouse or parent) to be eligible for a Form I-601/INA 212(i) immigrant waiver, he would be subject to being denied permanent residence as long as the 212(a)(6)(c) bar remained.

Furthermore, and most important, he had made no willful misrepresentation of material fact to obtain an H-1B visa or any other U.S. immigration benefit. I pointed out that if the Embassy agreed to rescind the section 212(a)(6)(C)(i) charge, he would not require a 212(d)(3) waiver for the H-1B visa to be issued.

Two months following the visa interview, the Embassy instructed my client to submit his passport. It issued the H-1B visa to him and he re-entered the United States without any problems. 

Because the Embassy vacated the section 212(a)(6)(C)(i) charge, my client will not need a 212(d)(3) nonimmigrant waiver to receive a new H-1B or other nonimmigrant visa. He also will not require a Form I-601/INA 212(i) waiver to obtain permanent residence in the United States.

Through emails, telephone calls  and video conferences, my client and I worked together to convince the Embassy to vacate the misrepresentation bar and grant the H-1B visa. This is a true success story in which he timely received the visa after being denied it twice in a row.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
dw@dyanwilliamslaw.com

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Grant of Motion to Vacate INA 212(a)(6)(C)(i) (Misrepresentation) Charge+ Issuance of H-1B Temporary Worker Visa = A True Success Story

Within 50 days of attending his visa interview at the U.S. Embassy, my client was cleared of the INA 212(a)(6)(C)(i) inadmissibility charge and received his H-1B visa to resume his employment in the United States. The Embassy had previously found that he willfully misrepresented material fact when he failed to disclose he had been arrested and charged with Domestic Violence on his prior Form DS-160, nonimmigrant visa application, and during the visa interview.

This lifetime inadmissibility bar prevented him from obtaining the visa without first receiving a 212(d)(3) nonimmigrant waiver from the U.S. Customs & Border Protection, Admissibility Review Office. This waiver normally takes at least four to six months to process, assuming the Embassy makes a favorable recommendation and forwards the request to the CBP-ARO for review and a decision.

At the outset, I explained to the client that he had solid grounds to challenge the inadmissibility finding. He did not disclose the arrest or charge against him because it was was based on false allegations of Domestic Violence by his now ex-wife. He denied these unsubstantiated claims and did not plead guilty to the offense. The court also dismissed the charge due to lack of evidence.  There was no conviction or formal admission to committing the offense.

Because he was not inadmissible on crime-related grounds, his omission of the arrest and charge was immaterial to his visa eligibility. If he had disclosed this information on his visa application and during the interview – as he should have – he still would have qualified for the visa.

I explained to the client that while the 212(d)(3)(A) waiver request is a viable, alternative solution, it has several disadvantages. First, this path would leave the INA 212(a)(6)(C)(i) bar in his record because it only waives the inadmissibility ground, but does not get rid of it.

Second, the 212(d)(3) waiver is valid for up to 60 months (5 years), which means he would need to file for a new one, upon expiration, to continue to receive nonimmigrant visas. Furthermore, the 212(d)(3) waiver is for nonimmigrants and does not allow the issuance of a green card or immigrant visa to intended immigrants when the person is inadmissible under INA 212(a)(6)(C)(i). Rather, he would instead require a Form I-601/INA 212(i) immigrant waiver, which carries stricter eligibility requirements and higher evidentiary standards.

Moreover, the lengthy processing time for the 212(d)(3) waiver put the client at high risk of losing his position in the United States. His employer was already facing financial difficulties and project delays due to his absence.

I advised the client to apply again for the H-1B  visa and counseled him on how to present his case at the new visa interview. He opted for the 212(d)(3) waiver as a backup option and presented a Motion to Reconsider and Rescind Inadmissibility Determination Under INA 212(a)(6)(C)(i) (willful misrepresentation of material fact to gain immigration benefit) as his primary solution.

To support the Motion to Reconsider, I wrote a legal memorandum explaining  how the INA 212(a)(6)(C)(i) bar was applied in error and should be vacated to allow the Embassy to issue the visa without requiring a 212(d)(3) waiver. I also helped the client finalize his written testimony in support of the motion, as well as prepared him for oral testimony at the visa interview. The Embassy accepted the legal memorandum and written testimony and listened to his oral testimony. It then placed the case in administrative processing.

Following the visa interview, the client waited approximately 30 days to receive instructions from the Embassy to submit his passport.  The Embassy took another 20 days to process and issue the H-1B visa showing clearance was received. During the waiting period, I submitted several follow-up inquiries to the Embassy to request the visa issuance and to help relieve the client’s anxiety.

A few days later, my client entered the United States with his new H-1B visa. At the U.S. port of entry, the U.S. Customs & Border Protection asked no questions about the prior inadmissibility finding.

The section 212(a)(6)(C)(i) charge was removed and the client is no longer subject to this permanent bar. As such, he will not need a 212(d)(3) nonimmigrant waiver to receive a new H-1B or other nonimmigrant visa. In addition, he will not require a Form I-601/INA 212(i) waiver to obtain permanent residence in the United States.

During the course of representation, I gathered information and answered questions from the client by email and video calls. Despite never having an in-person meeting, we effectively collaborated and communicated with each other to create a true success story.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
dw@dyanwilliamslaw.com

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Timely Filed H-1B Cap-Subject Petition + Complete Response to RFE = A True Success Story

On October 26, 2017, U.S. Citizenship & Immigration Services, California Service Center, approved an H-1B cap-subject petition that Dyan Williams Law PLLC filed for a non-profit organization on behalf of one of its preschool teachers. First, we had to file the petition in early April 2017 for it to be randomly selected in the H-1B lottery and reviewed on the merits. Next, we had to submit a timely Response to Request for Evidence (RFE) that fully addressed USCIS’ doubts on the position being a specialty occupation, which is a key H-1B requirement.

The H-1B petition, filed on April 3, 2017, was subject to the congressionally mandated, annual cap of 65,000 H-1B visas, which is commonly known as the “regular cap”. By April 7, USCIS announced it received enough H-1B petitions to reach the cap for its computer-generated random selection (lottery) process and, as of April 11, would reject and return all unselected petitions.

On April 14, USCIS issued a Form I-797C, Receipt Notice confirming the petition was selected in the lottery and was pending for review. Being chosen in the lottery was a win, by itself, because the petitioner’s prior cap-subject petition for the same beneficiary was not selected in the previous fiscal year. Fortunately, the beneficiary qualified for F-1 extension of post completion Optional Practical Training (OPT) and H-1B cap-gap benefits, which permitted her to work between the end of her F-1 status and the start of her H-1B status.

In July, after three months of waiting for further updates, we received USCIS’ Form I-797E, Request for Evidence, instructing the petitioner to submit a response by October 2. USCIS added that failure to submit all evidence requested at one time may result in the denial of the petition.

In particular, USCIS questioned whether the preschool teacher position is a “specialty occupation” that requires the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent.

The Service relied on the U.S. Department of Labor’s Occupational Outlook Handbook (OOH), which indicates a preschool teacher is an occupation that does not require a bachelor’s degree in a specific speciality as a normal, minimum for entry into the position. USCIS explained, “There is no standard for how one prepares for a career as a Preschool Teacher and no requirement for a degree in a specific specialty.”  It concluded the proffered position cannot be considered to have met this criterion.

Because normal industry standards indicates a bachelor’s or higher degree or its equivalent is not typically required for entry into a preschool teacher position, we had to show how at least one of the remaining three criteria is met:

1. the degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree

2. the employer normally requires a degree or its equivalent for the position

3. the nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree in a specific speciality

By narrowing down the petitioner’s industry to a certain category of organizations that require their preschool teachers to have at least a bachelor’s degree in early childhood education, elementary education, child psychology or related field, we established the position at issue is a specialty occupation.

To support the Response to RFE, I counseled the petitioner in gathering critical documentary evidence to meet the remaining three criteria. This included helping the petitioner prepare an affidavit (written testimony) and collect support letters from directors of similar organizations explaining why they normally require their preschool teachers to have at least a bachelor’s degree in a specific specialty.

We also presented various preschool teacher job postings at similar organizations requiring at least a bachelor’s degree in a specific specialty, as well as description pages from the organizations’ websites showing how similar they are to the petitioner’s organization.

In addition, we submitted documentary evidence demonstrating why the petitioner is held to a higher industry standard, for accreditation purposes, and its preschool teacher position is thus so specialized, complex or unique that it can be performed only by an individual with at least a bachelor’s degree in early childhood education, elementary education, child psychology or a related field.

To strengthen the Response to RFE, I prepared and submitted a legal memorandum discussing how the petitioner met its burden of proof and how the preschool teacher position at this non-profit entity meets at least one of the remaining three criteria to be classified as a specialty occupation for H-1B status.

Citing to the support letters and preschool teacher job postings from other employers, I explained the bachelor’s degree requirement is common to the industry in parallel positions among similar organizations. By describing the accreditation application and curriculum development processes used by the petitioner, I further described why it normally requires a bachelor’s degree or its equivalent for the position and why the job duties are so specialized and complex that only an individual with the degree can perform them.

I also recommended we obtain an expert opinion report confirming the preschool teacher position is unique and requires at least a bachelor’s degree in a related specialty, despite the OOH indicating no such degree is typically needed to enter the profession. By contacting a reputable evaluation service, I was able to procure such a report from a qualified professor of early childhood education.

After submitting a timely Response to RFE, we filed a Form I-907, Request for Premium Processing Service, which requires USCIS to issue a decision (approval or denial), RFE, or Notice of Intent to Deny within 15 calendar days, or refund the processing fee.

Within a week, USCIS approved the H-1B cap-subject petition and granted the beneficiary a change of status from F-1/OPT to H-1B. Getting the H-1B petition selected in the lottery, plus ultimately receiving an approval brought relief and joy to both the petitioner and beneficiary, who continue to have an employer-employee relationship.

To date, under the Trump Administration, there has been no congressional changes in law related to H-1B petitions or H-1B visas. But on April 18, 2017, President Trump signed the Buy American and Hire American Executive Order, which seeks to create higher wages and employment rates for U.S. workers and to protect their economic interests by rigorously enforcing and administering U.S. immigration laws. It also directs DHS, in coordination with other agencies, to advance policies to help ensure H-1B visas are awarded to the most-skilled or highest-paid beneficiaries.

Data provided by USCIS shows that between January and August 31, the agency issued 85,000 RFEs related to H-1B visa petitions – a 44% increase over the same period last year.  Meanwhile, the total number of H-1B petitions received by USCIS during this same period rose by less than 3 percent.

An RFE is issued after USCIS receives the petition and the reviewing officer concludes there is insufficient evidence or information to approve the case. The maximum response time for the petitioner is 84 days (12 weeks), although in some cases an additional 3 days is given to account for mailing time. An RFE delays the H-1B decision by several weeks or months and increases stress for both the petitioner and beneficiary seeking the H-1B status or visa.

It is becoming more common for USCIS to issue RFEs on the basis that the proffered position is not a specialty occupation. In The New York Times article, Is Anyone Good Enough for an H-1B visa?, an op-ed contributor wrote that he received two RFEs on this issue prior to receiving an H-1B denial. He notes:

My two requests for evidence asked me to prove my job was a “specialty occupation” – that is, work that only someone with a bachelor’s degree or higher can do. My work involves artificial intelligence and big data, and my letters of support came from an authority in my industry and veteran start-up investor, and a Nobel Peace Prize winner. But it wasn’t enough to convince the government that my job requires advanced skills. 

Not only does the job have to require a bachelor’s degree, the degree must also be in a related speciality. With tougher scrutiny and higher obstacles being placed on H-1B petitions, it is especially important for petitioners and beneficiaries to hire experienced immigration counsel to advise them in the application process, from start to finish.

Each fiscal year, H-1B petitioners strive to file cap-subject petitions in early April to be counted in the annual lottery. Whether you plan to file an H-1B petition or have received an RFE or denial on an H-1B petition already filed, contact Dyan Williams Law to obtain a consultation or inquire about representation.

In a consultation or through representation, we will apply our breadth of experience, unique skills and creative thinking to help you resolve your situation to the fullest extent possible.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
dw@dyanwilliamslaw.com

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

SUBSCRIBE           CONTACT

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The Trump Factor on Immigration: To Fear or Not to Fear?

Donald Trump’s Administration will begin when Barack Obama’s ends on January 20, 2017. The risk of deportation is expected to get higher for unauthorized immigrants, particularly those with illegal entries and certain criminal histories. A Trump Administration could also repeal Obama’s Deferred Action for Childhood Arrivals Program (DACA) and set the stage for H-1B (professional worker) visa reform.

These are just some of the potential changes in U.S. immigration, if you accept Trump’s rhetoric at face value.

Here’s how the Trump Factor could affect immigration if his 10 Point Plan to Put America First and election campaign promises are carried out: 

1. “Begin working on an impenetrable physical wall on the southern border, on day one.”  (#1 on Trump’s 10 Point Plan)

“Build that wall! Build that wall!” was a popular chant at Trump’s campaign rallies. According to Trump, the wall would cover 1,000 miles of nearly 2,000 miles of the southern U.S-Mexico border, with half of that protected by natural barriers.

As of today, there are already 700 miles of border fencing and some of it includes metal wall. There are also U.S. Border Patrol agents, drones, scanners and cameras protecting the border. A record number of removals and returns occurred under Obama.

Between 2000 and 2010, U.S. taxpayers spent $90 billion on border security. The costs involve deploying National Guard troops to the border, paying U.S. Customs and Border Protection (CBP) agents, building barriers, employing drug-sniffing dogs, and using predator drones.

Whether “an impenetrable physical wall” is built will depend on various factors, including who pays for it. Trump says Mexico will foot the bill. Otherwise, it might take an act of Congress to obtain funding for the wall.

A wall is mostly symbolic. It’s not enough to keep out unauthorized immigrants, especially those possessing fraudulent travel documents or those misusing their visas or the visa waiver program. Border security requires constant monitoring by properly trained CBP agents.

2. “End catch-and release.” (#2 on Trump’s 10 Point Plan)

Ending the so-called “catch-and release” policy will bring more serious immigration consequences to noncitizens stopped at the border. Trump’s plan is to detain anyone who illegally crosses the border until he/she is removed from the country.

In November 2014, the Obama Administration issued a Policy Memorandum on the apprehension, detention and removal of undocumented immigrants. The policy divided enforcement priorities into three general categories:

Priority 1: Aliens who pose a threat to national security, border security, or public safety.

Priority 2: Aliens who are misdemeanants and new immigration violators.

Priority 3: All other immigration violators.

The Policy Memorandum instructs the agencies to focus on priority one and priority two offenders. If the Memorandum is withdrawn by Trump, each local ICE agency will have more freedom to decide who it wants to remove from the U.S.

Policy Memorandums are opinion letters from agency heads instructing CBP, U.S. Immigration & Customs Enforcement (ICE) and U.S. Citizenship & Immigration Services (USCIS) how to enforce current law. The Trump Administration may readily revoke Policy Memorandums, and replace them with new, hard-line ones – consistent with laws already passed by Congress

While the Obama Administration prioritized the removal of criminal non-citizens and repeat offenders, Trump has vowed to detain all persons who enter the U.S. illegally and spare no group of unauthorized immigrants. This spells an increase in immigration detention, removal proceedings before immigration courts, and expedited removal at the border or ports of entries.

Resources are limited. If there is no formal prioritization for immigration enforcement, more immigration judges and prosecutors will be needed to prevent increased backlog in the removal system.

3. “Move criminal aliens out day one, in joint operations with local, state, and federal law enforcement.” (#3 on Trump’s 10 Point Plan)

Criminal aliens” is a very broad term. “Aliens” include lawful permanent residents (green card holders) because they are not U.S. citizens. Criminal offenses range from misdemeanors to felonies.  There are various types of crimes, such as DUI, assault, drug possession, theft, fraud, domestic violence, and murder.

Criminal convictions can lead to a non-citizen being deported from the U.S., denied entry (or reentry) into the U.S., and stripped of immigration benefits, including permanent residence. The immigration consequences continue long after the person has already served his sentence.

But under current immigration law, not all non-citizens with criminal offenses are subject to removal or denial of entry on crime-related grounds. For example, a noncitizen is deportable if convicted of a Crime Involving Moral Turpitude (other than a political offense), but only when it was committed within five years after the date of his admission to the U.S., and for which a sentence of one year or longer may be imposed.

In addition, the U.S. Constitution provides due process and equal protection to all persons, including “criminal aliens. ” In a 2001 case, Zadvydas v. Davis, the U.S. Supreme Court reaffirmed that the due process clause applies to aliens whose presence may be or is “lawful, unlawful, temporary, or permanent.”

Existing immigration law also permits defenses against removal and applications for relief from removal before the Immigration Court, if the person is eligible.

Due to Constitutional rights, legal obstacles, and limited cooperation from certain local law enforcement agencies, it will be very difficult for the Trump Administration to move criminal aliens out day one.

Still, Trump will get help from the U.S. Attorney General, who is in charge of the Justice Department’s Executive Office for Immigration Review, including the immigration courts. The office sets standards for hiring and selecting immigration judges, and for training them on how to apply immigration law.

Sen. Jeff Sessions (R-Ala.) has been picked by Trump for Attorney General and, if confirmed, will influence immigration policy. The Attorney General may issue legal opinions to promote executive actions; hire more hard-line judges for federal immigration courts; and challenge the legality of state immigration policies.

4. “End sanctuary cities.” (#4 on Trump’s 10 Point Plan)

Since Trump’s election, many “sanctuary” counties and cities, like New York, Minneapolis-St. Paul, San Francisco and Seattle have vowed to limit their cooperation with federal immigration authorities. They won’t stop immigration authorities from enforcing federal law within their boundaries. But they will focus on local law enforcement so residents don’t avoid talking to the police out of fear of deportation risks.

An “immigration hold” (detainer) is one of the key tools ICE agents use to apprehend individuals who come in contact with local and state law enforcement agencies and place them in the federal removal process.

An ICE detainer is a written request to a local jail or other law enforcement agency to detain persons for an additional 48 hours (excluding weekends and holidays) after their release date to permit ICE to decide whether to take them into federal custody for removal purposes. ICE detainers are not followed in some counties and they have been challenged in federal courts.

Threats to cut federal funding to “sanctuary” counties and cities do not make an effective long-term strategy.

5. “Immediately terminate President Obama’s two illegal executive amnesties.”  (#5 on Trump’s 10 Point Plan)

During his two-term Administration, Obama has never granted “amnesty” – at least not to the extent that President Reagan did when he signed the 1986 Immigration Reform and Control Act that permitted 3 million undocumented immigrants to apply for lawful immigrant status.

Through executive policy, Obama introduced the Deferred Action for Childhood Arrivals (DACA) program on June 15, 2012. DACA was made available to undocumented immigrants who were under the age of 31 and who came to the U.S. before age 16. Certain other eligibility requirements also have to be met, such as no conviction of a felony, significant misdemeanor,or three or more other misdemeanors, and no threat to national security or public safety.

While DACA provides relief from removal, work authorization, and authorized stay in the U.S., it does not offer a path to permanent residence or citizenship or provide lawful immigration status in the U.S. Moreover, USCIS may share the information in a DACA request with national security and law enforcement agencies, including ICE and CBP, for purposes other than deportation, including to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a crime.

The expanded DACA and new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) programs, that were expected to kick in on February 18, 2015 and May 19, 2015, respectively, were put on hold by a federal court injunction.

In a February 16, 2015 decision, U.S. District Court Judge Andrew Hanen in Texas sided with the Texas-led coalition of 26 states that filed a lawsuit to block the implementation of the expanded DACA and the new DAPA. Then in a June 23, 2016 decision, the U.S. Supreme Court affirmed the judgement in a 4-4 decision, effectively blocking the programs from being rolled out.

DACA and DAPA were intended to protect undocumented immigrants in low-priority categories from removal and bring them out of the shadows. But in his 10 Point Plan, Trump notes, “Anyone who enters the U.S. illegally is subject to deportation. That is what it means to have laws in this country.” Taken literally, this statement reveals that even undocumented immigrants who came to the country illegally as children, and who grew up in the U.S., do not have to be considered low priority for removal.

There is a growing fear of detention and removal among DACA recipients, who listed on the DACA applications all their residential addresses from the time they entered the U.S. Locating DACA recipients is easier than finding undocumented immigrants who never applied for the relief.

Some immigration attorneys are advising DACA recipients to avoid filing for renewals at this time, until the future of the program is decided after Trump takes office. Others recommend DACA renewals be filed while the program is still intact.

During his campaign, Trump promised to rescind such executive actions and orders by Obama. He may revoke DACA altogether or issue an order preventing new DACA applications or renewals. Whether the Trump Administration will use the addresses on the DACA applications to initiate removal proceedings is a concern. But for practical, political and financial reasons, Trump will likely prioritize removal of unauthorized immigrants with serious criminal records, just like Obama.

A repeal of Obama’s executive actions does not prevent immigrant relief passed by Congress. On December 9, 2016, Sen. Dick Durbin (D. Ill.) and Sen. Lindsey Graham (R-S.C.) introduced legislation called the Bar Removal of Individuals who Dream and Grow Our Economy (BRIDGE Act), to protect persons who would otherwise qualify for DACA.

6. “Suspend the issuance of visas to any place where adequate screening cannot occur, until proven and effective vetting mechanisms can be put into place.” (#6 on Trump’s 10 Point Plan)

The President sets the number of refugees who will resettle in the U.S. each year. The Obama Administration met its target of settling at least 10,000 Syrian refugees in the U.S. by the end of fiscal year 2016. On the other hand, Trump expressed his intent to halt the Syrian refugee program and “suspend immigration from terror-prone regions where vetting cannot safely occur.” The regions include Syria, Afghanistan and Somalia, which produce half of the world’s refugees.

The Trump Administration could also implement additional security protocols to make it harder for applicants who are Muslim, believed to be Muslim, or from Muslim-majority countries to obtain visas, especially tourist/visitor visas and other nonimmigrant visas. Trump may issue an executive order to temporarily suspend or cancel entry to the U.S. on nonimmigrant visas from target countries. Even if such a policy is eventually struck down by the courts, it will slow down visa processing for all applicants.

The processing of I-130 (family-based) and I-140 (employment-based) immigrant petitions, which is the first step in obtaining an immigrant visa at the U.S. Consulate, is unlikely to be affected by a Trump Administration. Filing fees, not tax dollars, provide funding for USCIS’ review of immigrant petitions. The availability of immigrant petitions in the family-based and employment-based categories is also governed by statutory law, not by the President.

Immigrant-based visas such as the F-1 fiance visa and CR immigrant visa already have strict requirements. Nevertheless, the Trump Administration could suspend the issuance of such visas until more vetting mechanisms are implemented.

6. “Reform legal immigration to serve the best interests of America and its workers, keeping immigration levels within historic norms.” (#10 on Trump’s 10 Point Plan)

Legal immigration is governed by regulations and legislation, not by a President’s executive action. The President’s immigration policy must operate within the bounds of existing law. The President has limited power to regulate and deregulate. Only Congress has power to introduce and pass immigration laws.

Regulation

A regulation is much harder to rescind than an executive order. The Administrative Procedure Act requires all regulations to be published in the Federal Register, undergo public notice-and-comment, receive financial consideration by the Office of Management and Budget, and be finalized for rulemaking. The I-601A Provisional Unlawful Presence Waiver is one example of a regulation.

Under statute passed by Congress, a person is generally barred from reentering the U.S. for 3 years if he accrued more than 180 days to less than 1 year of unlawful presence before leaving the U.S. The bar to reentry is 10 years if the unlawful presence lasted 1 year or more. The 3/10 year bar is triggered when the person departs the U.S. (without advance parole) to apply for an immigrant visa. The unlawful presence waiver, which is available under statutory law, excuses certain eligible persons from the 3/10 year bar.

On March 4, 2013, the Obama Administration introduced the I-601A regulation modifying the process for applying for the unlawful presence waiver. It allows eligible immigrant visa applicants to file for the waiver while they are still in the U.S. if the 3/10 year bar is the only ground that prohibits reentry to the U.S. The final rule expanding the I-601A waiver to all statutorily eligible applicants went into effect on August 29, 2016.

A new President may suspend the effective date of regulations that have yet to take effect. During the suspension, the Administration decides whether to begin a regulatory process to repeal the regulation and prevent it from taking effect. For regulations passed in approximately the last eight months of the prior Administration, the new Administration may ask Congress to use the Congressional Review Act to overturn a recently issued regulation. The Act, however, may not be used on any regulations issued before May 2016.

If Trump wants to change or cut the I-601A waiver process, he will have to introduce a new regulation, have the regulation go through public notice-and-comment, make adjustments, and then have the final rule published. While elimination of the I-601A process is possible, this does not seem to be a high priority for Trump.

Legislation

Legislation, passed by Congress, is the toughest to repeal and replace. Comprehensive Immigration Reform has been discussed extensively, but no new broad bills have been enacted for decades. Although the House and Senate are controlled by Republicans, they do not all agree with Trump’s proposed plans.

Permanent changes to the Immigration and Nationality Act, which governs legal immigration, including which persons are eligible for permanent residence, naturalization, or relief from removal,  requires an act of Congress. Legislative changes require approval of bills by both the House and Senate.  The President has limited veto power.

Trump’s 10 Point Plan promises to return U.S. jobs to U.S. workers. He vowed to suspend the North American Free Trade Agreement (NAFTA), a three-country accord negotiated by the governments of Canada, Mexico, and the U.S., which went into effect on January 1994. The treaty contains the TN visa category for professionals from Mexico and Canada.  If Trump suspends NAFTA, the TN visa could also go away.

Trump has also criticized the H-1B professional program. With an annual cap of 65,000 per year, plus an additional 20,000 for foreign workers with a U.S. master’s degree or higher, the H-1B program is subject to legislative changes by Congress.

With U.S. business interests at stake, and general support of the H-1B program from both Republicans and Democrats in Congress, the nature of H-1B reform (if any) is uncertain. An expansion of the H-1B visa program is unlikely if the Republican-controlled Congress falls in line with Trump’s promises. Instead, Congress could introduce an American-worker-first element that requires recruitment of U.S. workers prior to filing an H-1B petition for a foreign worker.

To Fear or Not to Fear? 

Trump’s 10 Point Plan and campaign promises are a legitimate source of fear for immigrant communities. But campaign talk is not always followed by action. U.S. Presidents lack unfettered power, fail to carry out plans, and do the opposite or a watered-down version of what they said they would do.

No one can fully predict the impact of a Trump Administration on immigration. Uncertainty breeds fear. But the fear is not necessarily based on reality.

If you are an undocumented immigrant or noncitizen with concerns about removal from the U.S. or being denied entry into the U.S., your best step is to consult an immigration attorney about your options under current law, regulation or policy. An experienced and attentive attorney can also guide you through immigration changes under a new Administration.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: BBC World Service

H-1B Filing Season Begins April 1 (visas expected to run out in first week)

On April 1, USCIS begins accepting H-1B cap petitions for employment in each fiscal year (October 1 of the current year through September 30 of the next year).

Employers who wish to have cap-subject foreign workers start employment in the new fiscal year should prepare to file their H-1B petitions on April 1.

F-1 student visa holders using Optional Practical Training (OPT) work authorization and foreign nationals who have never held H-1B status are subject to the H-1B cap.

What is the H-1B Cap? 

Congress sets an annual limit on the number of new H-1B petitions that USCIS can approve each fiscal year. This is known as the H-1B cap. 

Although Congress may increase or lift the cap, the current annual cap for new H-1B visas is 65,000. There is an additional 20,000 H-1B visas set aside for employees with a U.S. master’s degree or higher. Thus, the annual quota is 85,000 H-1B petitions.

Of the 65,000 H-1B visas, 6,800 are reserved for foreign workers from Chile (1,400) and Singapore (5,400), due to free trade agreements.  This effectively reduces the number of regular H-1Bs available to 58,200 for most visa applicants.

How Long is the H-1B Cap Filing Period?

USCIS accepts H-1B cap petitions until the annual quota is met.  In many recent years, the quota has been filled within the first five business days of April.

In fiscal year 2014, the regular H-1B visa cap of 65,000 was reached on April 5, 2013 (5 days). The U.S. master degree H-1B visa cap of 20,000 was reached on April 5, 2013 (5 days). 

In fiscal year 2015, the regular H-1B visa cap of 65,000 was reached on April 7, 2014 (5 days). The U.S. master degree H-1B visa cap of 20,000 was reached on April 7, 2014 (5 days).

Due to economic growth and increased demand for H-1Bs, the annual cap will likely be reached in the first few days of April this year.

What is the H-1B Visa Lottery?

USCIS monitors the number of H-1B filings and notifies the public of the date on which it receives enough petitions to reach the cap. This date is known as the “final receipt date” (final day of acceptance).

If USCIS receives more H-1B petitions than it can accept, it will use a visa lottery system to randomly select the number of petitions required to reach the annual cap. This involves a computer-generated random selection of H-1Bs from the pool of petitions received on the final day of acceptance.

USCIS labels and identifies each of the petitions with a unique number that is used for random selection. The lottery allows USCIS to apply the remaining number of H-1B visas to the petitions received on the final receipt date.

USCIS first conducts the random lottery of the 20,000 H-1B cases eligible for the master’s cap exemption. Those cases not selected under the H-1B masters cap will then be included in the random lottery for the regular 65,000.

USCIS sends the list of all selected petitions numbers to the service centers. The USCIS service centers will then process and adjudicate the selected petitions.

Cap-subject H-1B petitions that are not randomly selected, as well as those received after the final receipt date, will be rejected and returned to the attorney or employer with the filing fee(s).  If there were duplicative or multiple filings for an employee by the same employer, no fee will be returned.

Last year, employers began receiving receipt notices for randomly selected H1B petitions in the final week of April. Most employers did not receive rejected petitions until the first week of June.

Who is Exempt from the H-1B Cap?

The H-1B cap does not apply to cap-exempt employers or cap-exempt foreign workers. Cap exemptions apply if:

  • Your employer is an institution of higher education (e.g. a college or university)
  • Your employer is a non-profit organization affiliated or related to an institution of higher education (e.g. a hospital or research facility)
  • Your employer is a non-profit research organization or government research organization
  • Your employer (third party petitioner) is  not cap-exempt, but your employment is at an H-1B exempt institution (i.e. you will physically work at the institution of higher education or related or affiliated nonprofit and there is “nexus” between the work performed and the normal purpose of the nonprofit).
  • Your employment is concurrent with exempt employment
  • You were previously counted against the H-1B cap in the last six years (i.e. you were the beneficiary of an approved cap-subject H-1B petition with an effective date within the preceding six years, whether you are in the U.S. or abroad).   This is the case even if you never entered the U.S. under the previously approved petition (unless the employer notified USCIS and the petition was revoked.) Also, you are not cap-exempt if you would be eligible for a full 6 years of H-1B status at the time the new petition is filed due to, for example, being outside the U.S. for at least one year.
  • You have a U.S. master’s degree (until the 20,000 master’s cap runs out)
  • You are a physician with a Conrad 30 J-1 waiver, regardless of the nature of your employer

The H-1B filing period does not apply to employees who already have H-1B visa status, either with their current employer or with a previous employer. An H-1B petition that is not subject to the cap may be filed at any time and not be subject to the annual quota.

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The filing date is when USCIS receives the H-1B petition (required forms, supporting documents and correct filing fees), not the date that the petition is postmarked. Unless an exemption applies, employers should plan to file their H-1B cap petitions on April 1, instead of relying on the filing window.

Although it’s not too late to prepare for an April 1st H-1B filing, employers and foreign workers need to be aware of potential delays and snafus, such as when obtaining a foreign credential evaluation and submitting the Labor Condition Application.

An experienced immigration lawyer can help with identifying potential H-1B employees, resolving issues within the petitions, and preparing the forms and supporting documentation well in advance.

If employers miss the current year’s H-1B filing season, the next earliest date they may file their H-1B cap petitions is April of the following fiscal year, in which case employment may not begin until October 1 of that year. This might require them to consider other visa options (e.g. O-1, L-1 and TN), which have drawbacks and limitations.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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 Photo by: Alan Cleaver