October 2009 Immigration Update
Headlines: USCIS Says Fees May Rise –A decline in revenue from a decrease in applications could lead to higher application fees. Labor Dept. Issues FAQ on LCAs – The Department issued a FAQ about the new iCERT Portal and the newly redesigned ETA Forms 9035 and 9035E. ABIL Alert: Be Prepared for Surprise Enforcement Site […]
JUDICIAL REVIEW OF DENIED ARRIVING-ALIEN ADJUSTMENTS
by David A. Isaacson* Under current regulations, “arriving aliens” who are paroled into the United States without officially being admitted, and who later seek adjustment of status, face an unusual set of procedural circumstances. They can apply for adjustment with USCIS even if there is a final order of removal against them, but in most […]
THE CRISIS OF UNREPRESENTED INDIVIDUALS IN REMOVAL PROCEEDINGS
by Cyrus D. Mehta* A noncitizen who is placed in removal proceedings has a right to a lawyer at his or her own expense, but unlike a criminal proceeding, there is no constitutional right to counsel. Securing representation in immigration proceedings cannot be at the expense of the government. As a result, many poor immigrants […]
THE GRASSLEY-DURBIN BILL TO RESTRICT H-1B AND L VISAS IS THE WRONG SOLUTION AT THE WRONG TIME
byGary Endelman* and Cyrus D. Mehta** We must lay out the welcome mat for the best and brightest from all over the world. Our corporations must be given the tools to attract the best and the brightest so that they can compete in the global market place. Those who are attracted to work in the […]
September 2009 Immigration Update
Headlines: 1. DHS Proposes To Rescind Social Security No-Match Rule; SEVIS Data To Be Integrated Into E-Verify – DHS has proposed to rescind amendments relating to procedures that employers may take to acquire a safe harbor from receipt of no-match letters. 2. State Dept. Introduces Online Nonimmigrant Visa Application Form – The new DS-160 Web-based […]
HOW THE DEFINITION OF THE WORD ТBEGINУ COULD AFFECT YOUR PERM APPLICATION
by Cora-Ann V. Pestaina* Of the many complicated rules surrounding the Department of Labor’s (“DOL”) Permanent Electronic Review Management (“PERM”) process, one rule, and more fittingly, the DOL’s hypertechnical interpretation of that rule, continues to be the basis for many unexpected PERM denials. This rule can be found in 20 C.F.R. §656.40(c). In pertinent part, […]
MY MARRIAGE HAS BROKEN DOWN, BUT NOT YET TERMINATED: HOW DO I FILE MY I-751?
byCyrus D. Mehta* A Conditional Permanent Resident (CPR) is one who has obtained his or her status through marriage to a United States Citizen spouse or to a Legal Permanent Resident (LPR) spouse within two years of the marriage.1 ¤ 216 of the Immigration and Nationality Act (INA) imposes a two year period of conditional […]
HOW TO WIN A NATIONAL INTEREST WAIVER
by Cora-Ann V. Pestaina* This article is not intended to be a comprehensive overview of the National Interest Waiver (“NIW”) immigrant visa petition, and is instead a practical account of how our firm recently won a NIW. The NIW is an immigrant petition for lawful permanent residence under the employment-based second preference (“EB-2”) category. In […]
August 2009 Immigration Update
Headlines: USCIS Issues Guidance to Employers Whose H-1B Petitions for Health Care Specialty Occupations Are Denied – Employers whose petitions were denied on certain bases should send an e-mail to the USCIS Service Center that issued the denial to request review. DHS Secretary Announces Support for Federal Contractor E-Verify Rule, Intention to Rescind No-Match Rule […]
CDMA COMMENT TO PROPOSED RULE THAT REMOVES HIV FROM COMMUNICABLE DISEASE OF PUBLIC HEALTH SIGNIFICANCE
In July of 2008, as part of the ТTom Lantos and Henry J. Hyde United States Global Leadership Against HIV/AIDS, Tuberculosis and Malaria Reauthorization ActУ, Public Law 110-93, Congress removed the specific statutory ban on entry into the United States by foreign nationals with HIV, restoring jurisdiction to the Department of Health and Human Services […]
VISA MADNESS DURING THE MIDDLE OF SUMMER 2009
byCyrus D. Mehta* Since priority dates, caps, and the potential for more visa availability predominate conversations among those in the immigration attorney and immigrant communities, here is the latest round up. How we wish we did not have to scramble for more visas by dealing with priority dates and caps, and all this was just […]
NINTH CIRCUIT IN HERRERA v. USICS RULES THAT REVOCATION OF I-140 PETITION TRUMPS PORTABILITY
byCyrus D. Mehta* As the Employment-based categories remain hopelessly backlogged,1 especially for those born in India and China in the Employment-based Second Preference (EB-2) and for the entire world in the Employment-Based Third Preference (EB-3),2 the only silver lining is the ability of the applicant to exercise portability under INA ¤ 204(j). Under INA ¤ […]
July 2009 Immigration Update
Headlines: 1. Outlook Grim for India, China Employment-Based Visa Categories – The July cut-off date for the India and China EB-2 categories is January 1, 2000; both could become unavailable in August or September and remain unavailable indefinitely. 2. Current I-9 Form Validity Extended Beyond June 30 – The I-9 form currently in use will […]
BIA REJECTS MATTER OF MARIA T. GARCIA IN PRECEDENT DECISION INTERPRETING THE CHILD STATUS PROTECTION ACT
By David A. Isaacson* On June 16, 2009, a three-member panel of the Board of Immigration Appeals (“BIA”) issued a precedent decision in Matter of Wang1 interpreting the Child Status Protection Act (“CSPA”) that rejected the more generous interpretation previously offered by the BIA’s unpublished decision in Matter of Maria T. Garcia.2 The BIA has […]
ADJUSTMENT OF STATUS INTERVIEW AFTER DECADES
by Cyrus D. Mehta* Charles Oppenheim of the Department of State Visa Office has advised AILA that the EB-2 India preference, which has already retrogressed to January 1, 2000, may become unavailable in August or September 2009. There are already 25,000 approvable EB-2 India cases awaiting visa numbers. Like other countries, India has a limit […]
USCIS ON THE PARADOXES OF UNLAWFUL PRESENCE
by Cyrus D. Mehta* The concept of unlawful presence, and the penalties accompanying those who step into “unlawful presence” territory, was introduced in the Illegal Immigrant Reform and Immigrant Responsibility Act of 1996 (IIRIRA). The United States Citizenship and Immigration Services (USCIS) issued on May 6, 2009, a voluminous Memo consolidating all of its prior […]
June 2009 Immigration Update
Headlines: 1. USCIS Updates Progress Toward H-1B Cap – USCIS has received approximately 45,700 H-1B petitions toward the H-1B cap for FY 2010. 2. USCIS Announces Extension of J-1 Entry Date for International Medical Graduates to Qualify for "Conrad 30" – The date by which international medical graduates must have been granted J-1 nonimmigrant status […]
GRIM SITUATION FOR EMPLOYMENT-BASED IMMIGRANT VISA AVAILABILITY
by Cyrus D. Mehta* The Department of State Visa Bulletin for June 2009, http://travel.state.gov/visa/frvi/bulletin/bulletin_4497.html, notes that the India Employment-Based Second Preference (EB-2) has retrogressed to January 1, 2000. The Employment-Based Third Preference (EB-3) for all countries of the world continues to remain unavailable. The June Visa Bulletin also states that the demand for numbers, primarily […]
ADJUSTING UNDER 245(a) DESPITE HAVING ENTERED USING A FALSE IDENTITY
by Adam Ketcher* To adjust his or her status to lawful permanent resident under section 245(a) of the Immigration and Nationality Act (“INA”), an individual must show the Service,1 or an Immigration Judge,2 that s/he has been admitted to the United States following inspection (or parole) by and authorization from an immigration officer,3 that […]
PROVING LAWFUL SOURCE OF FUNDS FOR THE EB-5 IMMIGRANT VISA PROGRAM
byCora-Ann V. Pestaina* Today, foreign nationals seeking permanent resident status in the U.S. through employment, face increasingly dwindling options. For many U.S. employers, sponsorship of a foreign national is less of a priority, or even a possibility, as they struggle to weather the continuing economic downturn. More often than not, even those individuals fortunate enough […]
