OUTLINE: APPEALS TO THE BOARD OF IMMIGRATION APPEALS AND THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
by Cyrus D. Mehta* This outline was prepared in conjunction with Mr. Mehta’s presentation at a continuing legal education program sponsored by the Federal Bar Council, Asylum 101: Learning How To Effectively Navigate The Asylum Process, on July 2, 2008 in New York City. This outline will be useful to readers who need a quick […]
HOME IS WHERE THE CARD IS: HOW TO PRESERVE LAWFUL PERMANENT RESIDENT STATUS IN A GLOBAL ECONOMY1
By Gary Endelman* and Cyrus D. Mehta** INTRODUCTION After working hard to obtain lawful permanent residency for a client, immigration practitioners are often confounded by their client’s willingness to jeopardize this hard won status by wishing to remain outside the United States. This is becoming increasingly common today with attractive career opportunities outside the country. […]
July 2008 Immigration Update
Headlines: 1. Federal Contractors Must Use E-Verify, White House Orders – Under a new executive order, federal contractors must check the immigration status of their current and future employees through the E-Verify online employment authorization verification system. 2. CBP Issues Tips for U.S.-Canadian Border Travelers – With the onset of summer travel, U.S. Customs and […]
SUPREME COURT DECIDES REQUESTS FOR VOLUNTARY DEPARTURE May BE WITHDRAWN AFTER THE FACTŠ BUT CAN VOLUNTARY DEPARTURE STILL BE STAYED?
By David A. Isaacson* On June 16, 2008, the United States Supreme Court decided in the case of Dada v. Mukasey, ___ S. Ct. ___, 2008 WL 2404066, that an alien who has been granted voluntary departure may withdraw this request prior to the conclusion of the voluntary departure period, rather than departing. This ruling […]
FURTHER AAO SUPPORT FOR THE RIGHT OF A CORPORATION TO PETITION FOR ITS OWNER FOR AN H-1B VISA
by Cora-Ann V. Pestaina* Although an owner of a sponsoring employer may be barred from obtaining a labor certification, nonprecedent decisions of the Administrative Appeals Office (AAO) have upheld the ability of a corporation to petition for its owner for an H-1B if the owner is qualified for the visa1 . In yet another non-precedent […]
INTERPLAY BETWEEN I-140 PREMIUM PROCESSING, AC21 AND RETROGRESSION
by Cyrus D. Mehta* For those who have been waiting endlessly for permanent residence as applicants for adjustment of status, three important announcements were made this week that could provide relief, but could also delay the coveted goal of obtaining a green card. First, the US Citizenship and Immigration Services (USCIS) announced in a June […]
NEW INTERPRETATIONS ON AC21
by Cyrus D. Mehta* The US Citizenship and Immigration Services (USCIS) issued an important Memorandum by Donald Neufeld (Neufeld Memo),1 dated May 30, 2008, providing guidance on various provisions of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21). AC21 allows beneficiaries of H-1B petitions to extend their H-1B status beyond the maximum […]
June 2008 Immigration Update
Headlines: 1. DHS Issues Supplemental Q&A on OPT Interim Rule for F-1 Students – Among other things, the supplemental Q&A discusses the e-mail notification process allowing an employer whose pending H-1B petition on behalf of an F-1 student was randomly selected to receive an H-1B visa number for FY 2009 to request change of status […]
CSPA AND RETROACTIVITY
by Cyrus D. Mehta * A new Memorandum from Donald Neufeld, Acting Associate Director, Domestic Operations, US Citizenship and Immigration Services (USCIS), Revised Guidance for the Child Status Protection Act (CSPA), HQ DOMO 70/6.1, AFM Update AD07-04 (“Neufeld Memo“), sheds new light on whether the CSPA is retroactive. The CSPA allows, under certain circumstances, children […]
REQUIRING A FOREIGN LANGUAGE UNDER PERM¹
by Cyrus D. Mehta * It is not uncommon for employers to sponsor foreign national workers through the labor certification process because of their linguistic abilities. The Department of Labor (DOL) has usually frowned upon an employer including a foreign language requirement in an advertisement that was used to test the US labor market to […]
NORMALIZING MIGRATION
by Patricia S. Mann* Reporting about any aspect of the current immigration situation with a calm, reasonable tone is very difficult. The new documentary film, Beyond Borders: The Debate Over Human Migration, directed by Brian Ging, and shown on May 1, as part of the 2008 Tribeca Film Festival, manages to be calm and reasonable, […]
May 2008 Immigration Update
Headlines: 1. H-1B Roundup: Cap Reached, Random Selection Completed; Some Applications ‘Wait-Listed’ – USCIS announced a preliminary number of nearly 163,000 H-1B petitions received during the filing period ending on April 7, 2008. 2. DHS Issues Interim Rule on Optional Practical Training for F-1 Students – DHS issued an interim final rule extending the maximum […]
USCIS IMPLEMENTS NEW POLICY ON EXEMPTIONS FROM CERTAIN TERRORISM-RELATED BARS TO ADMISSIBILITY
by David A. Isaacson* On March 26, 2008, USCIS deputy director Jonathan Scharfen issued an important memorandum regarding implementation of the government’s new exemption authority with respect to certain terrorism-related bars.1 Previously, many otherwise deserving adjustment applicants, including a number of asylees, had been denied their green cards because of their support for or membership […]
H-1B FY 2009 CAP UPDATE
On April 14, 2008, the United States Citizenship and Immigration Services (USCIS) conducted a computer-generated random selection process on H-1B petitions to select H-1B petitions for fiscal year 2009. Selected petitions would continue to full adjudication. Those filed under the premium process program would move faster and USCIS designated April 14 as the first day […]
H-1B VISA CRISIS: USCIS ANNOUNCES THAT CAPS HAVE BEEN REACHED
by Cyrus D. Mehta* In a statement released on April 10, 2008, the United States Citizenship & Immigration Services (USCIS) announced that based on a preliminary count, it has received “nearly 163,000” total H-1B petitions out of which “more that 31,200” were subject to the H-1B Master’s 20,000 cap. The USCIS will soon conduct a […]
April 2008 Immigration Update
April 2008 Immigration Update Headlines: 1. Employers to File FY 2009 H-1B Petitions on April 1; USCIS Publishes Interim Rule Prohibiting Multiple H-1B Petitions for Same Employee – The H-1B supply is expected to be exhausted immediately; USCIS published an interim final rule prohibiting employers from filing multiple H-1B petitions for the same employee. 2. […]
LAST MINUTE HELPFUL HINTS FOR FILING A FY 2009 H-1B CAP CASE
U.S. Citizenship and Immigration Services (USCIS), anticipating that April 1, 2008 will see a repeat of the mass filings from last year, offers a list of measures the petitioner can take to ensure that the petition is correctly filed on its website, www.uscis.gov. We reproduce substantial portions of this governmental advisory, along with our own […]
USCIS ANNOUNCES RULE PROHIBITING DUPLICATE H-1B FILINGS AND ALLOWING FOR A 5-DAY FILING PERIOD
by Cyrus D. Mehta * US Citizenship and Immigration Services (USCIS) transmitted an interim final rule to the Federal Register today that prohibits employers from filing multiple H-1B petitions for the same employee. According to the USCIS, these changes will ensure that companies filing H-1B petitions subject to congressionally mandated numerical limits have an equal […]
AAO APPROVES EB-2 I-140 FOR BENEFICIARY WITH A 3-YEAR BACHELORŠ„S DEGREE AND A 2-YEAR MASTERŠ„S DEGREE FROM INDIA
by Cora-Ann V. Pestaina* In order to qualify under the Employer-Based Second Preference (EB-2) category pursuant to §203(b)(2) of the Immigration and Nationality Act; 8 U.S.C. §1153(b)(2), the position described on a labor certification must require an advanced degree or, in the alternative, a Bachelor’s degree plus five years of progressive post-baccalaureate experience.1 The employer […]
Ā¤ 212(c) LITIGATION: THE AFTERLIFE OF A WAIVER
by Patricia S. Mann * The Antiterrorism and Effective Death Penalty Act (“AEDPA”), and the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), passed by Congress over a decade ago, in April 1996, and in September 1996, respectively, had a number of harsh consequences for both undocumented immigrants and for legal permanent residents. For example, […]
