As published in the Immigration Daily on April 26, 2021

Change in case flow processing before the immigration courts

The new revised EOIR policy memorandum, “Case Flow Processing before the Immigration Courts,” on April 2, 2021, represents a vast improvement over the predecessor memo of November 30, 2020, which forced affected attorneys between December 1, 2020 –April 1, 2021 to lump in applications for immigration relief with their initial pleadings even if they contested removability. The new trend in case flow processing is to do away with most master calendar hearings (where attorneys in non-detained cases put in their representation at least 15 days ahead of the date of hearing) by the immigration court vacating the date and sending a scheduling order for the parties to present further papers. The difference between the two memoranda was the November version setting deadlines for the filing of written pleadings, any evidence related to the charges of removability, and any applications for relief. That forced attorneys not only to do much more work, but to be very mindful of what was put down in relief applications to ensure that they did not in any way contradict written pleadings that the respondent was not removable. The new policy makes it fairer by first deciding the question of removability. After vacating the master calendar, the court now sends a scheduling order for 30 days for written pleadings and any evidence related to the charges of removability. By motion, parties can request a master calendar hearing or an extension of the filing deadlines. Once written pleadings and evidence on removability have been received, the parties have 20 days to file a response with the court. The immigration court then first decides the issue of removability, issuing a scheduling order for submission of additional supplementary briefing or evidence regarding removability, or scheduling a hearing on removability. Where removability is established, the court sends the parties the written removability determination and a scheduling order with deadlines for applications for relief along with supporting documents, and usually the deadline is 60 days from the date of the order sustaining the removability charge.

The April policy memorandum allows attorneys contesting removability to feel that they are not being squeezed into a box in which they wind up doing much work in a short amount of time which may be totally unnecessary if their clients are not removable, and work that in some cases may cast doubt on the attorneys’ arguments that their clients are not removable.

Sworn statement sample without notary in the time of pandemic

It is a truism that sworn statements are given more weight than unsworn statements in any proceeding. But in the pandemic, there is a true hesitancy in going into a building and meeting with someone just to have a paper or papers notarized. What can be done in an immigration context? We do not know the practice of other firms, but have taken to advising our clients that notarization may not be strictly necessary, and encourage in situations of hesitancy that they use the language, “I certify, swear, or affirm, under penalty of perjury under the laws of the United States of America, that the information in this affidavit is complete, true, and correct.” I note that the language is taken from the USCIS G-639 Freedom of Information/Privacy Act Request form.

Keeping F-2B categorization when petitioner naturalizes – please identify a central location.

People naturalize, but maybe not to the benefit of an adult child waiting for US immigration. In former times where they submitted F-2B petitions for unmarried children over the age of 21, the children could lose a year or years when the petitioners naturalized, automatically moving the petitions from F-2B to the F-1 category of adult children of US citizens. Currently under the May 2021 visa chart, immigrant visas are available for natives of most countries of the world (except Mexico and the Philippines) where F-2B petitions were filed prior to 8/15/15 while F-1 availability is only for petitions filed before 10/22/14. Fortunately, there is the opt-out provision for the adult children under Section 6 of the Child Status Protection Act which allows them to opt out and remain in the F-2B category. The opt-out requires the son or daughter to file a written statement with the “Attorney General” that he or she elects not to have such a conversion occur (or if it has occurred, to have such conversion revoked). The question remains in many cases – who do you notify? The “Attorney General” in immigration parlance generally refers to DHS and in this case to its USCIS component, but the difficulty is that there is no central location where the notification is to be made. So here is a suggestion to the agency – identify a central location. For most paper filed I-130 petitions, getting a message to the appropriate hands on a pending case is next to impossible. For approved petitions, the approving Service Center wants nothing more to do with the case since it already approved the petition. For cases that have been transferred overseas, USCIS overseas offices have largely closed. So most requests to USCIS at any location go unanswered. People to our understanding have brought proof of having sent the statement to either USCIS or the National Visa Center or the US consulates and embassies themselves to the immigrant visa interviews in the hope that such would suffice. It would be helpful for USCIS have a set procedure that people could follow.

H-1B computer case treatment this year

This is the year that H-1B computer cases should be easier for practitioners to handle and not be the magnet of as many RFE’s (Requests for Evidence) and denials as in the past. The confluence of the policy memorandum of USCIS on June 17, 2020, rescinding two prior policy memoranda relating to the employer-employee relationship and the requirement for contracts and itineraries involving third-party websites, and the winning of Innova Solutions v. Baran, No. 19-16849 (9th Cir. 2020), a case on what constitutes a specialized occupation, has brought about the following:

  • PM 602-0114, “Rescission of Policy Memorandum,” the policy memorandum, rescinded the 1/8/10 memo, “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements (Reference to AFM chapter 31.3 (g)(16)), page 270/6.2.8 (AD 10-24),” and 2/22/18 memo “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites, PM-602-0157.” Under the 2020 memo –

  • In adjudicating whether an employer-employee relationship exists, an officer should consider whether a petitioner has met at least one of the factors under 8 CFR 214.2(h)(4)(ii) of “hire, pay, fire, supervise, or otherwise control the work of.” The memo says that H-1B petitioners are required to submit the LCA and a copy of any written contract between the petitioner and beneficiary or a summary of the terms of the oral agreement if a written contract does not exist, and that depending upon the content of such documentation, it may establish the employer-employee relationship.

  • The petitioner has the burden of proof to establish that a bona fide job offer exists at the time of filing and that the petitioner will employ the beneficiary in a specialty occupation. If the petitioner’s attestations and supporting documentation meet the standard, then the officer should not request additional evidence and should approve the petition provided that all other eligibility requirements are met by a preponderance of the evidence.

  • H-1B petitioners are not required to submit contracts and legal agreements between the petitioner and third parties.

  • Evidence of specific day-to-day assignments is not required to establish that the position is in a specialty occupation although the petitioner may choose to provide such evidence.

  • An officer may limit the validity of an approved H-1B petition to a shorter period of time, but the decision must be accompanied by a brief explanation as to why the validity period has been limited.

  • In Innova Solutions v. Baran, the issue was whether a computer programmer position constituted a specialty occupation. The authoritative source cited by USCIS in denying the petition, the Occupational Outlook Handbook (OOH), stated that “[m]ost computer programmers have a bachelor’s degree in computer science or a related subject.” The OOH also listed a bachelor’s degree as the “[t]ypical level of education that most workers need to enter” the computer programmer occupation. USCIS seized upon the following OOH passage “however, some employers hire workers with an associate’s degree” in saying that “The OOH does not state that at least a bachelor’s degree or its equivalent in a specific specialty is normally the minimum required for entry into the occupation,” and that “the OOH also indicates that employers value computer programmers who have experience, which can be obtained through internships.” The H-1B statute and regulations recognize a specialty occupation as one in which the position requires “theoretical and practical application of a body of highly specialized knowledge” and that “[a] baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position.” The Ninth Circuit flatly rejected the government’s argument in the first circuit court case on specialized occupation supporting the fact that “normal” does not mean “always” – that words like “typical” and “most” cannot be separated from the word “normal.” The court said, “There is no daylight between typically needed, per the OOH, and normally required, per the regulatory criteria. “Typically” and “normally” are synonyms.” Also “While it is theoretically possible that there is “space” between normally, most, and typically, that space is at best molecular, and nowhere near big enough for the doublespeak freight train that USCIS tries to drive through it.”

  • In the aftermath of the decision, USCIS issued a policy memorandum on 2/3/21, PM-602-0142.1 “Rescission of 2017 Policy Memorandum PM-602-0142” repudiating and rescinding the 2017 guidance, “Rescission of the December 22, 2000 Guidance Memo on H-1B Computer Related Positions” in which it had said that the presumption of computer related cases being professional was no longer valid.

Petitioners in this H-1B cap season with March selectees have until June 30, 2021, to submit petitions, and the following months will tell whether the USCIS RFE/denial spotlight will finally move away from the computer sector.

Q&A’s published on the World Journal Weekly on April 25, 2021 1. I applied for my brother immigration visa that takes 10 years to approve 2. Permanent Immigration 3. My husband filedI-130 for me and he got my names wrong. Would that affect our processing time? 4. Can my employer apply for H-1B visa and green card at the same time? 5. Is parent eligible to apply for SSN and thereby insurance?

1. I applied for my brother immigration visa that takes 10 years to approve

I applied for my brother immigration visa that takes 10 years to approve and by the time Immigration approved my petition, my brother had died! So now I want to bring his family to us okay tell me how can I bring his family to us on that case right I am USA citizen ! My brother has four children one daughter that about 23 years old two under 18 plus and one 30 plus okay can my brother wife come on that immigration case

Mr. Lee answers,
The death of a principal beneficiary like your brother generally means that the case is over unless one of his dependent family members was residing in the US at the time of his death. Residence means the individual’s principal, actual dwelling place in fact without regard to intent, and for such a person, the definition does not require the individual to show that he or she was physically present on the exact date of death. If one of your brother’s dependent family members that remains eligible for immigration including counting the benefit of extra time under the Child Status Protection Act qualifies under the residence requirement, the case can continue under a provision of the immigration law, §204(l) relief for surviving relatives. Either the wife or one of the children who are still eligible to immigrate can fulfill the residence requirement. For the dependent beneficiary to request continuation of the case, he or she should specifically request USCIS “to reinstate the approval of the petition under section 204(l).”

2. Permanent Immigration

My boyfriend is from Iraq and wants to move to Oregon, US to live with me. We don’t qualify for the fiancée visa because we haven’t been able to meet due to covid. Can he get a work visa if he doesn’t have a job offer? What would be the best visa to go after so he can live here permanently.

Mr. Lee answers,
Without a basis to immigrate or to enter the US through family relationships, your boyfriend would generally have to obtain a work visa to work legally in the US if he comes into the country. Such work visas normally require a job offer. I note that if he manages to obtain an F-1 student visa, he may be allowed on-campus employment which does not require USCIS employment authorization, and later the possibilities of curricular practical training, pre-completion practical training, and post-completion practical training. If your relationship is serious, and you wish to apply for his fiancé visa, you would both have to physically meet prior to the fiancé petition being submitted to USCIS.

3. My husband filedI-130 for me and he got my names wrong. Would that affect our processing time?

I would like to know what would happen in our situation. He changed my last name to his, thinking that I had already done so, but I used my maiden name as it is on my passport. I would like to know if and how this would affect our process.

Mr. Lee answers,
Whether your husband filed for you under your maiden or married name should make no difference in the timing or the adjudication of the I-130 petition. Petitions are filed under married or unmarried names, and it generally makes no difference to an immigration officer. 

4. Can my employer apply for H-1B visa and green card at the same time?

I am a foreigner medical student, and I will finish my last year and then I will travel to USA -now, I have a friend in USA who owns a company and he agreed to apply h1b visa and green card for me so I can stay in USA. Now, can he apply for both H-1B  Visa and green card at the same time to minimize the processing time to get green card? After finishing my last year I will go to USA for training in a hospital On B-1 visa before my employer apply for H1b visa and green card and I will return to my country while the process of H-1B is running before my b1 visa 6months end and I will travel to USA in the 1st October on H-1B visa

Mr. Lee answers,
As you will finish your last year as a medical student before proceeding with your plan, I assume that you are requesting an answer to a future situation – perhaps in 2022. Unless your contemplated employer falls within the categories of entities that are exempt from the H-1B cap (institutes of higher education, nonprofit organizations related to or affiliated with institutes of higher education, nonprofit research institutes, or government research institutes), your employer would have to register the company and you with USCIS in March to see whether you could be selected since there are more H-1B applicants than there are available slots. If you are selected and assuming that your timing works out and that there are no Covid-19 restrictions or other bars, your employer can apply for both H-1B and the green card for you at the same time. The H-1B is a dual intent visa which allows the holder to have the intent to immigrate during the time that he or she is here as a nonimmigrant.

5. Is parent eligible to apply for SSN and thereby insurance?

I had applied for my mother I130 in Oct 2019. She was not in US at the time. Due to circumstances, she arrived in US on B2 visa in March 2020. She was eligible to stay until Sep 20, 2020. I filed her B2 extension due to Covid. No action has been taken on that application as of now. I also filed her I 485 Adjustment of Status since she was already here on Sep 16, 2020. Her I 130 got approved on Sep 23, 2020. I am assuming she is still in legal status as I had applied her B2 extension and then I 485 before original B2 expired. Since her I 130 is approved, can she obtain SSN based on I 797 receipt.

Mr. Lee answers,
Your mother will be able to apply for an SSN if she applies for an I-765 employment authorization application, has it approved, and then makes the SSN application. She is eligible to file for the I-765 as she has already filed the I-485 application. I have not heard that anyone is able to obtain an SSN based on an I-130 approval alone. Your mother’s pending B-2 extension makes no difference. Even persons in valid B-2 status are not allowed SSN’s.