As published in the Immigration Daily on February 19, 2019
We thought that the following might be of interest and that you might not know about them or at least some of them. If you do not, good reading –
1. Does an applicant on DS-160 have to answer “yes” where an immigrant petition has been filed on behalf of the parent or spouse? The Department of State has amended 9 FAM 302.9-4 (B) (8) to state that “an applicant who is the spouse or child of the principal beneficiary of a petition, even when named in the petition, would not make a misrepresentation by answering “no” to this question.” Consular officers many times expect the answer “yes”, so the American Immigration Lawyers Association (AILA) takes the position that a derivative beneficiary named on an immigrant petition may respond negatively or affirmatively to the question, with neither response resulting in a finding of material misrepresentation.
2. There is a new procedure for the consolidation of H and L visas for China beginning 3/1/19 as exclusive jurisdiction will only be in Beijing, Guangzhou and Shanghai. Chengdu and Shenyang will no longer be handling these cases.
3. The Pew Research Center currently estimates that the number of undocumented immigrants in the country fell from 12.2 million in 2007 to less than 11 million in 2016, and the number of illegal entries in 2017 was 310,000, the lowest of any year since 1971. So, where’s the national emergency?
4. What is the border? In a post by the American Immigration Council, the “border zone” encompasses 10 states in their entirety, touches dozens more, and contains 9 of the largest 10 cities in the country. Customs and Border Protection (CBP) has broad authority to operate within 100 air miles of any U. S. boundary, including setting up and operating immigration checkpoints on many routes within the 100 mile radius that eventually meets the border. Within 25 miles, agents have even more leeway such as entering private property without a warrant or permission. Based on news and other reports, there are 170 checkpoints with the vast majority spread across the Southwest border states.
5. U.S.C.I.S. reopened premium processing on February 19, 2019, for all H-1Bs filed on or before December 21, 2018. Such would apply mainly to H-1B transfers, amendments and concurrent filings since premium processing has been constantly open to extensions and recently to FY-2019 cap cases.
6. In looking at statistics on H-1Bs, a news report in the Los Angeles Times, “Immigrant tech workers struggle to get H-1B visas under Trump:’ I’ve never felt so helpless’” said that in 2017, 74% of all H-1B’s were approved, down from 87% the year before and the lowest approval rate in at least a decade. You can bet quite safely that 2018 results were even worse. From another source, the proportion of H-1B petitions denied increased by 41% from the 3rd to the 4 th quarter of FY- 2017. A major consequence of the increase in denials and the long waits is that many H-1B holders are now reluctant to change jobs because that means another adjudication by U.S.C.I.S.
7. Since June 2017, at least 14 lawsuits have been filed in federal courts around the country concerning H-1B denials. The plaintiffs are directly suing to federal court and bypassing the U.S.C.I.S. Administrative Appeals Office (AAO).
8. A suit was filed on 12/19/18 in the DC District Court on a H-1B extension denial without the parties going to the AAO, the plaintiff, a Minnesota finance and IT company, and the beneficiary a computer systems analyst in a position entitled “BI business analyst” or business intelligence business analyst. She had held H-1B status since October 2008 and had an approved I-140. The company’s stated requirements for the job were an MS in computer science, computer engineering, electrical engineering or related field +3 years as a technical analyst or similar analyst or consulting position involving business objects universes and reports. The denial was based upon the U.S.C.I.S. Service Center Director’s view that the occupation of computer systems analyst does not require a bachelors level of education or higher or its equivalent in a specific specialty.
9. Another H-1B suit filed in the same court on 10/16/18 and bypassing the AAO involved a large construction concern in Dallas filing an H-1B amendment/extension for the beneficiary as an assistant project manager in September 2017. The beneficiary, who had already been approved to work for the company under H-1B status as an equipment logistics engineer through June 2018, held an MS in construction management, and the employer’s stated requirement was a bachelors in construction management, engineering, or related. The Occupational Outlook Handbook (OOH) which is heavily relied upon by U.S.C.I.S. in determining H-1B specialty occupations, said that it was increasingly important for construction managers to have a bachelors degree in construction science, construction management, architecture or engineering. The denial was based on the U.S.C.I.S. Service Center Director’s view that, as per the OOH, the construction manager occupation is not a specialty occupation.
10. The liaison meeting of AILA and NY/NJ Customs and Border Protection (CBP) on 10/23/18 clarified that if an adjustment applicant is traveling on advance parole, and CBP learns that the application for adjustment of status to permanent residence has been denied when the person tries to reenter, CBP will not parole the passenger on the basis of the now denied I-485, but has discretion to defer the inspection. CBP will look to see if the I-485 was denied on criminal grounds. Based on CBP’s initial review, it may decide to defer the inspection for 30 or 60 days to allow CBP to talk to U.S.C.I.S. and determine the nature of the denial while the passenger addresses the denial with U.S.C.I.S. Once the initial deferred inspection period has ended, the passenger may be able to get a further extension if CBP believes the issue will be resolved favorably with U.S.C.I.S.