Category: News

The annual list for the top attorneys in the New York Metro area is out and Alan Lee, Esq., has again been chosen as a Super Lawyer for New York City in 2018. He is one of only 2 lawyers of Chinese descent in the 64 attorneys selected for the area of immigration law. This is the seventh time that Alan Lee has been selected, having previously been honored in 2011, 2013-2017.  He exclusively practices U. S. immigration and nationality law.

Please click here for the “Super Lawyers list for Immigration 2018“.

As published in the Immigration Daily on October 4, 2018.

 

With headlines blazing in The New York Times on September 28, 2018, “With what degree of certainty do you believe Brett Kavanaugh assaulted you? “100 percent” above the picture of Christine Blasey Ford, and “None of these allegations are true?” “Correct.” “No doubt in your mind?” “Zero. I’m 100 percent certain” above a picture of a defiant Brett Kavanaugh, who can you believe? Mr. Trump threw in his two cents in calling Ms. Ford’s testimony “credible” and Judge Kavanaugh’s “incredible.”

Does it matter to the Republican Party whether Dr. Blasey is telling the truth? Probably not to the vast majority. But in a closely divided 51-49 enate, a new call from Republican senators Jeff Flake (R-AZ), Lisa Murkowski (R-AK), and Susan Collins (R-ME) on the 28^th for a limited FBI investigation forced the Republican leadership to accede to a limited investigation of the accusations of sexual misconduct against the young Judge Kavanaugh. The order to the FBI by Mr. Trump afterwards was highly restrictive that the “supplemental” investigation “must be limited in scope and completed in less than a week.” After heavy criticism, Mr. Trump said on October 1st that the FBI “should interview anybody that they want within reason.” So far, however, it appears that as of Wednesday, October 3d, many potential relevant witnesses had not been interviewed, and Republicans were pressing for a vote on confirmation by the end of the week based on word from the FBI that it could finish its investigation by Wednesday.

The Republican strategy of not assailing Dr. Blasey as the Senate committee did Anita Hill in 1991 with all male questioning, and attempting to find an alternate ground of mistaken identity on the part of Dr. Blasey brings to mind the passage in Pride and Prejudice (pity those who have not read it or seen one of its multiple screen versions) in which sisters Elizabeth and Jane Bennet discuss Elizabeth’s new found information concerning George Wickham’s perfidious deeds:

What a stroke was this for poor Jane !  Most earnestly did she labour to prove the probability of error, and seek to clear one without involving the other.

“This will not do,” said Elizabeth . “You never will be able to make both of them good for any thing. Take your choice, but you must be satisfied with only one.

Here we must certainly be satisfied with only one, and the evidence points to Dr. Blasey. From all accounts, she has led a respectable life since birth and even passed a polygraph test administered by an ex-FBI agent. Judge Kavanaugh has indeed led a respectable life after graduating from Yale University, but many reports indicate that he led a life of heavy drinking and partying at his Catholic prep school in Georgetown and at Yale. It may well be that he forgot about the episodes of which he is now accused because of the heavy fog of alcohol. Thus he could be telling the truth in his own mind. Yet that should not do for a person aiming to be confirmed to the highest court in the land. Possibly the fact that he was a jock, good in sports and captain of his high school basketball team, persuaded him that he could take more liberties than the normal high school and college student, and any restraints were further lowered by his prodigious alcohol intake. His bland testimony that “I did not drink beer to the point of blacking out” stands in stark contrast to a number of statements by his classmates, one of whom said “I definitely saw him on multiple occasions stumbling drunk where he could not have rational control over his actions or clear recollection of them,” and another that he was “frequently, incoherently drunk,” and that when he was, he became “aggressive and belligerent.” Most of us who drank in college saw the difference in people who drank, some of whom just became happier and others mean drunks.

Given the above, the least that should happen in an FBI investigation no matter how limited in time and scope should be interviewing or attempting to interview all people from high school and college days who might be able to shed light on the actions or inactions of Mr. Kavanaugh and Ms. Blasey. Such an investigation should also canvass the further sexual allegations against Judge Kavanaugh by Deborah Ramirez, a fellow classmate at Yale, and Julie Swetnick. It should be noted that even if Ms. Swetnick could not identify him as one of the sexual assaulters, it should be disqualifying for confirmation if her assertion that he was there is to be believed as it appears that he did nothing to stop the episodes from occurring.

Other than the character issues, the stakes are high in the confirmation process as Judge Kavanaugh has demonstrated a conservative bent that would shift the court to the right for many years if confirmed. His record on matters relating to immigration is short, but discouraging to those who believe in immigrant rights. As pointed out by the American Immigration Council in its September 5, 2018 article, “Brett Kavanaugh’s Record on Immigration Raises Questions,” he has dissented in 3 cases stating his belief that the immigrant should have lost – in Agri-Processing Co. v. National Labor Relations Board in 2008, he said that undocumented immigrants should not be entitled to labor law protections because they were not legally permitted to be employees; in Fogo de Chao Holdings v. U. S. Department Of Homeland Security in 2014, he suggested that hiring Brazilian chefs under L-1 specialized knowledge visas was the restaurant just trying to cut labor costs masquerading as specialized knowledge; and in Garza v. Hargan in 2017, he accused the majority of a radical expansion of the law and that the DC circuit court had created a new right for unlawful immigrant minors in U. S. government detention to obtain immediate abortion on demand.

As published in the Immigration Daily on September 17, 2018.

 

Where did the America go of honor, charity to strangers, and love of country? It’s missing. Terrible things are happening on the immigration front. Countless lives are being upended by the present Administration’s policies running roughshod over the entire terrain of immigration, regardless of whether people are legal or illegal. The abuses run from forced separation of children from their parents, deporting people to certain death who fail credibility interviews which now have incredibly heightened standards, allowing people on the southern border to bake in the sun for days on end to make a claim for asylum, changing asylum standards to exclude those basing claims on gang and domestic violence, dragging out the immigration process to resemble the old slow ways and days of the 1980s and 1990s, putting a target on H-1B specialty occupation petitions by sending out astonishing numbers of requests for evidence and denials, denying record numbers of L-1 intra-company transferee petitions, and changing rules by fiat making it more difficult for all legal non-immigrants to change status to student, punishing F, M, and J students who may have fallen out of status in the past even due to the fault of the school, discouraging all who think to apply for adjustment of status to permanent residence if they have no backup legal status as a denial will result in a Notice to Appear (NTA) in the immigration court as to why they should not be removed (presently on hold as U.S.C.I.S. figures out how to implement the rule), and denying cases filed on 9/11/18 and after without opportunity to correct through a Notice of Intent to Deny (NOID) or Request for Evidence (RFE) if required papers or forms are missing in an application.

On the launch pad are three proposed rules which cannot be done by fiat, but that the Administration will try to ramrod through shortly – a public charge rule designed to bar lower income immigrants and the ability of their sponsors to file for them (read mostly Hispanics and blacks from other countries, not Europeans), an asylum rule to enshrine by regulation the disallowance of asylum for victims of domestic or gang violence and bar from asylum those who enter the country illegally and are convicted of illegal entry (read Hispanics), and a rule to stop employment authorization for H-4 spouses of H-1B specialized occupation aliens which is currently in final clearance and review. It should be noted that, at least with these three, the public will have a notice and comment period before the rules can be implemented.

And yet this collective misery is absolute music to the Administration and Trump supporters across the United States. In this case, one man’s trash is another man’s treasure. Events that shock the sensibilities of many concerned citizens besides the attack on immigration such as those on the environment, regulations enacted to prevent economic disasters, opposing health care and abortion rights, championing underfunded tax cuts giving great advantage to the rich, and tolerating rampant corruption in his administration for as long as possible for loyalists are met with great cheer and leaves one to wonder whether there will ever be a last straw with Trump supporters before the midterms,

Yet moderates and independents who voted for Mr. Trump and the Republicans in 2016 should consider whether it is time to assert American values in a repudiation of the Republican Party which has lost its soul to Donald Trump, a vainglorious amoral man without love of anything besides himself, perhaps his family, and his business empire. A man who denies reality, has told 5000 lies as commander-in-chief, plays the sycophant to Vladimir Putin, toadies up to other dictators for no discernible national advantage, brushes away time-honored allies, supported the Russian denial of interference in the 2016 elections over the assessments of US intelligence agencies, begins trade wars which are economically sapping the country, has extramarital affairs and lies to cover them up, and believes that his federal agencies including the Department of Justice should be used to hound his political opponents and give him political advantage rather than impartially dispense justice. Besides a mean and malevolent spirit, the best reason for which things should not continue in their present state is his lack of interest in any complicated issue as remarked upon by many in the White House who have variously been quoted as calling him an “idiot,” has the attention span of a child,” “brain of a kindergartner,” “anti-trade and antidemocratic,” “f_ _ _ _ _ _ moron” and “The Big Problem: The president did not understand the importance of allies overseas, the value of diplomacy or the relationship between the military, the economy and intelligence partnerships with foreign governments.”

Hopefully the America of men and women who have given their lives for love of country will return and we can begin to see the end of the enthrallment with a president who acts more like a crooked used-car dealer, grifter, and circus barker selling sideshow tickets to see the unicorn and three headed giraffe.

Reprinted with permission.

As published in the Immigration Daily on July 24, 2018.

 

Commie loving, pinko… President?! In the 1950s and 60s, they would have run you out of town on a rail. Selling out US intelligence in favor of Russian denial was lunatic and treasonous from a President, regardless of how you walked it back after pressure from your base. Your rise to power was unfortunately fueled by Russian involvement with or without the complicity of you and your campaign, and the fears of white America that its place in the sun would be replaced by a more diverse America. To that end, your base of conservatives and whites including evangelical church leaders has tolerated your sexual misbehavior towards many women, your adultery, and your endless lying. Your agenda has been not to make America great again, but white again.

To appease your base of non-college graduate whites who were stuck in the economy, you have taken a great many steps to ensure that the country marches relentlessly towards fuller than the optimal rate of employment, thus forcing employers to find and pay higher wages for workers. But it is obvious to even a non-economist that high inflation will be the price to pay for your ruinous actions of trade tariffs, and chasing the undocumented from the country. With trade tariffs, the price of goods coming into the country for US consumers will be higher. With the inflated wages to be paid US workers, US employers are raising prices on their goods, so the US consumer can expect no relief in buying domestic goods. The continual cycle of employers looking for workers, workers demanding higher wages, and employers having to raise prices to compensate is one guaranteed to lead to spiraling inflation and loss of earning power. There are not enough U. S. workers to go around, and the relief valve of immigrants is being hounded out of the country by you and your cohorts by any means, legal or illegal. To you, the only good nonwhite illegal is a deported one, and it is highly doubtful that you recognize that the Constitution applies to them also. The future augers worse for workplace replenishment as U. S. women are not reproducing at sufficient rates to replace the present population.

The problem, Mr. President, is that you are unconcerned about the long-term effects of your policies – you only look to the short-term like a burglar in a house before the police come as you have doubts that you legitimately belong in the White House and are trying to do is much to promote your agenda before the voters come for you in the midterms and 2020. Part of your strategy is keeping up stock market prices as long as you can so that voters approve of your performance. You believe in the Roman concept of panem et circenses – bread and circuses to keep the crowds happy. In your case, the bread appears to be stock prices and employment and the circus is your daily media circus. The Federal Reserve is the independent institution tasked with monitoring the economy and taking the proper steps to ensure that it does not seize up or move too fast. It recognizes that where there are strong signals of inflation (2.9% climb in June numbers), it should tap the brakes by raising interest rates and making money harder to borrow for companies thinking to expand or to start new projects. Yet such a move almost always rattles the stock markets, causing the Dow to tumble. With the midterms so close, you insinuated yourself last week in the Fed deliberations to express your displeasure on its decision to raise rates, an unwarranted and dangerous move made not for the welfare of the country but for yourself. Your displeasure was especially threatening as you have already nominated 5 members to the Fed board.

Mr. President, although it is now late in the game, could you do and act like you promised on the night of your election that you would be a President for all Americans?

As published in the Immigration Daily on June 21, 2018.

 

Democrats and liberal minded people hope that the child separation issue at the border will be the tipping point against Mr. Trump as the nation recoiled at images of crying children and children behind wire fences. They hope that this time the nation as a whole sees Donald Trump for what he really is – a mendacious accidental president who will stoop to the very abyss to get what he wants. That mendacity was on full display and exposed by his finally signing an executive order on June 20, 2018, halting the separation of migrant families and the ripping of children from the arms of their parents after a string of lies as to who was to blame, why he couldn’t do it, and why Congress had to act to protect them as part of a huge immigration bill bent on curbing U. S. immigration. Yet that unfortunately is a forlorn hope.

Mr. Trump once remarked that he could stand in the middle of Fifth Avenue and shoot someone and he wouldn’t lose voters. The period of time from now to the midterms is 4 ½ months, sufficient time in his eyes and those of the Republican Party for voters to forget what they would likely call his “hiccup.” They are banking on short memory of the public. The news cycle is ever churning with new news and issues appear and disappear in the flash of an eye. That is even more so with this president who dominates the media waves almost every day with his twitters and other messages. Who remembers Charlottesville? Who will remember Marjorie Stoneman Douglas? Mr. Trump is like a magician diverting the audience’s eyes while working the other hand.

The polls paint an alarming picture to his opposition. Trump’s job approval rating in early June was 45% in Gallup polling, tying his personal high. This was roughly equivalent to the approval rating of Presidents Obama, Clinton, Reagan, and Carter in their second year. His approval rating among black men at the end of April rose from 11% to 22% according to a Reuters poll. Among the total black community, it also nearly doubled from 8.9% to 16.5%. Why? It could well be because the black unemployment rate is hitting record lows – in May, that rate fell to 5.9%, the lowest since the government started keeping track in 1972. Many Asian-Americans, especially small business owners, are supporting Mr. Trump as they feel that the current business climate is heading in a positive direction and 87% believe that the new tax law will have a positive effect on the economy.

Hillary Clinton won the majority of votes in America, yet lost the election. In the midterms, the Republicans behind Trump do not have to win the majority, just enough in the various states (many of them red) to win the elections. What do conservatives and the base of white Americans adore about Mr. Trump? They love his appointing of conservative federal judges including the Supreme Court justice Neil Gorsuch and cannot wait until one of the more elderly justices like Ruth Ginsburg or Anthony Kennedy retire or pass away; the new tax law that gives benefits to most in the red states; the constantly chipping away of Obamacare; the massive rescinding of regulations across the board, including banking and the environment; the emphasis on restructuring trade deals with allies and foes alike; his support of law enforcement even in the most questionable circumstances against the minorities; his crackdown on illegal immigration as a whole; and most of all, for the stock market’s rise to unprecedented highs and the record low unemployment rate in the country.

And so for those who would celebrate the comeuppance of Mr. Trump and think that Americans will carry the image of children living in tent cities behind wire fences to the polls in November, think of this article as the dash of cold water in the face. Democrats and liberal minded people must in the vernacular “put the pedal to the metal” and get out the vote to win the midterms rather than relying on incidents like the child separation issue to carry the tide. They should also not become more confident if polling numbers reflect better circumstances for the Democrats as many Trump followers do not acknowledge their support in public, only in the ballot box.

Attached a non-precedent decision of the AAO (U.S.C.I.S.’s Administrative Appeals Office), Matter of Y-M-C-, ID #151-8339 (AAO May 25, 2018), which we worked on, withdrawing the U.S.C.I.S. New York Field Office Director’s unfavorable decision and remanding to him for a further judgment as to whether the applicant deserves conditional approval of the I-212 application as a matter of discretion. (Form I-212 is an application for permission to reapply for admission into the U. S. after deportation or removal. Our client had been ordered deported long ago but not left the U. S.). The Acting Director had denied the application on the basis that the applicant had filed a false I-102 (Form I-102 is an application for replacement or for an initial nonimmigrant arrival-departure document) and that, because he was also inadmissible under §212(a)(6)(C)(1) of the Act, the section for fraud or misrepresentation, there would be no purpose in granting the applicant permission to reapply for admission while he remained under that ground of inadmissibility. (The conditional I-212 application was filed as part of the I-601A process, and the I-601A only forgives the unlawful presence grounds of §212(a)(9)(B)(i)(I) or (II) – the 3 and 10 year bars for being in the U. S unlawfully for 180 days or one year respectively). We contested the client’s inadmissibility under the 6(C)(1) section on appeal.

The AAO pointed out that the applicant was not seeking to adjust status inside the United States, and that it is the consular officer’s responsibility to determine an applicant’s inadmissibility and to have an applicant file a form I-601 if required – accordingly, the Director’s finding of inadmissibility under §212 (a)(6)(C)(1) of the Act was premature, and the matter had to be remanded for him to determine whether the applicant merited conditional approval of his application as a matter of discretion.

The case shows that in a conditional I-212 matter in which the applicant must make final application for an immigrant visa to an American consular officer overseas, U.S.C.I.S. should not automatically deny the application as having no purpose where there is another possible ground of inadmissibility, but leave that decision to the consular officer, and confine itself to deciding whether the applicant should be granted or denied the I-212 as a matter of discretion. Although not a precedent decision of U.S.C.I.S., the decision should be given greater weight as it is well reasoned and in line with the agency’s 2016 I-601A instructions that Service officers should leave questions of inadmissibility to the U. S. consulates and secondarily to CBP (Customs and Border Protection).

The full decisions can be read here: Matter of Y-M-C-.

As published in Immigration Daily on May 15,2018

One of the purposes of writing on immigration issues has been trying to get others to see in order to improve immigration law for the sake of justice and humanity. Unfortunately that does not seem to be happening now or in the near future as the levers of power rest with a President, his immigration cohorts (Attorney General Jeff Sessions and senior White House advisor Stephen Miller), and a compliant Republican Party who blatantly disregard the sweeping benefits of immigrants while scourging them by anecdotal examples as deficits and threats to the nation. Anything that does not comport with Mr. Trump’s anti-immigration views is swept under as “fake news” even as he fails to read materials on presidential briefings and instead spends his time watching “Fox and Friends” and other right-wing TV shows to gain ammunition for his rants. He has not told the truth over 3000 times since taking office, twisting reality to his needs.

Can anyone expect a voice of reason in the government to intervene in the field of immigration? No, especially when Mr. Trump’s hand-picked DHS Secretary Kirstjen Nielsen (who controls CBP, U.S.C.I.S., and ICE and has heavily worked to implement the Trump agenda) is lambasted to the point of almost resigning for failing to stop illegal border crossings.

So this article is written as more of a warning to readers of recent and future changes in immigration and how they may affect you. 

1. F, M, J students to be subject to the 3 and 10 year bars for overstay if the violation occurs on August 9, 2018, or after. 

U.S.C.I.S. policy in the past had always been considerate of foreign students, and so those who violated their statuses did not acquire unlawful presence for purposes of the bars unless DHS made a formal denial of an application or a formal finding of violation of status while adjudicating a request for another immigration benefit, or upon receiving a negative decision by an immigration judge. Under a policy memorandum of May 10, 2018, “Accrual of Unlawful Presence and F, J, and M Non-Immigrants”, with a comment period to June 11, 2018, those individuals violating status on or after August 9, 2018, will begin accruing unlawful status on the earliest of the following dates: 

• The day after they no longer pursue the course of study or the authorized activity, or the day after they engage in an unauthorized activity;
• the day after completing the course of study or program, including any authorized practical training plus any authorized grace period;
•  the day after the I-94 expires; or
• the day after an immigration judge, or in certain cases, the Board of Immigration Appeals, orders them excluded, deported, or removed (whether or not the decision is appealed). 
  
  

The above move shows the increasingly hostile attitude of the Trump administration towards higher education and perhaps reflects the fact that Mr. Trump does not expect much of his support to come from the educated class. Still the lack of compassion towards those who spend many thousands of dollars to help support the country’s colleges and universities continues to amaze, especially as an unintended violation will likely put the student or scholar on the horns of a dilemma in attempting a reinstatement application as U.S.C.I.S. normally takes more than 6 months to decide such with the result being that choosing to stay instead of leaving before 180 days would subject the student to a 3 year bar in reentering the country if the reinstatement request is denied. (An unlawful presence violation of 180 days subjects an individual to a 3 year bar and one of 1 year to a 10 year bar).

2. Applications for change of status to F-1 student bring into question whether U.S.C.I.S. has revised policy without formall y notifying anyone. 

In the seemingly distant past (before April 2017), individuals applying for change of status to F-1 student only had to file the application with an I-20 student acceptance form in which the schooling would begin within 30 days of the applicant’s status expiration date. Then they could just wait until U.S.C.I.S. reached the case for adjudication no matter how long that event took to occur. In April 2017, U.S.C.I.S. made a distinction among visa categories so that those on B-1 or B-2 statuses attempting to change to F-1 had to maintain their statuses until the date that U.S.C.I.S. made the adjudication, leading many individuals to file at least one application to extend status even after filing for the change of status. Now U.S.C.I.S.’s current website information does not distinguish between B-1 and B-2 and other visas statuses, only stating that, “If your current nonimmigrant status will expire more than 30 days before your F-1 or M-1 program start date and you wish to remain in the United States until your start date, you must find a way to obtain status all the way up to the date that is 30 days before your program start date (“bridge the gap”)… Note that because of processing times, your F-1 or M-1 program start date may be deferred to the following academic term or semester because U.S.C.I.S. did not make a decision on your form I-539 change of status application before your originally intended F-1 or M-1 program start date. In that instance, you will need to obtain status all the way up to the date which is 30 days before your new program start date. If you had already filed an I-539 to bridge the original gap, you may need to file another I-539 to bridge the new gap.” There are already reports of denials of applications for persons in statuses other than B-1 or B-2 and the American Immigration Lawyers Association has put out a call for members to send in examples. The author notes that the U.S.C.I.S. processing times last week for this category were only up to applications submitted in May 2017, one year ago, but on the site being accessed again on 5/12/18, the California and National Benefits service centers were supposedly processing these applications between 2.5 –4.5 months while Vermont was between 9 – 12 months. The inanity of forcing visa applicants for change of status to file additional applications to maintain status only because of the inability of U.S.C.I.S. to timely reach cases for adjudication cannot be overstated.

3. Many green cards, reentry permits, and employment authorization cards will soon not be received. 

As of April 30, 2018, U.S.C.I.S. has implemented a new policy that the above secure documents among others will only be delivered where there is an authorized signature. The agency is phasing in the use of the U. S. Postal Services Signature Confirmation Restricted Delivery service where applicants must either present identification to sign for their documents or designate an agent to sign on their behalf by completing the Postal Service’s PS form 3801, Standing Delivery Order (PDF) or PS form 3801-A, Agreement by a Hotel, Apartment House, or the like (PDF). Applicants can sign up for USPS Informed Delivery to receive delivery status notifications, and also have the option to arrange for pickup at a post office at a convenient time and date by going to the USPS website and selecting “hold for pickup.” U.S.C.I.S. says that the first phase will affect documents that need to be re-mailed because they have been returned as non-deliverable. The problem is that whereas U.S.C.I.S. wishes for more security here, many immigrants are not familiar with computers, new processes, or dealing with postal authorities. This forced secure document delivery method will cause many people inconvenience and the loss of their secure documents with no assurance that it will produce any better result. The author notes that U.S.C.I.S. in early April notified the public that beginning on April 2, it would destroy the above-mentioned secure documents returned as undeliverable by USPS after 60 business days if it was not contacted by the document’s intended recipient to provide the correct address. Is there a justification for the change other than anecdotal evidence that secure documents are being mis-delivered? Does U.S.C.I.S. have statistics on the number that have gone into the wrong hands? If not, why implement a more complex procedure for immigrants to obtain their documents?

4. U.S.C.I.S. Director’s letter to Senator Charles Grassley(R-IA) on the agency’s recent completed efforts and upcoming agenda promising a litany of crackdowns. 

In an April 4, 2018, letter to Sen. Grassley, L. Francis Cissna, U.S.C.I.S. Director, wrote of the different areas on which U.S.C.I.S. was working to implement the Trump “Buy American and Hire American” Executive Order: 

• That U.S.C.I.S. had recently published a policy memorandum clarifying existing regulatory requirements relating to H-1B petitions filed for workers to be employed at one or more third-party worksites including that employers of such must provide itineraries and that U.S.C.I.S. may request detailed documentation, including contracts relating to the employment or assignment of such workers, to ensure that a legitimate employer-employee relationship will be maintained and that the beneficiary will be performing H-1B specialty occupation work for the entire time requested in the petition.
• That when H-1B beneficiaries are placed at third-party worksites, the petitioners must demonstrate that they have specific and non-speculative qualifying assignments for the entire time requested, and while an H-1B petition may be approved for up to 3 years, U.S.C.I.S. may generally limit the approval period to the length of time during which the beneficiary will be in non-speculative work and during which the petitioner will maintain the requisite employer-employee relationship.
• That U.S.C.I.S. in addition to having dedicated email addresses to make it easier for the public to report suspected fraud and abuse, is initiating a more targeted approach in its H-1B employer site visit program to help it determine among other things whether H-1B dependent employers are actually paying their workers the statutorily required salary to qualify for an exemption from recruitment attestation requirements.
• That administrative site visits are being expanded to include L-1B petitions for specialized knowledge workers and are initially focused on beneficiaries who will primarily work off-site in another company or organization’s location to ensure that they are complying with the requirements from the L-1 Visa Reform Act of 2004.
• That U.S.C.I.S. has published a policy memorandum instructing officers to apply the same level of scrutiny to both initial petitions and extension requests for non-immigrant visa categories.
• That its regulatory plans include two regulations to improve the H-1B program – the first to establish an electronic registration program for petitions subject to numerical limits for the H-1B nonimmigrant classification, and the second to revise the definition of specialty occupation to increase focus on obtaining the best and brightest foreign nationals via the H-1B program, and to revise the definition of employment and employer-employee relationship to better protect U. S. workers in wages.
• That DHS will propose additional requirements designed to ensure workers pay appropriate wages to H-1B visa holders.
• That it is drafting a proposed rule to remove the International Entrepreneur Rule which is currently in effect due to a court order that invalidated the attempt by U.S.C.I.S. to delay it, but noting that at this time, U.S.C.I.S. had not approved any parole requests under the entrepreneur final rule.

5. Memorandum of understanding (MOU) between U.S.C.I.S. and Department of Justice set to target companies employing non-immigrants . 

Both agencies announced on May 11, 2018, a memorandum of understanding to better detect and eliminate fraud, abuse, and discrimination by employers bringing foreign visa workers to the United States. The Department of Justice enforcement component will be the Immigrant and Employee Rights Section (IER) and U.S.C.I.S.’s the Fraud Detection and National Security Directorate (FDNS). In the past, IER’s assignment was immigrant positive to protect immigrants from discrimination by U. S. employers. That was all changed with the “Buy American Hire American” Executive Order which turned the mandate to protecting American workers from being replaced by foreign workers, such act being seen as a form of discrimination against Americans. FDNS’s assignment has always been to make site visits (mainly on nonimmigrant employment cases) to ensure that all the conditions of employment as promised in the petitions are met. In the MOU, a double whammy will now potentially be placed on employers as either agency will be referring companies to the other agency where one of them finds violations. In the understanding’s section on specific referrals, the MOU states that, “If FDNS becomes aware of information relating to suspected employer violations of the statutes and regulations that IER enforces governing the potential misuse of employment-based immigrant and nonimmigrant visa programs to discriminate against available and qualified U. S. workers in favor of employment-based visa workers, FDNS will promptly refer that information to IER when FDNS’s policies and procedures do not require otherwise.” The IER language is likewise that “If IER becomes aware of information relating to suspected employer violations of statutes and regulations governing employment-based immigrant and nonimmigrant visa programs that U.S.C.I.S. enforces, IER will promptly share that information with FDNS… and/or encourage the individual with such information to promptly contact FDNS….” 

Hopefully an understanding of the above 5 topics will allow readers a chance to prepare for events that have already happened and those about to be implemented in the immigration arena. I have chosen the above topics as they are the ones less spoken of, but of course who can ignore the Trump administration’s attempt to militarize the border, separate families and charge the parents who bring in children with felonies, revoke the status of Dreamers and hold their fate hostage to ram through Mr. Trump’s entire anti-immigration agenda, shamefully end Temporary Protected Status (TPS) programs for over 300,000 persons some of whom will face certain death upon return to their home countries, and attempt through Attorney General Sessions to force immigration courts to become more restrictive by cutting down their independence and undoing recognized precedent immigration decisions favoring immigrants by fiat through certifying long decided cases to himself.

 

As published in the Immigration Daily on April 12, 2018.

EB-5 investment into the U. S. by the China-born in the past has proven a boom to U. S. cash starved projects, investors, immigration lawyers, and Chinese agents. Through the practice of gerrymandering almost disconnected parts of municipalities, much of the risk-taking which was supposed to be a component of the law has been removed for investors giving $500,000 (instead of the regular $1 million) for projects in targeted employment areas (TEA’s) for which the unemployment rate is supposed to be at least 150% of the national average. TEA projects abound in the richest areas, Midtown Manhattan being a prime example. However, there is a supreme party killer which has come into being because of the very success of the marketing effort to Chinese nationals – exhaustion of visa numbers as Mainlanders have taken up 85% or more of the world’s EB-5 quota over the years to the point that there is now a tremendous waiting time before China-born can expect to receive a conditional green card from the EB-5 category. U.S.C.I.S.’s Ombudsman estimated in its 2017 annual report that the waiting time for Chinese nationals beginning an investment today could be 10 years or even longer. Currently the EB-5 China availability date has been stuck at July 22, 2014 since October 2017.

The waiting time is intolerable to many investors as it means that, not only do they have to watch their case for a long period of time, but also that their children may age out (over the age of 21) and not be eligible to immigrate at the time that the principal investor’s priority date is reached. Under the Child Status Protection Act (CSPA), a child’s age can only be “frozen” where the child is under the age of 21 (with credit for the time that the I-526 Immigrant Petition by Alien Entrepreneur pended with U.S.C.I.S.) when that priority date is reached and becomes available on the State Department visa bulletin. Even with the reported softening stance of U.S.C.I.S. allowing children to be the principal investors, how young would a child have to be to ensure his or her immigration vis-à-vis the immigration requirement that the investor be legally capable of signing a binding contract?

The backlog situation does not have a solution at present, and may not be resolved as many members of Congress have been put off by the perceived abuses of the program. A fix was not seriously attempted as part of the Omnibus Spending Act which extended the status quo until September 30, 2018.

For many well-to-do Chinese nationals who own or are majority shareholders of companies in China, use of the EB-1C immigration category for multinational executives and managers could be a viable alternative allowing U. S. immigration within 1-2 years. The requirements are that the China company be of reasonable size, and that the U. S. company be more than a tiny company, e.g. China company 100+ employees and U. S. company 10-20 employees. The U. S. company could be directly acquired by either the China company or the majority shareholder. (Beginning a new company from scratch in the U. S. rather than acquiring an existing company would add time and difficulty to the case). Such would satisfy the requirement that the companies be “affiliated.” The person to immigrate would also have to show working experience with the China company as an executive or manager of at least one year out of the past three before filing the petition. As a multinational executive or manager transferring between the China company and the U. S. company, the law would not require advance clearance by the Department of Labor for immigration, and a petition could be directly submitted by the U. S. company for the individual.

Two questions that come up in this context are whether an L-1 visa (nonimmigrant intracompany transferee visa) approval is required before embarking on the immigrant visa petition, and whether this path which involves acquiring a U. S. company is too difficult. The short answer to the first question is that an L-1 approval notice, while helpful, is not a requirement to beginning a permanent residence application for a multinational executive or manager. For the second, while EB-5 investments are quite easy to get into (930 regional investment centers as of April 2, 2018) with regional center heads using tremendous advertising and middlemen to push and shove potential investors to their projects, effort on the part of the individual or China company will generally be required in choosing this path. Companies that are already doing business in the United States could use their network of customers and suppliers to assist, or go through business agencies, advertisements in trade journals or newspapers, or organizations which attempt to put business buyers and sellers together, etc. In addition, this would not have to be a lone effort as the individual or China company could band together with another China company wishing to do the same thing since the law contemplates investment percentage as low as 50% for a recognized “affiliation.”

The EB-1C category is part of the first employment-based preference (EB-1) which is traditionally open for China-born as well as the rest of the world except that in the past two years, the category backlogged from June-September (FY 2016 and FY 2017) for China before springing open again in October. In 2018, the category just backlogged in April, but Charlie Oppenheim, the Chief of the State Department Visa Control and Reporting Division, was unclear as to whether high demand for EB-1 visas would be ongoing, but if not, that China EB-1 final action dates could be advanced late in the summer.

Other advantages of the EB-1C category are not only the faster immigration that will generally include all members of the family and even children who have reached the age of 20 prior to the start of the case, but also the ability of others to work and ultimately immigrate through the same U. S. company, lesser attention to source of funds, on how the funds are transmitted to this country, the possible lesser required amount of investment, and that this form of immigration does not involve a conditional green card. It should be remarked here that as the individual would be coming over as manager or executive, he or she would be expected to work in the U. S. company in that capacity rather than just being a passive investor. But even here, an interested individual could use the same tactic employed in many EB-5 cases of having the spouse be the principal applicant, the only difference being that the spouse would also have to have the qualifying experience of being a manager or executive in the China company for at least one out of the past three years prior to the filing.

The connection between the two companies could eventually allow other managers, executives, and persons of specialized knowledge with qualifying experience in the China company to enter the U. S. quickly on nonimmigrant L-1 intracompany transferee visas to work for the U. S. enterprise. If the U. S. company later wished to petition for their permanent residences, managers and executives could qualify without needing to go through the Department of Labor for PERM labor certification. Those under specialized knowledge would have to obtain a labor certification and qualify under another category, EB-2 for advanced degrees or for persons of exceptional ability, or EB-3 for professionals with a baccalaureate degree or 2 years of required skilled work experience. For the month of April 2018, immigrant visa availability under EB-2 is open to China-born who began their labor certification applications prior to August 1, 2014, and for those under EB-3 who began their papers prior to June 1, 2015. The projected time period for China EB-2 cases is approximately 3-5 years and for EB-3 3 years.

A prime concern in EB-5 investment cases to U.S.C.I.S. is the source of funds to ensure that they are actually from the investor and that the funds are not from illegal sources. Documenting the source of funds is usually a painstaking process. Although there is always a concern with ill-gotten gains, that is not of paramount concern in EB-1C cases, and the funds do not have to emanate from the individual, but can come directly from the China company. Also in EB-5 cases, there is great concern with the transfer of funds to show a paper trail of the funds from the investor in China to an account in the U. S. As the funds do not have to directly come from the individual in an EB-1C multinational executive/manager case, the paper trail could be directly from the company in China through banking institutions to an account in the U. S. or even to the owners of the company to be acquired.

There is no fixed amount of investment in EB-1C as opposed to EB-5 cases, and the expended amount for capitalization can be less. In the scenario of the individual or China company acquiring a U. S. company, many factors are considered in the final price such as the customer base, goodwill, company debt, receivables, inventory, willingness or need to quickly sell, etc. Also the individual or China company would not have to acquire the entire company, but just enough to have majority control. The individual or China company could leave the present U. S. owners with minority shares or even have a joint venture with a partner or partners as long as the individual or China company winds up with at least 50% of the U. S. company.

Finally, once the priority date is reached for an EB-5 case and the individual approved for residence status, he or she is assigned conditional residence for a two-year period of time, and must then file an I-829 Petition by Entrepreneur to Remove Conditions (present fee $3835) to remove the conditional basis of the residence status. The I-829 must show that all conditions promised in the I-526 approval were met. That is not a case for an EB-1C approval which is permanent and does not involve a further application and/or interview in the future.

With the uncertainty and unfavorable outlook of many in Congress surrounding the EB-5 program raising a huge question as to whether the China backlog situation will be remedied, it might well be in the interest of those who fit the above bill to look into the possibilities of EB-1C immigration.

As published in the Immigration Daily on May 23, 2017. 

Despite all the gloomy news about immigration ala Trump, U.S.C.I.S. is preparing to bring into the U. S. ambitious immigrants and their families to begin the road towards permanent residence. They will be given up to 5 years of legal stay to accomplish their purpose. The entrepreneur parole rule will come into effect on July 17, 2017, for individuals hoping to begin the next generation of innovative startups. Is this the new hope for China EB-5 investors stuck under a 6-8 year backlog or another option for all investors? U.S.C.I.S. and experts in the field have many times interchanged the terms “investor” and “entrepreneur” in describing participants in the EB-5 program. It remains a possibility that some investors may qualify, but most would likely not in light of the different requirements of the new program. The conditions are:

• Within the 18 month period prior to filing the application for parole, the entrepreneur received a qualified $250,000 from one or more qualified investors, or
• $100,000 through one or more qualified government grants or awards.
• If an applicant only partially satisfies either one of the 2 above conditions, he or she can provide other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.

The amount of money is certainly not intimidating compared to the current amounts required for the EB-5 program and especially the levels being discussed in U.S.C.I.S.’s proposed regulations of January 13, 2017 (raising investments for targeted employment areas (TEAS) from $500,000 to $1.3 million and all other investments from $1 million to $1.8 million). However, the huge hurdle is that the investment must come through a qualified U. S. investor . A “qualified investor” is defined as a U. S. investor who in the past 5 years has made investments in startup entities of no less than $600,000 and at least 2 of the entities created at least 5 qualified jobs or generated at least $500,000 in revenue with average annualized revenue growth of at least 20%. U.S.C.I.S. made clear that it is looking for established U. S. investors such as venture capital firms, angel investors, or start up accelerators. The qualified investor also cannot be closely related such as the entrepreneur himself or herself, parent, spouse, child, or sibling, or any entity where the entrepreneur or relative has an ownership interest. But for those who qualify, they can obtain up to 5 years of entrepreneur parole, and may put themselves in line for permanent immigration through the EB-2 National Interest Waiver (NIW) category.

The national interest waiver category was created with the Immigration Act of 1990 to allow EB-2 immigrant visa classification including waivers of the job offer requirement if in the national interest to members of the professions holding advanced degrees or their equivalent, and to individuals who because of their exceptional ability in the sciences, arts, or business would substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States. Section 203(b)(2)(B) of the Immigration and Nationality Act (INA) allows a waiver where it will substantially benefit prospectively the national economy, cultural or education interests, or welfare of the United States. The precedent decision of Matter of New York State Department of Transportation, 22 I & N Dec. 215 (Comm., 1998) (“NYSDOT” ) stated 3 requirements to be met before a waiver could be granted – that the waiver applicant had to seek employment in an area of substantial intrinsic merit; that he or she had to demonstrate that the proposed benefit to be provided would be national in scope; and that he or she had to demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the waiver applicant by making available to U. S. workers the position sought by the waiver applicant. Under this reading, many NIW applicants were simply denied on the basis that the applicant could not demonstrate that non-allowance of the waiver for labor certification would damage the national interest. Recently however, the NIW has become more intriguing and accessible with the demise of NYSDOT in Matter of Dhanasar , 26 I & N Dec. 884 (AAO 2016) on December 27, 2016. There is now a new three-part test:

• Whether the work that the person would be doing has both substantial merit and national importance. 
• Whether the person is well-positioned to advance the proposed work.
• Whether the requirement for a labor certification is impractical, e.g. entrepreneur, or if there is availability of U. S. workers, whether on balance it still would be sufficiently beneficial to the country to allow an NIW to be approved.

This new interpretation does not require either harm to the national interest or a comparison against U. S. workers in the field. An unpublished decision of the AAO on the same date that Dhanasar was issued is instructive on how the new standards would apply to entrepreneurs.

Matter of E-C-H- (AAO 12/27/16) featured an entrepreneur wanting to serve the U. S. veterans’ community by forming his own small consulting firm through which he would undertake projects aimed at improving veterans’ services and wounded warrior care. In approving the petition, the AAO found that substantial merit was proven by letters from prospective clients, a business plan for the company, and submitted news articles and research reports describing the plight of returning veterans and the necessity of ensuring adequate services for their physical and emotional well-being. National importance was proven by probative expert letters describing the importance of effective programs for U. S. troops upon returning home and transitioning to civilian life along with submitted news articles and other evidence documenting gaps in veterans’ health services and discussing the federal government’s initiatives. The AAO found that the petitioner was well-positioned to advance the proposed endeavor through his numerous support letters describing his expertise and record of success in his past work relating to Veterans Affairs, a detailed business plan, and communications from several prospective clients expressing their eagerness to use his services. Finally in balancing the factors to determine the waiver’s benefit to the United States, the AAO cited the petitioner’s experience in the field, the immense value of improving programs and assisting organizations that provide support and advocacy for U. S. veterans and wounded warriors, and that, based on the petitioner’s intention to start a consultancy firm through which he would be self-employed, it would be impractical for him to obtain a labor certification.

Dhanasar is new and E-C-H- is only illustrative of how the Dhanasar factors can apply in an entrepreneur case for NIW immigration. Entrepreneurs under parole may certainly have vastly different situations that U.S.C.I.S. will approve as long as they meet the 3 requirements of Dhanasar. Lending credence to the belief that many deserving cases will be approved is that most if not all of the petitioners will have been prescreened by the “Shark Tank” environment through which entrepreneurs must pass to gain funding for their projects under the parole rule – that experienced outside investors sufficiently believe in the innovative vision of the individual, which is certainly encouraging not only for entrepreneurs seeking parole but also NIW classification.

Insofar as mainland China and India born are concerned, the new pathway likely requires a legislative fix before it becomes truly useful. The impediment is the EB-2 category itself which is backlogged at present to cases filed by March 1, 2013 for China and July 1, 2008 for India (Although the time indicated for China EB-2 is 4 years plus, visa chart time does not correlate to calendar time, and it may take longer than 5 years for the category to advance 4 years in chart time). U.S.C.I.S.’s suggestion that paroled individuals may apply for any nonimmigrant classification for which they may be eligible is not a good solution in light of the lottery aspect of H-1B’s and the high requirements of O-1 extraordinary aliens in the sciences and business. Either the NIW must have a separate quota of its own, or the time under parole must be extended under a device such as in the American Competitiveness in the 21st Century (AC-21) which allows H-1B holders to stay past the maximum time allowed as long as they either have a labor certification application filed 365 days or an I-140 approval. Under NIW, no labor certification is involved as petitioners directly apply for I-140 approvals. The second solution appears more doable as it mostly involves adding words such as “entrepreneurs under parole” alongside H-1B holders. Either action would allow more utility of the new pathway to nationals of two countries known for the scientific and entrepreneurial acumen of their nationals.

As published in Immigration Daily on March 1, 2018.

Extorting the protectors of the innocent (DACA) and what the future holds – In an attempt to cast himself as mentally sound and show his mastery of the nuances of politics, Donald Trump held a televised meeting with members of Congress on DACA on January 9, 2018, and promised to sign any bill that they sent to him. He then proceeded to extort those interested in saving the protected statuses of the approximate 690,000 DACA recipients in a series of mad tweets decrying any attempt to put together an acceptable bill unless it pushed through his entire anti-immigration package of border wall funding, much tougher immigration enforcement, repealing the diversity visa program, and chopping off most categories of family-based cases. With the failure of the Democratic shutdown of Congress in early February, it has become apparent that no relief bill will pass by March 5, 2018, the ending date of DACA. The Supreme Court’s decision on February 26, 2018, to deny an extraordinary stay of two District Court rulings imposing nationwide injunctions against Mr. Trump’s unilateral stoppage of DACA has given some relief as those with DACA status can continue to apply for extensions of protection and work authorization until the Ninth Circuit Court of Appeals renders its decision and the Supreme Court properly takes up the subject on appeal. Where does that leave the DACA recipients? Not in a good place. After the large amount of congressional attention given to the immigration issue in January and February, there is probably little appetite to take it back up given the period of relief afforded by the Supreme Court and the wasted week allotted to immigration issues in mid-February in which the Republicans tried to box the Democrats into politically unpalatable corners and vice versa. There will only be more appetite if the Republicans suffer huge losses in the midterm elections of November and come to the conclusion that they cannot continue supporting the Trump agenda. So unfortunately, the midterms may turn out to be the crucial moment for DACA proponents to turn out the vote. Other issues on which the Republicans are vulnerable in being close to Trump are assault rifles, the Russia investigation, his constant lying, disregard of sexual harassment claims, chaos in the White House, lack of coherent foreign-policy, etc. Immigration advocates cannot only try to persuade voters on the immigration issue alone regardless of how sympathetic the circumstances of the DACA recipients.

I-485 filing despite U.S.C.I.S. suggesting that such would be improper – In September, 2015, the State Department in the interests of attempting to ensure that many numbers of available immigrant visa numbers would not continue to be wasted, came up with the plan to add a second chart for each month to the visa bulletin so that individuals could begin to prepare and file their cases ahead of their visas becoming available. In this way, U.S.C.I.S. and the US consular posts could complete many more cases before the end of the government fiscal year and use up many more of the available immigrant visa numbers than in past years when unused numbers were lost forever. State then introduced Chart A and Chart B, the “Final Action Date” and “Filing Date” charts respectively. U.S.C.I.S. had a voice in stating that it had the authority to decide what chart could be used for filing cases during any particular month. Therefore the practice has evolved that U.S.C.I.S. announces within 7-15 days of State Department issuance of the bulletin which chart it will allow people to use for filing either family or employment based cases. But a strange phenomenon has occurred that U.S.C.I.S. has not addressed either in policy or in its I-485 adjustment of status form instructions – whether one can properly file where U.S.C.I.S. decides to use the “filing date” chart, but that date is less advanced in a category than the “final action date” chart, and the applicant has a priority date that is already available under the latter chart. An example is the visa bulletin for the month of March 2018 wherein the F-3 category for married sons and daughters of US citizens has final action date availability before December 15, 2005, but filing date availability only before December 1, 2005, and U.S.C.I.S. has instructed the use of the latter chart. An applicant with a priority date of December 8, 2005, would properly wonder whether he or she had the authority to file for adjustment of status during the month. It is clear that under the law pertaining to adjustment of status, applicants are allowed to file once the final action date has been reached as §245(a) of the INA permits adjustment of status filing where there is visa availability. This being the case, U.S.C.I.S. should make it clear in either policy or form instructions that filings are allowed. Failure to clarify means that many who are eligible to file during the month may continue to needlessly wait. Also if U.S.C.I.S. has a contrary view, it should immediately state the reasoning behind its interpretation.

H-1B decisions to mull over – U.S.C.I.S.’s Administrative Appeals Office in two non-precedent decisions on January 25, 2018, gave insight as to how it would look at whether the submitted labor condition application (LCA) corresponded with the H-1B petition, especially focusing on H-1B wage levels. The AAO set forth a five-part examination encompassing the following: 

• Whether the petitioner selected the appropriate SOC code for the proffered position after comparing the petitioner’s duties to those provided in the O*Net.
• Whether the petitioner’s experience requirements would warrant an increase in the level of pay.
• Whether the petitioner’s minimum educational requirement as compared to the education requirement contained in Appendix D of the Department of Labor guidance would warrant an increase in wage level.
• Whether the provided job duties as compared to O*Net are generally encompassed by the O*Net description or whether they require special skills or other requirements beyond those listed in the O*Net which would warrant an increase in pay.
• Whether any supervisory duties warrant a higher wage level.

The AAO sustained one of the appeals (Matter of B-C-, Inc., ID #1139516 (AAO Jan. 25, 2018)), and in the one denied (Matter of G-J-S-USA, Inc., ID #1182139 (AAO Jan. 25, 2018)) pointed out that the petitioner’s stated minimum education requirement was a Masters degree in finance or related field whereas the requirement contained in Appendix D indicated that the usual education level was a bachelor’s degree. The decisions are a welcome relief in showing the direction that the agency will follow in appeals pertaining to LCA wage levels vis-à-vis job duties, especially in the focus on Appendix D. U.S.C.I.S. adjudicators in the past have seemingly believed that any advanced degree merits another point in wage level. The appendix shows that for a number of occupations, a first professional degree, PhD, or Masters should not increase the entry level wage of the position.

Other H-1B scuttlebutt to watch out for – U.S.C.I.S. signaled in a new policy memorandum on February 22, 2018, its intent to make it even more difficult to obtain approvals for outsourced H-1B workers. The memorandum, “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites” gave background on determining the relationship of employer-employee, referenced U.S.C.I.S.’s mission to protect the interests of U. S. workers, stated that a petitioner must establish by a preponderance of the evidence that the beneficiary will be employed in a specialty occupation and for the entire length of time requested, and that the employer will maintain an employer-employee relationship for the duration of the requested period of time. It then went into graphic detail concerning the many pieces of evidence that it might require to prove such, and added that where an H-1B extension is requested for someone who was placed at one or more third-party worksites, the petitioner should establish that all of the H-1B requirements had been met for the entire prior approval period of time. In the same vein in attempting to curb outsourcing, “The Protect and Grow American Jobs Act,” placing new requirements of American worker recruitment on H-1B dependent companies and increasing the salary level for H-1B workers, passed the House Judiciary Committee in November, but will not likely affect this H-1B season because of the lack of legislative days in Congress and its other pressing concerns. The period for submitting H-1B cap cases this year will be from April 2-6, 2018, assuming that the 85,000 figure is reached within that time. Most practitioners believe that there will be fewer H-1B filings this year due to discouragement of the Trump administration, the many requests for further evidence (RFEs) to H-1B filings in 2017, numerous denials, and the expected strict scrutiny of petitions this year. The silver lining is that with the lesser expected numbers of petitions, the chances of being selected will rise. U.S.C.I.S. has already announced that it does not anticipate that premium processing will be suspended for non-H-1B petitions, and there will be a short suspension of premium processing for H-1B cap subject petitions. In 2017, premium processing for both was suspended for months. It also stated that it was not anticipating any procedural changes for the H-1B cap season.

Planning your litigation according to the circuit court – Sometimes an attorney has the opportunity to pick the forum for immigration court, and may wish to take full advantage to better litigate his or her client’s future case if he or she knows that a critical element may depend upon that person’s state of residence. Clients are often willing to move across state lines if doing so would help their cases. Two recent cases illustrate the importance of residence. A Board of Immigration Appeals decision, Matter of Castillo Angulo, 27 I & N Dec. 194 (BIA 2018), focused on the issue of admission “in any status” to qualify for LPR cancellation of removal in establishing the required continuous presence in the US for seven years. The Board held that in this case arising in the Ninth Circuit (covering Alaska, Washington, Montana, Idaho, Oregon, California, Nevada, Arizona, and Hawaii), an alien who was “waved through” a port of entry had established an admission “in any status” within the meaning of the law, but that this interpretation only applied for cases in the Fifth (covering Louisiana, Mississippi, and Texas) and Ninth Circuits and that otherwise, an alien had to prove that he or she possessed some form of lawful immigration status at the time of admission from which to count the seven years. A First Circuit case, Pereira v. Sessions, No. 16-1033 (First Circuit, 7/31/17) illustrated the stop time rule’s applicability where a notice to appear (NTA) in the immigration court did not contain the date and time of the alien’s initial hearing. Under the stop time rule, an alien’s period of continuous physical presence ends for purposes of cancellation of removal when he or she is served with an NTA. The First Circuit believed that the lack of date and time did not nullify the stop time rule. But in contrast, the rule in the Third (covering Pennsylvania, New Jersey, Delaware, and the Virgin Islands) and Ninth Circuits would hold the other way. Although the government may decry the reliance on circuit law in some cases citing Brand X (National Cable & Telecomm. Ass’n v.Brand X Internet Test Servs, 545 U. S. 967 (2005)) that the BIA may adopt different interpretations of ambiguous provisions of the immigration laws despite contrary court decisions, and that those interpretations, if reasonable, are entitled to deference, exploring differences in rulings in the circuit courts where the attorney knows what will be a critical issue may mean the difference between the client being allowed to stay or being removed.