State Department’s Interpretation of Matter of Arrabally and Yerrabelly at Odds with BIA’s
By Cyrus D. Mehta and Kaitlyn Box* In a previous blog, we analyzed Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), a seminal Board of Immigration Appeals case which held that a departure under advance parole does not trigger the 10 year bar provision under § 212(a)(9)(B)(i)(I). The BIA reasoned that travel […]
USCIS’ Change in CSPA Policy Can Help Aged Out Children Who Missed Out During the October 2020 Visa Bulletin EB-3 Advance for India
By Cyrus D. Mehta and Kaitlyn Box On September 25, 2024, USCIS announced that it had updated guidance in the USCIS Policy Manual Child Status Protection Act (CSPA) age for noncitizens who demonstrate extraordinary circumstances. The new guidance: “Clarifies that the CSPA age calculation of an applicant who established extraordinary circumstances and is excused from […]
Making the Case of the Manager under the L-1A Visa Whose Subordinates are AI Bots
When the Administrative Appeals Office (AAO) designated Matter of Z-A- Inc. as an “Adopted Decision” in 2016 it was seen as a breakthrough as it recognized that a US company can rely on its resources outside the United States to produce products or provide services. Matter of Z-A-, Inc. held that an L-1A intracompany manager who […]
While the Dogs and Cats of Springfield, OH Are Safe, the Haitian immigrants Are Not
By Cyrus D. Mehta and Kaitlyn Box* This past week, Trump and J.D. Vance have gone viral for some particularly bizarre rhetoric, alleging that Haitian immigrants in Springfield, Ohio were eating people’s pets. On September 9, 2024, J.D. Vance posted on X: “Months ago, I raised the issue of Haitian illegal immigrants draining social services […]
237(a)(1)(H) Waiver After Denial of Naturalization Application?
By Cyrus D. Mehta At the naturalization interview the noncitizen applicant could face a rude shock if the examiner reveals that they made a misrepresentation in a long forgotten application for an immigration benefit filed in the distant past. For example, the applicant could have been misled by an unauthorized practitioner when she first came […]
Parole in Place – A Means to an End or An End in Itself?
By Cyrus D. Mehta and Kaitlyn Box* On June 18, 2024, President Biden announced new measures aimed at ensuring that “U.S. citizens with noncitizen spouses and children can keep their families together”. One of these measures provides a discretionary grant of parole in place (“PIP”) to individuals who: are present in the United States without […]
The Perils of Claiming the Foreign Earned Income Exclusion When Sponsoring an Immigrant on an Affidavit of Support
By Cyrus D. Mehta and Kaitlyn Box* Although most U.S. citizens and lawful permanent residents must pay U.S. taxes on their worldwide income, the foreign earned inclusion exclusion (“FEIE”) allows some U.S. citizens and residents to exempt income earned outside the country from U.S. taxes. In order to avail of the FEIE, the taxpayer must […]
Court Upholds Regulation Issuing Employment Authorization to H-4 Spouses Even After the Demise of Chevron Deference
By Cyrus D. Mehta and Kaitlyn Box* On August 2, 2024, the D.C. Court of Appeals issued its opinion in Save Jobs USA v. DHS, upholding the regulation that provides employment authorization to certain H-4 spouses of H-1B nonimmigrants. Save Jobs USA, an organization aiming to “address the problems American workers face from foreign labor […]
Obtaining Advance Parole on a Pending Adjustment of Status Application
By Cyrus D. Mehta Those who have filed an I-485 application adjustment of status must obtain advance parole before they travel outside the US while their I-485 application. Section 212(d)(5)(A) of the Immigration and Nationality Act (INA) authorizes the Secretary of Homeland Security, at his or her discretion, to “parole into the United States temporarily […]
Does the Signing of the I-485 Supplement J By a New Employer Constitute Visa Sponsorship?
Cyrus D. Mehta and Jessica Paszko* Portability under Section 204(j) of the Immigration and Nationality Act (INA) allows certain employment-based green card applicants to change jobs or employers while their adjustment of status (Form I-485) application is pending. Portability becomes available once the I-485 has been pending for at least 180 days. It must be […]
SEC v. Jarkesy and Loper Bright v. Raimondo: How the Supreme Court’s Dismantling of the Administrative State Impacts Immigration Law
By Cyrus D. Mehta and Kaitlyn Box* The conservative Supreme Court majority recently issued two decisions that will have a major impact on the administrative state by transferring power from administrative agencies to the courts. We discuss both these cases and their impact on immigration law. SEC v. Jarkesy On June 27, 2024 the Supreme […]
The Uncertain Path of the D-3 Waiver for DACA Recipients under Biden’s New Immigration Initiative
By Cyrus D. Mehta and Kaitlyn Box* On June 18, 2024, the Biden administration announced two new immigration initiatives aimed at keeping families together. The first is a “parole in place” program which will provide a pathway for undocumented spouses of U.S. citizens to become lawful permanent residents (LPRs). In order to be eligible, the […]
Granting Deferred Action to Aging Out Children in Lawful Status Is Preferable to Having Them Start All Over Again
By Cyrus D. Mehta Children of beneficiaries of approved I-140 petitions that are caught in the employment-based backlogs are in danger of aging out if they turn 21 and are unable to obtain permanent resident status with their parents. Although the Child Status Protection Act (CSPA) is able to protect the age of some children […]
Ethical Obligation of the Public Official Lawyer Who Falsely Undermines the Criminal Justice System after Trump’s Conviction
By Cyrus D. Mehta and Kaitlyn Box On May 30, 2024, Donald Trump was convicted of 34 counts of falsifying business records in New York, all in connection with his payment of hush money to adult film actress Stormy Daniels in advance of the 2016 election. Harvard law professor Laurence Tribe eloquently summarized on X […]
Who Are the Undocumented Immigrants That Would Become Targets of Trump’s Deportation Army If He Got Reelected
By Cyrus D. Mehta If Trump gets reelected, he has hinted that his administration will create a deportation force that would deport 15 million undocumented immigrants. Radley Balko’s newsletter on substack, Trump’s Deportation Army, provides chilling details on how this deportation would be executed, which would be an unmitigated disaster for families, the US economy […]
Harrow v. Department of Defense and What it Means for Immigration Cases: the 30-Day Time Limit for Filing a Petition for Review Is Still Very Important, But Probably Not Jurisdictional Anymore
On May 16, 2024, the U.S. Supreme Court issued its opinion in Harrow v. Department of Defense. While this case did not relate in any obvious way to immigration, its holding and reasoning has a significant implication for people seeking review of removal orders in federal court. Specifically, Harrow implies that the 30-day deadline for […]
Saving the Labor Certification for the Backlogged Beneficiary Even After the Job Has Changed
By Cyrus D. Mehta and Kaitlyn Box* In “What if the Job Has Changed Since the Labor Certification Was Approved Many Years Ago” we discussed strategies for noncitizen workers who are eligible to file an I-485 adjustment of status application, but find that their job has changed since the approval of the I-140 petition, which […]
Can a Renaissance Person Ever Qualify for a US Visa Classification?
By Cyrus D. Mehta and Jessica Paszko* Surely, USCIS would be hard-pressed to find that any one of the men who contributed to the founding of our great nation did not possess “extraordinary ability,” but would it draw the same conclusion about each of our Founding Fathers in the early days of their careers when […]
The Much Neglected Schedule A, Group II Green Card Option Gets a Boost After USCIS Broadens the “Sciences or Arts” Definition
By Cyrus D. Mehta and Kaitlyn Box* On April 10, 2024, USCIS issued a policy alert clarifying the term “sciences or arts” for Schedule A, Group II occupations. Schedule A occupations are those for which the Department of Labor (DOL) has recognized that a shortage of U.S. workers exists. Group I occupations consist of physical […]
Lock Up Falsely Arrested Adjustment Applicants and Teenage Shoplifters, or Be Sued: the House’s “Laken Riley Act”
On March 7, 2024, the Republican-led U.S. House of Representatives passed the “Laken Riley Act”, H.R. 7511. The bill was named after a murder victim from Georgia, whose “alleged murderer”, as the bill describes him, had been paroled into the United States from Venezuela and had previously been arrested for driving a scooter without a […]
To What Extent Can Walmart’s Successful Blocking of an Administrative Law Judge in the Executive Office for Immigration Review Extend to Immigration Judges?
By Cyrus D. Mehta and Kaitlyn Box On March 25, 2024 Chief Justice J. Randal Hall of the United States District Court for the Southern District of Georgia, Statesboro Division granted Walmart’s motion for summary judgment in Walmart Inc. v. Jean King, which alleged that the administrative proceedings against the company for violations of immigration-related […]
The Application for Prevailing Wage Determination and the Application for Permanent Labor Certification – Siblings or Twins?
By Cyrus D. Mehta and Kaitlyn Box* The process for an employer to sponsor a noncitizen employee for permanent labor certification is long and complicated. The first step in the process for filing Form ETA 9089, Application for Permanent Labor Certification, also known as PERM, is to file Form ETA 9141, Request for Prevailing Wage […]
As Texas Has Been Smacked Down Twice for Lack of Standing in Challenges to Federal Immigration Policies, Biden Should Get Even Bolder in Reforming Our Immigration System Through Executive Actions
On March 8, 2024, Judge Tipton in Texas v. DHS dismissed a lawsuit brought by Texas and 20 other states challenging President Biden’s humanitarian parole program. Judge Tipton, who was appointed by Trump, has otherwise been receptive to challenges to Biden’s immigration policies but not this time. Texas filed the lawsuit in his court thinking […]
The Potential Impact of SEC v. Jarkesy on Immigration Law and EB-5 Lawyers
By Cyrus D. Mehta and Kaitlyn Box* On November 29, 2023, the Supreme Court heard oral argument in Securities and Exchange Commission v. Jarkesy, a case that involves several key questions: whether the statues allowing the Securities and Exchange Commission (SEC) to bring administrative enforcement proceedings that impose civil penalties violate the Seventh Amendment right […]
How Corner Post Along with the Demise of Chevron Deference Can Open Up Immigration Regulations to Challenges
On February 20, 2024, the Supreme Court heard oral argument in Corner Post, Inc. v. Board of Governors of the Federal Reserve System. This case could potentially expand the six year statute of limitations to challenge a regulation under the Administrative Procedure Act (APA). § 702 of the APA provides that “]a] person suffering legal […]
Board of Immigration Appeals in Matter of Aguilar Hernandez Provides Glimpse of How Statutes and Regulations Will Be Interpreted Without Deference to Government
By Cyrus D. Mehta and Kaitlyn Box* On January 31, 2024, the Board of Immigration Appeals (BIA) issued a decision in Matter of Aguilar Hernandez. Mr. Aguilar Hernandez, a noncitizen from Mexico, had been served a Notice to Appear (NTA) in 2019 that did not list the date and time of his individual hearing. He […]
Musings On Brand X As a Force for Good Ahead of the Supreme Court’s Ruling on Chevron Deference
By Cyrus D. Mehta and Kaitlyn Box The Supreme Court on January 17, 2024 heard arguments in two cases – Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo – that may determine whether courts will continue to give deference to a federal agency’s interpretation of an ambiguous federal statute as held in Chevron […]
CSPA Disharmony: USCIS Allows Child’s Age to be Protected under the Date for Fling while DOS Allows Child’s Age to be Protected under the Final Action Date
By Cyrus D. Mehta On February 14, 2023, the USCIS recognized that the age of the child gets protected under the Child Status Protection Act when the Date for Filing (DFF) in the Department of State (“DOS” or “State Department”) Visa Bulletin becomes current. Since October 2015, the State Department Visa Bulletin two different charts […]
USCIS Policy Manual Recognizes Dual Intent for Foreign Students as Expressed in Matter of Hosseinpour
By Cyrus D. Mehta and Kaitlyn Box* On December 20, 2023, U.S. Citizenship and Immigration Services (USCIS) issued updated policy guidance in the USCIS Policy Manual pertaining to nonimmigrant students in F and M status. An F-1 visa allows a nonimmigrant student to enter the U.S. to student at a college or university, while nonimmigrants […]
2023 in Perspective from The Insightful Immigration Blog
By Cyrus D. Mehta & Jessica Paszko* Thank you for reading and supporting The Insightful Immigration Blog in 2023 as we covered several major themes. Though we finally said goodbye to the COVID-19 public health emergency in the spring, Title 42, which was instituted due to the pandemic, still hung around for part of the […]
Comment to Proposed H-1B Rule Expressing Concern Over New Definition of Specialty Occupation
December 22, 2023 Submitted via www.regulations.gov DHS Docket ID No. USCIS-2023-0005 Department of Homeland Security U.S. Citizenship and Immigration Services Office of Policy and Strategy 5900 Capital Gateway Dr. Camp Springs, MD 20588-0009 Attn: Charles L. Nimick Chief, Business and Foreign Workers Division Re: Regulatory Proposal for Modernizing H–1B Requirements, Providing Flexibility in the […]
Scripps v. Jaddou Offers Nuanced Interpretation of “Final Merits Determination” in Reversal of EB-1B Denial for Outstanding Researcher
By Cyrus D. Mehta and Jessica Paszko* Noncitizen professors or researchers can more easily seek to obtain permanent residence as “outstanding professors and researchers” in light of the District Court of Nebraska’s recent decision in Scripps v. Jaddou. Pursuant to INA § 203(b)(1), noncitizens may be eligible for permanent residency under the employment-based first preference […]
Personal Conflicts of Interest Arising Out of the Israel-Hamas War
By Cyrus D. Mehta and Kaitlyn Box* The escalating war between Israel and Hamas presents unique challenges for immigration lawyers who represent noncitizens from impacted areas. One such ethical conundrum arises when a lawyer comes to know that a current or prospective client holds views about the conflict that the lawyer strongly disagrees with or […]
How Prosecutorial Discretion Saved Our Client
By Cyrus Mehta and Jessica Paszko* This is the story of our client Nadia Habib who was in immigration proceedings from 18 months till 31 years until an Immigration Judge granted her adjustment of status on November 21, 2023! Nadia Habib came to the US in 1993 from Bangladesh when she was less than 2 […]
Space X’s Constitutional Challenge May Nix DOJ’s Ability to Bring Discrimination Claims Against Employers Under Section 274B of the Immigration and Nationality Act, Including in the Labor Certification Context
By Cyrus D. Mehta and Kaitlyn Box* On November 9, 2023, the Department of Justice (DOJ) settled a dispute with Apple concerning allegations that Apple’s recruitment practices under the Department of Labor’s (DOL) foreign labor certification program – known as Program Electronic Review Management (PERM) – had discriminated against certain U.S. workers. Specifically, the DOJ […]
Will the Immigration Provisions in the AI Executive Order Bring Meaningful Change Or Be Mere Window Dressing?
By Cyrus D. Mehta and Kaitlyn Box* On October 30, 2023, President Biden issued an Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence (AI). The stated purpose of the order is to ensure that the “development and use of AI” is governed “safely and responsibly”. The executive order further […]
While the Proposed H-1B Rules Have Many Positive Features, They May Also Result in Requests for Evidence and Denials
The Department of Homeland Security (DHS) plans to amend its H-1B regulations “governing H–1B specialty occupation workers to modernize and improve the efficiency of the H–1B program, add benefits and flexibilities, and improve integrity measures.” The notice of proposed rulemaking (NPRM), expected to be published in the Federal Register on October 23, 2023, would also […]
Emerging Immigration Issues Arising from Violence in the Middle East
The violence and loss of life in the Middle East this week are unspeakably tragic, and it is innocent Israeli and Palestinian citizens who stand to suffer the most in the escalating conflict. Hamas’ condemnable attack of Israeli civilians, as well as Israel’s subsequent preparations to invade Gaza to destroy Hamas, are likely to result […]
ICE Imposes Guardrails On Use of Red Notices Against Noncitizens in Removal Proceedings
By Cyrus D. Mehta and Jessica Paszko* A Red Notice is a request to locate and provisionally arrest an individual pending extradition, which INTERPOL issues at the request of a member country or an international tribunal based on a valid national arrest warrant. A Red Notice does not establish that the person has been convicted […]
Shaping Immigration Policy Through EADs
By Cyrus D. Mehta and Kaitlyn Box* In the face of Congressional inaction to fashion an immigration solution for the United States, the Administration does have broad authority to grant an employment authorization document (EAD) to noncitizens. It also has the ability to extend the validity of an EAD. On September 27, 2023, USCIS announced […]
Although the October 2023 Visa Bulletin is Disappointing, the Administration Still Has the Option to Advance the Dates for Filing in the Next Visa Bulletin
By Cyrus D. Mehta The October 2023 Visa Bulletin was disappointing. There was some expectation that the Administration would radically advance the Dates for Filing so that many more could file I-485 adjustment of status application, but that never happened notwithstanding a bipartisan letter signed by more than 50 Congresspersons advocating for this reform. It […]
NYC Should Welcome Migrants Rather Than Have a Mayor Who Disparages Them
Cyrus D. Mehta and Kaitlyn Box* In recent weeks, New York City Mayor Eric Adams has made a series of increasingly uninformed and disparaging comments about migrants arriving in New York. In a town hall meeting on September 6, Adams said of the influx of migrants: “this issue will destroy New York City”. Adams further […]
To What Extent Can Immigration Practitioners Ethically Rely on ChatGPT to Aid Their Practice?
To what extent can ChatGPT assist immigration lawyers in their immigration practice? What are the ethical pitfalls if a lawyer relies on ChatGPT? There is one case that was widely publicized all over the world In Mata v. Avianca Inc, Judge Castel in the Southern District of New York sanctioned two New York lawyers and […]
USCIS Updates Policy Guidance on CSPA ‘Sought to Acquire’ Requirement After Using Filing Date to Protect the Age of the Child
By Cyrus D. Mehta and Kaitlyn Box* As detailed in a prior blog, USCIS issued updated guidance on February 14, 2023 on when an immigrant visa number “becomes available” for the purpose of calculating a noncitizen’s age under the Child Status Protection Act (CSPA). Prior to February 2023, USCIS had taken the position that only […]
Changes in Work From Home Policies After Labor Certification Has Been Filed
Cyrus D Mehta and Jessica Paszko* As a response to the COVID-19 pandemic, employers implemented telecommuting policies, and work-from-home became the norm for much of the workforce. Three years later, many of those employees are dusting off their lunchboxes and ironing their work suits as their employers call them back to the office. While the […]
Will United States v. Hansen Come Back to Bite Trump?
By Cyrus D. Mehta and Kaitlyn Box* Former President Trump was indicted on August 1, 2023 by Special Counsel Jack Smith for his efforts to overturn the 2020 elections. Although Trump believes his actions were protected by the First Amendment, a recent Supreme Court case involving an immigration statute, United States v. Hansen, held that […]
Eliminate the H-1B and Green Card Caps!
By Cyrus D. Mehta and Kaitlyn Box* On July 27, 2023, USCIS announced that it will conduct a second round of selections for the FY 2024 H-1B lottery. An alert posted on the USCIS website stated that “We recently determined that we would need to select additional registrations to reach the FY 2024 numerical allocations. […]
Advancing the Dates for Filing in the State Department Visa Bulletin Will Restore Balance and Sanity to the Legal Immigration System
By Cyrus D. Mehta The August 2023 Visa Bulletin is a disaster. Here are some of the highlights: Establishment of Worldwide employment-based first preference (EB-1) final action date. Rest of World countries, Mexico, and Philippines will be subject to a final action date final action date of August 1, 2023. It is likely that in […]
Canada Begins New Program for Holders of U.S. H-1B Visas – And They Really Do Mean H-1B Visas, Not H-1B Status, Although Family Members Need Not Have Any Kind of H-4
Update: on July 18, 2023, IRCC posted an announcement that the cap of 10,000 applications for the new program had been reached on July 17 and the program was closed. So the below post may be only of theoretical interest unless Canada reopens the program at a later date. In a previous blog post, I […]
DHS’s Family Reunification Parole Initiative Can Serve as Template for Other Bold Executive Actions to Reform the Immigration System Without Fear of Being Sued by a State
By Cyrus D. Mehta and Kaitlyn Box* On July 7, 2023, DHS announced a new family reunification parole initiative for beneficiaries of approved I-130 petitions who are nationals of Colombia, El Salvador, Guatemala, & Honduras. Nationals of these countries can be considered for parole on a case-by-case basis for a period of up to three […]
Canada Announces New Program for Holders of U.S. H-1B Visas – But Do They Mean Visas, or H-1B Nonimmigrant Status?
In a news release on June 27 issued following remarks at the Collision 2023 conference, Canada’s Minister of Immigration, Refugees and Citizenship, Sean Fraser, announced several new measures as part of “Canada’s first-ever Tech Talent Strategy.” One that will likely be of interest to many foreign workers in the United States is “the creation of […]
While Supreme Court Holds That States Have No Standing to Challenge Federal Immigration Enforcement Priorities in United States v. Texas, How Does This Bode for DACA and Other Immigration Policies?
By Cyrus D. Mehta In United States v. Texas, the Supreme Court in an 8-1 majority opinion rendered a blow to Texas and Louisiana in holding that they had no standing to challenge the Biden administration on federal immigration policy on enforcement priorities. Writing for the majority, Justice Kavanaugh said, “The States have brought an […]
USCIS Broadens Compelling Circumstances Parameters for Skilled Immigrants in the Green Card Backlogs So That They Can Continue to Work in the US Even After Job Loss
By Cyrus D. Mehta and Kaitlyn Box* In our previous blog, we suggested several ways that the Biden administration could follow to allow nonimmigrant workers who have been laid off to remain in the U.S. As major tech companies continue to lay off workers, nonimmigrant employees are often left with few pathways to continue working […]
Although Section H.10-B Has Disappeared in the New ETA 9089, Will Its Ghost Continue to Haunt Us?
By Cyrus D. Mehta and Kaitlyn Box* The new ETA 9089 form has gone into effect and DOL stopped using the old version of the form on the evening of May 31, 2023. The new form does not have Box H.10-B. In our previous blog, we discussed the rise in PERM labor certification denials related […]
Remembering Mark Von Sternberg Through Matter of Recinas
By Cyrus D. Mehta I write this blog in fond memory of Mark Von Sternberg who passed away on May 16, 2023. Mark was a brilliant lawyer, scholar and writer who worked very hard on behalf of the most vulnerable immigrants. He was a Senior Attorney with Catholic Charities Community Services/Archdiocese of New York where […]
Termination in the Twilight Zone When the I-485 Application Has Been Pending for Less Than 180 Days
By Cyrus D. Mehta & Jessica Paszko* Just a couple of months ago we considered the options available to terminated H-1B workers who want to become entrepreneurs. Since then, layoffs have not abated and we’ve continued thinking about the options available to laid off nonimmigrant workers. This time, we consider the options available to H-1B […]
Kellogg Has Reared its Ugly Head in the New Labor Certification Form: How Do We Deal with Alternate Requirements?
By Cyrus D. Mehta and Kaitlyn Box* Our most recent blog in this series discusses the new Application for Permanent Employment Certification, Form ETA 9089 (“ETA 9089”) and corresponding Application for Prevailing Wage Determination, Form ETA 9141 (“ETA 9141”) promulgated by the Department of Labor (DOL), and, specifically, how issues concerning dual representation and familial […]
Answering Tricky Questions on the Revised Labor Certification Form on Dual Representation and Familial Relationships
By Cyrus D. Mehta The Department of Labor’s Office of Labor Certification (OFLC) has revised the Application for Permanent Employment Certification, ETA Form 9089, as well as the corresponding Application for Prevailing Wage Determination, Form ETA 9141. OFLC will begin accepting these revised forms on May 16, 2023, and has posted an “unofficial watermarked preview […]
Ethical Considerations When the Removal Case is Dismissed
By Cyrus Mehta and Kaitlyn Box* In recent times, immigration courts are dismissing the cases of noncitizens with great zeal. Even government attorneys are moving to dismiss these cases and Immigration Judges (IJ) are going along. This bodes well for the noncitizen who is no longer facing the specter of a removal order. On the […]
Making Sense of USCIS’s Twitter Posts on Applying for Jobs or Attending Interviews While in Visitor Visa Status
By Cyrus D. Mehta and Kaitlyn Box* On April 11, 2023, USCIS’s post on Twitter created a great deal of interest and some confusion. The tweet indicated that nonimmigrants can apply for jobs or attend job interviews while in B-1 or B-2 status. The post was the subject of numerous press articles, with some incorrectly […]
Second Circuit Upholds Trump Era Interpretation on Administrative Closure Even Though Biden Has Changed It. Does This Leave Open Possibility that Biden Era Interpretation May Also Be Upheld If Future Administration Changes It?
By Cyrus D. Mehta and Kaitlyn Box* The Second Circuit in Garcia v. Garland upheld the BIA’s decision not to grant administrative closure under Matter of Castro-Tum, despite the fact that that the case has since been overruled. Matter of Castro -Tum, a Trump era decision, held that Immigration Judges (IJs) and the Board of […]
Dealing With Section H.10-B Labor Certification Denials
By Cyrus D. Mehta and Kaitlyn Box* In recent weeks, reports of PERM labor certification denials concerning the manner in which question H.10-B was completed on Form ETA 9089 have abounded from many immigration lawyers and their clients. This question asks employers to “identity the job title of the acceptable alternate occupation” if an alternate […]
Pathways for Terminated H-1B Workers Who Want to Become Entrepreneurs
By Cyrus D. Mehta & Jessica Paszko* The list of options for an H-1B beneficiary who has been laid off is often narrow. At the top of the list sits the most obvious option: find another employer who will sponsor you for an H-1B. Although, in the current job market, which is growing more competitive […]
Providing Competent Representation to Undocumented Noncitizens Despite the Criminal Encouragement Provision
By Cyrus D. Mehta and Kaitlyn Box* Our previous blog discussed United States v. Helaman Hansen, a case in which the Supreme Court granted certiorari on December 9, 2022. Oral argument in the case is set for March 27, 2023. Hansen questions whether INA §274(a)(1)(A)(iv), or the “encouragement provision”, which prohibits individuals from “encourag[ing] or […]
Khedkar v. USCIS Affirms that Employee Also Has Interest in an I-140 Petition Filed By Employer
By Cyrus D. Mehta and Kaitlyn Box Because an employment-based immigrant visa petition, or Form I-140, is filed by an employer on behalf of a foreign national employee who is being sponsored for permanent residency, there is sometimes a perception that both the I-140 petition and the underlying labor certification belong to the employer. They […]
The Dates for Filing Chart in the Visa Bulletin Not Only Protects Children from Aging Out But Can Be Dramatically Advanced To Allow Many More Backlogged Immigrants To File Adjustment of Status Applications
By Cyrus D. Mehta On February 14, 2023, the USCIS issued updated guidance to indicate when an immigrant visa number “becomes available” for the purpose of calculating a noncitizen’s age in certain situations under the Child Status Protection Act (CSPA). The guidance became on effective 2/14/23 and comments are due by 3/14/23. Since October 2015, […]
National Interest Waiver Changes for STEM Graduates and Entrepreneurs, Along with Premium Processing, Will Benefit H-4 Spouses Seeking Work Authorization
By Cyrus D. Mehta and Jessica Paszko* Earlier this year, U.S. Citizenship and Immigration Services (USCIS) announced that as of January 30, 2023, it would accept premium processing requests for all previously filed and newly filed petitions for National Interest Waivers (NIW) under the Employment-Based Second Preference (EB-2) category. For an additional filing fee of […]
Texas’s Legal Challenge to Biden’s Humanitarian Parole Program is Both Flawed and Inhuman
By Cyrus D. Mehta and Kaitlyn Box* President Biden’s humanitarian parole program is a wonderful example of how executive action can reshape immigration policy in the face of Congressional inaction. It allows people fleeing troubled spots to come to the US in an orderly manner. The program initially implemented for Ukranian and Venezuelan nationals will […]
The Tension Between State Wage Transparency Laws and Labor Certification Recruitment
By Cyrus D. Mehta and Kaitlyn Box* In the past year, several states and jurisdictions across the U.S. have begun enacting wage transparency laws, and others are poised to go into effect in the new future. Aimed at increasing wage transparency for job seekers, these laws typically require that job postings disclose the salary that […]
How the Humanitarian Parole Program at the Border Can Serve as a Template for Further Relief Under the Broken Immigration System
By Cyrus D. Mehta & Manjeeta Chowdhary* Restive people at the U.S.- Mexico border for entry into the United States is not the new norm for the United States government. The usual procedure is to seek humanitarian relief through asylum under Title 8 of the United States Code citing a credible fear of persecution or […]
2022 in Perspective from The Insightful Immigration Blog
By Cyrus D. Mehta & Jessica Paszko* Thank you for reading and supporting The Insightful Immigration Blog. Listed below are the top 10 most viewed blogs that were published in 2022. While these are the 10 most viewed blogs, each blog is a carefully crafted gem, and we invite you to read all of them. […]
United States v. Hansen: Supreme Court Once Again Agrees to Hear Constitutionality of a Smuggling Statute That Could Impact Immigration Lawyers
By Cyrus D. Mehta and Kaitlyn Box* On December 9, 2022, the Supreme Court granted certiorari in United States v. Helaman Hansen, a case that poses the question whether the federal criminal prohibition on encouraging or inducing unlawful immigration for commercial advantage or private financial gain in violation of INA §274(a)(1)(A)(iv) is unconstitutionally overbroad. Helaman […]
Immigration Enforcement and Prosecutorial Discretion Go Hand in Hand: Will the Supreme Court Upset this Balance?
By Cyrus D. Mehta and Kaitlyn Box* On Tuesday, November 29th, the Supreme Court heard oral arguments in US v. Texas, which involves a challenge to the Biden administration’s Immigration and Customs Enforcement (ICE) enforcement priorities. Originally laid out in the 2021 Mayorkas Memo, this list of enforcement priorities would have allowed ICE to focus […]
Layoffs Will Hurt Nonimmigrant Workers the Most, Especially Indian Born, but the Biden Administration Can Provide Relief
By Cyrus D. Mehta and Kaitlyn Box* In recent weeks, news of layoffs at the likes of Twitter, Meta, and Amazon have contributed to broader fears that the United States is entering a recession. In last week’s blog, we provided suggestions for how terminated workers can maintain their nonimmigrant status and potentially even pursue permanent […]
Why the AILA Law Journal is Important
The AILA Law Journal has come a long way since its April 2019 launch. At the time of the publication of the November 2022 issue, the AILA Law Journal will be 8 issues old. I am proud to be the Editor in Chief of the AILA Law Journal at the time of the release of […]
Guide to Terminated Noncitizen Workers: Preserving Nonimmigrant Status and Permanent Residency Options
By Cyrus D. Mehta The sudden layoffs of nonimmigrant workers in H-1B and other statuses at Twitter and other tech companies in the US create additional concerns as their visa status is tied to the employer. Those who have been sponsored for permanent residence face additional concerns. We provide a quick guide to employees who […]
USCIS Guidance Enabling STEM Graduates to Obtain O-1 Extraordinary Visas Should Apply Equally to EB-1 Extraordinary Petitions for Green Cards
By Cyrus D. Mehta & Jessica Paszko* Earlier this year, the USCIS issued policy guidance in the USCIS Policy Manual to clarify how the USCIS evaluates evidence to determine eligibility for O-1A nonimmigrants of extraordinary ability, with a focus on persons in science, technology, engineering, or mathematics (STEM) fields. The O-1A nonimmigrant visa is available […]
DOL Fails to Side with H-1B Worker who Claimed Back Wages Against Employers After Being Terminated
By Cyrus D. Mehta and Kaitlyn Box* H-1B workers can file complaints against employers to the Department of Labor if they are not paid the promised wage. One H-1B worker filed complaints against two of his employers, Metromile, Inc, and Hinge Health, for back wages. When the worker was not satisfied with the initial decisions, […]
Biden’s Pardons: The First Drops in a Big Bucket of Criminal Reform
By Stacy Caplow∗ President Biden pardoned thousands of United States citizens and lawful permanent residents who committed or were convicted in federal courts of simple marijuana possession since 1992, and even earlier if those records can be located. This is a record number of mass pardons since Vietnam draft resisters were pardoned by President Carter […]
A Tale of Two Cases – Washtech v. DHS and Texas v. USA: To What Extent can the Executive Branch Allow Noncitizens to Remain and Work in the US
By Cyrus D. Mehta and Kaitlyn Box* To what extent can the Executive Branch allow noncitizens to remain and work in the US when there is no explicit provision in the Immigration and Nationality Act (INA) covering these categories of noncitizens? Two courts of appeals have ruled differently in recent decisions. One court found authority […]
Solutions for the Family Member Who Did Not Get the Employment Based Green Card with the Principal Family Member on September 30, 2022
By Cyrus D. Mehta & Jessica Paszko* This past month, we said our goodbyes to summer beach days and cookouts, welcomed the crisp autumn weather, crossed our fingers for clients with current employment-based priority dates and hoped that they would be one of the lucky few to get their green cards before the end of […]
Asylum Seekers are Legally in the US Notwithstanding the Political Stunts of Governors Abbott and DeSantis
By Cyrus D. Mehta and Kaitlyn Box* In a reprehensible political stunt, Governor Greg Abbott of Texas and Governor Ron DeSantis of Florida sent around 150 immigrants to liberal states by bus and plane last week. Some of these individuals were abruptly dropped out outside Vice President Harris’ residence in Washington, D.C., while others were […]
Will USCIS Waste Precious Employment Based Green Cards as it Announces Push to Use as Many as Possible by September 30?
U.S. Citizenship and Immigration Services (USCIS) announced that the overall employment-based annual limit for immigrant visas in fiscal year (FY) 2022 is approximately twice as high as usual, primarily due to consular closures abroad during the COVID-19 pandemic. USCIS said it is “dedicated to ensuring we use as many available employment-based visas as possible in […]
The Legal Basis for DACA as Expressed in the Final Rule
By Cyrus D. Mehta and Kaitlyn Box* On August 24, 2022, the Department of Homeland Security (DHS) issued a final rule aimed at “preserving and fortifying” the Deferred Action for Childhood Arrivals (DACA) program. The DACA program was initiated by a 2012 memo from then-DHS secretary Janet Napolitano (“Napolitano Memo”) and has been subjected to […]
Justice Barrett and the Fate of the Mayorkas Prosecutorial Discretion Memo
By Cyrus D. Mehta and Kaitlyn Box* On July 21, 2022, the Supreme Court granted certiorari in United States v. Texas, which involves a challenge to the U.S. Immigration and Customs Enforcement (ICE) enforcement priorities as originally laid out in the 2022 Mayorkas Memo. Pursuant to these priorities, ICE would have prioritize the apprehension and […]
Will “Head of Team Anywhere” and Other New Fangled Jobs That Have Popped Up During the Pandemic Be Able to Fit Under Existing Visa Categories?
By Cyrus D. Mehta and Kaitlyn Box* From reliance on Zoom meetings to conduct business to an increased emphasis on employees’ health and wellbeing, COVID has ushered in fundamental alterations to many workplace cultures. But innovations in the ways in which employees carry out their day-to-day duties have not been the only change. As a […]
The Long, Windy, Bumpy, and Outrageous Road to Labor Certification feat. Two Sunday Ads
By Cyrus D. Mehta and Jessica Paszko* It’s no secret that employers wishing to sponsor a foreign national for permanent employment must jump through many bureaucratic hoops that Congress once envisioned would ensure that foreigners are not stealing jobs from U.S. workers. One of those bureaucratic hoops in the PERM labor certification process is conducting […]
Considerations When Terminating a Foreign Worker
By Cyrus D. Mehta Terminating an employee is always a very difficult decision, and requires the employer to comply with various state and federal laws. Terminating a noncitizen employee requires additional considerations under US immigration law. The American Immigration Lawyers Association has issued a flyer to its members that provides a useful guide to employers. […]
A Practical Guide to Spending the 3 and 10 Year Bars in the US
By Cyrus D. Mehta and Kaitlyn Box* On June 24, 2022, USCIS issued a Policy Alert on inadmissibility under § 212(a)(9)(B) of the Immigration and Nationality Act (INA) This provision states that a noncitizen was unlawfully present in the United States for a period of more than 180 days but less than 1 year will […]
Impact of the Overturning of Roe v. Wade on Immigrants
By Cyrus D. Mehta, Kaitlyn Box*, and Jessica Paszko** On June 24, 2022, the Supreme Court issued its opinion in Dobbs v. Jackson Women’s Health Organization, overturning the landmark decision Roe v. Wade, and holding that there is no constitutional right to an abortion. Justice Alito, writing for the majority, first held that abortion is […]
Still Disadvantaged Even When Your Priority Date Becomes Current
By Cyrus D. Mehta and Kaitlyn Box* Individuals who are caught in the employment-based immigrant visa backlogs must navigate myriad issues that are associated with waiting for their priority dates to become current and applying for adjustment of status. Generally, it is cause for celebration when these individuals’ priority dates become current, as then are […]
Ethical Dimensions of Patel v. Garland
By Cyrus D. Mehta and Kaitlyn Box* On May 16, 2022, the Supreme Court issued its decision in Patel v. Garland, a decision that has devastating implications for the reviewability of U.S. Citizenship and Immigration Services’ (“USCIS”) actions in federal court. Federal courts, according to the Supreme Court, will no longer be able review factual […]
The Pathos of Patel v. Garland
By Stacy Caplow∗ There are many reasons for despair over the Supreme Court’s technocratic decision in Patel v. Garland which strikingly depends on arguments advanced by an amicus rather than the Government. The decision effectively forecloses judicial review of fact-finding by immigration courts or agencies regardless of whether the fact-finding was unreasonable and produced an incorrect […]
H-1B Extension Beyond Six Years Will Not Be Granted If Priority Date is Current and Green Card is Not Applied for Within One Year
By Cyrus D. Mehta and Jessica Paszko* The Immigration and Nationality Act (INA) § 214(g)(4) limits the amount of time that H-1B nonimmigrant workers may extend their H-1B status to six years. Under certain situations, however, H-1B status may be extended beyond the statutory six-year maximum, namely by way of a “Lengthy Adjudication Delay Exemption” […]
Ethical Considerations when ICE Moves to Dismiss Removal Proceedings under the Doyle Prosecutorial Discretion Memo
By Cyrus Mehta and Kaitlyn Box* On April 3, 2022 the U.S. Immigration and Custom Enforcement (ICE) Office of the Principal Legal Advisor (OPLA) Kerry E. Doyle issued a memorandum (“the Doyle memo”) which empowers ICE attorneys to exercise prosecutorial discretion in handling the cases of noncitizens who are not considered enforcement priorities under the […]
Helping Afghans and Ukrainians Progress from Parole to Temporary Protected Status to Permanent Residence
By Cyrus Mehta and Kaitlyn Box* In light of the recent crises in Afghanistan and Ukraine, Temporary Protected Status (TPS) has been at the forefront of discussions around how the United States can assist individuals who are fleeing these two countries. On March 3, 2022, Ukraine was designated for TPS for an 18 month period. […]
I-485 Supplement J Should Not Be the Only Vehicle to Express Portability
By Cyrus D. Mehta It is well settled that noncitizens must have the requisite intent to work for their employers at the time of entry or adjustment of status under the employment second (EB-2) or employment third preferences (EB-3) unless they are exercising job portability under specific statutory provision. A noncitizen who does not have […]
Immigration Relief for Ukrainian Refugees: What the United States is Currently Offering
I conducted a one hour presentation on immigration relief for Ukrainians under the aegis of the Practising Law Institute on March 29, 2022, and spoke about options for Ukrainians in the US as well as for those who have fled Ukraine or considering fleeing as a result of the unprovoked Russian invasion. This presentation should […]
Using U.S. Immigration Law to Undermine Putin
By Cyrus D. Mehta and Kaitlyn Box* Since Russia’s invasion of Ukraine in late February 2022, there has rightly been much discussion of how to assist the Ukraine and its citizens. The United States’ immigration laws can plainly be employed to assist Ukrainian nationals who wish to seek refuge in the United States, including extending […]
Some Highlights of the EB-5 Reauthorization: CSPA Protection and How 245(k) and Concurrent Filing Combine to Create a New Option for Some Applicants Who Have Recently Dropped Out of Status
The recently enacted Consolidated Appropriations Act of 2022, which was signed into law on March 15 after the House and Senate resolved their differences earlier in the month, reauthorized the EB-5 Regional Center program and made some other changes to the EB-5 program in the “EB-5 Reform and Integrity Act of 2022”, included as Division […]
USCIS Contact Center is More a Source of Frustration than Assistance
By Cyrus D. Mehta, Kaitlyn Box*, and Jessica Paszko** The USCIS Contact Center purports to provide tools for checking case statuses online, correcting notices that contain mistakes or were never delivered, and connecting applicants to a representative for live support. However, the Contact Center is more often a source of frustration than assistance. We outline […]
In Addition to Granting TPS to Ukrainians, the US Must Do More to Help Ukrainians and Others Outside the US Who Are In Trouble
On March 3, 2022, the Department of Homeland Security (DHS) announced the designation of Ukraine for Temporary Protected Status (TPS) for 18 months. Also, U.S. Citizenship and Immigration Services issued an alert on March 4, 2022, about immigration help available on a case-by-case basis to those affected by “special situations,” including the invasion of Ukraine. […]
Huh? Why Should Requesting a Transfer of Underlying Basis with an I-485 Supplement J Restart the 180-Day Portability Clock?
*By Cyrus D. Mehta and Kaitlyn Box* We follow up on our blog series on requesting a transfer of underlying basis. Previous blogs on this topic can be found here and here. Due to the exceptionally high number of EB-1 and EB-2 visas available this fiscal year, USCIS is urging applicants to consider switching to […]
Maintenance of H-1B/L-1 Status after Travelling Back On Advance Parole: Executive Legerdemain under the Cronin Memo
By Cyrus D. Mehta and Kaitlyn Box* Since H-1B and L visa nonimmigrant status allows for dual intent, the filing of an I-485 adjustment of status application does not conflict with the maintenance of those nonimmigrant statuses. One maintaining H-1B or L status can also apply for an employment authorization document (EAD) and advance parole […]
Amin v. Mayorkas: Fifth Circuit Denies EB-1 Extraordinary Ability Petition Even Though Petitioner Met Three Out of Ten Regulatory Criteria
By Cyrus D. Mehta and Jessica Paszko* Establishing extraordinary ability under the employment-based first preference (EB-1) visa category is neither an easy nor straightforward feat. In 2010, Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), which we wrote a blog about, muddied the waters when it tacked onto the EB-1 determination, a vague, second […]
Expansion of STEM Practical Training and Broadening of O-1A Standards Allows Foreign Talented Students to Contribute to the US Even If Rejected in the H-1B Lottery
By Cyrus D. Mehta and Kaitlyn Box* On January 21, 2021, the Biden administration announced a series of actions aimed at attracting and retaining STEM students and workers to the United States. Among the most significant provisions, the U.S. Department of Homeland Security (DHS) has added 22 new fields to the STEM optional practical training […]
Frequently Asked Questions on Transferring the Underlying Basis of an I-485 application from an I-140 petition under India EB-3 to an I-140 under India EB-2
Update – January 21, 2022
On January 21, 2022, USCIS released new guidance on requests to transfer the underlying basis of an I-485 to a different employment-based immigrant category based on another Form I-140. The guidance states that USCIS may, in its discretion grant a transfer of underlying basis if the following criteria are met:
2021 in Perspective from The Insightful Immigration Blog
Thank you for reading and supporting The Insightful Immigration Blog. Listed below are the blogs that were published in 2021. While President Biden’s presidency ushered in new hope, former President Trump’s restrictive immigration policies still reared their ugly heads into the early weeks of 2021. On the last day of 2020, President Trump extended two […]
State Department’s Holiday Gifts: Expanded Interview Waivers and Lenient View on Student Nonimmigrant Intent
The State Department has given much needed holiday gifts to ease delays in visa processing brought about by the evisceration of consular operations due to Covid-19. According to a December 22, 2021 article in Roll Call, visa applicants in London, Paris and Mexico City, for instance, must wait about two months for a nonimmigrant visa […]
The Denial of Adjustment of Status Applications of Derivative Children Who Turn 21 Before the Final Action Date in the Visa Bulletin Became Current is Inconsistent with the Child Status Protection Act: Can More Lawsuits Reverse Erroneous USCIS and DOS Policy?
By Cyrus D. Mehta Several children who filed I-485 applications as derivatives of their Indian born parents under the October 2020 Visa Bulletin are being denied because they turned 21 years before the Final Action Dates became current. The backlogs for India in the employment-based second and third preferences have already caused untold suffering to […]
The Ineffectiveness of the Latest Omicron Travel Ban From the Perspective of Immigration Lawyers
By Cyrus D. Mehta & Kaitlyn Box* On November 26, 2021, President Biden issued a Presidential Proclamation entitled “A Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease 2019” in response to a report made by the South African government to the World […]
The Legal Basis Underpinning the New Automatic Extension of Work Authorization for H-4, L-2 and E-2 Spouses, and Why It Must Still Be Challenged
Cyrus D. Mehta The USCIS has been processing employment authorization requests for H-4 and L-2 spouses so slowly that they have been rendered virtually useless. By the time the applicant receives the employment authorization document (EAD) after 10 months, the job offer no longer exists. The experience is even more harrowing when the spouse begins […]
Florida Detox Centers Provides Further Guidance on Resume Review in Labor Certification Recruitment
By Cyrus D. Mehta & Jessica Paszko* Under the Immigration and Nationality Act (“INA”), U.S. employers wishing to sponsor a foreign worker for employment and permanent residence must first prove to the Department of Labor (“DOL”) that there are no sufficient workers who are able, willing, qualified and available for the prospective job and that […]
The Facebook Settlement Resolving Claims of Discrimination Against U.S. Workers Only Adds to the Contradictions in the Labor Certification Program
By Cyrus D. Mehta and Kaitlyn Box* On October 19, 2021, the U.S. DOJ and DOL announced that they had reached separate settlement agreements with Facebook regarding the company’s purportedly discriminatory PERM labor certification practices. These settlement agreements stem from a December 2020 DOJ complaint, in which the government alleged that Facebook had discriminated against […]
Handling Confidentiality, Adverse Interests, and Settlements in Group Suits
By Cyrus D. Mehta and Brad Banias* Immigration lawyers have filed lawsuits on behalf of several hundred plaintiffs challenging various immigration policies. These lawsuits have involved demanding that the government speed up the processing of work permits, or asking the government to reserve visas before the expiration of the program. Many of the lawsuits have […]
November 2021 Visa Bulletin Seesaw: Frequently Asked Questions
By Cyrus D. Mehta and Kaitlyn Box* On Thursday, October 14, 2021, the Department of State released the November 2021 Visa Bulletin, which has brought significant retrogression in employment-based third preference (EB-3) India dates, among other significant changes. The EB-3 India Date for Filing (DFF) retrogressed to January 22, 2012 and the Final Action Date […]
Migration in the Time of COVID-19 Ebook – How Much Has the Pandemic Really Shifted the Immigration Landscape?
By Kaitlyn Box* Together with my co-author, Shoba Sivaprasad Wadhia, Associate Dean for Diversity, Equity, and Inclusion, the Samuel Weiss Faculty Scholar, and Founder and Director of the Center for Immigrants’ Rights Clinic (CIRC) at Penn State Law, I recently contributed a chapter to the Frontiers in Human Dynamics e-book “Migration in the Time of […]
Recent Trends in Requests for Evidence on I-140 Petitions
By Cyrus D. Mehta, Sung-Min Baik* and Kaitlyn Box** Employers who have filed concurrent “downgrade” I-140 petitions are facing an increasing number of requests for evidence (RFE). These I-140 petitions were concurrently filed with I-485 applications when the India employment-based third preference (EB-3) date in the October 2020 Visa Bulletin advanced ahead of the India […]
Long Live Matter of Hosseinpour: Making the Case for Dual Intent in All Nonimmigrant Visas
By Cyrus D. Mehta & Isabel Rajabzadeh* One of the many benefits of filing an Adjustment of Status Application (AOS) is the ability to concurrently apply for work authorization (Form I-765/EAD). In addition, the applicant can remain in the United States while the AOS is pending without maintaining status, although most opt to maintain their […]
Reflections of Two Immigration Lawyers on the 20th Anniversary of the September 11 Attacks
By Cyrus D. Mehta and Kaitlyn Box* It is hard to believe that 20 years have gone by since planes hijacked by terrorists crashed into the Twin Towers in New York, the Pentagon in DC and into a field in Pennsylvania instead of Capitol Hill killing just under 3000 people. These cataclysmic events on September […]
If the US Does Not Eradicate Vaccine Inequality, the Requirement of COVID Vaccinations for Many Green Card Applicants Will Result in a De Facto Ban
By Cyrus D. Mehta Effective October 1, 2021, with few exceptions, those applying for permanent residence (green card) must be vaccinated against COVID-19, now classified as a “Class A inadmissible condition,” the Centers for Disease Control and Prevention (CDC) announced. The CDC explained that the COVID-19 vaccination meets the criteria for required vaccinations and is […]
“The Process By Which Removability Will Be Determined”: How the Recent District Court Decision Ordering the Reinstatement of MPP Contradicts Itself
On Friday, August 13, U.S. District Judge Matthew J. Kacsmaryk of the U.S. District Court for the Northern District of Texas issued an Opinion and Order ruling in favor of the states of Texas and Missouri in a lawsuit that they had brought against the Biden Administration, seeking to force the Administration to reinstate the […]
Matter of Castro-Tum is Dead Everywhere Except in the Sixth Circuit: It Must be Buried There Too
By Cyrus D. Mehta and Kaitlyn Box* In a previous blog, we argued that Matter of Castro- Tum, a Trump era decision by then Attorney General Jeff Sessions should be withdrawn. Matter of Castro -Tum held that Immigration Judges (IJs) and the Board of Immigration Appeals (BIA) do not have the authority to administratively close […]
The Sinking Immigration Court: Change Course, Save the Ship
By Stacy Caplow* Immigration Court, where hundreds of judges daily preside over wrenching decisions, including matters of family separation, detention, and even life and death, is structurally and functionally unsound. Closures during the pandemic, coupled with unprecedented backlogs, low morale, and both procedural and substantive damage inflicted by the Trump Administration, have created a full-fledged […]
The Fight for Immigration Justice Is Not Over: SCOTUS Rules Mandatory Detention of Certain Immigrants Seeking Safety in the United States
By: Sophia Genovese* In Johnson v. Guzman Chavez, 594 U.S. __ (2021), the Supreme Court held that noncitizens in withholding-only proceedings are not entitled to a custody redetermination, or bond, hearing before the Immigration Court. This holding effectively leaves thousands of asylum seekers at risk of prolonged and indefinite detention. By way of background, individuals […]
No Longer in Use: How Changes in SOC Systems Affect Employment-based Immigration
Cyrus D. Mehta and Isabel Rajabzadeh* The Standard Occupation Classification (SOC) is a federal statistical standard used by federal agencies to classify workers into occupational categories. The Office of Management and Budget (OMB) coordinates the Federal statistical system, including the SOC. The SOC Policy Committee assists the OMB in the SOC revision process, and is […]
Wang v. Blinken Nixes Any Hope for Excluding the Counting of Family Members in the Green Card Caps
By Cyrus D. Mehta and Kaitlyn Box* On July 9, 2021, the U.S. Court of Appeals for the D.C. Circuit issued its opinion in Wang v. Blinken, No. 20-5076 (D.C. Cir. 2021), interpreting INA § 203(d) to include the counting of derivatives toward the EB-5 investor cap. The Plaintiffs in the case are a group of EB-5 […]
Requesting Premium Processing on a Downgraded I-140 Petition
By Cyrus D. Mehta and Kaitlyn Box* In October 2020, USCIS’ decision to apply the Filing Dates, rather than the Final Action Dates, to employment-based I-485 adjustment of status applications, together with advancement in the Filing Dates in the State Department Visa Bulletin allowed many noncitizen workers who had been trapped in the green card […]
Reflections on Giuliani’s Suspension of his New York Bar License
The temporary suspension of Rudolph Giuliani’s bar license by a New York appellate court for making false statements on behalf of Donald Trump’s election is thought provoking for lawyers, especially those who have opposed Trump and continue to oppose him. The court wrote that “these false statements were made to improperly bolster respondent’s narrative that […]
Sanchez v. Mayorkas: Although TPS Is Not An Admission, Justice Kagan’s Opinion Leaves Open Avenues for TPS Recipients to Adjust Status as Nonimmigrants
By Cyrus D. Mehta and Kaitlyn Box* On June 7, 2021, the Supreme Court decided Sanchez v. Mayorkas, holding that a grant of Temporary Protected Status (TPS) does not constitute an admission under INA § 245(a) for purposes of adjustment of status. Though overall a disappointing decision, the Court’s opinion may nonetheless leave open some […]
State Department’s New Guidance Broadening Transmission of Citizenship to Children Born Abroad Is Welcome and Consistent with Federal Court Decisions
On May 18, 2021, the State Department issued guidance broadening the path for transmission of US citizenship to a child born abroad to married parents. The guidance is reproduced below: Recognizing the advances in assisted reproductive technology the State Department is updating our interpretation and application of Section 301 of the Immigration and Nationality Act […]
Proposals for Shattering Barriers and Obstacles to Legal Immigration Without Waiting for Congress to Act
In response to the Biden administration’s invitation to comment, I submitted several proposals to reform the immigration system through executive actions so that many can be quickly helped without waiting for Congress to act. You too can submit a proposal by May 19, 2021 at https://www.regulations.gov/document/USCIS-2021-0004-0001 May 19, 2021 Samantha Deshommes Regulatory Coordination Division […]
The First Step for Reforming the Immigration Courts is to Allow Immigration Judges to Administratively Close Cases
By Cyrus D. Mehta On May 5, 2021, the majority opinion in the Third Circuit Court of Appeals decision in Sanchez v. Attorney General followed two other circuit courts in holding that an Immigration Judge (IJ) has the authority to administratively close cases. If there is a case that is deserving for an IJ to […]
US Imposes Covid Travel Ban on India: How Effective Are Such Travel Bans?
By Cyrus D. Mehta and Kaitlyn Box* In previous blogs we have discussed the Trump administration’s numerous COVID travel bans that were extended by President Biden, and provided suggestions for overcoming them. On Friday, April 30, 2021, a new COVID-related travel ban was implemented, this time by the Biden Administration. President Biden issued a Presidential […]
What Happens to a Lawful Permanent Resident Who Has Been Stranded For Over One Year Abroad and the Green Card Validity Has Expired?
By Cyrus D. Mehta and Kaitlyn Box* COVID-related restrictions have caused difficulties for many noncitizens traveling abroad during the pandemic, but lawful permanent residents (LPRs) who traveled overseas in recent months face a unique set of issues. Many LPRs who traveled overseas in the early days of the COVID-19 pandemic quickly became trapped there for […]
Coping with Delays Facing H-4 and L-2 Spouses When They Have a Pending Adjustment Application – Part 2
By Cyrus Mehta and Isabel Rajabzadeh* Although H-4 and L-2 extensions continue to be delayed since our last blog “Coping with Delays Facing H-4 and L-2 Spouses”, we highlight another issue, which adds further hardship for H-4 and L-2 spouses faced with unjust processing delays. In October 2020, the EB-3 Dates for Filing in the […]
Coping with Delays Facing H-4 and L-2 Spouses
By Cyrus D. Mehta & Isabel Rajabzadeh* In March 2019, the Trump administration implemented a new biometrics requirement for some employment-based and nonimmigrant dependents. H-4 and L-2 dependents must complete biometrics each time an extension of status is filed on Form I-539. This superfluous mandate, paired with the already backlogged queue due to Covid-19 processing […]
End the Arbitrary H-1B Lottery and Visa Quotas – and other practical considerations for the winners!
By Cyrus D. Mehta and Kaitlyn Box* On March 30, 2021, USCIS announced that it had received sufficient H-1B registrations during the initial period to reach the Fiscal Year 2022 cap, including Master’s Cap registrations. All prospective petitioners whose registrations were selected should now have been notified. These petitioners may file H-1B petitions for the […]
The Law Does Not Compel the Impossible– Or Does It?: Matter of C-C- and Awuku-Asare v. Garland
“Lex non cogit ad impossibilia.” In English, as translated by the Court of Appeals for the Eleventh Circuit, that means: “The law does not compel the doing of impossibilities.” In 1948, citing this principle, the Board of Immigration Appeals (BIA) held that a nonimmigrant seaman could not be deported for having failed to leave the […]
CSPA Triumphs in Cuthill v. Blinken: Child of Parent who Naturalizes Should not be Penalized
By Cyrus D. Mehta One of the unresolved conundrums in our immigration law is the inability of children of lawful permanent residents to be protected under the Child Status Protection Act (CSPA) when their parents naturalize to US citizenship. The CSPA was enacted to ensure that a child remained under the age of 21 in […]
President Biden Must Reject Trump Era H-1B Lottery Rule and Work Visa Travel Ban
By: Cyrus D. Mehta and Kaitlyn Box* On March 3, 2021, Democratic Senator Dick Durbin and Republican Charles Grassley submitted a letter to new DHS Secretary Alejandro Mayorkas urging the DHS to implement the Trump administration’s H-1B lottery final rule entitled “Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions”, which was […]
Overcoming a COVID Travel Ban Through the National Interest Exception
By Cyrus D. Mehta & Kaitlyn Box* Although the Trump era has ended, some of its draconian immigration policies continue to linger, including the COVID travel bans. On January 25, 2021, President Biden issued Presidential Proclamation 10143, entitled “Proclamation on the Suspension of Entry as Immigrants and Non-Immigrants of Certain Additional Persons Who Pose a […]
To Amend, or Not to Amend: That is the Question For Visas Not Associated With a Labor Condition Application
As the COVID-19 pandemic unfortunately rages on, employers nationwide continue to seek ways to keep their businesses open and reduce costs while also protecting their nonimmigrant employees. This blog has addressed, here, here and here, some of the unique challenges facing employers of H-1B and other nonimmigrant workers. Employers have basically come to accept the […]
State Dept. Exempts Certain Travelers From Restrictions: Is there a Better Way So That the Least Number Get Impacted?
On February 10, 2021, the Department of State (DOS) announced that certain business travelers, investors, treaty traders, academics, students, and journalists may qualify for national interest exceptions under the Presidential Proclamation (PP) covering travelers from the Schengen Area, United Kingdom (UK), and Ireland. Qualified travelers who are applying for or have valid visas or Electronic […]
The Rescission of Trump’s Buy American Hire American Will Benefit Immigrants and America
By Cyrus D. Mehta On January 25, 2021, President Biden signed an executive order entitled the Future is Made in All of America by All of America’s Workers. This executive order revokes Trump’s Buy American Hire American Executive Order (BAHA), 13788, of April 18, 2017. Although President Biden’s Buy American executive order requires government agencies […]
President Biden Ushers in New Hope on Immigration after Trump’s Destructive and Xenophobic Four Years
By Cyrus D. Mehta & Kaitlyn Box* There is much for all of us to be excited about after President Biden’s inauguration on January 20, 2021 when he aggressively rescinded many of Trump’s most damaging immigration actions. We were also relieved to wake up on Saturday morning to find that there was no Friday midnight […]
Trump’s Final Attacks on H-1B Visas and Legal Immigration: Reintroduction of the Wage Rule and Rule Requiring Client Companies to File H-1B Petitions
By Cyrus D. Mehta & Kaitlyn Box* Although President Trump is on his way out, his administration has promulgated two new rules that will have a devastating impact on the H-1B visa program and legal immigration. Reissuance of DOL Wage Rule On January 12, 2021 the Department of Labor (DOL) published an advance copy of […]
Extending the Immigrant and Nonimmigrant Visa Bans: The Last Gasps of 212(f) Jurisprudence Under Trump
By Cyrus D. Mehta & Kaitlyn Box* On the last day of 2020, Trump issued a Presidential Proclamation extending two previous Proclamations – Proclamation 10014 (Suspension of Entry of Immigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak) and Proclamation 10052 (Suspension of […]
Top Ten Most Viewed Posts on the Insightful Immigration Blog in 2020
Thank you for reading and supporting The Insightful Immigration Blog. Listed below are the top 10 most viewed blogs that were published in 2020. While these are the 10 most viewed blogs, each blog is a carefully crafted gem, and we invite you to read all of them. Blogs from previous years continued to be widely […]
Innova Solutions v. Baran: Computer Programmer is a Specialty Occupation Under the H-1B Visa
By Cyrus D. Mehta & Kaitlyn Box* On December 16, 2020, the Ninth Circuit issued its opinion in Innova Solutions, Inc. v. Baran, which involved a technology company, Innova, that wanted to hire an Indian employee in the specialty occupation of Computer Programmer, and filed an H-1B petition on his behalf. Innova Solutions, Inc. v. […]
Two New York Ethics Opinions Instruct When Lawyers Can Withdraw from Representing a Client in Court During COVID-19
By Cyrus D. Mehta and Kaitlyn Box* In an earlier blog, we discussed ethics for immigration lawyers during the COVID-19 pandemic. Another ethical dilemma, addressed by two recent ethics opinions from the New York City Bar and the New York State Bar, arises when a lawyer is required to make an in-person court appearance, but […]
Justice Department’s Discrimination Complaint Against Facebook Chills Employer’s Ability to Legitimately Sponsor Skilled Foreign National Workers for a Green Card
The Department of Justice’s complaint claiming that Facebook discriminated against US workers even when it followed DOL regulations for sponsoring foreign national workers is troubling. It renders every employer vulnerable to charges of discrimination each time it files a labor certification on behalf of a foreign national worker. When an employer wishes to sponsor a […]
The Inappropriateness of Finding Abandonment of Lawful Permanent Residency During Naturalization
On November 18, 2020, U.S. Citizenship and Immigration Services (USCIS) updated policy guidance to clarify the circumstances when the agency would find applicants ineligible for naturalization because they were not lawfully admitted for permanent residence. “Applicants are ineligible for naturalization if they obtained lawful permanent residence (LPR) status in error, by fraud or otherwise not […]
Proposal for the Biden Administration to Reduce Backlogs: Count the Family Together So That They May Stay Together
Ever since I co-wrote The Tyranny of Priority Dates in 2010, followed by How President Obama Can Erase Immigrant Visa Backlogs With A Stroke Of A Pen in 2012, I have steadfastly maintained that the current and prior administrations have got it wrong when counting visa numbers under the family and employment preferences. I do hope that the Biden […]
Proposal for the Biden Administration: Using the Dual Date Visa Bulletin to Allow the Maximum Number of Adjustment of Status Filings
As a result of the existence of the per country limits, those born in India and China have been drastically affected by backlogs in the employment-based green card categories. Each country is only entitled to 7 percent of the total allocation of visas under each preference. Thus, a country like Iceland with only about 330,000 […]
What If the Job Has Changed Since the Labor Certification Application Was Approved Many Years Ago?
Foreign national workers who have been waiting in the employment-based second and third preference green card backlogs for many years have fortuitously become eligible to file I-485 adjustment of status applications due to the advancement of filing dates in the October 2020 Visa Bulletin. Many of the labor certifications were filed between 2009 and 2014. […]
Killing the H-1B Visa Also Kills the US Economy
By Cyrus D. Mehta & Kaitlyn Box Last week the Department of Labor (DOL) and the Department of Homeland Security (DHS) each issued new rules aimed at further attacking the H-1B visa program. The DOL rule, which was issued without affording the public an opportunity for notice and comment, significantly raises the minimum required wage […]
Frequently Asked Questions on Filing a “Downgrade” EB-3 petition under the October 2020 Visa Bulletin
The October 2020 Visa Bulletin significantly advanced the Filing Date of the employment-based third preference (EB-3) for India to January 1, 2015. This would make many beneficiaries with approved I-140 petitions caught in the EB-3 backlog eligible to file I-485 adjustment of status applications. Even those with approved I-140 petitions under the employment-based second preference (EB-2) […]
Downgrading from EB-2 to EB-3 under the October 2020 Visa Bulletin
By Cyrus D. Mehta and Kaitlyn Box* On September 24, 2020, the Department of State released the October 2020 Visa Bulletin. Importantly, the Filing Date for an EB-3 from India has advanced to January 1, 2015 from February 1, 2010 in the September 2020 Visa Bulletin, while the Filing Date for an EB-1 from India […]
In Honor of Justice Ginsburg: Disfavoring Piepowder Courts Against Permanent Residents in Vartelas v. Holder
Saddened by the death of Justice Ginsburg, I searched through the blogs I have written on her opinions in immigration cases. I was again reminded not only about her brilliance but how forcefully she advanced the rights of immigrants that was consistent with the Constitution and the Immigration and Nationality Act. I wrote Justice Ginsburg’s […]
The Future of Work and Visa Rules in the Age of COVID-19
Since COVID-19 afflicted the world, people have learned to work remotely from home and the office seems to be less relevant. Most white collared work can be carried out remotely through Zoom Video or Microsoft Teams. Jack Dorsey, the head of Twitter, said that the company’s employees can work from home “forever.” This view may […]
Gomez v. Trump: Welcome to the Brave New World of Made Up Law Under INA 212(f)
Before President Trump, one could hardly imagine that an American president would use INA § 212(f) to rewrite immigration law in a manner he saw fit and with whatever prejudices might be harboring in his mind. While INA § 212(f) does give extraordinary power to a president, Trump has exploited these powers beyond what could […]
The Impossible Feat of Determining Who is an “Illegal Alien” Under Trump’s Unconstitutional Census Executive Order
In line with other xenophobic actions too numerous to keep tabs on, President Trump issued a Presidential Memorandum dated July 21, 2020 entitled “Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census.” From the title itself, it is readily obvious that the Trump administration does not intend to count undocumented or […]
Trump’s Work Visa Ban Violates the Immigration and Nationality Act and So Do the Exceptions
By Cyrus D. Mehta and Kaitlyn Box* Trump’s Proclamation 10052 has imposed a ban on foreign nationals seeking to enter the United States on H-1B, H-2B, L and J visas. Trump derived the authority to impose the ban from INA 212(f), which authorizes the President to suspend the entry into the United States of certain […]
Elephants, Mouseholes, and Sickness: My Comment on the Latest Anti-Asylum Proposed Rule. Do You Have One Too?
On the heels of the prior proposed rule restricting asylum and withholding of removal that I commented on and blogged about, the Department of Homeland Security and Executive Office for Immigration Review have put out yet another proposed rule to drastically restrict asylum and withholding of removal. This one would allow the expedited removal of […]
Implementation of Safe Third Country Agreement Held to Violate Canadian Charter of Rights and Freedoms—So Why Will Prior U.S. Asylum Claimants Be Denied a Hearing at the Refugee Protection Division in Canada Even After This Takes Effect?
In Canadian Council for Refugees v. Canada (Immigration, Refugees and Citizenship) , 2020 FC 770 (July 22, 2020), the Federal Court of Canada recently ruled that the statute and regulations implementing the Safe Third Country Agreement (STCA) between Canada and the United States regarding the processing of asylum and refugee claims were of no force […]
Extending Visitor Visa Status During Covid-19 and after the Birth Tourism Rule
Visitors who have been admitted in B-2 visa status may extend their status while in the United States. Even if a visitor has a multiple entry visa in the passport for a duration of ten years, the visitor is admitted into the US for a more limited time at a port of entry, which is […]
My Comment on Proposed Draconian Changes to Asylum Regulations – Do You Have One Too?
The Department of Homeland Security and the Executive Office of Immigration Review (the agency within the Department of Justice that runs the immigration courts) have jointly proposed a new rule entitled “Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review” that would drastically change the law in the United States governing […]
Trump’s Work Visa Ban Causing Havoc to Families including Children
By Cyrus D. Mehta and Kaitlyn Box* On June 29th, 2020, issued a Proclamation to amend Proclamation 10052 of June 22, 2020 (Suspension of Entry of Immigrants and Nonimmigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak). The amended Proclamation modifies Section 3(a)(ii) […]
The Real Threat to the US Economy is Trump’s Proclamation, Not the Nonimmigrant Workers it Bans
By Cyrus D. Mehta and Kaitlyn Box* President Trump has mastered the Dark Arts of immigration bans. On June 22, 2020, Trump signed yet another Presidential Proclamation further restricting immigration into the United States. The new proclamation is an extension of the previous proclamation issued on April 22, 2020 that suspends certain green card applications […]
Reflecting on the Supreme Court DACA Decision in Comparison to Trump’s Immigration Bans
On June 18, 2020, the Supreme Court in Department of Homeland Security v. Regents of the University of California ruled that Elaine C. Duke, then-Acting Secretary of the Department of Homeland Security (DHS), violated the Administrative Procedure Act (APA) in 2017 when she rescinded the Deferred Action for Childhood Arrivals (DACA) program, in place since […]
Ethics for Immigration Lawyers During COVID-19
Based on my video presentation at a Practising Law Institute One Hour Briefing entitled Ethics and Immigration: Spotlight on Select Rules and Client Representation during Covid-19, I drew up some frequently answered questions (FAQs) that might be helpful to immigration lawyers. Immigration lawyers have adapted to work remotely from home during the Covid-19 pandemic, which […]
Using a Sledgehammer to Crack a Nut: Trump Proclamation Bans Chinese Students and Researchers Linked to China’s “Military-Civil Fusion Strategy”
President Trump has issued a proclamation limiting Chinese students wishing to study in the United States to undergraduates under certain conditions, and limiting Chinese researchers. The proclamation states that the People’s Republic of China (PRC) uses some Chinese students, mostly post-graduate students and post-doctoral researchers, to operate as “non-traditional collectors of intellectual property” in the […]
The Beneficial Impact of the Supreme Court’s Decision in Kisor v. Wilkie on H-1B Denials
By Cyrus D. Mehta and Sonal Sharma* In June 2019, when the Supreme Court handed down a decision in Kisor v Wilkie, it was yet to be seen what impact this decision would have on federal court challenges to H-1B denials. Prior to Kisor, federal courts adopted a deferential standard of the government’s interpretation of its […]
The Differing Impact of Foreign Entity Changes on an L-1 Extension and EB-1(C) Petition
By Cyrus D. Mehta and Rebekah Kim U.S. Citizenship and Immigration Services (USCIS) has issued a final policy memorandum designating Matter of F-M- Co. as an Adopted Administrative Appeals Office Decision. The decision clarifies that for employment-based first preference category multinational executives or managers, a petitioner must have a qualifying relationship with the beneficiary’s foreign employer at […]
FAQ Relating to Skilled Workers in the Green Card Backlogs during COVID-19
Skilled workers caught in the employment-based backlogs face great uncertainty during the COVID-19 crisis. They have to continue to work for employers who have sponsored them green cards while maintaining H-1B status. As explained in my previous FAQ relating to changes in working conditions for H-1B workers, the DOL rules do not provide much flexibility […]
FAQ on Changes in Salary and Other Working Conditions for Nonimmigrant Workers in L-1, O, TN, E and F-1 Status Due to COVID-19
In continuation of my Frequently Asked Questions (FAQ) relating to the COVID-19 crisis on immigration issues, I focus on other nonimmigrant visa categories besides the H-1B visa category. Changes in employment at the workplace, especially salary reductions, continue to abound especially for other nonimmigrant visa workers in L, E, O and TN status. There are […]
Building the Legal Case to Challenge Trump’s Immigration Ban
President Trump’s latest Proclamation is a brazen attempt to rewrite US immigration laws under the guise of protecting Americans during the COVID-19 pandemic. The Proclamation bans most noncitizens who will enter the United States as immigrants for 60 days from April 23, 2020. Confirming the sham, Senior White House adviser Stephen Miller, according to a leaked private […]
My Comment on Proposed Affidavit of Support Revisions – Do You Have One Too?
USCIS has recently proposed changes to the Form I-864, Affidavit of Support Under Section 213A of the Act, which is used by petitioners in family-based immigration cases and certain employment-based immigration cases to promise to provide required support to an immigrant as required under section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4). Similar changes are […]
FAQ for Green Card Holders during the COVID-19 Period
I have received inquiries from lawful permanent residents, or green card holders, who are outside the United States and have been unable to return to the United States in the COVID-19 period. They are unable to return either because there are no flights out of the country to the US or they feel vulnerable to […]
LCA Posting Requirements at Home During the COVID-19 Pandemic: Do I Post on the Refrigerator or Bathroom Mirror?
“The LCA is to an H-1B worker like a leash is to a dog.” (Cyrus Mehta and Myriam Jaidi, The LCA in the Age of Telecommuting). In the midst of the global pandemic that is COVID-19, these words have never seemed truer. Across the US, employers of H-1B workers are understandably very concerned about how […]
FAQ on Changes in Salary and Other Working Conditions for H-1B Workers During the COVID-19 Crisis
The novel coronavirus (SARS-CoV-2), which causes the disease COVID-19, is a pandemic threatening populations in the United States and worldwide. The US economy has virtually shut down. Many employers who have been forced to shut down or modify their businesses have been severely impacted and may no longer be able to afford to pay H-1B […]
Immigration Attorneys on the Frontlines in the COVID-19 Crisis
Since USCIS still requires paper submissions by mandated deadlines and the immigration courts in detention centers still function, the COVID-19 crisis has compelled immigration attorneys to take more risks than others, and many are performing essential services on behalf of clients like first responders, medical personnel and delivery people. If some people in certain occupations […]
How USCIS Can Remain True to its Mission by Exercising Compassion During the COVID-19 Period
Although the United States Citizenship and Immigration Services is mandated by Congress to grant benefits, it has become an enforcement oriented agency under the Trump administration that has displayed remarkable hostility towards immigrants. During the period when people are mandated to stay confined and practice social distancing in order to prevent the spread of the […]
How Interpol Red Notices Allow Abusive Foreign Governments to Manipulate and Undermine the Integrity of Immigration Proceedings in the United States
The Board of Immigration Appeals in Matter of W-E-R-B-, 27 I&N Dec. 795 (BIA 2020) recently ruled that an Interpol Red Notice may constitute reliable evidence of criminality that serves as a bar for asylum and withholding of removal. Giving credence to a Red Notice without more undermines the integrity of our asylum system as […]
H-1B Registration Update
Since my last blog on the upcoming H-1B registration, USCIS has hosted a few webinars where stakeholders – prospective H-1B petitioners and attorneys/representatives – were able to familiarize themselves with the new process. USCIS has since posted copies of the PowerPoint from these webinars in their Electronic Reading Room. Prospective H-1B petitioners were, as of […]
Guilford College v. Wolf: Reflecting on the Nationwide Injunction in Immigration Cases
In a stunning victory for F, J, and M nonimmigrant students battling unlawful presence policy, a federal district court in North Carolina has granted a permanent injunction preventing USCIS from enforcing its problematic August 9, 2018 policy memo. The Trump Administration’s August 2018 policy would have rendered students in F, J and M status unlawfully present for […]
Trump’s Expanded Travel Ban and Other Immigration Madness
President Trump has done it again. On January 31, 2020, he used his extraordinary broad powers under INA § 212(f) to expand his travel ban to six additional countries. The affected countries are Nigeria, Eritrea, Sudan, Tanzania, Kyrgyzstan and Myanmar. The expanded ban comes about three years after the first ban. Most of the countries […]
Ethical Dimensions to Federal Court Litigation in Immigration Matters
In light of the higher possibility of denials of routine H-1B and L-1 petitions, immigration lawyers may want to consider stepping out of their comfort zones. They should consider thinking about representing the client beyond the motion to reopen or appeal to the Appeals Administrative Office (AAO) in the event of a denial. Seeking judicial […]
The Fascinating Confluence of Temporary Protected Status, Removal and Employment-Based Adjustment of Status
Immigration Judge Ila C. Deiss’ summary order shows how one who is granted Temporary Protected Status can adjust to permanent resident status through an I-140 petition filed by an employer. Here are the facts based upon which IJ Deiss issued the order: The Respondent is a native and citizen of Nepal who arrived in the […]
Filing under the FY 2021 H-1B Cap; How will H-1B Registration Work?
It’s the year 2020! We celebrate the start of a new decade and are hopeful for good things to come. Will the upcoming H-1B cap season be one of those good things? All we know for sure is that it will be different. Preparing for the cap season can be stressful but we recognize the […]
Top 10 Most Viewed Posts Published on the Insightful Immigration Blog in 2019
Thank you for reading and supporting The Insightful Immigration Blog. Listed below are the top 10 most viewed blogs that were published in 2019. While these are the 10 most viewed blogs, each blog is a carefully crafted gem, and we invite you to read all of them. In 2019, the Trump Administration continued its […]
What Kisor v. Wilkie Means For Auer Deference and USCIS’s Interpretation of its Regulations Relating to H-1B Visa Petitions
By Cyrus D. Mehta and Sonal Sharma* In Wilkie v. Kisor, the Supreme Court issued a significant decision regarding whether courts should still be paying deference to the government’s interpretation of its own regulations. Here’s some background on how we got to this deference standard. Over 35 years ago, the Supreme Court established a two-step […]
How the Founding Values of Two Great Nations – United States and India – Can Get Hollowed Out Through Tweaks in their Immigration Laws
Until President Trump of the United States and Prime Minister Modi of India came to power, it was unimaginable that democratically elected leaders could cynically tweak immigration laws to undermine the founding values of their nations. America has unquestionably been viewed as a nation of immigrants and a beacon of liberty for the world’s persecuted […]
Isn’t Being Extraordinary More Than Enough? There’s No Need for USCIS to Ask for a Prospective Benefit to the US
By Cyrus Mehta and Patrick Matutina We have previously blogged regarding The Curse of Kazarian v. USCIS in Extraordinary Ability Adjudications Under the Employment-Based First Preference. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010),as interpreted by the USCIS, has resulted in a two part test for Extraordinary Ability petitions (EB-1). In the first part […]
“Safe” Third Country Agreements and Judicial Review in the United States and Canada
The subject of safe third country agreements, or as the U.S. government has begun calling them “Asylum Cooperation Agreements”, has been in the news lately in both the United States and Canada. The U.S. and Canada have had such an agreement with one another since 2002, implemented pursuant to section 208(a)(2)(A) of the Immigration and […]
Filing an EB-1 as a Multinational Manager After the Approval of an EB-2 for a Backlogged Indian Beneficiary
It requires skill and creativity to assist Indians caught in the employment based backlogs to find ways speed up the process or ameliorative solutions. The India employment-based second preference (EB-2) and employment-based third preference (EB-3) dates have barely moved for years, and the prospects for a beneficiary of an I-140 petition born in India for […]
Court Shoots Down Embarrassing Leaps by USCIS to Justify an H-1B Denial
Ever got that frustrating feeling that the USCIS adjudicator first decided that the H-1B petition needed to be denied and only then set about finding reasons, however shaky, to support that denial? Ever wondered how it is possible for the adjudicator to completely ignore the preponderance of the evidence standard in favor of the criminal […]
Trump Is Not King, Cannot Rewrite Public Charge Law Through Executive Fiat
Can President Trump act like a king by rewriting US immigration law through the invocation of INA 212(f)? Although America shrugged itself from the yoke of King George III in 1776, Trump issued a Proclamation on October 4, 2019 in total disregard of a Congressional statute – defining who is likely to become a public […]
Supreme Court Agrees to Hear Constitutionality of Smuggling Statute That Could Impact Immigration Lawyers
The Supreme Court has agreed to review the constitutionality of a smuggling statute under the Immigration and Nationality Act. United States v. Sineneng-Smith, No. 19-67. The statutory provision in question, INA §274(a)(1)(A)(iv), permits a felony prosecution of anyone who “encourages or induces an alien to come to, enter, or reside in the United States” if […]
Denial of H-1B Cases: The Occupational Outlook Handbook is Not the Holy Grail
By Cyrus D. Mehta and Gianna Boccanfuso∗ The USCIS continues to strictly scrutinize H-1B petitions. According to an NFAP report, denial rates for H-1B petitions have increased significantly, rising from 6% in FY 2015 to 33% through the second quarter of FY 2019 for new H-1B petitions for initial employment. In recent times, seeking review […]
Residence in the Twilight Zone: Are USCIS and the State Department Trying to Encourage Some U.S. Citizen Parents to Get Divorced?
Under section 301(c) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1401(c), a child born outside the United States is a citizen when born “of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, […]
The Ethics of Law Reform Activities Affecting Client Interests in Light of the Fairness for High Skilled Immigrants Act
The Fairness for High Skilled Immigrants Act has divided the immigrant community as well as immigration attorneys. The bill seeks to eliminate per-country caps without expanding the number of visas in the EB categories. The House version, HR 1044, has already passed with an overwhelming majority on February 7, 2019. The Senate version, S. 386, […]
Musings on the October 2019 State Department Visa Bulletin in Light of the Fairness for High Skilled Immigrants Act
The State Department Visa Bulletin for October 2019 reflects forward movement as anticipated with the beginning of the federal fiscal year, except for the employment-based first preference (EB-1). It also does not look promising for many EB categories involving India. According to Charlie Oppenheim, there is normally full recovery or almost full recovery of the […]
Migrant “Protection” Protocol: A Report from the Front Lines
by Stacy Caplow and Maryellen Fullerton* The laws and policies protecting refugees and asylum seekers in the United States are under sustained assault. Since 1980, Congress has provided that noncitizens in the United States or at its borders “whether or not at a designated port of arrival” may apply for asylum.[1] Disagreeing with the statute, […]
Poursina v. USCIS: Federal Courts May Not Have Last Word in Reviewing a Denial of a National Interest Waiver
Filing lawsuits in federal court to challenge erroneous denials of visa petitions by USCIS have become more frequent. There is more of a shot at a reversal when a federal judge reviews a denial of the USICS. Under the Administration Procedures Act, a court must set aside an agency action that is “arbitrary, capricious, an […]
Recent H-1B Case Brings Hope that Reliance of the Umbrella “All Other” Occupational Classification Need Not Be Fatal
As the U.S. Citizenship and Immigration Services (USCIS) continues its shameful and relentless attack on the H-1B visa program under the misguided “Buy American Hire American” Executive Order, it is important that we continue to fight back and cases like Relx Inc. v. Baran give us the hope that we need in order to do […]
“An Act of Cruel Injustice”: If the Trump Administration is Relying on Grudging Court Acceptance of Cruel Results as Support for the New Public Charge Rule, What Does That Say About the Rule?
The Trump Administration’s new public charge rule has already been the subject of at least five different lawsuits, including one from a coalition of 13 states led by Washington, another from a California-led coalition of 4 states and the District of Columbia, and another from a coalition of 3 states led by New York, plus […]
Recent BALCA Cases Highlight the Importance of Choosing the Right Sunday Newspaper
In June 2019, the Board of Alien Labor Certifications Appeals (BALCA) issued at least ten decisions that addressed the employers’ choice of Sunday newspaper in the PERM labor certification recruitment process. So maybe they wanted to make a point? Let’s discuss. As background, an employer must conduct a good faith recruitment of the labor market […]
Need to Plan Ahead Before Sponsoring a Senior Parent for a Green Card
Many US citizens, especially those who have recently naturalized, desire to sponsor their senior parents for lawful permanent residence, also colloquially known as the green card. A US citizen can sponsor a parent for a green card as an immediate relative by filing Form I-130 under INA 201(b)(2)(A)(i). Immediate relatives are not subject to quotas […]
Expansion of Expedited Removal: Why Pushing to the Limits of the Statute Unconstitutionally Deprives People of Due Process of Law
The Trump Administration published an announcement in the Federal Register on July 22, 2019 stating that beginning the next day on July 23, it would exercise its full statutory authority to place in expedited removal proceedings essentially all “aliens determined to be inadmissible under sections 212(a)(6)(C) or (a)(7) of the Immigration and Nationality Act (INA […]
Save Optional Practical Training for Foreign Students
DHS promulgated the F-1 STEM optional practical training (OPT) benefit, with the publication of the “24-month STEM OPT Rule” that became effective on May 10, 2016. See 81 FR 13039. This rule has been the subject of contentious litigation. The Washington Alliance of Technology Workers (WashTech) filed suit against both the 24-month STEM OPT rule and […]
Can the Arbitrary and Capricious Standard Under the Administrative Procedure Act Save DACA?
The Supreme Court announced on June 28, 2019 that it would consider the legality of President Trump’s ending of the Deferred Action for Childhood Arrivals Program. Although federal courts in New York, California and Washington DC have blocked Trump’s efforts to block DACA, the Supreme Court decided to take up the matter striking fear in […]
Illogical Situation for Family-Sponsored Second Preference Spouses and Children under the July 2019 Visa Bulletin
The Department of State Visa Bulletin is eagerly anticipated each month. It tells aspiring immigrants their place in the green card queue, and whether one has moved ahead, remained static or gone backwards. There are many people stuck in the green card backlogs, some stretching to several decades, hoping each month to move ahead in […]
Fallout from Trump’s Muslim Ban: Requiring Use of Social Media on Visa Application Forms
On May 31, 2019, the State Department added new questions to visa application forms, DS-160/DS-156 Nonimmigrant Visa Application and Form DS-260, Immigrant Visa Application. Visa applicants now have to disclose the social media platforms that they have used within the previous five years and provide their user names or handle for each platform. This information […]
Making the Case for Expanding a Foreign National’s Interest in an I-140 Petition
By Cyrus D. Mehta & Patrick Matutina Current regulations generally preclude beneficiaries from participating in employment-based immigrant visa proceedings, including post-adjudication motions and appeals. The employment-based immigrant visa petition is Form I-140 that is filed by an employer on behalf of a foreign national beneficiary who is being sponsored for permanent residency under the employment-based […]
Questions Arising from Foreign Entity Changes after an L-1 Petition is Approved
By Cyrus D. Mehta & Rebekah Kim An L-1 visa may be issued to a foreign national employee who has worked abroad for at least one continuous year within the last three years for a qualifying, related business entity (e.g., parent, subsidiary, or affiliate) in an executive, managerial, or specialized knowledge capacity, and who is […]
Judge Issues Nationwide Preliminary Injunction in Unlawful Presence Case: What Does the Injunction Mean for Current F, J, and M Nonimmigrants?
By Cyrus D. Mehta and Amani M. Abuhamra* In a promising development for F, J, and M nonimmigrants battling unlawful presence policy, a federal district court in North Carolina has granted a preliminary injunction preventing USCIS from enforcing its problematic August 9, 2018 policy memo. The August 2018 Policy would render students in F, J […]
Challenges to Expedited Removal Orders Against Returning Nonimmigrants: How Recent Case Law Supports Habeas Petitions Even After Removal
In 2011, I wrote an article on our firm’s website about how then-recent case law could provide an opportunity for some returning nonimmigrants to challenge, in federal court, the government’s efforts to subject them to expedited removal. At the time, it seemed as though such a challenge might require a habeas corpus petition to be […]
Positive Changes to 90-Day Misrepresentation Guidance in the Foreign Affairs Manual – Especially for Foreign Students
In September 2017, the State Department abruptly amended the Foreign Affairs Manual to provide consular officers with broader grounds to find that foreign nationals misrepresented their intentions when they came to the United States on nonimmigrant visas. A finding of fraud or misrepresentation under INA § 212(a)(6)(C)(i) can result in a permanent ground of inadmissibility. […]
AG Barr Cannot Ignore the Constitution: The AG’s Latest Attack on Asylum Seekers in Matter of M-S-
By: Sophia Genovese* The Attorney General cannot selectively choose when to apply the rule of law. Yet when it comes to immigrants, the government feels emboldened to ignore the constitutional protections that are afforded to immigrants. In his most recent self-certification, Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019), the Attorney General unilaterally decided […]
Are the Canadian and U.S. Refugee/Asylum Processes Really “Similar Enough”? How the New Refugee Bar in Bill C-97 Is Based on a Misunderstanding of U.S. Asylum Law
In a development decried by several refugee-serving and civil rights organizations, the Canadian government’s proposed budget bill, Bill C-97, contains within it an amendment to the Immigration and Refugee Protection Act (IRPA) that would, as described by the bill’s official summary, “introduce a new ground of ineligibility for refugee protection if a claimant has previously […]
Is the USCIS Improving or Undermining the Immigration System Through its Top Ten Ways?
USCIS posted TOP TEN WAYS USCIS is improving the Integrity of the Immigration System. Really? Is USCIS improving the integrity of the system or undermining it? The USCIS has been mandated by Congress to grant benefits. Instead, it has usurped the role of ICE to become an enforcement agency. USCIS’s policies under President Trump and […]
The Nuts and Bolts of Complying with the H-1B Notice Requirements
A US employer has to meet several requirements when filing an H-1B visa petition on behalf of the foreign national employee. One important requirement is for the employer to notify affected US workers regarding its intent to hire a foreign worker in H-1B nonimmigrant status. The notification requirement is considered to be an important protection […]
The Best Way for Trump to Offer “Love and Sympathy” is to Repeal the Muslim Ban
In the aftermath of the killing of 49 people who were peacefully praying in two mosques in Christchurch by a white supremacist, it is worth reflecting on Trump’s travel ban again. Trump’s travel ban, also known as the Muslim ban, and all of his other immigration policies, are based on promoting white nationalism. It is […]
Advancing a “Social Group Plus” Claim After Matter of A-B-
In Matter of A-B–, 27 I&N Dec. 227 (A.G. 2018), former Attorney General Jeff Sessions overruled a prior Board of Immigration Appeals (BIA) precedent, Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), which held that victims of domestic violence can qualify for asylum based on their particular social group (PSG) of “married women in Guatemala who […]
Trump Administration Imposes Another Unnecessary Obstacle: USCIS to Issue New Version of Form I-539 and New I-539A on March 8
U.S. Citizenship and Immigration Services (USCIS) has announced that the revised Form I-539, Application to Extend/Change Nonimmigrant Status, and new Form I-539A, will be published on March 8, 2019, not March 11 as previously reported. USCIS will accept the old form through March 21. Form I-539 is used for a variety of application types, including: […]
Don’t Always Suck Up to Buy American Hire American
President Trump’s Buy American Hire American Executive Order (BAHA) has little relevance in an economy where the unemployment rate is 4% and the Labor Department has reported that there is a record high of 7.3 million job openings. BAHA has however been deployed to make life harder for legal immigrants who do their best to […]
Not Sure Whether to Laugh or Cry: How the Border Patrol’s Harassment of an Oregon Comedian Shows Why It Should Not Be Checking Documents Within the United States
In late January, Oregon comedian Mohanad Elshieky was briefly detained by the Border Patrol while traveling on a Greyhound bus in Spokane, Washington. He recounted the incident on Twitter, and it was also reported by a number of news organizations. In summary, the agents boarded the bus at the Spokane Intermodal Bus Station and began […]
The Trump Administration’s Lawlessness at the Border: Stories from Tijuana
Following the law should not be a radical idea. Yet the governments of the United States and Mexico somehow find advocacy for the codified rights of asylum seekers reprehensible. I travelled to Tijuana in mid-January to provide pro bono assistance to asylum seekers trying to present themselves at the San Ysidro Port of Entry and […]
To Leave Or Not To Leave: The Devastating Impact of USCIS’s Unlawful Presence Policy on Foreign Students
The new USCIS Policy on Unlawful Presence for F, J and M Nonimmigrants took effect on August 9, 2018. This policy has had the effect of rendering nonimmigrants in F, J and M status, mainly students, unlawfully present upon being found to have violated their status. Under the new policy, unlawful presence started accruing on […]
Trump Can Provide a Potential Path to Citizenship for H-1B Visa Holders
On Friday, January 11, 2019, many were intrigued by President Trump’s tweet assuring H-1B visas that they should expect a potential path to citizenship. This is what he tweeted: “H1-B holders in the United States can rest assured that changes are soon coming which will bring both simplicity and certainty to your stay, including a […]
Top 10 Most Viewed Posts Published On The Insightful Immigration Blog In 2018
Thank you for reading and supporting The Insightful Immigration Blog. Listed below are the top 10 most viewed blogs that were published in 2018. While these are the 10 most viewed blogs, each blog is a carefully crafted gem, and we invite you to read all of them. In 2018, the Trump Administration continued its […]
The Curse of Kazarian v. USCIS in Extraordinary Ability Adjudications Under the Employment-Based First Preference
When Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), was first decided, it was received with much jubilation as it was thought that the standards for establishing extraordinary ability would be more straightforward and streamlined. Kazarian essentially holds that a petitioner claiming extraordinary ability need not submit extraordinary evidence to prove that he or she is a […]
Acting AG Whitaker Takes Aim at Asylum Seekers Fleeing Family-Based Persecution
Acting Attorney General Matthew Whitaker has followed in his predecessor’s footsteps by referring yet another immigration case to himself, Matter of L-E-A-, 27 I&N Dec. 494 (A.G. 2018). The Acting AG asks parties to brief “whether, and under what circumstances, an alien may establish persecution on account of membership in a particular social group under […]
H-1B Visa Contest: US Master’s Degree v. Foreign Degree
The Trump Administration has proposed a rule that would require petitioners seeking to file H-1B cap-subject petitions to first electronically register with U.S. Citizenship and Immigration Services (USCIS) during a designated registration period. USCIS said the proposed rule would also reverse the order by which the agency selects H-1B petitions under the H-1B cap and […]
Trump Is Not King. He Cannot Change the US Asylum System Through Executive Orders.
Donald Trump probably thinks that section 212(f) of the Immigration and Nationality Act (INA) makes him king as far as immigration matters are concerned. As a president with autocratic impulses, INA § 212(f) gives him leeway to act out these impulses on immigrants, which he may not be able to do so readily on US […]
New Mutant H-1B Gene – Undifferentiated Engineering Degrees
It has become harder to obtain an approval of an H-1B visa petition under the Trump administration. The USCIS insists that an occupation must require a degree in a specific specialty. It constantly moves the goalposts to deny H-1B petitions, even if the occupation was previously readily approvable. A position that requires an engineering degree […]
Labor Certification: Mustn’t the US Job Applicant Be Able to Perform the Job Even If Qualified on Paper?
PERM labor certification operates outside of the realm of typical real world recruitment efforts. Whereas employers in the real world normally look to hire the most qualified applicant, PERM requires employers to only assess whether a worker is minimally qualified for the position, regardless of whether they’re a good fit for the job. But even […]
EB-5 Visa Cap Busting Lawsuit Opens Up Tantalizing Possibilities to Eliminate Backlogs in Employment and Family Preference Immigrant Visas
Ever since I co-wrote The Tyranny of Priority Dates in 2010, followed by How President Obama Can Erase Immigrant Visa Backlogs With A Stroke Of A Pen in 2012, I have steadfastly maintained that the current Trump and the prior administrations of Obama, Bush, Clinton and Bush (Senior), have got it wrong when counting visa […]
USCIS Denying Change Of Status For F-1 Students With Over 12 Months Of Curricular Practical Training
An F-1 student who has received more than 12 months of Curricular Practical Training (CPT) may be found by United States Citizenship & Immigration Services (USCIS), to have violated F-1 status and thus ineligible to be granted a change of status in the US. This is yet another disturbing trend that we first mentioned in […]
The Vulnerable Returning Green Card Holder Under the Proposed Public Charge Rule
The notion of public charge has existed in our immigration laws since more than a century. The Trump administration’s new proposed public charge rule, however, interprets “is likely at any time to become a public charge” under INA 212(a)(4) in a way that would make it more difficult for people with lower incomes or less […]
F-1 Cap Gap Students In Limbo From October 1, 2018 Onward If Their H-1B Cases Have Not Been Approved
It is October 1, 2018 and this morning, in what is an extremely unfortunate yet totally preventable situation, businesses across the U.S. were forced to temporarily terminate the employment of F-1 students who were previously employed pursuant to their cap-gap extension period. Briefly, the cap-gap extension regulation temporarily extends the OPT (Optional Practical Training) period […]
Recipe for Confusion: USCIS Says Only the Final Action Date in Visa Bulletin Protects a Child’s Age Under the Child Status Protection Act
The Child Status Protection Act is one of the most complex pieces of immigration legislation. Passed in 2002, the CSPA protects the age of children who would otherwise not qualify as children if they turned 21. The lack of any regulation has made the legislation even more confusing especially in light of more recent developments […]
Expecting Asylum-Seekers to Become US Asylum Law Experts: Reflections on My Trip to the Folkston ICE Processing Center
US asylum law is nuanced, at times contradictory, and ever-changing. As brief background, in order to be granted asylum, applicants must show that they have suffered past persecution or have a well-founded fear of future persecution on account of their race, religion, nationality, membership in a particular social group, or political opinion, and that they […]
Suspension of Premium Processing: Another Attack On the H-1B Program
The Trump administration has restricted the H-1B program by making it harder for employers to obtain an approval. It has done this without changing the law through Congress or amending any rule. Routine H-1B visa petitions that were previously approvable are now subject to difficult to overcome Requests for Evidence. Even after valiantly submitting evidence to […]
Assisted Reproductive Technology and Transmission of American Citizenship: Is There Any Need For A Biological Link After Jaen v. Sessions?
When a child is born abroad to a US citizen parent, the Department of State (DOS) and U.S. Citizenship and Immigration Services (USCIS) has always insisted on a biological relationship with a US citizen parent in order to acquire U.S. citizenship from that parent. This has always meant a genetic relationship, but with the advancement of Assisted Reproductive Technology […]
Jaen v. Sessions: The Second Circuit Reminds Us That Government Manuals Aren’t Always Right
For many years, the policy guidance of the Department of State (DOS) and U.S. Citizenship and Immigration Services (USCIS) has required that a child show a biological relationship with a U.S. citizen parent in order to acquire U.S. citizenship from that parent. Initially, this meant a genetic relationship; recently, an exception was made for gestational […]
USCIS Finalizes Unlawful Presence Policy Putting F, J And M Nonimmigrants In Great Jeopardy
The USCIS finalized its unlawful presence policy for F, J and M nonimmigrants on August 9, 2018. The final policy makes no significant changes from the draft policy of May 10, 2018. My earlier blog noted the flaws in the draft policy, which persist in the final policy. The final policy incorrectly breaks down the […]
Indirect Refoulement: Why the US Cannot Create a Safe Third Country Agreement with Mexico
The Trump Administration is seeking to create and implement a safe third country agreement with Mexico. Under this agreement, asylum seekers arriving at the US border who have travelled through Mexico would be denied the ability to file their asylum claims in the US. Such an agreement would trample on the rights of asylum-seekers, violating […]
Administrative Review Versus Judicial Review When an Employment-Based Petition Is Denied
Under the Trump administration, there have been an increasing number of denials of employment-based petitions, especially of H-1B visas. To reverse what Trump sees as American carnage, his administration has unleashed carnage on the H-1B visa program, and indeed, all legal immigration. It does not matter that employment-based visas help facilitate American competitiveness globally by […]
“Vague Laws Invite Arbitrary Power”: Making the Case for Crimes Involving Moral Turpitude Being Void for Vagueness
The Supreme Court in Sessions v. Dimaya, 138 S. Ct. 1204 (2018) dramatically held that one aspect of the crime of violence definition contained within the aggravated felony provision of the Immigration and Nationality Act (INA) was unconstitutionally vague. An aggravated felony conviction can result in a non-citizen’s swift removal from the United States, and […]
Heightened Ethical and Strategic Considerations for Business Immigration Attorneys Under USCIS’s New Removal Policy
U.S. Citizenship and Immigration Services (USCIS) issued updated policy guidance on July 5, 2018, PM-602-0050.1, that aligns its policy for issuing Form I-862, Notice to Appear, with the immigration enforcement priorities of the Department of Homeland Security (DHS). A Notice to Appear (NTA) instructs a person to appear before an immigration judge on a certain […]
Another Brick in the (Virtual) Wall: Implications of USCIS’s New Policy Regarding Removal Proceedings Against Denied Applicants Who Are Not “Lawfully Present”
In a November 2017 article, the Washington Post described “How Trump is building a border wall that no one can see”: how the Trump Administration was, “in a systematic and less visible way . . . following a blueprint to reduce the number of foreigners living in the United States — those who are undocumented […]
Threading the Needle: Challenging Trump’s Travel Ban Despite Trump v. Hawaii
On June 26, 2018, the US Supreme Court in a 5-4 decision in Trump v. Hawaii upheld President Trump’s travel ban against seven countries, the majority of which are predominantly Muslim. Chief Justice John Roberts, in writing the majority opinion, found that Section 212(f) of the Immigration and Nationality (INA) “exudes deference to the President” […]
How Trump Administration Officials Can Be Found Criminally Culpable For Separating Children From Parents
The Trump Administration has continued to perpetuate the falsehood that immigrants are criminals, despite overwhelming evidence that communities are safer when immigrants arrive. Trump’s recent spectacle to honor victims of crimes perpetrated by people who happened to be immigrants was designed to not just to spread hatred and fear of immigrants, but to counter criticism […]
Stop the Horrific Practice of Separating Children from Parents
The desperate sobbing of children who have been separated from their parents is horrific and shocking. As the children scream “Mami” and “Papa” over and over again, a Border Patrol agent booms above the crying: “Well, we have an orchestra here,” he jokes. “What’s missing is a conductor.” The practice of separating families at the […]
Can the Beneficiary Pay the Fee in Federal Court Litigation Challenging an H-1B Visa or Labor Certification Denial?
There is a clear prohibition to the foreign national beneficiary paying attorney fees and costs associated with labor certification. Similarly, fees and costs associated with the preparation of an H-1B petition and Labor Condition Application are considered unauthorized deductions from the beneficiary’s wage. These prohibitions are set forth in regulations of the Department of Labor […]
State Department’s Change To Public Charge Guidance In Foreign Affairs Manual Will Result in Many More Visa Refusals
The Trump Administration has opened another front in its war on legal immigration to the United States, which is to broaden the definition of who is likely to become a public charge. One who is likely to become a public charge can be refused a visa to enter the United States or denied adjustment of […]
Those Who Cannot Remember the Past: How Matter of Castro-Tum Ignores the Lessons of Matter of Avetisyan
Attorney General Jefferson B. Sessions III recently ruled in Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018), that immigration judges cannot under most circumstances “administratively close” cases before them (other than in a few instances where this is specifically authorized by regulation or court-approved settlement), even though the practice has been followed for many […]
USCIS Improperly Blurs Distinction Between Violation of Status and Unlawful Presence for F, J and M Nonimmigrants
U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum on May 10, 2018, “Accrual of Unlawful Presence and F, J, and M Nonimmigrants.” The memo abruptly revises previous policy guidance in the USCIS Adjudicator’s Field Manual relating to this issue. The new guidance is effective August 9, 2018, and after reading this blog, it […]
Assembly Line Injustice: How the Implementation of Immigration Case Completion Quotas will Eviscerate Due Process
The Executive Office for Immigration Review, under the direction of the Department of Justice, announced last year that it had reopened the Collective Bargaining Agreement with the National Association of Immigration Judges (NAIJ) to include case completion quotas in the performance evaluations of Immigration Judges. On March 30, 2018, James McHenry, the Director of the […]
Guidance To The Perplexed After USCIS Sneaks In Ban On Third-Party Placement Of STEM OPT Workers
Recently, without any prior notice, USCIS quietly updated its STEM OPT webpage to reflect a ban on the placement of STEM OPT workers at third-party client sites. As background, on March 11, 2016 the Department of Homeland Security (DHS) published a final rule amending regulations to expand Optional Practical Training (OPT) for students with U.S. […]
Reinterpreting the 90 Day Misrepresentation Provision in the Foreign Affairs Manual
As we previously blogged, the State Department abruptly amended the Foreign Affairs Manual in September 2017 to provide consular officers with broader grounds to find that foreign nationals misrepresented their intentions when they came to the United States on nonimmigrant visas. A finding of fraud or misrepresentation under INA § 212(a)(6)(C)(i) can result in a […]
Beware The Gap: USCIS’s Policy Changes Cause Headaches and Confusion for F-1 Change of Status Applicants
There’s never any good news coming from USCIS these days. The agency’s treatment of applicants changing status to F-1 is another prime example of a confusing policy change that has no basis in law and regulation, and which severely hurts the U.S.’s ability to hold on to talented students. To fully grasp the ridiculousness of […]
Analyzing the Definition of a Specialty Occupation Under INA 214(i) to Challenge H-1B Visa Denials
In recent denials of H-1B petitions, the USCIS has been taking the position that the occupation for which H-1B classification is sought must require a degree in the specific field. This position runs contrary to the definition of a specialty occupation. An occupation that may require a degree is diverse fields may also qualify. Denials […]
Fearlessly Challenging H-1B Visa Denials Through Litigation
By Cyrus D. Mehta and Eleyteria Diakopoulos As we have blogged about extensively in the past, President Trump’s “Buy American and Hire American” Executive Order No. 13788 has had the most negative impact on the H-1B visa program. Following this pattern, the recent trend by the U.S. Citizenship and Immigration Services (USCIS) heading into the […]
Making The Law Up As He Goes: Sessions Refers Another Case to Himself, This Time On Motions For Continuance
Attorney General Jeff Sessions has yet again referred an immigration case to himself for review in Matter of L-A-B-R- et al, 27 I&N Dec. 245 (AG 2018). This time, AG Sessions asks: An Immigration Judge is authorized to “grant a motion for continuance for good cause shown.” 8 C.F.R. § 1003.29 (2017); see also id. […]
Sessions Likely to End Asylum Eligibility for Victims of Domestic Violence: How Courts Can Resist
Violence against women is the most pervasive and underreported human rights violation in the world. Whether you live on the Upper East Side or in Gugulethu, South Africa, you likely know a woman or girl who has been the victim of sexual or gender-based violence. Maybe you are that woman or girl.[i] International asylum frameworks […]
California’s New Laws Protecting the Rights of Immigrants Are Civil Rights and Should Never Be Found to Be Unconstitutional
The Trump administration has ramped up its ire against California by filing a lawsuit against three different California laws that aims to protect immigrants from the harsh effects of federal enforcement. The three laws are the Immigrant Worker Protection Act, which regulates the way private employers can respond to federal efforts to investigate workplace immigration […]
The Draconian Documentation Regime For Third Party Arrangements in H-1B Visa Petitions
The attacks on the H-1B visa program by the Trump administration continue unabated. On February 22, 2018, U.S. Citizenship and Immigration Services (USCIS) published a policy memorandum entitled Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites (Third-Party Memo) clarifying that USCIS may request detailed documentation to ensure that a legitimate employer-employee relationship is […]
Rodriguez Tovar v. Sessions: The Ninth Circuit Holds That a Child Sponsored By a Lawful Permanent Resident Should Not Be Penalized For The LPR Parent’s Naturalization
Becoming a U.S. citizen is often thought of as an admirable act, something that our immigration and naturalization laws encourage qualified applicants to do. According to the Board of Immigration Appeals (BIA), however, in at least one relatively common fact situation, our immigration laws actually discourage naturalization, by penalizing children of the naturalized parent. The […]
BALCA Holds That Foreign Language Requirement Did Not Need To Be Listed In The Advertisements
Despite the fact that the PERM regulations took effect on March 28, 2005, almost 13 years ago, PERM practitioners continue to struggle with the Department of Labor (DOL) regarding what must be listed in PERM advertisements. Issues surrounding this ongoing battle were discussed in my blogs here, here, here and here. As they say, the […]
The Evolving Rights Of Deportable Immigrants As Seen In The Case Of Ravi Ragbir
By Cyrus D. Mehta and Sophia Genovese Foreign nationals with removal orders are in an extremely vulnerable situation. Even if they are asked to report on a regular basis under an order of supervision, there is no guarantee that a whimsical ICE officer the next they show up to an interview may decide to apprehend […]
The AAO Finds That Entry Level Wages Do Not Automatically Preclude H-1B Visa Classification
By Cyrus D. Mehta and Sophia Genovese As we have previously blogged, many of the Requests for Evidence (RFEs) issued to petitions filed under the FY 2018 H-1B visa lottery objected to the H-1B worker being paid an entry level wage. The AAO recently took up the issue of Level I wages in two decisions, […]
The American Dream Is For Everyone
By Cyrus D. Mehta & Sophia Genovese The Trump Administration has announced an immigration proposal that pits the lives of Dreamers against other immigrant populations. Dreamers are young people who came to the United States prior to the age of 16, and fell out of status of status through no fault of their own. They […]
Potential Adjustment of Status Options After the Termination of TPS
As President Trump restricts immigration, it is incumbent upon immigration lawyers to assist their clients with creative solutions available under law. The most recent example of Trump’s attack on immigration is the cancellation of Temporary Protected Status for more than 200,000 Salvadorans. David Isaacson’s What Comes Next: Potential Relief Options After the Termination of TPS […]
What Comes Next: Potential Relief Options After the Termination of TPS
With the recent announcement that the Trump Administration will terminate Temporary Protected Status (TPS) for more than 200,000 citizens of El Salvador effective September 2019 after previously terminating TPS for Haiti, Nicaragua, and Sudan, it seems appropriate to examine alternate forms of immigration relief that may become available to those whose TPS is terminated. Of […]
NO-WIN IMMIGRATION POLICY: DENYING H-1B EXTENSIONS TO SKILLED WORKERS FROM INDIA SO THAT THEY SELF-DEPORT
There are many people born in India, and to a lesser extent China, who have been patiently waiting for over a decade for their green cards. They have complied with all immigration formalities and the only thing holding them back is an available visa. The law allows them to continue working on extended H-1B visas […]
Top 10 Most Viewed Posts On The Insightful Immigration Blog In 2017
Thank you for reading and supporting The Insightful Immigration Blog. Listed below are the top 10 most viewed blogs in 2017. While these are the 10 most viewed blogs, each blog is a carefully crafted gem, and we invite you to read all of them. 2017 was marked by President Trump’s turbulent impact on the […]
Calling Out President Trump’s Hoax: The Green Card Lottery and Family Fourth Preference Have No Connection To Terrorism
By Cyrus D. Mehta & Sophia Genovese Despite the President’s most recent comments, individuals that immigrate to the United States via the Diversity Visa program and family-based petitions are not chosen out of a bin and are certainly not the “worst of the worst.” To the contrary, individuals who come to the United States through […]
New York State Bar Association v Avvo: Will the Uberization of Immigration Law Practice Overcome Outdated Advertising Rules Governing Lawyers
Companies like Avvo are using their marketing platform to provide more opportunities for younger and solo lawyers to gain clients and thus level the playing field. Avvo Legal Services seeks to disrupt the traditional legal model where a client seeks out a lawyer based on his or her reputation rather than on a web-based network, […]
Making Sense of the Acquittal in Kate Steinle’s Case: Why Anti-Immigrant Rhetoric Equating Immigrants with Criminals Must Stop
Kate Steinle’s death was a senseless tragedy. On July 1, 2015, as she was walking along San Francisco’s Pier 14, a gun goes off and cuts her life short. She died in her father’s arms. The accused, Jose Ines Garcia Zarate, is an undocumented Mexican immigrant who had been deported five times before, and each […]
Breakthrough in Matter of V-S-G- Inc.: AC21 Beneficiaries Given Opportunity to Be Heard When I-140 is Revoked
The law generally recognizes that petitioners control their visa petitions. See 8 CFR 103.2(a)(3). A beneficiary cannot force a petitioner to pursue or maintain a visa petition. Therefore, USCIS communicates only with petitioners, not the beneficiaries, with respect to notifications such as Requests for Evidence, approvals, and even a Notice of Intent to Revoke (NOIR) […]
Matter of G- Inc.: Clarifying the Role of the Function Manager Under the L-1 Visa
By: Cyrus D. Mehta and Sophia Genovese The Administrative Appeals Office (AAO) recently adopted a decision, Matter of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017), providing important guidance to U.S. employers who transfer function managers under the L-1 intracompany visa. The L-1 visa allows a U.S. employer to transfer an executive or manager (L-1A) […]
The Government’s “Nasty” Treatment Of Expert Opinions In Support Of H-1B Visa Petitions
USCIS’ current ferocious attack on H-1B petitions has been discussed here, here and here. Backed by the Trump administration, USCIS has openly declared war on H-1Bs. What is most frustrating, in my opinion, is not only the fact that there appears to be a concerted effort to find some way to reject each and every […]
Expanding the Rights of Immigrants by Voting ‘Yes’ for a New York Constitutional Convention
By Cyrus D. Mehta and Sophia Genovese-Halvorson On November 7, 2017, voters in New York will get an opportunity to decide whether to hold a Constitutional Convention in order to improve New York’s Constitution. The next opportunity to engage in this unique democratic experiment will arise in 2037. The latest polls have shown that large […]
The Empire Strikes Back – USCIS Rescinds Deference To Prior Approvals In Extension Requests
The Trump administration is deriving great pleasure in causing pain to people who wish to lawfully come to the United States and remain here lawfully. It has caused H-1B carnage as more H-1B visa petitions are being denied than ever before on legally baseless grounds. Continuing to rub salt in the wound, the USCIS issued […]
Stopping H-1B Carnage
In his inaugural address, President Trump pledged to end what he referred to as “American carnage,” depicting the United States bleakly—as a “land of abandoned factories, economic angst, rising crime”—while pledging “a new era in American politics.” To reverse what Trump sees as American carnage, his administration has unleashed carnage on the H-1B visa program. […]
Musings On Our Asylum System – After AG Sessions’ Remarks on ‘Dirty Immigration Lawyers’
Attorney General Sessions who has been hostile towards increased immigration and views the asylum system as a loophole for unauthorized entry into the US said in recent remarks that “over the years, smart attorneys have exploited loopholes in the law, court rulings, and lack of resources to substantially undermine the intent of Congress.” He got […]
From Bad to Worse: Why We Should Not Let the Trump Administration’s Outrageous Immigration Demands Make the SUCCEED Act Seem Like a Reasonable Alternative
Following the Trump Administration’s decision in September to end the Deferred Action for Childhood Arrivals (DACA) program, President Trump suggested in a Tweet that Congress should “legalize DACA” within the next six months. There have been a number of proposals for how to address the status of the “Dreamers” who would otherwise be left by […]
Dealing With The Dreaded RFE – Reflections Of An Immigration Lawyer
RFE is the acronym for Request for Evidence. It is dreaded by immigration lawyers who file H-1B visa petitions and other applications for immigration benefits. The RFE is essentially a challenge by the immigration agency, United States Citizenship and Immigration Services (USCIS), asserting that the applicant does not appear to be qualified for the visa […]
A Few Suggestions To Defend Oneself Against A Misrepresentation Finding Under The 90-Day Rule
By Cyrus D. Mehta and Sophia Genovese-Halvorson The State Department has abruptly amended the Foreign Affairs Manual to provide broader grounds to find that foreign nationals misrepresented their intentions when they came to the United States on nonimmigrant visas. A finding of fraud or misrepresentation under INA § 212(a)(6)(C)(i) can result in a permanent ground of inadmissibility. The […]
State Department Toughens Standard For Assessing A Foreign Student’s Ties With Home Country
By Cyrus D. Mehta and Sophia Genovese-Halvorson Similar to many other nonimmigrant admission requirements, under INA § 101(a)(15)(F), a foreign national must show that they have a foreign residence which they do not intend on abandoning in order to be admitted in F-1 nonimmigrant student status. As explained below, this requirement has been applied to […]
Immigration and Nationality Act Trumps America First
President Trump’s America First policy has influenced how the United States views trade, immigration, the environment and global alliances. It is a radical departure from how the United States viewed itself before Trump took office. While previously the United States took the lead in forging the Paris climate accord, Trump withdrew from it. While the […]
How Binding Are DOL FAQs?
As PERM practitioners, we are all familiar with Department of Labor’s (DOL) Frequently Asked Questions (FAQs). Going as far back as 2005, the year of the inception of the PERM program, there have been various rounds of DOL FAQs on a wide range of topics including on how to file or withdraw a PERM application; […]
Watson v. United States: The Second Circuit Tells U.S. Citizens Improperly Detained by ICE to File Their Claims for Damages While Their Immigration Court Case is Ongoing
In its July 31, 2017, opinion in Watson v. United States, a panel of the U.S. Court of Appeals for the Second Circuit, over the dissent of Chief Judge Robert A. Katzmann, declared untimely the claim of false imprisonment brought by a U.S. citizen, Davino Watson, who had been detained by immigration authorities for nearly […]
RAISE Act Will Hurt Immigrants, Americans and America
Last week, President Trump lent full throated support towards the Reforming American Immigration for a Strong Economy Act (RAISE Act), which will dramatically alter the immigration system in the United States the way we know it. Although this bill, proposed by Republican Senators Cotton and Purdue has little chance of moving through Congress, it has […]
H-1B Entry Level Wage Blues
Those who filed under the FY 2018 H-1B visa lottery and were selected must have been pleased. As premium processing was eliminated, the approvals have just started coming in this summer. Cases that are not readily approved receive Requests for Evidence (RFE). Many of the RFEs object to the H-1B worker being paid an entry […]
Trump’s H-2B Visa Conflict: How We Can Take Advantage Of It To Gain Broader Immigration Reform
On July 19, 2017, the Trump administration increased the H-2B cap from 66,000 to 81,000 by promulgating a final rule. H-2B visas are annually capped at 66,000 under the law. Due to an increase in demand of essential workers to serve landscapers, hotels, restaurants and seafood processors each year, the H-2B cap gets hit earlier […]
Supreme Court’s Heightened Standard For Revoking Naturalization Should Apply To All Immigration Benefits
Form N-400, Application for Naturalization, asks broadly “Have you EVER committed a crime or offense for which you have not been arrested?” One would be hard pressed to find a person who has never committed an offense for which she has not been arrested. Multitudes of New Yorkers must have committed the offense of jay […]
Analysis of the 60-Day Grace Period for Nonimmigrant Workers
The Department of Homeland Security issued final regulations on November 17, 2016 entitled “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers” to provide relief to high skilled workers born mainly in India and China who are caught in the crushing backlogs in the employment-based preferences. The rule […]
Supreme Court May Have Bolstered Rights of Foreign Nationals with Ties to the United States
While disappointing that the Supreme Court allowed the ban to apply on visa applicants with no ties with the US from the banned countries, it may have permanently bolstered the rights of visa applicants who have ties to the US to challenge visa denials, which hitherto was not possible. This is the silver lining from […]
Sessions v. Morales-Santana: The Problems of Leveling Down
On June 12, 2017, the Supreme Court issued its decision in Sessions v. Morales-Santana, holding that the different treatment of unmarried mothers in INA §309(c), 8 U.S.C. §1409(c), was unconstitutional as a violation of equal protection. Unfortunately, while the Court agreed with the Court of Appeals for the Second Circuit that there had been such […]
Trump’s Tweet On “Extreme Vetting” May Have Opened the Door to a Court Challenge
The Trump administration has begun to apply extreme vetting on visa applicants, even though tourism has dropped this year. A new form, DS-5535, asks visa applicants extremely detailed questions about travels, work history and their presence on social media, as follows: Travel history during the last fifteen years, including source of funding for travel; Address […]
The “politically correct version”: What Donald Trump’s Recent Tweet and Previous Use of the Term “Politically Correct” Tell Us About His Revised Executive Order
Donald Trump weighed in earlier today via Twitter regarding the litigation about his travel-ban executive orders, tweeting among other things that “The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C.” It is, as others have pointed out, a bit odd that Mr. […]
Going Beyond IRAP v. TRUMP: Challenging “Bad Faith” Governmental Actions Denying Non-Citizens Admission Into The United States
The Fourth Circuit’s decision in International Refugee Assistance Project v. Trump upholding the preliminary injunction against President Trump’s travel ban, on the ground that it violated the Establishment Clause of the US Constitution, holds out hope for other similar challenges that have otherwise faced a high bar to overcome the Executive branch’s unbridled discretion to […]
EB-5 Green Card, Ethics and Trump
The EB-5 green card program for foreign investors is very much in the news due to its connection with President Trump! A series of news reports have highlighted the Kushner family’s attempt to raise funds through the EB-5 green card program from Chinese investors by suggesting Trump’s connection to one of its real estate projects […]
Hazards of Various Forms of Leave At the Point of Termination of H-1B Employment
In most cases, termination of H-1B employment by either the at-will employer or employee is fairly straightforward. Once termination takes place, the employer in most cases is required to offer to pay the reasonable costs of the H-1B worker’s return transportation abroad, and the employer also should inform USCIS of the termination in order to […]
Cross Currents In Federal Preemption of State and Local Immigration Law Under Trump
Preemption of federal immigration law over punitive state immigration laws was a hot topic until very recently, especially when Arizona enacted a tough enforcement law known as SB1070. The Obama administration fiercely challenged the law under the preemption doctrine, which ended up in the Supreme Court in Arizona v. USA. Although the majority opinion found […]
You Ask a Silly Question, and You Get a Silly Answer: Speeding, Terrorist Babies, and Why DHS Should Consider Revising or Eliminating Certain Form Questions
During the recent Supreme Court oral argument in Maslenjak v. United States, Chief Justice John Roberts pointed out that the government’s interpretation of the statute at issue there implies that a naturalization applicant who has driven 60 miles per hour in a 55-mile-per-hour zone, and does not reveal this on the application form, could be […]
7 Points To Remember Regarding Resume Review In The PERM Process
The employer’s review of resumes received from applicants continues to be one of the trickiest issues in the PERM labor certification process. The process might seem straightforward enough because, after all, employers filing PERM applications are likely quite used to evaluating resumes from applicants. But such thinking is probably where the first wrong step is […]
H-1B Cap Filing Aftermath: Evaluating the Fate of the Computer Programmer and the H-1B Dependent Employer
On March 31, 2017, on the eve of the FY 2018 H-1B Cap filing season, the USCIS issued a policy memorandum stating that computer programmer positions are not always “specialty occupations” that would render the occupation eligible under the H-1B visa. This memo rescinded an earlier memo of the Nebraska Service Center from 2000, which […]
Filing Under The FY 2018 H-1B Cap; New Developments In H-1B Cap Exemption
U.S. Citizenship and Immigration Services (USCIS) announced that it will begin accepting H-1B petitions subject to the fiscal year 2018 cap on April 3, 2017. All cap-subject H-1B petitions filed before April 3, 2017, for the FY 2018 cap will be rejected. Congress set a cap of 65,000 H-1B visas per fiscal year. An advanced-degree […]
Immigrants Are Not Undesirable Criminals
During his campaign and after he became president, Trump has unfortunately changed the narrative by linking immigrants, especially undocumented immigrants, to rapists, murderers, terrorists and job stealers. Trump has exploited the crimes committed by a few immigrants to link all of them to criminal activity. The fact that a person may have crossed the border […]
Employer Not Always Obligated To Pay Return Transportation Cost Of Terminated H-1B Worker
In Vinayagam v. Cronous Solutions, Inc., ARB Case No. 15-045, ALJ Case No. 2013-LCA-029 (ARB Feb. 14, 2017) the Administrative Review Board held that an employer’s failure to pay return transportation costs home of a terminated H-1B employee was not fatal when the worker did not return to her home country on her own volition. […]
Protesting Trump’s Muslim Ban Through Art: An Immigration Lawyer’s Perspective
There are many ways to protest Trump’s travel ban, also known as the Muslim ban. Lawyers have successfully sued against the ban in the courts. People protested at airports in an unprecedented and spontaneous manner. Art can also be a powerful form of protest against the ban. The Museum of Modern Art (MOMA) has also […]
Is There A Hidden Agenda? Suspension of Premium Processing for All H-1B Petitions
In one move that we did not see coming, USCIS has announced that, starting April 3, 2017, it will temporarily suspend premium processing service for all H-1B petitions. Petitioners will not be able to file Form I-907, Request for Premium Processing Service, for a Form I-129, Petition for a Nonimmigrant Worker which requests the H-1B […]
Destroying the Case In Order to Save It: Why Returning Asylum Applicants to Contiguous Territory Under INA §235(b)(2)(C) Would Often Violate Both Law and Common Sense
During the Vietnam War, an American official was once quoted as saying of the town of Ben Tre that “It became necessary to destroy the town to save it.” This author was reminded of that quote recently when considering the approach to certain removal proceedings proposed in a recent Executive Order issued by Donald Trump […]
No Matter How Many New Travel Bans Trump Issues, Maximum Power Does Not Mean Absolute Power
By Cyrus D. Mehta and Sophia Genovese-Halvorson We have numerous justifiable concerns with the immigration policies of the Trump Administration on behalf of our clients and all Americans who feel that our values are being undermined, especially the Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” Fortunately, courts across […]
Resisting President Trump’s Visa Revocations
President Trump signed an Executive Order the afternoon of Friday, January 27, 2017 which, according to its introduction, is intended to “protect Americans” but had the effect of banning travel of certain persons into to the United States who are mainly nationals of mainly Muslim countries. Citing INA 212(f), which broadly authorizes the President to […]
More Alternative Facts: The Orwellian Abuse of Language in Connection with Donald Trump’s Recent Executive Orders on Immigration
Following an incident in which White House press secretary Sean Spicer provided false numbers regarding the size of the crowds at the inauguration of Donald Trump as President, Trump senior advisor Kellyanne Conway memorably stated on NBC’s “Meet the Press” that Mr. Spicer had merely been providing “alternative facts.” This claim has, deservedly, been the […]
Justifiable Outrage On Trump’s Muslim Travel Ban By A Client
By Farhad Wadia Editor’s Note: On Friday evening, January 27, 2017, we sent out a notice to our clients relaying the details of President Trump’s executive order blocking the entry of visa-holders, refugees, and LPRs from seven predominantly-Muslim nations, namely Iran, Iraq, Syria, Somalia, Sudan, Libya, Yemen. Among other things, we strongly discouraged clients or […]
Is Being Anti-Trump A New Ground Of Inadmissibility?
Over the weekend, a Canadian student of McGill University, Joseph Decunah, who was seeking to be admitted to protest at the Women’s March the day after President Trump’s inauguration was refused admission. He was in the company of two US citizens who were allowed to cross. Decunah was point blank asked “Are you anti or […]
Is Trump’s Proposed Scrapping of the H-1B Lottery in Favor of the Highest Wage Such A Good Idea?
By Cyrus D. Mehta and Sophia Genovese-Halvorson Employers have already begun preparing for the upcoming H-1B visa lottery season. The annual H-1B cap is limited to 65,000 visas per year for applicants with bachelor’s degrees, and an additional 20,000 for those with master’s degrees from US universities. The filing period begins on April 1, 2017. […]
Matter of Dhanasar: The New National Interest Waiver Standard
Overturning nearly two decades of precedent on how an individual qualifies for the National Interest Waiver (NIW), the Administrative Appeals Office (AAO) of the U.S. Citizenship and Immigration Services (USCIS) recently issued a precedent decision, Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) which vacated Matter of New York State Dep’t of Transp. [NYSDOT], […]
Top 10 Posts on The Insightful Immigration Blog in 2016
Thank you for reading and supporting The Insightful Immigration Blog. Listed below are the top 10 most viewed blogs in 2016. While these are the 10 most viewed blogs, each blog is a carefully crafted gem, and we invite you to read all of them. In 2016, we covered a wide range of topics, including […]
The Ethical Role of a Lawyer Under a Trump Administration
Ever since Donald Trump won the election, many immigrants have justifiably become fearful. During his election campaign, Trump engaged in harsh rhetoric against immigrants. He said he would build a wall and deport 2 to 3 million immigrants with criminal records. Trump also promised that he would rescind President Obama’s deferred action program for young […]
BALCA Update: Recent Notable Cases
While we have no idea what the labor certification process will look like under the Trump administration, it still behooves all PERM practitioners to keep up with the Board of Alien Labor Certification Appeals (BALCA) decisions as they continue to directly affect how we prepare and file PERM applications. To that end, this blog will […]
Extreme Absurdity: A Response to the “Extreme Vetting” Questions Proposed By Potential DHS Secretary Kris Kobach
Kansas Secretary of State Kris Kobach, rumored to be a potential Secretary of Homeland Security in a Donald Trump Administration, met with Mr. Trump last Sunday, apparently to discuss some of his plans for the Department. During a media photo opportunity, Mr. Kobach held a binder and stack of papers in such a way that […]
Analysis of Key Provisions of the High Skilled Worker Final Rule
The Department of Homeland Security issued final regulations on November 17, 2016 entitled “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers” to provide relief to high skilled workers born mainly in India and China who are caught in the crushing backlogs in the employment-based preferences. While the […]
The Role Of The Immigration Lawyer In The Age Of Trump
Our role as immigration lawyers has never become more important since the morning of November 9, 2016. Notwithstanding his conciliatory speech after his upset win, President elect Donald Trump will have to deliver on some of his campaign promises that got him votes such as building a wall, extreme vetting and cancelling Obama’s executive actions […]
Immigration Perspectives On The Eve Of The 2016 Presidential Election
The United States has always prided itself as a nation of immigrants. Unfortunately, however, there has been disturbing rhetoric against immigrants and refugees in the current presidential election season. This has been exemplified in racist taunts and epithets against Hamdi Ulukaya, a Turkish immigrant of Kurdish descent, who is the founder of the highly successful […]
The Guide for the Perplexed – Who is Stuck in the Green Card Backlogs
“In the realm of Nature there is nothing purposeless, trivial, or unnecessary” ― Maimonides, The Guide for the Perplexed David Bier of the Cato Institute in No One Knows How Long Legal Immigrants Will Have To Wait calculates that there are “somewhere between 230,000 and 2 million workers in the India EB-2 and EB-3 backlogs, […]
Reviving The National Interest Waiver For International Entrepreneurs
A proposed rule would allow the Department of Homeland Security (DHS) to use its existing discretionary statutory parole authority for entrepreneurs of startup entities whose stay in the United States would provide a “significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation.” Under this proposed rule, DHS may […]
BALCA Holds That Failure To Disclose A ‘Wage Adjustment’ Is Not A Valid Denial Ground
Recently, in the representative case, Matter of Cognizant Technology Solutions US Corp, 2013-PER-01488 (BALCA, September 29, 2016), the Board of Alien Labor Certifications Appeals (BALCA) reversed 382 PERM denials finding, most significantly, that the employer’s failure to apprise US workers of its wage adjustment – a variable amount of money to be paid to the […]
Immigration Inadmissibility, Legal Ethics And Marijuana
Although medical and recreational marijuana activities are illegal under federal law, at least 25 states have legalized marijuana for medical use. Colorado, Washington, Oregon and Alaska have gone even further by legalizing some forms of recreational marijuana, including its production and sale. This conflict between federal and state law creates a curious anomaly for the […]
Will the Disruption of the H-1B Lottery Force Change for the Better?
A class action lawsuit, Tenrec, Inc. v. USCIS, challenging the annual H-1B lottery recently overcame a motion to dismiss, and will move forward. There is a decent chance that the plaintiffs may prevail and employers will no longer be subject to the H-1B lottery. The annual H-1B visa cap forces employers to scramble way before the […]
Expansion of the Provisional Waiver: Good News, But Could Be Better
On July 29, 2016, USCIS published in the Federal Register the final version of a previously-proposed rule expanding the provisional waiver program. The new rule, Expansion of Provisional Unlawful Presence Waivers of Inadmissibility, 81 Fed. Reg. 50,244, was effective August 29, 2016, so the newly expanded program is now available. The provisional waiver program, which […]
Our Cool Bimonthly Immigration Update!
In addition to our blog, we also regularly post immigration updates twice a month on our website at www.cyrusmehta.com. The latest Mid-September 2016 Immigration Update is available at https://blog.cyrusmehta.com/blog/2016/09/15/mid-september-2016-immigration-update/. While our blogs provide an interesting insight into an interesting contemporary immigration issue, our immigration updates comprehensively cover many significant developments twice a month. We extract, […]
Fewer Rights in Pennsylvania than Guantanamo: Some Reactions to the Third Circuit’s Decision in Castro v. Dep’t of Homeland Security
On August 29, 2016, the Court of Appeals for the Third Circuit issued its decision in Castro v. Dept. of Homeland Security, a consolidated set of habeas corpus petitions brought by asylum-seekers subject to expedited removal orders and detained within the Eastern District of Pennsylvania (likely at the Berks County Residential Center). The Third Circuit […]
Harmonious Coexistence: New Parole for International Entrepreneurs and Old Entrepreneur Pathways Portal
U.S. Citizenship and Immigration Services (USCIS) proposed a rule allowing certain international entrepreneurs to be considered for parole (temporary permission to be in the United States) so they may start or scale their businesses in the United States. This is not the first administrative initiative for entrepreneurs. In 2011 the USCIS provided guidance on how […]
Until Further Notice! Why PERM Applications Must Continue To Be Error-Free?
By: Anand G. Sinha* In a recent decision, Matter of Cisco Systems, Inc. 2012-PER-01179 (June 9, 2016), the Board of Alien Labor Certification Appeals (BALCA) reaffirmed its hardline stance that modifications cannot be made to filed labor certification applications under Program Electronic Review Management (PERM). Although this decision hardly comes as a surprise as the […]
Who Should Get Notice When An I-140 Petition Is Revoked? It’s The Worker, Stupid!
The ability for a foreign national worker to move to a new job is crucial in an age of never ending backlogs in the employment-based (EB) immigrant visa preferences. If an I-485 application for adjustment of status has been filed and been pending for more than 180 days, under INA 204(j), the I-140 immigrant visa […]
Close, But No Cigar! Meaning Of Affiliation For Purposes Of H-1B Cap Exemption
By Anand G. Sinha* The annual numeric limitation on the issuance of H-1B visas has been written about extensively in prior posts. It is no secret that the H-1B cap, as it is commonly referred to, has crushed the dreams of both prospective foreign employees and disappointed employers trying to secure high-skilled labor. In an attempt to […]
Trump vs. Outstanding Immigrant Khizr Khan
It is poetic justice that Khizr Khan, a Muslim and an immigrant, has been able to take on Trump and trounce him. Trump has derided both Muslims and immigrants with the objective of pandering to his base of white male voters. After Mr. Khan’s strong repudiation of Trump, he is no longer looking as invincible […]
Don’t Forget Skilled Workers Who May Have to Wait For A Few Centuries Before Getting the Green Card
Hillary Clinton’s acceptance speech was so warm and embracing of immigrants when compared to Donald Trump’s acceptance speech a week earlier. These were some of her key remarks on immigration: We will not build a wall. Instead, we will build an economy where everyone who wants a good-paying job can get one. And we’ll build […]
Deconstructing the Myth of the Criminal Immigrant
Donald Trump began his presidential campaign last year by accusing Mexican immigrants who cross the border as being criminals and rapists, and ended with the same sentiment in his acceptance speech of the Republican nomination by thundering that “nearly 180,000 people with criminal records ordered deported from our country are tonight roaming free to threaten […]
No Longer So Fast! An Examination of EB-1 Retrogression For Indian And Chinese Born Foreign Nationals
By Cyrus D. Mehta and *Anand G. Sinha One does not need a degree in public policy or law to understand the basic premise behind the concept that the United States ought to make the attraction of the best and brightest individuals a paramount immigration policy. By enabling the most talented and gifted individuals in […]
Avoid The Confusion: Complying With The Simeio Decision One Year Later
Employers of roving H-1B employees have scratched their heads in confusion over the Administrative Appeals Office’s April 9, 2015 decision, Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), discussed in detail in this blog here, here and here. This is because while the decision lays out the requirements for filing an amendment […]
Brexit and Xenophobia vs. Immigration and Innovation
In the backlash against globalization, as seen in the vote in favor of Brexit, there is an even more insidious backlash against immigration. The world has prospered because of the expansion of trade and technology, and also due to the free movement of capital and people. Millions of the world’s poor people have been lifted […]
An Eventful Thursday for Immigration Law at the Supreme Court: United States v. Texas, Mathis v. United States, and What’s Next
On Thursday, June 23, the U.S. Supreme Court issued two decisions of significance to immigration law: a 4-4 affirmance without opinion in United States v. Texas, and a 5-3 decision in Mathis v. United States. The first, which was more obviously immigration-related, is very disappointing and has rightly received a great deal of media attention, […]
Trump and the Snake
Donald Trump is fond of reading the lyrics from Al Wilson’s 1968 R&B hit song “The Snake” in his campaign rallies. While this is a catchy tune, Trump has now corrupted the song by associating it with his opposition to Muslims. He first called for a ban on Muslims entering the United States, including Syrian […]
Can a STEM OPT Student Be Employed At A Third Party Client Site?
The most frequently asked question in response to my recent blog entitled, “A Closer Look At The Form I-983 – Training Plan for STEM OPT Students”, is whether a STEM OPT student can be employed at a third party client site or at multiple client sites. I would argue that the answer to this […]
Were the DOJ Lawyers Really Unethical in Texas v. USA?
Judge Hanen’s order dated May 19, 2016 reprimanding thousands of Department of Justice lawyers for unethical conduct is astounding because it does not even appear that their conduct was unethical. Much has already been written about Judge Hanen’s strange order. Professor Orin Kerr questions whether the judge can even impose ethics classes on hundreds of […]
The B-1 Visa: Trap for the Tailor, Bricklayer and Tesla Motors
Many have gotten embroiled by the B-1 business visa in different ways. A tailor from Hong Kong who was accused of engaging in unauthorized work successfully argued that taking measurements on behalf of customers was a permissible business activity. Some years later, a union of bricklayers successfully challenged a policy that allowed foreign construction workers […]
USA v. OLIVAR: Conspiracy To Commit Criminal Acts Prior To Naturalization Can Still Result In Revocation Of Citizenship
One of the advantages of becoming a US citizen is that one is no longer susceptible to being deported from the United States, especially if the person has been convicted of a crime. While being convicted of a crime results in criminal penalties, a US citizen can at least take comfort that that there will […]
Matter of Z-A-, Inc.: Recognizing The Global Role Of The L-1A Manager In A Globalized World
Despite the shrill rejection of globalization in the current presidential election cycle, the Appeals Administrative Office (AAO) has thankfully bucked the trend. It recently designated Matter of Z-A- Inc. as an “Adopted Decision, “which means that such a decision “establishes policy guidance that applies to and binds all USCIS employees. USCIS directs its personnel to […]
Is Hillary Clinton’s Silence On H-1B Visas Golden?
The USCIS announced on May 2, 2016 that it will be returning H-1B petitions that have not been selected in this year’s H-1B lottery. Since USCIS received 236,000 H-1B petitions subject to the quota for fiscal year 2017, which is 65,000 for regular H-1B petitions plus another 20,000 for those with advanced degrees from U.S. universities, […]
A Closer Look At The Form I-983 – Training Plan for STEM OPT Students
As we previously blogged about here, on March 11, 2016 the Department of Homeland Security (DHS) published a final rule amending regulations to expand Optional Practical Training (OPT) for students with U.S. degrees in Science, Technology, Engineering, or Mathematics (STEM). This new rule will take effect on May 10, 2016 and will replace the 17-month […]
Some Preliminary Reactions to the Oral Argument in United States v. Texas
As most readers of this blog will likely be aware, the Supreme Court heard oral argument today in the case now captioned United States v. Texas, regarding the lawsuit brought by Texas and a number of other states to stop implementation of DAPA (Deferred Action for Parents of Americans) and expanded DACA (Deferred Action for […]
Preemption of Arizona Driver’s License Policy Provides Another Basis for Supreme Court to Uphold President’s Deferred Action Programs
On August 15, 2012, when the Deferred Action for Childhood Arrival (DACA) program took effect, Arizona’s then Governor Janet Brewer tried everything in her book to de-legitimize DACA in Arizona. DACA would not confer lawful or authorized status, according to an Arizona executive order signed by Governor Brewer. Arizona’s Motor Vehicle Division announced that it […]
Can The H-1B Visa Be Saved Through Executive Action?
The annual H-1B VISA cap forces employers to scramble way before the start of the new fiscal year, which is October 1, to file for H-1B visas, only to face the very likely project of being rejected by a randomized lottery. This is no way to treat US employers who pay thousands of dollars in […]
Will Avvo Disrupt Immigration Law Practice Like Uber Has Disrupted Taxis?
Plenty of traditional industries are being disrupted these days. Uber has disrupted the taxi industry and Airbnb has done the same with the hotel industry. The legal industry is not immune from disruption and there are likely to be seismic changes in the practice of law in the near future. This has already happened with […]
Suffocating The Foreign Entrepreneur Under The New STEM Optional Practical Training Rule
Facebook is a good example of an epically successful entrepreneurial venture that was hatched by students in the dorms of Harvard. It is important to allow students who have great dreams and ideas to flourish through startups, and this applies to foreign students who graduate from American universities. Why not encourage foreign students to launch […]
The Ethical Obligations of a Lawyer Who Represents a Three Year Old Child
There has been a justifiable sense of shock and outrage after a senior immigration judge testified in a legal proceeding that three and four year olds could represent themselves in complex removal proceedings. This is precisely what Immigration Judge Weil said in a deposition on behalf of the Department of Justice: I’ve taught immigration law […]
Senator Grassley “Hacks” The H-1B Visa For Foreign Entrepreneurs
The H-1B visa program is in trouble. It has become everyone’s favorite whipping boy. Critics rail against the H-1B for bringing in so called cheap labor to the US, but ignoring the fact that an employer is required to pay the prevailing wage set by the Department of Labor. Some of the wages mandated by […]
High Skilled Worker Rule – Is There Scope For Porting On A Labor Certification?
By Cyrus D. Mehta & David A. Isaacson Our firm provided selected comments to the proposed DHS rule entitled “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers.” These comments are based primarily on three recent blogs: Including Early Adjustment Filing in Proposed DHS Rule Impacting High-Skilled Workers […]
BALCA Reverses Labor Certification Denials By Upholding Real World Job Advertisements
Late last year, just in time to ruin the holidays for those affected, the Department of Labor (DOL) started a round of PERM denials setting forth another new and previously unheard of reason for denial. Despite having certified these types of PERMs for years (lulling practitioners into another false sense of security), the DOL started […]
The Opportunity to Be Heard: Why New DHS Proposed Regulations Regarding I-140 Petitions Should Incorporate and Expand Upon the Rule of Mantena v. Johnson
As discussed in a previous post on this blog by Cyrus D. Mehta, DHS recently promulgated a proposed rule entitled “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers”. One of the key aspects of this proposed rule, which as discussed in Cyrus’s blog post has disappointed many […]
A Trap For The Unwary: Equivalent Degrees And Alternate Requirements In Labor Certification Applications
When a foreign national has a three year degree instead of a four year degree, or has no degree, and is able to establish an equivalent degree through a combination of education and work experience, or only through work experience, it is important that the PERM labor certification application be carefully drafted. While an equivalent […]
Preserving H-1B Extension For Spouse And Freezing Age Of Child In Rule Impacting High-Skilled Nonimmigrant Workers
The purpose of this blog is to draw attention to two little know legal concepts, which must either be preserved or introduced through the proposed rule entitled Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers”. They are concepts worthy of promotion since they would greatly benefit delayed […]
Perspectives On Immigration In 2016 Through My Crystal Ball
2016 portends to be an action packed year on immigration. While we continue to watch Donald Trump touting his absurd proposal to temporarily ban Muslims, we can feel assured that it will likely not go anywhere. This is not the first time that America has witnessed such extreme anti-immigrant sentiments. It happened before in the mid-1800s when the Know Nothing party directed its […]
The H-1B and L-1 Punitive Super Fee Rears its Ugly Head Again
By Cyrus D. Mehta and Michelle S. Velasco Last December, Congress passed the Consolidated Appropriations Act (Public Law 114-113) (“Omnibus Bill”) that set up the government’s budget until October 2016. It is one of Congress’s basic tasks to create the budget for the government – something it has failed to do without rancorous debate, shutdowns, […]
Including Early Adjustment Filing in Proposed DHS Rule Impacting High-Skilled Workers Would Give Big Boost to Delayed Green Card Applicants
A proposed DHS rule entitled “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers” has disappointed beneficiaries of I-140 employment-based immigration visa petitions who are caught in the crushing employment-based preferences. Everyone was waiting with bated breath about how the rule would allow beneficiaries to apply for an […]
Top 10 Posts on The Insightful Immigration Blog in 2015
Thank you for reading and supporting The Insightful Immigration Blog. Listed below are the top 10 most viewed blogs in 2015. We will continue to provide insightful commentary on contemporary immigration issues in 2016, and wish all of our supporters and well wishers a very happy New Year! While these are the 10 most viewed […]
How One Employee’S Complaint Can Lead to a Full Blown Investigation of an H-1B Employer’S LCA Records
A recent U.S. Court of Appeals decision in Greater Missouri Medical Pro-Care Providers, Inc.ARB Case No. 12-015, ALJ Case No. 2008-LCA-26 (2014), is worth noting as it addressed the issue of how much latitude the DOL has to investigate an H-1B employer’s H-1B documents and records. As background, an employer seeking to employ a temporary […]
Are We Trying to Penalize Failure to Serve in the Syrian Army? How Recent Changes to the Visa Waiver Program Go Too Far
Section 203 of Division O of the recently enacted Consolidated Appropriations Act, 2016, which funds the U.S. government for the remainder of the current 2016 fiscal year (through September 2016), also adds new restrictions on use of the Visa Waiver Program (“VWP”) that exists under section 217 of the Immigration and Nationality Act (INA), 8 […]
San Bernardino Attacks Fallout: Will it Get Harder for Americans to Marry Foreign Spouses Overseas?
The USCIS has promised to review the K-1 visa procedures after the San Bernardino attacks since one of the attackers entered on this visa. The K-1 visa is commonly used by a fiancé of a US citizen spouse to enter the United States, and one of the conditions (with some exception) is that the parties must have […]
Winter Blues: Freezing the Age of a Child Under the December 2015 Visa Bulletin
Although the State Department Visa Bulletin announced dual dates on September 9, 2015 – a filing date and a final action date – effective October 1 2015, the government has yet to clarify how these dates protect a derivative child from aging out (turning 21) under the Child Status Protection Act. If a derivative child […]
The Proposed USCIS Guidance on Job Portability: Good, Bad or Ugly?
INA 204(j) was enacted on October 6, 2000 as part of the American Competitiveness in the 21st Century Act (AC 21). This provision is rather innovative as it allows for the beneficiary of an approved I-140 immigrant visa petition to exercise portability to a same or similar job if an I-485 adjustment application has been pending for more than […]
Sink or Swim Together: States Have No Legal Basis to Refuse Syrian Refugees
Since the Paris attacks, 31 states have objected to Syrian refugees being resettled within their boundaries. This is so even after these refugees have been carefully selected after demonstrating a well founded fear of persecution, and have undergone a security vetting procedure that takes almost two years. The Supreme Court held just over a century ago in Truax […]
Impact of Texas v. USA on Other Executive Actions Involving Employment Authorization
Although the Fifth Circuit in Texas v. USA ruled against the Administration on November 9, 2015 by upholding the preliminary injunction against implementation of President Obama’s program to grant deferred action to certain groups of undocumented persons, the ruling may impact other executive actions that President Obama had announced on November 20, 2014, especially relating to skilled immigrants. […]
Studying for the H-1B: USCIS Questions the Business Administration Degree
Since writing last year on the challenges facing employers who wish to hire H-1B workers for uncommon specialty occupations, we have seen the U.S. Citizenship and Immigration Services (USCIS) present a novel way to push back on H-1B filings: by challenging whether the beneficiary’s degree is in a field related to the specialty occupation. This has […]
Don’t You Dare Yank My Precious I-140 Petition Without Telling Me!
The approved immigrant visa petition, Form I-140, is truly precious, especially when foreign nationals caught in the employment-based second and third preference backlogs have to wait for several years before they can get their green cards. The beneficiary of an I-140 petition can also “port” to a new employer after an I-485 adjustment of status […]
Non-Retroactivity of BIA Precedent Decisions: De Niz Robles v. Lynch and other Recent Court of Appeals Rulings
Earlier this year, in Zombie Precedents, the Sequel, I discussed how the Second Circuit’s April 2015 decision in Lugo v. Holder exemplified a better way of dealing with precedent decisions that had been overturned by a court. As I noted in that blog post, the Second Circuit remanded Lugoto the BIA not only to deal […]
What One Hand Giveth the Other Taketh Away: Are We Truly Welcoming Foreign Entrepreneurs to America?
“Our nation has always attracted individuals with great drive and entrepreneurial spirit. As the world’s greatest economy and a global leader in innovation, the United States must continue to welcome and retain the next generation of foreign entrepreneurs who will start new businesses and create new jobs here in America.” The above is an extract […]
Work Authorization for H-4 Spouses: The Experience Thus Far
The U.S. Department of Homeland Security (“DHS)”) announced in February 2015 that beginning May 26, 2015, eligible H-4 spouses of H-1B visa holders could begin applying for employment authorization documents (EADs) from the U.S. Citizenship and Immigration Services (“USCIS”). This change in the regulations was in keeping with President Obama’s efforts to encourage highly skilled […]
When is a Visa “Immediately Available” for Filing an Adjustment of Status Application?
Central in the Mehta v. DOS lawsuit is whether the administration is authorized to establish a dual date system in the Department of State’s (DOS) Visa Bulletin, which it did for the first time in October 2015. When the DOS first issued the October 2015 Visa Bulletin on September 9, 2015, it established a filing […]
It’s Deja Vu All Over Again: State Department Moves Filing Dates Back From Previously Released October Visa Bulletin
On September 24, 2015, the Department of State issued an update that supersedes the previously released October Visa Bulletin. By moving many filing dates back, the update radically changed the recently announced benefit offered by a revised procedure for determining immigrant visa availability and filing adjustment of status applications. The revised process allows foreign nationals […]
Sophie Cruz and Pope Francis: Shattering Myths About Immigrants
How are immigrants currently combating labels and stigmas and what can we do more to promote immigrant pride? I am participating in #MoreThanALabel: Immigrant Stories, Simmons College’s online MSW Program’s campaign to promote transcending labels. By participating in this campaign, I will be sharing my thoughts and how I believe we can shatter the stigmas often […]
Save the Children Under the New Visa Bulletin
The changes made to the priority date system in the October 2015 Visa Bulletin have been positive and will provide much relief to beneficiaries of visas petitions caught in the employment and family-based backlogs. There will be two dates for the very first time: a filing date and a final action date. The filing date […]
Godot Has Arrived: Early Adjustment of Status Applications Possible Under the October 2015 Visa Bulletin
Gary Endelman and I have advocated for administrative fixes to improve the immigration system since March 2010. In The Tyranny of Priority Dates we proposed that foreign nationals caught in the crushing employment-based (EB) or family-based (FB) backlogs could file an adjustment of status application, Form I-485, based on a broader definition of visa availability. […]
Board of Immigration Appeals Provides Safeguards for Asylum Applicant With Mental Competency Issues
The Board of Immigration Appeal’s decision in Matter of J-R-R-A-, 26 I&N Dec. 609 (BIA 2015) is a milestone decision in protecting an asylum applicant who presented competency issues that were not appropriately assessed by the Immigration Judge. It also untangles the ethical conundrum that a lawyer has when the client is unable to testify […]
Why Birthright Citizenship Is Most Wonderful For America
Donald Trump advocating that the United States should end birthright citizenship in his immigration reform plan is nothing new. Politicians have frequently brought up the so called dangers of birthright citizenship to pander to their base. Recently in 2011, Steve King (R-IA), one of the most anti-immigrant members of Congress, proposed the Birthright Citizenship Act […]
Opportunity Knocks in Disappointing Decision Vacating Stem Optional Practical Training Rule for Foreign Students
Adversity is the mother of progress Mahatma Gandhi I was at first greatly disappointed to find out that a federal district court judge vacated the 2008 STEM Optional Practical Training rule that extended practical training to F-1 students by an additional 17 months. However, if one reads Washington Alliance of Technology Workers (WashTech) v. DHS […]
BALCA, What Have You Been Up to so Far in 2015?
I’m sure all PERM practitioners would agree that it’s always good (in fact necessary!) to check in with the Board of Alien Labor Certification Appeals (BALCA). One never knows what issues BALCA will comment on next and as we navigate those often treacherous PERM waters, we need all the help we can get! Here are […]
TO AMEND OR NOT TO AMEND: USCIS ISSUES FINAL GUIDANCE ON MATTER OF SIMEIO SOLUTIONS
U.S. Citizenship and Immigration Services (USCIS) issued final guidance on July 21, 2015, instructing when an employer should file an amended or new H-1B petition following Matter of Simeio Solutions, LLC (Simeio). In Simeio, a precedent decision issued on April 9, 2015, the Administrative Appeals Office concluded that changes in the H-1B beneficiary’s places of […]
Update on Indian Three–Year Degrees and Postgraduate Diplomas
The greatest bane for green card aspirants with Indian degrees is the uncertainty that they will be recognized as single source degrees. If an Indian degree is recognized as the single source equivalent of a US four-year bachelor’s degree, it can provide the basis for an I-140 immigrant visa petition under the employment-based second preference […]
History Will Trump Donald
Donald Trump, the billionaire real estate mogul and GOP Presidential candidate, has called Mexican immigrants rapists and drug dealers who are demoralizing the country. His popularity among a certain section in the Republican party has surged as a result, and Trump continues to stand by his demagogy. Trump’s latest foray into immigrant scapegoating for political gain is […]
RESUMPTION OF DIPLOMATIC RELATIONS WITH CUBA: HOW DOES IT IMPACT U.S. IMMIGRATION LAW?
By David A. Isaacson Earlier this month, President Obama announced that the United States would soon be re-establishing diplomatic relations with Cuba. The White House website indicates that the President will be “working to re-establish an embassy in Havana in the next coming months.” U.S. immigration law currently treats natives and citizens of Cuba differently […]
Keeping Tabs On a Non-Citizen’s Eligibility For Health Coverage Under The Affordable Care Act
President Obama’s healthcare law, the Affordable Care Act (ACA), is here to stay especially after the law withstood a challenge in King v. Burwell that allows the federal government to provide subsidies to poor and middle class people to buy health insurance on a nationwide basis. Even non-citizens who are lawfully present may access the health exchange to buy […]
Extension of STEM Optional Practical Training for Foreign Students Under President Obama’s Executive Actions?
Senator Grassley’s latest angry missive to the DHS protests the proposed increase of F-1 student Optional Practical Training (OPT), which was part of President Obama’s executive actions of November 20, 2014. While the Senator’s rant against any beneficial immigration proposal is nothing unusual, it reveals for the first time DHS plans to unveil an OPT […]
PUTTING DISNEY AND H-1B VISAS IN PERSPECTIVE
By Cyrus D. Mehta Most who read Julia Preston’s New York Times article on Disney laying off its qualified programmers to be replaced with Indian programmers on H-1B visas at HCL America are understandably outraged. The fact that Disney axed its employees – an iconic American company that has promoted happiness, gentleness and well being– […]
Fifth Circuit Precedent On Preemption Can Provide Obama With Path to Victory In Texas v. United States
After a split Fifth Circuit panel declined to lift Judge Hanen’s preliminary injunction in Texas v. United States blocking President Obama’s two executive actions that could defer the deportations of an estimated 4.4 million people, the score was 2 in favor of Texas and 0 for President Obama. One of the memorable quotes in the […]
Phantom Visa Statuses
While life is fortunately not always so dull and single dimensional, a rigid immigration system may force you into a straightjacket. Is there any leeway in the US visa system that might enable foreign nationals to pursue interests outside the narrow purpose of their entry without jeopardizing their visa status? One who comes on an […]
ZOMBIE PRECEDENTS, THE SEQUEL: HOW RECENT DECISIONS OF THE SECOND CIRCUIT AND THE BIA POINT TO A BETTER WAY OF DEALING WITH PRECEDENT DECISIONS THAT HAVE BEEN VACATED BY A COURT
In my October 2014 post The Walking Dead: Why Courts of Appeals Should Not Defer to BIA or Attorney General Precedent Decisions that Have Already Been Vacated by Another Court of Appeals, I discussed why such vacated “zombie precedents” should not be given deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 […]
Equating Immigrants to Greenhouse Gases: Is This a Valid Basis for Standing to Sue The Federal Government?
It has lately become fashionable for states that oppose President Obama’s immigration executive actions to sue in federal court on grounds that they are unconstitutional. But in order to get heard in court, a state must demonstrate standing. In the Texas v. United States litigation challenging President Obama’s November 2014 Deferred […]
WHEN AN AMENDED H-1B PETITION IS NOT REQUIRED EVEN AFTER MATTER OF SIMEIO SOLUTIONS
By Cyrus D. Mehta The AAO decision in Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015) has already caused headaches as it will make it more costly and burdensome for employers who hire H-1B workers. An overview of the AAO decision can be found at AAO Firmly Tethers H-1B Workers To The LCA Like A Dog Is […]
A PRELIMINARY ANALYSIS OF THE FIFTH CIRCUIT ORAL ARGUMENT ON THE APPLICATION FOR STAY IN TEXAS V. UNITED STATES
On Friday, April 17, 2015, the U.S. Court of Appeals for the Fifth Circuit heard oral arguments on the motion by the United States for a stay pending appeal of the preliminary injunction issued by Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas in Texas v. U.S., which currently […]
AAO FIRMLY TETHERS H-1B WORKERS TO AN LCA LIKE A DOG IS TO A LEASH
In Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), the AAO affirmed the Service Center Director’s decision and revoked the petition’s approval. Among other things, the Director had concluded that changes in the beneficiary’s places of employment constituted a material change to the terms and conditions of employment as specified in the […]
NEW L-1B VISA GUIDANCE: WILL THERE BE FEWER DENIALS OR MORE OF THE SAME?
By Gary Endelman and Cyrus D. Mehta If there is one visa uniquely suited to advance America’s competitive position in the global marketplace, it is the L-1B intra-company transferee visa for specialized knowledge employees. In an increasingly specialized economy where expertise should trump nationality, the notion of “specialized knowledge” as it affects L-1B adjudications has […]
AMERICA CANNOT BE OPEN FOR BUSINESS THROUGH AN H-1B VISA LOTTERY
By Gary Endelman and Cyrus D. Mehta In America, the best day of the week has always been tomorrow except, it seems, when it comes to immigration. On April 1, 2015, U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions subject to the fiscal year (FY) 2016 cap. U.S. businesses use the H-1B […]
The Real Reason for L-1B Visa Denial Rates Being Higher for Indian Nationals
A study issued by the National Foundation For American Policy confirms what we attorneys who work in the trenches have feared most. It was already been assumed that an L-1B case for an Indian national will face much higher scrutiny, and one was always prepared to put in a lot more work into such a […]
BALCA SAYS ECONOMIC BENEFITS SHOULD BE LISTED IN PERM RECRUITMENT
by Cora-Ann V. Pestaina PERM is an exacting process. We’ve read those words over and over in various Board of Alien Labor Certification Appeals (BALCA) decisions. The Department of Labor (DOL) Certifying Officers (CO) and BALCA continually use those words to justify the most heartless denials; callously brushing aside employers’ good faith efforts in favor of […]
EVERY COUNTRY EXCEPT THE PHILIPPINES: NEW DEVELOPMENTS IN OPT-OUT PROVISION UNDER THE CHILD STATUS PROTECTION ACT
Section 6 of the Child Status Protection Act (CSPA) allows beneficiaries of I-130 petitions that have been converted from the Family Second Preference (F2B) to the Family First Preference (F1), after the parent has naturalized, to opt out and remain in the F2B. The American Immigration Council’s February 2015 advisoryprovides a comprehensive overview of the […]
The AAO on H-1B Visa Credential Evaluations and the ‘Three-For-One” Rule
As immigration practitioners, we file H-1B visa petitions all the time. We know that in each petition, the employer must demonstrate that the position requires a professional in a specialty occupation and that the foreign national – the intended employee – has the required qualifications. It’s become common knowledge that progressively responsible work experience may […]
IGNORING THE ELEPHANT IN THE ROOM: AN INITIAL REACTION TO JUDGE HANEN’S DECISION ENJOINING DAPA AND EXPANDED DACA
On February 16th, as the holiday weekend was coming to an end, Judge Andrew S. Hanen of the U.S. District Court for the Southern District of Texas issued a Memorandum Opinion and Order in the case of State of Texas, et al., v. United States, et al., granting the motion of the plaintiff States for […]
Who is ‘lawfully Present’ Under the Affordable Care Act?
By Gary Endelman and Cyrus D. Mehta Had I been present at the creation, I would have given some useful hints for the better ordering of the universe. Alphonse X the Wise of Castile Many non-citizens will be subject to additional payment to the Internal Revenue Service if they do not maintain “minimum essential […]
MYTH OR REALITY: IS THE DHS TRULY SERIOUS ABOUT VISA MODERNIZATION FOR THE 21ST CENTURY?
By Gary Endelman and Cyrus D. Mehta We cannot teach people. We can only help them discover it within themselves. Galileo Galilei On November 21, 2014, as part of President Obama’s Executive Actions, the President issued a memorandum to modernize and streamline the U.S. immigrant and nonimmigrant visa systemfor the 21st century. The DHS followed up by […]
IN PURSUIT OF “SPECIALIZED KNOWLEDGE”
By Rachel Weissman When one examines the many visa categories through which a foreign national may lawfully enter or remain in our country, certain values are immediately evident. Categories which allow foreign nationals entry through U.S. Citizen or Lawful Permanent Resident relatives bespeak the value our nation places on family unity. Categories which allow foreign […]
SQUARING THE IMMIGRATION CIRCLE: NEW HOPE FOR AN OLD SYSTEM
By Gary Endelman and Cyrus D. Mehta The Immigration Innovation Act of 2015 (S. 153) (“I-Squared” Act) was introduced by Senators Hatch (R-UT), Klobuchar (D-MN), Rubio (R-FL), Coons (D-DE), Flake (R-AZ), and Blumenthal (D-CT). When partisan rancor is the norm in Congress, the I-Squared Act is genuinely bipartisan, and endeavors to provide critical reforms needed […]
THE LABORATORIES OF DEMOCRACY: STATE INITIATIVE AND PROMOTION OF IMMIGRATION REFORM
By Gary Endelman and Cyrus D. Mehta Although states have been experimenting with their own initiatives on immigration, they have been related to mainly punitive enforcement laws, the most notorious being Arizona’s SB 1070. Section 2(B) of the Arizona law, which was upheld by the Supreme Court in Arizona v. USA, requires police officers to determine the immigration […]
A QUICK KNOCKOUT: SHERIFF JOE ARPAIO’S LAWSUIT AGAINST PRESIDENT OBAMA’S EXECUTIVE ACTION DISMISSED FOR LACK OF STANDING
By David A. Isaacson On November 20, 2013, the very same day that President Obama announced a series of executive actions aimed at “Fixing Our Broken Immigration System”, a lawsuit against the newly announced executive actions and against the existing Deferred Action for Childhood Arrivals program (DACA) was filed by Maricopa County Sheriff Joe Arpaio. […]
Top 10 Posts on The Insightful Immigration Blog in 2014
Thank you for reading and supporting The Insightful Immigration Blog. Listed below are the top 10 most viewed blogs in 2014. We will continue to provide insightful commentary on contemporary immigration issues in 2015, and wish all of our supporters and well wishers a very happy New Year! While these are the 10 most viewed […]
LET’S HOPE THAT’S WHAT IT MEANS: DOES EXECUTIVE INITIATIVE REALLY PROVIDE FOR EARLY ADJUSTMENT OF STATUS?
By Gary Endelman and Cyrus D. MehtaMost of the commentary and attention on the recent blizzard of White House and DHS memoranda on immigration reform quite properly fell on executive initiatives to bring the undocumented and their parents in from the shadows. This is what the Administration clearly cares most about for logical political reasons. The White House […]
JUSTICE, JUSTICE SHALL THOU PURSUE: WHY THE LAWSUIT AGAINST THE IMMIGRATION ACCOUNTABILITY EXECUTIVE ACTIONS IS A WASTE OF TIME AND MONEY
By Gary Endelman and Cyrus D. Mehta For I was hungry and you gave me food, I was thirsty and you gave me drink, I was a stranger and you welcomed me Matthew 25:35 A lawsuit was expected as soon as President Obama dramatically announced that his immigration executive actions could impact more than 5 […]
A TIME FOR HONEST TRUTH: A PASSIONATE DEFENSE OF PRESIDENT OBAMA’S EXECUTIVE ORDERS ON IMMIGRATION
You shall neither vex a stranger, nor oppress him: for you were strangers in the land of Egypt. EXODUS 22:21 By Gary Endelman and Cyrus D. Mehta November 20, 2014 was a historic night. The President announced a series of executive actions to expand enforcement at the border, prioritize deporting felons not families, and require […]
CHALLENGES IN FILING H-1B VISA PETITIONS FOR UNCOMMON SPECIALTY OCCUPATIONS
The U.S. Department of Labor (DOL) regularly releases statistics on the H1B – the top occupations and the top employers that file Labor Condition Applications (LCA) for these nonimmigrant worker petitions. As of the Fourth Quarter of FY 2014, six of the top ten certified positions were computer-related occupations. The rest of the positions in […]
THE FATE OF EXECUTIVE ACTION ON IMMIGRATION AFTER THE MIDTERM ELECTIONS
By Gary Endelmanand Cyrus D. MehtaFor courage–not complacency–is our need today–leadership–not salesmanship. And the only valid test of leadership is the ability to lead, and lead vigorously. Senator John F. Kennedy’s speech accepting the 1960 Democratic nomination for President Ever since the Democrats got a drubbing in the midterm elections, questions remain about the fate […]
FOGO DE CHAO v. DHS: A SIGNIFICANT DECISION FOR L-1B SPECIALIZED FOREIGN CHEFS AND BEYOND
The best way for a great nation of immigrants such as America to showcase its richness and diversity is through fine ethnic restaurants. A better appreciation of different cuisines can also foster tolerance and social harmony. Cities and towns become more interesting and thrive if they have restaurants with diverse cuisines. For such restaurants to […]
THE WALKING DEAD: WHY COURTS OF APPEALS SHOULD NOT DEFER TO BIA OR ATTORNEY GENERAL PRECEDENT DECISIONS THAT HAVE ALREADY BEEN VACATED BY ANOTHER COURT OF APPEALS
In my previous post Burning Down the House: The Second and Third Circuits Split on Whether Arson Not Relating to Interstate Commerce is an Aggravated Felony, I raised the issue of whether the Court of Appeals for the Second Circuit in Luna Torres v. Holder, No. 13-2498 (August 20, 2014), should have deferred as it […]
EBOLA AND INADMISSIBILITY
By Cyrus D. Mehta and David A. Isaacson The United States has started Ebola screenings at 5 major airports. Will these screenings really be effective, or are they being implemented by the administration to demonstrate that it is doing something to assuage public fears? The administration has also been criticized by Republican leaders who are pushing to restrict, […]
KERRY V. DIN: AN OPPORTUNITY FOR THE SUPREME COURT TO RECONSIDER THE DOCTRINE OF CONSULAR NON-REVIEWABILITY
By Gary Endelman and Cyrus D. Mehta The dogmas of the quiet past are inadequate to the stormy present. The occasion is piled high with difficulty, and we must rise with the occasion. As our case is new, so we must think anew and act anew. We must disenthrall ourselves, and then we shall save our country. President […]
WOULD THE RELIGIOUS FREEDOM GROUND OF INADMISSIBILITY STILL APPLY TO INDIAN PRIME MINISTER NARENDRA MODI?
Indian Prime Minister Narendra Modi has been welcomed by the Indian diaspora without reservations in the United States. This is his first trip to the United States after his tourist/business was revoked on May 18, 2005 under Section 212(a)(2)(G) of the Immigration and Nationality Act (INA). Under INA Section 212(a)(2)(G), any alien who while serving […]
Impact of EB-5 Retrogression on the Regional Center Loan Model
In light of the retrogression in the employment-based fifth preference (EB-5) for China, which is predicted to occur as early as May 2015, the delays will once again impede much needed investment into the United States, which in turn will also dampen job creation. The negative effects of priority date retrogression in family and employment-based […]
THE FAMILY THAT IS COUNTED TOGETHER STAYS TOGETHER: HOW TO ELIMINATE IMMIGRANT VISA BACKLOGS
By Gary Endelman and Cyrus D. MehtaThere is nothing in the Immigration and Nationality Act that requires each derivative family member to be counted on an individual basis against the worldwide and country caps. That being so, President Obama tomorrow can issue an executive order providing that this long-established practice be stopped. That single stroke of the pen […]
THE POLICY IMPLICATIONS ARISING FROM THE BLANKET RECUSAL ORDER OF AN IMMIGRATION JUDGE
By Parisa Karaahmet and Cyrus D. Mehta All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous Judiciary. Andrew Jackson The recent lawsuit filed against the Department of Justice by an Iranian American immigration judge, raises interesting questions regarding […]
DO WE REALLY HAVE TO WAIT FOR GODOT?: A LEGAL BASIS FOR EARLY FILING OF AN ADJUSTMENT OF STATUS APPLICATION
By Gary Endelman and Cyrus D. Mehta While the Obama administration is working on unveiling administrative fixes to reform the immigration system, we wish to revive one idea, which we discussed in The Tyranny of Priority Dates. We propose that aliens caught in the crushing employment-based (EB) or family-based (FB) backlogs could file an […]
BURNING DOWN THE HOUSE: THE SECOND AND THIRD CIRCUITS SPLIT ON WHETHER ARSON NOT RELATING TO INTERSTATE COMMERCE IS AN AGGRAVATED FELONY
The lyrics of the Talking Heads song “Burning Down the House” do not mention whether the house in question was involved in commerce. According to Jones v. United States, 529 U.S. 848 (2000), however, arson of “an owner-occupied residence not used for any commercial purpose” does not qualify as a violation of 18 U.S.C. §844(i), […]
BALCA EN BANC ON WHETHER THE ADDITIONAL RECRUITMENT STEPS FOR PROFESSIONAL OCCUPATIONS MUST COMPLY WITH 656.17(f)
BALCA (Board of Alien Labor Certification Appeals) has been examining the issue of whether a Certifying Officer (CO) may deny an Application for Permanent Employment Certification (ETA Form 9089) for a professional occupation if one of the additional recruitment steps does not comply with the advertising content requirements in 20 C.F.R. § 656.17(f). In an […]
UNACCOMPANIED CHILD MIGRANTS TO THE UNITED STATES: DROP IN THE BUCKET AND SO MUCH HYPE
The overreaction surrounding 57, 000 unaccompanied children who have come to the United States, with a population of 300 million, is not befitting of a great nation of immigrants. Indeed, some of the reaction against these children has been nothing short of disgraceful. The waiving of the American flag against busloads of dazed and frightened […]
DACA RENEWALS AND THE UPHOLDING OF EXECUTIVE ACTION IN ARIZONA DREAM ACT COALITION V. BREWER
August 15, 2014 marks the two-year anniversary of the implementation of Deferred Action for Childhood Arrivals (DACA) by the Department of Homeland Security (DHS). The policy was announced through a memorandum by then Secretary of Homeland Security Janet Napolitano on June 15, 2012. The Memo directed the heads of Customs and Border Protection (CBP), Citizenship […]
LISTING THE FOREIGN NATIONAL’S QUALIFICATIONS ON THE PERM FORM
One of the most surprising lessons to learn for practitioners who regularly file PERM labor certifications is that past certifications do not always mean future certifications. In other words, just because 10 PERM labor certifications prepared in the same way have all been certified without issue does not mean that the 11th one will also […]
TWO ACES UP PRESIDENT OBAMA’S SLEEVE TO ACHIEVE IMMIGRATION REFORM WITHOUT CONGRESS – NOT COUNTING FAMILY MEMBERS AND PAROLE IN PLACE
By Gary Endelman and Cyrus D. Mehta Nothing more poignantly describes the current humanitarian crisis at the Southwest border than a recent New York Times article describing the journey of Alejandro, 8, who came to the United States on his own with only his birth certificate looking for his parents who are somewhere in San […]
CERTIFICATION OF QUESTIONS OF STATE LAW: A NEW TREND IN SECOND CIRCUIT IMMIGRATION CASES?
By David A. Isaacson In both February and May of this year, the U.S. Court of Appeals for the Second Circuit did something that it appears not to have done in an immigration case in more than fifteen years, and that is rare for other courts to do in such cases as well. In Nguyen v. Holder, […]
Scialabba v. Cuellar de Osorio: Does the Dark Cloud Have a Silver Lining?
By Cyrus D. Mehta and David A. Isaacson On June 9, 2014, the Supreme Court issued its ruling in Scialabba v. Cuellar de Osorio. (The case had previously been known as Mayorkas v. Cuellar de Osorio before Lori Scialabba was appointed as Acting Director of USCIS, replacing former Director Alejandro Mayorkas.) The Court ruled in […]
A WORK IN PROGRESS: MENTAL COMPETENCY ISSUES IN IMMIGRATION PRACTICE
It is already hard enough for an immigration lawyer to represent a foreign national client in an immigration proceeding, given the language and other cultural barriers, along with the fact that immigration law can be extremely complex and unforgiving. On top of this, an immigration lawyer who represents a foreign national client with mental competency […]
Work Authorization for Some H-4 Spouses Liberates Them From the Tyranny of Priority Dates
By Gary Endelman and Cyrus D. Mehta All the forces in the world are not so powerful as an idea whose time has come. Victor Hugo Sometimes it takes a while for a sound idea to gain acceptance. Granting employment authorization to H-4 spouses of H-1B visa holders is a good example. It is in line with the […]
WILL KAZARIAN CHANGE THE 0-1 VISA?
By Gary Endelman and Cyrus D. Mehta The value of the O-1 visa is its flexibility, an adaptive quality that enables it to respond to the different needs of different petitioners. Any formulaic approach that restricts the full and open expression of such subtlety not only reduces the value of the O-1 but undermines its […]
Immigrant Power: Naturalized American Wins Boston Marathon
Today is a day to celebrate. One year after the devastating bombings at the Boston Marathon, Meb Keflezighi won the Boston marathon. Keflezighi is a naturalized American. “I’m blessed to be an American and God bless America and God bless Boston for this special day,” Keflezighi said. Read more here: http://www.star-telegram.com/2014/04/21/5753571/american-meb-keflezighi-wins-boston.html#storylink=cpy This victory resonates much […]
WHY WE SHOULD ALL BE MAD ABOUT THE H-1B VISA CAP
The USCIS announced today, April 9, 2014, that it had received 172,500 H-1B visa petitions for the 65,000 H-1B regular cap and the 20,000 additional cap for graduates with advanced degrees from US universities. This is much more than the 124,000 H-1B visa petitions the USCIS received in 2014. The H-1B cap makes no sense, […]
Obama’s Paradoxical Deportation Policies
President Obama has been called the Deporter in Chief as he has presided over nearly 2 million deportations during his presidency – higher than that of any other President. On the other hand, President Obama has also rolled out some of the most innovative prosecutorial discretion policies, which include granting deferred action to hundreds of […]
The Impact of Obamacare on Green Card Holders Who Reside Outside the United States
By Gary Endelman and Cyrus D. Mehta Unlike many, if not most countries, the long reach of Uncle Sam’s tax laws extend far beyond geographic boundaries to affect citizens and lawful permanent residents (LPR) on an extraterritorial basis. Status not physical presence triggers the tax obligation. The need for LPRs living abroad to comply with […]
HIZAM v. KERRY: IF THIS IS THE RIGHT RESULT UNDER CURRENT LAW, THEN THE LAW NEEDS TO BE CHANGED
Imagine for a moment that, since you were nine, your parents had told you that you were a U.S. citizen. And not just told you: your father filed papers with the U.S. government, and obtained official proof of your citizenship. You grew up in the United States from age nine onward as a U.S. citizen, […]
WAS THE ATTORNEY REALLY INEFFECTIVE IN KOVACS v. UNITED STATES?
In Kovacs v. United States, the United States Court of Appeals for the Second Circuit reversed a lower district court’s decision denying a writ of error coram nobis to vacate a 1999 guilty plea to misprision of felony on the ground that his lawyer rendered ineffective assistance. While the outcome of the Second Circuit’s decision […]
DOL POLICY ON LAID-OFF U.S. WORKERS FOR PERM LABOR CERTIFICATION APPLICATIONS
The filing of a labor certification application is normally the first step when an employer sponsors a foreign national employee for permanent residence. Under the labor certification process, the employer is required to demonstrate that it unsuccessfully conducted a good faith recruitment of the US labor market at the prevailing wage before it can proceed […]
TRANSMISSION OF AMERICAN CITIZENSHIP THROUGH ASSISTED REPRODUCTIVE TECHNOLOGY – AN UPDATE
By Gary Endelman and Cyrus D. Mehta “The journey of a thousand miles begins with a single step” Lao –Tzu, Chinese philosopher (604 BC-531 BC) Ed. note – This article updates information from a previous piece, “Answer Man: Assisted Reproductive Technology and U.S. Immigration Law.” The Department of State has announced a major and most welcome […]
WHY WAS MY PERM SELECTED FOR AUDIT AND/OR SUPERVISED RECRUITMENT? #thatawfulmoment
Cora-Ann V. Pestaina The filing of a labor certification is often the first step when an employer sponsors a foreign national for permanent residency. The purpose of the labor certification process, known today as PERM, is to ensure that the employer has tested the US labor market for qualified and available US workers at the […]
GOP PRINCIPLES ON IMMIGRATION – A PATH TO LEGAL STATUS
By Gary Endelman and Cyrus D. Mehta The Congressional Republicans finally issued a brief document outlining its principles on immigration on January 30, 2014. As anticipated, and unlike the Senate bill S. 744, the GOP proposes a path to legal status with no special pathway to citizenship. The document states: There will be no special path to citizenship […]
The Decline of Deference: BALCA Does Not Speak for the DOL
By Gary Endelman and Cyrus D. Mehta In the ongoing litigation over the authority of the Department of Labor (DOL) to promulgate H-2B prevailing wage methodology in the Third Circuit, Louisiana Forestry Ass’n v. Secretary of Labor, No. 12-4030, the DOL wrote a letter stating that the Board of Alien Labor Certification Appeals’ decision in Island Holdings LLC, 2013-PWD-00002 (BALCA 3, […]
USCIS LIBERALIZES CRITERIA FOR DETERMINING HABITUAL RESIDENCE IN SOME HAGUE CONVENTION ADOPTION CASES: A SMALL STEP, BUT AN IMPORTANT ONE
By David A. Isaacson Under the Immigration and Nationality Act (“INA”), there are three ways that adopted children can qualify as the children of a U.S. citizen parent for purposes of acquiring lawful permanent resident status, and generally derivative U.S. citizen status, through that adoptive parent. Section 101(b)(1)(E) of the INA, perhaps the most familiar, […]
Highlights of Good Moral Character in Naturalization
By Myriam Jaidi In order to qualify for naturalization, an applicant must demonstrate that she is or was a person of good moral character (GMC) throughout the relevant statutory period and through the time she takes the oath of allegiance. See Immigration and Nationality Act (INA) § 101(f); Title 8, Code of Federal Regulations (CFR) § […]
TOP 10 POSTS ON THE INSIGHTFUL IMMIGRATION BLOG IN 2013
Thank you for reading and supporting The Insightful Immigration Blog. Listed below are the top 10 most viewed blogs in 2013. We will continue to provide insightful commentary on contemporary immigration issues in 2014, and wish all of our supporters and well wishers a very happy New Year! While these are the 10 most viewed blogs, each blog is a […]
One Step Forward, Two Steps Backwards: Immigration Benefits for Same Sex and Domestic Partners in India
By Cyrus D. Mehta and Ramya Mahesh The question of immigration benefits to same sex couples is still a far cry in India. India not only disallows same sex marriages, it also currently criminalizes relationships between same sex partners, terming them as unnatural. Section 377[i] of the Indian Penal Code (“IPC”), an archaic law, was introduced in […]
Please Help Me: I Have Just Found Out That My I-94 Has Expired!
Mark Thomas (not the actual name of any client, of course) is suddenly living a nightmare. He has just discovered that he has remained in the U.S. well after the expiration date of the Form I-94 issued to him the last time he entered the U.S. in H-1B status. His employer has informed him that […]
I PLEDGE ALLEGIANCE: THE NATURALIZATION OATH AND DUAL CITIZENSHIP
By Gary Endelman and Cyrus D. Mehta The oath ceremony is often one of the most significant and profound in an immigrant’s journey towards American citizenship. It signifies the end of the immigrant experience and is the final threshold before one’s acceptance as a citizen. It is also a happy moment, and the ceremony is generally accompanied by […]
FREE THE CHILDREN: PARENT’S ABANDONMENT OF GREEN CARD SHOULD NOT BE IMPUTED ON CHILD
There are a number of unfortunate cases where the parent abandons lawful permanent resident (LPR) status by staying outside the United States resulting in the child’s LPR status also being abandoned. Should the child’s LPR status be deemed abandoned even if the child had no intention to abandon that status? The answer, unfortunately, is “Yes,” […]
Processing of I-130 Petitions Speeds Up For An Expanding Group of Us Citizens
In Delays for Overseas Spouses of US Citizens Seeking Green Cards I reported about the slowdown in the processing of I-130 petitions filed by US citizens on behalf of immediate relatives, such as spouses, minor children and parents, who are outside the United States. As a result of widespread concern about the delays, the USCIS seems to […]
PAROLE IN PLACE: THE SECRET SAUCE FOR ADMINISTRATIVE IMMIGRATION REFORM
By Gary Endelman and Cyrus D. Mehta On November 15, 2013, the USCIS issued a Policy Memorandum formalizing the granting of parole to persons who are present in the United States without admission or parole and who are spouses, children and parents of US citizens serving in the US military or who previously served in […]
The Ambiguous B-1 Visa: Lessons Learned From the Infosys Settlement
Infosys is one of India’s most storied IT companies with a roster of impressive clients in the US, including named Wall Street Banks, Silicon Valley companies, retail chains, insurance companies and manufacturers. With a footprint all over the world and known for its integrity and probity, it thus came as a surprise that the United […]
Framing a New Office L with Help From the Office of Inspector General
By Myriam Jaidi An individual seeking to transfer to the United States as a manager or executive (specialized knowledge employees will not be addressed in this blog) comes to you for help. She may be interested in opening a new office, or may be transferred to an existing company that has been operating for more than […]
Matter of Douglas: The BIA Confirms That Brand X Can Sometimes be a Force For Good
On October 17, 2013, its first day back to normal operations after the end of the recent federal government shutdown, the Board of Immigration Appeals (BIA) issued a precedential opinion, Matter of Douglas, 26 I&N Dec. 197 (BIA 2013). At first glance, Matter of Douglas is about an interesting but obscure aspect of a section […]
DOS Releases Info on Cut-Off Date Calculations; November 2013 Visa Bulletin Shown Movement in China ‘Other Workers’ Category
The Department of State (DOS) recently released information about how it calculates visa availability cut-off dates. Separately, the Visa Office has released the latest November 2013 Visa Bulletin, which explains additional points and notes forward movement in the China employment-based third preference “Other Workers” category. Visa availability calculations. DOS explained that each month, its Visa […]
DELAYS FOR OVERSEAS SPOUSES OF US CITIZENS SEEKING GREEN CARDS
By Cyrus D. Mehta One of the most fundamental benefits under immigration law is for the ability of a US citizen to quickly sponsor a foreign national spouse for a green card. While the granting of immigration benefits is contentious in today’s political environment, no one has disputed, even immigration restrictionists, that a US citizen cannot […]
BALCA ON THE HOME OFFICE OPTION
It’s time for another lesson, courtesy of BALCA (Board of Alien Labor Certification Appeals). In a November 2010 blog entitled PERM AND THE ROVING EMPLOYEE I discussed different types of roving employees and the existing BALCA or DOL (Department of Labor) guidance on how recruitment for these types of positions ought to be conducted. I […]
CAN AN UNDOCUMENTED LAWYER PRACTICE IMMIGRATION LAW?
All eyes are focused on whether the California Supreme Court will grant an undocumented lawyer a law license in the case of Sergio Garcia. If an undocumented lawyer like Garcia is granted a license, what would happen if he chooses to practice immigration law? In the past, undocumented lawyers who practiced immigration law have been […]
AMERICA’S ROLE IN SYRIA AFTER THE CHEMICAL WEAPONS ATTACK AND IMMIGRATION REFORM
By Gary Endelman and Cyrus D. Mehta After hearing about the horrific killing of civilians in Syria in a chemical weapon attack, President Obama stated: “We have concluded that the Syrian government in fact carried these out. And if that’s so, then there need to be international consequences.” The United States may resort to this […]
Nearly 12 Years After 9/11 Applicants Perceived as Muslims Still Targeted Under a Secret Immigration Program
After the 9/11 attacks, anything and everything concerning immigration has been viewed through the prism of national security. Even a straightforward bona fide marriage between a US citizen and foreign national spouse will only be approved after every aspect of the spouse’s information is extensively checked against humongous and error-prone national data bases. In the […]
The Lazarus Effect: How Comprehensive Immigration Reform Can Survive The House GOP and Come Back to Life
By Gary Endelmanand Cyrus D. Mehta “The only true test of leadership is the ability to lead and lead vigorously” President John F. Kennedy The Republican National Committee passed a resolution on Friday calling on Congress to pass immigration reform by the end of the year. Unlike the Senate Bill, s. 744, the Border, Security, […]
How California’s AB 1159 Will Hurt Immigration Lawyers and their Clients: A New York Immigration Lawyer’s Perspective
The California State Legislature is about to pass a bill to protect its residents from immigration fraud. The bill, which if passed will take effect on January 1, 2014, is also supported by the State Bar of California. While a bill to protect people against immigration fraud is always laudable, California’s Immigration Reform Act, AB […]
Waiving Goodbye to Unappealable Decisions: Indirect AAO Jurisdiction, or Why Having Your Appeal Dismissed Can Sometimes be a Good Thing
The USCIS Administrative Appeals Office, or AAO, has administrative appellate jurisdiction over a wide variety of USCIS decisions that are not appealable to the Board of Immigration Appeals. This jurisdiction is primarily set forth in a regulatory list that has been absent from the Code of Federal Regulations since 2003, but was incorporated by reference […]
Hey Boss, I Need Premium Processing: Can An H-1B Employee Pay The Premium Processing Fee?
By Cyrus D. Mehta and Myriam Jaidi An employer is in the process of preparing an H-1B extension for an employee. The employer is preparing the petition several months before the expiration of the employee’s current H-1B status, and therefore has determined to file without premium processing. Moreover, pursuant to 8 CFR § 274a.12(b)(20), the […]
BAD TIMING ALBERTO: BIA HAS CONFIRMED THAT SAME SEX SPOUSES CAN GET IMMIGRATION BENEFITS AFTER UNITED STATES V. WINDSOR
By Gary Endelman and Cyrus D. Mehta Former Attorney General Alberto Gonzales, along with an immigration attorney, David Strange, published an Op Ed in the New York Times entitled What the Court Didn’t Say on July 17, 2013. They muddy the waters by contending that despite the recent Supreme Court decision in United States v. Windsor, 133 S. […]
How Cyrus’ View of Religious Toleration May Have Inspired the American Constitution
By Gary Endelman and Cyrus D. Mehta The display of the Cyrus Cylinder in museums across America has sparked interest on whether Cyrus, who founded the Persian Empire in 549 BC, may have influenced the U.S. Constitution.1 Our essay explores the extent to which Cyrus may have influenced one of the Founding Fathers, Thomas Jefferson, who in turn […]
HOW EXTRAORDINARY DOES ONE NEED TO BE TO QUALIFY AS A PERSON OF EXTRAORDINARY ABILITY?
When Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), was first decided, it was received with much jubilation as it was thought that the standards for establishing extraordinary ability would be more straightforward and streamlined. Kazarian essentially holds that a petitioner claiming extraordinary ability need not submit extraordinary evidence to prove that he or […]
HOW LONG IS A LAWYER OBLIGATED TO CORRECT FALSE EVIDENCE THAT WAS SUBMITTED ON BEHALF OF THE CLIENT?
One of the cardinal ethical rules governing a lawyer’s conduct is the prohibition, with some exception, from revealing a client’s confidential information. This information, which must be kept confidential, is normally gained during the course of the representation of the client. Still, at the same time, a lawyer is also prohibited from offering or using […]
Meet Our New Friend: Who Is An “H-1B Skilled Worker Dependent Employer” In Senate Immigration Bill, S. 744?
By Gary Endelman and Cyrus D. Mehta Since we last wrote about the H-1B visa provisions in Senate Immigration Bill, S. 744, Workable Or Unworkable? The H-1B And L-1 Visa Provisions In BSEOIMA, S. 744, there have been several changes to this portion of the bill. The amendment proposed by Senator Hatch (after reaching a compromise with Senator […]
Say What? Did BALCA Just Say That Healthamerica Has Been Overruled?
I hang onto every word of the Board of Alien Labor Certification Appeals (BALCA). It’s the only way to make it through the preparation and filing of labor certification applications under Program Electronic Review Management (PERM) as not knowing what BALCA has said on a particular issue could be fatal to any PERM. This recent […]
AN IMMIGRATION ATTORNEY’S RESPONSE TO STATEMENT OF USCIS UNION PRESIDENT OPPOSING SENATE IMMIGRATION BILL, S. 744
Kenneth Palinkas, President of the National Citizenship and Immigration Services Council, the union representing 12,000 United States Citizenship and Immigration Services (USCIS) adjudications officers and staff, issued a statement joining a vocal minority of other government union bosses, most notably Chris Crane of the ICE employee union, opposing the Senate immigration bill, S. 744. Mr. […]
Do We Still Need PERM Labor Certification? An Analysis of the Merits-Based Points System in BSEOIMA
By Gary Endelman and Cyrus D. Mehta We continue to analyze the provisions of the Border Security, Economic Opportunity and Immigration Modernization Act of 2013, s. 744 (BSEOIMA), which seeks to bring about dramatic changes to the existing immigration system in the United States. One of the most transformative changes that BSEOIMA will bring, if enacted, is a […]
Workable or Unworkable? The H-1B and L-1 Visa Provisions in BSEOIMA, S. 744
By Gary Endelman and Cyrus D. Mehta The Senate Immigration Bill, S. 744, entitled the Border Security, Economic Opportunity, and Immigration Modernization Act (BSEOIMA) has been applauded by immigration advocates for bringing much needed changes to the broken immigration system. Although the bill does not have everything that everyone wants, S. 744 offers a pathway to legalization for […]
THE SECOND CIRCUIT AMENDS SHABAJ v. HOLDER: WHAT HAPPENED TO FOOTNOTE 4? HAS THE POTENTIAL AVAILABILITY OF JUDICIAL REVIEW OF USCIS DECISIONS BEEN ALTERED?
By David A. Isaacson On April 25, 2013, the U.S. Court of Appeals for the Second Circuit released an amended opinion in Shabaj v. Holder, docket number 12-703. The prior opinion in Shabaj was the subject of a previous post on this blog. To summarize, Shabaj held that a claimed error by the USCIS Administrative Appeals […]
Some Preliminary Observations Regarding the Proposed “Border Security, Economic Opportunity, and Immigration Modernization Act”
As most readers of this blog are likely aware, earlier this week the U.S. Senate’s “Gang of 8” – that is, Senators Charles Schumer (D-NY), John McCain (R-AZ), Richard Durbin (D-IL), Lindsey Graham (R-SC), Robert Menendez (D-NJ), Marco Rubio (R-FL), Michael Bennet (D-CO), and Jeff Flake (R-AZ) – introduced a proposed comprehensive immigration reform bill. […]
212(k) WAIVER VICTORY TEACHES THAT IT’S NOT WORTH MANIPULATING THE IMMIGRATION SYSTEM TO SETTLE PERSONAL DISPUTES
When two parties are in a personal dispute, and one of them is not a US citizen, it is often tempting to use the immigration system to seek a remedy. For instance, the desire to see someone you are feuding with get deported from the United States may be tempting. However, the immigration system may […]
THE MANY PROBLEMS SURROUNDING THE H-1B VISA CAP
Everyone was rushing to file H-1B visa petitions between the April 1-5 window as there was a sinking feeling that the USCIS would receive more than the 65,000 cases allocated under the H-1B annual cap as well as more than the 20,000 cases under the additional Master’s cap. Just as we were emerging from the […]
H1B DITTY
By: Myriam Jaidi [An LLMJ creation set loosely to an old “gangsta” tune. A thank you to Elizabeta Markuci for a lyrical turn] Here’s a little somethin’ bout the H-1BHavin’ so much trouble as a legit visa categoryGrass-ley would like to sayIt’s a crazy visa status, should be thrown away Since it was established, so much […]
The Way We Count
By Gary Endelman and Cyrus D. Mehta “Perfect numbers like perfect men are very rare.” Rene Descartes Now is the time to change the way America counts green card numbers. Congress is presently debating comprehensive immigration reform and grand events are likely to reshape the legal landscape. Yet, at such a seminal moment we ought not lose sight […]
The Status of Internet Proxy Marriages Under Immigration Law
A recent article in the New York Times entitled You May Now Kiss the Computer Screen caught my interest. The article highlights a rise in marriages over the internet, especially through a video chat program Skype, among immigrant communities. “The practice is so new that some immigration authorities said they were unaware it was happening […]
Wanted: Great STEM and Tandoori Chicken
By Gary Endelman and Cyrus D. Mehta There is no doubt that a Startup Visa would unleash amazing entrepreneurial activity in the United States, which would result in many jobs. The latest version of the Startup Visa Act 3.0 would provide 75,000 visas to individual who are already here in F-1 and H-1B status if […]
THE BLOCKING OF AN ENTREPRENEUR: A BROKEN IMMIGRATION SYSTEM AT WORK
3D printing technology is about to revolutionize the way we understand manufacturing, and the country that takes the lead in this new technology will be the winner ofwhat The Economist magazine has called the third industrial revolution. A state of the art hearing aid or a high tech component for a military jet can be […]
A HOUSE OF MANY ROOMS: THE DIFFERENT PATHS TO CITIZENSHIP
By Gary Endelman and Cyrus D. Mehta It is so refreshingly wonderful to think that what was once unthinkable could become a possibility – a bill to comprehensively reform our broken immigration system. Even the House Judiciary Committee held a hearing last Tuesday, where there was a willingness to legalize the 10+ million undocumented population, […]
WHEN IS A TWEET AN ATTORNEY ADVERTISEMENT?
Immigration attorneys have naturally adapted to the internet faster than attorneys in other practice areas. They were the among the first to set up their own web sites, and with the advent of social media have also happily adapted to Facebook, Twitter, Linkedin and other social networks. Using social media helps an immigration attorney to […]
SHABAJ V. HOLDER: HAS THE COURT OF APPEALS FOR THE SECOND CIRCUIT SPLIT WITH THE THIRD CIRCUIT ON JUDICIAL REVIEW OF CERTAIN USCIS APPLICATION DENIALS? WHAT SORT OF JUDICIAL REVIEW OF USCIS LEGAL ERRORS REMAINS AVAILABLE?
On January 15, 2013, the Court of Appeals for the Second Circuit issued a precedential decision in the case of Shabaj v. Holder, No. 12-703. Paulin Shabaj, the plaintiff in the case, had come to the United States in November 2000 with a false Italian passport and sought asylum. His asylum application was ultimately denied, […]
HOW VIABLE IS THE POINTS SYSTEM?
By Felicia Zeidman Editor’s Note: While we will soon be deliberating about the merits of various proposals to comprehensively reform the US immigration system, the Canadian-based points system may be proposed as it was part of earlier comprehensive immigration reform proposals, especially the 2007 compromise Senate bill. Under existing US immigration law, an employer generally […]
THE IRRELEVANCY OF ANTI-IMMIGRATION MOVEMENTS
America has been founded on the noble notion of welcoming immigrants. Even the American Declaration of Independence cites this as one of the failings of England’s monarch King George III, and thus a justification for the revolution: “He has endeavored to prevent the Population of these States; for the purpose obstructing the Laws of Naturalization […]
USCIS Issues Provisional Waiver Final Rule: Beginning in March, Some Waivers of the 3- or 10-Year Bars May Be Sought Before Departing the United States
One year ago, a previous post on this blog by Cyrus Mehta and this author discussed the issuance by USCIS of a proposed rule allowing certain applicants for a waiver of the 3- or 10-year bars to obtain such a waiver on a provisional basis before departing from the United States. It has been a […]
Top 10 Posts on The Insightful Immigration Blog In 2012
Thank you for reading and supporting The Insightful Immigration Blog. Listed below are the top 10 most viewed blogs in 2012. We will continue to provide insightful commentary on contemporary immigration issues in 2013, and wish all of our supporters and well wishers a very happy New Year! While these are the 10 most viewed blogs, each blog is a […]
Can Piers Morgan Be Deported for His Comments on Gun Control?
At the time of writing this blog, more than 48,000 people have signed a petition on the White House website asking that CNN talk show host be deported for his comments on gun control in the wake of the mass shootings at Sandy Hook school. According to one of the two petitions, “We demand that […]
RESUME REVIEW IN THE PERM PROCESS
Under the Immigration and Nationality Act, the Department of Labor (DOL) has a statutory responsibility to ensure that no foreign worker (or “alien”) is admitted for permanent residence based upon an offer of employment absent a finding that there are not sufficient U.S. workers who are able, willing, qualified and available for the work to […]
USCIS and the Lack of Procedures for Surviving Relative Petitions Under INA § 204(l)
By: Myriam Jaidi Congress passed a noble law in 2009 to protect surviving family members who were the derivatives of employment-based and other categories of petitions and applications. Specifically, the law provides that certain categories of individuals could continue to have petitions, adjustment applications and related applications adjudicated so long as they were residing (not […]
The Sweet Smell of Success: H-1B Visas for Entrepreneurs
By Gary Endelman and Cyrus D. Mehta The title of this blog may seem odd as the H-1B visa is usually associated with an employee who earns a regular wage at the prevailing rate. Yet, entrepreneurs may benefit from the H-1B. Since the USCIS recently set up an Entrepreneur Pathways Portal inviting entrepreneurs to use […]
New Portal Welcomes Entrepreneurs to the USA: But Will this Change the Culture of “No” at USCIS
Consistent with its earlier policy of welcoming entrepreneurs, the USCIS launched a new portal called Entrepreneur Pathways providing resources on how foreign entrepreneurs can use existing visas to launch their innovative startups in the US. The portal is quite good, and it is hoped that USCIS officials retreat from their culture of “No” and process […]
US MISSION IN INDIA EXPANDS INTERVIEW WAIVER PROGRAM: DOES THIS BODE WELL FOR H-1B AND L VISA APPLICANTS?
By Cyrus D. Mehta The U.S. Mission in India has announced expansion of the Interview Waiver Program (IWP), launched in March 2012, which allows qualified individuals to apply for additional classes of visas without being interviewed in person by a U.S. consular officer. The U.S. embassy in New Delhi expects this expansion to affect thousands […]
WHERE DO WE GO FROM HERE: THE NEW FACE OF COMPREHENSIVE IMMIGRATION REFORM
By Gary Endelman and Cyrus D. Mehta It may have taken the Bolsheviks 10 days to shake the world but the presidential election last week did it in one. The political calculus on comprehensive immigration reform changed utterly and likely forever. Hispanic voters accounted for 10% of voters on November 6th, reaching double-digits for the […]
Obama Wins and so Does Immigration Reform
By Gary Endelman and Cyrus D. Mehta Since President Obama’s decisive re-election victory, there has been a growing realization, mainly among Republicans, that the party will continue to be decimated in future elections if it does not take action on reforming the broken immigration system. It is clear that Romney’s comments on self-deportation, along with […]
Issues Ripe for Rulemaking: Some Modest Proposals
By Gary Endelman and Cyrus D. Mehta Immigration lawyers are used to interpreting complex immigration statutes in the absence of regulations. Indeed, there has evolved a “common law” within immigration practice based on governmental guidance memos and even letters written by government officials in response to an attorney’s query. Immigration lawyers often refer to a […]
YES HE CAN: A REPLY TO PROFESSORS DELAHUNTY AND YOO
By Gary Endelman and Cyrus Mehta Article II, Sec. 3 of the Constitution provides that the President “shall take Care that the laws be faithfully executed.” That being so, can President Obama grant deferred action for childhood arrivals (DACA) whose presence here represents a violation of US law? Professors Robert Delahunty and John Yoo offer […]
PERM Audits Request Sworn Declarations Regarding Improper Payments
Recently, the Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) published its factsheet with statistics on the PERM program for FY2012 covering the period from October 2011 to September 16, 2012. Of the 67,400 PERM applications received during that period, 45% were audited for review. While audit notifications discussing the employer’s use of […]
Why the Average Traveler Can’t Be Expected to Recognize a Crime Involving Moral Turpitude
By Myriam Jaidi In a fascinating recent decision (courtesy of attorney Stephen Heller), the Office of Administrative Appeals determined that a visa waiver applicant is not expected to know the meaning of a “crime involving moral turpitude” (“CIMT”), with the welcome recognition that “the term ‘moral turpitude’ is not in common usage and it is […]
THE TAXMAN COMETH: WHEN TAKING A FOREIGN EARNED INCOME EXCLUSION ON YOUR TAX RETURN CAN HURT YOUR ABILITY TO NATURALIZE
By Gary Endelman and Cyrus D. Mehta Maintaining continuity of residence is paramount if one wants to naturalize and become a US citizen. For an in depth discussion, we refer you to our prior blog Naturalization In A Flat World and Gary Endelman’s recent article, The Enigma of Disruption: What Continuity of Residence In Naturalization […]
STEM GREEN CARD V. GREEN CARD LOTTERY
By Cyrus D. Mehta There is a raging debate presently in the halls of Congress. Almost all of our elected representatives, no matter whether they are Democrat or Republican, are in favor of providing an easier pathway for foreign students who have graduated with an advanced degree from a US university in a STEM (Science, […]
AFTER THE OCTOBER 2012 VISA BULLETIN, A DECADE LONG WAIT UNDER THE FAMILY FOURTH PREFERENCE IS A PIECE OF CAKE
By Cyrus D. Mehta I write this blog with some sarcasm. The family fourth preference (F-4), which allows US citizens to sponsor their siblings for a green card, is horrendously backlogged. It takes over 10 years for a brother or sister of a US citizen to obtain a green card. If the sibling was born […]
OPPOSITION TO CORRUPTION AS A POLITICAL OPINION SUPPORTING A GRANT OF ASYLUM: RUQIANG YU V. HOLDER AND ITS PREDECESSORS
By David A. Isaacson On September 7, 2012, the Court of Appeals for the Second Circuit issued a precedential opinion in Ruqiang Yu v. Holder, No. 11-2546-ag, reaffirming that opposition to corruption may under some circumstances qualify as a political opinion upon which a grant of asylum can be based under U.S. immigration law. According […]
THEY STILL HAVE THEIR DREAM: LAWSUIT AGAINST DREAMERS WILL GO NOWHERE
By Gary Endelman and Cyrus D. Mehta “The arc of the moral universe is long but it bends towards justice.” Dr. Martin Luther King As if the non-recognition by the governors of Arizona, Nebraska, Texas and Mississippi of Obama’s Consideration of Deferred Action for Childhood Arrivals (DACA) program was not enough, a lawsuit filed by […]
NIGHTMARE IN ARIZONA: GOVERNOR BREWER’S NONSENSICAL AND MEAN-SPIRITED EXECUTIVE ORDER AGAINST DREAMERS
On August 15, 2012, the day that the Consideration of Deferred Action For Childhood Arrivals programs (DACA) took effect, thousands of young undocumented people lined up at legal assistance clinics with hope and joy. They got to know whether they were eligible to file an application under DACA, and by filing an application, their deportation […]
THROUGH THE LOOKING GLASS: ADVENTURES WITH ARRABALLY AND YERRABELLY IN IMMIGRATION LAND
By Gary Endelman and Cyrus D. Mehta “Why, sometimes I’ve believed as many as six impossible things before breakfast.” ― Lewis Carroll, Alice in Wonderland Arrabally and Yerrabelly are not characters in a children’s fantasy story book. They were the respondents in a decision of the Board of Immigration Appeals styled Matter of Arrabally and Yerrabelly, 25 I&N […]
Crime Without Punishment: Have You Ever Committed A Crime For Which You Have Not Been Arrested?
Advising a client on how to answer Kafkaesque questions on immigration forms regarding potential past criminality can pose a dilemma for the ethically-minded immigration attorney and the processes raises a multitude of complex issues cutting across various areas of law. For example, the Form N-400, Application for Naturalization, asks broadly “Have you ever committed a […]
The H-1B Process Gets Even Harder: DOL Proposes Dramatic Changes to the LCA Form
I still think longingly of the days when certification of a Labor Condition Application (“LCA”) could be obtained within seconds. Three years ago, the Department of Labor (DOL) mandated that all LCA filings must be filed through its iCERT portal (http://icert.doleta.gov/) and that each application form, also changed to request additional, new information, would be […]
HR 3012: A Good Bill Saddled With a Bad Amendment
By Myriam Jaidi As Cyrus Mehta noted in his December 7, 2011 blogpost regarding H.R. 3012, “How Fair is the Fairness for High-Skilled Immigrants Act?”, although not a perfect bill, H.R. 3012 passed the House in November 2011 by a landslide. The bill, as passed by the House, would eliminate the employment-based per country cap […]
The Ties that Bind: Can Family Unity Co-Exist with Maintenance of Lawful Permanent Resident Status?
By Gary Endelman and Cyrus D. Mehta While many covet lawful permanent resident (LPR) status in the US, popularly known as the green card, since it allows them to freely live and work in the US, it can also become a burden if one remains absent from the US, which can result in the loss […]
WHAT THE THIRD CIRCUIT MISSED IN VERA, PART TWO: A PRACTICAL EXAMPLE OF WHY ACCEPTING UNREFUTED BUT UNSUPPORTED GOVERNMENT ASSERTIONS IS PROBLEMATIC
In a previous post on this blog, “The Prejudice Caused By Summary Removal After Visa Waiver Admission: What the Third Circuit Missed in Vera and Bradley”, I discussed the case of Vera v. Attorney General of the U.S., in which the U.S. Court of Appeals for the Third Circuit held that a woman who had […]
Dreaming in Arizona: Can Prosecutorial Discretion Co-Exist With Show Me Your Papers?
By Gary Endelman and Cyrus D. Mehta In our blog, From Madison to Morton: Can Prosecutorial Discretion Trump State Action In USA v. Arizona?, we speculated whether the federal government’s ability to decide not to remove certain non-citizens from the US would be its trump card in Arizona v. USA, 567 U.S ___ (2012). A […]
Deferred Action: The Next Generation
By Gary Endelman and Cyrus D. Mehta President Obama at last came through with a bold memorandum on June 15, 2012, executed by DHS Secretary Janet Napolitano, granting deferred action to undocumented people. The Administration has always had authority to grant deferred action, which is a discretionary act not to prosecute or to deport a […]
Matter Of O. Vazquez: BIA Issues Precedential Decision on “Sought to Acquire” Under the Child Status Protection Act
In Matter of O. Vasquez, 25 I&N Dec. 817 (BIA 2012), the first precedential decision on this issue, the Board of Immigration Appeals has clarified the “sought to acquire” provision under the Child Status Protection Act (CSPA). The CSPA artificially freezes the age of a child below 21 years of age so that he or […]
“CULTURALLY UNIQUE” DEFINITION UNDER P-3 VISA CAN INCLUDE HYBRID OR FUSION ART FORMS OF MORE THAN ONE CULTURE OR REGION
By Cyrus D. Mehta U.S. Citizenship and Immigration Services’ (USCIS) Administrative Appeals Office (AAO) issued a binding precedent decision in Matter of Skirball Cultural Center, 25 I&N Dec. 799 (AAO 2012) addressing the term “culturally unique” and its significance in adjudicating P-3 visa petitions for performing artists and entertainers. This decision is significant in light […]
Halt America’s Decline by Welcoming Skilled and Entrepreneurial Immigrants
In recent times, there has been a confluence of diverse events, if stitched together, make immigration reform a virtual no brainer even if we have yet to come out of the economic doldrums. Indeed, immigration reform in favor of skilled immigration, even if it is piecemeal and not comprehensive, can stimulate our economy in unimaginable […]
Assault On Battered Immigrants: HR 4970 Undoes VAWA Protections and Risks Lives
By Myriam Jaidi “This will get people killed,” my colleague and I agreed while we reviewed the “Immigration Provisions” of HR 4970, the bill introduced in the House in April, ostensibly to “reauthorize” the Violence Against Women Act (VAWA) originally promulgated in 1994 and reauthorized and strengthened since its original passing. The Immigration Provisions found […]
Hidden Treasure: How States that Want Immigrants Can Take Advantage of Arizona v. US
By Gary Endelman and Cyrus D. Mehta Anyone in favor of federal preemption of state immigration laws, especially Arizona’s SB 1070, was disappointed with the way the oral arguments before the Supreme Court justices on April 25, 2012 turned out in Arizona v. US. It appears that the core provision of SB 1070, Section 2(B), […]
From Madison to Morton: Can Prosecutorial Discretion Trump State Action in Arizona v. Usa?
By Gary Endelman and Cyrus Mehta Warning against the danger of faction in his famous Federalist Paper No. 10, James Madison sought to moderate the impact through the diffusion of power amongst the three branches of the federal government as well as between state and federal authority. This coming Wednesday, the United States Supreme Court […]
Justice Ginsburg’s Observation on Piepowder Courts in Vartelas v. Holder
By Gary Endelman and Cyrus D. Mehta In the recent landmark Supreme Court decision of Vartelas v. Holder, No. 10-1211, 565 U.S. ___, U.S. LEXIS 2540 (March 28, 2012), which partially restores the rights of lawful permanent residents (LPR) with pre-1996 convictions, Justice Ginsburg, who wrote the opinion for the majority, made an interesting reference […]
FLEUTI LIVES! THE RESTORATION OF A CONSTITUTIONAL DECISION
By Gary Endelman and Cyrus D. Mehta There was a time when a lawful permanent resident (LPR) or green card holder had more rights than today. Prior to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), if an LPR with a criminal conviction travelled abroad, he or she was not found inadmissible, or […]
BALCA CLARIFIES DOL’S POSITION ON PROOF OF PUBLICATION OF THE SWA JOB ORDER AND ADS PLACED BY PRIVATE EMPLOYMENT FIRMS UNDER PERM
As usual, BALCA (Board of Alien Labor Certification Appeals) decisions are very important for practitioners as they offer crucial insights into how to avoid some of the pitfalls in preparing and filing a labor certification application under Program Electronic Review Management (PERM) or into what arguments can be made in response to the unfortunate receipt […]
Federal Court Reverses Unreasonable H-1B Denial For Market Research Analyst
Employers who file perfectly bonafide H-1B petitions for certain occupations face unreasonable denials from the USCIS. One H-1B occupation that is especially vulnerable to a denial is Market Research Analyst. The USCIS’s rationale for the denial is that the occupation must require a degree in the actual position and not in closely related fields. Thus, even […]
WILL THE REVISED USCIS Q&A ON ESTABLSHING THE EMPLOYER-EMPLOYEE RELATIONSHIP IN H-1B PETITIONS SAVE STAFFING COMPANIES?
By Gary Endelman and Cyrus D. Mehta Since the issuance of the January 8, 2010 guidance memorandum by Donald Neufeld, concerning the employer-employee relationship in H-1B petitions (Neufeld Memo), especially when an employer places an H-1B worker at a third party client site, workers at IT consulting and staffing companies have been the most adversely […]
THE PREJUDICE CAUSED BY SUMMARY REMOVAL AFTER VISA WAIVER ADMISSION: WHAT THE THIRD CIRCUIT MISSED IN VERA AND BRADLEY
In its decision earlier this month in the case of Vera v. Attorney General of the U.S., the U.S. Court of Appeals for the Third Circuit held that a woman who had entered the United States at the age of 12 under the Visa Waiver Program (VWP) could be removed without a hearing before an […]
Stop the Assault on Employment Immigration to the USA
At the behest of Senator Grassley (R-IA), the DHS Office of Inspector General recently issue a controversial report, The Effects of USCIS Adjudication Procedures and Policies on Fraud Detection by Immigration Service Officers. I wonder about the intentions of Senator Grassley who put a hold on the Fairness For High Skilled Immigrants Act, which passed […]
THE SUPERVISED RECRUITMENT ROLLER COASTER -THE RIDE THUS FAR
You filed a spotless labor certification. It was a perfect case, a perfect employer and a perfect employee with the perfect qualifications. Yet, one day, there it was in the mail. The dreaded Notification of Supervised Recruitment (“NSR”). The Department of Labor (“DOL”) had long advised to expect increased Supervised Recruitment. You knew the possibility […]
What a Company Needs to Know That Hosts but Does Not Employ Skilled Nonimmigrant Workers
I would like to share my article, Due Diligence Considerations For Companies Contracting With Vendor Service Providers, which appeared in the New Jersey Lawyer, October 2011 issue. This is an emerging area and it behooves corporations that contract with companies for skilled nonimmigrant workers on H-1B, L-1 or B-1 visas to know more about whom […]
Immigration Reform Through Green Card Stories
Green Card Stories is a gem of a book, and I feel inspired to write about it. Written by award winning journalist, Saundra Amrhein, with stunning photographs by award winning photographer, Ariana Lindquist, the book puts a human face on immigration through the journeys of 50 individuals who got their green cards. My good friends, […]
WORKING : H-4 SPOUSES GET TO TAKE A STEP FORWARD, BUT IS IT A GIANT ONE?
By Gary Endelman and Cyrus Mehta Sometimes it takes a while for a sound idea to gain acceptance. Granting employment authorization to H-4 spouses is a good example. In late March 2010, the authors urged In The Tyranny of Priority Dates that this be done, with or without an employment authorization document (EAD). A few […]
DRUGS AND INADMISSIBILITY
By Myriam Jaidi From the Comedy Central Show “South Park”(Season 2, Episode 204). The scene: Chef, an adult, is speaking with 4th graders Stan, Kyle, Kenny, and Cartman: Chef: I just want to tell you that drugs are bad.Stan: We know, we know, that’s what everybody says.Chef: Right, but do you know why they’re bad?Kyle: […]
STATE DEPARTMENT’S VISA OFFICE TAKES BROADER VIEW OF “SOUGHT TO ACQUIRE” PROVISION UNDER THE CHILD STATUS PROTECTION ACT
Many cases involving complex interpretations of the Child Status Protection Act (CSPA) occur while the applicant is applying for an immigrant visa at an overseas consular post. The CSPA protects a child who may turn 21 or more from “aging out,” and thus being eligible for permanent residence as a derivative, when his or her […]
EDGE SAYS INDIAN 2- YEAR MASTER’S DEGREE FOLLOWING 4-YEAR BACHELOR’S IS NOT EQUIVALENT TO US MASTER’S DEGREE
Determining whether a foreign degree is equivalent to a US degree is crucial for an employment-based immigrant visa petition. Within the US employment-based preference system, being classified under the Employment-based Second Preference (EB-2) puts one at a significant advantage over one who is classified under the Employment-based Third Preference (EB-3). There is no backlog in the […]
WHAT THE PROPOSED PROVISIONAL WAIVER RULE MEANS FOR THOSE FACING 3- OR 10-YEAR BARS
By Cyrus D. Mehta and David A. Isaacson In the raging immigration debate concerning the millions of undocumented immigrants in the US, one important issue has received scant attention. We have yet to meet a person who has roots in the US who desires to choose to remain undocumented. Most are forced to remain undocumented […]
TOP 10 POSTS ON THE INSIGHTFUL IMMIGRATION BLOG IN 2011
Thank you for reading and supporting The Insightful Immigration Blog. Listed below are the top 10 most viewed blogs in 2011. We will continue to provide insightful commentary on contemporary immigration issues in 2012, and wish all of our supporters and well wishers a very happy New Year! 1. PREVAILING WAGE DETERMINATIONS SUSPENDED UNTIL FURTHER NOTICE: HOW DO I […]
IT’S 9:OO A.M.- DO YOU KNOW WHERE YOUR H-1B EMPLOYEE IS? AN OVERVIEW OF FDNS SITE VISITS
By Myriam Jaidi U.S. companies employing foreign workers in H or L nonimmigrant status are increasingly subjected to random, surprise site visits by the USCIS. This article provides an overview of such visits. The site visits occur under the Administrative Site Visit and Verification Program (ASVVP) conducted by the Fraud Detection and National Security (FDNS) […]
BALCA EN BANC SPEAKS ON RECRUITMENT AND THE PREVAILING WAGE VALIDITY PERIOD
U.S. companies employing foreign workers in H or L nonimmigrant status are increasingly subjected to random, surprise site visits by the USCIS. This article provides an overview of such visits. The site visits occur under the Administrative Site Visit and Verification Program (ASVVP) conducted by the Fraud Detection and National Security (FDNS) Directorate. The purpose […]
How Fair is the Fairness For High-Skilled Immigrants Act?
H.R. 3012, the Fairness for High Skilled Immigrants Act, was passed in the House on November 29, 2011 by a landslide 389-15 vote. Introduced by Rep. Chaffetz (R-UT), it eliminates the employment-based per country cap entirely by 2015 and raises the family-sponsored per-country cap from 7% to 15%. If H.R. 3012 does become law, it […]
SHUTTING DOWN GLOBAL BUSINESS IN AMERICA: WHY THE H-1B CAP HURTS US ALL
By Cyrus D. Mehta The USCIS announced that November 22, 2011 was the final receipt date for accepting H-1B petitions under the 65,000 cap of FY2012. The 20,000 advanced degree cap was reached even earlier on October 19, 2011. Any H-1B petitions filed after that date will get rejected. The new fiscal year started only […]
THE ETHICAL ROLE OF THE ATTORNEY UNDER ALABAMA’S ANTI-IMMIGRANT LAW
By Cyrus D. Mehta Alabama’s immigration law, HB 56, is aimed at making life miserable for unlawfully present immigrants, and is intended to drive them out of the state. The law criminalizes a person’s very existence in Alabama. Many portions of the law have been enjoined pending appeal by the 11th Circuit Court of Appeals […]
VISA OPTIONS FOR FOREIGN ENTREPRENEURS IN THE US – WHILE KEEPING AN EYE ON THE POTENTIAL TRAPS AND PITFALLS
By Cyrus D. Mehta On paper, there are many attractive options for foreign entrepreneurs to live and work in the US temporarily without investing large sums of money. This blog takes the reader through these options, but will also make one aware about the many traps that may befall him or her on the way […]
EB-3 to EB-2 BOOST MAY NOT PROTECT YOUR CHILD UNDER THE CHILD STATUS PROTECTION ACT
By Cyrus D. Mehta If you were born in India and are being sponsored for a green card through your employer under the employment-based third preference (EB-3), the wait is likely to be 70 years. If your employer filed the first step towards the green card, the labor certification, sometime in 2006, and you managed […]
BALCA SAYS THERE IS NO NEED TO LIST EVERY BENEFIT OF EMPLOYMENT IN JOB ADVERTISEMENTS
by Cora-Ann V. Pestaina To practitioners who file numerous PERM applications, the Department of Labor’s (DOL) philosophy of solely protecting the U.S. labor market without regard to employers’ efforts, its constantly shifting goal posts, and its frightful game of “gotcha” which we involuntarily enter whenever we file a PERM application, have sadly all become par […]
Prosecutorial Discretion and the “Criminal Alien”
The June 17, 2011 Memo calling for prosecutorial discretion by ICE Director John Morton is being applied in favor of low priority non-citizens who are threatened with removal. For instance, some who were brought to the US at an early age have been given a temporary reprieve, especially those who would qualify under proposed DREAM […]
SOME PRELIMINARY REACTIONS TO THE DISTRICT COURT DECISION REFUSING TO ENJOIN PORTIONS OF ALABAMA’S IMMIGRATION LAW
By David A. Isaacson Chief U.S. District Judge Sharon Blackburn of the U.S. District Court for the Northern District of Alabama recently issued a memorandum opinion preliminarily enjoining the enforcement of certain portions of Alabama’s new immigration law but upholding other portions. This decision has already attracted substantial criticism, with the New York Times describing […]
THE POTENTIAL REACH OF KHALID V. HOLDER: HOW THE 5TH CIRCUIT INTERPRETED THE CSPA AND HOW SOME OUTSIDE ITS TERRITORY MAY BE ABLE TO BENEFIT
By David A. Isaacson In its recent decision in the case of Khalid v. Holder, the U.S. Court of Appeals for the Fifth Circuit rejected the 2009 decision of the Board of Immigration Appeals (“BIA”) in Matter of Wang. The Fifth Circuit in Khalid held that a derivative beneficiary of an immigrant petition, whose adjusted […]
REINTERPRETING THE AUTOMATIC CONVERSION PROVISION OF THE CSPA TO HELP DREAM KIDS
By Cyrus D. Mehta The DHS has commendably issued policies urging prosecutorial discretion in recent months recognizing its inability to deport all undocumented immigrants, and designating certain deportable deserving discretion immigrants under a low priority status. Especially noteworthy is the June 17 Morton Memo on prosecutorial discretion, which urges against enforcement of individuals who came […]
REFLECTING ON 9/11 AFTER 10 YEARS AS AN IMMIGRATION ATTORNEY
By Cyrus D. Mehta In the spring and summer of 2001, and the days just prior to September 11, 2001, things were not going so badly for immigrants. Although the Section 245(i) deadline of April 30, 2001 had expired, hundreds of thousands of people had managed to file their applications before the deadline to hopefully […]
GOING BEYOND THE POLITICS OF DISCRETION IN THE AMERICAN IMMIGRATION SYSTEM
By Gary Endelman and Cyrus Mehta The ability of whether the President can use discretion in the immigration arena has become the flavor of the month. The announcement by the DHS on August 18, 2001 under which 300,000 individuals who are low priority can hope to have their cases closed and obtain work authorization was […]
FINAL IMMIGRATION LESSON FROM THE DISMISSAL OF THE STRAUSS-KAHN CASE
By Cyrus Mehta Much has been written about the amazing turn of events in the Strauss-Kahn case that resulted in the dismissal of the criminal charges against him. The Manhattan DA’s motion to dismiss the indictment reads like a treatise on the ethical role of the district attorney in prosecuting a case, while also richly […]
FEWER PEOPLE TO GET DEPORTED UNDER NEW POLICY: HAS THE ADMINISTRATION FINALLY COME TO ITS SENSES?
By Cyrus Mehta The Department of Homeland Security in a letter addressed to Senator Durbin and 21 other senators announced on August 18, 2011 a new policy that would identify low priority removal cases for the exercise of prosecutorial discretion. According to a New York Times story, the beneficiaries of such discretion would also be […]
PREVAILING WAGE DETERMINATIONS SUSPENDED UNTIL FURTHER NOTICE: HOW DO I FILE A PERM LABOR CERTIFICATION?
by Cora-Ann V. Pestaina The Department of Labor (DOL) has announced that the Office of Foreign Labor Certification (OFLC) National Prevailing Wage Center (NPWC) has temporarily suspended processing of prevailing wage determinations (PWD), redeterminations, and Center Director Reviews. The NPWC handles PWDs for the PERM labor certification, H-1B, H-1B1 (Chile/Singapore), H-2B and E-3 programs. As […]
Do We Have a Start-Up Visa For Entrepreneurs Even When Congress Has Not Lifted a Finger?
The US economy remains sluggish. The joblessness rate is still much too high. Even after the debt ceiling crisis was averted at the last minute, the compromise did not generate any excitement or renewed optimism. Indeed, the Dow Jones industrial average plunged more than 500 points on August 4, 2011 on fears that the US […]
THE ROLE OF THE IMMIGRATION LAWYER IN ADVISING UNDOCUMENTED IMMIGRANTS
By Cyrus MehtaImmigration lawyers commonly encounter a client who is undocumented and asks about options to obtain status. If in the event there are no options, the next question is whether there are any options that might arise in the future. In the course of counseling the client who is not in status, can the […]
ARE THERE SECOND CHANCES IN US IMMIGRATION LAW? JUDGE DENNY CHIN SHOWS THE WAY IN LAWSON v. USCIS
By Myriam Jaidi Second Circuit Court Judge Denny Chin’s decision in Lawson v. USCIS, 09 Civ. 10195 (DC) (issued July 7, 2011) provides a beacon of hope for individuals who have overcome a reprehensible past and wish to pursue U.S. citizenship, and serves as an exemplar to advocates and adjudicators not only on the legal […]
LEAVING TOO MUCH FOR ANOTHER DAY: WHAT THE SECOND CIRCUIT’S RECENT CSPA DECISION MISSED IN AGREEING WITH THE RESULT OF MATTER OF WANG
By David A. Isaacson In its recent decision in Li v. Renaud, the U.S. Court of Appeals for the Second Circuit found that a derivative beneficiary of a family-based petition, whose adjusted age even under the Child Status Protection Act (“CSPA”) is above 21, cannot use section 203(h)(3) of the Immigration and Nationality Act (“INA”) […]
IMMIGRATION LESSONS FROM THE FALL AND RISE OF STRAUSS-KAHN – PART II
By Cyrus D. MehtaEver since the criminal case of Strauss-Kahn began to disintegrate after the New York District Attorney’s office revealed flaws in the credibility of the accuser, I looked back at my earlier blog, Immigration Lessons From the Fall of Strauss Kahn and feel that many of the immigration lessons I reflected upon still […]
RIGHT TO APPOINTED COUNSEL IN REMOVAL PROCEEDINGS? THE SUPREME COURT MAY HAVE OPENED THE DOOR IN TURNER v. ROGERS
By Cyrus D. MehtaA non-citizen placed in removal proceedings has the privilege of being represented at no expense to the government pursuant to §240(b)(4)(A) and §292 of the Immigration and Nationality Act. While every non-citizen has a right to be represented by competent counsel of his or her choosing, he or she cannot ask the […]
NOT SO FAST! DOL HESITANT TO FOLLOW MATTER OF HORIZON COMPUTER SERVICES ON PREVAILING WAGE VALIDITY
By Cora-Ann Pestania My elation over the recent Board of Alien Labor Certification Appeals’ (BALCA) decision in Matter of Horizon Computer Services, Inc., 2010-PER-00746 (May 25, 2011), expressed in my last blog, has proven to be short-lived. Last week, I attended the American Immigration Lawyers’ Association’s (AILA) Annual Conference on Immigration in San Diego, CA. […]
ETHICAL BASIS FOR PRO BONO
By Cyrus D. Mehta I am most honored to be the recipient of the American Immigration Lawyers Association 2011 Michael Maggio Pro Bono Award. Thank you very much. The news of the award came to me as an utter surprise and my instant response was that I did not deserve it. I immediately recalled the […]
BALCA GETS IT RIGHT!! RECRUITMENT AND THE PREVAILING WAGE DETERMINATION’S VALIDITY PERIOD
Cora-Ann V. Pestaina Pardon me while I take a moment to pump my fist! I am just really excited (and also relieved that sanity finally prevailed!) over the Board of Alien Labor Certification Appeals’ (BALCA) recent decision in Matter of Horizon Computer Services, Inc. 2010-PER-00746 (May. 25, 2011), http://j.mp/jAQRfO. Along with many fellow practitioners, I […]
IF EVEN THE CHIEF JUSTICE CAN MISUNDERSTAND IMMIGRATION LAW, HOW CAN WE EXPECT STATES TO ENFORCE IT PROPERLY? REMOVAL ORDERS AND WORK AUTHORIZATION
By David A. Isaacson In part of the Supreme Court’s recent decision in Chamber of Commerce v. Whiting upholding an Arizona law that imposed sanctions on employers (formally implemented as suspension or revocation of business licenses) for hiring “unauthorized alien” workers, the Court found that the Arizona law was not impliedly pre-empted because it tracks […]
B-1 IN LIEU OF H-1B VISA IN JEOPARDY: DON’T THROW THE BABY OUT WITH THE BATHWATER
By Cyrus D. Mehta and Myriam Jaidi The “B-1 in lieu of H-1B” visa has been an important and legitimate source of flexibility facilitating the needs of global businesses and business travelers, with significant benefit to the United States economy. The April 14, 2011 letter from Senator Charles E. Grassley to Secretary of State Hilary […]
IMMIGRATION LESSONS FROM THE FALL OF STRAUSS-KAHN
By Cyrus D. Mehta From an immigration lawyer’s perspective, the fall of Dominique Strauss-Kahn, the former head of the International Monetary Fund, who has been charged with attempted rape and other serious sex offenses against an immigrant hotel worker from Guinea in a posh New York hotel, resonates with important immigration themes. Most important, the […]
EXPANSION OF STEM FIELDS AS AN EXAMPLE OF ADMINISTRATIVE FIXES FOR A BROKEN IMMIGRATION SYSTEM
By Cyrus D. Mehta I was pleased to see the announcement below. Immigration and Customs Enforcement, (ICE) of all agencies, expands immigration benefits to students who have graduated in science, technology, engineering and math degree programs (STEM) fields. ICE, which has been deporting non-citizens in high numbers in recent times, ironically acknowledges that this is […]
REFLECTING ON OUR IMMIGRATION POLICY AFTER OSAMA BIN LADEN’S DEATH
One cannot help reflect on how Osama bin Laden so radically changed immigration policy for the worse After the 9/11 attacks, masterminded by bin Laden, everything concerning immigration was viewed through the prism of national security. Even a garden variety bona fide marriage case between a US citizen and foreign national spouse will only be […]
RESUMPTION OF SOCIAL SECURITY NO-MATCH LETTERS AND CONSTRUCTIVE KNOWLEDGE
By Cyrus D. Mehta On April 6, 2011, The Commissioner of the Social Security Administration announced that SSA would resume sending “no-match” letters, https://secure.ssa.gov/apps10/public/reference.nsf/links/04052011011437PM. Two I-9 compliance mavens, John Fay, http://www.electronici9.com/enforcement/the-return-of-the-social-security-no-match-letter/ and Kevin Lashus, http://www.immigrationcomplianceblog.com/ice/social-security-administration-resumes-sending-no-match-letters/, have adequately commented on this new development, and I will not go into the technicalities of the specifics of such […]
Victory in El Badrawi V. USA: Narrowing the Disconnect Between Status and Work Authorization
In El Badrawi v. USA, 07-cv-1074 (D. Conn. Dec. April 11, 2011), the United States District Court in Connecticut ruled that an H-1B worker who had timely sought an extension of that visa status, and who was authorized to continue working under 8 CFR § 274a.12(b)(20), could not be arrested or subjected to removal. Although […]
DEPORTING A US CITIZEN CHILD? TAKE A LEAF OUT OF THE STATE DEPARTMENT’S BOOK ON BIRTHRIGHT CITIZENSHIP
By Cyrus D. Mehta This week, while we have all been stunned at the way Customs and Border Patrol (CBP) sent a four year old US citizen child packing out of the country to Guatemala, http://edition.cnn.com/2011/OPINION/03/23/navarrette.child.deported/?hpt=Sbin, even though her parents lived in the US, we can take some comfort that the State Department scrupulously adheres […]
BALCA ON USING A RANGE OF EXPERIENCE IN RECRUITMENT
by Cora-Ann Pestaina As the Board of Alien Labor Certification Appeals (BALCA) continues to pump out decision after decision, it can be difficult to find time to review each case. But I am constantly being reminded that reviewing that one BALCA decision could truly mean the difference between approval and denial. I recently came across […]
NATURALIZATION WHILE WORKING ABROAD FOR AN AMERICAN FIRM
By Cyrus D. Mehta It is not uncommon for a permanent resident to receive a plum posting for an American corporation overseas or for its subsidiary. This is a frequent occurrence these days in a globalized world, and especially when jobs have become more scarce in the US since the economic downturn. While such an […]
POTENTIAL IMMIGRATION IMPLICATIONS FOR SAME-SEX COUPLES OF JUSTICE DEPARTMENT’S ANNOUNCEMENT REGARDING DOMA SECTION 3
By David A. Isaacson The Justice Department announced Wednesday, that, based in part on the recommendation of Attorney General Eric Holder, President Obama has determined that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, and will no longer defend it in court. This is because, facing litigation within the jurisdiction of a […]
EAWA HAS SUNSET
By Cyrus D. Mehta Does anyone remember EAWA, the Employ American Workers Act and its effect on H-1B petitions, http://bit.ly/hDQnHd? This legislation was passed on February 17, 2007 and was set to sunset in two years. Congress has not extended this provision even though the second anniversary passed on February 16, 2011. The law created […]
The LCA in the Age of Telecommuting
By Cyrus D. Mehta and Myriam Jaidi An H-1B employee has a job with a company based in New Jersey. Her job can, however, be performed remotely from virtually anywhere in the United States or the world. So long as she has good internet access, she can sign in to her employer’s server and perform […]
GUIDANCE ON F-1 TRANSFERS FROM TRI-VALLEY UNIVERSITY
In the wake of the closing down of the “sham” Tri-Valley University, http://indiatoday.intoday.in/site/Story/128946/india/visa-relief-in-sight-for-indian-students-conned-by-tri-valley-varsity.html and http://www.mercurynews.com/top-stories/ci_17151508?nclick_check=1, which has rendered many F-1 students out of status, ICE has issued guidance to universities that enroll F-1 students via SEVIS regarding how to facilitate the transfer. The document was posted in AILA InfoNet on February 8, 2011 (AILA InfoNet […]
BALCA ON EMPLOYEE REFERRAL PROGRAMS UNDER PERM
Cora-Ann V. Pestaina I first wrote on the subject of the employee referral program with incentives in April 2010 shortly after the Department of Labor announced at a stakeholders teleconference that it had established criteria about the employee referral program, http://cyrusmehta.blogspot.com/2010/04/dol-update-on-perm-and-prevailing-wage.html. The Board of Alien Labor Certification Appeals (BALCA) recently issued two decisions that mostly […]
FORM I-9 AND H-1B PORTABILITY
US Citizenship and Immigration Services (USCIS) has revised its Handbook for Employers: Instructions for Completing Form I-9 (M-274). Revised as of January 5, 2011, http://www.uscis.gov/files/form/m-274.pdf., the handbook includes expanded guidance on lawful permanent residents, refugees and asylees, and acceptable documents for employees in temporary protected status (TPS). An update on the most recent changes can […]
THE ABSURDITY OF THE BIRTHRIGHT CITIZENSHIP ACT OF 2011
By Cyrus D. MehtaWhen I first glanced at he Birthright Citizenship Act of 2011, H.R. 140, introduced by Representative Stephen King (R-IA) on January 5, 2011, http://www.opencongress.org/bill/112-h140/show, I figured that it was not worth my time to even write about it. I read it once more, and it dawned upon me that I could have […]
ONE YEAR AFTER THE NEUFELD MEMO: CAN THE BEAST EVER BE TAMED?
By Cyrus D. Mehta It has been one year since the issuance of the memo by Donald Neufeld of the USCIS, http://tiny.cc/z3ZU8 which sought to define the employer-employee relationship, especially when an employer places an H-1B worker at a third party client site. The Neufeld Memo is like a wild beast that can never be […]
CONSEQUENCES OF VISA BULLETIN CUTOFF DATE RETROGRESSION UNDER THE CHILD STATUS PROTECTION ACT
By David A. IsaacsonIn recent months, the Visa Bulletin issued by the Department of State has shown a “retrogression” of priority dates in a number of Family-based categories. This means that the cutoff date determining which priority dates are early enough to make a visa number available to particular immigrants so that they can move […]
KEEPING HOPE ALIVE: PRESIDENT OBAMA CAN USE HIS EXECUTIVE POWER UNTIL CONGRESS PASSES THE DREAM ACT
By Gary Endelman and Cyrus D. Mehta We are all extremely disappointed that the Senate blocked the DREAM Act on December 18. Even though a majority of the Senate voted for cloture, it was not enough. We need 60 votes for legislation to move forward, even when we have a majority of 55 out of […]
DREAM ACT AND THE POLLS
Although the House voted in favor of the DREAM Act on December 8, 2010, with eight Republicans also joining with a yea, the prospects of passage of the bill in the Senate look less hopeful but still possible. This hesitancy is bolstered by the fact that the Republican minority in the Senate on Thursday filibustered […]
BALCA’S NEW DECISION IN DENZIL GUNNELS OPENS THE DOOR TO SUBMIT MORE EVIDENCE FOLLOWING A LABOR CERTIFICATION DENIAL
By Cyrus D. Mehta The Board of Alien Labor Certification Appeals (BALCA) has been extremely active recently issuing several important decisions. Since the PERM labor certification process is so exacting and unforgiving, there is very little opportunity for an employer to correct the record in the event of a mistake, or to supplement the record […]
THE SPIRIT IS AT THE AIRPORT, BUT THE FLESH IS IN THE UNITED STATES: UNDERSTANDING PAROLE
By David A. Isaacson One immigration concept which sometimes gives rise to confusion is that of “parole”. The most common use of parole at present is to allow in, pursuant to an “advance parole” authorization, aliens who have a pending application for adjustment of status under INA § 245 or certain other relief. Perhaps because […]
DON’T GET TOO COMFORTABLE: STATUS AFTER THE GRANT OF AN H-1B EXTENSION UNDER AC 21
By Gary Endelman and Cyrus D. Mehta The American Competitiveness in the 21st Century Act (AC 21) has been a great benefit for those whose applications for permanent residency cannot be completed before the sixth year in H-1B status. Under Section 106(a) of AC 21, an individual is able to extend H-1B status beyond six […]
PERM AND THE ROVING EMPLOYEE
by Cora-Ann Pestaina Practitioner to Employer Client: We can certainly assist you in the filing of a PERM application for your employee. Where will the employee be working? Employer Client: Well, he will work out of his home in New Jersey and additionally at three different client sites in Pennsylvania, New York and Connecticut. Practitioner: […]
Silver Lining on Immigration After the November 2010 Mid-Term Elections
Now that the Republican party controls the House, what does it portend for immigration? There is a sense of foreboding and pessimism. Most fear that any prospect for Comprehensive Immigration Reform is dead, although it never got jump started even though the Democrats controlled both the chambers of Congress from 2006 until now. Instead, we […]
INDIAN IMMIGRATION POLICY AND THE TRANSNATIONAL PREVAILING WAGE FOR IT WORKERS
By Gary Endelman and Cyrus D. Mehta For many years, those concerned about the hemorrhaging of good paying jobs to India, especially in the IT sector, have blamed overly liberal US immigration policies for their ills. Precisely the opposite is true. Right now, there is a deep and growing IT shortage for world-class talent in […]
BIA CONTINUES TO REAFFIRM BROAD “SOUGHT TO ACQUIRE” STANDARD UNDER CSPA
by Gary Endelman and Cyrus D. Mehta In a recent unpublished decision, the Board of Immigration Appeals, in In re Jose Jesus Murillo, A099 252 007, October 6, 2010, http://drop.io/oucv5fe, reaffirmed its broadened “sought to acquire” standard under the Child Status Protection Act (CSPA). The CSPA artificially freezes the age of a child below 21 […]
THE ENIGMA OF BOKHARI V. HOLDER: WORK AUTHORIZATION IS NOT LAWFUL STATUS
By Gary Endelman and Cyrus D. MehtaIt has always been known that being authorized to work in the US is not the same thing as being in a lawful status. The Fifth Circuit Court of Appeals recently issued a decision in Bokhari v. Holder, No. 09-60538, September 29, 2010, confirming this enigma. Simply stated, the […]
DISTURBING TREND OF K VISAS BEING RETURNED FOR REVOCATION AT US CONSULATES
By Cyrus D. Mehta My distinguished colleague, Paul Parsons, in Austin, Texas, has justifiably complained to Jeff Gorsky, Chief, Legal Advisory Opinions Section, Visa Office, State Department, http://bit.ly/bl44VO, about the arbitrary manner in which consular posts administratively close K-1 or K-3 visa cases, and recommend revocation of the petition visas when they suspect the bona […]
MATTER OF LEGASPI: NARROWING THE SCOPE OF 245(i) GRANDFATHERING FOR DERIVATIVE BENEFICIARIES
By Cyrus D. Mehta § 245(i) of the Immigration and Nationality Act, which sunset on April 30, 2001, has been a great boon for those who are not in status in the United States. It permits adjustment of status of certain aliens who are unable to adjust under § 245(a) for entering without inspection or […]
BOOMERANG: THE MOSQUE CONTROVERSY AND OTHER IMMIGRATION EXCESSES
By Gary Endelman and Cyrus D. Mehta There is growing Islamophobia engulfing the country combined with a rise in xenophobia, http://www.time.com/time/nation/article/0,8599,2011798,00.html. The Islamophobia has been unleashed as a result of the unfortunate controversy over the Islamic center and mosque that will be built within two blocks of Ground Zero. Much has been written about this […]
Follow the Money: What the OES Counts That You Can’t
By Gary Endelman and Cyrus D. Mehta What is the main complaint against foreign workers? Simple: They undercut American wages. How do we know that one might ask? Well, critics like Senator Charles Schumer (D-NY), who unveiled and passed HR 6080, the Border Security Emergency Supplemental Appropriations Act of 2010, do not tell us but […]
USCIS ISSUES GUIDANCE ON INCREASE IN H-1B AND L FEES
By Cora-Ann V. Pestaina On August 19, 2010 USCIS held a stakeholders teleconference to provide much needed guidance on its implementation of Public Law 111-230 which was signed into law by President Obama on August 13, 2010 and will remain in effect until September 30, 2014. The panel included such recognizable names as Donald Neufeld. […]
THE WORLD ACCORDING TO SENATOR SCHUMER: IF IT’S NOT A CHOP SHOP, IT’S A BODY SHOP
By Gary Endelman and Cyrus D. Mehta Dear Senator Schumer: We know that you and your colleagues with great aplomb approved a border security bill, H.R. 6080, that would provide $600 million in funding for putting $1,500 border security to prevent illegal immigration, which will be paid for by raising fees on certain H-1B and […]
SILENCE IN A TIME OF TORMENT: THROWING INDIAN IT FIRMS UNDER THE BUS
By Gary Endelman and Cyrus D. Mehta A Border Security bill, H.R. 6080, which was passed by the House on August 10, 2010, proposes to add 1,500 more border officers on the US-Mexico border. It proposes to pay for their salaries and other support systems by substantially raising the filing fees of H-1B and L […]
H-1B Portability When There Is A Gap In Status
Most within the H-1B visa community are familiar about being able to “port” under INA § 214(n) to a new employer upon the filing of a new H-1B petition without waiting for the petition to be approved. This article endeavors to creatively draw more out of § 214(n) to benefit the H-1B worker in troubled […]
HELPING THOSE WHO HELP THEMSELVES: HOW USCIS CAN STOP GOING BROKE AND DO THE RIGHT THING
By Gary Endelman and Cyrus D. Mehta Dear Mr. Mayorkas: Please forgive us. It has been far too long since we last wrote to you, https://blog.cyrusmehta.com/News.aspx?SubIdx=ocyrus20103925436. Times are hard all around. You are bleeding revenue with caseload dropping. Our clients are lost in limbo and there seems to be no exit. Maybe now is the […]
United States v. Arizona: Constitution Wins Over the Tyranny of the Majority
In Round 1 of the legal battle against Arizona’s Immigration Law, S.B. 1070, the Constitution triumphed. Judge Susan R. Bolton agreed with the United States that the State of Arizona had invaded into an area that has always been occupied by the federal government, http://www.scribd.com/doc/35017735/USA-v-Arizona-Order-Granting-Preliminary-Injunction. The judge blocked the most controversial provisions – allowing local […]
NO ROOM AT THE INN: S.B. 1070 AND THE CONSTITUTIONAL RIGHT OF INTERSTATE TRAVEL
By Gary Endelman and Cyrus D. Mehta In all the media frenzy over SB 1070, the extent to which Arizona has abridged the constitutional right of interstate travel has largely been overlooked. Indeed, when seeking to strike down SB 1070, the Justice Department almost exclusively based its objections on preemption by IRCA under the supremacy […]
NATURALIZING IN A FLAT WORLD
byGary Endelman and Cyrus D. Mehta As we enter the second decade of the 21st century, the world seems to be getting far more flat than what Tom Friedman originally envisaged with people being able to deliver services and products to the US and other countries from anywhere via the internet. Also, coinciding with this […]
DIFFERENT STROKES: USING DIFFERENT EXPERIENCE REQUIREMENTS ON A LABOR CERTIFICATION AND I-140 PETITION
by Cora-Ann V. Pestaina We’ve pretty much gotten used to (but not accepted!) the vast inconsistencies that exist in degree-equivalency requirements with regard to filing an H-1B, a PERM or an I-140. We’ve been forced to cope with (though we will never understand!) the fact that the degree-equivalency regulations that govern EB-2 and EB-3 professionals […]
THE ONLY TRUE TEST OF LEADERSHIP: PRESIDENTIAL INITIATIVE AND IMMIGRATION REFORM
By Gary Endelman and Cyrus D. Mehta Facing the setting sun out beyond the vast confines of the Los Angeles coliseum, John Kennedy accepted the Democratic nomination for President in 1960 by proclaiming that “the only valid test of leadership is the ability to lead and lead vigorously.” Doubtless thinking how to respond to the […]
Indian Government Backs Down Over Passport Surrender Rule, But Will the New Guidance Lead to Further Confusion?
As a result of pressure from the overseas Indian, the Indian government has backed down. Here is the latest guidance from the Indian Consulate in New York website, http://www.indiacgny.org/php/showHighLightDet.php?h_id=144&key. “In supersession of the rules regarding Surrender/Renunciation Certificate the Government of India have decided as follows:- Persons of Indian Origin (PIOs) who have already acquired foreign […]
NEW INDIAN GOVERNMENT RULE REQUIRING RENUNCIATION OF INDIAN CITIZENSHIP AND SURRENDER OF INDIAN PASSPORTS OUTRAGES OVERSEAS INDIANS
By Cyrus D. Mehta The new rules requiring overseas Indians to renounce Indian citizenship and surrender the Indian passport after they have taken up the citizenship of another country misinterpret the provisions of the Indian Citizenship Act, 1955. The guidance, including Frequently Asked Questions, can be found on the website of the Indian Consulate in […]
AN UNCERTAIN TRUMPET: TERRORISM AND LOSS OF AMERICAN CITIZENSHIP
By Gary Endelman and Cyrus D. Mehta After the foiling of the plot of would be Times Square bomber in New York on May 1, 2010, Faisal Shahzad, and the terrorism inspired through the preachings of Anwar al-Awlaki, an American citizen operating out of Yemen, there have been calls to strip Americans of their citizenship […]
STUDY SHOWS THAT H-1B AND L-1 WORKERS ARE PAID HIGHER WAGES THAN THEIR US-BORN COUNTERPARTS
Here is a refreshing new study on H-1B wages. It is refreshing because unlike most other studies that take pains to show that H-1B workers are paid less than US workers and depress the labor market, this one by Professors Lucas and Mithas of the University of Maryland’s Business School demonstrates quite the opposite. H-1B […]
Why Lawyers and All Others Should Boycott Arizona
I was most proud when the American Immigration Lawyers Association (AILA) decided to pull its Fall conference out of Scottsdale, Arizona within minutes of the passage of Arizona’s SB 1070, which makes it a criminal offense for failing to carry alien registration documents, and authorizes law enforcement to determine the immigration status of a person […]
MAKING COMPREHENSIVE IMMIGRATION REFORM POSSIBLE
By Gary Endelman and Cyrus D. Mehta In shock at the overtly racist profiling now sanctioned by the State of Arizona, https://blog.cyrusmehta.com/news.aspx?SubIdx=ocyrus201042724527, the Democratic Party has turned to comprehensive immigration reform to pay off its political debt to the vast and growing body of Hispanic voters whose allegiance may determine our national electoral map for […]
COMPREHENSIVE IMMIGRATION REFORM THROUGH EXECUTIVE FIAT
By Gary Endelman and Cyrus D. Mehta While the Obama administration struggles to get votes to overhaul our dysfunctional immigration laws in Congress, http://tinylink.com/?Pky1KrfcfI, and Arizona passes its shameful immigration bill, SB 1070, which legalizes racial profiling, http://tinylink.com/?a2IUa39ATc, there is a growing yearning for Congress to pass Comprehensive Immigration Reform (CIR) that would provide more […]
Save The Children
By Gary Endelman and Cyrus D. Mehta When Congress enacted the Child Status Protection Act, it wanted above all else to soften the harsh blows of long delays by the USCIS in the adjudication of “green card” cases. How? Congress did so by extending this generous benefit to protect vulnerable children who would otherwise be […]
DOL UPDATE ON PERM AND PREVAILING WAGE ISSUES
by Cora-Ann V. Pestaina On April 5, 2010 AILA published the minutes of the DOL stakeholders teleconference held on March 25, 2010. See AILA InfoNet Doc. No. 10040533. These minutes presented some important/interesting information worth noting: Employee Referral Programs: The DOL now requires more from employers who utilize the Employee Referral Program in fulfillment of […]
AAO SAYS “NO” TO JOB PORTABILITY WHEN LABOR CERTIFICATION HAS BEEN SUBSTITUTED
By Gary Endelman and Cyrus D. Mehta Given the crushing backlogs in the EB-2 preference for India and China, and the EB-3 for India, where the wait can exceed 30 years, one would hope that the United States Citizenship and Immigration Service’s Appeals Administrative Office (AAO) would read INA § 204(j) more generously, which allows […]
REDEFINING “IMMEDIATELY AVAILABILE” TO ALLOW EARLY FILING OF AN ADJUSTMENT OF STATUS APPLICATION
By Gary Endelman and Cyrus D. Mehta We continue to blog on the salient ideas in our article, Tyranny of Priority Dates, published in BIB Daily, http://scr.bi/i0Lqkz, on March 25, 2010. Would it not be advantageous if those caught in the crushing EB-2 or EB-3 backlogs could file an adjustment of status application, Form I-485, […]
TWO H-1B SPOUSES AND ONE LABOR CERTIFICATION: BOTH SPOUSES SHOULD BE ABLE TO SEEK SEVENTH-YEAR H-1B EXTENSIONS UNDER AC21
By Gary Endelman and Cyrus D. Mehta We post some of the ideas that we have proposed in the forthcoming article, The Tyranny of Priority Dates, https://blog.cyrusmehta.com/news.aspx?SubIdx=ocyrus20103925436, on this blog. This post advocates that an H-1B seeking an extension beyond the six years may do so even though the other spouse is the beneficiary of […]
GEARING UP FOR FY2011 H-1B FILINGS: USCIS STOPS ALLOWING FILINGS WITH UNCERTIFIED LCAs AND AILA PROTESTS NEUFELD MEMO
In continuation of our previous article, H-1b Update: Filing Date Approaches; Scrutiny At POEs Increases; USCIS Issues H-1B Guidance Under Economic Stimulus, dated February 19, 2010, http://tinylink.com/?7h4K85wN87, USCIS has announced on March 10, 2010, that it will not extend the period in which it temporarily accepted H-1B petitions filed with uncertified labor condition applications […]
KAZARIAN V. USCIS: DISCREDITING THE CIRCULARITY ARGUMENT IN EB-1 PETITIONS
The recent decision in Kazarian v. USCIS, — F.3d —-, 2010 WL 725317 (C.A.9 (Cal.)), http://www.ca9.uscourts.gov/opinions/view_subpage.php?pk_id=0000010327, goes a long way in discrediting the circularity argument that the USCIS often deploys to shoot down petitions filed under the extraordinary ability category (EB-1). Even though the petitioner lost in this case, the new re-issued decision is still […]
HALCYON DAYS IN H-1B VISA PROCESSING
Much has already been written to deservedly criticize the USCIS Memo by Donald Neufeld dated January 8, 2010 (Neufeld Memo), http://tiny.cc/z3ZU8, which suddenly undermines the ability of IT consulting firms to file H-1B visas, http://cyrusmehta.blogspot.com/2010/01/new-uscis-memo-on-employer-employee.html. The latest is an excellent blog post from my friend and colleague, Angelo Paparelli, http://blogs.ilw.com/angelopaparelli/2010/02/my-entry.html, who shows how the Neufeld […]
WILL THE NOTICE OF ENTRY OF APPEARANCE REQUIREMENT BY AN ATTORNEY HINDER PRO BONO ASSISTANCE TO IMMIGRANTS?
By Cyrus D. Mehta* and Myriam Jaidi** On February 2, 2010, the Department of Homeland Security (DHS) published an interim rule, (available at http://tiny.cc/GvK9A), which adopts the Executive Office for Immigration Review (EOIR) rule at 8 Code of Federal Regulations (CFR) § 1003.102 that provides grounds to discipline practitioners for ethical violations. One specific […]
MORE ON H-1B ADMISSIONS AT NEWARK: EXPEDITED REMOVAL SHOULD BE USED WISELY
Customs and Border Protection (CBP) has extraordinary power under Section 235 of the Immigration and Nationality Act to summarily remove a nonimmigrant from the U.S. at a port of entry if they find him or her inadmissible either for fraud or for failure to possess the proper visa. Generally, there is no further hearing or […]
SHOULD HAITIANS APPLY FOR TEMPORARY PROTECTED STATUS?
In the aftermath of the most devastating earthquake in Haiti, we lawyers are all trying to find ways to help. Assisting Haitians legalize their status in the United States is a good start, and there are pro bono clinics lined up already in New York. Haitians who can work legally can send more remittances to […]
NEW USCIS MEMO ON EMPLOYER-EMPLOYEE RELATIONSHIP FOR H-1B PETITIONS: IS IT A WAY TO KEEP CERTAIN WORKERS OUT?
The Requests For Evidence hurled against IT consulting firms after they filed H-1B visa, then the raves and rants of Senator Grassley against allegedly abusive IT firms, followed by the BusinessWeek article on job shops giving prime time to the rabidly anti-immigrant Programmers Guild, along with attacks on the H-1B program by even our own […]
EXPEDITED REMOVAL OF H-1B WORKERS AT NEWARK AIRPORT
We have personally heard of H-1B workers from India employed by IT consulting firms being subject to expedited removal orders at Newark airport in New Jersey. The grounds seem to be rather spurious. Some H-1Bs have been removed because they were working at client work sites, and the position of the Customs and Border Protection […]
CHRISTMAS BOMBER AND REVOCATION OF VISAS
It has now become acceptable wisdom that the State Department should have revoked the visa of the Nigerian, Mr. Abdulmutallab, who attempted to detonate a bomb on the flight to Detroit on Christmas Day. Here is an extract from a New York Times editorial, The System Failed (http://tiny.cc/FwCPz), dated December 29, 2009: “What makes this […]
BALCA DISREGARDS SEPARATE ENTITY IN MATTER OF PA’LANTE
This post is about a small bore issue. It is about a quibble that I have about a footnote in a decision of the Board of Alien Labor Certification Appeals (BALCA) in Matter of Pa’Lante, 2008 PER 00209 . But I think it is worth pointing out so that a future appellant can remind BALCA […]
IS AN IMMIGRATION AGENCY A TRIBUNAL UNDER NEW YORK’S ETHICAL RULES?
In preparing for the ethics panel for the AILA 2009 New York Chapter Immigration Symposium on December 1, 2009, I came across an interesting connundrum with my co-panelists. Are the offices within the Department of Homeland Security, such as United States Citizenship and Immigration Services (USCIS), or other governmental agencies that deal with immigration matters, […]
RARE GESTURE OF REASONABLENESS TO H-1B FILERS
So USCIS has at long last heard and understood about the hardships that the new iCERT system of DOL was causing H-1B workers. Normally, the USCIS does not care what the DOL does and vice verse, and so this gesture comes as a pleasant surprise. The new iCERT system consistently denies Labor Condition Applications if […]
New Indian Immigration Regime for Foreign Nationals in India
*By Poorvi Chothani, Esq. Recently, the Ministry of Commerce and Industry (the MCI), India announced (the MCI Announcement) that business visas cannot be granted to foreign nationals to work on projects or specific contracts in India. The formal announcement also requires all foreign nationals on such visas to leave India and return on employment visas. […]
Advance Conflict Waivers
MANAGING EXPECTATIONS OF IMMIGRATION CLIENTS THROUGH SMART ETHICAL PRACTICES Only a fool of an attorney would not set out the parameters of the representation in advance and decide how to handle clients in the event of a conflict of interest between them. This is particularly so when a client embarks on a green card sponsorship […]
WHY IS THE THREE YEAR DEGREE SO PROBLEMATIC IN IMMIGRATION LAW?
A recent article in Newsweek, http://bit.ly/39fduB, notes a trend toward 3 year bachelor’s degree programs in the United States instead of the usual four year program. The main advantage of cutting a year from the 4 year program is to reduce the tuition costs by 25%. Neither the quality nor length of the education gets […]
USCIS ISSUES CONTROVERSIAL CLARIFICATION OF REQUIREMENTS FOR AGENTS FILING AS PETITIONERS FOR O AND P VISAS
U.S. Citizenship and Immigration Services (USCIS) issued a controversial clarification on October 7, 2009, for performing arts associations and their members of the regulatory requirements for agents who file as petitioners for the O and P visa classification. The agency said it issued the clarification in response to inquiries “that reveal confusion regarding the circumstances […]
H-1B BIGOTRY
There appears to be a troubling trend these days. Attacking the H-1B visa is code for keeping the Indians out. Leading the drumbeat against the H-1B are Senators Grassley (R-IA) and Durbin (D-IL), https://blog.cyrusmehta.com/News.aspx. In his latest missive to the new USCIS Director, Senator Grassley makes H-1B bigotry politically respectable, http://tinylink.com/?I38d5pyKzi. While no one is […]
