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Carl Shusterman's Immigration Update

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  1. I-SQUARED BILL: MORE H-1B VISAS & GREEN CARDS

    http://shusterman.com/images/hatch.png
    On January 13, a bipartisan group of Senators introduced the Immigration Innovation (“I-Squared”) Act of 2015.

    The Act would create a much-needed overhaul of our broken legal immigration system. It would dramatically raise the H-1B cap, and would provide much-needed reforms of the employment-based preference system for green cards. It would also raise the per-country cap for family-based green cards.

    What follows is a brief summary of the I-Squared Act.

    Temporary Visas

    • Raise the general H-1B cap from 65,000 to 115,000
    • Allow the cap to go up (but not above 195,000) within any fiscal year where early filings exceed cap and require the cap to go down in a following fiscal year (but not below 115,000) if usage at the end of any fiscal year is below that particular year’s cap
    • Remove the 20,000 limit for the Masters’ cap
    • Reform fees on H-1B visas and employment-based green cards; use money from these fees to fund a grant program to promote STEM education and worker retraining to be administered by the states
    • Grant employment authorization for H-4 visa holders
    • Establish a grace period during which foreign workers can change jobs and not be out of status and restore visa revalidation for E, H, L, O and P visas
    • Allow dual intent for foreign students at US universities



    Green Cards

    • Enable the recapture of green card numbers that were approved by Congress in previous years but were not used, and continue this policy going forward through the roll-over of unused green cards in future fiscal years to the following fiscal year
    • Exempt certain categories of persons from the employment-based green card cap:
      • Dependents of employment-based immigrant visa recipients
      • US STEM advance degree holders
      • Persons of extraordinary ability
      • Outstanding professors and researchers


    • Eliminates per-country limits for employment-based green cards
    • Increases per-country limits for family-based green cards from 7% to 15%


    The I-Squared bill would remove many of the artificial limits on obtaining temporary work visas and permanent residence for the next generation of entrepreneurs and leaders in science and technology. Providing more visas for these innovators will, in turn, create additional jobs for US workers.
  2. EB-3 CATEGORY GREAT NEWS IN FEBRUARY VISA BULLETIN!

    http://shusterman.com/images/eb3-workers.jpg Fantastic news for those in the EB-3 category in the February 2015 Visa Bulletin!

    Two years ago, the wait for those in the EB-3 category was almost 6 years to get a green card, even more for persons born in the Philippines (as well as China and India, which is a problem yet to be resolved by Congress). During the past 2 years, the wait has been shrinking and shrinking.


    Now, in the February 2015 Visa Bulletin, the wait has fallen to 13 months, and the State Department predicts even faster waiting times in the months ahead.


    This is an opportunity which you cannot afford to miss. If you qualify for a green card in the EB-3 category (Professionals and Skilled Workers), make sure your employer submits a PERM application for you immediately!


    If you are a Registered Nurse or a Physical Therapist, no PERM application is required. Your employer should submit an I-140 visa petition on your behalf as soon as possible. As soon as your priority date becomes current, apply for a green card using form I-485.


    EB-3 vs. H-1B

    This is especially great news for foreign-born students studying in the US. Once you graduate, you can apply for Optional Practical Training (OPT). OPT is a work permit which is valid for at least 12 months, or for some STEM jobs, up to 29 months.


    Since getting an H-1B temporary work visa is a 50-50 lottery these days, if your employer submits a PERM application or an I-140 petition at the beginning of your OPT period, you may be able to go directly from OPT to Green Card, and bypass H-1B altogether.


    This is great news for employers as well given the costs and uncertainty of obtaining H-1B status for essential employees.


    Don't hesitate, apply immediately!
  3. Will the H-1B Cap Be Raised this Year?

    http://shusterman.com/images/Computer-Repair-Support.jpg A bipartisan group of Senators lead by Orrin Hatch (R-UT) is trying to pass a bill which would raise the H-1B cap from 85,000 to 135,000. The I-Squared bill would do this by raising the general cap from 65,000 to 115,000 while leaving the master’s cap at 20,000.


    Does this bill stand a chance to be signed into law before the April 1st H-1B start date?


    Perhaps, but there are a lot of hurdles which must be overcome, including some internal battles within Hatch’s own party.

    Hatch, who heads the Republican’s High Tech Task Force recently stated: “Our high-skilled worker shortage has become a crisis.”

    However, not all his GOP colleagues agree.


    Two senior Republican Senators, Jeff Sessions (R-AL) and Charles Grassley (R-IN) argue that there is no shortage of high-tech workers in our country. In 2007, Grassley said: “Unfortunately, the H-1B program is so popular that it’s now replacing the U.S. labor force.” Senator Grassley is slated to become the Chairman of the Senate Judiciary Committee later in January when the Republicans take control of the Senate.


    Are Senators Sessions and Grassley champions of the American worker or are they simply anti-immigrant? As to the first issue, they have two of the worst voting records on labor-related issues according to the AFL-CIO. They both have negative voting records on immigration legislation.

    Even if the bipartisan coalition is somehow successful in getting the bill through Senator Grassley’s Committee and then approved by both the Senate and the House of Representatives, there is no guarantee that it would be signed into law by President Obama.


    The President does not like the idea of “piecemeal” immigration reform. Instead, he supports the idea of Comprehensive Immigration Reform (CIR). He would have signed the bipartisan CIR bill which was passed by the Senate in 2013, but Speaker of the House John Boehner (R-OH) declined to bring the bill to a vote in the House.


    That bill would have raised the H-1B cap to 180,000 rather than 135,000. Although the new legislation is a significant improvement to the status quo, it doesn't do enough to solve the larger problem. It all but insures that there will continue to be an “H-1B lottery” this year as over 172,000 H-1B petitions were submitted by employers in 2014.


    Not only that, but allowing more H-1B professionals to work in the U.S. without abolishing the “per country” quotas for employment-based green cards leaves workers born in India and China with little choice but to look elsewhere for jobs, thus threatening our country’s supremacy in various areas of science.


    Opponents of raising the H-1B cap should remember that until 1991, there was no cap of the number of H-1B visas, and yet there was virtually no criticism of the program in Congress.


    Maybe we should let the free market rather than the federal government decide how many H-1B professionals to hire.
  4. Obama's New Immigration Policy

    http://shusterman.com/images/obamas-immigration-policy.jpg On November 20, 2014, President Obama announced his long-awaited changes to our broken immigration system. None of the changes will take place immediately, and some hoped-for changes like recapture of lost EB numbers and counting only principals toward the 140,000 EB cap were not included in the new policy.

    Nevertheless, for 4-5 million persons, most of them undocumented, there is considerable good news.


    1. Deferred Action Relief for Parents (DARP) - Parents of young persons granted DACA will not receive any benefits under the President's new policy. However, certain parents of US citizens and green card holders will be able to apply for relief and work cards under DARP.


    The age of the child is irrelevant. Even if you are 50+ years old and your son/daughter gets a green card through his/her citizen spouse, you may be eligible for DARP. To qualify, you need to have resided in the US since January 1, 2010 and not be in lawful status on November 20, 2014. The background checks will be similar to those for DACA applicants. You can qualify even if you are under removal proceedings or are subject to a Final Order of Removal.


    The work permit and biometrics fee is currently $465.


    The application period will start in the Spring of 2015.


    2. Expansion of the DACA Program - The 31-year-old age cap for the Deferred Action for Childhood Arrivals (DACA) program will be removed. You must have be present in the US on January 1, 2010 (rather than on June 15, 2007) to qualify and be under the age of 16 when you entered the US. DACA work permits will now be issued for 3 years at a time instead of 2 years. You must be present in the US on November 20, 2014 and not be in lawful status.


    The application period will start within 90 days of November 20, 2014.


    3. Employment-Based (EB) Benefits - Most of these promised benefits are in the "Coming Attractions" category since they require regulations. We are informed that the long-awaited regulations for work permits for certain H-4 spouses will soon be finalized.


    Also, that certain persons with approved EB petitions who are waiting for their priority dates to become current may eventually be permitted to "pre-register" for adjustment of status which will allow them to obtain EADs and APs, and to change jobs. Regarding OPT, the STEM category will be expanded and the length of STEM-OPT extensions will grow. Also promised are benefits for foreign-born entrepreneurs.


    Again, don't look for any of these benefits in your Christmas stocking next month. Perhaps by the end of 2015.


    4. Other Benefits - These include items that have been on many immigrants' wish lists for years and years:

    • I-601A Provisional Waivers - Will be expanded to include spouses and children of LPRs;
    • Parole-in-Place - Will be expanded;
    • Advance Parole - DHS will apply standards in Matter of Arrabally-Yerrabelly;
    • Promises, Promises - DHS will clarify legal terms of art including "extreme hardship", "specialized knowledge", "same or similar" and everything from the PERM process to Immigration Court proceedings will be improved and modernized.



    Free Webinar


    Have any questions about President Obama's New Immigration Policy?


    Of course you do!


    Please sign-up for a Free Webinar about Obama's new immigration policy in which I will participate in along with attorneys from Wolfsdorf Rosenthal on Monday, December 1st at 12:30pm, Pacific Time.


    Need More Information?


    We link to DHS's "Fixing Our Broken Immigration System through Executive Action".


    This page links to over a dozen fun-filled pages designed which attempt to explain the changes to our immigration system being contemplated by the DHS.

    Updated 11-21-2014 at 01:30 PM by CShusterman

  5. Supreme Court and Consular Nonreviewability: Kerry v. Din


    http://shusterman.com/images/visa-application-denied.jpg When our Founding Fathers wrote the Constitution and the Bill of Rights and established the doctrine of separation of powers, they did not carve out an exception for consular nonreviewability. This came about much later as a result of ignominious laws and rulings which excluded Chinese immigrants from the United States.


    Today, if I, a US born citizen, were sponsoring my wife for a green card, and the USCIS denied her application without explaining why, I could sue the USCIS in Federal Court to challenge the decision.


    However, if a consular officer abroad did the same, I would not have access to the Federal Courts because of the doctrine of consular nonreviewability.


    Why should the Federal Courts lack jurisdiction over the decision of a State Department consular officer to deny a green card to the spouse of a US citizen when they clearly have jurisdiction to review an identical decision by a USCIS examiner? This makes no sense whatsoever.


    The Supreme Court’s recent decision to grant certiorari in Kerry v. Din, 718 F.3d 856 (9 Cir. 2013), a Circuit Court decision which relies on a tiny crack in this seemingly absurd doctrine, allows the Court to reexamine consular nonreviewability for the first time in over 40 years.


    Here is the story behind Kerry v. Din:


    In September 2006, Fauzia Din, a US citizen, married a man born in Afghanistan. The next month, she submitted an I-130 visa petition on his behalf. In 2008, the USCIS notified her that the petition was approved and, in September of that year, Ms. Din’s husband had his green card interview.


    He answered all the questions truthfully, including the ones regarding his employment as a payroll clerk for the Afghan Ministry of Social Welfare during the Taliban regime and his job as a clerk for the Afghan Ministry of Education for the new government which came to power after the US invasion. The interviewing officer informed him that he would receive his immigrant visa in the next few weeks.


    However, after many months of inquiries from him and his wife, in June 2009, he was informed that his visa had been denied and that he was ineligible for a waiver.


    After an inquiry as to why he was inadmissible, in July 2009, the US Embassy e-mailed him that his visa had been denied under 8 U.S.C. 1182(a)(3)(B). This section of law lists a wide variety of grounds of inadmissibility due to terrorist activities.


    Did the Embassy believe that he was a terrorist, or merely that he is inadmissible for having worked as a payroll clerk for the Taliban-controlled government? The State Department refused (and continues to refuse) to answer this all-important question.


    Ms. Din sued the State Department in Federal Court in an effort to get an answer. However, the District Court Judge dismissed her complaint citing the doctrine of consular nonreviewability.


    She appealed to this ruling to the US Court of Appeals for the 9th Circuit. On May 23, 2013, the Court ruled, in a split decision, that there is a limited exception to this doctrine which is applicable to her. They ordered the State Department to provide Ms. Din with a “facially legitimate and bona fide” reason for denying her husband’s immigrant visa citing the Supreme Court’s decision in Kleindienst v. Mandel, 408 U.S. 753 (1972).


    The Court stated that while generally, federal courts are without power to review the actions of consular officers:


    “...we have recognized a limited exception to the doctrine of consular nonreviewability. When the denial of a visa implicates the constitutional rights of an American citizen, we exercise ‘a highly constrained review solely to determine whether the consular official acted on the basis of a legitimate and bona fide reason.’”


    Why is the State Department challenging this extremely limited exception when their own Customer Service Statement to Visa Applicants states, “We promise to you, the visa applicant, that...we will explain the reason for any visa denial to you.”?


    Hopefully, the Supreme Court will rule that a US citizen who has been fighting to bring her husband to the US for over 8 years, is entitled to more than a citation to a code section as the reason why a consular officer denied her husband’s application to live together with her in the US.


    More importantly, the entire rationale behind the doctrine of consular nonreviewability is contrary to the concept of a free society in which citizens are guaranteed certain rights.


    The Supreme Court, in considering Kerry v. Din, should reexamine consular nonreviewability since this doctrine undermines the right of due process of law guaranteed in the Bill of Rights.


    The Supreme Court could uphold individual rights as intended by the framers of the Constitution and protect US citizens from the unchecked power of big government by following the logic of the dissent in US ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950) in which Justice Jackson, joined by Justices Black and Frankfurter, explains:


    “Now this American citizen is told he cannot bring his wife to the United States, but he will not be told why. He must abandon his bride to live in his own country or forsake his country to live with his bride...”


    “Security is like liberty in that many are the crimes committed in its name. The menace to the security of this country, be it great as it may, from this girl’s admission is as nothing compared to the menace to free institutions inherent in procedures of this pattern. In the name of security this police state justifies its arbitrary oppressions on evidence that is secret, because security might be prejudiced if it were brought to light in hearings. The plea that evidence of guilt must be secret is abhorrent to free men, because it provides a cloak for the malevolent, the misinformed, the meddlesome, and the corrupt to play the role of informer undetected and uncorrected...”
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