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Carl Shusterman's Immigration Update

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  1. Essential Steps To Avoid RFEs On H1B Petitions

    Between January 1 and August 31 2017, USCIS issued 85,000 requests for evidence (RFEs) for H1B petitions. This was a 45% increase over the same period in 2016.
    We are now in H1B cap season and there are some important factors to take note of in preparing H1B petitions:

    Timing:
    • H1B cap-subject petitions must be received by USCIS between April 2 and April 6 to be accepted in the H1B lottery.


    The following are common types of RFE’s issued by USCIS:
    • The Level 1 wage is inappropriate given the complexity of the job duties.
    • The position is not a specialty occupation because the Level 1 wage indicates it is an entry-level position.
    • A university degree is not required for the position.
    • Even if the position is a specialty occupation, the beneficiary does not qualify for the position for one of the following reasons:





    • U.S. degree does not qualify the beneficiary for the position as it is not related.
    • Equivalent foreign degree is not related to the position.
    • Equivalent combination of degree and work experience does not qualify the beneficiary for the position.
    • Students on OPT EAD. USCIS may review whether the F-1 student is properly maintaining his/her status and whether the practical training is related to the degree.
    • Outsourcing. Does the petitioner have the “right to control” the beneficiary when he/she is employed at an offsite location?


    Therefore, when preparing H1B petitions, it is important to consider the position, degree required, wage level, beneficiary’s qualifications, student status and practical training as well as the documentation supporting the employer’s right to control the beneficiary at an offsite location.

    On February 22, 2018, the USCIS issued a memo which requires outsourcing firms filing H1B petitions to list specific work assignments, including dates and locations, and to verify the “employer-employee” relationship on H1B petitions. This is to insure that the workers will not be underpaid or perform “non-specialty” jobs when they are contracted out to 3rd-party worksites.

    Updated 03-09-2018 at 05:20 PM by CShusterman

  2. CSPA: Rodriguez Tovar Decision Could Help Keep Families Together

    On February 14, 2018, the US Court of Appeals for the 9th Circuit, in Margarito Rodriguez Tovar v. Jefferson Sessions reinterpreted a section of the Child Status Protection Act (CSPA) in a way which could help keep many immigrant families intact.

    

    The Court overturned a decision by the Board of Immigration Appeals (BIA) that the son of a US citizen father who had waited in line for a green card for many years be forced to leave the US for a decade or more.

    Margarito Rodriguez Tovar was born in Mexico in 1983.

    In 2000, at the age of 17, he entered the US. On April 30, 2001, his father, who was a lawful permanent resident, sponsored him for a green card. In 2005, the USCIS approved the family-based 2A visa petition.


    In 2006, his father became a naturalized US citizen. The child’s 2A priority date (minor, unmarried sons/daughters of lawful permanent residents) became current and, in 2008, he filed for adjustment of status under section 245i.


    The USCIS denied his application on the ground that he had aged-out and that since the family-based 1st preference (adult unmarried sons/daughters of US citizens) priority dates were backlogged to 1992, his priority date would not become current for more than a decade.


    He was placed under removal proceedings where he renewed his application for adjustment of status.

    However, both the Immigration Judge and the BIA denied his application and ordered him to leave the US.


    The IJ and the Board cited the BIA’s published opinion in Matter of Zamora-Molina, 25 I. & N. Dec. 606 (BIA 2011). Zamora-Molina involved a similar fact pattern. The respondent’s LPR mother had originally sponsored her child under the family 2A category, and became naturalized after the child’s 21st birthday. The respondent argued that had the mother not naturalized, he could have utilized CSPA’s “opt-out” provision and used the CSPA age formula to adjust his status under the 2A category. The BIA disagreed and held that since the mother had naturalized, the issue was whether the CSPA age formula applies to “immediate relatives” of US citizens. The section of law in question states that only if the parent naturalizes prior to the child’s turning 21 can the child be considered an immediate relative of a US citizen. The BIA ruled that this referred to the child’s biological age.


    In Rodriguez Tovar, the 3-judge panel disagreed with the holding in Zamora-Molina andunanimously held that it would make no sense for Congress to punish a child simply because his sponsoring parent became a US citizen. They determined that the section of CSPA that refers to immediate relatives should be read to refer to a person’s statutory (CSPA) age rather than to his/her biological age.


    Applying the CSPA formula, Rodriguez Tovar’s age would be under 21 (24 years when his priority date became current on June 1, 2007 minus the 4 years that the I-130 was pending before the USCIS), and he would be eligible to adjust his status to permanent resident as an immediate relative of a US citizen parent.


    The opinion in Rodriguez Tovar succinctly states the rationale for the decision as follows:

    "In sum, the government’s position is that because
    Rodriguez Tovar’s father became a citizen, Rodriguez Tovar
    must now wait decades longer for a visa than if his father had
    remained an LPR. In the meantime the government seeks to
    deport him to Mexico, with any future return subject to
    unforeseeable modifications to the current immigration laws.
    As we explain in the remainder of this opinion, the correct
    interpretation of the statute does not lead to this absurd result,
    but rather to his entitlement to an immediately available visa.

    It remains to be seen whether the government will ask the Supreme Court to review this decision.

    Updated 03-09-2018 at 05:23 PM by CShusterman

  3. March Visa Bulletin: Time For Congress To End The 7% Per-Country Limitation


    The State Department released the March 2018 Visa Bulletin today. As Congress is currently debating immigration policy, this would be a perfect time for Congress to end the outmoded and unfair 7% per-country limitation.


    Employment-Based Categories

    The worldwide employment-based categories all remain current.

    There is considerable movement for persons born in mainland China. The EB-2 category advances by 4 months while EB-3 for professionals and skilled workers moves ahead by 7 months. EB-3 for unskilled workers advances by over 2 months while EB-5 for investors remains frozen.


    The gains are more modest for persons born in India. The EB-2 category advances by 3 weeks while EB-3 moves ahead by 2 months.

    Philippines EB-3 adva
    nces by 2 1/2 months.

    Mexico EB-4 moves forward by 1 month while EB-4 for El Salvador, Guatemala and Honduras remains frozen.



    Family-Based Categories

    The worldwide family-based categories, all of which are backlogged for years, each inch forward by 1 to 6 weeks.

    The family-based categories for Mexico and the Philippines, some of which are backlogged not just years but decades, advance from 1 week to 2 months with the exception of the Mexico 3rd which remains frozen at June 22, 1995, more than 10 years longer than the worldwide category.

    The 4th preference category for India moves forward by 3 weeks to February 1, 2004.



    What Congress Needs to Do


    Millions of people who have been playing by the rules have been waiting in line for green cards, some over 20 years, all because when the law was written over 50 years ago, Congress imposed a severe 7% per-country limitation on the number of persons born in a particular country who are permitted to immigrate to the US annually.



    This outdated system has produced many unfair and undesirable results. Brothers and sisters of US citizens who are born in the Philippines and Mexico are forced not only to have to wait in line for over 20 years to get a green card, but to have to leave their “aged-out” children behind when they do.


    Scientists and computer engineers can get H-1B visas to work in the US irrespective of their countries of birth, but if they happen to be born in China or India, they are forced to wait in line many additional years to obtain green cards. Had they been born in a country like Cuba or Iraq, the process would be relatively quick and straight forward. This is very unfair and outdated, and needs to be changed.


    Since Congress is debating immigration policy this week, this would be a great time to finally fix the outdated 7% per-country limitation. Remove it in the employment-based categories and raise it in the family-based categories.

    Updated 02-12-2018 at 04:05 PM by CShusterman

  4. Dreamers Should Not be Held Hostage to An Ugly Anti-Immigration Agenda

    The clock is ticking for the Dreamers. Last September, President Trump, in response to the threat of a lawsuit by 10 Republican Attorney Generals, announced that DACA would be ended on March 5, 2018. He stated that he would be pleased to sign legislation which would benefit Dreamers, and that 6 months was plenty of time for Congress to pass a bill.


    Since then, this deal has been kicked down the road again and again. The present deadline of February 8 is rapidly approaching and instead of a deal being on the horizon, the President is now demanding that Congress adopt an extreme anti-immigration agenda as the price for helping the Dreamers. He insists that Congress must appropriate $25 billion for a border wall with Mexico and fund the hiring of many thousands of new CBP and ICE officers as well as hundreds of new Immigration Judges and ICE attorneys.

    But that’s only the beginning.

    His biggest demand has nothing to do with DACA or even immigration enforcement. It involves appeasing anti-immigration extremists by dramatically curtailing legal immigration to the US. He wants to reduce the number of green cards granted each year by over 40%.
    What about the millions of relatives of US citizens who have been playing by the rules and have been waiting in line for years or even decades to get green cards?

    Under Trump’s plan, they would be thrown under the bus. Our country would cease to honor its commitment to upholding our immigration laws.

    The President characterizes this plan as a “fair compromise”. In reality, nothing could be further from the truth. There is widespread agreement in Congress and among the American people that a law should be enacted to allow the Dreamers to continue to live and work in the US. However, depriving millions of people who have waited in line for many years of their legal right to reunite with their families in the US, is a cruel imposition which is supported only by a small anti-immigrant fringe in the President’s own party.



    President Trump’s cover for this deceit is that we should have a “merit-based” immigration system, not one based primarily on family relationships. This sounds good. We could abolish the visa lottery and the family-based sibling category and give these visa numbers to the employment-based categories. Yet the legislation that Trump is demanding in exchange for helping the Dreamers would drastically cut family immigration and do also nothing to increase employment-based immigration. Instead, it would simply throw hundreds of thousands of green cards into the trash bin each year.
    What is the “merit” in this?

    His proposal is unworthy of our country and our people, almost all of whom are either immigrants or the descendants of immigrants. We are a country which prides itself on judging people according to their individual merits rather than on the basis of their race, religion or nationality. Yet, the agenda that Trump is supporting is reminiscent of the restrictionist immigration laws of the 1920s which were designed to prevent hundreds of thousands of Catholic and Jewish families from immigrating to the US. Now, the aim is apparently to greatly reduce the number of immigrants from Asia and Latin America.

    The President should be ashamed to hold the Dreamers hostage to such an ugly and un-American piece of legislation.

    Congress should pass, and the President should sign, the DREAM Act, a bill which has been introduced in every Congress since 2001, and not let the Dreamers be held hostage to an extreme anti-immigrant agenda.

    Updated 03-09-2018 at 05:11 PM by CShusterman

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