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    by , 05-03-2017 at 04:25 PM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo

    USCIS has just announced that it has completed data entry of all fiscal year 2018 H-1B cap-subject petitions selected in their computer-generated random process. It may take a week or so for all of the H-1B cap receipts to be delivered. If a Beneficiary has not received an H-1B receipt notice in the next week or so, it stands to reason that they have not “won” the H-1B lottery.

    Shortly, USCIS will begin returning all H-1B cap-subject petitions that were not selected. USCIS is unable to provide a definite time frame for returning these petitions. USCIS will issue an announcement once all of the unselected petitions have been returned.

    In order to balance the distribution of H-1B cap cases, USCIS is transferring some Form I-129 H-1B cap subject petitions from the Vermont Service Center to the California Service Center.

    Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at and You can also visit us on Facebook and follow us on Twitter.
  2. In Trump's America, Are Asylum Seekers at Risk of Arrest?

    A recent case from Florida has raised concern in the asylum-seeker community. On April 26, Marco Coello, a Venezuelan asylum seeker, went to his interview at the Miami Asylum Office. Instead of meeting with an officer to discuss his case, he was detained by Homeland Security officers.
    If you see these guys at your asylum interview, it's probably a bad sign.
    Fortunately, for Mr. Coello, he was released the next day, after various people--including Senator Marco Rubio--intervened on his behalf. An ICE spokesman said that he was detained "because he has a misdemeanor criminal conviction and had stayed in the U.S. longer than his visa allowed."

    I contacted Mr. Coello's attorney, Elizabeth Blandon, and learned that his conviction was for trespassing (he was originally charged with misdemeanor possession of marijuana). I also learned that the Asylum Office issued a letter on the day of his arrest stating that the case had been sent to the Immigration Court. In fact, Mr. Coello's case is not with the court, and the issue of jurisdiction (i.e., who will hear his case--an Asylum Officer or an Immigration Judge) is yet to be worked out. Until that happens, his case remains in limbo.

    Frankly, it is unclear to me why ICE detained Mr. Coello. His conviction was for a minor violation, which is probably not even a deportable offense. One possibility is that ICE targeted him due to the mistaken belief that he had more than one misdemeanor conviction (trespassing and marijuana possession). Another, more conspiracy-minded, possibility is that ICE arrested Mr. Coello because he was a well-known activist from Venezuela. As the situation in Venezuela has deteriorated, the number of asylum cases from that country has soared. Currently, Venezuelans are filing more affirmative asylum applications than people from any other country. Maybe ICE wanted to send a message in an effort to intimidate potential Venezuelan applicants and stem the tide of cases from that troubled country. Normally, I tend to shy away from such conspiracy theories, but in this case, where the applicant is well-known in his community, I am not so sure.

    Mr. Coello's case is not the only instance of an asylum seeker being detained since President Trump took office, and rumors have been swirling about the new hard-line approach of his Administration. We have heard reports about an HIV-positive Russian asylum seeker, who was detained after visiting the U.S. Virgin Islands and then returning to the mainland (the problem here is probably that a person must go through customs to enter the U.S. from the USVI, and he did not get Advance Parole before leaving and trying to return). He was held for a month before being released. There have also been examples of ICE officials arresting asylum seekers who have been charged with crimes when they appear in criminal court. (And of course, there are the thousands of asylum seekers who arrive via the Mexican border without a visa and who are detained when they request asylum--but this began en masse long before President Trump's time).

    It's not just asylum seekers who are being detained. Aliens applying for other USCIS benefits have also been arrested. For example, there were five cases where immigrants were notified to appear for USCIS interviews, and were then detained when they arrived at the USCIS office. Apparently, all five had prior deportation orders from Immigration Judges. There's also the case of a woman who was arrested at a courthouse after filing a protective order against her ex-boyfriend. According to one news source, the woman had an extensive criminal history and had illegally re-entered the United States after being deported.

    In addition to all this, there is the now-famous (at least in immigration circles) case from February of a domestic flight from San Francisco to New York where ICE agents checked IDs for everyone disembarking the plane (ICE claims that the searches were "consensual"). Supposedly, ICE was searching for an alien with a criminal record. Turns out, he wasn't even on the flight.

    So what does all this mean? Do asylum seekers risk arrest when they appear for their interview? Or when they show up for a court hearing? Or when they travel domestically? The short answer, at least for now, is no, no, and no.

    First, except for the person returning from the USVI, the common denominator in the above cases is that all the aliens had a criminal conviction and/or a deportation order. If you do not have a criminal record or a removal order, there is no reason to believe that ICE will detain you if you appear for an appointment, court date or domestic flight. Indeed, except for the examples above involving criminal convictions and deportation orders, I have not heard about any asylum applicants being detained.

    If you do have a criminal conviction (or even an arrest) or a removal order, then there is some risk, but it's unclear exactly how to assess that risk. How likely is it that a person with a criminal record or removal order will be detained if they appear for an interview? Does the likelihood of detention increase with the severity of the criminal conduct? I do not know, and I am not confident that the few examples discussed above help us evaluate the chance of trouble. But given that there is some risk, it seems worthwhile for anyone with a criminal conviction or a removal order to consult with an attorney before going to an appointment with USCIS.

    If I had a conviction or a deportation order, and I was scheduled for an asylum or other USCIS interview, I would want to know a few things from my lawyer. First, I would want to know the likelihood of obtaining the benefit that I have applied for. If my case is very weak and unlikely to succeed, maybe I would be less willing to appear for an interview where I risked detention. Also, I would want to know how seriously the government views my criminal conduct. If the conviction is very minor, I would expect that the likelihood of ICE detention is low (but maybe not, as Mr. Coello's trespassing conviction illustrates). If the conviction is serious--and many convictions subject an alien to mandatory detention--I would want to know that too. In fact, I would want to know all this before I even apply for asylum or other immigration benefit. Why start the process when it is unlikely I will be able to successfully complete it, especially if applying for the benefit exposes me to possible arrest?

    Every person must make his or her own decision, weighing the risk and reward of applying for an immigration benefit. But if you have been arrested or convicted of a crime, or if you already have a deportation order, it would be wise to talk to a lawyer before you file an application or attend an interview with USCIS.

    Originally posted on the Asylumist at
  3. Some Apples Fall Far from the Tree

    by , 05-03-2017 at 10:24 AM (Joel Stewart on PERM Labor Certification)
    The US Department of Labor recently issued two denials of PERM certification to Apple, the first US company with a market value above $700 billion.

    In one interesting case upholding denial of PERM approval, the Board of Alien Labor Certification (BALCA) cited important principles relating to typographical errors on the application form 9089 filed with the labor department by employers. In reporting the details of an alien worker’s experience gained over a period of 72 months with different employers, mostly abroad, the employer mistakenly wrote only 69 months of qualifying experience. See Apple, Inc., 2012-PER-03515 (April 24, 2017).

    The PERM process was created at the end of 2004 to promote expedited processing of applications which had previously been backlogged as much as seven years. Some delays had been caused by lethargic bureaucratic procedures, while others had to do with corrections, modifications and supplements to existing record files. The Department of Labor asserted that the new PERM process would use a zero-tolerance policy for any kind of errors, thus eliminating most reasons for long delays.

    After the PERM process began, the very first case to be appealed was HealthAmerica, in which an Employer had made a simple error on the form by typing the wrong date of publication for a newspaper advertisement. The regulations required two Sunday ads, but the employer (who had indeed placed two Sunday ads as required) put the date of the second ad eight days after the first date.

    The mistake seemed to be so insignificant that the employer was joined by the American Immigration Lawyers Association, which filed an amicus brief to appeal the decision. They argued that if the DOL applies a strict, zero-tolerance policy in its determinations, the electronic on-line form provided to the public should be user friendly to warn of data input errors. BALCA agreed and held that denial of certification for a minor, non-substantive error could not stand.

    In 2008, however, DOL overcame BALCA’s lenient policy towards typos by issuing regulations that specifically prohibit any kind of correction to a PERM application after it has been filed. Additionally, the new regulations prevent employers from providing such documentation because “typographical or similar errors are not immaterial if they cause an application to be denied based on regulatory requirements.” DOL believed that the correction of even the smallest typographical errors would be a “significant and costly resource drain on the PERM case management system and staff.”

    In another case, Apple, Inc., 2012-PER-03516, (April 24, 2017) decided the same day, BALCA upheld denial of certification because the employer had not matched the educational requirement (a Master’s Degree in Business, Operations, Supply Chain, or a related field of study and thirty-six months of experience) with the statement of the foreign worker’s experience (a Master’s degree in Mechanical Engineering).

    The employer argued that the coursework of the worker in graduate school, also listed on the form, required the same amount of time, coursework and specialized education as a Master’s degree in Business Operations, or Supply Chain, but the Board of Alien Labor Certifications disagreed, holding that despite the fact that the worker had equivalent coursework, “there is a difference in being exposed to a few…related courses during one’s graduate-level matriculation versus being immersed in a full course load of business classes (or a Master’s level business program) while in graduate school.”

    Denial of the first Apple case was based on a clear typographical error, while the second case was based on a subtle interpretation of the foreign worker’s educational qualifications of coursework in a field of study instead of a formal college level degree in that field of study.
  4. Asylum and Deportation in Ancient Greek Drama: Aeschylus' Suppliants and Euripides' Medea. A Message for Today? Roger Algase

    In the midst of the contentious battle which is now taking place over immigration and immigrant rights in the "New Era" of Donald Trump (to quote a recent remark by A.G. Jeff Sessions - not to be confused with the "New Order" in a certain central European country beginning eight decades ago), it is instructive to reflect that divisions and struggles over the status of foreigners and the degree to which they should be accepted into a given country's society are not new.

    In the West, these issues go back at least as far as ancient Greece in the Fifth Century B.C. In ancient Athens in particular, there was a large class of people known as "Metics", consisting both of people from other parts of Greece (Aristotle himself being a famous example), and people from non-Greek ("Barbarian") countries. Metics did not have the full rights of Athenian citizens, but were allowed to live legally in Athens, with at least some of the same rights and obligations as citizens.

    (The word "Metic" is Metoikos in ancient Greek, consisting of the words meta - change, and oikos - dwelling.)

    In many ways, Metics in ancient Athens were analogous to Lawful Permanent Residents of the United States today. The rights of foreigners in ancient Athens are a vast subject, far too complex to cover in detail in the following brief comment, but there are many excellent modern studies of this subject. See, for just one example, one available through an online publication, Sunoikisis Undergraduate Research Journal authored by Victoria Roeck called:

    Societal Attitudes toward Metics in Fifth-Century Athens through the Lens of Aeschylus's Suppliants and Euripides' Children of Hercules (2014)

    Ancient Athenian citizenship law is also a very broad subject as shown, to give only one example, in the law of the famous Athenian ruler Perlikles (Pericles) in 450 B.C. requiring that to be an Athenian citizen at birth, both of the child's parents must have been citizens, not only one, as previously required (there obviously being no 14th Amendment in effect at that time)!

    This law would, no doubt, have delighted Donald Trump and other present day supporters of changing the U.S. Constitution to eliminate universal birthright citizenship if they at been living in Athens at the time.

    But it is not my intention to discuss these issues further here. Instead, i will focus on two incidents from the works of two of the greatest dramatists of all time, Aeschylus and Euripides, to see how they dealt with two hotly contented and sensitive issues of their time and ours, namely asylum and deportation.

    In Suppliants (Iketides), by Aeschylus (ca. 525-456 B.C.) a group of women, all of whom are daughters of Danaos, the fugitive ex-king of Egypt, arrive in Greece (near the city of Argos), in order to seek asylum from the threat of forced marriage if they remain in Egypt (which, as the chorus of women in the play also makes clear, borders on Syria - another reminder of today's events ).

    Their father counsels them about the attitude and tone they need to adopt for their asylum application to the ruler of that city, Pelasgos (whose attitude toward refugees turns out to be more open-minded than that of another chief executive in a different, modern, country referred to below).

    In the words of Danaos, they must:

    "...answer the natives [citizens of Argos] in words that display respect, sorrow and need, as it is proper for aliens to do, explaining clearly this flight of yours which is not due to bloodshed. Let your speech, in the first place, not be accompanied by arrogance, and let it emerge from your disciplined faces and calm eyes that you are free of wantonness."

    Danaos continues, perhaps anticipating the influence of anti-immigrant attitudes among the leadership of a certain much larger and more powerful nation than the small polites of ancient Greece, more than 2,500 years later:

    "And be neither forward nor sluggish in speech: the people here are very ready to take offense."

    Most important of all, he concludes his advice as follows:

    "Remember to be yielding - you are a needy foreign refugee: bold speech does not suit those in a weak position."

    (memneso d'ekein. chreisos ei, xeini, fugas. thrasistomein gar ou prepei tous essonas.)

    Is this the same advice that lawyers are giving their clients in order to prepare for prepare for asylum hearings in the United States of America, ca. 2017 A.D.?

    Ultimately, Danaos' daughters' asylum petition is successful, leading to a series of dramatic events which I will discuss in the next part of this two-part series.

    In that forthcoming comment, I will also discuss a somewhat less successful (for the immigrant) "deportation hearing" in Euripides' Medea, one of the most famous plays in all of classical Greek drama, and one which in many ways anticipates the struggles of immigrants, and especially immigrant women, in America today.

    This is despite that fact that, fortunately, almost no immigrants, or women in general, ever respond today to the stress that Medea was under in the extreme way that she does in Euripides' play, as will also be shown further in my forthcoming comment on this drama.
    Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, Roger has been helping mainly skilled and professional immigrants from diverse parts of the world receive work visas and green cards.

    Roger also studied beginning ancient Greek at Phillips Academy, Andover, Mass. His email address is

    Note: The translations from Suppliants quoted above are by Alan H. Sommerstein, in Aeschylus: Persians Seven Against Thebes Suppliants Prometheus Bound

    Loeb Classical Library Copyright (C) 2008 by the President and Fellows of Harvard College

    Updated 05-05-2017 at 11:56 AM by ImmigrationLawBlogs

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