ILW.COM - the immigration portal Immigration Daily

Home Page


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

移民日报

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE

Immigration Daily


Chinese Immig. Daily




The leading
immigration law
publisher - over
50000 pages of
free information!
Copyright
© 1995-
ILW.COM,
American
Immigration LLC.

View RSS Feed

Recent Blogs Posts

  1. CBP is Creating Facial Recognition Technology to Turn Your face into Your Papers

    by , 02-22-2018 at 10:31 AM (Matthew Kolken on Deportation And Removal)
    Welcome to the Constitution Free Zone... I miss America.



    Via The Week Magazine:


    "Meanwhile, CBP is in the process of creating facial recognition technology that will essentially turn people's faces into their papers. This will mean enhanced tracking of foreigners and citizens any time they go in and out of the country. But border patrol also has near carte blanche to set up interior checkpoints and stop buses and vehicles within 100 miles of the border. This is a huge swathe of land: Two-thirds of Americans live there. So every time anyone—American or not—passes through these checkpoints, their movements will be potentially scanned and recorded.

    If ICE and CBP gain access to the NSA's surveillance and combine it with their own spying capacities, they will literally obtain Big Brother-style powers to track and monitor almost anyone on U.S. soil. And they will be able to use this information to detain, arrest, and go after people in other ways. This should be terrifying to all of us."

    Click here for the full article.
  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 02-21-2018 at 02:49 PM by CShusterman

  3. SEVEN THINGS TO REMEMBER ABOUT THE H-1B CAP

    by , 02-21-2018 at 02:23 PM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo

    1.These types of cases are subject to the H-1B cap:


    • International students working on an EAD card under an OPT or CPT program after having attended a U.S. school;
    • International employees working on a TN may need an H-1B filed for them in order for them to pursue a permanent residency (green card) case;
    • Prospective international employees in another visa status e.g. H-4, L-2, J-1, F-1;- H-1B workers with a cap exempt organization; and
    • Prospective international employees currently living abroad.


    2.These types of cases that are not subject to H-1B cap:


    • H-1B amendments/extensions/transfers
    • When the employee has been in H-1B status for less than 6 years
    • Trade Visas (H-1B1, E-3, TN-1) Chile, Singapore, Australia, Canada, Mexico
    • MDs who have received a J-waiver of their 2 years foreign residency requirement.
    • H-1Bs filed by institution of higher education (or its affiliated or related nonprofit entities), a nonprofit research organization, or a government research organization.



    3. Employees with a U.S. master’s degree or higher get two chances at the H-1B cap. The USCIS first runs a Masters Cap H-1B lottery to determine 20,000 lottery winners. All H-1B applicants who lose this lottery are then placed in the general 65,000 H-1B lottery.

    4. Cap-Gap Rule: USCIS automatically extends the H-1B status of OPT F-1 students who win the H-1B lottery. The OPT F-1 status is extended through October 1, at which point the status converts to H-1B by operation of law.

    5. An Employee does not have to hold H-1B status for the employer to initiate green card process. This can be started while the employee is on F-1 or most other statuses.

    6. We do not recommend that F-1 students travel outside the US while their H-1B cap petition is pending at USCIS. USCIS may consider the petition to be abandoned. If the F-1 student does travel, the employee is required to apply for an H-1B visa abroad before re-entering the US.

    7. The employee’s proposed worksite may not change until the H-1B CAP petition is approved. If the worksite changes the USCIS is inclined to deny the case. If possible the H-1B cap petition should be upgraded via Premium Processing. Upon approval of the H-1B, the employer can file an H-1B amendment.

    __________
    Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at www.musillo.com and www.ilw.com. You can also visit us on Facebook, Twitter,and LinknedIn.

  4. Your Affirmative Asylum Case Was Denied. Now What? (Part 1)

    It’s getting more and more difficult to win an asylum case at the Asylum Office. So if your case is not approved, what happens?


    For asylum seekers and pizza lovers, this guy is bad news.


    For affirmative asylum cases, there are two possible negative outcomes at the Asylum Office level: Denial and Referral.

    Denials occur only if you are “in status,” meaning you have some other type of non-immigrant status aside from the pending asylum case. Under the old system (that existed from December 2014 to January 2018), where cases were interviewed in the order received, very few applicants were “in status” by the time of their asylum decision. This is because the cases took years, and very few non-immigrant visas allow an alien to remain lawfully in the U.S. for that long (some exceptions might be the F, J, and H1b visas).

    Now, under the new system of last-in, first-out (which is pretty much the same as the pre-December 2014 system), we can expect many newly-filed cases to receive decisions much more quickly, so more applicants will be “in status” when they receive a decision.

    If the decision is "yes," then you receive asylum with all the accompanying benefits. But if the decision is "no" and you are still “in status,” the Asylum Office will give you a letter, called a Notice of Intent to Deny or NOID. The NOID provides a fairly detailed explanation of why your case is being denied, and it gives you 16 days to file a response. In the response, you can include new evidence and explain why the Asylum Office should grant your case.

    In the last few years, we have rarely seen NOIDs. However, before December 2014, we would see them now and again. Most often, we saw them when a new client came into the office seeking help with a response. The problem for a busy attorney is that the NOIDs give so little time to respond (16 days) and usually a few days had already passed before the person came for help.

    My experience with NOIDs is that the Asylum Office pays attention to the responses. I'd guess that we were successful in getting asylum for about 50% of the people who came to us with such letters. The lesson here is that if you get a NOID, you should do your best to respond. In some cases, it may be impossible to get the Asylum Office to reverse its decision. But as they say, you've got to play to win, so if you get a NOID, make sure to respond--you may turn an "intent to deny" into a grant.

    If you respond to the NOID and the Asylum Office still decides to deny your application (and assuming your status did not expire in the interim), you will receive a final denial. This means that your case is now over, and you can remain in the United States until your period of lawful stay ends. At that point, you are supposed to leave or seek some other status.

    The problem for many asylum seekers, however, is that they do not want to return home (they are asylum seekers, after all). Even though the Asylum Office has denied their case, they want an opportunity to present the case to an Immigration Judge. This makes sense, as many cases denied at the Asylum Office are granted in court. As I'll discuss in Part 2 (spoiler alert!), asylum cases denied by the Asylum Office are referred to Immigration Court if the applicant is out of status. But if you are denied and you are "in status," what can you do?

    If you received a final denial in your asylum case and you want to go to court, you have to re-apply for asylum at the Asylum Office. The procedure for a second application is different than for a first (check the I-589 instructions). Essentially, you submit a new application directly to the local asylum office, rather than file with a USCIS Service Center (initial asylum applications are sent to the Service Centers).

    In theory, for a second application, the Asylum Office will only consider events that occurred after the first application. In other words, they typically will not revisit the first asylum application. Instead, you need to present something new if you want them to grant your case. It's pretty rare that some new evidence arises between a first and second asylum application, and so the second application is likely to be denied. If the second application is denied, and you are now out of status, your case will be referred to an Immigration Judge, who will look at both your asylum cases.

    Given this cumbersome system of having to file a second case, some applicants prefer to file for asylum when their status is expired or close to expiring (but keep in mind the one-year filing deadline). These applicants do not want to leave the U.S., and they prefer to go directly to court if their case is denied. This is certainly a reasonable plan. However, I do think it is important to consider the pros and cons of this approach.

    On the plus side, if your denial arrives after your status has expired, you will go from the Asylum Office directly to court, so your case may move a bit faster. Also, of course, you get the chance to present your claim to an Immigration Judge. On the negative side, in order to make this happen, you have to wait until your status has expired (or is close to expiring) before you file your case. Some people may not like this delay. Also, you will not receive a NOID, and so you will only have a vague idea about the reason for the denial (when a case is referred to court, the Asylum Office does not give a detailed explanation of the reasons). Finally, you will not have an opportunity to rebut the Asylum Office's reasons for denying your case, which means you lose an opportunity to win the case after the NOID is issued. For me, there is no correct answer here. The time frame of when you choose to apply depends on which path you prefer.

    Of course, if you are out of status and receive a denial from the Asylum Office, your case will go to an Immigration Judge. But that is a topic for another day. Stay tuned....

    Originally posted on the Asylumist: www.Asylumist.com.
  5. DOJ Settles National Origin Discrimination Claim Against New York Restaurant

    By: Bruce Buchanan, Sebelist Buchanan Law

    The Division’s Immigrant and Employee Rights Section (IER), within the Department of Justice has reached a settlement with Food Love 125 Inc., d/b/a Ichiba Ramen, a New York City restaurant, to resolve an investigation into whether the restaurant violated the Immigration and Nationality Act’s (INA) anti-discrimination provision.

    The investigation was initiated by a worker, who filed a complaint with IER, alleging Ichiba Ramen’s former chef discriminated against a job applicant when it refused to hire him as a server because he was not Korean or Japanese. The investigation also revealed that prior chefs had not placed such limitations on the restaurant’s hiring of servers. The INA’s anti-discrimination provision prohibits employers with four to 14 employees from discriminating against individuals because of their national origin.

    Under the settlement agreement, Ichiba Ramen will pay a civil penalty of $2000, undergo training on the INA’s anti-discrimination provision, and post notices informing workers about their rights under the INA. The restaurant previously paid $1,760 in back pay to the affected applicant.

    This national origin settlement with the IER is fairly rare as the IER only has jurisdiction on national origin claims involving employers with four to 14 employees. Most national origin claims are filed with the EEOC, who has jurisdiction on national origin claims involving employers with 15 or more employees.

    For answers to many other questions related to the IER, national origin discrimination, and immigration compliance, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, and is available at http://www.amazon.com/dp/0997083379.
Put Free Immigration Law Headlines On Your Website

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers Enter your email address here: