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  1. H-1B CAP 2018: NEWS AND NOTES

    by , 02-07-2018 at 01:17 PM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo

    The H-1B cap filing date will be here before you know it. New H-1Bs are subject to the H-1B cap and must be filed on April 2-6, 2018, for a start date of October 1, 2018. The USCIS treats all H-1Bs that are filed April 2-6 as if they were filed on the first day of H-1B season.

    The H-1B cap will surely be oversubscribed next year. When the H-1B cap is oversubscribed, the USCIS holds an H-1B lottery, which is what they did this past April. In April 2017, 42% of H-1Bs that were filed on April 1 “won” the H-1B lottery and 58% lost the H-1B lottery.

    This year we are expecting that fewer H-1Bs will be filed than in 2017. It would not surprise us if the H-1B lottery winners exceed the number of H-1B lottery losers.

    A variety of types of case are subject to 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.

    These types of case are not subject to H-1B cap:

    • H-1B amendments/extensions/transfers
    • H-1B in the past where employee has used 6 years
    • Trade Visas (H-1B1, E-3, TN-1) Chile, Singapore, Australia, Canada, Mexico
    • Institution of higher education (or its affiliated or related nonprofit entities), a nonprofit research organization, or a government research organization.

    Please contact us if you have any questions or are looking for representation in filing H-1B cap petitions.


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

    Updated 02-07-2018 at 01:22 PM by CMusillo

  2. The Asylum Office Is Getting Tougher (Probably)

    Last week, the Asylum Division changed the way it processes cases. Instead of interviewing asylum cases in the order they were filed (first-in, first-out), cases will now be interviewed on a last-in, first-out or LI-FO basis. We've been learning more about the reasons for this change, and I want to share what I've heard here. But before I get to that, I want to discuss another important change that has recently become apparent: The dramatic drop in grant rates for cases at most asylum offices.

    The new Asylum Officer training regimen.

    The below chart compares asylum approval rates at the various asylum offices for the months of December 2016 and December 2017 (the most recent month when data is available). Admittedly, this is a snapshot of events, and an imperfect snapshot at that. Nevertheless, I think it illustrates a larger trend.

    The left number in each column represents the number of cases approved during the month. The number on the right is the number of cases completed. The percentage shows the percentage of cases approved in that office. So in December 2016, Arlington approved 89 cases out of 317 completed, meaning that 28% of completed cases were approved. Conversely, 72% of applicants were denied asylum or referred to court, but that includes people who failed to show up for their interview, so the denial rate for people who actually appear is not as bad as it seems from the chart (as they say, in life, eighty percent of success is showing up). With that out of the way, here are the stats:

    Asylum Office December 2016 December 2017
    Arlington 89/317 (28%) 80/276 (29%)
    Boston 45/108 (42%) 27/168 (16%)
    Chicago 75/186 (40%) 80/362 (22%)
    Houston 28/119 (24%) 58/437 (13%)
    Los Angeles 258/528 (49%) 389/1195 (33%)
    Miami 73/243 (30%) 76/650 (12%)
    Newark 118/358 (33%) 155/866 (18%)
    New York 103/496 (21%) 87/858 (10%)
    New Orleans 41/83 (49%) 83/188 (44%)
    San Francisco 219/303 (72%) 196/429 (46%)
    United States 1049/2741 (38.3%) 1231/5429 (22.7%)

    So you can see that asylum grant rates are pretty dramatically down at most offices, and that for the entire country, they are down about 40% (from 38.3% to 22.7%) (you can see the source for these statistics here for 2016 and here for 2017). While the various grant rates could represent anomalies, they comport with larger trends, as shown in the next chart, which lists grant rates for the U.S. as a whole over the last few years:

    Fiscal Year Asylum Grant Rate
    FY 2015 45%
    FY 2016 41%
    FY 2017 34%
    FY 2018 26%

    You can see from this chart that asylum grant rates have been dropping since FY 2015 (which began on October 1, 2014), but the decrease is more pronounced in the two most recent fiscal years (and of course, we are only a few months into FY 2018). Further, if the December 2017 data is any indicator, the grant rate is continuing to drop.

    My first question--and be forewarned, I don't really intend to answer these questions--is, Why is this happening? The temptation is to attribute the drop to President Trump's anti-immigrant agenda, but I don't find that explanation very convincing. First, grant rates began to fall long before Mr. Trump took office. Second, even after he was sworn in--in the second quarter of FY 2017--it takes months to implement new policies. Most asylum officers were hired pre-Trump, and that was especially true in FY 2017, since it takes time to hire and train new people. In addition, I have not observed any real changes in the pool of asylum officers that I meet (then again, the grant rate at my local office--Arlington--seems to have held steady, at least as illustrated in the first chart).

    So if it's not President Trump, what's going on? One possibility--and I suspect this is the explanation that the Asylum Division favors--is that a higher portion of cases interviewed in recent years are meritless. In other words, as the backlog grew and delays became longer, people with weak cases were incentivized to file for asylum in order to get their employment authorization document ("EAD"). These people knew that their cases would take years, and so they filed mostly to obtain some status here and work legally. But now, as more and more of these people are reaching the interview stage, their cases are being denied. There is some evidence for this theory--according to the Asylum Division, of the 314,000 backlogged asylum cases, 50,000+ applications were filed more than 10 years after the applicant entered the United States. For various reasons, such cases are more likely to be meritless, and--even if they are legitimate--they are more likely to be denied due to the one year asylum filing deadline.

    If this second explanation is correct, then perhaps there will be a silver lining to the recent change in how asylum cases are interviewed. If people get faster interviews, maybe fewer meritless applicants will seek asylum.

    Whether or not this will work, we shall see. But a test is soon coming (probably). The Trump Administration has ended TPS (Temporary Protected Status) for El Salvador and other countries. It has also terminated the DACA program. This means that in the absence of a legislative fix, hundreds of thousands of people will have no way to avoid deportation other than to go into hiding or to seek asylum. You can bet that many of them will seek asylum (and indeed, given the violent countries from whence they came, many have legitimate reasons to fear return).

    We know from a recent meeting at the Arlington Asylum Office that the end of TPS and DACA were two reasons for changing to the FI-LO process. But whether this new procedure will stem the potential tidal wave of applications, I have my doubts.

    All this brings us to the final question (for today)--What does this mean for asylum seekers? As usual, I don't have a good answer. People filing now can probably expect an interview soon and should submit all evidence so they are ready for the interview. However, if volume is too high, not everyone will get an interview. My impression is that if the interview is not scheduled within 21 days of receiving the receipt, then the case will "disappear" and will only be interviewed once the Asylum Office starts working on backlogged cases. It's likely that some cases will disappear, since the number of people seeking asylum is still out-pacing the government's ability to interview applicants. Also, there are (once again) increasing numbers of asylum seekers arriving at the U.S./Mexico border, and the Asylum Offices must devote resources to those cases as well.

    Local offices control the expedite process and the short list, and it seems that most offices will continue to offer those options. However, the Asylum Division is expecting fewer "no shows" with the new system, and so there may be less slots available for expedited or short-listed cases.

    Finally, under the pre-December 2014 system, when an asylum case was sent to Immigration Court, the judge would schedule a quick hearing date for any applicant who had not yet received his EAD (in an effort to dissuade meritless applicants from seeking asylum merely to get an EAD). It looks like the Immigration Courts will again be doing this same thing, and so if you have a fast asylum interview and you are referred to court, you should be prepared for a fast hearing date in court.

    For what it's worth, my impression is that the Asylum Division is well aware of the pain it will inflict by re-ordering how asylum cases are interviewed. But they are looking at the "big picture" and they hope that changing to a FI-LO system will reduce meritless applications and ultimately benefit legitimate asylum seekers. I hope they are correct, but until then, I fear things will be worse before they get better.

    Originally posted on the Asylumist:
    Tags: asylum, backlog Add / Edit Tags
  3. Trump Says He Would "Love" Another Shutdown if Congress Refuses Drastic Cuts in Nonwhite Legal Immigration. Roger Algase

    Update February 8, at 11:40 am:

    In a reminder that immigration is not (or should not be) a partisan issue; and that there are responsible leaders of good will in both parties who believe that immigrants are part of America and should be welcomed, not demonized and scapegoated based on where they come from, their religion or the color of their skins, former president George W. Bush stated on February 7 that, with regard to immigrants:

    "We ought to say thank you and welcome them."

    Bush also said, concerning DACA recipients, that:

    " America's their home."

    This is welcome reminder that there are ways to develop rational immigration policies that serve the interests of the American people and promote our deepest values of the dignity and equality of everyone, rather than basing these policies on exclusion and bigotry against immigrants from places that our current president regards as "shithole countries", while trying to overturn fifty years of tolerance and acceptance of non-European immigrants by destroying the family immigration and diversity lottery systems which are at the heart of our immigration system now.

    See my original comments below:

    On February 6, Trump escalated his obsession with eliminating critically important legal visas which have enabled some 30 for 40 million Asian, African, Latin American and other non-white immigrants to come to the United States in the past few decades and have, according to all expert opinion, reduced the white population of America as a total percentage of the overall ethnic makeup of the nation.

    In a White House meeting, Trump told Congressional figures present that he would "love" to see another government shutdown if his demand to eliminate the diversity visa lottery, and family reunification green cards for parents, siblings and adult children of US citizens are not agreed to by Congress.

    This takes Trump's previous demands, which were to trade relief for DACA immigrants in return for border wall funding and elimination of the above legal visas, to a new level. The Democrats and other immigration supporters in Congress have agreed to separate DACA from the issue of government funding, so Trump can no longer blame the Dreamers, or their supporters, for that impasse.

    Instead, Trump has made his demands for these huge cutbacks in nonwhite immigration, which most serious analysts agree would be the result of eliminating the above two visa proposals, the condition - not for DACA relief, which is now no longer part of shutdown negotiations - but for keeping the entire federal government open.

    Why is Trump so strenuously opposed to family reunification green cards, also known by his pejorative term "chain migration" which he called "horrible" in a December 29, 2017 tweet? Why does he want to eliminate the diversity visa lottery, which he called "ridiculous" in the same tweet.

    The answer is that both family reunification and the green card lottery (initially called the "AA-1" lottery) were originally enacted in the belief that they would boost white, European immigration to make up for the fact that the 1965 immigration law had abolished the 1924 "national origins" immigration act which favored northern Europe, and replaced it with a system that was open to the the entire world. I have discussed this in more detail in previous comments.

    However, neither family reunification nor the current visa lottery system, dating from 1995, had the expected effect of maintaining or bolstering the dominance of white immigrants. Instead, they led to large increases in non-European immigration which had a profound change on the ethnic makeup of America, making the country less white than before, and leading to a future in which the white population could one day become a minority.
    As the San Francisco Chronicle reports:

    If Trump's plan is not implemented, the white share of the population is expected to fall from above 60 per cent in 2018 to below 45 percent in 2060. The Post's lower estimate of the impact of Trump's proposal show whites staying the majority group until 2046."

    In other words, Trump wants to cut back in legal immigration in order to keep, or make, America whiter.

    Trump's program for a whiter America could also be looked in broader terms as consisting of three stages. The first stage, which dominated his first year in office, was an expanding of deportation and incarceration to affect non-criminal unauthorized immigrants, in a major reversal of President Obama's (ostensible) policies.

    Now, in this second year of the Trump Era, the focus is on gutting the family and diversity lottery-based legal immigration system, in order cut back in non-European immigration. (Immigration from "countries like Norway" will also be impacted too, but not nearly as much, as immigration from what Trump has called the "shithole" countries where people have darker skins.)

    What could happen in the third and fourth years of Donald Trump's America? It would not be far fetched to look for a push to nullify the 14th amendment to the Constitution by taking away US citizenship from millions of Latino, Asian and black American-born children based on the immigration status of their parents. This was also a major part of Trump's campaign.

    With Donald Trump, no matter how grim the picture may seem at the present for immigration in America, we have to look ahead to the future. It can always get worse. If immigration advocates, the American public, and their elected representatives do not stand up against Trump's vision of Making America White Again, it is very likely to become worse.

    Roger Algase
    Attorney at Law

    Updated 02-08-2018 at 01:37 PM by ImmigrationLawBlogs

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