Posted by SherryNeal on March 12, 2010 in US Immigration Policy
Washington D.C. – In a decision issued today, the Ninth Circuit Court of Appeals adopted the arguments of the Legal Action Center (LAC), of the American Immigration Council, that the United States Citizenship and Immigration Services (USCIS) unlawfully imposed extra-regulatory requirements on a petition for a worker of “extraordinary ability” (EB-1). The case in question, Kazarian v. USCIS, involves a theoretical physicist whose employment-based visa was denied because he did not demonstrate “the research community’s reactions to his [scholarly] publications” – an arbitrary requirement with no justification in the law.
In today’s decision, the Ninth Circuit amended its previous ruling and reversed the agency’s interpretation. The court held that “neither USCIS nor an [Administrative Appeals Office] may unilaterally impose novel substantive or evidentiary requirements beyond those set forth [in the regulations].” The Ninth Circuit also found that the agency impermissibly added another unlawful criteria as well.
The case stems from a 2009 Ninth Circuit Court ruling in favor of USCIS. Following that ruling, the LAC and NAFSA submitted an amicus brief in support of rehearing Kazarian’s case. The LAC argued that USCIS erred by adding an additional requirement that did not exist under the law. Kazarian was represented pro bono in the rehearing petition by Wolfsdorf Immigration Law Group.
Today’s decision sends a clear message that USCIS must follow the law and provide a fair process. Unfortunately, this case is not an isolated incident and not the first time the LAC has successfully challenged the policies and practices of the agency. The LAC will continue to challenge similar attempts by the government to operate outside of the law.
“Immigration law is complicated enough without the immigration agency imposing additional requirements and burdens of proof that aren’t in the statute or regulations and that ultimately undermine the goal of attracting the best and brightest to our shores,” said Benjamin Johnson, Executive Director of the American Immigration Council.
This is exciting because it is almost directly on point with the issue at hand with the Neufeld Memo – can USCIS simply make up its own rules, or arbitrarily add additional requirements to existing law? The Ninth Circuit says absolutely not!
Posted by admin on March 3, 2010 in US Immigration Policy
On Feb. 24, 2010, Senators John Kerry (D-Mass.) and Richard Lugar (R-Ind.) introduced legislation into Congress known as the StartUp Visa Act of 2010. This Act was created to drive job creation and increase America’s global competiveness by assisting foreign national entrepreneurs secure visas to enter the United States, and eventually obtain permanent residency status. The Act will allow a foreign national to receive a two year visa (temporarily called the EB-6 visa) if they can show a qualified US investor is willing to invest $250,000 in their startup business. If after two years the foreign national can show that he or she has generated five full time jobs in the US and either attracted $1 million in additional investment capital or achieved $1 million in revenue, then he or she will receive permanent legal resident status.
“Global competition for talent and investment grows more intense daily and the United States must step up or be left behind,” comments Senator Kerry, “[e]verywhere Dick Lugar and I travel for the Foreign Relations Committee, we see firsthand the entrepreneurial spirit driving the economies of our competitors. Creating a new magnet for innovations and innovators to come to the United States and create jobs here will offer our economy a double shot in the arm- robust creation at home and reaffirmation that we’re the world’s best place to do business.”
Already more than 160 venture capitalists from around the national have endorsed the senator’s proposal. If passed, this Act will offer entrepreneurial immigrants an opportunity to bring business to the US, create jobs, and obtain permanent legal residency status- a win-win situation for all involved.
For the text of the Act see: http://startupvisa.files.wordpress.com/2010/02/startup-visa-act_-final-final-1.pdf
Personal Message from Michael Hammond
We have just been advised that the USCIS is holding a meeting this Thursday, February 18th, in Washington DC to allow questions and receive input regarding the recent Neufeld Memo. If the staffing model and the use of H-1b workers represents a large portion of your business, I strongly urge you to attend in person. At the very least, I encourage you to attend via phone. I will be attending in person. If you have any questions, please let me know.
Text of the Notice we Received This Afternoon
To: USCIS National Stakeholders
From: U.S. Citizenship & Immigration Services – Office of Public Engagement
Subject: Collaboration Session – Determining Employer-Employee Relationships for Adjudication of H-1B Petitions
February 18, 2010 @ 1:00pm EST
Tomich Center, 111 Massachusetts Ave NW
The USCIS Office of Public Engagement invites you to participate in a collaboration session to discuss the implementation of the memo issued on January 8, 2010 which provides guidance on determining if a valid employeremployee relationship exists. A copy of the memorandum is attached along with this invitation.
We are interested in hearing feedback and input on the impact of this guidance and to understand any concerns that stakeholders may have. There are two ways to attend this meeting:
In person – please provide your full name and the organization you represent to Mary Herrmann, at email@example.com or (202) 272-1213. Be sure to arrive at least 15 minutes early to allow extra time to be processed through security and bring a photo I.D.
Via telephone – call-in information will be provided when you respond. Please provide your full name and the organization you represent to Mary Herrmann, at firstname.lastname@example.org. We hope you will be able to join in this important discussion.
In a Federal Register Notice released today, the Department of State announced a new fee structure for cases to be processed at consulates and embassies abroad.
Presently, DOS processes all Immigrant Visas (family based or employment based) at a fee of $355 per person. The new proposed system will be a 4-tiered fee structure with a lower fee for family based immigrant visas ($330) and a significantly higher fee for employment based immigrant visas ($720). Other rates will apply to self-petitioned cases and humanitarian cases.
In family based cases, the Affidavit of Support review fee is proposed to go from $70 to $88.
The Notice does not include an increase in nonimmigrant visa application fees, which are currently $131 USD.
To read the Notice in its entirety, please visit: http://edocket.access.gpo.gov/2010/pdf/2010-2816.pdf
Posted by SherryNeal on February 5, 2010 in Green Cards
However, that is not too surprising considering the following:
(1) The vast majority of Filipino immigrants in the employment-based category are nurses (because they don’t typically qualify for a nonimmigrant visa their immigrant cases fall within the purview of NVC rather than I-485 adjustment of status cases). In contrast, the number of pending I-485 cases (those in the U.S. on a temporary status and adjusting to permanent residence) for India are more than 5 times (5x) higher than the Philippines.
(2) Retrogression for nurses has been in effect since October 2006 (with the exception of the two month reprieve in the summer of 2007 when dates were current; however, only a small percentage of nurses were able to get through that narrow window of opportunity to get the immigrant visa). Given the I-140 and NVC processing times in NVC, most of the cases took at least a year to process, therefore, most of the applicants that received permanent residence were applicants who had filed in 2005 or earlier. Overall, the number of pending EB3 cases for the Philippines is not bad when you consider it is an accumulation of almost five years of cases due to retrogression.
(3) USCIS has been processing I-140 cases more quickly in the last six months, thus some of the cases that appear on the NVC inventory chart are cases that were previously recorded in earlier charts for “Pending I-140’s” or “Approved I-140’s” from data the USCIS issued last year.
By law, the minimum number of employment based green cards allowed per year is 140,000. The “actual” number of employment based green cards that have been issued in the EB3 category (overall for all countries) during the last three years is as follows: 89,922 in 2006, 85,030 in 2007, and 48,903 in 2008. Note: the larger number in 2006 and 2007 is in part due to the Schedule A legislation that provided for an additional 50,000 immigrant visas.
There are two “positive” points to keep in mind:
1) According to the NVC report, the “total” number of Filipino cases in all the first three employment-based categories is 47,420. Thus, 45,331 of the total 47,420 Filipino cases are in the third preference category (only 2,089 in the 1st preference and 2nd preference category for the Philippines). That is important because the unused visa numbers for the Philippines in the first preference category and second preference category get to “trickle down” to the third preference category for the Philippines.
2) There are at least some cases that are duplicates, and thus fall out of the system. Some applicants have lost their sponsorship (company went out of business and/or job no longer available) and have obtained sponsorship through a second employer. Thus, some applicants have more than one case pending.
Posted by admin on January 29, 2010 in Visas - H-1b, L-1, E, O, TN
In a recent USCIS Stakeholders Meeting, AILA asked for clarification on how unused H-1B1s for Singaporean and Chileans are counted back. Under the Chile/Singapore Free Trade Agreement, 6,800 H-1B cases are reserved per cap for specialty occupation cases from Singapore and Chile. The USCIS responded to AILA by stating that unused H-1B1 numbers from a fiscal year will be reallocated for use in the subsequent fiscal year.
For example, the 6,100 unused Chile/Singapore H-1B1s from FY2009 were added back to the 58,200 regular cap numbers available for FY 2010 to get 64,300 regular cap visas available for FY 2010 (this excludes the 20,000 master’s cap exemption).
Thus far, only 129 of the 6,800 H-1B1 cases under the FY 2010 cap have been used. This means that potentially more than 6600 additional H-1B cap cases will be accepted under the FY 2011 cap, which opens in April 1, 2010. Please note, the USCIS did state that although the regular H-1B cap has been closed, they continue to accept reques for H-1B1 visas or change of status cases.
Posted by SherryNeal on January 28, 2010 in US Immigration Policy
President Obama spoke vaguely about immigration. His main point was, “We should continue the work of fixing our broken immigration system – to secure our borders, enforce our laws, and ensure that everyone who plays by the rules can contribute to our economy and enrich our nation.” Obama’s reference to immigration came about an hour into his speech, perhaps notably signaling that it is a low priority right now.
The reality is immigration reform has a low chance of being passed the first half of 2010. And many inside Washington concur that if it doesn’t get passed by Memorial Day weekend, then it will be put aside until after the November elections since most members of Congress will want to dodge the topic in the upcoming elections. Further, the results of the November elections could signal whether comprehensive immigration reform even gets reconsidered in 2011 or whether it will be 2012 until the discussions resume.
If CIR is put to rest the first half of the year, it could open the way for individual aspects of immigration (such as Schedule A relief) to get added to another bill. Of course, the economy will still play a part in convincing Congress that legislation for more visas is needed.