On June 11, 2012, the SCIS received a sufficient number of petitions to reach the statutory cap for FY 2013.  On June 7, 2012, USCIS also received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption.  According to the USCIS’ Website, the USCIS will reject petitions subject to the cap for H-1B specialty occupation workers seeking an employment start date in FY 2013 (normally October 1, 2012) that are received after June 11, 2012.

Nevertheless, USCIS will continue to accept petitions exempted from the cap and DOD cooperative research worker H-1B petitions and Chile/Singapore H-1B1 petitions requesting an employment start date in FY 2013.

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The USCIS released the number of receipted cap-eligible H-1B visa petitions from April 1, 2012 to June 1, 2012. As of June 1, 2012, approximately 55,600 H-1B cap-subject petitions were receipted. The Annual Cap amount for H-1B regular cap is 65,000.  Additionally, the USCIS has receipted 18,700 H-1B petitions for foreign workers with advanced degrees (master’s degree or higher). The Annual Cap amount for H-1B Master’s Degree Exemption is 20,000.

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Our Associate Attorney, Sung Hee (Glen) Yu, Esq. was invited to talk about the practice of immigration law practice and his professional experience at the Third Annual Case Western Midwest APALSA (Asian Pacific American Law Students’ Association) Conference last February 18, 2012.

This year’s conference entitled “Building Your Niche: Creating a Professional Identity in Practice and Beyond,” was designed by law students in light of the challenging employment market. APALSA members sought to put on a conference that focused on the expansive opportunities that a Juris Doctor can open up for students, law related or otherwise.  Over twenty-five attorneys, professors, and other professionals were invited to attend and share their experiences. More than 80 law students attended this all day conference.

Mr. Yu, a Case Western Law School alum, was invited to speak at the Immigration Law Breakout sessions with two other immigration attorneys.  He discussed various issues common to the practice of immigration law and shared his experiences in handling employment-based, family-based, and deportation and removal cases. He also offered advice on how to find internships and employment in immigration law firms and other jobs related to the field.

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The Reentry Permit is a travel document issued to Lawful Permanent Residents who wish to travel for over six months. Federal regulations require permanent residents to be physically present in the United States when the application is filed.  Once the application is filed, the applicant may depart the United States, and the approved document can be delivered abroad. The applicant may also wait for the reentry permit before leaving.

Currently, applicants of reentry permits may request expedited service in cases that fall under one of the following categories:

• Severe financial need to the company or individual
• Extreme emergency situation
• Humanitarian situation
• Non-profit status of requesting organization in furtherance of the cultural and social interests of the United States
• Department of Defense or National Interest Situation (Note: Request must come from official United States Government entity and state that delay will be detrimental to our Government)
• USCIS error
• Compelling interest of USCIS

The application also requires that biometrics be completed, and as a practical matter, the applicant must be physically present in the United States to complete the biometrics.  This has led to difficulties in some cases where an applicant needs to leave as soon as possible.

In response to this biometrics issue, the USCIS recently announced new guidelines for expeditious biometric appointment requests:

• If the applicant needs expedited processing, the Form I-131 instructions provide specific information for submitting pre-paid express mailers with your Form I-131 for USCIS to send your receipt and ASC appointment notice, as well as the completed re-entry permit or refugee travel document, if approved.  A request for expedited processing should contain the applicant’s reasons for such processing so that the USCIS may determine whether the applicant qualifies for expedited processing.
• If the applicant must attend an ASC appointment (fingerprint appointment) in 14 days or less, the applicant may provide an email address or fax number, then the Nebraska Service Center will be able to fax the ASC appointment to the applicant.  The ASC will accept a duplicate copy of the appointment notice.
• If the applicant needs to expedite the I-131 after filing, then the applicant should contact the customer service phone number or make an INFOPASS appointment at their local USCIS office.

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On November 29, 2011, Congress passed H.R. 3012 (The Fairness for High-Skilled Immigrant Act) by a vote of 389-15 with no additional amendments.  The measure now moves on to the Senate for consideration. The Fairness for High-Skilled Immigrant Act was introduced on September 22, 2011 by Rep. Chaffetz (R-UT) to eliminate the employment-based per-country cap entirely by fiscal year 2015 and raises the family-sponsored per-country cap from 7% to 15%.

This passed Bill aims to move away from the current law, under which immigrants from an individual country who are in the U.S. on an employment visa such as an H1-B cannot apply for more than seven per cent of the 140,000 green cards issued annually by the State Department. The Act ultimately eliminates this per country percentage cap. What this implies is that countries that are facing the highest demand-supply mismatch for green cards, among which India ranks first and China second, then Mexico and the Philippines will see a benefit in terms of prospective green card issuance (shorter waiting time for priority dates to be current), whereas the waiting time for other nations would be significantly longer.

Therefore, the Act greatly will improve the processing times for Indian and Chinese green card applicants.  However, an unintended consequence of the Act likely would be the slower processing times for natives of other countries.

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The Executive Office for Immigration Review (EOIR) issued an updated memorandum – Operating Policies and Procedures Memorandum 11-02: The Asylum Clock – to provide uniform policies regarding the EOIR asylum clock for all immigration courts. The memorandum goes into effect on Dec. 19, 2011. In addition to increasing efficiency by reducing the time that immigration judges and court staff spend on administering the asylum clock, the new guidance addresses concerns expressed by members of the public. This information is very useful for applicants taking note of the clock for work permit purposes.

The EOIR asylum clock is an administrative tool that measures the length of time an asylum application has been pending for each asylum applicant in removal proceedings, not including any delays requested or caused by the applicant. The EOIR tracks the time an asylum application has been pending to implement the asylum adjudication goal of the Immigration and Nationality Act.   Generally, the asylum clock calculates a mandatory 180-day waiting period before an asylum applicant can receive work authorization.  Any delay caused by the asylum applicant will stop the clock and prolong the waiting period for work authorization.  For example, if the hearing was adjourned because of an applicant/respondent-caused delay, the clock stops until the next hearing.

The new memorandum clarifies certain longstanding problems regarding the EOIR asylum clock calculation.  The new guidelines clarify several issues that affect how the asylum clock runs including the starting, stopping, and restarting of the asylum clock; the one-year asylum application filing deadline (the asylum clock runs, except during applicant-caused delays, until the immigration judge has adjudicated whether the asylum application was filed within 1 year after the date of the applicant’s arrival in the United States); and the rescheduling of hearings. In particular, it clarifies that the asylum clock should not stop in the event of a delay caused by a government attorney or the court, and that immigration judges must indicate on the record the reason for postponing a case.

However, there are still existing unclear problems.  According to Legal Action Center (American Immigration Council)’s Press Release, the organization thinks that EOIR fails to resolve more systemic problems through its new guidance including:

• It does not require the judge to state whether the clock has started or stopped or how many days are on the clock.  In addition, it does nothing to improve the existing review process for applicants who seek to resolve mistakes with their asylum clocks.�
• It reaffirms the policy that the asylum clock will begin to run only when the asylum application is accepted by an immigration judge at an initial hearing, despite the fact that applications can be filed months in advance of an initial hearing.
• It reaffirms the policy that, even after an applicant-caused delay has been resolved, the asylum clock cannot start running until the next scheduled hearing date.  Due to congested court dockets, hearing dates may be months or even years apart.
• It restates they will not start or restart the asylum clock when, after an appeal, a case is sent back to the immigration judge to revisit the asylum claim.  This wrongly prevents asylum applicants from seeking work authorization after a lengthy appeal process and after an initial decision denying asylum has been vacated.

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On November 7, 2011, the USCIS published a policy memorandum regarding the priorities that they will follow in placing certain immigrants in removal proceedings through the Notice to Appear).

This newly issued policy memo provides guidance to USCIS officers on how to initially issue the NTA.  The policy memo states that cases involving fraud, serious crimes, categorized as aggravated felonies under the Immigration and Nationality Act, (murder, rape, sexual abuse of minors, possession and/or trafficking in illicit firearms and explosives, crimes of violence, ransom, child porn, human trafficking, drug trafficking, alien smuggling, human rights violators, gang members, and re-entry after a prior deportation), and threats to national security will be the top immigration enforcement priority. Other cases are categorized as “non-egregious public safety” cases. Depending on the circumstances of each case, the policy memo requires the USCIS to follow a complicated referral procedure where USCIS will refer the case to ICE first and let ICE decide whether it is worth their while to pursue. Absent a finding by ICE, USCIS will not issue an NTA in those cases. In other cases, USCIS may automatically refer the cases for an NTA.

Also, under this new policy, USCIS will issue NTAs where required by statute or regulation.  For example, such cases include termination of conditional permanent resident status, denials of form I-751 petitions, denials of form I-829 petitions by entrepreneurs to remove conditions, termination of refugee status, denials of NACARA 202 and HRIFA adjustments, referrals of asylum cases to immigration court, and when an asylum applicant withdraws his/her application.  USCIS will also issue an NTA if a Statement of Findings substantiating fraud is part of the record.

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The Obama Administration and the Department of Homeland Security established a high-level joint DHS and Department of Justice (DOJ) working group to conduct a case-by-case review of approximately 300,000 cases pending before the immigration courts, Board of Immigration Appeals (BIA), and the federal court of appeals. Those cases that are identified as “low priority” will be administratively closed and the respondents will be eligible to apply for work authorization with the United States Citizenship and Immigration Service (“USCIS”). Because of this policy, additional resources can be focused on “high priority “ cases such as those individuals who pose a threat to public safety.

The DHS has stated that its enforcement priorities are national security, public safety, border security, and repeat immigration law violators. As to what constitutes “low priority cases, the DHS has made clear that no category of cases will receive a blanket exercise of favorable discretion, but they have identified certain categories of individuals that may receive particular attention. These include: veterans, long-time permanent residents, minors and the elderly, individuals who have been present since childhood, individuals with serious disabilities or health issues, women who are nursing or pregnant, and victims of domestic violence or other serious crimes. As to negative factors, serious felons, repeat offenders, and individuals with a lengthy criminal record would most likely not be given prosecutorial discretion.

Administrative closure is a procedural convenience used to temporarily remove a case from the immigration court’s docket. The case remains pending, though inactive. Immigration and Customs Enforcement (ICE) attorneys and officers have been asked to consider all cases in light of the DHS enforcement priorities. These requests should be made in writing and should include as much supporting documentation as possible.

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The USCIS on August 17, 2011 issued a policy memorandum regarding officer adjudication of B-2 applications by cohabiting partners or family members of non-immigrants in the U.S., such as family members and partners of F-1 students and H-1B workers. The memorandum pointed out that in some circumstance, elderly parents, cohabiting non-immigrant partners, and other household members of the principal non-immigrant may be ineligible for derivative status. It defined “household member” as aliens who “regularly resides in the same dwelling as the principal non-immigrant and with whom the principal non-immigrant maintains the type of relationship and care as one normally would expect between nuclear family members.” These aliens may apply for B-2 visas, or change whatever status they are in to a B-2, to enable them to reside with the principal non-immigrant visa holder. Extensions may also be sought in six month increments for the duration of the principal alien’s non-immigrant status.

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The USCIS updated its H-1B guidance to clarify the employer-employee relationship standard for self-employed individuals. The memorandum does not change any of the requirements for H-1B petitions. Currently, the CIS requires that a U.S. employer prove that it has an employer-employee relationship with the beneficiary in that it may hire, pay, fire, supervise, or otherwise control the work of any such employee. Other requirements include establishing that the beneficiary is coming to the U.S. to work in a specialty occupation, showing that the beneficiary is qualified to perform that specialty occupation, and the filing of a Labor Condition Application specific to each location where the beneficiary will be working.

But as to self-employed individuals and H-1B petitions, the CIS mentioned that if the facts show that there is a right to control by the petitioner over the employment of the beneficiary, then a valid employer-employee relationship may be established. They went on to provide that if the petitioner provides evidence that there is a separate Board of Directors, which has the ability to hire, fire, pay, supervise or otherwise control the beneficiary, the petitioner may be able to establish an employer-employee relationship for H-1B purposes. The CIS cites Matter of Aphrodite, 17 I&N Dec 530 (BIA 1980), which held that the USCIS acknowledges that a sole stockholder of a corporation can be employed by that corporation as the corporation is a separate legal entity from its owners and even its sole owner. The memo also stated that several unpublished Administrative Appeals Office (AAO) decisions determined that corporations are separate and distinct from their stockholders and that a corporation may petition for, and hire, their principal stockholders as H-1B temporary employees.

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