HLG partner, Mike Hammond will be a panelist on a webinar being presented by the American Immigration Lawyers Association (AILA) entitled “Essential Compliance Issues for Employers-H-1B and the LCA” on Oct 28th.
United States Citizenship and Immigration Service (USCIS) has issued a procurement request for over 34 million work permits and green cards. This would be well above their normal levels. This has caused Republicans to speculate that President Obama is readying a sprawling executive order to drastically change the immigration laws.
Don’t hold your breath. USCIS has made a statement that asking contractors to prepare for contingencies is not unusual and that similar provisions are built into other contract bids the agency has made. “Solicitations of this nature are frequent practice for all USCIS contracts and allow the agency to be prepared for fluctuations in the number of immigration applications received, which can arise for any number of reasons,” USCIS spokesman Chris Bently said in a statement. The government typically uses measures like this to keep costs down in case of unforeseen circumstances.
So, while it is a good thing that USCIS is preparing to issue more work permits and green cards than normal, this probably shouldn’t be taken as a sign that sweeping immigration reform is right around the corner.
The American Immigration Council recently released a chart that shows that many U.S. Presidents have used their executive power to remedy immigration issues that they found to be unjust. Since 1956, every U.S. President has granted some form of temporary immigration relief to at least one group that was found to be in need of assistance. Some specific examples include President Eisenhower, Kennedy, Johnson, and Nixon’s parole of up to 600,000 Cuban asylum seekers who were fleeing the Cuban revolution, President Ford and Carter’s parole of over 300,000 Southeast Asians who were fleeing the conflict in Vietnam, and President Reagan’s order to defer deportation for up to 200,000 Nicaraguans. Many of these actions were taken to provide relief to affected groups while legislation was pending. In other cases, the Presidents reacted to a humanitarian crisis. President Obama’s Deferred Action for Childhood Arrivals follows a long line of historical actions by U.S. Presidents who used their executive authority to address immigration problems. The Hammond Law Group hopes that President Obama will remedy some of the current immigration challenges facing the U.S. by using his “broad executive authority to shape the enforcement and implementation of immigration laws.”
Recently, President Obama made remarks indicating that he wanted to make the H-1b program more efficient as part of the Executive Action that he has promised to deliver in light of Congressional inaction on immigration reform. His remarks immediately drew the ire of Senator Grassley who opined that the H-1b program should have a labor market test attached to it. In typical form, Senator Grassley falsely claimed that US companies lay off US workers in mass and then replace them with cheaper H-1b workers. It should be alarming to all advocates of legal immigration and business immigration reform that Senator Grassley would be the top Senator and carry tremendous weight over any immigration bill should the Republicans take control over the Senate. Hopes of U.S. companies being able to hire and retain the best and the brightest will be destroyed by a strong wind blowing from the corn fields of Iowa should the Senate change hands in the November election.
The Department of State has released the November Visa Bulletin and it contains a mix of bad news and good news depending upon your country of origin. If you are an EB2 Indian national, the news in not unexpected as it was predicted but, the retrogression of over 4 years to Feb of 2005 is nonetheless devastating. For EB3 Philippines and the rest of the world, a forward jump of almost 8 mos. is very welcome. The prognostications for upcoming months is similar in that no movement is expected for India EB2 however EB3 for the Phillippines and all other countries are expected to continue their rapid movement forward however, both may retrogress later in the fiscal year i.e. next summer. We will keep you updated as developments occur. A legislative fix for retrogression remains much needed.
The 11th Circuit Issues A Decision Stating that the Beneficiary of an Approved I-140 has Standing to Challenge its Revocation
In Kurapati et al v. USCIS et al, the United States Court of Appeals for the 11th Circuit reviewed whether the beneficiary of an I-140 had standing to challenge its revocation. In this case, USCIS had issued a notice of intent to revoke (“NOIR”) to the beneficiary’s employer, Worldwide Web Services, on the basis that it misstated a material fact in the I-140. At the time that the NOIR was issued, the beneficiary had ported his employment to a new employer and Worldwide Web Services had ceased to exist. Consequently, the beneficiary filed a response to the NOIR. The case was denied. The beneficiary filed an appeal of the denial with the Administrative Appeals Office (“AAO”) and filed a complaint in the U.S. District Court for the Middle District of Florida. The AAO rejected the appeal on the basis that the beneficiary had no standing to appeal the case. The U.S. District Court reached the same conclusion. In reviewing the case, the 11th Circuit referenced a 6th Circuit decision that found that the “beneficiary of an I-140 visa petition had constitutional standing because he suffered an injury that was fairly traceable to USCIS – the loss of an opportunity to become a permanent resident.” Similarly, the 11th Circuit found that the beneficiary’s relationship to this case was within the zone of interests that is protected by the Administrative Procedure Act. Consequently, he had standing to challenge the revocation of his I-140. This case provides further support for a beneficiary’s right to challenge the denial or revocation of an I-140 petition.
The Office of the Special Counsel (OSC) reached a settlement with Omnibus Express for immigration related unfair employment practices. OSC concluded that Omnibus Express engaged in a pattern or practice of citizenship status discrimination in recruiting and hiring practices against U.S. citizens and other protected individuals. Omnibus agreed to pay civil penalties of $37,800 for the violations and to set aside $208.000 to compensate qualified individuals for economic damages. This will serve as a lesson to H-2B employers to handle be careful when recruiting for H-2B positions. Keep checking our blog for additional H-2B and I-9 compliance articles, blogs and best practice tips.
As of September, U.S. Customs and Border Protection (CBP) is optimizing processing for first-time Canadian TN and L applicants at 14 designated ports of entry including 4 preclearance locations. According to CBP, optimized processing will ensure a more efficient approach to processing the high volume of applications received every day. Optimized processing is only available at certain times for some ports. For a complete list and additional information, please see http://www.cbp.gov/travel/international-visitors/canada-mexico-travel. We will see if optimized processing is good or bad thing and will provide an update once we have more information.
NSC recently issued clarification on its RFE vs. NOID issuance on I-140 petitions subject to Kazarian’s two-part analysis, such as petitions for Aliens of Extraordinary Ability and Outstanding Professors or Researchers. The issue with this review is that applicants in these categories basically must prove their case to CIS twice.
Kazarian is a 2 part analysis. The first part is relatively simple, the applicant must demonstrate that they meet the required number of criteria, for example 3 out of 10 or 2 out of 6. The second part is a “Final Merits Test” in which the adjudicating officer takes all the evidence presented as a whole to determine if the applicant has in fact met the requirement of their petition, that they are truly extraordinary or outstanding. In short, the officer decides the “quality” of the evidence used to meet the appropriate number of criteria.
The craziest part, if you cannot even meet the first part, the application does not demonstrate that you meet enough of the criteria, CIS issues an RFE to gather more evidence. However, if you meet the first part, but the officer determines that your evidence is not “quality” enough, CIS will issue a NOID!
I’m not really surprised that CIS is doing something backwards issuing NOID’s for petitions that meet most requirements (and the second analysis is basically up to the discretion of that officer) and RFE’s for petitions that meet none, but come on man that’s crazy.