Visa Lawyer Blog

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The Department of Homeland Security is currently under pressure to provide Temporary Protected Status (TPS) to Ecuadorians, following a 7.8 magnitude earthquake that rocked the Northern coast of Ecuador on April 16, causing nearly 600 fatalities. Dozens of people remain missing under the rubble, while thousands of Ecuadorians have sustained injuries. The Obama administration is expected to respond to a request from American lawmakers, which would allow Ecuadorians physically present in the United States, to apply for an extension of stay to remain in the country temporarily. Furthermore, New York City Mayor Bill de Blasio and other politicians have called on the Obama administration to intervene, by designating Ecuador as a country temporarily eligible to receive Temporary Protected Status (TPS). In a statement issued last week, De Blasio noted that “New York City alone is home to nearly 140,000 Ecuadorian immigrants. Many of these New Yorkers face additional uncertainty about whether it is safe for them to return to Ecuador at this time. We must extend whatever support we can at this critical moment.” Approximately 143,000 Ecuadorians currently reside in the United States illegally in the states of New York, New Jersey, Illinois, California and Florida.

The administration is also being pressured by lawmakers to extend temporary protected status to migrants from Central America, due to the criminal and security concerns in the region including gang violence. The administration has not yielded to this pressure as of yet.

Enacted by the United States Immigration Act of 1990, TPS allows the government to extend the stay of foreign nationals whose countries have been affected by war, civil unrest, violence, natural disasters, or other emergent needs that concern the safety of foreign nationals from troubled regions. The provisions of the Immigration and Nationality Act (INA) allow this temporary status to exist, as well as other blanket forms of relief from removal of individuals from these affected regions. Under the INA, the executive branch and legislative branch are authorized to grant TPS as relief from removal for individuals from designated countries. The Secretary of Homeland Security and Secretary of State, are given the authority to issue TPS for a period of 6 to 18 months that can be extended if conditions remain the same in the designated countries. TPS recipients receive a registration document and temporary employment authorization for the duration that the foreign national is granted Temporary Protected Status. Temporary Protected Status is NOT a visa or a path to permanent residence. Foreign nationals who have been found inadmissible to the United States or in other words have been subject to a “bar” are not eligible to receive Temporary Protected States.

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Authority of Law Statue

On April 18, 2016 the United States Supreme Court heard arguments in the lawsuit United States v. Texas, a lawsuit brought by 26 states, led by the state of Texas, challenging President Barack Obama’s executive actions on immigration. These executive actions include the expanded Deferred Action for Childhood Arrivals (DACA) program, and the new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program announced by President Obama in November of 2014. Following this announcement, the Obama administration received push back from the Republican led House of Representatives. There was also public outcry from conservatives, when President Obama announced that these programs would not only shield eligible individuals from deportation, but allow them to obtain employment authorization. In February 2015 these initiatives came to a screeching halt, when a federal district court granted these states a preliminary injunction preventing the implementation of expanded DACA and DAPA to take place. Since then, the lawsuit has moved through the courts, and now remains at the Supreme Court. On Monday April 18th eight justices heard oral arguments in the case arguing for and against these executive actions on immigration. A final decision is expected from the justices in June. The Director of Advocacy at the American Immigration Lawyers Association (AILA) Greg Chen, AILA’s Legal Director Melissa Crow, and UCLA Law Professor Hiroshi Motomura weighed on what happened in the court Monday morning and what we can expect from the Court moving forward.

The experts identified 2 key issues that were discussed during Monday’s oral arguments.

The court mainly focused on:

  1. Threshold question: Whether or not the Supreme Court should consider the case in the first place. The court asked themselves if the plaintiff states have standing to sue in the first place to bring the case to the court.
  2. The Merits of the case: Whether or not the President has the authority to implement these executive actions based on the ‘Take Care’ clause of the constitution.

Greg Chen highlighted that this case is particularly important because for the first time in 20 years, we have not seen any real immigration reform from any of the three branches of government. Chen also noted that these executive actions on immigration, if implemented, would shield millions of undocumented immigrants from deportation. States also have a huge interest in passing these executive actions for the economic and tax revenue benefits alone, since undocumented immigrants have not been able to properly abide by tax laws due to their unlawful presence in the United States.

Melissa Crow highlighted that in Court proceedings, the traditionally four ‘liberal’ justices on the bench Breyer, Sotomayor, Ginsburg, and Kagan seemed to be sympathetic to the Obama administration in the questions they posed to the attorneys representing both sides in this lawsuit. Melissa noted that in order to overturn the federal injunction halting expanded DACA and DAPA, a fifth vote is required from the conservative camp either from Chief Justice Roberts or Justice Kennedy. The questions posed by the traditionally ‘conservative’ justices did not necessarily provide clues into their stance on these issues. Their questions simply showed that they were engaged in the issues and mostly focused on the issue of standing to sue.

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9152815014_f344695012_zU.S. Citizenship and Immigration Services (USCIS) has announced that premium processing for cap-subject H-1B petitions (Bachelor’s cap and Master’s cap) will begin on May 12, 2016. USCIS had previously announced that premium processing would begin no later than May 16, 2016. During fiscal year 2016, USCIS began premium processing on April 27th. This year there will be a slight delay in premium processing due to the large volume of cap-subject H-1B petitions received for fiscal year 2017. Approximately 3,000 more petitions were received this year, when compared to the previous year. USCIS guarantees a 15-calendar-day processing time for certain employment-based petitions as part of the premium processing service. If you did not submit Form I-907 Request for Premium Processing Service with your initial H-1B petition, and you receive notification that your petition has been accepted, you can upgrade your petition to premium processing at any time by filing Form I-907 with the filing fee.

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Today the Supreme Court of the United States will begin hearing arguments in the case United States v. Texas, a lawsuit challenging Obama’s executive actions on immigration. As you have heard, a federal court order temporarily froze the expanded DACA and new DAPA programs from going into effect as expected. The Supreme Court will decide the fate of these programs by June of this year.

It is truly an exciting time of the year for immigration law. United States v. Texas is the biggest immigration case of our generation. The Supreme Court’s ruling will set an important precedent for the future of immigration policy. The court will also determine whether the President had authority to enforce the executive actions on immigration. As a member of the American Immigration Lawyer’s Association (AILA), we invite you to join a live webcast with AILA experts Greg Chen,  Legal Director Melissa Crow, and UCLA School of Law Professor Hiroshi Motomura on Tuesday, April 19, 2016, at 1:00 pm (ET), as they recap and offer expert analysis of Monday’s Supreme Court oral arguments in the United States v. Texas case.

Click here to watch the live stream.

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This week USCIS announced that over 236,000 H-1B petitions were received by the agency for fiscal year 2017 (including petitions for the general cap and advanced degree exemption), compared to last year’s 233,000. Following the close of the filing period, USCIS conducted a random computer-generated lottery on April 9, 2016 beginning the selection process for the 20,000 available visas for advanced degrees first. Unselected advanced degree petitions were then placed in the lottery to fill the 65,000 general cap. Foreign workers holding an advanced degree from the United States were thus given two chances at selection. Any petitions that were not selected by USCIS will be returned along with official rejection notices, and original filing fees. This year, our office filed 15 advanced degree petitions and 40 bachelor’s cap petitions for a total of 55 H-1B petitions. Of these petitions, 46 were filed with regular processing, and 15 were filed with premium processing. The majority of these petitions were filed with the California Service Center.

As of this afternoon, we have only received 4 selection emails from the California Service Center (CSC) for advanced degree petitions filed with premium processing, and only 1 selection email for a bachelor’s cap petition filed with premium processing. We do not expect to receive any ‘receipt notices’ for petitions filed with regular processing until late April through the month of May. At this point, it does not appear that USCIS has begun cashing filing fees for selected petitions. If the filing fees for your H-1B petition have not been cashed, this does not mean that your H-1B petition was not selected. It is too early to make this conclusion. Employers should monitor their bank accounts closely within the next 2-4 weeks.

This year, USCIS received approximately 3,000 more petitions compared to last year. As in previous years, the H-1B cap was reached within the first five business days of the H-1B filing period. This year the chances of selection ran at roughly 65% for foreign workers holding a U.S. advanced degree, and roughly 35% for foreign workers holding a bachelor’s degree. Last year, the chances of being selected was about 60% for advanced degree holders, and 30% for bachelor’s degree holders.

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The Supreme Court is expected to hear oral arguments for United States v. Texas, a lawsuit challenging the President’s executive actions on immigration, on Monday April 18th.  We have learned that attorneys representing the Republican led House of Representatives will be given 15 minutes to argue against Obama’s executive actions on immigration, included the expanded Deferred Action of Childhood Arrivals (DACA) program, and the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program. This move comes after the House of Representatives voted in favor of filing a brief before the Supreme Court challenging the executive actions on immigration. The court has also authorized a group of undocumented mothers of U.S. Citizen children to speak before the Supreme Court for 10 minutes. The Obama administration is currently at a disadvantage, given that only eight Supreme Court justices will ultimately be handing down one of the most important decisions of our generation come June. Obama had hoped that the House of Representatives would hold hearings in consideration of his Supreme Court pick, Chief Judge of the District of Columbia Court of Appeals, Merrick Garland, by the time oral arguments would begin. Unfortunately, this has not been the case. Republicans have refused to hold hearings in consideration of Judge Garland. It is likely that they will continue to delay hearings until the next President of the United States takes office next year.

Oral arguments on April 18th will be no more than 90 minutes long. The majority of the time will be divided by the Obama administration and attorneys representing Texas and 25 other states challenging the constitutionality of Obama’s executive actions on immigration. United States v. Texas is unique because it will finally put to rest the issue of whether or not the executive action on immigration is within the President’s constitutional powers. This case is also unique because it will be one of the few times that the Supreme Court has addressed the issue of illegal immigration and the rights of unlawful immigrants under the constitution.

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Today April 7, 2016 the U.S. Citizenship and Immigration Services (USCIS) announced that the H-1B general bachelor’s cap has been reached for fiscal year 2017. In addition, USCIS received more than 20,000 petitions for the advanced degree exemption. Some time within the next week, USCIS will conduct a random computer-generated process, known as a ‘lottery,’ to select the petitions needed to fill the 65,000 bachelor’s cap. USCIS will first randomly select the petitions that will count toward the advanced degree exemption. Unselected advanced degree petitions will then be entered into the random lottery that will be conducted to fill the 65,000 bachelor’s cap. All unselected cap-subject petitions will be rejected and in turn CIS will return the H-1B packages containing filing fees and rejection notices. CIS has not yet provided any details concerning the date the lottery will be conducted. We suspect it will occur within the next week. In the meantime, cap exempt H-1B petitions will continue to be processed including H-1B worker extensions, petitions requesting a change to the terms of an H-1B workers’ employment, and petitions requesting concurrent work for an H-1B worker.

So, what’s next?

Petitions filed with premium processing

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The Employment and Training Administration’s (ETA)’s Office of Foreign Labor Certification (OFLC) will be hosting a public webinar on April 7, 2016 which will provide filing tips, discuss common errors associated with H-2B wage surveys, and provide assistance to employers interested in submission of H-2B wage surveys. The webinar will teach employers how to determine the prevailing wage (PWD) for positions to be occupied by H-2B non-agricultural workers. The OFLC hopes that the webinar will help employers, attorneys, and surveyors avoid common errors that typically appear on prevailing wage determination applications for the H-2B foreign worker visa program.

The webinar will:

  • Address common errors with documenting and displaying survey results and their solutions;
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Every year USCIS receives and adjudicates approximately 6 million applications from foreign nationals seeking to immigrate to the United States, and U.S. companies seeking to employ foreign workers temporarily.  According to the Department of Homeland Security’s Office of Immigration Statistics, “an estimated 13.1 million lawful permanent residents (LPRs) were living in the United States on January 1, 2013.” Of these permanent residents, more than half–8.8 million–were eligible to apply for naturalization. Additionally, the United States issues approximately 700,000 temporary non-immigrant work visas for a variety of temporary workers including: highly skilled foreign workers employed in specialty occupations in the STEM fields, fashion models, internationally acclaimed athletes and entertainers, aliens of extraordinary ability, religious workers, intra-company transferees, treaty traders/investors, foreign media workers, and agricultural and seasonal workers.

The reason the issuance of temporary worker visas is so low, when compared to the issuance of permanent resident cards, is because most of the temporary foreign worker visa programs are subject to a congressional cap, that limits the amount of non-immigrants that can be admitted per fiscal year. Additionally, certain temporary nonimmigrant worker visa classifications are granted for a specified period of time, although in most cases at least one extension may be granted. The cap applies primarily to the H nonimmigrant worker classifications, and non-minister religious workers. The H visa category accounts for approximately 54% of all visas issued for temporary workers. That is why the H visas are the most talked about visas among politicians when discussing immigration reform. The cap does not apply to treaty traders/investors, aliens of extraordinary ability, intra-company transferees, NAFTA professionals (Canada and Mexico), and foreign media workers. In comparison to developed countries, the United States admits a relatively low number of temporary foreign workers. Foreign workers are typically admitted either to fill labor shortages in the American job market, or because of their exceptional, or highly technical skills, as is the case for the H-1B visa classification.  Only highly skilled foreign nationals, aliens of extraordinary ability, aliens holding advanced degrees, high capital investors, nurses and physical therapists, doctors in undeserved area, and recipients of national interest waivers, have the unique opportunity to obtain permanent residence based on employment.

The mammoth task of meaningful immigration reform will not be easy and it will not happen overnight. The presidential nominees have failed to outline a clear strategy to overhaul our immigration system. None of the presidential candidates have addressed the most contentious areas of immigration policy that must be revised, in order to repair our broken immigration system.

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The Waitress
This morning, USCIS made the announcement that it has met the H-2B Cap for temporary nonagricultural workers, beginning employment during the first half of fiscal year 2016. A congressionally mandated cap, limits the number of H-2B visas that can be issued per fiscal year to 66,000. The first half of these visas are issued to workers who will begin employment in the first half of the fiscal year (from October 1 to March 31) and the other half are issued to workers who will begin employment in the second half of the fiscal year (from April 1 to September 30). The deadline to file an H-2B worker petition, with an employment start date beginning prior to April 1, 2016, was March 15, 2016. New H-2B petitions received by USCIS after the deadline, requesting an employment start date before April 1, 2016 will be rejected by USCIS. USCIS will continue to accept and process applications for temporary nonagricultural workers who are considered cap-exempt.

The following H-2B petitions are considered cap-exempt:

  • Petitions filed for “returning workers” that have already been counted towards a previous H-2B cap in fiscal years 2013, 2014, or 2015;
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