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Archive for the ‘Immigration & I-9 Services’ Category

H-1B Visa Lottery: Can You Have More Than One Ticket to the Jackpot?

Posted on: April 5th, 2018

By: Layli Eskandari Deal

The answer is No.  U.S. Citizenship & Immigration Services (USCIS) has adopted a ruling made by the Administrative Appeals Office (AAO) to prohibit multiple H-1B visa request by related entities on behalf of the same beneficiary for the same fiscal year.

Under the H-1B visa cap, employers are only allowed to submit one visa petition on behalf of a beneficiary.  Multiple filings are prohibited. The underlying case arose from USCIS revoking an approved visa petition reasoning that that the employer and a “related entity” had filed for the same beneficiary under the visa cap.

Matter of S-, Inc. (AAO March 23, 2018) clarifies that that the term “related entities” includes “employers, whether or not related through corporate ownership and control, that file cap-subject H-1B visa petitions for the same beneficiary for substantially the same job.  Absent a legitimate business need to file multiple cap-subject petitions for the same beneficiary, U.S. Citizenship & Immigration Services will deny or revoke the approval of all H-1B cap-subject petitions filed by related entities for that beneficiary.”

In making its decision, the Administrative Appeals Office points to regulation and ultimately fairness in the visa number allocation process.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Layli Eskandari Deal of the law firm of Freeman Mathis & Gary, LLP at (770-551-2700) or [email protected].

Supreme Court on Prolonged Detention and Bond for Immigrants

Posted on: March 27th, 2018

By: Layli Eskandari Deal

Immigration has been a hot topic in the news lately due to the various issues being litigated in the Courts.  Recently the Supreme Court made a ruling on the issue of prolonged detention by Immigration and Customs Enforcement (ICE) of immigrants who are in removal (deportation) proceedings.

In Jennings v. Rodriguez, 138 S.Ct. 830 (2018), the Supreme Court held that the Immigration and Nationality Act (INA) authorizes the prolonged detention of certain noncitizens without a custody hearing during their removal cases.  This was a reversal of the 9th Circuit Court of Appeals decision that authorized detention only for six months, at which point, the detained individual must then receive a custody (bond) hearing before an Immigration Judge.  Post decision, the Supreme Court has remanded this case back to the Ninth Circuit for consideration of whether the 5th Amendment Due Process Clause entitles immigrants to a hearing over their prolonged detention.

This week the Supreme Court has agreed to review whether U.S. immigration laws allow ICE to indefinitely detain foreign nationals in the removal process if the person has previously committed crimes.  The case is Nielsen v. Preap.  Current laws allow ICE to take an individual into custody after they have served their criminal jail term prior to their release from prison.  A person detained immediately can then be held indefinitely.  The 9th Circuit Court of Appeals ruled that foreign nationals who are not promptly taken into custody must be given an opportunity to be released on bond.  The federal government argues the same rules should apply to individuals promptly taken into custody as those who are released from prison and then taken into custody at a later date.  We now await the Supreme Court’s decision on this type of detention.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Layli Eskandari Deal of the law firm of Freeman Mathis & Gary, LLP at (770-551-2700) or [email protected].

Planning To File Your 2018 H-1B Cap Case Under Premium Processing? Not So Fast…

Posted on: March 27th, 2018

By: Kenneth S. Levine

On March 20th USCIS announced an indefinite suspension of the premium processing program for H-1B visa petitions that are subject to the 2018 statutory cap.  The annual statutory cap limits the total of H-1B visas that can be approved in any one year to 85,000, 20,000 of which are set aside for foreign nationals who obtained a Master’s degree from a regionally accredited college or university in the U.S.

H-1B cap exempt petitions, which applies to higher education institutions, non-profits affiliated with a higher education institution and non-profit or governmental research organizations, remain eligible for premium processing.

The USCIS announcement made clear that any H-1B petitions that include a request for premium processing would simply be rejected and returned to the employer. The suspension of the premium processing service does not apply to petitions for renewals, amendments or transfers of H-1B visas.

It should be noted that USCIS also suspended premium processing in March 2017 for H-1B cap and cap exempt cases.  The program was reinstated around 6 months later.  Therefore, FMG Immigration Attorneys are cautiously optimistic that premium processing for soon to be filed H-1B cap cases will resume in October 2018.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Kenneth S. Levine of the law firm of Freeman, Mathis & Gary, LLP at (770-551-2700) or [email protected].

Latest Developments In DACA

Posted on: February 19th, 2018

By: Kenneth S. Levine

On 2/15/2018 four (4) separate legislative bills that sought to address the March 5th termination of the DACA program, border security, family-based immigration and the Diversity Lottery were put up for a vote in the U.S. Senate.  None of the bills garnered the necessary 60 votes to overcome a filibuster threshold and move the legislation to the House of Representatives.  At this point it seems doubtful that any piece of legislation will pass Congress that addresses DACA recipients, a border wall, the elimination of family-based categories and the Diversity visa lottery.

As to the March 5th date on which the DACA program was set to terminate, within the last several weeks two Federal Judges in the U.S. District Court in California and New York issued nationwide injunctions that, for now, keeps the DACA program intact beyond the March 5th deadline.  While the injunctions mean that the U.S. Department of Homeland Security must continue processing DACA renewal applications, the Judges are not requiring the Department to accept DACA applications from first time Applicants.

The latest major development on this issue is that the U.S. Supreme Court met on 2/16/18 to determine whether to accept a request from the U.S. Justice Department to take up the injunction cases. We expect their decision within the next few days.  An affirmative decision means that the Court would essentially leapfrog the relevant U.S. Court of Appeals in determining whether the injunctions are legally valid.  If the Supreme Court declines to accept immediate jurisdiction of the Justice Department’s appeals, then it will likely take 9-12 months for the 2nd and 9th U.S. Circuit Court of Appeals to render a decision.  Whatever the result, constitutional law legal experts widely anticipate that the U.S. Supreme Court will ultimately decide this issue.

The Immigration Attorneys of Freeman Mathis & Gary, LLP strongly advise all current DACA recipients to consider filing renewal applications immediately.  Although we do expect the DACA program to ultimately be terminated, those with pending renewal applications will likely be in a strong legal position to have their cases adjudicated.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Kenneth S. Levine of the law firm of Freeman, Mathis & Gary, LLP at (770-551-2700) or [email protected]

New Developments in TPS and DACA

Posted on: January 18th, 2018

By: Kenneth S. Levine

This past week the Department of Homeland Security announced the termination of Temporary Protected Status for citizens of El Salvador.  DHS reports that there are approximately 200,000 El Salvadoran citizens living and working in the United States.  TPS designation for El Salvador will officially terminate on September 9, 2019.  USCIS has publicly stated that if TPS recipients are unable to obtain green cards or acquire a different legal status prior to that date, then they will be placed into deportation proceedings.

While the general public may perceive the USCIS advisory to “obtain a green card or seek a change of status to a different visa category” to be an easily attainable option, the reality is far different.  TPS recipients must still fully satisfy strict legal criteria to qualify for those options.  For the vast majority of TPS recipients, this will prove exceedingly difficult to achieve.

FMG Immigration Attorneys are currently engaged in assessing whether any of our TPS clientele from El Salvador qualify for permanent residency or a different visa category.  It is important to note that for those who do not qualify, legal options may be available in the context of deportation proceedings.  It is anticipated that this current administration will continue to terminate TPS designations for countries remaining in the TPS program.  Therefore, it is critically important that all TPS recipients promptly seek legal advice from experienced immigration counsel to assess their legal options.

DACA

Another significant development in the immigration field occurred on January 9th when U.S. District Judge William Alsup issued an injunction against the current administration from ending the Deferred Action for Childhood Arrivals (DACA) program.   This program was scheduled to end on March 5th.  For now, DHS must accept DACA renewal applications.  It is anticipated that the court’s injunction will be promptly appealed and therefore it is entirely uncertain how long the injunction will remain in place.  For now, FMG Immigration Attorneys strongly recommend that all DACA recipients who otherwise would be eligible to renew their status do so as soon as possible.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Kenneth S. Levine of the law firm of Freeman, Mathis & Gary, LLP at (770-551-2700) or [email protected].