Ethiopian Marathoner Makes Defiant Gesture for Asylum at Race’s Finish

If you were watching the Men’s Marathon yesterday at the Olympics, you may have been caught off guard by the actions of the Silver Medalist, Feyisa Lilesa, as he approached the finish line. Comfortably ahead of American and Bronze Medalist, Galen Rupp, and behind Gold Medalist, Eliud Kipchoge, he held his hands up in a seemingly X pattern above his head. In running, making an X signal above your head is a sign of distress and that you cannot articulate it, but you need assistance immediately.

Mr. Lilesa did not need medical assistance. Instead, his X was symbolic, and he was signaling that his life and the lives of his family members and tribe (Oromo) in Ethiopia are in danger. Post race comments that he gave clarified why he made the distress signal. They also elucidated the levels of danger that his family members and tribe suffer in Ethiopia as the ruling government has cracked down severely in certain areas of the country. The state broadcaster in Ethiopia did not air a replay of the finish because the X signal has been a symbol of solidarity among the Oromo tribe.

The comments that made indicate that he will be seeking asylum. Asylum is an internationally recognized basis for migration and countries in the Western Hemisphere often end up providing safehaven for those escaping persecution in other areas of the world. Countries have different laws for obtaining asylum. The United States’ standard for asylum is developed upon establishing past persecution or a well-founded fear of future persecution. It also requires that persecution to emanate from one of five protected grounds: race, religion, particular social group, political opinion, or nationality. These categories are developed through case law in immigration courts and through the federal courts. The government in the home country is either the persecutor or it is unable or unwilling to stop the persecution from occurring. Asylum can be a difficult proposition because the asylum seeker cannot just claim that his or her country is in chaos, civil war, rebellion, or unrest. The seeker needs to demonstrate past persecution has happened or that there is a well-founded fear he or she will be targeted for harm in the future.

Seeking Asylum in the U.S.

To seek asylum, a seeker must be in the United States. It can be a slog of a process, especially since adjudication times for affirmative asylum have skyrocketed into 2.5-3 years. For those unable to obtain asylum, there may still be an option through withholding of removal. Asylum cases require a lot of preparation and documentation to establish the veracity of the seeker’s claims. Filing for asylum affirmatively (with USCIS and not with the immigration court) requires an interview with an Asylum Officer at a designated Asylum Office.

The post Marathoner Calls for Asylum appeared first on Wood Immigration Law.

• O and P visa processing times have been shortened.
• H-1B processing time has been reduced.
• VAWA applications are at 5 months.
• Employment Cards are still taking over 3 months for the most part.
• U Visa processing is stuck.
• Most EB-1 and EB-2 petitions are around 4 months at the Texas Service Center, but they are taking more time at the Nebraska Service Center. The National Interest Waiver is taking nearly 9 months in Nebraska.
• Fiance and many family-based petitions are taking 5 months for processing.
• An application to remove conditions on permanent residence is taking 10 months for processing.

The post USCIS Processing Times Released appeared first on Wood Immigration Law.

The Atlantic has written a lengthy piece on the O-1 visa, which is reserved for individuals of extraordinary ability. With a maximum period of 3 years and indefinite renewals, it is a viable option for individuals who are at the top of their fields. The O-1 is used in the entertainment industry and in athletics. It is also used by scientists and artists.

The piece’s purpose is to show how this visa is used today. It points out that the number of applications and approvals of cases have increased recently. The number of O-1 approved cases has tripled in the past decade and 83,000 visas were approved in 2014. Whereas the H-1B visa is subject to a strict cap, the O-1 is without a cap. It does, however, carry a higher standard for approval. An applicant must meet three out of eight criteria (you can also win a Nobel Prize or Pulitzer Prize). There is still a consular process to undergo and there is a chance the consular officer can deny a visa. The other advantage of an O-1 visa is that support staff can be brought along through an O-2 visa and dependents can tag along with the O-3 visa.  A petitioner or agent is needed to sponsor the beneficiary.

Extraordinary ability is not just used in the non-immigrant context. For immigration petitions, an alien of extraordinary ability is a kind of self-petition that does not even require a sponsoring employer. Except for the upcoming visa bulletin, it is also in a visa category that is always current for a Green Card, meaning that a Green Card application can be filed concurrently with the application. There are three ways to file for an extraordinary ability petition: multinational executive or manager, outstanding professor or researcher, and alien of extraordinary ability. The multinational executive or manager classification requires a sponsoring employer.

The post O-1 Visa Extraordinary Ability appeared first on Wood Immigration Law.

The Department of Justice has filed a petition for a rehearing with the Supreme Court on the United States v. Texas case. This is the DACA/DAPA case that was decided with a 4-4 deadlock last month. That tie rendered the DACA plus and DAPA programs unable to go into effect. The decision left the ruling of the Fifth Circuit Court of Appeals in effect. The Fifth Circuit had upheld the decision of the district court in Texas, in which the federal judge had ruled the programs could not go into effect. The reason was that the Obama Administration had not followed the procedures of the Administrative Procedure Act for promulgating and implementing rules with President Obama’s executive actions for DACA plus and DAPA programs.

The reason that there were eight Supreme Court justices ruling on the case instead of the traditional nine is because Justice Antonin Scalia died during the term and a replacement has not yet been voted on and approved by the Senate. The Department of Justice is petitioning for a nine member court to hear its case on behalf of DACA plus and DAPA. It states in its petition, “[t]his Court therefore should grant rehearing to provide for a decision by the Court when it has a full complement of Members, rather than allow a nonprecedential affirmance by an equally divided Court to leave in place a nationwide in-junction of such significance.”

The post DOJ Petitions for DACA Plus and DAPA appeared first on Wood Immigration Law.

The August Visa Bulletin was released last week, and it contained significant retrogressions (EB-2 worldwide). Other categories have been experiencing retrogression as the fiscal year draws to a close. September 30 is the final date of the fiscal year and October 1 is the inaugural day of the new fiscal year. USCIS announced that the final action priority date cannot be used for filing adjustment of status applications. This is instead of the more friendly filing action priority date, which is usually a few months before the final action priority date. This is for employment-based and family-based adjustment of status applications.

The post August Visa Bulletin appeared first on Wood Immigration Law.

The AAO decided the Matter of K-S-Y in March of this year, finding in favor of the beneficiary judo coach. The judo coach was able to petition as an Alien of Extraordinary Ability (EB-1), based upon his expertise as a judo athlete. Alien of Extraordinary Ability is a pathway to Permanent Residence and does not tie the individual to a specific employer. The court decided that “area of expertise” may include the field in its entirety and not just one specific occupation within the general field.

The case specifically concerned a judo athlete making the transition from athlete to coach. Many coaches in sports begin as players and later make the transition when they retire as an athlete to a coaching position. The court recognized that athlete to coach is not the only career transition that may occur within an area of expertise, pointing to athlete to broadcaster and musician to instructor as other possibilities.

The EB-1 category is created for a petitioner to apply as an individual of “extraordinary ability.” This is a high standard to meet. The petitioner could not merely rely being an excellent judo athlete in his performance days. He had also taken many steps to establish himself as a coach. There are currently calls for USCIS to adopt this case as a precedential decision.

The post EB-1 Case for Career Transition appeared first on Wood Immigration Law.

A bipartisan bill will be introduced in the House of Representatives to bar certain companies from obtaining H-1B, L-1A, and L-1B visas for their employees.  Those companies are those that employ over 50 employees and have over 50% of their US workforce on H-1B or L-1 visas. Democratic Congresspersons Bill Pascrell from New Jersey and Republican Dana Rohrabacher from California have joined for the H-1B and L Visas Reform Act of 2016. The Congresspersons will introduce this bill because they see foreign companies as insourcing and exploiting foreign workers to abuse visa programs and undercut the American workforce. An interesting side note is that New Jersey and California are two of the states that have the largest concentrations of Indians (both Indians and Indian-Americans) and immigrants in general.

Both Congresspersons introduced similar legislation in 2010 that failed to gain any traction. This legislation comes off the heels of instances of H-1B fraud and additional fees imposed on companies that have over 50 employees and over 50% on H-1B or L visas.

Certain websites have headlines, such as US Lawmakers Introduce Bill to Prevent Indian Firms from Hiring on H-1B, L1 Visas. The headlines are not necessarily provocative as to point out blatant discrimination. The reason is that Indian IT firms are among the highest users of the H-1B and L visas. Their business model relies heavily on bringing foreign nationals to work in the US on H-1B and L visas. Indian nationals are the number one beneficiary of H-1B visas.

The post Bill Proposes Barring H-1B and L-1 Visas for Certain Companies appeared first on Wood Immigration Law.

Government agencies have an Ombudsman who issues reports to Congress and liaises between consumers and the agency to resolve problems. The USCIS Ombudsman released its report for 2016 at the end of June. Important issues for attorneys, individuals, and employers have been visa RFEs and visa delays, Employment Authorization Document application delays, fee waivers, the EB-5 program, and processing times in general. The Ombudsman’s report is over 100 pages. Here are some highlights:

• The Ombudsman noted the excessive number of Employment Authorization Document applications that are taking over 90 days to adjudicate, despite a regulation that states it must take place within 90 days. One seventh of the Ombudsman’s caseload related to delayed EAD applications. The Ombudsman writes:

“Thousands of EAD applicants and their employers continue to be negatively impacted by the agency’s failure to timely adjudicate Form I-765. The proposed regulatory changes will not improve processing times absent allocation of significant resources to meet processing times goals. The Ombudsman continues to highlight EAD issues as a systemic issue, and will monitor and engage the agency as long as this matter remains unresolved.”

• USCIS has a proposal to eliminate the 90 day adjudication requirement and replace that with an automatic 180 day extension of the employment card’s validity upon a timely filing. That proposal has not been implemented. The Ombudsman repeated that it has made multiple efforts and recommendations to rectify EAD issues over the past 8 years.
• H-1B, L-1A, and L-1B RFE rates have decreased from the previous year. This has been monitored for years because of high RFE rates. There are also discrepancies in RFE rates between the Vermont and California Service Centers. Those discrepancies persist.
• O-1 and P-1 visa petitions are receiving high rates of RFEs (49% and 65%).
• There is mixed data as to whether the Service Centers issue RFEs toward the end of the premium processing 15 day period as a delaying tactic.
• Processing times for Naturalization applications are highly variable by USCIS Field Office. Times range from 4 months to 9 months.
• Processing times for Permanent Residence applications are highly variable by USCIS Field Office. Times range from less than 4 months to over 10 months.

The post appeared first on Wood Immigration Law.

Immigration reform looked imminent in 2013. The 2012 elections demonstrated yet another discrepancy in the Latino electorate voting for Democrats, much like 2008. President Obama had issued executive orders to implement the DACA program in 2012 as a stop gap measure before comprehensive immigration reform emerged. Republicans were amenable to working with Democrats on comprehensive immigration reform, meaning a bill that covered business immigration, border enforcement, family immigration, and pathways to citizenship to certain individuals without status.

The driving force was the Gang of 8 – a bipartisan group of senators that pushed for immigration reform. They were partly successful. The Senate voted to pass a bill for comprehensive immigration reform. The House refused to pass the bill and comprehensive immigration reform has remained elusive since.

Immigration has become a hot topic once again over the past year, taking center stage in the presidential election. The Gang of 8 was heralded in 2013 as the cooler heads prevailing amongst the hotter temperaments. If the Gang of 8 is revived after the 2016 election, it will most likely have to resist a vitriolic and divided atmosphere. The status of DACA plus and DAPA and dormancy of comprehensive immigration reform show that immigration reform has been nonexistent since 2013. In the vacuum, states have passed their own immigration laws.

The post Gang of 8 Is Back? appeared first on Wood Immigration Law.

H-1B visas are normally subject to a lottery. Specialized jobs that require a Bachelor’s degree generally qualify for the H-1B visa. However, with a demand thrice the amount of the supply of 85,000, nearly 2/3rds of H-1B visa applicants are left on the sidelines without a visa and a lost job opportunity. For many individuals, the H-1B visa is the best and sometimes, only option. There are more than 85,000 visas available in the category. The reason for that is cap-exempt H-1B visas.

Certain institutions are exempt from the lottery, meaning that they can apply for the H-1B visa at any time of the year for a beneficiary. Instead of filing on April 1 for an October 1 start date and subjecting themselves to the randomness of a lottery, they are able to procure H-1B visas if their applications meet the standards for an H-1B visa.

Babson is among 6 US universities that is endeavoring to keep their talent in the United States by petitioning for beneficiaries as entrepreneurs through university-created residence programs. Programs of the sort are popular at universities throughout the United States. Using the program to connect the cap-exempt H-1B visa for foreign graduates is innovative. It is being called a “legal loophole,” but the paucity of visas totally incommensurate with supply has created an atmosphere where employers and universities will invent creative ways to obtain H-1B visas for their desired individuals.

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