Asylum Interview Dates Update

Posted on June 13, 2016 by Arjun Mishra

Asylum Interview Dates FINALLY Move Up

The Asylum office is badly behind on scheduling interviews for prospective asylees. It usually took 3 months to hold an interview after applying for asylum affirmatively with USCIS. The process has exceeded 2 years and has encroached beyond 2.5 years at times.

One little victory: the interview dates have moved from October 2013 to January 2014 in the Arlington office’s jurisdiction (Pittsburgh is in the Arlington jurisdiction). If you filed an application in January 2014, they are finally scheduling your asylum interview.

This could be Pyrrhic. Future releases of the interview schedule may stall at January 2014, much like the past few months of scheduling have remained on pause. Perhaps this could augur the beginning of the normalization of the scheduling process.

Demand to Speed Up U Visas

Posted on May 18, 2016 by Arjun Mishra

Organizations Demand U Visa Applications Speed Up

U Visa processing times have stalled for a year. Since June 2015, U visa applications have essentially not been adjudicated. Congress has mandated 10,000 U visas are available per year. That means once 10,000 U visas are granted, the other approvable U visas are waitlisted and backlogged. USCIS has a practice of placing U visa candidates on a wait list, so at least they can obtain an employment card while waiting for U visa approval.

The U visa is partly a humanitarian safe haven for immigration. It allows an applicant to overcome many grounds to inadmissibility, though a waiver can be required. The U visa is a grant of legal nonimmigrant status to someone who has been the victim of a qualifying crime. It requires certification from a government agency, such as the police department that handled the crime. The applicant must have also been willing to or actually have helped in the prosecution of the perpetrator. There is the potential for adjustment to Permanent Residence for U visa applicants and their derivative family members.

USCIS has had some dismal processing times recently affecting all swathes of the immigration spectrum. H-1B and L-1 processing times have been abnormally lengthy. This has caused issues for employees with driver’s licenses, college tuition, and travel. It has caused employers to pay the $1,225 premium processing fee for occasions that should not require it. U visa applications are at a standstill. Employment authorization applications are taking triple the amount of time that they mandated to take for first time asylum applications, and they are pushing against their regulatory period for all other types of applications. Green Card applications through employment-based petitions are beyond processing times. O and P visa petitions are 5xs beyond normal processing of two weeks. If you look at processing times for the service centers, you will see that they are well beyond their stated goals for processing times. USCIS has blamed the slow processing on a lack of resources, as evidenced in its proposed comment for increasing filing fees by 21%.

Kansas Voting Law Blocked

Posted on May 18, 2016 by Arjun Mishra

Federal Judge Blocks Kansas Citizenship Requirement for Voting

A federal judge has blocked a Kansas law that demands Kansans who are registering to vote furnish proof of US citizenship. Many states over the past six years have focused legislative and financial resources on enshrining laws that increase the requirements that an individual has before she can vote. Voting is romantically seen as the right of every American, but states have strategically attempted to craft “voter ID” laws that disproportionately affect certain classes of people. Kris Kobach is the Secretary of State in Kansas and also one of the authors of SB 1070, the Arizona law that caused a furor and was struck down at the Supreme Court. The ruling means that he is not permitted to enforce the law. The judge ruled that minuscule impact of citizen voter dilution by non-citizen voting is outweighed by the disenfranchisement of US voters. At the time of this ruling, over a thousand Kansans were waiting for their voting verification.

As far as non-immigrant and permanent resident concerns go, the law would have no effect. Nonimmigrants and Permanent Residents are not allowed to vote in the United States (save for very few municipal exceptions for Permanent Residents). This is crucial, especially in an election year. Voting is a right of US citizens only. Only US citizens should register to vote. Many immigrants who obtain their driver’s licenses at the DMV may concurrently be given a voter registration form and may even be persuaded that they are permitted to vote and register to vote. That is not the case. Whether it is heard at a government agency or on a college campus, only US citizens are allowed to register to vote. Only US citizens can vote in US elections. Permanent Residence brings about the legal ability to travel, work, and sponsor certain family members for Permanent Residence. It does not enable you to vote. In Pennsylvania, you must be a citizen for 30 days before you can register to vote.

H-1B Cap Reached

Posted on April 8, 2016 by Arjun Mishra

Cap Reached: H-1B Visas Available April 1, 2017

The H-1B cap has been reached. April 7 was the fifth business day of April and that was the final day to submit a cap-subject H-1B petition for a position that starts on October 1, 2016. The reason that petitions are only accepted for the first five days of April is that there is a limit of 65,000 cap-subject H-1B visas issued per year (plus 20,000 for beneficiaries with US Masters in jobs that require Masters). There is a lottery in effect because over 65,000 and 20,000 petitions are received. Last year around 233,000 petitions were submitted by businesses (mostly).

An H-1B petition can be submitted 6 months prior to the starting date. October 1 is the first day of the new fiscal year, which refreshes the number of H-1Bs available. In the late 1990s and early 2000s, the H-1B cap was much higher than 65,000 (up to 195,000), but it has remained at 65,000 for over a decade. Proposed legislation has sought to increase that number, but movement has not been made. The 1990 IMMACT bill created the H-1B visa. Certain exemptions are made for H-1B petitions to avoid the cap and the lottery. A cap-exempt H-1B visa can be filed at any time during the year.

Employee Portability

Posted on April 5, 2016 by Arjun Mishra

Section 204(j) Portability

Section 204(j) provides that an approved Form I-140 petition for certain classifications remains valid for adjustment of status when an applicant switches jobs or employers if:

The adjustment of status application has been filed and remains unadjudicated for 180 days or more, based on an employment-based immigrant visa petition AND
The new job is in the “same or a similar occupational classification” as the job for which the petition was filed.

A new policy memorandum has been issued to assist immigration officers in determining what qualifies as a same or a similar occupational classification and which evidence should be used in making that determination. They are instructed to examine the job duties of the former and new job and skills, experience, education, training, licenses, and certifications required. Wages can also be important. The policy memorandum also repeats that a preponderance of the evidence standard is to be utilized.

Immigration officers are supposed to treat evidence favorably if the applicant establishes that the previous and new job are within the same broad occupation code in determining whether the two positions are similar. The memo gives the example of Computer Programmers, Software Developers Applications, Software Developers Systems Software, and Web Developers being found within the same broad occupational group of Software Developers and Programmers. It also gives warning: just establishing that the two jobs are described within the same broad occupation may not be enough for the two jobs to be in similar classifications for a preponderance of the evidence.

Of note, the memo dedicates analysis to career progression. It continues the analysis under the totality of the circumstances and preponderance of the evidence guidance. The analysis may be more straightforward when the promotion is to a more senior position that does not involve managerial or supervisory duties. The analysis becomes complicated when that transition is to a position that involves a managerial or supervisory role.

For that second scenario, the memo instructs that if the applicant establishes in the new job that she will be “primarily responsible for managing the same or similar functions of their original jobs or the work of individuals whose jobs are in the same or similar occupational classification(s) as the applicants’ original positions, the immigration officer can treat that evidence in the applicant’s favor for determining similar occupational classifications. The example used is a cook advancing to a food service manager. A food service manager supervises restaurant cooks and other individuals in similar positions.

There may also be situations where a normal career progression does not involve managing persons in jobs that in the same or similar occupational classification as the applicant’s original position. The example used is a cook that becomes a food service manager, while retaining many of the original job duties. That position may be devoid of supervisory duties, but the applicant would be able to demonstrate similar occupational classifications based on functions.

The memorandum is lengthy and detailed, delving into many scenarios that immigration officers encounter as they adjudicated portability petitions. Portability is an important provision of the AC21 law enacted in 2000. The express purpose of that law was to increase job flexibility for foreign workers who are stuck in delays and backlogs in the employment-based immigrant visa process.