Siskind’s Immigration Bulletin December 2018
Dear Readers:
We end 2018 and as we head into the new year, a little reflection is always a good thing. We can be thankful for many things. Some may ask how an immigration lawyer can be positive when the environment is so tough.
I don’t think it’s so hard. First, despite having the most anti-immigration President in modern US history who controls both Houses of Congress, we still have an immigration system that is functioning, albeit handicapped on many fronts. The US is still the destination for millions around the world and while denial rates are up, they are not up so much that people are not still able to navigate through the process.
ABCs of Immigration: Consular Processing of Nonimmigrant Visas
Most nonimmigrant visa applicants acquire their visas prior to their entrance into the United States. Exceptions to this general practice include visitors using the Visa Waiver Program, Canadiens entering at ports of entry at the U.S.-Canadian border, and individuals in the United States with expired visas who take short trips to contiguous countries and adjacent islands and re-enter using a process called automatic visa revalidation.
Though visa processing is similar from one U.S. consulate to another, there are distinct and important variations to remember. All U.S. consulates have websites and most have information pertaining to the specific requirements for nonimmigrant processing. Typically, the website will include information on the hours of operation, the procedure for scheduling a consultation, how to pay fees, and how long visa processing usually takes.
Ask Visalaw.com
QUESTION: I filed an I-485 with an application for employment authorization and advance parole based on my marriage with a U.S citizen. It has been five and half months, but I still haven’t received any updates other than my biometrics appointment. I have done three service requests but have received no response. What can I do? I need the advance parole to go back to my home country as my father is sick.
Border and Enforcement News
Siskind Summary: The H-1B Pre-Registration Proposed Rule
The Department of Homeland Security has proposed a new rule that will dramatically change the way the H-1B application process works. The rule would establish an electronic pre-registration system and run the annual lottery based on the pre-registrations rather than requiring employers to file entire H-1B applications. DHS is also changing the way it conducts the lottery to improve the odds of those with graduate degrees from US universities.
The rule has obvious appeal in terms of saving employers considerable time and money. USCIS recognizes a concern many are already expressing – that there will be attempts to “game” the process to allow some companies to try to flood the system with registrations and hoard H-1B visas. Also, some are questioning whether DHS has exceeded its authority under the Immigration and Nationality Act.
News from the Courts
Fourth Circuit Court of Appeals Grants Review and Remands After Finding BIA Erred in Finding Applicant Failed to Establish Past Persecution
Mocktar Tairou, a Beninese citizen, received numerous death threats against both himself and his family resulting from his sexual orientation. After being assaulted and threatened on multiple occasions, he applied for admission to the United States at the Washington, D.C. port of entry on March9, 2014. 9 days later, an asylum officer determined that Tairou’s fear of persecution or torture were credible, referring Tairou to an Immigration Judge (IJ). The Department of Homeland Security (DHS) subsequently initiated removal proceedings on the grounds of Tairou’s inadmissibility due to his failure to produce a valid etry document. Tairou conceded removability before the Immigration Judge and applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”).
News Bytes
USCIS Announces H-2B Cap for First Half of Fiscal Year 2019 Has Been Reached
United States Citizenship and Immigration Services (USCIS) announced it has reached the congressionally mandated H-2B cap of 33,000 petitions for the first half of fiscal year 2019. The final day to receive new cap-subject H-2B worker petitions which requested an employer start date before April 1, 2019 was December 6, 2018. Any new cap-subject H-2B petitions requesting an employment start date before April 1, 2019 received after December 6, 2018 will be rejected. Having received more petitions than the total number of H-1B visas available for the first half FY 2019 cap, USCIS, adhering to regulations, determined that it needed to utilize its computer-generated lottery which randomly selects petitions received on December 6.
In the News from ABIL
New Developments at Southern Border: Temporary Restraining Order Bars Trump Administration From Changing Asylum Law; Trump Spars With Chief Justice; No Agreement With Mexico Yet
U.S. District Judge Jon Tigar, of San Francisco, California, has issued a temporary restraining order blocking President Trump’s presidential proclamation and a new rule preventing certain types of asylum claims along the southern border of the United States. The order will remain in effect until a court hearing on December 19, 2018.
President Trump had issued the presidential proclamation targeting potential mass migration through the southern border of the United States with Mexico in response to reports of a “caravan” of a large number of people primarily from Central America with a stated goal of entering the United States. Several thousand members of the caravan are waiting in Tijuana, Mexico, and more are expected. On November 9, 2018, the Departments of Justice and Homeland Security published a related interim final rule limiting asylum claims, and the Executive Office for Immigration Review and U.S. Citizenship and Immigration Services released guidance. The American Civil Liberties Union, the Southern Poverty Law Center, the Center for Constitutional Rights, and other groups immediately sued, claiming that the proclamation and rule violated asylum applicants’ rights.