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    Published on 07-13-2018 03:11 PM

    3 Tips to Answering the Double Specialty Occupation and Wage Level H1B RFE

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    When CIS finds one problem with an H1B petition, they tend to find more. RFEs regarding multiple issues are common, and one of the most frequent ones we've seen is the Specialty Occupation and Wage Level Double RFE.

    This RFE deals with two H1B eligibility requirements:

    1. The job in question must require a US bachelor's degree or higher or its equivalent to meet specialization requirements.

    2. The employer must pay the H1B employee the prevailing wage for that position, in that industry, in that geographical location for companies of that size. ...

    Published on 07-13-2018 02:59 PM

    A Modest Proposal to Solve the Immigration Court Backlog

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    Seven hundred thousand backlogged cases in Immigration Court is a crisis for aliens entitled to relief, for detained aliens and the taxpayers who are paying for their detention, for the reputation of the US in the world community, and for the administration of justice. Justice delayed is justice denied.

    Much ...

    Published on 07-12-2018 12:31 PM

    At Risk, Debt Arrangement, Guaranteed Redemption: Important Distinctions

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    We have been counsel in various successful litigations where USCIS had challenged EB-5 petitions either based on an investment not being “at risk,” or based on the allegation that the investment was a “debt arrangement”, or based on a “guaranteed redemption”, or some combination of the three. Often USCIS uses the terms interchangeably as if they all relate to the same concept. They do not.

    The purpose of this blog is to distinguish between the three concepts, distinguish between various scenarios in which these issues are raised and distinguish between USCIS policy and our view of the law, which we advocate both to USCIS and in federal court.

    DISTINGUISHING BETWEEN THREE CONCEPTS

    As mentioned, “at risk”, “debt arrangement” and “guaranteed redemption” are three separate issues. The first issue is whether the investment ...

    Published on 07-11-2018 09:47 AM

    USCIS Is Slowly Being Morphed Into an Immigration Enforcement Agency

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    U.S. Citizenship and Immigration Services (USCIS) issued new guidance to initiate deportation proceedings for thousands of applicants denied for any immigration benefit. This policy change will have far-reaching implications for many of those interacting with the agency, but also signals a major shift in how USCIS operates.

    USCIS was never meant to be tasked with immigration enforcement. Their mandate has always been administering immigration benefits. With its distinct mission, USCIS was created to focus exclusively on their customer service function , processing applications for visas, green cards, naturalization, and humanitarian benefits.

    The new USCIS guidance instructs staff to issue a Notice to Appear (NTA) to anyone who is unlawfully present when an application, petition, or benefit request is denied. This will include virtually all undocumented applicants, as well as those individuals whose lawful status expires while their request is pending ...

    Published on 07-10-2018 02:17 PM

    California Employers Confused After Federal Court Enjoins Portions of AB 450

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    Earlier this year, we blogged about AB 450 in California, the state law entitled “The Worker Protection Act” that was part of legislation passed last year in response to the Trump Administration’s enforcement-oriented stance on immigration. The law aimed to provide California workers some notice and protection at the work place regarding federal work-site enforcement programs.

    AB 450 requires employers to deny federal immigration enforcement agents access to the non-public areas of a business premises without a judicial warrant. The law also penalizes employers who attempt to re-verify I-9’s that are not expiring and requires certain notice to go the workforce in the event of an I-9 audit.

    In March 2018, US Attorney General Jeff Sessions sued the State of California in federal court to enjoin the enforcement of AB 450 and two other so called “Sanctuary State” laws. On the 4th of July, US District Court Judge John Mendez in Sacramento, California ...

    Published on 07-10-2018 02:08 PM

    Toward a Modified Travel Ban in Support of Merit-Based Immigrants

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    On June 26, 2018, the U.S. Supreme Court decided Trump V. Hawaii. Chief Justice John Roberts, in a 5-4 ruling, held in favor of the Trump Administration on what has become known as the Trump Travel Ban 3.0. Specifically the Supreme Court majority acknowledged the President’s power under the Immigration and Nationality Act to suspend entry of certain classes of noncitizens into the United States. So, at this time, Trump Travel Ban 3.0 restricts in various ways and in various degrees the issuance of non-immigrant (temporary) and immigrant visas for citizens of Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen.

    Trump Travel Ban 3.0 was initially issued back in ...

    Published on 07-09-2018 02:47 PM

    Justice Kennedy: State Immigration Enforcement Laws and Arizona v. Unitred States

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    With President Trump scheduled to nominate a Supreme Court Justice later today, the high Court is on the minds of many. The new Justice will replace Associate Justice Anthony Kennedy , widely identified as the key swing vote on the Court.

    SCOTUSBlog has been running a symposium on Justice Kennedy's jurisprudence . The contribution by Pratheepan Gulasekaram critically analyzed immigration legacy. His conclusion: "Taken as a whole, Kennedy’s immigration jurisprudence demonstrates that his bold strides towards protecting the liberty and dignity of personhood were limited to some vulnerable minorities, but did not extend to persons covered by immigration laws and policies." This analysis is persuasive.

    In addition, as I have commented , Justice Kennedy wrote few important immigration opinions, a fact that seems odd given that he came from the Ninth Circuit, which long has had many immigration ...

    Published on 07-06-2018 11:13 AM

    Nationwide Immigration Rallies Send A Strong Message: All Families Belong Together

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    Hundreds of thousands of marchers gathered on June 30, 2018 to protest the Trump’s administration policy of family separation. Activists organized nearly 800 marches in all 50 states, from major traditional immigrant gateways such as New York and California to newer receiving communities in Kentucky, Indiana, Tennessee, and North Carolina.

    The focus was the administration’s policy of separating families at the southern border, most of whom are fleeing severe abuse and gang violence in their countries of origin. The practice has resulted in over 2,300 children being taken away from their parents, often without communication or any information about the whereabouts of their loved ones.

    Despite the blazing heat at many of the rallies, activists and protesters demanded that the U.S. government reunite these separated families. The nationwide marches also called for a definitive end to the administration’s zero-tolerance policy, which resulted in the current family separation crisis.

    ...
    Published on 07-05-2018 03:04 PM

    3 Things We learned from the USCIS Ombudsman 2018 Annual Report Regarding the Proposed Regulations and EB-5 Waiting Lines

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    The USCIS Ombudsman, which is charged with providing an independent perspective to USCIS, released its 2018 Annual Report last week. A portion of the report focused on the EB-5 Immigrant Investor Program, discusses some of the key issues facing the EB-5 industry today, and seeks to address those concerns and implement other reforms.

    The report also included a brief synopsis of the 290 comments received by USCIS in response to the January 2017 Notice of Proposed Rulemaking (NPRM), which could provide some insight into how the final set of EB-5 regulations will look. Initially anticipated in August, the latest news is they may only be released near the end of 2018 calendar year:

      ...
    Published on 07-05-2018 02:58 PM

    Immigration in the Supreme Court: The Final 2017 Term Scorecard

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    The Supreme Court decided four core immigration cases in the 2017 Term. The travel ban case was significant but there was much more.

    Interestingly, immigrants won as much as the Trump administration. I would argue that the cases support the claim that the Court's immigration jurisprudence continues to become unexceptional and more consistent with mainstream American law.

    Sessions v. Dimaya (5-4) by Justice Kagan. The Court invalidated a criminal removal provision of the immigration laws was unconstitutionally vague. Justice Gorsuch joined the majority in a vote that I predicted after the oral argument . It is extremely rare for the Court to strike down a removal provision of the immigration laws. (Immigrant Win)

    Jennings v. Rodriguez (5-3) by Justice Alito. The Court found that various provisions of the immigration statute permitted detention pending a removal hearing without a bond hearing and remanded to the court of appeals to determine the constitutionality of the provisions. (Draw; lean toward the government).

    Published on 07-03-2018 03:51 PM

    The Mexican Repatriation Process and Arguments of Relocation in U.S. Immigration Hearings

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    Introduction:

    The purpose of this article is examine the Mexican repatriation process and how the government tracks its citizens. In immigration hearings, the U.S. government regularly asserts that respondents who are threatened by cartels can relocate to other areas of Mexico, obtain jobs, and function normally without detection. However, there are a number of mechanisms the Mexican government uses in order to know where its citizens live. Given that the Mexican bureaucracy has been compromised by officials under the pay of drug cartels, cartels can use these same databases to track persons of interest and continue to threaten them. It is highly probable, therefore, that no person can prevent drug cartels finding out where they live in the long term.

    Repatriation Process:

    When a Mexican is repatriated, they fall under local repatriation arrangements signed by both U.S. and Mexican government officials designed to strengthen the bilateral framework for the protection of Mexican citizens being returned to Mexico, improve the efficient use of limited resources, and increase coordination during the repatriation process. Before or during the repatriation, the Department of Homeland Security provides the Mexican Instituto Nacional de Migración (INM) a list of the persons to be repatriated and pertinent on Department of Homeland Security (DHS) Form I-216 [1]

    When individuals who have been convicted of criminal offenses are being repatriated through formal immigration proceedings, information added includes alias, convictions and dates, and time served. In addition, the INM has web access to the U.S. Criminal History

    Information Sharing (CHIS) which includes biometric information (photographs and fingerprints). DHS Automated Biometric Identification System (IDENT) stores fingerprints on behalf of DHS component agencies which can be readily accessed by Mexican authorities. In a previous article, we examined the CHIS in more detail [2]

    Therefore, when a repatriated citizen is returned, Mexican authorities have a good deal of information on each person. This data is augmented by several necessary disclosures each returnee must do in order to move throughout the country, hold a job, or have access to national health insurance.

    Identification: ...

    Published on 07-03-2018 03:22 PM

    Briefing by the U.S. Consul General, U.S. Embassy in Moscow, Russia

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    On Wednesday, June 27, 2018, Laurence E. Tobey, Minister-Counselor for Consular Affairs at the U.S. Embassy in Russia, gave an informal presentation on the status of the U.S. Mission to Russia. The talk was sponsored by the American Chamber of Commerce in Russia.

    Mr. Tobey talked about the recent closure of the U.S. consulate in St. Petersburg and how that has caused further delays, specifically in the Nonimmigrant Visa Unit. It was discouraging to hear that in Moscow the interview appointment waiting time for first-time B1/B2 visa applicants is officially 300 days. Mr. Tobey admitted that ...


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