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  • Article: News at the 2016 AILA Spring Conference on US v. Texas, CSPA, I-601A Proposed Rule and H-1Bs. By Alan Lee, Esq.

    News at the 2016 AILA Spring Conference on US v. Texas, CSPA, I-601A Proposed Rule and H-1Bs


    A large number of topics were discussed at the 2016 AILA Spring CLE conference “Government Agency Update” on April 8, 2016, and AILA (American Immigration Lawyers Association) members were able to hear from a number of officials from U.S.C.I.S., CBP, Department of Labor, Executive Office for Immigration Review, ICE, and the Department of State. Among the subjects covered were the ones in the above title:

    1. U.S. v. Texas – Oral argument is being held on Monday, April 18, 2016, before the Supreme Court and a decision is expected in June in this highly publicized case of 26 states mainly opposing the Administration’s Deferred Action for Parental Accountability (DAPA) program which would allow 3 years of stay in the U. S without fear of removal and work authorization to approximately 4,000,000 undocumented immigrants. The question is how the implementing agency, U.S.C.I.S., will handle the program assuming that the Supreme Court comes down on the side of the Administration. U.S.C.I.S. officials on April 8th said that this would be added to the priorities; that they were aware that people would be looking to do this quickly; that it would be a challenge and would be blended in with the priorities; that they were precluded from preparing for it and so were not putting together teams; the fact that the applications would be fee-based (instead of having to come from the government in the form of appropriations) made it better, but that it would take 6 months to hire to bring in people from the street [interpreted here to mean the time that it would take to bring the people that they hire up to speed]. Thus it appears that in the event of victory, the program will not lift off the ground as fast as many people would like.

    2. CSPA – The issue here is the meaning of the term “visa availability” and whether that should correspond with the date on the “filing date” monthly visa bulletin or the “final action date” on that chart, and which date should be used to “freeze” the child’s age. This is a truly meaningful debate as the difference in a few months or even weeks or days can make all the difference as to whether a child can immigrate with the parents or suffer the fate of being left out and having to have the parent subsequently file a petition under the F-2B category for single adult children of permanent residents and have to wait another 7-8 years to immigrate. The 2 visa chart concept was implemented in October 2015, and could benefit those whose dates were available under the “filing date” chart if U.S.C.I.S. makes a favorable interpretation of the term. For example, the filing date chart in January 2016’s visa bulletin under the F-4 sibling category was up to May 1, 2004 while the final action date was only up to April 22, 2003 for most countries. If a child (after all the calculations of age provided for under the CSPA) would be held to have turned 21 in September 2003, he would be CSPA eligible to immigrate if the “filing date” chart could freeze his or her age, but would definitely be over the age of 21 if the “final action” chart was used. U.S.C.I.S. officials said on April 8th that this was an issue that they were grappling with, that this was a big question, and that hopefully there would be some guidance soon. A Department of State representative gave the nebulous answer that the statute is dependent upon when the visa is available, but readers should be aware that the final decision on legal questions pertaining to immigration law is within the province of the Attorney General and its agency in this matter, U.S.C.I.S., not the Department of State.

    3. I -601A expansion rule – Many people have been waiting for this one, the expansion of the provisional I-601A relief to all eligible classes. The I-601A is a provisional waiver put into play by the Obama Administration to give relief (to those who are not eligible for adjustment of status to permanent residence) to go abroad safely for immigrant visa processing by allowing those who would be barred from returning to the U. S. because of violating the unlawful presence requirement (generally staying illegally in the U. S. for over one year and having a bar of 10 years imposed upon them if they return) to file for a waiver of the bar while in the United States and have it adjudicated while they are still here. The waiver is currently available to immediate relatives of U. S. citizens (mostly spouses) and is dependent upon establishing extreme hardship to a U. S. citizen spouse or parent if the alien must leave the U. S. permanently. Assuming that the waiver is approved, they would then arrange for consular processing in which they would ultimately interview at their home U. S. embassies or consulates, which interviews would in all likelihood be normal. The expansion rule was proposed in the Federal Register in July 2015 and would expand eligibility to all those who are eligible for an immigrant visa whether in employment-based or family-based or other categories as long as they have a qualifying relative for extreme hardship who would be either a U. S. citizen or permanent resident spouse or parent. The final rule was expected in the springtime. At the AILA Spring conference, U.S.C.I.S. officials left the impression that the rule will be coming out soon. Phrases were said such as they’re working on it, it’s moving, but what’s difficult is that there are all these things at one time and hopefully it will be soon – that they are getting close. This will be extremely big news once the final rule comes out as it will affect a large number of persons, and by this time, many people know of the popularity and success of the program.

    4. H-1Bs – Although there was not a count on the number of cap H-1Bs that had been filed by the first week of April by the time of the Spring conference, the Department of Labor (DOL) gave a hint as to the vastness of the numbers by saying that in the 2nd quarter of the fiscal year (1/1/16 – 3/31/16), there were 313,000 filings of labor condition applications (LCAs). Obtaining an LCA from the DOL is a necessary precursor to filing an H-1B petition. At the time of this writing, it is already known that a new record of more than 236,000 cap H-1Bs were filed during that time period. Looking at the odds mathematically, the chances of those without a U. S. Masters degree of being selected were approximately 27%. Those with U. S. Masters degree had more opportunity as they were first placed in a random selection for the first 20,000 numbers, and if not selected, put in with all others for a second computer drawing of the approximate 65,000 remaining numbers. Another subject of discussion was the H-1B backlog in which U.S.C.I.S. officials acknowledged that it was a struggle and the number of adjudicators was not up to the volume. They disclosed that U.S.C.I.S. is sympathetic to pending H-1B extension filings which are close to 30 days; that there is much attention to these cases; and if people have cases approaching 240 days (the limit for automatic work authorization in extension cases), they can “nudge” the agency 30 days beforehand. When asked how to notify the agency, the best suggestion appeared to be to making the nudge via e- request, a tool of the agency whereby the public can contact the agency through the U.S.C.I.S. website and submit a complaint online (egov.uscis.gov/e-request).

    The 4 above subjects were among the most topical although there were many other important subjects touched upon which will be the subject of a future article.

    This article © 2016 Alan Lee, Esq. Reprinted with permission.

    About The Author

    Alan Lee, Esq. Alan Lee, Esq. is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell's Ask-a-Lawyer program. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of "doing business" for multinational executives and managers to gain immigration benefits.

    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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