Immigration News That You Can Use Naturalization Practice and Procedure; The November Retrogressive Visa Chart; H-1b by Highest Salary Still Being Advocated by Biden Administration; Ban on Travel from Canada and Mexico Ending in Stages; New York State and Federal Government Efforts to Protect Immigrants.

by Alan Lee, Esq

  1. Naturalization practice and procedure

Q&A’s from the CIS Ombudsman’s webinar on naturalization and immigrant integration on 6/23/21 gave the following:

  • Demonstrating the general usage of tablets for naturalization applicants’ reading and writing tests, the question was how naturalization applicants can request to take the reading and writing tests on paper with the answer being a variety of ways including through the Contact Center, online at uscis.gov/accommodations, or by asking the field office at any time during the naturalization process.
  • On how common video interviews are becoming in USCIS field offices, the question was how citizenship educators can find out if their local field office is conducting video interviews so they can prepare students, the answer being that the use of video interviews varies across offices based on determinations that consider a variety of factors, such as office capacity, office workloads, and health and safety considerations; that select USCIS offices began testing in person video interview technology in June 2020; the testing was successful, and USCIS has now conducted video interviews in all USCIS field offices.

From the New York District office/stakeholders liaison meeting of 9/29/21:

  • There was an interesting question as to what the District would do in an N-400 case where the person had a green card that expired prior to filing the N-400 or during the pendency of the application. The first answer was that the person had to file form I-90 even if that person filed for naturalization as the law required that a person have a valid green card in all times. In a later follow-up question as to whether lack of the green card would cause the immigration officer not to adjudicate the N-400, the District answer was that the lack would have no effect since not having a green card had nothing to do with good moral character.
  1. The retrogressive visa chart for November

While FB (family-based) dates of filing and final action dates in the November visa chart were the same as in October, EB (employment based) dates of filing and final action dates for China and India took a big hit in the EB-3 category – Final action dates: EB-3 China retrogressed from 1/8/19 to 3/22/18 and India from 1/1/14 to 1/15/12. There is little solace that the EB-2 China date advanced from 7/1/18 to 11/15/18 and India from 9/1/11 to 12/1/11 as those dates had been reached for the vast majority of EB-2 to EB-3 downgraded petitions. Dates of filing: EB-3 China moved backwards from 1/15/19 to 4/1/18 and India from 1/8/14 to 1/22/12. There is some solace that China’s EB-2 date of filing advanced from 9/1/18 to 2/1/19 as that is an advance over past usable visa availability dates for China EB-2 and EB-3 categories, but the India EB-2 move from 7/8/12 to 1/8/13 provided little solace except for those that could not downgrade to EB-3 previously.

What reason(s) can be ascribed for the retrogression? The November visa bulletin section on page 8 said, “This is a direct result of extraordinarily heavy applicant demand for numbers, primarily by Citizenship and Immigration Services offices for adjustment of status cases.”

An article in the 10/6/21 Immigration Daily, “The Biden Administration Let over 200,000 Green Cards Go to Waste This Year” by Walter Ewing, charges that roughly 150,000 FB and as many as 80,000 EB immigrant visas went unused by September 30 – that while the 150,000 FB IV numbers can go to the EB category for the next year (regular quota of 140,000+150,000 FB numbers = 290,000 for use in FY 2022), the 80,000 EB numbers went to waste. Mr. Ewing pointed out that in FY 2021, there were 122,000 FB leftover numbers from FY 2020 for use in that year for EB purposes (140,000+122,000 = 262,000), but that as many as 80,000 went unused and cannot be resurrected without congressional action.

Between the wasted numbers and that the Department of State must balance out the annual quota among the four quarters of the fiscal year, therein lies (in this writer’s opinion) the roots of the problem to the retrogressed categories.

In the continuing tease, USCIS adjustment dates for November allow dates of filing for FB cases, final action dates for F-2A, and filing dates for EB cases.

  1. H-1B by highest salary still being advocated by Biden Administration.

The Biden administration is defending the H-1B by highest salary Trump policy once again – this time before a DC federal judge in Humane Society of New York et al. v. Alejandro Mayorkas, et al., 1:21-CV-01349, saying that the policy is procedurally valid and consistent with the INA. It argued on October 11 in a new motion both that the wage dependent model for awarding the limited number of visas for specialty workers is valid and that the policy was implemented legally in the final weeks of the Trump administration under the then acting DHS Sec. Chad Wolf. The administration lost in the California District Court on the same issue about a month ago. There, District Court Judge Jeffrey S White of the Northern District of California in Chamber of Commerce of the United States of America v. US Department of Homeland Security, 20-CV-07331, granted summary judgment to the Chamber of Commerce on 9/15/21 only on the ground that Chad Wolf was not lawfully appointed as Acting Secretary at the time that DHS promulgated the rule. The judge noted that DHS abandoned the argument that a memorandum issued by FEMA Administrator Peter Gaynor cured any deficiencies in Wolf’s appointment. The judge did not rule on the merits of the plaintiffs’ argument that the government’s regulation offended the statute that H-1B cap case people “shall be issued visas (or otherwise provided nonimmigrant status) in the order in which petitions are filed for such visas or status.” §1184(g)(3).

It is becoming increasingly clear that while the Biden administration is much better than that of Mr. Trump in most areas of immigration, Mr. Biden is heavily invested in the unions and in the belief that employers should pay the highest wages to their workers, regardless of the circumstances. Practitioners should plan accordingly if this becomes a reality.

  1. Ban on travel from Canada and Mexico ending in stages.

The White House announced that it is ending the ban on nonessential travel from Canada and Mexico and that those travelers who are fully vaccinated can enter the US for nonessential reasons such as tourism or visiting family travelers starting November 8, the same date that international air travelers can enter. The vaccination requirement does not apply to essential Canadian and Mexican workers who will have until January to be vaccinated. Children are excepted. All FDA approved and authorized vaccines, as well as all vaccines that have an emergency use listing from the WHO are to be accepted for air travel, and a White House official said that it was anticipated that the same would be true at the land borders. At this time, only seven vaccines have been approved for use by WHO – Moderna, Pfizer, Johnson & Johnson, AstraZeneca, Covishield, Sinopharm’s BBIBP-Corv (Vero Cells), and Sinovac’s CoronaVac. The Russian Sputnik vaccine is not included.

  1. New York State and federal government efforts to protect immigrants.

On October 9, 2021, New York Gov. Kathy Hochul signed legislation (S343-A/A.3412-A) which will apply the legal standard of extortion or coercion to a person threatening to report another person’s immigration status. Previously threats to report could only be treated as a crime in cases of labor trafficking and sex trafficking, but were not treated as potential extortion or coercion offenses. The bill allows prosecutors to prosecute efforts to blackmail an individual by threatening to cause deportation proceedings even when unrelated to labor or sex trafficking.

On the federal side, the Biden administration has suspended the use of expanded expedited removal. A DHS spokesperson said in a statement, “DHS’s review of expanded expedited removal is ongoing. This particular application of expedited removal was used in an exceedingly small number of cases under the Biden administration and will not be used moving forward until the Department’s review is completed.” Under expanded expedited removal, the previous bounds of only employing the procedure on those unlawfully entering within two weeks and discovered within 100 miles of the borders were expanded by Mr. Trump to those unlawful entrants discovered in any location in the country who could not prove their presence in the US for at least two years.

In a DHS memo from Secretary Alejandro Mayorkas on 10/12/21, “Workforce Enforcement: The Strategy to Protect the American Job Market, the Conditions of the American Worksite, And the Dignity of the Individual” to Tae D. Johnson, Acting Dir., US ICE, Ur M. Jaddou, Director of USCIS, and Troy A. Miller, Acting Commissioner, US CBP, the Secretary stated DHS policy against mass worksite operations – that “The deployment of mass worksite operations, sometimes resulting in the simultaneous arrest of hundreds of workers, was not focused on the most pernicious aspect of our country’s unauthorized employment challenge: exploitative employers. These highly visible operations misallocated enforcement resources while chilling, and even acting as a tool of retaliation for, worker cooperation and workplace standards investigations. Moreover, such operations are inconsistent with the Department’s September 30, 2021 Guidelines for the Enforcement of Civil Immigration Law and the individualized assessment they require. Given these concerns, please ensure we no longer conduct mass worksite operations and instead refocus our workplace enforcement efforts to better accomplish the goals outlined above.”

 


About The Author

Alan Lee, Esq the author 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, 2015-2021), 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.



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