Immigration News That You Can Use - USCIS Pronounces Finality to H-1B Selections; Consular Practice; Happiness or Sadness When IJ's Dismiss Cases; Little to Do in Office With September Visa Charts; NRC News; ETA 9089 Filling Where No Sunday Newspaper.

by Alan Lee, Esq.

  1. USCIS pronounces finality to H-1B selections

USCIS has been giving case alerts for the past few days requesting H-1B petitioners and representatives to login to their H-1B registry accounts only to find that registry cases are now being marked “not selected”. To most practitioners, it appeared that there would not be a second selection for FY-2023. With the steady stream of non-selections, most petitioners/representatives had already seen the vast majority of their “submitted” cases move to “not selected”. Perhaps it was the sheer volume of candidates that caused the non-selection process to play out over a period of days. For FY-2023, USCIS received 483,927 H-1B registrations and selected 127,600 projected as needed to reach the fiscal year’s numerical allocations. That left 356,327 previously standing “submitted” registrations. USCIS ended the suspense this morning with an announcement that it had reached the fiscal year 2023 H-1B cap and had completed sending non-selection notifications to registrants’ online accounts. One would hope that USCIS in future years will make the announcement first so that registrants do not entertain false hopes of being selected.

  1. Consular Practice.

It may be worth repeating that in the DOS/AILA (Department of State/American Immigration Lawyers Association) liaison committee meeting of 6/9/22, consul posts are the final arbiter of whether original signatures are required or not; there is a known issue with CEAC (Consular Electronic Application Center) requesting police certificates for some applicants who lived in another country for less than one year and if you are not required to submit a police certificate that CEAC is asking for, you should instead submit an explanatory comment (NVC (National Visa Center) follows the guidance in 9 FAM 504.4-4 (B) for collecting police certificates for countries in which individuals previously resided for a year); and to the complaint that, where a US citizen spouse is regularly residing overseas and an applicant is relying upon assets to establish eligibility for the affidavit of support, NVC is requesting W-2s and a joint sponsor –NVC answered that its processes for affidavit of support eligibility remain the same as per 9 FAM 601.14-6 d to request W-2s for the periods of employment if a sponsor submitted a copy of the tax return (1040) regardless of filing status or if the sponsor submitted an original tax transcript and is only using his or her income to meet the poverty guidelines. (We have found that explanations have been useful here).

  1. Happiness or Sadness When IJ’s Dismiss Cases.

Are you happy or are you sad and does it depend upon what kind of case you have? TRAC reported on July 29, 2022, that DHS is failing to file NTAs (Notices to Appear) with the courts, and this is leading to one out of every six new cases being dismissed by the court. According to the article, Border Patrol agents are given the ability to use the immigration courts’ Interactive Scheduling System (ISS) to directly schedule an initial hearing. Supposedly, the actual NTA is created at the same time and a copy given to the asylum-seekers with the scheduled hearing location and time they are to show up in court noted on the NTA. CBP (Border Patrol is part of Customs and Border Protection) then only has to follow up with the task of seeing that the court also receives a copy of the NTA. The article opines that with the implementation of the court’s ECAS (EOIR and Appeals System) system of e-filing, this should make the process quick and straightforward (ha ha!). The article says that the failure to have this done suggests that there is a serious disconnect between CBP personnel entering the cases on an NTA and other CBP personnel responsible for submitting a copy to the court. The article further says that this is exceedingly wasteful of the court’s time and problematic for the immigrant and possibly the attorney if they show up at hearings only to have the case dismissed by the IJ because the case has not actually been filed with the court. Question – in weak cases, don’t you think that the alien and his or her representative will be jumping up with joy?

  1. Little to Do in Office with September Visa Charts.

The one thing to be said about the September Visa bulletin is that it simplifies the job in many law offices of tracking the movement of cases occasioned by changes in the monthly charts. The September bulletin is a repeat from August with the only change being in China’s EB-5 (Immigrant Investors) final action date moving up one month to 12/22/15 and dates of filing one week to 1/1/16. It did give DV (Diversity Visas) cut off dates for October and finalized numerical limitations for FY-2022 as being 226,000 for the worldwide family sponsored preference limit, and 281,507 for the worldwide employment-based (EB) preference limit. It remains to be seen whether USCIS/US consular posts will be able to use up most of if not all of the EB numbers.

  1. NRC News.

There was an interesting article in the Wall Street Journal that shed some light on the National Record Center (NRC), a place where USCIS has occasionally informed us that some of our cases are located that we are tracking at one time or another. NRC in Lee’s Summit, Missouri, is the central hub of storage, preservation, and overall management of A-Files prior to their long term, inactive storage in a NARA (National Archives and Records Administration) Federal Records Center and eventual permanent transfer to the National Archives. According to the article, NARA/National Archives is a federal storage facility that had all but closed for Covid-19; that the National Archives operates miles of limestone caves beneath the Kansas City Metro area, where millions of individuals’ immigration histories are stored. This article was occasioned by a suit for delayed citizenship revealing that citizenship officers are required to look through the histories when considering an immigration application; and that before the pandemic, USCIS routinely requested immigration histories from the archives in Kansas City without issue, but due to COVID and to minimize the time employees spent underground, the National Archives stopped responding to all but emergency requests. Finally in March, the archives fully reopened its facilities and as of May, it was processing all incoming requests. At the time of writing, there were 87,500 pending requests for immigration histories, down from a high of 350,000 in January.

  1. ETA 9089 Filling Where No Sunday Newspaper.

In the 2022 AILA Spring conference and DOL’s Open Forum on the question of how employers should complete the mandatory Sunday newspaper advertisements where there is no Sunday newspaper of general circulation like in North Dakota where the newspapers have transitioned to weekend editions released on Saturdays, OFLC (Office of Foreign Labor Certifications) said employers should still place their Sunday newspaper ads in the weekend edition of the newspaper. On the 9089, the employer should say “no” in section I.c.8 requesting whether there is a Sunday edition of the newspaper; and then after including the newspaper’s name in section I.c.9, the employer should indicate “Weekend Edition – No Sunday Edition Available”.

About The Author

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, 2015-2022), 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.