The Border Security, Economic Opportunity, and Immigration Modernization Act that was introduced in the Senate has made it through the Judiciary Committee, with some amendments, and will now undergo deliberation by the entire Senate in June, after the Memorial Day weekend.  Nothing is guaranteed and there remains strong opposition to the bill.  The House of Representatives will be a different matter altogether, as opposition is much stronger in the House, despite a tentative agreement among their own “Gang of 8″.   While the bill made it relatively easily through the Senate Judiciary Committee, a rarity for  a Congress which has become strangled by partisan politics, it is expected that the emotionally charged issues involved in immigration will be the source of major political battles.  Republicans will seek to better their position with Latino voters yet satisfy their conservative constituents who are opposed to many of the reforms.  Democrats will seek to satisfy the concerns of U.S. labor while trying to build on the support they received in the 2012 elections, principally based on the prospect of immigration reform.  Stay tuned…

USCIS announced that it has received over 120,000 H-1B petitions toward the “regular” cap of 65,000 and the “Masters” cap of 20,000 during the first week of April, 2013.  April 1 is the earliest possible filing date for H-1B visas that allow H-1B employees to begin work on October 1, 2013.  Because the number of petitions received exceeds the number of visas allowed, USCIS has conducted a “lottery” to randomly select the petitions that will be accepted for filing.  USCIS will reject and return those that did not make it into the pool of accepted petitions under the lottery.  The 20,000 visas under the “Masters” cap (for those with Masters or higher degrees from U.S. institutions) are selected first, and the petitions that did not make it into the Masters pool will be added to the pool of petitions under the “regular” cap.

Once again we are faced with the reality that our Immigration system is broken.  If you are one of those employers whose growth and development require you to hire foreign professionals, let your Senator and Congressperson know that the H-1B program must be fixed now.

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Press Office
U.S. Department of Homeland Security
Press Release
Oct. 2, 2012
Contact: DHS Press Office, (202) 282-8010

DHS ANNOUNCES TAIWAN’S DESIGNATION INTO THE VISA WAIVER PROGRAM

WASHINGTON—Secretary of Homeland Security Janet Napolitano today announced the designation of Taiwan into the Visa Waiver Program (VWP)—streamlining travel for thousands of eligible Taiwan passport holders, while maintaining strong security standards.

“Today’s announcement is a major step forward in our long-standing economic partnership with Taiwan,” said Secretary Napolitano. “Taiwan’s participation in the VWP will not only stimulate tourism in the United States, it will also enable us to work together to maintain the strictest security standards.”

Taiwan will join 36 participants in the VWP—which permits visa-free travel to the United States for eligible travelers visiting the United States for 90 days or fewer for business or tourism. In Fiscal Year 2011, the VWP accounted for 18.3 million visits to the United States, or more than 60 percent of tourist and business travelers entering the United States by air.

In accordance with the VWP designation process, the Department of Homeland Security (DHS) determined that Taiwan complies with key security and information-sharing requirements—such as enhanced law enforcement and security-related data sharing with the United States; timely reporting of lost and stolen passports; and the maintenance of high counterterrorism, law enforcement, border control, aviation and document security standards.

Like other VWP travelers, eligible Taiwan passport holders will be required to apply for advanced authorization through the Electronic System for Travel Authorization (ESTA), a DHS Web-based system.

Eligible Taiwan passport holders with an approved ESTA will be able to visit the United States without visas as of November 1, 2012.

Today’s announcement supports President Obama’s Executive Order on travel and tourism, directing federal agencies to expand the nation’s ability to attract and welcome visitors, while maintaining the highest standards of security. In Fiscal Year 2011, 243,186 visitors from Taiwan traveled to the United States.

For more information, visit www.dhs.gov or https://esta.cbp.dhs.gov/esta/.

As of April 13, 2012, approximately 20,600 H-1B cap-subject petitions were receipted. Additionally, USCIS has receipted 9,700 H-1B petitions for aliens with advanced degrees.

There is no way of knowing when the cap will be reached, and the H-1B process can be complicated. Any employer considering hiring an H-1B employee should not delay in consulting a competent Immigration attorney to have their questions answered.

Formal notice of the designation of Syria for Temporary Protected Status was published in the Federal Register on March 29, 2012. According to the Federal Register publication, “this designation allows eligible Syrian nationals (and aliens having no nationality who last habitually resided in Syria) who have both continuously resided in and been continuously physically present in the United States since March 29, 2012 to be granted TPS. This notice also describes the other eligibility criteria applicants must meet.

Individuals who believe they may qualify for TPS under this designation may apply within the 180-day registration period that begins on March 29, 2012. They may also apply for Employment Authorization Documents (EADs) and for travel authorization. In this notice, DHS also sets forth the procedures for nationals of Syria (or aliens having no nationality who last habitually resided in Syria) to apply for TPS and EADs with U.S. Citizenship and Immigration Services (USCIS).”

DATES: This designation of Syria for TPS is effective on March 29, 2012 and will remain in effect through September 30, 2013. The 180-day registration period for eligible individuals to submit TPS applications begins March 29, 2012, and will remain in effect through September 30, 2013.”

Those who may be eligible for Temporary Protected Status , or who have questions about TPS, should call an Immigration Attorney prior to filing to make sure the applications are approvable and to avoid mistakes that could result in denial of the application.

NOTE: A CORRECTION WAS PUBLISHED IN THE FEDERAL REGISTER STATING THAT THE DEADLINE FOR REGISTRATION IS SEPTEMBER 25,2012 NOT SEPTEMBER 30, 2013.

April 2, 2012 was the earliest possible filing date for H-1B petitions for Fiscal Year 2013(Oct. 1, 2012 – Sept. 30, 2013). During this first week of “H-1B season”, USCIS received 17,400 petitions toward the regular cap of 65,000 and 8,200 toward the additional 20,000 visas for “Masters” graduates of U.S. colleges and universities.

Last year at the same time, only 5,900 petitions were filed during the first week of April toward the 65,000 cap, and 4,500 petitions were received toward the “Masters” cap. Not only does this demonstrate that the U.S. economy is picking up, but also that the cap is going to be reached far sooner than last year, when the cap was reached in November.

Any employers who are considering hiring foreign workers for “specialty occupations” (jobs requiring at least a four year bachelor’s degree) should file soon. Students who are here in OPT (Optional Practical Training) status may continue to work, and change to H-1B status provided their employer files a petition prior to the expiration of OPT. Special regulations provide an extension of their OPT status and work authorization until their H-1B start date of October 1st.

Many employers find themselves with a potential H-1B employee but are not familiar with the requirements and the process for hiring H-1B employees. Because of the complexities and the expense involved in hiring an H-1B employee, employers and potential employees should contact an Immigration attorney to answer any questions and clearly explain the process.

On Friday, March 23, 2012, U.S. Secretary of Homeland Security Janet Napolitano announced that Syria has been designated for Temporary Protected Status for a period of 18 months. The formal notice has not yet been published by USCIS in the Federal Register, and therefore the registration and application process has not yet begun. When the notice is published, eligibility requirements and deadlines for applying will be given. If you have any questions about Temporary Protected Status, contact Ames Immigration to speak with Attorney Sharon Ames.

The H-1B “cap” of 65,000 was reached back in November of 2011, preventing employers from hiring any H-1B professionals until October 1, 2012. As the economy continues to pick up, it is anticipated that the cap will be reached even earlier this year. Fluctuations in the job market determine when the 65,000 visas are used up during any given year. For example, In 2007, just prior to the downturn in the economy, the 65,000 cap was reached on the first day that petitions could be filed (April 2, 2007). In the past two years, the cap was reached much later than April 1st due to the weak economy.

What does this mean for employers? Simply put, employers should file on April 1, 2012 for the H-1B employee to start work on October 1, 2012. This is the earliest possible date to file to get the earliest employee start date of October 1, 2012.

What does this mean for potential H-1B employees? If you have an employer who wants to file an H-1B petition on your behalf, you should begin collecting your documents and finalizing any employment offers or agreements with your employer.

Because extensive documentation is necessary to successfully file an H-1B petition, both employers and employees should retain an Immigration attorney and begin compiling the required documents as soon as possible. For employers, this means, among other things, drafting an appropriate job description, finalizing any offer of employment, compiling company information and determining the wage to be paid. For employees, this means collecting your education and immigration related information, including copies of your passport and current I-94; your resume; copies of your degrees and transcripts; letters from previous employers confirming your dates of employment, your job title, job duties, special skills used/learned and any tools used in your job. ( You should obtain these any way for possible use in a labor certification application.)

Those employees who are currently in OPT status that expires prior to October 1st can take advantage of “cap gap” measures to extend their OPT status (F-1) and work authorization until the change of status to H-1B takes effect on October 1st. There are certain restrictions, however, so it is important to make sure that petitions are timely filed and that the H-1B employer is aware of the filing deadlines. An Immigration attorney can help clarify this for you.

U.S. Citizenship and Immigration Services (USCIS) announced on Wednesday, November 23rd, that it had received enough H-1B petitions to reach the cap of 65,000 for fiscal year (FY)2012. According to USCIS, Nov. 22, 2011, was the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY 2012 (October 1, 2011 – September 30, 2012). Any petition physically received (not postmarked) after November 22, 2011 will be rejected by USCIS. Petitions that are otherwise exempt from the cap (institutions of higher education, for example) will continue to be accepted.

Employers who were counting on being able to utilize this program to grow their businesses, creating jobs for Americans in this time of high unemployment, are out of luck until October 1, 2012. Employers may apply on April 1, 2012, for an H-1B worker to start October 1, 2012.

Many in the business commnunity across the United States have been vocal about this artificial barrier put up to “protect the U.S. labor force.” In fact, if there were enough American workers who were willing and able to take these jobs, we would not need this program. It is often cited, however, that the United States workers lack the education and level of competence necessary to fill these positions. Our congressional representatives tell us that it is a matter of improving our education system.

Frankly, my clients do not have the 20 years (at least) that it will take to see any results from any kind of education reform, whatever that may be. They need to fill these positions now with qualified workers, no matter what their country of origin. Without the ability to hire qualified workers, this country will be faced with two consequences: 1) The best and the brightest students will not come here to study because they won’t have a job here when they graduate; and 2) employers will leave the U.S. because they cannot find suitable employees.

Over the past six months, the Department of Homeland Security and ICE ( Investigations and Customs Enforcement) have issued new policy changes to attempt to eliminate the backlog of immigration cases now pending in the Immigration Courts. Generally, the changes involve removing “high priority” individuals such as those with serious criminal convictions and those who have been previously removed from the United States, and putting on hold the cases of “low priority” individuals such as those with no criminal records or minor immigration violations.

Specifically, ICE Director John Morton issued a Memo on June 17, 2011 outlining the new policy changes. Since that time, members of ICE’s senior leadership team have traveled around the country to discuss implementing these changes in a uniform manner around the country. Training of all ICE enforcement officers and attorneys nationwide is expected to be completed by January 13, 2012.

ICE will be reviewing approximately 300,000 cases that are pending in the Immigration Courts. According to the Guidance issued by ICE today, “beginning immediately, ICE attorneys nationwide will review all incoming cases in immigration court. This review, based on the Prosecutorial Discretion Memorandum and guided by a set of more focused criteria, will help reduce inefficiencies that delay the removal of criminal aliens and other priority cases by preventing new low priority cases from clogging the immigration court dockets.”

The remainder of the cases pending nationwide will be reviewed in a gradually phased in process. According to ICE, “beginning December 4, DHS and DOJ will launch pilot programs in two jurisdictions to test run the process for reviewing all cases pending in immigration court. There will be a “test run” of the process in Baltimore and Denver. This second initial phase of review is also expected to be complete by January 13, 2012.

After this initial two month period, DHS will review that data and other results of the initial review and, where appropriate, consult with the Department of Justice, who administers the Immigration Courts and Judges, to determine the best ways to put these changes into effect nationwide. During the entire period of this review, ICE attorneys, officers, and agents will be applying the policies and principles of Prosecutorial Discretion that were set forth in the June 17, 2011 memo.

So what is “prosecutorial discretion,” anyway? The term “prosecutorial discretion” in this situation means that the attorneys who represent ICE in the Immigration Courts, who prosecute all of the removal cases, will be allowed to use their judgment and authority to put a case temporarily “on hold”, while they better use their resources to prosecute those whose cases should go forward for removal from the U.S. Whether a case will be temporarily closed will depend on the facts and circumstances of each case. It is important to note that “closing” the case does not mean the case is “terminated.” The temporary closure will not give an individual any “status” in the U.S. and does not guarantee that at some future time a case won’t be put back on the court calendar. However, an individual whose case is temporarily closed may be eligible for work authorization during the period of time the case is closed.

If you or someone you know has a pending case in the Immigration Court, and you think you may benefit from “prosecutorial discretion”, contact an Immigration Attorney who can determine whether to make this request with ICE. Do not be fooled by any scams that claim to be able to get “legal status” for you or a work permit. Consult a licensed Immigration Attorney to be sure.