Ames Immigration

DHS has created a working group to review 300,000 removal cases currently pending in the Immigration Courts, the Board of Immigration Appeals and the Federal Circuit courts, to temporarily close and provide work authorization to those individuals who are determined to be a “low priority” for removal from the United States.

These cases will not be terminated, they will only be administratively closed. That means that the case is only taken off the court calendar. The removal case does not go away, it is just temporarily closed. The case can be restored to the court calendar at any time, and the removal proceeding may continue after it is restored to the calendar.

Individuals whose cases have been administratively closed will be eligible to apply for temporary work authorization. Details of the work authorization process for these cases have not yet been formulated.

What are “low priority” cases?
-veterans
-long-time permanent residents
-minors and the elderly
-individuals who have been present since childhood
-individuals with serious disabilities or health issues
-women who are nursing or pregnant
-victims of domestic violence or other serious crimes

WARNING: DO NOT BE FOOLED BY ANYONE WHO SAYS THAT THIS IS AN AMNESTY, OR WHO OFFERS TO PLACE YOU OR SOMEONE YOU KNOW INTO REMOVAL PROCEEDINGS IN ORDER TO GET A WORK PERMIT.

If you are placed in removal proceedings, you can be deported from the United States, even if your case has been “administratively closed” and even if you have work authorization! This case review will not affect the millions of undocumented people who are not currently in any kind of removal proceeding.

If you think you may be eligible for temporary closure of your case, or if you have any questions as to whether you or someone you know qualifies for this temporary relief, contact us at Ames Immigration so you can get honest answers and sound advice.

April 1, 2011 marked the “opening day” of the “H-1B season” for the next fiscal year which starts on October 2, 2011. As of May 6, 2011, USCIS had received a total of 10,200 petitions toward the cap of 65,000. Also as of May 6, USCIS had received 7,300 petitions to be counted toward the “Masters Cap” of 20,000. The “Masters Cap” provides an additional 20,000 H-1B visas not counted toward the 65,000 cap for foreign nationals who have a Masters Degree or Higher from a U.S. institution.

Some employers are “cap exempt” such as nonprofit research companies or other nonprofit employers “affiliated” with an institution of higher learning. Whether an employer is “cap exempt” has become a troublesome issue for USCIS. Employers must be able to prove through sufficient documentation that they are in fact “exempt” from the cap, and must be prepared to respond to a Request for Further Evidence if their initial evidence is not convincing.

In another new twist, USCIS has added Part 6 to Form I-129 concerning the use of controlled technology and the deemed export rule. There can be serious consequences for a failure to disclose the necessity for an “export license”. All employers, whether or not they are subject to the export licensing rules, must answer the question posed in Part 6. This issue definitely requires legal analysis that should be provided either by a competent attorney in this field or other consultant hired by the employer to give the correct answer to Part 6 of the form.

The Department of Homeland Security has eliminated the NSEERS (National Security Entry-Exit Registration System). Also called “special registration”, the program required nationals or citizens from various countries to “register” with Homeland Security upon entry and exit from the United States with any nonimmigrant visa, including the visa waiver.

The following is taken from the Summary in the Federal Register announcing elimination of the program.

“SUMMARY: The Department of Homeland Security (DHS) is eliminating redundant programs by removing the following countries from, and relieving nonimmigrant nationals or citizens of the following countries from compliance with, the special registration procedures under the
National Security Entry-Exit Registration System (NSEERS):
Afghanistan, Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia,
Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, North Korea, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, United Arab Emirates, and Yemen. Over the past six years, the Department of Homeland Security (DHS) has implemented several new automated systems that capture arrival and exit information on nonimmigrant travelers to the United States, and DHS has determined that recapturing this data manually when a nonimmigrant is seeking admission to the United States is redundant and no longer provides any increase in security. DHS, therefore, has determined that it is no longer necessary to subject national from these countries to special registration procedures, and this notice deletes all currently designated
countries from NSEERS compliance.
DATES: Effective Date: This notice is
effective April 28, 2011. ”

76 FR 23830

The NSEERS program failed to capture any terrorists and was a trap for the unwary nonimmigrant visa holder who could be subsequently denied immigration benefits for failing to register. especially in airports where there was no set procedure for registering a departure from the U.S. This is good news for our international visitors and temporary workers.

USCIS announced on January 27, 2011 that it had received more than the 65,000 visas allowed under the H-1B “cap” and that on December 22, 2010, more than 20,000 petitions had been received for beneficiaries with a Masters degree or higher from a U.S. college or university.

This means that employers seeking to hire new H-1B employees must wait until April 1, 2011 to submit H-1B petitions that will be approved for an employment start date of October 1, 2011 (the start of the new fiscal year). The cap does not apply to those who are already in H-1B status and wish to extend or amend that status. The cap also does not apply to employers who are “exempt”, such as nonprofit research institutions and others.

If you are an employer or an H-1B employee who is unsure whether or not you are subject to the cap, call our offices for a consultation to explore your options.

In his State of the Union Address, President Obama urged passage of the DREAM Act and reform of the Immigration laws to allow for the best and brightest to live and work in the United States.

Congress must address Immigration reform to make this a reality. In urging support of the DREAM Act, President Obama asked that those kids whose parents brought them here as infants or young children, who have grown up pledging allegiance to our flag each and every day that they went to school, and who risk deportation and removal to a country they do not know, be given the opportunity to continue their education and to give back to the United States, through higher education or military service. Passage of the DREAM Act is a win-win situation for our country and for these kids who are as American as you and me.

President Obama also asked for Immigration reform to allow those who come to the U.S. to study in our colleges and universities to remain here to live and work. Our current Immigration laws and policies make it so cumbersome and expensive to hire foreign skilled workers that those bright foreign students with Bachelor, Master and Doctorate degrees find it nearly impossible to stay here and put their knowledge to work here in the United States. U.S. companies explicitly state in their job offers that they will only hire U.S. citizens and that they will not pursue visas for foreign employees, yet we hear time after time that they cannot find U.S. employees who are qualified to do the work that they require. Students come here to develop their expertise only to find jobs elsewhere.

It is time for the U.S. to embrace these young, talented workers, and to revive our economy by providing their talent to U.S. businesses. This can only come about through meaningful reform of the Immigration laws by making it easier for U.S. employers to employ the workers they need to grow their businesses. In turn, the growth of these U.S. businesses will provide jobs for U.S. workers.

President Obama was right to seek passage of the DREAM Act and to ask for reform of our broken Immigration system. Let’s hope that a bipartisan effort can take a serious look at reform with the best interests of the U.S. in mind.

As of December 31, 2010, USCIS has received 57, 300 H-1B petitions toward the cap of 65,000. In addition, the “Masters Cap” of 20,000 has been reached. For more information on the H-1B program, go to the “Practice Areas” page.

USCIS has issued a new version of form I-129, Petition for Nonimmigrant Worker, which contains a new Section 6 entitled “Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States.” The new Part 6 applies to petitioners for those seeking H-1B, H-1B1, L and O-1A visas. After receiving numerous inquiries about Section 6 from employers, employees, immigration attorneys and AILA, USCIS has postponed requiring the completion of Section 6 until February 20, 2011.

Part 6 of the new I-129 form states:

“With respect to the technology or technical data the petitioner will release or otherwise provide
access to the beneficiary, the petitioner certifies that it has reviewed the Export Administration
Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and has determined
that:

There is still time in the current fiscal year to file H-1B petitions. As of December 17, 2010, there were 53,900 H-1B petitions received toward the annual cap of 65,000. In addition, 19,700 petitions have been filed of the 20,000 H-1B visas that are exempt from the cap for those who have a Masters Degree or higher from a U.S. institution.

H-1B visas are available to “specialty workers” whose job requires at least a four year bachelor degree. The proposed employee must have at least a four year bachelor’s degree, or the equivalent, in a field related to the employment. You can get more information about H-1B visas in the “Practice Areas” of our website.

Ames Immigration wishes all of our clients, families and friends a happy and prosperous 2011. While we expect the immigration debate to continue with increased intensity in the upcoming year, our time and expertise will be dedicated to serving our clients and improving the immigration process for all who seek to live and work in the United States. Cheers!

On December 6, 2010, the Second Circuit Court of Appeals upheld a claim to U.S. citizenship of a person whose mother became a naturalized citizen on the child’s 18^thunder the age of 18”. birthday.  The Immigration and Nationality Act grants automatic citizenship to children who meet certain requirements if their parent becomes a U.S. citizen through naturalization when the child is “

The U.S. government had argued that at 12:01 a.m. on the child’s birthday, the child was 18 and no longer eligible for citizenship.  His mother took the oath of citizenship on the morning of the child’s 18^th birthday.  However, Mr. Duart-Ceri’s attorneys argued that he literally had not reached 18 years of age until that evening, since he was born in the evening 18 years prior to the day his mother naturalized.

In a refreshing statement upholding the child’s claim to U.S. citizenship, the court had no problem dividing the day into hours and finding that Mr. Duarte-Ceri had not actually been 18 years of age when his mother naturalized, but was approximately 17 years, 364 days and 12 hours old, thus making him a U.S. citizen by operation of law under former Section 321(a) of the Immigration and Nationality Act.

The court held that while often in many cases it does not matter, a day is not an indivisible unit, and where the ends of justice will be served, the court will divide the day into hours to preserve such an important right as citizenship. In this case, Mr. Duarte-Ceri’s mother and siblings were all citizens.  He was facing deportation and would have been separated from his family, with whom he had lived in the United States since the age of five.

Kudos to the Legal Aid Society of New York for pursuing this claim, and proving that sometimes what seems on its face to be an insurmountable obstacle can be overcome with persistence and hard work.

Duarte-Ceri v Holder,        Case No. 08-6128-ag (C.A. 2, Dec. 6, 2010)