Seguritan US Immigration Articles

Cancellation of Removal for Deportable Aliens

Nonpermanent residents who are under removal proceedings may be eligible for relief known as cancellation of removal. Once granted, cancellation of removal leads to a green card.

To be eligible for cancellation, the alien must meet certain requirements. First, he/she must prove continuous physical presence in the United States for at least ten years. This period is counted from the first physical entry into the U.S., legally or illegally, and ends upon service on the alien of a notice to appear at a deportation or removal proceedings or upon the commission of certain crimes.

This period of physical presence is broken when the alien leaves the U.S. for more than 90 days, when all the departures total more than 180 days, or when the alien leaves the U.S. on voluntary departure.

Second, the alien needs to show good moral character for the 10-year period measured backward from the date the application for cancellation is resolved by the judge or Board of Immigration Appeals. Although the term is not defined, the law enumerates persons who cannot be deemed to have good moral character, such as habitual drunkards, prostitutes, smugglers, and persons convicted of crimes of moral turpitude, multiple crimes or most drug crimes.

Third, he/she must not have been convicted of certain offenses specified under the Immigration and Nationality Act.

Fourth, the alien must establish that deportation would result in “exceptional and extremely unusual hardship” to a U.S. citizen or legal permanent resident spouse, parent or child. The applicant’s burden is to demonstrate not his/her hardship, but the hardship that would be experienced by the qualifying relative.

The factors to be considered include the ”age, health and circumstances of the qualifying family members, including how a lower standard of living or adverse country conditions in the country of return might affect those relatives”. Other factors are the age of the respondent, family ties in the U.S. and abroad, length of residency in the U.S., health conditions, economic and political conditions in the country of removal, financial status, community ties and immigration history. Hardship factors are considered in the aggregate.

Like most types of relief, cancellation of removal is granted in the discretion of the immigration judge. The application may only be made at a removal hearing. This means that individuals who want a cancellation of removal but who do not have pending deportation cases must first subject themselves to removal proceedings. In these situations, cancellation of removal is generally not the first option because of the risks involved.

On the other hand, for those who are already arrested and who can satisfy the eligibility requirements, cancellation of removal is an important option.

Even when granted, however, cancellation of removal does not give derivative status to the spouse or children of the applicant. Each family member must independently qualify for this relief.

Certain classes of aliens are statutorily ineligible for cancellation, such as some J visa holders, crewmen, individuals who are deemed security threats, and those who have previously been granted cancellation of removal, suspension of deportation or voluntary departure.

There is a yearly quota of 4,000 on the number of aliens who may be granted a cancellation of removal and allowed to adjust to permanent resident status.

H-1B Filing Starts April 1

On April 1, 2011, the USCIS will start accepting cap-subject H-1B petitions for employment beginning on October 1, 2011. Cases are considered accepted on the date USCIS receives a properly filed petition and the correct fee has been submitted, not the date that the petition is postmarked.

There is an annual numerical cap of 85,000 on H-1B petitions, of which 20,000 is reserved for workers with an advanced degree from a U.S. university. For fiscal year 2011, the 20,000 cap was reached on December 24, 2010, while the 65,000 cap was reached on January 26, 2010.

There have been recent significant developments in the H-1B program that need to be highlighted.

First, the USCIS has introduced certain revisions in its Form I-129, the principal form for the H-1B petition. One change in the latest revised form pertains to additional questions for employers seeking to sponsor employees who will perform off-site work. In such cases, the new form asks whether the employer has included an itinerary with the petition. There is now also a specific section in the H-1B Data Collection Supplement asking the employer yes/no questions on off-site assignment.

Second, the revised Form I-129 also incorporates in the same supplement the fee increase imposed by Public Law 111-230, which was signed into law in August 2010. H-1B petitioners that employ 50 or more employees in the U.S. with more than 50% of its U.S. employees in H-1B or L status must pay an additional fee of $2,000.

Another development in the H-1B program that should not be overlooked is the “cap-gap” regulation. This regulation allows F-1 visa holders who are graduates of U.S. universities and are working under the optional practical training (OPT) program to remain in the U.S. and continue working until the H-1B petition filed on their behalf is approved and their status changes effective October 1st.

This regulation remedies the dilemma faced by F-1 students with OPT work authorization which ends one year after their graduation or usually in June. Under the new regulation, these graduates no longer need to depart the U.S. and re-enter after a few months in time for the start of their H-1B employment. The graduates’ status and work permit are automatically extended until USCIS approves the H-1B petition that was filed by the employer before the expiration of the OPT.

Very recently, the USCIS also announced that it is reviewing its policy on the H-1B cap exemption for “non-profit entities that are related to or affiliated with an institution of higher education”. As an interim procedure, the agency will give deference to determinations made since June 6, 2006, that a non-profit entity is indeed related to or affiliated with an institution of higher education, but the burden remains on the petitioner to prove such relation or affiliation. The employer may do this by submitting a copy of a previously-approved cap-exempt petition and a copy of the approval notice.

The USCIS has also clarified that where the proposed H-1B employment will occur in more than one location, the state where the petitioner’s primary office is located will determine the appropriate Service Center to which the Form I-129 must be filed, regardless of the actual work locations.

Domestic Employees of Diplomats To Get Protection

The USCIS has recently announced that A-3 and G-5 visa holders who are victims of human trafficking and other violations would become eligible for deferred action.

With this relief, the victims may be allowed to work legally and remain in the United States to resolve their pending complaints regarding the violation of the terms and conditions of their employment contract, or conditions related to human trafficking and similar violations.

A-3 and G-5 visas are nonimmigrant visas issued to attendants, servants or personal employees of ambassadors, diplomats, consular officers, foreign government officials or officers of international organizations.

Human trafficking, sometimes referred to as “trafficking in persons” and considered a form of modern-day slavery, includes acts of forced labor, holding a worker against his/her will to pay off a debt, and sex trafficking.

Trafficking may occur even in labor situations, as in the case of A-3 and G-5 visa holders. These individuals are especially vulnerable to abuse and exploitation by their employers because the latter can claim diplomatic immunity from civil and criminal prosecution.

In the request for deferred action, the victim must submit a letter requesting deferred action and outlining the violation of the employment contract or conditions and the ongoing civil action, as well as a copy of the civil complaint filed in court. The victim must give proof of legal entry into the U.S. through an A-3 or G-5 visa.

If the application for deferred action is approved, the USCIS will adjudicate the I-765 or application for employment authorization. The EAD to be issued will be valid for one year but may be renewed upon proof that the civil case is still pending. Fee waiver is available.

There have been many documented cases of trafficking especially of domestic workers who were subjected to abuse and maltreatment by their diplomat employers. For instance, from 2000 to 2008, there were some 42 domestic workers who had accused foreign diplomats of wrongdoing.

These cases involved promises of fair wages being made to the workers while still in their home countries. After arriving in the United States, the employees usually found their passports being taken away by the employer. They were threatened not to leave the premises, forced to work long hours and seven-day weeks, and paid very low wages, if at all. The workers were also subjected to physical, psychological and even sexual abuse. However, because of diplomatic immunity, many of them were simply scared into silence.

By allowing for deferred action, the USCIS has taken a small but vital step towards alleviating the plight of trafficking victims by giving the workers immigration status, albeit temporary, and taking out one of the factors adding to these workers’ vulnerability.

ICE Priorities for Apprehending and Deporting Aliens

The U.S. Immigration and Customs Enforcement (ICE) has released a memorandum identifying a set of priorities to be followed by its officers and directing them to follow these priorities in the apprehension, detention and deportation of undocumented immigrants.

First and highest priority goes to “aliens who pose a danger to national security or risk to public safety”. These aliens include those engaged in or suspected of terrorism or espionage; aliens convicted of crimes, with a particular emphasis on violent criminals, felons or repeat offenders; aliens not younger than 16 years old who participated in organized criminal gangs; and aliens subject to criminal warrants.

Under the first priority, there is a catch-all category for aliens “who otherwise pose a serious risk to public safety” but the memo states that this provision should not be read broadly and will apply only when serious and articulable public safety issues exist.

The second priority pertains to recent illegal entrants such as those who committed violations at the border and ports of entry.

The third priority would be “aliens who are fugitives or otherwise obstruct immigration controls”. Included are those subject to a final order of removal and who abscond, fail to depart, or intentionally obstruct immigration controls.

The guidelines demonstrate the government’s policy to focus enforcement initiatives on the most serious offenders. According to the memo, the agency’s resources allow it to remove about 400,000 aliens only per year, which is less than 4% of the estimated U.S. illegal alien population. Accordingly, it should prioritize the use of its personnel and resources to ensure that the removals promote national security, public safety, and border security.

The memo instructs that, unless extraordinary circumstances exist or detention is mandated by law, detention resources must not be used on aliens with serious physical or mental illnesses, or those who are disabled, elderly, pregnant, nursing, or if they demonstrate that they are primary caretakers of children or an infirm person.

The memo also calls on ICE officials to exercise sound judgment and discretion when carrying out their enforcement functions and reminds them to give particular care when dealing aliens who are lawful permanent residents, juveniles, and immediate family members of U.S. citizens.

Aliens who are unlawfully present in the U.S. but who do not fall within the priorities may still be removed by ICE agents, although resources for removing them should not disrupt resources that should be spent on higher priority aliens.

Originally issued in June 2010, the memorandum, also referred to as the Morton Memo, was reissued recently with an additional provision stating that the guidelines and priorities do not create a private right. This means, for example, that you cannot raise the memo’s priorities as a matter of substantive or procedural right in immigration proceedings.

All in all, however, the Morton Memo still represents a welcome trend in immigration enforcement. By coming out with these guidelines, ICE has shown that it adopts a reasonable and common-sense approach and recognizes that not all aliens who are subject to apprehension, detention or removal, are equally dangerous. The guidelines also emphasize to ICE officials that they have “prosecutorial discretion” which they need to exercise in deciding against whom, when or how to pursue removal proceedings.

H-1B Flaws Spur Reform Proposals

The Philippines is one of the top countries of origin of H-1B workers. For 2000-2009, 3.7 percent of all approved H-1B workers were born in the Philippines, according to a report of the Government Accountability Office (GAO).

In response to a request from Congress, GAO studied the impact of the H-1B cap on employers’ costs and the program’s effect on U.S. workers. Among its many findings in the 118-page report, the group found that the majority of the approved H-1B workers were born in India (46.9%), China (8.9%), Canada (4.3%), and the Philippines.

It also learned that the demand for new H-1B workers exceeded the cap for those 10 years, and that this demand was driven by only a small number of employers: less than 1% of employers using the program accounted for a quarter of approved petitions.

The report also stated that more than 40% of approved H-1B workers (initial petitions and requests for visa extensions) were for occupations in systems analysis and programming, while 7% went to college and university education and 35% was for workers in other specialty occupations.

This finding is consistent with figures released by USCIS, which confirms that staffing companies are heavy users of H-1B visas. In 2010, the largest users of H-1B visa numbers were offshore IT service providers. India-based Infosys Technologies was the top H-1B employer in 2010 with almost 3,800 approved filings, followed by Cognizant, a New Jersey-based firm with a large offshore workforce, with almost 3,400. These figures led New York Senator Chuck Schumer to remark that the H-1B visa program has created “multinational temp agencies”.

The GAO report has spurred talks of H-1B visa program reform from opponents and supporters alike.

Recognizing that the H-1B program is necessary to keep the United States competitive, one Republican senator, Sen. Hatch of Utah, has urged the expansion of the H-1B program.

There is also a proposal for a new employment-based green card route for advanced degree graduates. An additional 20,000 H-1B visa numbers, on top of the 65,000 cap, are reserved for advanced-degree graduates of U.S. universities in the field of science, technology, engineering or mathematics. If this effort is successful, these advanced-degree graduates would be able to bypass the H-1B process.

On the other hand, some U.S. senators (Sen. Grassley of Iowa and Sen. Durbin of Illinois) have expressed their concerns about the H-1B program, saying that the Department of Homeland Security (DHS) has no system of tracking how many H-1B workers are in the U.S. According to the GAO, the exact number of H-1B workers in the US or the length of their stay is unknown because data systems among agencies involved in the H-1B process (including the Department of Labor, USCIS and DHS) are not linked and there is no unique identifier that allows tracking of the workers and when their visa status changes.

The two senators criticized even the student visa extension that started during the Bush administration, which allowed some students on an F-1 visa to obtain optional practical training of up to 29 months, and proposed to limit the number of H-1B or L-1 visa workers to only half of each company’s workforce.

Introduced in 1990, the H-1B program was intended to allow U.S. employers to hire foreign workers in specialty occupations. There is a currently a cap of 65,000 on H-1B visas issued per year. Although H-1B is not a permanent visa, the worker can apply for H-1B extensions (or continuing employment petitions) and later apply for permanent residence in the U.S. Initial petitions are subject to the annual cap while extensions of status, change of employer, amendments and concurrent employment are cap-exempt.

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