Seguritan US Immigration Articles

Filing Cap-Exempt H-1B Petitions

Each year, the demand for H-1B visa continues to increase. In April 2013, the United States Citizenship and Immigration Services (USCIS) received approximately 124,000 H-1B petitions within the five-business day filing window. In April 2014, the number increased to around 172,500 petitions received within a similar timeframe.

This year, approximately 233,000 H-1B petitions were received during the first week of the filing period that ended on April 7, 2015. The number includes those filed under the 65,000 cap-subject petitions and the 20,000 advanced degree exemption.

With the dramatic increase in this year’s H-1B filings, the chance of employers getting an H-1B visa number for their prospective employees under the annual cap decreased to 36.5 percent.

On April 13, 2015, the USCIS conducted a computer-generated lottery process to determine which cases would be forwarded to the appropriate immigration service centers for adjudication and which ones would be returned.

The USCIS first used the lottery process to select the 20,000 petitions under the advanced degree exemption. Then, it randomly selected the 65,000 cap-subject petitions. Petitions under the advanced degree exemption which were not selected were also included in the lottery for the cap-subject petitions.

Approximately 148,000 petitions not selected in the lottery were rejected and returned with the filing fees. The historic number of H-1B filings this year is attributed to the growth of the U.S. economy.

Unfortunately, many U.S. companies would not be able to hire much-needed high-skilled workers this year due to the annual numerical cap which has remained unchanged for ten years. Many are hoping for Congress to finally address the issue.

In the meantime, the USCIS announced that it would continue to accept cap-exempt petitions.

H-1B petitions for new employment are exempt if the beneficiary will work at an institution of higher education or a related or affiliated nonprofit entity, a nonprofit research organization, or a governmental research organization.

In order to qualify as an “institution of higher education”, the institution must admit only high school graduates, is legally authorized to provide education beyond secondary education, provides bachelor’s degree programs or not less than 2-year programs that can be credited towards such a degree, is a public or nonprofit organization and accredited by a nationally recognized accrediting agency.

To be a related or affiliated nonprofit entity for purposes of the H-1B exemption, it must be connected or associated with an institution of higher education through shared ownership or control by the same board or federation; or be operated by the institution; or be attached to the institution as a member, branch, cooperative or subsidiary.

A “nonprofit research organization” is an organization engaged in basic research and/or applied research while a “government research organization” is a U.S. entity engaged in the performance or promotion of basic research and/or applied research.

J-1 physicians who have obtained a Conrad 30 waiver are also cap exempt.

Also, a petition is cap exempt if the current H-1B worker has already been counted against the cap. These petitions include those filed for an extension of H-1B status; those that change the terms of employment of an existing foreign worker with the same US employer; those filed for H-1B workers who are transferring to another US employer; and finally those filed for current H-1B workers for a second H-1B position.

Good Moral Character Requirement to Cancel Removal

Aliens who are placed in removal proceedings may apply for a relief known as cancellation of removal. If granted, the alien becomes a lawful permanent resident.

To be eligible, the applicant must establish physical presence in the U.S. for a continuous period of at least ten years and must demonstrate exceptional and extremely unusual hardship to a qualifying U.S. citizen or lawful permanent resident relative if deported.

The applicant must also establish good moral character for the ten years immediately preceding the application. A determination of good moral character may either be mandated by statute or purely discretionary. Although the term is not defined by law, the statute identifies certain classes of individuals who are barred from establishing good moral character.

They include those who have engaged in prostitution, drug trafficking, and smuggling; those convicted of crimes of moral turpitude; and those who have given false information for the purpose of obtaining immigration benefits, among others. If the alien is found to have committed any of these offenses, the statute requires a finding of lack of good moral character.

In a case decided by the Court of Appeals for the First Circuit an alien was found to have falsely testified before in immigration proceedings and this statutorily barred him from showing good moral character.

That case involved Beltsy Reynoso, a foreign national who married Lemuel Martinez, a U.S. citizen through whom she obtained her conditional residency in 2002. In November 2003, she sought to remove the conditions on her residency and requested a waiver of joint filing requirement on the basis of a marriage which she claimed to have been entered into in good faith. The Department of Homeland Security (DHS) denied her petition because she failed to meet her burden of establishing that her marriage to Martinez was bona fide.

The DHS denied her second and third waiver petitions. She was then placed in removal proceedings where she pursued her waiver petition and applied for cancellation of removal.

The immigration judge noted the numerous discrepancies in the testimony of Reynoso during the proceedings and the information she previously provided to the immigration authorities. She indicated during her 2005 interview before the DHS as well as in her prior written statements that she and Martinez separated in October 2002. However, during her in-court testimony, she indicated that they separated in the summer of 2002.

Reynoso also provided inconsistent information on her prior addresses, the date when she met Martinez, where he lived, how long she lived with him and when each of the spouses left the marital home, among others.

The judge concluded that Reynoso gave false testimony before the immigration court and denied her application for cancellation of removal for lack of good moral character. The judge likewise denied her waiver petition because the documentary evidence she submitted did not support good faith marriage with Martinez. The decision was upheld by the Board of Immigration Appeals.

The Court of Appeals sustained the Board’s decision. It reasoned that Reynoso’s conflicting testimony regarding how long she and Martinez had been together and other related details are relevant to the primary issue which was the validity of the marriage.

The court, however, pointed out that the false information need not be material. Any falsehood, according to the court, even how immaterial, made with the subjective intent of obtaining immigration benefit undermines a person’s good moral character and is covered by the statute.

Philippine EB-3 Visa Preference Rolls Back Seven Years

After leaping seven years forward in the past twelve months, the May 2015 Visa Bulletin shows that the cut-off date of the Philippine employment-based third preference (EB-3) for skilled workers, professionals and other workers will roll back by seven years and three months from October 1, 2014 to July 1, 2007.

The rapid forward movement significantly increased the demand for immigrant visa numbers under this category such that a retrogression will be required to keep the visa number use within the annual limit.

Philippine nationals who are scheduled for interview at a U.S. consulate may be issued visas as they have already been allocated for them. Meanwhile, Philippine nationals in the U.S. with EB-3 priority dates earlier than October 1, 2014 should file for adjustment of status before the end of April.

The EB-3 cut-off date for all other countries except China and India will move forward by three months, to January 1, 2015.

The cut-off date for China’s employment-based third preference for skilled workers and professionals will move by four months to May 1, 2011 and other workers by three months to November 15, 2005. Meanwhile, EB-3 cut-off date for India will move by eight days to January 15, 2004.

The employment-based second preference (EB-2) will remain current for all countries except China and India. China’s second preference cut-off date will move by one year and two months to June 1, 2012 while India’s cut-off date will advance by more than seven months, to April 15, 2008.

Also, the employment-based fifth preference (EB-5) will remain current for all countries except China. The EB-5 investor visa category for China will retrogress with a cut-off date of May 1, 2013. This will be the first time that this category will have retrogression for any country. All the other employment preferences will remain current for all countries.

The family-based preferences (F-1 to F-4) will move slowly. The worldwide preference cut-off dates are as follows: F-1 (unmarried sons and daughters of U.S. citizens) – August 15, 2007; F-2A(spouses and children of permanent residents) – September 1, 2013; F-2B (adult unmarried sons and daughters of permanent residents) – September 15, 2008; F-3 (married son and daughters of U.S citizens) – February 22, 2004 and F-4 (brothers and sisters of U.S. citizens) – August 1, 2002.

The Philippine cut-off dates are: F-1 – February 1, 2005; F-2A – September 1, 2013; F-2B – April 22, 2004; F-3 – August 15, 1993 and F-4 – October 22, 1991. A retrogression of the F-1 category is a possibility in the next several months.

Beneficiaries of employment-based and family-based preferences who have priority dates earlier than the aforementioned cut-off dates and are currently in the U.S., must file their adjustment application in order to get certain interim immigration benefits such as employment authorization and travel permit. Those with pending adjustment applications will be allowed to remain in the U.S. and work here until the adjudication of their adjustment applications.

Among the documents required to file for adjustment of status, in addition to Form I-485 and related forms, are the applicant’s photographs, medical examination report, affidavit of support, copy of passport and I-94, copy of birth certificate, and if applicable, copy of the applicant’s marriage certificate and official proof of termination of any prior marriage.

Trafficking Victims to Benefit from DOL’s New Policy

On April 2, 2015, the Wage and Hour Division (WHD) of the Department of Labor (DOL) started exercising its authority to issue certifications for T visa applications. It can now also certify three additional qualifying criminal activities under the U visa program, namely, extortion, forced labor, and fraud in foreign labor contracting.

U nonimmigrant visas are available to victims of “qualifying criminal activities” who suffered substantial mental or physical abuse such as abduction, blackmail, domestic violence, extortion, involuntary servitude, witness tampering, obstruction of justice, perjury and false imprisonment, among others. T nonimmigrant visas, on the other hand, are available to certain victims of human trafficking. Quite a number of Filipino domestics, teachers, and temporary workers have been issued T and U visas.

Under both the T and U visa programs, the victim must have been helpful, are being helpful or are likely to be helpful in the investigation and prosecution of the crime. Application for U visa requires a law enforcement certification on Form I-918B. Although the T visa does not require law enforcement certification, it is given a significant weight as evidence that the applicant assisted the law enforcement agency.

Among those who may sign the Form I-918B are certifying officials of federal, state, local law enforcement agencies, prosecutors, judges and other investigative agencies such as family protective services, the Equal Employment Opportunity Commission, and the Wage and Hour Division of the Department of Labor.

The DOL’s Wage and Hour Division began issuing U visa certifications in 2011 for five qualifying criminal activities, namely, trafficking, involuntary servitude, peonage, obstruction of justice, and witness tampering. The three qualifying criminal activities were added to the list because the DOL found that these activities are also likely to be exposed during the WHD’s workplace investigations.

The Wage and Hour Division enforces workplace laws such as the federal minimum wage and overtime laws. Many wage and hour investigations, according to the DOL, are conducted in industries where vulnerable workers are employed. This allows the WHD to reach these workers and detect exploitation.

The primary factors that the WHD considers in issuing a certification are the following: that the qualifying criminal activity arises in the context of an employment relationship or work environment and there is a related, credible allegation of a violation of a law the WHD enforces, that the petitioner alleges a qualifying criminal activity and that he or she has been, is being, or is likely to be helpful to law enforcement officials in any investigation or prosecution of the qualifying criminal activity.

The fact that another law enforcement agency is already engaged in the investigation of the qualifying criminal activity or would be in a better position to certify based on the facts presented is also considered. Another factor is whether completion of the U visa certification would assist the DOL’s investigation of a violation of a law that it enforces.

The certified Form I-918 Supplement B must be attached to the Form I-918 petition and filed with the U.S. Citizenship and Immigration Services (USCIS). The law enforcement certification does not guarantee that the applicant will be issued a U visa. The applicant must still demonstrate that he/she meets all the eligibility requirements for a U visa.

If the WHD decides not to certify the Form I-918B, they will inform the applicant in writing and will also provide information as to other law enforcement agencies that may be able to issue the certification.

Through these efforts the DOL seeks to provide additional support to workers who are victims of these crimes and are willing cooperate with law enforcement. The DOL sees this as significant way of providing qualifying victims the services they need to rebuild their lives.

Challenging In Absentia Deportation Order

Failure by an alien to appear at his/her removal hearing will result in a deportation order by the immigration judge. An in absentia (in the absence) removal can be ordered if the alien is removable and if the government establishes that proper written notice was provided the respondent alien.

However, under two types of situations the alien can file a motion to reopen the proceedings and ask the judge to rescind the order. If the removal order is rescinded, the case is reopened and the alien may seek relief in the reopened proceedings.

Under the first scenario, the alien did not receive proper notice of the hearing. The notice refers to the charging document served the respondent at the beginning of the proceedings, called the Notice to Appear in removal proceedings. If the proceedings were brought under the old law, the document is called an Order to Show Cause.

In either case, the document must notify the respondent of the basis of government’s case against him. It must state the nature of the proceedings, the acts or conduct alleged to be in violation of the law, the charges against the respondent, and notice of the right to be represented by counsel.

It should inform the respondent of the requirement of notifying the court of a change in address or phone number, and warn him that he may be ordered deported in absentia if he fails to do so. The respondent must also be notified, whether in the charging document or in a separate notice, of the date, place and time of the hearing and the consequences of failing to attend the hearing.

The notice must be served properly. What is proper service depends on when the case was filed.
Since April 1, 1997, the notice to the respondent may be served either in person or by mail. The government needs only use regular mail, whereas before it must serve the notice by certified mail or registered mail, with a return receipt requested.

The NTA is mailed to the last address on file for the respondent. It could be the address in an application filed with the USCIS. If the respondent, who was informed of the requirement to report a change of address, does not do so and fails to appear at the hearing, he could be ordered removed in absentia.

If the respondent’s attorney was properly served but the attorney fails to inform the respondent of the hearing, the respondent is still considered to have been served. Service to the attorney is service to the respondent. However, the alien may argue his counsel’s ineffective assistance was the cause of his failure to appear and the removal order.

In a “no notice” case, the motion to reopen must be filed with the immigration court that has administrative control of the record of proceedings. The motion may be filed anytime, even after the person has departed the United States.

The second scenario that leads to an in absentia removal order involves exceptional circumstances which led to the respondent’s failure to appear at the hearing. The motion to reopen must generally be filed within 180 days of the entry of the order.

The respondent must show that he was prevented from appearing at the hearing due to exceptional circumstances. Illnesses or medical emergencies as well as ineffective assistance of counsel have been found to be exceptional circumstances. In any case, the respondent must provide sufficient documentation of the reasons for not attending the hearing.

A removal order has serious consequences, such as an inability to return to the United States for 5 years, and a bar from other forms of relief like adjustment of status, cancellation of removal and voluntary departure. Because of this, an alien ordered removed in absentia must consider the filing of a motion to reopen if failure to appear at the hearing was due to lack of notice or because of exceptional circumstances.

Scroll To Top