Category: Uncategorized

https://www.forbes.com/sites/stuartanderson/2019/10/21/usciss-cuccinelli-boasts-of-increasing-immigration-bureaucracy/#37a7c2c1beae

TPS Employee Handbook

https://www.uscis.gov/i-9-central/42-automatic-extensions-employment-authorization-documents-eads-certain-circumstances

Case Study: H-1B RFEs for Level 1 Wages Successfully Overturned
In the past few years of H-1B cap-subject seasons, a USCIS approval trend has emerged that calls occupations set at level one wages into question.  Instead of approval, these cases receive RFEs.

The reason is because adjudicators assume that just because a job is set at level one wages it’s an entry-level position.  Entry level positions in some career tracks do not require a minimum of a US bachelor’s degree or higher for entry into the position.  USCIS claims that because the job does not require a minimum of a US bachelor’s degree or higher or its equivalent, it does not meet the H-1B definition for specialty occupation, which an H-1B beneficiary must hold in order to qualify for this visa. 

However, many of these instances actually DO require a minimum of this advanced degree in MOST CASES but not all.  The job that has taken the hardest hit is computer programmers making level one wages, but this is not the only position that has been called into question.

Last year, we worked with clients who received RFEs for level one wages, which often arrived as a double RFE paired with the specialty occupation issue.  USCIS claimed they were either A) not making the prevailing wage for the job, as per H-1B requirements, or B) the job was not specialized.

We were able to get these RFEs answered with a 90% success rate.  The beneficiary and sponsor must provide as much information as possible about the job and its duties, as well as the company’s past hiring practices and industry standards for what is required for entry into the position, and an analysis of the factors that went into setting the wage level.  Oftentimes, new hires fresh out of college will require a high level of training and supervision, which effects their pay grade.  Since one of the goals of the H-1B program is to attract bright foreign students to US schools with the option of staying to work after graduation, this is the situation of many H-1B candidates. 

Then, an expert in the field writes an opinion letter that analyzes the information provided and lends an opinion based on their extensive field experience that covers the wage level and the specialty occupation.  Expert opinion letters written by professors with minimal field experience have been rejected by USCIS.  The RIGHT expert must have a great deal of experience WORKING IN THE FIELD of the H-1B job, beyond simply instructing in the subject.

EOIR Final Rule on Administrative Review Procedures

https://www.aila.org/infonet/eoir-84-fr-31463-7-2-19

Challenge Essay JAR

White House immigration plan may call for commission on future visas

Washington

The White House is nearing completion of a proposal to revamp the legal immigration system that could include the creation of an independent blue ribbon commission that would help decide how many future visas will be allocated and what kind of workers should receive them, according to two sources familiar with the talks.

The draft proposal, which follows several West Wing meetings hosted by senior advisor Jared Kushner with dozens of interest groups important to the Republican Party, could be presented to President Donald Trump as early as this week after being approved by key Cabinet leaders and department heads.

“The proposal is definitely moving forward,” said a person familiar with the plans. “It has been approved by a lot of people who need to sign off on it within the administration, such as agency heads. Staffers are planning to make a big push for reforms. They want this to be a proposal that people within the administration and the Republican Party can be unified on.”

Giving the information to the president marks Phase Three of a process kick-started by Trump’s son-in-law last year to see if there was enough consensus among Republican stakeholders to overhaul the legal immigration system.

While Kushner led many of the early meetings, he’s been working closely with other top officials on the effort, including Vice President Mike Pence, Homeland Security Secretary Kirstjen Nielsen, acting Chief of Staff Mick Mulvaney and senior adviser Stephen Miller, White House officials have said.

The proposal also looks to potentially increase caps on employment-based visas, raising the number of temporary guest worker visas while ensuring immigrants in the United States on temporary visas don’t automatically get permanent ones.

If approved by Trump, the White House would champion the proposal to the public and Congress for legislation in a way similar to how it pressed lawmakers for new legislation that met its “four pillars,” including protection for those brought to the country illegally as children, cuts to family migration, ending the diversity lottery program and wall funding.

Some see the White House wanting to recreate a 1990s federal advisory panel that had been led by Texas Rep. Barbara Jordan that would have cut legal migration by a third and served as a road map for Congress on other policy changes.

“The Jordan Commission’s primary recommendations were to improve illegal immigration controls, revamp the refugee and asylee admission system, and reduce overall legal immigration – essentially a blueprint for an immigration system that serves the national interest and precisely what President Trump ran on in 2016,” said RJ Hauman, the government relations director at FAIR, which advocates for stronger immigration enforcement. “Why would he need to convene another commission to tell him what he already knows?”

But senior officials note that Trump – despite past support for legislation that would have cut legal immigration – has recently talked about increasing legal immigration to help American businesses attract foreign labor to work farm and factory jobs as well as fill technology hubs.

“I want people to come into our country in the largest numbers ever, but they have to come in legally,” Trump said during his State of the Union address.

The White House declined to provide any details of the plan. In the past, the White House has emphasized to McClatchy that the president’s goals are to ensure the right foreign workers are brought to the country by replacing low-skilled immigration with a merit-based system that prioritizes immigrants with special skills.

Senior administration officials have worked hard to contain expectations, saying that Trump may decide not to pursue what is presented to him. It could be months before any proposal is shared with the American public.

But others fear a shift away from priorities of 2017 that sought to prevent the influx of foreign workers who could displace American workers.

Hauman said a strong economy “with thousands of new jobs can tighten the labor market, increase wages, and put Americans back to work.”

“We’re hopeful that President Trump doesn’t capitulate to influential business interests such as the Koch brothers and use the strong economy as justification to increase overall immigration,” he said. “This would be antithetical to the goal of putting Americans first and betray a key campaign promise.”

White House Senior Adviser Jared Kushner, left, Homeland Security Secretary Kirstjen Nielsen, and Vice President Mike Pence, talk as they walk down the steps of the Eisenhower Executive Office Building on the White House complex, Saturday, Jan. 5, 2019, in Washington.

White House is weighing TPS for Venezuelans

WASHINGTON 

The White House is considering special protected immigration status to Venezuelans, a move that would prevent undocumented immigrants from the embattled South American country from being deported.

According to five people familiar with the discussions, the White House has been having high-level discussions about the possibility of granting Temporary Protected Status, or TPS, to Venezuelans in the United States, which would give qualified recipients the chance to legally remain in the country and get work permits.

Elliott Abrams, the Trump administration’s special envoy to Venezuela, has been one of the officials championing the cause at the White House. The idea also has received the support of Vice President Mike Pence, who earlier this week met in Colombia with Juan Guaidó, the internationally recognized interim president of Venezuela.

Venezuelan-American activists, immigrant advocates and South Florida lawmakers have been lobbying the Trump administration to protect undocumented Venezuelan immigrants. But hard-line immigration activists also have taken notice of the discussions and have started to fight back — arguing that TPS is not the proper way to address the crisis.

Supporters say this is what the TPS program is designed for to help nationals who can’t safely return to their home country.

Fernando Cutz, a former senior director at the National Security Council in the Trump administration, said from a messaging standpoint it would assist the administration as it lobbies world leaders to show the United States has “some of our skin in the game.”

“If they move through with it, it shows that the administration cares about the people of Venezuela, that there is a real humanitarian concern for the crisis and that the administration is taking it seriously,” Cutz said. “It would be a particularly strong message from this administration given that they have a strong hard line on immigration in general.”

The issue is expected to come up on Thursday when Abrams testifies on Venezuela before Sen. Marco Rubio’s Foreign Affairs subcommittee on the Western Hemisphere.

The issue has been a top priority for Rubio who teamed up this week with U.S. Sens. Bob Menendez, D-N.J., Dick Durbin, D-Ill., Patrick Leahy, D-Vt., and Cory Booker, D-N.J., to introduce the Venezuela Temporary Protected Status Act of 2019, a bill that would immediately grant TPS to eligible Venezuelans fleeing the dire conditions in their home country.

Notably, the Trump administration has been fighting to end TPS, arguing that the temporary status is anything but temporary.

Congress created TPS in 1990, allowing more than 300,000 immigrants from about a dozen countries to remain in the United States. The administration sought to let TPS expire for most countries, including El Salvador, Haiti, Nicaragua, Sudan, Liberia and Nepal and soon found the cases tied up in the courts.

In October, U.S. District Judge Edward Chen granted a preliminary injunction, stopping the administration and Department of Homeland Security from terminating TPS for immigrants from Haiti, Nicaragua, El Salvador and Sudan.

In compliance with that ruling, Homeland Security announced Thursday it was extending TPS for immigrants from Haiti and three other countries until January 2020.

In light of that case, the possibility of granting TPS to another group of immigrants has raised concerns among some conservative immigration groups who said the situation is better addressed through the asylum system.

Dan Stein, president of the Federation for American Immigration Reform, said he was sympathetic to the conditions in Venezuela, but said TPS — which he described as an “ongoing amnesty program” — is not the right way to handle the issue.

“Until such time that TPS can be proven to actually be temporary, we no longer support use of the program,” Stein said. “It’s just absurd that to suggest the situation in Venezuela, which may be resolved in the next three months or sooner, that there should be a grant for TPS for everybody when apparently it will go on indefinitely.”

Florida Reps. Mario Díaz-Balart and Darren Soto also Introduced legislation in the House to protect Venezuelans in the United States.  

The White House would not comment on consideration of TPS.

A new law could help 2.5 million immigrants to have a chance at permanent status.

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House Democrats introduce bill to offer 2.5 million immigrants chance at permanent status

The Dream and Promise Act would allow DREAMers to apply for legalization, and TPS holders to apply for green cards.

By Dara Linddara@vox.com  Mar 12, 2019, 1:30pm EDTSHARE

When Donald Trump attempted to end DACA program to protect young unauthorized immigrants from deportation, it was met with protests like this one. Now House Democrats have introduced a bill that would allow DACA recipients and other DREAMers, as well as TPS recipients, to get permanent legal status.

House Democrats are teeing up their next major piece of legislation: an immigration bill that would allow as many as 2.5 million people to apply for legal status and put them on a path that could ultimately lead to US citizenship.

The bill, HR 6 — called the Dream and Promise Act — combines the longstanding DREAM Act, a legalization bill for unauthorized immigrants who came to the US as children, with a proposal to allow some immigrants with temporary humanitarian protections to apply for permanent legal status.

What unites the two groups of immigrants is that both have put down roots in the US, generally living here for more (sometimes much more) than a decade but without permanent status. “Living with uncertainty has defined most of my 16 years in the United States,” Jessica Garcia, a 21-year-old DACA recipient, said at a press conference Tuesday formally unveiling the bill.

Both groups also stand to lose protections under President Donald Trump. Trump has moved to end the Deferred Action for Childhood Arrivals program, which protects many DREAMers from deportation, and has declined to renew temporary protections for hundreds of thousands of immigrants under the Temporary Protected Status and Deferred Enforced Departure humanitarian programs.

“We are not going to allow Donald Trump to send them back, and we are not going to ask them to live in a constant state of fear and uncertainty,” said Rep. Nydia Velázquez (D-NY), who introduced the bill alongside Rep. Lucille Roybal-Allard (D-CA) and Rep. Yvette Clarke (D-NY) at Tuesday’s press conference.

If passed, HR 6 would represent the most generous immigration bill since the Reagan “amnesty” of 1986. But while it is extremely likely to pass the House without major changes, it is not going to pass the Republican Senate — or be signed by Trump — in its current form.

Still, the bill matters because it’s a statement of the Democratic consensus on immigration. That may come into play if Trump and Republicans make another effort to pass an immigration bill of their own — or if Congress is spurred into action again by the threat of an end to DACA. And as Democratic 2020 candidates start articulating their own visions of the presidency, and set their priorities for what they’d do if elected, the bill is one marker of where the party stands.

What the bill would do

HR 6 targets two different groups of immigrants who don’t currently have a way to apply for permanent legal status in the US. The first group is DREAMers, or unauthorized immigrants who arrived in the US as children; the second group is immigrants who have been protected due to war or natural disaster in their home countries.

Most of this second group has Temporary Protected Status (TPS), a legal status given on a country-by-country basis — these immigrants, mostly from El Salvador, Honduras, and Haiti, have generally been in the US for decades. It also includes hundreds of Liberians with a lesser protection called Deferred Enforced Departure.

Many of these immigrants are currently protected from deportation; TPS gives immigrants temporary legal status and about 675,000 DREAMers are currently protected under the Deferred Action for Childhood Arrivals program created by President Obama in 2012. The Trump administration is trying to end DACA and to sunset TPS for most of its recipients (most of whom come from El Salvador, Honduras, and Haiti). Both efforts are currently held up in federal court. The DED protections for Liberians, however, are currently set to expire at the end of March.

Under HR 6, all of these — DREAMers and humanitarian protectees alike — would be allowed to apply for permanent legal status.

The humanitarian protectees (TPS and DED holders) who’ve been in the US since fall 2016 would simply be allowed to apply for green cards (legal permanent residency), which they can’t do right now unless they qualify through other means. After having a green card for five years, they’d be allowed to apply for citizenship, just like any other green card holder.

For DREAMers — whether or not they currently have DACA — the path would be a little more complicated. They’d be allowed to apply for “conditional permanent residency,” which they’d be granted under certain conditions:

  • They arrived in the US before turning 18 and had been in the US for at least four years
  • They weren’t convicted of a felony or three separate misdemeanors involving total jail time of 90 days
  • They have a high school diploma or GED, or are enrolled in a program to get a high school diploma or GED
  • They can pass background checks and a few other standard eligibility requirements

Conditional status would last for 10 years. But DREAMers with conditional status would be able to apply for green cards at any time if they got a degree from a higher ed institution (or completed two years in good standing of a bachelor’s or technical program), served for two years in the military, or worked for three years.

There’s no official or think tank estimate of how many people would be affected by the current bill. A previous version of the DREAM Act, introduced in 2017, would have allowed about 2.1 million people to apply for status (though not all of them would have qualified for it immediately, especially based on educational requirements.

HR 6 is slightly more generous than the 2017 version — especially in allowing people who are enrolled in a diploma or GED program but don’t have one to get legal status. There are also at least 300,000 — and as many as 440,000 — additional immigrants with TPS and DED not covered by the 2017 act who’d qualify to apply for green cards.

So in total, it’s fair to estimate that about 2.5 million immigrants would be able to apply for legal status as a result of this bill — many of whom would get green cards and, ultimately, citizenship.

HR 6 won’t pass into law in its current form. But it reflects a new Democratic consensus.

The last time Democrats held the House of Representatives, in 2010, one of the last bills they passed was the DREAM Act. That version was much less generous than the current version; it would have affected about 1.5 million immigrants. And, of course, it didn’t address TPS or DED.

Since 2010, though, legalization of immigrants has become a Democratic issue instead of a bipartisan or bipartisan-ish one. That’s mobilized the left of the party’s caucus and encouraged the center to go along.

Furthermore, the Trump presidency has made immigration a much easier issue for Democrats. The people countermobilized against the administration — the “resistance” — are eager to hear Democrats denounce Trump’s rhetoric and vision as “not who we are.” And the administration’s unprecedentedly aggressive immigration agenda has given Democrats something to oppose, which is much easier than endorsing a particular alternative.

Now that Democrats hold one chamber of Congress, though — and are gearing up for 2020 — they have both more opportunity and more pressure to put forward an agenda of their own.

HR 6 doesn’t reflect the full scope of that agenda. Most members of Congress who spoke Tuesday insisted that after this bill passes (it won’t), they’d want to get to work on “comprehensive immigration reform.” Pretty much every Democrat in Congress agrees that legalization needs to be available to all 11 million unauthorized immigrants in the US.

But there might not be a Democratic consensus on “comprehensive immigration reform” — which in its previous iterations, including a bill that passed the Senate in 2013, has included a lot of increased enforcement and border spending. Some progressives have started challenging Democrats to oppose any funding for border barriers or any expansion of enforcement budgets; others continue to assume that such things would be a worthwhile trade-off for legalizing millions of immigrants.

There is a Democratic consensus that the immigrants who currently have the most to lose under Trump — TPS holders with legal status, DACA and DED recipients with deportation protections, and other DREAMers who could lose the land of their upbringing if deported — should be not only allowed to stay in the US but officially recognized and given the opportunity to become full citizens. And there is a consensus that that shouldn’t require an enforcement trade-off.

It’s not a full immigration platform. But it’s the place where Democrats appear to feel they have the best leverage against Trump on his signature issue.


White House is weighing TPS for Venezuelans

BY FRANCO ORDOÑEZ

WASHINGTON 

The White House is considering special protected immigration status to Venezuelans, a move that would prevent undocumented immigrants from the embattled South American country from being deported.

According to five people familiar with the discussions, the White House has been having high-level discussions about the possibility of granting Temporary Protected Status, or TPS, to Venezuelans in the United States, which would give qualified recipients the chance to legally remain in the country and get work permits.

Elliott Abrams, the Trump administration’s special envoy to Venezuela, has been one of the officials championing the cause at the White House. The idea also has received the support of Vice President Mike Pence, who earlier this week met in Colombia with Juan Guaidó, the internationally recognized interim president of Venezuela.

Venezuelan-American activists, immigrant advocates and South Florida lawmakers have been lobbying the Trump administration to protect undocumented Venezuelan immigrants. But hard-line immigration activists also have taken notice of the discussions and have started to fight back — arguing that TPS is not the proper way to address the crisis.

Supporters say this is what the TPS program is designed for to help nationals who can’t safely return to their home country.

Fernando Cutz, a former senior director at the National Security Council in the Trump administration, said from a messaging standpoint it would assist the administration as it lobbies world leaders to show the United States has “some of our skin in the game.”

“If they move through with it, it shows that the administration cares about the people of Venezuela, that there is a real humanitarian concern for the crisis and that the administration is taking it seriously,” Cutz said. “It would be a particularly strong message from this administration given that they have a strong hard line on immigration in general.”

The issue is expected to come up on Thursday when Abrams testifies on Venezuela before Sen. Marco Rubio’s Foreign Affairs subcommittee on the Western Hemisphere.

The issue has been a top priority for Rubio who teamed up this week with U.S. Sens. Bob Menendez, D-N.J., Dick Durbin, D-Ill., Patrick Leahy, D-Vt., and Cory Booker, D-N.J., to introduce the Venezuela Temporary Protected Status Act of 2019, a bill that would immediately grant TPS to eligible Venezuelans fleeing the dire conditions in their home country.

Notably, the Trump administration has been fighting to end TPS, arguing that the temporary status is anything but temporary.

Congress created TPS in 1990, allowing more than 300,000 immigrants from about a dozen countries to remain in the United States. The administration sought to let TPS expire for most countries, including El Salvador, Haiti, Nicaragua, Sudan, Liberia and Nepal and soon found the cases tied up in the courts.

In October, U.S. District Judge Edward Chen granted a preliminary injunction, stopping the administration and Department of Homeland Security from terminating TPS for immigrants from Haiti, Nicaragua, El Salvador and Sudan.

In compliance with that ruling, Homeland Security announced Thursday it was extending TPS for immigrants from Haiti and three other countries until January 2020.

In light of that case, the possibility of granting TPS to another group of immigrants has raised concerns among some conservative immigration groups who said the situation is better addressed through the asylum system.

Dan Stein, president of the Federation for American Immigration Reform, said he was sympathetic to the conditions in Venezuela, but said TPS — which he described as an “ongoing amnesty program” — is not the right way to handle the issue.

“Until such time that TPS can be proven to actually be temporary, we no longer support use of the program,” Stein said. “It’s just absurd that to suggest the situation in Venezuela, which may be resolved in the next three months or sooner, that there should be a grant for TPS for everybody when apparently it will go on indefinitely.”

Florida Reps. Mario Díaz-Balart and Darren Soto also Introduced legislation in the House to protect Venezuelans in the United States.  

The White House would not comment on consideration of TPS.

H-2B Cap Reached For 2019

https://www.uscis.gov/news/alerts/h-2b-cap-reached-fy-2019

H-2B Cap Reached for FY 2019

U.S. Citizenship and Immigration Services (USCIS) has received enough petitions to meet the congressionally mandated H-2B cap for the second half of fiscal year (FY) 2019. Feb. 19, 2019, was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before Oct. 1, 2019. USCIS will reject new cap-subject H-2B petitions received after Feb. 19 that request an employment start date before Oct. 1, 2019.

On Feb. 19, the number of beneficiaries USCIS received petitions for surpassed the total number of remaining H-2B visas available for the H-2B cap for the second half of FY 2019. In accordance with regulations, USCIS determined it was necessary to use a computer-generated process, commonly known as a lottery, to ensure the fair and orderly allocation of H-2B visa numbers to meet, but not exceed, the remainder of the FY 2019 cap. On Feb. 21, USCIS conducted a lottery to randomly select petitions from those received on Feb. 19. As a result, USCIS assigned all petitions selected in the lottery the receipt date of Feb. 22. Premium processing service for petitions selected in the lottery also began on that date.

USCIS continues to accept H-2B petitions that are exempt from the congressionally mandated cap. This includes petitions for:

  • Current H-2B workers in the United States petitioning to extend their stay and, if applicable, change the terms of their employment or change their employers;
  • Fish roe processors, fish roe technicians, and/or supervisors of fish roe processing; and
  • Workers performing labor or services in the Commonwealth of Northern Mariana Islands and/or Guam from Nov. 28, 2009, until Dec. 31, 2029.

U.S. businesses use the H-2B program to employ foreign workers for temporary nonagricultural jobs. Currently, Congress has set the H-2B cap at 66,000 per fiscal year, with 33,000 for workers who begin employment in the first half of the fiscal year (Oct. 1 – March 31) and 33,000 for workers who begin employment in the second half of the fiscal year (April 1 – Sept. 30) plus any unused numbers from the first half of the fiscal year, if any. However, unused H-2B numbers from one fiscal year do not carry over into the next.

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