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July 21, 2019

I have read over the Fairness for High-Skilled Immigrants Act of 2019. It’s very short, but tedious, as most amending legislation is.  It makes some interesting changes to current law and then sort of shoots itself in the head.  Here is the gist of it.

Currently, about 140,000 employment-based immigrant visas (i.e., employment-based green cards) are available per year by statute.  Each country has a 7% cap. To be more exact, an applicant is categorized according to the country they were born in. We call that "chargeability." And among those country-based categories, no one group can get more than 7% of the 140,000 visas. However, specific countries...

June 22, 2018

In recent weeks the migrant crisis at the border has become a heated topic and so the concept of ‘seeking asylum’ has been the subject of intense debates.  Nevertheless, the concept is novel to most people who have not dealt with it personally or professionally, and therefore opinions are easily manipulated by agenda-driven news. 

This post began as a Facebook conversation with a friend.  It will seek to clarify what seeking asylum means and in particular explain why Attorney General Sessions’ recent decision to stamp out domestic violence as a basis for asylum was cruel and misguided.  

Where did the modern concept of asylum come from?

Asylum l...

June 7, 2018

On June 6, 2018, the Board of Immigration Appeals decided the case of A-C-M-, a Salvadoran woman who was kidnapped and enslaved by guerillas in 1990.  Although the facts are not spelled out in detail, she apparently was coerced into undergoing weapons training as well as being forced to cook and clean and wash the guerillas’ clothes.  She was also forced to watch her husband dig his own grave before being executed.

In immigration court, after one remand from the BIA, the immigration judge denied her application for asylum under the material support bar.  However, the judge granted her application for deferral of removal under the Convention Against...

March 28, 2018

In bizarre news from the world of immigration, the Board of Immigration Appeals has held that while voluntary manslaughter is not an aggravated felony crime of violence, attempted voluntary manslaughter is a crime of violence, subjecting the defendant to likely deportation.

On March 15, 2018, the Board held in Matter of Cervantes Nunez, 27 I&N Dec. 238 (BIA 2018), that attempted voluntary manslaughter under California Penal Code 192(a) and 664 is an aggravated felony under INA 101(a)(43)(F) and the crime of violence definition at 18 USC 16(a). 

Manslaughter is an offense, derived from the common law, that describes the unlawful killing of a human being t...

March 11, 2018

In June 2009, Xinbing Song was notified by his local government in Hunan province that a building in which he owned a property would be demolished to make way for new development.  Unhappy with the meager compensation the government offered, Song organized a protest involving over 100 residents and neighbors and blocked the entrance to a government building.  Government officials confronted him, but he refused to disband the protestors.  He subsequently hung a banner stating that he would rather die than give up his property, and he began to occupy one of the building's emptied apartments.

In response to Song's actions, the police jailed and t...

March 8, 2018

On March 2, in an unpublished opinion, the Eleventh Circuit Court of Appeals reversed a decision of the Board of Immigration Appeals and granted Duannie G. Bello Vallenilla's application for asylum based on political persecution in Venezuela.

Ms. Vallenilla testified that she had worked as a journalist for the website La Patilla since 2010.  She also claimed to be a member of Voluntad Popular, a group that opposes the Chavista and Maduro regimes that have systemically destroyed Venezuela's economy and left its society starving and beset with violence.

She testified that she had been persecuted by the Tupamaros, a paramilitary group which is supported by...

March 2, 2018

The Washington Post reported yesterday that Melania Trump was a recipient of the "Extraordinary Ability visa," which the article nicknames the "Einstein visa."  A torrent of follow-up articles emphasizes the strict requirements of the EB-1A category and questions how the First Lady could have possibly met the qualifications, implying that something was amiss in her application.  We know the real answer, however: getting an EB-1A is simply not that hard.

The EB-1A is the first employment-based immigrant visa category, one of only two categories (the other being the national interest waiver) that is self-petitioned, and it requires no labor certifica...

February 23, 2018

On July 28, 2016 the Fifth Circuit Court of Appeals decided Lugo-Resendez v. Lynch, 831 F.3d 337 (2016), which held for the first time that the 90-day deadline on motions to reopen immigration proceedings is subject to equitable tolling.  Lugo is a remarkable case and a landmark victory for aliens who were ordered removed--sometimes decades ago--for reasons later determined to be invalid.  The problem has been that the only way to reopen a prior removal order is through a motion to reopen, and by statute motions to reopen can only be filed within 90 days of the removal order.  But litigation of key issues moves at a glacial pace.  The court precedents...

February 21, 2018

We are now in the thick of H-1B season.  That means all applications for H-1Bs for fiscal year 2018 (beginning October 1, 2018) are due (received) by USCIS this coming April 2.  It is important not to wait too long to get an application rolling.  March 1 is ideal.  Immigration attorneys will need time to do the following:

1.  Make sure both the employer and the employee understand the H-1B lottery process and the chances of not being selected (and ideally have a backup plan).

2.  Review the job duties and make sure the prevailing wage USCIS will apply will not actually be higher than the wage the employee is to be paid.

3.  Obtain approval...

March 2, 2017

The Ninth Circuit Court of Appeals in Duran v. Lynch, No. 12-70930 (9th Cir. Jan. 20, 2017) was asked to determine whether California Penal Code § 136.1(a), witness tampering, is categorically a crime involving moral turpitude.

Duran entered the U.S. in 1989, fleeing violence in El Salvador, and applied for asylum ten years later. After the asylum denial, she was served with a Notice to Appear.  In immigration proceedings, she applied for cancellation of removal under 8 U.S.C. § 1229b(b)(1) which requires, among other things, that the alien has not been convicted of a “crime involving moral turpitude.”  The Immigration Judge determined that she had been...

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