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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...

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...

January 9, 2017

Note: This list is far from comprehensive.  Just stuff we are especially proud of.

     

                                                              ***

8/2019--Affirmative asylum application approved for Iraqi doctor (after successful expedite request).

4/2019--Extraordinary Ability petition (EB-1A immigrant visa petition) approved for composite materials and failure analysis expert in the oil and gas industry (no request for evidence).

1/2019--Extraordinary Ability petition (EB-1A immigrant visa...

December 30, 2016

On December 27, 2016, the Administrative Appeals Office of USCIS issued a new precedent, Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), vacating its principal decision on National Interest Waiver adjudications which had prevailed for nearly two decades.  The case involved an aerospace engineering researcher and educator seeking a national interest waiver under the EB-2 category for an individual with an advanced degree.  The Director of the Texas Service Center denied the petition, concluding that a waiver of the job offer requirement would not be in the national interest.

As the AAO explains, an immigrant visa is available in the EB-2 category to...

October 27, 2016

In the continuing saga of Matter of Silva-Trevino, 26 I&N Dec. 826 (BIA 2016), the BIA was again asked to determine whether Texas Penal Code 21.11(a)(1) (indecency with a child) is a crime involving moral turpitude.  This case has had a long history and has been the focal point of the Board's CIMT categorical approach analysis for eight years.  The case has revolved around the difficult questions of how and when to apply the categorical and modified categorical approach.

In Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), the Attorney General created a three-step framework for determining whether any crime of conviction involves moral tur...

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