Wishing you a happy and successful 2016!

Happy New Year 2016

Happy New Year from the Law Office of Alison Yew!

We hope 2015 was good to all of you. It certainly has been a very busy one for us, and our law office has a lot to celebrate for this past year. We advised and served a large number of clients, helping people become U.S. citizens, obtain their long awaited green card, be granted non-immigrant visas to work or study, pursue their dreams of investing in and starting their own business venture, and unite with their families. We encountered some hard won cases that seemed impossible at the outset and posed significant hurdles, but we made it happen. Our clients’ successes in finally getting their green cards or becoming U.S. citizens after many struggles became our own personal success stories as well. We are so grateful to those of you who have allowed us to be a part of your immigration journey.

And we have grown to better serve your legal needs. This past year, we added a new attorney to our practice, and together, we look forward to helping you in the new year. If you or someone you know has a pending immigration issue, make us your first call in 2016 to set up a consultation. We know that immigration law is complex and often confusing, and it has such a significant impact on your life. Don’t let it continue to be a stressor for you in the new year. Your immigration issues matter to us, so reach out to our law office so that we can guide and help you through the process, empowering you as you become more clear of your immigration options.

We wish you great success in 2016!

Happy New Year, everyone!

Alison Yew and Tiffany Keng

More About the H-1B Visa: Cap & Extensions

Did you know the number of H-1B visas issued each year is subject to an annual cap, known as H-1B cap, and is determined by the U.S. Congress? Presently, the maximum number of visas is capped at 65,000 per fiscal year (October 1 to September 30). An additional 20,000 are available to individuals with a Master’s degree or higher from a U.S. institution of higher education. The USCIS begins accepting new H-1B petitions for the upcoming fiscal year on April 1 of that year, and is required to keep accepting cap filings for a minimum of five business days. Thereafter, USCIS continues to accept new petitions only until the H-1B quota is reached. If there are enough cases to meet or exceed the cap in the first five days, the cap closes and USCIS stops accepting new cap filings.

The USCIS then uses a computer-generated random selection process, commonly known as the “lottery” to randomly select petitions that USCIS will adjudicate. USCIS conducts the selection process for advanced degree exemptions first. Advanced-degree petitions that weren’t selected become part of the random selection process for the 65,000 cap. For cap-subject petitions not randomly selected in the lottery, USCIS rejects and returns the petitions with the filing fees.

Are there H-1B petitions not subject to cap?

Under certain circumstances, certain types of H-1B applications are not subject to the cap, including the following:

  • Applications for extensions of H-1B status;
  • H-1B petitions for concurrent employment where the foreign worker is presently in H-1B status that is subject to the cap;
  • H-1B petitions to change employers if the foreign worker has been subject to the quota in the past six years;
  • H-1B applications sponsored by institutes of higher education (or a related or affiliated nonprofit entity), government or nonprofit research organizations; and
  • H-1B applications for physicians who received J waivers under a Conrad 30 Waiver Program

Can an H-1B visa extend beyond the six-year limit?

In certain circumstances, an employee may receive extensions of H-1B status beyond six years, if he or she is in the process of applying for employment based permanent residence.

Specifically, under the American Competitiveness in the Twenty-First Century Act (referred to as “AC21 Act”), an employee may request extensions under the following situations:

  • If an H-1B holder has submitted either a Labor Certification Application (LCA) or an I-140 immigration petition prior to their fifth year anniversary of having the H-1B visa (365 days before reaching the six-year limitation), and the LCA or I-140 has not been denied, then he or she is entitled to renew his H-1B visa beyond the six-year limit until a decision has been rendered on the application for permanent residence.
  • If the H-1B holder has an approved I-140 immigrant petition, but is unable to initiate the final step of the green card process due to the priority date not being current, he/ she may be entitled to a three-year extension of his H-1B visa.

What about dependents?

Spouse and minor children of an H-1B employee are authorized to live in the U.S. in H-4 status.

The H-1B process can be very complex. Contact the Law Office of Alison Yew to speak to our H-1B visa attorneys in San Jose for more detailed information and assistance on the preparation and filing of H-1B petitions.

‘Tis the Season… for Filing

Is it that time of the year already? Looks like it!

It’s never too early to begin preparing for the H-1B cap filing season! Although there has been much speculation on possible changes to H-1B petitions for fiscal year 2017, it’s best to start thinking about and planning for your petitioning needs. Our H-1B visa lawyers in San Jose will be sure to stay on top of any significant updates.

As of now, we assume H-1B petitions for the new fiscal year, effective starting on or after October 1, 2016, will be accepted by USCIS beginning April 1, 2016. In the past few years, the number of H-1B petitions submitted has grown immensely. The USCIS this year received nearly 233,000 H-1B petitions for 85,000 spots (65,000 annual cap and an additional 20,000 available to individuals with a Master’s degree or higher from a U.S. institution of higher education).

If the previous few years serve as a trend, we expect the H-1B quota to be reached within the first week of filing in 2016. Employers should begin preparing H-1B petitions as early as possible so that a complete petition can be submitted to USCIS on April 1, the first day that the quota opens. The H-1B process can be complex and requires in-depth preparation and gathering of required documentation. So we advise you begin to consider your employment needs, and whether you may want to sponsor current or potential employees for H-1B status. This may include professionals who are currently employed in F-1 Optional Practical Training (OPT) status, TN status, J-1/J-2 status, or L-1B employees nearing the five-year limit on their L-1B status.

Learn more detailed information on this specialty occupation visa. For expert help, contact our H-1B visa immigration lawyers in San Jose today. Let’s begin planning and preparing for your H-1B needs.

Happy Thanksgiving, 2015

Children walking at Dilley Detention Center

Children walking at Dilley Detention Center

Happy Thanksgiving, 2015.

It has been a year since my week-long volunteer in Artesia, New Mexico, during Thanksgiving week, defending women and children from Central America (El Salvador, Honduras, and Guatemala) from deportation. The women and children were being held in a federal detention center, coined as a “family residential center,” in Artesia, New Mexico. But nothing about it was “familial”; with the ICE officers in their uniforms, the barbed wire fences that surrounded the facility, the requirement that the women and children be escorted to see their attorneys, the set hours that they may see their attorneys, the facility was in fact a prison. Since last year, so much have changed, and so little has changed.

Some highlights of the past year in family detention include:

In December 2014, the federal government closed down the Artesia facility. And it opened a brand spanking new “family residential” facility, in Dilley, Texas, transferring the women from Artesia to Dilley.

The legality of these facilities is now in question. In July, U.S. District Judge Dolly M. Gee of the Central District of California ruled that ICE’s policy of detaining children for weeks and months, alone and with their mothers, violates a 1997 settlement in Flores v. Johnson, a class action lawsuit brought by unaccompanied minors fleeing earlier violence in Central America. That settlement holds that ICE must release immigrant children “without unnecessary delay” to a legal guardian or adult custodian and make “continuous efforts on its part toward family reunification.” By October 22, ICE must prove that it has devised standards and procedures to ensure that children are only held for short periods and in “facilities that are safe and sanitary, consistent with concern for the particular vulnerability of minors,” never in “unlicensed or secure facilities” except in extraordinary circumstances. “Our position is, [ICE] could comply with the law and with Flores by releasing these mothers and kids in a week at most,” said Peter Schey, executive director at the California-based Center for Human Rights and Constitutional Law and attorney for the plaintiff class in Flores.

Since this decision, ICE has released more and more mothers and their children. But without giving notice to the mothers or informing them of their rights, ICE officials put on ankle monitors on the women upon their release. Yet, the mothers had not been charged with anything criminal, and pending deportation cases have never been considered (because it is not) a pending criminal prosecution. The judge’s ruling did not include such condition of release.

Prior to the immigration legal community and special interest groups’ involvement and stepping in to represent the Central American refugees (some time by summer 2014), ICE was deporting them without a hearing on their credible fear (or reasonable fear, depending on the type of relief the mothers were qualified to receive), a legal procedure afforded to those who are making asylum claims in defense of the government’s deportation claims. Now, ICE is providing those interviews, as they should; but the asylum officers (who conduct the interviews) have raised the standard at these interviews. ICE has also taken the position that even while a review of a negative finding is pending, it may and it has deported the women and their children. Since November 11, 2015, there have been 5 deportations from the Dilley facility alone, more than the previous 4 months.
For those keeping scores, is this a win or lose?  What are we, a nation of immigrants from the start, doing?
If you are wishing everyone well and to have a Happy Thanksgiving, and praying for peace and happiness to all, might I challenge you to do something to make a change so that such wishes and prayers do come true.

Work Authorization for Refugees

This is from a recent announcement by the Customs and Border Protection (CBP) regarding Refugee’s authorization to work and the I-94 document.

Employers and refugees should be aware that Customs and Border Protection (CBP) has automated Form I-94 processing for refugees. The stamped paper form will no longer be provided to a refugee upon arrival, except in limited circumstances. A refugee can obtain a copy of their I-94 (record of admission) from Get I-94 Information.

For Employers:

Refugees are authorized to work because of their immigration status. Just as in the case of any employee, a refugee may choose to present any applicable document from the Lists of Acceptable Documents (I-9 Form). DHS provides refugees electronic and paper Forms I-94 (Arrival/Departure Record) that evidence their status and employment authorization (since they are employment authorized incident to status), as well as Forms I-766, Employment Authorization Document (EAD).

The new electronic Form I-94 for refugees does not include an admission stamp but provides the class of admission as “RE” and an admit until date as “D/S.” If a refugee presents a Form I-94 computer-generated printout for Form I-9 Employment Eligibility Verification, the employer must accept it as a receipt establishing both employment authorization and identity for 90 days. No later than at the end of the 90-day receipt period, the refugee must present an Employment Authorization Document (Form I-766) or a combination of a List B document and an unrestricted Social Security card.

For Refugees:

When completing Section 1 of Form I-9 with a computer-generated Form I-94, refugees should check “alien authorized to work until” and may write “N/A” in the space provided. Record the “Admission (I-94) Record Number” from your Form I-94 printout as the “Form I-94 Admission Number.” Next enter your foreign passport number and country of issuance in the “Foreign Passport Number” and “Country of Issuance” spaces. If you entered the US without a foreign passport enter “N/A” in these spaces of Section 1.

For more information about I-94 Automation, please visit this webpage.

Immigration News: DV-2017 Instructions Now Available

San Jose Immigration News

The U.S. Department of State’s instructions for the 2017 Diversity Immigrant Visa Program (DV-2017) are now available. Entries for the DV-2017 program must be submitted electronically between October 1 and November 3, 2015.

There are no changes in eligibility this year. Eligibility requirements and entry instructions are on the U.S. Department of State’s DV lottery web site. See DV-2017 instructions.
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California Federal Judge Reaffirms Order to Release Detained Migrant Children

California Federal Judge Reaffirms Order to Release Detained Migrant Children

The immigrant detention center in Dilley, Texas. (Photo courtesy of Ilana Panich-Linsman, New York Times)

The immigrant detention center in Dilley, Texas. (Photo courtesy of Ilana Panich-Linsman, New York Times)

Blog written by Tiffany Keng

Last Friday, U.S. District Judge Dolly Gee ordered for the government to release children held in family detention centers “without unnecessary delay,” and with their mothers when possible. The family detention centers originally came as a response to the surge of Central American women and children, many of them unaccompanied minors, caught crossing the U.S. border in the last two years.  According to the Los Angeles Times, an estimated 1,400 women and children are currently being held at three detention centers, two in Texas and one in Pennsylvania, as they attempt to pursue claims of asylum or other ways of remaining in the country.

Last month, in late July, Judge Gee found that these detention centers failed to meet the minimum legal requirements set out in a 1997 court settlement related to the detention of migrant children in the country illegally.  The 1997 settlement, Flores v. Reno, governed the treatment of unaccompanied minors who tried to enter the U.S. illegally without a parent. In her ruling, the judge determined that the settlement covered all children in detention, including those with a parent, and that the government had violated the terms of the settlement.

Despite the Department of Homeland Security’s request for the judge to reconsider her July ruling, Judge Gee reaffirmed her ruling last Friday, calling the government’s arguments “repackaged and reheated.”

Specifically, Judge Gee found that the family detention centers were a “material breach” of provisions in the 1997 settlement requiring that minors be placed in facilities that are not secured like prisons and are licensed to take care of children.  Currently, the centers are run by private prison contractors, not by agencies with state licenses to care for children.  The ruling found that the children had been held in “widespread deplorable conditions;” in some cases, those conditions include children being held in crowded rooms for days at a time without any place to sleep. The judge ordered the government to upgrade the conditions to ensure a “safe and sanitary” environment for children. Judge Gee also noted that immigration officials “routinely failed to proceed as expeditiously as possible to place unaccompanied minors, and in some instances, may still be unnecessarily dragging their feet now.”

Judge Gee ordered the government to release the children “without unnecessary delay” to a parent or other relative in the U.S., and in a significant mandate, to release the parent as well unless that person posed a flight risk or threat to national security.  She gave federal officials until October 23 to comply with her order.  Thereafter, Judge Gee’s order provides that the government may only hold families for five days, unless there are “extenuating circumstances,” such as when “70,000 Central American migrants flooded into America and overwhelmed the system,” in which case the government could extend the window for release to 20 days.

In response to the ruling, the Department of Homeland Security issued a statement declaring that the Judge Gee’s clarifications in her August 21st ruling will “permit the government to process families apprehended at the border at family residential facilities consistent with congressional provided authority.”

Back in November 2014, Alison blogged about her pro bono work in Artesia, New Mexico, defending unrepresented women and children from Central America who were detained by the government (see Alison’s Thanksgiving post here).  It is amazing to see the continuing progress that has since been made by attorneys (mostly volunteer immigrant and nonimmigrant attorneys) and human rights groups fighting unceasingly for these women and children. This ruling is yet another confirmation that these family detention centers are wrong and need to end.

H-1B1 for Singaporean and Chilean Nationals

The H-1B1 category of work visa was created by the U.S./Singapore Free Trade Agreement and the U.S./Chile Free Trade Agreement, and only Singaporean and Chilean citizens are eligible as principal applicants.  There are 1,400 H-1B1 visas available for Chileans nationals and 5,400 H-1B1 visas for Singaporean nationals.  The visa availability is per fiscal year, which is from October 1 to September 30.

Spouses and dependent children (unmarried and 21 years of age) may obtain dependent H-4 status.

Eligibility requirements include:

  • The position must be a specialty occupation; that is, it must require theoretical and practical application of a body of specialized knowledge. Some examples of specialty occupations are jobs in the fields of engineering, mathematics, physical sciences, computer sciences, medicine and health care, education, biotechnology, and business specialties such as management and human resources (think H-1B).
  • The foreign national must have a post-secondary degree involving at least four years of study in his or her field of specialization.
  • H-1B1 visa does not allow the foreign national to be self-employed or be an independent contractor.
  • The period of employment in the U.S. must be temporary, so the foreign national must demonstrate non-immigrant intent (unlike an H-1B, which allows for “dual intent”). H-1B1 status is issued in one-year increments, as opposed to 3 year validity periods in H-1B visa status.
  • The United States Citizenship and immigration Services typically approves H1B1 petitions for a one year term which can be extended subsequently.

Unlike the H-1B visa, there is no requirement for a Petition for Nonimmigrant worker to be approved by the United States Citizenship and Immigration Services. The candidate can apply for a H-1B1 visa directly at the US Consulate in his or her home country by submitting the appropriate nonimmigrant visa application along with a detailed employment offer letter, a Labor Condition Application (LCA) certified by the Department of Labor, and the relevant supporting documents.

Due to the limited availability of H-1B visas, employers may find it useful to consider filing H-1B1 petitions for eligible candidates. Filing H-1B1 visa petitions does not preclude citizens of Chile and Singapore from obtainig a regular H-1B visa.

Please contact our law office for additional discussion of this category and alternative options, such as changing to H-1B status to allow for starting the process of filing for permanent resident status.

 

Parole In Place for Military Families

On Nmilitary familyovember 15, 2013, then-USCIS director Alejandro Mayorkas, issued a USCIS Policy Memorandum entitled, “Parole of Spouses, Children and Parents of Active Duty Members of the U.S. Armed Forces, the Selected Reserve of the Ready Reserve, and Former Members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve and the Effect of Parole on Inadmissibility under Immigration and Nationality Act § 212(a)(6)(A)(i).”  It is a hefty title, but in short, this policy allows for the parole of qualified family members of military members, reservists, or veterans, who otherwise are in the United States undocumented (visa overstay and entry without inspection included), and qualify to adjust status to that of lawful permanent residents without having to leave the U.S.  Click to the USCIS memo here.

If the above situation sounds familiar, and you believe you may qualify (or a family member may qualify), please contact us for an evaluation.

“Detention of children is inextricably linked with the ill-treatment of children” — Are you listening, President Obama?

Juan Mendez, Argentina, was appointed by the United Nations Human Rights Council as the Special Rapporteur on torture and other cruel, inhumane and degrading treatment or punishment in November 2010.  Per his report to the UN on March 5, 2015, he found that detaining immigrant children results in “cruel, inhuman, and degrading treatment.”  He recommended that States that detain children immigrants, such as the United States, should “cease the detention of children, with or without their parents, on the basis of their immigration status.”  (See full UN report here.)

The report concluded that:

  • Detention of children should be used only for the shortest possible period of time, only if it is in the best interest of the child, and limited to exceptional cases.
  • States should adopt alternatives to detention for children whenever possible.
  • Minimum age of criminal responsibility no lower than 12 years old.
  • No life sentences without parole for children (and even lengthy sentences can be grossly disproportionate and amount to ill-treatment).
  • No use of restraints for children deprived of their liberty under any circumstance.
  • No solitary confinement for children deprived of their liberty.
  • No death penalty for children deprived of their liberty.
  • No corporal punishment for children deprived of their liberty.
  • No immigration detention (detention of children based on migration status is never in the best interests of child, is grossly disproportionate, and constitutes ill-treatment).
  • Special attention should be paid to children deprived of their liberty in health- and social-care institutions, including in private settings.

Are you listening President Obama?