In this case law update, we look at Valorem Consulting Group v. United States Citizenship & Immigration Servs., 2015 U.S. Dist. LEXIS 4664 (W.D. Mo. Jan. 15, 2015). The crux of this case is that USCIS does not abuse their discretion in issuing an H-1B visa for a one-year period rather than the requested three-year period. The court determined that the evidence in the certified administrative record supported USCIS's decision and that the decision was not arbitrary or capricious. USCIS found, and the court agreed, that the Plaintiff had not provided sufficient documentation to show the beneficiary would be gainfully employed for the three year period or longer and thus the one-year grant was more appropriate.
As we approach the opening of the filing window for Fiscal Year of 2016 H-1B visas, it's important to begin to strategize, both as an employer and a potential employee. The last quarter of 2014 showed some slow down in the economy but due to job growth, consumer confidence and some other indicia, this first quarter is likely to rebound. There is a direct correlation between economic growth and the number of H-1B visa petitions filed each year and how fast that numerical cap is exhausted.
In this edition of case law updates, we focus on the recent Eleventh Circuit decision in Huang v. Holder where the court found the Board of Immigration Appeals (BIA) and the immigration judge (IJ) did not address all forms of harm; physical and non-physical. In removal proceedings, Min Yong Huang applied for asylum, withholding of removal and relief pursuant to the Convention Against Torture all based on religious persecution. The immigration judge denied the application finding that Huang had not suffered past persecution based on the quantity and severity of the physical harm presented by Huang at trial. The Board of Immigration Appeals agreed with the immigration judge and dismissed the appeal. Huang petitioned the Eleventh Circuit for review of the dismissal and the circuit court found that both the IJ and the BIA had failed to consider non-physical harm attributed to Huang's claim of past religious persecution. In doing so, the Eleventh Circuit remanded to the BIA and reminded all of us to present all valid claims and arguments and if they were all presented to an IJ and the BIA, to ensure that they are address it in the decisions.
The cap subject season for H-1B visas is upon us. The filing window will officially open on April 1, 2015 and is obviously rapidly approaching. There are 65,000 cap subject visas for those using bachelor's degrees. There are another 20,000 master's cap visas available (meaning the use of a U.S. masters degree qualifies the foreign national). What noone knows is how many petitions USCIS will receive.
On January 8, 2015 the Eighth District Court of Appeals issued a decision in State of Ohio v. Rafael Preciado denying his motion to withdraw his guilty plea from twenty years ago. A motion to withdraw a guilty plea for a noncitizen is the first line of defense in almost all removal cases involving a conviction. It is essentially unringing the bell. Thus this case fits squarely in the crimmigration context; the crossover of criminal and immigration law.
On January 8, 2015 the Board of Immigration Appeals issued a precedent decision, Matter of O.A. Hernandez, regarding the intersection of criminal and immigration (crimmigration) law. The BIA held that the a person convicted of "recklessly engag[ing] in conduct that places another in imminent danger of serious bodily injury" has been convicted of a crime involving moral turpitude ("CMT"). This case arises out of one of the immigration courts in the Fifth Circuit (Mississippi, Louisiana and Texas). It is a BIA precedent that now controls throughout the U.S. unless a circuit court rules against it or the BIA later withdraws it.
On January 9, 2015, the Board of Immigration Appeals issued a precedent decision, Matter of Esquivel-Quintana, regarding the intersection of criminal and immigration law (crimmigration). The BIA held that the offense of sexual abuse of a minor, pursuant to the aggravated felony definition found in section 101(a)(43)(A) of the Immigration and Nationality Act, may include 16 and 17 year old victims if the statute of conviction contains a requirement for a "meaningful age differential between victim and the perpetrator." This case originally arose in one of the immigration courts in the Sixth Circuit (Ohio, Michigan, Kentucky and Tennessee). It is a BIA precedent that now controls throughout the U.S. unless a circuit court rules against it.
In the News: Today, January 7, 2015, the Department of Homeland Security (DHS) announced its extension and redesignation of Temporary Protected Status (TPS) for El Salvador. TPS is applicable when DHS determines a country's current conditions prevent its nationals from returning safely. If granted TPS, during the designated period, a beneficiary may not be removed from the US, he or she can obtain an Employment Authorization Document (EAD), and he or she may be granted travel authorization. This announcement in the news affects foreign nationals from El Salvador who are eligible to register or re-register for TPS. These individuals include the following: current TPS beneficiaries from El Salvador, El Salvador nationals and foreign nationals who are without nationality who last habitually resided in El Salvador.
This edition of case law updates identifies some Sixth Circuit Court of Appeals decisions, both precedent and unpublished, from Fall of 2014 and focuses on the only precedent decision. A reminder that Sixth Circuit precedant decisions control immigration judges in Ohio, Michigan, Kentucky and Tennessee. All unpublished decisions are not binding on the immigration courts located in these states but are persuasive to the judges when they make their decisions.