On April 10, 2015, Attorney General Eric Holder ordered Matter of Silva-Trevino, 24 I&N Dec. 287 (AG 2008), a usual crimmigration case, vacated. Silva-Trevino provided immigration judges a methodology for determining whether or not a conviction was for a crime involving moral turpitude (CMT). Several circuit courts declined to follow the case causing the Attorney General to revisit the matter and the analysis.
Regarding H-1B visas, USCIS announced today it received 233,000 visa petitions far exceeding the statutory and numerical cap of 65,000 for Fiscal Year (FY) 2016. USCIS issued the receipt notices for those H-1B visa petitions selected through the lottery for processing. This lottery does include the advanced degree exemption however USCIS has not yet released the actual number of advanced degree petitions it received. USCIS will now reject any more filings made for the FY 2016 cap. USCIS will continue to accept cap exempt filings and transfers and other non-cap related filings.
The Administrative Appeals Office (AAO) issued a decision regarding H-1B visas titled Matter of Simeio Solutions, LLC. This AAO held that a change in the place of employment for a beneficiary of an H-1B visa can constitute a material change in the employment and thus require the filing of a new Labor Condition Application (LCA) and an amended or new H-1B visa petition.
On April 7, 2015, USCIS announced that the numerical cap for H-1B visas for Fiscal Year 2016 is exhausted. USCIS is permitted to grant 65,000 bachelor's degree cap subject cases and 20,000 masters cap cases each year. As a rule, if more visa petitions are filed then visas exist, USCIS institutes a lottery to select visa petitions for adjudication. USCIS then accepts H-1B visa petitions for the lottery for five business days and then rejects all cases thereafter. USCIS has enough visa petitions to institute the lottery but will not yet announce the date of that lottery. Therefore employers and employees alike are still in a holding pattern wating to see if their cases will be selected and processed.
In the news, 109 law professors filed an amicus brief in the Texas v. United States litigation. This case centers around the President's authority to institute an expanded version of Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parental Accountability (DAPA). Law professors from around the country signed on to this "friend of the court" brief arguing that the President does indeed have the authority to institute and administer these actions. We previously featured a blog on the Texas v. United States case and now I am proud to be one of the law professors signing on to this amicus brief.
In this edition of Case Law Update, we discuss Matter of Cerda Reyes, 26 I&N Dec. 528 (BIA 2015). This case has an interesting history and deals with an ever troubling and frustrating issue for aliens who are detained by the DHS and are seeking bond redetermininations from immigration judges. After arrest, aliens file motions for bond redetermination with an immigration judge as ICE has a tendency to set bond a bit too high or even refuse to issue a bond. Aliens generally file these motions in the court which has control over the jail or detention center where the alien is held. Sometimes ICE will transfer the alien to another state or region before the IJ can hear the motion. Most of the time IJ's will dismiss the motion for lack of jurisdition (or power to hear the request).
Case Law Update: On March 19, 2015, the Board of Immigration Appeals issued a precedent decision Matter of L-A-C-, 26 I&N Dec. 516 (BIA 2015). The BIA held that an immigration judge must consider an applicant's explanations for the absence of evidence corroborating his or her asylum or withholding of removal claim when the IJ is determining whether or not to grant a continuance for the applicant to obtain that evidence. The legal standard for continuances did not change and remains "good cause." The BIA further held that there is no right to an automatic continuance to obtain the corroborating evidence and the immigration judge is not required to give advance notice of what corroborating evidence may be necessary to sustain the application.
One of the best parts about being an immigration attorney is having the opportunity to take a bad situation and turn it into something very positive. These are our best success stories. That is exactly what we were able to recently do with a client who suffered abuse at the hands of a prior spouse.
USCIS Updates and Changes: On March 1, 2015 USCIS issued the poverty guidelines for the next twelve months. The guidelines can be found on Form I-864P. The guidelines are the standard measurement for adjustment of status cases to determine whether or not an alien is likely to become a public charge. See Section 212(a)(4) of the Immigration and Nationality Act. On March 6, 2015, the Department of State adopted these giudelines for all consular processing cases requiring an affidavit of support.
St. Patrick's Day in the city of Cleveland and surrounding areas is usually a great celebration but can also lead to many unnecessary criminal law and DUI charges. The Ohio State Highway Patrol announced last week that they are adding extra patrols on I-90, I-77, I-480 and I-71. That's just the Ohio State Highway Patrol. With the annual St. Patty's Day parade downtown, there will also be many extra police officers both in uniform and in plain clothes. Stay safe and don't push any limits. We'd rather lose business than have a tragedy.