H-2B visas for Temporary Nonagricultural Workers

U.S. Citizenship and Immigration Services has received enough petitions to reach the congressionally mandated cap on H-2B visas for temporary nonagricultural workers for the first half of the fiscal year 2022. Sept. 30 was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before April 1, 2022. USCIS will reject new cap-subject H-2B petitions received after Sept. 30 that request an employment start date before April 1, 2022.

USCIS continues to accept H-2B petitions that are exempt from the congressionally mandated cap. This includes petitions for:

  • Current H-2B workers in the United States who extend their stay, change employers, or change the terms and conditions of their employment;
  • Fish roe processors, fish roe technicians, and/or supervisors of fish roe processing; and
  • Workers performing labor or services in the Commonwealth of Northern Mariana Islands and/or Guam from Nov. 28, 2009, until Dec. 31, 2029.

U.S. businesses use the H-2B program to employ foreign workers for temporary nonagricultural jobs. Currently, Congress has set the H-2B cap at 66,000 per fiscal year, with 33,000 for workers who begin employment in the first half of the fiscal year (Oct. 1 – March 31) and 33,000 (plus any unused numbers from the first half of the fiscal year) for workers who begin employment in the second half of the fiscal year (April 1 – Sept. 30).

For information on how to apply to the H-2B Worker Program, contact the Law Offices of Norka M. Schell, LLC at (212)258-0713. 2021-10-12

DACA NOTICE OF PROPOSED RULEMAKING

DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 106, 236, and 274a
[CIS No. 2691–21; DHS Docket No. USCIS–
2021–0006] RIN 1615–AC64

Deferred Action for Childhood Arrivals
AGENCY: U.S. Citizenship and
Immigration Services, DHS.
ACTION: Notice of proposed rulemaking.

USCIS notice of proposed rulemaking (NPRM) on DACA. If finalized as proposed, the NPRM would codify the existing DACA policy with a few limited changes. Comments are due 11/29/21. (86 FR 53736, 9/28/21). ACTION: Notice of proposed rulemaking.

 

Immigration Reform is Hard. But it’s Not Dead.

Democrats blocked from including immigration reform in the party-line spending bill. The Senate parliamentarian on Sunday rejected Democrats’ push to include a pathway to legal status in their social spending plan, a blow to the party’s efforts to enact immigration reform.

“Our economy depends more than ever on immigrants,” said Senate Majority Leader Chuck Schumer. “Despite putting their lives on the line during the pandemic and paying their fair share of taxes, they remain locked out of the federal assistance that served as a lifeline for so many families. We will continue fighting to pursue the best path forward to grant them the ability to obtain lawful status.” Schumer’s remarks were echoed by Senate Majority Whip Dick Durbin (D-Ill.) and Sen. Alex Padilla (D-Calif.).

A White House spokesperson reiterated that President Joe Biden “supports efforts by Congress to include a pathway to citizenship in the reconciliation package and is grateful to Congressional leadership for all of the work they are doing to make this a reality. ”

With bipartisan talks stalled, Democrats widely viewed the social spending package — set to advance through the so-called budget reconciliation process that allows Democrats to sidestep a filibuster — as their best chance to enact immigration reform. Congressional leaders have several alternative proposals and should immediately put them before the parliamentarian; hitting a roadblock the first time is nothing new in the push for immigration reform. The need for pathways to citizenship for Dreamers, TPS and DED recipients, farm workers and essential workers is still vital from both a moral perspective, and a pragmatic one: reforms will have a direct budget impact and would yield $1.5 trillion over ten years in economic growth. There is also a continued need to address visa backlogs and bring our immigration system into this century.

Democrats vowed to continue this battle for sensible immigration reform, urging Congressional members to update our immigration laws. Immigration reform is hard. But it’s not dead.

ANNOUNCEMENT

I am proud to announce that I have been nominated to Co-Chair the AILA NY Asylum Committee 2021-2022.
The American Immigration Lawyers Association (AILA) is the national association of more than 15,000 attorneys and law professors who practice and teach immigration law. AILA member attorneys represent the U.S. families seeking permanent residence for close family members, as well as, U.S. businesses seeking talent from the global marketplace. AILA members also represent foreign students, entertainers, athletes, and asylum seekers. Founded in 1946, AILA is a nonpartisan, not-for-profit organization that provides continuing legal education, information, professional services, and expertise through its chapters and national committees.

VICTIMS OF DOMESTIC VIOLENCE AND SEXUAL ASSAULT MAY HAVE “U NON-IMMIGRANT VISA” OPTION

As a law enforcement official, you play an important role in the application process for U nonimmigrant status (also known as a U visa). The U visa can be a key tool to support your case. The U visa can help certain crime victims feel safer reporting crimes, so that they may be more willing to work with you, even if they do not have lawful immigration status.

If approved, the U visa provides the victim with:
• temporary immigration status including work authorization;
• temporary immigration status for qualifying family members of the victim; and
• the possibility of lawful permanent resident status.

U VISA ELIGIBILITY
U.S. Citizenship and Immigration Services (USCIS), within the Department of Homeland Security (DHS), decides if a person is eligible for a U visa. Law enforcement does not determine who is eligible for a U visa; however, law enforcement provides information so that USCIS can determine if the person:• is a victim of a qualifying crime or criminal activity;
• has information about the crime or criminal activity; and
• is, was, or is likely to be helpful in the detection or investigation of the qualifying crime
or criminal activity, or the prosecution, conviction, or sentencing of the perpetrator of
the qualifying crime or criminal activity.

WHAT CONSTITUTES A QUALIFYING CRIME OR CRIMINAL ACTIVITY?

The following table lists the criminal activities that are considered “qualifying criminal activities” for purposes of U visa eligibility. These are general categories of crimes and it is important to note that any similar criminal activities that violate Federal, state, or local laws may also be considered “qualifying criminal activities” for purposes of U visa eligibility.

• Abduction
• Abusive Sexual Contact
• Being Held Hostage
• Blackmail
• Domestic Violence
• Extortion
• False Imprisonment
• Felonious Assault
• Female Genital Mutilation
• Fraud in Foreign Labor
Contracting
• Incest
• Involuntary Servitude
• Kidnapping
• Manslaughter
• Murder
• Obstruction of Justice
• Peonage
• Perjury
• Prostitution
• Rape
• Sexual Assault
• Sexual Exploitation
• Slave Trade
• Stalking
• Torture
• Trafficking
• Witness Tampering
• Unlawful Criminal
Restraint
Qualifying crimes include any similar activity where the nature and elements of the crime are substantially similar to one of
the crimes listed. Attempt, conspiracy, or solicitation to commit any of the crimes listed above may also count as a “qualifying
criminal activity.”

DOES THE VICTIM AUTOMATICALLY RECEIVE AU VISA BECAUSE A CERTIFICATION HAS BEEN SIGNED?
No. The certification by itself does not grant any immigration benefit. USCIS reviews all of the evidence submitted along with the certification to determine whether a victim is eligible for a U visa. USCIS also conducts a thorough background check of each U visa petitioner (as well as each
included family member).

WHO IS RESPONSIBLE FOR PREVENTING U VISA FRAUD?
The USCIS Fraud Detection and National Security Directorate works to ensure that individuals seeking to
defraud our immigration system are not granted a U Visa.

WHERE CAN I FIND ADDITIONAL INFORMATION? Call the Law Offices of Norka M. Schell, LLC at (212)258-0713 to speak with an immigration lawyer.

Visa Bulletin for July 2021

The Visa Bulletin for July 2021 summarizes the availability of immigrant numbers during July for: “Final Action Dates” and “Dates for Filing Applications,” indicating when immigrant visa applicants should be notified to assemble and submit required documentation to the National Visa Center.

FAMILY-SPONSORED PREFERENCES

First: (F1) Unmarried Sons and Daughters of U.S. Citizens:  23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents:  23% of the overall second preference limitation.

Third: (F3) Married Sons and Daughters of U.S. Citizens:  23,400, plus any numbers not required by first and second preferences.

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens:  65,000, plus any numbers not required by first three preferences.

A.  FINAL ACTION DATES FOR FAMILY-SPONSORED PREFERENCE CASES

Family-
Sponsored 
All Chargeability
Areas Except
Those Listed
CHINA-mainland
born
INDIA MEXICO PHILIPPINES 
F1 15NOV14 15NOV14 15NOV14 01OCT98 22FEB12
F2A C C C C C
F2B 15SEP15 15SEP15 15SEP15 01FEB00 15OCT11
F3 01NOV08 01NOV08 01NOV08 08MAR97 08JUN02
F4 08FEB07 08FEB07 15AUG05 15DEC98 22JUN02

B.  DATES FOR FILING FAMILY-SPONSORED VISA APPLICATIONS

Family-
Sponsored 
All Chargeability
Areas Except
Those Listed
CHINA-
mainland
born
INDIA MEXICO PHILIPPINES 
F1 15MAY16 15MAY16 15MAY16 01AUG00 22APR15
F2A 01JUN21 01JUN21 01JUN21 01JUN21 01JUN21
F2B 22SEP16 22SEP16 22SEP16 08AUG00 01OCT13
F3 22AUG09 22AUG09 22AUG09 08SEP00 01OCT03
F4 01OCT07 01OCT07 01DEC05 08MAY99 01FEB04

AAO Processing Times

Timeliness of the Fiscal Year 2021 Third Quarter Completions (April – June 2021)
Form Type Case Type Completed 0-180 Days Quarterly Completions
Cumulative total of all completions 43.43% 1,043
I-129CW Petition for CNMI Nonimmigrant Transitional Worker 100% 2
I-129E2 CNMI Treaty Investor 100% 3
I-129F Petition for Fiancée 30.77% 39
I-129H1B Nonimmigrant Specialty Occupation Worker 89.29% 56
I-129H2A Nonimmigrant Petitions for Trainees 100% 1
I-129L Nonimmigrant Intracompany Transferee 100% 36
I-129O Nonimmigrant Extraordinary Ability Worker 78.95% 19
I-129P Athletes, Artists and Entertainers 12.50% 8
I-129R Nonimmigrant Religious Worker 20% 5
I-131 Application for Travel Document 82.82% 11
I-140A Alien with Extraordinary Ability 72.73% 66
I-140C Multinational Manager or Executive 81.48% 27
I-140D Advanced Degree Professional 64.71% 17
I-140E Professional Worker 88.89% 9
I-140F Skilled Worker 73.68% 19
I-140G Other Worker 77.78% 9
I-140I National Interest Waiver 9.09% 88
I-212 Application to Reapply for Admission 13.24% 68
I-352 Bond Breach 85.19% 54
I-360C Special Immigrant Juvenile 21.05% 76
I-360D Petition for Religious Worker 0% 8
I-360 VAWA Violence Against Women Act Petition 54.17% 76
I-485 SEC 13 Cuban Adjustment Act 100% 1
I-485U U Visa Nonimmigrant Adjustment 26.32% 76
I-526 Alien Entrepreneur 22.22% 18
I-600 Petition for Orphan 100% 1
I-601 Application for Waiver of Inadmissibility 21.49% 121
I-612 Application of 212(e) Waiver 0% 1
I-698 Application to Adjust Status from Temporary to Permanent Resident Under Section 245A 100% 2
I-821 Temporary Protected Status 75% 4
I-914 Application for T Nonimmigrant Status 38.46% 13
I-918 Petition for U Nonimmigrant Status 14.46% 83
I-924(Term) Termination of a Regional Center 50% 2
I-929 Petition for Qualifying Family Member of a U-1 Recipient 0% 6
N-470 Application to Preserve Residence for Naturalization Purposes 100% 1
N-565 Replacement Naturalization/Citizenship Document 100% 4
N-600 Certificate of Citizenship 83.72% 43

 

 

 

 

 

 

https://www.uscis.gov/administrative-appeals/aao-processing-times

Notice to Appear, Cancellation of Removal and Niz-Chavez v. Garland

On April 29, 2021, the U.S. Supreme Court issued Niz-Chavez v. Garland, 141 S. Ct. 1474
(2021), holding unequivocally that a Notice to Appear (NTA)—the charging document that
commences immigration court removal proceedings—must contain the time and place of the
hearing in a single document in order to trigger the stop-time rule in cancellation of removal
cases, and that a subsequently-issued hearing notice does not stop time if the NTA did not
include the required information.

Mr. Niz-Chavez entered the United States in 2005. In 2013, DHS served him an NTA that did
not list a time or place for his initial hearing. Two months later, Mr. Niz-Chavez received a
hearing notice stating the time and place of his hearing. Mr. Niz-Chavez applied for withholding
of removal and protection under the Convention Against Torture, which the IJ denied. Mr. NizChavez appealed to the BIA, also requesting that the BIA remand to the IJ so that he could apply
for non-LPR cancellation of removal based on Pereira. The BIA denied Mr. Niz-Chavez’s
motion to remand and the Sixth Circuit subsequently denied Mr. Niz-Chavez’s petition for
review, holding that the stop-time rule was triggered when the government had finished
delivering all of the information required by INA § 239(a)(1), which occurred when Mr. Niz Chavez received his hearing notice.

The Supreme Court then reversed the Sixth Circuit. The Court found that the plain language
of INA § 239(a)(1)—which uses the indefinite article “a” when referring to “a ‘notice to
appear’”—leaves no room to permit a second document to cure the defect. Reversing the Sixth
Circuit’s decision, the Court concluded that “the government must issue a single and
comprehensive notice before it can trigger the stop-time rule.”

 

 

U.S. Supreme Court hands victory to immigrants facing deportation

By: Andrew Chung

The U.S. Supreme Court on Thursday offered new hope to thousands of long-term immigrants seeking to avoid deportation in a ruling that faulted the federal government for improperly notifying a man who came to the United States illegally from Guatemala to appear for a removal hearing.

The justices, in a 6-3 decision that divided the high court’s conservative bloc, overturned a lower court’s decision that had prevented Agusto Niz-Chavez from pursuing his request to cancel the attempted expulsion based on the length of time he had lived in the United States. He lives in Michigan with his family after entering the United States illegally in 2005.

The justices decided that federal immigration law requires authorities to include all relevant details for a notice to appear for a hearing in one document rather than sending the information across multiple documents. While a technical issue, the ruling could affect hundreds of thousands of immigration cases.

“In this case, the law’s terms ensure that, when the federal government seeks a procedural advantage against an individual, it will at least supply him with a single and reasonably comprehensive statement of the nature of the proceedings against him,” conservative Justice Neil Gorsuch wrote in the ruling.

Gorsuch was joined by the court’s three liberal justices as well as conservative Justices Clarence Thomas and Amy Coney Barrett.

In a dissent, conservative Justice Brett Kavanaugh, joined by Chief Justice John Roberts and Justice Samuel Alito, said the ruling was “perplexing as a matter of statutory interpretation and common sense.”

The ruling upends years of practice by the U.S. Department of Homeland Security and in the short term will slow down the number of people placed in immigration proceedings, said Cornell University immigration law professor Stephen Yale-Loehr.

For many, Yale-Loehr added, “it does give them a second chance to try to prove that they qualify for cancellation of removal and other forms of relief.”

Under federal law, immigrants who are not lawful permanent residents may apply to have their deportation canceled if they have been in the United States for at least 10 years. The time counted to reach that threshold ends when the government initiates immigration proceedings with a notice to appear, a limit is known as the “stop-time” rule.

In 2013, eight years after he entered the country, police stopped Niz-Chavez for a broken tail light on his vehicle. The federal government followed up with a notice to appear for a deportation hearing.

After the Supreme Court in 2018 found in another case that notices to appear that omitted the time and date of the hearing were deficient, Niz-Chavez cited his faulty notice to argue that the stop-time rule had not been triggered in his case.

The Cincinnati, Ohio-based 6th U.S. Circuit Court of Appeals ruled against him in 2019, saying that the relevant information can be sent in more than one document. The Supreme Court overturned that ruling.

Article available at Reuters https://www.reuters.com/world/us/us-supreme-court-hands-victory-immigrants-facing-deportation-2021-04-29/

THE WHITE HOUSE PRESIDENT PROCLAMATION

     The suspension of entry imposed in Proclamation 10014 of April 22, 2020 (Suspension of Entry of Immigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak), as extended by section 1 of Proclamation 10052 of June 22, 2020 (Suspension of Entry of Immigrants and Nonimmigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak), and section 1 of Proclamation 10131 of December 31, 2020 (Suspension of Entry of Immigrants and Nonimmigrants Who Continue To Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak), does not advance the interests of the United States.  To the contrary, it harms the United States, including by preventing certain family members of United States citizens and lawful permanent residents from joining their families here.  It also harms industries in the United States that utilize talent from around the world.  And it harms individuals who were selected to receive the opportunity to apply for, and those who have likewise received, immigrant visas through the Fiscal Year 2020 Diversity Visa Lottery.  Proclamation 10014 has prevented these individuals from entering the United States, resulting, in some cases, in the delay and possible forfeiture of their opportunity to receive Fiscal Year 2020 diversity visas and to realize their dreams in the United States.
NOW, THEREFORE, I, JOSEPH R. BIDEN JR., President of the United States, by the authority vested in me by the Constitution and the laws of the United States of America, including sections 212(f) and 215(a) of the Immigration and Nationality Act, 8 U.S.C. 1182(f) and 1185(a), hereby find that the unrestricted entry into the United States of persons described in section 1 of Proclamation 10014 is not detrimental to the interests of the United States.  I therefore hereby proclaim the following:
Section 1.  Revocation.  Proclamation 10014, section 1 of Proclamation 10052, and section 1 of Proclamation 10131 are revoked.
Sec. 2.  Review of Agency Guidance.  The Secretary of State, the Secretary of Labor, and the Secretary of Homeland Security shall review any regulations, orders, guidance documents, policies, and any other similar agency actions developed pursuant to Proclamation 10014 and, as appropriate, issue revised guidance consistent with the policy set forth in this proclamation.
Sec. 3.  General Provisions.  (a)  Nothing in this proclamation shall be construed to impair or otherwise affect:
(i)   the authority granted by law to an executive department or agency, or the head thereof; or
(ii)  the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b)  This proclamation shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c)  This proclamation is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
IN WITNESS WHEREOF, I have hereunto set my hand this twenty-fourth day of February, in the year of our Lord two thousand twenty-one, and of the Independence of the United States of America the two hundred and forty-fifth

JOSEPH R. BIDEN JR.