Author Archives: Norka M Schell

H-2B Cap for Second Half of FY 2023 Has Been Reached

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As per the U.S. Citizenship and Immigration Services (USCIS) announcement on March 2, 2023. See below.

H-2B Cap for the Second Half of FY 2023

USCIS has received enough petitions to meet the congressionally mandated H-2B cap for the second half of FY 2023. Feb. 27, 2023, was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date on or after Apr. 1, 2023, and before Oct. 1, 2023. We will reject new cap-subject H-2B petitions received after Feb. 27, 2023, that request an employment start date on or after Apr. 1, 2023, and before Oct. 1, 2023.

On Feb. 27, 2023, the number of beneficiaries for whom USCIS received petitions surpassed the total number of remaining H-2B visas available for the H-2B cap for the second half of FY 2023. In accordance with regulations, we determined it was necessary to use a computer-generated selection process intended to ensure the fair and orderly allocation of H-2B visa cap numbers available, without exceeding the FY 2023 cap. On March 1, 2023, we conducted the selection process to randomly select petitions from those received on Feb. 27, 2023. Upon completion of this random selection process, we assigned all selected petitions a receipt date and began premium processing services.

We continue 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 wish to extend their stay and, if applicable, change the terms of their employment or change their employers;
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 (until Dec. 31, 2029).
Filing Dates for Second Half of FY 2023 Supplemental Visas

The Department of Homeland Security (DHS) and the Department of Labor (DOL) jointly published a temporary final rule on Dec. 15, 2022, increasing the numerical limit (or cap) on H-2B nonimmigrant visas by up to 64,716 additional visas for all of FY 2023. These supplemental visas are available only to U.S. businesses that are suffering irreparable harm or will suffer impending irreparable harm without the ability to employ all the H-2B workers requested in their petition, as attested by the employer on the DOL Form ETA 9142-B-CAA-7 (PDF). These supplemental H-2B visas are for U.S. employers seeking to petition for additional workers at certain periods of the fiscal year before Sept. 15, 2023. See www.uscis.com

USCIS Releases New Strategic Plan Highlighting Long-Term Goals

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U.S. Citizenship and Immigration Services (USCIS) released its FY 2023-2026 Strategic Plan, which provides a roadmap for the agency’s workforce to better strengthen its capabilities and help the country reach its highest ideals. The plan is grounded in USCIS’ longstanding purpose and core values in support of a meaningful commitment to make the United States a stronger, more inclusive, and welcoming nation…

The strategic plan highlights three long-term goals focused on increasing access to the nation’s immigration system; promoting and improving the naturalization process; attracting, recruiting, developing, and retaining an effective USCIS workforce; creating a culture of diversity, equity, inclusion, and accessibility; ensuring fiscal solvency; and continuing modernization efforts that introduce additional online filing options.

Goal 1 – Strengthen the U.S. Immigration System: Ensure that immigration policies, regulations, strategies, processes, and communications support a strong immigration system with integrity that promotes integration, inclusion, and citizenship.

Goal 2 – Invest in Our Workforce: Attract, recruit, train, and retain a diverse, flexible, and resilient workforce that drives high-quality organizational performance and is representative of who we are as a nation.

Goal 3 – Promote Effective and Efficient Management and Stewardship: Enhance organizational capability for efficient and effective use, management, and sharing of resources entrusted to the agency, and to evaluate and balance competing demands and priorities to serve the agency’s mission….

For more information on the 2023-2026 Strategic Plan, visit https://www.uscis.gov/newsroom/news-releases/uscis-releases-new-strategic-plan-highlighting-long-term-goals

USCIS IS EXTENDING THE VALIDITY OF PERMANENT RESIDENT CARDS FOR 48 MONTHS

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BREAK NEWS

USCIS is extending the validity of Permanent Resident Cards (also known as Green Cards) for petitioners who properly file Form I-751, Petition to Remove Conditions on Residence or Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status for 48 months beyond the card’s expiration date. This change started on January 11, 2023, for Form I-829 and will start on January 25, 2023, for Form I-751.

We are making this change to accommodate current processing times for Form I-751 and Form I-829, which have increased over the past year.

USCIS has updated the language on Form I-751 and Form I-829 receipt notices to extend the validity of a Green Card for 48 months for individuals with a newly filed Form I-751 or Form I-829. We will issue new receipt notices to eligible conditional permanent residents who previously received notices with an extension shorter than 48 months and whose cases are still pending. These receipt notices can be presented with an expired Green Card as evidence of continued status, while the case remains pending with USCIS. By presenting your updated receipt notice with your expired Green Card, you remain authorized to work and travel for 48 months from the expiration date on the front of your expired Green Card.

As a reminder, conditional permanent residents who plan to be outside of the United States for a year or more should apply for a reentry permit by filing Form I-131, Application for Travel Document, before leaving the United States. For more information, see our International Travel as a Permanent Resident webpage.

MATRIMONIAL FRAUD AND ITS CONSEQUENCES

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“Marriage fraud,” that is to enter into or endeavor to enter into a marriage for the sole purpose of procuring immigration benefits, is a very serious charge in the immigration context.

Attempting to procure or procuring immigration benefits through a sham marriage can lead to inadmissibility and/or deportation, depending on the alien’s situation.

In the case of Salas-Velazquez, the Petitioner who was a native and citizen of Mexico entered the United States as a visitor for pleasure. He purported to marry a citizen of the United States, and, on the basis of that alleged marriage, filed a petition to adjust his status to that of a permanent resident alien. That petition was denied in 1989 on the ground that the marriage was fraudulent, entered into for the purpose of evading the immigration laws. Almost two years later, in 1991, the Immigration and Naturalization Service served petitioner with an order to show cause, charging him with deportability.

A hearing was held before an immigration judge, during which petitioner made a motion for adjustment of status based on a second marriage, also to a United States citizen. There was no dispute as to the genuineness of the second marriage. The immigration judge denied this motion. Later, the judge found that petitioner’s first marriage was fraudulent, that petitioner and his first wife never lived together, and that petitioner contracted the marriage for the purpose of immigrating to the United States. On the basis of this evidence, the judge sustained the charges of deportability. Salas-Velazquez v. INS. 34 F. 3d 705 – Court of Appeals. 8th Circuit 1994.

Beside of the severity immigration consequences, a person who enters into a marriage for the purpose of evading any provision of the INA can be prosecuted and if convicted, faces term of imprisonment for up to five years, a fine of up to $250,000.00, or both imprisonment and a fine. See 8 U.S.C. § 1325(c).

Biden Administration and Immigration in 2022

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CNN — How many times has the Biden White House had an unresolved conflict between idealism and pragmatism on the issue of immigration? How many times has it hesitated to take action, opting instead for political messaging? The sad answer to both questions is: every time.

Most of the officials appointed by President Joe Biden to work on immigration have resigned in frustration, according to a bombshell report from The New York Times in April. “The White House has been divided by furious debates over how – and whether – to proceed in the face of a surge of migrants crossing the southwest border,” the report said.

Some wanted more openness to immigrants of all kinds. Others wanted a coherent set of rules to be applied to the millions of people at the border. And some others wanted a compromise with Republicans to create a new merit-based, green-card system. They all got nothing.

A new report from the Department of Homeland Security for August confirmed over 2 million border apprehensions and expulsions this year so far. Previously, the United States only experienced more than 1 1/2 million apprehensions a few times in its history: during the late 1990s and then in 2021. At the current pace, that record could be doubled by the end of this year. And next year, if no policies change, it could double again…

Open border chaos increases human trafficking and drug trafficking. It turns what should be a foreign policy strength into a national security weakness.

When we ponder what Biden should do to address the immigration mess at the border, the honest answer is: something, anything. Because the status quo of playing politics while seemingly ignoring policy is not only politically divisive, but it’s also missing a golden opportunity.

Biden should take advantage of his moment in history to boldly reform American refugee policy. He could, at the stroke of a pen, redefine how many refugees are allowed into the United States by taking advantage of the distinction our laws make between those granted temporary protection and those awarded permanent residency.

Editor’s Note: Tim Kane is the president of the American Lyceum and a visiting fellow at the Hoover Institution. His most recent book is “The Immigrant Superpower.” The views expressed in this commentary are his own. View more opinion on CNN.https://www.cnn.com/2022/10/05/opinions/immigration-policy-biden-administration-kane/index.html

Vistos de Viagem

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Um cidadão de um país estrangeiro que deseja viajar para os Estados Unidos geralmente deve primeiro obter um visto para Estados Unidos. O visto é obtido no Consulado Americano ou na Embaixada America. Para obter um visto o candidato deverá preencher a aplicação do visto desejado.

O processo de solicitação de um visto varia dependendo da Embaixada ou Consulado dos Estados Unidos onde o candidato estiver. Siga as instruções específicas para o país em que você está.

Em geral, você precisará de:

1. Para preencher o formulário on-line
2. Uma foto
3. O pagar a taxa de solicitação de visto
4. Para agendar uma entrevista

Certos estrangeiros podem ser elegíveis para viajar para os Estados Unidos sem visto se atenderem aos requisitos para viagens sem visto.
Para mais informações sobre visto visite www.travel.state.gov

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Travelers can apply for travel authorization and enroll in the Electronic System for Travel Authorization, known as ESTA Program before they enter the United States.

This allows them to stay for 90 days or less without the need for a visa.
Whether you are planning a vacation or a short business trip, if you are not a U.S. Citizen or a Permanent Resident, then you will generally need to apply for a visa to enter and legally stay in the United States.

If you are only hoping to see a few sites, visit some friends, or go to a business conference, however, there is a good news, you may be able to enter through the Visa Waiver Program, or VWP.

Let’s look at possible reasons to travel under the “Visa Waiver Program.”
You can enroll in the Visa Waiver Program if you are planning to transit through the United States to another country.

Other activities you can do through the Visa Waiver Program include:
TOURISM ACTIVITIES such as a vacation, visiting friends or relatives, medical treatment, social events, participation in musical or sports events, if you are not being paid to participate and enrolling in a short recreational course, for example, a cooking class.

BUSINESS ACTIVITIES such as consulting with business associates, attending a scientific, educational or professional conference, short-term training where you are not paid by a U.S.-based source, negotiating a contract.

Entering the United States through the Visa Waiver Program does not authorize you to work or study if you decide to stay long term.

If you want to enter the United States through the Visa Waiver Program, you must meet all the following requirements to be eligible:

1. You are a citizen of a Visa Waiver Country;
2. You are applying to stay in the United States for 90 days or less;
3. You are traveling to the United States for business or tourism
purposes;
4. You will also need an e-passport to participate in the VWP.
*An e-passport has an electronic chip embedded in it that give your
document extra security.

Before you travel to the United States, you must enroll in the Electronic System for Travel Authorization (ESTA) Program. You can do this online through a secure website run by the Department of Homeland Security and CBP.

To apply you will need a valid passport from a Visa Waiver Program Country, a valid e-mail address, your home address and your telephone number; the phone number and e-mail of an emergency contact, you can pay for your ESTA online with your credit card or Paypal.If you have a Global Entry ID number or a point of contact in the United States, you have to enter that information too.

You can apply for ESTA as soon as you know you have plans to come to the United States.

The ESTA is valid for 2 years, or until your passport expires whichever comes first. You can use for multiple trips.

DHS Announces New Migration Enforcement Process for Venezuelans

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Venezuelans who seek to enter the U.S. illegally will be returned to Mexico; New lawful pathway created for some Venezuelans.

As part of the Biden-Harris Administration’s ongoing work to build a fair, orderly, and secure immigration system, the Department of Homeland Security (DHS) announced joint actions with Mexico to reduce the number of people arriving at our Southwest border and create a more orderly and safe process for people fleeing the humanitarian and economic crisis in Venezuela.

The United States and Mexico intend to address the most acute irregular migration and help ease pressure on the cities and states receiving these individuals.

Effective immediately, Venezuelans who enter the United States between ports of entry, without authorization, will be returned to Mexico. At the same time, the United States and Mexico are reinforcing their coordinated enforcement operations to target human smuggling organizations and bring them to justice. That campaign will include new migration checkpoints, additional resources and personnel, joint targeting of human smuggling organizations, and expanded information sharing related to transit nodes, hotels, stash houses, and staging locations. The United States is also planning to offer additional security assistance to support regional partners to address the migration challenges in the Darién Gap.

To reduce the irregular migration of Venezuelans also includes a new process to lawfully and safely bring up to 24,000 qualifying Venezuelans into the United States. The United States will not implement this process without Mexico keeping in place its independent but parallel effort to accept the return of Venezuelan nationals who bypass this process and attempt to enter irregularly.

“These actions make clear that there is a lawful and orderly way for Venezuelans to enter the United States, and lawful entry is the only way,” said Secretary of Homeland Security Alejandro N. Mayorkas. “Those who attempt to cross the southern border of the United States illegally will be returned to Mexico and will be ineligible for this process in the future. Those who follow the lawful process will have the opportunity to travel safely to the United States and become eligible to work here.” https://www.dhs.gov/news/2022/10/12/dhs-announces-new-migration-enforcement-process-venezuelans

The Current State Of The DACA Program

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On Oct. 5, the U.S. Court of Appeals for the Fifth Circuit issued a decision on the 2012 Deferred Action for Child Arrivals (DACA) policy. The court partially affirmed the district court’s July 2021 decision declaring the 2012 DACA policy unlawful. However, the court of appeals preserved the partial stay issued by the district court in July 2021 and remanded the case back to the district court for further proceedings regarding the new DHS DACA regulation published on Aug. 30, 2022 and scheduled to go into effect on Oct. 31, 2022.

At this time, this ruling does not affect current grants of DACA and related Employment Authorization Documents. Consistent with the court’s order [PDF] (PDF) and the ongoing partial stay, we will continue to accept and process renewal DACA requests, accompanying requests for employment authorization, and applications for advance parole for current DACA recipients, and will continue to accept but not process initial DACA requests.

The Department of Homeland Security (DHS) today announced the Deferred Action for Childhood Arrivals (DACA) final rule, which has been posted for public inspection on the Federal Register’s website. The final rule generally codifies existing policies with limited amendments to preserve and fortify DACA. The final rule is effective Oct. 31, 2022.

DHS and DOJ Issue Interim Final Rule on Credible Fear Screenings and Consideration of Asylum Claims by USCIS Officers

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Elizabeth Carlson,

Joanna Mexicano Furmansk

Last Updated

April 21, 2022

Topics

Asylum and Refugee Law
Removal Proceedings

The Department of Homeland Security (DHS) and the Department of Justice (DOJ) have jointly issued an interim final rule to revise the processing of certain applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The timing of this rule coincides with the end of Title 42, a legal procedure used to expel hundreds of thousands of asylum seekers from the United States without a hearing or due process. Title 42 of the U.S. Code, section 265, was used under both the Trump and Biden administrations to prohibit the entry of individuals into the United States based on the COVID-19 pandemic. This section allows the Director of the Centers for Disease Control and Prevention to prohibit the entry of individuals if they present a danger of introduction of a communicable disease.

The Biden administration has announced that Title 42 will end on May 23, 2022. The goal of the new regulations is to speed up the asylum process in response to the expected increase in individuals who will seek asylum in the United States with the intention of completing the asylum process within six months.

The notable regulatory changes in the interim final rule include authorizing asylum officers within U.S. Citizenship and Immigration Services (USCIS) to adjudicate the asylum claims of individuals who receive a positive credible fear determination after being placed into expedited removal. Following a positive credible fear interview (CFI) the applicant will be provided an Asylum Merits interview in which USCIS will decide whether to grant asylum and, if necessary, determine the applicant’s eligibility for withholding of removal or protection under the CAT. Prior to this rule, those cases were decided only by immigration judges within the DOJ’s Executive Office for Immigration Review (EOIR). USCIS will issue a Notice to Appear (NTA) to any noncitizen not granted asylum by USCIS after an Asylum Merits interview. The proceedings before the Immigration Judge are to be concluded pursuant to a “streamlined” processing timeline.

Summary of the Proposed Amendment to the Asylum Regulations for Individuals Subject to Expedited Removal Who Have a Credible Fear of Persecution or Torture

The interim final rule, once it goes into effect on May 31, 2022, will make the following changes to the asylum regulations:

  1. DHS and DOJ will generally return to the regulatory framework governing the credible fear screening process in place before the Trump administration’s various proposed regulatory changes that would have heightened the screening standard. Specifically, the proposed regulations will return to the intentionally low “significant possibility” screening standard in place prior to the Trump’s administration’s attempt to heighten the screening standard. The regulations also return to the historical practice of not applying the mandatory bars to asylum at the credible fear screening stage.
  2. The regulations amend the definition of “asylum application” to provide that a written record of a positive credible fear interview satisfies the asylum filing requirements for all purposes, including the one-year filing deadline and eligibility for employment authorization.
  3. The regulations also create a new Asylum Merits interview process for those who receive a positive credible fear determination. Those individuals who receive such a determination will be scheduled for an Asylum Merits interview for USCIS to consider their asylum application in the first instance.
  4. For those individuals not granted asylum by USCIS during the Asylum Merits interview process, the regulations create a new process for such asylum cases to be referred to EOIR and proceed on an accelerated timeline. There are strict rules about the timing of the commencement of proceedings, service of documents, scheduling of hearings, and granting extensions and adjournments. There are additional rules regarding the form of the asylum application, the consideration of evidence and testimony, and the weight of the USCIS determination on an individual’s withholding or CAT applications, all intended to fast-track the process.
  5. Finally, the new regulations specify that parole under INA § 212(d)(5) is the only avenue for release from detention pending the Asylum Merits interview and subsequent removal proceedings. The regulations also provide that this parole cannot serve as an independent basis for employment authorization.

https://cliniclegal.org/resources/asylum-and-refugee-law/dhs-and-doj-issue-interim-final-rule-credible-fear-screenings-and