A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Wednesday, July 19, 2017

All Rejected H-1B CAP Cases Returned by USCIS

USCIS announced that as of July 19, 2017, all H-1B CAP cases for FY2018 that were not selected in the computerized random selection process have been returned to the applicants and employers. Applicants may contact USCIS National Customer Service Center (1-800-375-5283) for assistance, if they submitted an H-1B cap-subject petition between April 3 and April 7, 2017 but have not received a receipt notice or a returned petition by July 31.

Tuesday, July 18, 2017

Who are Studying in the United States?

Despite the recent stringent immigration policy the world hears about the United States, America continues to a magnet for foreign students.   According to a recent study, there are about 1.18 million foreign students actively studying in the United States in May of 2017, representing a two-percent increase from the previous year.  

According to SEVP (The Student and Exchange Visitor Program), a system maintained by the U.S. Immigration and Customs Enforcement (ICE), as of May 5, 2017, there are 1,184,735 active F and M visa students studying in the U.S. in 8,774 SEVP-Certified schools; and 194,635 J-1 exchange visitors in the U.S.

Most F and M students enroll in higher education system such as colleges and universities.  Of all students, 76% enroll in bachelor's (33%),  master's (31%) or doctoral programs (12%).  As far as gender is concerned, 57% of the international students are male.

International students come from more than 231 countries and territories of the world.  Asia still sent the largest number of students (77% or 915,612) to the U.S. but South America has the largest percentage growth.  

China and India sent the most students to the United States, i.e., 362,368 and 206,698 respectively. Nepal had the highest growth rate of 18% in the number of students while Saudi Arabia's number declined 19%.  

Business is the most popular field of study among international students: 18% of students study business, management, marketing or a related field.  STEM (science, technology, engineering and mathematics) studies are also very popular, attracting more than 43% of students.   Specifically, 39% of STEM students study engineering, 28% study computer and information sciences; and 8% biological and biomedical sciences.   

STEM degrees are particularly popular among Asian students; 49% Asian students are pursuing a STEM degree in America.  There are 173,258 India students who are pursuing STEM degrees in the U.S., the largest in both numbers and proportion.  China takes the number two spot, sending 152,002 STEM students to America.  

International students can only attend SEVP-certified schools in the United States.  Although larger universities tend to have the largest  number of foreign students, 76% of SEVP schools enroll 50 students or less.  According the studies, fewer than 1% of SEVP-certified schools host more than 5,000 international students, and only 5% of the certified schools enroll more than 5% of students.  



Friday, July 14, 2017

August 2017 Visa Bulletin: EB-2 Cutoff for All Countries; EB-3 India Advances 5 Months



In the August Visa Bulletin, EB-2 is no longer current for Mexico, Philippines and Other Countries.
These visa categories all retrogress to April 1, 2015.  This development was predicted previously by the State Department.

Since these categories will remain current before 08/01/2017, eligible applicants should submit their I-485 applications to adjust status immediately.

On the other hand, EB-3 India moves forward by 5 months to July 15, 2005.  There are no movements for EB-2 India and EB-3 China.

Family immigration categories have some moderate forward movements.  Please see the charts below for more information.

AD: Dates for Final Action (Approval)
FD : Dates for Filing Applications
      Family
Other Coountries
      China
India
Mexico
Philippines
F1
AD
12/22/2010
12/22/2010
12/22/2010
02/01/1996
10/15/2006
FD
07/22/2011
07/22/2011
07/22/2011
04/01/1996
09/08/2007
F2A
AD
09/22/2015
09/22/2015
09/22/2015
09/01/2015
09/22/2015
FD
04/08/2016
04/08/2016
04/08/2016
04/08/2016
04/08/2016
F2B
AD
11/01/2010
11/01/2010
11/01/2010
07/01/1996
12/08/2006
FD
09/1/2011
09/01/2011
09/01/2011
08/08/1996
07/22/2007
F3
AD
07/08/2005
07/08/2005
07/08/2005
04/08/1995
01/22/1995
FD
12/01/2005
12/01/2005
12/01/2005
05/01/1995
02/01/1995
F4
AD
05/08/2004
05/08/2004
09/22/2003
09/15/1997
04/08/1994
FD
11/15/2004
11/15/2004
06/22/2004
01/08/1998
02/08/1995
1st: Unmarried Sons and Daughters of Citizens (about 23,000 per year).
2A: The 2 "A" preference is for Spouses and Children (under 21 & unmarried) of LPR's.
2B: The 2 "B" Preference is for Unmarried Sons and Daughters (21 or older) of LPR's.
3rd: Married Sons and Daughters of Citizens.(about 23,000 per year)
4th: Brothers and Sisters of Adult Citizens.(about 65,000 per year)

Employment
Other Counties
China

El Salvador
Guatemala
Honduras
India
Mexico
Philippines
EB1
AD
C
01/01/2012
C
01/01/2012
C
C
FD
C
C
N/A
C
C
C
EB2
AD
04/01/2015
04/22/2013
04/01/2015
07/22/2008
04/01/2015
04/01/2015
FD
C
10/01/2013
N/A
02/01/2009
C
C
EB3
AD
C
01/01/2012
C
07/15/2006
C
06/01/2015
FD
C
09/01/2015
N/A
01/01/2007
C
01/01/2016
Other Workers
AD
C
01/01/2004
C
07/15/2006
C
06/01/2015
FD
C
06/01/2008
N/A
01/01/2007
C
01/01/2016
EB4
AD
C
C
09/15/2015
09/15/2015
09/15/2015
C
FD
C
C
N/A
C
C
C
EB5
AD
C
06/15/2014
C
C
C
C
FD
C
09/01/2014
N/A
C
C
C
1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers,outstanding prof./researchers)
2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.
3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)
4th: "Special Immigrants" (Religious & others)
5th: Employment Creation (Investors)


Wednesday, June 28, 2017

Travel Ban Takes Effect on June 29, 2017!


By now most people should have heard about the U.S. Supreme Court's partial lifting of the injunction against the Trump's Administration's travel and refugee ban against nationals of six designated countries - Syria, Iran, Libya, Somalia, Sudan, and Yemen.  The ban shall be effective 72 hours after the injunction has been lifted, which should be Thursday, June 29, 2017.

Is everybody from these countries banned from entering America? According to the Supreme Court, the travel and refugee bans "may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.”   In reality what does it mean?


Visitors Who Should be Allowed to Enter

Based on the Supreme Court decision and also previous memoranda of the Trump Administration, the following individuals should be allowed enter the U.S. under the travel ban: 
  • Lawful permanent residents (green card holders)
  • Individuals already granted asylum or refugee status
  • Individuals protected by Convention against Torture
  • Advance parole holders
  • Diplomas and dual nationals
  • Business visa holders (H, L, E, O P, Q, R)
  • Employment based immigrant visa holders
  • Individuals with family relationship in the U.S.
  • Student visa holders (F, M, J)
  • B-1 visa holders with a bona fide relationship with U.S. entity
  • B-2 visa holders with U.S. family connection


Individuals Who Will Likely be Excluded

Based on the U.S. Supreme Court ruling, certain groups of individuals will be barred from entering the U.S. for at least 90 days. as they would not be able to establish a bona fide relationship with a person or entity in America:
  • Refugees without family connection or a relationship with a refugee resettlement agency
  • B-1 visa holders without a formal, documented relationship with a U.S. entity (e.g., somebody coming here for a short course or training, or for meetings with potential customers)
  • B-2 visa holders without close family relationship (The Supreme Court decision used spouse and mother-in-law as examples of bona fide family relationship. Hence, individuals with more distant family relationships such as uncles, aunts, cousins, etc., will likely be banned).
  • Employment visa holders without sponsorship of a U.S. entity (Some EB visas such as EB-1A extraordinary ability aliens and National Interview Waiver recipients do not require sponsorship of a U.S. entity.  Hence, although not very likely, they could also be excluded). 


If in doubt, visitors from these countries should consult with an experienced immigration lawyer before attempting to make an entry into the U.S. 

Persons who are banned from entry should not attempt to create a "bona fide" relationship with a U.S. entity to meet the legal standard for entry, as such actions will likely backfire.  The Customs and Border Patrol (CBP) officers will require evidence of an established, long-term, and formal relationship rather than makeshift documents created to get around the travel ban.  Travelers are especially warned not to use any fake or fraudulent documents.  

Looking ahead, although the Supreme Court has scheduled the related cases for oral arguments in October to determine the constitutionality of these travel bans.  These legal issues will likely be moot by then as the travel ban will only be implemented for 90 days.  There are also other tools that the Supreme Court can use to avoid making a decisions on the merits of these cases.  Consequently, it is not likely that we will get any landmark constitutional law decision in the fall.  

(AILA Doc. No. 17012670)

Monday, June 26, 2017

False Statements Need to be Material to Support Denaturalization

Mrs. Maslenmjak made incorrect statements when she applied for political asylum in the United States. Her application was approved and she eventually became a naturalized U.S. citizen.  Years later, based on these incorrect statements, the U.S. government initiated legal actions to "de-naturalize"  her.  In her defense, Mrs. Maslemjak argued that she can be denaturalized only if her false statements had made a difference in the government's decision to grant her refugee status. The United States Supreme Court agreed. 

In 1998, Mrs. Maslenjak and her husband, both ethnic Serbian, lived in Bosnia during the war between Bosnia and Serbia. She successfully applied for asylum based on her family's fear of persecution. In her application, she stated that her husband had failed to serve in the Bosnian Serb army.  Based on the approval of her asylum application, she became a permanent resident of the United States.  Subsequently, DHS discovered that her husband did serve in the Bosnian Serb army and prosecuted him for making false statements. Mrs. Maslenjak applied for naturalization immediately and was granted citizenship.  She testified in her husband's court hearings and admitted that she lied when she said that her husband did not serve in the Bosnian Serb army. 

The U.S. Government prosecuted Mrs. Maslenjak for making these false statements and also stripped her citizenship.  She appealed to the Sixth Court of Appeals, arguing that she should be allowed to keep her citizenship since the untruthful statements that she made were immaterial to her asylum claim - which was based on fear of persecution by Bosnian Muslims.  The Sixth Circuit affirmed the lower court's decision, by holding that any false statements are sufficient to support denaturalization pursuant to 18 USC §1425(a), the relevant Federal statute. 
Undaunted, Mrs. Maslenik appealed to the United States Supreme Court, which sided with her.

By using the most natural way of understanding the statue, the Supreme Court held that in order to use any false statements by application for denaturalization, they must be material and have somehow contributed to the approval of citizenship.   In other words, there must be a direct causal relationship between the false statements and the eventual award of citizenship in order to strip away somebody's citizenship under §1425(a).  And whether or not there is such as causal link should be decided by the jury.  

Here, during the trial of Mrs. Maslenik, the jury instructions did not specify that her false statements must have been material and contributed to the outcome of her asylum application.  Consequently, the Supreme Court vacated the Sixth Circuit decision and remanded the case to the lower court to provide proper instructions to the jury. 

The Supreme Court decision applied a balancing test between the need to prosecute false statements and the rights of naturalized citizens.  To protect the rights of naturalized citizens, denaturalization should be based on some very strong reasons but not just any illegal conduct during the naturalization process.  It should be noted that Mrs. Maslenik might still lose her citizenship at the end.  A jury could conclude that her asylum application was granted partially based on her false testimony that her husband did not serve in the military as required,  If so, her false statements were material in the asylum decision and, according to the U.S. Supreme Court decision, she would be stripped of her citizenship.