Excerpts From the April 1, 2013, Bender's Immigration Bulletin

Excerpts From the April 1, 2013, Bender's Immigration Bulletin

H1-B Filings: USCIS Anticipates Use of Lottery; Temporary Modification of Premium Processing

U.S. Citizenship and Immigration Services announced on March 15, 2013, that it will begin accepting H-1B petitions subject to the FY 2014 cap on Monday, April 1, 2013. Cases will be considered accepted on the date that USCIS receives a properly filed petition for which the correct fee has been submitted, not the date that the petition is postmarked. While the cap remains at 65,000, the first 20,000 H-1B petitions filed on behalf of individuals with U.S. masters' degrees or higher are exempt from that cap.

Lottery. USCIS anticipates that it may receive more petitions than the H-1B cap covers between April 1 and April 5, 2013. Therefore, the agency will monitor the number of petitions received and notify the public of the date on which the numerical limit has been met, i.e., the final receipt date. If USCIS receives more petitions than it can accept, it will resort to the lottery system that it last used in 2008. Petitions will be randomly selected to reach the numerical limit. Petitions subject to the cap and not selected, as well as petitions received after USCIS has the necessary number of petitions needed to meet the cap, will be rejected.

Premium Processing Modification. H-1B cap cases can continue to request premium processing concurrently. However, USCIS has temporarily adjusted its current premium processing practice in anticipation of historic premium processing receipt levels and the possibility that the H-1B cap will be met early in the filing season. To facilitate the prioritized data entry of cap-subject petitions requesting premium processing, USCIS will begin premium processing for H-1B cap cases on April 15, 2013. Although premium processing will be unavailable between April 1 and April 14, USCIS will accept the I-907, Request for Premium Processing, with fee, concurrently with the I-129, Petition for Nonimmigrant Worker. Petitioners may also upgrade a pending H-1B cap petition to premium processing once a receipt notice is issued. While the Form I-797 receipt notice may indicate the date that the premium processing fee is received, the fifteen-day processing period set by 8 C.F.R §103.7(e)(2) will not begin until April 15, 2013. The processing period for premium processing service for H-1B petitions that are not subject to the cap, or for any other eligible classification, continues to begin on the date that the request is received.

H-1B 2014 Web Page. USCIS has established a web page dedicated to the FY2014 H-1B filing season at www.uscis.gov > Working in the United States > Temporary Workers > H-1B Specialty Occupations and Fashion Models > Related Links > H-1B Fiscal Year (FY) 2014 Cap Season. This page contains many helpful features, including a chart showing the number of 2014 cap-eligible petitions as against the cap amount and the date of the last count. In addition it contains many practical pointers for filing including where to mail the petition, how to mail multiple petitions together, evidence of educational background, other required documents, fees, organizing the H-1B package, and how to determine whether the H-1B cap applies.

Congress Reauthorizes the Violence Against Women Act

On March 7, 2013, President Obama signed S. 47, the Violence Against Women Reauthorization Act of 2013 (Pub. Law No.113-4, 127 Stat. 54), a bill reauthorizing the Violence Against Women Act (VAWA) of 1994.

Under one provision of the bill, unmarried children listed as derivative beneficiaries on petitions for U nonimmigrant status will continue to be classified as children for immigration purposes even if they turn twenty-one while the petition is pending (Section 805). The provision was intended to prevent beneficiaries from "aging out" while the petition is under consideration, a problem USCIS recently sought to address through its draft memorandum Eligibility for Employment Authorization upon Approval of a Violence Against Women Act (VAWA) Self-Petition; and Eligibility for Employment Authorization for Battered Spouses of Certain Nonimmigrants, available at 18 Bender's Immigr. Bull. 52 (Appendix E) (Jan.1, 2013).

The bill also adds two new offenses for which noncitizens may obtain U status if they cooperate in a resulting criminal investigation or prosecution: stalking (Section 801) and fraud in foreign labor contracting (Section 1222).

Importantly, the enacted version of the bill did not include amendments that would have: (a) retroactively made a third conviction for driving under the influence an "aggravated felony," (b) permitted immigration judges to consider evidence outside the record of conviction for certain crime-based grounds of removability, and (c) placed certain restrictions on VAWA self-petitions and noncitizens seeking U nonimmigrant status.

Obama Pardons Hawaii Woman for Immigration Offense

On March 1, 2013, President Obama issued a pardon to An Na Peng, a lawful permanent resident from China who was convicted of providing answers to immigrants completing naturalization examinations in the mid-1990s.

Peng was found guilty by a jury, received a noncustodial sentence of two months' probation, and was placed in removal proceedings following changes enacted in the Illegal Immigration Reform and Immigrant Responsibility Act, which made her deportable for committing a crime involving moral turpitude. The Board of Immigration Appeals prevented Peng from applying for a waiver under former §212(c) of the Immigration and Nationality Act, but its decision was reversed last year in Peng v. Holder, 673 F.3d 1248 (9th Cir. 2012).

Media reports indicated that Peng was granted §212(c) relief, but the presidential pardon wipes out her conviction altogether.

DHS Releases DACA-Related Documents

The Department of Homeland Security has released three documents relating to the Deferred Action for Childhood Arrivals (DACA) program: 

  • The National Standard Operating Procedures prepared by Service Center Operations Directorate, dated September 13, 2012;
  • A training module for immigration officers about DACA; and
  • A training module on responding to DACA-related requests through the Service Request Management Tool.

According to Shoba Sivaprasad Wadhia, Clinical Professor and Director, Penn State/Center for Immigrants Rights, who obtained the documents through a request under the Freedom of Information Act, the documents explain the meaning of terms such as "national security" and "exceptional circumstances," and shed light on the educational and travel criteria for DACA applicants. The documents also include information relating to cases that automatically receive supervisory review following an internal denial recommendation.

The documents are available at http:// w2.law.psu.edu/2013-HQFO-00305_Document.pdf.

College Presidents Call for Immigration Reform

On March 5, 2013, the presidents of Cornell University, Arizona State University, and Miami Dade College released an open letter asking for the support of fellow U.S. university and college presidents in seeking immigration reform.

"Our ability to educate and our ability to innovate are frustrated by US immigration law," the letter said, "particularly in the innovation-rich fields of Science, Technology, Engineering, and Math (STEM)." The letter estimated that by 2018 the United States would have only 550,000 workers to fill approximately 780,000 jobs requiring advanced STEM degrees.

The presidents announced their schools would host events on April 19 to raise awareness of the issue, and encouraged colleagues to hold events on their campus as well.

The letter was signed by David J. Skorton of Cornell, Michael M. Crow of Arizona State, and Eduardo J. Padrón of Miami Dade College.

USCIS Issues New Form I-9

On March 8, 2013, U.S. Citizenship and Immigration Services issued a new version of Form I-9, Employment Eligibility Verification. The new form is two pages instead of one. The first page contains data fields related to the employee, including new fields for a phone number, e-mail address, and foreign passport number. The second page includes fields to be completed by the employer. USCIS also issued revised instructions to accompany the new form. All employers must use the new form beginning May 7, 2013. The form and instructions are reprinted at Appendix A. The Federal Register notice is summarized in this issue's Government Documents section and is reprinted at Appendix B. In conjunction with the revised form, USCIS also updated the Handbook for Employers (M-274). The handbook is available at www.uscis.gov/ > Working in the United StatesInformation for Employers & Employees > Employer Information > Related Links > M-274, Handbook for Employers (rev. 01/05/11). Please note that while the link references the 01/05/11 version of the Handbook, it does link to the 03/08/2013 version, and presumably USCIS will correct the inaccurate reference shortly.

Provisional Waivers Begin; New Policy Memo on RFEs 

Pursuant to the final rule published at 77 Fed. Reg. 536 (Jan. 3, 2013), the provisional waiver process started up on March 4, 2013. New Form I-601A became publicly available on that date at www.uscis.gov/ > FORMS >I-601A. The new process is intended to shorten the time U.S. citizens are separated from their immediate relatives while those family members are obtaining visas to become lawful permanent residents of the United States.  Note that there is a USCIS web page dedicated to this process, located at www.uscis.gov/ > Family > Family of U.S. Citizens > Provisional Waiver.

The new provisional unlawful presence waiver process makes no change to the immigrant visa process. The applicant family member is still required to depart the United States for the immigrant visa interview with a U.S. consular officer abroad. If a provisional unlawful presence waiver is approved, it will take effect only after the applicant appears for the immigrant visa interview and a DOS consular officer determines that he or she is otherwise admissible to the United States and eligible to receive an immigrant visa. If the applicant fails to appear at the scheduled interview, DOS may cancel the process. If the applicant is in removal proceedings, he or she is ineligible for a provisional unlawful presence waiver unless, at the time of filing the Form I-601A, the proceedings are administratively closed and have not been put back on the EOIR calendar for continuance. In the event that the applicant ends up in removal proceedings, USCIS will follow current Department of Homeland Security and USCIS Notice to Appear guidance governing initiation of removal proceedings. See PM-602-0050, Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens (Nov. 7, 2011), available at www.uscis.gov/ > LAWS > Policy Memoranda > November 2011, and 16 Bender's Immigr. Bull. 1857 (App. F) (Dec. 1, 2011).

On March 1, USCIS issued a policy memorandum, PM-602-0081, Standard Timeframe for Applicants to Respond to Requests for Evidence Issued in Relation to a Request for a Provisional Unlawful Presence Waiver, Form I-601A. The memorandum sets thirty days as the amount of time USCIS officers may allow an applicant to respond to an RFE issued in relation to Form I-601A. It also amends previous interim RFE guidance by assigning a specific timeframe to RFEs issued during the Form I-601A adjudication. This memorandum is summarized in this issue's Government Documents and reprinted as Appendix C.

New Deputy Chief Immigration Judge

The Executive Office for Immigration Review announced in early March the appointment of Edward F. Kelly as the agency's second Deputy Chief Immigration Judge. Judge Kelly will oversee all programs in the Office of the Chief Immigration Judge, including the legal and language services and the chief clerk and executive officer. Judge Kelly, who had served as an Assistant Chief Immigration Judge since March 2011, will replace former DCIJ Michael C. McGoings, who became a member of the Senior Executive Service. Judge Kelly's appointment became effective March 10, 2013.

New IJs

In March, the EOIR announced the investiture of Craig A. Harlow and Sunita B. Mahtabfar as immigration judges. Judge Harlow most recently served as an assistant chief counsel for U.S. Immigration and Customs Enforcement in Dallas. Judge Mahtabfar most recently served as an attorney for U.S. Customs and Border Protection in El Paso. Judge Harlow will serve in the Pearsall Immigration Court, and Judge Mahtabhar will serve in the El Paso Service Processing Center.

Poverty Guidelines 

Form I-912P, HHS Poverty Guidelines for Fee Waiver Request, has been updated for 2013. These guidelines remain in effect from February 15, 2013, until new guidelines are issued in 2014. Form I-864P has not yet been updated.

 Bender's Immigration Bulletin

[This is an excerpt from the April 1, 2013, issue of Bender's Immigration Bulletin.] 

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