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Immigration Law

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

EOIR Releases Information Regarding Mandatory Attorney Registration 

On April 11, the Executive Office for Immigration Review released instructions and a series of frequently asked questions regarding its new mandatory electronic registry for attorneys and accredited representatives. The instructions are reproduced below at Appendix A and the FAQs at Appendix B.

Although no deadline has yet been set, soon representatives will have to register with EOIR in order to practice before immigration courts and the Board of Immigration Appeals. After creating an online profile with biographical information, representatives will have to appear in person at an EOIR location to complete the registration process. Once registered, representatives will receive an EOIR ID number and will be able to file Forms EOIR-27 and EOIR-28 electronically.

According to the agency, representatives with pending cases who fail to register with EOIR may be administratively suspended pending completion of the registration process. Attorneys who repeatedly attempt to appear before EOIR without registering may face disciplinary sanctions. Immigration judges may allow unregistered attorneys to appear before them on a one-time basis under "rare and extraordinary" circumstances.

According to EOIR, the electronic registry is the first step in creating an electronic case-filing system. Please refer to 18 Bender's Immigr. Bull. 421, 465 (App. A) (Apr. 15, 2013) concerning the final rule implementing the e-registry system, and the notice and comment period that runs until the end of May.

H-IB Round Up

H-1B Cap Met in Record Time. At 3:03 Eastern Daylight Time on April 8, 2013 USCIS sent the following bulletin to e-mail subscribers: "For the first time since 2008, U.S. Citizenship and Immigration Services (USCIS) has reached the statutory H-1B cap of 65,000 for fiscal year (FY) 2014 within the first week of the filing period. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption."

Lottery. Having received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced-degree exemption, USCIS used a lottery to select a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced-degree exemption. The agency conducted the selection process for advanced-degree exemption petitions first. All advanced degree petitions not selected were part of the random selection process for the 65,000 limit.

A cap-subject petition that was not randomly selected in the lottery will be rejected and returned with filing fees, unless it is found to be a duplicate filing.

Premium Processing. As previously announced, USCIS has temporarily adjusted its premium processing practice. 18 Bender's Immigr. Bull. 343 (Apr. 1, 2013). To facilitate the prioritized data entry of cap-subject petitions requesting premium processing, USCIS delayed premium processing for H-1B cap cases until April 15, 2013.

Cap Exempt Processing. USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally-mandated FY 2014 H-1B cap. Accordingly, USCIS will continue to accept and process petitions filed to:

  • extend the amount of time a current H-1B worker may remain in the U.S.;
  • change the terms of employment for current H-1B workers;
  • allow current H-1B workers to change employers; and
  • allow current H-1B workers to work concurrently in a second H-1B position.

Future Increase in Statutory Cap? Senate Bill 744, the "Border Security, Economic Opportunity, and Immigration Modernization Act," unveiled by the "Gang of Eight" (Charles Schumer (D-NY); Michael Bennet (D-CO); Richard Durbin (D-IL); Jeff Flake (R-AZ); Lindsey Graham (R-SC); John McCain (R-AZ); Robert Menendez (D-NJ); Marco Rubio (R-FL)) on April 16, 2013, would raise the cap to 180,000, depending on market demand and unemployment rates. The bill was referred to the Judiciary Committee on April 16. 

TPS Extended for Honduras, Nicaragua

On April 3, DHS Secretary Janet Napolitano extended the designation of Honduras and Nicaragua for Temporary Protected Status through January 5, 2014. The notices of the extension are summarized in the Government Documents section of this issue and are reprinted at Appendix C (Honduras) and Appendix D (Nicaragua).

Both countries were originally designated for TPS on January 5, 1999, due to damage resulting from Hurricane Mitch. The most recent period of designation was scheduled to expire on July 5, 2013, but was extended after Secretary Napolitano considered continuing disruptions of living conditions and both countries' inability to adequately accommodate the return of their nationals.

The re-registration period for nationals of both countries who have previously been granted TPS runs through June 3, 2013. The validity of employment authorization documents issued to Honduran and Nicaraguan nationals with TPS has also been automatically extended for six months through January 5, 2014.

Bender's Immigration Bulletin

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

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