Immigration Officers Have Discretion When Deciding Green Card Cases
Did you know: Even if you prove that you meet all general legal requirements for eligibility for a green card, the immigration officer deciding your case still has discretion to deny it?
Did you know: Even if you prove that you meet all general legal requirements for eligibility for a green card, the immigration officer deciding your case still has discretion to deny it?
This is a surprise to many green card applicants. And in the San Jose and San Francisco Bay Area where we practice, the use of discretion to deny a green card application has not been common practice thus far. However, recently United States CItizenship and Immigration Services (USCIS) updated their Policy Manual and added consolidated guidance on the issue of discretion. We expect that this new guidance will prompt increased scrutiny and denials moving forward.
The USCIS Policy Manual now states that the adjudicating officer "should review the entire record and give appropriate weight to the negative and positive factors relative to the privileges, rights, and responsibilities of LPR [Lawful Permanent Resident] status. Once the officer has weighed each factor, the officer should consider all of the factors cumulatively to determine whether the positive factors outweigh the negative ones."
So what types of factors will the officer consider when evaluating your case? Some of the biggest factors are:
-Your family ties in the US
-Your history of education and employment in the US, and current US investment or property ownership
-Whether you have any type of criminal history, including arrests or citations (even if those would not otherwise bar you from receiving the green card)
-Whether you have ever violated US immigration laws (even if the conduct would not otherwise bar you from receiving the green card)
Because immigration officers are likely to focus more on these and other additional factors when deciding a green card case, green card approval is becoming more challenging.
How can Hurtubise Weber Law help? Our team has the knowledge and experience to support, guide, and represent you throughout the green card process, to give you the best chance of success. Contact us at theteam@huwelaw.com or 415-413-8760 to get help today!
TPS extended for El Salvador, Haiti, Honduras, Nepal, Nicaragua and Sudan
Some great news for anyone from El Salvador, Haiti, Honduras, Nepal, Nicaragua and Sudan holding Temporary Protected Status (TPS): USCIS has extended eligibility until October 4, 2021. This means that TPS holders from these countries will remain in status and may apply to extend employment authorization through that date.
Some great news for anyone from El Salvador, Haiti, Honduras, Nepal, Nicaragua and Sudan holding Temporary Protected Status (TPS): USCIS has extended eligibility until October 4, 2021. This means that TPS holders from these countries will remain in status and authorized to work through that date.
Is your TPS scheduled to expire on October 4th? You may have options to remain in the U.S. beyond that date. We specialize in Deferred Action for Childhood Arrivals (DACA) and adjustment of status (green cards) sponsored by family members and employers. Contact us today at 628-877-0197 or theteam@huwelaw.com to see if you may qualify for one of these benefits!
DOL Updates Wage Database After Judge Sets Aside Changes to H-1B Visa Program
We have good news for many businesses this week.
A US District Court in California struck down H-1b visa rules recently issued by the Department of Homeland Security and the Department of Labor (DOL).
We have good news for many businesses this week.
A US District Court in California struck down H-1b visa rules recently issued by the Department of Homeland Security and the Department of Labor (DOL). The new rules resulted in unreasonable new salary requirements for H-1b visas and Prevailing Wage Determinations (PWDs) for PERM. The DOL has just updated its wage database to comply with the court's ruling.
New Labor Condition Applications may not be submitted until December 9th. PWDs will not be processed until December 15th. PWDs issued between October 8th and December 1st, 2020, should be resubmitted.
For assistance with your H-1b visa or PERM needs, please contact us today at theteam@huwelaw.com or 415-496-9040
Can You Apply for a Green Card Next Month? Check the November Visa Bulletin!
Have you been “waiting in line” for a green card to become available in your preference category?
You can check the U.S. Department of State Visa Bulletin for November 2020 to see if your priority date will be current next month.
Have you been “waiting in line” for a green card to become available in your preference category?
You can check the U.S. Department of State Visa Bulletin for November 2020 to see if your priority date will be current next month.
Good news: The F2A category for the spouses and children of permanent residents will remain current. That means that the spouse or child of a U.S. permanent resident will remain eligible to file their application to adjust status in November.
To view the full Bulletin, please visit:
Need help interpreting the Bulletin and preparing and filing your green card application? Our firm is fully operational and here for you during this challenging time.
Contact us at theteam@huwelaw.com or 415-496-9040 today.
Trump's Sweeping H-1b Visa Regulatory Changes
The Trump Administration’s sweeping regulatory changes to the H-1B visa were published last week. Prevailing wage has increased across all occupations and locations; this increase took effect on October 8th. Barring a court injunction, the other changes will take effect on December 7th.
The Trump Administration’s sweeping regulatory changes to the H-1B visa were published last week. Prevailing wage has increased across all occupations and locations; this increase took effect on October 8th. Barring a court injunction, the other changes will take effect on December 7th.
Below are the additional key changes:
Specialty Occupation
The definition of a “specialty occupation” has been amended, and now states that there must be a direct relationship between the required degree field(s) and the duties of the position:
General degrees in engineering, liberal arts, business, etc. without further specialization or explanation are not sufficient to meet specialty occupation.
In cases where the petitioner lists degrees in multiple “disparate” fields of study as the minimum entry requirement for a position, the petitioner must establish how each field of study is in a specific specialty providing “a body of highly specialized knowledge” directly related to the duties and responsibilities of the particular position.
Where a position may allow a range of degrees, and apply multiple bodies of highly specialized knowledge, each of those qualifying degree fields must be directly related to the proffered position.
A bachelor’s degree in a specific specialty or its equivalent must be a minimum requirement for entry into the occupation in the United States by showing that the required degree is always:
The requirement for the occupation as a whole,
The occupational requirement within the relevant industry,
The petitioner’s particularized requirement, or
Because the position is so specialized, complex, or unique that it is necessarily required to perform the duties of the specific position.
Third-Party Worksites
The definition of “worksite” has been amended to “the physical location where the work is actually performed by the H-1B nonimmigrant.”
“Third-party worksite” has been defined as “a worksite, other than the beneficiary’s residence in the United States, that is not owned or leased, and not operated, by the petitioner.”
A 1-year maximum validity period has been set for all H-1B petitions in which the beneficiary will be working at a third-party worksite. This applies to all H-1B petitions where any identified worksite is a third-party worksite, not just the primary worksite.
Employer-Employee Relationship
The definition of “United States Employer” has been amended by:
Striking the word “contractor” from the definition of “United States employer." However, the deletion does not necessarily preclude a contractor from qualifying as a U.S. employer.
Inserting the word “company” in the general definition.
Expanding upon the existing requirements by requiring that an employer must engage the beneficiary to work within the United States and have a bona fide, non-speculative job offer for the beneficiary.
At the time of filing, the petitioner must establish that a bona fide job offer exists and that actual work will be available as of the requested start date.
"Employer-employee relationship” has been redefined as the “conventional master-servant relationship as understood by common-law agency doctrine.” USCIS will look at whether the employer actually exercises that right to control.
Petitioners filing third-party worksite petitions must submit evidence such as contracts, work orders, or other similar evidence (such as a detailed letter from an authorized official at the third-party worksite) to establish that the beneficiary will perform services in a specialty occupation and that the petitioner will have an employer-employee relationship with the beneficiary.
The Department of Homeland Security has announced that it expects approximately one-third of H-1b visa petitions to be denied under the new regulatory scheme.
Stay tuned for further updates!
Need assistance with an H-1b visa or employment-based green card? Contact us today at 415-413-8760 or theteam@huwelaw.com.
