H-1B Visa Cap Still Unmet

The 2010 H-1B visa cap remains unfilled.  Each year, the U.S. government allocates 65,000 temporary employment visas for foreign-national workers engaging in “specialty occupations.”  Specialty occupations are jobs that require theoretical or technical expertise in a specialized field and a bachelor’s degree or its equivalent.  Examples include engineers, computer programmers, and accountants.

An additional 20,000 H-1B visas are made available to individuals with advanced degrees from U.S. institutions.  Employers may file new H-1B petitions on behalf of prospective foreign employees beginning on April 1st of each year.

When the U.S. Citizenship & Immigration Service (USCIS) receives more than 65,000 petitions, it conducts a lottery to fill the available slots.  Such was the case last year, when USCIS received approximately 163,000 petitions in the first five days of filing.  This year, however, the financial crisis has caused a spike in job loss and, as a consequence, fewer H-1B petitions.  As of June 12, 2009 (six weeks into the filing period), USCIS had received only 44,400 cap-subject H-1B petitions.

Thus, foreign-born workers capable of obtaining a specialty occupation should be aware of the continued availability of H-1B visas this year.

New passport office opens in Minneapolis

The Department of State opened a new passport office in downtown Minneapolis in May 2009.  The office will process passport applications for U.S. citizens with urgent or emergency travel needs.  Previously, Minnesotans had to apply through the passport office in Chicago to obtain an emergency passport.  The new office will benefit many Minnesotans, especially now that U.S. citizens need a passport to enter the U.S., even if traveling from Mexico or Canada.  The new passport office is located at 212 South Third Avenue in Minneapolis.

Attorney General restores foreign nationals’ right to effective assistance of counsel

Attorney General Eric Holder, on June 3, 2009, restored the right of foreign nationals to effective assistance of counsel in immigration court proceedings.  Mr. Holder vacated the order of previous Attorney General Michael Mukasey in the case Matter of Compean. Shortly before leaving office last January, Mr. Mukasey issued the order in Compean, severely limiting the ability of non-citizens to make claims of ineffective assistance of counsel in immigration court proceedings. Traditionally, an individual ordered deported has been able to attempt to have his immigration court case reopened by proving that errors committed by his attorney affected the outcome of his case.  In Compean, Mr. Mukasey concluded that there is no constitutional right to effective assistance of counsel in removal proceedings, and sought to reduce the ability of non-citizens to succeed with this argument.  In his June 3rd order, Mr. Holder restored the framework previously used for reopening immigration court cases based on claims of ineffective assistance of counsel.

Reuniting Families Act introduced in the Senate

On May 20, 2009, Senators Robert Menendez (D-NJ), Kirsten Gillibrand (D-NY), Charles Schumer (D-NY), and Edward Kennedy (D-MA) introduced the Reuniting Families Act (S-1085) in the U.S. Senate.  The proposed legislation would reclassify the spouses and children of permanent residents (green-card holders) as “immediate relatives.” This reclassification would provide these spouses and children with the opportunity to obtain permanent residence in a matter of months, rather than waiting several years, as they must do under the current system. In addition, the bill would recapture unused visa numbers from past years, thus reducing the waiting period for numerous visa applicants.  Of interest to foreign nationals who entered the U.S. unlawfully and subsequently married a U.S. citizen, the Act would eliminate the requirement that they secure a waiver before obtaining permanent residence.  Currently, most individuals in this situation must depart the United States and apply for a waiver in order to return as a permanent resident. The waiver requires a showing that their absence from the U.S. would cause extreme hardship to their U.S. citizen spouse.  This requirement deters many couples from initiating the green-card process because a denial of the waiver may cause the foreign spouse to remain outside the U.S. for a period of ten years.

Increased public support for legalization

A March 2009 Washington Post-ABC News poll revealed that a strong majority of the American public favors some form of legalization for those currently in the United States without lawful status.  61% of those polled favored such immigration reform, up from 48% just two years ago.

Secretary Napolitano announces new protection for widows

On June 9, 2009, Department of Homeland Security (DHS) Secretary Janet Napolitano announced a temporary reprieve from deportation for widows and widowers of U.S. citizens whose applications for permanent residency were denied due to the death of their spouses. The government’s position has been that where the American spouse dies within two years of marriage and the foreign spouse is not yet a permanent resident, the foreign spouse loses the right to obtain residency and may face deportation.  Secretary Napolitano’s reprieve does not change the law, but will allow qualifying widows and widowers to avoid deportation for at least two years, while advocates lobby Congress to change the immigration laws regarding widows. Recipients of the reprieve may also apply for employment authorization during this two-year period.

Nothing in this article should be taken as legal advice for an individual case or situation.  The information is intended to be general and should not be relied upon for any specific situation.  For legal advice, consult an attorney experienced in immigration law.

About Igbanugo Partners International Law Firm

Igbanugo Partners Int'l Law Firm is based in Minneapolis, Minnesota. It focuses on (1) U.S. immigration law and (2) international trade law in Sub-Saharan Africa.

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