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Phoenix Immigration & Naturalization Law Blog

Data shows sharp upswing in H-1B visa denials

Many businesses, highly skilled international graduate students and technical workers in Arizona are concerned about reports that an increasing number of H-1B visa petitions are being denied. The H-1B Employer Data Hub was criticized by many when it was introduced by U.S. Citizenship and Immigration Services (USCIS). These critics saw it as a way for the administration to target negative attention toward businesses that make use of the program that allows companies to hire highly skilled international workers, typically in technical or scientific fields.

Further analysis of the data posted publicly indicates that USCIS is sharply restricting the number of H-1B petitions it approves. While only 6 percent of petitions were denied in 2015, 32 percent were denied in the first quarter of 2019 alone. Between 2015 and 2018, the denial rate grew by three times, from 6 percent to 24 percent. This means that the overall denial rate for new H-1B visa applications is now triple or quadruple what it was only a few years in the past. Immigration lawyers and employers say that USCIS has secretly raised the standards required for the approval of a petition.

Supreme Court ruling on immigrants with criminal records

Immigrants in Arizona who have committed a crime in the past may be detained years later, according to a new ruling by the U.S. Supreme Court. This reversed the decision of the U.S. Court of Appeals for the 9th Circuit.

The 5-4 decision found that immigrants could be held for deportation without a hearing even years after a crime. The 9th Circuit's decision had been that immigrants must be detained just after serving the sentence. The dissent argued that the decision violates the constitutional right to have due process of law.

Court says asylum-seekers can appeal rejection

Asylum-seekers in Arizona whose bid for asylum has been rejected on the grounds that they did not establish that they had a "credible fear" of returning to their home country may be able to appeal their rejection before an immigration judge. On March 7, the U.S. Court of Appeals for the 9th Circuit ruled that denying asylum-seekers this right violates non-citizens' constitutional rights.

The asylum-seeker in this case was a man from Sri Lanka who was part of the Tamil minority. Despite his assertion that his support of a Tamil politician resulted in his kidnapping and torture, an agent with U.S. Citizenship and Immigration Services said that he failed the "credible fear" standard. When the man sought to appeal it, he found that the only grounds for doing so were on technical errors that had to do with whether the person actually qualified for "expedited removal".

Changes may be ahead for spouses of H-1B visa holders

The spouses of workers who are in Arizona under H-1B visas may lose the right to work in the United States under a proposed regulation sent to the White House Office of Management and Budget. Many couples in this position are already waiting a long time for their green cards. The combination of the H-1B visa for one and employment authorization documents for the other allows them to both work during this wait.

The proposed regulation change has employers and visa holders alike looking for solutions. One possible answer might be for a U.S. company to transfer an H-1B visa worker to Canada for a year. With the same language and a similar culture, this would not represent a significant change for the worker, who might be allowed to work remotely and cross into the U.S. as needed. The spouse would be permitted to work in Canada.

Obtaining an H-1B visa

Arizona employers who wish to obtain an H-1B visa for foreign workers must prepare well before the filing season opens on April 1. Although the fiscal year in which those workers would be eligible for employment does not begin until Oct. 1, the volume of applications means the window of eligibility is usually only open for one week. The cap may be reached even sooner. In 2018, it took only five days.

Only 65,000 new H-1B visas are granted each year, and another 20,000 new ones are granted for people who have obtained graduate degrees from universities in the United States. Employees can only work for the employer who obtains the visa, and the visas are good for three years. They can be renewed for a maximum of six years. Which petitions are accepted is determined by a lottery process.

Trump administration announces new asylum policy

Arizona residents are likely aware that several thousand migrants from Central America are gathered in Tijuana, Mexico, and plan to apply for asylum in the United States. Many of these migrants have tried to cross the border illegally at the San Ysidro port of entry, which has prompted the Trump administration to change the way asylum claims are processed. Department of Homeland Security officials have announced that asylum-seekers apprehended in the United States will now be returned to Mexico to wait until their petitions are reviewed.

Prior to the Jan. 25 implementation of the new rule, asylum-seekers were permitted to remain in America while their petitions were pending provided that they were able to pass what is known as a credible fear interview. The Trump administration's decision may have been influenced by a 2015 federal court decision that set the maximum detention period for immigrant families with children at 20 days.

How the Trump administration has hindered immigration courts

Citizens of Arizona may be interested to learn that despite the Trump administration promising to streamline the legal immigration system, plenty of the decisions made by the administration have proven deleterious to the immigration courts, the latest of which has been the government shutdown and how it has been causing the cancellation of 20,000 cases every week. Experts believe that if the shutdown persists until the end of January, the number of backlogged cases during these five weeks could be more than 100,000.

During Trump's first 16 months as president, the backlog of immigration court cases grew by about 33 percent, reaching 714,000 cases. To make matters worse, this increase in the number of cases that have no scheduled court date is not due to an increase in the number of case filings but rather due to decisions made by the Trump administration.

The process of appealing an immigration decision

In most cases, those looking to appeal an immigration decision will do so through the Administrative Appeals Office (AAO), Board of Immigration Appeals (BIA) or, as a last resort, federal court. Since immigration is a function of the executive branch, the rules may differ from those imposed in an Arizona courtroom. Whether an appeal is made to the AAO or BIA depends on which agency made the original immigration decision.

For example, if an application was denied by the U.S. Citizenship and Immigration Services (USICS), the AAO will likely hear the appeal. If the appeal relates to a ruling made in immigration court, it will typically be heard by the BIA. An immigration court ruling can be appealed either by the immigrant or the government. Regardless of which court hears the appeal, it must typically be made within 30 days from the date an application was denied or a ruling was made.

What Arizona residents should know about asylum claims

The 2018 fiscal year for the United States government ended on Sept. 30. As of that date, U.S. Customs and Border Protection says credible fear asylum claims at the Mexico border increased 67 percent from the previous year. That translates to a total of 92,959 claims as opposed to just 55,584 a year prior. Furthermore, the number of credible fear claims as a percentage of all people stopped at the border increased to 18 percent from 13 percent a year earlier.

During the 2018 fiscal year, 21 percent of asylum claims were granted by a judge. In most instances, those who pass the credible fear threshold are given ankle monitors and released until their cases are heard. It is believed that about 75 percent of those who ask for asylum make it past the initial part of the process. The increase in individuals claiming asylum at the United States border with Mexico is partially because of a caravan of individuals coming from Central America.

Getting a passport a prime reason for becoming a citizen

Those living in Arizona or any other state as a permanent resident may not have thought much about becoming a full citizen. However, as a result of recent immigration policies, the number of applications for naturalization is on the rise. In Minnesota alone, there has been an increase of 88 percent since 2016. To apply for citizenship, an individual needs to wait two years, pass a test and take part in a naturalization ceremony.

In most cases, individuals who have a green card are eligible to apply for citizenship within three to five years. Once it is granted, an individual has the same rights as those who were born in the country. This means that he or she will have the right to vote, get a passport and remain in the country. Those who apply for citizenship also have the right to leave the United States and return at their leisure.

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