General Background for Asylum

Asylum refers to the process of applying for protection in order to avoid harm in one’s country of origin. Asylum (or refugee law) provides protection against human rights violations, namely being harmed in your country of origin based on one of the following protected grounds:

• race,
• religion,
• nationality,
• political opinion or
• membership in a particular social group.

Notably, asylum is not for other reasons someone might be harmed in their country, such as general violence. The particular social group ground for asylum has broadened the number of individuals eligible for asylum since it encompasses a number of groups that are harmed in their countries for reasons that are not encompassed by the other stated grounds (race, religion, nationality, political opinion).

An asylum seeker is one who applies for asylum either at a port-of-entry into the U.S., or when already within the U.S. In contrast, a refugee refers to a person who has already met the legal requirements for resettlement outside their country, as determined by the United Nations.

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Last week Trump sent his “term sheet” to congressional republicans containing what he wants in exchange for a “DREAM Act” that would provide an eventual path to citizenship for Dreamers. In contrast to his earlier statements (“I will sign any Dream Act legislation that is put on my desk”), Trump is now attempting to extract an enormously steep price for a path to citizenship for Dreamers. The price is so steep that many Dreamers themselves have already come out against his proposed framework. Rather than being satisfied with an enormous amount of money for his wall, Trump is now demanding massive changes to our entire immigration system. The most striking changes are:

The elimination of all family preference immigration categories AND the right of U.S. citizens to petition for their parents

Currently, the family immigration system is broken into two categories for family members:

(1) The first category is immediate relatives (“IRs”) consisting of spouses, minor children (under 21) and parents of U.S. citizens. There are neither quotas nor wait lists for IR’s (except for the time required to process the applications) since these relationships are so close.

(2) The second category is broadly titled the “preference categories” consisting of adult children and siblings of U.S. citizens, and spouses, minor children and unmarried adult children of lawful permanent residents (LPR’s or green card holders). For preference categories, there are usually very long waiting periods to immigrate to the U.S. (as long as 20 years) because the U.S. only lets in a fixed number of immigrants in these categories each year.

The White House plan proposes to eliminate the immediate relative sub-category of parents of U.S. citizens and eliminate all preference categories. This is a monumental change to our existing immigration system. Ironically, the White House titles this section “Protect the Nuclear Family”, yet the proposal drastically reduces the family members that can immigrate to the U.S., only preserving spouses and minor children of citizens. The elimination of parents is particularly bizarre and heartless. Is the U.S. ready to step this afar away from a valued practical and cultural norm of taking care of your parents as they age? The elimination of the preference categories would also be extremely detrimental and very short-sighted, particularly because it is moving forward without any real discussion or research conducted by the White House or Congress into the issues.

The elimination of the diversity lottery program:

The diversity lottery allows 50,000 new immigrants into the country each year from traditionally underrepresented parts of the world. Applicants must meet minimum education or work experience requirements to qualify for the lottery. The lottery is based on the principle that diversity is a source of strength, an idea which use to be a widely shared and valued principle in this country.

The use of “expedited removals” to deport visa overstays:

With this change, any person who overstays their visa would become subject to deportation without the due process right of first seeing an immigration judge. Such a measure would be particularly harsh and have a huge adverse effect on many U.S. citizens since many of these individuals only overstay their visas because they are in a relationship or marry a U.S. citizen. Many others also have an understandable reason for overstaying their visa such as a legitimate claim to asylum or eligibility for a U visa based on being the victim of a serious crime. If these individuals are deported, they will be subject to the deportation bar and face substantial hurdles to returning to this country, despite the fact that they may have a lawful path to obtain their green card. Quite simply, this punishment would severely outweigh the crime in most cases and adversely affect the rights of many U.S. citizen and resident family members.

Is it worth it?

It is truly sad and amoral to use the lives of the Dreamers in an attempt to change our immigration system in such a profound and negative way. These are young people who did not understand that they were were not Americans until they were teenagers. Many were brought here in the arms of their parents. Now Trump dangles their lives in front of the Democrats mercilessly to see how much he can extract for their protection. This starting point is certainly not a positive sign in these negotiations, but perhaps some rational members of his own party can convince Trump to back off from these demands, and merely take the King’s ransom that he is requesting for his wall in exchange for protecting the Dreamers.

Photo by Feifei Peng on Unsplash

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When asking what are my chances of winning the H-1b lottery, most lawyers will respond with a non-scientific answer based on their own rough historic success rate in the lottery, and predictions on the upcoming number of applications. We often do not go into the math because most of us (lawyers) were scared to death by our ineptitude in calculus and physics and consequently fled to law school instead. However, H-1b math is not rocket science, it simply requires calculating the overall probability of winning an event if you have one chance (for the normal lottery) and the probability of winning an event if you have two chances (for those who have a U.S. Master’s degree).

Let’s first review the rules before we start the math. There are 85,000 H-1b visas available each year; however, 20,000 are set aside for those with a U.S. Master’s degree or higher. As a result, there are actually two lotteries. First, there is a “Master’s CAP” lottery for all those individuals with a U.S. Master’s degree or higher. Master’s CAP applicants that are not selected in the first lottery get a second bite at the apple since they are then able to participate in the regular “H-1b CAP” lottery.

Now let’s delve into the math

If you have a U.S. Master’s Degree, the probability of securing a H-1b visa is:

1-[(1-P1) X (1-P2)]

P1 = the probability of winning the Master’s Cap (20,000/Number of Applicants)

P2 = the probability of winning the Regular Cap (65,000/((# of Master’s applicants – 20,000) + (# of Bachelor’s applicants)))

So, the long form formula looks like:

1 – [(1-(20,000/# of master’s applicant’s) X (1-65,000/((# of Master’s applicants – 20,000) + (# of Bachelor’s applicants))]

If you do not have a U.S. Master’s Degree, the probability is even simpler. It is simply the probability of the second event, which would be:

65,000/((# of Master’s applicants – 20,000) + (# of Bachelor’s applicants))

While the math is relatively easy, the difficult part is predicting the number of applicants. Predicting the number of U.S. Master’s CAP applicants is particularly difficult because USCIS does not release this data. They simply release the total number of H-1b applicants each year.

Below are two models run with these formulas that show your chances of winning the lottery given these two separate set of presumptions. By all means, if you think you have better insight into the number of applicants this coming year, plug those numbers in to see what the probabilities are.

PREDICTIVE MODELS

Model A (If Same Number of Applicants as Last Year): Based on 60,000 Master’s CAP applicants and 140,000 regular CAP applicants. This model presumes 200,000 total applicants, the same as last year, which I think is a bit high.

IF you have a Master’s degree, your chances are:

• 1 – [(1-(20,000/60,000)) X (1-65,000/(40,000 + 140,000)
• [Simplified version: 1-[(1-P1) X (1-P2)] = 1 – [.67 X .64] = 57% (U.S. Master’s degree)

If you have only a Bachelor’s degree, your chances are:

• 65,000/180,000 = 36% (Bachelor’s degree only).

So, in this context, a Master’s degree almost doubles your chances of receiving a H-1b.

Model B (Predicted Chances This Year): Based on 50,000 Master’s CAP applicants and 100,000 regular CAP applicants. This model predicts 150,000 total applicants, which I believe is more realistic since I anticipate demand to substantially decrease this year due to Trump’s attacks on the H-1b system and overall negative messaging towards immigration.

If you have a U.S. Master’s degree, you chances are:

• 1 – [(1-(20,000/50,000)) X (1-65,000/(30,000 + 100,000)
• Simplified version: 1-[(1-P1) X (1-P2)] = 1 – [.4 X .5] = 80% (U.S. Master’s degree).

If you have only a Bachelor’s degree, your chances are:

• 65,000/130,000 = 50% (Bachelor’s degree only).

As model B shows, if demand does decrease this year, the probability of receiving a H-1b visa for both applicants with U.S. Master’s degree and general applicants goes up substantially. Thus, the one silver lining (the only one I can think of) of Trump’s negative immigration rhetoric is that it may increase chances of receiving a H-1b visa this year.

If you are interested in filing a H-1b this year and want to learn more, call us at (303) 872-6985 or email us from our contact form here.

More info about H-1b visas.

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On Sunday, September 24^th, Trump issued his third and most severe travel ban, this time calling for an indefinite ban on entry into the United States of foreign nationals from designated countries. Rather than a 90-day ban, like the previous versions, Trump has put an indefinite ban in place again on foreign nationals from countries that purportedly do not meet U.S. standards for vetting travelers.  The nations from the original ban are included in this new proclamation and are affected in the following ways:

• Iran: Suspends the entry of immigrants and all nonimmigrants, except F (student), M (vocational student) and J (exchange visitor) visas, though they are subject to enhanced screening.
• Libya: Suspends the entry of immigrants and temporary visitors on business or tourist visas (B-1/B-2).
• Somalia: Suspends the entry of immigrants, and requires enhanced screening of all nonimmigrants.
• Syria: Suspends the entry of all immigrants and nonimmigrants.
• Yemen: Suspends the entry of immigrants and temporary visitors on business or tourist visas (B-1/B-2).
• Iraq: Requires enhanced screening of all individuals seeking to enter the United States.

A notable exception is that Nationals of Sudan, who were impacted by earlier versions of the travel ban, are not included in the proclamation. Nonetheless, the new ban has added additional countries to the list. These countries are affected in the following ways:

• Chad: Suspends the entry of immigrants and temporary visitors on business or tourist visas (B-1/B-2).
• North Korea: Suspends the entry of all immigrants and nonimmigrants.
• Venezuela: Suspends the entry of certain government officials and their family members on business or tourist visas (B-1/B-2).

The indefinite ban immediately impacts nationals of Iran, Libya, Somalia, Syria, and Yemen with no bona fide relationship to a U.S. person or entity, and will take effect for all other impacted nationals of those countries, as well as nationals of Chad, North Korea, and Venezuela, on October 18, 2017.

Trump’s insistence on imposing travel bans is similar to his infatuation with building a wall on our Southern border. Both policies have been thoroughly criticized by security experts, including former top DHS and DOS leaders, who have pointed out that there are far better ways to improve border security than through these divisive, symbolic acts. Yet Trump seems hell bent on delivering these acts to appease his far-right supporters (who appear to want a white, Christian ethno-state). Trump also seems to have zero understanding and respect for the principles this country was founded upon and the role of the President as a unifier rather than a divider.

Jason Blackeye

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Premium processing is a service provided by the United States Citizenship and Immigration Services (USCIS) to ensure expedited processing of immigration petitions. For an additional filing fee of $1225, USCIS promises to make an initial decision on a case within 15 calendar days. If USCIS issues a request for evidence, they are allowed an additional 15 days to make a final decision. Without premium processing, adjudication times are dramatically longer, sometimes spanning beyond 6 months for some types of petitions.

After a temporary suspension of premium processing for most types of H-1b petitions, USCIS has resumed premium processing for the following types of H-1b petitions:

• All new petitions filed under the 2018 fiscal year H-1b cap. This includes petitions that were filed in April of 2017, and allow a beneficiary to begin working, upon approval, on October 1, 2017, the start of the 2018 fiscal year.
• Cap exempt petitions, which include petitions filed by:
  • An institution of higher education;
  • A nonprofit related to or affiliated with an institution of higher education; or
  • A nonprofit research or governmental research organization.
• Petitions filed by physicians under the Conrad 30 waiver program.

Premium processing still is not available for the following types of H-1b petitions:

• H-1b change of employer petitions:
  However, remember that a beneficiary of a correctly filed change of employer petition can still begin work for the new employer once the new petition is received by USCIS. This strategy still entails some risk and can create travel complications, so please speak with an attorney before utilizing this H-1b “portability” provision.
• H-1b extension of status petitions filed by the same employer:
  However, work permission is automatically extended as long as the application for extension is filed before the current H-1b period expires. USCIS has stated that they intend to resume premium processing for the above categories as well in the future, dependent upon their workloads.

Finally, USCIS may expedite a petition that is not eligible for premium processing if certain unusual circumstances apply. Here is more information on the criteria for expediting a petition.

To discuss the importance of premium processing in some situations, or to discuss any other immigration question, please feel free to call us at (303) 872-6985, or email us through our website here.

To learn more about H-1b petitions, visit our H-1b FAQ page.

Photo Credit: Climate KIC

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This piece is written by one of our paralegals, Maria, who as a documented immigrant, offers a perspective on the great difficulties faced by those who are undocumented.

I am a documented immigrant. By some, I am praised because I “did things the right” way and didn’t “jump the line.” However, these statements are really short sighted and reflect an incomplete understanding of our broken immigration system. I often hear from people who stand across the political spectrum that they boldly oppose any leniency given to undocumented workers because they somehow hurt people like me. My fans insist: undocumented people chose to take the easy way out and displace law-abiding folks like me. How can I put this nicely? This kind of thinking is right up there with the flat-earthers, moon-landing doubters and bretharians (those who believe they can survive without food). Though, I understand where this sentiment is coming from: “there is a legal way to do things, obviously some people have done it, so to come here without documents must mean that you chose the illegal way to do it!” There is, however, a grave problem with this very rash conclusion: it assumes that we all have the option of “the right way”, that everyone looking for a better life can just prove their worth, fill out some papers, pay a small fee and voila!  

In reality, for most people, there is no line. The option is between (1) starving and having your children starve or (2) risking your life and the life of your family crossing ridiculously dangerous terrain, possibly being killed by wild animals, perhaps dehydrating to the point where you can no longer stand and are left to decompose, maybe being shot by a trigger-happy “patriot” seeking to make a point, the possibilities are endless! And guess what? The conditions in these people’s home countries are such that option 2, with all its die-a-painful death glory, is often the better option. But you insist, my friends, that undocumented migrants forgo the rightfulness of procedure and choose to do things “the easy way.” My question is: in what world is risking your life to live in the shadows the easy way, or preferable to filling out forms?  

Let me tell you more about my background: my father worked really hard to be what our Immigration system considers “skilled-labor.” He excelled in school, got two Bachelor’s degrees, three Master’s degrees and a Doctorate. My mother handled everything at home with three rowdy kids so that he could do that. My father, then, after volumes of forms and years of post-secondary studies, got a job offer from an American university. He and the university filled volumes of forms, we got expensive medical exams, gathered more evidence than most trial courts, had a Labor Certification from the Department of Labor going through incredible lengths to prove that my father was more qualified than any American for the same faculty position, had criminal background checks, biometrics appointments, etc, etc, etc. I won’t even get into our adjustment of status five years after to become Legal Permanent Residents.  

Yes, it was a pain in the behind to be subject to so much bureaucracy (and its fees). BUT, we had the option of procedure. We did things “the right way” because we could, and we could because my father was one type of worker as opposed to another. Though I greatly value my father’s intellect and hard work, by no means do I believe that people who work with their hands deserve any less. And just in case there’s any confusion, I have never met a person who would choose crossing the desert over filling out forms.  

The problem is, again, there is no line for most people. Those who come without documents have two very unsavory options, and procedure isn’t one of them. There are seasonal work visas and a very limited amount of visas for “unskilled labor” (though these people are far from unskilled), but in reality, we have a much greater labor demand than visas available. The option of finding an employer to sponsor a work visa for what we call a “non-professional” occupation is slim to none. For those who are non-immediate family members of U.S. citizens, there is a line, but the line can be decades long. Imagine earning less than $5 per day, watching your children go hungry and being told that your visa application will be reviewed in 21 years? The options here are not as straight-forward as you’d think. 

My goal here is only to share my own experience and perspective so people begin to understand that the “right way” is very narrow, and simply unavailable to millions of people who contribute on a daily basis to this country (and who U.S. employers desperately need). I hope that as our nation evolves, the option to come with documents, without the risk of dying, without the daily fear of being deported, is a real thing for people of all walks of life. I only urge you, if you insist on the “right way,” to learn what that means and to advocate in favor of a humane, reasonable “right way” as opposed to punishment for those whose entire lives are treated as little more than talking points.  

Photo Credit: Pejasar Flickr via Compfight cc

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Before our discussion below of recently proposed immigration bills, it is worth reviewing the process of how a bill (a proposed new law) becomes law. The fact of the matter is that, for better or for worse, our country’s founders made it very difficult to change the law (with few exceptions). Bills hit Congress all the time, but in reality only 4% of those bills become law[1] and those bills that do become law are usually substantially different from the original draft. Bills have to be introduced, sent to committees and subcommittees, debated, amended, voted on in the House of Representatives, win a majority of votes to go to Senate, repeat the whole process over again and, if approved by both houses, they must be signed into law by the president (if vetoed, 2/3 of both houses are needed to override the veto).

Since Trump took office, immigrant communities and those who have a close relationship with these communities must temper both our fear and our hope when it comes to new proposed immigration laws. In light of this reality, let’s turn to the bills gaining the most attention in the immigration debate, but let us remember that each of these bills still have a long road ahead of them to become actual law.

The Unlikely Bad News: The RAISE Act

The infamous RAISE Act (Reforming American Immigration for Strong Employment Act) would highly favor immigration for young professionals between the ages of 26-30, holding doctorates, Nobel Prizes or Olympic medals [2]. Of course, less impressive individuals could also gain entrance depending on their capacity to gain 30 points in the proposed point-based merit system based on: the possession of university degrees, fluency in English, placement in the higher income brackets, etc. Investment too, over $1.35 million, would gain favor in a visa application. Family visas apart from immediate family of US citizens, asylum and refugee visas and other categories lacking “merit” would substantially suffer. The green card lottery promoting diversity immigration would be slashed and total legal immigration would be cut by a projected 41% on the first year [3]. Though the bill has the support of President Trump, it hasn’t gained much traction in either house, nor is it in the least bit impressive in the eyes of our leading economists (or really anyone with a general understanding of economics).

The Unlikely Good News: the DREAM Act of 2017

The DREAM ACT of 2017 is a bill with bi-partisan sponsorship that would pave a path towards citizenship for those undocumented immigrants who arrived as children. It would expand the scope of the DACA criteria, making those who entered before their 18^th birthday eligible and providing a “hardship waiver” to those falling outside the general eligibility but facing extraordinary challenges. The process would still be long, requiring its beneficiaries to hold Conditional Permanency Residency Status for eight years, and then applying for Legal Permanent Residency, but it would provide a track for many who are currently unprotected [4]. Remember, DACA is simply “deferred action” in regards to potential deportation (though it does grant the ability to work, go to school and even join the military). Also remember that DACA is an executive order, and that means it can disappear if the president decides to make it disappear.

The Real Concern: DACA

This is the exception to the “laws are difficult to change” statement mentioned above because DACA was created with an executive order, which is unilateral action by our President. As such, it can also disappear with unilateral action from Trump. The possibility that nearly 800,000 young people protected under DACA could lose protection with the stroke of a pen is a real reason for concern. Though Trump initially showed a degree of sympathy for “DREAMERS”, Texas has recently threatened to file a lawsuit if the Trump administration does not phase DACA out by September 5^th[5]. In light of this, the Trump administration has not clarified whether or not DACA will continue.

Regardless of DACA’s fate, the current political climate threatening the fate of millions of immigrants has also created a force of passionate advocates who will continue to fight for the basic rights of immigrants.

[1] https://www.washingtonpost.com/news/wonk/wp/2014/01/16/almost-none-of-the-bills-introduced-into-congress-ever-becomes-a-law/?utm_term=.c8b85452a

[2] http://time.com/4885453/donald-trump-legal-immigration-bill/

[3] https://medium.com/@UNITEDWEDREAM/lawmakers-just-introduced-a-dream-act-bill-what-does-it-means-for-you-4aa09e193b6f

[4] https://medium.com/@UNITEDWEDREAM/lawmakers-just-introduced-a-dream-act-bill-what-does-it-means-for-you-4aa09e193b6f

[5] http://www.washingtontimes.com/news/2017/aug/14/daca-faces-challenges-trump-courts/

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Changing Trends in Immigration

Our tumultuous political climate has once again brought immigration to its forefront. The heated issue, however, involves a myriad of misconceptions further complicating a very important, and very personal, discussion. The following data, largely gathered by the Pew Institute, provides relevant information challenging various notions that have colored the immigration debate for the last few decades:

• There are far more documented immigrants than undocumented (74.5% to 25.5% respectively)
• Most undocumented immigrants have been here for over a decade. 65.7% have lived here for 10 years or more, compared to 14.3% who have lived here less than five years.
• Mexican immigrants make up the majority immigrant population, but their numbers are declining, especially amongst new arrivals.
• Many unauthorized immigrants entered legally, but overstayed their visas. A 2006 Pew estimate calculates that as many as 45% of undocumented immigrants entered legally, but overstayed their visas.
• 61% of undocumented immigrants live in metropolitan areas, but the majority live in the suburbs.
• The majority of undocumented immigrants work in construction and service. Only 4% of undocumented immigrants work in agriculture.
• One-third of undocumented immigrants live with at least one U.S. citizen child.

These realities, among many others still unconsidered by most, heavily impact groups within an already vulnerable population given our unstable immigration policies. Many may find themselves separated from their children. Others may find their industries lacking in available labor. Whatever the case may be, the group we are mainly referring to is a group that has become integrated into our society by living and working here for a decade or more, by having American children, contributing to all sectors of the economy, and needless to say, it is a group that would suffer great losses if removed from its home country, just like any other sector of our population.

For the full NPR article detailing this data, click here.

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The Immigration and Naturalization Act (INA) is the body of law currently governing immigration policy. Though very complicated, a starting point is to understand that we grant entry on either a permanent (legal permanent resident) or temporary (nonimmigrant) basis.  Currently, there is a worldwide limit of 675,000 permanent immigrant visas, with certain exceptions for immediate family members of US citizens. Once a Legal Permanent Resident (LPR), an individual can live and work in the US permanently and eventually apply for naturalization (after 5 years of LPR status, or 3 years if LPR status is through marriage to a US citizen).

The guiding principles of US immigration are: family reunification, admitting immigrants with skills valuable to the US economy, protecting refugees, and promoting diversity. These principles are reflected in our general visa categories.

Family based Immigration

For immediate relatives of US citizens (spouses, unmarried children under 21, or parents of citizens over 21), there are an unlimited number of visas. However, for those outside these categories, there are a limited number of visas through the family preference system including:

• adult children (married and unmarried),
• siblings of US citizens over 21
• spouses and children of LPRs.

The number of available visas for this category is calculated by starting with 480,000, subtracting immediate family visas and parolees, and then, adding unused employment-based visas. There is a minimum of 226,000 visas and, because of all the mentioned subtractions, it often ends up being the actual number of family preference visas. Moreover, these limits include derivative visas (spouses and minor children of principal immigrants).

Employment based Immigration

Employment is another channel trough which immigrants with valuable skills can come to the US. There are over 20 types of temporary visas including: L1 for intracompany transfers, P for Athletes, entertainers and skilled performers, O-1 for extraordinary abilities, H visas for both highly skilled and lesser skilled employment, etc. Generally speaking, these employees must leave after their visa expires or if their job is terminated.

In the case of employment based visas for permanent immigration, there is a limit of 140,000 each year including derivative visas for family members, and they are more difficult to obtain.

Refugees, Aslyees, and other forms of Humanitarian Relief

Refugees are admitted to the US based upon an inability to return to their country of origin because of a “well-founded fear of persecution” due to race, membership of particular social group, political opinion, religion, or national origin. Each year, the president and congress determine the ceiling for refugee visas. Likewise, asylum is granted to persons already in the US who meet the same criteria as refugees.

For other cases of hardship including natural disasters, “ongoing armed conflict”, and other extraordinary cases, there are avenues such as: TPS (Temporary Protected Status), DED (Deferred Enforced Departure), the possibility of being paroled into the country, and various other special categories.

Promoting Diversity

The Diversity Visa Program, created by the Immigration Act of 1990, allocates 55,000 visas to be randomly given to nations whose immigrants are underrepresented in our population. Inversely, our current system also caps immigration from any one country to 7% of the total number of new immigrants per fiscal year to prevent any one area from dominating our migration patterns. This 7% rule applies across the board, to the family and employment categories as well. For this reason, in certain categories, foreign nationals from oversubscribes countries have to wait in line for visa availability before immigrating to the country. Common examples are the long lines for Mexican nationals in family based preference categories. On the employment side, Chinese and Indian nationals have to wait in line for visa availability because of the large number of skilled professionals from these countries.

Here is the detailed Fact Sheet provided by the American Immigration Council on our immigration system 

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