Updates to the Board of Immigration Appeals Practice Manual

AILA reports the below updates to the Board of Immigration Appeals practice manual as per email from Department of Justice to the stakeholders.

  • Parties must limit the body of their briefs or motions to 25 pages. Parties may make a motion with the BIA to increase the page limit. (BIA Practice Manual page 40; Chapter 3.3(c)(iii)).
  • Briefing extensions are generally limited to one request per case of 21 days. Briefing extension requests must be received by the BIA by the brief’s original due date or they will not be granted. Until the request is granted by the BIA, the original deadline remains in effect. (BIA Practice Manual page 65; Chapter 4.7(c)).
  • All parties have an ethical obligation to avoid delay. The BIA’s deadlines are designed to provide ample opportunity for filing, and a conscientious party should be able to meet these deadlines. (BIA Practice Manual page 65; Chapter 4.7(c)).

 

Source: AILA Doc. No. 18101971 | Dated October 19, 2018

Lawsuit filed for fighting a specialty occupation denial

American Immigration Council filed a lawsuit on behalf of a large construction company against USCIS which denied the H-1B (EXTENSION) case for one of its employee citing that the job was not a specialty occupation.

Specifically, the denial stated that “Engineering” which the petitioner stated as required is too broad and denied the case. This case Shandilya et al. v. USCIS filed on  10/16/18 on behalf of Anubhav Shandilya and Balfour Beatty Construction LLC based in Dallas seeks to vacate the denial of the petition.

We will be watching this case to see how the court interprets specialty occupation in this context.

How to find your I94 when you are on H-1B?

One of the very essential things every non-immigrant should be careful to check is the I-94. I-94 is the document that specifies the duration one is authorized to stay in the country. There are multiple ways one gets an I-94. An employee on H-1b normally gets a new I-94 when they enter into the country at the port of entry or sometimes during the H-1B extension/amendment/change of status filings.

Some key rules to always note are:

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Issues with being Out of Status on H-1B or F-1 Status – Unlawful Presence

This article applies to most of the non-immigrants though it is being published here mainly as it pertains to the non-immigrants on F-1 or H-1 status.

Unlawful presence is the period of time when one is in the United States without being admitted or paroled or when one is not in a “period of stay authorized by the appropriate governmental agency/authorized personnel.

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Premium Processing for H-1B by EXPEDITE PROCESS while Premium is suspended

Premium Processing is currently suspended for many H-1B filings. While premium processing is suspended, petitioners may still submit a request to expedite an H-1B petition if they meet the criteria  laid out by USCIS.

Petitioner’s must meet one of the FOUR criteria stated in below USCIS pages to qualify and request premium processing currently.

https://www.uscis.gov/forms/expedite-criteria

https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume1-PartA-Chapter12.html

Changing H-1B employers without two pay statements

There is a common misconception that one needs two most recent pay statements for H-1B transfers.

One of a common question I get around October 1st( since new cap H1’s start on Oct 1st) of every year revolves over how long does a person who has recently been granted a new H-1B status need to wait before one can transfer to a new employer. USCIS does not require two pay cycles to run before one can transfer. One can transfer immediately and there is no time limit. However one does need to show that until the day of filing of H-1B transfer one has maintained valid H-1B status as required. In summary if a new employee who has been granted H-1B status on October 1, 2018 decides to change their employer on October 10th, all one needs to prove is that valid status has been maintained from October 1st to 10th.

In summary, one does not need to wait for two pay cycles to change employment as it is a common misconception that one has to wait for two pay statements.