Cyrus D. Mehta & Partners PLLC

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Can President Trump act like a king by rewriting US immigration law through the invocation of INA 212(f)? Although America shrugged itself from the yolk of King George III in 1776, Trump issued a Proclamation on October 4, 2019 in total disregard of a Congressional statute – defining who is likely to become a public charge – that would bar intending immigrants from the United States if they do not have health insurance lined up…
The Supreme Court has agreed to review the constitutionality of a smuggling statute under the Immigration and Nationality Act. United States v. Sineneng-Smith, No. 19-67. The statutory provision in question, INA §274(a)(1)(A)(iv),  permits a felony prosecution of anyone who “encourages or induces an alien to come to, enter, or reside in the United States” if the encourager knew or recklessly disregarded “the fact  that such coming to, entry, or residence is or will be…
By Cyrus D. Mehta and Gianna Boccanfuso• The USCIS continues to strictly scrutinize H-1B petitions. According to an NFAP report, denial rates for H-1B petitions have increased significantly, rising from 6% in FY 2015 to 33% through the second quarter of FY 2019 for new H-1B petitions for initial employment. In recent times, seeking review of an H-1B denial in federal district court has led to successful outcomes such as in Relx v. Baran
Under section 301(c) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1401(c), a child born outside the United States is a citizen when born “of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person.”  Unlike some other provisions of the INA, no minimum required period of…
The Fairness for High Skilled Immigrants Act has divided the immigrant community as well as immigration attorneys. The bill seeks to eliminate per-country caps without expanding the number of visas in the EB categories.  The House version, HR 1044, has already passed with an overwhelming majority on February 7, 2019. The Senate version, S. 386, has not yet passed through unanimous consent.  A Senator has objected each time it has come up for unanimous consent.…
The State Department Visa Bulletin for October 2019 reflects forward movement as anticipated with the beginning of the federal fiscal year, except for the employment-based first preference (EB-1). It also does not look promising for many EB categories involving India.  According to Charlie Oppenheim, there is normally full recovery or almost full recovery of the Final Action Dates from the previous year. Low level of demand would allow for thousands of unused numbers from…
by Stacy Caplow and Maryellen Fullerton* The laws and policies protecting refugees and asylum seekers in the United States are under sustained assault.  Since 1980, Congress has provided that noncitizens in the United States or at its borders “whether or not at a designated port of arrival” may apply for asylum.[1]   Disagreeing with the statute, but lacking the votes to pass revised immigration legislation, the Trump Administration has chosen to defy the law,…
Filing lawsuits in federal court to challenge erroneous denials of visa petitions by USCIS have become more frequent. There is more of a shot at a reversal when a federal judge reviews a denial of the USICS. Under the Administration Procedures Act, a court must set aside an agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. §706(2)(A). Seeking review in federal court under…
As the U.S. Citizenship and Immigration Services (USCIS) continues its shameful and relentless attack on the H-1B visa program under the misguided “Buy American Hire American” Executive Order, it is important that we continue to fight back and cases like Relx Inc. v. Baran give us the hope that we need in order to do so. As background, with every H-1B petition, the petitioner must file a Labor Condition Application (LCA) with the…
The Trump Administration’s new public charge rule has already been the subject of at least five different lawsuits, including one from a coalition of 13 states led by Washington, another from a California-led coalition of 4 states and the District of Columbia, and another from a coalition of 3 states led by New York, plus one from a coalition of nonprofit organizations.  There is a lot to say about the rule,…