By Cyrus D. Mehta & Jessica Paszko* Just a couple of months ago we considered the options available to terminated H-1B workers who want to become entrepreneurs. Since then, layoffs have not abated and we’ve continued thinking about the options available to laid off nonimmigrant workers. This time, we consider the options available to H-1B workers whose employers have filed I-485 adjustment of status applications on their behalf before they were laid off and the I-485 has been pending for less than 180 days. For starters, laid off workers can remain in the US while their adjustment applica ..read more

By Cyrus D. Mehta and Kaitlyn Box* Our most recent blog in this series discusses the new Application for Permanent Employment Certification, Form ETA 9089 (“ETA 9089”) and corresponding Application for Prevailing Wage Determination, Form ETA 9141 (“ETA 9141”) promulgated by the Department of Labor (DOL), and, specifically, how issues concerning dual representation and familial relationships can be dealt with on the new form. In this blog, we discuss how to handle alternate requirements in the new ETA 9089. The Office of Foreign Labor Certification (OFLC) of the DOL has now delayed the impleme ..read more

By Cyrus D. Mehta The Department of Labor’s Office of Labor Certification (OFLC) has revised the Application for Permanent Employment Certification, ETA Form 9089, as well as the corresponding Application for Prevailing Wage Determination, Form ETA 9141. OFLC will begin accepting these revised forms on May 16, 2023, and has posted an “unofficial watermarked preview copy” of the form “to allow stakeholders to become familiar with changes to the form.” The link to the form can be found at https://www.dol.gov/agencies/eta/foreign-labor OFLC will no longer accept any new applications submitted vi ..read more

By Cyrus Mehta and Kaitlyn Box* In recent times, immigration courts are dismissing the cases of noncitizens with great zeal. Even government attorneys are moving to dismiss these cases and Immigration Judges (IJ) are going along. This bodes well for the noncitizen who is no longer facing the specter of a removal order. On the other hand, the dismissal of the case often leaves the noncitizen in limbo. The noncitizen may have filed a viable cancellation of removal case and has been obtaining interim work authorization for many years due to the case being stuck in an IJ’s overcrowded court docke ..read more

By Cyrus D. Mehta and Kaitlyn Box* On April 11, 2023, USCIS’s  post on Twitter  created a great deal of interest and some confusion. The tweet indicated that nonimmigrants can apply for jobs or attend job interviews while in B-1 or B-2 status. The post was the subject of numerous press articles, with some incorrectly interpreting it as a change in USCIS policy or authorization for B-1/B-2 visa holders to work in the United States. The tweet read as follows: “Many people have asked if they can look for a new job while in B-1 or B-2 status. The answer is, yes. Searching for employment ..read more

By Cyrus D. Mehta and Kaitlyn Box* The Second Circuit in Garcia v. Garland upheld the BIA’s decision not to grant administrative closure under Matter of Castro-Tum, despite the fact that that the case has since been overruled. Matter of Castro -Tum, a Trump era decision, held that Immigration Judges (IJs) and the Board of Immigration Appeals (BIA) do not have the authority to administratively close cases, unless expressly authorized by a previous regulation or a previous judicially approved settlement. We have previously advocated that Matter of Castro-Tum be withdrawn and its predecessor,&nb ..read more

By Cyrus D. Mehta and Kaitlyn Box* In recent weeks, reports of PERM labor certification denials concerning the manner in which question H.10-B was completed on Form ETA 9089 have abounded from many immigration lawyers and their clients. This question asks employers to “identity the job title of the acceptable alternate occupation” if an alternate exists. The DOL has promulgated little guidance on this question, so immigration lawyers have been accustomed to completed it in a variety of ways. While some employers may prefer to list related job titles in H.10-B, a candidate’s qualifying experie ..read more

By Cyrus D. Mehta & Jessica Paszko* The list of options for an H-1B beneficiary who has been laid off is often narrow. At the top of the list sits the most obvious option: find another employer who will sponsor you for an H-1B. Although, in the current job market, which is growing more competitive due to the influx of laid off employees, there simply may not be enough open positions to fill. But laid off H-1B beneficiaries who can’t find another employer to sponsor them and who have been dreaming of setting up their own startups may not need to pack their bags and book their flights home ..read more

By Cyrus D. Mehta and Kaitlyn Box* Our previous blog discussed United States v. Helaman Hansen, a case in which the Supreme Court granted certiorari on December 9, 2022. Oral argument in the case is set for March 27, 2023. Hansen questions whether INA §274(a)(1)(A)(iv), or the “encouragement provision”, which prohibits individuals from “encourag[ing] or induc[ing] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law” is unconstitutionally overbroad. Helaman Hansen ran ..read more

By Cyrus D. Mehta and Kaitlyn Box Because an employment-based immigrant visa petition, or Form I-140, is filed by an employer on behalf of a foreign national employee who is being sponsored for permanent residency, there is sometimes a perception that both the I-140 petition and the underlying labor certification belong to the employer. They are initiated by the employer on behalf of the noncitizen employee or prospective employee who is referred to as the beneficiary. The I-140 petition is signed by the employer. Although one part of the labor certification is signed by the beneficiary, the ..read more