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Saev Hernandez Immigration Practice, PLLC
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Expanded Provisional Waiver Rule to Take Effect August 29, 2016

The Department of Homeland Security published a Provisional Waiver Final Rule in the Federal Register today, July 29, 2016, implementing changes to the provisional waiver (Form I-601A) program. This rule now allows spouses and children of permanent residents, in addition to spouses of U.S. citizens, to get waivers approved before leaving the United States to attend an immigrant visa interview. Applicants for employment-based immigrant visas, certain special immigrants, and the derivative family members in each category can now use provisional waivers.

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The August 2015 Department of State Visa Bulletin reveals that the EB-3 worldwide and Mexico categories are practically current, some progress for Chinese, Indian, and Filipino employment-based cases, and steady forward movement in most family-based immigration categories, except for Mexico, which is staying still.

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The Department of Homeland Security announced an expansion to its provisional waiver program by publishing a new proposed rule in the Federal Register on July 22, 2015.  Basically, this rule proposes to allow a greater number applicants to apply for waivers of the ground of inadmissibility for unlawful presence in advance of attending immigrant visa interviews at the U.S. consulates abroad.  Now, not only spouses or children of U.S. citizens can apply for provisional waivers, but also spouses and children of lawful permanent residents.  Another huge change is that the provisional waiver program will be open to employment-based immigrant visa applicants, certain special immigrants, and the derivative family members in each category.

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On April 10, 2015, Attorney General Eric Holder vacated the November 2008 decision In re: Matter of Cristoval Silva-Trevino.  The decision had been certified by then-Attorney General Michael Mukasey.  Silva-Trevino was controversial from the start because it seemed to give the immigration enforcement apparatus more than its fair share of chances to try to construe a criminal conviction as one that would result in deportability or inadmissibility.

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Changing the H-1B worker’s place of employment to a worksite that requires employers to submit a new Labor Condition Application may affect the worker’s eligibility for H-1B status and is considered a material change in the terms and conditions of employment;
Material changes in the H-1B context require filing an amended H-1B petition along with the respective Labor Condition Application.
Employers must file amended H-1B petitions if the new worksite location is outside of the metropolitan statistical area (MSA) or the area of intended employment (area within normal commuting distance of the employment location) listed on the original, approved H-1B petition. An amended petition must be filed regardless of whether a new Labor Condition Application has already been approved and posted at the new worksite.

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The July 2015 Department of State Visa Bulletin reveals steady forward movement in most family- and employment-based immigration categories, as well as a few surprises.  

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Just last week, the Immigration and Customs Enforcement (ICE) agency issued a document clarifying its enforcement priorities.  As we blogged last year, the Obama Administration ended the controversial Secure Communities program in November 2014, and put in its place a new system of enforcement priorities. 
The new Frequently Asked Questions (FAQs) section on ICE’s website is mostly just another summary of the same priorities announced in November.  However, it also provides a few more useful details and better defines some of the sub-categories of people who are considered a priority for deportation.

The most significant new information concerns:
- Treatment of juvenile adjudications and expunged convictions,
- DUI consequences,
- Domestic violence consequences,
- ICE’s definition of “significantly abused the visa or visa waiver programs,” and
- ICE’s definition of “danger to national security.”

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Another summer, another visa system crash. Similarly to what happened last year, U.S. consulates all over the world lost the ability to process visa applications for thousands of foreign nationals, right in the middle of the busy summer season.

Those who are considering traveling abroad to apply for a visa within the next few weeks are strongly urged to postpone their trip and wait until the smoke clears and visa issuing operations get back to normal. While consular processing times are never guaranteed, following certain best practices could help hedge against visa processing delays.

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In light of the massive devastation following the recent earthquake in Nepal, the U.S. Department of Homeland Security has just issued a regulation designating Nepal for Temporary Protection Status.  This is a form of humanitarian aid to Nepal by the United States in that it will hopefully allow Nepal’s citizens who are located in the U.S. to send more direct remittances back home to the communities that are suffering following the devastating earthquakes in that country.

The U.S. government designated Nepal for TPS for a period of 18 months, effective from June 24, 2015 through December 24, 2016.

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On June 2, 2015, the federal DOL put a new item on its Regulatory Agenda, this time focused on the PERM labor certification process.  Modernization Taking Shape – PERM Recruitment

Further Impending Changes to the Employment-Based Permanent Residence System - DOL acknowledges that comments from stakeholders have made clear that the current regulations governing the first step in most employment-based permanent residence cases – the “test of the labor market” – are outdated and out of step with modern recruitment practices.  Currently, employers must place ads in Sunday newspapers, and for professional occupations, also in at least three other mediums.  The steps required for labor certification are inflexible even for those employers in industries with famous labor shortages.
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