Publications

September, 2009

TPS DENIALS MAY NOW BE APPEALED TO AN IMMIGRATION JUDGE

TPS, temporary protected status, now available to Salvadorians and Hundurans, may be reopened by an Immigration Judge in removal proceedings even if an immigrant has not appealed a denial by the Department of Homeland Security (DHS).
A Salvadorian had applied for TPS in 2002 and thereafter that were always denied but never appealed. The DHS initiated removal proceedings and the Salvadorian asked for a review of his TPS before an Immigration Judge. The Immigration Judge found the Salvadorian removable and ordered his deportation. The Board of Immigration Appeals reversed, holding that an Immigration Judge is not restricted from reviewing TPS denials notwithstanding that the Salvadorian had not appealed from the Immigration Service denials.
This is good news because the Immigration Service is often peremptory in denying TPS applications and given to making hasty decisions without considering the applicant’s entitlement.

H-1B APPLICANTS MAY STILL QUALIFY FOR THE 2010 FISCAL YEAR

H-1B petitions received by the USCIS for fiscal year 2010 are still available for applicants having bachelor’s degrees. As of now the number of applications has not yet reached the statutory limit. It is very likely that H-1B will still be available in September, 2009 and also approximately 20,000 H-1B visas set aside especially for applicants with advanced degrees (at least a Master’s degree) are still available. A candidate who is hoping to apply should do so as soon as possible as it is always possible that there may be a rush of applications before the fiscal year for 2010 ends.

REOPENING IN ABSENTIA ORDERS OF DEPORTATION

In July 2009 the Board of Immigration Appeals held that an Order of Deportation or Removal issued in absentia even if the alien departed the U.S. while under the deportation or removal order does not prevent the Immigration Judge from issuing an Order to Reopen if the motion is based on lack of notice.
If a respondent alien moves to reopen because a proper notice of hearing was not received, even if the alien left the U.S. and then reentered without proper documentation, if a respondent claims lack of notice for the prior hearing to which he/she was ordered deported in absentia, the original deportation order does not preclude a reopening if the respondent alien did not receive proper notice.
An Order entered in absentia may be cancelled upon a Motion to reopen at any time if the respondent proves that he/she did nor receive the required notice. This means the Order of Deportation was a nullity when it is cancelled and thus the alien respondent would return to the status he/she held prior to the deportation. An alien possesses a robust right to challenge a removal order on improper notice grounds.
This holding would help aliens who have returned to the U.S. without proper documentation after being deported if he/she can prove failure to receive proper notice. If would be especially helpful to undocumented aliens who are facing criminal charges for entering without inspection after a previous deportation.

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New York Immigration Lawyers > Immigration Publications > September 2009