In Matter of V-K, the Board of Immigration Appeals held that “The Board of Immigration Appeals reviews de novo an Immigration Judge’s prediction orfinding regarding the likelihood that an alien will be tortured, because it relates to whetherthe ultimate statutory requirement for establishing eligibility for relief from removal has beenmet and is therefore a mixed question of law and fact, or a question of judgment.”

In Matter of A-S-B, decided May 8, 2008, the Board of Immigration Appeals held that “(1) Under 8 C.F.R. § 1003.1(d)(3) (2008), the Board of Immigration Appeals should defer to the factual findings of an Immigration Judge, unless they are clearly erroneous, but it retains independent judgment and discretion, subject to applicable governing standards, regarding pure questions of law and the application of a particular standard of law to those facts [and] (2) In determining whether established facts are sufficient to meet a legal standard, such as “well-founded fear,” the Board has the authority to weigh the evidence in a manner different from that accorded by the Immigration Judge, or to conclude that the foundation for the Immigration Judge’s legal conclusions was insufficient or otherwise not supported by the evidence of record.”

An extremely useful portion of the USCIS’s web site is its USCIS Administrative Decisions section, which contains the analyses applied by the USCIS to a broad variety of issues, such as the eligibility criteria for work-authorized visas, the standards applied to adjustment of status applications, and the rules for granting or denying waivers of inadmissibility.

The USCIS has issued a new memorandum replacing its previous policy memoranda for the Child Status Protection Act.  As further explained therein, “This guidance significantly modifies a prior interpretation of certain provisions of the CSPA.”

The Department of State is implementing a new “Form DS-160” for nonimmigrant visas.  According to the DOS, “The Government Paperwork Elimination Act (GPEA 1998) requires that, when possible, Federal agencies use electronic forms, electronic filing, and electronic signatures to conduct agency business with the public. For this reason, the Department of State developed and introduced an electronic application process for nonimmigrant visas to eventually replace the current application process, which depends on a paper form (Form DS 156, and other forms when required, such as the Form DS-157 and Form DS-158). The first step was to offer an electronic visa application form (EVAF) as a voluntary alternative way of obtaining and preparing the Form DS-156. While the nonimmigrant visa applicant could obtain and prepare the Form DS-156 electronically, he or she was required to sign the Form DS-156 manually. On October 1, 2006, the EVAF was made mandatory worldwide wherever possible. Now, while the Department will continue to accept the EVAF (electronic Form DS-156) where necessary, it proposes to eventually eliminate the Form DS-156 entirely and replace it with the Form DS-160, an electronic form designed to be completed and signed electronically.” 

In 2008, Congress has passed Pub. L. 110-181  ((the National Defense Authorization Act for Fiscal Year 2008), Pub. L. 110-180  (the NICS Improvement Amendments Act of 2007), and Pub. L. 110-161 (the Consolidated Appropriations Act, 2008), all of which amend the Immigration and Nationality Act.

The USCIS has created a new I-765 Form which will become the only accepted form for applications for employment authorization effective July 8, 2008.

In cases where one needs to know the classification under which an alien obtained admission to the

The H-1B category has become increasingly problematic for persons not exempt from the annual numerical cap.  So who is subject to the cap, and who is exempt The exemptions are summarized in this March 24, 2008 Interim Rule., which provides inter alia, as follows: 

“Most aliens seeking H–1B nonimmigrant classification are subject to the 65,000 cap. Exempt from the 65,000 cap are aliens who: (1) Are employed at, or have received offers of employment from, an institution of higher education, or a related or affiliated nonprofit entity; (2) are employed at, or have received offers of employment from, a nonprofit research organization or a governmental research organization; or (3) have earned a master’s or higher degree from a U.S. institution of higher education. INA sec. 214(g)(5), 8 U.S.C. 1184(g)(5). A cap of 20,000 applies to the exemption based on an alien’s

For the past two years (2007 and 2008), H-1B petitions not qualifying for one of the exemptions have been placed into a random selection process., with all numbers being exhausted by way of cases filed on the first available day for filing (April 1).