Visa Lawyer Blog

The H1B season is certainly here, USCIS announced that effective January 30, 2008, certain cap exempt H-1B petitions should be filed with the California Service Center, where they will be processed by a dedicated unit. It seems that the government is getting ready for the massive filing attack due on April 1, 2008, so they are taking steps to ease the pressure.

What H1B cases are actually cap exempt?

H-1B “cap exempt” petitions, as referenced here, include petitions filed by:
• Institutions of higher education, as defined in section 101(a) of the Higher Education Act of 1965, 20 U.S.C. 1001(a);
• Nonprofit organizations or entities related to or affiliated with institutions of higher education; and
• Nonprofit research organizations or governmental research organizations, as defined in 8 CFR 214.2(h)(19)(iii)(C). Such institutions and organizations can indicate that their H-1B filing is cap exempt by marking Form I-129 (Petition of Non-Immigrant Worker) with a “yes” answer to questions 1, 2, or 3 in Part C of the H-1B Data Collection and Filing Fee Exemption Supplement (page 10).

Continue reading "H1B Visa - Centralized Filing for Certain H-1B Cap-Exempt cases" »

Immigration legal and illegal, provides one of the clearest contrasts between the parties. While both Democrats and Republicans advocate various enforcement measures, most of the Republican contenders refuse to accept legalizing an estimated 22 million undocumented immigrants now in the U.S.; all the Democratic contenders support it. GOP candidates have highlighted their hard line approach, while Democrats have generally avoided the topic unless asked.

Below is a CNN summary of the candidates' take on immigration. Click here to read more

I was invited to comment on the State of Union speech yesterday on the Rick Amato Show, it was obvious that the President was going to mention the Immigration issue, and he did. He briefly mentioned that Congress has a responsibility to fix our broken system.

I am very optimistic, McCain's win in Florida today maybe an indication that we are getting ready for a possible change. The foreign Born community in thid country will support the Candidate that will take a chance on immigration reform. Ruben Navarrette Jr.writes today:

For the foreign-born, many of whom care deeply about the immigration issue, maybe the person who deserves their support in November isn't the candidate who voted to build a wall along the U.S.-Mexican border (Barack Obama) or the one who equivocated on giving illegal immigrants driver's licenses only to cave in and oppose it (Hillary Clinton). Maybe it's the guy who stuck his neck out and co-sponsored with Ted Kennedy, no less, a comprehensive immigration reform bill that offered a path to legal status and made him a pariah in his own party.

And maybe it's the person who, despite learning that protecting the border is the first priority, still stuck by his guns about the need for a comprehensive approach: Viva McCain.

Read his post here

I will also post my radio podcast in the next few days.

We process numerous EB1 cases at the firm, I consider theses case to be the most difficult and challenging to win. Take for example the recent AAO non precedent denial of an EB1 case. The AAO upholds the denial of an I-140 petition for classification as a research scientist of extraordinary ability, finding that the petitioner failed to establish sustained national or international acclaim. Evidence in many of the categories was rejected as not setting the individual apart from others in the field.

The EB-1 visa is an immigrant visa, which allows foreign nationals with 'extraordinary ability' in the sciences, arts, education, business, or athletics to obtain permanent residency in the U.S. The achievements must have been demonstrated by sustained national or international acclaim be recognized in the field through extensive documentation.

Read the court decision here Download file

A few days ago, the government announced that Assistant Secretary Myers signed a memorandum of agreement with the Deputy Foreign Minister for Vietnam regarding the repatriation of Vietnamese nationals who have been ordered removed. The agreement will enter into force in 60 days.

The repatriation agreement is the culmination of almost a decade of negotiations between the United States Department of State and the government of Vietnam. Under this agreement, Vietnamese nationals who arrived in the United States on or after July 12, 1995 are subject to return to Vietnam. To date, this will affect approximately 1,500 Vietnamese nationals currently living in the U.S.

Read the press release Download file

It is amazing to see the reaction from the public across the globe to Heath Ledger's death. Maybe it is because he is so different from the regular hollywood crowd, maybe because in this day and age he was really a nice guy.

I didn't know him in person but, I was assisting a client working in the movie "Dark Knight" to obtain a work visa. The movie was filmed in Chicago this past summer. My client often told me about the work process and among other things working with the star Heath Ledger. He was such a kind talented star, everybody just liked him.

I send my deepest sympathy to his family and say to them that they are not mourning alone. The US also lost a great immigrant actor.

Many of us living in border cities like San Diego are used to crossing the border to Mexico as a matter of routine. Upon entry all we had to do is state US Citizen, to the USCIS officer and he would let you in. This is all changing as of January 31, 2008. On January 31, DHS is ending this practice such that oral declarations alone to prove identity and citizenship will no longer be sufficient. Visitors will be asked to present certain documentation from a specified list when entering the United States at land or sea ports of entry.

Expect longer lines at the Ports of Entry.

Read the DHS press release here

I read an interesting article on Informationweek.com regarding the Tech Skill shortage in the US. The fact is that we do have a shortage of qualified skilled tech workers whether you like it or not. How do I know that for a fact? Well maybe due to the fact that more than 300,000 skilled workers filed for H1B visas last year, competing for a mere 65,000 slots. Or maybe the numerous calls that we and thousands of other Immigration lawyers across the country get from worried employers concerned about what is going to happen this year.

Well last year the H1B quota was filled in the first day applications were received. In fact, so oversubscribed was it that the USCIS had a lottery to decide which of the almost 300,000 applicants will be fortunate enough to receive a Visa.

The unsuccessful applicants got their applications returned, together with their filing fees. We all expected that the visa numbers will be increased, but this never happened. Several large companies such as Microsoft, Apple and Dell have been lobbying hard for such an increase, but that has not produced any results so far.

InformationWeek reporter seem to think that the hunger for H1B workers is not really due to the market demand, they have a "better" theory:

But this self-serving explanation ignores the real reasons for the voracious appetite for foreign workers: their lower cost and the offshore outsourcing business model. With help from Congress, employers and university lobbyists have designed large loopholes into the H-1B program, letting employers legally pay below-market wages to those workers. Also, the H-1B and L-1 guest worker visa programs are vital to the offshore outsourcing business model, as U.S. companies rotate employees for knowledge transfer and to shift work overseas.

Read the article

The reality is that most employers that hire H1b workers do so for many good reasons. These workers are truly skilled, they provide an amazing push to any employer hiring such workers and as a whole benefit the companies that hire them as well as the US economy.

I can tell you that if the Government will not wake up before March 31, 2008 and pass some H1B relief, even a quick lottery will not help this time to deal with the crisis. Immigration Voice, please do something!

I just got the recent report from the American Immigration Lawyers Association regarding receipting processing schedule. This is the most current receipting times at CSC, NSC, TSC, VSC as of 1/4/08, and at the Chicago and Los Angeles lockboxes as of 1/14/08.

Click here to get the full report Download file

On January 8, 2008, I appeared on the Rick Amato Show on radio station KCBQ 1170AM. Based in San Diego, California, The Rick Amato Show broadcasts from The Edge of America™. The Show exposes issues, raises awareness and often makes a difference in the lives of people during times of injustice. I will be the regular legal analyst on immigration issues on this show and will appear on a monthly basis or as issues arise. I am excited to be part of this great Talk Show.

Rick Amato and I spent the first hour of the show (almost, you can skip the first 5 minutes) talking about immigration law, the H2B visas crisis and the New Hampshire primary. I discussed the impact of Immigration on the elections and how the different candidates view the immigration issues. Listen to the podcast from the link Below.

Click Here to listen

Here is a link to the Written article about the show

Thousands of Immigrants are facing sever processing delays due to Name Check and other security background checks delays. In some cases the delays is so severe, causing the applicants extreme hardship in every day life. I can say that every day we get calls from clients seeking assistance with the name check delays. In most cases I suggest to approach the issue on a case by case basis.

Here are a few suggestions on how to approach this problem:

Whether you have an attorney or you are following the case yourself, you must make consistent inquiries on the case with the USCIS. Inquiries can be done via email, in writing, or in person via infopass. No matter how you do it, keep a consistent log of all inquires on the case.

If regular inquiries are not successful, try at least one congressional inquiry using your local representative/ Every Congressman or Senator have an immigration support person that you can use.

If all inquiry efforts fail, you have no choice but to sue the Government. The law suit is called writ of Mandamus. In Citizenship or Adjustment cases, this means that the U.S. federal court could require the USCIS to make a decision on a case within a reasonable timeframe, instead of delaying the decision for years and, thereby, effectively denying the individual certain constitutional rights.

Applicants and petitioners whose immigration cases have been substantially delayed by background checks may benefit from filing a writ of mandamus against the government in a U.S. federal court. The USCIS no longer expedites FBI background checks simply because a foreign national has filed a writ of mandamus action. However, the filing of a writ of mandamus case can result in the resolution of cases for which no further background investigation is required.

A writ of mandamus action may also be used to resolve delayed N400, citizenship (naturalization), cases that have been pending for more than six months. They can also be used if the USCIS fails to make a decision on a citizenship case within 120 days of the completion of the interview. Writ of mandamus actions are not limited to permanent residency and naturalization cases, and can be used when there are delays in I-485 adjusment cases as well.

Our firm recently has obtained several extremely smooth case approvals after filing writs of mandamus on behalf of our clients.

The U.S. Department of Homeland Security (DHS) announced a few days ago a final rule establishing minimum security standards for state-issued drivers’ licenses and identification cards.

Homeland Security Secretary said the following:

“The American public’s desire for greater identity protection is undeniable,” said Homeland Security Secretary Michael Chertoff. “Americans understand today that the 9/11 hijackers obtained 30 drivers licenses and ID’s,and used 364 aliases. For an extra $8 per license, REAL ID will give law enforcement and security officials a powerful advantage against falsified documents, and it will bring some peace of mind to citizens wanting toprotect their identity from theft by a criminal or illegal alien.”

The rule creates a federal identity document that every American will need in order to fly on commercial airlines, enter government buildings, open financial, and more. It will create huge administrative burdens for state governments, while providing no federal funds for implementing its onerous requirements. At the same time, it does nothing to combat terrorism and other security threats. It will create further ground for discrimination and other related issues.

I guess that time will tell.

Read the press release....

As you may know starting January 31, 2008 all US Citizens who enter the US by land and sea ports-of-entry when arriving from Canada, Mexico, the Caribbean and Bermuda will need to present a valid passport. In addition to the regular passport, a Passport card will be available.

U.S. citizens may begin applying in advance for the new U.S. Passport Card beginning February 1, 2008, in anticipation of land border travel document requirements. Cards will be available and mailed to applicants in spring 2008.

The passport card may not be used to travel by air. It will otherwise carry the rights and privileges of the U.S. passport book and will be adjudicated to the exact same standards. The Department of State is issuing this passport card in response to the needs of border resident communities for a less expensive and more portable alternative to the traditional passport book. The card will have the same validity period as a passport book: 10 years for an adult, five for children 15 and younger.

Read more here about the Passport Card

The February Visa Bulletin was just released, and it is getting worse every month. Now The EB2 category for advance degree professionals will be unavailable for a while. This is how we reward the Indian engineers and high skilled professionals that come to our country and help us move forward.

It is unclear for how long the EB2 category will be unavailable for Indian nationals, but this is certainly a sad situation for thousands of applicants waiting for visa numbers to become current. So what is next? Our prediction is that it will get more difficult to immigrate, perhaps China is on the line for the March Bulletin. We will keep you posted if anything changes in this respect.

We link to the February Visa Bulletin here

As we approach the New Hampshire 2008 presidential primary, the immigration issue should remain a key factor to be addressed by all candidates.

The importance of a reformed immigration policy in a broader homeland security strategy has made it a major subject of debate in the 2008 presidential election already. This debate escalated recently surrounding the controversial immigration reform legislation proposed in 2007, that would have granted temporary guest status to millions of illegal immigrants.

For the Candidates take on immigration click here...

The January 14th issue of Businessweek, features an important article about the future of business under an enforcement only immigration policy.

For years there has been an implicit understanding among businesses that need workers, illegal immigrants willing to do those jobs, communities that benefit from such commerce, and a government that rarely intervened. Now that understanding has been torn apart. Of 1,500 people surveyed in June by the Pew Research Center, 55% said the most effective way to reduce illegal immigration from Mexico is to increase penalties on employers. In a Democratic Presidential debate in November, Barack Obama said: "An employer has more of a chance of getting hit by lightning than being prosecuted for hiring an undocumented worker. That has to change." All of the candidates, with varying degrees of vigor, have expressed the same sentiment.

Read the entire article here

We just received breaking news from USCIS that the H2B CAP for the second half of 2008 has been reached. USCIS is hereby notifying the public that January 2, 2008 is the “final receipt date” for new H-2B worker petitions requesting employment start dates prior to October 1, 2008.

The news hit us all hard, both lawyers and employers will need to struggle to keep workers on the job and the business going. I urge employers to write to their elected officials to take action and save our economy before it is too late.

Read the press release here Download file