June 29, 2008

Artist Visas - Boy George Denied Visa to the US

I am a big fan of the 80's music and was pleased to learn of Boy George's upcoming Concert Tour, passing through San Diego as well in July. Now it seems that we will be be expecting a refund for the tickets.Boy George has been denied a visa to enter the United States, according to his site.

U.S. immigration denied the visa because George, faces trial in November in London on charges of false imprisonment relating to an April 2007 incident, according to a statement from Boy George's management, posted on his site. Under US law a criminal conviction even from abroad, can lead to a visa denial or bar to enter the US.

Read the story here

June 26, 2008

July 2008 Visa Bulletin Update

This week I am attending the National American Immigration Lawyers Association Conference in Vancouver,BC. The setting is perfect as 11,000 immigration lawyers gather to discuss the most pressing issues in immigration law today.

I attended the open forum where by Government Officials from Immigration and Department of Labor share views and answer questions from the lawyers. Gov Officials said that the U.S. Department of State Visa Bulletin for July 2008 stated that all employment-based, third preference (EB3) visa numbers will be used by the end of June 2008. There are several causes of this development according to the panel experts today, including joint efforts by DOS and the USCIS to utilize all available visa numbers by the end of fiscal year (FY) 2008.

One important change that appears to be contributing to the usage of visa numbers is the February 2008 Michael Aytes (he was there today acting very cheerful and willing to answer many questions) memorandum allowing for approval of Application for Adjustment of Status (I-485) cases awaiting clearance through the Federal Bureau of Investigation (FBI)'s National Name Check Program (NNCP).

The USCIS has approved enough EB3 cases to reach its annual limit for all countries. As a result, no EB3 Adjustment of Status applications may be approved until fiscal year FY2009, which begins October 1, 2008. I will keep you posted as we get more updates during the conference.

June 24, 2008

I-140 Premium Processing for Certain Cases is now effective!

I-140 Premium processing is back, but wait not so fast. The USCIS issued an official notice informing that, as of June 16, 2008, premium processing will be available for I-140 petitions on a limited basis. The premium processing service for I-140s will only be available for foreign nationals who are reaching the end of their sixth year of H1B term and who otherwise would not be eligible for H1B extensions.

I-140 premium processing will be made available to those who need their I-140s approved in order to be eligible for H1B status beyond the six-year limit. This would apply to H1B applicants who have only 60 days remaining before the end of the H1B six-year limit, but who do not qualify for extensions based upon the priority date of the labor certification filings, alone. In that instance, the I-140 approval will permit an H1B extension for an additional three years in those situations where the priority date is not current / available.

June 22, 2008

San Diego Citizenship Lawyer - N400 Processing update

Per the USCIS announcement on June 5, 2008, USCIS is centralizing the processing of N-400’s at NBC, with one exception. Military naturalization applicants will continue to file with the Nebraska Service Center until further notice.

Movement of N-400 applications from the service centers to the National Benefits Center
(NBC) for centralized staging and subsequent processing will occur in an incremental
fashion. The Texas Service Center (TSC) will move forms from its office to the NBC
during the month of June. This movement will not involve all N-400 applications
received at the TSC, however. The TSC will only move those cases received and
accepted at their site after June 6th. Only those cases received after this date and found to
be correctly filed according to USCIS standards will be transferred to the NBC.

The California Service Center will follow suit during the month of July by transferring
only those cases meeting the above stated criteria after the specific date in July yet to be
determined and communicated. The Nebraska Service Center will be transferring its
cases received in August, in like fashion. The Vermont Service Center will conclude this
transition phase with the movement of its cases to the NBC within the month of
September. Only those cases receipted after the specific date set in September will be
moved from the VSC to the NBC.

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June 21, 2008

Deportation Order Upheld Against Former Natzi officer

Our country's commitment to bring to justice criminals against humanity is remarkable. The pursuit of Holocaust criminals shows that even after 60 years, they will face justice and be deported.

The Board of Immigration Appeals (BIA) affirmed an order directing the removal of
Josias Kumpf, 83, due to his participation in Nazi-sponsored crimes of persecution during World War II.

The BIA adopted and affirmed the January 2007 decision of Chicago-based immigration judge Jennie L. Giambastiani, who ordered Kumpf’s removal to Germany, or, in the alternative, to Austria or Serbia. The original order was based on Kumpf’s admitted wartime service as an armed SS Death’s Head guard at the Sachsenhausen Camp; at slave labor sites in Nazi-occupied France where prisoners built launching platforms for Germany's V-1 and V-2 missile attacks on England; and at the SS forced labor camp for Jews in Trawniki, Poland.

During the investigation of his activities, Kumpf admitted that he participated in a
November 1943 Nazi operation that bore the code-name "Aktion Erntefest" ("Operation Harvest Festival"), in which approximately 42,000 Jewish men, women and children were murdered at three camps in eastern Poland in only two days. Kumpf stood guard as approximately 8,000 Jewish prisoners – including approximately 400 children – were shot and killed in pits at Trawniki. According to Kumpf, his assignment was to watch for victims who were still "halfway alive" or "convulsing." If any of the prisoners attempted to escape, he stated, his job was to "shoot them to kill."

The U.S. District Court for the Eastern District of Wisconsin revoked his citizenship in May 2005.

Reads the press release here

June 18, 2008

San Diego Deportation Lawyer - The interplay between the voluntary departure provision and the motion to reopen provision

The Supreme Court’s decision in Dada v. Mukasey, No. 06-1181, 554 U.S. ___ (June 16,
2008), addresses the interplay between the voluntary departure provision, INA § 240B,
and the motion to reopen provision, INA § 240(c)(7).

The INA permits a person to file a motion to reopen within 90 days of the final administrative order of removal. However, individuals with voluntary departure usually must depart within 30 or 60 days or risk being ineligible for suspension of deportation, adjustment of status, change of status, registry, and voluntary departure for ten years. Additionally, after a person departs, the
government deems a motion to reopen withdrawn. Because the government generally
does not adjudicate motions to reopen before the voluntary departure period expires,
individuals granted voluntary departure who then become eligible for relief following the
final order may have no means to pursue this relief.

Read the summary from AILF Download file

June 16, 2008

H1B visas - Cap-Subject H-1B Update

The American Immigration Lawyers Association reports that USCIS Service Center Operations has provided the following information to AILA liaison regarding processing cases under the FY2009 H-1B cap:

1. Except for cases that were being reviewed as potential duplicate filings, all receipts have been issued for those cases selected in the random lottery. The CSC and VSC completed data entry on all selected cases on May 23, 2008, and mailing of all receipts was completed on may 24, 2008. So if you have not been issued a receipt by May 24th, your case must have not been selected.

2. Cases that were thought to be duplicate filings are being hand reviewed to determine if they are true duplicates. USCIS has received approximately 500 petitions that are believed to be duplicates. However, some of these were submitted as "protective filings" due to courier delivery confirmation problems or where the petition was sent to an incorrect Service Center. Each will be reviewed and determined on a case-by-case basis. If the second submission was accompanied by an explanation of the reason for the second submission, there is a good chance of acceptance.

3. USCIS has determined that the number of petitions selected during the random selection process will be sufficient to meet the cap limit. Therefore, the use of the reserve/cushion will not be necessary this year. USCIS has begun to mail out rejections this week.

Those not selected must be planning for H1B visa alternatives.

June 14, 2008

EB5 Green Card Program Extended

The EB-5 program allocates 10,000 visas per year for aliens and family members whose qualifying investments result in the creation or preservation of at least ten (10) full-time jobs for U.S. workers. 3,000 of these immigrant visas are set-aside for aliens who invest in designated regional centers, areas of high unemployment or other qualifying rural areas.

The EB-5 visa category started in 1991. Regional Centers started in 1993. The program was due to expire this year. The House of Representatives passed HR 5569, a bill extending the EB-5 Regional Center program for another five years.

June 12, 2008

PERM - DOL Issues Program Guidance on Role of Lawyers in Labor Certification

Following the recent announcement of the audit of all PERM cases filed by Fragomen, largest immigration law firm in the nation. A new set of rules was issued by DOL on the role of Lawyers following the PERM process.

The Department has long held the view that good faith recruitment requires that an employer’s process for considering U.S. workers who respond to certification-related recruitment closely resembles the employer’s normal consideration process. In most situations, that normal process does not involve a role for an attorney or agent (as defined in 20 C.F.R. 656.3) in assessing the ability of applicants to fill the employer's needs.

More specifically, the types of actions prohibited by 20 C.F.R. 656.10(b)(2)(i) and (ii) include:

Lawyers may not conduct any preliminary screening of applications before the employer does so, unless the attorney or agent is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed.

Attorneys and agents may not participate in the interviewing of U.S. worker applicants, unless the attorney or agent is the representative of the employer who routinely performs this function.

Under no circumstances, however, should an attorney or agent seek to dissuade an employer from its initial determination that a particular applicant is minimally qualified, able, willing and available for the position in question.

Read the Summary here Download file

June 9, 2008

AC21 - USCIS Updates and Changes

A recent, Memo from Donald Neufeld, Acting Associate Director, Domestic Operations, USCIS, provides supplemental guidance on the processing of I-140s and H-1Bs under AC21.

Some of the Key changes in this Memo are the following:

Post 6th year H1B extensions wll not be available if the workers' Labor certification or PERM application has been revoked, or if the visa petition is not submitted within 180 days following the PERM approval occured on or after July 16, 2007. If you recall this was the extended deadline following the visa Bulletin changes in July of 2007.

Employees in cap exempt H1B jobs may be granted concurrent H1B for cap subject jobs.

Persons may not take advantage of the 180 day Portability to change jobs unless an immigrant visa petition has been approved on their behalf.

Read this important Memo here Download file

June 7, 2008

Immigrant Farm Workers being used and discarded

It is getting hot here in California this time of the year, and stories of abused immigrant workers are news once again. This recent story of the death of a pregnant teenager pruning grape vines in 100-degree heat has outraged the farmworking community and sparked calls for safety reforms as laborers prepare for the long summer harvest. We also need to consider immigration reform for the thousands of undocumented workers picking our vegetables, once they become legal such human rights abuses might decrease.

Read the AP story here

June 5, 2008

Final Rule on Pre-Travel Authorization for Visa Waiver Travelers

DHS announced an interim final rule on the Electronic System for Travel Authorization (ESTA), a new online system for the Visa Waiver Program (VWP). Effective some time next year, all nationals of VWP countries who plan to travel to the U.S. under the VWP will need to receive an electronic travel authorization prior to departure.

Click here to read the FAQs on VWP Electronic System for Travel Authorization

Read the Factsheet here

June 4, 2008

DOL auditing all permanent labor certification filed by Largest Immigration Firm

We are a small immigration law firm, but we often get contracted by clients of larger firms for second opinion, under a strict confidentiality relationship. In the past few months we have been getting calls from clients or larger firms for PERM, I-140, and other related Permanent Residency cases. Sometimes, we just re assure the client that all is well, in some cases we find serious errors by the larger firms lawyers. Therefore I wasn't surprised to hear about the following decision by the DOL just this week.

The U.S. Department of Labor today announced that it has begun auditing all permanent
labor certification applications filed by attorneys at Fragomen, Del Rey, Bernsen & Loewy LLP. The department has information indicating that in at least some cases the firm improperly instructed clients who filed permanent labor certification applications to contact their attorney before hiring apparently qualified U.S. workers. The audits will determine which, if any, applications should be denied or placed into department-supervised recruitment because of improper attorney involvement in the consideration of U.S. worker applicants.

The department’s regulations specifically prohibit an employer’s immigration attorney or agent from participating in considering the qualifications of U.S. workers who apply for positions for which certification is sought, unless the attorney is normally involved in the employer’s routine hiring process. Where an employer does not normally involve immigration attorneys in its hiring process, there is no legitimate reason to consult with immigration attorneys before hiring apparently qualified U.S. workers who have responded to recruitment required by the permanent labor certification program.

Read More....

June 3, 2008

Guidance for Requesting a Replacement I-94 Where Original was Misprinted

According to the American Immigration Lawyers Association, it appears that sometime in early 2008, CBP received approximately one million I-94 Arrival-Departure cards that were misprinted such that they were missing a digit. An I-94 card should have eleven digits, comprised of nine digits, a space, and then two more digits. For example, an I-94 card might have the number 055167890 11 (eleven digits), but the misprinted cards had numbers such as 55157890 11 (with ten digits).

The misprint has resulted in problems such as the Social Security Administration refusing to issue, or delaying the issuance of, a Social Security number to a person otherwise eligible for enumeration who has an I-94 card with a number short by digit.

CBP reported that the defective I-94 cards have been recalled and replaced. It is unknown how many defective cards have been issued. Calgary Airport in Canada is one port known to have issued some of the defective cards, but there might be others.

A person with a misprinted I-94 card may request that CBP issue a new card through Deferred Inspection or at a Port of Entry.

June 2, 2008

H1B Visas - Federal Employers Do Not Have To Pay Back Wages To H-1B workers

More bad news for H1B visa holders. DOJ's Office of Legal Counsel released a memo on the payment of back wages to doctors hired on H-1B visas by the Department of Veterans Affairs ("VA"), stating "the statute authorizing the H-1B visa program does not waive the federal Government's sovereign immunity. Therefore, an administrative award of back wages to alien physicians hired by the VA under the program is barred by sovereign immunity." This is a February 11th, 2008, Memorandum Opinion for the General Counsel, VA and Solicitor, Department of Labor, Payment of Back Wages to Alien Physicians Hired Under H-1B Visa Program.


Read more below.

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