Visa Lawyer Blog

Another sad day for immigration lawyers, employers and workers. USCIS announced it has received a sufficient number of petitions to reach the congressionally mandated H-2B cap for the first half of Fiscal Year 2009.

This is a clear sign the system is not working, we need more visas to jump start our economy and workforce. As of today, employers in the hospitality, construction, retail and more will struggle to keep their business rolling. I call on employers to take a stand and let our government how they are hurting, because the system is broken.

Read the press release here Download file

I wanted to point out to an excellent article by staff writer for the ABA, Lynda Edwards, about the faith of those that help our armed forces in Iraq. Many of these people risk their lives to help our soldiers, and you would think that our government will make it easy for them to find shelter in the US, think again.

For refugees, the visa process begins with an interview by the United Nations High Commissioner for Refugees. Some must wait almost 5 years to get the process completed. According to the article, failing to aid Iraqis who’ve supported the U.S. would be a grave mistake. Ignoring them sends a dangerous message to the world: Support Americans and we’ll abandon you to be killed. Let us hope that US officials will realize the mistake they are doing by not helping such valuable resources obtain a visa and shelter in America.

Read the article here

White teens were charged in what officials said was a fatal beating of an illegal Mexican immigrant in a small northeast Pennsylvania coal town. Unless we educate our children to tolerate the immigrant population, we will hear of more stories like this one. There are 20 million illegal immigrants living among us.

Read the CNN story here...

Sad but true, it seems that H2B visas will run out in the next few days. Here is a recent count update as provided by the American Immigration Lawyers Association.

July 23, 2008 H-2B Count

On July 24, 2008 USCIS updated the count of H-2B petitions received and counted towards the H-2B cap on the USCIS website. As of July 23, 2008, 31,619 petitions have been counted towards the 33,000 cap for the first half of FY 2009.

July 21, 2008 H-2B Count

On July 21, 2008 USCIS updated the count of H-2B petitions received and counted towards the H-2B cap. As of July 21, 2008, 29,234 petitions have been counted towards the 33,000 cap for the first half of FY 2009.

July 13, 2008 H-2B Count

On July 13, 2008 USCIS updated the count of H-2B petitions received and counted towards the H-2B cap. As of July 13, 2008, 23,589 petitions have been counted towards the 33,000 cap for the first half of FY 2009.

July 7, 2008 H-2B Count

On July 7, 2008 USCIS updated the count of H-2B petitions received and counted towards the H-2B cap. As of July 7, 2008, 20,390 petitions have been counted towards the 33,000 cap for the first half of FY 2009.

July 1, 2008 H-2B Count

On July 1, 2008 USCIS updated the count of H-2B petitions received and counted towards the H-2B cap. As of July 1, 2008, 17,305 petitions have been counted towards the 33,000 cap for the first half of FY 2009.

This is a reminder to all I-601 waiver applicants, there is no fee waiver for this application no matter what is your situation. USCIS has received numerous applications filed without the appropriate fee due to an incorrect interpretation of the regulations.

The authority to waive or exempt payment of the $545 fee as discussed in the Code of Federal
Regulations 8 CFR 245.1(f) cites an October 1977 law that applied only to applications from
certain Vietnamese, Laotian and Cambodian parolees filed by October 28, 1983.

Read the press release here Download file

The government is stepping up enforcement efforts against employers. ICE announced that a former and current top executive for a McDonald's franchisee in Nevada, plead guilty to federal felony immigration offenses for encouraging undocumented foreign nationals to live in the United States.

ICE officials claim that company management employed individuals they knew were in the country illegally, including two restaurant managers, by furnishing them with names and Social Security numbers belonging to other individuals. In addition, Jimmy Moore, 47, the franchisee's former vice-president, pleaded guilty to one felony count of inducing an illegal alien to remain in the United States. At sentencing, Moore faces a maximum penalty of up to five years in prison and a $250,000 fine.

Employers beware, things will only get uglier.

Read more here

We process many TN visa cases at our office and through our self help kit guide on the TN Visa Expert Site. The TN visa is available for Canadian and Mexican citizens. The applicant must be coming to work in the United States as one of 65 job titles defined in Chapter 16, Annex 1603, Appendix 1603.d.1.
and possess the required education and/or experience.

Some applicants do not seem to fit the typical job title listed, and our job is to try to stir them in the correct direction. I wanted to bring an example of a recent successful case where we did just that. This applicant held a Bachelor of Commerce with a double Concentration in Organizational Behavior and Marketing from McGill University and a Master’s of Applied Positive Psychology from Ivy League University of Pennsylvania. Original job title was a personal coach. I have looked further into her company and other duties and reralized that Technical Writer could work. This is a good General job title that can be used very effectively when crafting NAFTA TN applications. It worked, and you can read her story below including the cover letter that we used.

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Hi Jacob, I'm in, With a fresh new TN visa in hand!

I brought a book with me, and when I went in the office, I sat down and started to read. When the agent called me, he asked what position I was applying for. I said “Technical Writer” and then laughed and added “I’m a bit of a nerd!”. He then quickly tried to find my degrees to make sure I qualified and after seeing my transcript, he said “You have a 4.0 GPA?” So I replied “Well… I already said I was a bit of a nerd!” So the agent added it all up – she gets here, sits down and reads, applies for Technical Writer and has a 4.0 GPA on her Master degree from UPenn – that’s solid! He then looked at my articles that I had printed as a proof of experience and started to read them quickly – he said he needed to read them for his own benefit, so that confirmed I was qualified!

He didn’t know that Technical Writer was on the TN list, so he had to dig out a document with all the job descriptions, find it, read it and then compare with my letter. He said I had a very nice letter and asked a few questions to validate some of what he had read, but I really didn’t get a hard time at all! I was actually surprised that it went so easy!
Half hour later, he was taking my picture and finger prints! And so here I am, very happy to be in and very grateful you advised me to go for Technical Writer! Thank you, Jacob!

Warmly,
MJ

See her Letter below

Continue reading "TN Visa Lawyer - Technical Publications Writer Success Case" »

1. There is a very high rejection rate of I-907 premium processing requests. (SCOPS chief Barbara Velarde mentioned in Vancouver at the National Immigration conference that the rejection rate was approximately 60%.) Prior to the suspension of premium processing for I-140's last Fall, only certain I-140 case types were eligible. For example, National Interest Waivers and Multinational Managers were not eligible for premium processing. Those case types are still not eligible for premium processing, even in an "H-out" situation.

2. The current program is only available if the beneficiary is in the U.S. in H-1B status. Those beneficiaries who have already run out of H-1B time, and who changed status or left the U.S., are not able to benefit at this time.

Continue reading "I-140 Premium processing update" »

Compete America on behalf of thousands of US employers write to congress in support of immigration reform. They write:

U.S. employers rely on EB green cards to keep foreign-born talent living, working and innovating in America. Yet, despite the critical importance of these visas, Congress has failed to address the well documented backlogs in the EB green card system that leave some foreign-born, highly educated professionals waiting over six to 10 years to receive a permanent resident visa. The three bills will address many shortcomings in the EB green card system. For example: • H.R. 6039, by exempting highly educated, foreign-born students earning an advanced degree in science, technology, engineering or mathematics from a U.S. university from the annual EB green card limit, would help U.S. employers retain these talented individuals in the U.S. workforce. For example, foreign nationals comprise half of the master’s and 70 percent of the Ph.D.s in electrical engineering from U.S. universities. • H.R. 5921 will help put an end to multi-year wait times by eliminating unduly restrictive per country limits on EB green cards. • H.R. 5882 will help to reduce visa backlogs by “recapturing” EB green cards from prior years that went unused due to government processing delays and making them available immediately to those who meet the requirements.

Without these incremental reforms, U.S. employers will continue to be crippled in the global competition for the world’s best talent, as more and more extremely valuable professionals from around the world take their education and abilities to competitors abroad.

DOS released the Visa Bulletin for August 2008. In addition to the 3rd Preference category, the Other Workers category is now unavailable.

EB2 category is current for all countries, except for India and China. However, the India and China cutoff date has moved forward to June 1, 2006. This is amazing forward movement, as it is the most favorable cutoff date in EB2 for either country since the July 2007 Visa Bulletin. Individuals from India and China who missed the I-485 filings during July 2007, may have the opportunity to file their I-485s in August 2008. The eligibility to file would apply to those who have EB2 priority dates prior to June 1, 2006 and are otherwise eligible to file the I-485.

Check the most recent visa bulletin here

The American Immigration Lawyers Association released an excellent piece on the above referenced topic. Please read and let me know your thoughts. Let the debate begin!

America’s economy is flailing, and 78 million baby boomers are nearing
retirement, at which point they will leave the workforce to receive massive
amounts of Social Security Administration (SSA) benefits. In a time of major
economic downturn, the unlikely “saving grace” is the immigrant population,
which pays into the Social Security system without collecting benefits.
Undocumented immigrants in the U.S. comprise approximately 5 percent of the
workforce. Contrary to popular belief, between one-half and three-quarters of
undocumented immigrants pay federal and state income taxes, Social Security
and Medicare taxes – in addition to sales and property taxes. As of October
2005, the SSA concluded that undocumented immigrants contributed an
estimated $520 billion to the Social Security system – a figure that would
increase exponentially if all of these immigrants were required to earn their legal
status and contribute their share.

Despite the absence of progressive immigration policy reform, the tax
contributions of immigrants are very evident. Even at the state level,
undocumented immigrants still pay more in taxes than they use in public
services.

• The Texas State Comptroller determined in a 2006 study that
undocumented immigrants produced $1.58 billion in state revenues,
exceeding the $1.16 billion they received in state services.
• The Oregon Center for Public Policy in 2007 estimated that
undocumented immigrants pay state income, excise, property taxes,
federal Social Security and Medicare taxes totaling between “$134 million
to $187 million annually.” Meanwhile, Oregon employers paid an
estimated $97 million to $136 million annually on behalf of their
undocumented workers.

• The Iowa Policy Project determined that “undocumented immigrants pay
an estimated aggregate amount of $40 million to $62 million in state taxes
each year.” Immigrants also make tax contributions through their
enormous purchasing power. In a 2002 study by the Center for Urban
Economic Development at the University of Chicago, researchers found
that undocumented immigrants in the Chicago metro area spent $2.81
billion in 2001 – spending which “sustained 31,908 jobs in the local
economy.”

As the baby boomers creep towards retirement and begin to strain the SSA,
immigrants will be subsidizing Social Security benefits, making retirement
possible for millions of Americans. By requiring the undocumented to come out
of the shadows and earn legal status, immigrants will not only contribute by
paying taxes, but will play a hefty role in shoring up the teetering Social Security
system, and provide a fiscal windfall to U.S. taxpayers.

I received so many emails following our most recent I-601 waiver posting about waiver success. Readers were encouraged by our clients success and learned how to plan a successful waiver. But what to do when the waiver is denied. Are there any options? I have provided below an extract from Laurel Scott's excellent article on waivers. Laurel like myself, is one of a few immigration lawyers specializing in this complex area of law.

So what to do when your I-601 waiver is denied?

An appeal following an administrative denial to an Application for Waiver of Grounds of Inadmissibility must be made to the Administrative Appeals Office (AAO). It must be filed within 30 days of the date of the denial. Note that it is possible to fee-in-amend-alter with the appeal. In such a case it is necessary to submit the I-290B and filing fee within 30 days of the denial (33 if mailed), but on the form there’s a box that can be checked indicating that the representing attorney will send the brief directly to the Administrative Appeals Office within 30 days. As the waiver decision is discretionary, it is very difficult to win an appeal. AAO does not like to overturn the discretionary decision on I-601 waivers. AAO discourages new arguments being presented on appeal that were not in the original I-601 packet, but new or ‘updated’ evidence is generally acceptable.

Once an appeal is filed, and forwarded to the AAO in Washington, DC, it is out of the hands of the USCIS office that denied the case. The OIC does not have more access to information about the appeal than the attorney. Direct inquiries to the AAO, not the office that denied the case.

Due to the lengthy processing time for appeals (can be 22 months or more) and low chance of success, consider refilling a de novo (new) I-601 packet instead, especially if the client attempted the first I-601 by himself and it is clear that a better packet can be compiled. The law is unclear on whether it is possible to file a de novo I-601 based on the same immigrant visa or K visa case. Some consulates will allow simply re-filing, but most will require starting over with a new visa petition. Most of the consulates within the jurisdictional area of the Vienna USCIS office will allow a re-filing of the I-601 without a new petition. Even starting over with a new immigrant visa petition may get a decision faster than an appeal. Also, having to start over with a new visa petition allows time to put together a better waiver packet. The process will allow for several months, rather than the 30-60 days given for preparing an appeal.

For an in-country I-601 denial, the appeal will probably not stop the client from being placed into proceedings as the I-485 would also be denied. There is nothing to lose by attempting to get Deferred Action following the I-601 denial. Other tactics for how to handle immigration proceedings following I-601 denial are beyond the scope of this advisory.
The I-290B is normally filed with the consulate, but in a few parts of the world it is filed with the CIS office. Be sure to review the instructions on the denial notice.

Continue reading "San Diego Immigration Attorney - I-601 Waiver Denial options and solutions" »

Obama knows how important is the Latino vote, and he makes it a priority to meets leaders of this powerful voting Group. Obama addressed National Council of La Raza convention, which has attracted more than 20,000 people to the San Diego Convention Center. He promised today he would make immigration reform a top priority of his first year in office if he is elected president.

He also said:

“I think it's time for a president who won't walk away from something as important as comprehensive reform just because it becomes politically unpopular,” the Illinois senator said. “I will make it a top priority in my first year as the president of the United States of America.”

Read more here....

We report on a recent Memo from Donald Neufeld, Acting Associate Director, Domestic Operations, to USCIS field offices on changes to the naturalization interview process. As you all N400 interviews are taking too long to schedule, and part of the problem is the time it takes to process such interviews at the local offices. USCIS officials hope that the new policy will improve things.

For example, one difference from current practice is the sequence – that the English and civics tests can be administered before the interview following the pre-examination check-in process, as opposed to during the actual interview. The tests must be administered by designated and trained personnel. The test questions, test administration, reasonable accommodation requirements and standards for passing remain unchanged.

We uploaded the actual internal Memo here so you can review all the up coming changes Download file

The Department of Labor continues to fight against immigration service providers. First it was the largest Law Firm in America and now a software provider. DOL announced the debarment of an immigration software company, having determined that the company willfully provided false or inaccurate information when applying for permanent labor certifications, and engaged in a pattern or practice of failing to comply with the terms of the application, ETA Form 9089.

“Debarring this company for filing false information demonstrates the department’s
ongoing commitment to safeguard the integrity of the permanent labor certification
process,” said Solicitor of Labor Gregory F. Jacob. “The department takes seriously its
responsibility to ensure program integrity, thereby protecting employment opportunities
for American workers.”

Read More Here Download file

If that's not enough for you, the U.S. Department of Labor announced that it has begun placing pending permanent labor certification applications filed by the Cohen & Grigsby law firm into department supervised recruitment. Supervised recruitment requires the employer to receive advance approval from the department for all recruitment efforts to ensure that U.S. workers are fully considered for available positions. What a mess, but until the DOL will realize that by punishing lawyers for doing their job, the Labor Certification process will not going to get any easier. Thus, the system will remain broken.

We all know that Hispanics will play a significant role in this year's presidential race between Barack Obama and John McCain. The Census Bureau reports an 18 percent jump in Hispanic voters in 2006, compared with the previous election. They are also a big part of the population in key swing states, such as Florida, New Mexico, California and Colorado.

And because this year, neither Obama nor McCain has a lock on Hispanic voters, even if it appears otherwise at the moment. Polls show that among Hispanics, Obama is leading by a 2-to-1 ratio. The presumptive Democratic nominee benefits from what is for most Hispanics, with the exception of Cuban-Americans, a near-hypnotic loyalty to the Democratic brand.

San Diego based CNN writer Ruben Navarrette Jr. has an excellent article on this in todays UT paper. Read more here....

An anxious and worried couple consulted with me recently. The spouse is American and the Husband Filipino who we will call Mr. M.

They presented me with a decision from the local Immigration office intending to deny their Marriage Adjustment Petition. They were given 30 days to file an appeal. The issue in this case was that the immigration officer determined that there was fraud in this case, and hence Mr. M doesn’t qualify for the conditional Green Card. The couple explained that the officer never looked at any of their documents. Rather, she interviewed them separately and determined her conclusions based on the answers they provided.

After reviewing the decision, it was clear that the officer never even looked at the numerous documents the couple collected together. She also ignored the medical condition that the US Citizen spouse was under. The wife suffered from a serious heart condition that affected her memory ability to communicate clearly.

We immediately got on top of the case. In visa petition proceedings, the petitioner bears the burden of establishing eligibility for the benefit sought. Matter of Brantigan, 11 I&N Dec. 493. Evidence to be considered by the reviewer officer includes evidence of combined financial assets and liabilities, length of time of cohabitation, and other relevant evidence. Chand v. INS, 1997 U.S. LEXIS 19141

Continue reading "San Diego Immigration Attorney - Winning a Marriage Adjustment Denial" »

A few days ago USCIS updated the count of H-2B petitions received and counted towards the H-2B cap. As of July 1, 2008, 17,305 petitions have been counted towards the 33,000 cap for the first half of fy 2009. For the lawyers filing H2B visas and employers needing them badly, these are bad news.

I expect all H2B visas for the first half of the year (starting October 1) to be gone by mid August, if not earlier. Those that have filed their Labor Certifications already, make sure to work with the local SWA's and Department of Labor to make sure smooth processing of your files. Also, make sure to have your I-129 packages ready, so that with the LC's are approved you will be first to file.

Due to the large number of visa refusals (mostly non immigrant) in many Consulates around the world, we can not stress to clients to be honest about past visa refusals.

For more than 25 years, consular officers have been noting visa refusals by stamping the back of an applicant's passport with "application received." Modern technology makes this step no longer necessary. The refusals are being tracked by the DOS, DHS and other federal agencies, just in a more modern manner than the ink stamp in a passport.

When filing for a nonimmigrant visa application, Form DS-156 of the DOS asks in question 31 whether the visa applicant has ever been refused a visa. If the answer is yes, it is important to provide information as to when, where, and the type of visa that was denied or refused. Not providing accurate or truthful information could result in further refusal based on fraud or material misrepresentation. Potentially, such findings could permanently prevent an individual from obtaining a visa and entering the United States. Even though certain waivers are allowed, obtaining an approval of a waiver for a nonimmigrant or immigrant visa is discretionary and not routine. So be honest and you will be in a better position.