The effective date of the new I-9 form has been delayed for 60 days, until April 3, 2009. It was originally scheduled to take effect on February 2. The comment period on the new form now runs until March 4, 2009.
Continue reading "New I-9 Form Implementation Delayed" »
Pro-immigrant advocates believe the Obama administration will have a window of opportunity between this September and March 2010 to shepherd a comprehensive immigration package that will provide a path to legalization for an estimated 12 million undocumented residents, strengthen border security and help the ailing economy.
Part of their optimism is attributed to the large Latino vote that broke for Barack Obama by a 2-to-1 ratio in key states like Arizona, Nevada and Colorado.
Federal contractors and subcontractors will be required to begin using the U.S. Citizenship and Immigration Services’ EVerify system starting May 21, 2009, to verify their employees’ eligibility to legally work in the United States. The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council amended the Federal Acquisition Regulation (FAR) to reflect this change.
The new rule implements Executive Order 12989, as amended by President George W. Bush on June 6, 2008, directing federal agencies to require that federal contractors agree to electronically verify the employment eligibility of their employees.
It is nice to be recognized by the media from time to time. The American Bar Journal is taking an interest in Immigration law, in the February issue they feature our office and the unique H2A practice we operate.
H-2As are used by seasonal agricultural workers, who must prove that (a) they have residences in other countries they have no intention of abandoning, and that (b) they will be in the United States no longer than eight months. The ABA Journal is read by half of the nation’s 1 million lawyers every month. It covers the trends, people and finances of the legal profession from Wall Street to Main Street to Pennsylvania Avenue. We are honored.
Most employers know that they can submit H-1B petitions on behalf of foreign born professionals six months before October 1st , the first day of the federal fiscal year. First day of filing, April 1st is always very stressful. So following all of the instructions, day before April 1st, we law firm submit numerous of H-1B petitions for foreign born professionals, knowing that these would reach the government by, April 1st, the government’s official processing start date. If an H-1B petition is approved, foreign professionals can begin working on October 1.
What no one could have guessed was that in the past 2 years the government would receive over 140,000 such petitions, way too many for them all to be approved. In an event that sent shock waves through the immigration community, twice the available quota of H-1B visas was received by the Immigration Service on the very first day (or first 5 days under last year changes) it accepted petitions.
How does the government decide which employers get their workers on October 1st? Guess what, the answer is by a lottery. The first 65,000 foreign professionals to be randomly chosen get to work in the U.S. The rest get their petitions back in the mail and checks returned as well.
Of course, if these professionals are still interested in returning to the U.S., employers can petition for them again in April of 2010. If they don’t make the cut in 2009, they can try again in 2010, and so on year after year.
So how can one beat the lottery for H1B visas?
There are a few things that prospective H-1B employers and H-1B employees can do to improve the likelihood that the H-1B will be accepted by the USCIS. First, be sure that all of the appropriate documentation is contained in the H-1B petition. Second, be sure that the H-1B is submitted to the USCIS in a timely manner. Third, be sure that the H-1B is sent to the proper USCIS Service Center for adjudication.
Most importantly, H-1B petitioners should consider the possibility of utilizing filing multiple H-1B petitions. Be advised that the USCIS issued guidance concerning multiple H-1Bs. Filing a master's H-1B and bachelor's H-1B is not considered a multiple H-1B filing. Many organizations have layers and layers of subsidiaries and affiliates (different organizations with different Employer Identification Numbers) and there appears to be nothing yet in the regulations to preclude the use of those organizations as vehicles for additional H-1Bs. With each H-1B submitted, there is a statistically higher chance of one of the H-1Bs being able to "win" the lottery.
Continue reading "How to win the H1B Visa Lottery?" »
We are in the midst of the H1B season filing period. Employers and workers are getting ready to fight for visas and survive the lottery. Here is what Hillary had to say about H1B's
February 2009 Visa Bulletin shows about six months of forward movement in EB2 for India and China. There is a bit of forward movement in some of the EB3 chargeability areas.In the EB2 section China's moved forward by almost the same amount. The cutoff date for India moved to January 1, 2004. China reflects a cutoff date of January 1, 2005.
In EB3, The cutoff date for countries under the "All Chargeability Areas Except Those Listed," as well as for the Philippines, is stagnant, at May 1, 2005. India also remained unchanged, at October 15, 2001. The cutoff date for Mexico advanced by almost five months, to April 1, 2003. China also progressed to October 1, 2002.
U.S. Citizenship and Immigration Services (USCIS) has issued a new edition of Form I-9, Employment Eligibility Verification. The new form will take effect on February 2, 2009 and should not be used before that date. Until February 2, employers should continue to use the June 5, 2007 edition of the form. Both editions of the form are available at http://www.uscis.gov/i-9.
Revised Document List
The I-9 form was changed to reflect new employment eligibility verification requirements set forth in a recent regulation that will also take effect on February 2. The regulation revises the list of documents that employers may accept to establish a worker's identity and employment authorization, known as List A documents. The following documents have been added to List A on the new edition of Form I-9:
Foreign passports containing the I-551 permanent residence notation printed on a machine-readable immigrant visa. Previously, List A included only the I-551 passport stamp and I-551 permanent resident card.
The new U.S. Passport Card, which USCIS earlier announced was an acceptable document for I-9 purposes.
Passports and certain other documents for citizens of the Federated States of Micronesia and the Republic of the Marshall Islands. Eliminated from List A are several now-obsolete employment authorization documents, Forms I-688, I-688A and I-688B, which have all expired. Form I-766, the current version of the employment authorization document, remains on List A.
In addition, once the regulation takes effect, expired documents will no longer be acceptable for I-9 purposes. Only unexpired documents or documents without an expiration date (such as a Social Security card) will be acceptable.
New Status Selection for U.S. Nationals
The new edition of Form I-9 makes some changes to the part of the form in which new hires attest to their status.
In Section I of the form, an individual must indicate whether he or she is a U.S. citizen, a non-citizen national of the United States, a lawful permanent resident or a foreign national authorized to work in the United States. The new form creates a separate selection for non-citizen nationals of the United States. Previously, the form contained a single, combined selection that was chosen by workers who were either U.S. citizens or non-citizen nationals.
Non-citizen nationals of the United States are individuals who were born in American Samoa, certain residents of the Northern Mariana Islands who have not become U.S. citizens, and certain individuals who were born abroad to non-citizen U.S. nationals. Though U.S. nationals do not possess full U.S. citizenship, they are not aliens; they may enter and work in the United States without restriction. These individuals should check the new selection for non-citizen nationals when completing Form I-9.
President Obama began his first full day in office by reading the note left by former President Bush. We hope that new President will take a different path in his presidency. We know the economy is important, the war must be addressed, but Immigration reform must be a priority. Can Obama push for Immigration reform?
Even though the U.S. president is considered to be one of the most powerful leaders of the world, no U.S. president can legislate or pass a law (except in emergency circumstances as an interim measure). Enacting law is the task of the legislature, or the U.S. Congress. The president can make his viewpoint known and members of his party in the U.S. Senate or the U.S. House of Representatives may support his position, introducing bills that are often hotly debated. Once the the bill is passed by both the Senate and the House, the president then can sign the bill into law. What Obama can do, is make sure that Immigration reform will remain a key priority until such reform actually is passed. Good Luck President!!!
A national poll suggests that President-elect Barack Obama is more popular than ever despite recent speed bumps on the road to hi s inauguration. Eighty-four percent of those surveyed say they approve of how Obama is handling the presidential transition.
There have been no specific pronouncements of President-Elect Obama's immigration law and policy position in any major speech. One can try to glean his thought process and his bent of mind from his voting record on immigration matters. A brief summary of the immigration policy and the track record of President-Elect Obama might be encapsulated as follows.
He voted for Comprehensive Immigration Reform (CIR) in July 2007, which attempted to eliminate the labor certification system and provide relief to undocumented workers, who could get in line to become U.S. immigrants, by creating a new Z class of visas. This was not an amnesty or blanket forgiveness. It was a slow process, requiring payment of hefty fines and get behind others waiting for years to obtain permanent U.S. immigration benefits.
He voted for the border fence with Mexico in September 2006, as part of the immigration policy to attempt to stem the tide of new illegal border crossings.
He voted for the DREAM Act in January 2008, which would make the undocumented immigrant children, who complete high school in the U.S., eligible for legalization, considering it unfair to penalize children for the actions of their parents.
He voted for the Guest Worker Program in May 2006 which, as part of the CIR, would make a new visa class of Y visas to recognize the need for immigrants to enter the U.S. on a short-term basis to undertake work that is not being done by U.S. workers, such as farm work, crab picking, etc.
He voted against declaring English as the official language in the United States in June 2007.
Immigration law and policy is a hot-button issue that will not go away, however, so after dealing with these immediate crises, it may return as a key policy issue that our new President will need to address.
Senate Bill 9's stated purpose is to strengthen the U.S. economy, provide for additional border protection and security, add additional employment enforcement and reform and make clear existing avenues for legal immigration. It simply states that legislation should be enacted to achieve these purposes. This bill does not set forth the details as to how these tasks will be accomplished. The bill does acknowledge the heritage of the United States as a nation of immigrants.
Senate Bill 9 was placed on the Senate's calendar on January 7, 2009 and will be referred to a Senate Committee for review. This bill simply seems to be an attempt to set a pace and outline basic goals for upcoming immigration legislation. It appears to support the ongoing enforcement efforts, but is not only an enforcement-only approach. We will keep you posted on this and other up coming bills.
The January 2009 Visa Bulletin has few changes over the December 2008 Visa Bulletin in the employment-based (EB) categories. There is slight forward movement in EB2 India and China. The EB3 category had a more significant change for China, and a minor change for India. The EB categories that were current in December 2008 remain current for January 2009.
For EB2, this category remains current for all countries, with the exception of India and China. The cutoff date for India moved forward by one month, and is now July 1, 2003. China moved forward by slightly more than a month, to July 8, 2004.
For EB3, The cutoff date for the "worldwide" category, as well as the Philippines, did not change, but remains at May 1, 2005. The cutoff date for Mexico advanced slightly more than two months, to November 15, 2002. China saw more significant progress, and, for the month of January 2009, has a cutoff date of June 1, 2002. India jumped forward to an October 15, 2001 cutoff date. Under EB3, this category moved forward to March 15, 2003 for all countries. As you can see the demand for visas exceeds the supply, and the visa crisis continues.
The government is delaying a requirement that companies that receive new federal contracts check the immigration status of their employees using the Homeland Security Department’s E-verify system.
Facing a lawsuit by five industry associations, the government is delaying implementation of the rule until Feb. 20, said Lawrence Lorber, attorney for the trade groups.
The rule was supposed to take effect Jan. 15, but the industry groups, including the U.S. Chamber of Commerce, sued to block it from taking effect.
The rule would require federal contractors and subcontractors that receive new contracts to verify the employment eligibility of all new hires regardless of whether those employees will perform work on a federal contract. Existing employees assigned to government work also must be re-verified using the system.
In the final rule published Nov. 14, the government said it was not violating the statute because accepting a government contract is voluntary. Rather than a mandate for all employers, the rule is instead a condition of doing business with the government, the rule said. Outside of federal contractors, E-Verify is voluntary for the country’s employers.
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I have tried to cover most of the key issues that a couple will need in order to succeed in filing the marriage based Green Card. But with a topic a involved and ever changing as this one, there are always questions that couples still like to ask. We have compiled a list of the most common questions that people ask us when attempting to file the Marriage based Green Application in the United States. Hopefully the following Questions and Answers will make your journey through this process a little less confusing.
1. How soon can an applicant that entered the US as a tourist or under the Visa Waiver Program marry a US Citizen, Could they apply for the Green Card in the United States?
Answer: A US citizen can marry a tourist or VW visitor and apply for the Green Card from within the US. It is better to marry 60 days after entry to lift the presumption that the immigrant entered the US in order to get married.
2. How soon after marriage can the US Citizen petition and file the immigration paperwork for the immigrant spouse?
Answer: There is no waiting period that must pass before the immigration petition can be filed. Make sure to have the certified Marriage Certificate registered with the county before you can file.
3. How long will it take to get the work permit after filing the case? How long will it take to get to the final interview after filing?
Answer: Currently it takes 90 days after filing the Marriage based Green Application for the Government to issue the work permit. In some cases the final interview is scheduled even before the Work permit can be issued. In this case, if there is an approval at the interview, there will be no need for the work permit at that time. In most cases though, interviews are scheduled, 5 months or so after filing.
4. What if there is a mistake in your name or date of birth on the Green Card?
Answer: If there is a mistake on your new Green Card you must take steps to correct it immediately. If you fail to do so, you will not be able to receive your social security number and any other documents as a result. You must file form I-90 (get it from USCIS.GOV website) with USCIS. Make sure to Check box d in part 2.2 of the application. There is NO FEE to pay as it was not your fault. You will need to mail the original card to the following address:
National Benefits Center
Attn: I-551 Corrections
705B SE Melody Lane, Box 2000
Lee's Summit, MO 64063
5. How do you know what taxes to file now that you are a Green Card holder?
Answer: The Internal Revenue Service has several publications you can download or obtain from a local IRS office. www.irs.gov
" Publication 519.....US Tax Guide for Aliens
" Publication 514.....Foreign Tax Credit for Individuals
" Publication 501.....Exemptions, Standard Deduction, and Filing Information
" Publication 54.......Tax Guide for US Citizens and Resident Aliens Abroad
6. How long does a person need to wait after getting the Conditional Green Card before Applying for US Citizenship?
Answer: If the Immigrant is still married to the US Citizen and living together 3 years after getting the Conditional Green, they may apply for Citizenship. If the couple is no longer married and living together, the immigrant must wait 5 years after getting the Conditional Green in order to apply.
Last week, the Attorney General overruled the Board's decisions in Matter of Lozada, and Matter of Assaad. The decision held that there is no Fifth Amendment right to counsel in immigration proceedings. Matter of Compean-Bangaly-J-E-C, 24 I&N, Dec. 710 (A.G. 2009).
When immigrants face possible deportation, they don't have the right to a state-appointed attorney. Now, Attorney General Michael Mukasey says this means they also don't have the right to a new hearing if the lawyer they hire turns out to be incompetent or a fraud. This decision could hurt thousands of immigrants seeking to stay in the U.S.
For 20 years, various courts have ruled that the clients of such a lawyer had a constitutional right to ask for a new trial with a new attorney. But the Justice Department has disagreed with that concept, and recently some courts upheld its view. The ruling does allow the Justice Department to use its discretion to grant new trials if an immigrant can show that his lawyer's actions were "egregious," and if the agency believes the immigrant has a valid claim to avoid deportation.
ACLU and other groups plan to appeal the attorney general's new ruling, and to pressure the new Obama administration to overturn it.
As we anticipated, on January 8, 2009, USCIS updated its H-2B visa count page to announce that the cap has been reached for FY 2009. Thousands of employers in need of seasonal workers will once again need to search for alternatives.
The word "Cap" used in this posting refers to annual numerical limitations set by Congress on certain nonimmigrant visa classifications, e.g., H-1B and H-2B. Caps control the number of workers that can be issued a visa in a given fiscal year to enter the United States pursuant to a particular nonimmigrant classification. Caps also control the number of aliens already in the United States that may be authorized to change status to a cap-subject classification.
The H-2B visa is designated for temporary, non-agricultural workers and is issued for one year with two one-year extensions allowed. Sixty-six thousand visas are reserved for this category each year, with the stipulation that U.S. employers demonstrate that the need for the labor is temporary. It can be seasonal, tied to peak-load demands, or even a one-time occurrence. H-2B visas are a key staffing option for many industries including landscaping, seasonal hospitality, and seasonal construction, and are also critical at peak times in manufacturing, food packaging, and fisheries.
The recent proposed H2B visa changes may streamline the process, but will also create new challenges to employers and lawyer that specialize in this field. The H-2B program provides a viable alternative to undocumented labor and helps protect wage levels for all workers. By supporting this labor pool, many small business owners are given the opportunity to grow their business – ultimately enabling them to hire more full-time workers from the American labor force. Seasonal visas are a blessing to the US economy, not a threat.
The Senate and House of Representatives are back in Session today. This Congress is certainly promising on Immigration reform, but we are not so optimistic as to what will happen in practice.
U.S. Congressman Bennie Thompson, chairman of the Homeland Security Committee of the U.S. House of Representatives in Washington, was among the first to urge the incoming Obama Administration to place immigration reform on the list.
According to Dr. Jorge G. Castaneda, professor of Latin American and Caribbean studies at New York University in Manhattan, Immigration reform is the sort of complex and costly project that, as a rule, presidents accomplish only at the peak of their power –when their term begins,” he wrote in an Op-Ed in a national newspaper. “If Mr. Obama decides to postpone immigration reform until later, he runs the risk of no longer possessing the leverage to convince his party’s legislators to brace the furies of the extreme right wing.”
“But even without comprehensive reform, Mr. Obama can make a huge difference in the lives of millions of undocumented immigrants in the United States,” the Latin American and Caribbean scholar wrote. “Since the late 2006, the Bush Administration has been carrying out ‘tough love’ side of immigration without the generous and open-arms side, which would mean legislation for those in the United States today, and a migrant workers program for those it will need tomorrow.
According to the Dairy Herd Migrant or foreign labor is a must for the dairy industry and other parts of agriculture, and a reduction in the workforce could cost consumers considerably. Labor and immigration are tied together, and it includes both legal and illegal immigration, says David Anderson, AgriLife Extension economist in College Station, Texas.
The value of milk production is $28.7 billion and this part of the dairy industry alone provides 147,000 jobs nationwide. If the related industries are added in, it is a $55 billion industry with 363,000 jobs. If you had a foreign labor reduction of only 20 percent, you would lose 33,000 employees, $5.5 billion in sales and $1.5 billion in income, Anderson explains. Total elimination would be a lot higher, he adds. Illegal immigrants make up 50 percent of agriculture’s workers.
About 20 percent of the dairy owners said they see labor shortages and are increasing wages to attract workers. Wages are higher where competing jobs are located. There is a vacuum of available workers, in part caused by the failure to pass immigration reform and the movement of penalties from civil to criminal.
With recent H2A Visa changes, it remains to be seen how employers will battle the difficulties in staffing much needed labor force for the milk production industry.
When the Illegal Immigration Reform and Immigrant Responsibility Act was passed by Congress in 1996, among its main goals was expelling and stiffening penalties against aliens who overstay visa allowances and improving security against illegal immigration on the borders and internally. While the law achieved some its objectives, it also spawned a population of immigrants, green-card holding "lawful permanent residents," who could be more easily deported.
Key reason for this was a provision in the law that greatly expanded the list of crimes that qualified as "aggravated felonies" that would make aliens deportable. When the category of "aggravated felonies" was first added to immigration law in 1988, it encompassed only murder and trafficking in drugs or firearms. Those crimes along with a number of other violent and sex crimes remain as deportable offenses. But the 1996 law also added dozens of lesser offenses. These can include forgery, burglary, tax evasion, domestic abuse and any attempt to commit an aggravated felony. A number of crimes make aliens deportable if the sentence is a year or more, regardless of time served or whether the sentence was suspended. It even includes crimes that are misdemeanors in some states.
The legislation also reduced leeway for judges to consider providing relief. Issues such as immigration status, time lived in the U.S., existence of family who are citizens, ties to the community, or service to the U.S., including military, are not considered.
When immigrants are arrested, they first go through the U.S. legal system. Here is where their alien status puts them at risk. Most attorneys who practice criminal defense work don't have that knowledge of immigration law and will take a plea instead of going to trial. That will put a person in the system, and often lead to deportation proceedings. Immigrants first serve their U.S. sentence before immigration proceedings and often opt for the shortest time served without understanding the implications of their sentence. Always consult an experienced Immigration Attorney before taking any plea deals.
Read the following article about Cambodian immigrants being affected by this policy
Jacob Sapochnick is recognized as one of the most innovative, up and coming Immigration Lawyers in the nation. He devotes 100% of his practice to Immigration Law, representing Corporations, Hotels, Restaurants, and other organizations, as well as, entrepreneurs, and individuals worldwide. He also provides legal support and representation in family sponsored immigration matters.
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