Visa Lawyer Blog

That was a close call for the EB5 program. The House passed legislation that would extend the regional center program. Included in the Fiscal 2009 Omnibus Appropriations bill (H.R. 1105), the law would extend the program only until September 30, 2009. This action means that Congress would need to address the issue all over again by September. The bill still must by passed by the Senate and then signed by the President.

If you check out the rules committee link and language below, you will see that the EB-5 extension language is included at the end of Division J (section 101). The language below doesn't mention EB-5 explicitly, but it does say that section 144 of the prior continuing resolution is extended until Sept. 30, 2009. Section 144 is the provision that extended EB-5 until March 6, 2009.
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http://www.rules.house.gov/111/LegText/111_omni2009.htm

SEC. 101. Sections 143, 144, and 145 of division A of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009 (Public Law 110-129; 122 Stat. 3580 et seq.) are each amended by striking "the date specified in section 106(3) of this joint resolution" and inserting "September 30, 2009".

Congress will pass the provisions of law to extend the EB-5 regional center visa programs in early March. If these programs are only extended until September 30, 2009, I recommend that foreign nationals with a stake in these programs take immediate actions to file their applications quickly.

This report was released by the American Immigration Lawyers Association today. AILA's Business Committee has prepared this list of Frequently Asked Questions about the H-1B provisions of the American Recovery and Reinvestment Act of 2009 (ARRA or the "Stimulus Bill") and its impact on H-1B employers. Some of the FAQs do not have clear answers, and the Committee will be working with the USCIS liaison committees to clarify these points in the coming weeks.

What Provision of the American Recovery and Reinvestment Act of 2009 Affects H-1B Employers?

Section 1611 of the ARRA, called the Employ American Workers Act, was added to the stimulus bill by Senators Sanders (I-Vt.) and Grassley (R-Iowa) to limit certain banks and other financial institutions from hiring H-1B workers unless they had offered positions to equally- or better-qualified US workers, and to prevent banks from hiring H-1B workers in occupations in which they had laid off US workers.

What Companies Are Covered by the EAWA?

The EAWA places new restrictions on H-1B petitions filed by any company that receives funding under title I of the Emergency Economic Stabilization Act of 2008 (Public Law 110-343, also known as the "TARP Bill") or that receives funding under Section 13 of the Federal Reserve Act (12 U.S.C. § 342 et seq., authorizing the Federal Reserve's "Discount Window" for short-term, secured loans to financial institutions and other companies).

Note that companies receiving funds under the AARA (the "stimulus bill") itself, such as engineering companies that contract with states to build the transportation infrastructure funded by the bill, are NOT subject to any restrictions - only banks and other companies receiving TARP money, or credit directly from the Federal Reserve System, are covered.

How Do I Find Out Whether An Employer Has Received Funds Triggering Application of EAWA?

Recipients of funding under the TARP program are disclosed publicly by the US Treasury, and weekly reports are available on the Emergency Economic Stabilization Act page of the Treasury Department website.

Recipients of funding through the Federal Reserve’s Discount Window program are not disclosed to the public.

What Restrictions Are Placed On Covered Employers?

The EAWA provides that it will be unlawful for any recipient of funding to "hire" an H-1B nonimmigrant unless the recipient has complied with the extra Labor Condition Application attestations previously imposed on "H-1B dependent employers." These extra attestations are:

that the employer has, prior to filing the H-1B petition, taken good-faith steps to recruit U.S. workers for the position for which the H-1B worker is sought, offering a wage that is at least as high as that required under law to be offered to the H-1B worker. The employer must also attest that, in connection with this recruitment, it has offered the job to any U.S. worker who applies and is equally or better qualified for the position.
that the employer has not laid off, and will not lay off, any U.S. worker in a job that is essentially equivalent to the H-1B position in the area of intended employment of the H-1B worker within the period beginning 90 days prior to the filing of the H-1B petition and ending 90 days after its filing.

Continue reading "H1B Visa - FAQs on the H-1B Provisions of the Stimulus Bill" »

Good news for those in the Green Card process mess. Beginning March 2, 2009, USCIS will accept Form I-907 (Request for Premium Processing Service) for
alien worker petitions filed on behalf of alien beneficiaries who, as of the date of filing the Form I-907:

Are the beneficiary of a Form I-140 petition filed in a preference category that has been
designated for premium processing service;

Have reached the sixth-year statutory limitation of their H-1B stay, or will reach the end of their sixth year of H-1B stay within 60 days of filing;

Are only eligible for a further H-1B extension under section 104(c) of the American
Competitiveness in the Twenty-first Century Act of 2000 (AC21); and Are ineligible to extend their H-1B status under section 106(a) of AC21.

Section 104(c) of AC21 permits applicants to extend their stay in H-1B nonimmigrant status in increments of up to three years, provided they are the beneficiary of an approved Form I-140 and an immigrant visa is not immediately available. Section 106(a) of AC21 permits applicants to extend their stay in H-1B nonimmigrant status in increments of up to one year, provided the Form I-140 petition or underlying labor certification has been pending for at least 365 days.

Read the press release here

From time to time scams like the one reported from New York happen. We expect more to surface in the coming years. In this case, Hundreds of immigrants were left angry and confused when the man they thought was their legal counsel, Victor M. Espinal, was arrested for allegedly posing as an immigration attorney.

Nearly 125 of Mr. Espinal's clients poured into the lobby of the New York City Bar Association on Monday evening to attend a free clinic where 54 attorneys volunteered to help them sort through their legal and immigration options.

My friend and fellow attorney Jason Abrams of Abrams & Abrams said the "real reason" immigrants frequently fall prey to fraud is because of the confusion engendered by the term "notario." In many of their home countries, unlike the United States, a "notario" or "notario publico," is a licensed attorney, and some notarios take advantage of this confusion.

Read more...

On November 25, 2008, US Secretary of Defense Robert Gates signed a memorandum authorizing the Secretaries of the Army, Navy, and Air Force to implement a new non-citizen recruiting pilot program for the United States Armed Forces. Titled “Military Accessions Vital to the National Interest” (MAVNI), the new pilot program allows certain non-citizens who are legally present in the United States to join the military and apply immediately for US citizenship without first obtaining lawful permanent residence.

The US Army MAVNI recruiting program, which seeks to recruit health care professionals and persons who speak certain strategic languages, began on Monday, February 23, 2009.

Under the MAVNI program, the Army is not sponsoring anyone for a visa or green card or authorizing anyone to enter the United States for the purpose of enlistment. This program is not available to persons who are overseas. Instead, MAVNI allows certain aliens who are already legally present in the United States to enlist. Under the Army’s rules, all MAVNI recruits must pass an English test and score 50 or higher on the Armed Forces Qualification Test (AFQT).

Here is an example from an article by Margaret Stock: A J-1 doctor who has been in the United States legally for two years and who is licensed to practice medicine in the United States may enlist in the Army Reserve under the MAVNI program. Upon enlistment, the doctor may apply for US citizenship, even if the doctor has not yet met the 2-year home residency requirement or obtained lawful permanent residence. Notwithstanding the lack of a “green card,” the doctor may receive US citizenship in six months or less. The doctor and her civilian employer will thereby save time and the thousands of dollars in costs associated with the processing of the complex paperwork normally required to move from J-1 to lawful permanent resident. In return, the United States Army Reserve will gain a new military doctor.

Read more Download file

Another evidence that the Immigration debate is heating up here in San Diego and across the nation. For the first time, Border Patrol agents formally sealed off access on the U.S. side to the plaza, for years a popular meeting place on the U.S.-Mexico border for families to visit through the fence.

The Department of Homeland Security announced late last year that it will prohibit all public access to the park where a secondary wall is under construction. Since then, the plaza has become a symbolic touchstone for those who debate border enforcement policies.

A phalanx of Border Patrol agents in off-road vehicles blocked access to the plaza entrance, causing demonstrators on both sides of the issue to gather below the bluff.

Read more...

Last year, the H-1B cap was reached after a one-week filing window starting April 1st. CIS received over 143,000 petitions for the basic quota, and 31,000 for the Masters Cap, resulting in a lottery selection process. The 11,000 not selected for the Masters level H-1B cap were returned to the basic pool and had “two bites at the apple.”

This year, we expect another lottery for both categories. Due to the recession, petition volume is expected to be significantly reduced, with perhaps a better than 65% success rate for the basic group and a 90% success rate for the advanced degree holders. An employer may only submit one petition per candidate.

Employers should review their 2009/2010 employment needs to determine the benefits of participating in this year’s H-1B cycle. Although the start date on the petition must be October 1, 2009, an approval is good for three years and the employment may actually begin later. Of particular concern are current employees with expiring status: F-1 OPT Practical Trainee, TN TradeNAFTA or J-1 Practical Trainee.

The quota does not apply to foreign nationals who currently have H-1B status and seek to extend their status, or change employers. Citizens of Chile , Singapore and Australia have separate H-1B/E-3 quotas, which have never been exhausted and which remain open year-round.

The Nursing Relief Act of 2009 has been introduced into the House of Representatives as bill HR 1001. The bill is a very good one for nurses and US patients. Unfortunately, we are a little skeptical that such a bill can survive the legislation process because of the economic crisis and other factors. Unlike the 2007 Bill, we hope that the current members of the House will see the urgent need to pass this now. Nevertheless, we are encouraged by activity and we applaud the sponsors and co-cosponsors of the bill and the underlying facilities that pushed for the bill.

The purpose of this Act is to create a new nonimmigrant visa category for registered nurses and establish admission requirements for such nonimmigrants.

The Congress finds the following:

(1) There are more vacant nursing positions in the United States than there are qualified registered nurses and nursing school candidates to fill those positions.

(2) According to the Department of Labor, the current national nursing shortage exceeds 126,000.

(3) States in the West and Southwest have a disproportionate number of nursing vacancies because of rapid population growth, which exacerbates a widening gap in the number of facilities and staff compared to patients that need care.

(4) Foreign countries such as the Philippines, India, and China have an oversupply of nurses.

(5) Major hospital systems in the United States spend hundreds of millions of dollars every year recruiting foreign nurses under our current immigration system.

(6) Current law, with certain limited exceptions, requires health care providers to sponsor desired nurses for permanent resident status while the nurses remain outside of the United States, which can take as much as 3 years.

(7) This cost is passed on to consumers and adds to the rising cost of health care.

(8) Health care providers cannot efficiently and effectively recruit qualified foreign nurses through the existing immigration process.

(9) Our health care system requires an immediate modification of Federal laws relating to recruitment of qualified foreign nurses in order to operate at an efficient and effective level.

Click here to read the Bill

U.S. Representative Luis V. Gutierrez (D-IL) announced that he will spearhead a five-week national tour—visiting 14 U.S. cities—to document the harm caused to citizens across our nation in the absence of comprehensive immigration reform.

In an unprecedented nationwide campaign, Gutierrez has partnered with local communities and churches to hold rallies for thousands of U.S. citizens whose families have been or risk being torn apart by our broken immigration system. Many members of the Congressional Hispanic Caucus are also holding similar events in their districts.

We wish him good luck in his efforts and hope for more signs towards an Immigration Reform soon.

The U.S. military will begin recruiting skilled immigrants living in this country with temporary visas, offering them the chance to become U.S. citizens in as little as six months.

Immigrants who are permanent residents, with documents commonly known as green cards, have long been eligible to enlist. The new effort, for the first time since the Vietnam War, will open the armed forces to temporary immigrants if they've lived in the United States for a minimum of two years, and have not left from more than 90 days during that time.

In recent years, as U.S. forces faced combat in two wars and recruiters struggled to meet goals for the all-volunteer military, thousands of legal immigrants with temporary visas who tried to enlist were turned away because they lacked permanent green cards, recruiting officers said. Recruiters' work became easier in the past.

The Army's one-year pilot program will begin in New York City to recruit about 550 temporary immigrants who speak one or more of 35 languages, including Arabic, Chinese, Hindi, Igbo (a tongue spoken in Nigeria), Kurdish, Nepalese, Pashto, Russian and Tamil. Spanish speakers are not eligible.

Read more...

Nothing exciting about the March Visa Bulletin. The EB2 cutoff dates for India and China continued to move forward. There is also some forward movement in EB3 for China and Mexico.

EB2 category remains current for all countries except for India and China, which show forward movement again, with cutoff dates moving by approximately 1.5 months for both countries. The cutoff date for India moved to February 15, 2004. China has a cutoff date of February 15, 2005.

EB3 no changes in the cutoff dates, other than for China and Mexico. The cutoff date for "all chargeability areas except those listed" remains at May 1, 2005; the Philippines has the same cutoff date. India also remains unchanged, backlogged at October 15, 2001. The cutoff date for Mexico has advanced by over four months, to August 15, 2003.

Click here for the most recent Bulletin

AILA and the U.S. Chamber of Commerce sent a letter to all Senators urging them to oppose Sen. Sanders’ H-1B amendment to the stimulus bill (H.R. 1), which would prevent U.S. employers who using TARP funds from accessing highly skilled, professional foreign talent that would allow them to stay competitive in the global marketplace.

U.S. Sens. Bernie Sanders (I-Vt.) and Chuck Grassley (R-Iowa) had proposed legislation last week to prohibit any firm that received money under the Troubled Assets Relief Program (TARP) from hiring foreign workers. The amendment passed last week, part of the stimulus plan being debated in the Senate,set a series of strict standards on H-1B hiring.

The Senate's amendment would require companies receiving TARP funds, mostly financial services firms, to comply with hiring rules set for "H-1B dependent" firms -- those with more than 15% of their workers on H-1B visas. Any firm receiving TARP funds will be automatically considered H-1B dependent, regardless of the percentage of H-1B workers on the payroll.

We will keep monitoring these developments. We feel that any restrictions imposed on the H1B program will only hurt our economy even further. To read the letter from AILA click here Download file

I previously reported on changes to the H2B visa program. On December 19, 2008, DHS published in the Federal Register a final rule ``Changes to Requirements Affecting H-2B Nonimmigrants,'' which provides that the Secretary of Homeland Security will publish a list of designated countries whose nationals can be the beneficiaries of an approved H-2B petition and are eligible for H-2B visas. This initial list will be composed of countries that are important for the operation of the H-2B program.

Pursuant to the final rule, this notice designates those countries the Secretary of Homeland Security, with the concurrence of the Secretary of State, has found to be eligible to participate in the H-2B program:

Argentina;
Australia;
Belize;
Brazil;
Bulgaria;
Canada;
Chile;
Costa Rica;
Dominican Republic;
El Salvador;
Guatemala;
Honduras;
Indonesia;
Israel;
Jamaica;
Japan;
Mexico;
Moldova;
New Zealand;
Peru;
Philippines;
Poland;
Romania;
South Africa;
South Korea;
Turkey;
Ukraine;
United Kingdom.

This notice does not affect the status of aliens who currently hold H-2B nonimmigrant status. We will update you on the other changes affecting this program in the next posts.

The Labor Department has released its projections for when it will phase in the new versions of the LCA Form ETA 9035 and the PERM Form ETA 9089.

The Deptartment of Labor indicates that its implementation timing for the new LCA Form ETA-9035 is:

- It will begin receiving the new form for processing on April 15, 2009.

- It will accept the existing form through May 14, 2009, then discontinue use of old form.

Its timing for implementation of the new PERM Form ETA-9089 is:

- It will begin receiving the new form for processing on July 1, 2009.

- It will accept the existing form through July 31, 2009, then discontinue use of the old form.

The The Administrative Review Board found that the employer in that case failed to report termination of the H-1B employee as required and is liable for back wages. It noted that periods of unproductiveness were not due to unwillingness or unavailability of the employee to work, thus are compensable. Administrator, Wage & Hour Div. v. Help Foundation of Omaha, Inc. et al.

Key points in this case are: (1) the ARB found that it was appropriate to award wages beyond the termination of actual employment until the time when employer filed a notification and request with the USCIS to revoke the H1B petition; and (2) the back-wage award was granted against the H1B company, as well as against the company owner, individually.

This problem is avoidable simply by paying workers, as required in the Labor Condition Application (LCA); or, if there is not sufficient work, filing an H1B amendment or terminating the H1B, as needed, in compliance with the DOL regulations.

There are presently 3-5 full time I-601 adjudicators, and 3 staff who are on duty. There is a backlog of 7000 - 9,000 I-601 applications. They are discussing opening an office in Los Angeles where they will only work on those backlog cases.

I-601 Procedure:

The applicant has to make his I-601 appointment through the Call Center. He can call to make his I-601 appointment as soon as he knows when his IV interview will take place (He just has to make his I-601 appointment for a date after his IV interview).

When an applicant arrives for his or her appointment, a clerk will take the I-601 packet. It is given to an adjudicator who spends approximately 10-15 minutes reviewing it. The adjudicator does not speak with the applicant.

The applicant is then told to pay a fee of (80) pesos at a kiosk inside the facility. This fee pays for the DHL delivery of the preliminary I-601 decision. The next day, the applicant can go to the DHL office (which is close to the Consulate) and pick up the preliminary decision.
He will either be informed that the I-601 was granted, and given instructions on how to obtain the actual immigrant visa, or he will receive a letter telling him that he has 30 days to submit additional information to support his I-601 application.

If his case is not granted right away, he can supplement the I-601 at any time up to the day he receives a decision. New information can be mailed, or sent via e-mail to the USCIS. This is good for people who prepared an I-601 without an attorney. If they hire an attorney later on, the attorney can file the supplemental documents even if it has been more than 30 days since the case was referred to the backlog. They do not need to file a new I-601.

Between 50% and 60% of I-601 waivers are approved upon filing. There is no information on what percentages of referred cases are ultimately approved. The cases in the "backlog" are taking about 13 to 15 months to decide!!

Expedited Processing:

They will consider expediting an I-601 for serious medical issues. This excludes mental/psychological conditions that have come about due to the separation. If you have a physical medical condition, or a pre-existing mental condition, you can request an expedited decision on your waiver via e-mail.

Criminal Issues:

If your client has any arrests or convictions, you must fully document and disclose them even if the charges were never filed or were dropped. They have been asking for police reports and juvenile records too! Even issues that would not make someone inadmissible can be considered for discretion. They want this information up-front from the applicant.

Denials:

If an I-601 is denied, the applicant may appeal the denial. While the appeal is pending, it is possible to request a new I-601 appointment. The applicant should first contact the call center. They are required to submit a new immigrant visa application, new fees, have a new medical, etc. Basically they have to repeat the whole IV process. However, there is no need to file a new I-130 visa petition. After the new IV interview, they can schedule a new I-601 appointment.
The applicant does not have to withdraw a pending I-601 appeal before submitting a new I-601.

Tips for legal cover letter:
• The consulate will follow BIA case law, so citing cases from a Court of Appeals is a waste of time.
• The less legalese the better; if you are going to include any, save it for the end of the letter.
• Start off your letter with a summary of the case. It is helpful to have a bullet point list of the documents you are submitting.
• Do not bother including country condition evidence since the adjudicators live in Mexico!

I-212 Applications:

The government only adjudicates I-212 applications (Application for Permission to Reapply for Admission into the United States after Deportation or Removal) in conjunction with an I-601 waiver application. So if your client does not need an I-601 waiver, CDJ will not accept their I-212 applications. These applications must be filed in the U.S.
They adjudicate the I-601 first. Because the I-601 standard is higher, if the I-601 is granted, approval of your I-212 is pretty much a given.

Continue reading "I-601 Waiver Attorney - Ciudad Juarez New Procedures 2009" »