Visa Lawyer Blog

The H1B Frenzy is almost over, see below a sample of what some cases looked like before leaving our office.

It is likely that companies will file fewer H-1B visa applications for Fiscal Year 2010 as a result of the economic recession. However, there will still be demand for the talent and innovation that drives our Nation's economy. It is unknown how may H-1B professional and specialty occupation visa petitions will be filed tomorrow (when the USCIS begins accepting petitions for FY 2010 tomorrow). It seems almost certain that all 85,000 visas will be utilized before the fiscal year begins on October 1st, 2009.

The U.S. District Court for the Western District of Washington recently ruled in Ruiz-Diaz v. United States that a U.S. Citizenship and Immigration Services (USCIS) regulation is "unreasonable and impermissible." A federal judge has struck down a long-standing government policy that made it tougher for religious workers from other countries to remain in the United States. Chief U.S. District Judge Robert Lasnik wrote in an order issued last week that the policy was at odds with the intent of Congress.

Ruiz-Diaz potentially provides religious workers who have filed I-360 petitions with the ability to concurrently file adjustment of status applications. This would allow religious workers whose underlying R visa status is expiring (the R is valid for five years) to remain in the U.S. as adjustment of status applicants. At present, the I-360 approval process is lengthy, after which point the religious worker can file an adjustment application, due to the need to conduct a site investigation on each filing.

Under the Department of Homeland Security's policy, religious workers who came to the United States on a typical five-year temporary visa were not allowed to file for permanent residency — their green card — until a separate visa petition by their employer had been approved.

The problem was that it frequently took a long time for the government to approve those visa petitions — and by the time it did, the religious workers had left the country because their temporary visas had expired. Workers in other categories, such as aerospace and technology, are allowed to file for permanent residency before, not after, their employer's visa petition is approved, and can remain in the country while their application is pending. That amounted to discrimination against religious workers.

We welcome this decision and hope to see some changes in the Religious workers regulations to follow in the rest of the nation.

Click here for the case

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Starting April 3, employers must use a revised Employment Eligibility Verification form I-9 which is dated February 2, 2009.

Until such time, employers must continue to use the I-9 form dated June 5, 2007.

The most significant changes in the new form are:

a) Only unexpired documents will be acceptable. For example, where presently an expired driver's license is acceptable as proof of identity, starting April 3, this will no longer be true;

b) Several new documents have been added to List A (Documents which prove identity and employment authorization) including:

i) Passport Cards;

ii) Passports issued by foreign countries which contain a permanent residence notation printed on a machine-readable immigrant visa;

iii) Passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and FSM or RMI.

c) The following are no longer acceptable List A documents: Obsolete versions of the Employment Authorization Document (EAD) - Forms I-688, I-688A and I-688B. The current version of the EAD (I-766) is still an acceptable List A document.

d) The new I-9 revises Section 1 to differentiate between U.S. citizens and "noncitizen nationals of the United States". The latter category includes persons born in American Samoa, certain former citizens of the former Trust Territory of the Pacific Islands (Northern Mariana Islands) and certain children of noncitizen nationals born abroad.

In addition to using the new I-9 forms, employers should be careful not to go against the anti-discrimination and document abuse sections of the law. Make sure to conduct periodic audits of your I-9 forms and create an immigration policy in case you are audited by the government.

Yesterday, the House and Senate delivered yet another signal that the political tide for immigration reform is getting stronger with their introduction of the Development, Relief, and Education for Alien Minors (DREAM) Act [Senate] and the American Dream Act [House]. The bill is a strong bipartisan effort and a sign that the muscle for comprehensive immigration reform is getting stronger on both sides of the aisle as momentum builds.

The bill would would provide a path to U.S. citizenship for undocumented immigrants who entered the country more than five years ago while they were under the age of 16 and who complete two years of college or 2 years of military service. It aims at giving hard-working undocumented children who have always considered America “home” the opportunity to fix their status and contribute to our economy and their communities.

Senate leader Harry Reid (D-NV) praised the bill:

For many of these young people, America is the only homeland they know. Giving them the opportunity to educate themselves, or to defend our country, is good for them and for our nation. This law would grant these children temporary status while they go to college or serve in the Armed Forces. If they graduate or serve honorably, and stay out of trouble, they would be eligible for a green card and eventually for citizenship.

As I am writing this post, my fingers are hurting from the amount of H1B forms I had to sign today. We are almost ready with our cases. Yet, last minute clients are calling in need of our services. Tomorrow will be the last day we accept cases (I promised my wife:))

The H-1B filing season is upon us once again, fiercer than ever. The first day to file cap-subject petitions for FY 2010 is April 1, 2009. In the event that more petitions are received than the annual cap, USCIS will conduct a lottery to pick petitions to be adjudicated. Additionally, employers that are recipients of TARP funding have new requirements when filling out the newly revised Form I-129 and additional attestation requirements for the Labor Condition application.

USCIS has confirmed that if USCIS determines that they have received a sufficient number of cases in the first five business days of April to reach the cap, then the "lottery" will be based on petitions received all five days. USCIS will not begin to issue receipts, however, until a determination is made that sufficient H-1B petitions have been received within the first five business days of April, ending April 7, 2009.

After the "lottery" is conducted, the USCIS will then issue receipts for those cases which are selected, and the receipts will likely all have the same receipt date, April 8, 2009. USCIS has indicated that guidance will be issued to explain that all petitions received between April 1, 2009, and April 7, 2009, will have the same receipt date. This is important for those F-1 beneficiaries whose OPT will expire between April 1st and April 7th so that Designated School Officers will know that an H-1B petition was timely filed and that a beneficiary may be eligible for cap-gap employment authorization or status based on the actual filing date.

Good luck to all the H1B players!!!

We are reporting constantly on this program. As many of you know, On 23 February the United States Army initiated a pilot test that allows the enlistment of certain legal non citizens with foreign language abilities under the Military Accessions Vital to the National Interest
(MAVNI) Recruitment Pilot. This test is for individuals who live in New York City area.

We now have the official questions the Military is sending as part of the initial screening for MAVNI. In the mean to initiate faster processing of requests, applicants are encouraged to answer the following qualifying questions that will assist in expediting the records.

so here they are:

[1] Are you a US citizen?:
[2] If no, do you have an I-551Card?:
[3] Do you have an Alien Registration Number?:
[4] If No, Are you a lawful permanent resident or conditional lawful
permanent resident?
[5] Are you legally present in the United States?
[6] If yes, how long have you been in the United States?
[7] Have you been in the United States previously? From when to when?
[8] Do you have a social security number?
[9] What Type of Immigration documents or VISA's you currently possess?
[10] Are you currently attending school?
[10a]If yes, what grade are you in?
[10b]If no, what is the highest education level you have achieved?
[11] What is/ was the name of the school you attended?
[12] Are you married, single, or divorced?
[12a] If married, is your family here in the US?
[12b] If No, where are they located?
[13] Do you have children?
[13a]If yes, how many?
[14] If divorced, who has custody of them?
[15] Do you now or have you ever had any medical issues?
[15a] If so what type?
[16] Have you ever had surgery?
[16a] If yes, what type and when?
[17] Are you currently taking any medication(s)?
[17a] If so list the type, what for and how long on?
[18] Have you ever had any law violations?
[18a] If so, list the charge and date:
[19] Are you on currently on Probation?
[19a] If yes, when are you scheduled for release?
[20] Do you have any tattoos?
[20a] If yes, how many tattoos?
[21] If yes, where are they located?
[22] If yes, what is the style/look like?
[23] Have you ever processed for any branch of US military service?
[23a] If yes, where?
[23b] When?
[23c] What branch?
[24] Have or Are you currently speaking/processing with an Army
recruiter?
[25] Are you interested in Active Duty or Army Reserve?
[26] Have you attended and graduated from a US school?
[27] Have you graduated from a US residency OR possess (Education
Certificate of Foreign Medical Graduate) ECFMG?
[28] Name of last health care facility you worked at?
[29] Do you currently have an unrestricted license?
[30] Do you have any open malpractice case(s) open?
[31] Are you currently serving in foreign Military, either as Active
Duty or Reservist?
[32] Please list all the languages you speak; [33] Have you left United
States for more than 90 days in the past two years?

We will post more info about this program as it becomes available.

The Texas Border Sheriff's Coalition (TBSC) has installed video cameras mostly on private properties on the Texas border and made the streaming video on its BlueServo.net website. People can register on the site for free as "Virtual Texas Deputies" to monitor the live video and anonymously report suspicious activities via e-mail to border sheriffs.

Thousands of people are now virtual Border Patrol agents — and they're on the lookout for drug smugglers and illegal immigrants.

On Blueservo's Web site, each camera focuses on an area that's known for illegal crossing. Next to a real-time view of a grassy meadow is the message: "Look for individuals on foot carrying backpacks." A shot of a border highway says, "If you see movement from the right to the left, please report this activity."

When a citizen spots suspicious activity, they click a button on the Web site and write a report. That message goes to the corresponding sheriff's office. The sheriff may handle the problem or call the U.S. Border Patrol.

Do you feel that the program is a harmless way for volunteers to pass the time, or is the program simply a waste of time, money and resources? Feel free to share your thoughts.

Recently President Obama told the lawmakers that he will travel next month to Mexico to discuss escalating violence from drug cartels and immigration with Mexican President Felipe Calderon, White House officials said. During the campaign, Obama supported a comprehensive overhaul of immigration policy, including creation of a possible path to citizenship for illegal immigrants who are otherwise law-abiding.

President Obama has yet to tackle the issue, as his administration has grappled with the economic crisis and an increasingly crowded agenda in his two months in office. Obama said that he will work immigration system in a similar way that he has rolled out other major policy initiatives. There will be a public forum on immigration, possibly within the next two months. At that forum, key principles of a legislative package would be unveiled. We will keep our readers posted.

Read more here...

Most H1B applicants assume that as long as they mail the cases on April 1, USCIS will consider it filed. Well today we have some new clarifications from USCIS. U.S. Citizenship and Immigration Services (USCIS) today announced that it will begin accepting H-1B petitions subject to the fiscal year 2010 (FY 2010) cap on April 1, 2009. Cases will be considered accepted on the date that USCIS takes possession of the petition; not the date that the petition is postmarked. Make sure to have it sent by March 31, 2009 the latest to avoid any delays.

Read more here...

We post a practice tip from AILA member Jill Bussey at Baker and McKenzie, very useful

A close review of Paragraph E of the April 2009 Visa Bulletin, issued March 9, 2009, reveals the Employment Third Preference Worldwide and Philippine cut off of March 1, 2003 was effective immediately upon issuance of the Visa Bulletin. This has been confirmed by communications with Charles Oppenheim of the State Department. Mr. Oppenheim indicated he attempted to stave the cut-off through March, however the demand for EB3 numbers was too high. Mr. Oppenheim reiterated the information found in the Bulletin, "since over 60 percent of the Worldwide and Philippines Employment Third preference CIS demand received this year has been for applicants with priority dates prior to January 1, 2004, the cut-off date has been retrogressed to 01MAR03 to help ensure that the amount of future demand is significantly reduced. As indicated in the last sentence of Item A, paragraph 1, of this bulletin, this cut-off date will be applied immediately. It should also be noted that further retrogression or "unavailability" at any time cannot be ruled out." Mr. Oppenheim advised 85-95% of Employment Based adjudications occur through USCIS, which has been expediting the processing of Third Preference cases. He also shared that he has seen increased demand in First Preference cases from 2007. It is highly unlikely the Third Preference category will remain available in the near future. Further retrogression or "unavailability" may occur at any time.

Continue reading "Tips Regarding EB-3 Retrogression in April Visa Bulletin" »

In previosu Blog posts I reported the growing concerns from employers and workers with respect to the new H2A regs. The Department of Labor (DOL or the Department) now proposes to suspend for 9 months the H-2A regulations published on December 18, 2008, which became effective on January 17, 2009, that amended the rules governing the certification for temporary employment of nonimmigrant workers in agricultural occupations on a temporary or seasonal basis, and the enforcement of contractual obligations applicable to employers of such nonimmigrant workers. A suspension would provide the Department with an opportunity to review and reconsider the new requirements in light of issues that have arisen since the publication of the H-2A Final Rule, while minimizing the disruption to the Department, State Workforce Agencies (SWAs), employers, and workers.

To avoid the regulatory vacuum that would result from a suspension, the Department proposes to reinstate on an interim basis the rules that were in place on January 16, 2009, the day before the revised rules became effective.

In the past 4 weeks we have seen a strange and concerning trend from the California Service Center. Denials of Tourist visa extensions as well as student visa requests. Normally, the Service must issue a request for evidence or at least a notice of intent to deny, in order to allow the applicant an opportunity to explain. This trend looks like a a pattern to deny all such cases. Why are they doing this, we are still waiting to find out. The American Immigration Association Lawyers are reporting many denials of I-539s (COS from H-1B to B-1/B-2 or B-1/B-2 extensions) without RFEs (request for evidence) or NOIDs from the California Service Center since early January.

We ask readers to report such denials so we can forward this information to our association liason unit. AILA is collecting this for informational purposes to present to the Service Center, so we can stop this practice once and for all. Please email us your comments.

U.S. Citizenship and Immigration Services (USCIS) announced March 12, 2009 that the Immigrant Investor Pilot Program has been extended through September 30, 2009 due to yesterday’s signing of the “Fiscal 2009 Omnibus Appropriations Bill,” H.R. 1105.

As a result of the extension of the EB5 Pilot Program, USCIS will continue to receive, process, and adjudicate all Regional Center Proposals and Forms I-526, Immigrant Petitions by Alien Entrepreneur, and Forms I-485, Applications to Register Permanent Residence or Adjust Status, affiliated with Regional Centers relying on “indirect” job creation analysis.
Currently, there are 45 regional centers throughout the United States.

Feel free to email me for more info.

We continue the updates on the MAVNI program. Through MAVNI, the U.S. Armed Forces will recruit nationwide for health care professionals and in New York City for those fluent in certain languages.

Health care professionals will have the choice between a three-year contractual active duty tour or a six-year commitment to serving in the military's Selected Reserve. Both physicians and nurses may seek enlistment through MAVNI as health care professionals.

MAVNI language recruits must enlist for a minimum four-year contractual active duty tour. Applicants should make sure that they fully understand this commitment, and any other standard requirements beyond these time frames that apply when enlisting in the U.S. Army.

The list of medical specialties sought is set out in Appendix 2 of the Army's fact sheet. The list includes a wide range of medical practice areas and specialties for physicians. There is also a need for general dentists and oral surgeons, as well as all nursing specialties. There are other positions available, such as physician's assistant, clinical psychologist, optometrist, and veterinarian.

Languages

The MAVNI program is seeking individuals proficient in the following languages: Albanian, Amharic, Arabic, Azerbaijani, Bengali, Burmese, Cambodian-Khmer, Chinese, Czech, Hausa, Hindi, Hungarian, Igbo, Indonesian, Korean, Kurdish, Lao, Malay, Malayalam, Moro, Nepalese, Persian (both Dari and Farsi), Polish, Punjabi, Pushtu (aka Pashto), Russian, Sindhi, Sinhalese, Somali, Swahili, Tamil, Turkish, Turkmen, Urdu, and Yoruba.

The MAVNI program requires that all naturalized enlistees complete at least five years of honorable military service or their naturalization may be revoked. The MAVNI program will end on December 31, 2009, or when 1,000 individuals have been recruited, whichever occurs first. The MAVNI program could be extended or expanded, based upon decisions by the U.S. Department of Defense.

We will keep you posted for more info. If you are serious about this program, you will need to act fast.

Ever since the military released information about MAVNI, the new Citizenship opportunity, potential applicants are anxious to learn more about this unique program. The Defense Department has authorized the U.S. Army to implement, under the Military Accessions Vital to the National Interest (MAVNI) program, a test that permits the enlistment of certain legal aliens into the U.S. Army.

To be eligible for consideration, one must be legally present in the United States, and able to provide a passport, I-94 card, I-797 form, employment authorization document or other government issued documents proving legal presence in the United States.

Today I had a chance to speak in detail with the MAVNI military coordinator about the process of applying for this program. The information I was able to gather is as follows:

First of all an applicant that meets the basic requirements must file an initial application with the military online. According to the military coordinator, filing the application online is the best way to get yourself into the system and be called for further selection.

Here is a link to the only online application form for the MAVNI system where you will start the process of applying. Click here

Once the application is submitted the military will contact each applicant for further selection and review.

According to the officer that I have spoken to, there are two categories at this time. Applicants with certain language abilities (as per the military list), and health care professionals. Applicants that are not in the health care field can only apply n New York at this time. Health care professionals can apply nationwide. The program will expand to other states very soon according to our source.

Basic Qualifications

1. The applicant must be in one of the following categories at time of enlistment
a. asylee, refugee, Temporary Protected Status (TPS), or
b. nonimmigrant categories E, F, H, I, J, K, L, M, O, P, Q, R, S, T, TC, TD, TN, U, or V
2. The applicant must have been in valid status in one of those categories for at least two years immediately prior to the enlistment date, but it does not have to be the same category as the one held on the date of enlistment; and
3. An applicant who may be eligible on the basis of a nonimmigrant category at time of enlistment (see 1b above) must not have had any single absence from the United States of more than 90 days during the two year period immediately preceding the date of enlistment.

Health Care Professionals

Applicants must fill medical specialties where the service has a shortfall
Applicants must meet all qualification criteria required for their medical specialty, and the criteria for foreign-trained DoD medical personnel recruited under other authorities
Applicants must demonstrate proficiency in English
Enlisted Individuals with Special Language and Culture Backgrounds
Applicants must commit to at least 3 years of active duty, or six years in the Selected Reserve
Applicants must possess specific language and culture capabilities in a language critical to DoD
Applicants must demonstrate a language proficiency
Applicants must meet all existing enlistment eligibility criteria
Applicants must enlist for at least 4 years of active duty

We will post more information as it becomes available, feel free to call or email with your questions.

As with the predictions about the economy that things will get worse, the Visa Bulletin for April 2009 delivers some bad news, especially for EB3 visa applicants. EB3 category shows a movement backwards of almost 2 years.

Why is this happening. Here what the State Department had to say:

Despite the established cut-off date having been held for the past five months in an effort to keep demand within the average monthly usage targets, the amount of demand being received from Citizenship and Immigration Services (CIS) Offices for adjustment of status cases remains extremely high. Therefore, it has been necessary to retrogress the April cut-off dates in an attempt to hold demand within the FY-2009 annual limit. Since over 60 percent of the Worldwide and Philippines Employment Third preference CIS demand received this year has been for applicants with priority dates prior to January 1, 2004, the cut-off date has been retrogressed to 01MAR03 to help ensure that the amount of future demand is significantly reduced. As indicated in the last sentence of Item A, paragraph 1, of this bulletin, this cut-off date will be applied immediately. It should also be noted that further retrogression or “unavailability” at any time cannot be ruled out.

It has also been necessary to retrogress the Employment Third Preference Other Worker cut-off date for all countries in order to hold the issuance level within the annual limit.

What is the future predictions, none at this point. But I promise to keep you posted.

For the most recent Bulletin April 2009 click here

As the H1B season coming to an end, many lawyers, like us, are busy with preparing the H1B petitions. It feels like getting ready for a race, a big race. So who is going to win the lottery this year? Last year Indian tech firms such as TCS, Infosys and Wipro apart from scandal-hit Satyam Computer Services received maximum number of H1B work permits, as these companies sent more professionals to the US.

India's second biggest software exporter led the list of H1B visas issued last year with around 4,559 work permits, Wipro received 2,678 approvals, Satyam managed some 1,919 and TCS received around 1,539 H1B permits. According to the data released by the United States Citizenship and Immigration Services (USCIS), Microsoft, the world's biggest software maker, stood fourth in the list of top H1B users with around 1,037 work permits for foreign workers.

Because of the grim economy, the prediction is that this year's numbers will be lower, at the same time, companies are still in line to secure precious H1B spots.

Click here to see the complete list of companies that got H1B visas in 2008 Download file

Martin Miles Ulsano, age 7, the child of a member of the U.S. Navy, today recited the Oath of Allegiance at a naturalization ceremony held here in the Chapel of Hope. In doing so, he became the newest citizen of the United States, and the first child naturalized overseas.

The National Defense Authorization Act of Fiscal Year 2008 permits children of U.S service members to receive their citizenship overseas where their parent is stationed even though the child may never have been in the United States. Previous immigration law required these children to be physically present within the United States to naturalize.

Read more...

H-1B Nonimmigrant Visa Petitions for FY2010 (October 1, 2009 through September 30, 2010) may be filed starting April 1, 2009. Here are some tips provided by AILA.

How do I get my LCA before April 1, 2009?

As you are unable to submit an LCA for certification to the DOL earlier than six months prior to the beginning date of the period of intended employment (20 CFR §655.730(b)), you must set your employment start date on the LCA prior to October 1, 2009, if you want to have an LCA in hand before the filing period for H-1B cap subject petitions begins on April 1, 2009. For example, you can file and have certified an LCA that has a start date of September 15, 2009. But remember that the LCA end date cannot be longer than 3 years from the start date, so in this example the end date would be September 15, 2009. Also remember to make sure to annotate your I-129 form with a start date of October 1, 2009, but with an expiration date that coincides with the expiration date of the LCA.

What if the U.S. Degree will not be awarded by 3/31/09?

The USCIS has approved H-1B petitions for foreign nationals who have earned degrees from U.S. institutions of higher education, where the foreign national has completed all requirements for the degree, and hence, has "earned" the degree, but the degree has not been conferred. You must submit evidence that the foreign national has completed all requirements for the degree from an official at the school who is qualified to provide that information (e.g. Dean, Registrar or Department head). Be wary of letters prepared by unauthorized employees at the school stating that the student has completed all requirements toward a degree, when in fact there are still examinations or papers to complete. Be mindful that use of such documentation when the student has not completed the program may be considered fraud and such a document may result in the case being denied on the basis of ineligibility at the time of filing.

Can multiple identical petitions be filed for the same foreign national?

The USCIS will either deny or revoke multiple petitions filed by an employer for the same H-1B worker and will not refund filing fees for duplicative or multiple H-1B petitions. The rules does not prevent related employers (such as a parent company and its subsidiary) from filing petitions on behalf of the same foreign national for different positions, based on legitimate business need. Members are reminded to include evidence and/or an explanation in each filing to demonstrate why the filing is not a duplicate.

Will an F-1 nonimmigrant student be able to remain in the U.S. if his or her F-1 status expires before 10/1/2009?

On April, 8, 2008, the USCIS issued a regulation that extended the authorized stay for all F-1 students who have properly (timely) filed an H-1B petition and change of status request whose F-1 status will expire before October 1. The student is in valid status and can continue to work while the petition is pending at the USCIS. If the case is rejected, the student's F-1 status will dictate the continued ability to remain in the U.S. If the case is accepted under the quota, the student will have an extension that enables the student to remain in the U.S. and continue to work until the requested start date indicated in the H-1B petition takes effect. Therefore it is important to make sure you select change of status in Section 3 of the I-129 form to get this protection.

Continue reading "H1B Visa Lawyer - Filing Tips and Resources" »