Visa Lawyer Blog

On June 26, 2009, U.S. Citizenship and Immigration Services (USCIS) announced that the current edition of the Employment Eligibility Verification Form I-9 (Rev. 02/02/09) will continue to be valid for use beyond June 30, 2009. USCIS has requested that the Office of Management and Budget (OMB) approve the continued use of the current version of Form I-9. Once the extension request is approved, USCIS will update Form I-9. At that time, employers will be able to use either the Form I-9 with the new revision date or the Form I-9 with the 02/02/09 revision date.

Read more here..

U.S. President Barack Obama says he is committed to passing comprehensive reform of the country's immigration laws. The president told a gathering of Hispanics the nation's borders must be strengthened to stop illegal immigration.

President Obama said that while immigration is vital for America's future, illegal immigration cannot continue.

"The American people believe in immigration," he said. "But they also believe that we cannot tolerate a situation where people come to the United States in violation of the law."

At the Esperanza National Hispanic Prayer Breakfast and Conference, Mr. Obama said the millions of people who are in the U.S. illegally should have the chance to become citizens.

Continue reading "Obama Calls for US Immigration Reform " »

The Obama administration announced to use cutting-edge technologies to revamp the entire US Citizenship and Immigration Services (USCIS), so as to not only reduce the paperwork, but also the backlog and bring in more transparency into the system.

US President Barack Obama told a select bi-partisan group of Congressmen that such a system would be in place in the next 90 days, in which the USCIS will launch a vastly improved website.

This is likely to help thousands of Indian Americans every year who apply for permanent residency or Green Card, citizenship or approach USCIS for various immigration issues, but have to experience an agonizing wait.

Continue reading "Improved technology to bring transparency in US immigration process" »

If you hold a green card and know in advance that you must be outside the United States for more than one year, it's worth applying to USCIS for a reentry permit. This lets you to stay away for up to two years.

You should send in your application before leaving. Your reentry permit will serve as an entry document when you are ready to return. Reentry permits cannot be renewed and can be applied for only inside the United States. If you want to stay away for more than two years, you must return briefly and apply for another reentry permit.

The Nebraska Service Center (NSC) of the U.S. Citizenship and Immigration Services (USCIS) issued an advisement in June 2009 regarding a change in procedures related to requests for rescheduling biometrics (fingerprinting) appointments for applications for reentry permits. The NSC has advised that all applications for reentry permits will be denied if the fingerprinting is not completed within 120 days of filing. The procedures for requesting expedited fingerprinting have not changed. I assume this is due to fact that many Green Card holders living abroad were trying to apply for the permit from overseas. In order to stp the practice, USCIS is trying to impose the strict biometrics schedule to make sure applicants apply form inside the US.

Applicants either have to appear at their scheduled appointments or request to be rescheduled. This request must occur before the appointment date. A request for rescheduling must be accompanied by a reasonable excuse for the inability to appear for the scheduled appointment. Rescheduled appointments are set within a maximum 30-day timeframe. Applicants should plan their travel accordingly, as the announcement is absolute with respect to the 30-day timeframe.

Here is a good tip to avoid one's green card being considered automatically abandoned under law, it is important to return within one year, at the latest.

As of June 19, 2009, approximately 44,500 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

Employers thinking of hiring visa workers have more flexibility this year to interview and choose the best candidates as visas will be open for at least 2 more months.

President Barack Obama is expected to meet with congressional leaders of both parties today to begin laying the groundwork for sweeping immigration legislation, even though its passage this year is considered very unlikely.

With lawmakers already plunged into lots of ongoing issues, administration officials and many in Congress say it is improbable that they will be able to add anything as challenging as an immigration overhaul. Moreover, there is lack of consensus among Republicans and Democrats and it seems they remain divided even within their own parties over how to fix it. Increase in unemployment rate too adds to its chaos as there are very less supporters available in Democrats, who are actually wavering on immigration reform. It is expected that the new appointed Chairman of the Senate Judiciary subcommittee on immigration, Sen. Charles Schumer, D-N.Y. would take the point in pushing for passage of a new bill. Republicans are of the view that Obama administration needs to do a lot for such legislation.

Continue reading "President initiate Inspection and repair of Immigration legislation" »

After all the grim news about the Visa Bulletin delays we reported, I have some good news this Tuesday morning. USCIS announced today that effective June 29, 2009, it will resume Premium Processing Service for Form I-140 petitions. I-140 form is used in all Permanent residency applications based on employment. Premium processing will guarantee a 2 week processing as opposed to the lengthy regular process.

So who can use the new procedure?

USCIS will accept Premium Processing requests for Form I-140 Immigrant Petition for Alien Worker, involving EB-1 Aliens with Extraordinary Ability, EB-1 Outstanding Professors and Researchers, EB-2 Members of Professions with Advanced Degrees or Exceptional Ability not seeking a National Interest Waiver, EB-3 Professionals, EB-3 Skilled Workers, and EB-3 Workers other than Skilled Workers and Professionals.

Premium Processing Service is still not available for Form I-140, Immigrant Petition for Alien Worker, involving EB-1 Multinational Executives and Managers and EB-2 Members of Professions with Advanced Degrees or Exceptional Ability seeking a National Interest Waiver.

As our regular blog followers know, for an additional fee of $1000, the USCIS will process the designated form within 15 calendar days of receipt. This is called Premium Processing. While a decision will not necessarily be issued in 15 days, a USCIS officer will review the application and determine the appropriate action. In many instances, this action could be an approval. The officer could issue any of the following, however: a request for further evidence (RFE), a denial, a Notice of Intent to Deny (NOID), or a notice of fraud investigation. If the notice requires an applicant to respond with additional evidence and/or legal argument, the USCIS is supposed to make a final decision within 15 days of receipt of the response.

Premium processing can be a valuable, strategic tool in connection with three-year H1B extensions and the current Visa Bulletin Backlog for certain countries. We welcome the change..

Some more news to report from our local community. Three teenagers who were detained by immigration officials at a trolley station and sent to Mexico last month have been allowed to return to the United States on what is known as humanitarian parole.

The students, ages 15, 16 and 17, reunited with their families in San Diego about 10 a.m. Wednesday. They are working on hiring an attorney and will face an immigration judge in the near future to present their cases for legal residency.

The teens were among 21 suspected illegal immigrants detained at the Old Town trolley stop May 20 in a joint operation led by the U.S. Transportation Security Administration and Border Patrol.

The students, who were on their way to school, admitted to being in the country illegally after being questioned by federal agents and were voluntarily returned to Mexico, said Daryl Reed, supervisory agent for the Border Patrol. He said they were sent to Mexico after officials failed to find proper legal guardians for the teenagers in the United States.

Read more...

White House Press Secretary Robert Gibbs said there are not enough votes for the Obama administration to achieve its desired immigration reform, and change in the system as we know it today.

The plan was derailed when conservative activists, who claimed the program would have constituted "amnesty" for illegal immigrants, managed to pick off enough Republicans in the House and Senate to forestall a vote. Gibbs said that the White House would make an effort, though, to win the votes for a reform plan, for which President Obama reiterated his support.

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The U.S. Dept. of State has estimated that all 140,000 employment-based immigrant visa numbers will be used this fiscal year (October 1, 2008 through September 30, 2009). This is a statistical projection based upon the utilization of Green Cards so far. Because of greater usage in EB-4 and EB-5, the unused visas from these categories which were applied for EB-1 and EB-2 categories would no longer be helpful. So, EB-2 applicants from China and India could have an even longer wait to obtain green cards. As always, EB-1 category is doing well so far, but the number of applications is higher and it will be current for India and China during the month of July 2009, but will probably retrogress in August/September. The condition for EB-2 for country like India seems bad. Currently about 25,000 EB-2 cases (for India) are awaiting visa numbers. Like all other countries, India has a limit of 2,800 EB-2 numbers available per year plus any "fall across" and "fall down" numbers from EB-4, EB-5 and EB-1 visa numbers.

Continue reading "Green Card: Priority dates and the long wait ahead...." »

USCIS kept on updating the total number of cases received for H-1B for FY 2009-10. However, the recent USCIS H-1B cap count indicates decline in number of cases than what had been previously reported. The updated count reports the receipt of 44,400 ‘Regular’ cap cases, by June 12, 2009 which is lesser than the prior count of 47,700, given as of May 22, 2009. There is no explanation too from USCIS for this decline in trend. Thus, this reduced number may reflect either withdrawals by employers, denials by the USCIS, duplicate filings, or an error in the prior cap counts.

As of this writing, both the Advanced Degree and Regular caps remain open. We will continue to provide updated H-1B cap count information.

In a recent decision, RUIZ-DIAZ v. UNITED STATES OF AMERICA, the court ruled that Petitioners who filed or will file a Petition for Special Immigrant Religious Worker Visa (Form I-360) with United States Citizenship and Immigration Services (“USCIS”) on behalf of individual beneficiaries are hereby notified that you or your beneficiary may now file an Application for Adjustment of Status (Form I-485) and, if your beneficiary seeks employment status as an adjustment applicant, an Application for Employment Authorization (Form I-765) even if USCIS has not yet issued a final administrative decision regarding the I- 360 petition. Previously, the I-360 had to be adjudicated before the adjustment package could be filed.

The Court has invalidated USCIS’ bar against concurrent filings as an unreasonable
interpretation of the governing statute. Pursuant to an order dated June 11, 2009, USCIS is required to accept as properly filed adjustment of status applications (Form I-485) and employment authorization applications (Form I-765) from individuals who are beneficiaries of petitions for special immigrant visas (Form I-360), whether submitted concurrently with or subsequent to the visa petition, provided the applications meet USCIS’ valid filing requirements.

Bear in mind that this decision may be subject to Appeal, so things can still change. But for now this is a victory to the applicants filing under this category.

Rep. Brian Bilbray (R-Calif.) accused the White House on Saturday of playing politics with immigration reform, after President Obama delayed meeting with congressional leaders to discuss the topic this upcoming week.

The longtime anti-illegal-immigration lawmaker questioned the administration’s motives in setting up a bipartisan meeting with members of Congress on comprehensive reform only to exclude key GOP members, on both sides of the dome, from the session that White House officials announced last Friday had to be rescheduled for the second time.

Majority Leader Harry Reid (D-Nev.), a close friend of Bilbray’s despite their opposing positions on the issue, pledged to make comprehensive immigration reform happen before the end of the 111th Congress.

“As far as I’m concerned, we have three major issues we have to do this year, if at all possible: No. 1 is healthcare; No 2 is energy, global warming; No. 3 is immigration reform,” Reid said on June 4.

Read more.....

Last week I attended the Annual Immigration Lawyers conference in Las Vegas. During the conference, government officials spent some time to update the attendees of the most recent information and upcoming changes.

It seems that the collection of the $500 fraud fee for new H1B or L-1 petitions is being used to invest in hiring more investigators. One recent trend is that business practices that were standard and went unchallenged previously, now are being viewed as “fraud.” Many companies must revise their practices to meet current standards. This does not mean that these practices of employers or businesses are necessarily fraudulent.

The biggest frustration for lawyers dealing with H1B's are the unreasonable RFE's being issued by the service since the April 1 filing. USCIS is making requests for photos of the premises, copies of contracts between all involved parties, and evidence of doing business including leases, licenses, and other proof. These requests are onerous for employers, as well as disruptive and harmful to both the employer and the employee when the H1B petition is often denied without valid justification.

USCIS presumes fraud if the employer meets two out of the following three criteria: has been doing business for fewer than ten years, has fewer than 25 employees, and/or has less than $10 million in revenue. Most well-established, bona fide companies started with these drawbacks. Even many large, well-known, highly-reputable companies are being issued intensive requests for evidence (RFEs) that seem to be without basis. This trend must stop, otherwise employers will be discouraged from filing for new H1B workers.

Mr. Charles Oppenheim of the Department of State Visa Office has advised AILA of the following predictions for the movement of priority dates for the remainder of FY2009 and future years. He estimates that all 140,000 employment-based immigrant visa numbers will be used this fiscal year (October 1, 2008 through September 30, 2009). Mr. Oppenheim notes that the estimates provided on visa availability for the remainder of FY2009 were based on USCIS processing during the first 7 ½ months of the fiscal year, and any changes to USCIS processing patterns would impact availability. Mr. Oppenheim reported:

* The employment-based fourth preference, which includes religious workers and other special immigrants, has experienced a surge in usage of immigrant visa numbers this year. While this preference is current for June 2009, continued heavy demand for numbers could require the establishment of a cut-off date later in the fiscal year.

* The employment-based fifth preference (immigrant investors) has also experienced a surge in usage of immigrant visa numbers this year.

* The surge in usage of the employment-based fourth and fifth preference numbers is significant beyond those specific categories themselves because, historically, there have been substantial unused numbers in these categories which have been used to meet demand for visas in the employment-based first and second preference categories, allowing the China and India cut-off dates to advance further than would be possible if those categories are limited to only their annual limits. This means EB2 immigrants from China and India could have an even longer wait to obtain green cards.

* The EB1 category worldwide will remain current the rest of the fiscal year but demand is high.

* The EB1 categories for India and China will be current during the month of July 2009, but could require the establishment of a cut-off date in August or September should EB1 demand remain heavy. As noted above, China and India have previously benefited from the excess EB1 numbers for all other countries because excess visa numbers from other countries "fall across" the EB1 category to India and China. The high demand from other countries this year means there are fewer numbers to "fall across" to India and China.

* EB2 India. The prognosis is grim. For July 2009, the cut-off date is January 1, 2000, and the category may become unavailable in August or September of 2009. There are currently approximately 25,000 EB2 India cases which have been reviewed by USCIS and queued up at the Department of State awaiting visa numbers for the "green cards" to be approved. Like all other countries, India has a limit of 2,800 EB2 numbers available per year plus any "fall across" and "fall down" numbers from EB4, EB5 and EB1 visa numbers. Therefore, without legislative relief, the waiting time for Indian EB2 applicants may be measured in years, even decades.

* EB2 China. The prognosis is equally grim. As of July 2009, the cut-off date will be January 1, 2000 and the category may become unavailable in August or September of 2009. There are a significant amount of EB2 China cases which have been reviewed by USCIS and queued up at the Department of State awaiting visa numbers for approval of the adjustment of status. Like all other countries, China has a limit of 2,800 EB2 numbers available per year plus any "fall across" and "fall down" from EB4, EB5 and EB1 visa numbers. Therefore, without legislative relief, the waiting time for China born EB2 applicants may also be many years.

Continue reading "Department of State Advises of bad news on Visa Number Availability for Those Born in India or China!" »

The July 2009 Visa Bulletin was released. As we anticipated, the only change is the EB-2 China category which changed and retrogressed 5 years. All other categories remain unchanged. Here is a summary of the July 2009 Visa Bulletin:

* EB-1 remains current across the board.
* EB-2 remains unchanged for all categories except as noted above for EB-2 China: EB-2 (Rest of World) is current, EB-2 China and EB-2 India are January 1, 2000.
* EB-3 is unavailable for all categories.
* Other worker visa numbers are also unavailable.

In one of the comments to the July 2009 Visa Bulletin, the State Department notes that the retrogression of EB-2 China has been necessary to take into account the high demand of visa issuances so far this fiscal year. As a result, visa availability during the final quarter of the fiscal year is likely to remain very limited as some employment-based categories approach or have already reached their annual numerical limits.

The Department of Labor published a final rule, effective on June 29, 2009, that suspends the H-2A final rule published on December 18, 2009. DOL is republishing and reinstating regulations in place on January 16, 2009, for 9 months, after which the Department will either have engaged in further rulemaking or lift the suspension.

The Department of Labor released FAQs regarding the May 29, 2009, suspension of a December 18, 2009, final rule on H-2As. Read more below

Continue reading "H2A Visas - DOL Publishes Final Rule Reinstating H-2A Regulations" »

I'm at the annual meeting of the American Immigration Lawyers Association here in Las Vegas. More than 10, 000 lawyers gathered here in Las Vegas to learn about the most recent updates from the Government directly.

We just finished a session with the Department of Labor. Some of the key news is that more company audits are on the way. In fact, currently there are 200 cases pending in the audit line. They promised more audits as the icert system will become a standard in filing PERM, LCA and Prevailing wage requests.

Also H2B cases now must prevailing wage requests directly with the Chicago DOL center. There is a slight delay in processing. They are currenlty working on PWD's filed on May 8th or before. Wea ll need to be patient.

I will keep posting more updates as the day progresses. Next I am off to the USCIS open forum. More exciting news to report soon.

A few days ago, Attorney General Eric Holder, vacated the decision in Matter of Compean and directed the BIA and Immigration Judges to apply the decision in Matter of Lozada for claims of ineffective assistance of counsel, pending promulgation of relevant regulations.

Attorney General Eric Holder withdrew the decision issued by former Attorney General Mukasey on the last day of the Bush Administration, which had eviscerated the right to effective representation in Immigration Court proceedings. Attorney General Holder had stated during his confirmation process that he would review the Mukasey decision and that he disagreed with its reasoning.

By ensuring that immigrants seeking relief from the harsh consequences of deportation are assured that they will not be punished by the ineffective actions of their counsel, Attorney General Holder has reset the standard that the Constitution ensures.

As of May 29, 2009, approximately 45,800 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

Since it is probable that there will still be H-1B numbers available after June 30, U.S. employers should submit H-1B petitions for potential workers as soon as possible.

USCIS is announcing that applicants may experience up to an eight week delay in the delivery of their permanent resident card while we are in the process of upgrading our card production equipment. USCIS Field Offices will be issuing temporary evidence of permanent residence in the form of an I-551 stamp to applicants approved for permanent residence at the time of their interview. You will need to take your passport to your appointment. If you do not have a passport, you must bring a passport style photo and government issued photo identification to receive temporary evidence of permanent residence.

If the application is approved subsequent to your interview or by a Service Center or the National Benefit Center, the applicant should bring the above documents to an INFOPASS appointment to be issued temporary evidence of permanent residence in the form of an I-551 stamp.