Visa Lawyer Blog

Finally some good news coming from USCIS. The Immigration Service today issued guidance on requesting deferred action for surviving spouses of U.S. citizens who died before the second anniversary of their marriage. Surviving spouses qualify for this temporary program if they were married to, but not legally separated from, their U.S. citizen spouse at the time of that spouse’s death; did not remarry; and are currently residing in the United States. Until this Memo there has been a lot of confusion in this area of law.

Until there is a legislative solution to remedy the situation commonly referred to as the “widow penalty,” USCIS is providing interim administrative relief in the form of deferred action to surviving spouses whose U.S. citizen spouses died before the second anniversary of their marriage. The “widow penalty” prevents widow(er)s of deceased U.S. citizens, who were married less than two years at the time of the U.S. citizen’s death, from becoming permanent residents based on the marriage. Under this action USCIS also will consider favorably requests for humanitarian reinstatement where previously approved petitions for widow(er)s had been revoked because of the law.

Surviving spouses qualify for deferred action regardless of whether the U.S. citizen spouse filed a Form I- 130 petition for them. Surviving spouses may ask to have their qualifying children included in their deferred action request. To be considered a “qualifying child” of a surviving spouse, the child must be younger than age 21 or otherwise qualify as a child when the deferred action request is submitted; currently reside in the United States; and be unmarried. Surviving spouses who apply for deferred action will need to file Form I-360 with supporting documentation and the $375 filing fee with the Vermont Service Center. Work authorization will be available to surviving spouses and qualifying children who are granted deferred action and who can establish economic necessity.

We welcome this temporary program, as many spouses of US Citizens who passed away, were left in the cold with respect to their immigration status after the death of their loved one, who was the US petitioner.

Read the entire FAQ here Download file

Attorney General Andrew M. Cuomo announced on August 20 that his Office has shut down three New York companies providing unauthorized and fraudulent legal services to immigrant communities, in the latest stages of his ongoing investigation into immigration fraud. Under the terms of the agreements secured by Cuomo’s Office, Immigration Solutions and Systems, Inc. of New York, Alisandra Multiservices, Inc. of Brentwood, Long Island, and All Immigration Services of Great Neck, Long Island are permanently barred from operating a business that provides immigration-related services and must collectively pay approximately $118,000 in penalties.
Cuomo also announced separate lawsuits filed today in New York State Supreme Court against three additional companies providing legal services to immigrants which they were neither authorized nor accredited to provide. According to the lawsuits filed today in New York State Supreme Court, Immigration Community Service Corporation of Manhattan, and Professional Solutions Consultants (doing business as Reliable Clerical Services and Reliable Immigration Services), and Centro Santa Ana, both located in Queens, offered legal counsel to immigrants without being licensed attorneys or having the proper accreditation. In thousands of cases across New York City and Long Island, these companies unlawfully filed immigration petitions with United States Citizenship and Immigration Services (USCIS) on behalf of immigrants and their families, jeopardizing efforts to obtain legal status.
“The consequences of bad legal advice can be absolutely devastating,” said Attorney General Cuomo. “Fraudulent legal services can haunt individuals and their families for a lifetime. Companies and individuals that represent someone in a legal proceeding without having the authority to do so must be stopped, and my office will hold them accountable.”
The settlements also require the companies to notify all former and current clients in writing that they are no longer providing any immigration-related services and to submit quarterly reports to the Attorney General of any complaints from the public.
The lawsuits against Immigration Community Service Corporation, Professional Solutions Consultants, and Centro Santa Ana allege that the companies and their owners not only gave unlicensed legal advice and fraudulently filed petitions with USCIS, but also failed to provide consumers with written contracts in both the consumer’s native language and English, as required by law. The lawsuits seek to permanently bar the companies and their owners from providing immigration-related services in the future and seek penalties for these actions.

This is the latest development in Attorney General Cuomo’s investigation, which began with a lawsuit against Miriam Hernandez of Queens for defrauding dozens of immigrants of more than $250,000. In addition, in May 2009 Cuomo issued more than 50 subpoenas to companies and individuals who are allegedly engaged in immigration services fraud.

It is our suggestions to Individuals who have been a victim of immigration assistance fraud are urged to contact the Attorney General’s Immigration Services Fraud Unit Hotline at (212) 416-6149.

U.S. Immigration and Customs Enforcement (ICE), under the Department of Homeland Security is conducting massive I-9 Audits to trap the employers. As part of an I-9 audit, ICE agents review I-9 forms, company payroll records, W-2 reports, and other documents. They seek to determine whether the employer has properly checked the new employee's identity and work authorization, and re-verified authorization, as needed for temporary authorizations. They also ascertain whether any counterfeit documents were used as proof of identity and/or employment authorization. John T. Morton, the new Assistant Secretary of U.S. Immigration and Customs Enforcement (ICE), under the Department of Homeland Security, recently stated that ICE intends to increase its attention to auditing I-9, employment eligibility verification forms. We all are aware that I-9 forms must be completed and retained by U.S. employers under specific requirements.

I-9 audits have dramatically increased in recent months. The audits stand at 652 Notices of Inspection (NOIs) for July 2009, alone. Many more employers will be notified by ICE in the coming months that their I-9s and company records will be audited. Fines for I-9 violations range from $110 for one single, minor or technical violation, up to $3,200 per violation for serious first offenses. A third offense can lead to a fine of up to $16,000, per offense. Employers should take compliance with Form I-9 requirements seriously, as there are multiple possible violations per form.

An I-9 audit may lead ICE agents to evidence that criminal law violations have occurred. ICE may accuse employers of knowingly hiring, retaining, or even harboring workers who are not authorized for employment in the U.S. The first immigration enforcement action by the Obama Administration came to a partial conclusion on August 18, 2009 in Washington state. ICE issued a press release on August 18, 2009 announcing that two corporate directors of a family-owned business in Bellingham, Washington had pled guilty to felony immigration violations. These two directors, siblings, each pled guilty to one federal felony count of aiding and abetting The said company itself has been charged with encouraging and inducing illegal aliens to reside in the U.S. and may face stiff fines for its actions.
ICE will continue to investigate and find employers who flout our laws and hire illegal labor, in order to reduce the demand for illegal employment and protect employment opportunities for the nation's lawful workforce.

It is our sincere advice to employers to abide by the I-9 norms. We will be happy to review your I-9 forms to avoid any embarrassment from ICE in future.

Employers and potential employees (and some immigration lawyers) are very confused when it comes to H1B visa numbers this year. The major reduction in the number of filings for H1B petitions has risen questions from employers regarding whether there is a set closing date for filing H1B cap petitions for fiscal year 2010, starting October 1, 2009. The answer to this is NO. Cap-subject H1B petitions can be filed for the full FY 2010 season, or until the numbers are all used up. As of 8-27-2009, cap numbers remain available and overall usage remains insignificant. Approximately 45,000 H1B visa numbers had been used toward the regular FY2010 H1B cap.

Also playing into the availability of H1B numbers is the increased scrutiny of H1B petitions, particularly those filed by software consulting companies. This has resulted in higher rates of denials and a general crippling effect on those companies that might otherwise file additional H1B petitions. If the U.S. Citizenship and Immigration Services (USCIS) does not receive enough approvable H1B petitions to exhaust the regular H1B cap for 2010, it will continue to accept H1B petitions against this cap until the end of 2010 which will be September 30, 2010.

If the numbers of visas out until October 1st, then employers will be able to request immediate start dates for employees. This may result in some additional filings, as it is more in keeping with the actual needs of employers. I predict an increase in H1B filings as of October 1, hoping the economy will rebound at that time as well.

Facebook be careful, DHS now offers a social network website called Our Border that allows for an open dialogue with a wide network of people interested in Southwest border issues. The website offers groups such as Comprehensive Immigration Reform, USCIS, CBP, and ICE.

I guess they have a lot of resources from our filing fees:))

Any Immigration attorney with clients from the Philippines, China and Mexico, knows about the suffering of families from these countries due to the lengthy visas backlogs. Now immigrants across the country are suing the federal government to try to get their adult children into the country without another lengthy waits, sometimes decades.

Under U.S. immigration law, children 21 and older cannot immigrate under their parents' applications for green cards. Under the Child Status Protection Act of 2002, aimed at preventing children from "aging out" due to lengthy processing times, means these grown children should be allowed into the country soon after their parents file new paperwork on their behalf. But the government argues that many of those who aged out during the wait are now new applicants and must start from the beginning. They want them to start all over, this will result in many years of wait for these relatives.

The waiting crisis resulted in other social crisis. The dilemma has prompted many immigrant parents to urge their adult children to remain single while the lawsuits are pending or until they get green cards. That's because permanent residents cannot apply for their married children to get green cards and must wait to become U.S. citizens to be able to do so.

Read the Buffalo News article about this problem here

U.S. Attorney Tim Johnson, Southern District of Texas has announced sentencing and convicting of a Houston based Immigration attorney for money laundering and conspiring to engage in visa fraud. Kenneth L. Rothey, of Houston, pleaded guilty last Tuesday and was sentenced to 14 months in prison by U.S. District Judge Keith Ellison.
Rothey was a fugitive living in China from 2005 until July 2008 The ICE investigation, initiated in May 2001, lead to the indictment and subsequent extradition of Rothey from China to United States.

Evidence submitted in court said that Rothey and others created an illusory business relationship with Chinese and U.S. companies by entering into contracts of sale in exchange for a fee. On paper, each of the eight US companies was shown as a Chinese subsidiary. Rothey and members of his firm prepared and presented fraudulent petitions and supporting documents on behalf of their clients to the former INS. Ten Chinese clients were willing to pay hundreds of thousands of dollars to obtain permanent resident status through employment-based visas.

Rothey admitted his participation in the money laundering scheme between January 1999 and December 2002. One of the accused Golfarini owned and operated Capitol Services Group, a brokerage firm used to conceal money earned from the Chinese clients willing to pay as much as $100,000 each for immigrant visas and work authorization. Golfarini also used Capitol Services Group to promote the visa fraud scheme by paying recruiters who located Houston-based businesses willing to enter into contracts of sale with Chinese-based businesses and to pay representatives of the Houston-based businesses down payments between $20,000 and $30,000 toward the purported sale. Golfarini was sentenced to 18 months in prison in June 2007.

The investigation was initiated after ICE (U.S. Immigration and Customs Enforcement) received complaint about Rothey. A search warrant was subsequently executed at Rothey’s law office and Golfarini’s business in July 2004. This case was investigated by ICE and Internal Revenue Service- Criminal Investigation. The case was prosecuted by Assistant U.S. Attorneys Doug Davis and Gregg Costa.

United States DOL has advised AILA of that the iCERT system will be taken out of service on Tuesday, August 25, from approximately 5:00 AM to 11:00 AM EDT for system upgrades. DOL will be adding many new features to the application in order to better serve our needs.
Salient features in the new release include:
• The ability to Withdraw Certified LCAs on-line
• The ability for Main Account Holders (Employers as well as Attorneys/Agents) to grant account permission to their Associate Accounts. This will include the ability to grant permission to create a case, submit completed cases, and withdraw cases submitted by the Associate Account Holder as well as view the Main Account Holder.
• The ability for Associate Account Holders (Employers as well as Attorneys/Agents) to create profiles for frequently used company/attorney information, and use those profiles to pre-fill applicable sections of the Form ETA9035E
• Allow the Associate Account Holders' applications to be pre-populated with the company information specified by the Main Account Holder
• Copy the Attorney/Agent's email address with certification and denial reason(s) that were previously only sent to the employer's main contact email
• An enhanced user guide detailing more application features
• Usability and navigation enhancements

The legacy LCA Online System will remain in service and will not be affected by the outage. Please contact the OFLC help desk at oflc.portal@dol.gov for further information on the outage. For specific questions on your application, application status, or other questions that do not pertain to the outage, please contact the OFLC National Processing Center at lca.chicago@dol.gov.

President Barack Obama gave a new hope to Immigration reform movement yesterday, when he attended in a White House meeting with more that 100 immigration supporters, and indicating to go ahead with reform soon. However, there is no set deadline but it is expected to hear something in this fall unlike Mr. Obama’s earlier indication for the year to come.

The session was officially hosted by Secretary of Homeland Security Janet Napolitano, who has been sharply criticized by immigrant advocates in recent days for putting too much emphasis on enforcement and too little on reform legislation and making the immigration system more humane.

The meeting was attended by advocacy groups, religious organizations, unions, employers and law enforcement. United Farm Workers Union President Arturo Rodriguez said participants delivered blunt messages to Napolitano that she needed to adjust her public message “Very frankly, one issue was that we want to make sure you’re communicating the importance of immigration as much as you are communicating the importance of enforcement,” Rodriguez said. “We are a nation of laws. We all understand that, but simultaneously we are a nation of immigrants as well that treats people with dignity and respect. We delivered that. I think she got that message loud and clear from everybody.”

Janet Napolitano later issued a written statement emphasizing her commitment to reform.
“Today’s meeting on comprehensive immigration reform was an important opportunity to hear from stakeholders and build on the significant time I’ve spent on the Hill meeting with members of Congress on this critical subject. I look forward to working with President Obama, my colleagues in Congress and representatives from law enforcement, business, labor organizations, the interfaith community, advocacy groups and others as we work on this important issue”.

A spokesman for Obama, Nick Shapiro, said Obama’s message has not wavered.
“The President understands our nation’s immigration system is broken and needs to be fixed, and that’s why he asked Secretary Napolitano to work with stakeholders and Members of Congress to move the legislative process forward on this important issue. The President has consistently said we would begin work on comprehensive immigration reform this year, and that’s what we’re doing.”

Some of the employers who made their presence in the meeting are Hewlett-Packard, Intel, Microsoft, and Oracle, who often press for visas to hire foreign citizens including lower-wage employers such as McDonald’s, Tyson Foods, and Wal-Mart.

We are optimistic about the favorable outcome to such initiatives and will continue updating on Immigration reforms.

US economy is finally coming out of recession and one of the worst financial crisis since the economy meltdown. This was declared recently by Ben Bernanke, Chairman of Federal Reserve. Bernanke added that situation is improving in rest of the world too including US.
Bernanke stressed that despite much progress in stabilizing financial markets and trying to bust through credit clogs, consumers and businesses are still having trouble getting loans. The situation is not back to normal, he said. Restoring the free flow of credit is a critical component to a lasting recovery.

"Although we have avoided the worst, difficult challenges still lie ahead," Bernanke told the gathering. "We must work together to build on the gains already made to secure a sustained economic recovery." The remark made by Fed chief's is crucial as it two years after the financial crisis broke out and about one year after it showed its effect across US.
The creation of $787 billion stimulus package by Obama Administration to help the companies and financial institution will also not bear much fruit even after 6 months which resulted in becoming an unpopular and cause of further aggravation to the American’s. Critics have argued that the Wall Street bailouts in particular sent a message that companies that take reckless gambles will be rescued by the government. There's also the concern that the rescues put taxpayer's dollars at risk. We all aware about the case of Capitol Hill which has used the bail-out package to give hefty bonuses to employees of the very division which is responsible for its loss. The $700 billion taxpayer-funded bailout program used to prop up banks, AIG, General Motors, Chrysler and other companies also drew criticism from the public and politicians. However, the efforts to fight the Recession are commendable unlike the recession of 1930.
Bernanke asserts for the need of stricter scrutiny of the companies like AIG.

We welcome such views as it is in the interest of American Tax-payers. Sudden collapse of Lehman Brothers jolted the entire financial sector and added more fuel to recession. Hence, the constant check in any form will be beneficial to US economy and public at large.

The immigration system mirrors the economy, now we know it. H1B visas are still available with more than 15,000 are up for grabs. The numbers are pretty much unchanged since late May.

As of August 14, 2009, approximately 45,000 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. We will keep you posted with any changes in this area.

According to a recent Newsweek article, Immigrants irrespective of their legal status are actually good for the job market, and boost the economy.

Lou Dobbs, take note: immigrants are good for our economy. The most skilled create jobs in technology and engineering, says Duke professor Vivek Wadhwa, who estimates that in 2005 immigrant-founded engineering and tech companies employed 450,000 people and generated $52 billion in sales. But even the least skilled more than repay their costs in schools and health care. Two highly respected Australian economists, Maureen Rimmer and Peter Dixon, studied the issue for the libertarian Cato Institute. "The net impact on U.S. households from tighter border enforcement is unambiguously negative," they found, because even low-skilled immigrants expand the economic pie and create jobs farther up the ladder. Cato's Dan Griswold says the study shows a $250 billion difference between the most and least restrictive immigration policies.

Read more here

Here is what Michael Bloomberg, the Mayor of New York, had to say about Immigration and the economy:

America's deep pool of talent and technological knowhow will continue to make it a highly desirable location—and investment opportunity. And if Congress has the sense to fix our broken immigration system, our open society and world-class universities will remain a magnet for the world's best and brightest. That's important: Economists have estimated that every person arriving on an H1-B visa creates jobs for five native-born Americans. Competing for talent and capital will also require all levels of government to invest more in our quality of life—mass transit, parks, schools, and so forth. That will help raise our long-term standard of living, even if real incomes don't rise appreciably in the near term.

From time to time we like to share stories about cases that were resolved successfully. We do this to educate our clients, and bring hope to many others in the same situation.

This is a story about an American guy that fell in love with a girl from Ukraine. The problem was that the girl from Ukraine entered the US illegally. As a result, even marriage to the US citizen guy, could help her to stay. Absurd, but true. So the only way for the spouse to become legal one day, way to depart the US and face the US Embassy abroad, by seeking a waiver.

An Application for Waiver of Grounds of Inadmissibility (Form 601) becomes necessary when a visa applicant has been determined to be “inadmissible” based on one more visa ineligibilities.

The most common visa ineligibility is illegal presence/prior visa overstay of more than 180 days, which results in a 3 year ban. More than 365 days of illegal presence results in a 10 year ban. Note that illegal presence under 180 days does not hold a ban and does not require a waiver.

The bar takes effect when the person leaves the US, therefore the clock starts ticking at that point. An approved waiver overcomes the ban and results in visa issuance.

So the nice coupe followed the rules, she left the country to face the Embassy, filed the necessary paperwork. Filed for the waiver when prompted, and she got denied. The denial was so shocking, because if you read it, you realize that the officer never read the file. I felt that we had a good case, we process numerous waivers an this was one of my best. Yet, the officer never bothered to read the case. He used different names for the applicants and mixed our facts all together.

This one officer sealed the life of this young couple. We had no choice but to Appeal to the AAO in Washington. Only problem is that Appeals take 2. 5 years to process. Still we filed the best Appeal we could draft at my office.

It was now time for the couple to test their relationship. So they did, and for the past 3 years they stuck together, they suffered together, they cried together. But they nevr lost hope.

On February 12, 2009 we received a denial of the Appeal. I couldn't bring myself to break the news to the Husband. But I did, and he was shattered. I couldn't let this stand, and wrote a lengthy letter to the AAO office detailing the case from the start. I knew this letter will end up in the trash, still I did it.

On March 4, 2009 we received a reversal of the denial. In fact the Husband was the one receiving it first and he let me know about it. I still wonder what happened in those two weeks from the last denial, I extremely happy for this family and hope that this story will bring hope to many other couples in the same situation.

You can read their story on this site www.freevica.com

Here is what the husband posted on the site the day of the approval:

Breaking News! Our waiver has been sustained on appeal! Finally, someone in government took the time to actually read our evidence, and they came to the conclusion that the original and subsequent denials were in error!

Thank you to all who have played a part, or simply observed our immigration system as it plodded along.

Recently AILA shared some information about special immigrant religious workers. USCIS reminds special immigrant religious workers, who have a pending or approved Form I-360, to file their Application to Register Permanent Residence or Adjust Status,(Form I-485), on or before Aug. 31, 2009. Special immigrant religious workers who wish to file a Form I-360 petition with an I-485 application should also file on or before Aug. 31, 2009.

USCIS is issuing this reminder because the U.S. Department of State recently published its September 2009 Visa Bulletin, stating that visas for the employment based fourth preference category, which includes special immigrant religious workers, will become unavailable effective Sept. 1, 2009. As a result, USCIS will reject Form I-485 applications submitted on or after Sept. 1, 2009, because an immigrant visa will not be immediately available, as required by INA 245(a).

USCIS will only accept properly filed Form I-485 applications based on pending or approved Form I-360 petitions seeking the special immigrant religious worker classification of either minister (SD-1) or non-minister (SR-1) or I-485 applications filed concurrently with I-360 petitions seeking SD-1 or SR-1 classification through Aug. 31, 2009.

Special immigrant religious ministers, who are not subject to the Sept. 30, 2009 sunset date, and who do not file on or before Aug. 31, 2009, must wait until visas for fourth preference special immigrant religious workers become available before they can apply to adjust status.

Continue reading "San Diego Immigration Lawyer about Eligible Applicants under Ruiz-Diaz to File Adjustment of Status Application before End of August" »

The H1B visa program is unlikely to reach its cap of 65,000 before the start of the 2010 fiscal with nearly 20,000 vacancies amid the economic downturn. This has happened for the first time in several years that the demand for the visas, which is mostly availed by Indian professionals, has slowed down.

Also due to a large number of rejections of H-1B petitions, this figure of 20,000 vacancies has remained almost the same for the past two months. Past figures indicate that Indian IT professionals have been a major beneficiary of H1B visas. An additional 20,000 H1B can also be issued to those foreign professionals, who have masters or higher degree from the U.S. Though the U.S. Citizenship and Immigration Services (USCIS) received 20,000 petitions, it continues to accept applications in this category.

Continue reading "H1B visas: A review of FY 2009-10" »

The Center for Trade Policy Studies, published a recent report about the economics of a possible Immigration reform.

By the latest estimates, 8.3 million workers in the United States are illegal immigrants. Proposed policy responses range from more restrictive border and workplace enforcement to legalization of workers who are already here and the admission of new workers through a temporary visa program. Policy choices made by Congress and the president could have a major economic impact on the welfare of U.S. households. This study uses the U.S. Applied General Equilibrium model that has been developed for the U.S. International Trade Commission and other U.S. government agencies to estimate the welfare impact of seven different scenarios, which include increased enforcement at the border and in the workplace, and several different legalization options, including a visa program that allows more low-skilled workers to enter the U.S. workforce legally.

Read the report here...

As the prospects for Immigration reform are becoming more of a reality, so does the debate about illegal Immigration is more real than ever. A story just came in from CNN an Arizona man caught leaving water bottles in the desert for illegal immigrants has been sentenced to 300 hours of community service and a year of probation.

Walt Staton, a member of the group No More Deaths, left full water bottles in December in Buenos Aires National Wildlife Refuge for the illegal immigrants who routinely pass through the 18,000-acre refuge. Read more here

As the Immigration debate heats up this summer, expect more stories like this one.

The U.S. Department of State (DOS) is transitioning to a fully web-based nonimmigrant visa form. This form, DS-160, eventually will replace the forms currently used to apply for nonimmigrant visas at the U.S. consulates. The new form is currently being used at twelve consular posts around the world. The new form is being implemented gradually. It is used at the following consulates: Australia (Melbourne, Perth, Sydney); Bermuda (Hamilton); Canada (Montreal, Vancouver); Hong Kong; Ireland (Dublin); Libya (Tripoli); Mexico (Ciudad Juarez, Hermosillo, Matamoros, Monterrey, Nogales, and Nuevo Laredo), and Montenegro (Podgorica). The new form will be available worldwide by the end of the 2009 calendar year. The expansion is currently limited, in part, due to server capacity.

The applicant will know on how to save the application and how to file as a family group. The DOS intends to add access to information in advance of the interview. This includes checking existing data bases, including the Petition Information Management Service, Student and Exchange Visitor Information System, and fraud-detection systems.

New proposed Immigration Legislation which is currently pending in the United States Senate may cause India-based IT companies to step up their operations in Mexico. The bill, by Senators Dick Durbin and Chuck Grassley, would impose a new limit on the proportion of foreign workers who would be allowed to work in the United States under the H1B and L-1 visa programs. The proposed legislation said says for 50-50 rule, which means no more than half of a firm’s U.S.-based employees could be H1B or L-1 beneficiaries. This measure may create uncertainty in Indian IT firms, because their U.S. operations typically have a very high percentage of foreign employees, often far exceeding the proposed 50 percent limits.

Indian IT companies may need to expand their presence in Mexico, because Mexican employees could be sent to the United States under TN visas, available only to Mexican and Canadian nationals, pursuant to the North American Free Trade Agreement (NAFTA). Mexican employees whose education, work experience, and job category qualify them for TN visas, would be able to work in the United States without counting against the Indian company’s 50 percent cap on employees with H1B and L-1 visas.

The TN category is special category created under NAFTA (North American Free Trade Agreement) for qualifying professionals who are nationals of Canada or Mexico. Aliens qualified to enter the U.S. under this category may work for a company located in the U.S. for a temporary period. Moreover, they may also work for a Canadian or Mexican company in the U.S. when those companies are engaged in projects with U.S. based companies. The initial time limit for a TN professional to work in the U.S. is one year. However, this period may be renewed indefinitely, at year to year increments.

Continue reading "New Proposed H1-B Restrictions May Drive Indian IT Companies to Mexico or Canada" »

For the first time in several years the H1B visa system, is unlikely to reach its cap of 65,000 before the start of the 2010 fiscal with nearly 18,000 slots lying vacant thanks to the US economy. As of August 8, 2009, approximately 44,900 H-1B cap-subject petitions had been received by USCIS and counted towards the H-1B cap. 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.

This is in contrast to the previous years when the USCIS had to resort to computerised draw of lots as it received petitions outnumbering several times more than the Congressional mandated cap of 65,000 within the first few days after it started receiving H-1B applications. Here is some quick H1B visa history for you:

In 2007 and 2008 the caps were reached in the first few days itself – April 2 and April 1-5 respectively.

In 2007 and 2006, the H-1B cap in the general categories were reached on May 26 and July 26 respectively, while in 2005 it was reached on August 10.

In 2004, the USCIS had to wait till October 1, before it stopped accepting H-1B petitions for the fiscal 2005, while the fiscal year 2004, it took 10 months to reach the cap.

The cap could not be reached in 2001, 2002 and 2003, when the Congress had mandated 195,000 H-1B visas instead of 65,000.

For the years 2000 and 1999, the Congress had sanctioned 115,000 H-1B visas.While for the fiscal 2000, it was on July 21, cap exceeded.

From 1992 to 1997, when the Congress had mandated 65,000 H-1B visas, the cap was not reached.

Bottom line, Congress should stop trying to micro-manage the program, and return to a simple market-based system. The fact is that the overwhelming majority of U.S. employers who hire H1B workers, truly need them. The cap is and always has been a barrier to growth and once and for all must be eliminated.

Recently AILA shared some information about a "new" benefit fraud assessment program in which USCIS is beginning to use the millions of dollars it has received over the last decade from the "fraud fee" in the H-1B program. This new program involves the hiring of a private contractor to send "investigators" out to conduct 25,0000 site visits to H-1B employers to verify if the H-1B employee is working at the employer and performing the work as outlined in the H-1B petition.

The representative will indicate that he/she is a contractor hired to conduct these investigations (this is similar to the investigators that conduct the background investigations for government clearances) wearing badge with a picture. Questions can be asked in the following way:
1. Basic questions about the company, what you do, how many employees you had, work hours, office locations, etc.

2. How many employees one has on H1Bs, how many of them been sponsored for permanent residency and how many of them are legal permanent residents. Approximate numbers will be fine.

Continue reading "San Diego Immigration Lawyer about Surprise Investigation by USCIS" »

U. S. Citizenship and Immigration Services (USCIS) has issued instructions on making inquiries with the agency’s four Service Centers. Customers, community-based organizations and liaison groups should follow this guidance when inquiring about case related issues. This new process standardizes customer service and streamlines processing of customer inquiries at USCIS Service Centers. The step-by-step instructions are as follows:
Step 1: National Customer Service Center (NCSC) can be contacted at 1-800-375-5283. The NCSC can assist customers, community-based organizations and liaison groups with case related inquiries. Please get your Receipt No. the NCSC please have available your receipt number, alien registration number, type of application filed and date filed. We recommend you note down:
-The name and/or id number of the NCSC representative
- The date and time of the call
- Any service request referral number, if a service referral on a pending case is taken.

Continue reading "Case Status inquiries made easy by USCIS" »

There is not a dull moment this summer for us immigration lawyers, all thanks to good old USCIS. On 8/6/09 USCIS announced that it has reopened the fiscal year 2009 H-2B petition filing period and will immediately accept petitions. This is after closing the cap in January this year.

How could this happen? The Department of State received far fewer than expected requests for H-2B visas and as a result, has issued only 40,640 H-2B visas for fiscal year 2009 to date. This means that there are approximately 25,000 visas that may go unused, as they have not been granted. Because of the low visa issuance rate, USCIS is reopening the filing period to allow employers to file additional petitions for qualified H-2B temporary foreign nonagricultural workers.

But the catch is that filing and processing must be done by September 30, 2009. So those eligible must use the premium processing to do so. Also, employers must submit the Form I-129 Petition for a Nonimmigrant Worker to USCIS with all required documents, including an approved Alien Employment Certification from the U.S. Department of Labor that is valid for the entire employment period stated on the petition. The petitioner must also indicate an employment start date before Oct. 1, 2009. Otherwise the case will be considered for fiscal year 2010.

These are good news for employers in the Hospitality and construction industries, as long as they have approved Labor Certification to be used. My guess is that there are not too many employers that filed for Labor Certifications knowing that visas will not last too long. But this is an indication for the future of the H2B visa and the cap restrictions. We call the government to lift the cap once and for all.

Read the press release from USCIS here Download file

President Obama promised during the election campaign that Immigration reform will be high on his list once elected president. Speaking to Hispanic reporters at the White House, Obama said last week he hopes a bill for comprehensive immigration reform will be drafted by the end of this year.

Obama tapped Homeland Security Secretary Janet Napolitano on June 25 to work with Congress to speed up immigration reform as senators warned another failed effort could doom chances for a generation. Obama said he asked Napolitano to meet regularly with lawmakers to systematically work through a number of controversial issues, such as how to handle the 12 million illegal immigrants already in the United States and how to prevent future illegal immigration.

The president has been criticized for not following through on a campaign pledge to tackle the issue this year. He has urged the Democratic-controlled Congress to start pushing now to pass legislation.

bama joked that his opponents had another reason to block his immigration reform effort: "There are many members of the Republican Party who think now that I am illegal immigrant," he said.

Read the article here

We all know that the nation's immigrant detention system is a mess. This consists of a collection of public and private facilities that have been widely criticized in recent years, including in two lawsuits that alleged poor conditions in a San Diego detention center. Also, abuse of detainees as well as corruption cases.

Expected to take from three to five years, the reform is intended to bring more order to a “disjointed” detention network of roughly 350 facilities that is heavily dependent on contractors. The effort will be overseen by a new Office of Detention Policy and Planning, headed by former Arizona corrections official Dora Schriro.

More immediate changes will include assigning federal detention managers to work in 23 facilities that Morton called the agency's most significant, which house more than 40 percent of the detainee population. ICE officials would not say if the agency's detention center in Otay Mesa, one of its larger contract facilities and the subject of two 2007 lawsuits over detention conditions, would be among them. We hope the above referenced changes will bring a much needed reform.

Read more...

California taxpayers need to cover higher fees of private lawyers, who are hired by the state as the Attorney General's Office doesn't have the staff to handle all of the cases internally. In some instances, the state has employed outside counsel at hourly rates that reach $450 even while most of its in-house lawyers earn less than half that. Rates can be much higher, if the suits require private attorneys having a particular expertise.

Since January 2008, the Department of Corrections and Rehabilitation has signed about $24 million in contracts with private lawyers hired because the Attorney General's Office says it's too shorthanded to take the jobs. The corrections department is seeking the additional help despite having about 80 lawyers of its own to handle a gamut of cases, with about a dozen of those assigned to prisoner-filed litigation.

Continue reading "Private lawyers' costs heavily on California Taxpayers" »

These are fun and hot summer days for us Immigration lawyers filing H1B cases. As employers are starting to hire again, we are faced with the challenges of the new Labor Condition Application System, iCert.

The Labor Condition Application is a document which must be certified by the US Department of Labour and it an integral part in the H-1B applications. This document details the terms and conditions of employment, details of the employer, the work profile, rate of salary, prevailing salary (it means the lowest salary that can be paid to a h-1b visa holder) and the location where the h-1b holder will work. As of July 1, 2009 all LCA applications must be done via the icert system

In the past week or so many LCA cases came back with denial notices. The notices had the following language:

Reason for Denial: Section C.12 of this application contains an obvious inaccuracy. The Federal Employer Identification Number (FEIN) value entered in Section C.12 of the ETA Form 9035E could not be verified by the CNPC as a valid nine-digit FEIN assigned by the Internal Revenue Service (IRS). In order for the employer to overcome the issue identified on the denial determination for any future LCAs submitted using this exact FEIN

The solution according to AILA for correcting an LCA denial when DOL states it cannot verify the FEIN is to provide FEIN documentation to the LCA Helpdesk in Chicago. This morning, DOL revised the FEIN-based iCERT denial notice, and it contains information on what documents to send via email to DOL or by fax. We hope this will resolve the problem and the unnecessary delays as the system takes almost a week to process a regular case. We will keep you posted.