Visa Lawyer Blog

From time to time we update our local readers about procedures affecting cases here in San Diego. This is from our local AILA liason meeting update. These procedures may apply in other states as well.

1. INFOPASS appointments for paying filing fees and fingerprint re-scheduling.

USCIS prefers that customers make INFOPASS appointments to visit USCIS offices to schedule re-fingerprinting or to pay fees and file applications. USCIS will accommodate someone without an appointment if there is an emergency such as a deadline for the filing of a motion to reopen or re-consider with the immigration court. A guard in Chula Vista will speak with a USCIS officer to allow you in the building to consider your emergency requet. USCIS points out that same-day INFOPASS appointments are usually available for the San Diego office to re-schedule biometrics. Biometrics can also be re-scheduled by mail. Note that filing fees can only be paid at the Chula Vista office.

2. Paying fees

Starting sometime in the first quarter of FY 2010 (sometime between October 1, 2009, and December 31, 2009) fees that are paid locally will be able to be paid at the San Diego and Imperial offices as well as the Chula Vista office as is now the case. USCIS does not accept Form I-246 (Application for Stay of Deportation or Removal).

3. Office hours

USCIS believes that concern for office hours is largely irrelevant as most business with USCIS is accomplished by appointment or by mail. USCIS urges customers to submit documents such as I-72's (request for evidence) and N-14's by mail because of how the papers are processed in their contractor-reliant work environment. In the case of an emergency, the office hours are Monday - Thursday from 7 a.m. to 3:45 p.m. in San Diego and 7 a.m. to 2 p.m. in Chula Vista. Fridays, the offices will be open 7 to 11:30 a.m. Attorneys concerned about deadlines for mailing responses to I-72's and N-14's are assured that if the date of timely filing is the date of the mailing of the filing. Cases will not be denied for lack of prosecution until three days after the filing deadline, allowing three extra days for delivery by mail.

4. Interview delay / waiting room issues

USCIS is studying the new "off the top" interview process and may abandon it in coming months. The liaison committee raised concerns about lunch hour delays and specific days when there were substantial delays. Delays on these days occurred because of errors in schedule preparation. USCIS is looking into allowing for the use of the main waiting room when the small waiting room in Chula Vista becomes over crowded and in using the public address system to page interviewees. Customers should ask an employee, either a clerk, examiner, or an information officer, if their wait for an appointment (waiting time should be counted from the time of the actual interview) exceeds one hour.

5. Dissatisfaction with INFOPASS answers.

Attorneys who find that their inquiries at INFOPASS appointments are not satisfactory can ask to speak to a supervisor.

6. Issuance of actual permanent residence cards in granted by judge cases.

It should not take more than 60 days for the issuance of a permanent residence card when an immigration judge grants adjustment of status or cancellation of removal for certain nonpermanent residence. Delay might happen if the alien needs his or her biometrics re-captured for card production.

7. Approval of cases when they become current.

In employment-based adjustment of status cases and some family-based preference category cases, interviews may occur before a visa is available. There is concern as to whether the case will be approved when the visa becomes current. USCIS reports that cases are logged by priority date and preference category and are pulled and adjudicated when they become current. USCIS admits that some cases fall through the cracks and attorneys should make an INFOPASS appointment if there is concern that a case that is current is not being adjudicated. Individual officers do not hold cases in their individual offices waiting for the visa number to become current.

8. Notices to appear

USCIS reports that in deciding whether to issue a Notice to Appear after an adjudication is complete, whether an alien’s application is withdrawn or denied is not a factor in the determination. Attorneys can contact the San Diego District director, Paul M. Pierre, to seek the issuance of a Notice to Appear in a specific case. A note of caution – USCIS [like ICE], is reluctant to have customers drive the process of initiating removal proceedings.

9. Naturalization issues

When an alien naturalizes and changes his or her name, he or she receives a name change order with his naturalization certificate. The only way to get a copy of that order is through the FOIA process. An alien whose N-400 is approved is scheduled for an oath ceremony. If an applicant does not show up for his or her first oath ceremony, the applicant is automatically scheduled for the next scheduled ceremony. If the applicant does not show up for the second ceremony, the case is denied. Be sure to respond to all notices, we had clients come in pending denial cases because they failed to appear.

We will update you as new information comes in.

The State Department has advised AILA liaison that due to the large number of approvals issued in the past few weeks, employment-based visa numbers are no longer available for this fiscal year that concludes on September 30, 2009. This affects all categories of employment based immigrant visas. Numbers will become available again on October 1, 2009, as stated in the October 2009 Department of State Visa (DOS) Bulletin.

USCIS will continue to accept I-485 applications in categories showing visa availability based on the September Visa Bulletin, USCIS will not able to approve pending I-485 applications unless a visa number was previously captured. Where a USCIS officer adjudicated or pre-adjudicated a case and it was in the DOS "pending" queue and DOS has sent the electronic notification allocating a number to the Service Center, USCIS should issue the approval.

For those consular processing, because visa numbers for scheduled cases have already been allocated as part of the scheduling process, scheduled immigrant visa appointments at consulates for September will continue and immigrant visas may be issued.

We will keep you posted with more information of course.

Ever since the President was elected, the hope for Immigration reform was on the rise. In fact, we were all hoping for something to happen by the end of this year. Now we know this is not going to happen.

Ruben Navarrette Jr. from the San Diego Union Tribune wrote an excellent piece today about this issue.

President Obama has placed the immigration reform community at the back of the bus.

This same president who insists the country can't wait to fix what he calls a broken health care system tells reformers to wait for him to get around to fixing what they consider to be an equally broken immigration system.

The same president who tried to juggle a half dozen major policy initiatives in his first few months in office now seems unsure of his ability to -- as he told Univision's Jorge Ramos in an interview last weekend -- "solve every problem at once."

And the same president who seems to understand that the longer he waits to accomplish health care reform, the more difficult it will be to get, doesn't seem to understand the same is true with immigration reform.

Read more

The Cap seem to be moving slowly in the past few months, but something is different with the release of the new count this week.

As of September 18, 2009, approximately 46,000 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. It seems that some employers are hiring again and willing to file for H1B visas for specialty workers. This is a good sign, but this also means that visas may run out sooner than expected.

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 the last fee hike in 2007, it was only a question of time until discussion about more Immigration fee increase will be a hot topic. U.S. immigration officials are considering another possible round of fee increases and budget cuts next year, prompting concern among immigrant rights groups.

The agency is facing a $118-million revenue shortfall this year in part because applications for citizenship and skilled worker visas are below projections, according to officials. Citizenship applications plunged to 58,000 last year from 254,000 the previous year in the Southern California district. Most experts blame the decline on a fee increase of 69% to $675 in 2007.

Immigrant advocates said, that any additional fee increase would severely hamper legal immigrants from pursuing citizenship. "Right now the high cost of citizenship is putting the dream of naturalization out of reach of low- and moderate-income legal permanent residents, and any future increase will just make the situation worse," said Rosalind Gold of the National Assn. of Latino Elected and Appointed Officials Educational Fund in Los Angeles.

We hope that fee increases can be avoided. In any case, the best advice is that if one is eligible to apply for Citizenship or any other benefit, do it now, before any fee changes.

Most Immigration Lawyers that care for their work are tired of Mr. Dobbs. Mr. Leopold from AILA posted a valid statement about Dobbs' campagin of Hate:

CNN has a journalistic obligation to dump Lou Dobbs and his campaign of hate against immigrants.

It is unthinkable that a major network would permit someone to build a career based on fear and hatred of human beings. Why the double standard when it comes to immigrants?

As Janet Murguia, the President and CEO of the National Council of La Raza pointed out yesterday in her Huffington Post blog, http://bit.ly/Mk0ez, Dobbs disgarded any sense of journalistic objectivity or integrity (assuming he had any to begin with) when he openly participated in an anti-immigrant rally in Washington, DC sponsored by the Federation for American Immigration Reform (FAIR), an organization designated by the Southern Poverty Law Center (SPLC) as a hate group. According to SPLC:

· FAIR was founded by John Tanton, who also operates a racist publishing company and has compared immigrants to "bacteria."

· FAIR has employed members of white supremacist groups in key positions.

· FAIR has promoted racist conspiracy theories.

· FAIR has accepted more than $1 million from the Pioneer Fund, a foundation devoted to eugenics and to proving a connection between race and IQ.

· FAIR president Dan Stein once suggested that Asians and Hispanics were engaged in "competitive breeding."

Of course Dobbs’ recent display of hate mongering is just his most recent in a long line of abuse including, as Murguia points out in her blog,

· His regular use of guests representing hate groups, vigilantes, and nativists as experts on immigration

· His relentless repetition of stories on immigrants and crime that project an impression far from reality

· His association of immigrants as carriers of disease that has been both inaccurate and pejorative

Enough is enough.

If CNN is serious about responsible broadcast journalism it must put an end to Lou Dobbs' hateful tirade once and for all.

Federal Reserve Chairman Ben Bernanke said that on September 15, 2009, the worst recession since the 1930s is probably over, although he cautioned that pain - especially for the nearly 15 million unemployed Americans - will persist. Bernanke said the economy likely is growing now, but he warned that won't be sufficient to prevent the unemployment rate, now at a 26-year high of 9.7 percent, from rising. The recession, which started in December 2007, has claimed a net total of 6.9 million jobs.

With expectations for a lethargic recovery, the Fed predicts that unemployment will top 10 percent this year. The post-World War II high was 10.8 percent at the end of 1982. Some economists say it will take at least four years for the jobless rate to drop down to a more normal range of 5 percent.

Analysts predict the U.S. economy is growing in the current quarter, which ends Sept. 30, at an annual rate of 3 to 4 percent. It shrank at a 1 percent pace in the second quarter, much slower than in previous quarters. While many on Wall Street have been encouraged by early signs of stabilization in U.S. home prices and hope the housing market may have hit bottom, others aren't so sure.

Still, Bernanke's declaration that the recession likely ended marked his most optimistic assessment yet of the economy. And his remarks came on the same day that the government report that retail sales jumped 2.7 percent in August, the most in more than three years. All this helped to lift stocks on Wall Street. The Dow Jones industrial averaged gained nearly 57 points to 9,683.41, its highest finish since Oct. 6. He said that the economy is coping with "ongoing headwinds," including hard-to-get-credit for consumers and businesses, and households saving more, spending less and trimming their debt. Those forces can weigh down the recovery, he said.

Four hundred twenty-three criminal aliens from 36 different countries were removed last month by deportation officers from the U.S. Immigration and Customs Enforcement (ICE) Miami Field Office of Detention and Removal. The Miami Field Office oversees operations in Florida, Puerto Rico and the U.S. Virgin Islands. The individuals who were removed had a variety of criminal convictions including assault, burglary, drugs, fraudulent activities, larceny, robbery, sexual assault and weapons offenses.

Michael Rozos, field office director for the Miami Field Office of Detention and Removal said "These recent removals are an example of ICE's commitment to remove those who pose a public safety threat and that these removals will continue taking place as we enforce our nation's immigration laws."

ICE's Office of Detention and Removal (DRO) promotes public safety and national security by ensuring that all removable aliens are removed from the United States as expeditiously as possible. As an integral component of the ICE DRO aviation strategy, ICE employs special air charters when removing aliens to countries outside the western hemisphere. Staffed by ICE officers, these air charters repatriate large groups of removable aliens in an expeditious, safe and humane manner, thus reducing detention periods.

The owner of a southwest Missouri roofing company pleaded guilty in federal court Monday to hiring illegal aliens as a result of a worksite enforcement investigation conducted by U.S. Immigration and Customs Enforcement (ICE). Assistant U.S. Attorney Robyn L. McKee, Western District of Missouri, is prosecuting this case.

Russell D. Taylor, 31 of Bolivar, MO admitted that from August 2006 through April 2008, he hired, contracted and sub-contracted for hire to obtain illegal aliens to work for him. By pleading guilty, Taylor also agreed to forfeit to the government $185,363, which represents the amount of proceeds obtained as a result of the offense. Under the terms of the plea agreement, the government and Taylor agreed that a fine of $36,000 is appropriate, representing a $3,000 fine for each of the 12 illegal aliens who worked under the supervision of Juan Pacheco-Herrera. Pacheco-Herrera pleaded guilty in a separate but related case to harboring illegal aliens.

Taylor has waived his right to a grand jury and was pleaded guilty on Sept. 14 before U.S. Magistrate Judge James C. England, Western District of Missouri. The government and the defendant also agreed that five years of probation is a reasonable and just sentence in this case. As a condition of his probation, Taylor must implement an employment-compliance plan and pay the $185,363 money judgment in monthly installments during the first 30 months of probation.

Continue reading "Missouri roofing company pleads guilty for hiring illegal aliens" »

On September 22nd a redesigned USCIS.gov web site will be launched. In response to customer feedback, from March to June 2009, USCIS conducted focus group discussions, usability tests, and surveys regarding general functionality of the website with a broad cross-section of users.

Based on the findings, a design has been approved and is currently in development. The improved design of USCIS.gov follows four core principles:

* A customer-centric homepage that provides applicants with a “one-stop shop” of immigration services information.
* Simplified navigation and improved search capability.
* Enhanced customer service tools including expanded Case Status Online with both email and text functionality.
* Information that is written clearly and meets the needs of customers.

I will analyze the design in the next few days, and will provide our feedback to our readers.

I recently came across a posting by fellow lawyer Chris Musillo, he wrote about an interesting point that is often asked by our clients, the Health Care recruiters and Healthcare providers. The question is do H1B workers that are not yet licensed, need to be paid. Here is Chris' opinion, and I agree:

First a little background. The National Physical Therapy Exam (NPTE) is not offered overseas. Accordingly, all PTs must enter the US in order to sit for the licensing exam. The USCIS often approves unlicensed PTs for H-1B visa status, and there is ample Guidance to support these decisions.

My client’s approved PTs must then come into the US, sit for the NPTE, and then obtain their state license. Once they obtain the state license, they can begin their PT work.

The problem is that this plan bumps up against the Department of Labor’s rules on salaries to H-1B workers. 20 CFR 731(c)(6) and (7) say that H-1B workers must be paid their salaries within 30 days of entering the US. This may be problematic because it is rare that the worker enters the US, sits for the exam, and is granted the license in just 30 days.

Subsections (c)(6) and (7) also says that worker must be paid once s/he “enters into employment,” which includes “reporting for orientation” and “studying for licensing examinations”.

There are a few solutions to this dilemma, although none of them are ideal from the employer or employee’s perspective (my experience is that the H-1B workers would be willing to sacrifice all or some of their pay while waiting for the results of their licensing exam):

One solution that is in compliance with (6) and (7) is to make sure that the PT is fully ready to take the licensing exam when the PT enters the US so that you can use the full 30 day period before entering the employee into employment. If at all possible, training, and orientation should be done outside the US.

Another solution is to bring the H-1B worker into the US to take the licensing exam, and then immediately cycled back out of the US while waiting for the remainder of the licensing process. H-1B workers who aren’t in the US aren’t subject to (6) and (7).

A last strategy is initially to file the workers for part-time or hourly H-1B status. This doesn’t obviate the need to pay the wages, but can reduce the salary obligation.

Physical therapists are generally eligible for an H-1B visa, since the bachelor's degree is generally a standard requirement for that occupation in the United States . The H-1B visa is available when the occupation requires a bachelor's degree. If you are a physical therapist in another country, you must first submit your educational credentials to a U.S. state therapy board for a temporary license or permit. Once you have a permit, you can apply for an H-1B visa to work in the United States . Once you enter the United States , you will have to take the state licensing exam, and then renew your H-1B visa.

Breaking news from the State Department. The online entry registration period for DV-2011 will be October 2 until November 30, 2009. Please, check back later for updates and instructions regarding online entry for DV-2011.

Form DS-5501 Electronic Diversity Visa (e-DV) Application for online Diversity Visa Lottery entry, is not available now. This official form is available only on the Department State, Diversity Visa online entry website at http://www.dvlottery.state.gov/ during the online entry registration period.

The congressionally mandated Diversity Immigrant Visa Program is administered on an annual basis by the Department of State and conducted under the terms of Section 203(c) of the Immigration and Nationality Act (INA). Section 131 of the Immigration Act of 1990 (Pub. L. 101-649) amended INA 203 to provide for a new class of immigrants known as "diversity immigrants" (DV immigrants). Alien petitioners for the Diversity Visa Program will no longer be permitted to submit a petition by mail. Instead, the Department will require that all petitions be submitted to it in an electronic format, using an Internet website dedicated specifically to the submission and receipt of Diversity Visa.

The State Department released the October Bulletin last week, the news are not so good overall.

The EB3 category is now available, but many priority dates go back to 2001 and 2002, still long waiting period for many applicants.

EB2 China advanced 2.5 months, while India priority dates move by 14 days only. EB4 category is still unavailable.

In the family based section, Family F1- China and India numbers move by nine weeks to 7-22- 2003. Mexico advances 18 months to 6-8-1992. The Philippines advances two weeks as well.

Find the October 2009 Bulletin here

We now know that Immigration, especially illegal immigration is a big part of the American Health care debate. President Obama's prime-time address to Congress and the nation on health care prompted a Republican congressman to shout "you lie!" when the president covered Health coverage for illegal Immigrants.

The President said that his proposal would not cover illegal immigrants, a remark that prompted Republican Rep. Joe Wilson of South Carolina to shout "You lie!"

The president is correct: The House bill contains a section (Sec. 246) titled "NO FEDERAL PAYMENT FOR UNDOCUMENTED ALIENS," which states: "Nothing in this subtitle shall allow Federal payments for affordability credits on behalf of individuals who are not lawfully present in the United States."

However, conservative critics object to a lack of specific enforcement measures in the bill. They argue that the lack of a specific verification mechanism constitutes a loophole that would allow illegal immigrants to get benefits despite the legal prohibition. Republican Rep. Dean Heller of Nevada proposed an amendment to the bill that would have required the use of the Systematic Alien Verification for Entitlements program to check the citizenship of anyone applying for federal coverage or affordability credits. SAVE is the program used by Medicaid and similar entitlement programs. That amendment was voted down along party lines by the House Ways and Means Committee.

Republicans have a point here: More could be done to enforce the ban. But it's worth remembering that, as a spokesperson for the American Immigration Lawyers Association told NewsWeek, attempting to get a health care credit would have legal repercussions.

"Making a fraudulent claim to an entitlement program when you're not actually entitled to it would have serious consequences for any person," the spokesperson told Newsweek, "but especially if it's considered a false claim to citizenship, that would have serious immigration consequences that could ultimately lead to deportation." Moreover, if an illegal immigrant lies and obtain public assistance benefit such as the new health care coverage, such person may never be able to Immigrate or get residency. One of the questions on the Green Card application is exactly that - Have you ever received public assistance or benefits form the State? A yes answer may result in a denial. Finally, any person who is not a US citizen and claim to be falsey in order to secure a benefit, may be barred for life from becoming a legal resident in the future. So the protection mechanism is already set in our immigration system. Most illegals live with the hope of becoming legal one day, I am sure that not many will risk it just to get coverage.

And Rep. Wilson certainly was out of bounds to call the president's statement a "lie." He later issued a statement apologizing for his "inappropriate and regrettable" comments.

Department of Homeland Security (DHS) Secretary Janet Napolitano announced on August 27, 2009, new directives to enhance and clarify oversight for searches of computers and other electronic media at U.S. ports of entry—a critical step designed to bolster the Department’s efforts to combat transnational crime and terrorism while protecting privacy and civil liberties.

“Keeping Americans safe in an increasingly digital world depends on our ability to lawfully screen materials entering the United States,” said Secretary Napolitano. “The new directives announced today strike the balance between respecting the civil liberties and privacy of all travelers while ensuring DHS can take the lawful actions necessary to secure our borders.”

The new directives address the circumstances under which U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) can conduct border searches of electronic media—consistent with the Department’s Constitutional authority to search other sensitive non-electronic materials, such as briefcases, backpacks and notebooks, at U.S. borders.

The directives, available at DHS.gov, will enhance transparency, accountability and oversight of electronic media searches at U.S. ports of entry and includes new administrative procedures designed to reflect broad considerations of civil liberties and privacy protections—measures designed to ensure that officers and agents understand their responsibilities to protect individual private information and that individuals understand their rights.

Searches of electronic media, permitted by law and carried out at borders and ports of entry, are vital to detecting information that poses serious harm to the United States, including terrorist plans, or constitutes criminal activity—such as possession of child pornography and trademark or copyright infringement.

CBP will also provide travelers subject to electronic device searches with clear and concise material informing them of the reasons for the search, how their data may be used and detailed information about their constitutional and statutory rights. DHS conducts border searches of computers and other electronic media on a small percentage of international travelers seeking to enter the United States—searches often as basic as asking a traveler to turn on a device to ensure it is what it appears to be.

Between Oct. 1, 2008, and Aug. 11, 2009, CBP encountered more than 221 million travelers at U.S. ports of entry. Approximately 1,000 laptop searches were performed in these instances—of those, just 46 were in-depth.

The new directives will also allow DHS to develop automated, comprehensive data collection and analytic tools to facilitate accurate, thorough reporting on electronic media searched at the border, the outcomes of those searches and the nature of the data searched—further enhancing transparency and accountability

United States Citizenship and Immigration Services (USCIS) released an updated H-1B cap count of 45,100 as of August 28, 2009. This reflects an increase of 100 cases from the prior count, provided on August 14, 2009. The advanced-degree cap remains at 20,000. The USCIS continues to accept FY2010 H1B cases under the advanced-degree and regular caps.

We suggest to US employers to file H-1B Petitions only if they can able to provide the Client details like Letter from the end-client, Work-orders confirming the placement. If you are having an in-house requirement, provide USCIS with ample proof of your in-house requirements. Considering the flood of H-1B RFEs, we have to be bit cautious in filing works. The standard approach prevailing until last year needs a re-look. Be assured, if you are right on papers and abide the Immigration requirement, you will for sure come with flying colors. We will be happy to help and support you in H-1B and other filings. It is widely believed that the H-1B Cap will be available even after Sept. 30, 2009.

The Council of Graduate Schools (CGS) issued an August 20, 2009 press release, reporting a decline in offers of admission from U.S. graduate schools to prospective foreign students. This is the first decline in the rate of offers to foreign students since 2004.

While these significant reductions affected the overall decline in foreign student enrollment, the number of offers of admission to students from the People's Republic of China grew at a rate of 13 percent. The CGS press release indicates that this was the fourth year in a row of double-digit growth in the number of students from China offered admission to U.S. graduate schools.

With the up coming biggest education Expo in China (http://www.phdchina.org/english/index.shtml), the US is the country of Honour at this show. This is a clear sign that Chinese students are looking at the US as the main destination for studies and future opportunities.

There is a significant economic contribution made by foreign students in tuition and related expenditures, as well. Generally, a foreign student is required to pay tuition at the much higher out-of-state rate, even when attending a state school. The potential of Chinese students boosting the economy is significant and should not be ignored. Even Consular officers realize this factor and student visa issuance to Chinese students has increased by 40% according to a recent survey.

From time to time, we are providing more information about the above referenced process. Although it may seem to be simple, we suggest you to consult a qualified immigration attorney before filing the application to become a permanent resident based on marriage to a US Citizen.

Prior to submitting the forms to Department of Homeland Security, there are 10 simple technical tips to follow for proper filing. They are as follows:

1. Use the most current edition of the form available on the USCIS Website; (www.uscis.gov)

2. Follow instructions on the form to see if you qualify for the benefit sought (For example, if you entered the country illegally you are not eligible to file form I-485 and continue with this process);

3. If a question does not apply to you, make sure you write “NONE” or “N/A”, never leave a box empty on the forms or else the case may be delayed;

4. Type the information. If typing is not feasible, then print legibly, if printing use a Black ink pen only. Just type the forms, trust us!

5. Don’t forget the appropriate filing fee. Make the check or money order payable to U.S. Department of Homeland Security. Do not send cash. The fee for a complete adjustment case is $1365. The work permit and travel authorization are included in this fee, no need to pay per form;

6. Make sure the Petitioner or Beneficiary signs and dates where appropriate, if you forget to sign, the USCIS will send you back the entire case;

7. Do not forget the supporting documentation to support the petition or application (clear copies of marriage certificate, divorce papers and and birth records are a must);

8. Send the petition to the correct mailing address - Mail or Overnight the package certified return receipt via the U.S. Postal Service, FedEx, etc. For Mail, send the complete application to:

USCIS Lockbox Addresses:
For United States Postal Service (USPS) deliveries:
USCIS
P.O. Box 805887
Chicago, IL 60680-4120

For private couriers (non-USPS) deliveries:
USCIS
Attn: FBASI
131 South Dearborn - 3rd Floor
Chicago, IL 60603-5517. If the petition is sent to the wrong mailing address, the petition can be rejected for improper filing.

9. Make copies of everything you send for records, NEVER send originals to USCIS as you will never see the papers again and you will need to resent originals only at the interview.

10. Start collecting all the necessary documents to establish your life together as a Husband and wife your interview will be just a few months away.

Click here for step by step filing instructions

Hundreds of American Apparel Inc. workers must leave the company because they were unable to prove their immigration status or fix problems with their employment records, the bottom line is that almost 1600 workers were not legally allowed to work in the US.

ICE first conducted an inspection of American Apparel in early 2008 to determine if the company was complying with immigration laws. This past July, American Apparel received notification from ICE that the agency had been unable to verify the employment eligibility of approximately 200 American Apparel employees, and, based on ICE's review of government databases, another 1,600 American Apparel employees did not appear to be authorized to work in the U.S.

Although the dismissals amount to more than 10% of American Apparel's roughly 10,000-employee workforce, the company doesn't expect problems for its business. American Apparel has a track record of being a strong advocate for immigration reform. The clothing company's "Legalize LA" campaign is an integral part of the company's culture. A combination of advertising, education and resources on American Apparel's website shows just how committed the company is to raising awareness on the subject of immigration.

Here is what the company's CEO had to say:

It is my belief that immigrants bring prosperity to any economy. They become motivated workers, and they sometimes become motivated business owners like me. They bring fresh ideas, optimism, and passion to any economy and they help contribute to a prosperous future.

Although many people forget, migration has been going on for thousands of years, and it will continue for ever. My true dream is that one day we will all live in a world without borders.

This is just one example of how Immigration enforcement is on the rise, the only questions is who is next.

Read the CEO's letter here

How is Governor Arnold Schwarzenegger going to save us money? How about massive deportation plan. California Corrections officials are reviewing the cases of undocumented immigrant prisoners to see who can be deported. About 6,000 up for consideration have more than one felony.

Releasing undocumented prisoners is part of the Governor's plan to save the state about a billion dollars. The Governor has the power to release about 2000 undocumented immigrant prisoners. Included are those who have not committed serious, violent or sex crimes and have just one felony.

Mexican officials on the other hand, are not so pleased. Deporting thousands of criminals back to Mexico may weaken the current crackdown on drug gangs all across Mexico. Working together the two governments should find the middle ground.

Read the story here...

Wishing all our readers a happy Labor Day,and all the joys of a beautiful autumn. Make sure to take some time to relax and enjoy.

The editors at ilw.com wrote a nice greeting for Labor Day:

The first Labor Day holiday was celebrated in 1882 to pay tribute to American workers. We recognize and pay tribute to all workers in the US - both documented and undocumented - who work hard everyday to contribute to our great country.

As attorneys that work with Hospitals and medical professionals, we always get questions from clients about the H1B visa. Can Nurses really get this visa, and if so how?

The H1B visa program, which has a current allocation of 65,000 visas per year (This year visas are still open and up for grabs), allows foreign professionals to work in the U.S. for a limited duration. In this visa category, a U.S. employer offers a job to a foreign professional that requires a bachelor’s or higher degree, or its equivalent as the minimum entry requirement.

Nevertheless, there is a problem for nurses getting H1B visas. The USCIS applies a different rule for nurses. The USCIS (guided by a determination by the U.S. Department of Labor, as published in the Occupational Outlook Handbook) says that there is no industry-wide standard that a nurse needs a baccalaureate degree to perform the duties of a professional registered nurse. In many states, a nurse can obtain a professional registered nursing license after completion of only a two-year program and successful passage of a state licensing examination. Thus, according to the USCIS, foreign nurses are not eligible for H1B in general RN positions.

In a memorandum it issued four years ago, the USCIS relaxed its hard stand on foreign nurses. It said that while general RN positions are not H1B eligible, nurses in the following positions qualify for H1B: (1) Advanced practice nurses, (2) Nurses in administrative positions, and (3) Nurses in certain nursing specialties. Thus, nurses who wish to obtain H1B visas have to be petitioned only in those three RN positions, but not in general RN positions.

In a recent posting by Attorney Chris Musillo, he stated the following:

There are two key concepts:

1. The nurse must hold at least a Bachelors degree in nursing (e.g. BSN); AND
2. The position must normally require a Bachelors degree. MU has seen the most success in these scenarios:

A. The hospital is offering the nurse a position as a Clinical nurse specialist (CNS), Certified registered nurse anesthetist (CRNA), Certified nurse-midwife (CNM), or a Certified nurse practitioner (APRN-certified) Critical care and the nurse holds the certification;

B. If the nurse will be working in an Administrative position ordinarily associated with a Bachelors degree, such as Charge Nurse or Nurse Manager;

C. If the nurse will be working in one of these specialties: peri-operative, school health, occupational health, rehabilitation nursing, emergency room nursing, critical care, operating room, oncology and pediatrics. And the hospital will attest that these roles are only offered to those with Bachelors degrees. Some magnet hospitals have the BSN as its standards, and these make great destination hospitals for H-1 RNs.

With careful planning and with the right position even Nurses can apply for H1B visas, now more than ever with 15,000 visas still open.

San Diego Immigration lawyer informed that the Department of Homeland Security, USCIS has submitted the information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection was previously published in the Federal Register on June 9, 2009, at 74 FR 27339, allowing for a 60-day public comment period. USCIS did not receive any comments for this information collection. The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until October 2, 2009. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and suggestions especially regarding the estimated public burden and associated response time, should be directed to the Department of Homeland Security (DHS), and to the Office of Management and Budget (OMB) USCIS Desk Officer. Comments may be submitted to: USCIS, Chief, Regulatory Products Division, Clearance Office, 111 Massachusetts Avenue, Washington, DC 20529-2210. Comments may also be submitted to DHS via facsimile to 202-272-8352 or via e-mail at rfs.regs@dhs.gov, and OMB USCIS Desk Officer via facsimile at 202-395-5806 or via oira_ submission@omb.eop.gov.
We suggest when submitting comments by e-mail please make sure to add OMB Control Number 1615-0035 in the subject box. Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

The current medical exam Form I-693 has expired on August 31, 2009. The USCIS will continue to accept this form despite its expiration date until a revised form is published. The revised form is currently in progress and not yet available. Please submit the completed Form I-693, sealed in an envelope from the physician, with your Form I-485 package, to the Service Center or District Office where you are filing your adjustment of status application.

U.S. District Court for the District of Maryland, Southern Division on August 25, 2009, denied the U.S. Chamber of Commerce's challenge to an amendment to the Federal Appropriation Regulation (FAR) that makes E-Verify mandatory for federal contractors. As a result, as of September 8, 2009, the FAR requires participating vendors and flow-down subcontractors to initiate E-Verify for all active and new employees. Hence, U.S. Citizenship and Immigration Services has reminded Federal contractors and subcontractors to use the E-Verify system to verify their employees’ eligibility to work in the United States effective Sept. 8, 2009. Janet Napolitano, Department of Homeland Security Secretary recently stressed on the need for employment eligibility verification by announcing the Administration’s support for the regulation that will award federal contracts only to employers who use E-Verify to check employee work authorization. Companies awarded a contract with the E-Verify clause after Sept. 8 will be required to enroll in E-Verify within 30 days of the contract award date.
E-Verify will be used to confirm that all new hires, whether employed on a federal contract or not, and existing employees directly working on these contracts are legally authorized to work in the United States. The Federal Acquisition Rule; Case 2007-013; Employment Eligibility Verification extends use of the E-Verify system to covered federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds.

Previously we reported about the new procedures affecting surviving spouses of US petitioners that passed away. Now the Vermont Service Center issued some guidance on the procedure for making a request for humanitarian reinstatement of I-130 petitions that have been revoked based on the death of the petitioner.

The process for requesting humanitarian reinstatement consideration begins with the
notification to either the Service Center or the National Visa Center of the death of the
petitioner. If the death certificate is accompanied by a letter indicating that the beneficiary wishes to be considered for humanitarian reinstatement, the Service Center will respond with a letter confirming that the petition has been automatically revoked (8 CFR 205.1(a)(3)(C)). The letter then provides a list of requirements that must be met to have the petition considered for humanitarian reinstatement under 8 CFR 205.1(a)(3)(C)(2).

In order for the reinstatement to be considered, the following documents must be provided:

The request for reinstatement must be in writing by the beneficiary of the original petition or
substitute sponsor if the beneficiary is a minor child.

- Provide as much available documentation to identify and document the humanitarian reason for reinstatement. Such documentation may include, but is not limited to:

a. Evidence of a long-time residence and any equity in the U.S.
b. Evidence of relationship to other family members with evidence of their immigration status in the U.S.
c. Evidence of health-related factors that would establish the need for the reinstatement of the petition.
d. Evidence of current political or religious conditions in the beneficiary’s country of origin that would indicate that the beneficiary would suffer if not permitted to immigrate to the U.S.

Please note: Economic depression, as is found in many regions of the world, is not considered to be an example of a harsh result contrary to the goal of family reunification unless it is of such an extreme nature as to possibly cause physical harm to the beneficiary.

- The new sponsor is required to submit an original Form I-864, Affidavit of Support, to show that he or she has adequate means of financial support and that the beneficiary of the petition is not likely to become a public charge.

a. The substitute sponsor must complete the Form I-864, Affidavit of Support.
b. The Form I-864 must contain an original signature of the sponsor.
c. The new sponsor must be an immediate family member or a legal guardian of the
beneficiary, such as a spouse, parent, mother-in-law, father-in-law, sibling, child, son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, or grandchild child at least 18 years of age.
d. Submit evidence that will establish the new sponsor’s immigration status or U.S. citizenship.

Continue reading "Death of US Petitioner (visa sponsor) - procedure for making a request for humanitarian reinstatement of I-130 petitions that have been revoked based on the death of the petitioner" »

The days of considering the H1B visa process a purely administrative process are over. In the not so distant past, H1B cases were just about the forms and the evidence submitted in the case. If the USCIS liked the arguments and supporting documents, an approval was issued.

Things are not so simple today. Recently, the USCIS has begun making visits to the U.S. work sites of companies that sponsor H-1B and L-1 visa holders, including some large U.S.-based financial services companies. USCIS agents come with a checklist of questions designed to confirm the identity of the employer who petitioned for the visa and the visa beneficiary and to verify that both are in compliance with the terms and conditions of the visa. The objective of the unannounced on-site visits is clear: to detect fraud and abuses of the visa program.

Here is the problem, USCIS investigation tactics often exceed what is necessary and reasonable to obtain H-1B application verification information. Unlike the Department of Labor, which has the statutory authority to investigate an employer's compliance with visa obligations but rarely conducts audits unless there are complaints, the USCIS has no statutory or regulatory authority to enter the workplace of H-1B and L-1 visa holders. So if you get audited, first thing to do is contact your immigration lawyer. A qualified attorney could assist you pass the audit and prevent any illegality on the side of the Government.

So our best advice to employers, keep good records for H1B employees, maintain a Public Access file for all H1B workers and follow the H1B posting requirements as required by the LCA process.

If you do get audited, take a deep breath....and call your lawyer.