Visa Lawyer Blog

US is finally joining the Civilized world as Obama lifts the 22 year long HIV ban on infected visitors coming to our country. Visitors who have HIV would be allowed to travel and immigrate to the United States.

The president signed the Ryan White HIV/AIDS Treatment Extension Act of 2009 at the White House Friday and also spoke of the new rules, which have been under development more more than a year.

The regulations are the final procedural step in ending the ban, and will be published Monday in the Federal Register, to be followed by the standard 60-day waiting period prior to implementation.

A ban on travel and immigration to the U.S. by individuals with HIV, the virus that causes AIDS, was first established by the Reagan-era U.S. Public Health Service and then given further support when Sen. Jesse Helms (R-N.C.) added HIV to the travel-exclusion list in a move that was ultimately passed unanimously by the Senate in 1987.

The president had the following to say:

A couple of years ago Michelle and I were in Africa and we tried to combat the stigma when we were in Kenya by taking a public HIV/AIDS test. And I'm proud to announce today we're about to take another step towards ending that stigma.

Twenty-two years ago, in a decision rooted in fear rather than fact, the United States instituted a travel ban on entry into the country for people living with HIV/AIDS. Now, we talk about reducing the stigma of this disease -- yet we've treated a visitor living with it as a threat. We lead the world when it comes to helping stem the AIDS pandemic -- yet we are one of only a dozen countries that still bar people from HIV from entering our own country.If we want to be the global leader in combating HIV/AIDS, we need to act like it.

We welcome this decision and hope that in country HIV waiver will be now in a much better position to be approved even for applicants without qualifying relatives.

Read more here

The November 2009 Bulletin brings mixed news. The State Department's Visa Bulletin for November 2009 notes that demand from U.S. Citizenship and Immigration Services offices has far exceeded earlier indications of cases eligible for immediate processing. As a result, the Department said, it has been necessary to hold most of the employment cut-off dates for November, and it is not possible to provide an estimate of future cut-off date movements.

Regarding the employment fourth preference "certain religious workers" category, the Visa Bulletin notes that the non-minister special immigrant program expires on October 30, 2009. All individuals seeking admission as a non-minister special immigrant must be admitted into the U.S. no later than midnight on October 30, 2009.

This Bulletin brings excellent advancement in the family immigration categories, especially in the Family 1st and Family 2A categories and, for Mexico, in the Family 3rd category, what a relief. Mexico advances to 1 May 1992. The Philippines advances one month to 22 October 1991.

Click here for the Bulletin

For most Lawyers handing H1B cases, the problem with the Labor Condition Application (LCA) system has become a nightmare. Some cases take almost 14 days to be resolved and the FEIN denials are completely unreasonable.

Finally, the USCIS Ombudsman release a set of recommendations to handle the recent problems.

In August and September 2009, the Ombudsman received complaints concerning H-1B cases with incorrectly denied Labor Condition Applications (LCA/ETA-9035) filed with the U.S. Department of Labor (DOL). LCA processing delays and errors at DOL, when coupled with USCIS’ current H-1B petition initial filing requirements, are prejudicing employers and individuals who are unable to timely file original or extension H-1B visa petitions. Untimely H-1B petition filings lead to
problems, including: (1) the potential loss of employees’ legal status; (2) business operation disruptions due to the loss of continuity in the employment of key employees; and (3) economic loss to employees in the form of lost wages and costs of travel overseas due to loss of status. USCIS has the authority to mitigate the impact upon these customers.

To mitigate the impact of LCA processing difficulties, the Ombudsman recommends that USCIS:

(1) Reinstate USCIS’ previous practice of temporarily accepting an H-1B petition (Form I- 129) supported by proof of timely filing of an LCA application with DOL, and issue a
Request for Evidence (RFE) whereby the H-1B petitioner later provides the certified
LCA; and

(2) Establish a temporary policy under which USCIS would excuse late H-1B filings where the petitioner has documented an LCA submission to DOL that was improperly
rejected.

Given that Form I-129 instructions say a petitioner must provide evidence that an LCA has been filed with DOL, and that USCIS has previously accommodated petitioners in nearly the same circumstances, implementing these recommendations as a temporary solution is warranted. We welcome the above referenced guidance, and hope this will assist many H1B filers that are in need of faster processing.

USCIS has revised Form I-601, Application for Waiver of Grounds of Inadmissibility to make it easier for applicants to complete. Applicants may now select from a list of grounds of inadmissibility on the form itself and mark all which apply to them in order to request a waiver. This was confusing to many applicants in the past as they were not sure what to type in this section.

In addition to the list, the form includes a section where applicants can describe, in their own words, why they believe they are inadmissible. Again, this is something that was not so clear in the previous version of the form. In the previous edition of Form I-601, information about grounds of inadmissibility could only be found in the form's instructions.

Please note that USCIS will continue to accept the previous version of the form, dated 10/30/08 Y, through November 20,2009. Beginning November 21, 2009 USCIS will only accept the revised Form I-601, dated 04/06/09 N, and will reject all requests using previous editions of the form. Concern is that Applicants using notarios and other consultants, may be rejected as these non lawyers may not be informed of the new procedures.

The Widow penalty debate has been going on for years. This week the problems of widows have come to an end. The Senate approved a measure on Tuesday that would end what has become known as the “widow penalty” — the government’s practice of annulling foreigners’ applications for permanent residency when their American spouses die before the marriage is two years old.

The measure, which passed 79-19, was contained in a conference report that accompanied an appropriations bill for the Department of Homeland Security. The House of Representatives passed the conference report last week. President Obama is expected to sign the bill into law.

While the foreign spouse of a United States citizen may be eligible for residency under American law, the government has argued that the spouse’s death before the two-year mark ends the marriage, canceling the foreigner’s right to be considered for residency and opening the door to deportation.

The law is also retroactive; any immigrant whose citizen spouse died less than two years after they wed, no matter how long ago, would have two years from the law’s enactment to petition for residency.

Congratulations to Mr. Brent Renison, a Lawyer from Oregon who spearheaded the fight for this law to pass.

Read more here...

We can all laugh to a good joke form time to time, but this story is not funny at all. Target Corp., based in Minneapolis, has apologized for selling a Halloween costume that came under fire for its "illegal alien" theme.The company said it was sorry for selling the $39.99 costume that included an orange jumpsuit emblazoned with the words "illegal alien," a large imitation green card and a space alien mask.

Read more here...

The H2B seasonal visa is considered to be the most abused type of visa. Typically workers coming on this visa are from low economic background and often uneducated. In many cases, employers can file for many workers on one petition, making this a lucrative business for fraudulent recruiters and agencies. The recent change in the regulations of the H2B visa (mainly barring recruiters from collecting fees), should change the program for the better, or so we hope.

Deborah Notkin, AILA'S past president recently came back from Mexico, meeting with Groups concerned with this program. Here is an excerpt from her Blog entry:

By far, everyone agreed that the problems began with “recruiters” who charged substantial sums (typically around $1,000) from each hopeful temporary worker and this money was rarely returned if there was not a visa available. This problem seems to reach epic proportions during a period of prosperity in the US when the H-2b visa cap of 66,000 workers doesn’t provide sufficient visas to fill needs. Under both Mexican law and now under the rules of the current H-2b regulations, recruiters are prohibited from charging fees to the prospective migrant workers but the judges found that enforcement needed to be stepped up.

We also concluded that workers needed to be given a notice of the terms of employment including salary and the workers stressed portability once they entered the US if they were employed by a non-compliant employer. This portability plan was recommended which would require the worker to find another position in the same field, such as construction, and to have a salary offer for no less than the required salary on the initial application.

In speaking to these workers and some government officials on both sides of the border who attended the program, it was clear that there are many compliant employers as well as employers who were ignorant of the H-2b rules and depended on the “legal services” of unscrupulous recruiters and employers who knowingly violated the law.

Many of the workers had spouses currently in the US working in apparently compliant H-2b employment situations, happy with the prevailing wages that were being paid. The workers who benefited most from the H-2b program were those who had located good employers and returned annually to work for the same employer on a seasonal basis.

Without adequate enforcement, the H-2b program can be a “hit or miss” proposition for those going to work for a specific employer for the first time. Not all recruiters, also referred as staffing staffing organizations are unscrupulous but unfortunately, some who have gotten involved in the H-2b program, on both sides of the border, are a big part of the problem.

Assistant Secretary for U.S. Immigration and Customs Enforcement (ICE) John Morton announced standardized Memorandums of Agreement (MOAs) with 67 state and local law enforcement agencies to participate in 287(g) partnerships by prioritizing criminal aliens who are a threat to local communities.

The administration had previously suspended the program, which critics say was mismanaged and allowed racial profiling and discrimination. Before it was suspended, there had been 66 local and state agencies participating.

Immigration advocacy groups were quick to respond to the ICE announcement. From Ali Noorani, Executive Director of the National Immigration Forum, a non-partisan, non-profit pro-immigrant advocacy organization in Washington:

"Expanding misguided and ineffective immigration enforcement program like the 287 (g) program does not bring us closer to an immigration system that works. Succumbing to the siren call of an enforcement-only approach will not solve the immigration problem once and for all. Only comprehensive reform of our immigration system will actually work to reduce illegal immigration and get immigrants out of the shadows and into the system, making it easier to weed out those who wish to do us harm and ending the fear and exploitation of life at the fringe."

India has expressed its concern to the Chinese government over Beijing issuing visas on a separate sheet of paper to Indian nationals from Jammu and Kashmir instead of stamping them in their passports. Ministry of External Affairs (MEA), India strongly believes this, as a well-thought-out strategy to question the status of its state Jammu and Kashmir. It has been issuing visas stapled to passports to people from Arunachal Pradesh who have traveled to China since 2007.

MEA spokesperson Vishnu Prakash says “We have conveyed our concern to the Chinese government in this regard. It is our considered view and position that there should be no discrimination against visa applicants of Indian nationality on grounds of domicile or ethnicity.”
It’s not clear when the Chinese started issuing visas on a separate sheet of paper to Indian travelers of Kashmir. The matter came to light when immigration authorities at New Delhi International Airport, India turned away Kashmiris carrying the standalone visas, assuming they were fakes. The Chinese embassy however issued letters confirming that it had issued valid visas. The matter was then brought to MEA’s notice, prompting it to take up the issue with Beijing. Immigration authorities have been directed to treat the standalone visas as invalid.

This is just to brought some Immigration development in other parts of world. We strongly belief that both the Asian neighbors will resolve such issues amicably soon.

Wilmer Rivera Melendez, 61, pretended to be a lawyer and offered to help more than a dozen undocumented Guyanese immigrants in Brooklyn to get green cards, has been indicted in an immigration fraud scheme in which he is accused of offering to marry two illegal Guyanese immigrants in Brooklyn to help them gain legal status. Robert M. Morgenthau, the Manhattan district attorney, also added that this man was earlier convicted of bigamy in Georgia six years ago.

Mr. Morgenthau claimed himself having 20 year of experience as a lawyer, filed documents with immigration authorities for “withholding of removal” that would have allowed immigrants to remain in the country and obtain green cards, which is actually does not allow one to obtain a green card. Instead, Mr. Melendez’s actions led federal immigration officials to begin deportation proceedings against the 14 Guyanese immigrants. The law provides for illegal immigrants who are victims of violent crime to receive temporary visas, but not victims of fraud.

H-1B Quota is still available for all employers. Employers who have not yet proceeded with new H-1B filing can go ahead now too as per their business requirements. After many years since the Cap of H-1B started, it is still available even after Sept. 30, 2009. As of this writing, there are still H1B cap numbers available, both in the advanced-degree and regular H1B quotas. This means that H1B petitions can still be filed for fiscal year 2010. These filings can continue, as long as the cap numbers are available.

We like to share that H-1B petitions can be filed throughout FY10, until the cap numbers are all depleted. Petition filed under the 2010 Cap after October 1, 2009, the start date of work requested can be immediate. Since October 1, 2009 has already passed, and the H-1B numbers are still available, filings may request an immediate validity date. Like earlier, the start date for H-1B work can be as much as six months in the future, depending upon the needs of an employer. Usually one has to start the H-1B Cap process 6 months in advance of the requested start of employment, employers were all doing so in order to increase their chances of obtaining one of the limited cap numbers. Thus, cases were filed at the beginning of April, requesting an October 1st start date. However, we are now beyond October 1st, and Cap numbers remain available, it is possible to pick a more desirable start date, ranging from immediate to six months in the future.

There is not much progress in cases filed in FY 2010 quota yet. However, there is sharp increase in filings. The regular cap increased by 1600 cases between the end of August and the end of September, for a total of 46,700 as of September 25, 2009. This reflects a higher rate of filings than in the prior few months which may be due to re-filings and fresh filing as per upcoming requirements. We will keep you posted on further developments.

Since the H1B filing season opened up in April 2009, cases were subject to greater scrutiny by USCIS. While we still have H1B visas available, the denial rate of filed cases is on the rise. I would say say that we have a 30% increase in RFE's received this year. Recently, the USCIS started auditing employers and showing up unannounced at the work sites.

AILA's Bob White and Mary Pivec, from AILA Verification and Documentation Liaison Committee provided an update on the recent audits.

The U.S. Citizenship and Immigration Services’ (USCIS) Office of Fraud Detection and National Security (FDNS) has recently commenced an assessment of the H-1B program. The following is information that employers (and their immigration counsel) should know about FDNS, FDNS’ current H-1B assessment program, and how to respond if an FDNS Officer visits the employer’s (or its client’s) office as part of this assessment program.

USCIS created the FDNS in 2004 with a mission to detect, deter, and combat immigration benefit fraud and to strengthen USCIS’ efforts ensuring benefits are not granted to persons who threaten national security or public safety. FDNS is USCIS’ primary conduit for information sharing and collaboration with other governmental agencies, including Immigration Customs and Enforcement (ICE). FDNS currently consists of approximately 650 Immigration Officers, Intelligence Research Specialists, and Analysts located in field offices throughout the United States. Additionally, FDNS has contracted with multiple private investigation firms to conduct site visits on behalf of FDNS. FDNS’ budget is derived from the Fraud Fee, which is paid by employers with each initial H-1B or L petition.

FDNS has previously conducted assessments in the L-1, EB-1-3 Multi-National Manager and Executive, and R-1 programs. As part of these assessments programs, FDNS officers collected information during site visits to verify information pertaining to petitions that were both pending and already approved.

So how does the site visit work?

Unlike many of the site visits with the L-1, EB-1-3 and R-1 assessment programs, the H-1B site visits for the most part have been unannounced. The site visits may occur at the H-1B employer’s principal place of business and/or at the H-1B nonimmigrant’s work location, as indicated on the Form I-129 petition (regardless of whether the work location is controlled by the H-1B employer). The employer may request that its immigration attorney be present during the site visit. However, FDNS officers will not typically reschedule a site visit so that an attorney may be present. FDNS has stated that it will allow counsel to be present by phone, if requested.

Continue reading "H1B Visas - USCIS’ FDNS Commences Audit of H-1B Program, Including Unannounced Site Visits to Employers and Clients" »

On October 13, hundreds of people from across the nation will be gathering in Washington and across America to tell Congress that immigration reform can't wait. We encourage our readers to take action as best as you can. If we want for a major reform to pass this time, this has to be an effort taken by all of us nationwide.

October 13 is the day! Thousands of supporters will descend on our nation’s capital on Tuesday to lobby Congress in person for progressive immigration reform. But they can’t do it alone! If you can’t make it to Washington to meet with your Representative personally, you can still make a difference with a simple fax or phone call.

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A Blog reader called me the other day and wanted to know when his priority date will become current. His I-485 adjustment was filed in August 2007 when visas opened up for 30 days, and since that time retrogressed. The applicant is from India and like many others in his shoes is eager for answers. So how do visa numbers become available?

In order to approve an application for adjustment of status (I-485), there must be a visa number available in the particular category. This, in turn, depends upon the country of chargeability and the priority date of the case. Once the U.S. Citizenship and Immigration Services (USCIS) has reviewed a particular I-485 application, a request is submitted to the DOS for a visa authorization. If the USCIS makes the request for a visa number to the DOS when the priority date of a particular case is current, and an immigrant visa number is available, the authorization is transmitted and the USCIS can approve the I-485 application. This is all tracked through the DOS Immigrant Visa Allocation Management System (IVAMS).

If an immigrant visa number for a particular individual is requested from the DOS by the USCIS, but none is available, the request is moved to the "pending" file with the DOS. Data from this pending file is used by the DOS to calculate the appropriate cutoff dates for the backlogged categories in the Visa Bulletin each month.

Cases placed in the pending demand category are processed as immigrant visa numbers become available. The DOS communicates with the USCIS regarding the A numbers of the cases for which visa numbers have been authorized. These cases are then processed to completion and green cards are then issued by the USCIS.

As you can see, this is a very complicated and streamlined process, with actual visa numbers tracked, issued, and assigned to particular green card cases as part of the approval process. Clients often do not understand why they have to wait, sometimes years for visa numbers to open, even after USCIS approvals. We hope that both agencies will find a better way to talk to each other and make the Immigrant visa process and much smoother one.

Recently the Department of Homeland Security (DHS) released an advance copy of the final rule rescinding the agency's regulations regarding the legal obligations of employers receiving no-match letters from the Social Security Administration (SSA). The rule rescinds DHS final regulations previously issued on August 15, 2007 and October 28, 2008, entitled "Safe-Harbor Procedures for Employers Who Receive a No-Match Letter." Publication of the final regulation in the Federal Register is expected within the next several days, and the rule will take effect 30 days after the publication date.

A no-match letter is a letter from SSA notifying an employer that the social security information submitted by the employer for certain employees does not match the information in SSA's databases. The DHS no-match regulation had expanded the concept of "constructive knowledge" and had provided that employers could be held liable for the knowing employment of unauthorized workers where the employer failed to take sufficient steps to resolve a social security mismatch after receiving a no-match letter from SSA. The regulations also provided employers with a set of "safe-harbor" procedures after receiving a no-match letter. Employers who precisely followed those procedures would not be held liable for the knowing employment of any unauthorized workers based upon the receipt of the no-match letter.

However, as a result of a legal challenge filed by a number of labor and business organizations, DHS had been prohibited from implementing the social security no-match regulation, and SSA has not issued any no-match letters for several years. According to the preamble to the rule, DHS is rescinding its no-match regulations to focus its enforcement efforts on increased compliance through improved verification, including participation in E-Verify, the U.S. Immigration and Customs Enforcement's Mutual Agreement Between Government and Employers (IMAGE), and other programs.

Employers need to continue to ensure that they have policies and procedures in place to follow up and resolve any no-match discrepancies that may arise in the future.

When same-sex marriage became a reality in some countries, the state of Massachusetts, and for a short period of time in California, the big question for many was whether a U.S. citizen or legal permanent resident who married a person of the same sex would be deemed to be legally married in the United States for federal immigration law purposes.

The question arose as to whether a U.S. citizen or legal permanent resident would be able to marry in one of these jurisdictions and thereby petition the U.S. Citizenship and Immigration Services to have his or her spouse immigrate as an alien relative. The answer to this question at present is “no”.

If federal courts are given the opportunity to rule on a challenge to a denial of an I-130 petition submitted by a same-sex couple, they may do little more than cite the Defense of Marriage Act (DOMA). DOMA provides in part, that a marriage is defined as a union between a man and a woman for all federal law purposes. At present the U.S. government is under no legal obligation to give effect to a foreign marriage between persons of the same sex.

In addition to domestic legal obstacles precluding the approval of an I-130 petition based on same-sex marriage, there are practical factors why an I-130 petition should not be filed for same sex married couples. Such a filing could be found as fraudulent, essentially because, although the couple is in fact married, the petitioner and the beneficiary are not married under U.S. law. It is more probable however, that such a filing will be considered frivolous since it is not approvable, given that the marriage between two persons of the same sex does not create an immediate relative spousal relationship under current federal law.

The Uniting American Families Act (UAFA) is recently introduced legislation constituting the best hope for bi-national same-sex couples. The UAFA, re-introduced in February 2009 by Rep Jerrold Nadler (D-NY) and Sen. Patrick Leahy (D-VT) would add the words “or permanent partner” to existing immigration law wherever the word “spouse” appears. Consequently, the enactment of the UAFA is the best prospect for making family unification, a principal goal of our immigration laws, a reality for same-sex couples.

We had quite a few inquiries this past week about K visas. Clients often mix the different K categories. Here is a brief summary for our confused readers.

On December 21, 2000, President Bill Clinton signed into law the Legal Immigration Family Equity Act (LIFE Act). The Life Act made K status available to spouses and children who are the beneficiaries of pending or approved Form I-130 immigrant relative petitions.

Subsequently, the Life Act was amended, thereby expanding the K category to include spouses and spouses’ children of U.S. citizens who are waiting outside the United States after filing of an immigrant relative petition. The spouses of U.S. citizens under K status are now classified as “K-3”, and the children of such spouses as “K-4”. The K-3 and K-4 visas have specific requirements for filing due to the different nature of the petitions.

A fiancé of a U.S. citizen may receive a K-1 visa to enter the country for the purposes of getting married to a U.S. citizen within 90 days of his or her arrival. If the marriage does not occur within this 90 day window, the K-1 alien must depart the country. The child of a K-1 status alien may be granted a K-2 visa. The cut-off date for receiving a K-2 visa is one year after the K-1 visa has been issued.

When it comes to K-3 visas, lawmakers have sought to make immigration law responsive to the real world needs of alien spouses of U.S. citizens. To qualify for K-3 status, the spouse of the U.S. citizen must meet the following criteria:
1. The spouse must be the beneficiary of a previously filed Form I-130 immigrant relative petition;
2. The spouse must be outside the United States;
3. The U.S. citizen spouse must have filed Form I-129F for a K-3 visa on behalf of the alien.

The K-4 is a derivative nonimmigrant classification for the children of those who are eligible for K-3 classification. A child cannot qualify for a K-4 visa unless the U.S. citizen parent or step-parent files a K-3 petition for the child’s alien parent. K-4 aliens must be under 21 years of age and unmarried to meet the definition of a child. The K-3 and K-4 visas are valid for two years, and can be extended.

Like most engagements and marriages, processing K-1, K-2, K-3, and K-4 applications can sometimes result in a good or bad situation. Often, unexpected circumstances can occur when the beneficiary finally gets to the consulate. Therefore, it is crucial to consult with an immigration attorney in order to be made aware of the worst case scenarios and what sort of red flags to spot when filing these applications. This will ultimately aid with determining what legal strategies can be employed.

USCIS has updated the H1B cap count. As of September 25, 2009, the regular Cap count is 46,700. The advanced-degree cap remains at 20,000.
Since neither cap has been reached at the time of this writing, the USCIS will continue to accept FY2010 H1B cases under the advanced-degree and regular caps.
Hence, employers can still apply for H-1B petitions. However, we caution that even if the cap is open still getting an approval is a hard nut to crack. Please make sure following while applying for fresh H-1B Petitions:
1. Itinerary needs to be provided;
2. Project support documents needs to annexed which may inculde Letter from Client/Work-order/Statement of Work, as the case may be;
3. If you are hiring for in-house requirement, ensure to provide all related documents which able to justify in-house requirements for a specialty worker;
4. Job Description and your requirements must satisfy Specialty occupation.

We will continue to provide updates on the H1B cap. Let us know if we can help in any such filings.

The U.S. State Department has officially released information about this year's DV-2011 green card lottery, which begins on October 2, 2009. Don't wait too long and sign on the registration process by reading through this year's instructions. For those of you who were curious, the DV-2011 list of ineligible countries remains the same as last year:

* Brazil
* Canada
* China (mainland-born)
* Colombia
* Dominican Republic
* Ecuador
* El Salvador
* Guatemala
* Haiti
* India
* Jamaica
* Mexico
* Pakistan
* Philippines
* Peru
* Poland
* Russia
* South Korea
* United Kingdom (except Northern Ireland) and its dependent territories
* Vietnam
* Persons born in Hong Kong, SAR, Macau SAR and Taiwan ARE eligible

Click here for info and the official site

Jennfier Macfayden writes an excellent Blog about Immigration at www.about.com, she opened up a worldwide survey as to why or why not one should apply for the lottery. Here is a reader's comment:

Maybe you don't know what it means to be in the USA. It's a blessed nation despite what you may think, because you are there, taking things for granted like having clean water, good roads and plenty of food. I would like to have a green card to work and change my life in America. I will keep playing. That's all I can do.

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