Visa Lawyer Blog

Immigration law is important and that is all that we cover most of the time. But our readers, may be facing other legal challenges from time to time. For Example E2 Visa Entrepreneurs must know something about Trademarks in order to best protect their news business. So we rely on our lawyer friends from across the country, to provide guest articles and reports. This week we are proud to feature Attorney Robert Cogan Intellectual Property Law expert.

“Can I trademark this?” is a common question. The answer is generally, “Yes,” but not for the reasons you may think. In the United States, you must create a trademark yourself. A patent does not exist before it is granted by the government. This is not true for trademarks. Rather like an automobile, you must have a trademark before you can register it. To have a trademark, you must create it.

A trademark is a designation that distinguishes the source of goods or services, usually a brand name or a model name. A trademark is uniquely associated with one source. For example, FRISBEE brand flying discs come only from one company. Most people may not know that this company is Wham-O, Inc. of Emeryville, California. However, they do know that FRISBEE brand comes only from one company. The trademark gives products or services immediate recognition of the reputation and quality associated with the source of products or services.

In the United States, “common law” rights are recognized in trademarks that are used in commerce. Israel, too, is a “use” country. Registration is important, but not mandatory. In “civil law” countries, e.g., in continental Europe, trademark rights are established by registration.

In “use” countries, a trademark is established by adoption and use. Adoption is the selection of a trademark. Use comprises marking the trademark on the goods or on containers or on labels attached to the goods, depending on the physical form of the goods, and moving the goods in commerce. Placing the brand name on a web page or in an advertisement is rarely considered to be use. Company names and domain names have a complex interrelationship with trademarks that cannot be addressed in a brief article. However, you should not depend on those items to establish use. The surest way to establish use is by traditional marking.

Once the trademark is adopted, it should be marked with the “TM” symbol when it is placed on labels or in advertising. Placing “TM” next to the mark does not require any formal action, e.g., filing an application. It is a notice to the world that you are claiming rights in a common law trademark. It should virtually always be done.

Be sure that the trademark acts as a brand name and not as a description of the goods. If a designation describes the goods, it is no longer identified with the source, and it loses its trademark significance. Aspirin, escalator, and thermos were once trademarks in the United States. Now they are dictionary words.

Conflict of one trademark with another depends on whether there is a likelihood of confusion in the marketplace as to the source of goods or services. Therefore, trademarks of others may be relevant, even if they are not the same and even if the goods or services are not the same. A likelihood of confusion may exist where the goods and services are related.
For example, a company making Vera brand scarves sued a company selling Vera brand cologne. The court noted that the makers of Halston cologne also made Halston scarves, and that both products were sold on the same floor of a department store. A likelihood of confusion was established since a customer could reasonably believe that Vera cologne would have the same source as Vera scarves. Therefore, the Vera cologne makers had to “cease and desist.” In contrast, in an old but classic case, Cadillac division of General Motors sued the makers of Cadillac dog food. The court did not believe that people would think that dog food would come from a motor vehicle manufacturer.

It is a good idea to research the rights of others before introducing a trademark into the marketplace. Having to change a trademark can be very expensive in terms of replacing products and advertising and also in terms of having to reestablish a new brand name. Getting the proper professional services will reduce the level of risk associated with a new trademark.
Registration is often sought because registered trademarks provide stronger rights and are easier to enforce. A number of different forms of registration are available, each with different costs and benefits. Individual states provide state trademark registrations. The United States Patent and Trademark Office administers the well-known federal trademark registration denoted by the ® symbol. United States trademark owners may file international trademark registration applications based on their United States applications.

Here are some tips from the Vermont Service Center. VSC will accept I-539 applications to change status to I status for representatives of foreign press, radio, film, or other foreign information media. The I visa is generally issued at a U.S. consulate with a contract or job letter from a foreign media organization and the applicant's appropriate credentials.

To adjudicate an application to change status to I, VSC requires the following:

* An explanation for why the applicant did not apply for an I information media visa at a U.S. Consulate abroad;
* College transcripts evidencing journalism classes, establishing that the applicant is qualified for the I visa (NOTE: the Foreign Affairs Manual only requires proof of credential issued by a professional journalistic association, if available in home country);
* Letter from employer including employer's name, applicant's job title, duties, and annual salary (note below for specifics);
* Outline of the applicant's employment history for the last four years, including:
o The title of all positions held during the time frame
o The duration of employment for each position

VSC provided the following profession-specific instructions:

Continue reading "I Visa for Members of the Media - Useful Tips 2009" »

Crazy times with the H1B visa these days. As we are nearing the end of 2009, with H1B visa numbers open from April, it seems that the end is near. Recent cap update indicates that 1300 visas were approved last week. So far 56,900 visas were filed, leaving us with 8,100 to fight for. But remember that 6,800 out of the 8100 is reserved for Chile-Singapore nationals coming to the United States to work temporarily. So we are essentially left with 1,300 visas. If this continues by December 8th or so we will reach the cap.

What to do? If you have a job offer, print this post and show it to your employer. Maybe that will get them moving. Remember LCA processing will take more than a week, and with recent Memo from USCIS once can file even without an approved LCA.

So Happy Thanksgiving to all of you, and looking forward to an exciting December!!!

Click for the recent cap update

USCIS recently released an excellent FAQ about the visa wait times, and the reasons why it takes so long to immigrate under the preference system. I still think that with time, things will get even worse. In order to keep families from being apart for years, Immigration reform must address the visa backlog as well.

A visa must be available before a person can obtain an employment-based green card. Because more people want a green card than there are visas available, not everyone who wants a green card can get one immediately. Therefore, some people have to wait in line until a visa is available.

The U.S. Department of State (DOS) gives out 140,000 employment-based visas each year. About 85% of those visas go to people seeking a green card in the United States, while about 15% go to people seeking to immigrate from abroad. Currently, about 234,000 people have employment-based adjustment of status (green card) applications pending in the United States and are waiting to get a visa. How long you wait for a visa depends on the supply and demand for your particular preference category, your priority date, and the country your visa will be charged to, usually your country of birth.

Read more here....

Immigration activists say they are hopeful that Gov. Deval L. Patrick will support proposals in an advisory report calling for more English classes for the state’s immigrants and in-state tuition for undocumented college students. Patrick released the report containing 131 recommendations, which he called a “values” statement, at a luncheon for immigrant advocates.

Since July 2008, resident immigrants and activists have crowded meetings around the state pressing for those programs and others, including allowing immigrants to get state drivers licenses.

Read more...

Not an easy time to a US employer these days. Between ICE raids and USCIS H1B site visits, the stress level is on the rise. Here is the latest update - U.S. Immigration and Customs Enforcement (ICE) announced the issuance of Notice of Inspections (NOIs) to 1,000 employers across the country associated with critical infrastructure. This follows an earlier initiative on July 1, 2009 when ICE issued 652 NOIs to businesses nationwide. The notices alert business owners that ICE will be inspecting their hiring records to determine whether or not they are complying with employment eligibility verification laws and regulations. Inspections are one of the most powerful tools the federal government has to enforce employment and immigration laws. This is part of a new initiative illustrating ICE's increased focus on holding employers accountable for their hiring practices and efforts to ensure a legal workforce.

"ICE is focused on finding and penalizing employers who believe they can unfairly get ahead by cultivating illegal workplaces," said ICE Assistant Secretary John Morton. "We are increasing criminal and civil enforcement of immigration-related employment laws and imposing smart, tough employer sanctions to even the playing field for employers who play by the rules."
Audits involve a comprehensive review of Form I-9s, which employers are required to complete and retain for each individual hired in the United States. Employers are required to complete and retain a Form I-9 for each individual they hire for employment in the United States. This form requires employers to review and record the individual's identity document(s) and determine whether the document(s) reasonably appear to be genuine and related to the individual.

Protecting employment opportunities for the nation's lawful workforce and targeting employers who knowingly employ an illegal workforce are major ICE priorities, for which ICE employs all available civil and administrative tools, including audits. Audits may result in civil penalties and lay the groundwork for criminal prosecution of employers who knowingly violate the law.

At the same time USCIS continues with enforcement efforts. As part of the Department of Homeland Security's stepped-up enforcement efforts that include increased audits of businesses to detect immigration and labor law violations, employers are reporting random, unannounced visits by the Fraud Detection and National Security Division (FDNS) of USCIS. The FDNS division has engaged outside contractors and private investigators to conduct approximately 25,000 site visits to petitioners. In addition to verifying the validity of information contained in H-1B petitions, FDNS investigators are apparently using information collected during worksite visits to assist USCIS with developing a fraud detection database. FDNS investigators collect information to develop profiles of the types of organizations that have records of good faith use of immigration programs and records of immigration compliance, and also to identify factors that could be a sign of fraud. Many of these random, unannounced site visits are expected to occur after approval of the H-1B petition or extension. In fact, employers in all industries have reported such worksite visits in recent weeks.

How to prepare? Employers must develop and implement strong compliance policies, audit their I-9s and H-1B public access files regularly, and plan in advance how to respond when immigration agents visit the company. HR personnel must be prepared and know what to say and what not to say when USCIS agents visit. Contact your experienced Immigration Attorney immediately.

Continue reading "ICE Announces Another 1,000 I-9 Worksite Audits; USCIS to conduct 25,000 site visits" »

Lou Dobbs said on Thursday he is considering career options including possible runs for the White House or U.S. Senate. Dobbs has drawn fire from Latino leaders and civil rights groups for frequent on-air remarks about U.S. border control and immigration that critics saw as demonizing illegal immigrants. I personally feel that even considering him for public office will be an insult to the American Public. Let's hope that his plans will remain a far away fiction.

Read the Reuters article here....

As our economy is heading towards recovery, we must recognize the role of small businesses and Entrepreneurs in taking the lead and keeping us optimistic. Investments in small businesses are especially significant to the national interest of the United States. The Small Business Administration (SBA) estimates that 99 percent of the firms in the United States are small businesses, and small firms have generated 60 to 80 percent of the net new jobs annually over the past decade.

Perry Marshall, the SEO expert, released an excellent article today about the value of Entrepreneurs in our society. Very inspiring:

Have you ever....

-Tapped a line of credit or 2nd mortgage so you could give
your employees their paycheck?

-Paid off your vendors and creditors, even though it meant
canceling a long-awaited vacation?

-Heard about someone in need and helped them out, even
though you knew you would eventually end up borrowing the
money - you didn't have it but you gave anyway because it
was the right thing to do?

With that in mind....

...When's the last time you turned on CNN and heard an
encouraging story about business owners doing good in the
world?

When's the last time you heard somebody in the media or
education system say, "We need to build up entrepreneurs,
because new businesses will become the foundation of our
communities" ?

For all those who assume us money-grubbing entrepreneurs
are driven by greed, selfishness and ego, let me share with
you the results of a study by the Center for Data Analysis
and the Heritage Foundation:

Charitable Giving by Household Income, based on IRS data:

Income Class Entrepreneurs Non-Entrepreneurs

$65,480+ 3.23% 2.42%
$37,381-$65,480 3.47% 1.84%
$21,661-$37,380 3.29% 1.14%
$10,661-$21,660 2.25% 0.74%
$0-$10,660 1.55% 0.35%

Average 2.53% 1.27%

Looks like entrepreneurs are TWICE as generous as everyone
else. ESPECIALLY the ones with low incomes(!)

Why is that? What's going on here?

It's real simple.

Most people only understand scarcity. Entrepreneurs
understand abundance.

My experience of entrepreneurs is we overwhelmingly tend to
take care of everybody else before we worry about ourselves.

My friend, if you tapped every resource to pay everyone, if
you went to bed not knowing how tomorrow's bills were going
to get paid, then at least you had faith in the goodness of
providence and the power of imagination and resourcefulness
to find a solution.

THIS is why people in the modern world have three meals a
day and microwave ovens and beds to sleep in and health care
and straight teeth and computers and movies and modern
music.

Because... somebody had faith in the power of ingenuity.
They dreamed and schemed and innovated and gave until it
hurt. Believing that somehow, somewhere, success would show
up when it was most needed.

None of us can ever predict when or how solution to some
vexing problem will present itself. We just have faith that
it will.

I don't know what problem you face today, but I know that
one of two things is true:

1) Someone somewhere has already solved it, or
2) The ability to solve it WILL be given to you

Most of all I want to salute you in pursuing a journey that
most people never even have the courage to undertake.

When you find the success you seek, you deserve it.

The talking heads on TV may not appreciate us. But we
appreciate each other. And I appreciate you.

Seize the Day.

Perry Marshall

The most recent update from the USCIS is showing again a steady approval rate. The jump we saw in October was just due to a more current update of the approval, nit an increase in filing according to the USCIS. If this pace will continue we will see visas all through early 2010, but I may be wrong here...

Ao here is is the update from USCIS:

As of November 6, 2009, approximately 54,700 H-1B cap-subject petitions had been filed. USCIS has approved sufficient H1-B petitions for aliens with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap. Any H1-B petitions filed on behalf of an alien with an advanced degree will now count toward the general H1-B cap of 65,000. 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.

As we move closer to an Immigration reform, even government officials agree that such major change is very necessary. Here are some remarks by Secretary Napolitano on Immigration Reform at the Center for American Progress:

Over the past year, as this Administration has pursued more effective strategies within the current laws, the picture of how exactly those laws need to be changed has become clearer than ever before. In the past ten months, we have made tough choices, and implemented significant reforms within the current legal framework—but they are not enough to create the system that we want or that we need. If we are truly going to fix a broken system, Congress will have to act. When it comes to immigration, I took an oath as Secretary of Homeland Security to secure the nation by enforcing the law and managing legal flows across the border. Let me be clear: to do this job as effectively as possible, DHS needs immigration reform. Reform legislation would provide lasting and dedicated resources at our borders, and provide some critical legal tools that we don’t currently have to combat smuggling organizations. For example, we need tougher anti-smuggling laws in dealing with the aggravated crimes smugglers commit—including assaulting law enforcement officers, endangering children, threatening relatives and abandoning people in the desert— hundreds of whom succumb to death from heat and lack of water. We also need to update current laws that don’t cover some of the new means by which criminals conduct their business. For instance, today’s smugglers and drug traffickers often move cash through “stored value” cards, which aren’t even considered monetary instruments under the current money-smuggling laws.

In addition, we need improvements to the current law when it comes to interior and worksite enforcement. Dishonest businesses often ignore the civil fines for illegal employment now on the books because they’re so low. It’s also very difficult to prosecute these crimes as felonies because of the over-elaborate intent requirements built into the current statutes.

Read more here...

In response to the major delays with Labor Condition Applications (LCA's), the USCIS announced a temporary policy and procedural change regarding H1B petition filings. Effective November 5, 2009, H1B cases can be filed prior to the certification of the required Labor Condition Application (LCA). This change was necessitated by delays in LCA processing through the Department of Labor (DOL).

Here is how the new process will work. USCIS will begin to accept H-1B petitions filed with uncertified LCAs for a 120-day period, commencing November 5, 2009 and through March 4, 2010. However, USCIS will only accept such H-1B petitions if they are filed at least 7 calendar days after the LCAs were filed with DOL and include evidence of these filings. The only acceptable evidence of filing is a copy of DOL’s email giving notice of receipt of the LCA.

Petitioners who seek to take advantage of this temporary flexibility in the normal filing procedures for H-1B petitions must wait until they receive a request for evidence (RFE) before they submit the DOL-certified LCA to USCIS in support of the H-1B petition. USCIS will give petitioners a period of 30 calendar days within which they must send in a DOL certified LCA in response to the RFE. We welcome this new procedure and hope that it will expedite current H1B processing.

Read the USCIS memo here

So you all heard by now about Lou Dobb's dramatic departure from CNN. He said on air:

Over the past six months, it's become increasingly clear that strong winds of change have begun buffeting this country and affecting all of us. And some leaders in media, politics and business have been urging me to go beyond the role here at CNN and to engage in constructive problem-solving, as well as to contribute positively to a better understanding of the great issues of our day. And to continue to do so in the most honest and direct language possible.

Whether he felt that the Immigration reform debate will become a major topic in the next year, and his attempts to stop it will fail, or the rise in the pro immigration movement. Whatever it was, we are happy to see him go. Let the voices for Immigration reform take charge and make 2010 the year such change will happen. Good bye Lou!

Today is Veterans day, and I wanted to send warm wards of support to our Veterans and the active duty men and women fighting for our country day and night.

AILA provided a very important update from the State Department, we wish to share with our readers.

The Department of State has issued comprehensive new policy guidance on the use of DNA testing in the visa application process. This new guidance is set forth in a new set of extensive Notes to 9 FAM 42.44.

In this new guidance, the State Department declares DNA technology to be the only acceptable non-documentary method for proving a biological relationship. The preferred specimen collection technique for DNA testing is by buccal (cheek or mouth cavity) swab.

According to the Department, DNA testing is expensive, complex and time consuming and thus should be recommended only if no other credible proof of the claimed relationship exists. Consular officers should treat DNA testing as a last resort: all other possible methods for confirming the existence of a biological relationship must be exhausted before recommending this course of action. Even then, DNA testing may only be recommended, but never required by the consular officer.

Consular officers may recommend DNA testing solely to prove a relationship; they may never recommend DNA testing in an attempt to disprove a relationship. Only DNA test results reporting a 99.5 percent or greater degree of certainty as proof of a biological relationship between a parent and child may be accepted in visa cases.

The Department clarifies that consular officers adjudicating Form I-130 Alien Relative petitions are not authorized to approve the petition if DNA test results are the sole evidence of the claimed biological relationship. Such cases are not "clearly approvable" per the provisions of 9 FAM 42.41 N4.2-3; accordingly, they must be forwarded to USCIS for adjudication. Parenthetically, USCIS is authorized to approve I-130 petitions supported solely on DNA testing.

Continue reading "I-130 Alien Relative petitions - Comprehensive New Policy on DNA Testing" »

The House of Representatives on Saturday night passed a sweeping health care bill by a vote of 220-215. In the next few weeks, this bill will be analyzed and there will be various summaries online regarding this important piece of legislation. I would like to focus on the Immigration related matters in the Bill.

The Congressional Hispanic Caucus staunchly oppose including a provision that would bar undocumented workers from using their own money to buy health insurance policies available through the exchange.

The measure is already included in the Senate Finance Committee's version of the bill and is backed by the White House. Some conservative House Democrats have also indicated their support for the Senate language.

Several Hispanic Caucus members who discussed the issue with House Speaker Nancy Pelosi on Friday said they had received assurances the Senate language would not be included. Rep. Charlie Gonzalez, D-Texas, warned Thursday that several caucus members might try to block the House bill if it's changed to conform to the Senate measure. Pelosi's bill includes various requirements for immigrants to verify their citizenship before getting federal subsidies to buy health insurance. Conservatives, however, have called the requirements insufficient.

We will review the Bill and report on more important points that will be of interest to Immigrants.

Most applicants that are married less than 2 years to a US citizen must file form I-751 to remove the conditions. The Immigration Marriage Fraud Amendments of 1986 (IMFA) contained a requirement to file a Petition for Removal of Condition during the 90-day period preceding the second anniversary of the noncitizen’s acquisition of resident status.

The petition is to be filed jointly by the U.S. citizen or lawful permanent resident spouse and the conditional resident (CR). IMFA also allowed for a waiver of the joint-filing requirement based on specified grounds if the joint petition could not be filed. The IMFA was modified in 1990 (IMMACT90), and broadened the grounds for filing a waiver of the joint-filing requirement.

Currently a conditional resident can obtain a waiver of the joint-filing requirement and can show that he or she qualifies on one of three distinct bases: (1) extreme hardship to the CR if removed; (2) a good-faith marriage that has been terminated (by means of divorce); or (3) a good-faith marriage during which the CR or child suffered battery or extreme cruelty at the hands of the spouse. The CR files the waiver on Form I-751.

1. Extreme Hardship Waiver:

Under the Immigration and Nationality Act (INA), a conditional resident who can show that extreme hardship would result if such alien is removed, is eligible to have the joint-filing requirement waived and the conditional basis of resident status removed. The extreme hardship can be to the CR, a dependent child, or a subsequent spouse. The marriage that gave rise to the conditional resident status may have been terminated or not. Subsequent remarriage is not a bar to the hardship waiver. Currently areas of concern and controversy regarding the provision include the definition of “extreme hardship,” the period of time in which the hardship must have arisen, and whether the applicant must evidence a good-faith marriage.

There are at least 10 criteria relevant to determining whether a deportation will cause extreme hardship. These include (1) the alien’s age; (2) family ties in the United States and abroad; (3) length of residence in the United States; (4) health conditions; (5) economic and political conditions in the alien’s home country; (6) occupation and work skills; (7) immigration history; (8) position in the community; (9) whether the alien is of special assistance to the United States or to the community; and (10) whether there are alternative means to adjust status. Lawyers are well advised to use and evidence all factors that will give rise to hardship, including seemingly minor ones, as these can be viewed in the aggregate.

2. Waiver for Good-Faith Marriage that has been terminated:

The Immigration and Nationality Act allows for a conditional resident who can show that the qualifying marriage was entered into in good faith by the alien spouse, but the qualifying marriage has been terminated (other than through the death of the spouse) and the alien was not at fault in failing to meet the requirements of joint-filing, is eligible to have the joint-filing requirement waived and the conditional basis of resident status removed.

There is no controversy that this good-faith marriage waiver requires a showing that the conditional resident entered into the marriage in good faith. The job for the lawyer is to determine what documents will evidence this requirement and how to present certain documentation. Furthermore, the INA makes clear that any credible evidence relevant to the application must be considered. The burden evidencing the good faith however, lies squarely with the applicant. Consequently, it is imperative that your lawyer bring forth the necessary evidence to substantiate a good-faith marriage.

Since, this good-faith marriage waiver basis requires that the qualifying marriage be terminated, it places many conditional residents in a difficult situation if their divorce has not become final prior to the deadline to file.

3. Waiver for Good-Faith Marriage – Battery/Extreme Cruelty (Abuse):

As with the waiver based on a good-faith marriage that has been terminated,
the battery (abuse) waiver basis clearly requires that the conditional resident show evidence of a good-faith marriage to quality for the waiver. In addition, extreme cruelty must be documented by providing for the use of any credible evidence in support of the waiver. This often includes evidence from a licensed clinical social worker, psychologist, or professional.

Although the INA does not provide much guidance as to what constitutes battery or extreme cruelty, regulations do state that, “was battered by or was the subject of extreme cruelty includes, but is not limited to, being the victim of any act or threatened act of violence.” Lawyers can also show that less egregious acts also may suffice to meet the required showing for battery and extreme cruelty. Evidence of physical abuse may include, but is not limited to, expert testimony in the form of reports and affidavits from; police, judges, medical personnel, school officials, and social service agency personnel.

In conclusion, even though the law provides for waivers of the joint-filing requirement for conditional residents, each waiver basis presents legal and standard-of-proof requirements that may be difficult to evidence. Early planning and the assistance of a qualified immigration lawyer is the best way to success. Lawyers who arm themselves with the knowledge and expertise, can overcome the obstacles that lead to successful prosecution of I-751 joint-filing waivers.

USCIS recently issued a Memo that amends Adjudicator’s Field Manual on General Form I-140 Issues. Many issues are covered, but one of particular interest to our PERM readers is the Labor Certification Validity for Labor Certifications with an Ending Validity Date that Falls on a Saturday, Sunday or Federal Legal Holiday.

DOL has established a 180-day validity period for approved labor certifications. See 20 CFR 656.30(b). An approved labor certification must be filed in support of a Form 1-140 petition during the labor certification's validity period. DOL has not published any guidance regarding the treatment of labor certifications that effectively have a validity period of less than 180 days due to an ending validity date that falls on a Saturday, Sunday, or a federal legal holiday.

USCIS will accept the filing of 1-140 petitions where the supporting labor certification validity period ends on a Saturday, Sunday or federal legal holiday on the next business day, i.e., the next day that is not a Saturday, Sunday or federal legal holiday. This action is most consistent with existing USCIS regulations, which allow cut-off dates for the filing of petitions and applications that fall on a Saturday, Sunday or federal legal holiday to be extended until the next business day. See 8 CFR 1.1 (h). This procedure provides petitioning employers the benefit of the full 180 day validity period for approved labor certifications established by DOL.

So is the economic downturn over already, if you look at the recent H1B filings it may well be the case. United States Citizenship and Immigration Services (USCIS) has updated its periodic count of FY2010 H-1B cap filings, revealing that there has been a significant increase in the rate of filings during the month of October 2009. USCIS has stated that it has received a sufficient number of petitions to use all of the available 20,000 H-1B numbers that are reserved for individuals with advanced degrees from U.S. colleges or universities, which means that the "advanced degree" H-1B cap for FY2010 has been reached. H-1Bs for individuals with advanced degrees from U.S. colleges or universities can still be filed, but those petitions will now count toward the general H-1B cap of 65,000.

Around 6,200 cap-subject H-1B petitions were filed in October 2009. This is a significant number, especially when compared to the only 1,500 filings received by USCIS in September 2009. In total, as of October 25, 2009, approximately 52,800 H-1B petitions that count against the congressionally-mandated 65,000 limit have been received by USCIS. This leaves only around 12,000 H-1B cap numbers for FY2010, without taking into account the 6,800 H-1B cap numbers that are reserved for nationals of Chile and Singapore. If all 6,800 of these "reserved" numbers are removed from the 65,000 cap along with the 52,800 H-1B cap petitions already received, there are only around 5,400 FY2010 H-1B cap numbers remaining.

As a practical matter, USCIS will likely accept well more than 5,400 additional cap cases in FY2010, as the number of cases USCIS will accept anticipates that a certain number of filings will be withdrawn or denied. Additionally, nowhere near the full 6,800 Chile/Singapore numbers have historically been actually used by nationals of Chile or Singapore. Thus, most of those numbers are applied by USCIS to the general 65,000 cap.

While USCIS is still accepting H-1B petitions for FY 2010, the recent jump in filing means that by mid December or so we will have no Visas left. My advice go ahead and file now.

Here is a recent update from our local AILA office. All USCIS Application Support Centers (ASC’s) now operate Monday - Friday from 8 a.m. to 4 p.m. For our district that includes the Chula Vista, San Marcos, and Imperial ASCs.

Previously, the ACS’s accommodated special situations like requests for earlier biometric capture or accommodating people who missed their appointments on Wednesdays and Saturdays. Now, the best time to walk-in because of these kind of issues is Monday through Friday between 2:30 and 3 p.m. This includes Wednesday, as Wednesday is no longer a light schedule day.

On October 20, 2009 the U.S. Senate voted to pass the Department of Homeland Security Appropriations Bill Conference Report that contained a provision to end the widow penalty. The House of Representatives previously voted to pass the bill. The bill became Public Law Number 111-83 upon President Obama’s signature of October 28, 2009.

In the past 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 new provision does not directly address the government’s definition of marriage, but it allows foreigners married to Americans for less than two years to submit their own petition for residency within two years of the spouse’s death, as long as they have not remarried and can prove a good-faith marriage.

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. Because the law was enacted on October 28, 2009, the deadline is October 28, 2011. After this two-year period, a petition must be filed within two years of the citizen’s death.
For those married at least two years at the time of the citizen’s death, the law remains the same: an I-360 must be filed within two years of the citizen’s death.

Furthermore, the deceased must have been a U.S. citizen at the time of death, and the Widow or Widower must not have been legally separated from their citizen spouse at the time of death.

In addition, the Widow or Widower must not have remarried in order to file this self-petition.
The petition must be filed with:
1. A copy of the marriage certificate to the U.S. citizen and proof of termination of any prior marriages of either person;
2. Copies of evidence that the deceased spouse was a U.S. citizen, such as a birth certificate if born in the United States, Naturalization Certificate or Certificate of Citizenship issued by USCIS; Form FS-240, Report of Birth Abroad of a Citizen of the United States; or a U.S. passport that was valid at the time of the citizen’s death; and
3. A copy of the death certificate of the deceased U.S. citizen spouse.

For further information please contact our office.

The HIV ban removal will be remembered as a historic decision, through this final rule, the Centers for Disease Control and Prevention (CDC), within the U.S. Department of Health and Human Services (HHS), amended its regulations to remove ``Human Immunodeficiency Virus (HIV) infection'' from the definition of communicable disease of public health significance and remove references to ``HIV'' from the scope of examinations for aliens. Prior to this final rule, aliens with HIV infection were considered to have a communicable disease of public health significance and were thus inadmissible to the United States per the Immigration and Nationality Act (INA).

As a result of this final rule, aliens will no longer be inadmissible into the United States based solely on the ground they are infected with HIV, and they will not be required to undergo HIV testing as part of the required medical examination for U.S. immigration.

Immigrants for Whom the Regulation Applies

The provisions in 42 CFR part 34 apply to the medical examination of :

(1) aliens outside the United States who are applying for a visa at an embassy or consulate of the United States;

(2) aliens arriving in the United States; and

(3) aliens required by the U.S. Department of Homeland Security (DHS) to have a medical examination in connection with determination of their admissibility into the United States; and

(4) aliens who apply for adjustment of their immigration status to that of lawful permanent resident.

An Immigrant seeking permanent residence, whether through an immigrant visa or asylee status, or through an adjustment of status must undergo a medical examination to determine whether the alien is inadmissible on medical grounds. Aliens seeking admission as refugees also undergo medical examinations overseas. Overseas examinations are conducted by panel physicians designated by the Department of State.

Applicants for adjustment of status to lawful permanent resident are required to have a medical examination conducted by a civil surgeon designated by U.S. Citizenship and Immigration Services within DHS. Prior to this rule HIV infected applicants were barred from Adjusting Status unless a hardship waiver was filed. Only applicants with a qualifying US citizen relative could file for this waiver. Many same sex applicants without a qualifying relative, could not adjust status under the previous legislation. This change will bring a historic relief to thousands of applicants infected with HIV, that were not eligible for any waivers to adjust.

If you are an HIV intending immigrant, please consult an experienced immigration attorney about your options.

Continue reading "The HIV Travel Ban is now lifted - What Classes of Immigrants this Regulation Applies to?" »

It is true to say that the current economic situation in our country is directly related to the problems we have in our Immigration system. In addition to the weak economy, companies have stopped filing for H1B visas in the face of anti-immigrant sentiment in Washington and rising costs associated with hiring foreign-born workers.

Mirian Jordan from the Wall Street Journal published an excellent article on this matter. She states:

The sagging economy, which has pushed U.S. unemployment to 9.8%, has crimped expansion in the technology sector, traditionally the biggest user of the H-1B program. Usually, all visas are allocated within a month or two from April, when applications for the following fiscal year are first accepted. But this year, six months later, "you can still walk in with an application and you're still highly likely to get approved," said R. Srikrishna, senior vice president for business operations in North America for HCL Technologies Ltd., an Indian outsourcing company.

The cost and bureaucracy of applying for H-1B visas is another deterrent. Lawyers' fees, filing fees and other expenses can easily reach $5,000 per applicant. Immigration lawyers say some would-be employers are put off by a crackdown on fraud. U.S. Citizenship and Immigration Services, which administers the H-1B program, has been dispatching inspectors on surprise company visits to verify that H-1B employees are performing the jobs on the terms specified. The fraud-detection unit in coming months is expected to inspect up to 20,000 companies with H-1Bs and other temporary worker visas.

I also wanted to add that the extra scrutiny that the USCIS has applied to H1B visa adjudication this year, the large number of request for evidence that were issued to pending cases, dettered employers even more from filing this year. Finally, the implementation of the new LCA system with its glitches sealed the deal on high volume of H1B visas in the near future. I hope that this trend will change and we will feel some positive attitude coming from the government towards this much needed visa.

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