Visa Lawyer Blog

On December 25, 2009, an individual on board NW Airlines Flight 253 set off a device and was subdued by passengers and crew. As a result of this incident, TSA has worked with airline and law enforcement authorities, as well as federal, state, local, and international partners to put additional security measures in place to ensure aviation security.

Read more from the TSA...

The government must continually balance the need for security with the realization that the United States remains a favored destination for immigrants from around the world.

"What defensive action cannot and must not mean is that we shut down, board up, wall in or become a fortress," Former Homeland Security Secretary said. "Because what we are trying to protect and at the same time preserve is not only lives but our way of life. America is a dynamic country. Our strength as Americans is the sum of every generation that has ever been born in or emigrated to this great land."

The immigration debate is expected to intensify later in 2010. Lawmakers will consider several proposals aimed at cracking down on illegal immigration. At the same time, House and Senate members may also take up a recent Bill proposal for a guest-worker program and other important changes that would make it easier for some illegal immigrants to remain in the United States. We will keep you posted of course.

Talk about the perfect student dream, getting a diploma - but never attending classes. And if you get a free visa with this, even better. A Southern California pastor has been accused by immigration authorities of helping foreigners fraudulently obtain student visas and handing out phony diplomas at a fake graduation ceremony on a campus where they never attended class.

Samuel Chai Cho Oh, 65, surrendered to authorities Tuesday and faces a charge of conspiracy to commit visa fraud for allegedly charging foreigners cash to help get them student visas on the premise they would attend the Christian university he owns in Fullerton.

But more than 100 students from countries including South Korea, Thailand and Japan never took classes at California Union University, which served as a shell for them to stay in the country legally, Immigration and Customs Enforcement officials said.

"He found a way to circumvent the system," said Joseph Macias, assistant special agent in charge for ICE's office of investigations in Orange County. "His greed and his financial gain won (out) over the visa program."

Immigration authorities say Oh charged students between $600 and $10,000 over the last decade to file paperwork on their behalf to certify they had been accepted to the university and would be attending class in order to obtain valid student visas.

Authorities said Oh raked in between $40,000 and $50,000 a month from the alleged scheme and acknowledged that 75 percent of the 300 students enrolled at the university did not regularly attend class.

Macias said authorities seized two bank accounts belonging to Oh that combined held more than $400,000.

Read more here...

We would like to wish all our readers and clients Happy Holidays, spend precious time with family and friends. It has been a great year for us and we thank all our readers for the support during this year.

May this New Year bring newly found prosperity, love, happiness and delight in your life.

This bright New Year is given to us to live each day with zest, to daily grow and try to be our highest and our best! May the dawning of this New Year, fill everyone's heart with new hopes, open up new horizons and bring promises of brighter tomorrows. As the new year blossoms, may the journey of life be fragrant with new opportunities, days be bright with new hopes and heart be happy with love! Happy New Year! 2010!

According to CNN, America could be facing a nursing shortage that will worsen exponentially as the population grows older. The problem: Baby boomers are getting older and will require more care than ever, taxing an already strained nursing system.

Barry Pactor, international director of global health care for consulting company HCL International, agrees that more nurses should be trained within the U.S. system. But as a short term solution for this "huge shortage," he said the U.S. government should loosen immigration restrictions on foreign health care workers.

"I don't see this as foreign nurses taking American jobs, because these are vacancies that already exist and cannot be [filled] by nurses currently in training," he said. "We'd be filling in the gaps until the training can catch up with the demand."

Read More...

As we predicted last night the Cap was met today. As of December 21, 2009, USCIS has received sufficient petitions to reach the statutory cap for FY2010. USCIS has also received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY2010 that are received after December 21, 2009 USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on December 21, 2009.

Applicants will soon be getting ready for April 1, 2010 filings. Our advice is to start early, with DOL delays we have to start planning differently. More updates to come.

So what do you think, will the cap be reached today, or maybe tomorrow, surely by Friday. With the snow storms hitting the east coast, delivery of H1B packages and processing at the Vermont service center have been delayed. As of December 15, 2009, approximately 64,200 H-1B cap-subject petitions had been filed. We are still waiting for the most current numbers, but it seems that the gate on new filings is soon to be shut. I will keep you posted as we earn of new info.

Stories like this one explain the increase in Mexican nationals fleeing to the US. As drug gangs clashed across Tijuana this week, a San Diego mother of two lost her life in the crossfire. Yajaira Orozco was shot in the head when assailants sprayed gunfire inside a seafood restaurant where she was sharing a meal with her husband.

ajaira Orozco, also 23, was one of about 50 people who have died in the past week in Tijuana, many of them as a result of a brutal battle for control between two rival drug-trafficking groups.

But while Yajaira Orozco was a U.S. citizen, Raul Orozco, her spouse, was brought to the United States from Mexico at age 5 and was not a legal resident. In order to apply for legal residency, he first had to move back to Mexico. There are may families in similar situations. Where one of the family members entered the US illegally, and upon marriage to US Citizen are trying to fix their papers. Under current law, the illegal immigrant must leave the US in order to complete the legalization process. Read a client's story here. While the drug war in Mexico continues, such families are risking their lives every day.

Read more....

DOS issued a list of questions and answers on the removal of HIV infection from the CDC list of communicable diseases of public health significance. Issues addressed include the background of the rule change, visa application process, HIV-positive applicants who have previously been refused a visa, and information dissemination about the rule.

One of the main questions for the public is, before the effective date of January 4, 2010, what changes will take place for non-U.S. itizens with HIV infection who wish to enter the United States?

Until the final rule goes into effect on January 4, 2010, non-U.S. citizens who have HIV cannot be admitted to the United States without waivers granted by the Department of Homeland Security (DHS). Certain nonimmigrants may qualify for issuance of visas from consular officers without first applying to DHS for waivers under a streamlined process established by DHS in its HIV Waiver Final Rule.

Effective January 4, 2010, visa applicants required to receive medical examinations will not be tested for HIV, and HIV-positive visa applicants will not be found ineligible for visas under Section 212(a)(1)(A)(i) of the INA and will not need waivers from the Department of Homeland Security (DHS) prior to being issued visas, if otherwise qualified.

Read the Memo here Download file

We like to share that the H1B cap is extremely close to being reached. The count as of December 15, 2009 is 64,200. This is 1300 cases more than the count from December 11th. This count is very close to the total cap of 65,000 which is actually somewhat reduced by numbers allocated under trade agreements. We continue to watch this very closely, and will provide updates until the FY 2010 cap is reached.

We suggest to act quickly to avoid last minute embarrassment as H-1B Cap may soon be cease to exist.

USCIS has just released the latest H-1B visa information on December 15, 2009. As of December 11, 2009, USCIS reported that 62,900 cap-subject petitions had been filed.

From December 10 to December 11, 400 more applications were filed. As mentioned in all other previous H-1B updates, spots for advanced degree holders have been satisfactorily met; all other advanced degree holders approved will be counted towards the general cap. Remember, those who receive a job offer from a governmental or non-profit organization will not count towards the general H-1B cap.

Because 6,800 out of the 65,000 regular spots are kept for citizens of Singapore and Chile, this only leaves 58,200 spots for other nationals. Bear in mind that USCIS takes into account the fact that some of these applications may be revoked, withdrawn by applicants, or denied. As such, USCIS will continue to accept both cap-subject petitions and advanced degree petitions until they specify otherwise.

We assume that the rate at which H-1B applications are being filed may result in non-availability of H-1B cap very soon. Hence, it is suggested to expedite the H-1B filing process quickly.

This is a first posting is a series of discussions about the above referenced Bill. We upload a Section-by-section summary of the Comprehensive Immigration Reform for America's Security and Prosperity (CIR ASAP) Act of 2009, introduced by Rep. Gutierrez (D-IL) on 12/15/09. This document was produced by Rep. Gutierrez’s office. Click here for the Summary Download file

The actual Bill is very detailed, ranging from enforcement to Immigration reform changes. For example, one reform discussed is to recognize family unity principles and facilitate backlog reduction, reclassifies spouses and children of lawful permanent residents as immediate relatives. Today such families must wait years to be united.

The government is given greater discretionary authority to waive unlawful presence bars to reunite families upon a demonstration of hardship for applicant’s U.S. citizen or lawful permanent resident family members. Today such applicants must leave the US, apply for a waiver and risk getting denied.

As we analyze the Bill, more updates to come.

The Bureau of Consular Affairs with the Department of State has issued a proposed rule to increase certain immigration fees on Dec. 11, 2009. According to the notice, the fee for processing applications for most non-immigrant visas that do not require petitions and adult Border Crossing Cards will be increasing from $131 to $140. Additionally, some petition-based non-immigrant visas, along with the treaty trader and investor visa, will also see an increase in application fees. The rule will also increase the fee for Mexican citizen minors who apply for entry from Mexico and whose parent or guardian either has a Border Crossing Card or is in the process of applying for a card, from $13 to $14.

These fee increases are being implemented, the Department of State says, in response to results from a recent independent cost of service study that found that the U.S. Government is not fully covering the expenses of processing these visa types with the current level of fees. Written comments regarding this proposed rule may be submitted up to 60 days from the publication of this notice in the Federal Register. We keep you posted on this.

USCIS has just released the latest H-1B visa information on December 11, 2009. As of December 10, 2009, USCIS reported that 62,500 cap-subject petitions had been filed.

On December 8, 2009, USCIS reported that 61,500 cap-subject petitions had been filed. From December 8 to December 10, 1,000 more applications have been filed. As mentioned in previous H-1B updates, spots for advanced degree holders have been satisfactorily met; all other advanced degree holders approved will be counted towards the general cap. Remember, those who receive a job offer from a governmental or non-profit organization will not count towards the general H-1B cap.

Because 6,800 out of the 65,000 regular spots are kept for citizens of Singapore and Chile, this only leaves 58,200 spots for other nationals. Bear in mind that USCIS takes into account the fact that some of these applications may be revoked, withdrawn by applicants, or denied. As such, USCIS will continue to accept both cap-subject petitions and advanced degree petitions until they specify otherwise.

H-1B availability will likely cease very soon. If you are interested in filing an H-1B petition, please get in touch with us quickly.

Computer World just released a comprehensive list of the employers who received approval from the U.S. Citizenship and Immigration Services for new H-1B visas in federal fiscal year 2009. Indian outsourcing companies still dominate the list. If you compare to last years numbers, we can see a sharp decline in sponsoring workers.

Click here for the complete list

After health care, Immigration is going to be the next big thing. On Tuesday, December 15, Congressman Luis V. Gutierrez (D-IL) will introduce new legislation, the Comprehensive Immigration Reform for America's Security and Prosperity Act of 2009 (CIR ASAP), to the U.S. House of Representatives. Gutierrez will be joined by members of many different faiths and backgrounds, including the Congressional Hispanic Caucus, Black Caucus, Asian Pacific American Caucus and Progressive Caucus.

"We have waited patiently for a workable solution to our immigration crisis to be taken up by this Congress and our President," said Rep. Gutierrez. "The time for waiting is over. This bill will be presented before Congress recesses for the holidays so that there is no excuse for inaction in the New Year. It is the product of months of collaboration with civil rights advocates, labor organizations, and members of Congress. It is an answer to too many years of pain —mothers separated from their children, workers exploited and undermined security at the border— all caused at the hands of a broken immigration system. This bill says 'enough,' and presents a solution to our broken system that we as a nation of immigrants can be proud of."

We will follow the Bill's progress and update our readers.

The Department of State has just released the new visa bulletin for January 2010 on December 10, 2009.

Last month, the EB-2 category for both mainland Chinese and Indian nationals remained unchanged from the November visa bulletin. In addition, the EB-1 category stayed current for worldwide applicants. Cut-off dates in the EB-3 category moved forward nine days from April 22, 2001 to May 1, 2001 for Indian nationals and did not change for mainland Chinese nationals.

Based on the January 2010 visa bulletin, USCIS reports that the EB-1 category is still current in all countries. In the EB-2 category, cutoff dates for mainland Chinese nationals progressed one month from April 1, 2005 to May 1, 2005, but remained the same for Indian nationals. In the EB-3 category, the cutoff dates for mainland Chinese nationals progressed 2 months from June 1, 2002 to August 1, 2002 and progressed 53 days for Indian nationals from May 1, 2001 to June 22, 2001.

The EB-2 and EB-3 categories are usually backlogged or unavailable year-round. We are fairly certain that the EB-3 category will become unavailable once again this year. As the EB-3 category is for unskilled workers, skilled workers with at least 2 years of experience, and professionals with a bachelor’s degree, the pool of applicants is much larger than for the EB-1 and EB-2 categories, which are usually reserved for highly specialized workers or workers with graduate level degrees. Perhaps with the recent implementation of new protocol at USCIS, visa backlogging will not be as much of a problem this year.

We will keep you updated on further visa bulletins in advance.

USCIS has just released the latest H-1B visa information on December 9, 2009. As of December 8, 2009, USCIS reported that 61,500 cap-subject petitions had been filed.

On December 4, 2009, USCIS reported that 61,100 cap-subject petitions had been filed. From December 4 to December 8, 400 more applications have been filed. As mentioned in previous H-1B updates, spots for advanced degree holders have been satisfactorily met; all other advanced degree holders approved will be counted towards the general cap. Remember, those who receive a job offer from a governmental or non-profit organization will not count towards the general H-1B cap.

Because 6,800 out of the 65,000 regular spots are kept for citizens of Singapore and Chile, this only leaves 58,200 spots for other nationals. Bear in mind that USCIS takes into account the fact that some of these applications may be revoked, withdrawn by applicants, or denied. As such, USCIS will continue to accept both cap-subject petitions and advanced degree petitions until they specify otherwise.

H-1B availability will likely cease very soon. If you are interested in filing an H-1B petition, it is imperative that you act quickly.

Effective December 21, 2009, the Nursing Relief for Disadvantaged Areas Reauthorization Act will sunset. The Nursing Relief for Disadvantage Areas Act (NRDAA) established the H-1C Program in 1999 to reduce the shortage of qualified nurses in health professional shortage areas. The Program was reauthorized until December 20, 2009 under the Nursing Relief for Disadvantage Areas Reauthorization Act of 2005 which became effective in December 20, 2006.

Under the H-1C Program, eligible hospitals filed attestations with the Department of Labor’s, Employment and Training Administration (ETA) to support nonimmigrant worker petitions filed with the Department of Homeland Security’s U.S. Citizenship and Immigration Services. Absent further legislative action, Congress has not elected to reinstate the H-1C Program and will no longer accept H-1C Attestations on Form ETA 9081 for foreign nurse positions effective December 21, 2009. The hospitals utilizing the H-1C Program may continue to file applications with the Department of Labor through its other programs including the H-1B Program and the PERM Program, as appropriate.

Please note that nurses still have other visa options, like the H1B visa as well as Permanent Residency.

Update from our local AILA office. This morning Christopher D. Matson was sworn as the new port director for the San Ysidro and Otay Mesa Ports of Entry. Mr. Matson most recently served for the past two years as the Port Director at Miami International Airport Mr. Matson succeeds Interim Port Director David Murphy, who filled the position for the past six weeks while a replacement was found for former Port Director Oscar Preciado.

Mr. Preciado recently assumed the position of liaison to the U.S. Government Services Administration during the port's upcoming $577 million reconstruction project.ÿ For additional information, please see CBP's press release: Here

Great story from the ABA Journal about this not so covered visa option for victims of crime.

This is the story of Sud.

Sud was trapped—literally and figuratively. Hers was an arranged marriage. She had immigrated to the United States after her marriage in 2005 on an H4 visa. The visa made her ineligible to work, unable to get a Social Securi­ty number and completely dependent on her abusive husband.

Sud thought she had little choice but to endure the domestic violence if she wanted to stay in the United States. But she learned that she was eligible for a little-known visa available to otherwise undocumented immigrant crime victims called a U visa. The visa blocks the deportation of people like Sud if they cooperate with law enforcement.

But the wheels of justice turn very slowly in the United States, Sud learned. Although the law creating the visa was passed in 2000, the implementing regulations were not published until 2007, and applications were piling up, further delaying the process. According to the U.S. Citizenship and Immigra­tion Services, some 14,000 U visa applications were pending before it as of last December. A spokeswoman for the agency attributed the delay to the complicated nature of the process. “A lot of different issues had to be resolved,” she said.

Read more..

With predictions that the H1B cap will be reached any day now, employers and employees are rushing to beat the cap. United States Citizenship and Immigration Services (USCIS) announced that, as of December 4th, it had received approximately 61,100 H-1B petitions counting toward the congressionally-mandated 65,000 limit. Additionally, USCIS has approved sufficient H-1B petitions for foreign nationals with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap. Any H-1B petition filed on behalf of a foreign national with an advanced degree will now count toward the general H-1B cap of 65,000.

So why are they still accepting cases? Well not all filed H1B petitions will be approved so the final count will not be known until USCIS will clear all denials. We will keep you posted.

Excellent article from Businessweek, instead of encouraging the first brain drain in U.S. history, the country should create a program to welcome funded startup entrepreneurs.

Vivek Wadhwa argues that

It's time to bring the immigration question squarely into the debate over jobs. A change to immigration policy could help create jobs and rev up economic growth. It's a change that wouldn't be hard to bring about. I'm talking about the establishment of a Startup Founders Visa program.

The program would make it easier for those with great ideas and the desire to start a company to live and work in the U.S. The idea is simple, yet powerful. By letting in company founders, the U.S. would bring in risk-takers who want to create jobs and potentially build the next Google (GOOG), Cisco Systems (CSCO), or Microsoft (MSFT). This is an excellent idea, as such founders will create jobs for Americans. Currently, only the E2 non immigrant visa and EB5 Immigrant visa allow self starters to create compnaies by investing funds. While the E2 and EB5 are good options, they are not addressing the need for a specific visa for brainy individuals that have great ideas, but are lacking funds. We still need them to fuel the next big discovery that will lead to that start up creation.

Read the BW article here...

So we thought the new ntroduction of ICERT was bad, listen to this upcoming change. In accordance with its PERM labor certification regulations, the Department of Labor (DOL) has provided notice that the Office of Foreign Labor Certification (OFLC) National Prevailing Wage and Helpdesk Center (NPWHC) will receive and process prevailing wage determination (PWD) requests for use in the H-1B (specialty occupations), H-1B1 (Chile/Singapore nationals), H-1C (registered nurses), H-2B (temporary and seasonal workers), E-3 (Australian nationals), and permanent labor certification programs starting January 1, 2010.

Under the new centralized process, PWD requests will be filed using Form ETA-9141 and submitted by mail or courier to the NPWHC in Washington, D.C. State Workforce Agencies will continue to process any PWD requests (as well as subsequent prevailing wage challenges) received in their offices through December 31, 2009.

Now for those of you familiar with the H2B process, form 9141 is already being used to obtain the PWD. My experience with H2B processing since the new change is nt positive. Sometimes we have to wait for 30 days to get the PWD. Imagine same story with future H1B cases, nightmare!!! The federal prevailing wage process is likely to result in delayed issuance of wage determinations. Most State Workforce Agencies (SWAs) currently accept and issue PWD requests electronically within 7 business days.

While OFLC is working on an electronic filing system for PWD requests, it remains uncertain as to when it will be implemented. In the meantime, the mailing procedure and overall implementation of this new process will lead to delays in the processing of wage determinations and consequently of PERM applications, which require that employers obtain a PWD prior to filing. This additional processing time should be factored into the preparation time for PERM applications, particularly for individuals nearing their last years in H-1B status.

So best advice, if you are thinking about PERM, file the PWD forms before the rules will take effect. We will keep you posted.

This update is provided by AILA and we are happy to share. At the New York CLE on December 1, 2009, USCIS representatives discussed H-1B usage. Without revealing the exact number of H-1B petitions have been received, nor providing an estimate of the number of H-1B visas remaining, USCIS indicated that there has been an "uptick" in receipts in the last two weeks, including approximately 2000 received in the days before Thanksgiving.

USCIS also confirmed that demand for visas under the Chile and Singapore provisions has been very small this year. USCIS has, for several years, estimated the demand for Chile/Singapore visas, and has set aside that estimated number. The remaining number of visas that are set aside for Chile and Singapore (from maximums of 1,400 for nationals of Chile and 5,400 for nationals of Singapore) are returned to the "general" H-1B pool, and USCIS accepts petitions up to a number that includes an estimate of the number of Chile and Singapore visas that will go unused.

Thus, though the Chile/Singapore set aside reduces initially the H-1B cap from 65,000 to 58,200, in reality, some number of thousand unused Chile/Singapore visas are added back in, bringing the number of H-1B visas generally available well above 58,200. That is why, according to the latest H-1B cap count, the number, 58,900, exceeds 58,200. Nevertheless, because of the apparent increase in demand, applicants should not delay preparing and filing H-1B petitions and should be aware that the cap could be reached at any moment if the increase in demand continues. We will keep you posted.

Vice President Joe Biden said that Obama administration's new surge-and-exit troop strategy in Afghanistan is aimed more at wringing reforms from President Hamid Karzai than mollifying a war-weary American public. Appearing on network news shows a day after President Barack Obama announced his plan to send in 30,000 more U.S. forces, Biden said the principal aim of the new policy is to protect the United States from further terrorist attack while also keeping the Taliban from overrunning the country.

Biden also added when asked about doubts he was said to have had about escalating the war. Biden said "I've never publicly said what my position is because I reserve that for the president," he replied. "But I was skeptical of taking our eye off the ball. The ball is al-Qaida. That's the reason we're there. They are in Pakistan, the Taliban leadership is in Pakistan. And I wanted to make sure the focus stayed on those two elements of our concern and didn't sort of morph into a nation-building exercise that would tie us down for 10 years and in fact not be of any assistance in meeting what is the real threat to the U.S. – that is al-Qaida and the most extreme forces that are in Pakistan and wanting to topple Pakistan."

Democrats complained about Obama's escalation of the 8-year-old war, however. And Republicans are unhappy with his promise to withdraw troops in 18 months. But Congress appears nevertheless willing to approve the buildup's $30 billion price tag. Many Democrats said they weren't convinced that sending more troops would hasten an end to the war. They also question whether the money used for troop deployments will drain resources from other domestic priorities, like health care and job creation.

Obama pledged Tuesday night to an audience of Army cadets at the U.S. Military Academy that the shift from surge to exit strategy would depend on the military situation in Afghanistan. "We will execute this transition responsibly, taking into account conditions on the ground," Obama said, declaring that the nation's security was at stake and that the additional troops were needed to "bring this war to a successful conclusion."

Sen. Carl Levin, chairman of the Senate Armed Services Committee, which planned to grill top administration officials Wednesday on Obama's decision, said that he expected the administration to submit a new war spending request and that Democrats would back it.
The planned infusion of 30,000 U.S. troops would raise the total American military presence in Afghanistan to about 100,000.

However, we hope that Obama administration will also look at the root causes of expansion of Terrorist activities in the related areas. Let’s hope that this buildup of additional Troop with huge price tag will not impact our other important domestic requirements.

The following immigration-related bills were introduced into the House of Representatives and the Senate in November:
Military Families Act (S. 2757)
Introduced by Sen. Menendez (D-NJ) on 11/09/09
Summary: A bill to authorize the adjustment of status for immediate family members of persons who served honorably in the Armed Forces of the United States during the Afghanistan and Iraq conflicts and for other purposes.

Foreign Students Social Security Numbers Reform Act of 2009 (H.R. 4145)
Introduced by Rep. Johnson (R-TX) on 11/19/2009
Summary: To amend title II of the Social Security Act to prohibit the issuance of social security account numbers to non immigrant aliens who are admitted to the United States as students in order to pursue a full course of study or their spouses or minor children unless such aliens are applicants for or recipients of benefits under a program financed by the Federal Government.

Employ America Act (S. 2804)
Introduced by Sen. Sanders (I-VT) on 11/19/2009
Summary: A bill to require employers to certify that they have not and will not lay off a large number of employees before they are allowed to employ foreign workers in the United States, and for other purposes.

So this may be the last week of H1B visa filings, as of November 27, 2009, approximately 58,900 H-1B cap-subject petitions had been filed. USCIS has approved sufficient H-1B petitions for aliens with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap. Any H-1B petitions filed on behalf of an alien with an advanced degree will now count toward the general H-1B 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.