Visa Lawyer Blog

In connection with the recent story about ten Americans charged with trafficking in Haiti but defended their plan to bus 33 children into the Dominican Republic. We remind our readers that moving Children between countries, and exploring adoption options must be still regulated by International law. Any attempts to move children unofficially will be deemed suspicious and subject to greater scrutiny. According to the group, the children did not have any passports. Government approval is needed for any Haitian children to leave the country.

The Department of State is actively involved in addressing the potential for trafficking in persons, particularly children, in post-earthquake Haiti. The disaster in Haiti has displaced many people and separated numerous children from their families, posing great risk and higher vulnerability to human trafficking. The Department has acted swiftly to mobilize coordinated efforts both on the ground in Haiti and in Washington to prevent and combat trafficking in persons as part of the USG’s emergency response and long-term planning for recovery.

Currently, the Department of State and its partners are intensifying efforts on five different fronts, including: support for protection of vulnerable children (led by UNICEF with the government of Haiti, the Red Cross, and other international and non- governmental organizations), such as registration of unaccompanied and separated children, tracing, and family reunification; helping remobilize the Haitian Police’s Child Protection Brigades; preventing the trafficking of displaced Haitians; educating Haitians about the risks of giving away children in times of crisis; and, rebuilding the capacity of Haitian NGOs already working to protect child domestic servants, known in Haiti as restaveks. We will keep monitoring this situation and keep you posted.

Recently USCIS issued a fact sheet on humanitarian parole that includes questions and answers and guidelines on filing.

U.S. Citizenship and Immigration Services (USCIS) provides a number of humanitarian programs and types of protection for individuals in need of shelter and/or aid from disasters, oppression, emergency medical issues and other urgent conditions. Humanitarian parole is one such program.

Humanitarian parole enables an otherwise inadmissible individual to enter the U.S. temporarily
due to a compelling emergency. USCIS may grant humanitarian parole based on urgent,
compelling reasons, or to promote a significant public benefit. This parole does not confer any
permanent immigration status, but does enable a recipient to apply for and receive employment
authorization.

Humanitarian parole is typically granted for the duration of the emergency or compelling situation at issue. Anyone granted humanitarian parole must depart the U.S. prior to its expiration date or risk negative immigration consequences. It is possible, however, to request while in the U.S., a reparoleof a previously accorded humanitarian parole period.

Anyone can file an application for humanitarian parole, including the prospective parolee, a
sponsoring relative, an attorney, or any other interested individual or organization. Requests for
humanitarian parole may only be accepted for individuals who are outside the U.S.; unless such
request pertains to a re-parole of a prior humanitarian parole granted at USCIS headquarters in
Washington, D.C.

Read the complete FAQ here

In his first State of the Union address, President Obama urged Congress to work together to confront the nation's problems. He touched on many domestic issues, but Immigration was not covered much this evening.

He said:

" And we should continue the work of fixing our broken immigration system, to secure our borders, and enforce our laws, and ensure that everyone who plays by the rules can contribute to our economy and enrich our nations. In the end, it's our ideals, our values that built America, values that allowed us to forge a nation made up of immigrants from every corner of the globe, values that drive our citizens still."

Let's hope the President is committed to fix the Broken system, sooner than later.

The Department of Homeland Security now offer Haitian nationals, who were already here when the earthquake struck, Temporary Protected Status (TPS) for 18 months. That status, which would allow them to legally work, will not cover Haitians who leave their country following the devastating quake that resulted in as many as 150,000 deaths. Many Haitians flee the country, thinking they will be accepted in the US at any time and given a right to stay and work. TPS is not a right to enter, rather a relief for those illegals that are already here.

What is TPS?

Congress established a provision for short-term protection known as Temporary Protected Status (TPS). The provision sets forth criteria for the extension of temporary protection to people from certain countries experiencing political or environmental upheaval. For decades, during periods of civil strife, economic upheaval, or natural disaster, the Attorney General--in consultation with other agencies--exercised his or her discretion not to force nationals of countries experiencing these calamities to leave the United States. Individuals who were in the country illegally could present themselves and receive work authorization; those in proceedings had their cases put on hold; while those who already had orders of removal were not returned until the situation had stabilized. The relief was extra-statutory and was called "extended voluntary departure."

It was a pure form of prosecutorial discretion exercised on the part of the authorities.
In later years, the exercise of this prosecutorial discretion was given the designation of "deferred enforced departure." TPS is the latest version of the statutory form of relief. Recent grants of TPS status have been to Liberians during specified periods of the civil war in that country; to nationals of El Salvador following a severe earthquake in 2001; and to nationals of Somalia as a result of its civil war.

There are three bases for TPS under the statute:

(1) existence of an ongoing armed conflict within a particular country that poses a threat to the personal safety of the general population;

(2) a flood, drought, epidemic, earthquake, or other natural disaster that causes a substantial temporary disruption in the living conditions in the country;

3) an extraordinary and temporary condition in a country that prevents its nationals from being able to return safely. In order to qualify for TPS, a person must be physically present in the United States on the date of the designation and meet the requirements set forth in announcements issued by DHS.

One logic behind this move is that Haitian immigrants already in the U.S. will not only be able to make money to support themselves, but also to send money/goods to their suffering families back in Haiti. And they sure do need the help.

On Jan. 12, 2010, Haiti experienced an earthquake of devastating proportions. This set of questions and answers provides information for United States citizens in the process of adopting a child from Haiti.

Questions and Answers

Q. I am in the process of adopting a child from Haiti, what can I do to bring the child to the United States?
A. Department of Homeland Security (DHS) Secretary Janet Napolitano has authorized the use of humanitarian parole for the following categories of orphans in Haiti:
Category 1 Cases

Description: Children being adopted by U.S. citizens prior to Jan. 12, 2010, who have been legally confirmed as orphans available for inter-country adoption by the Government of Haiti (GOH) through an adoption decree or custody grant to suitable U.S. citizen adoptive parents.
Required Criteria:

* Evidence of availability for adoption MUST include at least one of the following:
o Full and final Haitian adoption decree; or
o GOH custody grant to prospective adoptive parents for emigration and adoption; or
o Secondary evidence in place of the above.
* Evidence of suitability MUST include one of the following:
o Approved Form I-600A, Application for Advance Processing of an Orphan Petition; or
o Current FBI fingerprints and security background check; or
o Physical custody in Haiti plus a security background check.

Please note, some of the children in this category will receive immigrant visas and others will receive humanitarian parole, depending on the completeness of the cases. Those who enter with immigrant visas will enter as aliens lawfully admitted for permanent residence. Those who enter with humanitarian parole will need to have their immigration status finalized after arrival through an application for adjustment of status.

Continue reading "San Diego Immigration Adoptions Lawyer - Information for U.S. Citizens in the process of adopting a child from Haiti" »

ComputerWorld reports about a New Jersey judge that has ordered the shutdown of three H-1B opposition Web sites.

Middlesex County Superior Court Judge James Hurley ordered firms that register domains and provide hosting services -- GoDaddy Inc., Network Solutions, Comcast Cable Communications Inc. and DiscountASP.Net, to disable the three sites, ITgrunt.com, Endh1b.com, and Guestworkerfraud.com. Facebook Inc. was also ordered to disable ITgrunt's Facebook page.

The order was made in response to a libel lawsuit filed by IT services and consulting firm Apex Technology Group Inc., based in Edison, N.J. against the three Web sites opposing the H-1B visa program. Such attacks on H1B supporters increased last year as the economic situation was gloomy, and prospects for employment were not looking good. Yet, we all know that the H1B program is not the cause of all evil and in fact is a boosting factor in creation of new jobs and opportunities for American workers. Lets hope that the antis will take it easy in 2010, and focus on the real issues at stake.

As security at International airports tightens, we remind our readers about ESTA. On the one-year anniversary of implementing the Electronic System for Travel Authorization, the Department of Homeland Security’s U.S. Customs and Border Protection reminds U.S.-bound travelers from Visa Waiver Program countries of the ESTA requirement. Beginning January 20, CBP will initiate a 60-day transition to enforced ESTA compliance for air carriers; VWP travelers without an
approved ESTA may not be allowed to board a U.S.-bound plane.

ESTA is an electronic travel authorization that all citizens of VWP countries must obtain prior to boarding a carrier to travel by air or sea to the United States under the VWP. ESTA has been mandatory since Jan. 12, 2009 for all nationals of VWP countries traveling to the U.S under the VWP.

More from the CBP here

Some good news for visa holders that are about to loose their visa sponsored jobs or already lost the visa job. In a decision issued today by the Board of Immigration Appeals (BIA) in Matter of Neto, which empowers immigration judges who are considering deportation of individuals with approved work-related visa petitions and pending permanent residence applications. The issue at stake is whether an immigration judge has the authority to decide whether the approved visa petition - issued for one job - remains valid when the individual changes jobs. Without a valid visa petition, the individual will not be eligible for permanent residence.

In 2000, Congress passed the American Competitiveness in the Twenty-First Century Act, which allowed applicants for permanent residence based on approved visa petitions the flexibility to change jobs. However, in 2005, the BIA decided in Matter of Perez-Vargas that an immigration judge had no authority to decide whether a new job was the same as or similar to the old job, which determines validity of their visa petition. This left these applicants for permanent residence in limbo, stripping them of the ability to benefit from the 2000 law while in removal proceedings because the judges couldn't, and the United States Citizenship and Immigration Service wouldn't, determine the validity of their visa petition.

Today, in Matter of Neto, the BIA overruled its own earlier decision that denied judges this authority and will now allow them to decide whether a new job is acceptable, thus keeping the individual's eligibility for permanent residence intact. In which case, the visa petition remains valid and the immigrant worker can proceed with an application to become a lawful permanent resident - potentially saving them from deportation.

Read the amicus brief filed by the Legal Action Center Download file

Some updates on H2A and H2B visas. DHS issued a notice on the identification of 39 countries whose nationals are eligible to participate in the H–2A and H–2B programs for the coming year. This notice is effective 1/18/10 and shall be without effect at the end of one year after 1/18/10.

Under Department of Homeland Security (DHS) regulations, U.S. Citizenship and Immigration Services (USCIS) may only approve petitions for H-2A and H-2B nonimmigrant status for nationals of countries that the Secretary of Homeland Security, has designated by notice published in the Federal Register.

A new development to report, 11 additional countries are now joining to the list of countries whose nationals are eligible to participate in the H-2A and H-2B programs. In consideration of all of the above, this notice designates for the first time Croatia, Ecuador, Ethiopia, Ireland, Lithuania, The Netherlands, Nicaragua, Norway, Serbia, Slovakia, and Uruguay as countries whose nationals are eligible to participate in the H-2A and H-2B programs.

So now the following countries are eligible to participate in the H-2A and H-2B visa programs:

Argentina, Australia, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Ethiopia, Guatemala, Honduras, Indonesia, Ireland, Israel, Jamaica, Japan, Lithuania, Mexico, Moldova, The Netherlands, Nicaragua, New Zealand, Norway, Peru, Philippines, Poland, Romania, Serbia, Slovakia, South Africa, South Korea, Turkey, Ukraine, United Kingdom, Uruguay.

This notice does not affect the status of aliens who currently hold H-2A or H-2B nonimmigrant status.

The Department of State has released the new visa bulletin for February 2010 on January 8, 2010.
USCIS has reported last month that the EB-1 category was still current for 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.

This month in the EB-2 category, cutoff dates for mainland Chinese nationals moved forward 21 days from May 1, 2005 to May 22, 2005; for Indian nationals, the cutoff date remained unchanged (January 22, 2005). In the EB-3 category, cutoff dates for mainland Chinese nationals moved forward from August 1, 2002 to September 22, 2002. For Indian nationals applying in the EB-3 category, cutoff dates remained unchanged from last month (June 22, 2001). Once again, the EB-1 category is still current.

Visa numbers for the EB-1 category remained current throughout the year 2009. From October 2009 until now, the EB-2 and EB-3 categories have not changed drastically as both are still heavily backlogged. We hope that things will improve in coming months.

The United States Department of Labor (DOL) has announced on January 14, 2010 that a new online prevailing wage system for PERM and H-1B will be launched on January 21, 2010. This is a big change in DOL’s practice regarding the prevailing wage determination system. For the past decade, prevailing wage determination for PERM and H-1B has been performed by State Workforce Agency. Employers who request a determination for a prevailing wage need to file an application with the state wage agent when a position is offered. Under the PERM system, a prevailing wage determination must be received prior to filing the PERM labor certification, the first step in an employment sponsored immigration petition.

DOL began this new centralized system on January 1st, but it has only been available through paper filing for the first couple of weeks. The new online prevailing wage system will be incorporated into the existing iCert system that DOL currently uses to handle Labor Condition Applications for H-1B petitions.

The newly updated iCert system will have several upgraded features. Once logging into iCert, a user will immediately be able to see case activity and the status and decision passed on the last ten applications submitted. Now, users will be able to electronically file and manage Form 9141 in a similar fashion to LCA Form 9035. If a user does not finish an application in one sitting, he/she can save the application and return to it later. Users can also withdraw submitted applications or delete unfinished ones. In addition, a user can reuse information from an old application for a new one. Via the upgraded system, printable forms and other instructions are now directly accessible from the prevailing wage application. On applications that have received decisions, users can also electronically request a Redetermination Review. Finally, the new system will accord much more control over sub-accounts, allowing users to block or grant access to the prevailing wage feature.

iCert system is a centralized federal system which will provide solution to ample prior problems with the prevailing wage determination. In the past, there were variations in practice and standards from state to state. Due to this, the new prevailing wage system will be subject to more universal standards which will make it more reliable, and much more predictable regarding cases for any position around the nation.

We hope that this innovative way will work in an efficient way. We will make you aware about the technical issues of this new system, if any.

The tragedy in Haiti continues, all the Aid in the world will not change the devastation. The US Government through some temporary immigration measures is trying to do its share. Secretary Janet Napolitano, in coordination with the U.S. Department of State, today announced a humanitarian parole policy allowing orphaned children from Haiti to enter the United States temporarily on an individual basis to ensure that they receive the care they need—as part of the U.S. government’s ongoing support of international recovery efforts after last week’s earthquake.

Humanitarian parole into the United States may be granted by the Secretary of Homeland Security to bring otherwise inadmissible individuals into the country on account of urgent humanitarian reasons or other emergencies. The humanitarian parole policy announced by Secretary Napolitano today will be applied on a case-by-case basis to the following children:

Children who have been legally confirmed as orphans eligible for intercountry adoption by the Government of Haiti and are being adopted by U.S. citizens.

Children who have been previously identified by an adoption service provider or facilitator as eligible for intercountry adoption and have been matched to U.S. citizen prospective adoptive parents.

Under applicable laws, unaccompanied minors entering the country without a parent or legal guardian are subject to special procedures regarding their custody and care. DHS coordinates with the Department of Health and Human Services (HHS) Office of Refugee Resettlement on the cases of these unaccompanied minors.

Today’s announcement expands the humanitarian relief that the U.S. Government is extending to Haitians in response to the devastation caused by the earthquake.

Read more here

You might have heard of Twitter, you might even be using it, you might even be an addict (like me).

If you have no idea what Twitter is, it's basically a 'microblogging' service which allows you to push out small bite sized updates (no more than 140 characters). It started out as an SMS based service, but has really moved onto the data platform now with mobile clients improving and data plans becoming more affordable.

Now ICE the USCIS enforcement arm is joining the fun. U.S. Immigration and Customs Enforcement (ICE) is using Twitter and YouTube to engage and educate the public about the agency's enforcement efforts and its mission to keep the homeland safe.With Twitter (www.twitter.com/wwwICEgov (http://www.ice.gov/exec/leaving.asp? url=http://www.twitter.com/wwwICEgov) ) the public is able to follow breaking news from ICE and access useful information from the agency. ICE's YouTube channel (www.youtube.com/wwwICEgov (http://www.ice.gov/exec/leaving.asp?url=http://www.youtube.com/wwwICEgov) ) offers viewers a glimpse into ICE with videos highlighting the agency's national security role, special capabilities, enforcementoperations, public awareness campaigns and ceremonies.

More here...

After a tough December with H1B RFE's and the Cap, on January 8th USCIS issued new requirements for H1B cases. An employer who seeks to sponsor a temporary worker in an H-1B specialty occupation, as of April 2010, will be required to establish, through documentary evidence, a valid employer-employee relationship throughout the petition validity period. The sweeping and controversial new guidance will change the way employers prepare, and USCIS adjudicates, most H-1B petitions.

Employer-Employee Relationship

H-1B regulations currently require that a United States employer establish that it has an employer-employee relationship with the beneficiary of the petition. The memorandum states that the lack of guidance on this issue has made it difficult for USCIS adjudicators to determine whether such a relationship exists, especially when petitions involve independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party worksites.

When determining whether an employer-employee relationship exists, USCIS will evaluate whether the petitioner has the "right to control" the beneficiary's employment, such as when, where and how the beneficiary performs the job. USCIS will consider the following, with no one factor being decisive:

* Does the petitioner supervise and is such supervision off-site or on-site?
* If the supervision is off-site, how does the petitioner maintain such supervision?
* Does the petitioner have the right to control the work of the beneficiary on a day-to-day basis if such control is required?
* Does the petitioner provide the tools or instrumentalities needed for the beneficiary to perform the duties of employment?
* Does the petitioner hire, pay, and have the ability to fire the beneficiary?
* Does the petitioner evaluate the work-product of the beneficiary?
* Does the petitioner claim the beneficiary for tax purposes?
* Does the petitioner provide the beneficiary any type of employee benefits?
* Does the beneficiary use proprietary information of the petitioner in order to perform the duties of employment?
* Does the beneficiary produce an end-product that is directly linked to the petitioner's line of business?
* Does the petitioner have the ability to control the manner and means in which the work product of the beneficiary is accomplished?

According to the memorandum, the petitioner will have met the test if, in the totality of the circumstances, a petitioner is able to present evidence to establish its right to control the beneficiary's employment. The petitioner must also be able to establish that the right to control the beneficiary's work will continue to exist throughout the duration of the beneficiary's employment term with the petitioner.

Continue reading "H1B Visa Lawyer - New Evidentiary Requirements on H-1B Employers" »

Rescue workers struggled to clear rubble and bodies Wednesday from the streets of Haiti's "flattened" capital, where a government official said the death toll from Tuesday's 7.0-magnitude earthquake may exceed 100,000. Thousands of injured people waited for care outside badly damaged hospitals, while an unknown number remained trapped inside collapsed buildings.

Our thoughts are with the families and relatives searching for loved ones, some of our clients are from Haiti and we know how difficult it must be to not know about the faith of loved ones.

In the US, the DHS issued the following statement:

Department of Homeland Security Secretary Janet Napolitano and U.S. Immigration and Customs Enforcement Assistant Secretary John Morton today halted all removals to Haiti for the time being in response to the devastation caused by yesterday’s earthquake. ICE continues to closely monitor the situation.”

We will keep you updated.

Recently the Congressional Reserch Service issued a new report titled: “The Effects on U.S. Farm Workers of an Agricultural Guest Worker Program.” Linda Levine the author writes:

Guest worker programs are meant to assure employers (e.g., fruit, vegetable, and horticultural specialty growers) of an adequate supply of labor when and where it is needed while not adding permanent residents to the U.S. population. They include mechanisms such as the H-2A program’s labor certification process to avoid adversely affecting the wages and working conditions of comparable U.S. workers. If changes to the H-2A program or creation of a new agricultural guest worker program led growers to employ many more aliens, the effects of the Bracero program might be instructive: although the 1942-1964 Bracero program succeeded in expanding the farm labor supply, studies estimate that it also harmed domestic farm workers through reduced wages and employment. The magnitudes of these adverse effects might differ today depending upon how much the U.S. farm labor and product markets have changed over time, but their direction likely would be the same.

The report further states, Despite increases in H-2A worker certifications issued by the U.S. Department of Labor in recent years, the number of H-2A workers remains quite small compared to the nearly 1 million hired farm and agricultural service workers employed in 2008.5 Thus, even if the labor certification process has not operated as intended—to protect similarly employed U.S. workers—the H-2A program’s low utilization suggests that its overall impact on the domestic farm labor force has been minimal.

Download the full report Download file

There has been a lot of confusion about the impact of the HIV removal on previous waiver denials and other related issues. USCIS released a good set of FAQ to address some concerns.

Section 212(a)(1)(A)(i) of the Immigration and Nationality Act (the Act), bars the admission to the United States any foreign national who has been diagnosed with certain specific illnesses. The Department of Health and Human Services (HHS), on Nov. 2, 2009, published a final rule in the Federal Register, removing Human Immunodeficiency Virus (HIV) infection from the from the list of illnesses that make a foreign national inadmissible. This rule takes effect on Jan 4, 2010. As of Jan. 4, 2010, therefore, having HIV infection will no longer make a foreign national inadmissible to the United States.

Here are the most common questions asked:

Q. My application was denied prior to Sept. 15, 2009, due to failure to file a waiver for HIV infection. Can I file a motion to reopen or reconsider because a waiver is no longer needed?
A. In general, a motion to reopen or reconsider must be filed within 30 days of the final adjudication. However, if your application was denied solely based on HIV infection, on or after July 2, 2009, the date of the proposed HHS rule, USCIS will waive the 30 day deadline. USCIS will accept the filing of your motion to reopen or reconsider along with the filing fee.

Q. My application for adjustment of status was denied prior to July 2, 2009, due solely to HIV infection. What should I do?
A. You may reapply for adjustment of status, if eligible, once the new rule takes effect on Jan. 4, 2010. USCIS will make a new decision in light of the final HHS rule.

So this is a bright light in the lives of many HIV positive immigrants, facing the possibility of removal. We hope to report more on the above referenced changes.

Click here for the complete FAQ.

DOL announced late last year about the changes to the Prevailing Wage Determination procedures, these changes became effective today. So what cases are affected? As described in the Department’s December 4, 2009 Federal Register Notice, the National Prevailing Wage and Help desk Center (NPWHC) will process Prevailing Wage Determination (PWD) requests for H­1B, H­1B1(Chile/Singapore), H­1C (if reauthorized by Congress), H­2B, E­3 (Australia) programs, and the permanent labor certification program (PERM).

Now employers will need to plan at least 60 days in advance when filing any of the above referenced applications, we anticipate serious delays in the early stages of this program. Especially since only hard copy mail ins are accepted at this time.

Click here for the DOL complete rule.

What a great way to start the year. Today is an historic day in US Immigration law. The US has lifted a 22-year immigration ban which has stopped anyone with HIV/Aids from entering the country. President Obama said the ban was not compatible with US plans to be a leader in the fight against the disease.

The new rules come into force today and the US plans to host a bi-annual global HIV/Aids summit for the first time in 2012. The ban was imposed at the height of a global panic about the disease at the end of the 1980s. It put the US in a group of just 12 countries, also including Libya and Saudi Arabia, that excluded anyone suffering from HIV/Aids.

Rachel Tiven, head of the campaign group Immigration Equality, told the BBC that the step was long overdue.

"The 2012 World Aids Conference, due to be held in the United States, was in jeopardy as a result of the restrictions. It's now likely to go ahead as planned," she said.

Read more..