Visa Lawyer Blog

Arizona's new immigration law is a bad idea whether you are an anti or a supporter of comprehensive immigration reform. The reasons are different for each but the idea of a state taking crazy measures points to the failure of congress and the administration to take meaningful action to correct what is becoming a system that is failing the immigrant community and our entire nation.

What does the Arizona law do?

Arizona's law orders immigrants to carry their alien registration documents at all times and requires police to question people if there's reason to suspect they're in the United States illegally.

What do opponents say?

Critics, including immigrant advocates and the American Civil Liberties Union of Arizona, say they are concerned the law will foster racial profiling, arguing that most police officers don't have enough training to look past race while investigating a person's legal status.
It also targets those who hire illegal immigrant laborers or knowingly transport them.

Are other states considering similar legislation?

Michael Hethmon, general counsel for the Immigration Reform Law Institute, helped draft the language of the Arizona bill. Hethmon said lawmakers from four other states have approached him asking for advice on how they can do the same thing where they live. He declined to identify which states, citing attorney-client privilege.

Is federal immigration legislation coming?

Democrats say that if they don't get Republican commitments soon, they likely will push to move a bill without GOP support.

Democratic sources said the chances of passing immigration reform in that scenario this year are slim, but they want to make clear to key constituencies they are at least trying.

President Obama is still pushing for a bill, though.

Sen. Lindsey Graham of South Carolina is the only GOP senator on board, but he has told Democrats they will lose his support unless they find another Republican. Obama recently called Sen. Scott Brown, R-Massachusetts, to try to get him on board, a Brown spokeswoman said.

Bottom line is that this bill does not make Arizona safer or its residents free of criminals. It's anti-immigrant and unconstitutional.

San Diego Restaurant, The French Gourmet Inc., indicted recently for knowingly making false attestations on I-9 Forms, hiring employees unauthorized to work in the U.S., and employing those aliens after learning of their ineligibility to work. U.S. v. The French Gourmet Inc. is the case, and you can read it here:

In May 2008, Immigration and Customs Enforcement agents executed a criminal search warrant at, The French Gourmet, and have taken workers suspected of being illegally in the country into custody. ICE has arrived at worksites with both criminal and civil warrants. It has searched businesses, frozen bank accounts, and arrested not only employees but also employers. This recent indicment sends a clear message to employers.

We keep reminding employers to ensure compliance with the I-9 requirements under IRCA, a company should establish an I-9 policy that includes:

* The proper and timely completion and retention of Form I-9 for all employees hired after November 6, 1986;
* Zero-tolerance for the employment of individuals who do not provide the proper identity and employment eligibility documents for Form I-9;
* A tickler system for I-9s that require reverification;
* I-9 training for all company representatives who are part of the recruitment, orientation, and hiring processes for the company; and
* Regularly scheduled in-house I-9 audits.

Conducting self-audits puts a company in better position if it becomes the subject of an ICE investigation. While employers cannot verify whether documents used for employment authorization are authentic, self-audits establish good-faith compliance.

With all the recent mess in this country the recent news about Americans giving up their Citizenship is interesting.

The Federal Register, the government publication that records such decisions, shows that 502 expatriates gave up their U.S. citizenship or permanent residency status in the last quarter of 2009. That is a tiny portion of the 5.2 million Americans estimated by the State Department to be living abroad.

Still, 502 was the largest quarterly figure in years, more than twice the total for all of 2008, and it looms larger, given how agonizing the decision can be. There were 235 renunciations in 2008 and 743 last year. Waiting periods to meet with consular officers to formalize renunciations have grown.

Anecdotally, frustrations over tax and banking questions, not political considerations, appear to be the main drivers of the surge. Expat advocates say that as it becomes more difficult for Americans to live and work abroad, it will become harder for American companies to compete.

Relinquishing citizenship is relatively simple. The person must appear before a U.S. consular or diplomatic official in a foreign country and sign a renunciation oath. This does not allow a person to escape old tax bills or military obligations.

Now with the new Arizona Immigration Bill, some Americans are telling me they are ashamed of their country and may consider giving up Citizenship and moving away. What do you think?

Read more from the NY Times

I can't remember so much controversy and anger over an immigration measure like the Arizona law passed in the past few days. The measure — set to take effect in late July or early August — would make it a crime under state law to be in the U.S. illegally. It directs state and local police to question people about their immigration status if there is reason to suspect they are illegal.

The anger over Arizona's new law cracking down on illegal immigrants grew stronger today as opponents used refried beans to smear swastikas on the state Capitol, civil rights leaders demanded a boycott of the state, and the Obama administration weighed a possible legal challenge. Immigration lawyers in Arizona are also gearing up to defend clients and take on some new kind of cases.

Under the new Arizona law, immigrants unable to produce documents showing they are allowed to be in the U.S. could be arrested, jailed for up to six months and fined $2,500. That is a significant escalation of the typical federal punishment for being here illegally.

People arrested by Arizona police would be turned over to federal immigration officers. Opponents said the federal government could thwart the law by refusing to accept them.

Activists are planning a challenge of their own, hoping to block the law from taking effect by arguing that it encroaches on the federal government's authority to regulate immigration and violates people's constitutional rights by giving police too much power.

The White House would not rule out the possibility that the administration would take legal action against Arizona. President Barack Obama, who warned last week that the measure could lead to police abuses, asked the Justice Department to complete a review of the law's implications before deciding how to proceed.

Mexican President Felipe Calderon said the law is discriminatory and warned that trade and political ties with Arizona will be seriously strained by the crackdown.

Yet Arizona Governor is living in her own bubble. Arizona Gov. Jan Brewer today deflected concerns that the state's new immigration law will hurt economic development, saying many businesses have long wanted tougher action.

"I believe it's not going to have the kind of economic impact that some people think that it might," Brewer, a Republican, said.

Not all Arizona residents are siding with this. Mr. Gordon, Phoenix's mayor and a Democrat, said his office hopes the City Council will authorize the city to file a lawsuit Tuesday. San Francisco City Attorney Dennis Herrera urged policymakers in the city to stop dealing with Arizona and Arizona businesses. Leaders in Mexico and California also demanded a boycott, as did civil rights leader Al Sharpton. More opposition is expected both from inside and outside Arizona.

Continue reading "New Arizona Immigration Law - Will it hurt the economy and cause tourists, businesses to stay away?" »

As of April 15, 2010, approximately 13,600 H-1B cap-subject petitions had been filed. USCIS has approved 5,800 H-1B petitions for aliens with advanced degrees.

Many immigration lawyers are seeing a sharp decline in the interest in the H1B visa this year by potential employers and workers. Some are saying that the downturn in H1B applications this year could be as much as 60%. As a result of this decline, there are predictions that the quota will not be reached within the first few months of this year. Rather, many suspect that the bachelor's quota won't be reached until the middle of July, and that the master's quota won't be reached until later this June.

We shall see how the number will play out in the next few months.

As many of our readers know, overstaying a visa can have a serious implications on ones ability to return to the US. The USCIS can record timely departure of a visitor by collecting the I-94 card upon exit.

An I-94 is a form denoting the Arrival-Departure Record of particular foreigners used by U.S. Customs and Border Protection (CBP). U.S. Citizenship and Immigration Services (USCIS) uses Form I-94 also. Form I-94 must be completed at the time of entry to the United States by foreign citizens that are being admitted into the United States in a non-immigrant visa status.

But what if you did not turn in I-94 when you left the U.S., what should you do? US Customs provided some useful tips:

If you returned home with your Form I-94 (white) or Form I-94W (green) Departure Record in your passport, it is possible that your departure was not recorded properly.

If you departed by a commercial air or sea carrier (airlines or cruise ships), your departure from the U.S. can be independently verified, and it is not necessary to take any further action, although holding on to your outbound (from the U.S.) boarding pass - if you still have it - can help expedite your reentry next time you come back to the United States.

If you departed by land, private vessel or private plane, you will need to take steps to correct the record. If you do not validate your timely departure from the United States, or, if you cannot reasonably prove you departed within the time frame given to you when you entered, the next time you apply for admission to the U.S., Customs and Border Protection (CBP) may conclude you remained in the U.S. beyond your authorized stay. If this happens, your visa may be subject to cancellation or you may be returned immediately to your foreign point of origin.

Under the Visa Waiver Program (VWP), visitors who remain beyond their permitted stay in the United States cannot reenter the U.S. in the future without obtaining a visa from a U.S. Consulate. So if you are a Visa Waiver Program visitor who traveled by land to either Canada or Mexico for an onward flight, it is particularly important for you to register your timely departure if your green I-94W was not taken when you exited the U.S. If you fail to do so and you arrive at a U.S. port of entry seeking admission under the Visa Waiver Program without a visa, CBP Officers may order your immediate return to a foreign point of origin. If you are a VWP visitor and you left the U.S. by an air or sea carrier, you don't need to worry.

If you failed to turn in your I-94 Departure Record, please send it, along with any documentation that proves you left the United States to:

DHS - CBP SBU

1084 South Laurel Road

London, KY 40744

Do not mail your Form I-94 Departure Record or supporting information to any U.S. Consulate or Embassy, to any other CBP Office in the United States, or to any address other than the one above. Only at this location are we able to make the necessary corrections to CBP records to prevent inconvenience to you in the future. The London, Kentucky office does not answer correspondence, so please do not ask for confirmation that your record has been updated.

To validate departure, CBP will consider a variety of information, including but not limited to:

* Original boarding passes you used to depart another country, such as Canada, if you flew home from there;
* Photocopies of entry or departure stamps in your passport indicating entry to another country after you departed the United States (you should copy all passport pages that are not completely blank, and include the biographical page containing your photograph); and
* Photocopies of other supporting evidence, such as:

* Dated pay slips or vouchers from your employer to indicate you worked in another country after you departed the United States,
* Dated bank records showing transactions to indicate you were in another country after you left the United States,
* School records showing attendance at a school outside the United States to indicate you were in another country after you left the United States, and
* Dated credit card receipts, showing your name, but, the credit card number deleted, for purchases made after you left the United States to indicate you were in another country after leaving the United States.

To assist us in understanding the situation and correct your records quickly, please include an explanation letter in English. Your statement will not be acceptable without supporting evidence such as noted above. You must mail legible copies or original materials where possible. If you send original materials, you should retain a copy. CBP cannot return original materials after processing.

We strongly urge you to keep a copy of what you send to DHS-CBP and carry it with you the next time you come to the United States in case the CBP Officer has any questions about your eligibility to enter. Carrying those materials with you will also allow your record to be corrected at the time of entry if, for some reason, the London, Kentucky office has not yet done so.

If taking short trips (30 days or less) to Canada, Mexico, or the Caribbean Islands during the course of your visit to the U.S., hold onto your I-94 or I-94 (W); it should only be turned in when you leave the U.S. to return home.

Delays beyond the traveler's control, such as cancelled or delayed flights, medical emergencies requiring a doctor's care, etc. are not considered unauthorized overstays, however, you will need to bring proof of the cause of your overstay next time you travel to the U.S. in order for it to be forgiven. For airline delays, ask the airline for a letter affirming the delay or a copy of your cancelled boarding pass.

So make sure to remember to turn in your I-94's, that will eliminate any problems the next time you return to the US.

We are posting the recent list of petitioners who received an approval in FY09 of Form I-129, requesting initial H-1B status for the beneficiary employee. Approximately 3,000 initial H-1B petitions are not accounted for on this list due to missing petitioner tax ID numbers.

While the full official final list of biggest H1B visa employers for FY2010 for the season has not been released, this preliminary list has been released for the Top employers this past US immigration year.

An H1B visa is a temporary working visa for professional positions, which allows foreign nationals to live and work in the U.S. for up to six years. This visa is an important tool for any employer to get the highly qualified technical expertise it needs to operate and grow its business.

If you compare the top 25 employers of US visas in 2009 to the past Top 100 H1B visa employers of FY2009, that many companies like InfoSys, Tata and Satyam have dropped substantially both in the number of US visas for foreigners applied for and their overall rank. In the cases of Tata and Satyam, they are not even on this top list anymore.

This further shows again both the fallacy of the arguments perpetuated by bigots in the US Congress and the US media about foreign companies (mainly Indian) taking the jobs of US citizens.

Click for the full list Download file

The American Immigration Lawyers Association (AILA) strongly urges Arizona Governor Jan Brewer to veto a bill moving rapidly through the state legislature that would make it a crime to be an undocumented immigrant in the state.

In addition to the absurdity of aligning undocumented status with state trespassing, the law also validates racial profiling as a legitimate law enforcement tool which is precisely the reason why individuals and businesses around the country are beginning to seriously question whether Arizona is a safe place to visit, live, or do business.

The bill also creates a private right of action for any person to sue a city, town, or county for not enforcing immigration laws to the full extent of federal law and it establishes civil penalties for the city, town, or county. This subjects local governments to unreasonable and potentially frivolous litigation by private citizens with an anti-immigrant agenda. Even if a municipality is vindicated in court, it will still have to incur the costs of defense.

The problems with this bill are monumental and the consequences will be devastating to the citizens of Arizona and the state's already fragile economy. At last glance, Arizona was in the throes of a massive budgetary crisis. Arizona's economy simply cannot afford to absorb the costly litigation that this ill-conceived legislation will certainly produce. Moreover it sets a bad example for other states to pass similar bills. Already other states like Ohio and Utah are entertaining similar legislation. Immigration is the domain of the federal government and it is a huge mistake for states to be involved.

Some 63,000 flights had been canceled in Europe by the end of Sunday, in the four days since the air space of northern Europe was shut down by an enormous ash cloud from an erupting volcano beneath the Eyjafjallajokull glacier in Iceland.

Passengers are scrambling to find alternative travel routes. German tourists are being bussed home from Spain, while the Royal Navy is sending military ships to Spain to bring home stranded Brits. Thousand of Europeans are also stuck in the US with no option to leave at this time. Many visitors are worried about the implications of not being able to leave before their current status expires.

Foreign nationals stranded in the U.S. because of the airport closures in Europe due to the Icelandic volcano eruption and who are about to exceed their authorized stay in the U.S. have two avenues for relief. If at an airport and traveling under the Visa Waiver Program (VWP), they should contact the U.S. Customs and Border Protection office at the airport. They may also contact the local U.S. Citizenship and Immigration Services office. Both Department of Homeland Security agencies have provided their staff and offices with guidance on the applicable legal authorities under the VWP in circumstances such as this.

Persons traveling under a visa should contact the nearest USCIS office and follow the instructions below. While these instructions recommend initiating the process 45 days in advance, USCIS is providing reminder guidance on how to handle such cases until normal flights are scheduled between the U.S. and foreign countries affected by the Icelandic volcanic activity.

We keep monitoring the situation and will update our readers as we obtain more news.

The American Immigration Lawyers Association is a great organization, and I am proud to be an active member. We know that this is also important to our clients and future clients.

The American Immigration Lawyers Association (AILA) will celebrate its 4th Annual Citizenship Day on Saturday, April 17 by helping more than 2,000 legal permanent residents apply to become US citizens. In partnership with the "ya es hora ¡Ciudadanía!" campaign, AILA will hold 43 naturalization clinics in 30 states serving more than 2000 immigrants who are preparing to become citizens.

s a single-day, nationwide event, AILA Citizenship Day provides free or low-cost assistance to eligible legal permanent residents who wish to apply for U.S. citizenship, utilizing partnerships between AILA chapters across the country and grassroots organizations such as the "ya es hora ¡Ciudadanía!" campaign. In 2010, AILA Citizenship Day will celebrate its 4th anniversary on a national scale and its second year with the campaign.

AILA's successes are due in large part to the national collaborative relationships that AILA has developed both with community organizations and stakeholders, as well as the USCIS Office of Citizenship. "The work we do together is much greater than the work we do apart," said Susan Timmons, AILA's Pro Bono Associate who coordinates Citizenship Day. "We reach at least a thousand more people with the help of our community partners than we'd be able to independent of them. Together we help hard working residents become citizens of the United States-we help them live their American dream."

AILA Citizenship Day is an award winning venture, capturing the 2008 Award of Excellence in the Associations Advance America Awards program, a national competition sponsored by the American Society of Association Executives (ASAE) and The Center for Association Leadership.

Click here Download file
for the schedule nationwide and find your local San Diego Free event as well. Members of our team will be there as well.

This Update is from AILA Rome Chapter, very important information for HIV infected immigrants and family members.

This Post will attempt to lend clarity to the dynamic process by which HIV infection is being removed as a ground of inadmissibility under INA 212(a)(1). Although the date for final removal of HIV infection from the list of communicable diseases of public health significance is just a few weeks away, DHS and DOS are at very different stages in their attempts to align their respective regulations to this welcome new reality.

On July 2, 2009, the Department of Health and Human Services (HHS) published a Notice of Proposed Rulemaking in the Federal Register, announcing its intent to remove HIV infection from its list of communicable diseases of public health significance and inviting public comment on the issue. The Final Rule implementing this change was published on November 2, 2009; following a 60-day waiting period, the rule will become effective on January 4, 2010.

In a Memorandum dated November 24, 2009, USCIS amplified its previous guidance instructing adjudicators to hold in abeyance any cases they encounter in which the sole reason for denial would be HIV infection; USCIS will automatically reconsider these cases after the new rule takes effect on January 4, 2010. If, between now and January, an officer encounters a case in which a foreign national has already filed an approvable waiver of inadmissibility relating to HIV infection, then the case should be adjudicated as is. If an already-filed HIV waiver is not approvable, the adjudicator should delay action on the case until after January 4, at which point the inadmissibility will no longer exist.

Applicants whose cases were denied solely on HIV grounds on or after July 2, 2009, may file a motion for USCIS to reopen or reconsider the decisions. USCIS has waived the requirement that such motions be filed within 30 days of the original decision, but applicants must still submit the relevant filing fee. These cases will then be reconsidered within the new regulatory framework in effect after January 4, 2010.

As of January 4, 2010, USCIS adjudicators will disregard a diagnosis of HIV infection when processing cases. After this date, moreover, adjudicators will administratively close any waiver requests they encounter pertaining to HIV infection. Furthermore, HIV testing will cease to be part of the medical examination for immigration benefits.

Regrettably, the Department of State has so far publically released scant guidance detailing how consular officers, in light of the new rules, will treat immigrant and nonimmigrant cases involving HIV infection. Although the pertinent provisions at 9 FAM 40.11 were updated as recently as the end of October 2009, these provision still instruct consular officers, inter alia, to deny immigrant visas for applicants who are found to be HIV-positive.

Until we receive this guidance, a word to the wise: the elimination of HIV infection as a medical ineligibility does not rule out the possibility of an HIV-positive immigrant being found inadmissible as a potential public charge. A public charge finding may result in denial of permission to adjust to legal permanent resident status, denial of a visa to enter the United States, denial of re-admission to the United States after a trip abroad for more than six months, or, in very rare circumstances, deportation. Recent research suggests that public charge concerns, along with other "chilling effects" related to welfare reform and confusion about eligibility rules for benefits, have kept many legal immigrants from accessing benefits for which they are eligible.

As with other medical conditions, Affidavits of Support for profoundly sick individuals should be as strong as possible in order to overcome INA 212(a)(4).

American Immigration Lawyers Association on March 25, 2010 held their National Day of Action in an effort to bring about comprehensive immigration reform. The AILA National Day of Action is an annual event in which immigration lawyers from across the country meet in Washington DC for the purpose of speaking with members of Congress and their staff, gathering information about the legislative schedule, and urging that a comprehensive immigration bill be voted on before the November elections.
Congress was deeply divided and Democrats wanted to now focus their efforts on an issue with which they could find bipartisan support before the upcoming midterm elections. In this climate, the prospects of comprehensive immigration reform being brought before Congress in the near future looked slim. However, Congress was also feeling pressure from the other side. In addition to the health care protesters, 2000 members of the immigrant community had gathered that weekend to urge Congress to move forward with comprehensive immigration reform. Sen. Charles Schumer (D-NY) and Sen. Lindsey Graham (R-SC) had announced that they would soon be proposing a comprehensive immigration reform bill in the Senate but no firm details as to the specifics of the bill were known. Conventional wisdom is that Rep. Graham’s support for such legislation is conditioned on his ability to convince at least one other Republican in the Senate to sign on.

Continue reading "San Diego Immigration Lawyer about AILA National Day of Action 2010" »

A United States Permanent Resident Card, known informally as a green card (due to the color of some earlier variants), is an identification card attesting to the permanent resident status of an alien in the United States of America. Green card also refers to an immigration process of becoming a permanent resident.

The green card serves as proof that its holder, a Lawful Permanent Resident (LPR), has been officially granted immigration benefits, which include permission to reside and take employment in the USA. The holder must maintain permanent resident status, and can be removed from the United States if certain conditions of this status are not met.

The DHS Office of Immigration Statistics issued its Annual Flow Report on U.S. Legal Permanent Residents (LPRs) for FY 2009. In 2009, a total of 1,130,818 persons became LPRs of the U.S and obtained Green Cards. The majority of new LPRs (59 percent) already lived in the United States when they were granted lawful permanent residence. Nearly two-thirds were granted permanent resident status based on a family relationship with a U.S. citizen or legal permanent resident of the United States. The leading countries of birth of new LPRs were Mexico (15 percent), China (6 percent), and the Philippines (5 percent).

Read the report here Download file

A great program on KPBS this morning covered the case of Ruben Flores-Villar. Flores-Villar, 35, was born in Tijuana, Mexico, but grew up in the San Diego area, in the care of his father and grandmother.

When he sought U.S. citizenship in 2006 — to fend off criminal charges of being in the country illegally — U.S. immigration authorities turned him down. For people born before 1986, their U.S. citizen fathers had to have lived in the U.S. for 10 years, at least five of them after the age of 14. Flores-Villar’s father could not meet the second part of that requirement because he was only 16 when his son was born. American mothers need only have lived in the U.S. continuously for a year before the birth of a child.

Later this year, the Supreme Court will enter a curious corner of U.S. immigration law that applies only to children born outside the U.S. to one parent who is an American and one who is not. The law makes it easier for children whose mother is a citizen to become citizens themselves. Even after reform legislation in 1986, children of American fathers face higher hurdles claiming citizenship for themselves.

Lower federal courts upheld Flores-Villar’s conviction and rejected his discrimination claims. Flores-Villar has previously been deported at least five times since he was convicted of importing marijuana when he was 22, the government said in court papers. The Obama administration argued that the less stringent residency requirement in the 1986 law was one of several reasons for the court to stay out of the case.

The 1986 Citizenship law states:

Children born abroad to two US citizen parents, one of whom has resided in the US prior to the birth of the child, continue to be US citizens at birth, and need take no special actions to retain citizenship.

Children born to one citizen parent and one foreign national will obtain citizenship at birth if the citizen parent resided in the US for five years before the birth, with two of those years after the age of 14. The child does not need to take any special action to retain US citizenship.

Children born out of wedlock to a US citizen mother will be US citizens if the mother resided in the US for one year prior to the birth of the child. Children born out of wedlock to a US citizen father will acquire US citizenship if the following conditions are met:

* There is an established blood relationship between the father and the child,
* The father was a US citizen at the time of the birth,
* The father has agreed to financially support the child until it is 18, and
* Before the child is 18 it is legitimated, or the father acknowledges paternity in a document signed under oath

The court ruled on a related issue in 2001, holding that it was all right to require American fathers, but not mothers, of children born out of wedlock and abroad to get a court order of establishing paternity or swear to it under oath.

The case is Flores-Villar, 09-5801.

Let us know what you think, is this a law that favors children of US mothers, over US fathers?

The National Foundation for American Policy released a few interesting facts about H1B visa usage. You will be surprised when you read the following:

- Although important for the competitiveness of many U.S. companies, new H-1B visa holders represented only 0.06 percent of the U.S. civilian labor force in 2009, a tiny proportion of the U.S. workforce, making unsupportable claims that such individuals are “destroying” large numbers of U.S. jobs. Moreover, for the past several years no new H-1B visa holder could even be hired by companies in the United States for 4 to 12 months at a time due to quotas being exhausted, making it unlikely that employers would go without filling jobs if a qualified U.S. applicant was available.

- A large variety of businesses and organizations in America, including public school systems, hire H-1B professionals every year. In FY 2009, 27,288 different employers hired at least one individual on a new H- 1B petition, according to USCIS. Contrary to the popular impression, 96 percent of the employers (26,304 of 27,288) hired 10 or fewer individuals on a new H-1B petition. A total of 18,747 employers, or 69 percent, hired only one foreign national on a new H-1B petition.

Examining the 2009 H-1B numbers and recent research on high skill immigration shows many of the arguments made to restrict H-1B visas are weak. H-1Bs are used by a large variety of businesses and organizations in the United States. Given the long waits for green cards, H-1B visas remain often the only way an employer can hire an outstanding international student or bring a talented foreign national to America to work.

Click here for the full report

H1B filings are looking much better than last year. U.S. Citizenship and Immigration Services (USCIS) today announced it continues to accept H-1B nonimmigrant petitions subject to the Fiscal Year 2011 (FY 2011) cap. USCIS will monitor the number of petitions received for both the 65,000 general cap and the 20,000 U.S. master’s degree or higher educational exemption.

USCIS has received approximately 13,500 H-1B petitions counting toward the 65,000 cap. The agency has received approximately 5,600 petitions for individuals with advanced degrees.

There is a lot of uncertainty regarding the cap this year. Unless there is a remarkable change in the economy in the next few months, the filing levels are likely to continue to be low. The USCIS is expected to continue closely scrutinizing H1B filings, and to demand detailed proof of the nature of the job offer and eligibility for H1B approval. We will keep you posted.

This is the latest update as of Tuesday, April 6, 2010, Vermont Service Center, as of close of business on Monday, April 5, 2010, VSC had received a total of 9,525 cap-subject H-1B petitions. Of those petitions, 6,791 were "regular" cap, and 2,734 were advanced degree. All cases received before April 7, 2010, will have an April 7, 2010 receipt date. Those received on April 7, 2010 or later will bear the actual receipt date. For those submitted for Premium Processing, the clock will start on April 7, 2010. We will update once we have the California Service Center Numbers.

With all the scrutiny around H1B visas these days, clients and lawyers are always seeking alternative visas. There are not many, but we will explore the best options in the next few articles.

The Trade NAFTA (TN) category of the North American Free Trade Agreement (NAFTA) North American Free Trade Agreement (NAFTA),retains a strong resemblance to the H-1B category, since both categories contemplate the admission of persons of professional standing who will engage in professional-level activities. Its utility as an alternative to the H-1B category is limited, however, by the simple fact that it is available only to nationals of Canada or Mexico.

The TN category offers Canadian and Mexican professionals four obvious advantages over the H-1B category. First, an applicant for this status need not file, and obtain approval of, a nonimmigrant petition with a service center before entering the United States. A Canadian national may instead present the application at a port of entry or preflight inspection station, where processing generally takes no longer than three hours. If the TN is denied, the applicant can re apply with the necessary corrections in most cases and if no fraud was involved. A Mexican national may file an application for a TN visa directly with a U.S. consulate.

Second, Canadian TN applicants are not required to obtain approval of an LCA from the Department of Labor; this allows employers to avoid the often intrusive salary-posting and record-keeping requirements of the H-1B category. Also LCA's take forever to obtain these days, making the process even longer.

Third, the TN category, unlike the H-1B category, does not impose a maximum period of stay. Technically, a Canadian or Mexican professional may hold TN status indefinitely, as long as he or she continues to be employed in an appropriate profession.

Fourth, there is no limitation on the number of Canadian or Mexican nationals who may be admitted in the course of a fiscal year.

The TN category of NAFTA requires each state party to admit "a business person seeking to engage in a business activity in a profession set out in Appendix 1603.D.1 [of NAFTA]." This appendix provides a listing of 63 professions with corresponding minimum educational requirements and alternative credentials. Only persons coming to work in one of these listed professions may be accommodated under the TN category; a person coming to work in the United States in an unlisted profession may not enter in TN status, regardless of the fact that his or her job has been recognized as a profession or a specialty occupation by USCIS in another context.

Eligibility for H-1B status does not therefore translate automatically into eligibility for TN status, and the preparation of a TN application requires an approach quite distinct from that involved in the preparation of an H-1B petition. One of the more important distinctions between the TN and H-1B categories, which directly affects the availability of TN status for persons who customarily would seek H-1B status, lies in the differing analysis applied by government officers to determine professional status under each category. For clients contemplating the use of the TN category as an alternative to the H-1B category, these differing analysis must be taken into account in determining whether a position for which an H-1B petition would have been filed is one that can be accommodated under the TN category.

CBP and State Department officers reviewing TN applications must operate deductively, in the sense that they will draw a conclusion from a set of given premises. This analysis, in which form takes precedence over substance, often requires more than a surface screening of an application to ensure that the relevant criteria are met (e.g., all hotel managers with degrees in hotel management are admissible in TN status; this person is a hotel manager and has a degree in hotel management; therefore, he is admissible in TN status).

Continue reading "TN Visa Lawyer - Difference between the H1B Visa and The Trade NAFTA (TN) Category" »

The Congressional Research Service (CRS) issued report on legislative developments in visa policy over the past 20 years and analysis of statistical trends in visa issuances and grounds for exclusion.

The conventional wisdom is that the terrorist attacks on September 11, 2001, prompted a substantive change in U.S. immigration policy on visa issuances and the grounds for excluding foreign nationals from the United States. A series of laws enacted in the 1990s, however, may have done as much or more to set current U.S. visa policy and the legal grounds for exclusion.

Foreign nationals not already legally residing in the United States who wish to come to the United States generally must obtain a visa to be admitted. Those admitted on a permanent basis are known as immigrants or legal permanent residents (LPRs), while those admitted on a temporary basis are known as nonimmigrants (such as tourists, foreign students, diplomats,temporary agricultural workers, and exchange visitors). They must first meet a set of criteria specified in the Immigration and Nationality Act (INA) that determine whether they are eligible for admission.

The burden of proof is on the foreign national to establish eligibility for a visa. Conversely, foreign nationals also must not be deemed inadmissible according to other specified grounds in §212(a) of the INA. These §212(a) inadmissibility criteria are health-related grounds; criminal history; security and terrorist concerns; public charge (e.g., indigence); seeking to work without proper labor certification; illegal entrants and immigration law violations; ineligible for citizenship; and aliens illegally present or previously removed.

The number of aliens excluded on the basis of §212(a) of the INA has fluctuated over the years. In FY2008, §212(a) exclusions of prospective nonimmigrants hit 35,403 and surpassed the prior high point of 34,750 in FY1998. For prospective LPRs, §212(a) exclusions peaked in FY1998 and FY1999, reaching over 89,000 in both years. The §212(a) exclusions of prospective LPRs fell from FY2000 through FY2003, then began climbing to reach 77,080 in FY2008.

Exclusions of nonimmigrant petitions have a somewhat different pattern than that of immigrant petitions. Violations of immigration law were the leading category from FY1994 through FY2006, but fell to the second ranking by FY2008. Illegal presence and prior removal became the leading ground in FY2008. Over time, criminal activity has become a more common ground for refusal, and has represented a lwas for immigrant petitioners.

Legislation aimed at comprehensive immigration reform may take a fresh look at the grounds for excluding foreign nationals enacted over the past two decades. Expanding the grounds for inadmissibility, conversely, might be part of a more restrictive immigration reform policies. Whatever the final solution will be, reform of our current system is needed, and now more than ever.

Download the report here Download file

As many readers know, H1B status holders in the US, may apply for visa stamp in Canada. This way avoiding a costly trip the country of origin. Such applicants are called Third Country Nationals.

The US Consulate General in Cananda ACCEPTS the following types of NIV applications from Third Country National (TCN) applicants:

Applicants seeking to renew their C1/D, D, E , F, H (except H-2), I, J, L, M, O, P and R visas, regardless of where the original visa was issued. Certain visa applicants may be subject to additional administrative processing.

With increasing regularity, U.S. consular posts in Canada are refusing visas under INA § 221(g) to TCNs with foreign degrees who have not been previously issued H-1B visas from their home
posts, and are referring them to their home countries for visa processing. AILA believe that the Canadian posts' distrust of degrees that are not from the U.S. or Canada stems from past discoveries of fraudulent degrees from certain parts of the world.

While Mission Canada does not publish this as official policy, it does warn on its website that this situation may happen (http://www.consular.canada.usembassy.gov/usa_visa.asp) where it
says under the H-1B section, "Evidence of qualifications must be original or certified copy. Consular officers in Canada may refuse to issue a visa to H-1B applicants if their education
and/or work experience is solely or predominantly from a country other than the U.S. or
Canada." Third Country Nationals Applying for Visas in Canada Who Last Entered the U.S. as Visitors Mission Canada also generally discourages TCNs from applying at Canadian posts if they last entered the U.S. in visitor status as indicated by the following note in the NVARS On-line Appointment System:

The Visa Appointment Reservation System is intended for use by persons in the U.S. and Canada. Persons physically present in the U.S. or Canada may obtain an appointment and apply for a nonimmigrant visa at one of the U.S. consular posts in Canada. Please be aware that it is generally more difficult for applicants to obtain visas when they apply outside their home country. Consular officers in Canada may be unable to properly assess the circumstances of and/or evaluate foreign documents presented by applicants who are visitors in Canada. In such cases, the consular officer may deny the visa application and recommend that the applicant return to his/her country of normal residence. For this reason, persons applying for F, M, J, H, or L visas, who are presently in the United States on a B (tourist or business) visa or on a visa waiver, are strongly advised to apply for their new visas in the country of their permanent residence.

This update is provided by AILA.

Today is the first day that employers may file H1B petitions for FY 2011. We certainly released our cases on time yesterday, and are still open to new cases as long as the H1B cap will remain open.

Under current law, an alien can be in H-1B status for a maximum period of six years at a time. After that time an alien must remain outside the United States for one year before another H-1B petition can be approved. Certain aliens working on Defense Department projects may remain in H-1B status for 10 years. In addition, certain aliens may obtain an extension of H-1B status beyond the 6-year maximum period.

The current law limits the cap of H1Bs to 65,000 as the number of aliens who may be issued an H1B visa or otherwise provided H-1B status. In addition, all H-1B non-immigrants who work at (but not necessarily for) universities and non-profit research facilities are excluded from the numerical cap. This means that contractors working at, but not directly employed by the institution may be exempt from the cap.

H1B Visa renewals and Extensions of stay however do not count towards the annual limits. Transfers of H1B visas among employers only count when changing jobs from an employer exempt from the limits (academia or research) to one that is not exempt. Therefore, despite the numerical limitations we can prepare and file your case for an extension of stay provided the maximum 6 year has not yet been fulfilled.

What other situations will allow a petition to avoid the H1B Cap? How to ensure ensure that an H-1B petition will be accepted for filing and not be counted against the cap in the following situations. What boxes on Form I-129, Part 2 and Supplement I-129 Part C should be marked?

(1) H-1B Beneficiary is abroad holding a USCIS H-1B Approval notice with start date of Oct 1, 2009. The H-1B Beneficiary's current petitioner has indicated that they will not be bringing alien on until late 2010. A second employer seeks to file a petition requesting concurrent employment for this Beneficiary which will enable Beneficiary to come into the country on Oct 1, 2010.

(2) H-1B Beneficiary is abroad holding a USCIS H-1B Approval notice with start date of Oct 1, 2009. The H-1B Beneficiary's current petitioner has not ever brought this beneficiary into the U.S. A new employer now wishes to file a petition requesting a change of employer for this Beneficiary which will enable Beneficiary to begin working immediately.

(3) H-1B Beneficiary is abroad holding a USCIS Approval notice & H-1B Visa with start date of Oct 1, 2009. Beneficiary's current employer does not seem willing to commit to a definite start date. A new employer wishes to file a petition requesting a change of employer for the beneficiary.

INA 214(g)(7) states that any alien who has already been counted within the 6 years prior to the approval of an H petition toward the numerical limitations shall not again be counted towards those limitations unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed.

8 CFR 214(h)(13)(iii)(A) also states that an H1B alien who has spent 6 years in the US as an H1B visa holder may not seek extension, change status or be readmitted unless the alien has resided and been physically present outside the US for the immediate prior year. If these are read in conjunction, the alien has already been counted against the cap when he was first petitioned and approved for H1B status.

Alien would not be eligible for another full 6 years since alien has not been admitted to the US and then left and resided abroad for 1 year. Alien has never been admitted so the allowance of 8 CFR 214(h)(13)(iii)(A) for a renewed 6 years would not apply to alien.

USCIS will take into consideration whether an H-1B visa number has already been counted against the cap based on a previous H-1B approval if the forms are clearly marked with this request. USCIS advises that the open space in Part 2 of Form I-129 can be used to make a note such as “Not Subject to H-1B cap; previous H-1B approved SRC # ________” or something similar. The same should be clearly marked on the Form H-1B Data Collection Supplement at Part C. Furthermore, a copy of the previous H-1B visa I-797 approval notice should be enclosed and an explanation of why the H-1B should not be counted against the cap can also be stated on the Employer cover letter.

The H1B Petition process is complicated, make sure to consult an experienced Attorney when attempting to file for your workers.