Visa Lawyer Blog

Australian Immigration Minister Chris Evans announced recently a new agreement between Australia and New Zealand to improve identity checks and border security. Australia and New Zealand recently signed a memorandum of understanding [MoU] to share biometric data, an agreement that will further strengthen our nations' border security. Biometrics is widely used in the international community as an effective tool to manage visa and immigration processes, improve identity management and combat fraud.

At the Five Countries Conference (FCC) in London a memorandum of understanding was signed between Australia and New Zealand. The Conference enables Five data sharing Countries to exchange information and agree a way forward to improve border security. FCC data-sharing helps to establish the true identity of people whose identities or nationalities were previously unknown or uncertain, and has been used in Australia to check the identities of irregular maritime arrivals, other people in immigration detention and illegal foreign fishers. Since 2006, more than 100 000 fingerprint records have been exchanged, helping Australia and FCC partner countries to establish the true identities and immigration histories of people whose identities were unknown or uncertain. Collection and sharing of biometric data is a proven tool in the fight against identity fraud and can prevent unlawful entrants' efforts to thwart Australia's border and visa processes.

The American Immigration Lawyers Association (AILA) has applauded the brainstorm of ideas in a draft memo from the United States Citizenship and Immigration Services (USCIS). The now-public draft, leaked without the permission of USCIS, examines the legal framework of immigration and explores possible solutions. AILA commends this reflection of the pursuit of the rule of law and the willingness of USCIS leadership to take up this thorough examination.

"We have in the past seen many attempts to scour the law to find justification for draconian, and ultimately unhelpful, ways to make immigrants' lives miserable," said AILA president David Leopold. "This draft document tries to think through ways to make the legal immigration system work in support of sensible law enforcement. It respects the law and respects the people who must deal with the law. For that, the administration is to be congratulated, even if none of the proposals is ever carried out." He added that many of these proposals should be carried out. Long-needed regulations to help children and crime victims caught in the system should be published. Men and women fighting for America in the U.S. military should have the comfort of knowing that their families are safe from being deported. Immigration policies that encourage investment in America and creation of jobs should be emphasized and expanded. These are but a few of several excellent proposals in this document.

"We will never effectively address illegal immigration until we develop a legal immigration system that actually works and that offers people a realistic alternative to illegality," added AILA Executive Director Crystal Williams. "Congress has thus far refused to act. Administration officials at least are trying to find ways to help fill this vacuum," Williams stated.

Citing security concerns, the U.S. Consulate General in Ciudad Juarez is closed on July 30, 2010 and has cancelled all scheduled appointments and services for that date. Information on date of reopening will be announced by warden notice and posting on their web page.

American citizens with appointments for passport or other services may make a new appointment via the Consulate website below. For non-immigrant visa applicants, the call center will call or e-mail applicants to reschedule appointments. Alternatively, applicants may re-schedule non-immigrant visa appointments without being charged by calling 01-800-719-2525. Immigrant visa applicants should be advised that the medical clinics where they will receive their medical exams may also close on short notice. Immigrant visa applicants will be rescheduled for their interviews at a later date.

Yesterday we reported on the court blocking parts of the AZ law, today AZ fired back. Arizona asked an appeals court Thursday to lift a judge's order blocking most of the state's immigration law as the city of Phoenix filled with protesters, including about 50 who were arrested for confronting officers in riot gear.

Republican Gov. Jan Brewer called U.S. District Judge Susan Bolton's Wednesday's decision halting the law "a bump in the road," and the state appealed to the 9th U.S. Circuit Court of Appeals in San Francisco on Thursday.

Outside the state Capitol, hundreds of protesters began marching at dawn, gathering in front of the federal courthouse where Bolton issued her ruling on Wednesday. They marched on to the office of Maricopa County Sheriff Joe Arpaio, who has made a crackdown on illegal immigration one of his signature issues.

One way or another this controversial law will not have an easy ride.

Earlier today, a federal judge blocked key portions of Arizona’s controversial immigration enforcement law from going into effect. In her ruling, United States District Court Judge Susan Bolton stated that some portions of Arizona’s immigration law will be able to go into effect today, as scheduled. However, the judge issued a preliminary injection against the parts of the law that call for police officers to check and verify people’s immigration status when they are enforcing other. In addition, the preliminary injunction also took issue with the part of the law that would require immigrants to carry documentation of their immigration status at all times. Both of these parts of the law have been placed on hold while Judge Bolton listens to various challenges to the law.

“There is a substantial likelihood that officers will wrongfully arrest legal resident aliens,” wrote Judge Bolton. “By enforcing this statute, Arizona would impose a ‘distinct, unusual and extraordinary’ burden on legal resident aliens that only the federal government has the authority to impose.”

Arizona’s immigration enforcement law was adopted in April 2010 and has caused much controversy from both sides of the immigration debate. Opponents of the law have prevailed for now: The provisions that most angered opponents will not take effect, including sections that required officers to check a person's immigration status while enforcing other laws.

The report, "Deportation by Default," documents cases of non-citizens who could not understand questions, were delusional, couldn't tell the date or time, and didn't understand the concept of deportation for example, saying they wanted to be deported to New York. Thousands of mentally disabled immigrants are entangled in deportation proceedings each year with little or no legal help, leaving them distraught, defenseless and detained as their fates are decided. Their plight is detailed in a report issued Sunday by Human Rights Watch and the American Civil Liberties Union, who exhort federal authorities to do better.

Shortcomings outlined by the two groups include no right to appointed counsel, inflexible detention policies, insufficient guidance for judges on handling people with mental disabilities, and inadequately coordinated services to aid detainees while in custody. No one knows what to do with detainees with mental disabilities, so every part of the immigration system has abdicated responsibility. The result is people languishing in detention for years while their legal files and their lives are transferred around or put on indefinite hold.

Arizona has been hit with several lawsuits and dozens of business boycotts since the law was passed, and musicians have also gotten in on the act: Many are canceling shows in the state, while others are voicing their opposition through music.

Arizona is no stranger to musical protests over its politics. In 1991, Public Enemy's "By the Time I Get to Arizona" lambasted Arizona's decision not to recognize the holiday honoring Martin Luther King Jr. Stevie Wonder, Bill Cosby and others boycotted the state.

"We have to intervene in order to do whatever we possibly can to limit that state's ability to function and implement the law," Zack de la Rocha, of the band Rage Against the Machine, says in a Web video he's produced. He's organized a boycott of Arizona called The Sound Strike. So far, he's recruited artists ranging from Kanye West and Nine Inch Nails to Latino bands such as Los Tigres del Norte. Jorge Hernandez says Los Tigres del Norte's decision to join the boycott was personal: If the Los Angeles musicians were to come to Arizona, he says, they worry that police could detain them.

Read more...

On July 20, 2010, the House of Representatives passed, by voice vote, the International Adoption Harmonization Act of 2010, to amend the Immigration and Nationality Act with respect to adopted alien children.

The International Adoption Harmonization Act of 2010, HR 5532, will allow an adopted child to legally immigrate so long as the adoption is completed and the petition is filed before the child turns 18. The current age limit is 16. The bill would also restore an international adoption exemption that was inadvertently eliminated when the U.S. joined the Hague Convention on Intercountry Adoptions.

The bill was sponsored by Immigration Subcommittee Chairwoman, Zoe Lofgren (D-CA).

According to the San Diego Union Tribune, San Diego’s small businesses are heading to bankruptcy court at a higher rate than last year, and the city is among the Top 10 metropolitan areas in the country based on the number of filings.

The number of small businesses filing for bankruptcy in the San Diego-Carlsbad-San Marcos region was 387 in the first quarter of 2010, giving it the sixth-highest number of bankruptcies.

In the San Diego metropolitan area, the number of small businesses that filed for bankruptcy was up 12 percent, compared with the same period last year.

At the same time our office noticed an increase in E2 visa filings for foreign investors seeking to start a business in San Diego County.

The E-2 treaty investor visa is a nonimmigrant visa that allows foreign entrepreneurs from treaty nations to enter into the U.S. and carry out investment and trade activities. Investment activities include purchase of a new business. The investment must be significantly proportional to the total investment, that is, usually more than half the total value of the enterprise or, if a new business, an amount normally considered necessary to establish the business.

Aliens from Treaty countries who have made a substantial investment in the United States may qualify for E-2 Treaty Investor status. There is no set minimum level of investment, which may qualify for E-2 status, but the lower the investment the less likely one is to qualify. Therefore, the level of investment must be such that it is sufficient to justify presence of the treaty national in the United States.

Immigrants have an ever-increasing role in the creation of small businesses. Immigrant entrepreneurship is widely recognized as having a significant impact on traditional industries such as retail, ethnic restaurants and markets, and garment manufacturing. Our clients n the past few months formed restaurants, service businesses as well as technology companies. All the new companies hired American workers immediately and so far all are doing very well.

Our suggestion for any suffering business, before closing the doors, try to reach out to an E2 potential investor, there is always someone looking for opportunities in the US. Email me and I will be happy to connect you with a willing and able investor.

The Obama administration's challenge to the controversial Arizona immigration law goes before a federal judge Thursday. The Justice Department's lawsuit, seeking to stop the law from going into effect, is one of two challenges scheduled for a hearing Thursday.

The first challenge by a group of more than 100 individuals and civil rights groups will be heard Thursday morning. In the afternoon, the Justice Department's lawsuit will have a hearing in a Phoenix federal courtroom.

Both cases will be in front of U.S. District Judge Susan Bolton, according to court documents. The law, signed by Arizona Gov. Jan Brewer in April, requires police to question people about their status if they have been detained for another reason and if there's reason to suspect they're in the United States illegally. It also targets those who hire illegal immigrant laborers or knowingly transport them.

Department of Homeland Security (DHS) and Department of Defense (DOD) today announced that National Guard deployments to the Southwest border will begin on Aug. 1 as part of the administration’s unprecedented efforts to combat the transnational criminal organizations that smuggle weapons, cash and people across our Southwest border. The President has also requested $600 million in supplemental funds for enhanced border protection and law enforcement activities, which are critical to our ongoing efforts.

“Over the past year and a half, this administration has pursued a new border security strategy with an unprecedented sense of urgency, making historic investments in personnel, technology and infrastructure,” said Secretary Napolitano. “These troops will provide direct support to federal law enforcement officers and agents working in high-risk areas to disrupt criminal organizations seeking to move people and goods illegally across the Southwest border.”

In May, the President authorized the deployment of up to an additional 1,200 National Guard troops to the Southwest border to provide support for intelligence surveillance and reconnaissance, and counternarcotics enforcement—providing support for one year as part of the administration’s unprecedented efforts to crack down on transnational smuggling and cartel violence, as CBP continues to recruit and train additional officers and agents to serve on the Southwest border. In deploying these personnel, the National Guard Bureau is operating under a request for assistance from DHS. Border security is a law enforcement mission, and these troops will augment the Administration's efforts to crack down on the drug cartels and transnational criminal organizations that operate along our Southwest border.

The H-2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary non-agricultural jobs. As of 07/16/10, USCIS receipted 30,154 petitions, toward the 47,000 beneficiaries target for the second half of the fiscal year. This count includes 28,539 approved and 1,615 pending petitions.

There is a statutory numerical limit, or “cap,” on the total number aliens who may be issued a visa or otherwise provided H-2B status (including through a change of status) during a fiscal year. Currently, the H-2B cap set by Congress is 66,000 per fiscal year, with 33,000 to be allocated for employment beginning in the 1st half of the fiscal year (October 1 - March 31) and 33,000 to be allocated for employment beginning in the 2nd half of the fiscal year (April 1 - September 30). Any unused numbers from the first half of the fiscal year will be made available for use by employers seeking to hire H-2B workers during the second half of the fiscal year. There is no “carry over” of unused H-2B numbers from one fiscal year to the next.

The H2B visa is available to employers of foreign workers not working in the agricultural field. This visa is only available for work that is temporary in nature. For H2B purposes, that means:
* Recurring seasonal need;
* Intermittent need;
* Peak-load need; and
* One time occurrence.

The employer must also prove that there are no unemployed US workers willing or able to do the work. This is established through the state's employment agency using a labor certification process. This process requires a recruitment campaign, including advertising in a local newspaper for available temporary workers. The duration of the visa is limited to the employer's need for the temporary workers. The maximum authorized period is one year. However, the employer may extend the duration of the visa up to three years -- but with a very close watch from the immigration authorities.

U.S. Department of Homeland Security Secretary Janet Napolitano today traveled to Laredo, Texas to announce more than $47 million in fiscal year 2010 Operation Stonegarden grants for the Southwest border states. She also met with law enforcement leaders to discuss the Department’s efforts to support state, local and tribal law enforcement in protecting communities from cross-border threats. She said, "Over the past year and a half, this Administration has pursued a new border security strategy with an unprecedented sense of urgency, making historic investments in personnel, technology and infrastructure while combating transnational criminal organizations that smuggle weapons, cash and people across our shared border with Mexico.” She said that Operation Stonegarden is one part of our overall strategy to provide state, local and tribal law enforcement on the frontlines the resources they need to confront the complex and dynamic challenges that exist along our borders.

The fiscal year 2010 Operation Stonegarden grants—totaling $60 million nationally—support 15 border states and the Territory of Puerto Rico to enhance the capabilities of federal, state, local and tribal law enforcement agencies to secure U.S. borders and territories. Funds were allocated using CBP’s sector-specific border risk methodology based on threat, vulnerability, miles of border and border-specific law enforcement intelligence. Nearly 80 percent of the fiscal year 2010 funding will go to Arizona, California, New Mexico and Texas—up from 59 percent in 2008. Operation Stonegarden grants can be used to support law enforcement personnel, overtime, and other related costs to increase operational readiness.

Here is the current H-1B Cap count of FY 2011:

Cap Type - H-1B Regular Cap
Cap Amount - 65,000
Cap Eligible Petitions - 24,800
Date of Last Count - 7/9/2010

Cap Type - H-1B Master's Exemption
Cap Amount - 20,000
Cap Eligible Petitions - 10,600
Date of Last Count - 7/9/2010

We will keep you posted on further development on this.

U.S. Department of State has released the new visa bulletin for August 2010 on July 12, 2010.

Here is the crux:
EB-1 category is current for both Chinese and Indian nationals.
EB-2 category, cut-off dates moved forward more than three months for Chinese nationals (from November 22, 2005 to March 1, 2006), and moved forward five months for Indian nationals from October 1, 2005 to March 1, 2006.
EB-3 category, dates moved forward from August 15, 2003 to September 22, 2203 and from November 22, 2001 to January 1, 2002 for Chinese and Indian nationals respectively

In 2008, 2,060 PERM applications were submitted to the Atlanta processing center in 2008 while the number of applicants decreased to 1,322 in 2009. Cut-off dates, for the most part, have continued to move forward. For Chinese and Indian recipients of EB-2s, the cut-off date this month moved up considerably. We hope to see the same trend in following months too.

A great update from AILA to our anxious EB3 applicants and blog readers. Many I-140 denials came out of the Service Centers in the past few months. These denials resulted when applicants failed to properly distinguish the required qualifications between professionals and skilled workers on the new Form I-140 which was introduced on January 6, 2010.

Prior versions of Form I-140 had only one box to check for bachelor degreed professionals and skilled workers, and did not make a distinction between the two classifications. Similarly, there is no distinction in the availability of visas as both are classified in the employment-based, third preference category. Thus, the differences between the professional with a Bachelor's degree and a skilled worker were without a distinction prior to the introduction of the new form earlier this year.

However, this new form does require the petitioner to distinguish between a professional with a Bachelor's degree and a skilled worker. The definition of professional is set forth in the regulations at 8CFR 204.5(l)(2), which states:

Professional means a qualified alien who holds at least a United States Baccalaureate degree or a foreign equivalent degree and who is a member of the professions. (Italics in original, emphasis added)

The application of this definition by NSC has resulted in the strict review of whether or not a foreign degree is the equivalent of a U.S. Bachelor's degree and does not recognize experience as the equivalent of a degree. Thus, the standard to determine equivalence is often different from the standards set forth on the ETA 9089 which may establish alternative requirements that equate a pre-determined level of experience as a substitute for a degree.

This standard is similar to the second preference regulation which also requires a specific degree that is the academic equivalence to meet the requirements of the second preference (EB-2). Lawyers should therefore carefully review qualifications to determine whether the beneficiary meets the qualifications of a professional, pursuant to Section 203(b)(3)(ii), or is a skilled worker under Section 203(b)(3)(i).

A denial on this issue will not preclude the filing of a second I-140 petition using the same approved PERM application but classified as a skilled worker. The cover letter and materials with a second I-140 petition should reference the first petition, include a copy of the denial, and advise NSC that the original PERM Application Form ETA 9089 can be located in the original file. The cover letter should also explain why the second petition has corrected the deficiency upon which the first petition was denied. The expiration of the Certified ETA-9089 should not preclude filing a second petition provided the first petition was filed prior to the 180-day expiration date.

The U.S. Department of Labor launched an online registry allowing the public to retrieve information about temporary agricultural jobs that fall under the H-2A program. The new tool was developed in compliance with regulations implemented by the department on March 15.

The H-2A job registry provides a single, easily searched point of entry for the public to retrieve information about agricultural jobs filed under the H-2A program. It offers a range of customizable searches and gives users the ability to view, print or download information about agricultural jobs easily and without the need to file a request under the Freedom of Information Act. The tool will display all active agricultural jobs until 50 percent of the period of employment has elapsed, and it will offer an archive of certified agricultural jobs for up to five years.

The Labor Department estimates that more than 700 H-2A applications — for more than 13,000 workers — have been received since March 15. As this system goes live today, nearly 450 active H-2A job orders become available to the public.

To access the H-2A job registry, click here .

Temporary Protected Status and Expired Employment Authorization Documents

One must accept a Temporary Protected Status (TPS) beneficiary's expired Employment Authorization Document (EAD) if DHS has automatically extended its validity in a Federal Register notice. Automatically extended EADs are listed on the USCIS web site. EADs issued to TPS beneficiaries will include one of two category codes: “A-12” or “C-19.” You must not require an employee to provide proof that he or she is a national of a country that has been designated for TPS.

When creating a new case in E-Verify for newly hired TPS beneficiaries, select “Employment Authorization Document (Form I-766)” as the document presented and use the date to which the EAD was automatically extended as the expiration date. We recommend that you read the TPS information on the USCIS web site carefully, as the EAD automatic extension is usually shorter than the TPS extension date.

When re-verifying an existing TPS beneficiary’s employment authorization in Section 3 of Form I-9, write down the date to which the EAD was automatically extended as the expiration date. Never use E-Verify to re-verify an existing employee’s employment authorization.

Once the automatic extension of the EAD expires, re-verify the employee’s employment authorization again in Section 3 of either the original Form I-9 or a new Form I-9. The employee may choose to present a new, unexpired EAD, or any other document from List A or C of Form I-9 that shows he or she continues to be authorized to work in the United States. Federal contractors with the FAR E-Verify clause must follow special rules for verifying new and existing employees, including employees in TPS status. Federal Contractor needs to check the Supplemental Guide for Federal Contractors for more information.

USCIS has updated following on July 2, 2010 about the H-1B Cap Count

Cap Type - H-1B Regular Cap
Cap Amount - 65,000
Cap Eligible Petitions - 24,200
Date of Last Count - 7/2/2010

Cap Type - H-1B Master's Exemption
Cap Amount - 20,000
Cap Eligible Petitions - 10,400
Date of Last Count - 7/2/2010

In response to the query for slow down of iCert portal until July 1, 2010, OFLC has informed that they are aware about the same and working on it. Finally the iCert Portal was up and ready to work since July 2, 2010.

We like to take this opportunity to intimate our readers that July 1, 2010 onwards the OES wage survey is using the revised data. Now, one has to mention year 2010 instead of 2009 as the wage source. Your LCA will not be approved if correct source is not mentioned.

I am writing this Blog entry from my conference of the American Immigration Lawyers Association in Washington DC. In this past few days Immigration lawyers from across the nation gathered here in DC to share ideas and discuss our Immigration laws and policy. On Thursday not so far from our conference, the President (maybe he planned it), discussed Immigration reform for the first time in months.

President Obama stepped back into the political minefield of immigration policy Thursday, arguing for big changes in what he called a "broken" immigration system. But he warned that no such changes are possible without some Republican support.

From months now, Latino activists have been pushing the president to make good on his promise to overhaul the nation's immigration system. Thursday, in a speech at American University here in DC, Mr. Obama took up the challenge.

The speech followed meetings earlier in the week with immigration activists and Latino lawmakers.

To those concerned with security along the southern border with Mexico, Mr. Obama said, he's already put more boots on the ground than ever before. But, he argued, border enforcement by itself will not stop the flow of illegal immigrants.

Immigration is back in the spotlight now thanks to a new Arizona law requiring police to question anyone they suspect of being in the country illegally. Mr. Obama says he understands the frustration that led to that law, but he thinks Arizona went too far. His speech helped to lay the groundwork for an expected legal challenge by the Justice Department.

These are exciting times for all of us at the Immigration Bar, and being here in Washington makes you feel like part of the debate. I promise to keep you updated as we hear from USCIS officials and other government representatives on upcoming changes and other issues.

This memorandum outlines the civil immigration enforcement priorities of U.S. Immigration and Customs Enforcement (ICE) as they relate to the apprehension, detention, and removal of aliens. These priorities shall apply across all ICE programs and shall inform enforcement activity, detention decisions, budget requests and execution, and strategic planning.
A. Priorities for the apprehension, detention, and removal of aliens
In addition to our important criminal investigative responsibilities, ICE is charged with enforcing the nation’s civil immigration laws. This is a critical mission and one with direct significance for our national security, public safety, and the integrity of our border and immigration controls. ICE, however, only has resources to remove approximately 400,000 aliens per year, less than 4 percent of the estimated illegal alien population in the United States. In light of the large number of administrative violations the agency is charged with addressing and the limited enforcement resources the agency has available, ICE must prioritize the use of its enforcement personnel, detention space, and removal resources to ensure that the removals the agency does conduct promote the agency’s highest enforcement priorities, namely national security, public safety, and border security.

Priority 1. Aliens who pose a danger to national security or a risk to public safety
The removal of aliens who pose a danger to national security or a risk to public safety shall be ICE’s highest immigration enforcement priority. These aliens include, but not limited to:
• aliens engaged in or suspected of terrorism or espionage, or who otherwise pose a danger to national security; • aliens convicted of crimes, with a particular emphasis on violent criminals, felons, and repeat offenders; • aliens not younger than 16 years of age who participated in organized criminal gangs; • aliens subject to outstanding criminal warrants; and • aliens who otherwise pose a serious risk to public safety.

Priority 2. Recent illegal entrants
In order to maintain control at the border and at ports of entry, and to avoid a return to the prior practice commonly and historically referred to as “catch and release,” the removal of aliens who have recently violated immigration controls at the border, at ports of entry, or through the knowing abuse of the visa and visa waiver programs shall be a priority.

Priority 3. Aliens who are fugitives or otherwise obstruct immigration controls
In order to ensure the integrity of the removal and immigration adjudication processes, the removal of aliens who are subject to a final order of removal and abscond, fail to depart, or intentionally obstruct immigration controls, shall be a priority.

Continue reading "MEMO of ICE: Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens" »

The President was passionate about the need to pass Comprehensive Immigration Reform asserts while speaking to 24 American service members as they became citizens USA in April. Over the years, many have attempted to confront this challenge, but passions are great and disagreements run deep. Yet surely we can all agree that when 11 million people in our country are living here illegally, outside the system, that’s unacceptable. The American people demand and deserve a solution. And they deserve common-sense, comprehensive immigration reform grounded in the principles of responsibility and accountability.

As he explained, and as his record shows, the government has a responsibility to enforce the law. But as he also explained, the only way to truly fix our broken immigration system is with a comprehensive federal approach.

The President will make clear that this is a top priority and call on Congress to tackle it in a major speech at American University at 10:45AM EDT today.