Visa Lawyer Blog

The Kentucky Consular Center (KCC) has begun to audit certain nonimmigrant petitions filed with U.S. Citizenship and Immigration Services (USCIS) to verify information submitted in the petitions. Additionally, KCC is piloting a program wherein information about the beneficiaries and the proposed U.S. employment is verified. KCC has made and will continue to make unannounced phone calls to petitioners to verify such information.

Questions include, but are not limited to:

1. Whether the petitioner, in fact, submitted the petition;
2. When the petitioner was incorporated;
3. The physical location of the petitioner;
4. Number of employees;
5. Names of shareholders;
6. Location of Attorney of Record;
7. General information regarding the petitioner's operations and business plan.

Employers should be consistent when submitting information to the government, keep good records on file and update counsel of any corporate changes.

USCIS has released a new interim memo which clarified the method of analysis by USCIS officers that they must use in adjudicating Form I-140, Immigrant Petition for Alien Workers, filed for 1) Alien of Extraordinary Ability EB1A cases; 2) Outstanding Professor or Researcher EB1B cases; and 3) Alien of Exceptional Ability EB2 cases. The requirements for these types of I-140 petitions have not changed but this new method of evaluating the merits of cases may adversely impact those applying for immigration in these categories. This interim memo is a response to the U.S. 9th Circuit Court of Appeals decision in Kazarian v. USCIS on March 4, 2010. In the Kazarian ruling, the court held that USCIS was being too strict in deciding EB1A petitions by requiring extensive citation evidence and specific types of peer review work in order to meet the EB1A criteria. However, the court did rule that USCIS could consider evidence such as extensive citations in making a final merits review of the case to determine whether an alien is at the very top of his or her field.

In essence, the new USCIS interim memo breaks the evaluation process up into two parts – 1) evaluating whether the applicant meets the baseline criteria for the immigration category and 2) determining whether the applicant’s evidence demonstrates the required high level of expertise for the immigration category. In the second part of the review process the USCIS will evaluate the evidence to see if, as a whole, it proves by a preponderance of the evidence that the applicant is at the very top of his or her field of endeavor. This article will explain how the evaluation will be handled for affected EB1A and EB1B I-140 petitions.

For the first step in evaluating EB1A cases, the officer will check to see if evidence is provided to show that the applicant has met at least three of the following ten criteria:

1. Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

2. Documentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;

3. Published material about the alien in professional or major trade publications or other major media relating to the alien's work in the field for which classification is sought;

4. Evidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specialization for which classification is sought;

5. Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;

6. Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media;

7. Evidence of the display of the alien's work in the field at artistic exhibitions or showcases;

8. Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;

9. Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field;

10. Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

After the officer has determined by a preponderance of the evidence that at least three of these criterion have been met, he or she moves into the second part of the review. For EB1A cases, the second part of the review involves determining whether the applicant has achieved a level of expertise indicating that he or she is one of a small percentage who has risen to the very top of the field of endeavor, he or she has shown sustained national or international acclaim, and his or her achievements have been recognized in the field of expertise. This basically means that the officer will look at all the evidence as a whole and determine if the case is approvable. This new standard may decrease the number of approved cases since, by implementing this secondary review process, USCIS officers have the discretion to deny cases even if three EB1A criteria have been technically met.

New Evaluation Process For EB1B Cases

For the first step in evaluating EB1B cases, the officer will check to see if evidence is provided to show that the applicant has met at least two of the following six criteria:

1. Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

2. Documentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;

3. Published material about the alien in professional or major trade publications or other major media relating to the alien's work in the field for which classification is sought;

4. Evidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specialization for which classification is sought;

5. Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;

6. Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media;

For the second part of the review for EB1B cases, the officer will make a final merit determination on whether or not the applicant has, by a preponderance of the evidence, demonstrated that he or she is recognized internationally as outstanding in a specific academic area. Therefore, simply showing that two of the criterion have been met does not necessarily mean that the case will be approved. This, in turn, greatly expands the USCIS officer’s discretion in deciding which cases to approve.

Prior to this USCIS memo, the evidence was evaluated only in the context of meeting the necessary criteria for each type of case. Now by adding a second “final determination on the merits” phase of review, USCIS officers have more flexibility in denying cases or issuing Request For Evidence notices even if the baseline criteria has been met. This memo essentially gives the USCIS officer wider discretion in adjudicating EB1 cases since it has added a new level of review which follows a fairly subjective standard. As a result it is very possible that immigration through the EB1A, EB1B, and EB2 Exceptional Ability categories will become more difficult than it has been in the past. However, due to the recent immigrant visa retrogression for people born in India and China, there is an increasing number of Chinese and Indians who choose to apply through the EB1A or EB1B categories rather than wait for visa availability in the EB2 category. Hence, we recommend to consult a qualified immigration professional before proceeding with EB1 and EB2 cases.

ICE officials provided a copy of a new policy memo dated Aug. 20 that instructs government attorneys to review the court cases of people with pending applications to adjust status based on their relation to a U.S. citizen. ICE estimates in the memo that the effort could affect up to 17,000 cases.

The Department of Homeland Security is systematically reviewing thousands of pending immigration cases and moving to dismiss those filed against suspected illegal immigrants who have no serious criminal records, according to several sources familiar with the efforts.

Opponents of illegal immigration were critical of the dismissals.

"They've made clear that they have no interest in enforcing immigration laws against people who are not convicted criminals," said Mark Krikorian, executive director of the Center for Immigration Studies, which advocates for strict controls.

In a June 30 memo, ICE Assistant Secretary John Morton outlined the agency's priorities, saying it had the capacity to remove about 400,000 illegal immigrants annually — about 4 percent of the estimated illegal immigrant population in the country. The memo outlines priorities for the detention and removal system, putting criminals and threats to national security at the top of the list.

We expect more cases terminations across the United States in the next several months.

This is a recent USCIS update announcing that any U.S. citizen seeking to adopt a Nepali child, whose case is not affected by the suspension of processing cases involving Nepali children claimed to have been found abandoned, should file the Form I-600 with the U.S. Embassy in Kathmandu.

This change in the filing location for the Form I-600 petitions applies to two groups of prospective adoptive parents who are not affected by the suspension. The first group is those who received a referral letter from the Government of Nepal’s Ministry of Women, Children and Social Welfare before Aug. 6, 2010, informing them of a proposed match of an abandoned child. The second group is those who seek to adopt Nepali children who were relinquished by known parent(s) and whose identity and relationship can be confirmed.

USCIS strongly encourages prospective adoptive parents to follow this procedure for their own benefit, based on growing concerns about unreliable documents, irregularities in the methods used to identify children for adoption in Nepal, and the resulting difficulties in classifying those children as orphans under U.S. immigration law. Please see the Aug. 6, 2010 announcement online regarding the suspension.

Read more here...

U.S. Citizenship and Immigration Services will celebrate the grand opening of its new field office and application support center in Bedford on Thursday, Sept. 2, with a ribbon-cutting ceremony, naturalization ceremony and tours of the facility. USCIS Associate Regional Director Shelley Goodwin will preside during the naturalization ceremony and will administer the Oath of Allegiance to 25 citizenship candidates. She will be joined by USCIS’ Boston District Director Denis Riordan and USCIS’ Manchester Field Office Director Simon Abi Nader.

Gov. John Lynch will join USCIS and delivering remarks for the special naturalization ceremony. Joining USCIS for the ribbon-cutting ceremony will be Bedford Town Manager Russell Marcoux, Mayor of Manchester Ted Gatsas and Glenn C. Rotondo, acting regional administrator of General Services Administration, New England region.

The new office, at 9 Ridgewood Road, will provide a range of immigration services, including naturalization interviews, lawful permanent resident processing, fingerprinting and photographic services and is well-suited to serve the area’s immigrant community. The new facility replaces the former Manchester location on Canal Street. The new office is based on a national model for new USCIS office locations throughout the country.

The new building is being dedicated to Sgt. Major Abraham Cohn, Civil War Medal of Honor recipient. Cohn was born in 1832 in Guttentag, an East Prussian town. He immigrated to the U.S. in the mid-19th century and fought for the Union during the Civil War serving with the 6th New Hampshire Infantry Volunteers. He was awarded the Medal of Honor “for conspicuous gallantry” in the Battle of the Wilderness (May 6, 1864) and “for bravery & coolness” at the Battle of the Crater (July 30, 1864).

The 25 citizenship candidates originate from 13 countries: Bosnia-Herzegovina, Brazil, China, France, Iran, Kosovo, Malaysia, Pakistan, Poland, Russia, Sudan, Thailand and United Kingdom. The ribbon cutting will take place at 11 a.m. with the naturalization ceremony to follow at 1 p.m.

Great Analysis from AILA to share with our readers. PL 111-230 requires the submission of an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions postmarked on or after August 14, 2010. Petitioners subject to this new fee include employers with more than 50 employees in the U.S., for which 50% of their workforce is on H and L visas. The fee will remain in effect through September 30, 2014.

USCIS indicated that Vermont Service Center and California Service Center were instructed to hold any H or L petitions sent after that date, pending guidance on how to determine whether the petitioner is subject to the new fee. USCIS will be modifying the I-129 or H-1B Data Collection Form to include information on whether this fee applies.

In the interim, USCIS suggested that petitioners could proactively include a “certification” regarding the fee, including a notation of whether the fee is required in bold capital letters at the top of the cover letter. The sample certification that the petitioner is not obligated to pay the fee would be:

“[Name of employer] has over [insert total US employees] employees in the United States, of whom fewer than [insert number or percent] are H-1B or L nonimmigrants. As such, [name of employer] is not subject to the additional fees required under PL 111-230.”

We will update our readers as we receive more guidance on this new change.

USCIS updated its count of FY2011 cap-subject H-1B petitions and advanced degree cap-exempt petitions receipted. As of 8/20/10, approximately 33,900 H-1B cap-subject petitions were receipted. USCIS has receipted 12,600 H-1B petitions for aliens with advanced degrees. This is a major jump from the last update of August 13, 2010 where only 29,700 filings were reported.

Is this trend likely to continue? We think so, expect visas to run out by the early weeks of December.

Great Videos to share from the U.S. Consulate General in Ciudad Juarez on what to expect when going to the Consulate for a visa interview as well as a video on how to avoid people who engage in unlawful practices outside the consulate, such as people who sell false documents.

Here are links to both videos:

http://www.youtube.com/user/pasjuarez

http://www.youtube.com/user/pasjuarez#p/u/3/KCft0XrCBg8

Despite the deployment of thousands of Mexican soldiers and a reinforced contingent of Federal Police ostensibly to suppress the criminal gangs, violence has only worsened in Ciudad Juarez since January 2008, when the long-simmering drug war exploded in fury. More than 4,600 people have been slain, and anywhere from 30,000 to 420,000 people have fled from a city that was nudging 1.5 million inhabitants prior to the war, according to wildly varied estimates.

We always tell our clients to be very careful when spending time in the City before and during the visa interviews.

In the recent concluded 2010 AILA Annual Meeting, many attorneys shared their experiences which are similar to those experienced by our firm -a surge of H-1B RFEs. The California Service Center (CSC) has been especially tough or “ridiculously tough” in adjudicating H-1B applications, according to some attorneys. However, according to USCIS statistic information, only 17% of H-1B petitions filed at CSC have been issued RFEs, while 20% of H-1B petitions filed at Vermont Service Center (VSC) have been issued RFEs. This number reflects the total opposite situation of what we have experienced.

The new H-1B guidance issued by USCIS on January 8, 2010 has undoubted contributed to the surge of H-1B RFEs. This guideline tries to clarify what kind of standards and documents are used to determine whether an employee-employer relationship exists. However the guideline limits the opportunities of obtaining an H-1B visa for 3rd party off-site work, consulting firm practices, self-employed business owners, and agent-staffing company petitions. In evaluating petitions, USCIS uses key definitions provided by common law principles and Supreme Court decisions. Essentially, in order to qualify as an employer, the right to control when, where, and how a beneficiary does his/her job is key. This is different than actual control. However, in practice, USCIS relies heavily on evidence of actual control to determine the right of control. It is also the reason we have seen an increase of H-1B RFEs in petitions filed for 3rd party off-site work, consulting firm practices, self-employed business owners, and agent-staffing companies.

How do we deal with the surge of H1-B RFEs? Are those 3rd party off-site work, consulting firm work, self-employed, and agent-staffing company jobs totally out of the picture of H-1B visa holders? These are some tips that are helpful:

1. Complete the chain of documents starting from the actual Petitioner till the end-client;
2. Things get more complicated when there is one or two layer between you and end-client. Need to get letter from each mid-vendor;
3. Prepare the employment contract at the beginning of the process and be sure to clearly show the employer’s control;
4. In order to prove the control, please focus on the control of pay, day-to-day management, providing equipment and tools, and direct review of the employee;
5. If there is “consulting” involved, the following documents are needed: an employment contract, a contract with clients, a clients’ letter proving that the employer has the control of the employee, the employer’s handbook showing who is reviewing the employee’s work, and pay stubs;
6. Prepare initial H-1B filing the way you respond to the RFE—try to answer all possible RFE questions in the initial filing;

According to Public Law 111-230, which contains provisions to increase certain H-1B and L-1 petition fees. Public Law 111-230 requires the submission of an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions. The law became effective upon signing and will expire on September 30, 2014.

The additional fees apply to a petitioner that employs 50 or more employees in the United States and has more than 50 percent of its employees in the United States in H-1B or L (including L-1A, L-1B and L-2) nonimmigrant status.

The single additional fee, if applicable, is in addition to the base processing fee, the existing Fraud Prevention and Detection Fee, and any applicable American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee needed to file a petition for a Nonimmigrant Worker (Form I-129), as well as any premium processing fees, if applicable.

U.S. Citizenship and Immigration Services (USCIS) clarified yesterday several key issues regarding the new fees, including the following:

* USCIS will require the new fees for any petition postmarked on or after Aug. 14, 2010.
* USCIS recommends that all H-1B, L-1A and L-1B petitioners, as part of the filing packet, include the new fee or a statement outlining why this new fee does not apply. USCIS requests that petitioners include a notation of whether the fee is required in bold capital letters at the top of the cover letter. Payment should be made with a separate check.
* Any petition that is postmarked on or after August 14, 2010, that does not include the new fee or a statement outlining why the new fee does not apply may receive a Request for Evidence (RFE). This means that the agency may issue RFEs for H and L petitions that were filed within the past week where the employer has more than 50 employees.
* Petitioners meeting these criteria must submit the fee with an H-1B or L-1 petition filed:
o Initially to grant an alien nonimmigrant status described in subparagraph (H)(i)(b) or (L) of section 101(a)(15), or
o To obtain authorization for an alien having such status to change employers.
* In calculating how many employees are in H-1B or L status, an employer must count any employee in L-2 status who is working pursuant to an Employment Authorization Document (EAD). L-2 petitions, however, are not themselves subject to the new fee.
* The calculation of how many employees are in H-1B or L status must be made at time of each filing. H-1B and L visa holders who are part-time employees as well as those visa holders working in the United States but not on U.S. payroll are to be included in the calculation.
* In determining who the "employer" is when a petitioner is part of a broader corporate structure, the agency will look to the regulation at 8 C.F.R. § 214.2(h)(4)(ii). This leaves many unanswered questions, and a company should consult with counsel if this determination may affect whether the employer is subject to the new fees.
* USCIS is in the process of revising the Form I-129 (Petition for a Nonimmigrant Worker) and related instructions.
* The Department of State (DOS) has not issued guidance on how it will implement the fees for blanket L petitions, and USCIS refused to comment on that point or its discussions with DOS. Because USCIS made references to the new fees being tied to the existing fraud fee, which does apply to L-1 blanket petitions, we anticipate that DOS will impose the new fee on L-1 blanket petitions along lines similar to those imposed by USCIS.

We will provide more updates soon.

Many clients have been calling my office in the past week or so, they have been reporting denials of adjustment of status applications at the San Diego District Office for applicants, that entered under the Visa Waiver program and later overstayed. The overstay took place before marriage to a US Citizen and filing the adjustment of status case.

Is this is a new trend and change in procedures, yes it is! An internal email released July 9, 2010, (I saw it today at one of my interviews but was not allowed to take a copy out) released by the San Diego District Director to all Officers processing adjustments states the following:" To all Adjudicators effective immediately, any immigrants that have entered to the US under the Visa Waiver program and failed to file for adjustment of Status before the expiration of the 90 days authorized stay, MUST BE denied at the time of the interview." The email was not very long but that was the general idea.

But why and why now? Under the Visa Waiver Program, citizens of certain countries can enter the U.S. for 90 days without a visa with the condition that the visitor waive his or her right to contest removal (other than on the basis of asylum). The “no-contest” provision of the Visa Waiver Program is fundamental; if someone could enter under the VWP and then contest removability, it would defeat the whole purpose of the Program which is to make it easy for certain nationals to come to the U.S.

Here is a summary about the main case that started this mess, as written by James Tyler, Esq.:

On March 31, 2008, the 9th Circuit Court of Appeals issued a problematic case in a Visa Waiver overstay case that may now present difficulties for others who overstay their 90 day period of authorized stay and then want to adjust their status. The case is Momeni v. Chertoff (No. 07-55018).

In Momeni, the foreign national entered under the Visa Waiver Program, overstayed his 90 days, later married a U.S. citizen, later was taken into custody for having violated the terms of his stay, placed in removal proceedings, and only then filed to adjust his status based on his marriage to the U.S. citizen.

Momeni tried to convince the 9th Circuit that his case was similar to the case of Freeman v. Gonzales in which the foreign national married a U.S. citizen before entering the U.S. on the Visa Waiver Program and who then filed to adjust her status during the 90 day period of her authorized stay. In Freeman, the same 9th Circuit ruled that the “no-contest” provision of the Visa Waiver program was superseded by Freeman’s legitimate opportunity to apply for adjustment of status, since she was eligible to adjust her status the very day she arrived in the U.S. because of her already-existing marriage to a U.S. citizen..

The Court said the cases were very different: “Freeman married before the 90 days expired (and before the particular trip to the United States), whereas Momeni married
after his 90 days expired; Freeman applied for adjustment of status during the 90 days, whereas Momeni applied after the 90 days expired. These distinctions disqualify Momeni
from circumventing the Visa Waiver Program’s no contest clause by means of adjustment of status.” The Court was clearly concerned that it would open a floodgate of applicants if it allowed Momeni to adjust under these circumstances in which he clearly violated the terms of the Visa Waiver Program.

The result, of course, is very problematic for Mr. Momeni but it also may be problematic for others in the future. Precedential opinions from a federal Court of Appeals (especially one like the 9th Circuit that is considered to be generally sympathetic to a wide range of foreign nationals who are trying to remain in the United States) are often followed by other federal Courts of Appeals. Also, the reasoning of a precedential opinion can be used by the government to create formal policy or to issue formal memos or guidance that then controls in other similar future situations.

Up until last week, where a Visa Waiver entrant marries a U.S. citizen and then files to adjust status based on that marriage before being placed in removal proceedings for having overstayed, USCIS has been open to approving the adjustment of status application. Now, after the recent email and citing Momeni, USCIS in San Diego and in other cities take the position that only adjustment applications filed within the first 90 days of arrival (as in Freeman) are approvable and that if you wait until after the 90 days or if you wait until after you receive a Notice to Appear for Removal before you file your adjustment application, case will be denied.

What is our solutions to the Visa Waiver applicants that have overstayed and are pending adjustment? Fight each cases preferably before it gets to court. Each USCIS office have wide discretion and if the correct arguments are presented to the officer and supervisor in charge, they may be willing to allow adjustment. I fee that this is unfair, but we have to work with the system.

According to KPBS, A bill to strengthen the U.S.-Mexico border could be a mixed blessing for San Diego. That's because paying for more for border security will require a hike in H1B visas.

The H-1B is a non-immigrant visa in the United States under the Immigration and Nationality Act, section 101(a)(15)(H). It allows U.S. employers to temporarily employ foreign workers in specialty occupations. If a foreign worker in H-1B status quits or is dismissed from the sponsoring employer, the worker can apply for a change of status to another non-immigrant status, find another employer (subject to application for adjustment of status and/or change of visa), or must leave the US.

The regulations define a “specialty occupation” as requiring theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, biotechnology, medicine and health, education, law, accounting, business specialties, theology, and the arts, and requiring the attainment of a bachelor’s degree or its equivalent as a minimum (with the exception of fashion models, who must be "of distinguished merit and ability".) Likewise, the foreign worker must possess at least a bachelor’s degree or its equivalent and state licensure, if required to practice in that field.

Duane Roth, CEO of the biotech support group Connect, said that could make it more difficult for San Diego businesses to hire qualified workers. He said higher costs for H1B visas may also encourage more companies to outsource.

"A company may consider whether it's better to open a facility in a foreign country and hire the workers that are already there, versus the ability to bring some here to fill the opening jobs," said Roth.

He said the U.S. education system is not producing enough scientists and engineers to staff high-tech companies in San Diego.

I feel that another H1B fee hike will be a death blow to the possibility of retaining talented workers in the US and for small US companies to expand business.

Read the KPBS article here

The Visa Waiver Program (VWP) enables nationals of 36 participating countries to travel to the United States for tourism or business (visitor [B] visa purposes only) for stays of 90 days or less without obtaining a visa. The program was established to eliminate unnecessary barriers to travel, stimulating the tourism industry, and permitting the Department of State to focus consular resources in other areas. VWP eligible travelers may apply for a visa, if they prefer to do so. Nationals of VWP countries must meet eligibility requirements to travel without a visa on VWP, and therefore, some travelers from VWP countries are not eligible to use the program. VWP travelers are required to have a valid authorization through the Electronic System for Travel Authorization (ESTA) prior to travel, are screened at the port of entry into the United States, and are enrolled in the Department of Homeland Security’s US-VISIT program.

If you are a national of a Country on the US visa waiver scheme you will from 8 September 2010 have to pay a fee of $14 under the Electronic System for Travel Authorization (ESTA). From January 2009 everyone entering the US under the visa waiver scheme needs to apply under ESTA. So far there has been no fee for applying under ESTA.
ESTA takes up to 72 hours (3 days) to process and is valid for up to two years. So you should make sure that you leave enough time for the processing of your application. If you are thinking of visiting the US in the next two years and are a national of a visa waiver Country you should consider applying now and so avoid the new fee.

The visa waiver scheme remains a relatively straightforward option if you wish to visit the US for up to ninety days for business or pleasure. It is much easier to obtain than a full visit visa application made at the local US Embassy or Consulate.

The new $14 fee will be used for the following purposes:

* $10 for Travel promotion under the Travel Promotions Act (TPA)

* $4 to pay for the cost of administering ESTA.

Nationals of VWP countries must meet the guidelines listed in the section above in order to seek admission to the United States under the Visa Waiver Program. Travelers who do not meet these guidelines must apply for a visa.

A US visa must be requested from the VWP Countries applicants, if the traveler:

* Wants to remain in the United States for longer than 90 days, or envisions that they may wish to change their status (from tourism to student, etc.) once in the United States;
* Wants to work or study in the United States, travel as a working foreign media representative, come to the United States for other purposes not allowed on a visitor visa, or intends to immigrate to the United States;
* Is a national of the Czech Republic, Estonia, Greece, Hungary, Latvia, Lithuania, Malta, the Republic of Korea, or the Slovak Republic AND DOES NOT HAVE an electronic passport with an integrated chip;
* Is a national of one of the VWP countries not listed above AND DOES NOT have a machine-readable passport (MRP)(depending on the date the MRP was issued, renewed, or extended, it may also need to contain a digital photograph or an integrated electronic chip);
* Intends to travel by private aircraft or other non-VWP approved air or sea carriers to the United States. Click here to see the approved carriers list;
* Has a criminal record or other condition making them ineligible for a visa (see Classes of Aliens Ineligible for Visas).
* Has been refused admission to the United States before, or did not comply with the conditions of previous VWP admissions (90 days or less stay for tourism or business, etc.).

After some procedural stumbling, today the U.S. Congress passed a $600 million immigration enforcement supplemental appropriations package for additional border enforcement funding through the fiscal year 2011. The package was sponsored by a group of senators and representatives who had previously insisted on holding the line for a comprehensive approach to immigration reform. Having taken an enforcement-first step, the leader of that group, Senator Charles Schumer, said "Hopefully colleagues on both sides of the aisle will [now] come together and we can pass comprehensive reform".

Any effective, long-term solution to the immigration problem must: 1) require the undocumented population to come out of the shadows and earn legal status; 2) ensure that American businesses are able to hire the workers they need to help grow our economy while protecting U.S. workers from unfair competition; 3) reduce the unreasonable and counterproductive backlogs in family-based and employment-based immigration by reforming the permanent immigration system; and 4) protect our national security and the rule of law while preserving and restoring fundamental principles of due process and equal protection.

USCIS continues to streamline its processing of applications and petitions with the recent change in filing locations for several forms. The following forms should be mailed to USCIS lockbox facilities rather than directly to USCIS Service Centers:

* I-129F
* I-130
* I-140
* I-526
* I-539
* I-817

The updated filing instructions can be found on the latest versions of each form, which are available for free from USCIS.

This change became effective August 3, 2010.If you recently mailed an application. Applications already en route to the Service Centers will be automatically forwarded to the appropriate lockbox for a period of 45 days. After September 17th, packages (including fees) will be returned to the applicant along with a note explaining the new filing instructions.

The U.S. House of Representatives has passed a bill to steeply hike U.S. visa fees for skilled workers to raise $600 million in emergency funding to help secure the U.S.-Mexico border.

Senators passed a similar plan last week. But since the House version passed in a voice vote on Tuesday is slightly different it will go back to the Senate for final congressional approval before being signed into law by President Barack Obama. The measure proposes to raise the fees on H-1B visas for companies who have more than 50 per cent of their employees on such visas for highly skilled professionals from $320 to $2,320. Similarly the fee on L visas given to multi-national transferees from $320 to $2,570.

The additional fees from the popular H-1B and L visas programmes would be used to build operating bases and deploy unmanned surveillance drones to better secure the U.S.-Mexico border, one of the rare issues both Democrats and Republicans have agreed on. The legislation targets companies that lawmakers say "exploit" U.S. visa programmes. A summary of the Senate version listed Wipro, Tata, Infosys and Satyam as such firms, saying that they fly thousands of employees to the U.S. to work at as technicians and engineers for their clients.

H-1B Cap Count as on August 6, 2010:

Cap Type - H-1B Regular Cap
Cap Amount - 65,000
Cap Eligible Petitions - 28,500
Date of Last Count - 8/6/2010

Cap Type - H-1B Master's Exemption
Cap Amount - 20,000
Cap Eligible Petitions - 11,900
Date of Last Count - 8/6/2010

The Department of Labor (DOL) issued new PERM FAQs on August 3, 2010. The issues addressed by DOL in this round of FAQs include expedite requests, how to document the use of an employee referral program, unsolicited documentation and what constitutes a "business day" for purposes of posting the Notice of Filing. Within the FAQs, DOL states the following:

* Expedite Requests - DOL clarifies that the Office of Foreign Labor Certification (OFLC), as a matter of long-standing policy, will not accept requests to expedite PERM applications;
* Employee Referral Programs (ERP) - DOL states that an employer can document its use of an ERP with incentives by providing dated copies of its notices or memoranda advertising the program and specifying the incentives offered. The employer must document the existence of the ERP, and that its employees were aware of the vacancy of the specific position for which certification is being sought. This can be achieved through posting on the employer's website. However, the physical Notice of Filing shall not be sufficient for this purpose;
* Unsolicited Documentation - DOL emphasizes that if unsolicited documentation is provided to the OFLC in support of a pending PERM application, then the application will automatically be placed in the audit queue;
* Business Day - As part of the required recruitment procedures to support a PERM application, a Notice of Filing must be physically posted for 10 consecutive business days. The OFLC clarifies that for purposes of the Notice of Filing, a business day will be defined as Monday through Friday, except for Federal holidays.

If you need support with your PERM case, feel free to email me.

The local San Diego USCIS office suggests that certain remedies may be available for military families facing the problem of ineligibility to adjust status because of unlawful entry by a family member seeking adjustment of status. Most often the situation occurs when a United States citizen service member’s spouse entered without inspection and thus cannot adjust status. Current way to fix the status is via Ciudad Juarez waiver process (I-601 waiver application).

One potential remedy is “Parole in Place,” where the District Director in San Diego, Mr. Paul Pierre, can parole the alien, who then will be eligible to adjust status. Paroling only cures the issue of admission or parole under INA § 245, not other inadmissibility issues. To seek Parole in Place, address the request to Mr. Pierre. Include the following:

1. Form I-131 (but it does not need to be paid for when applying)
2. Evidence of impending deployment
3. Proof of relationship of alien to the United States citizen service member
4. Evidence of hardship to the service member and how the situation affects the service member’s “readiness” to perform his or her mission in defense of the United States.

USCIS also has a program where I-601's will be adjudicated at the United States Consulate in Ciudad Juarez at the time of an immigrant visa interview for the relatives of service members. Mr. Pierre also has the authority to grant Deferred Action. (Regarding issues of admission for adjustment of status purposes, read Sum v. Holder, 602 F.3d 1092 (9th Cir. 2010).)

On 8/5/10, with hours left before the beginning on the August recess, the Senate passed a $600 million emergency spending bill aimed at increasing border security. The bill, titled the Emergency Border Security Supplemental Appropriations Act of 2010, was passed by a voice vote.

Senator Schumer (D-NY), along with several Democratic colleagues, introduced the Border Security Emergency Supplemental Appropriations Act of 2010 (S.3721) and used it as a substitute amendment to H.R. 5875, a bill passed by the House of Representatives on 7/28/10. Further action is required before H.R. 5875, as passed by the Senate, can be sent to President Obama's desk for signature.

It is unclear at this point if the House of Representatives, which is set to return for a short two day session on 8/09/10, will take up the Senate measure or whether they will wait until September. Department of Homeland Security Secretary Napolitano released a statement urging the House of Representatives to pass the bill.

Who deported more Bush or Obama? TRAC report finding that ICE data shows a ten percent increase between the number of noncitizens removed during the first nine months of FY 2010 as the result of ICE enforcement compared to the same period in FY 2008, the last fiscal year of the Bush administration.

During the first nine months of FY 2010, 279,035 non-U.S. citizens were removed* from the country as a result of ICE enforcement. This number is ten (10) percent more than the same period during FY 2008 — the last fiscal year of the Bush administration. This represents almost a doubling of the rate of removals that have taken place during the past five years.

In addition to increases in alien removals under the Obama administration, the data also show that ICE — rather than simply trying to ramp up numbers — has also directed more of its attention to going after noncitizens who have committed crimes while in this country.

Read more...

Recently an undated USCIS draft memorandum surfaced. The Memo was offering administrative relief options to promote family unity, foster economic growth, achieve significant process improvements, and reduce the threat of removal for certain individuals present in the United States without authorization. Here is the entire memo for our readers to view:

Shortly after the memo leaked to the public the Immigration service had this to say:

“Internal draft memos do not and should not be equated with official action or policy of the Department. We will not comment on notional, pre-decisional memos. As a matter of good government, U.S. Citizenship and Immigration Services (USCIS) will discuss just about every issue that comes within the purview of the immigration system. We continue to maintain that comprehensive bipartisan legislation, coupled with smart, effective enforcement, is the only solution to our nation's immigration challenges.

Internal memoranda help us do the thinking that leads to important changes; some of them are adopted and others are rejected. Our goal is to implement policies wisely and well to strengthen all aspects of our mission. The choices we have made so far have strengthened both the enforcement and services sides of USCIS – nobody should mistake deliberation and exchange of ideas for final decisions. To be clear, DHS will not grant deferred action or humanitarian parole to the nation’s entire illegal immigrant population.”

What can we learn from all this? Comprehensive immigration reform may not happen in the near future, but some sort of a step by step change is likely to occur sooner than later. Even USCIS is eager for this to happen, expect more "leaks" coming up.