Visa Lawyer Blog

Employers will see higher charges for most employment-based immigration petitions and applications and for premium processing services when a new U.S. Citizenship and Immigration Services fee schedule takes effect on November 23, 2010.

U.S. Citizenship and Immigration Services (USCIS) will increase the fees for many immigration filings, including premium processing cases, and will introduce new fees for applications and services that were previously processed without charge, according to a final regulation that is set to be published in Friday’s Federal Register. The new fee schedule will take effect 60 days after publication, on November 23, 2010. Petitions and applications postmarked on or after November 23 must include the new fees.

According to USCIS, the agency is altering its fee schedule to reflect the full cost of processing applications and petitions. New Fees for Employment-Based Filings:

Employers will see higher fees for most employment-based filings, though some fees will be lowered. Among the new fees are the following:
Form Type Current Fee (CF) New Fee (NF)

Form I-129 Petition for Nonimmigrant Worker $320 (CF) $325 (NF)
Form I-140 Immigrant Petition for Alien Worker $475 (CF) $580 (NF)
Form I-485 Application to Adjust Status $930 (CF) $985 (NF)
Form I-765 Application for Employment Authorization $340 (CF) $380 (NF)
Form I-131 Application for Travel Document $305 (CF) $360 (NF)
Form I-539 Application to Extend/Change Nonimmigrant Status $300 (CF) $290 (NF)

Premium Processing Fee Increase:
USCIS will increase the fee for premium processing services from $1,000 to $1,225 for eligible Form I-129 and Form I-140 petitions. Despite the urging of business immigration advocates, the agency elected not to expand premium processing to other case types, but indicated that it would consider an expansion of the service in the future.

New Fees for Immigrant Visa Services and ProgramsL
Two new fees will be introduced in connection with immigrant visa programs. Foreign nationals applying for an immigrant visa will be required to pay a new USCIS domestic processing fee of $165, in addition to the State Department’s existing immigrant visa processing fees. The new fee is expected to be collected by the State Department on behalf of USCIS, but exact details on how applicants will pay it have not yet been released.

Entities that are seeking to participate as regional centers in the Immigrant Investor Pilot Program of the employment-based fifth preference (EB-5) immigrant category will pay an application fee of $6,230.

Many attorneys and clients who filed H1B cases in April 2010 are still waiting for decisions on their cases. This process has become very frustrating for employers waiting for employees to start working, as well other related issues. Why is this happening? We have no clear answer. But the American Immigration Lawyers Association was able to get some clarifications today.

USCIS has advised AILA that the Vermont Service Center and the California Service Center will begin prioritizing the adjudication of pending cap-subject H-1B petitions in an attempt to bring their processing times within 60 days as soon as possible. Cases will continue to be adjudicated in the order received.

USCIS has informally advised AILA that it will prioritize the adjudication of H-1B change of status cases for F-1 cap-gap students who are otherwise prohibited from continuing employment after September 30. AILA Liaison has been coordinating with USCIS to help achieve this outcome. While AILA has been collecting lists of these cases, AILA have been advised that USCIS has the means to independently verify them.

On September 24, 2010 the House Judiciary Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law held a hearing titled "Protecting America's Harvest" at 9:30 a.m. in room 2141 of the Rayburn House Office Building.

Here is what Arturo S. Rodriguez President, United Farm Workers of America had to say:

Our society places all the risks and costs associated with a seasonal industry--featuring millions of short-term jobs--on the backs of the workers. For example, if there is a freeze, as occurred last year in Florida and thousands of workers are left without work, there is no unemployment assistance even though emergency aid is promptly extended to agricultural employers.

Furthermore, if a worker is injured on the job or stiffed on payday, too often there is no real
recourse. Is it any wonder that Americans don’t want these jobs? In an era of high unemployment, undocumented workers are convenient scapegoats for our nation’s economic woes. Many associate high unemployment with foreigners taking away jobs from U.S. citizens. There are movements afoot to remove undocumented workers from the
country. Thus, the United Farm Workers initiated the "Take Our Jobs" campaign. We invite citizens and
legal residents to apply for jobs on farms across the country to supply our homes, restaurants and workplace cafeterias (including those in our nation’s capitol) with the food that fuels the people of this great nation. Since June 24, we received 8,600 inquiries for information through our web site (www.takeourjobs.org) but only seven people have accepted jobs or have been trained for agriculture positions. Unfortunately, seven new farm workers are not enough to make our food supply stable, reliable and of high quality.

What does this tell you, only 7 US workers accepted to work in Farm labor jobs. We need the H2A program, we need to make it a permanent program, otherwise the labor crisis in Farming will become a disaster.

This is an important update from AILA for our readers.The following is guidance regarding I-9 and immigration-related discrimination issues in response to the invalidation of pre-July 1, 2010 Puerto Rico birth certificates.

Q: Why is there a new law on Puerto Rico birth certificates?

A: The U.S. Department of State’s Bureau of Diplomatic Security, which investigates U.S. passport fraud, has long had concerns about the prevalence of fraud in passports based on Puerto Rico birth certificates. The State Department reports that about 40% of all passport fraud investigations involve Puerto Rico birth records. In part, the problem was a result of the prevalent use of birth certificates in Puerto Rico for all sorts of unofficial and official transactions and the retention of original true copy birth records by diverse organizations across all sectors of society, including schools, churches, sports teams, and government voter and driver registration offices. Often these birth certificates were not stored in secure environments and, as a result, many were stolen and sold.

Q: When does the law go into effect?

A: In 2009, the Legislative Assembly of Puerto Rico passed the new law to be effective July
1, 2010. Subsequently, the law was amended to allow a phase-in period of three months, from July 1, 2010 to September 30, 2010. On September 23, 2010, the Governor of Puerto Rico extended the phase-in period to October 30, 2010. As of July 1, 2010, a new process is in effect for Puerto Rican citizens to request and be issued the new, secure birth certificate. As of October 31, 2010, no birth certificates issued before July 1, 2010 can be presented for any purpose.

Q: What is the impact of the law on the I-9 employment verification process?

A: Employers should be aware of the effect of the new law in the following I-9 situations:
• I-9 forms completed through October 30, 2010: The employer can accept Puerto Rico birth certificates issued prior to July 1, 2010, if the employee chooses to provide the birth certificate to prove work authorization (List C document).
• I-9 forms completed on or after October 31, 2010: The employer can only accept Puerto Rico birth certificates issued on or after July 1, 2010, if the employee chooses to provide the birth certificate to prove work authorization (List C document). If the employee chooses to present other I-9 documentation (such as a U.S. passport or a valid driver’s license and unrestricted social security card) the employer may not require the employee to present a new Puerto Rico birth certificate or any other specific documents.

• Legacy Puerto Rico birth certificates in existing I-9 records: The employer is not required to reverify I-9 documentation of employees who prior to October 31, 2010 presented Puerto Rico birth certificates issued before July 1, 2010, or to otherwise track or identify which employees presented birth certificates issued before July 1, 2010. Reverification of I-9 files containing legacy Puerto Rico birth certificates is not necessary and would constitute an unfair employment-related immigration practice
for all employers including federal contractors who are subject to the E-Verify clause.
• Continuing I-9 obligations: As with any I-9 document, it is required that an employer be presented with an original Puerto Rico birth certificate or a certified copy. Likewise, regardless of whether the Puerto Rico birth certificate was presented for I-9 purposes either before or after October 31, 2010, it is required that the birth certificate be valid on its face and reasonably relate to the individual presenting List B Identity Document.

Paris Hilton is not big in Japan. The socialite and entrepreneur was denied entry into the country by immigration officials because of her very fresh conviction for cocaine possession, and flew home to the United States yesterday, the Associated Press reports. She also canceled her appearances in Malaysia and Indonesia, but told reporters she hoped to return soon.

Hilton, who was detained and grilled by immigration officials for hours Tuesday, pleaded guilty to misdemeanor cocaine possession and obstructing a police officer after she and her boyfriend were busted in Las Vegas by a motorcycle.

What is she was a foreign national trying to enter the US?

Prospective immigrants and nonimmigrants must establish that they are admissible to the United States. This means that they must not fall under any of the grounds of inadmissibility found in Immigration and Nationality Act (INA) or that, if they do, a waiver of inadmissibility applies.

Foreign nationals who are found to be inadmissible by U.S. Citizenship and Immigration Services (USCIS), Immigration and Customs Enforcement (ICE), or Customs and Border Protection (CBP) may be placed in removal proceedings based on inadmissibility.
The inadmissibility grounds are distinguished from the grounds of deportation, set forth in INA §237(a), which are invoked to remove individuals already in the United States who have been admitted or paroled.

Grounds of Inadmissibility

There are 10 general categories of inadmissibility grounds. They are:
1. Health-related grounds;
2. Criminal-related grounds;
3. National security grounds;
4. Public charge;
5. Labor protection grounds;
6. Fraud or other immigration violations;
7. Documentation requirements;
8. Grounds relating to military service in the United States;
9. Prior removals or unlawful presence in the United States; and
10. Miscellaneous grounds.

Each category comprises several grounds.

Of the two grounds of inadmissibility relating to drug crimes, one is for persons who have been convicted or admit commission of drug-related crimes, while the other is for persons believed to be drug traffickers.

A person is inadmissible under the first of these grounds if he or she has been convicted of or makes a valid admission of having violated, or having conspired to violate, “any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in §102 of the Con¬trolled Substances Act).This ground covers virtually every type of drug. The INA does not provide any waiver for a controlled substance violation, unless the violation was for simple possession of 30 grams or less of marijuana.

So Paris will have a tough time applying for a visa or getting into the US if in fact her conviction for possession will not fall within any of the exception of the law.

Bad news for Dream Act supporters, On 9/21/10, the Senate failed to reach the 60 votes needed to pass a motion to proceed to consideration of the fiscal 2011 defense authorization bill (S. 3454). Senator Majority Leader Harry Reid (D-NV) had previously announced his intention to offer the DREAM Act as an amendment to the bill. After it was evident that the votes needed to proceed would fall short, Senator Reid switched his vote to "no" in order to preserve his right to bring the bill up again which would mostly likely be during the lame duck session of the 111th Congress.

Senate Republicans were joined by Arkansas Democrats Blanche Lincoln and Mark Pryor in voting down the measure by a vote of 56-43.

Here is what the President of the American Immigration Lawyers Association had to say:

That’s why it was so frustrating yesterday to watch the Senate Republicans obstruct yet another legislative initiative; this time in the context of a procedural vote on a motion to proceed to consideration of the fiscal 2011 defense authorization bill (S. 3454). That means the Senate won’t be able to consider the Dream Act as an amendment to the bill along with other issues like the repeal of the “Don’t Ask, Don’t Tell” policy regarding gays in the military. At the risk of sounding too partisan, it just seems like in their zeal to thwart President Obama and the Democrats the Republicans Congress will obstruct anything they do, even if it helps the country.

So the promising youth that will benefit from the Dream Act have to wait a little longer. And so will America, which will reap tremendous rewards from their full participation in American society. Even the Defense Department understands the value these young people bring to the U.S. strongly supports passage of the Dream Act as one of its official goals for helping to maintain “a mission-ready, all-volunteer force.” And educators and others who also support the act recognize how much better it is to encourage the aspirations of young people, not to consign them to lives of under-the-table jobs and unmet potential.

The Dream Act targets for future citizenship exactly the kind of people America should be embracing: young soldiers, scholars, strivers, future leaders.

We will update our readers on new developments regarding the Dream Act coming soon.

USCIS has recently updated the H-1B Cap Count for FY 2011:

Cap Type - H-1B Regular Cap
Cap Amount - 65,000
Cap Eligible Petitions - 38,300
Date of Last Count - 9/17/2010

Cap Type - H-1B Master's Exemption
Cap Amount - 20,000
Cap Eligible Petitions - 14,000
Date of Last Count - 9/17/2010

Let us know if we can help you in the H-1B filing. We have witnessed a sharp increase in the H-1B filing during last couple of weeks. Please ensure to submit proper documented case to avoid any RFE.

The UAE’s Ministry of Labor announced plans to use online filing system to speed up the application process for work permits across the country.

In the existing system, a representative from the company must go to the ministry’s physical location to apply for a work permit, a process that unnecessarily consumes time. The new system, on the other hand, will enable applicants to submit all documents electronically. Moreover, companies will be able to process the work permits through a software that they can buy, or use at selected service centers.

Humaid bin Deemas, the executive director for Labour Affairs at the ministry, said we want to make sure that procedures will not form obstacles for any future changes in the criteria for the work permit and this move will work towards that end. It will also enable the ministry to concentrate more on formulating policies rather than spending time on mere procedures.

The system has been already introduced to companies that have more than fifty employees since the beginning of last year. However, the ministry plans to do a nationwide roll-out in the next period. Bin Deemas said in a press conference that the overall number of permits issued electronically until the end of August 2010 was 530,000 and the number of establishments that benefited from the service was 111,000. According to the Ministry of Labor, the move to an electronic system will reduce the time it takes to receive a primary application response from four days to four hours.

On August 18, 2010 we were the first to report the new trend coming from some local Immigration offices, mainly San Diego, regarding Visa Waiver overstay Issues. To recap a recent internal Memo from San Diego stated 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.

I could never imagine that they will follow through with denials of Visa Waiver overstay cases, but our first denial came in on Friday. See below the complete decision. The decision is written poorly, stating a partially true legal fact. The fact that when one overstays the Visa Waivers they can not adjust or seek hearing before a judge, UNLESS they are a beneficiary of an immediate relative petition. The USCIS failed to mention this exception in the denial as you can see below. So what will be the future of Visa Waiver adjustments, that still remains to be seen. We are in the process of filing a motion to re open and will keep our readers posted.

Tell us what you think about all this?

As a service to our readers we publish local ceremony dates. If USCIS approves your application for naturalization, you must attend a ceremony and take the Oath of Allegiance to the United States. USCIS will notify you by mail of the time and date of your ceremony.

The notice USCIS sends you is called the "Notice of Naturalization Oath Ceremony" (Form N-445). In some cases, USCIS may give you the option to take the Oath on the same day as your interview. If you decide to take a "same day" oath, USCIS will ask you to come back to the office later that day. At this time, you will take the Oath and receive your Certificate of Naturalization.

If you cannot go to the oath ceremony, you should return the "Notice of Naturalization Oath Ceremony" (Form N-445) that USCIS sent to you. You should send the N-445 back to your local office. Include a letter saying why you cannot go to the ceremony. Make a copy of the notice and your letter before you send them to USCIS. Your local office will reschedule you and send you a new "Notice of Naturalization Oath Ceremony" (Form N-445) to tell you when your ceremony will be.

SAN DIEGO NATURALIZATION CEREMONIES
2010/2011

SEPTEMBER 17, 2010

OCTOBER 20, 2010

NOVEMBER 17, 2010

DECEMBER 16, 2010

JANUARY 9, 2011

FEBRUARY 23, 2011

MARCH 23, 2011

APRIL 27, 2011

MAY 18, 2011

JUNE 22, 2011

JULY 20, 2011

AUGUST 24, 2011

SEPTEMBER 16, 2011

SEPTEMBER 28, 2011

OCTOBER 19, 2011

NOVEMBER 16, 2011

DECEMBER 14, 2011

The DREAM Act could be offered as an amendment to the Defense Authorization bill being considered in the Senate next week. In a blog entry earlier this afternoon, Senate Majority Leader Harry Reid (D-NV) announced his intention to include the DREAM Act in the major defense bill scheduled for floor action next week. The version of the Defense Authorization bill that passed the House of Representatives in late May did not include the DREAM Act provision. If the Senate passes their version of the defense bill with the DREAM Act intact, it will still need to survive the conference committee reconciliation and then come back before each chamber for a final vote.

The DREAM Act, which has some bipartisan support, would allow young illegal immigrants who came to the U.S. before age 16, and have been here for at least five years, to earn legal status if they pass background checks, attend college or serve in the military for at least two years.

A version of the measure was first introduced in 2001 and was drafted to address the situation of children and teenage immigrants who were brought to the U.S. illegally by their parents and have only known the U.S. as home. Many have no family or ties to their countries of birth.

Passage of the DREAM Act independent of a comprehensive immigration reform measure would be a departure from a strategy favored by many immigration reform advocates, congressional Democrats and the Obama administration.

But the White House has indicated, as recently as yesterday, that it would support DREAM legislation. We support it as well!!!

The U.S. Department of State has recently announced that the online registration period for the Diversity Visa Lottery Program for Fiscal Year 2012 (DV-2012) will be from October 5, 2010 until November 3, 2010.

The official online application form is available only on the Department of State Diversity Visa online entry website at www.dvlottery.state.gov, which will be accessible on the first day of the registration period. The Congressionally mandated Diversity Immigrant Visa Program makes available 50,000 diversity visas (DV) annually, drawn from random selection among all entries to persons who meet strict eligibility requirements from countries with low rates of immigration to the United States. For DV-2012, no countries have been added or removed from the previous year’s list of eligible countries.

If you are chosen as a lottery winner, an official letter from the U.S. Department of State Kentucky Consular Center (KCC) in Williamsburg, Kentucky will be sent to the mailing address that you provided in your entry. Being selected as a lottery winner does not guarantee that you will receive a visa; you must still apply and qualify for the immigrant visa. The notification letters will provide further instructions, including information on additional forms and documentation required and immigrant visa application fees.

Good News for Our Citizenship clients. More than 9,000 candidates will become new citizens during 63 special ceremonies hosted by U.S. Citizenship and Immigration Services (USCIS) in recognition of Constitution Day and Citizenship Day on Sept. 17. As part of this celebration, USCIS is partnering with the National Park Service (NPS) to hold naturalization ceremonies at 22
national park sites across the country Sept. 13-24 under the theme, "Embrace Citizenship -
Experience America Through Your National Parks."

Highlights for this year’s celebration include a Sept. 15 ceremony for 25 new citizens at the
foot of General Grant's Tree, the largest giant sequoia in the General Grant Grove section of Sequoia-Kings Canyon National Park in Three Rivers, Calif. This grand park was named in
1867 after Ulysses S. Grant, the 18th president of the United States.

Other national parks ceremonies will also be held at the Grand Canyon, one of the country’s
oldest national parks; Homestead National Monument, which commemorates the Homestead
Act of 1862 granting free land to citizens and new immigrants; and the Herbert Hoover
National Historic Site in Iowa. The citizenship process has been described as a ritual which is "meaningful for many immigrants" and similar in some respects to a "first communion" or "bar mitzvah".

O-1 Status is a non-immigrant status category for aliens of extraordinary ability in the sciences, arts (including the television and motion picture industry), education, business, or athletics. The O-1 visa is also available to those in motion pictures and television, and related visas are available to those who support the O-1 visa holder for their events and activities. The O-1 visa is a great way for foreign artists and entertainers to bring their talents to the United States. This is an employment related status that allows qualified aliens to live and work in the United States.

O-1 visas are valid for up to three (3) years. They may be extended in one-year increments for ongoing projects, and in some cases open the door to lawful permanent residency for the foreign national. Applicants for O-1 visas must demonstrate that they possess extraordinary ability in the arts, sciences, business, education, athletics, or the motion picture or television industry. The applicant must show that s/he has achieved sustained or international acclaim and an extraordinary record of achievement. The applicant must demonstrate that s/he is coming to the United States to perform temporary services for an event or series of events.In some cases the O-1 petition must be filed by multiple future employers;and it can be filed by a foreign employer through a US agent. O-1 applicants may not self-petition.

Evidence for O-1 Visa Petitions:
To demonstrate international recognition and extraordinary ability in the business or sciences, the O-1 visa applicant may provide evidence that s/he is the winner of an internationally-recognized award, such as a Nobel Prize, or by demonstrating at least three of the following:

- Internationally or nationally recognized prizes or awards;
- Published material about your work;
- Membership in an association that requires members to have outstanding achievement;
- Original scientific, scholarly, or business-related contributions of major significance in the field;
- Authorship of scholarly articles published in any type of major media or professional journals;
- High salary or any other type of compensation;
- Participation on a panel, or as a judge for other people's works;
- Evidence of past employment for organizations or establishments that have a high reputation.

To demonstrate international recognition and extraordinary ability in the arts and motion pictures and television, the O-1 visa applicant may also provide evidence that s/he is the winner of an internationally-recognized award, such as an Academy Award or a Grammy, or by demonstrating at least three of the following:
- Lead or starring role for productions or events with distinguished reputations;
- National or International recognition demonstrated by published material about your work;
- Lead, starring, or critical role for organizations or establishments with distinguished reputation;
- Record of major commercial or critically acclaimed success;
- Significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field;
- High salary in relation to others in the field.

Let us know if we can assist you in your O-1 petition preparation.

The Department of State released the new visa bulletin for October 2010 on September 9, 2010.

For the month of October, the EB-1 category was current for both Chinese and Indian nationals. In the EB-2 category, the cut-off dates moved forward 14 days for Chinese nationals (from May 8, 2006 to May 22, 2006), and remained unchanged for Indian nationals (May 8, 2006). In the EB-3 category, the cut-off dates moved forward from October 22, 2003 to November 8, 2003 and from January 1, 2002 to January 15, 2002 for Chinese and Indian nationals respectively.

For the month of September, the EB-1 category was current for both Chinese and Indian nationals. In the EB-2 category, the cut-off dates moved forward more than two months for both Chinese nationals (from March 1, 2006 to May 8, 2006) and Indian nationals (from March 1, 2006 to May 8, 2006). In the EB-3 category, the cut-off dates moved forward from September 22, 2003 to October 22, 2003 for Chinese nationals while the cut-off dates stayed the same as they were in August for Indian nationals (January 1, 2002).

According to TRAC, Justice Department data show that Immigration Judges are declining substantially fewer requests for asylum. Denial rates have reached the lowest level in the last quarter of a century.

Twenty five years ago, in FY 1986, almost nine out of ten (89%) of the asylum requests in the Immigration Courts were denied. While the annual rates have gone up and down during the ensuing years, only half (50%) of the requests were denied during the first nine months of FY 2010 — a record low.

One factor contributing to the improved success of the asylum seekers is that a higher proportion of the total are represented by counsel. It must be noted, however, that the number of those seeking asylum in court proceedings has fallen.

he growing success of asylum seekers is partly attributable to increases in the proportion who obtain legal representation. The latest figures show that more than nine out of every ten (91%) are now represented, up from just over half (52%) twenty-five years ago in FY 1986.

Asylum is relief for a foreign national to remain in the U.S. under legal status because the foreign national has suffered past persecution in his home country or country of last habitual residence, or because the foreign national has a well founded fear of future persecution in his home country or country of last habitual residence and such persecution is based on race, religion, nationality, political opinion or membership in a particular social group. So having a competent lawyer preparing your asylum case is a must in order to have a chance to win your Asylum case.

Here are the recent updates from USCIS on current H1B Cap Count for FY 2011:

Regular Cap Limit: 65,000
Regular Cap Cases Filed: approx. 36,600
Date of Count: 03.Sep.2010

Advanced Degree Cap Limit: 20,000
Advanced Degree Cap Cases Filed: approx. 13,400
Date of Count: 09.Sep.2010

We will keep providing updates on H-1B Cap count. Let us know if we can assist you in your H-1B cap cases.

Costa Rica's appeal to the Arizona District Court over the rights of illegal immigrants in the United States was thrown out last week because it was submitted past deadline. In an e-mail to The Tico Times, an assistant to the clerk of the court confirmed that "the motion was denied on Sept. 2, 2010 as untimely."

Federal Judge Susan Bolton entered an order on July 1, stating that any interested party wishing to file an amicus curiae must do so no later than July 14, according to the court. (An amicus curiae is someone not involved in a case who volunteers information that could affect the could bear on the case's outcome.) Costa Rica filed its motion on July 21.

Costa Rica was not the only one to file a motion with the Arizona District Court. Mexico, Argentina, Bolivia, Ecuador, El Salvador and Nicaragua also denounced Arizona's new law.The Costa Rican Foreign Ministry wrote in a press release that it was concerned for the civil and human rights of Costa Rican citizens while in the United States. Faithful to its tradition of promoting and defending human rights, Costa Rica has raised its voice against discrimination against immigrants in the United States.

The case is currently on appeal and will be taken up by the U.S. 9th Circuit Court of Appeals in November.

What a shameful story. DOJ announcement on the indictment of six individuals for engaging in a conspiracy to commit forced labor and document servitude. The charges arise from the defendants’ alleged scheme to coerce the labor and services of approximately 400 Thai nationals to work on U.S. farms.

The Justice Department announced that a federal grand jury in Honolulu
indicted Mordechai Orian, an Israeli national; Pranee Tubchumpol, Shane Germann and Sam
Wongsesanit of Global Horizons Manpower Inc., located in Los Angeles; and Thai labor
recruiters Ratawan Chunharutai and Podjanee Sinchai for engaging in a conspiracy to commit
forced labor and document servitude. The charges arise from the defendants’ alleged scheme tocoerce the labor and services of approximately 400 Thai nationals brought by the defendants to the United States from Thailand from May 2004 through September 2005 to work on farms
across the country under the U.S. federal agricultural guest worker program. Orian, Tubchumpol and Chunharutai are also charged with three substantive counts of compelling the
labor of three Thai guest workers.

If convicted, Orian and Tubchumpol each face maximum sentences of 7 0 years in prison,
Chunharutai faces a maximum sentence of 65 years in prison, Germann and Wongsesanit each face a maximum sentence of 10 years in prison, and Sinchai, who was recently charged in Thailand with multiple counts of recruitment fraud, faces a maximum sentence of five years in prison if convicted in the United States.

Instead of achieving the American dream, the workers arrived into an American nightmare. This company forced them to live groups of men in labor camps, charging each of them thousands of dollars and forbidding them from living off company grounds. Instead of permanent residency and green cards, the workers received temporary, ten-month H-2B guest worker visas, which allow no path to more permanent status. And since H-2B visas bind workers to a single employer, company answered workers’ complaints with threats of deportation. Such acts are in contrary to the spirit of the H2B visa and we call for harsh punishment for these individuals.

Indian Government sources had said that the Bureau of Diplomatic Security had contacted the ministry of external affairs (MEA), India around the time Mr Pacheco was incarcerated for his alleged involvement in the mysterious death of his girlfriend Nadia Torrado — he was in jail from July 9 till July 26, when he was awarded bail. He is a former Goa, India tourism minister Francisco Xavier “Mickky” Pacheco was caught on the backfoot on Sunday once again as reports surfaced that the US State Department’s Bureau of Diplomatic Security had informed India that Mr Pacheco might be involved in a big immigration and money laundering racket.

Mr Pacheco used to operate an employment agency along with his estranged wife Sara Pacheco which specialized in finding employment for Goans abroad. But according to the former minister, he has had nothing to do with the agency since he separated from his wife around four years back.

Mr. Mickey Pacheco has been accused by the US Bureau of Diplomatic Security of running an international immigration and money-laundering racket. The bureau got in touch with the external affairs ministry through the US embassy in Delhi and reportedly backed its allegations with documents and details of banking transactions. The ministry then passed on the information to the CBI. The evidence is being described as substantive. According to the US Bureau of Diplomatic Security report, Pacheco had 15 million dollars in his account in the US. He recently transferred 2 million dollars to India.

Figures show that between 2005 and 2009, illegal US immigration fell by more than 60 per cent. In the first half of the decade, an average of 850,000 people were moving to the US without the correct US visas. However, this has fallen to just 300,000 between 2007 and 2009, according to new figures released by the Pew Hispanic Centre.

The fall is thought to be the result of a combination of factors, including tougher border controls and the recession. The drop has also impacted the overall estimated number of illegal immigrants living in the US. In 2007, the number was thought to total around 12 million. This number had fallen by around eight per cent to 11.1 million by last year.

Some 60 per cent of the people moving to the US without US visas are coming over the border from Mexico, with a further 20 per cent coming from other parts of Latin America. The remaining illegals come mostly from Asia, Africa and Canada.The new figures may go some way towards calming the national debate about Arizona’s new US immigration act, which encourages law enforcement officers to question people about their immigration status if they have reason to believe they may be living in the US illegally.

Haitian F-1 students experiencing severe economic hardship from the Jan. 12, 2010 Haiti earthquake eligible for employment authorization. Immigration and Customs Enforcement (ICE) has approved special relief for certain F-1 Haitian students who have suffered severe economic hardship as result of the Jan. 12 earthquake in Haiti. This relief applies only to students who were lawfully present in the United States in F-1 status on Jan. 12, and enrolled in an institution that is certified by ICE's Student and Exchange Visitor Program.

The suspension of certain regulatory requirements, by notice in the federal register, allows eligible Haitian F- 1 students to obtain employment authorization, work an increased number of hours during the school term, and, if necessary, reduce their course load while continuing to maintain their F-1 student status. F-1 students granted employment authorization by means of this notice will be deemed to be engaged in a full course of study if they meet the minimum course-load requirements specified in the notice.

Proposals have been made in Congress for many years to confer an opportunity for the young students to become legalized. These proposals, commonly known as the “Dream Act”, so far have not gone too far in the legislative process. The terms of the Dream Act various. According to the latest proposal in 2009, a person must be between the ages of 12 and 35 when the law was enacted, must have arrived in the United States before the age of 16, must have resided continuously in the United States for at least five (5) consecutive years since the date of their arrival, must have graduated from a U.S. High School or obtained a General Education Diploma GED, and must have good moral character. If eligible, these individuals will be able to obtain temporary residency for a six year period.

There have been many instances in which immigrant students were released from detention after they were arrested for being without immigration status in the U.S. There is a clear federal policy to suspend or defer enforcement efforts on them, according to various reports. These students were brought to the United States by their parents who did not have legal status. They attended schools and adopted an American lifestyle. Many are now high school graduates but have difficulties continuing their education on account of their illegal status. Although the current immigration policy is temporarily sparing these youngsters from deportation, their future will remain uncertain without actual changes in immigration law. Within the six year period, a qualified student must have acquired a two-year degree from a community college or completed 2 years of a program for a bachelor’s degree or higher degree in the United States. Alternatively, he or she may also serve in the military for at least two years. If the applicant fails to meet one of these three requirements, the student shall revert back to the immigration status that he or she had immediately prior to receiving conditional permanent resident status.

Furthermore, although the applicant would not be eligible for Pell grants, they would be entitled to apply for student loans and work study. However, should these students commit a serious crime or a drug-related violation during these six years, they would lose their conditional status and subject to deportation. Upon successful completion of the requirements at the end of the six years, the applicant will be eligible for lawful permanent status. Legalizing these young students would actually bring in a new pool of educated people to the workforce, reduce costs associated with social problems, and foster family unity. If passed, the law will benefit more than 700,000 individuals throughout the United States. Energetic and educated, these students have become increasingly vocal in fighting for their rights.

We all know by now that Requests for Evidence in O1, H1, L1 and P cases have almost doubled in the past 12 months. It has now become a matter of practice at my firm, to let clients know that a Request for Evidence will most likely happen in their case. This is frustrating to us lawyers, and creating extreme hardship to clients.

The situation is so bad with denials coming from the California Service Center that the LA Times covered this issue in a recent story:

The nation's immigration chief has launched a effort to quell the outcry from Hollywood and the performing arts community about a spike in visa denials, processing delays and requests for evidence to support their petitions to bring in leading foreign artists for U.S. performances.

In the last year, immigration attorneys across the nation have loudly complained about mounting roadblocks for performance visas from the California service center, which processes petitions for so-called O and P visas for artists and researchers of extraordinary ability.

The Skirball Cultural Center in Los Angeles had to cancel scheduled performances last year of an Argentine music group because California immigration officials challenged whether its fusion of Jewish klezmer music and tango met the requirement to be "culturally unique."

What could be a reason for this war declaration coming from the California Service Center? According to Greg Siskind it is a mere job security issue:"

The U.S. Citizenship & Immigration Service says no crackdown is afoot. 'We haven't changed the way that we do our business over the course of the past few years,' says agency spokesman Christopher Bentley.

Of course, the statistics show otherwise. One very senior former USCIS confided in me that he believes this is less about an anti-immigrant mood at USCIS and more about simple job security. The overall number of applications being filed at the agency is down dramatically due to the recession and issuing requests for evidence is one for examiners to keep themselves busy.

I have no doubt that this is happening. The evidence requests are themselves the best evidence of what should be considered gross malfeasance on the part of USCIS examiners. Applicants routinely get request for documents that were provided already or are clearly irrelevant. In premium processing cases, evidence requests often come on the last day USCIS has to adjudicate the case. Enticing people to pay an extra $1000 to get speedy processing and then deliberately delaying their cases is a form of fraud - perhaps theft - in my opinion. USCIS should be regularly auditing evidence requests and also soliciting feedback from the applicant community so it can crackdown on such illegal behavior.

The California service center's denial rates for O visas, which apply to individuals, increased from 9.6% in the 2008 fiscal year to 19.6% this year. Denial rates for P visas, which apply to groups, jumped from 11.1% in 2008 to 26.8% this year. Requests for evidence also grew, from 16.2% of cases in 2008 to 37.5% for individual visas and from 21% to 44.3 % for group visas during that same period. The number for H1B visa RFE's and denials is even higher.

As attorneys we now have to adjust to the way we prepare petitions. Instead of preparing cases with the best supporting documents possible, we now have to anticipate the open door for denials even when the candidate is very qualified and meets the standard of thew law. If the trend will continue, expect more qualified workers and excellent artists to stop coming to our country, our loss.

This is a recent update from the AILA Rome Chapter for the benefit of our readers. The State Department has substantially rewritten the FAM provisions relating to physical or mental disorders as medical grounds of inadmissibility. These significant changes, set forth at 9 FAM 40.11 N11, focus on physical or mental disorders with harmful behavior, and on substance-related disorders, corresponding to INA 212(a)(1)(A)(iii) and (iv), respectively.

The following is a summary of these sweeping revisions.

Introduction

As before, the mere presence of a physical or mental disorder does not by itself render a visa applicant inadmissible to the United States under 212(a)(1)(A)(iii). The trigger to inadmissibility is the presence of associated harmful behavior.

Key Concepts of Mental Health

In this new section, the Department defines the key concepts of physical and mental health disorders:

A "physical disorder" is a clinically diagnosed medical condition where the focus of attention is physical manifestations.

A "mental disorder" is a health condition characterized by alterations in thinking, mood or behavior.

"Harmful behavior" is an action associated with a physical or mental disorder that causes (or has caused) one or more of the following:

1. Serious injury (psychological or physical) to the foreign national or others. An example of harmful behavior to the foreign national is attempted suicide. An example of harmful behavior to others is pedophilia.
2. A serious threat to the health or safety of the foreign national or others. An example of a serious threat to both the foreign national and to others is driving while intoxicated.
3. Major property damage.

NOTE: The Department emphasizes the following principle: Only harmful behavior that is associated with a physical or mental disorder is relevant for the purpose of determining a medical inadmissibility.

A "substance-related disorder" can involve one of the following:

1. Substance dependence - compulsive long-term use of alcohol or other psychoactive substance despite significant problems (physical, social, and others).
2. Substance abuse - a pattern of recurrent use of alcohol or other psychoactive substance despite adverse consequences or impairment.

Remission in the context of mental or substance-related disorders is defined as "a period of at least 12 months during which no substance use or associated harmful behavior have occurred."

Class "A" medical conditions are those which render a visa applicant ineligible for a visa.

Class "B" medical conditions do not render a visa applicant ineligible for a visa, even though the applicant has a disease, disability or abnormality amounting to a substantial departure from well-being.

Alcohol Abuse or Dependence

The FAM changes stress that alcohol abuse or alcohol dependence constitutes a medical condition which can lead to inadmissibility. That said, a panel physician's diagnosis of alcohol abuse or dependence alone does not make an applicant ineligible to receive a visa unless there is evidence of associated harmful behavior which has, or is likely to pose a threat to the property, safety or welfare of the foreign national or others.

Consular officers are instructed to refer nonimmigrant and immigrant visa applicants to panel physicians if the applicant has a single alcohol-related arrest or conviction within the past five years, or if the applicant has two or more such arrests or convictions within the past decade. Officers should also refer applicants to panel physicians if, in the absence of DUI arrests or convictions, there is any other evidence to suggest that the visa applicant has an alcohol problem.

Role of the Panel Physician

Panel physicians have a central role in evaluating the existence of a physical or mental disorder or a substance-related disorder that would render an applicant ineligible for a visa. In performing a medical examination, the panel physician is responsible (inter alia) for identifying and diagnosing physical or mental disorders (including alcohol-related disorders); identifying harmful behavior associated with a disorder; and determining the remission status of any previously diagnosed disorder.

Class "A" or Class "B" Medical Conditions

Panel physicians may make the following diagnoses with regard to applicants referred for examination:

Class "A": The applicant has a physical or mental disorder with associated harmful behavior.

Class "A": The applicant has a disorder characterized by substance abuse or dependence.

Class "B": The applicant has a physical or mental disorder with no associated harmful behavior.

Class "B": The applicant has a history of a physical or mental disorder with associated harmful behavior which is unlikely to recur.

Class "B": The applicant's substance abuse or dependence is in full remission.

Neither "A" nor "B": The applicant has not been diagnosed as having a physical or mental disorder or a substance-related disorder.

Waivers for Immigrant Visa Applicants

An immigrant visa applicant who is determined to have a communicable disease of public health significance may be eligible for a waiver of the inadmissibility set forth in INA 212(a)(1)(A)(i).

An immigrant visa applicant who objects on religious or moral grounds to receiving required vaccinations against vaccine-preventable diseases may be eligible for a waiver of the inadmissibility set forth in INA 212(a)(1)(A)(ii).

An immigrant visa applicant who is determined to have a physical or mental disorder with associated harmful behavior may be eligible for a waiver of the inadmissibility set forth in INA 212(a)(1)(A)(iii).

An immigrant visa applicant diagnosed with substance abuse or addiction is NOT eligible for waiver relief of the inadmissibility set forth in INA 212(a)(1)(A)(iv).

Waivers for Nonimmigrant Visa Applicants

Consular officers may recommend waivers per 212(d)(3)(A) for any of the medical-related grounds of inadmissibility set forth in 212(a)(1)(A).