Visa Lawyer Blog

What a great initiative introduced recently. Senators John Kerry (D-Mass.) and Richard Lugar (R-Ind.), the Chairman and Ranking Member of the Senate Foreign Relations Committee, today introduced legislation to drive job creation and increase America’s global competiveness by helping immigrant entrepreneurs secure visas to the United States.

The StartUp Visa Act of 2010 will allow an immigrant entrepreneur to receive a two year visa if he or she can show that a qualified U.S. investor is willing to dedicate a significant sum – a minimum of $250,000 – to the immigrant’s startup venture.

The StartUp Visa Act of 2010 would amend immigration law to create a new EB-6 category for immigrant entrepreneurs, drawing from existing visas under the EB-5 category, which permits foreign nationals who invest at least $1 million into the U.S., and thereby create ten jobs, to obtain a green card. After proving that he or she has secured initial investment capital and if, after two years, the immigrant entrepreneur can show that he or she has generated at least five full-time jobs in the United States, attracted $1 million in additional investment capital or achieved $1 million in revenue, then he or she would receive permanent legal resident status.

More than 160 venture capitalists from across the country have endorsed the senators’ proposal. Great idea, let us hope it will become a reality.

The Department of State has released the new visa bulletin for February 2010 on January 8, 2010.
USCIS has reported last month that the EB-1 category was still current for all countries. In the EB-2 category, cutoff dates for mainland Chinese nationals progressed one month from April 1, 2005 to May 1, 2005, but remained the same for Indian nationals. In the EB-3 category, the cutoff dates for mainland Chinese nationals progressed 2 months from June 1, 2002 to August 1, 2002 and progressed 53 days for Indian nationals from May 1, 2001 to June 22, 2001.

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

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

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

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

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

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

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

According to CNN, America could be facing a nursing shortage that will worsen exponentially as the population grows older. The problem: Baby boomers are getting older and will require more care than ever, taxing an already strained nursing system.

Barry Pactor, international director of global health care for consulting company HCL International, agrees that more nurses should be trained within the U.S. system. But as a short term solution for this "huge shortage," he said the U.S. government should loosen immigration restrictions on foreign health care workers.

"I don't see this as foreign nurses taking American jobs, because these are vacancies that already exist and cannot be [filled] by nurses currently in training," he said. "We'd be filling in the gaps until the training can catch up with the demand."

Read More...

The Department of State has just released the new visa bulletin for January 2010 on December 10, 2009.

Last month, the EB-2 category for both mainland Chinese and Indian nationals remained unchanged from the November visa bulletin. In addition, the EB-1 category stayed current for worldwide applicants. Cut-off dates in the EB-3 category moved forward nine days from April 22, 2001 to May 1, 2001 for Indian nationals and did not change for mainland Chinese nationals.

Based on the January 2010 visa bulletin, USCIS reports that the EB-1 category is still current in all countries. In the EB-2 category, cutoff dates for mainland Chinese nationals progressed one month from April 1, 2005 to May 1, 2005, but remained the same for Indian nationals. In the EB-3 category, the cutoff dates for mainland Chinese nationals progressed 2 months from June 1, 2002 to August 1, 2002 and progressed 53 days for Indian nationals from May 1, 2001 to June 22, 2001.

The EB-2 and EB-3 categories are usually backlogged or unavailable year-round. We are fairly certain that the EB-3 category will become unavailable once again this year. As the EB-3 category is for unskilled workers, skilled workers with at least 2 years of experience, and professionals with a bachelor’s degree, the pool of applicants is much larger than for the EB-1 and EB-2 categories, which are usually reserved for highly specialized workers or workers with graduate level degrees. Perhaps with the recent implementation of new protocol at USCIS, visa backlogging will not be as much of a problem this year.

We will keep you updated on further visa bulletins in advance.

So we thought the new ntroduction of ICERT was bad, listen to this upcoming change. In accordance with its PERM labor certification regulations, the Department of Labor (DOL) has provided notice that the Office of Foreign Labor Certification (OFLC) National Prevailing Wage and Helpdesk Center (NPWHC) will receive and process prevailing wage determination (PWD) requests for use in the H-1B (specialty occupations), H-1B1 (Chile/Singapore nationals), H-1C (registered nurses), H-2B (temporary and seasonal workers), E-3 (Australian nationals), and permanent labor certification programs starting January 1, 2010.

Under the new centralized process, PWD requests will be filed using Form ETA-9141 and submitted by mail or courier to the NPWHC in Washington, D.C. State Workforce Agencies will continue to process any PWD requests (as well as subsequent prevailing wage challenges) received in their offices through December 31, 2009.

Now for those of you familiar with the H2B process, form 9141 is already being used to obtain the PWD. My experience with H2B processing since the new change is nt positive. Sometimes we have to wait for 30 days to get the PWD. Imagine same story with future H1B cases, nightmare!!! The federal prevailing wage process is likely to result in delayed issuance of wage determinations. Most State Workforce Agencies (SWAs) currently accept and issue PWD requests electronically within 7 business days.

While OFLC is working on an electronic filing system for PWD requests, it remains uncertain as to when it will be implemented. In the meantime, the mailing procedure and overall implementation of this new process will lead to delays in the processing of wage determinations and consequently of PERM applications, which require that employers obtain a PWD prior to filing. This additional processing time should be factored into the preparation time for PERM applications, particularly for individuals nearing their last years in H-1B status.

So best advice, if you are thinking about PERM, file the PWD forms before the rules will take effect. We will keep you posted.

USCIS recently released an excellent FAQ about the visa wait times, and the reasons why it takes so long to immigrate under the preference system. I still think that with time, things will get even worse. In order to keep families from being apart for years, Immigration reform must address the visa backlog as well.

A visa must be available before a person can obtain an employment-based green card. Because more people want a green card than there are visas available, not everyone who wants a green card can get one immediately. Therefore, some people have to wait in line until a visa is available.

The U.S. Department of State (DOS) gives out 140,000 employment-based visas each year. About 85% of those visas go to people seeking a green card in the United States, while about 15% go to people seeking to immigrate from abroad. Currently, about 234,000 people have employment-based adjustment of status (green card) applications pending in the United States and are waiting to get a visa. How long you wait for a visa depends on the supply and demand for your particular preference category, your priority date, and the country your visa will be charged to, usually your country of birth.

Read more here....

The HIV ban removal will be remembered as a historic decision, through this final rule, the Centers for Disease Control and Prevention (CDC), within the U.S. Department of Health and Human Services (HHS), amended its regulations to remove ``Human Immunodeficiency Virus (HIV) infection'' from the definition of communicable disease of public health significance and remove references to ``HIV'' from the scope of examinations for aliens. Prior to this final rule, aliens with HIV infection were considered to have a communicable disease of public health significance and were thus inadmissible to the United States per the Immigration and Nationality Act (INA).

As a result of this final rule, aliens will no longer be inadmissible into the United States based solely on the ground they are infected with HIV, and they will not be required to undergo HIV testing as part of the required medical examination for U.S. immigration.

Immigrants for Whom the Regulation Applies

The provisions in 42 CFR part 34 apply to the medical examination of :

(1) aliens outside the United States who are applying for a visa at an embassy or consulate of the United States;

(2) aliens arriving in the United States; and

(3) aliens required by the U.S. Department of Homeland Security (DHS) to have a medical examination in connection with determination of their admissibility into the United States; and

(4) aliens who apply for adjustment of their immigration status to that of lawful permanent resident.

An Immigrant seeking permanent residence, whether through an immigrant visa or asylee status, or through an adjustment of status must undergo a medical examination to determine whether the alien is inadmissible on medical grounds. Aliens seeking admission as refugees also undergo medical examinations overseas. Overseas examinations are conducted by panel physicians designated by the Department of State.

Applicants for adjustment of status to lawful permanent resident are required to have a medical examination conducted by a civil surgeon designated by U.S. Citizenship and Immigration Services within DHS. Prior to this rule HIV infected applicants were barred from Adjusting Status unless a hardship waiver was filed. Only applicants with a qualifying US citizen relative could file for this waiver. Many same sex applicants without a qualifying relative, could not adjust status under the previous legislation. This change will bring a historic relief to thousands of applicants infected with HIV, that were not eligible for any waivers to adjust.

If you are an HIV intending immigrant, please consult an experienced immigration attorney about your options.

Continue reading "The HIV Travel Ban is now lifted - What Classes of Immigrants this Regulation Applies to?" »

A Blog reader called me the other day and wanted to know when his priority date will become current. His I-485 adjustment was filed in August 2007 when visas opened up for 30 days, and since that time retrogressed. The applicant is from India and like many others in his shoes is eager for answers. So how do visa numbers become available?

In order to approve an application for adjustment of status (I-485), there must be a visa number available in the particular category. This, in turn, depends upon the country of chargeability and the priority date of the case. Once the U.S. Citizenship and Immigration Services (USCIS) has reviewed a particular I-485 application, a request is submitted to the DOS for a visa authorization. If the USCIS makes the request for a visa number to the DOS when the priority date of a particular case is current, and an immigrant visa number is available, the authorization is transmitted and the USCIS can approve the I-485 application. This is all tracked through the DOS Immigrant Visa Allocation Management System (IVAMS).

If an immigrant visa number for a particular individual is requested from the DOS by the USCIS, but none is available, the request is moved to the "pending" file with the DOS. Data from this pending file is used by the DOS to calculate the appropriate cutoff dates for the backlogged categories in the Visa Bulletin each month.

Cases placed in the pending demand category are processed as immigrant visa numbers become available. The DOS communicates with the USCIS regarding the A numbers of the cases for which visa numbers have been authorized. These cases are then processed to completion and green cards are then issued by the USCIS.

As you can see, this is a very complicated and streamlined process, with actual visa numbers tracked, issued, and assigned to particular green card cases as part of the approval process. Clients often do not understand why they have to wait, sometimes years for visa numbers to open, even after USCIS approvals. We hope that both agencies will find a better way to talk to each other and make the Immigrant visa process and much smoother one.

The U.S. State Department has officially released information about this year's DV-2011 green card lottery, which begins on October 2, 2009. Don't wait too long and sign on the registration process by reading through this year's instructions. For those of you who were curious, the DV-2011 list of ineligible countries remains the same as last year:

* Brazil
* Canada
* China (mainland-born)
* Colombia
* Dominican Republic
* Ecuador
* El Salvador
* Guatemala
* Haiti
* India
* Jamaica
* Mexico
* Pakistan
* Philippines
* Peru
* Poland
* Russia
* South Korea
* United Kingdom (except Northern Ireland) and its dependent territories
* Vietnam
* Persons born in Hong Kong, SAR, Macau SAR and Taiwan ARE eligible

Click here for info and the official site

Jennfier Macfayden writes an excellent Blog about Immigration at www.about.com, she opened up a worldwide survey as to why or why not one should apply for the lottery. Here is a reader's comment:

Maybe you don't know what it means to be in the USA. It's a blessed nation despite what you may think, because you are there, taking things for granted like having clean water, good roads and plenty of food. I would like to have a green card to work and change my life in America. I will keep playing. That's all I can do.

Read more...

The State Department has advised AILA liaison that due to the large number of approvals issued in the past few weeks, employment-based visa numbers are no longer available for this fiscal year that concludes on September 30, 2009. This affects all categories of employment based immigrant visas. Numbers will become available again on October 1, 2009, as stated in the October 2009 Department of State Visa (DOS) Bulletin.

USCIS will continue to accept I-485 applications in categories showing visa availability based on the September Visa Bulletin, USCIS will not able to approve pending I-485 applications unless a visa number was previously captured. Where a USCIS officer adjudicated or pre-adjudicated a case and it was in the DOS "pending" queue and DOS has sent the electronic notification allocating a number to the Service Center, USCIS should issue the approval.

For those consular processing, because visa numbers for scheduled cases have already been allocated as part of the scheduling process, scheduled immigrant visa appointments at consulates for September will continue and immigrant visas may be issued.

We will keep you posted with more information of course.

Employers and potential employees (and some immigration lawyers) are very confused when it comes to H1B visa numbers this year. The major reduction in the number of filings for H1B petitions has risen questions from employers regarding whether there is a set closing date for filing H1B cap petitions for fiscal year 2010, starting October 1, 2009. The answer to this is NO. Cap-subject H1B petitions can be filed for the full FY 2010 season, or until the numbers are all used up. As of 8-27-2009, cap numbers remain available and overall usage remains insignificant. Approximately 45,000 H1B visa numbers had been used toward the regular FY2010 H1B cap.

Also playing into the availability of H1B numbers is the increased scrutiny of H1B petitions, particularly those filed by software consulting companies. This has resulted in higher rates of denials and a general crippling effect on those companies that might otherwise file additional H1B petitions. If the U.S. Citizenship and Immigration Services (USCIS) does not receive enough approvable H1B petitions to exhaust the regular H1B cap for 2010, it will continue to accept H1B petitions against this cap until the end of 2010 which will be September 30, 2010.

If the numbers of visas out until October 1st, then employers will be able to request immediate start dates for employees. This may result in some additional filings, as it is more in keeping with the actual needs of employers. I predict an increase in H1B filings as of October 1, hoping the economy will rebound at that time as well.

According to a recent Newsweek article, Immigrants irrespective of their legal status are actually good for the job market, and boost the economy.

Lou Dobbs, take note: immigrants are good for our economy. The most skilled create jobs in technology and engineering, says Duke professor Vivek Wadhwa, who estimates that in 2005 immigrant-founded engineering and tech companies employed 450,000 people and generated $52 billion in sales. But even the least skilled more than repay their costs in schools and health care. Two highly respected Australian economists, Maureen Rimmer and Peter Dixon, studied the issue for the libertarian Cato Institute. "The net impact on U.S. households from tighter border enforcement is unambiguously negative," they found, because even low-skilled immigrants expand the economic pie and create jobs farther up the ladder. Cato's Dan Griswold says the study shows a $250 billion difference between the most and least restrictive immigration policies.

Read more here

Here is what Michael Bloomberg, the Mayor of New York, had to say about Immigration and the economy:

America's deep pool of talent and technological knowhow will continue to make it a highly desirable location—and investment opportunity. And if Congress has the sense to fix our broken immigration system, our open society and world-class universities will remain a magnet for the world's best and brightest. That's important: Economists have estimated that every person arriving on an H1-B visa creates jobs for five native-born Americans. Competing for talent and capital will also require all levels of government to invest more in our quality of life—mass transit, parks, schools, and so forth. That will help raise our long-term standard of living, even if real incomes don't rise appreciably in the near term.

USCIS has reminded all applicants for Adjustment of Status, Asylum, Legalization and Temporary Protected Status to obtain an Advance Parole (AP) document before traveling abroad. AP allows an applicant to re-enter the U.S. after traveling abroad.

In order to obtain Advance Parole, individuals must file Form I-131, Application for Travel Document to USCIS. The USCIS cautions individuals planning on traveling abroad to file Form I-131 well in advance of their travel plans (approximately 90 days before) in order to prevent possible conflicts.

We suggest all applicants of I-131 to file it in time to get the AP approval before leaving the U.S., otherwise it could have dire consequences and may result in an individual not being able to re-enter. Therefore, individuals that have a pending I-485 are encouraged to apply for Advance Parole before traveling abroad for easier re-entry if the circumstances of their current status changes.

The USCIS California Service Center is in the process of identifying all pending Adjustment of Status (AOS) applications in the EB-5 category based on the pilot program, and all non-Minister Religious Worker I-485s. All applicants with pending AOS application and for a non-minister Religious Worker in the EB-5 category can bring this to the notice of California Service Center.
Please let us know if you have such application pending before CSC.

U.S. Department of State’s visa bulletin brought some relief for some EB-2 applicants. The cutoff date for India and China moved forward to October 1, 2003 which had recently retrogressed to January 1, 2000. No explanation was provided for the change to October 1, 2003.
Summary of August 2009’ visa bulletin:
EB-1: This category is current for all countries of chargeability.
EB-2: This category is current for all countries, except India and China. The cutoff date for both India and China moved forward by more than three years, to October 1, 2003. Shifts of this nature toward the end of the fiscal year, however, normally indicate an availability of immigrant visa numbers in other categories that could be shifted where they are needed; in this case to India and China.
EB-3: The EB-3 category remains completely unavailable for all countries, as all numbers have been used for the current fiscal year.
EB-4 & EB-5: Both will be current for all countries. However, the Visa Bulletin indicates that there is heavy demand in the EB-4 category.

We welcome the news mainly in respect of EB-2 category.

From time to time we publish posts by guest writers, this article is written by Kat Sanders, who regularly blogs on the topic of court reporter school online at her blog Court Reporter Schools. She welcomes your comments and questions at her email address: katsanders25@gmail.com

Obtaining a visa to enter another country is not often an easy job. It involves a great deal of work and numerous formalities before you can are legally allowed to enter the foreign nation. Very often, lawyers who have experience and who are specialized in the visa applications process are able to help you with your visa, especially if you need one to be able to work in a new country or stay there for a while before you decide on your future options. A visa lawyer can help you by:
• Taking care of the paperwork and research: A company that is looking to hire employees from overseas will have to get them special visas that allow them to work for a certain period in their homeland. This means that all applicants and their credentials will have to be screened in order to protect national security and ensure that terrorists and other anti-social elements are not using this visa to enter the country illegally.
• Ensuring that you follow all the regulations of the visa application process: Instead of just taking care of the paperwork and doing your research, visa lawyers help you by ensuring that you stay out of trouble with the immigration authorities. If an employee sponsored by you for the visa leaves your employ and is arrested or wanted at a later date for a crime, you may be held personally responsible as you helped bring them into the country. Visa lawyers help you avoid such pitfalls and advise you according to the situation and the employee.
• Getting visas for your family: If you are an individual who would like to bring your spouse or family (from another country) over to live with you, a good visa lawyer can tell you how to go about it, what your options are, and how likely you are to succeed. The whole process depends on your visa and citizenship status.
• Facilitating your citizenship process: Visa lawyers also help with your nationalization process and tell you how to go about becoming a citizen of the country you’ve been living in all these years.
If there’s any issue that deals with immigration and that has you in a quandary, don’t hesitate to consult a good visa lawyer, because if you don’t, you may get into trouble with the authorities.

USCIS announced on June 22, 2009 that the premium processing service will resume for I-140 (Immigrant Petition for Alien Worker) cases. This service was suspended since July 2, 2007. The USCIS announcement advises that they will accept premium processing requests for all EB1, EB2, and EB3 cases, except for EB1 Multinational Executive Transferees and EB2 National Interest Waiver cases.

USCIS will charge an additional $1000 filing fee for the premium processing service. USCIS will take one of the following action within 15 calendar days in-lieu-of this fee: approve the case, issue a notice of intent to deny (NOID), issue a request for evidence (RFE), or open an investigation for fraud / misrepresentation. They also provide a dedicated telephone number and email address to facilitate communication regarding the case.

The Nebraska Service Center (NSC) of the U.S. Citizenship and Immigration Services (USCIS) has informed American Immigration Lawyers Association (AILA) that all applications for reentry permits will be denied if the fingerprinting is not completed within 120 days of filing. The NSC issued an advisement in June 2009 regarding a change in procedures related to requests for rescheduling biometrics (fingerprinting) appointments for applications for reentry permits. Reentry permits are travel documents used by U.S. permanent residents (green card holders) who need to remain outside of the U.S. in excess of one year. The procedures for requesting expedited fingerprinting have not changed. Applications for reentry permits must be filed from within the United States and the subsequent biometrics appointment must also be completed inside the United States. This request must occur before the appointment date. A request for rescheduling must be accompanied by a reasonable excuse for the inability to appear for the scheduled appointment. Rescheduled appointments are set within a maximum 30-day time frame. Applicants should plan their travel accordingly, as the announcement is absolute with respect to the 30-day time frame.
We will keep you posted for the changes pertaining to biometrics procedure for reentry permits.

On June 26, 2009, U.S. Citizenship and Immigration Services (USCIS) announced that the current edition of the Employment Eligibility Verification Form I-9 (Rev. 02/02/09) will continue to be valid for use beyond June 30, 2009. USCIS has requested that the Office of Management and Budget (OMB) approve the continued use of the current version of Form I-9. Once the extension request is approved, USCIS will update Form I-9. At that time, employers will be able to use either the Form I-9 with the new revision date or the Form I-9 with the 02/02/09 revision date.

Read more here..