Visa Lawyer Blog

You might have heard of Twitter, you might even be using it, you might even be an addict (like me).

If you have no idea what Twitter is, it's basically a 'microblogging' service which allows you to push out small bite sized updates (no more than 140 characters). It started out as an SMS based service, but has really moved onto the data platform now with mobile clients improving and data plans becoming more affordable.

Now ICE the USCIS enforcement arm is joining the fun. U.S. Immigration and Customs Enforcement (ICE) is using Twitter and YouTube to engage and educate the public about the agency's enforcement efforts and its mission to keep the homeland safe.With Twitter (www.twitter.com/wwwICEgov (http://www.ice.gov/exec/leaving.asp? url=http://www.twitter.com/wwwICEgov) ) the public is able to follow breaking news from ICE and access useful information from the agency. ICE's YouTube channel (www.youtube.com/wwwICEgov (http://www.ice.gov/exec/leaving.asp?url=http://www.youtube.com/wwwICEgov) ) offers viewers a glimpse into ICE with videos highlighting the agency's national security role, special capabilities, enforcementoperations, public awareness campaigns and ceremonies.

More here...

Update from our local AILA office. This morning Christopher D. Matson was sworn as the new port director for the San Ysidro and Otay Mesa Ports of Entry. Mr. Matson most recently served for the past two years as the Port Director at Miami International Airport Mr. Matson succeeds Interim Port Director David Murphy, who filled the position for the past six weeks while a replacement was found for former Port Director Oscar Preciado.

Mr. Preciado recently assumed the position of liaison to the U.S. Government Services Administration during the port's upcoming $577 million reconstruction project.ÿ For additional information, please see CBP's press release: Here

Here is a recent update from our local AILA office. All USCIS Application Support Centers (ASC’s) now operate Monday - Friday from 8 a.m. to 4 p.m. For our district that includes the Chula Vista, San Marcos, and Imperial ASCs.

Previously, the ACS’s accommodated special situations like requests for earlier biometric capture or accommodating people who missed their appointments on Wednesdays and Saturdays. Now, the best time to walk-in because of these kind of issues is Monday through Friday between 2:30 and 3 p.m. This includes Wednesday, as Wednesday is no longer a light schedule day.

United States DOL has advised AILA of that the iCERT system will be taken out of service on Tuesday, August 25, from approximately 5:00 AM to 11:00 AM EDT for system upgrades. DOL will be adding many new features to the application in order to better serve our needs.
Salient features in the new release include:
• The ability to Withdraw Certified LCAs on-line
• The ability for Main Account Holders (Employers as well as Attorneys/Agents) to grant account permission to their Associate Accounts. This will include the ability to grant permission to create a case, submit completed cases, and withdraw cases submitted by the Associate Account Holder as well as view the Main Account Holder.
• The ability for Associate Account Holders (Employers as well as Attorneys/Agents) to create profiles for frequently used company/attorney information, and use those profiles to pre-fill applicable sections of the Form ETA9035E
• Allow the Associate Account Holders' applications to be pre-populated with the company information specified by the Main Account Holder
• Copy the Attorney/Agent's email address with certification and denial reason(s) that were previously only sent to the employer's main contact email
• An enhanced user guide detailing more application features
• Usability and navigation enhancements

The legacy LCA Online System will remain in service and will not be affected by the outage. Please contact the OFLC help desk at oflc.portal@dol.gov for further information on the outage. For specific questions on your application, application status, or other questions that do not pertain to the outage, please contact the OFLC National Processing Center at lca.chicago@dol.gov.

We all know that the nation's immigrant detention system is a mess. This consists of a collection of public and private facilities that have been widely criticized in recent years, including in two lawsuits that alleged poor conditions in a San Diego detention center. Also, abuse of detainees as well as corruption cases.

Expected to take from three to five years, the reform is intended to bring more order to a “disjointed” detention network of roughly 350 facilities that is heavily dependent on contractors. The effort will be overseen by a new Office of Detention Policy and Planning, headed by former Arizona corrections official Dora Schriro.

More immediate changes will include assigning federal detention managers to work in 23 facilities that Morton called the agency's most significant, which house more than 40 percent of the detainee population. ICE officials would not say if the agency's detention center in Otay Mesa, one of its larger contract facilities and the subject of two 2007 lawsuits over detention conditions, would be among them. We hope the above referenced changes will bring a much needed reform.

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Some more news to report from our local community. Three teenagers who were detained by immigration officials at a trolley station and sent to Mexico last month have been allowed to return to the United States on what is known as humanitarian parole.

The students, ages 15, 16 and 17, reunited with their families in San Diego about 10 a.m. Wednesday. They are working on hiring an attorney and will face an immigration judge in the near future to present their cases for legal residency.

The teens were among 21 suspected illegal immigrants detained at the Old Town trolley stop May 20 in a joint operation led by the U.S. Transportation Security Administration and Border Patrol.

The students, who were on their way to school, admitted to being in the country illegally after being questioned by federal agents and were voluntarily returned to Mexico, said Daryl Reed, supervisory agent for the Border Patrol. He said they were sent to Mexico after officials failed to find proper legal guardians for the teenagers in the United States.

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A few days ago, Attorney General Eric Holder, vacated the decision in Matter of Compean and directed the BIA and Immigration Judges to apply the decision in Matter of Lozada for claims of ineffective assistance of counsel, pending promulgation of relevant regulations.

Attorney General Eric Holder withdrew the decision issued by former Attorney General Mukasey on the last day of the Bush Administration, which had eviscerated the right to effective representation in Immigration Court proceedings. Attorney General Holder had stated during his confirmation process that he would review the Mukasey decision and that he disagreed with its reasoning.

By ensuring that immigrants seeking relief from the harsh consequences of deportation are assured that they will not be punished by the ineffective actions of their counsel, Attorney General Holder has reset the standard that the Constitution ensures.

I am not very proud to announce this but, ICE stated a few days ago that the San Diego County Sheriff’s Department is the first law enforcement body to implement the Secure Communities program, under which every individual booked into the three largest jails in San Diego County will have biometric-fingerprints checked in a DHS system for an immigration record.

Secure Communities, which is administered by U.S. Immigration and Customs Enforcement (ICE), streamlines the process by which ICE determines if an individual in the prison system is a removable criminal alien. Under the program, every individual booked into the three largest jails in San Diego County has their biometrics-fingerprints-checked in the U.S. Department of Homeland Security's (DHS) biometric system for any immigration record. Prior to the advent of Secure Communities, as part of the standard booking process, these fingerprints were only checked for criminal history information in the U.S. Department of Justice's (DOJ) biometric system.

If any fingerprints match those of someone in DHS's biometric system, the new automated process notifies ICE and the San Diego intake site submitting the fingerprints. ICE evaluates each case to determine the individual's immigration status and takes appropriate enforcement action after offenders complete their prison terms.

Illegal Immigrants will now be more reluctant to get in touch with law enforcement, thus expect more abuse towards illegals.

Read the ICE press release here..

A brief note to thank the brave men and women of the Armed Forces, and remember those who have lost their lives defending liberty.

Have a safe and happy Memorial Day!

President Barack Obama will gather congressional leaders at the White House next month to launch a policy discussion on immigration, according to an administration official, but legislative action isn't likely until next year at the earliest. he June 8 meeting is meant to show the White House is moving on the issue -- which is key for Hispanic advocacy groups that helped Mr. Obama get elected in November.

Mr. Obama has embraced the general concept of creating a program to provide a path to citizenship for illegal immigrants already in the U.S., while continuing to tighten the border with Mexico.

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Several thousand immigration rights advocates marched in Los Angeles, San Diego and hundreds gathered in the rain in San Francisco on Friday, but crowds in California appeared much smaller than in previous May Day demonstrations.

Marches in downtown Los Angeles took on a festive atmosphere with people carrying signs and banging drums while vendors sold food, cotton candy and ice cream from pushcarts with ringing bells. One group walked to a building housing federal immigration offices and blared salsa music from loudspeakers.

Immigrants and supporters in San Francisco's Dolores Park hoped to keep immigration reform on Obama's agenda. They held signs calling for amnesty for undocumented immigrants and an end to immigration enforcement raids. Many argued that allowing undocumented immigrants to become citizens and take a more active role in the economy will improve the country's financial outlook. Dozens of students participated, many calling for passage of the DREAM Act, which was reintroduced in the U.S. Senate in March, and would make undocumented immigrants brought into the U.S. under the age of 15 eligible for in-state tuition.

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The U.S. Department of State (DOS) has issued the Visa Bulletin for May 2009, which announced EB3 unavailability for all countries of chargeability. The EB2 cutoff dates for China and India had been February 15, 2005 and February 15, 2004, respectively, and have not changed for May 2009. The EB3 visa unavailability is due to high demand for immigrant visa numbers and, particularly, a large number of cases with older priority dates.

The EB2 category continues to be current for all countries, except India and China. The cutoff dates for India and China did not change from the prior month. The cutoff date for India remains as February 15, 2004. China's cutoff date is still February 15, 2005.

Lets see what the summer will hold for all visa categories.

Living in a border city like San Diego we hear stories like this one from time to time. The AP report about Pedro Guzman has been an American citizen all his life. Yet in 2007, the 31-year-old Los Angeles native — in jail for a misdemeanor, mentally ill and never able to read or write — signed a waiver agreeing to leave the country without a hearing and was deported to Mexico as an illegal immigrant.

For almost three months, Guzman slept in the streets, bathed in filthy rivers and ate out of trash cans while his mother scoured the city of Tijuana, its hospitals and morgues, clutching his photo in her hand. He was finally found trying to cross the border at Calexico, 100 miles away.

In a drive to crack down on illegal immigrants, the United States has locked up or thrown out dozens, probably many more, of its own citizens over the past eight years. A monthslong AP investigation has documented 55 such cases, on the basis of interviews, lawsuits and documents obtained under the Freedom of Information Act. These citizens are detained for anything from a day to five years. Immigration lawyers across the nation say there are actually hundreds of such cases.

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From to time to time, we update our readers on the recent changes and updates coming from the local Immigration office. San Diego has 2 main locations, one in Chula Vista, and the other in Downtown San Diego. Once a month, the American Immigration Lawyers Association local chapter meet, with the government reps and receive updates on recent policy changes. Here are some of the questions discussed:

1. How long is a file held at the District Office after an adjustment or naturalization appointment? There have been reports of files sent to the National Records Center when a naturalization appointment was rescheduled by USCIS or when an applicanUattorney timely rescheduled an appointment If this occurs will the rescheduled appointment be delayed?

Approvals are promptly shipped to the National Records Center or Federal
Records Center. Denials are kept for about 30 days for opportunities to verify AR11
address databases and filing of MTRs and Waivers. If an interview applicant is a no show, the file is administratively closed and shipped out to the National Records Center within 1 week. A reschedule will not occur until the local office has the file.

2. Applicants are no longer receiving I-551 (Green Card) stamps at the successful conclusion of their adjustment of status interview. When did this policy change? Are these applicants allowed to keep their Employment Authorization Documents and Advance Parole Documents pending receipt of their Resident Alien Cards?

This Procedure changed recently. Applicants can retain all documents evidencing their current immigration status, Once the green card received documents such as Paroles and Work Authorization documents should be returned to USCIS. All approvals are subject to supervisory review. If approved, notification is sent out within 30 days. Applicants who receive a “green card” should make an effort to return their advance parole and/or EAD cards by mail to 880 Front Street, Room B268, San Diego, CA 92101 with a notation of the A number and that the applicant is now a permanent resident

3. Clients/Applicants report that they are receiving biometrics appointments from the National Benefits Center when they already have appointment notices. Is there a "glitch" in the system?

Local Immigration office is working with the National Benefits Office to address this glitch.

We will keep our readers updated with more information.

We post a practice tip from AILA member Jill Bussey at Baker and McKenzie, very useful

A close review of Paragraph E of the April 2009 Visa Bulletin, issued March 9, 2009, reveals the Employment Third Preference Worldwide and Philippine cut off of March 1, 2003 was effective immediately upon issuance of the Visa Bulletin. This has been confirmed by communications with Charles Oppenheim of the State Department. Mr. Oppenheim indicated he attempted to stave the cut-off through March, however the demand for EB3 numbers was too high. Mr. Oppenheim reiterated the information found in the Bulletin, "since over 60 percent of the Worldwide and Philippines Employment Third preference CIS demand received this year has been for applicants with priority dates prior to January 1, 2004, the cut-off date has been retrogressed to 01MAR03 to help ensure that the amount of future demand is significantly reduced. As indicated in the last sentence of Item A, paragraph 1, of this bulletin, this cut-off date will be applied immediately. It should also be noted that further retrogression or "unavailability" at any time cannot be ruled out." Mr. Oppenheim advised 85-95% of Employment Based adjudications occur through USCIS, which has been expediting the processing of Third Preference cases. He also shared that he has seen increased demand in First Preference cases from 2007. It is highly unlikely the Third Preference category will remain available in the near future. Further retrogression or "unavailability" may occur at any time.

Continue reading "Tips Regarding EB-3 Retrogression in April Visa Bulletin" »

As the H1B season coming to an end, many lawyers, like us, are busy with preparing the H1B petitions. It feels like getting ready for a race, a big race. So who is going to win the lottery this year? Last year Indian tech firms such as TCS, Infosys and Wipro apart from scandal-hit Satyam Computer Services received maximum number of H1B work permits, as these companies sent more professionals to the US.

India's second biggest software exporter led the list of H1B visas issued last year with around 4,559 work permits, Wipro received 2,678 approvals, Satyam managed some 1,919 and TCS received around 1,539 H1B permits. According to the data released by the United States Citizenship and Immigration Services (USCIS), Microsoft, the world's biggest software maker, stood fourth in the list of top H1B users with around 1,037 work permits for foreign workers.

Because of the grim economy, the prediction is that this year's numbers will be lower, at the same time, companies are still in line to secure precious H1B spots.

Click here to see the complete list of companies that got H1B visas in 2008 Download file

H-1B Nonimmigrant Visa Petitions for FY2010 (October 1, 2009 through September 30, 2010) may be filed starting April 1, 2009. Here are some tips provided by AILA.

How do I get my LCA before April 1, 2009?

As you are unable to submit an LCA for certification to the DOL earlier than six months prior to the beginning date of the period of intended employment (20 CFR §655.730(b)), you must set your employment start date on the LCA prior to October 1, 2009, if you want to have an LCA in hand before the filing period for H-1B cap subject petitions begins on April 1, 2009. For example, you can file and have certified an LCA that has a start date of September 15, 2009. But remember that the LCA end date cannot be longer than 3 years from the start date, so in this example the end date would be September 15, 2009. Also remember to make sure to annotate your I-129 form with a start date of October 1, 2009, but with an expiration date that coincides with the expiration date of the LCA.

What if the U.S. Degree will not be awarded by 3/31/09?

The USCIS has approved H-1B petitions for foreign nationals who have earned degrees from U.S. institutions of higher education, where the foreign national has completed all requirements for the degree, and hence, has "earned" the degree, but the degree has not been conferred. You must submit evidence that the foreign national has completed all requirements for the degree from an official at the school who is qualified to provide that information (e.g. Dean, Registrar or Department head). Be wary of letters prepared by unauthorized employees at the school stating that the student has completed all requirements toward a degree, when in fact there are still examinations or papers to complete. Be mindful that use of such documentation when the student has not completed the program may be considered fraud and such a document may result in the case being denied on the basis of ineligibility at the time of filing.

Can multiple identical petitions be filed for the same foreign national?

The USCIS will either deny or revoke multiple petitions filed by an employer for the same H-1B worker and will not refund filing fees for duplicative or multiple H-1B petitions. The rules does not prevent related employers (such as a parent company and its subsidiary) from filing petitions on behalf of the same foreign national for different positions, based on legitimate business need. Members are reminded to include evidence and/or an explanation in each filing to demonstrate why the filing is not a duplicate.

Will an F-1 nonimmigrant student be able to remain in the U.S. if his or her F-1 status expires before 10/1/2009?

On April, 8, 2008, the USCIS issued a regulation that extended the authorized stay for all F-1 students who have properly (timely) filed an H-1B petition and change of status request whose F-1 status will expire before October 1. The student is in valid status and can continue to work while the petition is pending at the USCIS. If the case is rejected, the student's F-1 status will dictate the continued ability to remain in the U.S. If the case is accepted under the quota, the student will have an extension that enables the student to remain in the U.S. and continue to work until the requested start date indicated in the H-1B petition takes effect. Therefore it is important to make sure you select change of status in Section 3 of the I-129 form to get this protection.

Continue reading "H1B Visa Lawyer - Filing Tips and Resources" »

Another evidence that the Immigration debate is heating up here in San Diego and across the nation. For the first time, Border Patrol agents formally sealed off access on the U.S. side to the plaza, for years a popular meeting place on the U.S.-Mexico border for families to visit through the fence.

The Department of Homeland Security announced late last year that it will prohibit all public access to the park where a secondary wall is under construction. Since then, the plaza has become a symbolic touchstone for those who debate border enforcement policies.

A phalanx of Border Patrol agents in off-road vehicles blocked access to the plaza entrance, causing demonstrators on both sides of the issue to gather below the bluff.

Read more...

Last year, the H-1B cap was reached after a one-week filing window starting April 1st. CIS received over 143,000 petitions for the basic quota, and 31,000 for the Masters Cap, resulting in a lottery selection process. The 11,000 not selected for the Masters level H-1B cap were returned to the basic pool and had “two bites at the apple.”

This year, we expect another lottery for both categories. Due to the recession, petition volume is expected to be significantly reduced, with perhaps a better than 65% success rate for the basic group and a 90% success rate for the advanced degree holders. An employer may only submit one petition per candidate.

Employers should review their 2009/2010 employment needs to determine the benefits of participating in this year’s H-1B cycle. Although the start date on the petition must be October 1, 2009, an approval is good for three years and the employment may actually begin later. Of particular concern are current employees with expiring status: F-1 OPT Practical Trainee, TN TradeNAFTA or J-1 Practical Trainee.

The quota does not apply to foreign nationals who currently have H-1B status and seek to extend their status, or change employers. Citizens of Chile , Singapore and Australia have separate H-1B/E-3 quotas, which have never been exhausted and which remain open year-round.

It is nice to be recognized by the media from time to time. The American Bar Journal is taking an interest in Immigration law, in the February issue they feature our office and the unique H2A practice we operate.

H-2As are used by seasonal agricultural workers, who must prove that (a) they have residences in other countries they have no intention of abandoning, and that (b) they will be in the United States no longer than eight months. The ABA Journal is read by half of the nation’s 1 million lawyers every month. It covers the trends, people and finances of the legal profession from Wall Street to Main Street to Pennsylvania Avenue. We are honored.

Read the article here