Visa Lawyer Blog

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Still time to apply for H1B Visas, but numbers are running fast. U.S. Citizenship and Immigration Services (USCIS) announced that, as of May 18, 2012, it has received approximately 48,400 H-1B petitions counting towards the congressionally-mandated 65,000 limit.

USCIS also confirmed that it has received approximately 17,500 H-1B petitions for employees with advanced degrees from U.S. colleges and universities. The annual limit on H-1B petitions in the advanced degree category is 20,000. Accordingly, USCIS is still accepting H-1B petitions under both the general cap and the advanced degree cap.

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Labor shortages have been a significant challenge to U.S. agriculture for as long as I can remember. On rice farms in Texas to corn fields in Nebraska, it seems as though farmers are always running short of farmhands when it comes time to harvest.

But now, unlike the simpler days of 20 years ago and longer, when farmers could just hire teenagers and retirees, farmers and ranchers are facing new challenges with labor issues. From border security concerns and state versus federal authority questions to I-9 audits and government-caused labor delays under the H2-A program, finding a reliable agriculture workforce is becoming more and more difficult.

From the Border to the Court

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Since the passage of the E2 Investor Visa Bill by the house in March, many Israelis have been calling my office asking when can they finally move here and start the business of their dreams. Well,the Senate passed the bill by unanimous voice vote last week. It had been unanimously passed the U.S. House of Representatives on March 19 and now heads to President Obama for his signature.

The measure added Israel to the list of countries eligible for E-2 investor visas. Once signed into law by President Obama, as expected, the bill will put Israel on a list with more than 79 other countries whose citizens are eligible for the visas.

The Embassy of Israel in Washington applauded the passage of legislation, saying it enables “Israeli nationals to make large investments in the U.S. economy, creating many additional jobs for Americans.

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With the upcoming Provisional Waiver changes, as well as the, June 4, 2012 change to allow mail requests to waive certain grounds of inadmissibility directly to a U.S. Citizenship and Immigration Services (USCIS) Lockbox facility, we have to remember that Waivers are complicated and frustrating to handle. But his article, prepared by attorney Ekaterina Powell from our office will focus on a success story we are happy to share.

For many, immigration to the United States through marriage to U.S. citizens is an easy process that leads to permanent residency within 6 months. For others, the road to permanent residency in the U.S. is a thorny one, consisting of years of separation, extreme hardships suffered by the family members, followed by administrative delays, immigration backlogs, and struggles as they go through the immigration system.

Our firm is especially happy when we are able to help our clients in a particular difficult case which results in another family being reunited.

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Some great news to report for our readers. As you may know the processing of I-601 and I-212 waivers may take a very long time, often resulting is the separation of families.

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If you are not familiar with Waivers, some foreign nationals may be deemed inadmissible under INA 212(a), which covers bases including unlawful presence, criminal violations, and immigration fraud or misrepresentation. If a foreign national is considered inadmissible, then he or she must obtain a waiver of inadmissibility if they are seeking lawful permanent resident status. Generally, in order to successfully obtain an I-601 waiver, you must prove “extreme hardship” to a qualifying relative is moved to the applicant’s country, and that the qualifying relative can’t remain in the US without the applicant. These hardships are also weighed against “mitigating and aggravating factors.” Currently waiver cases are filed directly with specific US posts around the world resulting in different processing times depending on where the case is filed.

Beginning June 4, 2012, individuals abroad who have applied for certain visas and have been found ineligible by a U.S. Consular Officer, will be able to mail requests to waive certain grounds of inadmissibility directly to a U.S. Citizenship and Immigration Services (USCIS) Lockbox facility. This change affects where individuals abroad, who have been found inadmissible for an immigrant visa or a nonimmigrant K or V visa, must send their waiver applications.

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The United States faces intense competition from foreign countries, especially China, who seek to persuade highly skilled citizens who have settled in our country to return home to start businesses there, according to a report released Tuesday by an immigration group led by Mayor Michael R. Bloomberg of New York.

“China is proving the most aggressive and ambitious” among the United States’ economic competitors in seeking to reverse a brain drain and lure back their scientists, engineers and entrepreneurs, the report by Mr. Bloomberg’s group, the Partnership for a New American Economy, found.

The report is broadly critical of the American immigration system, which says is slow, inflexible and not in sync with the nation’s labor needs. “Self-inflicted economic wounds” caused by the system, the report says, discourages foreigners from investing and blocks foreign students with advanced degrees from American universities from remaining here.

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USCIS has received approximately 42,000 H-1B petitions subject to regular-cap (for bachelor’s degree holders) and 16,000 H-1B petitions subject to master-cap (for U.S. advanced degree holders).

Therefore, there are about 23,000 spots available under the regular-cap, and 4,000 spots left under the master-cap. Hurry and file fast.

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The reliability and fairness of our immigration system can be evaluated only if the government’s procedures and activities are transparent. The American Immigration Lawyers Association (AILA), the Legal Action Center, and in cooperation with counsel at Steptoe & Johnson LLP, filed a FOIA lawsuit in July 2010 against Department of Homeland Security (DHS) and United States Citizenship and Immigration Services (USCIS) seeking the public release of records concerning agency policies and procedures related to fraud investigations in the H-1B program. There was significant public interest in these records because USCIS’s H-1B practices have caused confusion and concern among U.S. businesses that legitimately depend on temporary foreign workers with specialized knowledge to operate successfully.

On Friday, May 18, 2012, after protracted litigation, DHS and USCIS released unredacted copies of all of the documents sought by AILA. The history of the litigation went as follows:

The complaint brought by AILA alleged that DHS and USCIS violated FOIA when they wrongfully withheld information responsive to two FOIA requests and failed to timely respond to AILA’s requests. The complaint asked the court to enjoin defendants from continuing to withhold information relevant to the requests, to declare the requested records are not exempt from disclosure, and to award any other relief that the court deems just and equitable.

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This past April, a decision came down from the Board of Immigration Appeals (BIA) that addressed an important issue concerning Advance Parole for aliens whose unlawful presence for one year or more would trigger the 10 year ban from the U.S. The BIA decision of Matter of Arrabally and Yerrabelly has clarified what counts as a departure under the INA.

The statute that concerns all immigrants who have been in unlawful presence for one year or more is as follows: “Beginning April 1, 1997, a person who has been unlawfully present in the U.S. for one year or more consecutively and again seeks admission is barred for 10 years from the date of such person’s departure or removal from the U.S. INA section 212(a)(9)(B)(i)(II), 8 U.S.C. section 1182(a)(9)(i)(II). In order to trigger the 10-year bar, departure from the U.S. is required, H.R. Conf. Rep. 104-828, 104th Cong., 2d Sess. at 207.”

The (BIA) has clarified the term – departure — in the Matter of Arrabally on April 17, 2012 which will help thousands of immigrant applicants who like Manohar Rao Arrabally have been entangled in the web of statutes, regulations, case law, and agency memorandum.

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California’s agency that licenses lawyers wants to admit an illegal immigrant to practice law, an unprecedented request that the state’s highest court decided Wednesday to review.

The State Bar of California certified Sergio C. Garcia after he passed a written test and a moral examination, sending it to the California Supreme Court for routine approval. The bar informed the court at the time that Garcia was undocumented. In a unanimous decision, the state high court ordered the bar to explain why an illegal immigrant should be given a legal license and invited briefs from other parties, opening the door to a potentially heated debate over national immigration policy.

Would the issuance of a license imply that Garcia could be legally employed as an attorney? the court asked. What are the legal and public policy limitations, if any, on an illegal immigrant’s ability to be a lawyer? May other state agencies that license professionals also admit undocumented immigrants? After reviewing the written arguments, the court may hold oral arguments on the case.

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