Visa Lawyer Blog

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It was a mostly sunny day here in San Diego as the AILA conference entered its second Day. Lots of meetings with government officials and several open forums. I will provide a few points from the DOL open forum head by Bill Carlson, Dept. of Labor, Foreign Labor Certification.

This open forum included a summary by the DOL regarding immigration-related filings. The key points of the DOL summary are explained here for the benefit of our readers.

The DOL started the 2011 fiscal year with speedy adjudications of PERM cases, currently they are working on April 2011 cases. As for Audited cases, the current processing time is September 2010. Finally, cases pending Appeal are currently at February 2008. The DOL was able to reduce its previous backlog by almost half, and the goal is to become even more efficient by 2012.

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This year the American Immigration Lawyers Association National conference is being held in San Diego. Just a few blocks from our down town office, you can see thousands of Immigration lawyers gather to socialize, learn and advance our profession.

This morning, ICE head John Morton, opened with an discussion about ICE’s activity and future plans. ICE released new IDENT statistics that show immigrants with low level offenses account for a large number of those caught in the dragnet created by Secure Communities.

Of 477,035 matches, 71, 197 have been identified as level 1 offenders, while 405,838 were identified as level 2 and level 3, between October 2008 and February 2011.

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Today Senate and House champions of refugees introduced the “Refugee Protection Act of 2011. More than thirty years ago, Congress passed the Refugee Act, a landmark law intended to codify the United States’ obligations under the 1951 U.N. Refugee Convention. Over the years, the country has fallen short of fulfilling those obligations. Advocates Congress to act swiftly and in a bipartisan manner to pass this bill which is so vital to refugees and asylees–and to our nation’s identity.

Among other fixes, the Refugee Protection Act would eliminate the requirement that asylum seekers file their claims within one year of arriving in the United States. The rule, which has only a few, narrow exceptions, has led to untold numbers of worthy refugees being denied asylum as well as administrative waste.

The new Refugee Protection Act of 2011 includes provisions that would:

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The Biggest Immigration Conference in the US is taking place in San Diego June 15- June 18. Our lawyers will be attending sessions on recent Immigration law developments so we can better serve our clients with the most up to date information in the field.

The American Immigration Lawyers Association (AILA) will host a three hour pro bono session for area residents in need of legal advice regarding immigration concerns on Wednesday evening beginning at 5:00 p.m. More than 60 immigration attorneys will be available to answer questions and assess each participant’s situation. The clinic will be held at the Thomas Jefferson School of Law and cases will be handled on a first come first served basis.

The pro bono immigration clinic is being hosted in conjunction with the AILA Annual Conference that is being held this week at the Manchester Grand Hyatt. “This is our small way of thanking the city of San Diego for welcoming AILA for our Annual Conference which will include nearly 3,000 immigration practitioners. We are excited to be able to give back to the community and hope to be able to serve at least 150 individuals,” said AILA Executive Director Crystal Williams.

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The Department of State has released the new visa bulletin for July 2011 on June 9, 2011 which continues to bring cheers to Chinese and Indian nationals whose Priority Dates get benefited.

For the month of July 2011, the EB-1 category was current for both Chinese and Indian nationals. In the EB-2 category, the cut-off dates moved forward nearly five months for Chinese nationals (from October 15, 2006 to March 8, 2007), and also moved forward nearly five months for Indian nationals (from October 15, 2006 to March 8, 2007). In the EB-3 category, the cut-off dates moved forward from May 15, 2004 to July 1, 2004 for Chinese nationals and moved forward from April 22, 2002 to May 1, 2002 for Indian nationals.

For the month of June 2011, 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 Chinese nationals (from August 1, 2006 to October 15, 2006), and moved forward more than three months for Indian nationals (from July 1, 2006 to October 15, 2006). In the EB-3 category, the cut-off dates moved forward from April 15, 2004 to May 15, 2004 for Chinese nationals and moved forward from April 15, 2002 to April 22, 2002 for Indian nationals.

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USCIS released the latest H-1B visa information on June 6, 2011. As of June 1, 2011, USCIS reported that 13,600 cap petitions had been filed and 9,300 spots for U.S. advanced degree holders have been filled.

On May 26, 2011, USCIS reported that 13,100 cap petitions had been filed and 9,000 spots for U.S. advanced degree holders have been filled. In Summary, from May 26 to June 1, about 500 cap petitions and 300 petitions for U.S. advanced degree holders have been filed.

We will be happy to assist you in your H-1B filing needs.

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The Immigration Law field is one of the most abused areas of law by scam artists, trying to pray on innocent Immigrants. We see such victims all the time.

Immigration officials are teaming up with federal and state prosecutors, the Federal Trade Commission, lawyers’ groups and immigrant advocate organizations in a new nationwide effort to combat an epidemic of schemes by people posing as immigration lawyers.

The campaign, which will begin in Washington soon, is an effort by the Obama administration to step up one form of assistance to immigrant communities, which have intensified their criticism of President Obama as they have faced a record pace of deportations in the last two years.

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Critical update to all of you H1B job changers. Under the H-1B portability provisions, an applicant for H-1B status may begin working for the sponsoring employer immediately upon the filing of the Form I-129 Petition for Alien Worker, provided that the applicant is a “nonimmigrant” and “was previously issued a visa or otherwise provided nonimmigrant status [under the H-1B regulations].” The latter phrase has been subject to varying interpretations within the legal community. The situation arises when a foreign national enters the U.S. in H-1B status, subsequently changes his or her status to another status, and then again seeks H-1B status at a later date. In the past, some attorneys have argued that the H-1B portability provisions should allow a foreign national in this situation to begin employment with the petitioning employer upon the filing of the H-1B petition.

U.S. Citizenship and Immigration Services (USCIS) has recently intimated that it will construe the H-1B portability provisions to apply only to those non-immigrants holding H-1B status at the time of filing the subsequent H-1B petition. This development stems from the return of tentative and final non-confirmations from the E-Verify system related to those foreign nationals who are currently in a non-immigrant status other than H-1B and who have filed an H-1B petition utilizing the portability provision.

In response to the reports of erroneous non-confirmations from the E-Verify system, AILA’s Verification Committee addressed E-Verify officials on this issue. AILA was informed that the non-confirmations issued in the situation of foreign nationals filing H-1B petitions while in a valid, non-immigrant status other than H-1B are final, and have been issued based on internal guidance from the USCIS Chief Counsel’s office. This guidance has not been released to the public and USCIS does not believe that this is a new interpretation of the H-1B portability provisions. USCIS is said to be working on AC21 regulations to clarify this issue.

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At a recent meeting with U.S. Customs and Border Protection (“CBP”) and AILA reps the following questions came up:

The regulations at 8 C.F.R. § 214.2(e)(19)(i) state that E visa holders may be admitted for an initial period of not more than two (2) years. It has been our understanding that E visa holders with valid E visas and passports valid for more than 2 years should be admitted for two years upon each entry, regardless of the expiration of validity of the visa. However, some CBP officers are admitting E visa holders only until the expiration of validity of their E visas.

Please confirm that, assuming no other adverse factors, E visa holders should be admitted for two years on every admission, and not be limited to the length of their visas.

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An Application for Waiver of Grounds of Inadmissibility is filed by an alien in the event that an alien has been denied admission to the United States. Different sections of INA § 212 allow for the application of a waiver of inadmissibility. Waivers must establish that a qualifying relative will suffer “extreme hardship” if the alien is not admitted. So who is the qualifying relative? It depends on the ground of inadmissibility. A waiver for prior unlawful presence (INA 212(a)(9)(B)(v)) or misrepresentation (INA 212(i)) requires it to be established that “the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien,” whereas a waiver for criminal history (INA 212(h)) requires it to be established “that the alien’s denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien.” A US citizen fiancé(e) may also be a qualifying relative [9 FAM 41.81 N9.3(a) and 8 CFR 212.7(a)(1)(i)]. For the purposes of this memo the Application for Waiver of Grounds of Inadmissibility will be referred to as an I-601.

USCIS 5/9/11 policy memo on how USCIS processes requests to expedite the adjudication of Forms I-601, Application for Waiver of Grounds of Inadmissibility, filed by individuals outside of the U.S. The receipt notice template, Appendix 41-5, is attached following the memo.

It has been USCIS’s longstanding policy to accept requests to expedite processing of petitions or applications where the applicant or the petitioner demonstrates reasons that merit expedited processing of a petition or application. Consistent with this policy, an applicant may request that the adjudication of a Form I-601 be expedited. Requests to expedite in the Form I-601 adjudication context present unique challenges.

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