Visa Lawyer Blog

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This new new information just came in recently, but is already a confusing topic among illegal immigrants.

All Legal Permanent Residents, who are male and between the ages of 18 – 26 years, are required to register for Selective Service (females are not required to register). If you failed to register for Selective Service you will be unable to prove ‘good moral character’ for the requisite five previous years prior to the filing of your application for Citizenship which will in all likelihood result in the denial of the application.

As a rule of thumb, if you missed the window to register, an applicant should wait until age 32 years before filing a Citizenship application.

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The Department of State released the new visa bulletin for March 2011 (http://travel.state.gov/visa/bulletin/bulletin_5337.html) on February 11, 2011.

Employment Based Visa Bulletin for the month of March 2011:

The EB-1 category is current for both Chinese and Indian nationals. In the EB-2 category, the cut-off dates moved forward 7 days for Chinese nationals (from July 1, 2006 to July 8, 2006), and still remained unchanged for Indian nationals (May 8, 2006). In the EB-3 category, the cut-off dates moved forward from January 1, 2004 to January 22, 2004 for Chinese nationals and moved forward from February 22, 2002 to March 15, 2002 for Indian nationals.

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In a recent meeting between the American Immigration Lawyers Association and USCIS the following question was raised:

What is the policy regarding the procedure for a legal name change during the naturalization process. We understand that the CIS permits applicants to complete a petition for legal name change during the application interview. However, at least one field office prohibits male applicants from legally assuming their spouse’s last name, absent a separate legal name change. This practice conflicts with USCIS policy. Please clarify the agency policy.

USCIS representatives responded:

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Here is an important update for our readers. Many applicants are reporting sever delays with I-130 applications for Immediate Relative cases.

In November 2010, USCIS transferred approximately 36,000 Immediate Relative petitions from

the California Service Center to the Texas Service Center. They anticipated that this redistribution

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What do you make of this? Thousands of immigrants from India have crossed into the United States illegally at the southern tip of Texas in the last year, part of a mysterious and rapidly growing human-smuggling pipeline that is backing up court dockets, filling detention centers and triggering investigations.

The immigrants, mostly young men from poor villages, say they are fleeing religious and political persecution. More than 1,600 Indians have been caught since the influx began here early last year, while an undetermined number, perhaps thousands, are believed to have sneaked through undetected, according to U.S. border authorities.

Hundreds have been released on their own recognizance or after posting bond. They catch buses or go to local Indian-run motels before flying north for the final leg of their months-long journeys.

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There are many bars to changing status and adjusting status, and overstaying the visa is not the only problem. Unlawful employment can create several problems when one seeks to adjust status in the US.

Unlawful employment occurs quite frequently when the line between being a visitor for business and actual employment is crossed. Situations where this commonly occurs for performers and athletes are one-time appearances for which remuneration is paid incorrectly, self-employment, or providing volunteer services for which bonuses are later intended to be paid once a legitimate visa is obtained.

Appearing on Jay Leno to promote a project is fine, but getting paid to host a segment of Disney Channel is probably not. Performing at weddings, bar mitzvahs, and parties is also a problem if you were paid, and it may be a problem if you received something “inkind.”

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When it comes to the Visa Waiver program, clients often ask me, what happens when a Visa Waiver traveler who is in the U.S. visits a third, non-adjacent country, and then seeks to return to the U.S.? Do they receive a new 90-day period upon re-entering the United States? What if they go to Mexico or Canada or another adjacent country?

According to the CBP, An alien admitted into the United States under the Visa Waiver Program (VWP) who departs to visit a third country other than contiguous territory or an adjacent island and then returns to the United States to apply for admission as a temporary visitor for business or pleasure under the VWP, would receive a new 90-period of admission if he is found to be admissible.

If the same alien traveled only to foreign contiguous territory or an adjacent island, he would generally be readmitted for the balance of his original period of admission if found to be admissible. An alien is this situation may request to be admitted for a new 90-day period and be admitted for that new period if slbe is found to be admissible.

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Tough days ahead for employers. Chipotle Mexican Grill has fired a substantial number of the 1,200 employees at its 50 Minnesota restaurants after a federal immigration audit found some were illegal workers. The circumstances of the firings sparked a protest by several dozen people. As Greg Nammacher, secretary-treasurer of the Service Employees International Union (“SEIU”), Local 26 in St. Paul said: “companies all over this country are using immigrant labor, and then, when the government shines a light on those employees, the companies wash their hands of them.”

The investigation of Chipotle began several months ago, when ICE asked to see work eligibility documents. The company was not told why it was singled out for review. ICE then provided Chipotle with a list of employees whose documents might be invalid.

Chipotle tries to screen new employees, but some provide false documents showing they are eligible workers. In cases where employees insist they have the proper documents, Chipotle has sought to give them extra time to produce the identification.

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This article by Attorney Habib Hasbini will shed the light on some of the most recent developments regarding California interpretation of employer’s duty to provide employees mandated meal and rest breaks under California Labor Code section 512 and Title 8, California Code of Regulations section 11010 et seq.

An issue that potentially could shift the balance of powers in favor of the employers in California is currently pending before California Supreme Court in Brinker Restaurant Corporation v. Hohnbaum (2008) 85 Cal. Rptr. 3d 688.

The crux issue is how California employers could satisfy their meal and rest periods obligations. The underlying controversy is whether employers need only “authorize” their employees to take meal and rest periods or employers must “ensure” their employees take their meal and rest periods. Interpreting the law one way or the other will have significant implications on the vast wage and hour litigation and class action lawsuits in California.

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Slightly sooner than expected but the H1B cap was reached today. U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2011. USCIS is notifying the public that yesterday, Jan. 26, 2011, is the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY2011.

The final receipt date is the date on which USCIS determines that it has received enough cap- subject petitions to reach the limit of 65,000. Properly filed cases will be considered received on the date that USCIS physically receives the petition; not the date that the petition was postmarked. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY2011 that arrive after Jan. 26, 2011.

USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on Jan. 26, 2011. USCIS will use this process to select petitions needed to meet the cap. USCIS will reject all remaining cap-subject petitions not randomly selected and will return the accompanying fee.

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