Visa Lawyer Blog

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The American Immigration Lawyers Association is a great organization, and I am proud to be an active member. We know that this is also important to our clients and future clients.

The American Immigration Lawyers Association (AILA) will celebrate its 4th Annual Citizenship Day on Saturday, April 17 by helping more than 2,000 legal permanent residents apply to become US citizens. In partnership with the “ya es hora ¡Ciudadanía!” campaign, AILA will hold 43 naturalization clinics in 30 states serving more than 2000 immigrants who are preparing to become citizens.

s a single-day, nationwide event, AILA Citizenship Day provides free or low-cost assistance to eligible legal permanent residents who wish to apply for U.S. citizenship, utilizing partnerships between AILA chapters across the country and grassroots organizations such as the “ya es hora ¡Ciudadanía!” campaign. In 2010, AILA Citizenship Day will celebrate its 4th anniversary on a national scale and its second year with the campaign.

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This Update is from AILA Rome Chapter, very important information for HIV infected immigrants and family members.

This Post will attempt to lend clarity to the dynamic process by which HIV infection is being removed as a ground of inadmissibility under INA 212(a)(1). Although the date for final removal of HIV infection from the list of communicable diseases of public health significance is just a few weeks away, DHS and DOS are at very different stages in their attempts to align their respective regulations to this welcome new reality.

On July 2, 2009, the Department of Health and Human Services (HHS) published a Notice of Proposed Rulemaking in the Federal Register, announcing its intent to remove HIV infection from its list of communicable diseases of public health significance and inviting public comment on the issue. The Final Rule implementing this change was published on November 2, 2009; following a 60-day waiting period, the rule will become effective on January 4, 2010.

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American Immigration Lawyers Association on March 25, 2010 held their National Day of Action in an effort to bring about comprehensive immigration reform. The AILA National Day of Action is an annual event in which immigration lawyers from across the country meet in Washington DC for the purpose of speaking with members of Congress and their staff, gathering information about the legislative schedule, and urging that a comprehensive immigration bill be voted on before the November elections.

Congress was deeply divided and Democrats wanted to now focus their efforts on an issue with which they could find bipartisan support before the upcoming midterm elections. In this climate, the prospects of comprehensive immigration reform being brought before Congress in the near future looked slim. However, Congress was also feeling pressure from the other side. In addition to the health care protesters, 2000 members of the immigrant community had gathered that weekend to urge Congress to move forward with comprehensive immigration reform. Sen. Charles Schumer (D-NY) and Sen. Lindsey Graham (R-SC) had announced that they would soon be proposing a comprehensive immigration reform bill in the Senate but no firm details as to the specifics of the bill were known. Conventional wisdom is that Rep. Graham’s support for such legislation is conditioned on his ability to convince at least one other Republican in the Senate to sign on.

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A United States Permanent Resident Card, known informally as a green card (due to the color of some earlier variants), is an identification card attesting to the permanent resident status of an alien in the United States of America. Green card also refers to an immigration process of becoming a permanent resident.

The green card serves as proof that its holder, a Lawful Permanent Resident (LPR), has been officially granted immigration benefits, which include permission to reside and take employment in the USA. The holder must maintain permanent resident status, and can be removed from the United States if certain conditions of this status are not met.

The DHS Office of Immigration Statistics issued its Annual Flow Report on U.S. Legal Permanent Residents (LPRs) for FY 2009. In 2009, a total of 1,130,818 persons became LPRs of the U.S and obtained Green Cards. The majority of new LPRs (59 percent) already lived in the United States when they were granted lawful permanent residence. Nearly two-thirds were granted permanent resident status based on a family relationship with a U.S. citizen or legal permanent resident of the United States. The leading countries of birth of new LPRs were Mexico (15 percent), China (6 percent), and the Philippines (5 percent).

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A great program on KPBS this morning covered the case of Ruben Flores-Villar. Flores-Villar, 35, was born in Tijuana, Mexico, but grew up in the San Diego area, in the care of his father and grandmother.

When he sought U.S. citizenship in 2006 — to fend off criminal charges of being in the country illegally — U.S. immigration authorities turned him down. For people born before 1986, their U.S. citizen fathers had to have lived in the U.S. for 10 years, at least five of them after the age of 14. Flores-Villar’s father could not meet the second part of that requirement because he was only 16 when his son was born. American mothers need only have lived in the U.S. continuously for a year before the birth of a child.

Later this year, the Supreme Court will enter a curious corner of U.S. immigration law that applies only to children born outside the U.S. to one parent who is an American and one who is not. The law makes it easier for children whose mother is a citizen to become citizens themselves. Even after reform legislation in 1986, children of American fathers face higher hurdles claiming citizenship for themselves.

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The National Foundation for American Policy released a few interesting facts about H1B visa usage. You will be surprised when you read the following:

– Although important for the competitiveness of many U.S. companies, new H-1B visa holders represented only 0.06 percent of the U.S. civilian labor force in 2009, a tiny proportion of the U.S. workforce, making unsupportable claims that such individuals are “destroying” large numbers of U.S. jobs. Moreover, for the past several years no new H-1B visa holder could even be hired by companies in the United States for 4 to 12 months at a time due to quotas being exhausted, making it unlikely that employers would go without filling jobs if a qualified U.S. applicant was available.

– A large variety of businesses and organizations in America, including public school systems, hire H-1B professionals every year. In FY 2009, 27,288 different employers hired at least one individual on a new H- 1B petition, according to USCIS. Contrary to the popular impression, 96 percent of the employers (26,304 of 27,288) hired 10 or fewer individuals on a new H-1B petition. A total of 18,747 employers, or 69 percent, hired only one foreign national on a new H-1B petition.

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H1B filings are looking much better than last year. U.S. Citizenship and Immigration Services (USCIS) today announced it continues to accept H-1B nonimmigrant petitions subject to the Fiscal Year 2011 (FY 2011) cap. USCIS will monitor the number of petitions received for both the 65,000 general cap and the 20,000 U.S. master’s degree or higher educational exemption.

USCIS has received approximately 13,500 H-1B petitions counting toward the 65,000 cap. The agency has received approximately 5,600 petitions for individuals with advanced degrees.

There is a lot of uncertainty regarding the cap this year. Unless there is a remarkable change in the economy in the next few months, the filing levels are likely to continue to be low. The USCIS is expected to continue closely scrutinizing H1B filings, and to demand detailed proof of the nature of the job offer and eligibility for H1B approval. We will keep you posted.

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This is the latest update as of Tuesday, April 6, 2010, Vermont Service Center, as of close of business on Monday, April 5, 2010, VSC had received a total of 9,525 cap-subject H-1B petitions. Of those petitions, 6,791 were “regular” cap, and 2,734 were advanced degree. All cases received before April 7, 2010, will have an April 7, 2010 receipt date. Those received on April 7, 2010 or later will bear the actual receipt date. For those submitted for Premium Processing, the clock will start on April 7, 2010. We will update once we have the California Service Center Numbers.

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With all the scrutiny around H1B visas these days, clients and lawyers are always seeking alternative visas. There are not many, but we will explore the best options in the next few articles.

The Trade NAFTA (TN) category of the North American Free Trade Agreement (NAFTA) North American Free Trade Agreement (NAFTA),retains a strong resemblance to the H-1B category, since both categories contemplate the admission of persons of professional standing who will engage in professional-level activities. Its utility as an alternative to the H-1B category is limited, however, by the simple fact that it is available only to nationals of Canada or Mexico.

The TN category offers Canadian and Mexican professionals four obvious advantages over the H-1B category. First, an applicant for this status need not file, and obtain approval of, a nonimmigrant petition with a service center before entering the United States. A Canadian national may instead present the application at a port of entry or preflight inspection station, where processing generally takes no longer than three hours. If the TN is denied, the applicant can re apply with the necessary corrections in most cases and if no fraud was involved. A Mexican national may file an application for a TN visa directly with a U.S. consulate.

Second, Canadian TN applicants are not required to obtain approval of an LCA from the Department of Labor; this allows employers to avoid the often intrusive salary-posting and record-keeping requirements of the H-1B category. Also LCA’s take forever to obtain these days, making the process even longer.

Third, the TN category, unlike the H-1B category, does not impose a maximum period of stay. Technically, a Canadian or Mexican professional may hold TN status indefinitely, as long as he or she continues to be employed in an appropriate profession.

Fourth, there is no limitation on the number of Canadian or Mexican nationals who may be admitted in the course of a fiscal year.

The TN category of NAFTA requires each state party to admit “a business person seeking to engage in a business activity in a profession set out in Appendix 1603.D.1 [of NAFTA].” This appendix provides a listing of 63 professions with corresponding minimum educational requirements and alternative credentials. Only persons coming to work in one of these listed professions may be accommodated under the TN category; a person coming to work in the United States in an unlisted profession may not enter in TN status, regardless of the fact that his or her job has been recognized as a profession or a specialty occupation by USCIS in another context.

Eligibility for H-1B status does not therefore translate automatically into eligibility for TN status, and the preparation of a TN application requires an approach quite distinct from that involved in the preparation of an H-1B petition. One of the more important distinctions between the TN and H-1B categories, which directly affects the availability of TN status for persons who customarily would seek H-1B status, lies in the differing analysis applied by government officers to determine professional status under each category. For clients contemplating the use of the TN category as an alternative to the H-1B category, these differing analysis must be taken into account in determining whether a position for which an H-1B petition would have been filed is one that can be accommodated under the TN category.

CBP and State Department officers reviewing TN applications must operate deductively, in the sense that they will draw a conclusion from a set of given premises. This analysis, in which form takes precedence over substance, often requires more than a surface screening of an application to ensure that the relevant criteria are met (e.g., all hotel managers with degrees in hotel management are admissible in TN status; this person is a hotel manager and has a degree in hotel management; therefore, he is admissible in TN status).

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The Congressional Research Service (CRS) issued report on legislative developments in visa policy over the past 20 years and analysis of statistical trends in visa issuances and grounds for exclusion.

The conventional wisdom is that the terrorist attacks on September 11, 2001, prompted a substantive change in U.S. immigration policy on visa issuances and the grounds for excluding foreign nationals from the United States. A series of laws enacted in the 1990s, however, may have done as much or more to set current U.S. visa policy and the legal grounds for exclusion.

Foreign nationals not already legally residing in the United States who wish to come to the United States generally must obtain a visa to be admitted. Those admitted on a permanent basis are known as immigrants or legal permanent residents (LPRs), while those admitted on a temporary basis are known as nonimmigrants (such as tourists, foreign students, diplomats,temporary agricultural workers, and exchange visitors). They must first meet a set of criteria specified in the Immigration and Nationality Act (INA) that determine whether they are eligible for admission.

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