Visa Lawyer Blog

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From time to time, we are providing more information about the above referenced process. Although it may seem to be simple, we suggest you to consult a qualified immigration attorney before filing the application to become a permanent resident based on marriage to a US Citizen.

Prior to submitting the forms to Department of Homeland Security, there are 10 simple technical tips to follow for proper filing. They are as follows:

1. Use the most current edition of the form available on the USCIS Website; (www.uscis.gov)

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Hundreds of American Apparel Inc. workers must leave the company because they were unable to prove their immigration status or fix problems with their employment records, the bottom line is that almost 1600 workers were not legally allowed to work in the US.

ICE first conducted an inspection of American Apparel in early 2008 to determine if the company was complying with immigration laws. This past July, American Apparel received notification from ICE that the agency had been unable to verify the employment eligibility of approximately 200 American Apparel employees, and, based on ICE’s review of government databases, another 1,600 American Apparel employees did not appear to be authorized to work in the U.S.

Although the dismissals amount to more than 10% of American Apparel’s roughly 10,000-employee workforce, the company doesn’t expect problems for its business. American Apparel has a track record of being a strong advocate for immigration reform. The clothing company’s “Legalize LA” campaign is an integral part of the company’s culture. A combination of advertising, education and resources on American Apparel’s website shows just how committed the company is to raising awareness on the subject of immigration.

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How is Governor Arnold Schwarzenegger going to save us money? How about massive deportation plan. California Corrections officials are reviewing the cases of undocumented immigrant prisoners to see who can be deported. About 6,000 up for consideration have more than one felony.

Releasing undocumented prisoners is part of the Governor’s plan to save the state about a billion dollars. The Governor has the power to release about 2000 undocumented immigrant prisoners. Included are those who have not committed serious, violent or sex crimes and have just one felony.

Mexican officials on the other hand, are not so pleased. Deporting thousands of criminals back to Mexico may weaken the current crackdown on drug gangs all across Mexico. Working together the two governments should find the middle ground.

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Wishing all our readers a happy Labor Day,and all the joys of a beautiful autumn. Make sure to take some time to relax and enjoy.

The editors at ilw.com wrote a nice greeting for Labor Day:

The first Labor Day holiday was celebrated in 1882 to pay tribute to American workers. We recognize and pay tribute to all workers in the US – both documented and undocumented – who work hard everyday to contribute to our great country.

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As attorneys that work with Hospitals and medical professionals, we always get questions from clients about the H1B visa. Can Nurses really get this visa, and if so how?

The H1B visa program, which has a current allocation of 65,000 visas per year (This year visas are still open and up for grabs), allows foreign professionals to work in the U.S. for a limited duration. In this visa category, a U.S. employer offers a job to a foreign professional that requires a bachelor’s or higher degree, or its equivalent as the minimum entry requirement.

Nevertheless, there is a problem for nurses getting H1B visas. The USCIS applies a different rule for nurses. The USCIS (guided by a determination by the U.S. Department of Labor, as published in the Occupational Outlook Handbook) says that there is no industry-wide standard that a nurse needs a baccalaureate degree to perform the duties of a professional registered nurse. In many states, a nurse can obtain a professional registered nursing license after completion of only a two-year program and successful passage of a state licensing examination. Thus, according to the USCIS, foreign nurses are not eligible for H1B in general RN positions.

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San Diego Immigration lawyer informed that the Department of Homeland Security, USCIS has submitted the information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection was previously published in the Federal Register on June 9, 2009, at 74 FR 27339, allowing for a 60-day public comment period. USCIS did not receive any comments for this information collection. The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until October 2, 2009. This process is conducted in accordance with 5 CFR 1320.10.

Written comments and suggestions especially regarding the estimated public burden and associated response time, should be directed to the Department of Homeland Security (DHS), and to the Office of Management and Budget (OMB) USCIS Desk Officer. Comments may be submitted to: USCIS, Chief, Regulatory Products Division, Clearance Office, 111 Massachusetts Avenue, Washington, DC 20529-2210. Comments may also be submitted to DHS via facsimile to 202-272-8352 or via e-mail at rfs.regs@dhs.gov, and OMB USCIS Desk Officer via facsimile at 202-395-5806 or via oira_ submission@omb.eop.gov.

We suggest when submitting comments by e-mail please make sure to add OMB Control Number 1615-0035 in the subject box. Written comments and suggestions from the public and affected agencies should address one or more of the following four points:

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The current medical exam Form I-693 has expired on August 31, 2009. The USCIS will continue to accept this form despite its expiration date until a revised form is published. The revised form is currently in progress and not yet available. Please submit the completed Form I-693, sealed in an envelope from the physician, with your Form I-485 package, to the Service Center or District Office where you are filing your adjustment of status application.

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U.S. District Court for the District of Maryland, Southern Division on August 25, 2009, denied the U.S. Chamber of Commerce’s challenge to an amendment to the Federal Appropriation Regulation (FAR) that makes E-Verify mandatory for federal contractors. As a result, as of September 8, 2009, the FAR requires participating vendors and flow-down subcontractors to initiate E-Verify for all active and new employees. Hence, U.S. Citizenship and Immigration Services has reminded Federal contractors and subcontractors to use the E-Verify system to verify their employees’ eligibility to work in the United States effective Sept. 8, 2009. Janet Napolitano, Department of Homeland Security Secretary recently stressed on the need for employment eligibility verification by announcing the Administration’s support for the regulation that will award federal contracts only to employers who use E-Verify to check employee work authorization. Companies awarded a contract with the E-Verify clause after Sept. 8 will be required to enroll in E-Verify within 30 days of the contract award date.

E-Verify will be used to confirm that all new hires, whether employed on a federal contract or not, and existing employees directly working on these contracts are legally authorized to work in the United States. The Federal Acquisition Rule; Case 2007-013; Employment Eligibility Verification extends use of the E-Verify system to covered federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds.

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Previously we reported about the new procedures affecting surviving spouses of US petitioners that passed away. Now the Vermont Service Center issued some guidance on the procedure for making a request for humanitarian reinstatement of I-130 petitions that have been revoked based on the death of the petitioner.

The process for requesting humanitarian reinstatement consideration begins with the
notification to either the Service Center or the National Visa Center of the death of the
petitioner. If the death certificate is accompanied by a letter indicating that the beneficiary wishes to be considered for humanitarian reinstatement, the Service Center will respond with a letter confirming that the petition has been automatically revoked (8 CFR 205.1(a)(3)(C)). The letter then provides a list of requirements that must be met to have the petition considered for humanitarian reinstatement under 8 CFR 205.1(a)(3)(C)(2).

In order for the reinstatement to be considered, the following documents must be provided:

The request for reinstatement must be in writing by the beneficiary of the original petition or
substitute sponsor if the beneficiary is a minor child.

– Provide as much available documentation to identify and document the humanitarian reason for reinstatement. Such documentation may include, but is not limited to:
a. Evidence of a long-time residence and any equity in the U.S.

b. Evidence of relationship to other family members with evidence of their immigration status in the U.S.

c. Evidence of health-related factors that would establish the need for the reinstatement of the petition.

d. Evidence of current political or religious conditions in the beneficiary’s country of origin that would indicate that the beneficiary would suffer if not permitted to immigrate to the U.S.

Please note: Economic depression, as is found in many regions of the world, is not considered to be an example of a harsh result contrary to the goal of family reunification unless it is of such an extreme nature as to possibly cause physical harm to the beneficiary.

– The new sponsor is required to submit an original Form I-864, Affidavit of Support, to show that he or she has adequate means of financial support and that the beneficiary of the petition is not likely to become a public charge.

a. The substitute sponsor must complete the Form I-864, Affidavit of Support.

b. The Form I-864 must contain an original signature of the sponsor.

c. The new sponsor must be an immediate family member or a legal guardian of the
beneficiary, such as a spouse, parent, mother-in-law, father-in-law, sibling, child, son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, or grandchild child at least 18 years of age.

d. Submit evidence that will establish the new sponsor’s immigration status or U.S. citizenship.

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The days of considering the H1B visa process a purely administrative process are over. In the not so distant past, H1B cases were just about the forms and the evidence submitted in the case. If the USCIS liked the arguments and supporting documents, an approval was issued.

Things are not so simple today. Recently, the USCIS has begun making visits to the U.S. work sites of companies that sponsor H-1B and L-1 visa holders, including some large U.S.-based financial services companies. USCIS agents come with a checklist of questions designed to confirm the identity of the employer who petitioned for the visa and the visa beneficiary and to verify that both are in compliance with the terms and conditions of the visa. The objective of the unannounced on-site visits is clear: to detect fraud and abuses of the visa program.

Here is the problem, USCIS investigation tactics often exceed what is necessary and reasonable to obtain H-1B application verification information. Unlike the Department of Labor, which has the statutory authority to investigate an employer’s compliance with visa obligations but rarely conducts audits unless there are complaints, the USCIS has no statutory or regulatory authority to enter the workplace of H-1B and L-1 visa holders. So if you get audited, first thing to do is contact your immigration lawyer. A qualified attorney could assist you pass the audit and prevent any illegality on the side of the Government.

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