Visa Lawyer Blog

by

For most Lawyers handing H1B cases, the problem with the Labor Condition Application (LCA) system has become a nightmare. Some cases take almost 14 days to be resolved and the FEIN denials are completely unreasonable.

Finally, the USCIS Ombudsman release a set of recommendations to handle the recent problems.

In August and September 2009, the Ombudsman received complaints concerning H-1B cases with incorrectly denied Labor Condition Applications (LCA/ETA-9035) filed with the U.S. Department of Labor (DOL). LCA processing delays and errors at DOL, when coupled with USCIS’ current H-1B petition initial filing requirements, are prejudicing employers and individuals who are unable to timely file original or extension H-1B visa petitions. Untimely H-1B petition filings lead to

Continue reading

by

USCIS has revised Form I-601, Application for Waiver of Grounds of Inadmissibility to make it easier for applicants to complete. Applicants may now select from a list of grounds of inadmissibility on the form itself and mark all which apply to them in order to request a waiver. This was confusing to many applicants in the past as they were not sure what to type in this section.

In addition to the list, the form includes a section where applicants can describe, in their own words, why they believe they are inadmissible. Again, this is something that was not so clear in the previous version of the form. In the previous edition of Form I-601, information about grounds of inadmissibility could only be found in the form’s instructions.

Please note that USCIS will continue to accept the previous version of the form, dated 10/30/08 Y, through November 20,2009. Beginning November 21, 2009 USCIS will only accept the revised Form I-601, dated 04/06/09 N, and will reject all requests using previous editions of the form. Concern is that Applicants using notarios and other consultants, may be rejected as these non lawyers may not be informed of the new procedures.

by

The Widow penalty debate has been going on for years. This week the problems of widows have come to an end. The Senate approved a measure on Tuesday that would end what has become known as the “widow penalty” — the government’s practice of annulling foreigners’ applications for permanent residency when their American spouses die before the marriage is two years old.

The measure, which passed 79-19, was contained in a conference report that accompanied an appropriations bill for the Department of Homeland Security. The House of Representatives passed the conference report last week. President Obama is expected to sign the bill into law.

While the foreign spouse of a United States citizen may be eligible for residency under American law, the government has argued that the spouse’s death before the two-year mark ends the marriage, canceling the foreigner’s right to be considered for residency and opening the door to deportation.

Continue reading

by

We can all laugh to a good joke form time to time, but this story is not funny at all. Target Corp., based in Minneapolis, has apologized for selling a Halloween costume that came under fire for its “illegal alien” theme.The company said it was sorry for selling the $39.99 costume that included an orange jumpsuit emblazoned with the words “illegal alien,” a large imitation green card and a space alien mask.

Read more here…

by

The H2B seasonal visa is considered to be the most abused type of visa. Typically workers coming on this visa are from low economic background and often uneducated. In many cases, employers can file for many workers on one petition, making this a lucrative business for fraudulent recruiters and agencies. The recent change in the regulations of the H2B visa (mainly barring recruiters from collecting fees), should change the program for the better, or so we hope.

Deborah Notkin, AILA’S past president recently came back from Mexico, meeting with Groups concerned with this program. Here is an excerpt from her Blog entry:

By far, everyone agreed that the problems began with “recruiters” who charged substantial sums (typically around $1,000) from each hopeful temporary worker and this money was rarely returned if there was not a visa available. This problem seems to reach epic proportions during a period of prosperity in the US when the H-2b visa cap of 66,000 workers doesn’t provide sufficient visas to fill needs. Under both Mexican law and now under the rules of the current H-2b regulations, recruiters are prohibited from charging fees to the prospective migrant workers but the judges found that enforcement needed to be stepped up.

Continue reading

by

Assistant Secretary for U.S. Immigration and Customs Enforcement (ICE) John Morton announced standardized Memorandums of Agreement (MOAs) with 67 state and local law enforcement agencies to participate in 287(g) partnerships by prioritizing criminal aliens who are a threat to local communities.

The administration had previously suspended the program, which critics say was mismanaged and allowed racial profiling and discrimination. Before it was suspended, there had been 66 local and state agencies participating.

Immigration advocacy groups were quick to respond to the ICE announcement. From Ali Noorani, Executive Director of the National Immigration Forum, a non-partisan, non-profit pro-immigrant advocacy organization in Washington:

Continue reading

by

India has expressed its concern to the Chinese government over Beijing issuing visas on a separate sheet of paper to Indian nationals from Jammu and Kashmir instead of stamping them in their passports. Ministry of External Affairs (MEA), India strongly believes this, as a well-thought-out strategy to question the status of its state Jammu and Kashmir. It has been issuing visas stapled to passports to people from Arunachal Pradesh who have traveled to China since 2007.

MEA spokesperson Vishnu Prakash says “We have conveyed our concern to the Chinese government in this regard. It is our considered view and position that there should be no discrimination against visa applicants of Indian nationality on grounds of domicile or ethnicity.”

It’s not clear when the Chinese started issuing visas on a separate sheet of paper to Indian travelers of Kashmir. The matter came to light when immigration authorities at New Delhi International Airport, India turned away Kashmiris carrying the standalone visas, assuming they were fakes. The Chinese embassy however issued letters confirming that it had issued valid visas. The matter was then brought to MEA’s notice, prompting it to take up the issue with Beijing. Immigration authorities have been directed to treat the standalone visas as invalid.

Continue reading

by

Wilmer Rivera Melendez, 61, pretended to be a lawyer and offered to help more than a dozen undocumented Guyanese immigrants in Brooklyn to get green cards, has been indicted in an immigration fraud scheme in which he is accused of offering to marry two illegal Guyanese immigrants in Brooklyn to help them gain legal status. Robert M. Morgenthau, the Manhattan district attorney, also added that this man was earlier convicted of bigamy in Georgia six years ago.

Mr. Morgenthau claimed himself having 20 year of experience as a lawyer, filed documents with immigration authorities for “withholding of removal” that would have allowed immigrants to remain in the country and obtain green cards, which is actually does not allow one to obtain a green card. Instead, Mr. Melendez’s actions led federal immigration officials to begin deportation proceedings against the 14 Guyanese immigrants. The law provides for illegal immigrants who are victims of violent crime to receive temporary visas, but not victims of fraud.

by

H-1B Quota is still available for all employers. Employers who have not yet proceeded with new H-1B filing can go ahead now too as per their business requirements. After many years since the Cap of H-1B started, it is still available even after Sept. 30, 2009. As of this writing, there are still H1B cap numbers available, both in the advanced-degree and regular H1B quotas. This means that H1B petitions can still be filed for fiscal year 2010. These filings can continue, as long as the cap numbers are available.

We like to share that H-1B petitions can be filed throughout FY10, until the cap numbers are all depleted. Petition filed under the 2010 Cap after October 1, 2009, the start date of work requested can be immediate. Since October 1, 2009 has already passed, and the H-1B numbers are still available, filings may request an immediate validity date. Like earlier, the start date for H-1B work can be as much as six months in the future, depending upon the needs of an employer. Usually one has to start the H-1B Cap process 6 months in advance of the requested start of employment, employers were all doing so in order to increase their chances of obtaining one of the limited cap numbers. Thus, cases were filed at the beginning of April, requesting an October 1st start date. However, we are now beyond October 1st, and Cap numbers remain available, it is possible to pick a more desirable start date, ranging from immediate to six months in the future.

There is not much progress in cases filed in FY 2010 quota yet. However, there is sharp increase in filings. The regular cap increased by 1600 cases between the end of August and the end of September, for a total of 46,700 as of September 25, 2009. This reflects a higher rate of filings than in the prior few months which may be due to re-filings and fresh filing as per upcoming requirements. We will keep you posted on further developments.

by

Since the H1B filing season opened up in April 2009, cases were subject to greater scrutiny by USCIS. While we still have H1B visas available, the denial rate of filed cases is on the rise. I would say say that we have a 30% increase in RFE’s received this year. Recently, the USCIS started auditing employers and showing up unannounced at the work sites.

AILA’s Bob White and Mary Pivec, from AILA Verification and Documentation Liaison Committee provided an update on the recent audits.

The U.S. Citizenship and Immigration Services’ (USCIS) Office of Fraud Detection and National Security (FDNS) has recently commenced an assessment of the H-1B program. The following is information that employers (and their immigration counsel) should know about FDNS, FDNS’ current H-1B assessment program, and how to respond if an FDNS Officer visits the employer’s (or its client’s) office as part of this assessment program.

USCIS created the FDNS in 2004 with a mission to detect, deter, and combat immigration benefit fraud and to strengthen USCIS’ efforts ensuring benefits are not granted to persons who threaten national security or public safety. FDNS is USCIS’ primary conduit for information sharing and collaboration with other governmental agencies, including Immigration Customs and Enforcement (ICE). FDNS currently consists of approximately 650 Immigration Officers, Intelligence Research Specialists, and Analysts located in field offices throughout the United States. Additionally, FDNS has contracted with multiple private investigation firms to conduct site visits on behalf of FDNS. FDNS’ budget is derived from the Fraud Fee, which is paid by employers with each initial H-1B or L petition.

FDNS has previously conducted assessments in the L-1, EB-1-3 Multi-National Manager and Executive, and R-1 programs. As part of these assessments programs, FDNS officers collected information during site visits to verify information pertaining to petitions that were both pending and already approved.

So how does the site visit work?

Unlike many of the site visits with the L-1, EB-1-3 and R-1 assessment programs, the H-1B site visits for the most part have been unannounced. The site visits may occur at the H-1B employer’s principal place of business and/or at the H-1B nonimmigrant’s work location, as indicated on the Form I-129 petition (regardless of whether the work location is controlled by the H-1B employer). The employer may request that its immigration attorney be present during the site visit. However, FDNS officers will not typically reschedule a site visit so that an attorney may be present. FDNS has stated that it will allow counsel to be present by phone, if requested.

Continue reading