Visa Lawyer Blog

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We post a practice tip from AILA member Jill Bussey at Baker and McKenzie, very useful

A close review of Paragraph E of the April 2009 Visa Bulletin, issued March 9, 2009, reveals the Employment Third Preference Worldwide and Philippine cut off of March 1, 2003 was effective immediately upon issuance of the Visa Bulletin. This has been confirmed by communications with Charles Oppenheim of the State Department. Mr. Oppenheim indicated he attempted to stave the cut-off through March, however the demand for EB3 numbers was too high. Mr. Oppenheim reiterated the information found in the Bulletin, “since over 60 percent of the Worldwide and Philippines Employment Third preference CIS demand received this year has been for applicants with priority dates prior to January 1, 2004, the cut-off date has been retrogressed to 01MAR03 to help ensure that the amount of future demand is significantly reduced. As indicated in the last sentence of Item A, paragraph 1, of this bulletin, this cut-off date will be applied immediately. It should also be noted that further retrogression or “unavailability” at any time cannot be ruled out.” Mr. Oppenheim advised 85-95% of Employment Based adjudications occur through USCIS, which has been expediting the processing of Third Preference cases. He also shared that he has seen increased demand in First Preference cases from 2007. It is highly unlikely the Third Preference category will remain available in the near future. Further retrogression or “unavailability” may occur at any time.

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In previosu Blog posts I reported the growing concerns from employers and workers with respect to the new H2A regs. The Department of Labor (DOL or the Department) now proposes to suspend for 9 months the H-2A regulations published on December 18, 2008, which became effective on January 17, 2009, that amended the rules governing the certification for temporary employment of nonimmigrant workers in agricultural occupations on a temporary or seasonal basis, and the enforcement of contractual obligations applicable to employers of such nonimmigrant workers. A suspension would provide the Department with an opportunity to review and reconsider the new requirements in light of issues that have arisen since the publication of the H-2A Final Rule, while minimizing the disruption to the Department, State Workforce Agencies (SWAs), employers, and workers.

To avoid the regulatory vacuum that would result from a suspension, the Department proposes to reinstate on an interim basis the rules that were in place on January 16, 2009, the day before the revised rules became effective.

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In the past 4 weeks we have seen a strange and concerning trend from the California Service Center. Denials of Tourist visa extensions as well as student visa requests. Normally, the Service must issue a request for evidence or at least a notice of intent to deny, in order to allow the applicant an opportunity to explain. This trend looks like a a pattern to deny all such cases. Why are they doing this, we are still waiting to find out. The American Immigration Association Lawyers are reporting many denials of I-539s (COS from H-1B to B-1/B-2 or B-1/B-2 extensions) without RFEs (request for evidence) or NOIDs from the California Service Center since early January.

We ask readers to report such denials so we can forward this information to our association liason unit. AILA is collecting this for informational purposes to present to the Service Center, so we can stop this practice once and for all. Please email us your comments.

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U.S. Citizenship and Immigration Services (USCIS) announced March 12, 2009 that the Immigrant Investor Pilot Program has been extended through September 30, 2009 due to yesterday’s signing of the “Fiscal 2009 Omnibus Appropriations Bill,” H.R. 1105.

As a result of the extension of the EB5 Pilot Program, USCIS will continue to receive, process, and adjudicate all Regional Center Proposals and Forms I-526, Immigrant Petitions by Alien Entrepreneur, and Forms I-485, Applications to Register Permanent Residence or Adjust Status, affiliated with Regional Centers relying on “indirect” job creation analysis.

Currently, there are 45 regional centers throughout the United States.

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We continue the updates on the MAVNI program. Through MAVNI, the U.S. Armed Forces will recruit nationwide for health care professionals and in New York City for those fluent in certain languages.

Health care professionals will have the choice between a three-year contractual active duty tour or a six-year commitment to serving in the military’s Selected Reserve. Both physicians and nurses may seek enlistment through MAVNI as health care professionals.

MAVNI language recruits must enlist for a minimum four-year contractual active duty tour. Applicants should make sure that they fully understand this commitment, and any other standard requirements beyond these time frames that apply when enlisting in the U.S. Army.

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Ever since the military released information about MAVNI, the new Citizenship opportunity, potential applicants are anxious to learn more about this unique program. The Defense Department has authorized the U.S. Army to implement, under the Military Accessions Vital to the National Interest (MAVNI) program, a test that permits the enlistment of certain legal aliens into the U.S. Army.

To be eligible for consideration, one must be legally present in the United States, and able to provide a passport, I-94 card, I-797 form, employment authorization document or other government issued documents proving legal presence in the United States.

Today I had a chance to speak in detail with the MAVNI military coordinator about the process of applying for this program. The information I was able to gather is as follows:

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As with the predictions about the economy that things will get worse, the Visa Bulletin for April 2009 delivers some bad news, especially for EB3 visa applicants. EB3 category shows a movement backwards of almost 2 years.

Why is this happening. Here what the State Department had to say:

Despite the established cut-off date having been held for the past five months in an effort to keep demand within the average monthly usage targets, the amount of demand being received from Citizenship and Immigration Services (CIS) Offices for adjustment of status cases remains extremely high. Therefore, it has been necessary to retrogress the April cut-off dates in an attempt to hold demand within the FY-2009 annual limit. Since over 60 percent of the Worldwide and Philippines Employment Third preference CIS demand received this year has been for applicants with priority dates prior to January 1, 2004, the cut-off date has been retrogressed to 01MAR03 to help ensure that the amount of future demand is significantly reduced. As indicated in the last sentence of Item A, paragraph 1, of this bulletin, this cut-off date will be applied immediately. It should also be noted that further retrogression or “unavailability” at any time cannot be ruled out.

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As the H1B season coming to an end, many lawyers, like us, are busy with preparing the H1B petitions. It feels like getting ready for a race, a big race. So who is going to win the lottery this year? Last year Indian tech firms such as TCS, Infosys and Wipro apart from scandal-hit Satyam Computer Services received maximum number of H1B work permits, as these companies sent more professionals to the US.

India’s second biggest software exporter led the list of H1B visas issued last year with around 4,559 work permits, Wipro received 2,678 approvals, Satyam managed some 1,919 and TCS received around 1,539 H1B permits. According to the data released by the United States Citizenship and Immigration Services (USCIS), Microsoft, the world’s biggest software maker, stood fourth in the list of top H1B users with around 1,037 work permits for foreign workers.

Because of the grim economy, the prediction is that this year’s numbers will be lower, at the same time, companies are still in line to secure precious H1B spots.

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Martin Miles Ulsano, age 7, the child of a member of the U.S. Navy, today recited the Oath of Allegiance at a naturalization ceremony held here in the Chapel of Hope. In doing so, he became the newest citizen of the United States, and the first child naturalized overseas.

The National Defense Authorization Act of Fiscal Year 2008 permits children of U.S service members to receive their citizenship overseas where their parent is stationed even though the child may never have been in the United States. Previous immigration law required these children to be physically present within the United States to naturalize.

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H-1B Nonimmigrant Visa Petitions for FY2010 (October 1, 2009 through September 30, 2010) may be filed starting April 1, 2009. Here are some tips provided by AILA.

How do I get my LCA before April 1, 2009?

As you are unable to submit an LCA for certification to the DOL earlier than six months prior to the beginning date of the period of intended employment (20 CFR §655.730(b)), you must set your employment start date on the LCA prior to October 1, 2009, if you want to have an LCA in hand before the filing period for H-1B cap subject petitions begins on April 1, 2009. For example, you can file and have certified an LCA that has a start date of September 15, 2009. But remember that the LCA end date cannot be longer than 3 years from the start date, so in this example the end date would be September 15, 2009. Also remember to make sure to annotate your I-129 form with a start date of October 1, 2009, but with an expiration date that coincides with the expiration date of the LCA.

What if the U.S. Degree will not be awarded by 3/31/09?

The USCIS has approved H-1B petitions for foreign nationals who have earned degrees from U.S. institutions of higher education, where the foreign national has completed all requirements for the degree, and hence, has “earned” the degree, but the degree has not been conferred. You must submit evidence that the foreign national has completed all requirements for the degree from an official at the school who is qualified to provide that information (e.g. Dean, Registrar or Department head). Be wary of letters prepared by unauthorized employees at the school stating that the student has completed all requirements toward a degree, when in fact there are still examinations or papers to complete. Be mindful that use of such documentation when the student has not completed the program may be considered fraud and such a document may result in the case being denied on the basis of ineligibility at the time of filing.

Can multiple identical petitions be filed for the same foreign national?

The USCIS will either deny or revoke multiple petitions filed by an employer for the same H-1B worker and will not refund filing fees for duplicative or multiple H-1B petitions. The rules does not prevent related employers (such as a parent company and its subsidiary) from filing petitions on behalf of the same foreign national for different positions, based on legitimate business need. Members are reminded to include evidence and/or an explanation in each filing to demonstrate why the filing is not a duplicate.

Will an F-1 nonimmigrant student be able to remain in the U.S. if his or her F-1 status expires before 10/1/2009?

On April, 8, 2008, the USCIS issued a regulation that extended the authorized stay for all F-1 students who have properly (timely) filed an H-1B petition and change of status request whose F-1 status will expire before October 1. The student is in valid status and can continue to work while the petition is pending at the USCIS. If the case is rejected, the student’s F-1 status will dictate the continued ability to remain in the U.S. If the case is accepted under the quota, the student will have an extension that enables the student to remain in the U.S. and continue to work until the requested start date indicated in the H-1B petition takes effect. Therefore it is important to make sure you select change of status in Section 3 of the I-129 form to get this protection.

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