Visa Lawyer BlogThe Supreme Court’s decision in Dada v. Mukasey, No. 06-1181, 554 U.S. ___ (June 16,
2008), addresses the interplay between the voluntary departure provision, INA § 240B,
and the motion to reopen provision, INA § 240(c)(7).
H1B visas – Cap-Subject H-1B Update
The American Immigration Lawyers Association reports that USCIS Service Center Operations has provided the following information to AILA liaison regarding processing cases under the FY2009 H-1B cap:
1. Except for cases that were being reviewed as potential duplicate filings, all receipts have been issued for those cases selected in the random lottery. The CSC and VSC completed data entry on all selected cases on May 23, 2008, and mailing of all receipts was completed on may 24, 2008. So if you have not been issued a receipt by May 24th, your case must have not been selected.
2. Cases that were thought to be duplicate filings are being hand reviewed to determine if they are true duplicates. USCIS has received approximately 500 petitions that are believed to be duplicates. However, some of these were submitted as “protective filings” due to courier delivery confirmation problems or where the petition was sent to an incorrect Service Center. Each will be reviewed and determined on a case-by-case basis. If the second submission was accompanied by an explanation of the reason for the second submission, there is a good chance of acceptance.
EB5 Green Card Program Extended
The EB-5 program allocates 10,000 visas per year for aliens and family members whose qualifying investments result in the creation or preservation of at least ten (10) full-time jobs for U.S. workers. 3,000 of these immigrant visas are set-aside for aliens who invest in designated regional centers, areas of high unemployment or other qualifying rural areas.
The EB-5 visa category started in 1991. Regional Centers started in 1993. The program was due to expire this year. The House of Representatives passed HR 5569, a bill extending the EB-5 Regional Center program for another five years.
PERM – DOL Issues Program Guidance on Role of Lawyers in Labor Certification
Following the recent announcement of the audit of all PERM cases filed by Fragomen, largest immigration law firm in the nation. A new set of rules was issued by DOL on the role of Lawyers following the PERM process.
The Department has long held the view that good faith recruitment requires that an employer’s process for considering U.S. workers who respond to certification-related recruitment closely resembles the employer’s normal consideration process. In most situations, that normal process does not involve a role for an attorney or agent (as defined in 20 C.F.R. 656.3) in assessing the ability of applicants to fill the employer’s needs.
More specifically, the types of actions prohibited by 20 C.F.R. 656.10(b)(2)(i) and (ii) include:
AC21 – USCIS Updates and Changes
A recent, Memo from Donald Neufeld, Acting Associate Director, Domestic Operations, USCIS, provides supplemental guidance on the processing of I-140s and H-1Bs under AC21.
Some of the Key changes in this Memo are the following:
Post 6th year H1B extensions wll not be available if the workers’ Labor certification or PERM application has been revoked, or if the visa petition is not submitted within 180 days following the PERM approval occured on or after July 16, 2007. If you recall this was the extended deadline following the visa Bulletin changes in July of 2007.
Immigrant Farm Workers being used and discarded
It is getting hot here in California this time of the year, and stories of abused immigrant workers are news once again. This recent story of the death of a pregnant teenager pruning grape vines in 100-degree heat has outraged the farmworking community and sparked calls for safety reforms as laborers prepare for the long summer harvest. We also need to consider immigration reform for the thousands of undocumented workers picking our vegetables, once they become legal such human rights abuses might decrease.
Read the AP story here
Final Rule on Pre-Travel Authorization for Visa Waiver Travelers
DHS announced an interim final rule on the Electronic System for Travel Authorization (ESTA), a new online system for the Visa Waiver Program (VWP). Effective some time next year, all nationals of VWP countries who plan to travel to the U.S. under the VWP will need to receive an electronic travel authorization prior to departure.
Click here to read the FAQs on VWP Electronic System for Travel Authorization
Read the Factsheet here
DOL auditing all permanent labor certification filed by Largest Immigration Firm
We are a small immigration law firm, but we often get contracted by clients of larger firms for second opinion, under a strict confidentiality relationship. In the past few months we have been getting calls from clients or larger firms for PERM, I-140, and other related Permanent Residency cases. Sometimes, we just re assure the client that all is well, in some cases we find serious errors by the larger firms lawyers. Therefore I wasn’t surprised to hear about the following decision by the DOL just this week.
The U.S. Department of Labor today announced that it has begun auditing all permanent
labor certification applications filed by attorneys at Fragomen, Del Rey, Bernsen & Loewy LLP. The department has information indicating that in at least some cases the firm improperly instructed clients who filed permanent labor certification applications to contact their attorney before hiring apparently qualified U.S. workers. The audits will determine which, if any, applications should be denied or placed into department-supervised recruitment because of improper attorney involvement in the consideration of U.S. worker applicants.
Guidance for Requesting a Replacement I-94 Where Original was Misprinted
According to the American Immigration Lawyers Association, it appears that sometime in early 2008, CBP received approximately one million I-94 Arrival-Departure cards that were misprinted such that they were missing a digit. An I-94 card should have eleven digits, comprised of nine digits, a space, and then two more digits. For example, an I-94 card might have the number 055167890 11 (eleven digits), but the misprinted cards had numbers such as 55157890 11 (with ten digits).
The misprint has resulted in problems such as the Social Security Administration refusing to issue, or delaying the issuance of, a Social Security number to a person otherwise eligible for enumeration who has an I-94 card with a number short by digit.
CBP reported that the defective I-94 cards have been recalled and replaced. It is unknown how many defective cards have been issued. Calgary Airport in Canada is one port known to have issued some of the defective cards, but there might be others.
H1B Visas – Federal Employers Do Not Have To Pay Back Wages To H-1B workers
More bad news for H1B visa holders. DOJ’s Office of Legal Counsel released a memo on the payment of back wages to doctors hired on H-1B visas by the Department of Veterans Affairs (“VA”), stating “the statute authorizing the H-1B visa program does not waive the federal Government’s sovereign immunity. Therefore, an administrative award of back wages to alien physicians hired by the VA under the program is barred by sovereign immunity.” This is a February 11th, 2008, Memorandum Opinion for the General Counsel, VA and Solicitor, Department of Labor, Payment of Back Wages to Alien Physicians Hired Under H-1B Visa Program.
Read more below.