Tuesday, December 29, 2009

New airport security measures anounced

The US Transportation Security Administration (TSA) has issued guidance for people traveling after the attempted bombing of a plane on Christmas Day. TSA stresses that security measures are not the same in every airport, and this is deliberate so that people cannot anticipate how they will be screened. Details of the TSA guidance is here.

Photo thanks to http://www.flickr.com/photos/sixmilliondollardan/3382932556/ 

Tuesday, December 22, 2009

H-1B cap reached for Fiscal Year 2010

As noted in this link:
As of December 21, 2009, USCIS has received sufficient petitions to reach the statutory cap for FY2010.  USCIS has also received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption.  USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY2010 that are received after December 21, 2009   USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on December 21, 2009.

The Department of State has issued a press release with details of a proposed fee increase.  The fees would apply to all nonimmigrant visa applications and border crossing cards. 

Under the proposed rule, applicants for all visas that are not petition-based, including B1/B2 tourist and business visitor visas and all student and exchange-visitor visas, would pay a fee of $140. Applicants for petition-based visas would pay an application fee of $150. These categories include:
  •  H visa for temporary workers and trainees
  •  L visa for intracompany transferees
  •  O visa for aliens with extraordinary ability
  •  P visa for athletes, artists and entertainers
  •  Q visa for international cultural exchange visitors
  •  R visa for religious occupations
The application fee for K visas for fiancĂ©(e)s of U.S. citizens would be $350.  The fee for E visas for treaty-traders and treaty-investors would be $390. 

The Department will not begin collecting the new proposed fees until it considers public comments and publishes a final rule.  In order to view the proposed rule and to submit comments, please go to www.regulations.gov.

Friday, December 18, 2009

H-1B cap update

USCIS has updated the H-1B cap count. As of December 15, CIS has received approximately 64,200 cases against the regular (non-Master's) H-1B cap of 65,000. As mentioned last week, CIS sets aside up to 6,500 of this 65,000 for nationals of Chile and Singapore.  Last year CIS set aside about 700 for this purpose, so we can assume that the cap has now been reached, although CIS is still accepting petitions.

Wednesday, December 16, 2009

Immigration Reform Bill introduced in Congress

Representative Luis V. Gutierrez, Democrat of Illinois, introduced a bill in Congress yesterday to reform US immigration laws. The bill's introduction is seen as a reaction to President Obama's delay in starting his proposed immigration reform measures. It is unlikely that the bill will pass, however, as it contains provisions similar to an amnesty for undocumented immigrants. Anything resembling an amnesty provision is strongly opposed by many in Congress. 

See the New York Times article on the bill here.

Friday, December 11, 2009

Visa Bulletin for January 2010 released

The US Department of State has released the new Visa Bulletin for January 2010. In family-based categories, there is very slight movement forward, but just by a few weeks or months in most categories.

Employment-based categories remain "Current" for all 1st preference applicants, and for 2nd preference from Mexico, Philippines, and countries other than India and China. EB-2 for China moves forward by 1 month, and EB-2 for India is unchanged from last month. This means that India EB-2 has stayed the same sinced October 2009.  

3rd preference categories change slightly from last month. EB-3 for China, Philippines and all other countries move forward 2 months.  Mexico advances 1 month and India by almost 2 months.

Thursday, December 10, 2009

H-1B cap reached for FY2010?

USCIS has updated the H-1B cap count. As of December 8, CIS has received approximately 61,500 cases against the regular (non-Master's) H-1B cap of 65,000. However, since CIS sets aside up to 6,500 of this 65,000 for nationals of Chile and Singapore, it is possible that they will stop accepting other H-1B petitions soon, if not already. We are still filing new petitions, but with fingers crossed that they are not too late. If you need to file, please do so ASAP.

For more information, see the previous blog posts here.

Friday, December 4, 2009

Continuing with the travel theme in the last blog posting, CBP has launched a communications campaign in adavnce of the Winter Olympics in Vancouver next year.  The campaign aims to advise travellers of the documents they need to return to the US, pursuant to the WHTI (Western Hemisphere Travel Initiative).  See my prior blog posting on WHTI here.

For the CBP news release, see here.  For WHTI, see here.

Tuesday, December 1, 2009

CBP prepares for cross-border football fans

Are you a fan of the Buffalo Bills or New York Jets and traveling to the game in Toronto on Thursday, 12/3?  If so, the US Customs and Border Protection agency has travel advice for you here.  CBP advises travelers to  check traffic conditions at the four border crossings within the Buffalo/Niagara region, and select the crossing that is least congested. Travelers can easily obtain current border traffic conditions by calling the Niagara Falls Bridge Commission’s toll free number at 1-800-715-6722 or by visiting various web sites listed by CBP.

Travelers should prepare for the inspection process before arriving at the inspection booth. Individuals should have their crossing documents available for inspection and they should be prepared to declare all items acquired outside the U.S. In compliance with full implementation of the Western Hemisphere Travel Initiative, which commenced June 1, all travelers, including U.S. and Canadian citizens, will need to present documentary proof of citizenship.

These documents include a Passport, U.S. Passport Card, trusted traveler card (NEXUS, SENTRI or FAST) or an Enhanced Drivers License. Children under the age of 16 can present an original or copy of their birth certificate. CBP will remain practical and flexible in its approach to full implementation of the Western Hemisphere Travel Initiative and will continue to educate and inform the traveling public. Please visit the WHTI Web site for additional information. (GetYouHome.gov)

Photo credit: http://www.flickr.com/photos/ronalmog/

H-1B cap count updated

USCIS has updated the H-1B cap count. As of November 27, 2009, CIS has received approximately 58,900 cases against the regular (non-Master's) H-1B cap. This is 4,000 more than the last count 3 weeks earlier, so numbers are going fast.  

For more information, see the previous blog posts here.

Friday, November 20, 2009

1,000 more employers being investigated

I have blogged before about the current administration's increased enforcement of immigration laws at worksites. The Department of Homeland Security (DHS) announced yesterday that it had issued NOIs (Notices of Inspection) to another 1,000 employers nationwide. View the press release here.

The audits involve a detailed analysis of the employers' Forms I-9. This form should be completed for every employee on hiring, and it verifies the employee's identity and work authorization.   

The press release also provides statistics since the increased enforcement started last April:
  • 45 businesses and 47 individuals debarred;

    • 0 businesses and 1 individual were debarred during same period in FY 2008.

  • 142 Notices of Intent to Fine (NIF) totaling $15,865,181;

    • ICE issued 32 NIFs totaling $2,355,330 in all of FY 2008.

  • 45 Final Orders totaling $798,179;

    • ICE issued eight Final Orders totaling $196,523 during the same period in FY 2008.

  • 1,897 cases initiated;

    • ICE initiated 605 cases during the same period in FY 2008.

  • 1,069 Form I-9 Inspections;

    • ICE initiated 503 Form I-9 Inspections in all of FY 2008.

In July, ICE issued 654 NOIs to businesses nationwide in the largest operation of its kind before today - part of ICE's effort to audit businesses suspected of using illegal labor.

Statistics resulting from the 654 audits announced in July:
  • ICE agents reviewed more than 85,000 Form I-9s and identified more than 14,000 suspect documents - approximately 16 percent of the total number reviewed.
  • To date, 61 NIFs have been issued, resulting in $2,310,255 in fines. In addition, 267 cases are currently being considered for Notices of Intent to Fine (NIFs).
  • ICE closed 326 cases after businesses were found to be in compliance with employment laws or after businesses were served with a Warning Notice in expectation of future compliance.

The New York Times published an article on this subject today.  It notes that
The audits, however, have resulted in large-scale dismissals at the hands of employers, leaving the government one step removed.

In September, American Apparel, a clothing maker with a large garment factory in downtown Los Angeles, fired about 1,800 immigrant employees — more than a quarter of its work force — after a federal audit turned up irregularities in identity documents the workers presented when they were hired. 

Tuesday, November 17, 2009

H-1B cap count updated

USCIS has updated the H-1B cap count. As of November 6, 2009, CIS has received approximately 54,700 cases against the regular (non-Master's) H-1B cap. For more information, see the previous blog posts here.

Monday, November 16, 2009

December 2009 Visa Bulletin released

The US Department of State has released the new Visa Bulletin for December 2009. In family-based categories, there is very slight movement forward, but just by a few weeks or months in most categories.

Employment-based categories remain "Current" for all 1st preference applicants, and for 2nd preference from Mexico, Philippines, and countries other than India and China. 3rd preference and other categories are mostly unchanged from the November and October bulletins.  The only changes are that India EB-3 and 'other worker" categories move forward by 10 days.

Wednesday, November 11, 2009

US immigration launches campaign against human trafficking

US Immigration and Customs Enforcement (ICE) has launched an outdoor publicity campaign to raise awareness of the plight of human-trafficking victims in the United States.   The campaign, called "Hidden in Plain Sight,"  explains that human trafficking includes those who are sexually exploited or forced to work against their will.

Posters, billboards and transit shelter signs were rolled out last month bearing the slogan "Hidden in Plain Sight." They are displayed in Atlanta, Boston, Dallas, Detroit, Los Angeles, Miami, Philadelphia, Newark, New Orleans, New York, St Paul, San Antonio, San Francisco and Tampa.

ICE states

It is estimated that 800,000 men, women and children are trafficked around the world each year. These victims are trafficked into the commercial sex trade, and into forced-labor situations. Many of these victims are lured from their homes with false promises of well-paying jobs; instead, they are forced or coerced into prostitution, domestic servitude, farm or factory labor, or other types of forced labor.

ICE is asking for the public's help to remain alert to recognize and identify victims of modern-day slavery who are in our midst. They are domestic servants, sweat-shop employees, sex workers and fruit pickers who were lured here by the promise of prosperity. Ultimately, they are forced to work without pay and are unable to leave their situation. ICE is committed to giving them the help they need to come forward and help us end human trafficking with vigorous enforcement and tough penalties. As a primary mission area, ICE has the overall goal of preventing human trafficking in the United States by prosecuting the traffickers, and rescuing and protecting the victims.

For more information, see here.

Photo courtesy of http://www.flickr.com/photos/missy-and-the-universe/

Monday, November 9, 2009

New USCIS SAVE video released

US immigration has published a video explaining its Systematic Alien Verification for Entitlements (SAVE) program.  The SAVE website explains that 
the SAVE Program is an inter-governmental initiative designed to aid benefit-granting agencies in determining an applicant’s immigration status, and thereby ensure that only entitled applicants receive federal, state, or local public benefits and licenses. The Program is an information service for benefit-issuing agencies, institutions, licensing bureaus, and other governmental entities.

The website continues by noting that 

  • The SAVE Program does not make determinations on any applicant's eligibility for a specific benefit or license.

  • The SAVE Program does not verify status for employment.

For more information on the SAVE program, see here.

Wednesday, November 4, 2009

H-1B cap count updated

USCIS has updated the H-1B cap count. As of October 30, 2009, CIS has received approximately 53,800 cases against the regular (non-Master's) H-1B cap. For more information, see the previous blog posts here.

Friday, October 30, 2009

CIS issues "Public Charge" fact sheet

USCIS has issued a Fact Sheet explaining what renders a person a "public charge" and therefore inadmissible to the US and ineligible to become a permanent resident. This inadmissibility applies to anyone who "at the time of application for admission or adjustment of status, is likely at any time to become a public charge."

The Fact Sheet explains that  "public charge" means
an individual who is likely to become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.....In determining whether an alien meets this definition for public charge inadmissibility, a number of factors must be considered, including age, health, family status, assets, resources, financial status, education, and skills.  No single factor - other than the lack of an affidavit of support, if required - will determine whether an individual is a public charge. 

The following are not considered for "public charge" purposes because they are "non-cash benefits or special-purpose cash benefits that are not intended for income maintenance":

  • Medicaid and other health insurance and health services (including public assistance for immunizations and for testing and treatment of symptoms of communicable diseases, use of health clinics, short-term rehabilitation services, prenatal care, and emergency medical services) other than support for long-term institutional care
  • Children's Health Insurance Program (CHIP)
  • Nutrition programs, including Food Stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs
  • Housing benefits
  • Child care services 
  • Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP)
  • Emergency disaster relief
  • Foster care and adoption assistance
  • Educational assistance (such as attending public school), including benefits under the Head Start Act and aid for elementary, secondary, or higher education 
  • Job training programs
  • In-kind, community-based programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter) 
  • Non cash benefits under TANF such as subsidized child care or transit subsidies 
  • Cash payments that have been earned, such as Title II Social Security benefits, government pensions, and veterans' benefits, among other forms of earned benefits, do not support a public charge determination. 
  • Unemployment compensation is also not considered for public charge purposes.

Wednesday, October 28, 2009

USCIS: Naturalization Information Sessions

USCIS is holding free information sessions for people interested in becoming US citizens.  See here for details:  USCIS: Naturalization Information Sessions

Thursday, October 22, 2009

CIS issued revised I-601, waiver application

USCIS has revised the Form I-601, Application for Waiver of Grounds of Inadmissibility "to make it easier for applicants to complete."
    The I-601 is used by visa applicants who are "inadmissible" to the US for any reason. The most common ground of inadmissibility is a prior overstay, rendering the visa applicant inadmissible for 3 or 10 years. To qualify for a waiver, the applicant must show that not returning to the US would cause extreme hardship to the US citizen or lawful permanent resident spouse or parent of the I-601 applicant. Family separation and financial inconvenience alone do not necessarily constitute extreme hardship. 
    As one consulate explains:
    Extreme hardship can be demonstrated in many aspects of your spouse or parent’s life such as: 

  • HEALTH - Ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in your country, anticipated duration of the treatment; whether a condition is chronic or acute, or long-or short-term.

  • FINANCIAL CONSIDERATIONS - Future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs such as special education or training for children; cost of care for family members (i.e., elderly and infirm parents).

  • EDUCATION - Loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time for grade; availability of special requirements, such as training programs or internships in specific fields.

  • PERSONAL CONSIDERATIONS - Close relatives in the United States and /or your country; separation from spouse/children; ages of involved parties; length of residence and community ties in the United States.

  • SPECIAL FACTORS - Cultural, language, religious, and ethnic obstacles; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures

  • OTHER - Any other situation that you feel may help you meet the burden of extreme hardship. 

  • CIS press release on the new form here.

    Tuesday, October 20, 2009

    Stores pull "Illegal Alien" costume after protests

    Various groups have protested the sale of Halloween costumes that depict "Illegal Aliens".  The costumes are bright orange jumpsuits, with the words "ILLEGAL ALIEN" stamped on the chest, a bug-eyed alien mask, and a fake "green card."  Not surprisingly (duh!), many advocate groups found the costumes very offensive.  

    As of Saturday afternoon, Target had pulled the products, and said that the "Illegal Alien" costume was inadvertently uploaded to its web site due to a "data entry error."  A Google search for "illegal alien halloween costume" just now showed that Walgreens, Toys "R" Us, and other stores were selling the costume.  However, the links all seemed to be broken.

    What do you think of the costume?

    Tuesday, October 13, 2009

    Visa Bulletin for November 2009 issued

    The US Department of State has released the new Visa Bulletin for November 2009. In family-based categories, there is very slight movement forward, but just by a few weeks or months in most categories.

    Employment-based categories remain "Current" for all 1st preference applicants, and for 2nd preference from Mexico, Philippines, and countries other than India and China. 3rd preference and other categories are mostly unchanged from the October bulletin. Any change is just a month, at most.

    Monday, October 12, 2009

    US government cannot track overstays

    The New York Times reports today (here) that the US government cannot track when people stay longer that they are authorized. This is no surprise to immigration lawyers and foreign nationals. US immigration officials estimate that 2.9 million people entered the US last year on temporary visas. The government has no way to know for sure, but estimates that "several hundred thousand" of those are still in the US, even though their status expired.

    The NYT article focuses on Mr. Hosam Maher Husein Smadi. He is from Jordan, and is accused of plotting to bomb an office building in Dallas. Mr. Smadi entered the US as a tourist, and this status expired in April 2008. However, the article says that that
    Mr. Smadi, like many tourists who overstay visas, was able to fade easily into society and encountered few barriers to starting a life here, according to court documents and people who know him. He enrolled in high school, obtained a California identification card, landed jobs in two states and rented a string of apartments and houses. He bought at least two used cars, and even procured a handgun and ammunition.
    The article explains how difficult it is to keep track of whether people depart.
    They have not yet found technology to support speedy exit inspections at land borders. And airlines balked at an effort last year by the Bush administration to make them responsible for taking fingerprints and photographs of departing foreigners.
    At the moment, departing visitors hand over a document called an I-94, to show that they left the US. However, sometimes visitors forget to do this, especially if they depart via land borders. Further, even if they had the resources, immigration officials would have a very difficult time finding the people that intentionally overstay.

    Friday, October 9, 2009

    New naturalization test in effect for everyone now

    USCIS implemented a new naturalization test for all aspiring US citizens last year. Starting on October 1, 2009, the test is now required for every applicant for US citizenship, regardless of when s/he filed the application.

    For more information, see the CIS news release
    here and my prior blog posting here.

    Wednesday, October 7, 2009

    Did Chicago lose the Olympics because of immigration issues?

    A New York Times article suggests that Chicago failed in its bid to host the 2016 Summer Olympics because of tough immigration procedures at airports. The paper reports that
    Among the toughest questions posed to the Chicago bid team this week in Copenhagen was one that raised the issue of what kind of welcome foreigners would get from airport officials when they arrived in this country to attend the Games. Syed Shahid Ali, an I.O.C. member from Pakistan, in the question-and-answer session following Chicago’s official presentation, pointed out that entering the United States can be “a rather harrowing experience.”
    The article remarks on how US immigration officials at airports can be extremely difficult and unpleasant, even deterring people from visiting the US. The readers' comments that follow the article are especially interesting. I just scanned the first 50 comments, and almost every one was from a traveler, including US citizens, who hated US customs and border checkpoint.

    Photo by http://www.flickr.com/photos/alexbarlow/207880054/

    Wednesday, September 30, 2009

    Diversity lottery opens for 2011

    The US Department of State has announced details of the next round of the Diversity Visa lottery here. The online entry registration period for the DV-2011 lottery is between noon, Eastern Daylight Time (EDT), Friday, October 2, 2009, and noon, Eastern Standard Time (EST) (GMT-5), Monday, November 30, 2009. Entrants apply on Form DS-5501, Electronic Diversity Visa Entry Form available only during the DV open registration period.

    As a "winner" of the lottery myself, 15 years ago, I encourage everyone who is eligible to apply as soon as possible. The odds may be long, but somebody has to win. Good luck!

    Full details of DV-2011 are here and here

    Photo by http://www.flickr.com/photos/lisa_monkeylover/3578402283/

    Wednesday, September 23, 2009

    USCIS launches redesigned website

    The US Citizenship and Immigration Service (USCIS) launched a redesigned website today. As stated in the press release
    The new USCIS website provides a one-stop location for immigration services and information—including an innovative service called My Case Status, which allows immigration customers to receive alerts on the status of their applications via text message and e-mail.

    Other new features include a Where to Start tool to guide users through the navigation process; a simplified way to track individual case status; local and national case processing times; an improved search engine; and a new Information Dashboard feature allowing users to access national immigration trends associated with immigration petitions and applications.

    The site is available in English and in Spanish.

    Thursday, September 17, 2009

    Employer pays almost $1/2 million fine for hiring undocumented workers

    The US Immigration and Customs Enforcement (ICE), the agency that investigates and enforces immigration matters, issued a press release confirming that a southwest Missouri poultry-processing plant where 136 illegal alien workers were arrested in 2007, paid a $450,000 fine last week.

    George’s Processing Inc., paid the fine as part of a settlement agreement, according to the U.S. attorney for the Western District of Missouri. U.S. Immigration and Customs Enforcement (ICE) agents arrested 137 illegal alien workers in May 2007 at the firm’s poultry-processing plant near Cassville. The workers included 28 who were criminally prosecuted for various immigration violations, including falsely claiming U.S. citizenship. Two of the company’s hiring personnel were convicted of harboring illegal aliens and inducing illegal aliens to remain in the U.S.

    Tuesday, September 15, 2009

    E-Verify Manual Online Link.

    As I have discussed in prior blog postings, the requirement that certain federal contractors use E-Verify took effect on September 8, 2009. USCIS has a comprehensive user manual for employers available online here.

    Monday, September 14, 2009

    How to complain about immigration treatment at airports and borders

    The US Customs and Border Protection is the division of the Department of Homeland Security that inspects travelers on entry to the US. The agency now has four primary programs in place to address and respond to customer complaints and compliments. These programs are:

    1. Passenger Service Representatives (or Passenger Service Manager)
    2. Comment Cards
    2. Customer Service Center, and
    4. a program where port directors and supervisors personally respond to telephone and verbal complaints.

    More details about the programs are here.

    1. Passenger Service Manager (PSM).

    In March 2009, CBP introduced 20 PSMs at international airports around the US, listed here. According to the CBP website,
    PSMs will provide training to managers and supervisors on customer service issues, they will collect and analyze reports concerning professionalism, and they will promote public awareness of the CBP mission through distribution of public information bulletins, brochures and comment cards; and oversee issues related to travelers requiring special processing.
    2. Comment Cards.

    CBP is supposed to provide comment cards to all travelers entering the US who have been referred to secondary inspection. CBP says that it will contact everyone who completed a comment card to address concerns, however it is unclear if this happens, or even if comment cards are being given out.

    3. Customer Service Center.

    CBP's website describes this as their
    single point-of-contact for reviewing, responding to, tracking, and addressing all customer complaints and compliments relating to CBP interaction with the general public, travelers, industry, Congress, and other government entities.
    CPB explains how to make a complaint here, but it is very cumbersome, especially for people who are not familiar with online procedures.

    4. Port Director and Supervisor Response.

    Complains about a passenger's treatment at a port of entry or border are supposed to be resolved within one business day by the relevant Port Director or Supervisor. For contact information, see here

    Thursday, September 10, 2009

    Visa Bulletin for October 2009

    The US Department of State has released the new Visa Bulletin for October 2009. In family-based categories, there is very slight movement forward, but just by a few weeks or months in most categories. However, Family 1st Preference for Mexico moves forward by 17 months

    Employment-based categories remain "Current" for all 1st preference applicants, and for 2nd preference from Mexico, China, and countries other than India and China.

    The biggest change is that the bulletin once again lists priority dates for 3rd Preference and Other Workers. These categories have been "Unavailable" since the May 2009 bulletin. Unfortunately, the priority dates listed on the October bulletin are all at least a few weeks behind the dates listed the last time, in the April bulletin. This may be the Visa Office being conservative in its first allocation of numbers for the new fiscal year. Let's hope so, and hope that they move forward in the next few months.

    Tuesday, September 8, 2009

    Federal Contractor E-verify mandatory today

    Despite last-minute appeals and lawsuits to delay its implementation, the FAR (Federal Acquisition Regulation) rule takes effect today. The rule requires contractors to use an electronic system (E-verify) to verify whether their employees are eligible to work in the U.S.

    The E-Verify requirement would apply to federal contracts with a performance period longer than 120 days and a value over $100,000.
    The rule covers subcontractors if a prime contract includes the clause. For subcontracts that flow from those prime contracts, the rule extends the E-Verify requirement to subcontracts for services or for construction with a value over $3,000.

    Employers who would like more information are encouraged to sign up for the free webinars being hosted by DHS: link.

    For more details, see the prior blog posts here.

    Wall Street Journal article: http://online.wsj.com/article/SB125236773673291025.html

    Friday, September 4, 2009

    I have blogged in the past about the so-called "widow penalty" in immigration law. These postings included one in June about DHS establishing relief by granting deferred action for two years to widows and widowers of U.S. citizens and children under 18 years old, who live in the US and who were married for less than two years before their spouse’s death.

    USCIS has now issued formal guidance on this relief here. The link includes FAQs and a Fact Sheet.

    CIS explains deferred action as
    an exercise of prosecutorial discretion not to pursue removal of a particular alien for a particular period. Deferred action is not intended to be a permanent remedy to the “widow penalty,” rather it is a temporary discretionary solution to an issue that is subject to ongoing legislative and judicial actions. The grant of deferred action by USCIS does not confer or alter any immigration status.
    Until the law is changed to eliminate the widow penalty, deferred action is the best that CIS can do to alleviate the hardship to families.

    Tuesday, September 1, 2009

    DHS offering free webinars on employer compliance issues

    The Department of Homeland Security (DHS) is offering free 1.5 hour webinars on various dates, covering employer compliance topics. The webinars will include a topic overview, demonstration of the E-Verify system if applicable, and a question and answer session.

    Attendees will have the opportunity to learn about the E-Verify program and its proper use as well as other select topics. The overview will allow participants to receive a full understanding of the program and key features.
    The webinars will cover the following topics:
    • Form I-9, Employment Eligibility Verification
    • E-Verify
    • FAR E-Verify.
    Registration for the webinars is required, and more details are here.

    Thursday, August 27, 2009

    DHS creates new blog

    The Department of Homeland Security has created a blog, called "Our Border, A Southwest Border Civic Network." The blog encourages "a new kind of dialogue about issues unique to the southwest border." Already it has about 250 members from many backgrounds and political opinions. It will be interesting to see where this social networking experiment goes.

    Tuesday, August 18, 2009

    FAQs on recapturing I-140 priority dates.

    1. When can I recapture an earlier priority date?

    If you have an approved I-140 in the employment-based 1st, 2nd or 3rd preference category, this can be transferred to a subsequent I-140 filed on your behalf in one of these categories.
    Priority dates cannot be transferred to 4th or 5th EB preference petitions or to family-sponsored petitions.

    2. What if my earlier employer withdraws the I-140?

    Your priority date is transferable unless CIS revokes the I-140 petition due to fraud or misrepresentation.
    Withdrawing the I-140 does not affect priority date recapture.

    3. Does the new I-140 petition need to be filed by the same employer?

    The later I-140 can be filed by a different company and be for a different position.

    4. Doesn’t the new job have to be in the “same or similar occupational classification” for portability?

    Recapturing priority dates does not require that the I-140s be for similar jobs. "Porting" usually refers to AC21 portability, nothing to do with priority dates. AC21 portability allows a person to change jobs during the permanent residence process in specific circumstances.

    5. Can I transfer my earlier EB-3 priority date to my husband’s later EB-2 filing, so that we have an earlier EB-2 priority date?

    Priority dates can only be transferred from one I-140 to another when the I-140s are filed for the same beneficiary. They are not transferable between beneficiaries.

    6. How do I ask CIS to use an earlier priority date?

    Normally the lawyer filing the 2nd or later I-140 will include a letter asking CIS to use the earlier priority date.
    The request needs to include a copy of the Earlier I-140 approval, or at least the receipt number. CIS needs some way to confirm that the earlier I-140 was for the same beneficiary.

    7. What if the 2nd I-140 was already approved - how to I make sure CIS is using the earlier priority date?

    You should not need to do anything. However I would contact CIS once the priority date is current to be sure that are using that PD

    PLEASE READ: I welcome all the comments to this posting. However, please do not ask specific questions about your particular case via the blog. I can only provide general information on this forum.

    Wednesday, August 12, 2009

    The US Department of State has released the new Visa Bulletin for September 2009. In family-based categories, there is very slight movement forward, but just by a few weeks or months in most categories.

    Employment-based categories remain "Current" for all 1st preference applicants, and the entire 3rd preference and Other Workers category remains "Unavailable", like it has been since May 2009. The biggest change is that the priority date for India and China EB-2 categories have moved forward again. In June and July 2009, these categories retrogressed by 4 years (India) and 5 years (China). Both categories advance by over a year this month, each moving from 10/1/03 to January 8, 2005.

    Friday, August 7, 2009

    CIS to increase employer site visits

    USCIS has received significant funding for a substantially increased volume of random site visits to employer petitioners. Over the coming year, many thousands more employers will be visited by USCIS, often unannounced.

    FDNS (Office of Fraud Detection and National Security) visits are to verify the existence of the employer, discuss the information that the employer has provided to USCIS in their petition(s) and whether the foreign national is working in accordance with the terms of their admission to the USA. Sometimes the visits relate to an approved petition, and sometimes they are used to check information in a pending petition.

    Officers commonly ask about the employer’s business; the worksite; the number of employees; whether the employer filed the immigration petition in question; whether the foreign national is actually employed by the employer; the foreign national’s position, job duties and salary; and the foreign national’s qualifications for the position, educational background, previous employment and immigration history, residence and dependents in the United States. Typically, the FDNS officer will want to talk to the HR representative and perhaps also the foreign national.

    If you are contacted about an upcoming site visit, please contact your immigration attorney immediately. If you receive an unannounced site visit - please contact us as soon as possible afterwards to discuss. In either situation, it is important to cooperate with the CIS representative as far as possible

    Links: FDNS fact sheet

    Thursday, August 6, 2009

    Permanent residence (green card) petitions down by half

    The Associated Press reports that the number of employers filing immigrant petitions has declined dramatically in the past two years. According to AP, CIS received about 1/2 the number of I-140s in Fiscal Years 2008 and 2009 than it did in each of the previous years.
    There were almost 235,000 applications submitted in fiscal 2007, almost 104,000 the following year, and fewer than 36,000 through the first eight months of fiscal 2009, according to data obtained by the AP.
    One side-effect of the drop in applications is that I-140s are now being processed much faster than before, the report notes.

    The decline in filings is attributed to "weak job market, long waits for immigrant visa availability, deep job cuts in sectors that have traditionally lured large numbers of applicants and more competition from American job seekers."

    Wednesday, August 5, 2009

    New medical forms for consular applicants

    The US State Department has updated the forms to be used by panel physicians for people applying for permanent residence via US consulates. Doctors should begin using the following forms immediately:
    • DS-2053, Medical Examination for Immigrant or Refugee Applicant (1991 TB TIs)
    • DS-3024, Chest X-Ray and Classification Worksheet (1991 TB TIs)
    • DS-3026, Medical History of Physical Examination Worksheet (all posts), and
    • DS-3025, Vaccination Documentation Worksheet (all posts).
    The remaining forms should be used starting on 10/1/09:
    • DS-2054, Medical Examination for Immigrant or Refugee Applicant (2007 TB TIs)
    • DS-3030, Chest X-Ray and Classification Worksheet (2007 TB TIs).
    People who have already completed their medical exams using the older version of the forms do not have to have new exams. For more details, see here.

    Photo by http://www.flickr.com/photos/adrianclarkmbbs/

    Friday, July 31, 2009

    H-1B cap count updated

    USCIS has updated the H-1B cap count. As of July 24, 2009, the agency has 44,900 cases against the regular (non-Master's) H-1B cap. This is only 100 more than the count on June 30. For more information, see the previous blog posts here.

    Thursday, July 30, 2009

    Premium Processing for religious workers resumes

    USCIS resumed Premium Processing (PP) for R-1 religious workers on July 21, 2009. Premium Processing guarantees a decision on the petition in 15 calendar days, for an extra $1000 government filing fee.

    For religious workers, Premium Processing is available to petitioners who pass a site inspection at the location where the beneficiary will work. If the site inspection was at a different location, or if the petitioner failed the inspection, PP will be rejected.

    Premium Processing is limited to R-1 nonimmigrant petitions; it is not available for permanent residence religious worker petitions.

    For more details, see the USCIS Press Release and Q&A.

    Photo by http://www.flickr.com/photos/wonderlane/3288666284/

    Monday, July 27, 2009

    Immigration attorney arrested for her own marriage fraud

    The DHS enforcement division, ICE (Immigration and Customs Enforcement) announced today that it had arrested an Ohio immigration attorney and an associate on charges of marriage fraud.

    According to the ICE Press Release, Lilian Asante, the lawyer, and Kwadwo Asante, a businessman, are alleged to have entered into separate marriages with two US citizens in order to obtain citizenship. The pair currently live together.

    Marriage fraud carries a penalty of up to a $250,000 and/or five years imprisonment.

    Thursday, July 23, 2009

    A National Dialogue for the Quadrennial Homeland Security Review

    What goals and priorities do you think should inform Homeland Security policies for the next four years?

    Participate here: A National Dialogue for the Quadrennial Homeland Security Review

    Tuesday, July 21, 2009

    New DMV Factsheet from DHS regarding drivers' licences for nonimmigrants

    This factsheet is primarily aimed at F, M or J nonimmigrants, however it is useful for all. In particular, this paragraph is interesting:
    Does a nonimmigrant need an SSN to apply for a driver’s license or ID?

    No. A nonimmigrant does not need an SSN; however, the nonimmigrant will need to apply for a social security number. Follow the instructions on how to apply for a social security card as described on the SSA Web site at http://www.ssa.gov/pubs/10096.html#3. If the nonimmigrant is ineligible for an SSN, he or she will receive a decision letter stating that ineligibility. The nonimmigrant must present this SSA letter when applying at the DMV office to fulfill the SSA requirement.
    Photo thanks to http://www.flickr.com/photos/corydisbrowphotography/3617533905/

    AC21 - Changing Employers/Positions while Permanent Residence is Pending

    One of the biggest areas of concern for foreign nationals now if what happens if they are laid off or find another job before their permanent residence is approved. Under immigration laws, specifically the American Competitiveness in the 21st Century Act (AC21), the US government introduced some job flexibility to foreign nationals with long-pending permanent residence applications.

    AC21 provides that a person's labor certification or I-140 approval remains valid when an alien changes jobs if:
    (a) A Form I-485, Application to Adjust Status, on the basis of the immigrant petition has been filed and remained unadjudicated for 180 days or more; and
    (b) The new job is in the same or similar occupational classification as the job for which the certification or approval was initially made.

    This means that a foreign national can change positions within the same employer, or even change employers and locations, provided that the new position is in the "same or similar occupational classification."

    What does "same or similar occupational classification" mean?

    The AC21 decision is based on the duties of the position, not the title. Many people think that if they are moving from Engineer 1 to Engineer 2, they are safe, or that if they move from Engineer 1 to Software Analyst, they will have problems. This is not necessarily the case. USCIS refers to the
    Dictionary of Occupational Titles (DOT) for guidance. CIS advises comparing the DOT code assigned to the original position, and that attached to the new position, to see if they are "same or similar." A Programmer does not have to stay a programmer forever, however she could not move to a Manager role and use AC21.

    Can I use AC21 to "port" to self employment?

    Yes. USCIS guidance from December 2005 allows this, if the "same or similar" requirements are met.

    What if I leave the original employer before the 485 is pending for 180 days?

    The December 2005 memo explains that just you leave the employer before 180 days, does not make you ineligible to port to similar employment. There must have been a bona fide job offer by the first employer, and the you must have intended to take that job.

    What if my original employer withdraws my I-140?

    If the employer withdraws the I-140 before the 485 has been pending for 180 days, you are not portable. This is why we recommend not porting until after 180 days.

    What if my I-140 is denied?

    AC21 portability only applies if the I-140 was approvable when filed and CIS has said that it must actually be approved before a favorable decision on portability can be made.

    How does portability affect my priority date?

    Your priority date stays the same and continues to be the date that the labor cert or I-140 (if no labor cert.) was first filed.

    What happens if I am laid off and can't find a new job?

    This is tricky situation. In theory, the permanent residence process is for a future opening, so that you don't have to currently have a position until the 485 is approved. However, CIS has recently been "pre-adjudicating" cases even though the priority date might be very backlogged. In many of these cases, CIS has issued Requests for Evidence, looking for updated letters confirming an offer of employment. A person who is unemployed clearly cannot provide such a letter, and it is possible that these 485s might be denied.

    For more AC21 information, see the USCIS guidance memos:
    August 2003
    May 2005
    December 2005
    May 2008
    Photo by: http://www.flickr.com/photos/alberto_sechi/2231789372/

    Friday, July 17, 2009

    Who can pay the H-1B costs - employer or employee?

    Many foreign nationals report that their employers ask the employees to pay the costs of getting H-1B status for themselves. If the employees are not asked to pay up-front, they may be asked to sign a reimbursement agreement, agreeing to repay the costs if they leave the company within a certain time.

    H-1B Costs

    There are 2 main costs in getting H-1B approved: government filing fees and legal fees. The filing fees are:
    A. $320 I-129 fee
    B. $1500 Education and Training Fee (For 1st H-1B petition and first extension) fee is $750 if under 25 employees.
    C. $500 Anti-Fraud Fee (for employer's first H-1B petition for that foreign national).

    Legal fees vary by attorney, of course.

    What can the employee pay?

    An employee cannot pay any part of the training fee listed at B. above. This is not permitted under any circumstances. Many attorneys believe that the employee legally can't pay the $500 Anti-Fraud Fee either. This is not correct - CIS has specifically said that this fee "does not need to be paid only by the petitioner." (AILA Service Center Operations teleconference 4/11/05).

    There is a possible restriction on employees paying any of the rest of H-1B fees, if the salary being paid to the employee is very close to the "prevailing wage" or the "actual wage" for the position.

    "Prevailing wage"is what the employer must agree to pay the foreign national, and it is what a survey shows is the normal salary for that position in that location.
    "Actual wage" is defined as "the wage rate paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question." If there is nobody else with similar experience and qualifications for the job (because the H-1B worker is the only person in that category), then the "actual wage" would be whatever is paid to the H-1B employee.

    There is an argument that if an employee pays any of the H-1B fees, this must be considered as a deduction from salary. If the salary, after this deduction, is below the "prevailing wage" or "actual wage" (whichever is higher), then there is a problem.

    Are reimbursement agreements enforceable?

    Apart from the limitation on recouping fees above, the question of whether a reimbursement agreements is enforceable is a matter of local state employment and contract laws.

    Wednesday, July 15, 2009

    Permanent residence not abandoned despite being outside the US for 2.5+ years - BIA

    Many people with US permanent residence (green cards) want to know how long they can stay outside the US without abandoning their permanent residence. The Board of Immigration Appeals (BIA) recently made a very interesting decision in a case involving this issue. They ultimately considered that a person had not abandoned his permanent residence despite being outside the US for over 2.5 years.

    In this BIA case, the foreign national (Mr. X) returned to the US in 2000, having been outside the US
    for 2 years and 9 months. On re-entering the US, Mr. X explained that he had left the US to care for his sick grandmother. The Department of Homeland Security (DHS) claimed that Mr. X did not leave to care for a family member and that he intended to abandon his lawful permanent resident status.

    The BIA considered case history on this issue, including Katebi v. Ashcroft, 396 F.3d 463 (1st Cir. 2005). In Katebi, the court stated that "when an alien has a colorable claim to [permanent] resident status, the DHS has the burden to prove that the alien is not eligible for admission by clear, convincing, and unequivocal evidence."

    The BIA, citing Katebi stated that
    a permanent resident returns from a temporary visit abroad only when (a) the permanent resident's visit is for a period relatively short, fixed by some early event, or (b) the permanent resident's visit will terminate upon the occurrence of an event having a reasonable possibility of occurring within a relatively short period of time.

    Ultimately, the issue is one of intent, and not, as the Immigration Judge's opinion suggests, whether the absence from the United States was "necessary" in the first place......
    In other words, a returning resident does not necessarily abandon his status if he extends his trip beyond a relatively short period; the key remains whether his activities are consistent with an intent to return to the United States as soon as practicable....

    Factors to be considered in evaluating the alien's intent include the alien's family ties, property holdings, and business affiliations within the United States, and the alien's family, property, and business ties in the foreign country.

    In the instant case, Mr. X took no steps to establish significant ties in Hong Kong that would show that he intended to live there permanently. Instead, he apparently spent his time caring for an elderly relative and helping his sister, who was going through a divorce while caring for two small children. The BIA notes that Mr. X "did not have traditional employment in Hong Kong, did not have significant income there or open a bank account, and did not attempt to secure housing for himself." In addition, Mr. X had lived in the US for about 12 years after becoming a permanent resident, and had considerable family ties in the US.

    Despite the above decision, which is non-precedent, we still urge all permanent residents who will spend 6+ months outside the US to get re-entry permits to be safe. See prior posts on this issue: http://martinvisalaw.blogspot.com/search/label/reentry%20permit.

    Monday, July 13, 2009

    Visa Bulletin for August 2009 issued.

    The US Department of State has released the new Visa Bulletin for August 2009. In family-based categories, there is very slight movement forward, but just by a few weeks in most categories.

    Employment-based categories have not changed for 1st preference applicants, and the entire 3rd preference and Other Workers category remains "Unavailable", like it has been since May 2009. The biggest change is that the priority date for India and China EB-2 categories have moved forward again. In June and July 2009, these categories retrogressed by 4 years (India) and 5 years (China). Both categories advance by almost 4 years, each to October 1, 2003.