New guidance issued on H-1Bs for healthcare workers

The US Citizenship and Immigration Service (USCIS) has issued new guidance on the standards for adjudicating H-1B petitions filed on behalf of beneficiaries seeking employment in a health-care specialty occupation.

The memo suggests that adjudicators should first consult the U.S. Bureau of Labor Statistics’ Occupational Outlook Handbook (OOH) to determine whether the position qualifies as a H-1B "specialty occupation" as defined in the Immigration and Nationality Act.

The memo addresses licensing requirements for health-care workers in detail, and the effect of having a license - or not having a license - on approval of a case. If the foreign national has the required license, the adjudicator should not "look beyond the license." If the foreign national has a restricted license (e.g., license approved except for mandatory supervised practice), and the petition is otherwise approvable, an adjudicator should approve the petition for one year, or the duration of the restricted license, whichever is longer.

If the employee does not have the license because s/he needs certain immigration documents before getting a license, CIS can approved the petition for one year. The memo says that

"The approval of any such H-1B petition shall not constitute approval by USCIS for the alien beneficiary to engage in any activity requiring possession of such State or local license. It is merely a means to facilitate the state or local licensing authority’s issuance of such a license to the alien, provided all other requirements are satisfied."

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

An end to the "widow penalty?"

A court in Massachusetts (Taing v. Napolitano) has held that a woman from Cambodia could continue with her permanent residence application although her US citizen husband died before the paperwork was processed. The US immigration service (CIS) argued that Mrs. Taing no longer qualified as a "spouse" since her husband had died before the case was approved.

This controversial so-called "widow penalty" has been the subject of many news articles, listed here. The New York Times recently called on the government to end this penalty also.

Mrs. Taing entered the US in 2004. Later that year, she married her late husband and they filed the relevant immigration paperwork. Six months later, Mr. Taing tragically died, before the immigration filings were approved. USCIS denied the permanent residence application, on the basis that Mrs. Taing was no longer a "spouse." The US Court of Appeals for the First Circuit agreed with the Sixth and Ninth Circuit court's views that the plaintiff in this situation remained a "spouse" and that she should not be penalized because CIS didn't adjudicate the case quickly enough.

Although we rest our holding on entirely legal grounds, we note that our decision comports with common sense. We do not believe that Congress intended for the speed at which immigration authorities attend to a pending application to be dispositive in determining when a surviving spouse like Mrs. Taing, who has diligently followed the rules, can qualify as [a spouse.] As our sister court has recently noted, the result the government seeks would "create[] an arbitrary, irrational and inequitable outcome in which approvable petitions will be treated differently depending solely upon when the government grants the approval." Lockhart, 561 F.3d at 620 (quoting Robinson, 554 F.3d at 371 (Nygaard, J., dissenting)).

Photo by http://www.flickr.com/photos/ninjaneil902/

Colebrook, N.H., rises up to save French bakery - The Boston Globe

Colebrook, N.H., rises up to save French bakery - The Boston Globe

I love this story about how the residents of this small town persuaded the US consulate in Paris to approve a visa. The owner of the bakery had applied for a new E-2 (investor) visa, and was initially denied because the consulate didn't think her bakery business was profitable enough.

"They began sending letters to the US Embassy in Paris. They lobbied their congressmen to get behind their appeal. They signed a petition by the hundreds and sent it to American diplomats several thousand miles away.

Their argument: The bakery might not earn huge sums of money, but it contributed plenty to the community, providing a place for residents to gather, while offering hope that a small business, even one as unlikely as the boulangerie, could thrive in their town."

The petition was successful, and the US consulate overturned their denial and approved the E-2 visa.

Posted using ShareThis
Photo by http://www.flickr.com/photos/fooey/

President Obama schedules immigration reform meeting for June 8

The online political website Politico.com has revealed that President Obama has invited members of Congress to the White House on June 8 to discuss immigration reform. Officials are vague as to the purpose of the meeting, saying:

"The meeting will be an opportunity to launch a policy conversation that we hope will be able to start a debate that will take place in Congress later in the year....This isn’t a forum or a summit with outside groups, this is solely a meeting with members of Congress on both sides of the aisle and both sides of the issue."

There has been much speculation on whether President Obama plans to tackle comprehensive immigration reform this year or now (see earlier blog posts). Maybe we will get more indication of his intentions after the meeting next month.

H-1B cap count updated - 45,500 now used

USCIS updated the H-1B cap count for Fiscal year 2010. It now has 45,500 cases against the regular (non-Master's) H-1B cap.

Emigration from Mexico to US down by 25%

The New York Times today reports that census data from the Mexican government show a steep decline in emigration from Mexico to the US.

The recently released data show that about 226,000 fewer people emigrated from Mexico to other countries during the year that ended in August 2008 than during the previous year, a decline of 25 percent. All but a very small fraction of emigration, both legal and illegal, from Mexico is to the United States.

The article attributes the decline to the poor US job economy and lack of jobs for emigrants in the US. However, apparently there has not been a corresponding increase in the number of Mexicans returning to live in Mexico:

Still, at least 11 million illegal immigrants remain in the United States, the demographers say. Despite collapsing job markets in construction and other low-wage work, there has been no exodus among Mexicans living in the United States, the Mexican census figures show. About the same number of migrants — 450,000 — returned to Mexico in 2008 as in 2007.

Some commentators claim that the decrease is as a result of increased enforcement of immigration laws at the border and in the workplace. However, other sources in the article claim that enforcement is only a slight deterrent to Mexicans crossing illegally and that the poor job market is much more significant.

New US entry documents required from June 1, 2009

On June 1, 2009, the U.S. government will implement the full requirements of the land and sea phase of WHTI (Western Hemisphere Travel Initiative). Everyone traveling by air must now have a passport or other valid travel document to enter or re-enter the United States. The proposed rules require most US citizens entering the United States at sea or land ports of entry to have a passport, passport card, or other travel document approved by the Department of Homeland Security (DHS). Those other documents include:

• Trusted Traveler Cards (NEXUS, SENTRI, or FAST)
• State Issued Enhanced Driver's License (when available)
• Enhanced Tribal Cards (when available)
• U.S. Military Identification with Military Travel Orders
• U.S. Merchant Mariner Document when traveling in conjunction with official maritime business
• Native American Tribal Photo Identification Card
• Form I-872 American Indian Card

US citizen children under the age of 16 will be able to present the original or copy of their birth certificate, or other proof of US citizenship such as a naturalization certificate or citizenship card.

The US passport card costs $45 and is valid for 10 years. It cannot be used for international air travel. Information on the card is here. DHS states that it has issued 1 million cards so far and is taking 4-6 weeks for approval.

More information on the WHTI and documentary requirements is available at the DHS website here and here and on the Customs and Border Protection website here.

Photo by Mohan S.

Visa Bulletin for June 2009 released

The US Department of State has released the new Visa Bulletin for June 2009. In family-based categories, there is very slight movement forward, but just by a few weeks in most categories. Some categories do not advance at all, but none have retrogressed.

Employment-based categories have not changed for 1st preference applicants, and the entire 3rd preference and Other Workers category is "Unavailable", like it was in May. The biggest change is that the priority date for India EB-2 category has retrogressed from 2/15/04 in May to 1/1/00 in June. This is bad news for 2nd preference applicants from India, unfortunately.

H-1B cap count updated May 4 - no change

According to USCIS, the agency has still just received 45,000 new H-1B petitions towards the regular cap of 65,000. See here for details.

Worksite Enforcement Fact Sheet issued by ICE

Immigration and Customs Enforcement (ICE) issued a new Fact Sheet last week with FAQs on ICE's worksite enforcement procedures, figures, and reasons. The Fact Sheet explains that in Fiscal Year 2008

• Of the individuals criminally arrested, 135 were owners, managers, supervisors or human resources employees facing charges including harboring or knowingly hiring illegal aliens. The remaining workers criminally arrested are facing charges including aggravated identity theft and Social Security fraud.
• ICE has also made more than 5,100 administrative arrests for immigration violations during worksite enforcement operations.
• ICE made more than 1,100 criminal arrests tied to worksite enforcement investigations.

In April 2009, Secretary Napolitano issued guidance outlining that ICE will focus its resources in the worksite enforcement program on the criminal prosecution of employers who knowingly hire illegal workers in order to target the root cause of illegal immigration. ICE will continue to arrest and process for removal any illegal workers who are found in the course of these worksite enforcement actions in a manner consistent with immigration law and DHS priorities. Furthermore, ICE will use all available civil and administrative tools, including civil fines and debarment, to penalize and deter illegal employment.

US consulates in Mexico suspend non-essential services

The U.S. Embassy in Mexico City and all U.S. Consulates throughout the country have suspended all non-essential services to the public until May 6, due to the swine flu outbreak. Consular services for U.S. citizens will be limited to emergency assistance and to citizenship applications (passports and consular reports of birth abroad). See here for the embassy notice. The consulates will reschedule appointments that have been cancelled.

For more information, see the State Department Travel Alert and the CDC notices.

H-1B cap count updated

According to USCIS, the agency has now received new 45,000 H-1B petitions towards the regular cap of 65,000. See here for details.

H-1B and L-1B Visa Reform Act introduced in Congress

Assistant Senate Majority Leader Dick Durbin (D-IL) and Senator Chuck Grassley (R-IA) today introduced the H-1B and L-1 Visa Reform Act - narrowly-tailored bipartisan legislation that would, in their words,

reform the H-1B and L-1 guest-worker programs to prevent abuse and fraud and to protect American workers.

Senator Durbin's website states the following:

The H-1B visa program should complement the U.S. workforce, not replace it,” Durbin said. “Congress created the H-1B visa program so an employer could hire a foreign guest-worker when a qualified American worker could not be found. However, the H-1B visa program is plagued with fraud and abuse and is now a vehicle for outsourcing that deprives qualified American workers of their jobs. Our bill will put a stop to the outsourcing of American jobs and discrimination against American workers.

The Reform Act would

• Require all employers who want to hire an H-1B guest-worker to first make a good-faith attempt to recruit a qualified American worker. Employers would be prohibited from using H-1B visa holders to displace qualified American workers;
• Prohibit the of “H-1B only” ads and prohibit employers from hiring additional H-1B and L-1 guest-workers if more than 50% of their employees are H-1B and L-1 visa holders;
• Allow DOL to initiate investigations without a complaint and without the Labor Secretary’s personal authorization;
• Authorize DOL to review H-1B applications for fraud;
• Allow DOL to conduct random audits of any company that uses the H-1B program; and
• Require DOL to conduct annual audits of companies who employ large numbers of H-1B workers.

DREAM Act debate

The New York Times has a discussion this week on the DREAM Act. This legislation, sponsored by Senators Richard Durbin (D) of Illinois, and Richard Lugar (R) of Indiana, addresses the situation faced by young people who were brought to the United States years ago as undocumented immigrant children and who have since grown up here, stayed in school, and kept out of trouble. If enacted, the DREAM (Development, Relief, and Education for Alien Minors) Act would

• Permit certain immigrant students who have grown up in the U.S. to apply for temporary legal status and to eventually obtain permanent status and become eligible for U.S. citizenship if they go to college or serve in the U.S. military; and
• Eliminate a federal provision that penalizes states that provide in-state tuition without regard to immigration status.

Supporter of the legislation argue that

It would give lawful status to children brought to America by events beyond their control. They have grown up here, are fully integrated, and know no other country. Instead of being rounded up and deported, they will contribute to America, starting when they meet requirements that they go to college or serve in the military.

Opponents say that it is an amnesty

designed to politically leverage the dilemma of the most sympathetic group of illegals into a more general amnesty.

The most recent status of the DREAM Act is that a bipartisan group of senators introduced it to the latest Congress on March 26, 2009. AILA (the American Immigration Lawyers Association) estimates that 65,000 undocumented young people who have spent their childhoods in America would be impacted by this important piece of legislation annually.

The College Board, the nation's recognized leader in assisting students in the transition to higher education, recently issued a report supporting the DREAM Act.

Photo by Lisa Weston

H-1B count now at 44,000

USCIS has released the latest count of FY 2010 H-1B petition filings.

According to the CIS website

USCIS has received approximately 44,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap.

Additionally, the agency has received approximately 20,000 petitions for aliens with advanced degrees; however, we continue to accept advanced degree petitions since experience has shown that not all petitions received are approvable.

For cases filed for premium processing during the initial five-day filing window, the 15-day premium processing period began April 7.

USCIS will provide regular updates on the processing of FY2010 H-1B petitions. The updates can be found on the USCIS’ Web site at www.uscis.gov/h-1b_count.

Photo thanks to aussiegall

CIS has issued the latest processing time goal and report here. In a 2007 fee rule, CIS aimed to reduce processing times by 20% by 2009. CIS is meeting its goals in some ares, e.g. EAD applications, I-129 petitions (2 month goal) and I-131 applications (3 month goal). In some other popular cases, processing times are well behind the goals, e,g, I-140 petitions (9 month processing vs 4 month goal), I-751 Removal of Conditions (9 month processing vs 6 month goal), Adjustment of Status for family (7.3 month processing vs 4 month goal). We have seen many cases take less than the posted processing times, especially naturalization applications. However there are also cases taking longer.

Federal Contractor E-verify rule delayed until June 30, 2009

What is E-Verify?

E-Verify is an Internet based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA) that allows participating employers to electronically verify the employment eligibility of their newly hired employees.

Background to the new rule:

President George W Bush issued an executive order in 2008, directing federal agencies to require that federal contractors agree to electronically verify the employment eligibility of their employees. The amended Executive Order reinforces the policy, first announced in 1996, that the federal government do business with companies that have a legal workforce. This new rule requires federal contractors to agree, through language inserted into their federal contracts, to use E-Verify to confirm the employment eligibility of all persons hired during a contract term, and to confirm the employment eligibility of federal contractors’ current employees who perform contract services for the federal government within the United States.

The effective date of the final rule requiring certain federal contractors and subcontractors to use E-Verify has been delayed until June 30, 2009.

Who is affected?

The rule will only affect federal contractors who are awarded a new contract after June 30 that includes the Federal Acquisition Regulation (FAR) E-Verify clause (73 FR 67704). Federal contractors may NOT use E-Verify to verify current employees until the rule becomes effective and they are awarded a contract that includes the FAR E-Verify Clause.

What contracts are included?

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.

See USCIS FAQs on E-Verify

Previous E-verify post

Border Czar announced by President Obama

President Obama has chosed Alan Bersin to work with DHS Secretary Janet Napolitano to handle illegal immigration and drug violence issues along the Mexican-American border. Mr. Bersin held a similar position under Attorney General Janet Reno in the 1990s. His official title will be Assistant Secretary for International Affairs and Special Representative for Border Affairs.

Time magazine quotes Bersin as saying

What's going on in Mexico, across the border, in Juarez, requires that we support the government of Mexico in its very valiant, courageous effort to both stem violence and also deal with the drug trafficking organizations.

The Obama administration has promised to target border violence and work with Mexican authorities to curb drugs and arms trafficking. Hundreds of federal agents, along with high-tech surveillance gear and drug-sniffing dogs, are being deployed to the Southwest.

As reported by CNN, Bersin is a former California secretary of education, superintendent of San Diego City Schools and practicing private attorney.

DHS has issued a detailed Fact Sheet explaining its approach toguarding the southern border. The goals are to:

1. Guard against violent crime spillover into the United States;
2. Support Mexico's crackdown campaign against drug cartels in Mexico; and
3. Reduce the movement of contraband in both directions across the border.

DHS aims to do this by the following initiatives:

• Doubling Border Enforceement Security Task Force Staffing

• Tripling DHS Intel Analysts on the SWB

• Increasing ICE Attaché Personnel in Mexico by 50 percent

• Doubling Violent Criminal Alien Sections Assignments

• Quadrupling the Number of Border Liaison Officers
  

• Bolstering Secure Communities Biometric Identification Deployment

• Implementing 100% Southbound Rail Screening

• Increased Maritime Interdiction Operations

• Immediate Port of Entry resources enhancements

• Periodic Evaluation and Review of the SWB Initiative.

Photo courtesy of Paul Garland

Update on President Obama's immigration reform proposals

The New York Times reported on Wednesday that President Obama planned to push immigration reform as a priority in 2010. This report generated a lot of comment and controversy, not surprisingly, given that immigration reform is a controversial topic at any time, but especially in a recession. CNN.com now states that

Multiple Obama administration officials tell CNN that the White House is not pushing to pass a comprehensive immigration reform bill this year.....There are roughly 12 million illegal immigrants in the United States. In addition to making a way for some of them to stay in the country legally, CNN has learned the Obama administration wants to remove incentives to enter the U.S. illegally, beef up border security and work with Mexico to cut down on illegal immigration.

The American Immigration Lawyers Association (AILA) has published a letter commending President Obama on his plans to reform immigration. AILA comments that

Moving forward with comprehensive immigration reform will ensure that all workers are here legally, will punish unscrupulous employers who undercut their honest competitors, and will restore integrity to the labor market. It will lift wages for workers, ensure all workers are paying taxes, restore fairness to our immigration system, and create a level playing field for law-abiding employers. We laud the administration for seeing past the political and emotional rhetoric to the truth that what our country needs to climb out of the crisis toward economic growth and stability.

Links to other online discussions:
Huffington Post
Wall Street Journal (Rahm Emanuel backing immigration reform)
New York Times
Fox News

Photo courtesy of Realjameso16

Visa Bulletin for May 2009 released

The US Department of State has released the new Visa Bulletin for May 2009. In family-based categories, there is very slight movement forward, but just by a few weeks in most categories. Some categories do not advance at all, but none have retrogressed.

Employment-based categories have not changed for 1st and 2nd preference applicants. However, the entire 3rd preference and Other Workers category is "Unavailable", meaning that nobody in that category can file in May, even with a very old priority date.

Visa Bulletin
Priority Dates and Preference Categories explained

H-1B cap may not have been reached yet

USCIS has announced that it is continuing to accept H-1B cases that are subject to the Fiscal Year 2010 cap. This means that the agency might not have received enough petitions within the first few days of filing to reach the quota. If this is the case, this would be the first time in years that the cap was not reached immediately. This also means that any cases received by CIS before today should be accepted for H-1B processing and should not be entered in a random lottery. Any cases received after today may be too late, however we won't know when the cap has been reached until after this happens.

See Press Release here.

For my previous posting about the H-1B cap, click here.

Q&A on new I-9 requirements issued by USCIS

As a follow-up to last week's blog posting about the new I-9 requirements starting on April 3, USCIS has released a Question and Answer document for employers here. The Q&A answers questions such as

• What is the difference between the revised Form I-9 and the old one?
• Why can’t I present an expired document?
• As an employer, can I accept documents that used to be on the Form I-9 but aren’t now?
• Do I need to complete the revised version of the Form I-9 for all my employees or just the new ones?

Previous blog posting: http://martinvisalaw.blogspot.com/2009/04/are-you-ready-new-i-9-requirements-take.html.

Are you ready? New I-9 requirements take effect tomorrow, April 3

The new requirements regarding completing the Form I-9, to verify employment eligibility in the US, take effect tomorrow, April 3rd. Starting tomorrow, employers must use the new I-9 form to verify new hires and to reverify existing hires. The list of acceptable documents that an employee can present will change tomorrow also, primarily by eliminating expired documents from the list. USCIS has issued a Q&A document on the new requirements, available here. As the Q&A explains:

The new rule:
• Requires that all documents presented during the verification process be unexpired;
• Eliminates List A identity and employment authorization documentation Forms I-688, I-688A, and I-688B (Temporary Resident Card and outdated Employment Authorization Cards);
• Adds foreign passports containing certain machine-readable immigrant visas to List A;
• Adds to List A as evidence of identity and employment authorization valid passports for citizens of the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI), along with Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI ; and
• Makes technical updates.

The new I-9 and instructions are here. The updated USCIS Handbook for Employers (M-274) is here.

Q&A on I-9.

H-1B "cap gap" Fact Sheet for employers issued by ICE

The Department of Homeland Security's Immigration and Customs Enforcement (ICE) division has just issued a Fact Sheet on the "cap-gap" extension of employment authorization for F-1 students.

The cap gap relief applies to F-1 students who (a) are working pursuant to Optional Practical Training; (b) have F-1 status that will expire more than 60 days before 10/1/09; and (c) have been approved for H-1B status to start on 10/1/09. Without cap-gap relief, these students would fall out of status before 10/1/09, so would need to leave the US and return once the H-1B status could start. This could mean a gap of months if the F-1 status expired in early summer.

The cap gap provision automatically extends the F-1 status and OPT, if applicable. As the Fact Sheet explains:

The cap-gap extension of OPT is automatic for eligible students. A student does not file an application for the extension or receive a new EAD to cover the additional time. The only proof of continued employment authorization currently available to an affected student is an updated Form I-20 showing an extension of OPT, on page 3. This document serves as proof of continued employment authorization.

The automatic extension of an F-1 student's duration of status and employment authorization is terminated upon the rejection, denial, or revocation of the H-1B petition filed on the F-1 student's behalf.

The Fact Sheet explains the employer's and student's responsibilities regarding getting this cap-gap extension. For more information on this provision, see here.

For information on the H-1B cap: http://martinvisalaw.blogspot.com/2009/03/new-guidelines-for-h-1b-cap-cases-from.html

Can I change from H-1B to visitor staus while I look for work, then back to H-1B?

It may be a sign of the times that the above question (in various forms) is becoming very frequent. Some actual examples are:

"Can I switch to H1b to visitor visa and then back to H1B in a short term? My current h1 is expiring, but I have 2 yrs remaining on my 6yrs. If I change status to visitor visa, can I change back to h1 once i get a new project and start working without leaving the country?"

"My current H1B expires at the end of March 30th, 2009. I was told I cannot currently extend it because I am employed with a staffing company and I do not have a project start date in hand yet and hence no contract agreement with any client, but am working on something that will come through in mid-April or early May. Can I switch to a B2 visa (to keep me in status) and then switch back to H1 without the quota since I have time remaining on my H1, all without leaving the country?"

Answer:

It is unlikely that CIS would approve a B-2 petition for the above foreign nationals, unfortunately. B-2 holders need to have "nonimmigrant intent" i.e. they need to intend to return to their home country at the end of their B-2 stay. Having been here in H-1B status, and being unable to state that they intend to return home, shows that the foreign national probably doesn't have the requiremed nonimmigrant intent. The situation would be different if the foreign national really did intend to return home and was just asking for B-2 time to sell a house, pack, etc. However, looking for a job is not a legitimate B-2 activity.

If the foreign national finds a new employer who files a new H-1B petition, this new petition could be decided in a number of ways, assuming it is not denied completely. At best, the new employer could get approval for their H-1B and an automatic change or extension of the worker's H-1B status. However, if there is a long gap between the last H-1B employment and the new filing, CIS might just approve the H-1B part of the petition, but not the automatic change of employer/extension part. This could happen if CIS considered that the foreign national was maintaining status at the time of filing. This means that the foreign national would need to leave the US and return showing a valid H-1B visa (even for an old employer) and the new approval notice, to "activate" the H-1B status for the new employer.

Please see here for the difference between "visa" and "status". See here for FAQs regarding when a new visa is needed.

New guidelines for H-1B cap cases from CIS

The H-1B cap deadline is next week. All petitions for a new H-1B to start anytime from 10/1/09 to 9/31/10 (unless for a cap-exempt organization) need to be filed with USCIS by April 1, 2009. As reminder, the people most like to need a H-1B in that period include:

• foreign national students whose current work authorization expires before 9/30/10;
• people who need to change from another work-authorized status, e.g. TN holders who want to start permanent residence or L-1B holders reaching their maximum stay; and
• people who might not need H-1B status till after 10/1/10, but want more than one chance at the H-1B lottery. This means that foreign nationals reaching their maximum L-1 stay before 10/1/2011 should possibly apply for H-1B status by 4/1/09.

To help employers and their attorneys, USCIS released various guidance documents listed here. These documents include information on the H-1B restrictions that apply to employers who received TARP funding (see earlier posting here) and on the 2010 cap general, including a Question and Answer format here.

How easy is it to get US passport with fake documents? Very easy, says the government

The USA Government Accountability Office (GAO) has discovered that it is alarmingly easy to get a US passport using forged documents.

GAO conducted four tests simulating this approach and was successful in obtaining a genuine U.S. passport in each case. In the most egregious case, an undercover GAO investigator obtained a passport using counterfeit documents and the Social Security Number (SSN) of a man who died in 1965. In another case, the investigator obtained a passport using counterfeit documents and the genuine SSN of a fictitious 5-year-old child GAO created for a previous investigation—even though the investigator’s counterfeit documents and application indicated he was 53 years old. All four passports were issued to the same GAO investigator, under four different names.

The tests were conducted between May 2008 and March 2009, so these security lapses are very recent. The length of time between application and passport issuance was 1-8 days only.

See the full report here.

Happy St. Patrick's Day today!

Beannachtaí na Féile Pádraig oraibh (Happy St. Patrick's Day - in Irish). I moved to the US from Ireland 15 years ago, and I am still amazed at the way Americans celebrate St. Patrick's Day (March 17). I can't imagine Irish people wearing bacdges on July 4th saying "Kiss me, I'm American!" St. Patrick's Day is a far bigger celebration here than it is in Ireland, though the Irish celebrate more than when I left in 1994. It's still more of an arts festival in Ireland, rather than the drinking festival it is here (at least in Dallas!). If interested, check out the website for the Dublin St. Patrick's Festival.

And yes, that is me in the center of the photo, after running the Chicago marathon in 2004. Some of my family came to watch, and clearly didn't want to blend into the crowd!

Visa Bulletin for April 2009 released - significant retrogression

The US Department of State has released the Visa Bulletin for April 2009. In family-based categories there is very slight movement forward. In employment-based categories, however, the dates actually retrogress (move backwards) for some categories. In many cases, the retrogression is 2+ years, unfortunately. EB-3 for China retrogresses almost 8 months, EB-3 for Mexico retrogresses by nearly 6 months, EB-3 for Philippines and all other countries moves back by over 2 years.

The "other workers" categories also show retrogression in all categories: China by 20 months, India by 8 months, Mexico by 2 years, and Philippines and all other countries by over 2 years. Immigrant (permanent resident) visas for religious workers are "Unavailable" in April.

For an explanation of preference categories and priority dates, see here.

My spouse is "illegal" - what can we do?

Many US citizens get married to foreign nationals who are undocumented, i.e. not legally in the United States. The US citizens wonder if they can "sponsor" their spouse to get lawful status. The answer depends on various facts, so it is important to review the specific details of your case with an experienced immigration attorney.

In general, if you entered the US legally and overstayed your authorized stay, your US citizen spouse can petition for you to become a permanent resident. All the usual requirements to become a permanent resident must be met, including showing good moral character, completing a medical exam, providing an Affidavit of Support, etc. (see blog posts and website links below). However, if you entered using the Visa Waiver Program (VWP), you should file for permanent residence before the 90-day period of authorized stay ends.

If you entered the US without inspection, you will have a harder time getting permanent residence. You cannot complete the process in the US because you are ineligible for Adjustment of Status. You need to apply at a consulate in your home country. Your spouse will need to request a waiver of inadmissibility on Form I-601. Your spouse needs to show that it would cause "extreme hardship" if you were not allowed back to the US. "Extreme hardship" is a very high standard - it needs to be greater than the normal hardship that a person would endure if they were separated from their spouse involuntarily. This includes showing why your spouse could not move to your country to live with you there.

If you entered without inspection over one year ago, OR were ordered removed from the US AND attempted to enter again without inspection, there is no waiver until you have been outside the US for 10 years.

If you are an undocumented immigrant married to a US citizen, please contact an immigration lawyer about your case. Do not attempt to file the paperwork yourself, especially if you entered without inspection (EWI), because there are many facts to analyze. The date that you entered, any prior immigration paperwork that was filed for you, your criminal history, and many other factors are important. Also note that the waiver process can take months or even years before you get a decision.

Blog on marriage-based filing
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Bank of America withdraws job offers for foreign students

The Financial Times today reports that Bank of America has withdrawn job offers to foreign graduates, because of the restrictions on H-1B hiring that are contained in the stimulus package. As reported in the Financial Times:

The recently passed $787bn stimulus bill in effect prevents financial institutions that have received money from the government’s troubled asset relief programme from applying for H1-B visas for highly skilled immigrants if they have recently made US workers redundant.......

Traditionally, about a third of MBA students at the leading US schools have taken up finance and banking jobs on graduation, with about a third of those MBAs coming from outside the US.

(I blogged about these restrictions a few weeks ago: martinvisalaw.blogspot.com/2009/02/stimulus-bill-restricts-h-1b-new-hires.html.)

While the BofA plans might affect only 50 students, business schools are concerned that other banks will need to withdraw their job offers also.

Despite this news, experts predict that the H-1B quota will again be reached within days of April 1. We recommend that all employers with potential H-1B cases contact their attorney immediately, if not already done. My law firm started preparing its H-1B cap cases in February, to be certain that they are ready to be filed on April 1.

FAQs on Conditional Permanent Residence

My experience answering questions on Avvo is showing me that certain questions frequently. I blogged about one area lately here, regarding Afidavits of Support: http://martinvisalaw.blogspot.com/2009/03/faqs-on-affidavit-of-support.html. Also related to family-based immigration is the popular subject of conditional permanent residence.

What is conditional permanent residence?

Conditional permanent residence (CPR) is granted to a foreign national who applied for permanent residence (green card) based on a marriage that is less than 2 years old at the time of the PR interview. This provision is designed to reduce marriage fraud. Towards the end of the 2 year CPR period, the couple needs to file a petition to remove the conditions. If approved, the foreign national then gets “full” permanent residence.

How do I remove the conditions on permanent residence?

You and your spouse need to file an I-751, Petition to Remove the Conditions on Residence, within the 90 days before the CPR expires. This means, normally, that the couple files the petition 21 months or later (but no more than 24 months) after CPR was granted.

The I-751 is filed with USCIS, accompanied by evidence that the marriage was entered in good faith. This evidence can include copies of documents in joint names of the couple, e.g., insurance papers, bank statements, credit card statements, leases, mortgages, joint tax returns, birth certificates for any children of the marriage, etc.

After you file the petition, you and your spouse might be called for interview. CIS has discretion to waive the interview if the agency doesn’t think that an interview is needed. If there is no interview, your case will be approved and you will get your new green card in the mail.

Will CIS remind me that I need to file the I-751? 

No, CIS will not send any reminders that your CPR is about to expire. You need to track this expiration date very carefully yourself. What if I am late filing the I-751? Failure to file will result in loss of your resident status. Late filings are permitted with sufficient explanation of the reason(s) for being late in filing.

What if my case has not been approved and my conditional green card expires? 

 The receipt for the I-751 filing should include a note automatically extending the permanent residence for one year. This allows the foreign national to continue to work and travel as a permanent resident. If the I-751 is still not decided at the end of that one year extension, the foreign national can visit their local CIS district office to request an I-551 stamp ion their passport. This I-551 stamp is further evidence of permanent residence and, like the I-751 receipt notice, is as good as a green card for work and travel.

What if the marriage has ended or my spouse refuses to sign the I-751? 

You may request a waiver of the joint petitioning requirements if:

• You entered into your marriage in good faith but the marriage ended by annulment or divorce. 
• You entered into your marriage in good faith but during the marriage you were battered by, or subjected to extreme cruelty committed by your spouse.
• You are a widow or widower of a marriage that was entered into in good faith. 
• Terminating your permanent resident status and leaving the US would cause extreme hardship. 

You can claim multiple grounds for a waiver, if more than one reason applies. If applying for a waiver, you can file the I-751 at any time, not just within the 90-days before CPR expires. If you are requesting a waiver, you need to provide the following documents in addition to proof that the marriage was genuine:  
Widow/er: a copy of the death certificate
Marriage terminated: a copy of the divorce decree or other document terminating or annulling the marriage.
You or permanent resident child were battered or subjected to extreme cruelty: include:
A. Evidence of the physical abuse, such as copies of reports or official records issued by police, judges, medical personnel, school officials and representatives of social service agencies, and evidence that the marriage was genuine, as described above.
B. Evidence of the abuse, such as copies of reports or official records issued by police, courts, medical personnel, school officials, clergy, social workers and other social service agency personnel. You may also submit any legal documents relating to an order of protection against the abuser or relating to any legal steps you may have taken to end the abuse. You may also submit evidence that you sought safe haven in a battered women's shelter or similar refuge, as well as photographs evidencing your injuries.
C. A copy of your divorce decree, if your marriage was terminated by divorce on grounds of physical abuse or extreme cruelty.
Extreme hardship if PR not approved: include evidence that your removal would result in hardship significantly greater than the hardship encountered by other aliens who are removed from this country after extended stays. The evidence must relate only to those factors that arose since you became a conditional resident.

Where can I get more information?

CIS website

Photo by dlisbona. (If this couple hasn't filed the I-751 by now, they really have a problem!)

CIS reverses policy on overdue name checks

USCIS has reversed its policy of allowing I-485 (Adjustment of Status) applications, and some other applications, to be approved if the FBI name check was taking longer than 180 days. In February 2008, CIS announced a policy whereby adjudicators could automatically approve adjustment applications where an FBI name check had been pending for more than 180 days and if there were no other reasons to deny the case.

At the time this policy was introduced, security clearance was very slow, sometimes taking months or years. Now, CIS says that the FBI is processing name checks in less than 90 days in many cases. Because so few name checks take over 180 days, according to CIS, they are rescinding last year's policy. If a name check is still pending after 150 days now, adjudicators must contact CIS headquarters, who will ask the FBI for the reason for the processing delay. Depending on the FBI's response, the adjudicator might be allowed to approved the case.

Photo by trongquy_cva

FAQs on Affidavit of Support

I have been actively answering immigration questions on Avvo.com, and many of these questions relate to the Affidavit of Support requirement in many permanent residence applications. The Affidavit of Support and related regulations are complex and are therefore difficult for a lay person to understand. I understand the confusion that many people feel about the I-864, so I hope these FAQs help.

1. What is an Affidavit of Support and when do I need one?

The US government requires petitioners in family-based permanent residence cases to complete and file an Affidavit of Support on connection with the sponsored immigrant. If you are bringing a relative to live permanently in the United States, you must accept legal responsibility for financially supporting this family member. You accept this responsibility and become your relative's sponsor by completing and signing a document called an Affidavit of Support (Form I-864). This legally enforceable responsibility lasts until your relative becomes a U.S. citizen or can be credited with 40 quarters of work (usually 10 years), even if the relationship (e.g. marriage) ends before that time.

2. Do all immigrants need an Affidavit of Support?

No, the following immigrants do not need an I-864:

• Self-petitioning widows or widowers or battered spouses and children (petitioning on a Form I-360).
• Relatives who enter as refugees or asylees.
• People who have worked for 40 qualifying quarters (as defined in Title II of the Social Security Act), or who can be credited with 40 qualifying quarters (e.g. through a family member).
• Children who can automatically acquire citizenship through a parent.

3. What are the income requirements for an Affidavit of Support?

The sponsor must meet certain income requirements: you must show that your household income is equal to or higher than 125% of the US poverty level for your household size. The poverty guidelines change annually and are on this website. If the sponsor is on active duty in the Armed Forces of the United States, and the immigrant she is sponsoring is her spouse or child, the income only needs to equal 100 percent of the U.S. poverty level for the family size.

4. What is “household size?”

The household size includes the sponsor, your dependents, any relatives living with you, and the immigrants you are sponsoring. For example, if you have a spouse and two children and you want want to sponsor your brother and his wife, you must prove that your household income is equal to or higher than 125% of the US poverty level for a family of six. You must also include in your household size any immigrants you have previously sponsored under this part of the law (who are not yet naturalized citizens).

5. Who can be a sponsor?

If you filed an immigrant visa petition for your relative, you must be the sponsor. You must also be at least 18 years old and a U.S. citizen or a lawful permanent resident. You must be domiciled in the US. Usually, this means that you must actually live in the US, or a territory or possession, in order to be a sponsor. If you live abroad, you may still be eligible to be a sponsor if you can show that your residence abroad is temporary, so that you still have your domicile in the United States.

6. What if a sponsor can’t meet the in come requirements?

If you cannot show income of 125% of the poverty guidelines, you can opt for one of the following alternatives:

(a) Show that you have assets worth at least 5 times the difference between your income and the 125% of the poverty guidelines. For example, if 125% is $30,000, and your income is $20,000, you need to show assets worth $50,000, i.e. 5 x $10,000.

(b) Count the income and assets of members of your household who are at least 18 years old and are related to you by birth, marriage, or adoption. To use their income you must have listed them as dependents on your most recent Federal tax return or they must have lived with you for the last 6 months. They must also complete a Form I-864A, Contract between Sponsor and Household Member.

(c) Use the income and/or assets of the immigrants you are sponsoring, if you have listed them as dependents on your most recent Federal tax return or they have lived with you for the last 6 months. If the immigrant(s) meets these criteria, you may include the value of their income and assets, but the immigrant does not need to complete Form I-864A unless he or she has accompanying family members.

7. Where can I find more information?

For further details about the Affidavit of Support obligations, please see the following links:
USCIS Affidavit of Support FAQs
DOS FAQs
My prior blog on 2009 poverty guidelines.

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I welcome all the comments to this posting. However, please do not ask questions about your particular case via the blog. I can only provide general information on this forum. If you want information specific to your situation, please contact an experienced immigration lawyer directly.
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