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.

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 1^st, 2^nd or 3^rd 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 4^th or 5^th 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?

No. 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?

No. 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?

No. 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 2^nd 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
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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.

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.

Obama puts off immigration bill - Washington Times

Obama puts off immigration bill - Washington Times

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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

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."

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/

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.

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/

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.

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

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:

Quote:

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/

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.

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.

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.

USCIS to stop issuing I-551 stamps routinely

USCIS has announced that is is rescinding the May 2009 policy that asked CIS district offices to issue I-551 stamps as a matter of course. The I-551 is a stamp in a passport that confirms that permanent residence has been approved. It is temporary evidence of permanent residence until the "green card" is produced.

In recent years, green cards have been created and mailed withing a couple of weeks of permanent residence approval, so CIS did not issue the I-551 stamps unless there was an emergency. However, in May 2009, card production was delayed while they upgraded equipment, so CIS started issuing the I-551 stamps again.

Hopefully card production is back to normal, and approved permanent residents won't have problems because of having no evidence of permanent residence approval. CIS will still issue I-551 stamps, but only in emergency cases.

FAQ on immigration for military personnel

USCIS recently published immigration information aimed at members of the US armed forces and their families. The information covers naturalization for members of the military, what happens if to interviews and filings when a person is deployed overseas, expediting spousal petitions for military personnel, and more.

See here for details.

For more details about the MAVNI (Military Accessions Vital to National Interest) program generally, see here.

FAQs on E-Verify

The National Conference of State Legislatures has published a document with frequently-asked questions about e-verify: http://www.ncsl.org/?tabid=13127.

The FAQs answer the following questions

• What is Basic Pilot/E-Verify?
• When and how was it created?
• When will E-Verify expire?
• How does E-Verify work?
• What is the current usage and capacity?
• How well does E-Verify work?
• How is it enforced?
• What is required of federal contractors?
• What states currently address the use of E-Verify?

Although the document purports to have been updated on June 30, 2009, some information is out-of-date, so be careful using it. For example, the FAQs say that the requirement for federal contractors to use e-verify has been "delayed until February 20." In fact, that delay is now September 8, 2009, as noted here and here.

ICE starts workplace immigration crackdown

The U.S. Immigration and Customs Enforcement (ICE) agency issued Notices of Inspection (NOIs) to 652 businesses nationwide yesterday. This is more than ICE issued in all of the last fiscal year. The notices warn the employers that ICE will be examining their records to ensure that the companies have been complying with employment verification procedures.

This focus on employers is consistent with the Obama administration's promises to direct resources in the worksite enforcement program towards the criminal prosecution of employers who knowingly hire illegal workers in order to target the root cause of illegal immigration. See this blog post for more details.

For yesterday's ICE news release, see here. It states that

The 652 businesses being presented with a NOI today for a Form I-9 audit have been selected for inspection as a result of leads and information obtained through other investigative means. Due to the ongoing, law enforcement sensitive nature of these audits, the names and locations of the businesses will not be released at this time.