The USCIS has issued a Fact Sheet explaining Humanitarian Parole, how to apply, fees, supporting evidence required, etc.
Humanitarian parole allows a person to enter the US temporarily due to urgent humanitarian reasons. Parole cannot be used to avoid regular visa-issuing procedures or to bypass immigration procedures. An applicant for parole will need to show why she was not able to get a visa to enter the US. Parole does not confer any permanent immigration status, but does enable a recipient to apply for work authorization.
Humanitarian parole is typically granted for the duration of the emergency or compelling situation at issue. The parolee can request an extension of the parole period, however.
Humanitarian parole is applied for using a Form I-131 (available here). For more information about Humanitarian Parole, please contact my office.
The US Department of State has released the new Visa Bulletin for April 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 about 6 weeks, and EB-2 for India stays at 2/1/05, like last month. EB-3 for China advances by about 7 weeks, India advances by 9 weeks, Mexico stays the same, Philippines and ROW advance by 6 weeks. EB-3 Other Workers has stayed at June 2001 since October 2009 for every country except India. India moved to June 2001 in Jan. 2010 and has stayed there since then.
USCIS will accept H-1B petitions for the Fiscal Year 2011 starting on April 1, 2010. In the past, it was possible to prepare and file a petition in a matter of days or less, so we were able to file petitions with very little noce in emergencies. This is no longer possible, because the Department of Labor has changed the procedure for certifying Labor Condition Applications (LCAs). LCAs are filed electronically and used to be certified almost instantly. Now it takes a week or more to get an approved LCA, and the H-1B petition cannot be filed without an approved LCA.
For a few months, from November 5, 2009 to March 9, 2010, CIS accepted petitions without an approved LCA, acknowledging that the delays in LCA approvals could be very difficult for employers and foreign nationals. However, CIS just announced (see here) that it would not extend that temporary measure. As of March 10, 2010, CIS will reject any H-1B petition filed without an LCA certified by DOL.
The Department of Homeland Security (DHS) now allows nationals of Greece to use the Visa Waiver Program (VWP). Travellers will be able to enter the US for 90 days or less for tourism or business purposes without a visa, provided they have an e-passport and an approved authorization via the Electronic System for Travel Authorization (ESTA).
To travel to the United States under the VWP, an alien must be from a participating country and must (1) be seeking entry as a tourist for a period of 90 days or less; (2) be a national of a VWP participant country; (3) present an electronic passport or a machine readable passport issued by a designated VWP participant country to the air or vessel carrier before departure; (4) execute the required immigration forms; (5) if arriving by air or sea, arrive on an authorized carrier; (6) not represent a threat to the welfare, health, safety or security of the United States; (7) have not violated U.S. immigration law during a previous admission under the visa waiver program; (8) possess a round trip ticket; and (9) waive the right to review or appeal a decision regarding admissibility or to contest other than on the basis of an application for asylum, any action for removal.
For the DHS press release, see here. For more information about the Visa Waiver Program and ESTA, see here.
Photo by http://www.flickr.com/photos/london/43530136/.
US Immigration and Customs Enforcement (ICE) is issuing Notices of Inspection (NOIs) of I-9 forms to 180 businesses in Louisiana, Mississippi, Alabama, Arkansas and Tennessee. Employers are required to complete and retain a Form I-9 for each individual they hire for employment in the United States. This form requires employers to review and record the individual's identity document(s) and determine whether the document(s) reasonably appear to be genuine and related to the individual.
The notices warn business owners that ICE will be inspecting their hiring records to determine whether they are complying with employment eligibility verification laws and regulations. The names of the businesses have not been released.
See the ICE press release here. For information on I-9 requirements, see this blog posting.
The USCIS has issued guidelines for petitioners filing cap-subject H-1B petitions for Fiscal year 2011. The guidance explains what that cap is, what petitions are subject to the cap, filing fees, where to file, etc. See here.
And now for some good news.....The New York Times and the St. Petersburg Times reported two separate indidents of penalties and [prison sentences imposed on people who provided fraudulent immigration services to foreign nationals.
The NYT article describes how Miriam Mercedes Hernandez was ordered to pay $3 million in fines and restitution to her victims. Ms. Hernandez charged her victim up to $15,000 per person to help them get permanent residence or citizenship within eight month but never performed the services she claimed.
As the article states
Immigration fraud, often orchestrated by immigrants, has proliferated across the country, victimizing people desperate to gain legal residency or citizenship. Law enforcement officials say such schemes are particularly difficult to uncover and prosecute because many victims are in the country illegally and are hesitant to seek help from the authorities for fear of deportation.
Under state and federal law, only lawyers or representatives accredited by the Justice Department can represent people before the immigration authorities. Anyone providing immigration services must also comply with strict rules governing contracts and advertising.
The St. Petersburg Times article describes a Clearwater woman who was ordered to 5 years in prison for filing false asylum claims. She was also ordered to forfeit $800,000 in profits. The defendant filed 274 asylum applications with false allegations of persecution.
CIS has published a new Form I-485, Application to Adjust Status, and has changed where the I-485 should be filed. Instructions are here. The new Form I-485 must be used after March 29, CIS will accept the older versions until that date.
The New York Times has posted a list of jails and detention centers where ICE (Immigration and Customs Enforcement) holds people. As the article states these people include:
"noncitizens the government wants to deport, including asylum-seekers, people suspected of being in the country illegally and legal immigrants convicted of a wide range of crimes or misdemeanors."
The list includes the results of annual inspections.
Photo by http://www.flickr.com/photos/figgenhoffer/2370929884/.
As noted yesterday, CIS held a "collaboration session" on the recent H-1B "employer-employee relationship" memo. Not surprisingly, the session was very well attended, with 500-600 people listening by phone, and another 40-50 attending in person. The session was generally not in a question and answer format, more a forum for each side to air opinions and comments.
CIS began by noting that the memo had been in the works for years. The goal was to clarify the requirements and make it easier for employers and immigration lawyers to understand the standards.
Criticism
Many of the public comments that followed CIS's opening statements were critical of the memo and urged CIS to revoke it. The comments, primarily from attorneys but also from one Senator and some business-owners, objected to the memo on various grounds, mainly
that it was creating new law in violation of the required rule-making procedures. Some businesspeople told of the US workers that had been laid off because their jobs would have supported H-1B workers that couldn't get hired;
that reducing the flow of H-1B workers into the US would stifle the American economy and encourage outsourcing;
that the memo as written would affect more than just the "job-shops" that CIS seemed to target., For example, a few attorneys remarked that this memo would prevent most doctors from getting H-1B status because very few doctors are employed directly by the hospital where they work. CIS seemed to acknowledge that they had not thought of this consequence;
that it violated existing H-1B regulations;
that it was having a domino effect, already causing problems for H-1B holders entering at US airports, and had even been the cause of one L-1 petition denial. CIS stated that it had no authority over CBP actions at the airport and that the memo was not intended to effect anything other than H-1B petition decisions at CIS Service Centers.
Praise for the memo
Some speakers praised the memo. though their comments were vastly outnumbered by the memo's criticisms. Those in favor of the memo thanked CIS for restricting H-1B numbers at a time that many US workers were unemployed. One particularly vehement opponent of the H-1B program railed against Indian workers in particular and was cut off when her comments became particularly unhelpful and harsh.
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In the end, CIS agreed to consider all the comments and have a subsequent call on the topic. It noted that people can sign up for notice of this and other CIS events on their Public Engagement web page here.
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P.S. I will not accept anonymous comments that criticize my firm, foreign nationals, US immigration policy, etc. If you want these comments posted, please say who you are, like I do.
USCIS is inviting people to attend a meeting tomorrow to discuss the implementation of the recent memo on determining if a valid employer-employee relationship exists.People can attend in person or by phone. For more information, including how to attend, see here and here. I will be attending the meeting and will blog about the call afterwards.
The US Department of State has released the new Visa Bulletin for March 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 about 6 weeks, and EB-2 for India advances by one week. EB-3 Other Workers has stayed at June 2001 since October 2009 for every country except India. India moved to June 2001 in Jan. 2010 and has stayed there since then.
As the H-1B filing season approaches, I see many questions about exempt organization, such as what employers are exempt from the H-1B cap, and how a person can change from a cap-exempt to a cap-subject employer.
When is an employer not subject to the H-1B cap?
An employer is exempt from the H-1B cap if it is:
1) an institution of higher education; or
2) a non-profit entity that is affiliated with an institute of higher education; or
3) a nonprofit research organization; or
4) a governmental research organization.
My employer in non-profit, is it subject to the H-1B cap?
Maybe. Not all non-profit entities are exempt from the H-1B cap. The exemption only covers non-profits that are research institutions, or are formally affiliated with an exempt educational institution.
Am I subject to the H-1B cap if I change from a cap-exempt to a cap-subject employer?
Yes. You could not start working for the new employer until you had H-1B status for that employer, unless you can use H-1B portability. There is a CIS letterfrom May 2007 stating that portability applies even when a foreign national is moving from a cap-exempt to a cap-subject employer, so that the foreign national can start working for the new employer, even if no H-1B numbers are available. However, the letter refers to a situation where the cap-subject H-1B was filed after4/1 that year, so that theoretically the petition could be approved, justfor a 10/1 start date.I don't think portability would apply if the cap-subject H-1B was filed at a time that it would be rejected as too early, like now.
What if I work for a cap-subject and cap-exempt employer concurrently?
Good question. Normally, an employee who is subject to the H-1B cap cannot get H-1B approval if there is no H-1B visas available. However, it is possible to to get approval of concurrent employment with a cap-subject employer, even if no cap number is available. There is a CIS memo from 2008 (Neufeld Memo) that specifically states that
USCIS does not require that an alien who is cap-exempt...be counted towards the [H-1B cap] if they accept concurrent employment with a non-exempt employer.
If the employee stops working for the cap-exempt employer, any subsequent H-1B petitions by the cap-subject employer will be denied unless there are H-1B numbers available.
What if I work for in Guam or CNMI?
If your work is performed only in Guam or the Commonwealth of the Northern Mariana Islands (CNMI), you are not subject to the cap. You must only work in CNMI or Guam, you cannot work elsewhere under this rule. See here for details.
The Department of Justice's Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has published its Winter 2010 newsletter here. The OSC, in the Justice Department’s Civil Rights Division, is responsible for enforcing the anti-discrimination provisions of US immigration law. Employers are obliged to obey immigration laws by hiring only authorized workers, however they also must not violate anti-discrimination laws when hiring or firing workers.
The Winter 2010 mewsletter explains the OSC's recent enforcement activity, E-Verify updates, interagency collaboration, and other topics.
In the "How can they live with themselves?" department, USCIS has issued warnings about immigration scams targetted at Haitians applying for TPS (Temporary Protected Status). CIS has published a Fact Sheet explaining that no attorney or other representative is needed to file for TPS and outlining what forms are needed, and the fees. CIS has a website dedicated to the services response to earthquake victims, which contains links to many other resource sites.
WASHINGTON - U.S. Citizenship and Immigration Services announced today that eligible Haitian nationals in the United States may begin the application process for Temporary Protected Status. Details and procedures for applying for TPS are provided in the Federal Register notice published today.
On Jan. 15, 2010, Secretary of Homeland Security Janet Napolitano designated TPS for eligible Haitian nationals as a result of the catastrophic earthquake that occurred in Haiti on Jan. 12, 2010.
The TPS designation for Haiti is effective today and will remain in effect through July 22, 2011. The designation means that eligible Haitian nationals will not be removed from the United States and will also be eligible to apply to work in the United States. The 180-day registration period for eligible Haitian nationals to apply for TPS begins today and will end on July 20, 2010.
The designation applies only to those Haitians who resided in the United States on or before Jan. 12, 2010; TPS will not be granted to Haitian nationals who entered the United States after Jan. 12, 2010.
Haiti joins El Salvador, Honduras, Nicaragua, Somalia, and Sudan as countries currently designated for TPS.
