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
Website

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.
Photo by stopnlook

Profits drop by 50% at Fragomen immigration law firm

The American Bar Association Journal published an article today confirming that Fragomen, Del Rey, Bernsen & Loewy (Fragomen), the world's largest immigration law firm, saw its profits drop by 50% in 2008. Austin Fragomen is quoted in the article:

A Labor Department audit of the firm’s advice on labor certifications—a probe that was later dropped—made business development “a difficult chore,” Fragomen told Am Law. Then the downturn in the financial services market led to a drop in overseas hiring and visa applications.

The ABA article refers to a more detailed AmLaw Daily article which explains the revenue drop thus:

In November, 2007, the Labor Department announced it was auditing the firm on suspicions that it had been improperly advising clients about labor certification applications. In September, the Labor Department abruptly dropped the investigation. Fragomen says the investigation didn't make a huge impact on the firm’s bottom line, but that it “made business development a difficult chore.”

Just as soon as the Fragomen firm escaped from that dark cloud, the bottom fell out of the financial services market and work from its big institutional clients slowed. Fragomen says he expects the trend to continue. He says he expects work doing H1-B visas, for example, to be off by half in 2009. (The economic stimulus bill that Congress recently approved requires banks and other institutions receiving federal bailout money to give hiring priority to American workers. Also, Fragomen says, clients will simply be doing less overseas hiring. Fees from processing these types of visas accounts for about 10 percent of firm revenue).

Also, there were no real fee increases in 2008, Fragomen says. Toward the end of the year, clients were asking for discounts

However, it was not all bad news for Fragomen:

Despite all the bad news, revenue was slightly up in 2008, about four percent, to $257 million.

P.S. Full disclosure - Fragomen was my employer until September 2008.

Travel Warning for Mexico issued by State Department

The US Department of Stated issued an updated Travel Alert for Mexico on February 23, 2009. The Alert warns of dangers, especially along the US-Mexico border. The Alert says:

The situation in Ciudad Juarez is of special concern. Mexican authorities report that more than 1,800 people have been killed in the city since January 2008. Additionally, this city of 1.6 million people experienced more than 17,000 car thefts and 1,650 carjackings in 2008. U.S. citizens should pay close attention to their surroundings while traveling in Ciudad Juarez, avoid isolated locations during late night and early morning hours, and remain alert to news reports. A recent series of muggings near the U.S. Consulate General in Ciudad Juarez targeted applicants for U.S. visas. Visa and other service seekers visiting the Consulate are encouraged to make arrangements to pay for those services using a non-cash method.

U.S. citizens are urged to be alert to safety and security concerns when visiting the border region. Criminals are armed with a wide array of sophisticated weapons. In some cases, assailants have worn full or partial police or military uniforms and have used vehicles that resemble police vehicles. While most crime victims are Mexican citizens, the uncertain security situation poses serious risks for U.S. citizens as well. U.S. citizen victims of crime in Mexico are urged to contact the consular section of the nearest U.S. consulate or Embassy for advice and assistance.

For more information, including links to other DOS resources and contact information for US consulates and consular agencies in Mexico, see the Press Release here: http://travel.state.gov/travel/cis_pa_tw/pa/pa_3028.html.

CIS expands Premium Processing for I-140s

USCIS announced yesterday that, starting on 3/2/09, it will allow Premium Processing (PP) for I-140s where the beneficiary (foreign national employee) has already reached the end of her H-1B 6-year maximum stay. Premium Processing for I-140s is now allowed where the beneficiary is currently in H-1B status and about to reach the end of their 6 years. The new provision will expand PP to beneficiaries who have already passed the end of their 6 years.

Background

Immigration law permits applicants to extend their stay in H-1B nonimmigrant status past 6 years in two situations:

1) they can extend in increments of up to three years, provided they are the beneficiary of an approved Form I-140 and an immigrant visa is not immediately available; or

2) they can extend in increments of up to one year, provided the Form I-140 petition or underlying labor certification has been pending for at least 365 days.

Premium Processing for I-140s helps foreign nationals who cannot extend their H-1B under 2) above because the I-140 or labor certification is not pending for the required 365 days. These foreign nationals may be able to extend H-1B status if they have an approved I-140 AND their priority date is backlogged.

For a copy of yesterday's Press Release about this new provision, see here: http://www.uscis.gov/files/article/I-140_premium_24feb09.pdf

Consequences of layoffs on H-1B workers - Part 2

(continued from yesterday)

6. What happens to my green card process if I am laid off?

If you have reached the final step of the permanent residence process, and have filed your Adjustment of Status (AOS), you may be able to remain in the US while the AOS is pending. Just having the AOS filed does not, however, allow you to work in the US or return from international travel once your H-1B ends. You must have specific work authorization (an EAD) to allow you to work and Advance Parole to allow you return from overseas.

A foreign national is permitted change employers and keep the AOS filing if the AOS has been on file for 180 days or more, and the new occupation is in the “same or similar occupational classification” as the one that formed the basis of the permanent residence filing. This means that e H-1B worker who was a Software Engineer for Employer A and then got a job as a Software Engineer for Company B would qualify. However a Software Engineer who went to work as a French teacher could not use this “portability” provision.

If you have not reached the final step of the permanent residence process, unfortunately you cannot complete the existing permanent residence process.

Link to Consequences of layoffs for H-1B Workers, Part 1

Consequences of layoffs on H-1B workers - Part 1

A common question that I am asked, especially in the current economy, is what happens to a foreign national's immigration status and her pending cases when she is laid off. In this 2-part article, I will address the consequences for H-1B workers. Today, I will cover the effect of a job loss on H-1B status. Tomorrow, I'll discuss the effect on the foreign national's permanent residence process.

1. How long can I stay in the US after my H-1B job ends?
A person in H-1B status is legally authorized to remain in the US only as long as they are employed with the H-1B petitioner (“sponsor”). If the employee is laid off, the H-1B worker and dependents in H-4 status immediately lose their status. In reality, most people need at least a few weeks to pack up and sell their residence, take children out of school, etc. While staying in the US to finalize arrangements for leaving is not strictly “legal”, it is very common for foreign nationals to do this.

Laid-off H-1B employees could file to change to visitor status to allow them remain in the US to make repatriation arrangement. As long as the application is filed while the worker remains in status, s/he will remain in status for up to 120 days while the change of status application is pending. The worker will also have to file a new non-immigrant application if s/he stays in the US and finds a new position.

2. Can I stay in the US to look for another job?
The US Citizenship and Immigration Service (CIS) will commonly approve a new H-1B petition as an automatic change of employer if the H-1B holder can provide a paystub less than 30 days (and sometimes even 60 days) old. This means that CIS may approve the change of employer even if the employee has not worked for the former employer for a month or more.

The gap between when a laid-off H-1B worker ends their job and when they file the new H-1B petition is not strictly a period when they are in status. However, as mentioned. CIS will usually overlook this gap in approving a change of employer.

If a new employer files a new H-1B petition and CIS does not approve an automatic change of employer, CIS might still approve the H-1B as a “notify.” This means the worker must leave the US, get a new H-1B visa at a consulate if the existing visa has expired, and return in the new H status to “effect” the new employer’s H-1B.

If the H-1B worker manages to find a new employer before leaving the old job, or very soon afterwards, s/he might be eligible for H-1B “portability.” This allows a H-1B worker to start working for a new employer as soon as the new H-1B petition is filed, rather than wait for it to be approved. Another piece of good news is that the H-1B worker should not be subject to the H-1B cap since s/he was already counted.

3. What are my employer’s obligations if I am laid off?
The H-1B regulations require an employer to pay “the reasonable costs of return transportation of the alien abroad” if the H-1B worker is dismissed before the H-1B period ends.

4. Can I collect unemployment or other benefits while unemployed?
When a nonimmigrant remains in the US in a visa category that prohibits employment (e.g. B-2), or while an employment-based visa is pending, the person is generally not eligible to collect unemployment compensation under most states' laws. This is because unemployment statutes usually require that an individual must be available to work and authorized to accept work to be eligible for benefits. This means that these nonimmigrants cannot claim benefits even though they paid unemployment taxes while they were employed.

5. Can I change to another status to stay in the US?
As mentioned above, you can request a change to visitor (B-2) status. If you are able to find a new employer, you may be able to use one of the other work-authorized statuses if the H-1B is not appropriate. For example, if you are Canadian or Mexican you might be eligible for a TN status if you are working on one of the TN occupations. If you enroll in school you could get F-1 status.

The categories for which you are eligible are very case-specific, so it is critical to get formal legal advice about your exact situation.

Link to Consequences of layoffs for H-1B Workers, Part 2

NPR on temporary agricultural workers

NPR's "Morning Edition" this morning had a very interesting segment on temporary agricultural workers in Arizona, including those on H-2A status (blogged here on 12/12/09: http://martinvisalaw.blogspot.com/2008/12/new-rules-for-temporary-farmworkers.html). The reporters discussed the fact that many of the farm workers this year are permanent residents originally from Mexico, and now living in Mexico again because it is cheaper than living in the US.

Due to the economic situation in the country, the farmers in this area have planted up to 40 percent less," says Janine Duron, executive director of the Independent Agricultural Workers' Center, a nonprofit that connects workers with growers. "So there's been less of a demand for farm workers. And there was just about enough demand to be met with the local domestic farm workers.

These workers might formerly have worked in higher-paying industries, such as construction or hospitality.

More H-2A visa workers will likely be needed when the recession ends. But for now, older so-called domestic farm workers and former construction workers will take the jobs — unless things get so bad that U.S. citizens are willing to move across the country for five months' work in these lettuce fields at $350 a week.

NYT on Expedited Citizenship for Military Personnel

I ran an article on this blog on February 4 about the new naturalization rules for military personnel: http://martinvisalaw.blogspot.com/2009/02/uscis-issues-new-fact-sheet-on-military.html. The New York Times then ran a story last weekend about the US government's plans to offer expedited citizenship to foreign nationals who served/are serving in US armed forces. (Click on headline above for a link to the article online)

The article quotes recruiters as expecting that:

the temporary immigrants will have more education, foreign language skills and professional expertise than many Americans who enlist, helping the military to fill shortages in medical care, language interpretation and field intelligence analysis.

The New York Times article explains that the program to allow non permanent residents to enlist will be limited to 1,000 in the first year. The new program will NOT allow undocumented immigrants to joing the military.

The Army’s one-year pilot program will begin in New York City to recruit about 550 temporary immigrants who speak one or more of 35 languages, including Arabic, Chinese, Hindi, Igbo (a tongue spoken in Nigeria), Kurdish, Nepalese, Pashto, Russian and Tamil. Spanish speakers are not eligible. The Army’s program will also include about 300 medical professionals to be recruited nationwide.

Language experts will have to serve four years of active duty, and health care professionals will serve three years of active duty or six years in the Reserves. If the immigrants do not complete their service honorably, they could lose their citizenship.

In recent years, as American forces faced combat in two wars and recruiters struggled to meet their goals for the all-volunteer military, thousands of legal immigrants with temporary visas who tried to enlist were turned away because they lacked permanent green cards, recruiting officers said.

Visa Bulletin for March 2009 released

The US Department of State has released the Visa Bulletin for March 2009. In most categories there is very slight movement forward, just by a few weeks or months, if at all. Priority dates for Mexican nationals in the employment-based 3rd and "other workers" categories show the greatest movement. The 3rd preference category moves forward by 4 1/2 months, while the "other worker" category advances by 18 months.

Stimulus bill restricts H-1B new hires.

The economic stimulus bill passed by Congress yesterday contains restrictions on hiring of H-1B workers by financial institutions. Under a provision in the bill, any firm receiving TARP (Troubled Asset Relief Program) funds will be automatically considered H-1B dependent, regardless of the percentage of H-1B workers on the payroll. Normally, H-1B dependent companies are those with over 15% of their workers on H-1B visas.

The H-1B dependent designation subjects employers to a number of provisions, including a good faith effort to hire US workers first. Under the stimulus bill, any new H-1B hires by companies receiving funding would by subject to the H-1B dependent rules. These rules include attesting to actively recruiting American workers; not displacing American workers with H-1B visa holders; and not replacing laid off American workers with foreign workers.

These provisions could be elaborated in conference, and it remains to be seen how the provisions will affect new H-1B hires subject to the H-1B cap.

Can I "reactivate" an old green card?

People often wonder if they can enter the United States to work, using a permanent resident card (green card) that they got when they last lived here many years ago. These people have usually been outside the US, in their home countries, for years and are now considering returning to the US. Permanent residence is granted to a person on the basis, not surprisingly, that they intend to reside in the US.

If a permanent resident is going to work outside the US for 6 months or longer, we recommend that they apply for a re-entry permit. This is a document requesting permission to re-enter the US after an extended absence. Requesting a re-entry permit notified CIS in advance that you plan a protracted stay, however that you don't intend to abandon permanent residence.

A person who has returned to their home country for years and now wants to "reactivate" their green card is unlikely to have been filing for re-entry permits. In those situations, it is unlikely that immigration at the airport (CBP) will admit the person as a permanent resident. If CBP questions the traveller and finds out that the traveller has been living outside the US for years, CBP will almost certainly revoke permanent residence and confiscate the card. This is not an unreasonable action if a former permanent resident really has shown the intention of abandoning their US residence. It is likely that the CBP officer who revoke permanent residence will allow the traveller to "withdraw" their application for admission to the US. However, in the worst case scenario, the officer could conclude that the traveller had committed fraud in attempting to enter as a permanent resident. A finding of fraud means a permanent bar to ever entering the US, so this possibility, even if unlikely, should be considered very seriously.