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Although the document purports to have been updated on June 30, 2009, some information is out-of-date, so be careful using it.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.

H-1B cap count updated - now 44,800

USCIS has updated the H-1B cap count. As of June 30, 2009, the agency has 44,800 cases against the regular (non-Master's) H-1B cap, compared with 47,500 on May 29. For more information, see the previous blog post here.

New State Department Pamphlet on Nonimmigrant Rights

The Department of State has published a pamphlet educating nonimmigrant visa holders on their rights. The pamphlet covers the visa process, important documents, workplace and employee rights, human trafficking, and how to file a complaint. This is a very useful document, not just for immigrants. As quoted in the publication,

The U.S. Government has issued this pamphlet to honor the rule of law and uphold the dignity of all who come to this country. The U.S. Government is committed to combating human trafficking and labor rights violations.

Obama tells lawmakers immigration a priority - The Boston Globe

Obama tells lawmakers immigration a priority - The Boston Globe


President Obama said yesterday that a bipartisan bill on the sensitive and volatile political issue will be difficult but must get underway this year. He spoke after he and members of his administration met with Congresspeople from both parties. The meeting was intended to begin mapping a plan to build support for an immigration measure that the president has said he would like to pass later this year or early next year, according to a senior White House official.

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CIS resumes Premium Processing for I-140s

CIS has just announced that it will resume Premium Processing for I-140 petitions, starting on June 29. The following petitions will be affected:

• EB-1 Aliens with Extraordinary Ability;
• EB-1 Outstanding Professors and Researchers;
• EB-2, Members of Professions with Advanced Degrees or Exceptional Ability not seeking a National Interest Waiver;
• EB-3 Professionals,
• EB-3 Skilled Workers, and
• EB-3 Workers other than Skilled Workers and Professionals.

Premium Processing guarantees a decision within 15 days for an additional government filing fee of $1000. The decision could be an approval, denial, request for additional evidence, or some other action.

See the CIS website and Press Release for details.

CBP issues Fact Sheet on Automatic Visa Revalidation

The US Customs and Border Protection Agency (CBP) recently published a fact sheet about automatic visa revalidation. This revalidation allows a nonimmigrant to travel to Canada or Mexico for less than 30 days, and return using an expired visa if the foreign national also has an unexpired I-94. The provision applies to people who are returning in a different status to that on their visa, as well as to people who have had their initial status extended. For example, a person can return from a short trip to Canada with an expired L-1 visa stamp and an L-1 extension approval notice with an unexpired I-94. Another example would be a person returning from a short trip to Mexico, and using an expired F-1 visa stamp and a change of status H-1B approval notice to enter.

The revalidation provision does NOT apply if the foreign national:

• has applied for a visa while on that trip to Canada or Mexico;
• is from Iran, Syria, Sudan or Cuba; or
• entered under the Visa Waiver Program.

CBP recommends that people who intend to use Automatic Visa Revalidation bring a copy of the fact sheet with them when they travel.

Immigration raids deemed abusive by panel

The San Francisco Chronicle today reported that a national commission has blasted the federal government for its tactics in a series of workplace immigration raids. The commission was set up by the United Food and Commercial Workers, and the panel included Agriculture Secretary Tom Vilsack, Alameda County Superior Court Judge Dennis Hayashi, UC Davis Law Professor Bill Ong Hing and others.

The commission found that US immigration agents had "violated workers' rights and traumatized communities." The article explains that

The report described the 2006 Swift raids in which thousands of workers - most of them U.S. citizens or legal immigrants - were held by heavily armed ICE agents for up to eight hours without food, water or the opportunity to use a bathroom or a telephone.

Testimony alleged racial profiling and violations of constitutional protections against unreasonable searches and detention without due process. Out of an entire Swift workforce of 12,000, ICE had warrants identifying 133 suspects of identity theft, the report said.

[emphasis added]

The comments on the newspaper's website show the level of hatred against undocumented workers. Most commentators ignore the fact that most of the people rounded up were lawful, even US citizens in some cases.

I have a green card, can I live outside the US for a few years?

People with permanent residence (green cards) often inquire as to whether they can live outside the US and still maintain their permanent residence (PR). Many people believe that if the green card holder returns to the US at least once every 12 months, there will be no risk of losing permanent residence. Immigration regulations do state that if a PR is outside the US for one continuous year, there is a presumption that PR has been abandoned. However, DHS (Department of Homeland Security) can decide that a person has abandoned PR after they have been gone for less than a year. The key is whether the person intended the stay abroad to be temporary, not the length of time outside the US.

If you want to live outside the US for 6 months or more, it is critical that you can show your intention to return to the US. This intent can be shown by as many of the following as possible:

1. Continuing to file US tax returns;

2. Keeping a house or other residence here;

3. Putting furniture and other belongings in storage rather than selling them;

4. Having some immediate family members staying in the US;

5. Definite plans to return to a job or studies in the US;

6. Maintaining memberships in clubs, church groups, etc in the US.

We recommend getting a reentry permit if you will be on an extended stay outside the US of 6 months or longer. A reentry permit allows a permanent resident or conditional resident to apply for admission to the US upon returning from abroad during the permit’s validity, without having to obtain a returning resident visa from the U.S. Embassy or consulate. A reentry permit does not guarantee admission into the United States. Aliens with reentry permits are still subject to inspection at the port of entry and may be denied admission if they are inadmissible.

Reentry permits are generally valid for 2 years from the date the reentry permit was issued. A 2^nd reentry permit might be approved for another 2 years, and therafter they are approved for one year at a time. You should apply for this benefit before leaving the United States. Ideally, you will file at least a few months before you leave, to allow time for the biometrics appointment to be scheduled before you travel.

For more information, please see these prior blog posts: http://martinvisalaw.blogspot.com/search/label/reentry%20permit

State Department to open new passport offices

The Department of State (DOS) issued a press release announcing that it plans to expand the existing network of 21 passport agencies and centers nationwide by opening new passport agencies in the following locations:

• Vermont
• Buffalo, New York
• El Paso, Texas
• Atlanta, Georgia
• San Diego, California.

DOS will also establish public counters at two existing locations, the National Passport Center in Portsmouth, NH, and the Arkansas Passport Center in Hot Springs, AR.

The Press Release notes that

"These new agencies will be open to the public and will provide the citizens of these communities with easy access to the full range of passport services. These agencies will have the capability to issue passports onsite and provide same-day service to qualified applicants."

DOS opened a new apssport agency in Detroit in March, and plans to open facilities in Dallas and Tucson later this summer.

H-1B cap count updated - number reduced

USCIS has updated the H-1B cap count, and now says it has 1,300 fewer cases than last time. It now has 44,400 cases against the regular (non-Master's) H-1B cap, compared with 47,500 on May 29. We wonder if this means that 1,300 cases have been denied or withdrawn, or if CIS discovered duplicate filings that it rejected. For more information, see the previous blog post here and here.

DHS Establishes Interim Relief for Widows of U.S. Citizens

I recently blogged about a court case which held that a woman from Cambodia could continue with her permanent residence (green card) application although her US citizen husband had died before the paperwork was processed. US immigration service argued that the woman no longer qualified as a "spouse" since her husband had died before the case was approved.

Yesterday, U.S. DHS Secretary Janet Napolitano granted deferred action for two years to widows and widowers of U.S. citizens and children under 18 years old, who live in the US and who were married for less than two years before their spouse’s death.

U.S. Citizenship and Immigration Services (USCIS) is to suspend adjudication of visa petitions and adjustment applications filed for widow(er)s where the sole reason for reassessment of immigration status was the death of a U.S. citizen spouse prior to the second anniversary of the marriage.

DHS Establishes Interim Relief for Widows of U.S. Citizens

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Visa Bulletin for July 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. Mexico FB-1 has retrogressed by 22 months. and FB-3 by 16 months.

Employment-based categories have not changed for 1st preference applicants, and the entire 3rd preference and Other Workers category remains "Unavailable", like it was in May and June. The biggest change is that the priority date for China EB-2 category has retrogressed from 2/15/05 in June to 1/1/00 in July. Sadly, this is similar to what happened with India EB-2 last month.

Immigration rights for gay couples?

Sen. Patrick Leahy ( D-Vermont ) introduced the Uniting American Families Act ( S. 424 ) earlier this year; it has 18 co-sponsors. The bill would allow same sex couples the same immigration rights as married heterosexual couples. Passage of the bill is likely to be tied to overall immigration reform.

At the moment, same-sex partners of legal immigrants do not have the same rights to dependent status that heterosexual spouses get. This is true even if the couple is legally married in their home country. Often, the "dependent" partner must apply for a B-2 visitor visa at the consulate, to accompany his/her partner. This visa is discretionary, and consulates could refuse to issue it. In addition, B-2 status does not allow the dependent partner to work in the US. Many heterosexual dependent spouses have a status that doesn't allow them to work either, however.

As the New York Times reports:

Senator Leahy’s bill would add the term “permanent partner” to sections of current immigration law that refer to married couples, and would provide a legal definition of those terms.

“I just think it’s a matter of fairness,” he said Tuesday in an interview, noting that a number of American allies, including Canada, France and Germany, recognize same-sex couples in immigration law.

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

Can I change from H-1B to F-1?

I have written a couple of blog postings about the effect of layoffs on H-1B workers (see links below). Another common question in this regard is whether the H-1B worker can change to F-1 status and, perhaps, change back to H-1B again if they find another job. Some actual examples of the questions are:

"If I am on H1B visa but I have been laid off by my current employer and they will announce my leaving in one month. I am planning to change to F1 status. If I get another employer later on that sponsor again my visa. Do I get subject to a cap?"

"I have been on an H1B visa for 2.5 years; I am considering attending grad school in Minnesota for my MSME in the Fall, so I would be switching to an F-1 student visa.
My question is: if after I graduate with my Master's Degree, I apply for & get another H1B job - so I switch from F-1 back to H1B visa - do I get a fresh 6 year timeclock started on my new H1B? Or, do I only have 3.5 years left that I can be in H1B status - because of my H1B work time before the F-1/grad school?"

"I have been on the H-1B visa for 1 and a half years.I was laid off recently and am planning to attend school which starts in July 09.
i) Do I need a F-1 visa apart from an I-20?
ii) Do I need to go out of US for stamping?"

Answer:

H-1B to F-1:

A H-1B holder can change fro H-1B to F-1 if she meets all the requirements for F-1 status, including having nonimmigrant intent. "Nonimmigrant intent" means that she needs to show that she intends intend to return to her home country at the end of her studies. Having been here in H-1B status, especially if she has been here a long time, makes it more difficult to show the required nonimmigrant intent. If the applicant or her employer has filed for permanent residence, this completely contradicts nonimmigrant intent.

Despite these warnings, it is not impossible to prove nonimmigrant intent. In addition to this evidence, the F-1 applicant needs to show (a) that she has enrolled in a school and has an endorsed I-20; (b) that she has sufficient funds to pay the expenses for and dependents while studying; and (c) that she will be maintaining status up to the start of classes.

Do I need to leave the US to get an F-1 visa?

The F-1 application could be decided in a number of ways, assuming it is not denied completely. At best, the foreign national could get approval for an automatic change of status to F-1. This would operate to automatically change the foreign national's status to F-1 without the need to leave the US.

However, if the applicant cannot prove maintenance of status, CIS might just approve the F-1 part of the petition, but not the automatic change of status part. This means that the foreign national would need to leave the US and get an F-1 visa at a consulate before returning in F-1 status. The consulate will need eveidence of nonimmigrant intent, as explained above.

Please see here for the difference between "visa" and "status".

Changing back to H-1B later

If the foreign national finds a new employer who files a new H-1B petition, this new petition is not subject to the H-1B cap. The foreign national has already been included in the cap within the past 6 years, so he is not counted again. The only way that the employee would be subject to the cap again is if (a) he used a full 6 years in H-1B status, and then spent one full year outside the US; OR (b) was moving from a cap-exempt H-1B employer to a cap-subject employer.

************

Prior postings on layoffs here.

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USCIS reminds some people to get Advance Parole before traveling

USCIS has issued a reminder to certain foreign nationals that they need Advance Parole to travel outside the US. These applicants include people who have:

• been granted Temporary Protected Status (TPS);
• a pending application for adjustment of status to lawful permanent resident;
• a pending application for relief under section 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA 203);
• a pending asylum application; or
• a pending application for legalization.
  

People who have been admitted as refugees or granted asylum, including those who are applying for adjustment of status, do not need to obtain Advance Parole. Instead, they apply for a Refugee Travel Document using Form I-131 and comply with applicable application requirements, such as biometric processing, before leaving the US.


IMPORTANT: some people who entered legally and overstayed their authorized period of admission are subject to bars on re-entering the US if they leave. People who overstayed by 180 days are barred for 3 years, and an overstay of one year leads to a 10-year bar. Traveling on Advance Parole does not prevent the bars applying, so you should NOT travel, even with Advance Parole, if you think you might be subject to the bars.

H-1B cap count update - 45,700 now used.

USCIS updated the H-1B cap count for Fiscal Year 2010. It now has 45,700 cases against the regular (non-Master's) H-1B cap. For more information, see the previous blog posts here and here

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."

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