April 2009 Archives
Many people have been calling our office to ask "when is the last day I can file an H-1B?" The US Citizenship and Immigration Service (USCIS) has clarified how they will determine the "last receipt date" for an H-1B. Initially, the USCIS stated that if a sufficient number of applications were received during the first 2 days of April, USCIS would conduct a random lottery of all H-1B applications filed in the first 5 business days of April, that critical date being April 7, 2009. USCIS was to include all applications filed on or before April 7, 2009 in a random lottery selection process.
However, the USCIS did not receive enough cases to fill the regular H-1B quota by the end of the day on April 7. Therefore H-1B applications are still acceptable until USCIS determines when will be the final date for filing applications. This date is called the "last receipt date."
USCIS does not announce the "last receipt date" in advance. Instead, USCIS will announce the "last receipt date" after the date passes. Then USCIS will conduct a random lottery of all those cases received on that date.
To ensure your chances of having your H-1B application considered, you should file your H-1B case immediately. If your case is received on the "last receipt date," your case will be entered into a lottery for random selection with all the other cases received on the same "last receipt date." If your case has already been filed, congratulations. Now all you have to do is make sure it gets approved.
If you have a last-minute H-1B application to file, hire an immigration visa attorney to help you submit immediately. Each day counts.
The nonimmigrant visa (B-1 / B-2) rules for HIV-positive people who want to visit the USA have been issued by the US Department of State (DOS). Los Angeles-based immigration law firm Fong & Chun counsels and represents many HIV-positive persons, and unfortunately, the new nonimmigrant HIV Waiver Authorization puts HIV-positive people in a difficult position.
US immigration law denies entry to the USA to aliens who are HIV-positive. For nonimmigrants who wish to come to the USA as business or touristic visitors, the procedure has been to apply for a waiver under Immigration and Nationality Act (INA) sec. 212(d)(3)(A)(i). This waiver procedure is expensive, time-consuming, and exposes the applicant to possible arbitrary, capricious, or AIDS-phobic decisions of some adjudicating officers.
DOS has put into effect a procedure where the visa officer now has the authority to grant otherwise-visa-qualified HIV-positive applicants a B-1 / B-2 visitor visa, provided the alien signs a declaration (DS-5512) that:
(1) admits that s/he is HIV-positive;
(2) s/he does not currently exhibit symptoms indicative of an "active, contagious" opportunistic infection;
(3) s/he knows and has been counseled on the nature, severity, and communicability of the medical condition;
(4) s/he is a minimal risk to public health to, and is unlikely to transmit HIV to any other person in, the United States;
(5) s/he has an adequate supply of HIV meds for the anticipated stay and has sufficient assets, such as insurance that is accepted in the United States, to cover any medical care in the United States;
(6) s/he will not create any cost to the United States, or a State or local government or agency, without prior written consent of the agency;
(7) s/he is coming to visit the USA for touristic or business-visitor purposes only;
(8) that no single admission to the US will exceed thirty (30) days;
(9) s/he is not subject to any other grounds of admissibility to the USA;
(10) s/he admits and acknowledges that s/he cannot be admitted under the Visa Waiver Program (VWP);
(11) s/he acknowledges that any failure to meet with ALL the conditions relating to the visa and to admission to the USA will make him/her ineligible for future authorization under this new provision; and
(12) if s/he is admitted to the USA using this waiver procedure, s/he waives any chance to apply for an extension of stay, a change of status, or adjustment of status. (An exception is made for applications for asylum.)
Although this procedure is more streamlined than the prior waiver, it puts the applicant in the position of signing a declaration -- admitting or acknowledging a great many facts -- which will stay on record with the US government. The declaration includes statements which could subject the applicant to difficulties, even persecution, in his/her own country.
Anyone thinking of signing the DS-5512 declaration to get a B-1 or B-2 visitor visa should consult experienced and HIV-sensitive counsel to discuss the ramifications. --jcf
A Southern California politician and some anti-immigrant activists are seeking to put a measure on the California ballot that would deny a "regular" California birth certificate to children born in the USA, if the parents are unlawfully present in the country. The initiative would also limit the public benefits such citizen-children could receive. The immigration law firm of Fong & Chun opposes this initiative.
Not only does this cynical, divisive initiative cripple the State's ability to look after all the children who reside in California, but the change it proposes violates the US Constitution. Do not let a radical right-wing measure create second-class citizens!
Please contact your friends and family and urge them to oppose this mean-spirited and unconstitutional measure.
President Barack Obama campaigned on an platform for that included comprehensive immigration reform that would improve our immigration system and secure our borders. President Obama is keeping that promise in a White House announcement yesterday that he will push for immigration reform.
Among the topics for comprehensive immigration reform are:
- a pathway to legalization for certain undocumented aliens
- a better and more continued infrastructure for professional and working immigrants
- continued prioritization of family reunification
- continued funding and resources for fraud detection and prevention and enforcement of removable aliens, including criminal aliens.
Meaningful immigration reform will also mean that strict requirements must be met, such as proof that you have paid taxes in the past, that you have a clear criminal background, and that you can speak and read English. Legalization applicants will probably also have to pay a penalty fine. If you have questions about how immigration reform might affect you or if you have questions about someone you know who could be eligible, contact Fong & Chun, LLP for more information on our resources to keep you updated. --ecf
The May Visa Bulletin shows that all employment-based third preference (EB-3) category visas are listed as "U," or "unavailable." This means that the USCIS cannot issue any immigrant visas (greencards) to people who are being sponsored under the EB-3 category until next October, when the new fiscal year begins and when immigrant visa numbers are replenished. This will affect hundreds of thousands of applicants who have been waiting for their greencard cases to become "current" for several years. Some applicants have been waiting since 2001 and even longer! What many applicants do not realize is that they could be eligible for an EB-2 or "second preference" category greencard if they meet certain requirements. Most people who are eligible for the EB-2 category are people who hold a master's degree but some applicants who have more than 5 years of experience in their field may also qualify.
You should contact an immigration visa attorney if you believe you are eligible for an EB-2 category greencard application. Experienced immigration attorneys who regularly represent employers in the labor certification process (PERM) can identify strong second preference greencard cases. Although this is considered a more difficult case to present to the Department of Labor and to the USCIS, the benefits are immense. Instead of waiting 7 or more years for a greencard through the EB-3 category, waiting times under the EB-2 category can be reduced to 2-3 years, possibly less if you use a competent immigration attorney.
I am most proud of a case involving a professional worker who had many years of experience in her field of work. Even though she did not have a Master's degree, we decided to pursue a more difficult EB-2 PERM case because one of her children was turning 21 years old within the year. If we chose the EB-3 route, this child would be considered "aged-out" upon her 21st birthday and that child would never derive a greencard from her mother's petition. We decided to take a chance on the more difficult PERM case and earlier this year, the entire family (eldest child included) received their greencards thanks to our decision to file the EB-2 case and also because we benefitted from the Child Status Protection Act (CSPA) which can "freeze" a child's age for immigration purposes.
Some clients think that if they already have an EB-3 case pending, they cannot also file for an EB-2. This is not true if certain requirements are met. If you have a long-pending EB-3 case, check with an immigration attorney to see if you qualify for an EB-2 second preference application.
Since the USCIS has received less than the maximum number of cases it can accept, employers and applicants who opted for premium processing to get an expedited response for H-1B status will begin receiving receipt notices dated April 7, 2009, which will be counted as the first day in the 15 day period.
The USCIS did send out a few receipt notices dated last week. It is confirmed that those receipt notices are invalid and issued as a mistake. If you received a receipt notice dated before April 7, 2009, call an immigration attorney to make sure that your case receives a proper receipt notice. Receipt notices that were issued by the USCIS by mistake will not be honored.
Applicants whose H-1Bs are being premium processed will begin receiving notification of an approval or a Request for Evidence (RFE) in the next 15 calendar days. RFEs mean that your case may not be approvable and you'll need to prove to the USCIS that your case has merit. It is very important for you to find an H-1B immigration visa attorney to respond to the RFE. You will only have 30-84 days to respond.
As the pioneering Los Angeles immigration law firm that has always welcomed inquiries and consultation from members of the gay, lesbian, bisexual, and transgender communities, Fong & Chun has been tracking the progress of Comprehensive Immigration Reform (CIR) in the US Congress.
The New York Times is reporting that the White House will begin pushing Comprehensive Immigration Reform soon. The Uniting American Families Act (UAFA )must be included in the reform package.
UAFA will permit US citizens to petition for and immigrate their same-sex partners, on an equal basis as traditional spouses.
A comprehensive overhaul of the immigration system will be controversial. There are possible provisions that will please some and displease others. Reasonable minds can disagree about these provisions. What is clear to me, however, is that CIR must include provisions for UAFA.
The one hope is that enough people contact their Senators and Representatives to encourage them to vote in favor of CIR, and especially for UAFA. Even if you believe your Senator or Representative is already "on board," write anyway. There will be lots of radical right-wing pressure to jettison any benefit for same-sex couples, and your legislator will need the political cover to stand firm..
Also, you should write to your state legislators, too. Why state legislators, when immigration is a Federal issue? Because you should ask your state senator, state legislator, and governor to themselves contact Washington DC, to pressure the Congress to do the fair and equitable thing and support UAFA.
Most observers and other immigration attorneys here in Los Angeles believe that the issue will hit full force sometime in late summer, or early autumn. The time to let your legislators know your sentiments is now. Encourage your friends and family, all over the nation -- not just in Los Angeles -- to write to their senators and representatives! --jcf
As experienced immigration lawyers in Los Angeles, Fong & Chun recommend that applicants use credit cards, personal checks, money orders to pay when e-filing immigration-related applications, but NOT electronic checks or "e-checks."
US Immigration & Immigration Services (USCIS) gives applicants the option of e-filing certain applications. The methods of payment include an "e-check." Some may have had successful experiences, but if you are going to e-file, we recommend using your credit card. We have had recent reports where the e-check did not go through, or where USCIS said that the "check" was returned for insufficient funds even where there was more than enough money to cover the check, and where USCIS referred the matter to collection. It took weeks to sort out the USCIS error. Often the applicant ends up paying twice!
Until USCIS' e-filing system is more reliable, and until the system allows for fairer resolution of difficulties, we recommend using paper applications and paying by personal check or money order. Of course, you should always send all paperwork to USCIS via Certified Mail - Return Receipt Requested. This way, you can check the progress of your filing and the cashing of your check.
If you have questions, please contact us. --jcf