June 2009 Archives

June 30, 2009

Delays in LPR Card Production

I-551.jpgFong & Aquino in Los Angeles has recently received quite a number of phone calls from people who are waiting for issuance, re-issuance, or replacement of their US Legal Permanent Resident (LPR) cards. US Citizenship and Immigration Services (USCIS) has been experiencing delays of 2 - 3 months due to an upgrade being made in the card-production equipment.

If you have not yet had your immigration or adjustment of status interview, please remember to bring your passport with you to the interview. If your application is approved at the interview, the officer should place "the I-551 stamp" in the passport. The I-551 stamp will temporarily allow you to travel in and out of the USA and work legally, until you receive your LPR card.

If you do not have a passport, you can bring two passport-type photos with you, plus your driver license (or other government-issued I.D.), and the officer can issue you temporary proof of your status.

For those who have an LPR application approved after the interview, or if your case did not have an interview, you should bring your passport, I.D., and passport photos to a USCIS InfoPass appointment, so that USCIS can put the I-551 stamp in your passport. --jcf

June 29, 2009

Update on Immigration Reform: 29 June 2009

Immigration law firm Fong & Aquino in Los Angeles has always urged that US immigration laws (and officials) treat immigrants fairly. As part of our advocacy, we have urged US citizens and US Legal Permanent Residents ("green" card holders) to write elected officials and express their views about humane immigration reform, especially with regard to the immigration of same-sex partners and undocumented youth who were brought here as children.

US Capitol.jpgSome people have asked for recommendations about the officials to whom they should write. Firstly, because immigration is a Federal matter, you should write to President Obama, both your state's US senators, and your Congressperson to the US House of Representatives.

at Fong & Aquino, we believe in a more comprehensive approach. Most of the upcoming CIR battle will take place on Capitol Hill, but there are everyday people who need to learn about CIR. mainstreet.jpgLocal officials and community leaders can be powerful advocates for the immigrant community. We think you should also write your state and local representatives, and encourage them to write to Congress and push for change. In other words, it is good to write directly to Congress, and representatives love to hear from you. But they listen even more keenly when local mayors, councils, and state officials write. Therefore, consider writing also to:

- your mayor
- your city council
- your governor
- your state senator
- your state assemblyperson
- your local board of education
- your local chamber of commerce

Even if you believe your elected officials support immigration law reform, please write to them anyway, because the elected official needs your backing -- political cover, if you will -- if s/he is going to support something that is a hot-potato issue. --jcf

June 27, 2009

Michael Jackson's Concerts in Britain

Microphone.jpgFong & Aquino in Los Angeles has received several calls about artists who have been involved in the preparations for the series of Michael Jackson concerts which were scheduled to take place in London beginning this summer. The performer's recent death has thrown arrangements for those concerts into chaos.

Although the Jackson concerts were to take place in the United Kingdom, extensive preparations were taking place both in the UK and in the United States. In preparation for any big rehearsal, event, performance, or concert, teams of make-up artists, costume designers, hair stylists, choreographers, dancers, back-up vocalists, special effects personnel, music arrangers, musicians, lighting engineers, etc. etc. come together to create the shows that so many enjoy. The number of people involved with a complex series of high-tech, music and dance spectaculars can be upwards of 50 -100 people, not all of them American.

Renowned performers and artists can qualify for the O-1 visa ("extraordinary ability in the sciences, arts, education, business, or athletics) to enter the USA. However, when something catastrophic happens -- like the death of a performer -- the performance or concert on which the O-1 visa is based is cancelled, the performer or artist risks falling out of legal immigration status.

For individuals who have visas which are predicated on a set of facts -- an individual employer, a detailed job description, a specific person, a particular school or academic program, etc., -- it is vital to consult a knowledgeable immigration attorney if there has been any substantial change, in order to preserve visa status. --jcf

June 26, 2009

Update on Immigration Reform: 26 June 2009

With the passing of Farrah Fawcett and Michael Jackson yesterday, the news about the "launch" of the immigration reform policy discussion passed under the radar for most people. As immigration attorneys in Los Angeles, Fong & Aquino advocates for a comprehensive overhaul of the immigration system in the USA.

The President, Vice President, and pivotal cabinet members met with members of Congress from both parties to discuss the timing for and shape of a Comprehensive Immigration Reform (CIR) bill expected to be introduced before the end of 2009.

Department of Homeland Security Secretary Janet Napolitano will be in charge of evaluating the proposed bill.

There has also been speculation that because of the difficulty that the administration is having passing health care reform, serious discussion of CIR will be delayed until early 2010. Whether Congress gets to CIR this year or not, it is now time to contact officials to let them know you support CIR. Most especially, people should demand change that will:

- Allow gay and lesbian Americans to petition permanent resident status for their permanent domestic partners. This provision is known as the Uniting American Families Act (UAFA).

- Allow some undocumented students who graduate from American high schools, have good moral character, came the USA as children, and have been in the country continuously for at least five years to obtain legal permanent resident status. This provision is known as the Dream Act.

- Make provisions so that American businesses can obtain visas for talented foreign workers who can make US business more vibrant, competitive, and creative.

- Reduce the waiting time of families who have petitioned to bring loved ones to the USA. From certain countries, the wait time can be as long as 20 years.

Fong & Aquino supports the Obama administration's efforts to reform and streamline the immigration process. --jcf

June 25, 2009

The Day Michael Jackson Died and Immigration Reform

3pm, June 25, 2009 - I'm sitting in a legal practice seminar when across the table, an attorney whispers, "Michael Jackson just died." Thanks to Twitter, instant messaging, texting, iPhones, PDAs, we got the news as it broke. We had also lost Farrah Fawcett earlier the same day, and Ed McMahon less than 48 hours before. It is a somber reminder - we are all mortal. Michael Jackson has been compared to this generation's Elvis. Now the culturally significant question might now be: "where were you when the King of Pop died?"

I was attending a seminar on how to run a more efficient law office by automating the legal process to reduce attorney time spent on each case. While this might be okay for other law offices, it wouldn't serve the mission of an immigration law office like Fong & Aquino where we work with clients who have such different and highly individualized immigration problems. Sure, maybe this method could work for some clients who have simpler, more straightforward cases but not for those who have very complex problems. I do agree that technology should help attorneys work more efficiently, but technology can't replace the one-on-one time that an attorney needs to spend with a client, time spent listening. I couldn't delegate that task to a computer - no way. My job is to help people achieve their immigration plans, their dreams. And doing so means you have to work closely with clients. The seminar became really irrelevant to me right then and there.

But what is relevant to me on the day Michael Jackson died, is that today, President Obama conducted the first of what will be many, many meetings beginning the long-awaited immigration reform debate. The New York Times ran a good article yesterday on how the political stage is set for this discussion. But it's also important to ask ourselves, what we think immigration reform should to look like. Could we ourselves, have misperceptions about immigration or immigrants that we need to examine or change? Immigration reform is going to take place on the political stage, but conversations in all our communities need to take place, too. And it starts with ourselves, whether we are using myths to make judgments on immigrants or actual facts. --ecf

I'm starting with the man in the mirror
I'm asking him to change his ways
And no message could have been any clearer
If you wanna make the world a better place
Take a look at yourself and then make that change
~ Michael Jackson

June 14, 2009

July 2009 Visa Bulletin Reflects Grim News for Employment-Based Applications

Those who are patiently awaiting their EB-3 and EB-2 petitions to become current probably check the Department of State's website every month for the newest visa bulletin. Many of you have probably been in the processing queue for several years, are on AC-21 extensions of your H-1B, or are relying on your work permits (EADs), and EAD renewals year after to year so you can keep working legally while you await your "greencard." Some of you are facing situations where your children face "age out" issues and even more of you are awaiting permanent residency so you can then travel legally to visit relatives in your home country. Some may waiting abroad. Nonetheless, you are all waiting and waiting...

The July 2009 visa bulletin released by the US Department of State confirms what we already know - that waiting times are painfully long and slow. But an announcement by the US Department of State's Visa Office to the American Immigration Lawyers Association (AILA), confirms what we have dreaded along: that the situation is "dire" and will amount to extended delays beyond what you have already endured.

The Visa Office has already indicated that the worldwide cutoff date for EB-3 will be set on or around March 1, 2003. With any luck, we may see quick advances in that category near the beginning of 2010, but I'm not counting on it.

Based on current EB-3 demand, India's cut off date in October 2009 will be set at November 1, 2001 and China and Mexico only slightly better March 1, 2003 cut off dates. However, given how tough USCIS has been lately in adjudicating I-140s and even adjustment of status petitions, a lot can change between now and October 1, 2009. You should remember that these estimations from the Visa Office are just estimates.

From bad to worse: the EB-2 estimates for China and India. Come October 1, 2009, the Visa Office expects that the cut off dates for China and India will both be January 1, 2000.

EB-1 for China and India will probably experience a cut-off date in August, too.

As for religious workers who can now file concurrent I-360 and I-485 applications, you are forewarned as well. This year, the Department of State has announced that a surge of applications may also cause a cut off date before September. But since this category is still current, you should take advantage of it now!

This report underscores the need for immigration reform. Without legislative relief, these backlogs will just continue to grow. It's unrealistic to think that employers will continue to play this waiting game. The most talented of workers will be recruited by companies abroad. And if US employers have to, they will continue to outsource to the very professionals who could have generated significant revenue for our government if they were in the US paying state and federal income taxes. They could also be contributing to another program on the brink: social security. --ecf

June 12, 2009

H-1B Quota Filings Going Down; Cap Not Yet Reached; USCIS Issuing Denials

Since April, I have been keeping track of the FY 2010 H-1B quota cap. I've posted each of the USCIS updates on the FY 2010 H-1B count and today's update confirms that the H-1B quota is still open. Many of us expected that as in years past, the H-1B quota would be reached on April 1, which the first date that H-1B petitions are received. If not the first day, then within the first week of April. And if not by then, certainly by the summer months. We were all wrong.

Perhaps it should not be much of a surprise that with unemployment rates at an all-time high, the often-coveted H-1B visa for professional, skilled workers is still available today. USCIS reported today that about 44,400 H-1B applications have been filed to date. And as I have been reporting, USCIS has and will continue to make allocations for accepting more than enough applications because the agency has repeatedly reminded the public that many H-1B petitions will be denied.

Today's H-1B update confirms just that: lots of denials.

As of May 29, 2009, the USCIS announced that they received 45,800 petitions against the regular cap, and that although they had received approximately 20,000 petitions for the advanced degree cap, they would still accept petitions for both caps.

Less than 2 weeks later, USCIS announces that they have 44,400 or 1,100 petitions less than on May 29, 2009. This is due to the large numbers of denials they have been issuing recently. Anyone with a pending application or one that has received a Request for Evidence will confirm that H-1Bs applications are being treated with higher scrutiny that in previous years. This is not necessarily fatal for those employers and applicants that have strong cases, but before you entertain the thought of filing and H-1B petition, you should seek advice on what to prepare in advance of an H-1B RFE. --ecf

June 11, 2009

Religious Workers Order: Concurrent Filing to be Accepted by USCIS

In a groundbreaking order, a United States District Court ordered the USCIS to begin accepting concurrent filings of the Form I-360 (Petition for Special Immigrant) and Form I-485 (Application for Adjustment of Status) on behalf of religious workers.

For years, the USCIS has treated petitions for permanent residency by religious workers differently than all other categories of employment-sponsored immigrants. Asserting that religious workers and religious organizations are more prone to submit fraudulent petitions than in other employment -based cases, this USCIS rationale for refusing to accept concurrent filings was struck down in no uncertain terms. The Court cited that the preliminary injunction staying unlawful presence by religious workers was issued as a means of "avoiding or ameliorating the injuries that arose from enforcement of the invalid regulation."

This is a great step forward to religious workers who provide ministerial services and spiritual services to followers of all faiths through this great nation that has honored religious freedom from its inception. Rather than treat servants of faith differently, disparately, and with denigration, Judge Robert S. Lasnik of the Western District of Washington directed the USCIS to begin accepting concurrently filed I-360 and I-485 applications. The order also directed USCIS to accept I-485 applications from those applications with I-360s pending.

In a previous order by the Court, some religious workers who have fallen out of status waiting for final adjudications of long-pending I-360 petitions (some pending for years), may still file I-485 applications for adjustment of status, assuming that they are eligible for relief. If you are a religious worker with a pending I-360 or want to file a concurrent I-360 with adjustment of status, contact Fong & Aquino for a free consultation. --ecf

June 8, 2009

Hearings on Uniting American Families Act (UAFA)

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On 3 June 2009, the US Senate Judiciary Committee held hearings on the Uniting American Families Act (UAFA).  UAFA would amend US immigration law to permit American citizens and Legal Permanent Residents to sponsor their same-sex partners as traditionally-married Americans can.  J Craig Fong, partner in the Los Angeles immigration law firm of Fong & Aquino, has been an advocate for gay men and lesbians for over 20 years, advising and representing same-sex couples and other non-traditional families.

In one form or another, UAFA has been introduced in Congress each year since 2000.  If passed, UAFA would make available to same-sex partners the same immigration status enjoyed by spouses of US citizens and residents.  

Advocates have urged the Congress to pass UAFA, as a stand-alone bill or as part of a larger, Comprehensive Immigration Reform (CIR) package.  The Obama administration has indicated its willingness to now address immigration issues, and many believe that now may be the time.  The American Immigration Lawyers Association (AILA) has also indicated its support for UAFA.  

To help move UAFA through the Congress, please have your friends, family, pastors, ministers, rabbis from all states write to both US Senators and Representative.  Mailing addresses for Members of Congress can be found here.  It would also be helpful to encourage the mayor and city council of your town, your state legislator, and even your state's governor to write a letter or pass a resolution in support of UAFA -- and to send that letter or resolution to the Congress.

Some people have asked whether letters should be written to progressive Senators and Congresspersons too.  To that, I answer yes!  Remember, immigration and same-sex relationships are both hot potatoes.  Put them together, and even the most progressive Senator or Congressperson will need to have political support on this issue.  --jcf
June 4, 2009

Right to Effective Assistance of Counsel Restored

Since 1988, it has been accepted by immigration judges that individuals in removal proceedings (called "deportation" at that time) had the right to effective assistance of counsel.  The case that established this principle was Matter of Lozada, 19 I&N Dec. 637 (BIA, 1988). This precedent also allowed individuals who were prejudiced by the action or inactions of counsel to request that their cases be reopened or reconsidered.

In January 2009, then-Attorney General Mukasey in the latter days of the George W. Bush administration overruled (in part) this long-established precedent.  Mukasey intervened in a series of cases, denying the reopening of three individual cases.  This reversal of the right to effective assistance of counsel was accomplished under Matter of Compean, 24 I&N Dec. 710 (A.G., 2009).

On 3 June 2009, recognizing that Mukasey's decision did not result in a thorough consideration of rights and concerns involved, Attorney General Eric Holder re-established Matter of Lozada as good precedent, restoring a basic fairness accorded to individuals who are in immigration proceedings, and allowing reopening and reconsideration of cases where individuals have not had the benefit of effective counsel.  --jcf