July 2009 Archives

July 25, 2009

H-1B Quota Update on the Numbers - Quota Still Open!

The H-1B quota has been hovering around the 45,000 mark since April when the H-1B filing period first opened. I have been giving updates every few weeks when the USCIS releases new counts on the number of H-1B cap-subject petitions that have been filed.

We have watched the FY 2010 H-1B numbers yo-yo back and forth from 44,400, 44,900 and 45,000 since June 12, 2009 to present. On July 10, the USCIS announced that it had received approximately 44,900 petitions, about 100 less than the approximately 45,000 reported received on July 3.

What is the reason for the up and down in numbers? Denials, lay offs, less jobs being offered. Sometimes, cases aren't filed properly, something as simple as a typo on the filing check can result in a rejection, though not a denial. Those types of cases can be re-filed, assuming that the quota is still open as it remains today.

Other cases, which could have been marginal, will get denied. Sometimes, employers file for H-1Bs without knowing how to present a properly certified LCA, other times, a job description does not meet the criteria for a specialty occupation. Lots of things can go wrong in filing for an H-1B. And finally, the USCIS makes mistakes too, denying cases, perhaps by applying the wrong standard as they did recently in the case of health care specialty occupations. Wow, USCIS makes mistakes. Imagine that!?!

July 23, 2009

Religious Workers Premium Processing Available

Premium processing is now available again for religious worker petitions. After a long hiatus which caused many delays in religious worker processing, the USCIS is once again accepting premium processing (Form I-907) on R-1 petitions for religious workers, ordained ministers, nuns, monks, priests, religious education teachers, cantors, etc.

The premium processing service in which employers or workers will get a response in 15 calendar days is however, only available to religious organizations that have already passed a site visit or Benefit Fraud Assessment (BFA) by the USCIS Office of Fraud Detection and National Security.

The availability of the premium processing service will alleviate the long waiting times and delays caused by the new regulations in procedures for bringing in R-1 workers. Wait times for an I-129R adjudication without premium processing can be months. However, religious organizations which have already attained a positive BFA can utilize the premium processing service and avoid those costly delays. If you or your employer are awaiting a BFA or are awaiting the results of a site visit, you can call Fong & Aquino to see if there is any way to take advantage of the premium processing service or request that the final results of the BFA be issued without further delay. ---ecf

July 21, 2009

International "Support" Office Opens in California

USCIS has recently opened an "International Adjudications Support Branch" in Anaheim, California. This purpose of this office is to help process some of the applications and petitions received from international USCIS offices. The office is meant to help overseas USCIS offices handle periodic fluctuations in work. We at Fong & Aquino in Los Angeles have noticed that some of our immigration law clients' forms are being processed at this new office.

The office is located in the same facility as the Los Angeles Asylum Office, and it does not handle or accept inquiries, appointments, or walk-ins.

Currently, this support branch is handling I-601 Waiver cases -- except health-related waivers -- from the US Consulate-General in Ciudad Juárez, México. It is not yet known what other cases will be assigned to this office. --jcf

July 15, 2009

Update - Delays in LPR Card Production

At the end of June 2009, we noticed that our Los Angeles immigration clients were experiencing delays in receiving their Legal Permanent Resident cards (LPR card, the so-called "green" card). This delay was apparently due to USCIS updating its card production equipment. As immigration lawyers, Fong & Aquino are always concerned when USCIS delays the production of LPR cards, because such a delay creates enormous difficulties for clients.

We have recently noticed that our clients have received their LPR cards within one month of approval.

Whether the card production delay is over, or whether the California Service Center (where the majority of our clients's card are processed) has already had its equipment upgrade, we do not know. --jcf

July 1, 2009

Trying to Save the EB-5 Employment Creation Visa

Because we are a law firm devoted exclusively to the practice of immigration law, Fong & Aquino of Los Angeles gets calls frequently about the so-called "millionaire green card." The more accurate name for this would be the EB-5 Employment Creation Immigrant Visa, or just "EB-5." This sometimes controversial visa provides for conditional legal permanent resident status for persons who, after November 1990, invest $1 million (or in some cases $500,000) in a new business that employs ten US citizens (or certain other authorized workers) full-time and engage in that business through day-to-day management.

There has been much criticism of the EB-5 visa; however, US Citizenship and Immigration Services (USCIS) officials declared in February 2009 their firm commitment to the success of the EB-5 program, acknowledging the value of the program to the US economy. The USCIS Ombudsman's office has made the following recommendations for the EB-5 program:

1. Quickly finalize the Special Legislative Regulations, to alleviate the so-called "stuck" EB-5 investors who have been in limbo since 1995. Improperly documented cases can drag on for years.

2. Adjudicators should be instructed not to continually readjudicate or re-examine the validity of previously approved economic methodologies and reports. Additionally, USCIS should strive for consistency in and among adjudicators for the EB-5 cases, so that outcomes can be more predictable.

3. USCIS should issue more EB-5 published decisions, to provide guidance and predictability for attorneys and investors.

4. Better rulemaking is critical, so that rules that have been developed to date can be memorialized.

5. There should be an advisory panel to discuss issues affecting the EB-5 program. Participants should include representatives from Departments of Commerce, Treasury, State, Labor, and possibly the Small Business Administration.

6. USCIS should create and offer an operationally-sound special handling option, similar to premium processing.

7. USCIS should prioritize processing of Regional Center filings. Due to the amplified economic benefit of pooled investments for the Regional Center cases, an expedited track could be important during this economic downturn.

8. There should be more active promotion of the EB-5 program.

The EB-5 employment creation visa is a complex animal. If you are interested in applying for the EB-5 visa, please contact our office. --jcf

July 1, 2009

Immigration Crackdown at Work Places

A recent story by Associated Press reports that Immigration and Customs Enforcement (ICE) has begun a crackdown in all states, checking employers large and small to verify that employees are legally authorized to work. Fong & Aquino in Los Angeles represents companies as well as individuals.

Most employers and even some individuals are required to maintain Form I-9 Employment Eligibility Verification on all regular employees. If a company does not maintain its I-9s properly, the company can be fined. If a company is in doubt about whether its I-9s are properly completed and maintained, the company should contact reliable immigration law counsel to arrange for a review of the files. --jcf