June 2011 Archives

June 29, 2011

H-1B: Cap Gap Guidance

Mind the Gap.pngWhat is the H-1B cap gap?? F-1 students seeking first-time H-1B status are often in some period of OPT (optional practical training) when submitting an H-1B petition. "H1B Cap gap" is the term that USCIS refers to as an extension of either the F-1 student's status and/or the student's OPT period before October 1 of each year.

Here are some nuggets of useful information for students seeking clarification of how OPT can be properly utilized and extended with the H-1B cap gap:

  • If a cap gap H-1B applicant receives an H-1B denial at anytime (before or after October 1), s/he cannot continue working but is still allowed the 60-day grace period to depart the US as long as the H-1B was not denied or revoked due to fraud or misrepresentation

  • F-1 students whose OPT has already expired but are able to file an H-1B change of status petition during the 60-day grace period are allowed to remain in the United States under F-1 status but will not become employment authorized again

  • F-1 students who have STEM OPT employment authorization may apply for a a STEM OPT extension while he or she is within the cap-gap extension period.

  • If you have questions about how to apply for an H-1B petition and whether or not you can extend your OPT through the H-1B cap gap, give the business immigration attorneys a call at Law Offices of J Craig Fong. We can help you mind the gap! ---ecf

    June 27, 2011

    New York: "I do!" -- USCIS: "Not yet, pal!"

    couple hold hands.jpgCongratulations to the citizens of New York for the practical and humane approach taken by their Legislature and Governor in the approval of same-sex marriage last week! As leading advocates for immigrants in the gay and lesbian community, the attorneys at Los Angeles' Law Offices of J Craig Fong have counseled thousands of clients from all over the nation and the world about uniting families which are not traditionally shaped.

    Beware! It is still NOT possible for same-sex couples to marry and to have the US citizen spouse petition for legal permanent resident status (the so-called green card) for the foreign spouse. This prohibition applies even when the couple both marries and resides in New York.

    A same-sex marriage in New York (or from any other state or country, for that matter) will not be recognized for purposes of Federal immigration benefits. This includes Family Petitions for alien spouses, and also includes spouse-as-dependent on any other residency application. The culprit here is the Federal Defense of Marriage Act (DOMA).

    The Uniting American Families Act (UAFA) would remedy this, permitting the recognition for immigration purposes of domestic partners who are in a committed same-sex relationship. This bill is regularly introduced in Congress. It is not yet law, however.

    So, New Yorkers, raise a glass to your friends, families, and loved ones. And stay patient on the repeal of DOMA or the passage of UAFA. --jcf

    June 23, 2011

    Filing I-130 Family Petitions from Outside the USA

    mailbox2.jpgBeginning 15 August 2011, US Citizenship and Immigration Services (USCIS) will change the way I-130 Petition for Alien Relative is filed. Although The Law Offices of J Craig Fong are an immigration law firm in Los Angeles, we represent clients on every continent of the globe (except Antarctica), and we have filed I-130 Petitions all over the world.

    Beginning on 15 August, I-130s from Petitioners living outside the USA may be filed at the USCIS Chicago Lockbox facility. Petitioners who live outside the USA in a country where there is a USCIS office still have the option to file the I-130 at that USCIS office. --jcf

    June 21, 2011

    H-1B Quota Numbers June 21, 2011

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    The H-1B job search continues! The H-1B quota is still wide open for those who are still job searching. Just released today are the numbers from USCIS as of June 17, 2011:

    The H-1B quota (regular degree cap) is moving slowly, but steadily with 16,300 applications received out of the 65,000 available.

    The advanced degree H-1B quota (advanced degree cap) has slowed somewhat, with 10,800 receipted out of the 20,000 available.

    Although the H-1B numbers seem low, the processing times are still quite slow with average processing times of 2-3 months or even longer for initial review without premium processing. Call the business immigration attorneys at the Law Offices of J Craig Fong for more information on applying for an H-1B. --ecf

    Image: jscreationzs / FreeDigitalPhotos.net

    June 17, 2011

    NSEERS Registration No Longer Necessary

    stairway.jpgThe US Government recently announced that NSEERS registration is no longer necessary. Like many other immigration law firms, The Law Offices of J Craig Fong of Los Angeles has numerous clients from countries in which Islam is the predominant religion. The National Security Entry-Exit Registration System (NSEERS) was implemented in 2001. NSEERS required the citizens of certain Islamic countries who are visiting the USA to undergo special treatment and registration upon entry to and exit from the USA. Many The Law Offices of J Craig Fong clients in Beverly Hills, Hollywood, Palm Springs, and Las Vegas were especially impacted by NSEERS.

    Persons born in or citizens of Afghanistan, Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, North Korea, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, the United Arab Emirates, and Yemen were all subject to NSEERS arrival-departure control.

    Implemented in the wake of the attacks of 9/11/2001, the NSEERS program was designed to record the arrival, stay, and departure of certain individuals from countries chosen based on an analysis of perceived national security threats. Because the US Department of Homeland Security (DHS) has now implemented automated systems that capture arrival and departure information for persons of all nationalities -- that includes citizens of the Land of the Free and Home of the Brave (Americans) -- the NSEERS registration is no longer required.

    Quoting DHS, "the underlying NSEERS regulations will remain in place in the event a special registration program is again needed." --jcf

    June 16, 2011

    H-1B Quota Update - June 15, 2011

    H-1B season looks like it's going to last a while this year. With nationwide unemployment still high, offers for H-1B employment seem to be lagging as well. Here are updated H-1B quota numbers for those looking for H-1B sponsors and wondering "how much time do I have left before the H-1B quota runs out..."


    • Regular cap: approximately 15,200 cases have been receipted out of the 65,000 available as of June 15

    • US Advanced degree cap: approximately 10,200 have been receipted from the 20,000 available

    • as of June 15, 2011

    To look on the bright side, H-1B hopefuls who are interviewing and sending out resumes for job openings do have the time to consider carefully whether their potential H-1B employer is really the right organization to sponsor an H-1B application. I have been fielding a lot of questions recently by H-1B applicants who are concerned that their employer is either too small, too new, or otherwise not a strong enough sponsor for their petition. One of the best ways to shield yourself from an H-1B denial is to not only find the right employer but also to find an attorney who will spend the time with you and your employer to assess the strengths and weaknesses of a potential H-1B application and to be prepared for the dreaded Request for Evidence and of course to avoid an outright denial! With filing fees as high as they are, this would be money and time well spent to consult with an experienced business immigration attorney before blindly submitting an H-1B petition. ---ecf

    June 10, 2011

    Arrival Procedures - Secondary Inspection and Criminal Records

    plane+jetway.jpgRecently, I toured the Federal Inspections area at Los Angeles International Airport (LAX). As an attorney affiliated with the immigration law offices of J Craig Fong in Los Angeles, I routinely get questions from clients about "what happens to me when I land after my international flight? What will the procedures be like for me?"

    Although my visit was to LAX, it is fair to say that the same immigration procedures and data bases are in place at all international airports in the Southern California region: Orange County, San Diego, Ontario, Palm Springs, and other international airports nationwide.

    Every day, thousands of people pass through the Tom Bradley International Terminal and the other international arrival terminals at LAX. After deplaning and waiting in the seemingly interminable queues, most passengers will only see one immigration officer. Then they will collect their luggage and see a customs officer. And then, they will go up a ramp where they are greeted by a smiling photo of Los Angeles Mayor Antonio Villaraigosa welcoming them to the United States.

    I also talked to officers in an office in the corner of the terminal which handles "Admissibility Review," also commonly known as "secondary inspection." Because of the volume of international passengers that LAX handles, the primary inspection officer only has a few minutes -- probably less than 5 -- to determine whether to permit an individual to enter into the United States. Instead of tying up an officer's station, questionable individuals will continue the process at the secondary inspection area.

    Maybe there is an error on a visa. Or perhaps the name on the passport doesn't match the visa. Or sometimes, an individual doesn't realize that his or her green card expired during the trip abroad. According to Customs and Border Protection officials, most individuals -- upwards of 90% -- who are sent to secondary inspections are permitted eventually to enter the United States after CBP has asked a number of follow-up questions.

    A word of caution about criminal convictions: the records of older criminal convictions have now been computerized and are now available to CBP inspectors. This includes criminal convictions in the 50 US states, as well as many countries which have made their criminal records available to the Department of Homeland Security.

    In particular, if you are a lawful permanent resident who was convicted of a crime at some time in the past, your past ability to travel in and out of the United States was not because the government had forgotten about the conviction or forgiven you. It was because the CPB didn't previously know about the conviction. In 2010, the Department of Homeland Security initiated removal proceedings based upon one of our client's convictions that occurred in 1995.

    The best way to avoid being escorted to secondary would be to steer clear of the following actions:

    -- misrepresentations about your identity
    -- using fraudulent travel documents
    -- using a passport that does not belong to you
    -- using a passport that has been manipulated or tweaked
    -- using a visa that is fraudulent
    -- traveling when you have an outstanding warrant for your arrest
    -- a LPR returning to the United States after being convicted of certain criminal offenses
    -- a LPR returning to the United States who may have indicia of abandoning his or her permanent resident status

    You should consult with experienced counsel before you seek to enter or re-enter the United States. Doing so may help you prevent any surprises in the immigration inspection area. --ra

    June 7, 2011

    Are we THERE yet? The Mysteries of the Visa Bulletin.

    Hourglass.jpg ** You are a US citizen, and you have petitioned your brother from China.

    ** You are a US legal permanent resident, and you have petitioned your adult, unmarried daughter from Egypt.

    ** You are a US citizen, and you have petitioned your married son from Argentina.

    "When is my relative going to be able to immigrate to the USA. Why do we have to wait so long? I know my relative's priority date, but the dates on the Visa Bulletin swing backwards and forwards. It makes no sense!"

    Strangely enough, this is one of the MOST DIFFICULT things to ask an immigration lawyer. The immigration attorneys at the Law Offices of J Craig Fong in Los Angeles have decades of experience with the immigration system, and we still find it difficult to estimate the progress of the Visa Bulletin. We tell the client to look at the Visa Bulletin, to see which dates are being processed currently. The client calls us back and says, "the Visa Bulletin says that people in my relative's category who applied in 2003 are being processed now! Does that mean my relative must wait another eight years? (Assume we are in the year 2011.) Well, maybe, and maybe not.

    The movement of priority dates on the Visa Bulletin is vastly and famously difficult to predict.  That is because guessing is difficult due to (a) the total number of visas available, (b) the number of visas permitted to each country of the world,  (c) the number of visas taken up by each petition, and (d) the time of year.

    There are some technical, extremely detailed explanations about how the Visa Bulletin works. If you would like to read one -- and if you think it will help -- click here. I have read a number of these explanations, and to be honest, after 30 years of practicing law, the system is as opaque as ever. In practice, this is the way I explain the movement of priority dates when my clients ask me:

    First, the US Congress has limited the maximum number of family-based immigrant visas (green cards) that can be granted each year to 480,000.  (There are exceptions to this, but they are not relevant to this discussion.) Of the 480,000, maximums are set for the visas available in each family-based category: son or daughter of a US citizen, spouse or minor child of a legal permanent resident, unmarried son or daughter of a legal permanent resident, married son or daughter of a US citizen, and sibling of a US citizen.

    Why 480,000? It is a figure set by Congressional act and is based, at least in part, on the Congressional judgment of the number of immigrants that the USA can reasonably absorb in any one year.

    Further: nationals of any one country of the world may not receive more than a maximum of 25,000 annually.  This does not mean that all 25,000 will be given out for each country, but it sets the maximum.

    Why 25,000? Again, this number is set by Congress, and it reflects the desire not to have too many immigrants from any one single country arrive in one year, creating an unbalanced demographic picture.

    This means that a low-demand country, say, Monaco or Vanuatu, would probably not use up its allotment of 25,000, across all the family-based visa categories.  However, a high-demand country, say, China or the Philippines, would have more than 25,000 people who want to immigrate to the USA in any given year.  However, even if Monaco does not use up its 25,000 visa allotment, China does not get to have more than the maximum 25,000 visas as a result!

    Second, each petition can account for more than one beneficiary.  For example, let's pretend that Mr. Smith, from the United Kingdom, is married with two minor children. Mr. Smith's brother is an American citizen, and Brother files an I-130 Family Petition for Mr. Smith. So: when Mr. Smith immigrates, the one petition will end up using up four green cards: one for Mr. Smith, one for Mr. Smith's wife, and two for each of Mr. Smith's minor children.  

    US immigration counts petitions not beneficiaries. This makes estimates VERY difficult.

    Third, the US fiscal year begins on 1 October.  It is on this date that the "new" batch of 480,000 green cards (immigrant visas) hits the system.  This means that ANY of the unused visas for the fiscal year that just ended die -- although there are RARELY any of the 480,000 visas which go unused, given the high demand.  The new fiscal year means a brand-new start with 480,000 family-based visas.

    As a practical matter, this means that US consulates begin processing many, many green cards at the beginning of the fiscal year -- October, November, December, and January.  When this happens, the priority dates begin to move rapidly.  People look on the monthly Visa Bulletin issued by the Department of State, and they see the priority dates moving like lightning.  People say to themselves, "My god: the priority date is jumping 8-9 months every calendar month!  I will get to immigrate soon!!!"

    Then in February, March, and April, as the fiscal year moves on, the movement in the processing dates begins to slow to a crawl, because consular officers get cautious about processing people when there may not be enough visas to last until 30 September, to the end of the fiscal year.  Finally, in July, August, and September, the numbers stop advancing and SOMETIMES they retrogress.

    My advice to any one who is waiting for the arrival of a priority date: regularly watch the State Department's  Visa Bulletin, which comes out on the 15th of each calendar month.  This will provide you with a better idea of how the priority date is advancing. --jcf

    June 7, 2011

    H-1B Denials, What Now?

    dice.pngThe business immigration attorneys at the Law Offices of J Craig Fong have often been asked to review denied H-1B cases prepared by other attorneys. We are asked for advice on whether and how to re-submit a new successful H-1B petition. While it is a difficult task to overcome a previously denied H-1B petition, it is not impossible... it'll be hard work, but it's not impossible.

    The following are questions that are appropriate to ask if you have had a denied H-1B petition:

    1. Did the first attorney spend enough time with me and my employer to understand what special knowledge and tasks are involved in the offered H-1B job?

    2. Were the potential difficulties or weaknesses of the first petition anticipated by the first attorney? If not, why not? And if so, what things did the previous attorney do to prepare in case of a difficult Request for Evidence (RFE)?

    3. What can be done to the first petition to better explain in better detail and document with more evidence my job or training to the requirements of the specialized occupation, so that might I have success the second time around?

    I have for more than a dozen years focused my practice on some of the most novel and challenging H-1B cases. I've worked with cinematographers, people in the fashion industry, translators, business professionals with years of experience but no university degree and I have been successful as long as the applicant and employer understand what is really necessary in the H-1B process. I've even worked with small H-1B employers successfully.

    I have for several years now blogged on the issue of H-1B quota and how Requests for Evidence and Denials impact the process and a person's chance at getting the H-1B approved. While each year is different in terms of watching the quota, it has become increasingly clear that CIS has not only refined their request for evidence queries, but has become more strict than ever. If you are interested in having your case screened for an H-1B petition or reviewed in case of a denial or RFE, please call the immigration attorneys at Law Offices of J Craig Fong for a free consultation so you know the real odds of your H-1B case. Why take a gamble? ---ecf