April 13, 2012

Retrogression for EB-2 India and China and Age Outs: May 2012 Visa Bulletin Report

Retrogression has hit the EB-2 preference categories for India and China. USDOS released the May 2012 visa bulletin showing EB-2 priority dates of August 15, 2007 for both countries. The EB-3 priority dates have moved forward about one month, with the exception of India which forward about a week to September 8, 2002. Families with dependents who will age out at age 21 should call the attorneys at Fong & Aquino to talk about options now. ---ecf
Visa Bultn May 2012 EMT.png

The family-based visa bulletin shows slow movement as well:
Visa Bultn May 2012 FAM.png

April 9, 2012

FY2013 H-1B Count

Counting Peas smaller file size.jpgLast week, I reported that the H-1B cap count was pretty high considering the quota had only been open for 3 days of filing. Today, the CIS released a more accurate count which separates the Bachelor's and Master's cap, the latter of which is nearly half used.

  • H-1B Bachelor's degree cap: 17,400 petitions have been received
  • H-1B Master's degree cap: 8,200 petitions have been received

  • There's no doubt now that the H-1B quota will close much earlier this year. If you need to submit an H-1B application this year, call the attorneys at Fong & Aquino for a consultation. ---ecf

    April 7, 2012

    Visa Fees to Increase

    Starting April 13, 2012, visa processing fees will increase. The fees for most nonimmigrant visa applications and Border Crossing Cards will increase but we will see a decrease in all immigrant visa processing fees.

    • Petition-based visas: H, L, O, P, Q, R will increase from $150 to $190
    • Visitor, student, exchange visitor and journalist visas: B, F-1, J-1, M-1, I visas will increase from $140 to $160
    • Treaty investor and treaty trader visas: E-1, E-2 will decrease from $390 to $270
    • Border crossing cards will increase: BCCs $140 to $160
    • Fiance(e) visas: K visas to decrease from $350 to $240
    • Immediate relative and family preference applications will decrease from $330 to $230
    • Employment-based applications will increase from $720 to $405
    • For more information, visit the USDOS website or call the attorneys at Fong & Aquino if you need help submitting your visa application. ---ecf

    April 6, 2012

    2013 H-1B Quota is Moving Fast

    The first H-1B quota count for the first three days of the filing period tell us that H-1B usage is up. It's still too early to know how long it will last, but we should all keep in mind that it does take time to prepare a thorough H-1b petition and that just rushing to file petition can backfire on you if the case is not well prepared and you are not prepared for a Request for Evidence (RFE). In 2011, many people were surprised to see an increase in RFEs and denials. Call the attorneys at Fong & Aquino for a consultation on your H-1B. ---ecf

    April 5, 2012

    Immigration Option for Gay Men & Lesbians in Deportation

    Thumbnail image for rainbow_flag.gifThe immigration attorneys at Fong & Aquino -- with clients from the Coachella Valley and Palm Springs, to Southern California and Los Angeles, and throughout the world -- have been closely watching the implementation of the prosecutorial discretion policy as it affects gay men, lesbians, and persons in nontraditional family relationships.

    As readers of this blog may recall, in the latter half of 2011, the Obama administration instructed its enforcers of the immigration laws (also known as the Immigration and Customs Enforcement branch of the Department of Homeland Security) to consider exercising its discretion to dismiss "low priority" deportation and removal cases. The "Morton Memo" indicated that the following criteria may be viewed as positive factors:

    Circumstances of arrival - especially if the person came to the US as a child
    Pursuit of education - if they have graduated from high school in the United States and/or are pursuing higher education
    U.S. Military service
    Ties to the U.S., including family relationships
    Pregnant or nursing women
    Age, especially for minors and the elderly
    If the person is a primary caretaker of another person with a severe illness or disability
    Persons who are likely to be granted temporary or permanent status because they are an asylum seeker, victim of domestic violence, human trafficking, or other crime

    In the months that have followed, many questions were raised and Immigration and Customs Enforcement continues to tweak the memo's implementation. However, one question that seems to be resolved is that the government appears to recognize that an individual in removal proceedings who is in a bona fide same-sex relationship may be deserving of prosecutorial discretion.

    Earlier this month, a gay Costa Rican man was spared from deportation based in part due to his 2008 marriage to a U.S. citizen. Last year, an Immigration Judge in New Jersey granted a reprieve in the deportation proceedings against a Venezuelan man married to a U.S. citizen. However, the policy does not appear to be uniformly applied, as a couple in Philadelphia still faces the prospect of separation.

    The immigration attorneys at Fong & Aquino cannot stress enough: This is not "amnesty." There is no new program for legalization here. The government is not providing any lawful permanent resident status or employment authorization. However, in some circumstances, the Government IS viewing a same-sex marriage as a positive factor and allowing some non-traditional families to stay together inside the United States.

    If you are a gay man or lesbian or in a nontraditional family relationship, or if you or a loved one is facing the prospect of removal from the USA, you should consult with the immigration attorneys at Fong & Aquino. We have offices in Los Angeles and Palm Springs. Attorneys at our firm have served the gay and lesbian community with pride for over a quarter of a century. --jcf & ra

    April 5, 2012

    2013 H-1B Quota Numbers

    pie.png
    USCIS reported yesterday that 22,323 cap-subject petitions were received already. About one-quarter of those will be counted against the advanced degree cap. Thus far, usage is about the double the amount of last year's usage. If you are considering an H-1B petition this year, call the attorneys at Fong & Aquino for your consultation now or contact us at here.---ecf

    April 3, 2012

    F-1 Cap Gap and H-1B Issues

    help button.jpgF-1 cap gap issues cause a lot of confusion, but here is a quick guide to help you all you need are clear answers. I posted a similar blog entry last year. The full guidance from USCIS can be found here:

  • Can an F-1 student file an H-1B petition during the so-called grace period or 60 days after their I-20 or OPT expires? Yes.

  • Do the cap gap protections extend to someone who requested consular processing on their I-129? No.

  • Does the 90 day limitation on unemployment still apply during an OPT extension granted from a cap gap application? Yes.

  • Can an F-1 student travel while on the automatic cap gap employment extension and return as an F-1 student? No.
  • While these quick tips are meant to provide a few quick answers, it's always best to have your situation analyzed by the business immigration attorneys at Fong & Aquino. Our attorneys have the experience you need, and are often requested by llocal and national bar associations to provide training courses to other attorneys. Call today for a free consultation. ---ecf

    March 23, 2012

    Applying for TPS - Syria

    Map Syria.jpgTime to apply? Temporary Protected Status (TPS) for Syrians in the US! The USCIS has just announced that Syria will now be a designated country for temporary protected status. Due to the political instability in Syria, Syrians who are now in the United States will soon be able to apply for TPS which will allow them to be granted employment authorization and for extensions of the TPS designation is extended for Syria. The initial TPS designation will be for 18 months. USCIS has instructed applicants NOT to submit applications yet but applications may be prepared now in anticipation of more guidance next week. Remember that TPS is not automatic and applicants will have to show their eligibility, and background checks will still be conducted of all applicants. Those who will be found ineligible are those who have multiple convictions or other factors but certain noncriminal and non-security grounds can be waived. If you are interested in applying for TPS, call Fong & Aquino for a consultation. ---ecf

    March 23, 2012

    EB-2 China and India Update: Predicted Regression Date of Aug. 15, 2007

    backwards moving clock.jpgThis is just in from AILA. It has been reported that in the May 2012 visa bulletin, the USDOS will retrogress the priority dates for China and India EB-2 to August 15, 2007. The April 2012 priority dates are at May 1, 2010. It's still too early to know how long the regression will last, or when there will might be forward movement again this fiscal year. USDOS did report that demand for this preference category from China and India remains very high. Cases will still be "preadjudicated" and held by Dept. of State under their "pending files" in order to be ready when visa numbers can be used for cases filed after May 1, 2010. ---ecf

    March 21, 2012

    EB-2 Retrogression on the Horizon

    U Turn arrow.jpgBad news for those watching in the China and India EB-2 preference category priority dates. It is reported on March 16 that the US Department of State will likely retrogress the EB-2 priority dates to around August 2007 in the May or June 2012 visa bulletin. The April 2012 visa bulletin priority dates for China and India are at May 1, 2010. All other countries are current.

    The reason given for the anticipated retrogression is that USDOS anticipates there will be no "spill down" from any unused EB-1 numbers, meaning all the allocated immigrant visa numbers for Fiscal Year 2012 will likely be used this year in the employment first preference category. This is also an important note for EB-1 applicants: if you are planning an employment first preference case, you might want to get that case in earlier than later. Call the business immigration attorneys at Fong & Aquino to plan your employment cases now. ---ecf

    March 19, 2012

    PERM Processing Times

    forest for the trees2.jpgThe days of PERM processing within a week or two are long gone, but the business immigration attorneys at Fong & Aquino, have seen a decrease in time for adjudications at US Dept of Labor.

    Although processing times still vary, we have recently seen certifications within 2 months of filing. The icert portal reports that analyst reviews are hovering around the submission date of November 2011. That's about 4 months from submission to getting an initial response.

    In the world of audits, Department of Labor reports that they are working on cases originally submitted around July 2011. As many had expected, supervised recruitment is still an issue. In a report summarizing PERM cases filed between October 1, 2011 to March 5, 2012, the Office of Foreign Labor Certification (OFLC) confirmed 26,100 active cases as of March 5 with only 4% of cases undergoing supervised recruitment. While it's still early in the fiscal year, we also know it takes time for a case to proceed from submission to audit, it was notable that a full 26% are in audit review. We may expect an increase in supervised recruitment requests.

    Understanding how to protect your PERM case from audit or denial is tricky. There are no guarantees with this system and it is fraught with risk. One must see the forest for the trees. There are very specific timeframes and requirements that have to be observed with precision, but your attorney must help you keep sight of the big picture, too. Many people contact me after a labor certification is approved but with a denied I-140 in hand. While you can always start over if you've extra time left on your current nonimmigrant status, it's a given that processing times are still significant. This makes it as important as ever to know that your labor certification application is in the hands of someone with experience, someone who can get the job done the first time. Call Fong & Aquino for a consultation to discuss your PERM case to get a real view of what you might be dealing with in PERM. ---ecf

    March 14, 2012

    April 2012 Visa Bulletin

    For you eager watchers of the USDOS Visa Bulletin, you know that the visa bulletin gets published about 2 weeks prior to the start of the new month. This month, we are seeing steady movement in the employment-based third preference. We are still working our way through the bulge of 2006. It has been excruciatingly slow, but those of you with 2006 priority dates are now seeing the light at the end of the tunnel and now is the time to call Fong & Aquino to ensure that your documentation is updated and ready for adjustment or consular processing, at long last. If you have changed employers and are unsure of your status, or ported, perhaps travelled and entered on advanced parole or have been terminated from your job, we'll need to talk! ---ecf

    The family-based chart:
    april 2012 visa bull.png

    The employment-based chart:
    Employment visa bull april 2012.png


    March 13, 2012

    Preparing H-1B Petitions With Multiple Worksites

    Vector arrows.jpgH-1B news. April 1, is just around the corner. The so-called "H-1B season" is upon us with preparations in high gear for early filings. While I won't give predictions or insight into how long this quota will last, the important thing is to prepare your case well and do it as early as possible.

    This blog entry will focus on a 2010 H-1B USCIS memo that was updated on March 12, 2012 discussing "employer-employee" relationships. Simply put, this memo gives guidance on how to prove up cases involving independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party worksites. Having represented a range of employers with H-1B workers who travel about for their jobs in technology, accounting and finance, and business consulting, the attorneys at Fong & Aquino know the challenges facing employers in initial H-1B petitions, updating LCA requirements, and keeping employees in status throughout their H-1B stay, wherever they may be performing services. Such employers must know that they have additional responsibilities in preparing itineraries and documenting prevailing wages in different geographic areas.

    If you or your employer have a non-traditional employment arrangement, such as one involving different worksites, contact the attorneys at Fong & Aquino for a free initial consultation. ---ecf

    March 1, 2012

    March 2012 Visa Bulletin

    The March 2012 Visa Bulletin has been published and we are seeing some movement.

    The family-based chart:
    Family Based March 2012 at 9.45.27 AM.png

    The employment-based chart:
    Employment based visa bull march 2012-03-14 at 9.46.10 AM.png

    For those of you who may be seeing the visa bulletins for the first time, or just need a refresher in how to actually read the charts, have a look at our June blog entry: Are we THERE yet? The Mysteries of the Visa Bulletin.

    I'll continue to post future visa bulletins here. Give us a call if you see your priority date nearing! ---ecf


    February 21, 2012

    Why You Need to Update Your Address with USCIS

    All non-US citizens inside the US are required by law to notify the government of any changes of their addresses. This is a cautionary tale about what can happen if they don’t.

    One recent Monday evening, a client came to me because, just a few short hours earlier, his wife had been arrested and taken into custody during their immigration interview. During our consultation, he provided me with the following background information.

    His wife previously lived in Minnesota. Her then-husband didn’t trust lawyers, so they submitted all of the paperwork to USCIS on their own. Unfortunately, the marriage didn’t work out and they got divorced. Wanting a fresh start, she moved to California.

    Several years later, she met the love of her life in Los Angeles. They got married and she again submitted the applications to USCIS — on her own — for her to obtain a green card. Everything seemed to be progressing normally and the happy couple was summoned to the federal building for their interview.

    Unbeknownst to the client, several months before the paperwork was submitted, USCIS had denied the wife’s previous application for adjustment of status. The notice of the denial — and the notice of a hearing date in front of the Immigration Court — were sent to the address that USCIS had on file for the wife . . . in Minnesota. When she didn’t appear for her hearing, the Immigration Court proceeded on its case without her and issued an order of removal in absentia.

    When the couple went in for their interview at the Los Angeles federal building, they essentially walked into a trap. As soon as the immigration officer confirmed her identity, she was taken into custody by Immigration and Customs Enforcement agents. ICE began to prepare for her deportation. (See also Immigration Marriage Interview: Hollywood Myths Dispelled.)

    The fastest way to stop this deportation would be to file a motion to reopen with the Court in Minnesota asserting that the client never received notice of the court hearing, which is what the client retained me to do.

    I interviewed the wife in her jail cell. I was able to piece together all of the events that had resulted in her being in jail: the prior application in Minnesota, her ex-husband’s failure to notify her of the court date in Minnesota (perhaps out of vindictiveness?), and the events that led her to Los Angeles. I asked her why she and her husband didn’t hire a lawyer to help them and her reply was: “We read some articles on the internet that explained how we could do it ourselves.”

    Three days later, the motion and all of the supporting documents were provided to FedEx for priority overnight delivery. On Friday, the Immigration Court in Minnesota received the motion and placed a stay of removal in effect. I also worked with the local ICE Office of Detention and Removal Operations to ensure that they were aware that the motion prohibited any further deportation actions. A week later, the Immigration Court granted the motion and my client’s wife was released.

    How could the client’s wife have avoided being placed in jail on the verge of deportation? Simple. First, keep her address updated, as required by law. Second, a good lawyer would have checked for prior immigration applications before submitting any new applications.

    I invite you to come talk to me about your immigration questions . . . preferably before someone ends up in ICE custody.