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.

February 7, 2012

H-4 Work Authorization and Other Reforms to Attract and Retain Highly Skilled Workers

Magnet with Key.jpg
Last week, Department of Homeland Security announced several proposed reforms to "attract and retain highly skilled workers." These reforms include employment authorization of certain H-4 spouses and other concrete incentives.

DHS released a press release describing these administrative reforms, which would impact the benefits and the adjudications process in several different ways, ultimately benefiting employers, universities, scholars and workers (and their spouses):

  • Allowing H-4 dependent spouses to apply for EADs (employment authorization documents) if the principal H-1B spouse has extended their period of stay under AC 21 Section 104(c) or 106(c)
  • Expanding STEM OPT extensions to F-1s whose underlying or previous degrees were STEM related, even if their current course of study is not a STEM major
  • Expansion of the list of eligible STEM majors
  • Allowing F-1 spouses to engage in part-time studies other than vocational or recreational classes
  • Giving universities and colleges more flexibility to increase the number of DSOs or Designated Student Officers at universities and colleges to meet both the administrative and guidance needs of incoming students
  • Increase the type of evidence that Outstanding Professors and Researchers can provide in order to establish eligibility to include "comparable evidence"
  • Allow for the 240-day continued employment authorization of E-3s and H-1B1s upon timely extension, which is already the case for H-1s and L-1s

    At present, the proposed reform to allow EADs for H-4 dependent spouses is in rulemaking, though at a very early stage. We should be prepared to hear updates on the process of each of these administrative reforms, though we have been notified that changes will take time. It is still encouraging in that we have some concrete information on how such reform will impact the highly skilled workers and their spouses who are waiting in the priority date queues or just beginning to prepare for H-1Bs, labor certifications, national interest waivers, extraordinary ability workers and outstanding researcher or professor petitions, etc.

    If you are interested in learning more about these administrative reforms, be sure to subscribe to our blog for updates. If you have a case that you'd like for us to assess, call the business immigration law attorneys at Fong & Aquino. ---ecf

  • February 6, 2012

    Circuit Court to Announce Prop. 8 Decision on Tuesday

    Thumbnail image for rainbow_flag.gifThe issue of same-sex marriage is an important issue. Fong & Aquino gets questions all the time at our offices in Los Angeles and Palm Springs, and throughout the nation from US citizens who wish to immigrate a same-sex spouse. The Los Angeles Times is reporting that the US Court of Appeals for the Ninth Circuit in San Francisco, California will release its decision regarding the constitutionality of Marriage Equality and Proposition 8 on Tuesday, 7 February 2012 at 10:00 a.m. (PST).

    at Fong & Aquino, we are counseling our clients that whether the decision is a positive one or not, couples should not submit I-130 Family Petitions and I-485 Applications for Adjustment of Status based on a same-sex marriage without first consulting with an immigration attorney experienced in working with non-traditional families. --jcf

    January 24, 2012

    No Reliability from Republican Candidates on Immigration Reform

    Question Mark.jpgThe 2012 Republican presidential candidates have done nothing to speak clearly about immigration law and reform. Instead of speaking in clear, grown-up terms about immigration policy, they are using volatile language, demonizing immigrants. This does not advance any discussion; it is just pandering and solves nothing. This cheap talk from the Republican field is causing concern, dismay, and even panic for some of the clients of Fong & Aquino, in our offices in Los Angeles, Palm Springs, and elsewhere.

    In a recent article in the New York Times, candidate Mitt Romney has reportedly abandoned his usually anti-immigrant rhetoric. Why? Because he's campaigning in Florida, where over 22% of the population is of Hispanic origin! So, what is his true position? And can he be relied on to stick to it?

    Candidate Newt Gingrich is not much better, because although Gingrich has rightfully observed that the USA cannot simply deport all undocumented immigrants, he has proposed few concrete solutions.

    Both Romney and Gingrich have spoken in favor of one part of the so-called DREAM Act. The DREAM Act would allow young people who were brought to the USA, and who have gone to high school in the USA, to legalize their immigration status, PROVIDED (1) they perform military or other public service, or (2) they pursue post-high school education. Romney and Gingrich are saying that they would support part of the DREAM Act for those who would serve in the military -- but not for those who complete college. In other words, Romney and Gingrich would legalize those who would risk death in the name of the USA, but NOT for those who would go to college to improve the US workforce!

    As we move further into this election year, it is important to recognize that the Obama Administration has tried to get the cooperation of Congress on some types of immigration reform -- and Congress has refused. It is NOT a question of whether Obama should be doing more. It is MORE a question of whether Congress will cooperate on anything the Obama Administration would propose. And given that Congress cannot even agree on when to have LUNCH, I doubt they're going to agree on immigration reform.

    As the year wears on, we will try to discuss some possible immigration reforms -- reforms which will NOT create a new amnesty, NOT create a new program, but will create humane solutions. --jcf

    January 23, 2012

    Employment Based Visa Numbers the Outlook for Fiscal Year 2012

    2012 calendar.jpgFiscal year 2012 began on October 1, 2011 and as expected, we saw some movement in the visa bulletin. Here is a brief summary of what the US Visa Office reports seeing in terms of usage in the first 3 months of the FY 2012.

    Employment-based usage has been quite slow, but we can still expect to see some advances in the EB bulletin. There are still some EB-2 cases from 2007 in the USCIS pipeline, so we will probably see EB-2 hover around that date until cases are cleared out before forward movement is consistent.

    There has been a severe slowdown in the usage of EB-1 numbers, with some speculation that recent USCIS interpretation and clarification with regard to the standard for extraordinary ability cases has created a stricter standard and perhaps has dissuaded some applicants from filing cases.

    The immigration attorneys at Fong & Aquino have been practicing employment-based immigration law for nearly than 50 years in total. While the early FY 2012 numbers reflect some slowdown in usage either due to a sluggish economy or stricter adjudications by USCIS, each case is fact-specific so if you have questions regarding an employment-based immigration case for yourself or someone you want to hire, give us a call for a free consultation. We can assess your situation in detail to help you chart a path through 2012! ---ecf

    January 15, 2012

    H-1B Petitions - How to Prepare for April 1 Filings

    Checlist list image.jpgIt's H-1B season again. The beginning of a new year and less than 3 months from the first date that USCIS will accept new H-1B petitions on April 1, 2012. It's time to prepare your H-1B.

    The immigration attorneys at Fong & Aquino have been receiving many phone calls from potential H-1B employers and H-1B job seekers in preparation of filing H-1B petitions in April and early summer. Let's review some of the H-1B basics:

    • The job offer must be for a position which requires specialized knowledge in a certain field.
    • The employer must be ready to detail the job duties and have evidence ready in case of a Request for Evidence (RFE) if the USCIS questions whether the job requirements are an industry norm
    • The employer must be willing and able to pay the prevailing wage for the occupation
    • The employee must be able to show that he or she has status until October 1, 2012 or leave the US and apply for an H-1B visa abroad before re-entering

      Although these are the general requirements for an H-1B petition, this is enough for an experienced immigration attorney to begin assessing your case for strengths and weaknesses. The attorneys at Fong & Aquino are often consulted several times before an H-1B applicant and employer are ready to begin the process. If you have questions about your specific job offer or your qualifications for an H-1B, call the business immigration attorneys at Fong & Aquino for a free consultation. ---ecf

    January 10, 2012

    Fong & Aquino on Twitter

    Twitter.jpgFor 2012, the attorneys at the law offices of Fong & Aquino, have decided to make use of Twitter to notify interested followers of immigration news. Whether you are in the fast-lane of Los Angeles business or the laid-back Desert life in Palm Springs, rapid access to news in this field is important.

    Getting "breaking news" on the complex, fast-moving issues surrounding immigration is vital, whether you are a family member who wants to sponsor a relative, an employer who hires immigrants, a spouse being sponsored by an American, an investor wanting an E-2 visa to open a business in the USA, an O-1 extraordinary ability actor who is seeking a big break in the Industry, or any other visa hopeful.

    To be sure, immigration laws and regulations do not always change daily, so we will not be Tweeting daily. However, whenever there is an interesting development, we will raise the issue on on Twitter, as well as point you to blogs or articles for more information.

    Follow us on Twitter at: FongChunLaw

    January 9, 2012

    Do NOT try this at home! or at the US Border!

    Yes No.jpgImmigration law clients of Fong & Aquino have been calling us at both our Los Angeles and Palm Springs offices to inquire whether they can travel in and out of the USA using documents scanned onto their iPads, iPhones, and other smart devices.

    In the first week of January, articles appeared on NBC, ABCNews, and DigitalJournal, and other sites about a Canadian man who was attempting to cross the land border to deliver Christmas gifts to family and friends in Vermont, USA. He had apparently forgotten his passport at his home in Montréal, Québec. When he got to the US Port of Entry (POE), so goes the story, he pulled out his iPad and showed the border guard his scanned Canadian Passport. (The man carries scanned documents, in case he should lose his documents while traveling.) According to the story, the border guard considered the matter and finally let the man cross the border.

    It would be nice to think that border crossing cards, passports, visas, and other paperwork can now be scanned and put on our smart devices in lieu of carrying them. Nothing could be further from the truth.

    Right on the heels of these articles, United States Customs and Border Protection (CBP) issued a statement that scanned documents are NOT permitted for purposes of POE entry. This CBP statement was carried by Yahoo!News, The Globe and Mail (Canada), Straits Times (Singapore), The Telegraph (UK), among others.

    The CBP says that it used the man's secure Canadian driver license and birth certificate.
    No foreigner may enter the USA without being able adequately to verify his/her identity. Apparently, the Canadian man had in his possession a secure Canadian driver license and an official copy of his birth certificate. These allowed the border guard to verify ID, and the man was allowed to enter.

    The take-away lesson here is NOT that you should scan all your immigration papers in order to use them at a port-of-entry.

    The lesson here is: Do not believe everything you read on the internet about what can or cannot be done. Even if this Canadian fellow "got away" with using his iPad-scanned documents, it is NEVER a good idea to depend on the tender mercies of US border guards. Questions about entry and exit issues? Contact a good immigration attorney. --jcf

    January 6, 2012

    Proposed Change May Allow Immigration Waiver for Undocumented

    changes ahead.jpgThe Obama Administration has proposed a change in immigration regulations which would potentially change the lives of undocumented immigrants in the USA.

    Maybe the most common problem we see as immigration lawyers is the person who entered the USA with no documentation, or who had a visa but overstayed -- the so-called "undocumented alien." This problem is enormous and affects our clients throughout the nation, not only those at our Fong & Aquino offices in Los Angeles or Palm Springs.

    This is very complicated, so please read carefully:

    (1) With few exceptions, an undocumented alien can only interview for a green card by going back to his/her home country to have an interview at the US Embassy. The CATCH is that when someone like this departs the country, s/he triggers a ten-year bar, and s/he will not be allowed to return for ten years, even if s/he otherwise qualifies for the green card.

    (2) There is one exception to this bar: if the undocumented alien goes to the interview and is barred from coming back to the USA, the applicant can file a "waiver," explaining that some US citizen (or legal permanent resident) will suffer "severe Hardship" if the applicant is not allowed to return. At this time, the waiver can only be filed at the US Embassy at the time of the applicant's interview. The means that the applicant ends up waiting abroad for months waiting for a decision. If the waiver is NOT granted, the applicant cannot return.

    (3) If this regulatory change is approved, the Obama Administration would allow the applicant to apply for this waiver BEFORE the applicant leaves to the home country. This would be an enormous benefit. If the waiver is granted, the applicant goes to the Embassy interview and comes back, no 10-year bar. If the waiver is NOT granted, then the applicant just stays put in the US, and avoids going home to be denied and excluded.

    This is not an amnesty.

    This proposed change allows those who can be legalized to get a green card through the regular immigration process. The only change would be applying for the waiver before departure from the USA. The impact of this small change would have an enormous impact on individuals and families in Los Angeles and throughout Southern California. Right now, this is only a proposal -- it is NOT YET IN EFFECT.

    The lawyers at Fong & Aquino have talked to hundreds if not thousands of people over the years who can benefit from this potential change. Stay tuned. As soon as this change goes into effect, we will be post additional information. --jcf

    January 3, 2012

    Don't Play with Fire! - Immigration vs the Aggravated Felon

    Matches.jpgThe recent Los Angeles arson situation brings to mind many people who have consulted the attorneys at Fong & Aquino in our Los Angeles and Palm Springs offices. They have a valid visa or legal permanent residence (green card), and they have been convicted of a crime. Sometimes it is a serious crime; sometimes it is something minor. In some of these cases, the conviction has virtually unfixable immigration consequences.

    In 1990, Congress created the concept of "aggravated felonies," crimes that are considered so bad that an alien might not even qualify for the typical defenses to deportation (removal), such as asylum, cancellation of removal, or withholding of removal. In other words, the Congress has simply decided that someone who has committed an "aggravated felony" should just be deported (removed) regardless of the defenses s/he might try to use.

    The name "aggrevated felony" is misleading. "Aggravated felony" includes such obviously serious crimes as murder, rape, or arson; we can all agree that these crimes are quite serious. However, "aggravated felony" can also include some less- obviously terrible crimes, such as attempted possession of stolen property, attempted robbery, petty theft, trespass, unauthorized use of a vehicle. Even if a crime was charged as a misdemeanor in the legal system, it can still be considered an "aggravated felony" for immigration purposes.

    Congress defines an "aggravated felony" as:
    (1) murder, rape, or sexual abuse of a minor;
    (2) illicit trafficking in controlled substances;
    (3) illicit trafficking in firearms or destructive devices;
    (4) any offense related to laundering of monetary instruments in connection with certain unlawful activity;
    (5) offenses relating to transportation, receiving, or using explosives, forearms, or ammunition;
    (6) using fire (arson) or an explosives to commit any felony or causing an explosion during the commission of any felony; and the catch-all category,
    (7) crimes of violence -- which can also, in some circumstances, include theft, burglary, lewd conduct, simple battery, threats, and statutory rape; and
    (8) some other Federal and state laws.

    As you can see, this a very broad list of crimes.

    We caution all our clients who have green cards or who have temporary visas to contact us if they have any contact with law enforcement so that we can evaluate the nature of the underlying crime. Please remember that even if you are already present in the USA, if you commit an "aggravated felony," you could trigger arrest or a deportation (removal) if you try to apply for an extension of stay, a renewal of your green card, a change of status, an adjustment of status (green card), or if you re-enter the USA after a brief absence.

    If you have more questions about "aggravated felonies," please contact an experienced immigration attorney. --jcf

    December 1, 2011

    H-1B Quota Update: No Lottery This Year

    Today, the USCIS Service Center Operations released a statement that all properly filed H-1Bs applications received on Tuesday, November 22, 2011 will be accepted under the FY 2012 H-1B cap. USCIS SCOPS also confirmed that there will be no lottery for petitions properly filed and received on November 22.

    Those who are awaiting receipt notices for H-1B petitions received on November 22, should be able to rest easy knowing that their cases made it under the cap on the last day of the quota. However, be aware that until you receive a receipt notice, nothing is official. Many petitions get returned due to these typical errors: the filing fees are given in the wrong amounts, boxes on the I-129 Data Collection page are not checked correctly, and for missing signatures. If a petition is returned for an error, it may well take a few weeks for it be mailed back to you. ---ecf