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 Fong & Aquino 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 Fong & Aquino 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 Fong & Aquino 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 Fong & Aquino for a free consultation so you know the real odds of your H-1B case. Why take a gamble? ---ecf

May 31, 2011

H-1B Quota Numbers May 31, 2011

Thanks to USCIS for the updated quota numbers:

Regular cap: approximately 13,100 have been received
Advanced degree cap: approximately 9,000 have been received

Many people are continuing to ask when the quota might be reached. While it's impossible to really know and difficult to estimate, it seems that the quota numbers are moving slowly. Those who are still looking for H-1B employment and/or those on F-1 OPT still have ample time to prepare a case for this year's quota. Contact the business immigration attorneys at Fong & Aquino for a free consultation. ---ecf

May 21, 2011

H-1B or J-1?

The immigration attorneys at Fong & Aquino are often asked by foreign job seekers whether there are options other than H-1B for living and working in the US. Given the difficulty of finding an appropriate H-1B employer these days, many people have asked specifically whether the J-1 exchange visitor is a good option.

Although there are several types of J-1 exchange visitors, this blog will focus on the J-1 internship category.

Here are a few pointers to follow when looking for a J-1 sponsor:

1. Is the J-1 subject to the 2 year home residency requirement?
2. How long will the J-1 term last?
3. Can I choose my own internship?
4. Will the J-1 sponsoring organization work with the employer to create a J-1 program?
5. If you are abroad, will the J-1 sponsoring organization prepare you for the visa interview?

For some J-1 visa holders, J-1 internships provide a great opportunity for hands-on work experience and an opportunity for making contacts in a specific job field, which can be critical for H-1B hopefuls. ---ecf

May 11, 2011

Obama's Speech on Immigration Reform

Screen shot 2011-05-11 at 2.58.08 PM.pngPresident Obama addressed the nation in a highly anticipated speech on immigration reform from El Paso, Texas. Many have criticized the President's speech because he offered little in detail but spoke in broad terms.

The immigration attorneys at Fong & Aquino would like to note that while deportations have increased under the Obama administration, President Obama reiterated that legalization should be offered to the undocumented, but with an emphasis on accountability. The President stated clearly: "those who are here illegally have a responsibility as well ... they have to admit that they broke the law, pay their taxes, pay a fine, and learn English. And they have to undergo background checks and a lengthy process before they can get in line for legalization."

The President also weighed in on the hallmark of immigration: family reunification. President Obama said "I don't believe the United States of America should be in the business of separating families. That's not right. That's not who we are."

As immigration advocates, Fong & Aquino applauds the President's focus on securing our borders in a way that reunites families and that serves our national security and business interests. And as long-time advocates in the GLBT community, we hope that the President's silence regarding DOMA and its prohibition on immigration relief for same sex spouses is not an indication of the Administration's lack of commitment toward rectifying the inequities that have caused the painful separation of non-traditional families. Because as the President said, that's not who we are. --ecf

May 6, 2011

H-1B Quota Numbers

The business immigration attorneys at Fong & Aquino have been asked numerous times when the H-1B cap will be reached, or whether the quota is closing soon. While no one knows when the H-1B cap will be reached, USCIS has released some recent numbers of the current H-1B usage.

As of May 6, approximately 10,200 petitions have been received for the regular, Bachelor's degree quota while approximately 7,300 petitions have been received for the advanced degree quota.

It seems that the H-1B quota is still wide open and those interested in consulting with the attorneys at Fong & Aquino for potential applications should give us a call as soon as possible given the fact that it can take USCIS months to adjudicate H-1B petitions. ---ecf

April 27, 2011

Consequences of Drug-Related Convictions

Thumbprint.jpgLos Angeles-based immigration attorneys at Fong & Aquino have received a recent string of consultations from the Palm Springs and Inland Empire area involving the immigration consequences of drug convictions.

One individual is a Lawful Permanent Resident (LPR) who was convicted in 2000 for possession of drug paraphernalia. The conviction did not come to the government's attention until the gentleman returned from a vacation abroad and he re-entered the United States. The Department of Homeland Security ("DHS") has placed him into removal proceedings, charging that he had been convicted of a controlled substance offense.

Another man recently walked in with a Notice to Appear in which the DHS alleged that he entered the United States in 1965. "That's wonderful!", I thought, "I've got one of the few people in America that is eligible for registry." My excitement waned when I discovered that the man had a conviction for possession of drugs in the 1980s.

The Immigration and Nationality Act does contain a "petty offense exception" which waives the consequences of a minor crime if the sentence of imprisonment did not exceed six months and the conviction carries a maximum sentence of one year or less. Unfortunately, neither of the above individuals can avail themselves of the exemption because it does not apply to drug convictions, no matter how minor.

There are other avenues of relief in the immigration court that we have been pursuing to help these two individuals. But the moral of the story is: if you are not a U.S. citizen, stay away from illegal drugs -- probably good practice for U.S. citizens too. However, if you do have an old conviction on your record, you should consult with an immigration attorney before you leave the United States or before you file for any benefits from the U.S. Citizenship & Immigration Services. --ra

April 8, 2011

H-1B Quota - 2012 Cap

So far, the USCIS has announced that it received 5,900 H-1B applications for the normal quota and an additional 4,500 for the advanced degree quota. These numbers were released yesterday, April 7, 2011.

In years past, many remember that the H-1B quota was exhausted as early as the first day of applications. Last year, the H-1B cap was not reached until January the following year. I would anticipate that with the economy still rebounding, the H-1B quota will last a significant amount of time. This will also ensure that everyone who can find a job offer this year will have a chance to make an H-1B application. Please contact the business immigration attorneys at Fong & Aquino for a free consultation if you are interested in applying for an H-1B this year! ---ecf

April 4, 2011

Chinese Companies Suspected of Fraud

It's H-1B season and the business immigration attorneys at Fong & Aquino are busy once again fielding phone calls and inquiries regarding employment-based visas, including those of L-1 and new company visas. In the past few years, the USCIS and US Department of Labor have suspected newer and small companies of fraud, especially within the immigration system. New procedures and increased scrutiny of employment-based cases have made H-1B petitions and H-1B visas especially more difficult to attain.

Handshake.pngToday's Wall Street Journal ran a story about the very disturbing trend revealed by the Securities and Exchange Commission that small private companies are merging with public shell (dormant) companies instead of going through more rigorous methods of becoming public, avoiding initial public offerings. SEC Commissioner, Luis Aguilar announced that since January 2007, 600 of such "backdoor registrations" occurred and most notably, more than 150 of these occurred in and around China.

It's no secret that the USCIS, as part of the US Department of Homeland Security (USDHS) is engaged in "national security, fraud detection and prevention." The DHS now has an unit attached to it which investigates corporations suspected of defrauding the government specifically through the H-1B program and other visa categories. This has made adjudications of all H-1B applications much more difficult and I believe we will see strict review of all H-1B and work related applications. ---ecf

April 1, 2011

New H-1B Quota Season Begins!

Crying joker card.pngH-1B season begins today - April 1, 2011. Like a cruel joke, the beginning of this year's H-1B applications, H-1B quota, H-1B cap, fiscal year 2012 H-1B season, whatever you want to call it...starts today, April Fool's Day!

Let's review what the H-1B season means to those looking for a job and who hope to find a suitable employer to sponsor the H-1B application. (1) find a job (2) which requires a Bachelor's degree (3) with a company that is well established (or decently so) and (4) is willing to pay the government filing fees!

These criteria make up the most basic of H-1B requirements. There are many cases which get filed for H-1B each year and get denied, even though they "meet" the initial criteria. I gave a talk last month to attorneys in the Los Angeles area regarding some of the things a seasoned immigration attorney can do to help their clients make good choices in searching for H-1B sponsors and/or in documenting a good H-1B case. I was able to show examples of cases where other attorneys had short-changed their clients by only submitting the basic requirements to USCIS. These cases, of course, resulted in denial. The business immigration attorneys at Fong & Aquino have been able to re-file and overcome such denials, but when you really understand how the cards can easily stack up against you in H-1B applications, you might be wise to start with a free initial consultation at Fong & Aquino as soon as you have an employer lined up before you end up with a denial or notice of intent to deny from USCIS. ---ecf

March 28, 2011

Homeland Security Suspends Deportation of Japanese Nationals -- for now

Bridge Cables.jpgImmigration lawyers at Los Angeles' Fong & Aquino have learned that, in view of the massive earthquake and tsunami in Japan and the related devastation, clean-up, possible radiation concerns, US Immigration and Customs Enforcement (ICE) has temporarily suspended removal of Japanese citizens who may have been ordered deported.

It is expected that ICE will be deporting Japanese nationals again, as soon as conditions in Japan stabilize. Should you have questions about this, or any other immigration or nationality law concern, please do not hesitate to contact us. --jcf

March 25, 2011

AIT Temporarily Suspends Visa Services

Taiwan Flag.jpgThe immigration lawyers at Fong & Aquino in Los Angeles have recently learned that the United States' American Institute in Taiwan (AIT) temporarily closed its visa section as of 18 March 2011, in order that personnel at AIT can assist US diplomatic staff in nearby Japan.

US-Taiwan diplomatic relations are unique, and there is no US Embassy in Taipei. The AIT oversees US interests in Taiwan, handles liaison with the Taipei government, and issues US visas.

For those who may have had immigrant and nonimmigrant visa interviews at AIT after 18 March 2011, AIT is instructing that you visit the AIT's visa processing website to reschedule.

Emergency matters should contact the AIT website directly and follow instructions there.

There has been no indication as to when the visa section will re-open for general business. If you have questions about this or any other issues relating to immigration and nationality law, please contact us. --jcf

March 23, 2011

Elizabeth Taylor: a lesson in transmission of US citizenship

Eliz Taylor.jpegWith today's passing in Los Angeles of Hollywood film star, Elizabeth Taylor, the sometimes-sentimental immigration lawyers at Fong & Aquino want to examine the question of citizenship. Miss Taylor was born in London, England in 1932 to US citizen parents. So: was she a citizen of the US? or the UK? or was she a dual citizen?

Under the Fourteenth Amendment of the US Constitution, the general rule is that "all persons born ... in the United States [and in certain territories] are citizens of the United States." This rule has been a part of American law since 1868. This aspect of the fundamental rule of the Constitution is today under attack by radicals who do not want the children of undocumented aliens to become citizens. However, Elizabeth Taylor was born in England, so we do not yet have our answer.

Miss Taylor was born in 1932, the daughter of two US citizen parents who were living in England. As a general proposition, a child born in wedlock, outside the USA, to two US citizen parents, automatically acquires US citizenship at birth. Immigration and Nationality Act §301.

Although there is much in the storied history of Dame Elizabeth and her renunciations and reacquisitions of US citizenship which would not apply to most people, this general rule still applies. Because the UK uses essentially the same rule about place-of-birth as we do, Dame Elizabeth had both US and UK citizenship.

The rules are different, however, if say:
- only one parent was a US citizen at the time of the child's birth, or
- the child is born out of wedlock to a US citizen mother and foreign father, or
- the child is born out of wedlock to a US citizen father and foreign mother, or
- the child is born at a time when other technicalities of the rules had to be met first.

The rules of acquisition of citizenship are quite complex. For example, a child born out of wedlock in, say, Japan, on 1 January 1953, to a US citizen father and a foreign mother acquires US citizenship if: (a) the father was physically present in the US (or a US possession) for at least ten years prior to the child's birth, five of which were after the age of fourteen. Honorable US military service, employment with the US government or intergovernmental international organization, or as dependent unmarried son or daughter and member of a household of a parent in such service or employment, would be included, and (b) the child's paternity can be established before the child's 21st birth day, by the legitimation law of the father's or the child's residence or domicile.

Now: take another child, born in the same hospital, on the same day, but let's suppose that this other child was born out of wedlock to a US citizen mother and a foreign father. This child automatically acquires US citizenship if: the Mother is physically present in the USA (or a US possession) continuously twelve months at any point prior to the child's birth.

To make matters worse, the US Congress has periodically changed the rules that are in effect. Many of the rules about aqcuisition that were in effect for a child born in, say, 1940 are NOT the rules that were in effect in 1950. And other changes took effect in 1952, and again in 1986.

There are many people who are, or who can claim, US citizenship and may not even be aware of it. For those seeking more information about transmission and acquisition of US citizenship, the immigration and nationality attorneys at Fong & Aquino will be glad to answer your questions.

And to Miss Elizabeth Taylor: thanks for your contribution to film. You will be missed. --jcf

March 19, 2011

Expedited Processing for Japanese Nationals Affected by Earthquake and Tsunamis

The USCIS this week provided information on the types of immigration applications for Japanese nationals who are affected by disasters caused the earthquakes and tsunamis last week. In limited circumstances, the USCIS can expedite the processing of the following types of requests/cases:

  • requests for extensions or change of non-immigrant status even if the request is made after the applicant's stay has expired
  • re-parole of individuals who have already been granted parole by USCIS
  • expedited processing of advanced paroles
  • expedited adjudication and approval for requests for off-campus employment in the case of F-1 students suffering economic hardship
  • expedited employment authorization

  • If you or someone you know is eligible for these services, please contact the attorneys at Fong & Aquino for assistance in making these applications to the USCIS. ---ecf