October 15, 2009

Principles for Immigration Reform

On 14 October 2009, Congressman Luis Gutíerrez of Illinois released a set of principles which he hopes will be incorporated into any Comprehensive Immigration Reform (CIR) package. As advocates for immigrants, the attorneys at the Los Angeles-based immigration law offices of J Craig Fong, we watch closely any progress on CIR.

Central to his approach are:

1. a rational and humane approach to resolving or legalizing the status of the undocumented population,

2. a mechanism to protect US and legal immigrant workers,

3. allocation of sufficient visas to stop immigrants from trying to "cut in line" or "jump the queue" and get to America earlier but illegally,

4. enhancements to protect the US homeland,

5. establish a wise border enforcement policy that reflects America's needs and values,

6. keeping together and unifying American families,

7. promotion of immigrant integration,

8. inclusion of the DREAM Act and AgJobs bill, and

9. protection of fundamental rights.

Representative Gutíerrez' statement of principles is an excellent first step as the debate over CIR begins. --jcf

October 8, 2009

PERM Delays: Audits and Backlogs

PERM cases are backlogged now to December 2008. So if you have a PERM case pending that was submitted more than a year ago, DOL may entertain an email inquiry from you. But if your case was submitted in October 2008 or after, you still have a long wait ahead of you and yes, DOL does not want to hear from you at all...

USDOL reports that they have approximately 65,800 cases in the processing queue for PERM. This number also includes cases that are on appeal. Of these cases, approximately 24,600 or about 37% of the cases were issued audits.

For people waiting for final adjudication after submitting an audit response, DOL informs us that they are still working on audited cases from October 2007!

This is obviously bad news for applicants and employers who are waiting patiently for these processing queues to move forward. If you have been in this queue already, you already know that PERM has slowed down to a crawl. For anyone thinking of filing a new PERM case, be warned that since it is taking so long for an initial or final adjudication, employers and employees must be extremely careful about how their case is presented and hope that their case goes through without the additional delay of an audit. Further, take care to cover yourself and maintain status throughout the anticipated pendency of a PERM application. If you have questions about PERM or presenting a new case, contact the attorneys at the Law Offices of J Craig Fong for a free initial consultation. ---ecf

October 6, 2009

Verifying Undocumented Aliens for Health Care

Since July 2008, the County of Los Angeles has posted 81 people in 27 social service offices to check and verify immigration status of all applicants for social services. As the debate continues on health care, the lawyers at the immigration law offices of J Craig Fong in Los Angeles remain concerned that immigrants are being made the scapegoats for a dysfunctional health-care system that they have had no hand in creating.

According to an article in today's Los Angeles Times, Los Angeles County has so far not found one illegal immigrant masquerading as a legal resident in order fraudulently to obtain social benefits. Among Medi-Cal applicants, only about 0.1% of the total applicant pool was found to be ineligible because of immigration status.

One has to ask the question: is the expense of this verification system worth what we're paying for it?

One federal study noted that the records-verification system implemented in 6 states cost about $16.6 million in administrative costs -- and found only eight undocumented immigrants.

Please contact your Senators and Representative to let them know that health-care reform is important for our nation, and that immigrants should not be used as an excuse for not providing the health care that Americans must have. --jcf

October 2, 2009

H-1B Quota, Fraud Detection, On-site interviews

The H-1B quota has now reached approximately 46,700 and although the USCIS has announced that they've received approximately 20,000 advanced degree applications, it still continues to accept advanced degree cases.

I have been fielding a lot of questions about whether a person is still "in H-1B status" even if they are no longer working for the employer who sponsored them. Simply put, the answer is "no." When H-1B workers are petitioned for by a specific employer, not only are they expected to work for that employer only (unless they have a concurrently approved H-1B for a separate employer), but they must always comply with the original terms of the H-1B petition. Any changes considered to be material to the employment must be reported to the US Department of Labor and possibly to the USCIS.

Further, H-1B employees are considered to be out of status if they lose their jobs or quit working for the H-1B sponsor. And as of late, the USCIS has been conducting random on-site visits to H-1B employers, interviewing the foreign worker(s), HR or the company owner, as well as verifying the terms and conditions of their work.

It shouldn't be a surprise to people that the Department of Homeland Security is utilizing their resources to crack down on employers and employees under the H-1B program.

Just 3 days ago, Senator Grassley of Iowa wrote a letter to USCIS Director, Alejandro Mayorkas, imploring him to "ensure accountability" in the H-1B program. This wasn't the first time Sen. Grassley has done so. Earlier this year, Sen. Grassley called out "Microsoft" for their usage of the H-1B program as well.

If your company is facing lay offs or you have lost your H-1B job, you need advice on how to maintain status (if possible) and/or guidance on what you may face in future applications for work authorization or work visas. ---ecf

September 11, 2009

You lie! -- No apologies from Congressman

Representative Joe Wilson's outburst on the floor of the House of Representatives, effectively calling the President a liar has continued to resonate throughout the country. As advocates for immigrants, Los Angeles immigration lawyers at The Law Offices of J Craig Fong have warned that immigrants will be used as scapegoats during the health care debate. And so they have.

The fact that Congressman Wilson was told by Republican party leaders to immediately call the White House to apologize should be a signal; Wilson did not choose to apologize himself. He has maintained that he is right, despite the facts. Instead, we are worried that he will become a symbol to radical right-wing activists that it is perfectly alright to shout down the President, perfectly acceptable to simply interrupt anyone with whom one disagrees, perfectly acceptable to ignore facts. This type of approach leads to a my-way-or-the-highway approach to politics, and no one gains from that.

We believe that as the debate on Comprehensive Immigration Reform (CIR) begins in 2010, this form of argument, simply cutting off or shutting down civilized discussion, will become worse. This is a danger to our democracy and will harm immigrants and our country.

We have already written about how these tactics cheapen our legislative process. We urge all immigrants, friends of immigrants, and advocates for immigrants to be alert in the coming months. Stand up for our friends! Encourage oure elected officials, our neighbors, and our friends to Welcome the Stranger. Be sure to write to your elected officials, urging them to support CIR and giving them the support needed to stand up for immigrants. --jcf

September 10, 2009

"You lie!" - GOP Congressman Heckles Obama about Immigrants

It is sometimes saddening and discouraging to be right. Yesterday, immigration attorneys at the law offices of J Craig Fong in Los Angeles cautioned in our blog that immigrants would be used to score points in the health-care debate. Last night (Wednesday, 9 Sept 2009), almost like a pavlovian response, a republican Congressman, Joe Wilson, heckled and insulted President Barack Obama during the President's speech to a joint session of Congress on the question of health-care reform, using immigrant access to health care as the excuse.

During a speech describing his plan for health-care reform, the President clearly stated that no Federal money would be spent providing "illegal immigrants" with government-subsidized health care under his proposed plan. Wilson, a representative from South Carolina, shouted out, "you lie!"

It is sad that the debate has sunk to this level. Here's why:
- The republican congressman transmits the message that it's OK to heckle anyone, even the President, when you disagree.
- When a Congressman calls the President a liar, right in the Capitol, it gives everyone else permission to say what they like, where they like, to whomever they like, regardless of how disrespectful or unhelpful the statement may be.
- It reduces the level of discourse and debate in this country to all-or-nothing politics, and it encourages people to think that this is the best way to address the nation's difficulties.
- The charge of "you lie" says that no matter what one says, no matter what evidence one has, no matter what the facts show, you can simply discount and disregard something someone has to say by saying "you lie." This means that people don't have to engage, they don't have to look at the facts, they don't even have to listen -- they can just say, "I don't believe you," and that is the end of discussion.

Finally: we can see that certain factions of the USA will begin to use immigrants as a wedge, to delay or even halt all kinds of legislation needed for our nation, simply by saying that immigrants will gain some kind of benefit. They will even try to prohibit immigrants from using their own money to purchase health insurance on the open market. What's next? Will they prohibit immigrants from buying gasoline? Toilet paper?

Keep in mind that the debate over comprehensive immigration reform has not yet even begun in Congress. It becomes urgent that as the irrational attacks on immigrants escalate, people who know the truth speak out. "Call out" the nay-sayers. --jcf

September 9, 2009

Immigrants & the Health-Care Debate

newborn.jpgThe immigration law offices of J Craig Fong in Los Angeles is devoted exclusively to advocacy for immigrants. Recently, those opposed to meaningful health-care reform have started to use the immigrant community as a political whipping boy once again, using scare tactics and making false claims about immigrants' use of, payment for, and access to health care.

Some important facts to keep in mind in this debate:

First: If more participants -- including immigrants -- pay into the insurance system and are covered by some health-care plan, this spreads risk over a larger group. It means that more people who need health care will be able to get it.

Second: There is a large group of people in this country who are not covered by meaningful health insurance. Over 40 million people. The vast, vast majority -- 78% -- of those without medical insurance are Americans! Legal and undocumented immigrants account for only 22% of the uninsured who are under MediCare age.

Third: It is simply untrue -- I repeat, UNTRUE -- that immigrants impact the health-care system disproportionately. A July 2009 study in the American Journal of Public Health found that immigrants not only use LESS medical care than Americans, but when they do use health care, they use LESS EXPENSIVE health care. Immigrants' per-person medical expenditures are 50% - 66% less than expenditures for the average American-born person.

Finally: Recent immigrants were responsible for about 1.4% of total public medical costs, even though they only constitute 5% of the population.

Access to quality health care is a simple human right which a government should provide its people. As the debate intensifies, we hope no one forgets to include this nation's immigrants. --jcf

September 3, 2009

DOL Fights to Tighten Rules for Farmworker Visas

The Bush Administration, in its final days, implemented rules to make it easier for farmers to hire temporary foreign laborers. These rules also arguably cause the reduction of wages and the proliferation of poor working conditions for all farmworkers, foreign and domestic. Although the immigration law offices of J Craig Fong is in Los Angeles, we have had inquiries about the wages and conditions of employment faced by foreign farmworkers.

The Obama administration today moved to roll back some of those Bush Administration rules. This roll-back is expected to result in an increase of about $1.44 per hour for the average wage for farmworkers -- who often do back-breaking work for very long hours. The change in rules would also protect American workers from being displaced, if Americans wish to apply for and take such jobs. --jcf

August 28, 2009

DHS to Continue Border Inspection of Electronic Devices

eye.jpgOn 18 August 2009, the Obama Administration issued new directives about the inspection, search, and even seizure of electronic media belonging to travelers passing through border checkpoints. This set of policies and practices has concerned immigration lawyers, constitutional attorneys, and other civil rights advocates, including the immigration attorneys at the Law Offices of J Craig Fong in Los Angeles.

All electronic media devices are susceptible to search: computers, hard drives, thumb-nail drives, mp3 players, iPods, mobile phones, CDs, DVDs, Blackberrys, etc.

This practice of inspecting, detaining, and even copying travelers' electronic media -- without a warrant or even suspicion -- began before the Bush Administration's so-called "war on terrorism." Given the amount personal information that people keep on their digital devices, attorneys and constitutional advocates have worried that such searches and seizures can be potentially more intrusive than having a border guard riffling through one's luggage.

In some cases, victims of these searches have suspected that the border guards had cracked password-protected files and were copying and keeping information from these devices, which were detained for periods of time ranging from minutes to weeks.
data disks.jpg
The new directives continue the Bush Administration practices, with some (in this author's view, small) degree of oversight:

- Supervisors must be present during the search,
- Border guards may still keep your electronic media device, but only if there is "probable cause" that it is connected to some illegal activity,
- If there is no reason to hold the information, it must be destroyed within 7 days,
- The traveler may ask to be in the room when the search takes place,
- Border guards are expected to consult Homeland Security attorneys if they wish to view voyagers' medical, legal, or medical records, or journalists' work, and
- there is a 30-day limit for the detention of media and devices.

If you would like to read the directive for yourself, it can be found here. --jcf

August 27, 2009

The Law Offices of J Craig Fong Salutes Senator Edward Kennedy

The Los Angeles immigration law offices of J Craig Fong would like to acknowledge the passing on 25 August 2009 of Senator Edward M. Kennedy, US Senator for the State of Massachusetts.

Not merely the scion of a famous family, Senator Kennedy was a champion on issues close to the hearts of many immigrants: immigration reform, education, union representation, and health care. Deeply aware of his own background and immigrant roots, Senator Kennedy helped craft the Diversity Visa, the so-called "green card lottery," that has permitted so many people from different nations to immigrate to the USA when no other avenue was available to them.

His voice will be missed. --jcf

August 24, 2009

Immigration Reform Set for 2010

Because the debates about Health Care Reform are taking so much of the Congress' energy, the Obama Administration believes that Comprehensive Immigration Reform (CIR) will not be considered by the Congress until the beginning of 2010. The immigration law offices of J Craig Fong has many clients in Los Angeles, CA and throughout the nation who would benefit from the passage of CIR. In a recent article, President Obama restated his commitment to humane immigration law reform.

Two of the most anticipated provisions of CIR would be the Development, Relief, and Education for Alien Minors Act (DREAM Act) and the Uniting American Families Act (UAFA).

The DREAM Act would allow the normalization of the immigration status of certain undocument students who were brought prior to age 16 to the United States by their parents or guardians. These students have lived and been educated in the USA, and it would be fundamentally unfair to deny them immigration status, when they did not come to the USA through their own decision, and when the USA is often the only country these students have ever really known.

UAFA would correct a long-standing inequity under immigration law and would permit US Citizens and Legal Permanent Residents to petition for and bring their permanent partners to the USA on the same footing and subject to the same conditions as traditional married couples.

Although CIR will not be debated in Congress until the beginning of 2010, we are still urging Americans to be ready to write both of their Senators and their Congressional Representative in support of CIR. Further, we are also asking Americans also to write their state governors and full city councils, encouraging them to contact Washington to urge passage of CIR.

For more information about CIR, also see the Fong and Chun blogs of
29 June 2009
26 June 2009
--jcf

August 19, 2009

H-1B Quota Newest Update August 14, 2009

H-1B quota update...what's going on with the H-1B cap? Just updated today, the USCIS now reports that as of August 14, 2009, about 45,000 cap-subject cases have been received. So that's about 100 more than what USCIS reported a week ago.

Based on what USCIS has reported in the last 4 months, this seems to be a pattern. Up by 100, down by 100. Whatever the reason, H-1B season remains open! At some point, cases already counted in the queue can also be denied, so that might keep the quota open longer.

As for the advanced degree cap, commonly called the "advanced degree quota," USCIS tells us in their most recent H-1B quota update that they have collected approximately 20,000 applications. However, the USCIS reports that they will still continue to accept master's (advanced) degree cases until the quota has been filled.

Something that I counsel clients about is that there are also cap-exempt cases that can be filed. However, the only quota-exempt cases that are accepted are those filed by employers that are bona fide non-profit organizations, which have a documentable relationship with US colleges or universities. Granted this is a small exception, many clients have found this to be useful when working around the quota. Plus, filing fees are cheaper! --ecf

August 18, 2009

Religious Workers Should File Adjustments by August 31, 2009

As a direct result of the Ruiz-Diaz religious worker litigation, the USCIS announced this week that religious workers should file their I-485 applications for adjustment of status by the end of this month.

The USCIS issued this statement to remind religious workers to file for adjustment of status if they have pending or approved I-360s. The reason for this comes from the fact that the employment-based fourth preference category will become unavailable beginning September 1, 2009. The USCIS will only accept adjustment of status applications from those ministers or non-minister religious workers if they have a pending or approved I-360.

Filing an adjustment of status application will toll or protect the worker from accruing unlawful presence. Religious workers or religious organizations that have questions regarding this should call Law Offices of J Craig Fong as soon as possible to ensure that they protect their workers and/or their organization from employer sanctions or other immigration penalties. --ecf

August 11, 2009

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

Breaking news. Just posted today are the H-1B quota numbers. It is the same as my previous posts. Cap count is approximately 44,900. Roughly two weeks ago, USCIS reported the cap count was approximately 44,900. So no difference in the quota count to report.

USCIS is still accepting regular H-1B cap cases. USCIS is still accepting US Master's degree H-1B cases, also known as advanced degree cap cases. Nothing much new here. But check back in a couple of weeks. In the meantime, we'll continue to post other topics of immigration interest and intrigue! ---ecf

July 25, 2009

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

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

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

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

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