Immigration Visa Attorney Blog

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

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!?!

Premium processing is now available again for religious worker petitions. After a long hiatus which caused many delays in religious worker processing, the USCIS is once again accepting premium processing (Form I-907) on R-1 petitions for religious workers, ordained ministers, nuns, monks, priests, religious education teachers, cantors, etc.

The premium processing service in which employers or workers will get a response in 15 calendar days is however, only available to religious organizations that have already passed a site visit or Benefit Fraud Assessment (BFA) by the USCIS Office of Fraud Detection and National Security.

The availability of the premium processing service will alleviate the long waiting times and delays caused by the new regulations in procedures for bringing in R-1 workers. Wait times for an I-129R adjudication without premium processing can be months. However, religious organizations which have already attained a positive BFA can utilize the premium processing service and avoid those costly delays. If you or your employer are awaiting a BFA or are awaiting the results of a site visit, you can call Law Offices of J Craig Fong to see if there is any way to take advantage of the premium processing service or request that the final results of the BFA be issued without further delay. ---ecf

USCIS has recently opened an "International Adjudications Support Branch" in Anaheim, California. This purpose of this office is to help process some of the applications and petitions received from international USCIS offices. The office is meant to help overseas USCIS offices handle periodic fluctuations in work. We at the Law Offices of J Craig Fong in Los Angeles have noticed that some of our immigration law clients' forms are being processed at this new office.

The office is located in the same facility as the Los Angeles Asylum Office, and it does not handle or accept inquiries, appointments, or walk-ins.

Currently, this support branch is handling I-601 Waiver cases -- except health-related waivers -- from the US Consulate-General in Ciudad Juárez, México. It is not yet known what other cases will be assigned to this office. --jcf

At the end of June 2009, we noticed that our Los Angeles immigration clients were experiencing delays in receiving their Legal Permanent Resident cards (LPR card, the so-called "green" card). This delay was apparently due to USCIS updating its card production equipment. As immigration lawyers, The Law Offices of J Craig Fong are always concerned when USCIS delays the production of LPR cards, because such a delay creates enormous difficulties for clients.

We have recently noticed that our clients have received their LPR cards within one month of approval.

Whether the card production delay is over, or whether the California Service Center (where the majority of our clients's card are processed) has already had its equipment upgrade, we do not know. --jcf

Because we are a law firm devoted exclusively to the practice of immigration law, Law Offices of J Craig Fong of Los Angeles gets calls frequently about the so-called "millionaire green card." The more accurate name for this would be the EB-5 Employment Creation Immigrant Visa, or just "EB-5." This sometimes controversial visa provides for conditional legal permanent resident status for persons who, after November 1990, invest $1 million (or in some cases $500,000) in a new business that employs ten US citizens (or certain other authorized workers) full-time and engage in that business through day-to-day management.

There has been much criticism of the EB-5 visa; however, US Citizenship and Immigration Services (USCIS) officials declared in February 2009 their firm commitment to the success of the EB-5 program, acknowledging the value of the program to the US economy. The USCIS Ombudsman's office has made the following recommendations for the EB-5 program:

1. Quickly finalize the Special Legislative Regulations, to alleviate the so-called "stuck" EB-5 investors who have been in limbo since 1995. Improperly documented cases can drag on for years.

2. Adjudicators should be instructed not to continually readjudicate or re-examine the validity of previously approved economic methodologies and reports. Additionally, USCIS should strive for consistency in and among adjudicators for the EB-5 cases, so that outcomes can be more predictable.

3. USCIS should issue more EB-5 published decisions, to provide guidance and predictability for attorneys and investors.

4. Better rulemaking is critical, so that rules that have been developed to date can be memorialized.

5. There should be an advisory panel to discuss issues affecting the EB-5 program. Participants should include representatives from Departments of Commerce, Treasury, State, Labor, and possibly the Small Business Administration.

6. USCIS should create and offer an operationally-sound special handling option, similar to premium processing.

7. USCIS should prioritize processing of Regional Center filings. Due to the amplified economic benefit of pooled investments for the Regional Center cases, an expedited track could be important during this economic downturn.

8. There should be more active promotion of the EB-5 program.

The EB-5 employment creation visa is a complex animal. If you are interested in applying for the EB-5 visa, please contact our office. --jcf

A recent story by Associated Press reports that Immigration and Customs Enforcement (ICE) has begun a crackdown in all states, checking employers large and small to verify that employees are legally authorized to work. The immigration law offices of J Craig Fong in Los Angeles represents companies as well as individuals.

Most employers and even some individuals are required to maintain Form I-9 Employment Eligibility Verification on all regular employees. If a company does not maintain its I-9s properly, the company can be fined. If a company is in doubt about whether its I-9s are properly completed and maintained, the company should contact reliable immigration law counsel to arrange for a review of the files. --jcf

The immigration law offices of J Craig Fong in Los Angeles has recently received quite a number of phone calls from people who are waiting for issuance, re-issuance, or replacement of their US Legal Permanent Resident (LPR) cards. US Citizenship and Immigration Services (USCIS) has been experiencing delays of 2 - 3 months due to an upgrade being made in the card-production equipment.

If you have not yet had your immigration or adjustment of status interview, please remember to bring your passport with you to the interview. If your application is approved at the interview, the officer should place "the I-551 stamp" in the passport. The I-551 stamp will temporarily allow you to travel in and out of the USA and work legally, until you receive your LPR card.

If you do not have a passport, you can bring two passport-type photos with you, plus your driver license (or other government-issued I.D.), and the officer can issue you temporary proof of your status.

For those who have an LPR application approved after the interview, or if your case did not have an interview, you should bring your passport, I.D., and passport photos to a USCIS InfoPass appointment, so that USCIS can put the I-551 stamp in your passport. --jcf

Immigration law firm The Law Offices of J Craig Fong in Los Angeles has always urged that US immigration laws (and officials) treat immigrants fairly. As part of our advocacy, we have urged US citizens and US Legal Permanent Residents ("green" card holders) to write elected officials and express their views about humane immigration reform, especially with regard to the immigration of same-sex partners and undocumented youth who were brought here as children.

Some people have asked for recommendations about the officials to whom they should write. Firstly, because immigration is a Federal matter, you should write to President Obama, both your state's US senators, and your Congressperson to the US House of Representatives.

at the Law Offices of J Craig Fong, we believe in a more comprehensive approach. Most of the upcoming CIR battle will take place on Capitol Hill, but there are everyday people who need to learn about CIR. Local officials and community leaders can be powerful advocates for the immigrant community. We think you should also write your state and local representatives, and encourage them to write to Congress and push for change. In other words, it is good to write directly to Congress, and representatives love to hear from you. But they listen even more keenly when local mayors, councils, and state officials write. Therefore, consider writing also to:

- your mayor
- your city council
- your governor
- your state senator
- your state assemblyperson
- your local board of education
- your local chamber of commerce

Even if you believe your elected officials support immigration law reform, please write to them anyway, because the elected official needs your backing -- political cover, if you will -- if s/he is going to support something that is a hot-potato issue. --jcf

The immigration law offices of J Craig Fong in Los Angeles has received several calls about artists who have been involved in the preparations for the series of Michael Jackson concerts which were scheduled to take place in London beginning this summer. The performer's recent death has thrown arrangements for those concerts into chaos.

Although the Jackson concerts were to take place in the United Kingdom, extensive preparations were taking place both in the UK and in the United States. In preparation for any big rehearsal, event, performance, or concert, teams of make-up artists, costume designers, hair stylists, choreographers, dancers, back-up vocalists, special effects personnel, music arrangers, musicians, lighting engineers, etc. etc. come together to create the shows that so many enjoy. The number of people involved with a complex series of high-tech, music and dance spectaculars can be upwards of 50 -100 people, not all of them American.

Renowned performers and artists can qualify for the O-1 visa ("extraordinary ability in the sciences, arts, education, business, or athletics) to enter the USA. However, when something catastrophic happens -- like the death of a performer -- the performance or concert on which the O-1 visa is based is cancelled, the performer or artist risks falling out of legal immigration status.

For individuals who have visas which are predicated on a set of facts -- an individual employer, a detailed job description, a specific person, a particular school or academic program, etc., -- it is vital to consult a knowledgeable immigration attorney if there has been any substantial change, in order to preserve visa status. --jcf

With the passing of Farrah Fawcett and Michael Jackson yesterday, the news about the "launch" of the immigration reform policy discussion passed under the radar for most people. As immigration attorneys in Los Angeles, the Law Offices of J Craig Fong advocates for a comprehensive overhaul of the immigration system in the USA.

The President, Vice President, and pivotal cabinet members met with members of Congress from both parties to discuss the timing for and shape of a Comprehensive Immigration Reform (CIR) bill expected to be introduced before the end of 2009.

Department of Homeland Security Secretary Janet Napolitano will be in charge of evaluating the proposed bill.

There has also been speculation that because of the difficulty that the administration is having passing health care reform, serious discussion of CIR will be delayed until early 2010. Whether Congress gets to CIR this year or not, it is now time to contact officials to let them know you support CIR. Most especially, people should demand change that will:

- Allow gay and lesbian Americans to petition permanent resident status for their permanent domestic partners. This provision is known as the Uniting American Families Act (UAFA).

- Allow some undocumented students who graduate from American high schools, have good moral character, came the USA as children, and have been in the country continuously for at least five years to obtain legal permanent resident status. This provision is known as the Dream Act.

- Make provisions so that American businesses can obtain visas for talented foreign workers who can make US business more vibrant, competitive, and creative.

- Reduce the waiting time of families who have petitioned to bring loved ones to the USA. From certain countries, the wait time can be as long as 20 years.

The Law Offices of J Craig Fong supports the Obama administration's efforts to reform and streamline the immigration process. --jcf

3pm, June 25, 2009 - I'm sitting in a legal practice seminar when across the table, an attorney whispers, "Michael Jackson just died." Thanks to Twitter, instant messaging, texting, iPhones, PDAs, we got the news as it broke. We had also lost Farrah Fawcett earlier the same day, and Ed McMahon less than 48 hours before. It is a somber reminder - we are all mortal. Michael Jackson has been compared to this generation's Elvis. Now the culturally significant question might now be: "where were you when the King of Pop died?"

I was attending a seminar on how to run a more efficient law office by automating the legal process to reduce attorney time spent on each case. While this might be okay for other law offices, it wouldn't serve the mission of an immigration law office like Law Offices of J Craig Fong where we work with clients who have such different and highly individualized immigration problems. Sure, maybe this method could work for some clients who have simpler, more straightforward cases but not for those who have very complex problems. I do agree that technology should help attorneys work more efficiently, but technology can't replace the one-on-one time that an attorney needs to spend with a client, time spent listening. I couldn't delegate that task to a computer - no way. My job is to help people achieve their immigration plans, their dreams. And doing so means you have to work closely with clients. The seminar became really irrelevant to me right then and there.

But what is relevant to me on the day Michael Jackson died, is that today, President Obama conducted the first of what will be many, many meetings beginning the long-awaited immigration reform debate. The New York Times ran a good article yesterday on how the political stage is set for this discussion. But it's also important to ask ourselves, what we think immigration reform should to look like. Could we ourselves, have misperceptions about immigration or immigrants that we need to examine or change? Immigration reform is going to take place on the political stage, but conversations in all our communities need to take place, too. And it starts with ourselves, whether we are using myths to make judgments on immigrants or actual facts. --ecf

I'm starting with the man in the mirror
I'm asking him to change his ways
And no message could have been any clearer
If you wanna make the world a better place
Take a look at yourself and then make that change
~ Michael Jackson

Those who are patiently awaiting their EB-3 and EB-2 petitions to become current probably check the Department of State's website every month for the newest visa bulletin. Many of you have probably been in the processing queue for several years, are on AC-21 extensions of your H-1B, or are relying on your work permits (EADs), and EAD renewals year after to year so you can keep working legally while you await your "greencard." Some of you are facing situations where your children face "age out" issues and even more of you are awaiting permanent residency so you can then travel legally to visit relatives in your home country. Some may waiting abroad. Nonetheless, you are all waiting and waiting...

The July 2009 visa bulletin released by the US Department of State confirms what we already know - that waiting times are painfully long and slow. But an announcement by the US Department of State's Visa Office to the American Immigration Lawyers Association (AILA), confirms what we have dreaded along: that the situation is "dire" and will amount to extended delays beyond what you have already endured.

The Visa Office has already indicated that the worldwide cutoff date for EB-3 will be set on or around March 1, 2003. With any luck, we may see quick advances in that category near the beginning of 2010, but I'm not counting on it.

Based on current EB-3 demand, India's cut off date in October 2009 will be set at November 1, 2001 and China and Mexico only slightly better March 1, 2003 cut off dates. However, given how tough USCIS has been lately in adjudicating I-140s and even adjustment of status petitions, a lot can change between now and October 1, 2009. You should remember that these estimations from the Visa Office are just estimates.

From bad to worse: the EB-2 estimates for China and India. Come October 1, 2009, the Visa Office expects that the cut off dates for China and India will both be January 1, 2000.

EB-1 for China and India will probably experience a cut-off date in August, too.

As for religious workers who can now file concurrent I-360 and I-485 applications, you are forewarned as well. This year, the Department of State has announced that a surge of applications may also cause a cut off date before September. But since this category is still current, you should take advantage of it now!

This report underscores the need for immigration reform. Without legislative relief, these backlogs will just continue to grow. It's unrealistic to think that employers will continue to play this waiting game. The most talented of workers will be recruited by companies abroad. And if US employers have to, they will continue to outsource to the very professionals who could have generated significant revenue for our government if they were in the US paying state and federal income taxes. They could also be contributing to another program on the brink: social security. --ecf

Since April, I have been keeping track of the FY 2010 H-1B quota cap. I've posted each of the USCIS updates on the FY 2010 H-1B count and today's update confirms that the H-1B quota is still open. Many of us expected that as in years past, the H-1B quota would be reached on April 1, which the first date that H-1B petitions are received. If not the first day, then within the first week of April. And if not by then, certainly by the summer months. We were all wrong.

Perhaps it should not be much of a surprise that with unemployment rates at an all-time high, the often-coveted H-1B visa for professional, skilled workers is still available today. USCIS reported today that about 44,400 H-1B applications have been filed to date. And as I have been reporting, USCIS has and will continue to make allocations for accepting more than enough applications because the agency has repeatedly reminded the public that many H-1B petitions will be denied.

Today's H-1B update confirms just that: lots of denials.

As of May 29, 2009, the USCIS announced that they received 45,800 petitions against the regular cap, and that although they had received approximately 20,000 petitions for the advanced degree cap, they would still accept petitions for both caps.

Less than 2 weeks later, USCIS announces that they have 44,400 or 1,100 petitions less than on May 29, 2009. This is due to the large numbers of denials they have been issuing recently. Anyone with a pending application or one that has received a Request for Evidence will confirm that H-1Bs applications are being treated with higher scrutiny that in previous years. This is not necessarily fatal for those employers and applicants that have strong cases, but before you entertain the thought of filing and H-1B petition, you should seek advice on what to prepare in advance of an H-1B RFE. --ecf

In a groundbreaking order, a United States District Court ordered the USCIS to begin accepting concurrent filings of the Form I-360 (Petition for Special Immigrant) and Form I-485 (Application for Adjustment of Status) on behalf of religious workers.

For years, the USCIS has treated petitions for permanent residency by religious workers differently than all other categories of employment-sponsored immigrants. Asserting that religious workers and religious organizations are more prone to submit fraudulent petitions than in other employment -based cases, this USCIS rationale for refusing to accept concurrent filings was struck down in no uncertain terms. The Court cited that the preliminary injunction staying unlawful presence by religious workers was issued as a means of "avoiding or ameliorating the injuries that arose from enforcement of the invalid regulation."

This is a great step forward to religious workers who provide ministerial services and spiritual services to followers of all faiths through this great nation that has honored religious freedom from its inception. Rather than treat servants of faith differently, disparately, and with denigration, Judge Robert S. Lasnik of the Western District of Washington directed the USCIS to begin accepting concurrently filed I-360 and I-485 applications. The order also directed USCIS to accept I-485 applications from those applications with I-360s pending.

In a previous order by the Court, some religious workers who have fallen out of status waiting for final adjudications of long-pending I-360 petitions (some pending for years), may still file I-485 applications for adjustment of status, assuming that they are eligible for relief. If you are a religious worker with a pending I-360 or want to file a concurrent I-360 with adjustment of status, contact Law Offices of J Craig Fong for a free consultation. --ecf