January 20, 2011

What DOES the Computer Say?

QuestionMark.jpgAs an immigration law firm, Fong & Aquino in Los Angeles receives questions about "what does immigration know about me" or "what does the computer at the airport show."

As a matter of national security, this information is not officially made available; however, a recent discussion with a client has provided a few clues. A young, female client was entering the USA at an international airport, and the officers saw entries in the computer, and they knew:

* all of her entries to and exits from the USA,
* that she was a dual-citizen of a country in Europe and a country in South America,
* that she had used the South American passport before, and asked why she was using the European passport now,
* that she had a visa in the South American passport, and why she is not using that visa now,
* that the last time she came to America, she had a return ticket that she did not use, and why didn't she use it, and
* that when she was a student in America five years ago, she had a California driver license.

Immigration fraud is a serious matter, and the border guards have significant information about many people who enter the USA. --jcf

January 18, 2011

Starting a PERM Case?

I've been fielding a lot of calls for PERM lately. I'm not sure if it's related to the fact that indications for the private sector and employment numbers are on the rise or if it's the beginning of a new year and everyone wants to start their permanent residency applications, or just what.

Either way, I wanted to summarize just what it takes to start and submit a successful PERM application. PERM, which is the formal name for the Department of Labor's (DOL) foreign labor certification application, Form ETA 9089 - is a complicated process. Before an applicant even deals with the USCIS, an applicant's employer must conduct a formal recruitment campaign, setting out advertisements for the employment opportunity and only after weeks of advertising plus a 30-day quiet period, can a PERM application be submitted. A useful overview of the entire process can be found at our website: www.jfonglaw.com

In the meanwhile, a lot of things must be achieved during this time: DOL's independent verification of the company's existence, a prevailing wage determination also by DOL, and of course, meticulous documentation of the advertisings and recruitment results. If all goes well, a PERM applicant may see their application lodged with the DOL some 2-4 months after starting the process. Current processing times once a labor certification has been submitted are surprisingly short right now. Our office recently received a labor certification approval within 2.5 weeks of submission. And while I can't ensure that this trend continues, it is a welcome surprise. I will explain the second and third stages to a PERM application in the next blog, so please check back in a couple of days. ---ecf

January 6, 2011

H-1B 2011 Quota Count

Happy New Year, everyone! Although we were disappointed by the defeat with the DREAM Act, we are still here to update you on H-1B quota numbers as of December 31, 2010:

Advanced degree cap has received 20,000 applications.
Regular H-1B quota cases: approximately 57,800 have been receipted.

Advanced degree applicants who don't make the 20,000 cap will have their cases can still have their applications adjudicated as a regular H-1B cap case. If you would like a free consultation regarding a possible H-1B case, please give the attorneys at Fong & Aquino a call.

December 1, 2010

DREAM ACT in Congress Again!


Just last night, Majority Leader Reid (D-NV) filed a new version of the DREAM Act in an effort to get the 60 required votes to pass the Senate where a vote may occur as early as Monday.

This new version of the DREAM Act includes the following provisions:

  • Excludes from eligibility those with certain criminal convictions, such as for offenses punishable by a maximum term of more than 1 year (felony) or 3 misdemeanors
  • Requires all applicants to provide their biometric data to DHS, to submit to background checks and medical examination, and to register for military selective service
  • Requires applicants to pay all taxes
  • Sets the cut-off age to those who are less than 30 years-old on the date of enactment
  • Provides a "safe harbor" from removal only to those applicants who present a prima facie case of eligibility
  • Extends the good moral character requirement back to the date the alien entered the United States rather than the date of enactment of DREAM
  • Expands the applicable grounds of inadmissibility to include the health-related, public charge, smuggling, draft dodging, and unlawful voting grounds
  • Expands the applicable grounds of deportability to include public charge, unlawful voting, and marriage fraud grounds
  • Excludes those who participated in persecution
  • Clarifies that no one can apply before 1 year after enactment
  • Requires applicants to demonstrate eligibility by a preponderance of the evidence
  • Eliminates repeal of the in-state tuition ban
  • Defines institution of higher education to include only U.S.-based programs
  • Requires those who subsequently apply for adjustment to meet the English language and civics requirements typically required for naturalization
  • Expands the circumstances where disclosure of confidential information about DREAM applicants is required for homeland security or national security purposes
  • Creates conditional nonimmigrant status for 10 years, followed by 3 years of LPR status prior to application for naturalization

The attorneys at Fong & Aquino urge you to to show support for the DREAM Act by calling your member of Congress today. ---ecf

November 30, 2010

H-1B Quota - Numbers are Still Moving Upwards

Fiscal year 2011 has been a relatively slow year for H-1B usage. Whether it's the economy or increased scrutiny of H-1B petitions or increased H-1B filing fees, I thought you might want to know that the quota is still open.

As of November 22, USCIS informed the public that approximately 48,977 cases have been counted against the general quota and approximately 17,836 cases have been counted against the advanced degree quota.

If you would like help in submitting a successful H-1B case, call the attorneys at Fong & Aquino for a free H-1B consultation. ---ecf

November 16, 2010

Reminder: USCIS fees increase on 23 November 2010

B&W $.jpgPlease remember that fees for most filings with US Citizenship and Immigration Services (USCIS) will increase on 23 November 2010. Applications submitted with incorrect fees will be rejected, and such a rejection could result in the applicant falling out of status in the USA, so it's important to be sure to file with the correct fee.

The USCIS statement about the increased fees, and the list of the increased fees, can be found here. --jcf

October 29, 2010

PERM Approvals on the Decline

The US Department of Labor recently published a report on the Foreign Labor Certification program, commonly called "PERM."

According to the report, PERM approvals and applications as a whole have been declining since 2007. In fiscal year 2008, there was a 42 percent decrease from fiscal year 2007 in cases certified. In fiscal year 2009, there were 29,502 cases certified representing a 40 percent decrease from the number of cases certified in 2008.

There are currently more than 104,000 cases pending with the US Dept. of Labor. More than 64,000 of those cases were made just last year, meaning that many of these newer cases are creating a new "backlog" of cases waiting to be adjudicated. The US Dept. of Labor also admitted that the "limited number of Federal staff available to make final adjudicatory decisions adversely impacted quarterly production the result of which was a growing "backlog" during FY 2009."

It's more important ever to ensure that your PERM case is filed as soon as possible, but not without compromising the care that should be taken on each case to research options, job descriptions, salary provisions, etc. Each area of review on a PERM case may be a basis for an audit, which will delay a labor certification by at least a year and if it is denied, then you've also lost at least a year of time while exhausting the maximum time you can spend on H-1B status. While some audits cannot be avoided, if you are interested in consulting with an attorney regarding your potential PERM application, call the attorneys at Fong & Aquino. --ecf

October 28, 2010

H-1B Quota Update: October 28, 2010

New numbers from USCIS on the H-1B quota:

Out of 65,000 that USCIS may approve, CIS has received 44,300 cases. This is an increase of about 2,400 since the last announcement about a week ago.

As far as US advanced degree cases, where beneficiaries have received a US Master's or high degree, CIS announced that they have received 16,200 cases. This is an increase of about 800 cases since the last announcement.

If you are interested in filing an H-1B case before the quota is filled, please call (323) 769-8187 and ask for a free consultation with one of the attorneys at Fong & Aquino. ---ecf

October 21, 2010

Puerto Rico Birth Certificates No Longer Valid for US Immigration

puerto-rico-flag.gifAll birth certificates issued by the Commonwealth of Puerto Rico prior to 1 July 2010 have been made invalid. Persons born in Puerto Rico are US citizens, and the attorneys at Fong & Aquino are seeing more and more Puerto Ricans in Los Angeles and Palm Springs who wish to petition relatives.

The Vital Statistics and Records Office of the Commonwealth is now issuing new, more secure birth documents. On 30 September 2010, US Citizenship and Immigration Services stopped accepting Puerto Rican birth certificates issued before 1 July 2010. A birth certificate is necessary for immigration purposes to establish that the petitioner or applicant is a US citizen.

Natives of Puerto Rico may request a new birth certificate on line or through the mail. --jcf

October 13, 2010

H-1B Quota Update - October 8, 2010

This just in:

Regular cap count is at approximately 41, 900 and the advanced degree cap has reached approximately 15,400.

Looks like the advanced degree cap is soon to close, but perhaps the regular cap will still be available until the end of the year as it was last year. Time will tell... --ecf

October 7, 2010

H-1B Denial? H-1B Quota - Still Open, How About Re-filing?

Now is that unfortunate time of year where the attorneys at Fong & Aquino start receiving phone calls from H-1B applicants who have received denials of their H-1B petitions. If someone has a denied H-1B, re-filing may be an option, but a previous denial definitely presents some challenges since any applicant must reveal previous denials in subsequent applicants. As I blogged about last year, there are many reasons that USCIS can find to justify a denial, however, many of the H-1B denials that I review could have been prevented if employers and applicants had a better understanding of what makes a successful H-1B case.

H-1B is a program for professional workers, and USCIS takes a very common sense approach to determining whether a job is considered a specialty occupation. First the USCIS reviews whether the nature of the job duties would normally require at least a Bachelor's degree level of training or knowledge, and secondly, whether requiring a Bachelor's degree for such position is normal to the that particular industry. Finally, USCIS will consider whether the applicant's major of study is actually applicable to the job at hand. Beyond this, USCIS relies on caselaw, statutory definitions and guidance from the US Department of Labor to determine whether your case is really H-1B caliber or not. And if so, USCIS will also make a determination whether there is a real job offer in hand and whether an applicant is qualified for such position.

At Fong & Aquino, we don't use cookie-cutter solutions in helping H-1B employers submit their applications to USCIS. We use a individualized and highly tailored approach to understanding the job offer, the company, and the applicant's qualifications. If you are interested in a free consultation, contact us today. ---ecf

October 5, 2010

USCIS Fees to Increase on 23 November 2010

Dollar Funnel.jpgThe US Citizenship and Immigration Services (USCIS) has announced changes in their filing fees, effective 23 November 2010.

The immigration lawyers at Fong & Aquino are dismayed that the cost of immigration benefits is rising the way the costs of making Hollywood movies is going up here in Los Angeles. Many clients can scarcely afford to pay the fees already being levied. One consolation is that USCIS has decreased some fees, even as it has increased others. In addition, USCIS has expanded the situations for which a fee waiver can be requested.

Some examples:

I-90 App to Replace Green Card: now $290, increases to $365
I-129F Petition for Alien Fiancé(e): now $455, decreases to $340
I-130 Petition for Alien Relative: now $355, increases to $420
I-140 Petition for Alien Worker: now $475, increases to $580
I-485 Application for Registry or Adjust Status: now $930, increases to $985
I-601 Application for Waiver: now $545, increases to $585
I-751 Petition to Remove Conditions on Residence: now $465, increases to $505
N-400 Application for Naturalization: now $595 -- no change
N-600 Application for Citizenship Certificate: now $460, increases to $600
Biometrics: now $80, increases to $85

The full list of fee changes is available from USCIS here. --jcf

October 2, 2010

Comprehensive Immigration Reform Bill Introduced

Everyone's been talking about immigration reform, what would it look like, when will it happen. Just this week, Senators Menendez and Leahy introduced the Comprehensive Immigration Reform (CIR) Act of 2010 in Congress. Here are some key provisions of what is proposed in the bill:

  • Increased Border Enforcement including the hiring of 1,000 new ICE investigators each fiscal year, 250 new CBP officers at new ports of entry, and $300 million towards infrastructure improvements along the Northern and Southern borders

  • Increased Interior Enforcement aimed at the prevention of unauthorized entries and removal with fines and criminal penalties for reentry of previously removed aliens

  • Worksite Enforcement creating a mandatory employment verification system within 5 years and within 2 years, the creation of fraud-resistant, tamper resistant, and wear-resistant social security cards

  • Reform of America's Overall Immigration System establishing a new worker program through a standing commission on immigration, labor markets and the national interest and for family immigration reform aimed at reducing backlogs and fully incorporating the United American Families Act for equal treatment for permanent partners

  • Legalization of Undocumented Individuals: creating a provisional legal status for those present in the US as of September 30, 2010 , who have never committed a crime and are otherwise admissible to the United States

  • This version of CIR has yet to be debated in Congress. Check back soon for developments on CIR 2010. --ecf

    September 22, 2010

    Paris Hilton Barred from Japan for Drug Offense

    Hotel.jpegParis Hilton -- heiress, bon-vivant, and media magnet -- was denied entry to Japan today due to her recent conviction for possession of cocaine in Las Vegas, Nevada. The immigration lawyers here at Fong & Aquino in the Hollywood area of Los Angeles often hear from immigrants and visitors who want to come to the USA after having been convicted under, or having admitted to having committed a violation of, any law or regulation relating to a controlled substance.

    Although Japan's immigration exclusion for drug offenders is strict, the US has similar restrictions, and any alien who has committed an offense more serious than possession of ≤ 30 grams of marijuana should NOT expect an easy time of getting into the USA. A waiver is available for very, very limited cases. We cannot be very encouraging to ANYone who has a prior drug conviction or admission.

    Those who have been "cautioned" for marijuana possession in certain countries such as the UK and Australia should know that such "cautions" typically include the perpetrator's admission of the underlying facts of the incident (e.g., the possession). Therefore, the perpetrator has admitted to having committed the violation, even if there was never a trial, a conviction, or other citation. --jcf

    September 16, 2010

    September 2010 Update on H-1B Quota

    Still not too late to apply for an H-1B. New quota figures as of September 10, 2010:

    Out of the 65,000 cases that can be approved for H-1B this year, 37,400 cases have been receipted by USCIS for the regular Bachelor's degree H-1B quota. This is up from 36,600 cases which were received since September 3, 2010.

    Approximately 13,700 cases have been receipted by USCIS for the advanced degree H-1B quota, a slight increase of about 300 cases filed since September 3, 2010 when approximately 13,400 cases had been received.

    October 1, 2010 is around the corner. People with newly approved H-1Bs will soon be able to begin employment. First time applicants can still continue to submit applications for H-1B status until the entire H-1B quota is exhausted. I'll keep you updated on the cap count, so check back soon. ---ecf