July 1, 2009

Trying to Save the EB-5 Employment Creation Visa

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

July 1, 2009

Immigration Crackdown at Work Places

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

June 30, 2009

Delays in LPR Card Production

I-551.jpgThe 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

June 29, 2009

Update on Immigration Reform: 29 June 2009

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.

US Capitol.jpgSome 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. mainstreet.jpgLocal 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

June 27, 2009

Michael Jackson's Concerts in Britain

Microphone.jpgThe 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

June 26, 2009

Update on Immigration Reform: 26 June 2009

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

June 25, 2009

The Day Michael Jackson Died and Immigration Reform

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

June 14, 2009

July 2009 Visa Bulletin Reflects Grim News for Employment-Based Applications

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

June 12, 2009

H-1B Quota Filings Going Down; Cap Not Yet Reached; USCIS Issuing Denials

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

June 11, 2009

Religious Workers Order: Concurrent Filing to be Accepted by USCIS

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

June 8, 2009

Hearings on Uniting American Families Act (UAFA)

Thumbnail image for rainbow_flag.gif
On 3 June 2009, the US Senate Judiciary Committee held hearings on the Uniting American Families Act (UAFA).  UAFA would amend US immigration law to permit American citizens and Legal Permanent Residents to sponsor their same-sex partners as traditionally-married Americans can.  J Craig Fong, partner in the Los Angeles immigration law firm of Fong & Chun, has been an advocate for gay men and lesbians for over 20 years, advising and representing same-sex couples and other non-traditional families.

In one form or another, UAFA has been introduced in Congress each year since 2000.  If passed, UAFA would make available to same-sex partners the same immigration status enjoyed by spouses of US citizens and residents.  

Advocates have urged the Congress to pass UAFA, as a stand-alone bill or as part of a larger, Comprehensive Immigration Reform (CIR) package.  The Obama administration has indicated its willingness to now address immigration issues, and many believe that now may be the time.  The American Immigration Lawyers Association (AILA) has also indicated its support for UAFA.  

To help move UAFA through the Congress, please have your friends, family, pastors, ministers, rabbis from all states write to both US Senators and Representative.  Mailing addresses for Members of Congress can be found here.  It would also be helpful to encourage the mayor and city council of your town, your state legislator, and even your state's governor to write a letter or pass a resolution in support of UAFA -- and to send that letter or resolution to the Congress.

Some people have asked whether letters should be written to progressive Senators and Congresspersons too.  To that, I answer yes!  Remember, immigration and same-sex relationships are both hot potatoes.  Put them together, and even the most progressive Senator or Congressperson will need to have political support on this issue.  --jcf
June 4, 2009

Right to Effective Assistance of Counsel Restored

Since 1988, it has been accepted by immigration judges that individuals in removal proceedings (called "deportation" at that time) had the right to effective assistance of counsel.  The case that established this principle was Matter of Lozada, 19 I&N Dec. 637 (BIA, 1988). This precedent also allowed individuals who were prejudiced by the action or inactions of counsel to request that their cases be reopened or reconsidered.

In January 2009, then-Attorney General Mukasey in the latter days of the George W. Bush administration overruled (in part) this long-established precedent.  Mukasey intervened in a series of cases, denying the reopening of three individual cases.  This reversal of the right to effective assistance of counsel was accomplished under Matter of Compean, 24 I&N Dec. 710 (A.G., 2009).

On 3 June 2009, recognizing that Mukasey's decision did not result in a thorough consideration of rights and concerns involved, Attorney General Eric Holder re-established Matter of Lozada as good precedent, restoring a basic fairness accorded to individuals who are in immigration proceedings, and allowing reopening and reconsideration of cases where individuals have not had the benefit of effective counsel.  --jcf
May 28, 2009

Faint Fingerprints Can Lead to Airport and Immigration Delay

It's recently been reported that a cancer patient traveling to the USA was detained at a Port of Entry (POE) for over five hours because he had been taking a drug that caused his fingerprints to fade or become indistinct.  Clients of immigration law firm Fong & Chun in Los Angeles travel all the time, of course, and we have received anecdotal evidence for several years of individuals being detained, harassed, and even verbally abused by immigration authorities because their fingerprints have been difficult to detect.

The case reported in the Annals of Oncology recounts a 62-year old cancer survivor from Singapore had been taking the prescription medication capecitabine.  One of the side effects of the drug is a chronic inflammation of the palms and feet; an ancillary effect is that patient's fingerprints can become distorted or indistinct.  Because all foreigners are fingerprinted at POEs, and because the traveler's fingerprints were indistinct, border guards detained the man for five hours.  The fading or distortion of fingerprints can also occur when people work a great deal with their hands, regularly apply unusual friction to the fingers, or work with acidic chemicals which can erode the tissue.

Fong & Chun warns clients that immigration authorities at POEs and at Application Support Centers can be myopically devoted to getting fingerprints, even to the point of harassing, blaming, or verbally abusing the alien's whose fingerprints are indistinct.  --jcf
May 26, 2009

H-1B Cap is Still Open; New Quota Count from USCIS

According to USCIS today, the H-1B quota is still open.  On May 22, 2009 USCIS reported that 45,700 H-1B applications were received as of May 18, 2009.  We at Fong & Chun, LLP believe that USCIS will continue to accept at least 20,000 more applications since the USCIS must accept more than 65,000 petitions.  

In an earlier blog, I talked about why USCIS accepts more applications than there are H-1B openings.  It is simply because the USCIS will reject or deny many of those applications that submitted.  This makes it imperative that H-1B applicants submits more than just a skeletal or minimal application to the USCIS.  If you want to submit a successful and strong H-1B case, you need to make sure that your petition is well prepared, complete, and that you have chosen the best applicant for the position or if you are the applicant, you have chosen the best employer for your case.

When the H-1B season began in February and March, no one expected that the H-1B filing window would be open this late in the season.  Many have speculated that the dampened economy has resulted in fewer job offers.  Unemployment rates are also a factor.  Perhaps less applications were made this year because USCIS has been cracking down on "fraudulent" visa applications, or it's because deportation enforcement is at an all-time high.   Regardless, what we know to be true is this: only 45,700 applications have been received this year.  

May 6, 2009

FBI Watchlist Slow to be Updated

The Associated Press reports that the FBI has been remiss in adding, removing, and updating the national terror suspect watchlist.  As immigration lawyers, Fong & Chun has clients both in Los Angeles and abroad who have had difficulty because the individuals were misidentified or because they requested to be removed from the watchlist and the removal did not occur in a timely fashion.  The inefficiency can damage national security, hinder much-needed commerce and tourism, and gravely damage an individual's ability freely to travel.

In 8% of cases, FBI failed to remove persons from and update the watchlist.  The AP also reports that in almost 75% of cases, the FBI did not do its job in a timely fashion.

In a blog entry in April we reported that the Transportation Safety Administration (TSA) would begin "Secure Flight" screening of air travelers.  We observed at that time that it would be mission critical for TSA to have a program to identify and quickly respond to anyone who has been wrongly placed on the watchlist.  --jcf