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.  

--ecf
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


May 5, 2009

H-1B Count - Update on the Numbers Available: May 4, 2009

US Citizenship and Immigration Services (USCIS) issued a press release on May 4, 2009 confirming that only 45,000 H-1B petitions have been received out of an allotted 65,000 available this Fiscal Year 2010 for people holding Bachelor's degrees.  USCIS also announced that they are still accepting applications to be counted toward the Advanced Degree (US Master's) cap. 

Many people were anticipating that the H-1B filing window would be closed within the first week after April 1, 2009.  Without a doubt, the decrease in H-1B applications we see today is due to the global economic crisis and high unemployment rates.

Years ago, the H-1B quota was rarely reached because the cap was 195,000 per fiscal year.   Applicants and their employers had the opportunity to file H-1B applications year-round.  Today's cap of 65,000 plus 20,000 advanced degree H-1Bs is less than half of what used to be allocated!

Yesterday's announcement confirms that applicants have a rare opportunity this year to pursue the option of an H-1B at a more comfortable pace.  I always advise employers to take enough time to understand the responsibilities of sponsoring an H-1B and also, employees should also take the time to search for the right job offer, one that fits their long term goals.  I often meet with clients before they have a final job offer in hand.  I also speak with business owners and company HR representatives to answer their questions about the H-1b process and what to anticipate.  These conversations do take time but luckily, this year, we seem to have time on our side.  ---ecf


 
May 4, 2009

Waiver Appointments at Ciudad Juarez, México

Fong & Chun has been informed that the US Consulate-General at Ciudad Juárez is modifying the way it processes waivers. Immigrant visa applicants who seek a waiver of a ground of inadmissibility at Ciudad Juárez, México should expect to wait at least two months for the waiver interview.   Our Los Angeles clientele includes many Méxican nationals, and those who to Mexico.jpgare applying for waivers will experience this delay and should plan accordingly.

Because applicants have flooded the Consulate with requests for waivers, and because many of those applicants do not even qualify for the waiver in the first place, the immigrant visa unit at the Consulate has been inundated.  The result has been (a) the imposition of a 48-hour waiting period before an applicant can even telephone to make a waiver interview appointment, and (b) a wait of at least two months for the appointment.

Applicants should make plans in advance, because unless an applicant has a valid visa, it is unlikely that an applicant can return to the USA prior to the waiver interview.  That means that applicants will need to anticipate an extended stay in México, until the waiver is granted.  Further, because of safety considerations, applicants may wish to pass that waiting time in a city other than Juárez.  If you have questions about how waivers work and whether you qualify, please feel free to contact us.  --jcf



May 1, 2009

Economic Downturn Causes Couples to Live in Different Cities

Fong & Chun is an immigration law firm with extensive experience with family-based petitions.  Although we are located in Los Angeles, we handle cases throughout the USA, and we have recently noticed that the economic slowdown being felt in the USA is causing some married couples to take jobs in different cities.

This situation is hard enough on families where everyone is a US citizen.  The effect on a couple which has pending marriage-based application for a legal permanent resident card -- the so-called "green card" -- can be horrendous.  In my experience, many immigration officers don't or won't understand that economic need, job opportunities, family issues, and other circumstances can cause a perfectly legitimate married couple to have to live apart for a time.

Couples with marriage-based immigration cases should take care to (a) document the circumstances of the separate residences, (b) include any employment contracts or offers, (c) continue to place both spouses names on documentation like bills, insurance policies, leases, etc., to demonstrate that the couple is living in marital union.

commuting.jpg
If you have a marriage-based immigration case, and you are living apart from your spouse or are "commuting" back and forth between two residences due to economic reasons, you should contact counsel experienced with family-based immigration matters.  --jcf

April 30, 2009

I-90 Filing Address has Changed

US Citizenship & Immigration Services (USCIS) has announced that all I-90 Applications to Replace Permanent Resident Card must be sent to an address in Phoenix, Arizona.   This change affects ANYone who is filing a paper I-90.  As immigration lawyers in Los Angeles, Fong & Chun often gets phone calls seeking help to follow up on lost or delayed applications, and despite the instructions that may appear on the I-90 instruction sheet, the new Phoenix addresses went into effect on 27 April 2009. If you do not use these new addresses for your I-90, the application (and fee) will likely be rejected, returned, or lost, and the issuance of your LPR card will be delayed.

Beginning on 27 April 2009, all I-90s must be sent to a lockbox facility:
USCIS
PO Box 21262
Phoenix, AZ 8f5036

USPS Express Mail and other couriers may use:
USCIS
Attn: I-90
1820 Skyharbor Circle S, Flr. 1
Phoenix, AZ 85034

--jcf


April 27, 2009

Swine Flu Outbreak: Plan for Caution and Delays at Ports-of-Entry

The outbreak of a potentially dangerous strain of influenza in Brazil, Canada, México, New Zealand, the United Kingdom, and elsewhere is causing many nations, including the USA, to implement public health precautions to limit further spread of the flu.  These precautions may cause delays at US ports-of-entry (POE).  The immigration attorneys at Fong & Chun have clients who travel frequently, and because of Southern California's proximity to México, and because the Los Angeles area is a major transportation hub, we are cautioning travellers to allot plenty of time to clear the immigration and customs hall at US airports.

Some places, like Hong Kong, have had experience with the prior outbreak of bird flu, so they are using more sophisticated measures to screen arriving passengers, including infrared scanners to identify persons with fever.  

Regarding US Public Health Service clearance, both airlines and US Customs & Border Protection will be on the lookout for individuals who are ill or who have fevers.  After you are admitted to the US, if you have recently visited one of the affected areas, and you find you have a fever or other flu-like symptoms, you should telephone your doctor.

If you have any questions about how this possible epidemic might affect your immigration case, or your ability to travel, please contact us.   --jcf
April 23, 2009

USCIS Confirms H-1B Cap Count, the Quota is Still Open for Regular and Advanced Degree Cases

The USCIS (CIS) confirmed that the H-1B quota remains open.  About a week ago, CIS issued an update on the count against the H-1B cap, stating that about 43,000 applications were received.  This week, CIS confirms that they have received only one-thousand more applications.  

For advanced degree applicants, there is still time to file an H-1B since the CIS will still accept cases even though they have already received 20,000 cases.  CIS accepts more cases than the quota cap because many cases will be rejected or denied.  So far, no lottery has been announced for either cap.

In the last several fiscal years, the CIS has had to use a lottery method to randomly choose cases for H-1B consideration.  Given the current economic climate with unemployment rates at historic highs, it's natural to see this year's quota remain open.  We won't know when the quota will get filled, but I have discussed the H-1B quota and the method that CIS will use to determine the last date that they will accept cases.  For those of you who are job seekers, you have just been given more time to find an employer!  Good luck!
--ecf
April 23, 2009

"Funny, you don't LOOK gay."

Because Fong & Chun sees many gay men and lesbians at our immigration law offices in Los Angeles, we get inquiries about asylum based on sexual orientation.  To get asylum, the applicant must demonstrate to a hearing officer or Immigration Judge (IJ) that s/he would suffer persecution if s/he returned to the home country.  The US Tenth Circuit Court of Appeals just issued a decision in the case of Razkane vs. Holder, No. 08-9519 (10th Cir., filed Apr. 21, 2009).

In this case, a man from Morocco had overstayed in the USA because he was afraid to return to  his home country because, as a gay man, he would be subjected to torture and other persecution. At the initial hearing, the IJ accepted the idea that a gay man might be persecuted in Morocco.  However, the IJ denied the request for asylum, because in the IJ's opinion Razkane's appearance did not have anything that would mark him as being gay, "[he] does not dress in an effeminate manner or affect any effeminate mannerisms."  In other words, the IJ didn't think Razkane looked gay enough!

The appellate court criticized the IJ, noting that this "style" of judging was "unhinged" from the need for substantial evidence and would result in terrible results.  The judges noted that stereotyping of this kind would not be entertained in a case regarding religion or race, and it will not now be tolerated in a case of a gay man seeking asylum!  --jcf


April 22, 2009

H-1B Cap: When is The Last Day to File? H-1B Lottery Clarification

Many people have been calling our office to ask "when is the last day I can file an H-1B?" The US Citizenship and Immigration Service (USCIS) has clarified how they will determine the "last receipt date" for an H-1B.  Initially, the USCIS stated that if a sufficient number of applications were received during the first 2 days of April, USCIS would conduct a random lottery of all H-1B applications filed in the first 5 business days of April, that critical date being April 7, 2009.  USCIS was to include all applications filed on or before April 7, 2009 in a random lottery selection process.

However, the USCIS did not receive enough cases to fill the regular H-1B quota by the end of the day on April 7.  Therefore H-1B applications are still acceptable until USCIS determines when will be the final date for filing applications.  This date is called the "last receipt date."  

USCIS does not announce the "last receipt date" in advance.  Instead, USCIS will announce the "last receipt date" after the date passes.  Then USCIS will conduct a random lottery of all those cases received on that date.  

To ensure your chances of having your H-1B application considered, you should file your H-1B case immediately.  If your case is received on the "last receipt date," your case will be entered into a lottery for random selection with all the other cases received on the same "last receipt date."  If your case has already been filed, congratulations.  Now all you have to do is make sure it gets approved.

If you have a last-minute H-1B application to file, hire an immigration visa attorney to help you submit immediately.  Each day counts.

April 22, 2009

Labor Certification (PERM) Processing Times

Everyone has noticed how painfully slow labor certification (PERM) cases have become.  What was normally about a 45- 60 day adjudication period has now stretched out to 7- 9 months, on average.  Last week, the Dept. of Labor (DOL) announced that as of mid-March, they were working on cases that were originally filed in July 2008, and these are cases that were not selected for an audit.

A grim confirmation for cases that in the audit queue:  DOL confirmed they are now working on initial filing dates from September  2007.  Finally, for cases awaiting a response on appeal:  the DOL is working on cases with a priority date of June 2007.    

Gone are the days of re-filing PERM cases within a few months in case of a denial.  If it is taking 9 months for an initial adjudication and another 12 months for DOL's response to an audit response, applicants and employers will end up waiting over 18 months to find out if their PERM case is successful or not.  If your PERM case is denied, you will not know until 18 months after your initial filing!  Employers will have to conduct new advertisng and recruitment which means yes, starting from scratch.

While applicants and their employers may have no control over how long it will take DOL to adjudicate a labor certification application, finding the right immigration visa attorney to help you submit your PERM case is entirely within your control and discretion.  Take the time to find a qualified immigration attorney to maximize your chances at getting your PERM case filed successfully the first time.
--ecf
 
April 22, 2009

HIV Declaration for B-1 + B-2 Visitor Visas Introduced by State Department

The nonimmigrant visa (B-1 / B-2) rules for HIV-positive people who want to visit the USA have been issued by the US Department of State (DOS).  Los Angeles-based immigration law firm Fong & Chun counsels and represents many HIV-positive persons, and unfortunately, the new nonimmigrant HIV Waiver Authorization puts HIV-positive people in a difficult position.

US immigration law denies entry to the USA to aliens who are HIV-positive.  For nonimmigrants who wish to come to the USA as business or touristic visitors, the procedure has been to apply for a waiver under Immigration and Nationality Act (INA) sec. 212(d)(3)(A)(i).  This waiver procedure is expensive, time-consuming, and exposes the applicant to possible arbitrary, capricious, or AIDS-phobic decisions of some adjudicating officers.

DOS has put into effect a procedure where the visa officer now has the authority to grant otherwise-visa-qualified HIV-positive applicants a B-1 / B-2 visitor visa, provided the alien signs a declaration (DS-5512) that:

(1) admits that s/he is HIV-positive; 

(2) s/he does not currently exhibit symptoms indicative of an "active, contagious" opportunistic infection; 

(3) s/he knows and has been counseled on the nature, severity, and communicability of the medical condition; 

(4) s/he is a minimal risk to public health to, and is unlikely to transmit HIV to any other person in, the United States; 

(5) s/he has an adequate supply of HIV meds for the anticipated stay and has sufficient assets, such as insurance that is accepted in the United States, to cover any medical care in the United States; 

(6) s/he will not create any cost to the United States, or a State or local government or agency, without prior written consent of the agency; 

(7) s/he is coming to visit the USA for touristic or business-visitor purposes only;

(8) that no single admission to the US will exceed thirty (30) days; 

(9) s/he is not subject to any other grounds of admissibility to the USA; 

(10) s/he admits and acknowledges that s/he cannot be admitted under the Visa Waiver Program (VWP); 

(11) s/he acknowledges that any failure to meet with ALL the conditions relating to the visa and to admission to the USA will make him/her ineligible for future authorization under this new provision; and 

(12) if s/he is admitted to the USA using this waiver procedure, s/he waives any chance to apply for an extension of stay, a change of status, or adjustment of status.  (An exception is made for applications for asylum.)

Although this procedure is more streamlined than the prior waiver, it puts the applicant in the position of signing a declaration -- admitting or acknowledging a great many facts -- which will stay on record with the US government.  The declaration includes statements which could subject the applicant to difficulties, even persecution, in his/her own country. 

Anyone thinking of signing the DS-5512 declaration to get a B-1 or B-2 visitor visa should consult experienced and HIV-sensitive counsel to discuss the ramifications.  --jcf

April 20, 2009

2009 Immigration Poverty Guidelines

Here at Fong & Chun, we handle many cases for which a "financial sponsor" must submit an I-134 or I-864 Affidavit of Support.  These "sponsors" must have resources and income sufficient to meet US government "poverty guidelines."

The US Department of Health and Human Services sets the poverty guidelines annually.  The poverty guidelines in effect for 2009 are set forth here.  All cases filed after 1 March 2009 are expected to meet the standard set in the new poverty guideline.  --jcf