July 28, 2010

Arizona Law, Ruling by Judge

Although the controversial Arizona immigration law will still go into effect tomorrow, portions of the law have been blocked by the Federal District Court Judge Susan Bolton. Judge Bolton has issued a preliminary injunction to "put on hold" the proposed part of the law that would require Arizona law enforcement to determine whether a person is here in the country legally or not. Mistaken arrests of US citizens have already been made since the law's proposal.

The Court ruled in favor of the preliminary injunction primarily on federal preemption grounds, as our nation's immigration law is a matter of federal jurisdiction. This means that immigration law is governed and enforced by the federal government, not by individual states in the union. It is expected that Arizona will appeal, allowing the Ninth Circuit to review the issue as the nation's debate over immigration continues to roar. --ecf

July 25, 2010

H-1B Quota Count: Update July 2010

Thanks to USCIS, we have four H-1B quota updates to report in the month of July 2010:

July 2, 2010: approximately 24,200 cap cases received; approximately 10,400 advanced degree cases received

July 9, 2010: approximately 24,800 cap cases received; approximately 10,600 advanced degree cases received

July 16, 2010: approximately 25,300 cap cases received; approximately 11,000 advanced degree cases received

July 23, 2010: approximately 26,000 cap cases received; approximately 11,300 advanced degree cases received

The numbers are creeping slowly upwards, but it looks like H-1B season may last the entire fiscal year. ---ecf

July 20, 2010

Re-entry Permit - Just What is Permitted?

The attorneys at Fong & Aquino are often asked whether using a re-entry permit "guarantees" re-entry to the US after a prolonged absence. A lot of people seem to think that there is some guarantee that using the re-entry permit will ensure their safe return to the US. In most cases, this is true, but it's important to remember that the Customs and Border Protection (CBP) can and now will often still interrogate returning permanent residents about their reasons for leaving the US for long periods of time, most especially, those trips outside the US that are more than 6 months.

Using a re-entry permit allows a permanent resident to ask for re-entry to the US, but it only ensures that the CBP cannot use the length of absence as the only reason for denying entry. If CBP finds that a person holding a re-entry permit may have been employed abroad, or took up formal residence abroad, CBP can refer an individual for removal proceedings or deferred inspection when CBP will conduct a more formal interview of the applicant for re-admission. This will give you, the applicant a chance to rebut any allegation that you have abandoned your US permanent residency. If you are facing an abandonment interview with CBP, you will have one chance to show that you are eligible to keep your status. Contact the attorneys at Fong & Aquino if you would like a free consultation regarding your case. ---ecf

July 15, 2010

H-1B Cap Count Update

As of July 9, 2010, approximately 24,800 H-1B petitions have been received. Our of the advanced degree cap, approximately 10,600 petitions have been receipted.

The numbers are very, very slowly creeping upwards. Naturally, the H-1B numbers are a sign of the slow economic times, and that the unemployment rate is still high. Anyhow looking to file an H-1B petition still has time on their side. ---ecf

June 14, 2010

Homeland Security Phases Out I-94W

I-94W.pngThe US Department of Homeland Security (DHS) has said that it will start phasing out use of the I-94W Arrival-Departure Card. Immigration lawyers at Fong & Aquino have been practicing law a very long time, and the I-94 is a venerable old immigration law fixture. It appears that DHS has decided to attune to the times, automating the gathering and review of biographic information about persons entering on the Visa Waiver program.

The Visa Waiver program allows nationals of certain countries to enter the USA without a visa, provided the entry is for touristic or non-employment business reasons. In the past, Visa Waiver entrants had to fill out the green I-94W card and present that card to a border guard at the Port of Entry (POE). Over a period of time, DHS will phase out the use of the I-94W, and a Visa Waiver entrant will simply show a passport at the POE, be photographed and fingerprinted, and then the passport will be franked (stamped). This new arrangement is similar to the pre-arrival gathering of information used by Australia's "electronic visa" system. --jcf

June 10, 2010

Sex / Gender Reassignment & Your US Passport

butterfly cocoon.jpgOn the occasion of Pride Month, the US Department of State has announced a change in policy regarding the way that sex and gender reassignment are noted on US passports. The immigration Fong & Aquino, long-time advocates for gay and lesbian immigrants, receive questions regularly about how gender is reflected on official documents.

Effective today, a US citizen applying for a US passport may present a letter from a physician that the applicant has had "appropriate clinical treatment for gender transition," and the new passport will be issued reflecting that new gender. A short-term passport can also be issued be those who are still transitioning.

If you have any questions about obtaining a US passport, please contact us. --jcf

June 8, 2010

Visa vs. I-94: What's the Difference?

"What's the difference between my visa and the I-94 landing card?"
"If my visitor visa is good for five years, why can't I stay in the USA for five years?"

The immigration lawyers at Fong & Aquino in Los Angeles get this type of question all the time. Let's see if we can't explain this.

US Visa.png This is basically what a US visa looks like. It has the bearer's photo, date of birth, nationality, passport number, and validity dates. It also has various codes that tell the border guard what kind of entry is needed, how many entries will be permitted, and so forth. The most important thing is this: a visa give the bearer the right -- during the validity period of the visa -- to approach the US border and request to be admitted in the category noted on the visa (student, diplomat, investor).

The visa does NOT guarantee admission. The visa does NOT dictate how long of a stay the border guard may grant to you. The visa does not even guarantee in which category (visitor, student, worker, company transferee, investor) the bearer will ultimately be admitted. None of this is dictated or guaranteed by the visa itself. The visa is permission to approach the border.

I-94.pdfThis is the I-94 Arrival-Departure Control Card. All aliens (except US legal permanet residents) are required to fill out the I-94 on the airplane prior to landing at the port of entry (POE). At the POE, the alien presents the I-94 together with passport and visa to the border guard. In most cases -- unless the border guard thinks you're not who you say you are, or that you've previously violated US immigration law, or that you are not qualified to be in the visa category listed on your visa -- the border guard will swipe your passport and visa into the computer, take your picture and fingerprint, and admit you to the USA in the category appropriate to your visa (E-1 trader, F-1 student, H-1b worker, L-1 company transferee, etc.).

At the POE, the border guard will stamp the passport, stamp the I-94, and endorse the I-94 for the visa category (B-2, F-1, H-4), and write in the expiration date of the authorized stay in the USA. The alien must either exit the USA or seek an appropriate extension of stay (EOS) or change of status (COS) prior to this expiration date.

The length of stay granted by the border guard is a function of (a) established policy, and (b) the whim of the officer. Most officers will grant the "normal" amount of time established for the type of visa. B visaholders typically get 6 months. E visaholders typically get two years -- regardless of when their visa expires. H visaholders are typically granted until the expiration of the underlying I-129 petition.

The date written or stamped onto the I-94 governs the alien's length of stay in the USA -- not the visa itself. --jcf

May 28, 2010

H-1B Quota Count: Advice for F-1 Students When OPT Expires

USCIS updated the H-1B quota numbers again last week. Approximately 19,600 applications have been been received for the regular cap and approximately 8,200 have been received for the "master's degree" or "advanced degree" cap.

The increase of 700 applications overall, in the past week shows that it's still anyone's game at this point. If you are a recent graduate and are hoping to find that job before your OPT expires, keep looking and keep in touch with Fong & Aquino. I have counseled many F-1 students here currently on OPT and they are awaiting job offers and we are ready to begin H-1B applications just as soon as the right job offer comes along...

It is anticipated that the H-1B season will last for months to come. Even if you are running out of OPT time and considering returning home, you should think about consulting with Fong & Aquino before you leave so that if and when a job offer can be made, you can be sure that you have counsel who knows you and your qualifications and is ready to work with your US employer. It's not at all uncommon that attorneys at Fong & Aquino represent clients who are outside of the US at the time of their application. If you are leaving the country to avoid unlawful presence, but to keep all your options open for returning with work status, you want an advocate on your side before you leave the country. ---ecf

May 22, 2010

H-1B Quota - Are You Sure Your Case Will be Successful?

As promised, here is yet another update on the H-1B quota. On May 14, 2010, USCIS confirmed that approximately 19,000 H-1B applications have been received, and that approximately 8,100 applications were received for the advanced degree quota.

If you were reading this blog on May 11, 2010, you would have seen that I reported USCIS' most recent count as of that date: 18,000 regular applications and 7,600 applications toward the advanced degree quota.

So the numbers are creeping upwards but if you look at how the numbers progressed last season, we may see these numbers go upwards and then back again. This is when denied H-1B cases are accounted for and subtracted from the total number of applications pending.

Many applicants, employers, and even attorneys have speculated that there seems to be an increase in denials in the last year. It may be akin to the official report that came out recently confirming that deportations have increased dramatically in the last year. It's no secret that enforcement of immigration laws is a priority and rightly so. However, when you've got a good H-1B case, you had better make sure that your attorney or advisor truly knows what they are doing with your case. USCIS' review of cases is becoming ever so thorough and applicants need to know that their case will survive the scrutiny.

If you are lucky enough to have a job offer, you must work with a qualified immigration attorney to make a successful application. If you have had an H-1B petition or visa denied and want an opinion as to an appeal or refiling your application, call Fong & Aquino. --ecf

May 18, 2010

Tam Ngoc Tram - The DREAM Act Loses an Advocate

For years now, Congress has debated whether to pass the DREAM Act. The DREAM Act would give a future to undocumented youth through a conditional path to citizenship and it would have legalized people like Tam Ngoc Tran who died earlier this week in a tragic car accident.

Tam was a native of Garden Grove, California, born in Germany to Vietnamese refugees. She was pursuing a doctorate at Brown University. She was a graduate of UCLA, and she was a tireless DREAM Act Advocate, having testified before Congress in favor of its passage.

Tam, herself was undocumented and found removable by an immigration judge who denied her and her family political asylum. On appeal, the Board of Immigration Appeals found that the family could not return to Vietnam because of fear of political persecution, so the US could not remove the family to Vietnam. Having been born in Germany, the government sought to remove her to her birthplace, yet Germany refused to grant her entry. Tam was stateless. The only home she knew was the United States.

This tragic accident took the life of another passenger, a fellow UCLA graduate and DREAM Act activist, Cinthya Felix. Fong & Aquino offers condolences to the families of both Tam and Cinthya. --ecf

May 14, 2010

"Green" Card Becomes Green Once More

I-551 card.pngThe day when you could become a US Legal Permanent Resident (LPR) simply by walking off of your boat has long passed. Since that time, paperwork or cards documenting an immigrant's status have taken various forms, the most well known being the "green card." The "green card" was a plastic laminated card issued by the US Immigration and Nationality Service (INS) so that immigrants could demonstrate that they were legally in the USA. Here in Los Angeles at Fong & Aquino, virtually everyone -- even the attorneys -- will at least some of the time call the Legal Permanent Resident card "the green card" It's simply a habit.

The card ceased to be green over 25 years ago.

This week, US Citizenship and Immigration Services (USCIS, the successor to the INS) announced that it has redesigned the LPR card. It will now have a multitude of security and safety features. The redesigned card has media which will store photo and biometrics of the cardholder; holographic images and laser-engraved fingerprints are supposed to make the card "nearly impossible to reproduce." The LPR card will now also, like US Passports, have a Radio Frequency Identification (RFID) chip, allowing the card to be read from a distance.

And the card will be green once more.

USCIS will begin issuing the new cards immediately. Holders of the older green card are NOT being required to obtain the new card at this time. --jcf

May 13, 2010

Legalizing Undocumented Workers is GOOD for US Budget

As the discussion of Comprehensive Immigration Reform moves forward, the immigration lawyers of Fong & Aquino in Los Angeles have heard and read accusations from some that the US cannot "afford" to have more immigrants, that the US has huge budget problems, and that we should look after Americans first.

At least one American political leader, Florida Governor Charlie Christ, has recognized that a fair, reasonable legalization program will allow millions of undocumented immigrants to get social security cards, pay

May 13, 2010

Federal Official Lies About Following Immigration Law

Pinocchio.jpgBorder guards are not known to be the friendliest people in Federal service. The immigration attorneys at Fong & Aquino in Los Angeles routinely hear stories of border guards shouting at aliens who are telling the truth, bluntly telling aliens, "you are lying to me," or asking in a hostile manner, "why are you lying to me?" The border guards do this, even when they do not really think someone is lying. They do it to destabilize or disturb the alien, to get the alien to make an error or say something wrong. Basically, it is a trap.

Recently, Alan Bersin, the commissioner of US Customs and Border Protection -- the head of all the border guards -- told Congress that he did not know he was required to fill out and keep Federal paperwork to verify that his household employees had the right to work in the USA.

Bersin is the head of US Customs and Border Protection.

Bersin is a former California Secretary of Education.

Bersin is a former US Attorney.

Bersin went to Harvard and Yale.

Bersin says he had no idea he had to follow the law?

Why is he lying to us?


May 11, 2010

H-1B Quota Update: May 11, 2010

Just today, USICS released information stating that about 18,000 H-1B applications were received. Also, USCIS has announced that 7,600 H-1B petitions were received for the advanced degree quota.

For those of you keeping track of the H-2B quota, about 65,307 of the 66,000 allocated for this fiscal year have been approved.

Looks like time is running thin for H-2B applicants but that H-1Bs are still available. Call or email us at Fong & Aquino if you are considering applications for H-2B or H-1B. --ecf

May 1, 2010

H-1B Quota 2010

The H-1B quota. "When will the quota close?" "How long do you think before the H-1B cap is reached?" These are the questions I've fielded for years while professional workers scrambled for jobs or while their employers are completing their forms. The USCIS has announced only receiving slightly more than 16,025 applications for the H-1B quota, which cannot exceed 65,000 approved H-1B petitions per year.

As for the US advanced degree H-1B quota, only 6,739 have been received by USCIS. There is a total of 20,000 additional H-1Bs allotted towards H-1B applicants who earned advanced degrees in the US.

The low rate of applications this year is clearly an indication of the poor job market but those who have specialized skills are still of benefit to US employers, who need more than ever, employees who can contribute their skills to build and create continued business in the US. Call Fong & Aquino if you are interested in the H-1B program. ---ecf