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

April 17, 2009

Pending Cal. Initiative Strips Citizenship from Native-Born Americans

A Southern California politician and some anti-immigrant activists are seeking to put a measure on the California ballot that would deny a "regular" California birth certificate to children born in the USA, if the parents are unlawfully present in the country.  The initiative would also limit the public benefits such citizen-children could receive.  The immigration law firm of Fong & Chun opposes this initiative.

Not only does this cynical, divisive initiative cripple the State's ability to look after all the children who reside in California, but the change it proposes violates the US Constitution.  Do not let a radical right-wing measure create second-class citizens!

Please contact your friends and family and urge them to oppose this mean-spirited and unconstitutional measure.

April 16, 2009

TSA to Start "Secure Flight" Screening of Air Passengers

Many of Fong & Chun's immigration law clients travel frequently -- domestically and internationally.  Passengers, whether in Los Angeles or elsewhere, will begin to notice the "Secure Flight" screening.  Airlines will input traveler information so that the Transportation Security Administration (TSA) can screen each person.  Airlines will begin asking not only for name, but now also date of birth and gender.  TSA will match these names against the no-fly and other watch lists.

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TSA states that Secure Flight is intended to protect the secret watch list data and permit security agencies to address security threats earlier -- all of which is supposed to make air travel safer.  TSA claims that uing one watch list is supposed to make the screening and matching process fairer and more consistent across all airlines.

Using a single watch list also heightens the government's obligation to create and implement a fair, reviewable, "single portal" process for travelers wrongly placed on a watch list to seek redress.  TSA says that its Traveler Redress Inquiry Program (TRIP) will respond to anyone who feels s/he has been wrongly placed on a watch list.  Anyone who is having difficulty traveling because of an incorrect entry in the watch list should immediately seek to have the error corrected -- and complain directly to elected officials if TSA does not respond quickly and appropriately.  --jcf
April 15, 2009

Visiting Cuba

Flag Cuba.jpgThe Obama Administration announced a change in policy that will loosen US restrictions on Americans who wish to travel to Cuba.  The immigration law firm of Fong & Chun represents a number of Cubans and others in the Los Angeles area who have asked whether it is now possible to visit Cuba.

The announcement on 13 April 2009 states that the government will (a) lift restrictions regarding travel of family members to the island nation, (b) permit remittances to family members in Cuba, (c) relax restrictions for US telecom companies to establish facilities, permit roaming services, offer telecom services, and donate certain consumer telecom devices to Cuba.

Although the announced changes will permit a Cuban-American (and family members who share the American's home) to visit persons "within three degrees of family relationship," there has not yet been a blanket removal of the travel restrictions to Cuba for non-Cuban-Americans.  

It would seem that global warming is moving faster than the thaw in US-Cuba relations.  --jcf

April 14, 2009

I-539 Extension of Stay Applications: Common Errors

Something as innocent as obtaining a nonimmigrant extension of stay (EOS) can be fraught with difficulty.  As immigration lawyers here in Los Angeles, Fong & Chun sees many people who have filed the the I-539 EOS application themselves, and the application has been denied or rejected because the applicants did not provide the immigration authorities with appropriate information.  Always be sure:

1.  the name on the application matches the name on the passport,
2.  copies -- do NOT send USCIS originals, unless USCIS specifically requests them in a letter to you -- of the face-page, visa page, entry stamp, and the I-94 arrival document should be included,
3.  the applicant should write a clear, succinct explanation of the need for the extension; this statement should come from, and be signed by, the applicant -- not an attorney,
4.  include enough documentation to show that the applicant has the financial resources to stay in the USA and to return to the home country,
5.  student-related applications -- like F or M visas -- must be accompanied by I-20s signed by a Designated School Official; the original I-20 should be sent with the I-539, and
6.  we recommend AGAINST using an e-check to pay for the application.
As always, Fong & Chun recommends that you (a) keep a copy of EVERYthing that you send to immigration authorities, and (b) send everything by Certified Mail with Return Receipt Requested.  
Should you need assistance, please contact us. --jcf
April 10, 2009

Immigration Reform Debates on the Horizon - Announcement by White House

President Barack Obama campaigned on an platform for that included comprehensive immigration reform that would improve our immigration system and secure our borders.  President Obama is keeping that promise in a White House announcement yesterday that he will push for immigration reform.   

Among the topics for comprehensive immigration reform are:  

  • a pathway to legalization for certain undocumented aliens
  • a better and more continued infrastructure for professional and working immigrants 
  • continued prioritization of family reunification
  • continued funding and resources for fraud detection and prevention and enforcement of removable aliens, including criminal aliens.

Meaningful immigration reform will also mean that strict requirements must be met, such as proof that you have paid taxes in the past, that you have a clear criminal background, and that you can speak and read English.  Legalization applicants will probably also have to pay a penalty fine.  If you have questions about how immigration reform might affect you or if you have questions about someone you know who could be eligible, contact Fong & Chun, LLP for more information on our resources to keep you updated. --ecf

April 9, 2009

May Visa Bulletin: EB-2 Stays Current, EB-3 Now Unavailable (U)

The May Visa Bulletin shows that all employment-based third preference (EB-3) category visas are listed as "U," or "unavailable."  This means that the USCIS cannot issue any immigrant visas (greencards) to people who are being sponsored under the EB-3 category until next October, when the new fiscal year begins and when immigrant visa numbers are replenished.  This will affect hundreds of thousands of applicants who have been waiting for their greencard cases to become "current" for several years.  Some applicants have been waiting since 2001 and even longer!  What many applicants do not realize is that they could be eligible for an EB-2 or "second preference" category greencard if they meet certain requirements.  Most people who are eligible for the EB-2 category are people who hold a master's degree but some applicants who have more than 5 years of experience in their field may also qualify.

You should contact an immigration visa attorney if you believe you are eligible for an EB-2 category greencard application.  Experienced immigration attorneys who regularly represent employers in the labor certification process (PERM) can identify strong second preference greencard cases.  Although this is considered a more difficult case to present to the Department of Labor and to the USCIS, the benefits are immense.  Instead of waiting 7 or more years for a greencard through the EB-3 category, waiting times under the EB-2 category can be reduced to 2-3 years, possibly less if you use a competent immigration attorney.

I am most proud of a case involving a professional worker who had many years of experience in her field of work.  Even though she did not have a Master's degree, we decided to pursue a more difficult EB-2 PERM case because one of her children was turning 21 years old within the year.  If we chose the EB-3 route, this child would be considered "aged-out" upon her 21st birthday and that child would never derive a greencard from her mother's petition.  We decided to take a chance on the more difficult PERM case and earlier this year, the entire family (eldest child included) received their greencards thanks to our decision to file the EB-2 case and also because we benefitted from the Child Status Protection Act (CSPA) which can "freeze" a child's age for immigration purposes.

Some clients think that if they already have an EB-3 case pending, they cannot also file for an EB-2.  This is not true if certain requirements are met.  If you have a long-pending EB-3 case, check with an immigration attorney to see if you qualify for an EB-2 second preference application.  

--ecf

April 9, 2009

H-1B Visa Quota Not Reached

US Citizenship and Immigration Service (USCIS) announced the H-1B cap count today. More than 20,000 H-1B slots are still open in the regular H-1B quota.  There is still time to file an H-1B application!  For those holding a US Master's degree, USCIS announced receipt of approximately 20,000 advanced degree cases, but they will continue to accept more cases because many of the cases already received will not be approved. USCIS expects that many of the regular H-1B cases already filed will also be denied.  This says a lot about the chances for an H-1B approval even when an application is accepted without going through a lottery. 

We don't know how long it will take to reach the cap, so If you want to file an H-1B, hire an immigration visa attorney now.  I have seen many H-1B applicants file their own cases to save time or money.  There is nothing more heartbreaking than seeing someone who has "won" the H-1B lottery only to lose their case because it was badly prepared either by themselves, an immigration consultant, or by a lawyer who did not know how to submit an approvable H-1B case. 

In general, cases that are marginal will usually receive a Request for Evidence or "RFE" to give the applicant a chance to prove why their case should be approved.  If you receive an RFE on your case, you need hire a competent immigration visa attorney even if he or she did not prepare your original case.

When I am asked to respond to an RFE or "un-do" a mistake made on a poorly prepared application, I know I will need to put a lot of work into saving this person's case.  Oftentimes when responding to an RFE, it's more work than it would have been to submit it in the first place.  If you haven't filed your case yet, take advantage of an experienced H-1B attorney's ability to file your case with precision and without delay because your window of opportunity is still open...at least for now...

--ecf





April 8, 2009

Have you Received an H-1B Receipt Notice from Premium Processing yet?

Since the USCIS has received less than the maximum number of cases it can accept, employers and applicants who opted for premium processing to get an expedited response for H-1B status will begin receiving receipt notices dated April 7, 2009, which will be counted as the first day in the 15 day period.  

The USCIS did send out a few receipt notices dated last week.  It is confirmed that those receipt notices are invalid and issued as a mistake.  If you received a receipt notice dated before April 7, 2009, call an immigration attorney to make sure that your case receives a proper receipt notice.  Receipt notices that were issued by the USCIS by mistake will not be honored.   

Applicants whose H-1Bs are being premium processed will begin receiving notification of an approval or a Request for Evidence (RFE) in the next 15 calendar days.  RFEs mean that your case may not  be approvable and you'll need to prove to the USCIS that your case has merit.  It is very important for you to find an H-1B immigration visa attorney to respond to the RFE.  You will only have 30-84 days to respond.

--ecf

April 8, 2009

Same-sex Couples and Immigration Reform

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As the pioneering Los Angeles immigration law firm that has always welcomed inquiries and consultation from members of the gay, lesbian, bisexual, and transgender communities, Fong & Chun has been tracking the progress of Comprehensive Immigration Reform (CIR) in the US Congress.

The New York Times is reporting that the White House will begin pushing Comprehensive Immigration Reform soon.  The Uniting American Families Act (UAFA )must be included in the reform package.  

UAFA will permit US citizens to petition for and immigrate their same-sex partners, on an equal basis as traditional spouses.  

A comprehensive overhaul of the immigration system will be controversial.  There are possible provisions that will please some and displease others.  Reasonable minds can disagree about these provisions.  What is clear to me, however, is that CIR must include provisions for UAFA.

The one hope is that enough people contact their Senators and Representatives to encourage them to vote in favor of CIR, and especially for UAFA. Even if you believe your Senator or Representative is already "on board," write anyway.  There will be lots of radical right-wing pressure to jettison any benefit for same-sex couples, and your legislator will need the political cover to stand firm..

Also, you should write to your state legislators, too.  Why state legislators, when immigration is a Federal issue?  Because you should ask your state senator, state legislator, and governor to themselves contact Washington DC, to pressure the Congress to do the fair and equitable thing and support UAFA.

Most observers and other immigration attorneys here in Los Angeles believe that the issue will hit full force sometime in late summer, or early autumn.  The time to let your legislators know your sentiments is now.  Encourage your friends and family, all over the nation -- not just in Los Angeles -- to write to their senators and representatives! --jcf