March 5, 2010

USCIS (Again) Criticized for Arbitrary Requirements

The US Court of Appeals for the Ninth Circuit (for the western part of the USA) handed down a decision on 4 March 2010 that strongly criticizes -- and rules against -- US Citizenship and Immigration Services (USCIS) for arbitrarily imposing novel substantive or evidential requirements over and above those required by immigration regulations. The Law Offices of J Craig Fong immigration lawyers in Los Angeles have recently seen an increase in USCIS Requests for Evidence (RFEs) which ask for (a) documents which have already been submitted, (b) information which does not relate to the case at hand, and (c) proof which is not required or is irrelevant.

This case is a vindication of the rule of law, that USCIS cannot simply make up the rules as it goes along, lawlessly flying by the seat of its administrative pants. This case says that USCIS must follow the law and provide a reasonable and fair process. This case, called Kazarian v. USCIS, can be read here.

Does this mean that USCIS will now and forever cease and desist from arbitrary and capricious rulings, making up requirements outside the regulations, and creating their own rules? Of course not. It does mean that, at least here in the western region, attorneys have an additional legal precedent to correct future wrong-doing. --jcf

March 3, 2010

Job Creation - Opportunities for Foreign Investors

When the Senate advanced the job-creation bill last week, employers were given the signal that hiring tax incentives are on the horizon. Perhaps in a nod to the Administration's No. 1 priority of creating jobs for unemployed Americans, the USCIS has just announced a forum on the EB-5 immigrant investor program. In the last year, and as recently as December 2009, the USCIS issued updated guidance on I-526 and I-829 filings so that USCIS adjudications could make decisions with clarity and consistency, allowing investors to make job creation through the EB-5 program a reality soon as possible. These are all indications that this is the time for foreign investors to again bring private enterprise to our great nation.

The upcoming USCIS EB-5 forum is only open to attorneys representing these so-called "million dollar investors." The Law Offices of J Craig Fong attorneys will be in attendance and ready to present concerns facing our clients as well as potential issues for those investors considering the EB-5 program.

It is true that the EB-5 investors greencard process is often called "hypertechnical," and has in the past been plagued by administrative delay and inconsistent treatment. But I believe that the view of recent USCIS' actions, the agency is acknowledging just how critical the EB-5 investors program is to our nation's economic recovery. For each EB-5 investment, 10 full-time jobs must be created, and that means 10 more working Americans. Call Law Offices of J Craig Fong if you would like to discuss how you can start investing in America. ---ecf

February 27, 2010

Earthquake in Chile; Tsunami Threats Worldwide

Chile: an 8.8 magnitude earthquake hit Chile today. Lasting 90 seconds it was 500x more powerful than the one that shook Haiti. Tsunami warnings and alerts are now in place from South America to Asia and throughout the Pacific. Evacuations have already begun in Hawai'i. Law Offices of J Craig Fong sends a message of hope and support to our Chilean clients who may have relatives or loved ones in the country.

Like Haitians present in the United States after the devastating earthquake in their home country, Chileans in the United States may soon be eligible for "Temporary Protected Status" or "TPS" if Congress designates Chile as a country where nationals cannot return safely because of dire conditions impacting the country. Haiti was designated a TPS country on January 21, 2010, only nine days after the January 12 earthquake.

Travel back to Chile may be impossible for quite some time, however those who have H-1B1 or other temporary visas, and who want to travel to the country in the weeks to come should review the Department of State website for all warnings on travel conditions.

Please contact Law Offices of J Craig Fong if you are from Chile and your visa has expired or if you have other questions about possible TPS status. ---ecf

February 26, 2010

Adoptions of Orphans from Haiti

USCIS published guidance this week helping adoptive parents with pending adoptions of orphaned children from Haiti. To help families whose adoptions were not finalized before the earthquake, a separate category now allows for the parole of children into the United States even before the adoption is final.

For families who want to bring their children into the US before the adoption has been finalized, once here, adoptive parents will need to choose between adjusting their child's status as an orphan or as an adopted child. Few immigration attorneys have handled cases of orphaned children or adoptions made in the United States.

The attorneys at Law Offices of J Craig Fong have extensive experience in helping families to immigrate both orphaned children and children already present in the United States. If you would like a free consultation about the the options you may have for your family, call us for a free consultation. As we have in the aftermath of the 2004 Indian Ocean tsunami, Law Offices of J Craig Fong has encouraged clients to give to the relief efforts for Haiti in lieu of consultation fees. We thank those who have given to the Red Cross and to Doctors Without Borders. ---ecf

February 17, 2010

FY 2010 H-1B Season: Issues on the Horizon

The H-1B season begins on April 1, 2010. The attorneys at Law Offices of J Craig Fong have been fielding phone calls and queries about filing new H-1B petitions. With relatively new changes in place for processing labor condition applications (LCA) this new process has caused such delay that even the USCIS ombudsman has called for some leniency in accepting cases with no certified LCA.

Based on last H-1B season, employer's tax returns, payroll records and other indicators of viability are now highly scrutinized. Applicants should also be prepared for the USCIS to review all of their previous immigration history, and of course their qualifications for the job. If you have questions about the H-1B process and how you can best prepare your application, contact Law Offices of J Craig Fong. ---ecf

February 11, 2010

Immigration Reform Bill Introduced in Congress

As immigration attorneys with very strong roots in the immigrant communities of Los Angeles, the lawyers at the Law Offices of J Craig Fong stay current on legislative developments that could affect our clients and their families. On 15 December 2009, over ninety House Democrats unveiled a comprehensive immigration reform bill. The bill is called the Comprehensive Immigration Reform for America's Security and Prosperity Act of 2009 (CIR-ASAP).

President Obama has said there should be comprehensive immigration reform. The bill includes an "earned" legalization program. The program as currently proposed would allow undocumented people in the USA as of 15 December 2009 to apply for legalization. There would be special, more lenient rules for young persons. Many people want to call this an "amnesty," but it is important to see all the details about the program before getting too excited.

There are other provisions for "visa recapture" to reduce waiting times and backlogs. This bill would also put a new employment-eligibility-verification system into place. There would be harsh penalties for hiring unauthorized workers.

These proposed changes are very exciting; however, we must remember that this bill is only a PROPOSAL. It will have many reincarnations before a final bill passes, if a bill passes at all. The President has said he wants CIR on his desk by the end of 2010, but there are obviously many other things occupying the attention of Congress at this time. Stay tuned. --jcf

February 8, 2010

The USA is Bigger...

flag_CNMI.gifAll immigration law attorneys must deal with foreign countries, unique international legal issues, and some quaint interpretations of law. The lawyers at Los Angeles' Law Offices of J Craig Fong are no exception, and in fact, this recent change affects some of our clients who do business in or own businesses in the Commonwealth of the Northern Mariana Islands (CNMI).

On 28 November 2008, "the United States" as defined for purposes of the Immigration & Nationality Act (INA) just got bigger, with the addition of the Commonwealth of the Northern Mariana Islands. Although there are probably wrinkles I have not yet read in the treaty, this essentially puts the CNMI on the same footing as Puerto Rico. Here's the cute part:

Because the CNMI will become part of the "United States" as defined by §101(a)(38) of the INA, "residence or presence in the CNMI before 28 November 2009 shall NOT be considered residence or physical presence within the USA for INA purposes. Thus, on 29 November 2009, all persons physically present in the CNMI are considered "to be present in the United States without inspection, by operation of law."

Will these PWIs (present without inspection) be eligible to adjust status? Unclear? Are they working "abroad" for purposes of L visas? Yes, as it turns out. One thing is clear: Legal Permanent Residents (so-called "green" card holders) who wish to base a naturalization application based on physical presence in the CNMI will NOT be able to do so for pre-29 November 2009 periods of time. Isn't this esoterica fun? --jcf

February 5, 2010

Retina Scans Being Done at US Ports of Entry

We at the Law Offices of J Craig Fong in Los Angeles believe in keeping the USA safe; however, we are also aware that many security measures can be a burden. As immigration attorneys, we are alert to security mechanisms which may violate the civil rights of immigrants and visitors.

We have recently recently received a report -- which we have not yet been able to verify -- that the Philadelphia, Pennsylvania and Newark, New Jersey ports of entry are conducting retina scans on arriving non-Americans and non-Legal Permanent Residents. This is in addition to the fingerprints that are routinely taken from all US visitors.

There may be other ports of entry using the retina scan, and we would appreciate hearing from anyone who knows which other POEs are using such scans.

Although the retina scan is not intrusive and does not cause any discomfort, it is an additional level of identify verification being used by the Department of Homeland Security. Visitors should not be surprised if they are asked to permit a retina scan. --jcf

January 29, 2010

Changes to Vaccination Requirements for Immigrants

Immigrants are asked to take a medical exam before being granted legal permanent resident status in the USA. As part of this exam, immigrants are required to take various vaccinations. The immigration lawyers at the Law Offices of J Craig Fong in Los Angeles are often asked whether someone is required to take ALL the vaccinations.

Since November 2009, USCIS has delayed the processing of many "green" card applications, because new vaccinations criteria would become effective in December 2009. Beginning on 14 December 2009, the vaccinations for herpes zoster and human papilloma virus (HPV) were no longer required for immigration purposes.

After 14 December 2009, cases that have been held in abeyance should be processed. If your Adjustment of Status case was put "on hold" due to vaccination-related issues, the case should be revived now and processed. If you have not received a resolution of your vaccination-delayed Adjustment of Status by mid-February, you should contact an immigration attorney to do a follow up with USCIS. If you have questions about the vaccinations that you will be required to take, please contact us for a consultation. --jcf

January 26, 2010

DHS Roams Airport Terminals, Requests ID and Passports

PPT Control.pngWith all our experience counseling on immigration law questions, the attorneys at the Law Offices of J Craig Fong in Los Angeles do not regularly get the chance to see the day-in, day-out operations at airports and other ports of entry.

Whether it is Department of Homeland Security (DHS) policy or not, I do not know, but last week, I noticed DHS personnel roaming through the terminals at Dulles International Airport in Washington, DC. They actually went to various gates and randomly requested ID or passports from OUTBOUND passengers seated in the boarding areas.

That is, they checked the documents of both Americans and foreigners who were LEAVING the USA. Not entering.

I followed them around a little bit. The officers were friendly, civil. They approached passengers in the terminal, asked them their final destinations, and asked if they could see their passports. Interestingly, although I was standing right next to a bank of chairs in the boarding area, they did not ask me for my passport, nor did they ask anyone who was standing or walking through the terminal. They only approached persons seated in the departure gate area. I did not see them detain anyone.

I have often been asked whether DHS personnel made random checks of persons in airports. I used to say that "they could, but I've never seen it." Well, I have now. --jcf

December 20, 2009

HIV Ban Lifted

Beginning January 4, 2010, applicants for visas or greencards will no longer be considered inadmissible for being HIV positive. Early last month, the Health and Human Services Department (HHS) removed HIV (human immunodeficiency virus) from the definition of a "communicable disease of public health significance."

This marks a major success by immigration advocates like Law Offices of J Craig Fong and HIV/AIDS health advocates. J Craig Fong was cited in a recent Los Angeles Times article as one of the few immigration attorneys in the nation who work with HIV positive immigrants and who has been extremely successful in HIV waiver applications with the USCIS to overcome this ban.

Law Offices of J Craig Fong applauds the Centers for Disease Control, the HHS, and USCIS in recognizing that the ban against nonimmigrant visa and permanent residency applications by HIV positive individuals was wrong. --ecf

December 18, 2009

Jon and Kate Divorce is Final but What if...

Jon and Kate Plus 8, the once-popular TLC reality program about the Gosselin family, their twins and their sextuplets is kaput. But that's old news. Today, the Gosselins officially closed the chapter on their 10 year marriage with the announcement their divorce becoming final.

Divorce is always difficult. Kate says she looks forward to her future. No word from Jon...yet. For the Gosselins, they can and should move on.

But what if Jon or Kate were immigrants? What if Jon or Kate faced deportation because their marriage failed? If Jon or Kate had been granted a greencard based on their marriage, what would happen to them once their marriage ended?

This is an immigration concept called conditional residency. We represent many individuals who apply for permanent residency through their marriage to a US citizen. These are usually great cases because we are helping happy new couples stay together, and "move forward" in their lives. But what happens if the happy couple separates or divorces? In the worst scenario, USCIS will revoke or terminate the foreign spouse's conditional residency, leaving the spouse vulnerable to deportation proceedings, standing alone and at best, with competent immigration counsel at his/her side.

In revoking conditional residency and initiating deportation proceedings, USCIS looks into the nitty gritty details of what happened in that marriage, was the marriage entered into for the immigration benefit rather than purely for love? Who's fault was it that the marriage ended? And could you (the foreign national) prove it? Imagine the reality show going behind the scenes to investigate, whether it was Kate's nagging that led to the failure of the marriage, or whether Jon's alleged affairs were the actual cause of the breakup and divorce. And would you feel comfortable knowing that USCIS is your final arbiter? If you married, got conditional residency and are now in divorce proceedings or separated from your spouse, think about calling Law Offices of J Craig Fong for a free consultation. ---ecf

December 15, 2009

H-1B Quota: This is It.

No, not the Michael Jackson, This is It. This is it for FY 2009 H-1B season. USCIS states that as of December 15, approximately 64,200 cases have been filed. That leaves about 800 slots left for H-1B applicants and perhaps several hundred on top of that since USCIS will need to account for potential denials or revocations of previously filed H-1B applications.

Back on April 1, 2009, a lot of speculation was made about how fast or slowly the H-1B quota would fill. Predictions from one day to 6 months were made. But it looks a lot clearer now... by Christmas or maybe, by the New Year. There really is no way to tell. Practitioners who focus on H-1B work like me, know that odds look dim for someone seeking a new H-1B and who hasn't started the process yet. Issues of delayed LCAs (labor condition applications) and employer FEIN (federal employer ID numbers) are wreaking havoc on how quickly anyone can prepare a new application to get in on this year's quota.

If you have not been able to file an H-1B yet. Call us about planning your case for April 1, 2010. It's never too early, but it can be too late. ---ecf

November 9, 2009

H-1B Quota: Advanced Degree Cap is Full

The H-1B quota is slowing reaching its limit. The so-called advanced degree cap is now full and approximately 53,800 cases have been counted against the 65,000 allocated to the regular cap. USCIS has advised that those wishing to be counted against this year's cap should submit their applications as soon as possible.

A lot has been said about how much longer the H-1B quota has lasted this year. There's a been a lot of speculation about the reasons why the quota is still open. It's pretty obvious that the economic situation has led to a reduced number of filings, but less people talk about the other reason. USCIS is generally pretty skeptical about the H-1B program, believing that many candidates for H-1B are filing marginal cases. This has increased the number of requests for evidence that USCIS has issued this season as well.

While the open cap provides an opportunity for a late-season submission, H-1B applicants and their employers should be well aware of the scrutiny they may have to endure. Working with advocates like the attorneys at Law Offices of J Craig Fong will ensure that you have a candid opinion before you make the decision to file an H-1B and how you can make a difference in your chances by simply being educated about the H-1B process.

Anyone wishing to file an H-1B case should call the attorneys at Law Offices of J Craig Fong for a free consultation and realistic assessment of their case. ---ecf

October 30, 2009

HIV Travel Ban to be Lifted

At a ceremony at the White House today, President Barack Obama announced the publication on Monday, 2 November 2009 of the final rule repealing the HIV immigration restriction. The immigration lawyers here at the Law Offices of J Craig Fong have worked here in Los Angeles and nationwide as part of the movement to have this onerous restriction on people with HIV/AIDS repealed. More details to follow, after we have seen and reviewed the "final rule." --jcf