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

April 6, 2009

USCIS and Electronic checks (e-checks) Don't Mix Well

As experienced immigration lawyers in Los Angeles, Fong & Chun recommend that applicants use credit cards, personal checks, money orders to pay when e-filing immigration-related applications, but NOT electronic checks or "e-checks."

US Immigration & Immigration Services (USCIS) gives applicants the option of e-filing certain applications.  The methods of payment include an "e-check."  Some may have had successful experiences, but if you are going to e-file, we recommend using your credit card.  We have had recent reports where the e-check did not go through, or where USCIS said that the "check" was returned for insufficient funds even where there was more than enough money to cover the check, and where USCIS referred the matter to collection.  It took weeks to sort out the USCIS error.  Often the applicant ends up paying twice!

Until USCIS' e-filing system is more reliable, and until the system allows for fairer resolution of difficulties, we recommend using paper applications and paying by personal check or money order.  Of course, you should always send all paperwork to USCIS via Certified Mail - Return Receipt Requested.  This way, you can check the progress of your filing and the cashing of your check.

If you have questions, please contact us.  --jcf

March 24, 2009

H-1B Lottery: Random Selection Process Anticipated for H-1B Quota

The US Citizenship and Immigration Service (USCIS) published a confirmation of how the H-1B lottery will be conducted this year.  It is anticipated that the quota will fill up in the first few days after the initial filing date of April 1, 2009.  CIS has confirmed that if the agency receives enough cases to fill the cap within the first 5 business days in April, then the "lottery" will based on all applications that were received between April 1 through April 7.

CIS has also indicated that those cases selected in the lottery will have the same receipt date.  This means that there should be no difference in how your H-1B case will be considered as long as your case is submitted on or before April 7, 2009.  

If the CIS receives an insufficient number of H-1B applications within the first 5 business days of April, CIS will continue to accept petitions until the day which the agency determines that enough applications ahve finally been received.  If that is the case, then CIS will conduct a lottery for those cases that are received on the last receipt date.  

It is certainly going to be interesting to find out when the quota will be filled this year.  Many are making predictions that the cap will be reached on April 1.  I'm going to be silent on the issue but let's not take chances.  Get your application in by April 7 if at all possible!
--ecf
March 20, 2009

NON-MINISTER RELIGIOUS WORKERS SUNSET EXTENDED

President Obama has signed the extension of the Religious Workers program allowing non-ministers to submit applications for permanent residency.  Commonly known as the "religious workers sunset," the provision allows non-ministerial religious workers such as nuns, brothers, cantors, religious school teachers to apply for permanent residency.  The extension is set to sunset again on September 29, 2009.

The non-minister category is a different category than the one providing for the immigration of ordained minsters and requires extensions of its validity every two years.  For the past year however, Congress has extended the program twice, each time for a period of 6 months.  In years past, extensions were granted for 2 years at a time.   

The Religious Worker Visa Program became law in 1990 and was originally enacted with a sunset provision, meaning that the non-minister category would und unless extended by Congress.  It has always enjoyed broad, bipartisan support and reauthorized many times since its the program began.


March 16, 2009

Lost Passport or Lost "Green" Card

Whether you are a US citizen, a US Legal Permanent Resident (LPR), or a foreign national visiting the USA, the immigration law office of Fong & Chun in Los Angeles recommends that anyone who loses a passport or an LPR card report that loss to local law enforcement.

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A lost US passport is serious business.  Report the loss or theft to local police and to the US Department of State immediately.  You should bring the report with you when you apply for your new passport.  Although getting a replacement from the US Department of State is a relatively simple matter, border guards will likely pull you aside the next couple of times you enter the USA at a Port of Entry (POE) to verify your identity.  They may also ask you about the circumstances under which you lost the passport.  Remember: the circumstances regarding the loss or theft of your passport will be in the computer at the checkpoint.

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A lost LPR card is almost as serious.  A replacement is possible.  US Department of Homeland Security (DHS) will charge you (at present writing) $355 to replace the card using Form I-90.  They will ask you about the circumstances under which the card was lost or stolen; they may also ask for a copy of the police report.  To process the replacement card, you will be sent an appointment for fingerprinting and identity verification.  Until you get the replacement card, travel and job seeking will be awkward.  After the I-90 is filed, use InfoPass to obtain a stamp in your passport to permit you to work and travel.

If you lose your foreign passport, you should report the loss to local police and also to your country's consulate or embassy.  Also, you should apply to the DHS for a replacement of your I-94 Arrival-Departure Control Card.

If you have questions, please contact us.  --jcf

March 9, 2009

ESTA Approval is No Guarantee of Entry to the USA

The immigration law office of Fong & Chun in Los Angeles receives many inquiries from travellers from Visa Waiver Program (VWP) countries about the Electronic System for Travel Authorization (ESTA) program.  The ESTA program is ONLY for citizens of countries who do NOT need actual visas to enter the USA.  If you are a citizen of another country, you should not register with ESTA.

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ESTA registration is for citizens of Visa Waiver countries who wish to enter the USA using the Visa Waiver.  If the traveller is using another visa, such as F-1, H-1b, L-1, E-2, or any other nonimmigrant visa, ESTA registration is not required.

ESTA was put into place to allow the US Department of Homeland Security (DHS) to pre-screen travellers coming to the USA who are citizens of countries who do not need visas to enter the USA: the so-called Visa Waiver Countries. The entire application process is conducted online and operated by DHS.

This pre-screening allows DHS to check to see if the traveller is on a security watchlist, has a criminal record, has a warrant for his/her arrest, or is the subject of some other concern.

An ESTA registration is NOT a visa or "electronic visa," NOT a guarantee that the traveler will be admitted upon arrival in the USA, and NOT an assurance that border guards will not hassle you at the immigration checkpoint. Remember: Even if your ESTA registration is "accepted" by the DHS computer, you have NO assurance of admission -- or even civil treatment at the border -- to the USA.

There are a number of for-profit websites who claim to be able to help you with an ESTA registration.  These sites imply that by using their services, you will somehow have an easier time of entering the USA.  This is NOT true.

If you have any ESTA questions, please contact us.  --jcf

February 28, 2009

Immigration Background Check Delays - New Policy Affecting I-485 and -601 Applications

US Citizenship and Immigration Service (USCIS) announced today background check policy update affecting adjustment of status and waivers of inadmissibility cases delayed by long-pending background checks.  While USCIS has not changed its national security requirements, they did modify their existing guidance for some procedures that will affect the detention and removal of people.   

USCIS reported that nearly 50,000 applications for permanent residence are approvable but just awaiting an FBI name check which has taken more than 180 days.  Applicants with long pending cases can contact the USCIS through the 1-800-customer service number (1-800-375-5283) or make an INFOPASS appointment to visit their local CIS office.  The USCIS press release states that they will begin prioritizing these long delayed cases, requesting additional definitive FBI fingerprint checks.  Applicants who are unable to go to an INFOPASS appointment may also hire an immigration visa attorney to conduct the status check for them.

For many people awaiting final adjudication of their petitions, expect that USCIS may contact you to request that your fingerprints be taken again at a local application support center.  Keep in mind that the Department of Homeland Security may initiate removal proceedings if negative information is received through an adverse background check.





February 27, 2009

US Military Will Allow Enlistment of Some Foreign Nationals

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Some Fong & Chun immigration law clients have asked about the possibility of serving in the US armed forces.  Attorneys at Fong & Chun contacted military recruiters in Los Angeles.

The US Department of Defense (DOD) began a pilot program in December 2008 to recruit up to 1,000 nonimmigrant aliens in the next 12 months.  DOD has taken this step to permit enlistment of certain people who have skills which are critical to the US.  The critical skills are within the medical field and foreign languages.

If you wish to enlist, you must be in one of the following categories: asylee, refugee, temporary protected status (TPS).  Also, E, F, H, I, J, K, L, M, O, P, Q, R, S, T, TC, TD, TN, U, or V nonimmigrants are eligible.  An eligible recruit: (a) must not have had any single absence from the US of more than 90 days during the two-year period preceding enlistment, (b) must have been in valid status in one of these categories for at least two years immediately prior to enlistment (but it does not have to be the same category for the entire period), and (c) in the medical category, the recruit must fill medical specialities where the armed forces have a shortfall, and (d) in the language category, the recruit must possess specific language and culture capabilities in a language critical to DOD.

Nonimmigrants who serve in the US military during a time of war are eligible for accelerated citizenship.

Please contact us if you have questions.  --jcf

December 29, 2008

H-1 or L-1 and Unemployed?

Five days before Christmas, the Los Angeles Times reported a loss of nearly 42,000 jobs in the month of November.  This raises the unemployment rate in California to a historic high of 8.4 percent.  

I am often asked whether workers on H-1B or L-1 status can be terminated even if their visas have not expired.  Others have asked me questions like how long can an H-1B employee stay in the US after being terminated, whether there is a grace period like 30 or 90 days.  The answer is simple and draconian: once the employer-employee relationship ends, so does the employee's immigration status.  In other words, when an employee no longer provides services as per the terms of their work petition, they are no longer allowed by the USCIS to stay in the US.

In practical terms, this does not mean that a worker who is laid-off or terminated employee packs their belongings, uproots their families and heads straight to the airport after they receive notice of their termination to return to their homelands.  However, each day that they stay beyond their last day of work is a day that would be considered unauthorized by the USCIS.  An unauthorized stay however, is different than time spent in unlawful presence, which is a legal term of art.  Obviously, neither unauthorized stay nor time spent in unlawful presence is something any worker wants to face, especially if one hopes to return to the US in the future to provide services to a new employer.  The consequences of any overstay can ruin your chances at immigrating to the U.S. in the future.  It can also affect your ability to visit or even work again on H-1B or any other status in the future.  

If you have been laid off or fired from your job, or if your company has announced imminent layoffs, you need to seek the counsel and advice of an immigration visa attorney who can help you understand your rights and obligations you face as a temporary foreign worker in the U.S. If you have the luxury of time, to look for another job before you are laid off, you also need to talk to an attorney who can give you the facts about how to change employers or "transfer" your H-1B to a new employer so that your risk even a day  of being out of status. 

December 2, 2008

Taiwan as Country of Nationality

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Immigration law firms like Fong & Chun, even though we're located in Los Angeles, often get embroiled in international politics. There has recently been controversy about whether US Citizenship & Immigration Services (USCIS) would put "TAIWAN" as the country of former citizenship on US Naturalization Certificates.

Because the US Government recognizes the government of the People's Republic of China to be the "government of all of China," including Taiwan, some CIS employees have unilaterally insisted on putting CHINA on the Naturalization Certificates of new citizens who emigrated to the USA from Taiwan.  This controversy has been resolved

Chapter 22 of the US Code, section 3303 provides that Taiwan is considered a SEPARATE country for purposes of US immigration law. As a result, this clarifies that the use of TAIWAN on Certificates of Naturalization or Citizenship is acceptable.

If you have questions, please contact us.  --jcf