February 7, 2012

H-4 Work Authorization and Other Reforms to Attract and Retain Highly Skilled Workers

Magnet with Key.jpg
Last week, Department of Homeland Security announced several proposed reforms to "attract and retain highly skilled workers." These reforms include employment authorization of certain H-4 spouses and other concrete incentives.

DHS released a press release describing these administrative reforms, which would impact the benefits and the adjudications process in several different ways, ultimately benefiting employers, universities, scholars and workers (and their spouses):

  • Allowing H-4 dependent spouses to apply for EADs (employment authorization documents) if the principal H-1B spouse has extended their period of stay under AC 21 Section 104(c) or 106(c)
  • Expanding STEM OPT extensions to F-1s whose underlying or previous degrees were STEM related, even if their current course of study is not a STEM major
  • Expansion of the list of eligible STEM majors
  • Allowing F-1 spouses to engage in part-time studies other than vocational or recreational classes
  • Giving universities and colleges more flexibility to increase the number of DSOs or Designated Student Officers at universities and colleges to meet both the administrative and guidance needs of incoming students
  • Increase the type of evidence that Outstanding Professors and Researchers can provide in order to establish eligibility to include "comparable evidence"
  • Allow for the 240-day continued employment authorization of E-3s and H-1B1s upon timely extension, which is already the case for H-1s and L-1s

    At present, the proposed reform to allow EADs for H-4 dependent spouses is in rulemaking, though at a very early stage. We should be prepared to hear updates on the process of each of these administrative reforms, though we have been notified that changes will take time. It is still encouraging in that we have some concrete information on how such reform will impact the highly skilled workers and their spouses who are waiting in the priority date queues or just beginning to prepare for H-1Bs, labor certifications, national interest waivers, extraordinary ability workers and outstanding researcher or professor petitions, etc.

    If you are interested in learning more about these administrative reforms, be sure to subscribe to our blog for updates. If you have a case that you'd like for us to assess, call the business immigration law attorneys at the Law Offices of J Craig Fong. ---ecf

  • February 6, 2012

    Circuit Court to Announce Prop. 8 Decision on Tuesday

    Thumbnail image for rainbow_flag.gifThe issue of same-sex marriage is an important issue. The immigration law offices of J Craig Fong gets questions all the time at our offices in Los Angeles and Palm Springs, and throughout the nation from US citizens who wish to immigrate a same-sex spouse. The Los Angeles Times is reporting that the US Court of Appeals for the Ninth Circuit in San Francisco, California will release its decision regarding the constitutionality of Marriage Equality and Proposition 8 on Tuesday, 7 February 2012 at 10:00 a.m. (PST).

    at the Law Offices of J Craig Fong, we are counseling our clients that whether the decision is a positive one or not, couples should not submit I-130 Family Petitions and I-485 Applications for Adjustment of Status based on a same-sex marriage without first consulting with an immigration attorney experienced in working with non-traditional families. --jcf

    January 24, 2012

    No Reliability from Republican Candidates on Immigration Reform

    Question Mark.jpgThe 2012 Republican presidential candidates have done nothing to speak clearly about immigration law and reform. Instead of speaking in clear, grown-up terms about immigration policy, they are using volatile language, demonizing immigrants. This does not advance any discussion; it is just pandering and solves nothing. This cheap talk from the Republican field is causing concern, dismay, and even panic for some of the clients of the Law Offices of J Craig Fong, in our offices in Los Angeles, Palm Springs, and elsewhere.

    In a recent article in the New York Times, candidate Mitt Romney has reportedly abandoned his usually anti-immigrant rhetoric. Why? Because he's campaigning in Florida, where over 22% of the population is of Hispanic origin! So, what is his true position? And can he be relied on to stick to it?

    Candidate Newt Gingrich is not much better, because although Gingrich has rightfully observed that the USA cannot simply deport all undocumented immigrants, he has proposed few concrete solutions.

    Both Romney and Gingrich have spoken in favor of one part of the so-called DREAM Act. The DREAM Act would allow young people who were brought to the USA, and who have gone to high school in the USA, to legalize their immigration status, PROVIDED (1) they perform military or other public service, or (2) they pursue post-high school education. Romney and Gingrich are saying that they would support part of the DREAM Act for those who would serve in the military -- but not for those who complete college. In other words, Romney and Gingrich would legalize those who would risk death in the name of the USA, but NOT for those who would go to college to improve the US workforce!

    As we move further into this election year, it is important to recognize that the Obama Administration has tried to get the cooperation of Congress on some types of immigration reform -- and Congress has refused. It is NOT a question of whether Obama should be doing more. It is MORE a question of whether Congress will cooperate on anything the Obama Administration would propose. And given that Congress cannot even agree on when to have LUNCH, I doubt they're going to agree on immigration reform.

    As the year wears on, we will try to discuss some possible immigration reforms -- reforms which will NOT create a new amnesty, NOT create a new program, but will create humane solutions. --jcf

    January 23, 2012

    Employment Based Visa Numbers the Outlook for Fiscal Year 2012

    2012 calendar.jpgFiscal year 2012 began on October 1, 2011 and as expected, we saw some movement in the visa bulletin. Here is a brief summary of what the US Visa Office reports seeing in terms of usage in the first 3 months of the FY 2012.

    Employment-based usage has been quite slow, but we can still expect to see some advances in the EB bulletin. There are still some EB-2 cases from 2007 in the USCIS pipeline, so we will probably see EB-2 hover around that date until cases are cleared out before forward movement is consistent.

    There has been a severe slowdown in the usage of EB-1 numbers, with some speculation that recent USCIS interpretation and clarification with regard to the standard for extraordinary ability cases has created a stricter standard and perhaps has dissuaded some applicants from filing cases.

    The immigration attorneys at the Law Offices of J Craig Fong have been practicing employment-based immigration law for nearly than 50 years in total. While the early FY 2012 numbers reflect some slowdown in usage either due to a sluggish economy or stricter adjudications by USCIS, each case is fact-specific so if you have questions regarding an employment-based immigration case for yourself or someone you want to hire, give us a call for a free consultation. We can assess your situation in detail to help you chart a path through 2012! ---ecf

    January 15, 2012

    H-1B Petitions - How to Prepare for April 1 Filings

    Checlist list image.jpgIt's H-1B season again. The beginning of a new year and less than 3 months from the first date that USCIS will accept new H-1B petitions on April 1, 2012. It's time to prepare your H-1B.

    The immigration attorneys at the Law Offices of J Craig Fong have been receiving many phone calls from potential H-1B employers and H-1B job seekers in preparation of filing H-1B petitions in April and early summer. Let's review some of the H-1B basics:

    • The job offer must be for a position which requires specialized knowledge in a certain field.
    • The employer must be ready to detail the job duties and have evidence ready in case of a Request for Evidence (RFE) if the USCIS questions whether the job requirements are an industry norm
    • The employer must be willing and able to pay the prevailing wage for the occupation
    • The employee must be able to show that he or she has status until October 1, 2012 or leave the US and apply for an H-1B visa abroad before re-entering

      Although these are the general requirements for an H-1B petition, this is enough for an experienced immigration attorney to begin assessing your case for strengths and weaknesses. The attorneys at the Law Offices of J Craig Fong are often consulted several times before an H-1B applicant and employer are ready to begin the process. If you have questions about your specific job offer or your qualifications for an H-1B, call the business immigration attorneys at Law Offices of J Craig Fong for a free consultation. ---ecf

    January 10, 2012

    The Law Offices of J Craig Fong on Twitter

    Twitter.jpgFor 2012, the attorneys at the law offices of Law Offices of J Craig Fong, have decided to make use of Twitter to notify interested followers of immigration news. Whether you are in the fast-lane of Los Angeles business or the laid-back Desert life in Palm Springs, rapid access to news in this field is important.

    Getting "breaking news" on the complex, fast-moving issues surrounding immigration is vital, whether you are a family member who wants to sponsor a relative, an employer who hires immigrants, a spouse being sponsored by an American, an investor wanting an E-2 visa to open a business in the USA, an O-1 extraordinary ability actor who is seeking a big break in the Industry, or any other visa hopeful.

    To be sure, immigration laws and regulations do not always change daily, so we will not be Tweeting daily. However, whenever there is an interesting development, we will raise the issue on on Twitter, as well as point you to blogs or articles for more information.

    Follow us on Twitter at: FongChunLaw

    January 9, 2012

    Do NOT try this at home! or at the US Border!

    Yes No.jpgImmigration law clients of the Law Offices of J Craig Fong have been calling us at both our Los Angeles and Palm Springs offices to inquire whether they can travel in and out of the USA using documents scanned onto their iPads, iPhones, and other smart devices.

    In the first week of January, articles appeared on NBC, ABCNews, and DigitalJournal, and other sites about a Canadian man who was attempting to cross the land border to deliver Christmas gifts to family and friends in Vermont, USA. He had apparently forgotten his passport at his home in Montréal, Québec. When he got to the US Port of Entry (POE), so goes the story, he pulled out his iPad and showed the border guard his scanned Canadian Passport. (The man carries scanned documents, in case he should lose his documents while traveling.) According to the story, the border guard considered the matter and finally let the man cross the border.

    It would be nice to think that border crossing cards, passports, visas, and other paperwork can now be scanned and put on our smart devices in lieu of carrying them. Nothing could be further from the truth.

    Right on the heels of these articles, United States Customs and Border Protection (CBP) issued a statement that scanned documents are NOT permitted for purposes of POE entry. This CBP statement was carried by Yahoo!News, The Globe and Mail (Canada), Straits Times (Singapore), The Telegraph (UK), among others.

    The CBP says that it used the man's secure Canadian driver license and birth certificate.
    No foreigner may enter the USA without being able adequately to verify his/her identity. Apparently, the Canadian man had in his possession a secure Canadian driver license and an official copy of his birth certificate. These allowed the border guard to verify ID, and the man was allowed to enter.

    The take-away lesson here is NOT that you should scan all your immigration papers in order to use them at a port-of-entry.

    The lesson here is: Do not believe everything you read on the internet about what can or cannot be done. Even if this Canadian fellow "got away" with using his iPad-scanned documents, it is NEVER a good idea to depend on the tender mercies of US border guards. Questions about entry and exit issues? Contact a good immigration attorney. --jcf

    January 6, 2012

    Proposed Change May Allow Immigration Waiver for Undocumented

    changes ahead.jpgThe Obama Administration has proposed a change in immigration regulations which would potentially change the lives of undocumented immigrants in the USA.

    Maybe the most common problem we see as immigration lawyers is the person who entered the USA with no documentation, or who had a visa but overstayed -- the so-called "undocumented alien." This problem is enormous and affects our clients throughout the nation, not only those at our The Law Offices of J Craig Fong offices in Los Angeles or Palm Springs.

    This is very complicated, so please read carefully:

    (1) With few exceptions, an undocumented alien can only interview for a green card by going back to his/her home country to have an interview at the US Embassy. The CATCH is that when someone like this departs the country, s/he triggers a ten-year bar, and s/he will not be allowed to return for ten years, even if s/he otherwise qualifies for the green card.

    (2) There is one exception to this bar: if the undocumented alien goes to the interview and is barred from coming back to the USA, the applicant can file a "waiver," explaining that some US citizen (or legal permanent resident) will suffer "severe Hardship" if the applicant is not allowed to return. At this time, the waiver can only be filed at the US Embassy at the time of the applicant's interview. The means that the applicant ends up waiting abroad for months waiting for a decision. If the waiver is NOT granted, the applicant cannot return.

    (3) If this regulatory change is approved, the Obama Administration would allow the applicant to apply for this waiver BEFORE the applicant leaves to the home country. This would be an enormous benefit. If the waiver is granted, the applicant goes to the Embassy interview and comes back, no 10-year bar. If the waiver is NOT granted, then the applicant just stays put in the US, and avoids going home to be denied and excluded.

    This is not an amnesty.

    This proposed change allows those who can be legalized to get a green card through the regular immigration process. The only change would be applying for the waiver before departure from the USA. The impact of this small change would have an enormous impact on individuals and families in Los Angeles and throughout Southern California. Right now, this is only a proposal -- it is NOT YET IN EFFECT.

    The lawyers at the Law Offices of J Craig Fong have talked to hundreds if not thousands of people over the years who can benefit from this potential change. Stay tuned. As soon as this change goes into effect, we will be post additional information. --jcf

    January 3, 2012

    Don't Play with Fire! - Immigration vs the Aggravated Felon

    Matches.jpgThe recent Los Angeles arson situation brings to mind many people who have consulted the attorneys at the Law Offices of J Craig Fong in our Los Angeles and Palm Springs offices. They have a valid visa or legal permanent residence (green card), and they have been convicted of a crime. Sometimes it is a serious crime; sometimes it is something minor. In some of these cases, the conviction has virtually unfixable immigration consequences.

    In 1990, Congress created the concept of "aggravated felonies," crimes that are considered so bad that an alien might not even qualify for the typical defenses to deportation (removal), such as asylum, cancellation of removal, or withholding of removal. In other words, the Congress has simply decided that someone who has committed an "aggravated felony" should just be deported (removed) regardless of the defenses s/he might try to use.

    The name "aggrevated felony" is misleading. "Aggravated felony" includes such obviously serious crimes as murder, rape, or arson; we can all agree that these crimes are quite serious. However, "aggravated felony" can also include some less- obviously terrible crimes, such as attempted possession of stolen property, attempted robbery, petty theft, trespass, unauthorized use of a vehicle. Even if a crime was charged as a misdemeanor in the legal system, it can still be considered an "aggravated felony" for immigration purposes.

    Congress defines an "aggravated felony" as:
    (1) murder, rape, or sexual abuse of a minor;
    (2) illicit trafficking in controlled substances;
    (3) illicit trafficking in firearms or destructive devices;
    (4) any offense related to laundering of monetary instruments in connection with certain unlawful activity;
    (5) offenses relating to transportation, receiving, or using explosives, forearms, or ammunition;
    (6) using fire (arson) or an explosives to commit any felony or causing an explosion during the commission of any felony; and the catch-all category,
    (7) crimes of violence -- which can also, in some circumstances, include theft, burglary, lewd conduct, simple battery, threats, and statutory rape; and
    (8) some other Federal and state laws.

    As you can see, this a very broad list of crimes.

    We caution all our clients who have green cards or who have temporary visas to contact us if they have any contact with law enforcement so that we can evaluate the nature of the underlying crime. Please remember that even if you are already present in the USA, if you commit an "aggravated felony," you could trigger arrest or a deportation (removal) if you try to apply for an extension of stay, a renewal of your green card, a change of status, an adjustment of status (green card), or if you re-enter the USA after a brief absence.

    If you have more questions about "aggravated felonies," please contact an experienced immigration attorney. --jcf

    December 1, 2011

    H-1B Quota Update: No Lottery This Year

    Today, the USCIS Service Center Operations released a statement that all properly filed H-1Bs applications received on Tuesday, November 22, 2011 will be accepted under the FY 2012 H-1B cap. USCIS SCOPS also confirmed that there will be no lottery for petitions properly filed and received on November 22.

    Those who are awaiting receipt notices for H-1B petitions received on November 22, should be able to rest easy knowing that their cases made it under the cap on the last day of the quota. However, be aware that until you receive a receipt notice, nothing is official. Many petitions get returned due to these typical errors: the filing fees are given in the wrong amounts, boxes on the I-129 Data Collection page are not checked correctly, and for missing signatures. If a petition is returned for an error, it may well take a few weeks for it be mailed back to you. ---ecf

    November 23, 2011

    H-1B Quota Filled: November 22, 2011

    empty_gas_tank.pngThe day has come. The fiscal year 2012 H-1B quota was reached yesterday, Tuesday, November 22, 2011. While this comes as no surprise to those who've been following our blog, it is remarkable that the final 15,800 applications were received by USCIS in just the last three weeks.

    So what does this mean for those who didn't make the cap this year? Most of my clients, who did not make the quota this year are fortunately in F-1 status, with most of having some time left on their OPT period of stay. FY 2013 H-1B hopefuls will now have to make a decision of whether to return to their home countries and enter next fall on an H-1B filed next Spring or perhaps extend their F-1 study.

    Many students are calling their campus international student officers to see about extending their I-20s so they can continue their studies. As long as a student is a bona fide, full-time student, s/he can remain in lawful F-1 status. But remember, while staying in the US on an extended I-20 is lawful, keep in mind that anyone wishing to travel will still need to check whether their F-1 visas are still valid.

    If you must wait for next year's H-1B filing window to open on April 1, 2012, please give the attorneys at the Law Offices of J Craig Fong a call to set up a consultation so we can ensure that your petition is one of the first ones received next year. ---ecf

    November 3, 2011

    Same-Sex Immigrant Couples May Benefit if DOMA Overturned

    DOMA Letters.pngThe immigration law offices of J Craig Fong has a very long history of serving the gay and lesbian community, and communities with non-traditional family structures. At our offices in Los Angeles and in Palm Springs, we are constantly asked about whether the US citizen in a married, same-sex couple can petition the alien spouse. Alas, as of today, the answer is still NO, based on the anti-gay Defense of Marriage Act (DOMA) which is still the law of the land.

    The good news is that the Judiciary Committee of the US Senate today began a debate that is a first step in an attempt to repeal DOMA. After today's hearings, many people with experience on Capitol Hill believe the votes are there on the committee to send the bill to overturn DOMA to the Senate floor. However, in the Senate, there must be 60 senators -- the so-called "supermajority" -- willing to bring the question to the floor, before the measure can actually be voted on. Finally, if it passes the Senate, most experts feel the measure would die a quiet death on a committee in the House of Representatives.

    There is movement in the Congress. It is important for all those for whom this is an important issue -- for their own families, for their friends, or for a fundamental fairness principle -- to contact their US Senators and Representatives to voice their support for the repeal of DOMA! --jcf

    November 1, 2011

    H-1B Quota Filling Fast - Only 15,800 Remain

    USCIS has released updated H-1B quota numbers as of October 28, 2011:

    • 49,200 petitions have been receipted out of the 65,000 petitions allotted for the regular cap
    The advanced degree cap has been met. Those seeking to file during this last phase of the H-1B season should move quickly. Call the immigration attorneys at Law Offices of J Craig Fong if you would like a free consultation on an H-1B application. --ecf
    October 21, 2011

    H-1B Quota October 21, 2011 - Advanced Degree Cap Filled

    Stopwatch 15 secs remaining.jpg
    The last update from USCIS announced that the US advanced degree cap for H-1Bs has been filled.

      The regular H-1B quota has accepted 46,200 petitions leaving 18,800 slots available for new H-1B cases to be filed.

      We can expect this last batch of H-1B slots to fill up quicker since those with advanced degrees will now be making applications towards the regular H1-B quota.

      Remember that if you have an H-1B pending, even with an outstanding RFE pending, the USCIS has allocated an H-1B for you if your case is ultimately granted. If you would like a free consultation regarding an H-1B filing this season, give the business immigration attorneys at the Law Offices of J Craig Fong a call now. ---ecf

    October 16, 2011

    H-1B Quota Numbers: October 2011 - Advanced Degree Quota Filling Up!

    The H-1B quota is still open but the H-1B advanced degree quota is nearly full. So for anyone looking to make an application, my advice is to watch the numbers carefully as the end of the year approaches.

  • 41,000 H-1B petitions have been received out of the 65,000 petitions that is subject to the regular Bachelor's degree quota

  • 19,100 H-1B petitions have been received out of the 20,000 petitions that are exempted for applicants with US master's or advanced degrees
  • Depending on usage, the H-1B quota is filled at different times each fiscal year, but I'm always amazed when I meet folks who think that the H-1B program is already "capped out," or that since October 1 has come and passed, H-1B applicants would have to wait until April 1, 2012 since it's just too late to make an application.

    While it is true that USCIS will begin accepting H-1B applications on April 1st of each year, it is not true that your case must be approved before October 1 of that calendar year. It is also not true that your case must be approved before the quota is finally reached. The business immigration attorneys at the Law Offices of J Craig Fong are still preparing H-1B petitions, so if you have questions or need assistance putting together a petition, please give us a call for a free consultation. --ecf