Immigration Visa Attorney Blog

Lately, the attorneys at the immigration Law Offices of J Craig Fong have been fielding a number of inquiries from families about what to do when their petitioner passes away. These inquiries have been especially common from our offices in Los Angeles and Palm Springs. Clients will usually ask if there is a way that they can obtain a substitute sponsor. This is known as requesting "humanitarian reinstatement" of the petition from the U.S. Citizenship & Immigration Services, or USCIS.

For example, a father became a naturalized citizen in 1996 and then immediately filed a petition for his adult son in the Philippines. Although the petition was quickly approved, the priority date would not become current for many years due to the backlog and demand for visas. This delay is due to the Priority Date system used by USCIS and Department of State to determine who is next-in-line. Unfortunately, during the waiting period, the father passed away. Under current regulations, an approved petition is automatically revoked upon the death of the petitioner. The surviving members of the family reside in the United States. Certain members of the family would be eligible to be the substitute sponsor for purposes of the affidavit of support, but the first step would be to request that USCIS reinstate the petition.

In order to do so, USCIS considers the following factors:

(1) Disruption of an established family unit; (2) Hardship to Citizens and lawful permanent residents; (3) A beneficiary who is elderly or in poor health; (4) A beneficiary who has had lengthy residence in the United States; (5) A beneficiary who has no home to go to; (6) Undue delay by USCIS or consular officers in processing the petition and the visa; and (7) a beneficiary who has strong family ties in the United States.

Prior to submitting a request, clients should work closely with their attorneys to assemble a strong evidentiary package that addresses each of the factors that USCIS considers. Bear in mind: the decision to reinstate a petition is completely within the discretion of USCIS. Humanitarian reinstatement applies to beneficiaries outside the United States. Beneficiaries residing inside the United States when the petitioner passes away may be able to avail themselves of Section 204(L) of the Immigration and Nationality Act. The attorneys at the Law Offices of J Craig Fong are always available to help guide you through this process. --ra

On 9 October 2011, Governor Jerry Brown of California signed the California Dream Act. This bill permits undocumented immigrants to attend California public university and community colleges, providing them access to state financial aid. Only three states in the USA permit undocumented immigrants to qualify for state financial aid for college: California, New Mexico, and Texas.

To qualify, students must graduate from a California high school, after having attended school in California for a minimum of three years. The student must also sign a declaration that they are in the process of adjusting or legalizing his/her immigration situation. It is not yet known what exactly students will be attesting to when they say they are "in the process" of legalizing.

Immigrants should be very clear: the California DREAM Act is for undocumented immigrant students wishing to go to university in this state. The California DREAM Act does NOT provide legal immigration status, does NOT make the student immune from removal or deportation, does NOT permit the student to work in the absence of an Employment Authorization Document from the US immigration authorities, and does NOT permit the student to travel out of the USA and to return.

The California DREAM Act does not address the need for comprehensive immigration reform on the Federal level.i

To be sure, the DREAM Act is a practical, realistic way to address the unarguable fact that so many undocumented immigrants now reside in California, and it is not possible to remove them all. If these students get an education, it is a long-term benefit to California. --jcf

September 30 marks the end of fiscal year for 2011. I wanted to review some statistics regarding labor certification information by the US Dept. of Labor which shows some interesting statistics about labor certification processing times and audits between October 1, 2010 and May 31, 2011.

Labor certification audits are still taking about a year for review and out of approximately 22,000 of the cases that were pending as of May 31, 2011, only 44% of those case were pending initial analyst reviews. The rest of the 56% were either in audit, appeal, or at the sponsorship verification stage. Since DOL reported a 63% increase in applications compared to 2010, we can probably expect that audit queue to increase.

As many of you may have noticed, prevailing wage requests are taking more than 3 months for a determination. Those who might need to file labor certifications before the end of the year in order to preserve the ability to extend an H-1B might begin thinking about leaving the US and recapturing H-1B time later if you are unable to file the initial labor certification 365 days before your anticipated H-1B expiration date. While admittedly, this isn't the ideal scenario, it stops the H-1B clock, even if momentarily... so that you can plan for a timely extension when you're eligible. Call the business immigration attorneys at the Law Offices of J Craig Fong if you'd like an assessment of your labor certification or H-1B case, don't wait another second! --ecf

Today the world mourns Steve Jobs. Steve Jobs was the creator and visionary at Apple, Inc. but he is remembered as one of the world's greatest business leaders, ranking up there with the likes of Ford and Rockefeller. Steve Jobs was credited for bringing technology and it's benefits to the every day lives of every day people. The attorneys at Law Offices of J Craig Fong want to thank Steve Jobs for changing how we think about technology, for inspiring us to think creatively in what we do as immigration attorneys.

Law Offices of J Craig Fong is proud to run our office on Apple technology. We love our Apple computers, iPhones and iPads. But more importantly, the immigration attorneys at the Law Offices of J Craig Fong have also embraced the entrepreneurial spirit and determination which is best exemplified by Steve Job's own words:

Your work is going to fill a large part of your life, and the only way to be truly satisfied is to do what you believe is great work. And the only way to do great work is to love what you do.

As immigration lawyers, we know that the law allows families to reunify, it gives foreign workers and entrepreneurs a chance to realize their dreams. What we do at the Law Offices of J Craig Fong gives people a chance in a lifetime to make a change for the better. Many, many of our clients come to us after other immigration attorneys have turned their cases away hearing their employers were too small, too new to sponsor an H-1b or that a new company L-1 is just impossible these days. Or perhaps their family members were facing removal or in desperate need of an immigration waiver but that odds were against them so that it wasn't worth trying. at the Law Offices of J Craig Fong, we don't provide formulaic solutions to challenges. Steve Jobs didn't do that and neither do we. Challenging cases require exacting solutions. We work on each case with the individualized attention that each case deserves and we have the years of experience to know what works and what does not. When other immigration attorneys won't make the extra effort to take on cases that are outside the norm, we do - because this is what makes our work meaningful, and this is what inspires us to create great work and to make a difference, a world of difference to the individuals who didn't settle and tried anyhow. --ecf

Following this past year's diversity lottery fiasco, the US Department of State has announced that it will begin accepting applications for DV 2013 at noon (EDT) on October 4, 2011. The application period will close on November 4, 2011 at noon (EDT).

It has only been a few months since Dept of State notified then revoked the winning results of 22,000 "winning" lottery applicants. In the incident, now commonly known as "22,000 tears," the DOS reported that a computer glitch caused 90% of the DV2012 winners to be selected from applications made during the first 2 days of the 30-day application period, and that because of this, the results were not "randomized," and hence, invalid. DOS states that it "mistakenly informed" these unfortunate 22,000 "winners," some of whom had already started making plans and selling off assets to move to the US and begin their American Dream.

As we look ahead, some changes have been made to the countries whose nationals can now participate in the DV 2013 lottery. Nationals of South Sudan and Poland are now eligible to submit applications and although mainland Chinese born applicants cannot participate, Hong Kong SAR, Macau, and Taiwanese applicants may still apply. While the Los Angeles visa attorneys at the Law Offices of J Craig Fong, wish the best of luck to all DV 2013 applicants, we also remember and sympathize with the 22,000 individuals of DV 2012. --ecf

The EB-5 attorneys at Law Offices of J Craig Fong want to report about the recent EB-5 stakeholders meeting which took place recently. Probably of most interest are the EB-5 success rates reported by USCIS. In general terms, the Department of Homeland Security reports that in Fiscal Year 2010, approximately 110 initial Regional Center proposals were submitted and approximately 36% received approvals in the initial adjudication.

Evidencing a major increase in regional center filings, DHS reported that 176 initial regional center applications were received in the first three quarters of Fiscal Year 2011 (October 1, 2010 to June 30, 2011). Of those, 46% were approved upon initial adjudication and 23% were denied upon initial adjudication. The attorneys at the Law Offices of J Craig Fong are consulted regularly by investors seeking regional center certification.

It's been no secret that EB-5 regional center filings are on the rise and that the program which has been in existence for years is gaining popularity again. Although approval rates seems are encouraging, investors know that the program is obviously, not without enormous risk. The LA Times reported earlier this month about some of the problems still plaguing investors. Contact the business immigration attorneys at Law Offices of J Craig Fong if you would like a consultation regarding regional center certification and/or the traditional EB-5 program. --ecf

Last weekend, Department of Homeland Security Secretary Janet Napolitano announced the launch of a new USCIS website for students looking to study in the US. The website's name? Yup, "Study in the States." The new website which will be of use to F-1 and M-1 hopefuls, is aimed at disseminating information to foreign students, as well as serving as an interagency resource hub between DHS and it's partner organizations. Information pertaining to J-1 exchange visitors and trainees is still relegated to the US Department of State.

Study in the States provides information on how prospective students should utilize the current version of SEVIS, the Student and Exchange Visitor Information System program. It also tells us what we can expect with the highly anticipated "paperless" SEVIS II, which may launch "in the near future."

There's also general information useful to new immigrants such as how to obtain a social security number, how to enroll your children in Kindergarten through 12th grade, and how to get a driver's license. The attorneys at Law Offices of J Craig Fong applaud the launch of this user-friendly website and what we hope is not only USCIS acknowledgment that foreign students coming to pursue degrees in the United States represent some of the best and the brightest talents in the world...but that these are the students who can and will someday continue to drive the innovation, entrepreneurship, and values known throughout generations as, the American Dream. --ecf

Just when you thought you were close to the front of the line, US Department of State announced yesterday that no further employment based preference cases (the so called EB cases) can be allotted toward the fiscal year 2011 quota.

Translation: No more employment based approvals of I-485s for now. Remember that October 1, 2011 will mark the first day of the USCIS Fiscal Year 2012, so EB greencard cases will resume in October.

USCIS has been directed to continue adjudicating EB cases but those cases will be placed "on hold" until October 3 when all cases which are "pending demand" (for I-485 approval) between September 15 - September 30, 2011 can receive final adjudication.

What this means is that anyone with a pending I-485 based on an employment preference case will have to wait until October 2011 to see a final approval of their pending and ripe adjustment of status. For updates to the visa bulletin, check back in October or call the business immigration attorneys at the Law Offices of J Craig Fong for a free initial consultation. ---ecf

In the last month, usage of H-1B numbers have continued to crawl upwards:

The regular H-1B cap has seen an increase from 25,300 petitions received to 32,200 as of September 9, 2011

The advanced degree cap has moved toward the 20,000 cap from 14,700 petitions received to 16,700 received as of September 9, 2011

With California unemployment rates hitting 12.1%, it looks like the H1B program may remain open for the long-term, ultimately giving H-1B job seekers additional time to find offers of employment. If you are an F-1 student on OPT seeking an appropriate H-1B job offer, please remember that maintaining status is crucial unless you are able (and willing) to consular process. ---ecf

Recently, the news -- local Pennsylvania news, the Associated Press, and even The New York Times -- has been filled with a story about foreign students who came to the USA to participate in an "exchange program," who ended up working under allegedly harsh conditions at the Hershey chocolate factory in Pennsylvania. Here at the immigration law offices of J Craig Fong, we began to get calls from people around Los Angeles, as well as throughout the Coachella Valley (Palm Springs and Palm Desert), about these exchange visitor visas.

Essentially, the J visa program was created as a foreign-policy tool to encourage international understanding, to provide a way for foreigners to get to know American life and work. It also allows a freer exchange of information, permitting professors and researchers to continue their studies and presentations in the USA. The visa is for a:
* professor or research scholar,
* short-term researcher or scholar,
* trainee or intern,
* college or university student,
* teacher,
* secondary school student,
* nonacademic specialist,
* foreign physician,
* international visitor,
* government visitor,
* camp counselor,
* au pair, or
* summer student in a travel/work program.

Each of these categories has its own set of requirements -- too much to mention here. Suffice to say that the J-visa holder must be taking part of a legitimate program and should have sufficient funds; be able to speak, read, and write English; maintain sufficient medical insurance in case of accident and illness; and have and maintain a residence abroad to which the visa holder will return.

The J visa program was established to allow visa holders -- typically students, trainees, researchers, and teacher/professors -- to visit the USA, engage in cultural programs, teach or lecture to share information, do home-stays or au pair work as part of family exchange programs, or to do hands-on training in a field for which they have had educational or vocational training.

The program was certainly not created to allow employers to avoid hiring US workers, or to use foreign students as cheap labor, or to cheat foreign students out of a valuable chance to have a cultural-exchange experience in the USA.

Unfortunately, less-than-scrupulous organizations have created partnerships with certain employers and manufacturers to provide inexpensive labor in the guise of cultural exchange. Even more shocking: many of these student visitors are CHARGED by the organizations which have organized this so-called cultural-exchange experience for them -- the way one might be charged by a tour operator. In the end, however, these J-1 students apparently had a very unpleasant experience.

I know nothing of the alleged conditions at Hershey. However, it is important that visitors thoroughly understand the visa that they are applying for and feel comfortable with the attorney or trip organizer with which they are working. --jcf

The immigration Law Offices of J Craig Fong serves the entire Los Angeles area, including Palm Springs and the Coachella Valley, Long Beach, and indeed, clients all around the United States. We handle family visas, business and investor visas, and removal / deportation cases. Our attorneys frequently encounter people who come in and say that they have been working with an "immigration service" or "immigration consultant" or "notario" or "notary public" for the processing of their paperwork. In the vast majority of these cases, the results obtained by these so-called service-providers have been devastating.

The US Department of Homeland Security (DHS) has announced a nationwide program to target non-attorney notaries and others who are advising and preparing paperwork for clients. The immigration system is complex, and although DHS often views attorneys as a hinderance to its work, DHS also understands that the only way an immigrant gets proper representation, a fair hearing, is through a competent, licensed attorney.

This is a difficult subject, because those of us at the Law Offices of J Craig Fong have met and seen the work of a few excellent, conscientious, knowledgeable notaries. However, to be frank, these are a great exception. In truth, notaries have no legal training and have no requirement to stay up-to-date in their knowledge. Attorneys do.

It is also true that not every attorney is going to be a good fit with every client: as you seek an immigration attorney, please ask yourself:

* Is this person a licensed attorney? If you're not sure, ask the state bar association.

* Does this lawyer have the experience to handle my case? Ask whether s/he has handled such a case before. Ask how long s/he has been licensed to practice. Some attorneys TEACH immigration law to other attorneys. This is a pretty good sign that the attorney has solid practical experience.

* Is this attorney listening to me? Some attorneys handle cases in mass quantities and do not make the effort to know you, your family, or your business.

* Is this attorney telling me what s/he is going to do? Some attorneys will just say, "it's ok, just leave it with me. I will take care of it." This is not good. You need to know what is being done by the attorney in your name. In the end, you are responsible for what the attorney files if you sign the papers.

* Is this attorney willing to explain things to me? Immigration law is a field of law where the client must understand what's going on; your future in this country depends on being knowledgeable. Does this attorney explain things to you clearly and in a way that you understand?

* Do I fundamentally trust this attorney? You are putting your family or business in the hands of this professional. Look him or her in the eye and ask yourself, "is this person honest, clear, and straight-forward?"

* Is this attorney a member of a reputable immigration law association? Merely being a member of any ole' professional organizations is not the key here; any lawyer can write a check to join an organization. However, some organizations require a minimum number of years in practice before an attorney can apply to be admitted to membership. It should raise a little bit of concern if your attorney is NOT a member of, or active with, any such organizations. The main professional organizations for immigration attorneys are the American Immigration Lawyers Association (AILA) and the Federal Bar Association (Immigration Section).

--jcf

It has been a while since I have posted H-1B quota numbers but here is the most recent update from USCIS as of August 12, 2011:

Approximately 25,300 petitions received for the regular H-1B quota.

Approximately 14,700 petitions received for the advanced degree H1B quota.

H-1B processing times remain the same: slow. Cases that were filed in May can still be pending if an RFE has been issued. Those who were planning on beginning work on October 1, 2011 can still request premium processing on pending cases if petitioners wish to have an approval notice in hand on that date. If your H-1B case is still pending and is outside processing and you wish to inquire about the status of your case, petitioners can use the USCIS 1-800 customer service center number and ask for a status inquiry. ---ecf

And so the saga continues. I have received a lot of phone calls from H-1B hopefuls, many in the same situation: highly qualified individuals with marketable skills with either no job offer in hand or a tenuous job offer from an employer not willing and able to withstand the challenges of submitting an H-1b petition. It's no wonder that the quota numbers are extremely low.

The most recently updated H-1B cap numbers as of July 13, 2011:

Approximately 19,000 petitions received for the regular H1B quota.

Approximately 12,200 petitions received for the advanced degree H-1B quota.

The journey of a job search is a lonely and arduous one. Immigrant workers face an even more daunting reality -- asking their employers to provide H-1B sponsorship, then finding an experienced immigration attorney who can prepare the strongest case possible for filing with USCIS. The attorneys at the Law Offices of J Craig Fong have worked with H-1B applicants and their prospective employers to not only explain the H1B process but also provide analysis as to the specific weaknesses and strengths of your particular case. Contact the business immigration attorneys at Law Offices of J Craig Fong a call to set up an appointment when your employer is ready to talk about sponsoring an H-1B petition. We can help. ---ecf

H-1B cap numbers as of July 1, 2011:

Steady usage of the Bachelor's degree H1b quota with about 1,000 more petitions received since last count, resulting in 18,400 cases received as of July 1, 2011.

The H1B advanced degree cap has advanced by about 600 cases resulting in 11,900 H-1B petitions received as of July 1, 2011.

I'll continue to keep everyone apprised of the numbers so H-1B applicants and H-1B employers can continue to plan their petitions wisely. ---ecf

What is the H-1B cap gap?? F-1 students seeking first-time H-1B status are often in some period of OPT (optional practical training) when submitting an H-1B petition. "H1B Cap gap" is the term that USCIS refers to as an extension of either the F-1 student's status and/or the student's OPT period before October 1 of each year.

Here are some nuggets of useful information for students seeking clarification of how OPT can be properly utilized and extended with the H-1B cap gap:

If a cap gap H-1B applicant receives an H-1B denial at anytime (before or after October 1), s/he cannot continue working but is still allowed the 60-day grace period to depart the US as long as the H-1B was not denied or revoked due to fraud or misrepresentation

F-1 students whose OPT has already expired but are able to file an H-1B change of status petition during the 60-day grace period are allowed to remain in the United States under F-1 status but will not become employment authorized again

F-1 students who have STEM OPT employment authorization may apply for a a STEM OPT extension while he or she is within the cap-gap extension period.

If you have questions about how to apply for an H-1B petition and whether or not you can extend your OPT through the H-1B cap gap, give the business immigration attorneys a call at Law Offices of J Craig Fong. We can help you mind the gap! ---ecf