September 16, 2011

Employment-based Visas Exhausted for FY 2011

Wooden mannequins waiting in line.jpgJust 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

September 10, 2011

H-1B Quota Numbers September 9, 2011

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

    August 22, 2011

    Foreign Students Walk Off Hershey's Chocolate Factory Jobs

    chocolate.jpgRecently, 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

    August 19, 2011

    Beware of Notarios and other Immigration Scams

    handshake.jpgThe 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

    August 16, 2011

    H-1B Quota Numbers August 12, 2011

    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


  • July 14, 2011

    H-1B Quota Numbers July 13, 2011

    Job Search Handwritten note.png
    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

    July 6, 2011

    H-1B Quota Numbers July 1, 2011

    man running against time.png

    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

    June 29, 2011

    H-1B: Cap Gap Guidance

    Mind the Gap.pngWhat 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

    June 27, 2011

    New York: "I do!" -- USCIS: "Not yet, pal!"

    couple hold hands.jpgCongratulations to the citizens of New York for the practical and humane approach taken by their Legislature and Governor in the approval of same-sex marriage last week! As leading advocates for immigrants in the gay and lesbian community, the attorneys at Los Angeles' Law Offices of J Craig Fong have counseled thousands of clients from all over the nation and the world about uniting families which are not traditionally shaped.

    Beware! It is still NOT possible for same-sex couples to marry and to have the US citizen spouse petition for legal permanent resident status (the so-called green card) for the foreign spouse. This prohibition applies even when the couple both marries and resides in New York.

    A same-sex marriage in New York (or from any other state or country, for that matter) will not be recognized for purposes of Federal immigration benefits. This includes Family Petitions for alien spouses, and also includes spouse-as-dependent on any other residency application. The culprit here is the Federal Defense of Marriage Act (DOMA).

    The Uniting American Families Act (UAFA) would remedy this, permitting the recognition for immigration purposes of domestic partners who are in a committed same-sex relationship. This bill is regularly introduced in Congress. It is not yet law, however.

    So, New Yorkers, raise a glass to your friends, families, and loved ones. And stay patient on the repeal of DOMA or the passage of UAFA. --jcf

    June 23, 2011

    Filing I-130 Family Petitions from Outside the USA

    mailbox2.jpgBeginning 15 August 2011, US Citizenship and Immigration Services (USCIS) will change the way I-130 Petition for Alien Relative is filed. Although The Law Offices of J Craig Fong are an immigration law firm in Los Angeles, we represent clients on every continent of the globe (except Antarctica), and we have filed I-130 Petitions all over the world.

    Beginning on 15 August, I-130s from Petitioners living outside the USA may be filed at the USCIS Chicago Lockbox facility. Petitioners who live outside the USA in a country where there is a USCIS office still have the option to file the I-130 at that USCIS office. --jcf

    June 21, 2011

    H-1B Quota Numbers June 21, 2011

    36720hpsva7gfr6.jpg


    The H-1B job search continues! The H-1B quota is still wide open for those who are still job searching. Just released today are the numbers from USCIS as of June 17, 2011:

    The H-1B quota (regular degree cap) is moving slowly, but steadily with 16,300 applications received out of the 65,000 available.

    The advanced degree H-1B quota (advanced degree cap) has slowed somewhat, with 10,800 receipted out of the 20,000 available.

    Although the H-1B numbers seem low, the processing times are still quite slow with average processing times of 2-3 months or even longer for initial review without premium processing. Call the business immigration attorneys at the Law Offices of J Craig Fong for more information on applying for an H-1B. --ecf

    Image: jscreationzs / FreeDigitalPhotos.net

    June 17, 2011

    NSEERS Registration No Longer Necessary

    stairway.jpgThe US Government recently announced that NSEERS registration is no longer necessary. Like many other immigration law firms, The Law Offices of J Craig Fong of Los Angeles has numerous clients from countries in which Islam is the predominant religion. The National Security Entry-Exit Registration System (NSEERS) was implemented in 2001. NSEERS required the citizens of certain Islamic countries who are visiting the USA to undergo special treatment and registration upon entry to and exit from the USA. Many The Law Offices of J Craig Fong clients in Beverly Hills, Hollywood, Palm Springs, and Las Vegas were especially impacted by NSEERS.

    Persons born in or citizens of Afghanistan, Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, North Korea, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, the United Arab Emirates, and Yemen were all subject to NSEERS arrival-departure control.

    Implemented in the wake of the attacks of 9/11/2001, the NSEERS program was designed to record the arrival, stay, and departure of certain individuals from countries chosen based on an analysis of perceived national security threats. Because the US Department of Homeland Security (DHS) has now implemented automated systems that capture arrival and departure information for persons of all nationalities -- that includes citizens of the Land of the Free and Home of the Brave (Americans) -- the NSEERS registration is no longer required.

    Quoting DHS, "the underlying NSEERS regulations will remain in place in the event a special registration program is again needed." --jcf

    June 16, 2011

    H-1B Quota Update - June 15, 2011

    H-1B season looks like it's going to last a while this year. With nationwide unemployment still high, offers for H-1B employment seem to be lagging as well. Here are updated H-1B quota numbers for those looking for H-1B sponsors and wondering "how much time do I have left before the H-1B quota runs out..."


    • Regular cap: approximately 15,200 cases have been receipted out of the 65,000 available as of June 15

    • US Advanced degree cap: approximately 10,200 have been receipted from the 20,000 available

    • as of June 15, 2011

    To look on the bright side, H-1B hopefuls who are interviewing and sending out resumes for job openings do have the time to consider carefully whether their potential H-1B employer is really the right organization to sponsor an H-1B application. I have been fielding a lot of questions recently by H-1B applicants who are concerned that their employer is either too small, too new, or otherwise not a strong enough sponsor for their petition. One of the best ways to shield yourself from an H-1B denial is to not only find the right employer but also to find an attorney who will spend the time with you and your employer to assess the strengths and weaknesses of a potential H-1B application and to be prepared for the dreaded Request for Evidence and of course to avoid an outright denial! With filing fees as high as they are, this would be money and time well spent to consult with an experienced business immigration attorney before blindly submitting an H-1B petition. ---ecf

    June 10, 2011

    Arrival Procedures - Secondary Inspection and Criminal Records

    plane+jetway.jpgRecently, I toured the Federal Inspections area at Los Angeles International Airport (LAX). As an attorney affiliated with the immigration law offices of J Craig Fong in Los Angeles, I routinely get questions from clients about "what happens to me when I land after my international flight? What will the procedures be like for me?"

    Although my visit was to LAX, it is fair to say that the same immigration procedures and data bases are in place at all international airports in the Southern California region: Orange County, San Diego, Ontario, Palm Springs, and other international airports nationwide.

    Every day, thousands of people pass through the Tom Bradley International Terminal and the other international arrival terminals at LAX. After deplaning and waiting in the seemingly interminable queues, most passengers will only see one immigration officer. Then they will collect their luggage and see a customs officer. And then, they will go up a ramp where they are greeted by a smiling photo of Los Angeles Mayor Antonio Villaraigosa welcoming them to the United States.

    I also talked to officers in an office in the corner of the terminal which handles "Admissibility Review," also commonly known as "secondary inspection." Because of the volume of international passengers that LAX handles, the primary inspection officer only has a few minutes -- probably less than 5 -- to determine whether to permit an individual to enter into the United States. Instead of tying up an officer's station, questionable individuals will continue the process at the secondary inspection area.

    Maybe there is an error on a visa. Or perhaps the name on the passport doesn't match the visa. Or sometimes, an individual doesn't realize that his or her green card expired during the trip abroad. According to Customs and Border Protection officials, most individuals -- upwards of 90% -- who are sent to secondary inspections are permitted eventually to enter the United States after CBP has asked a number of follow-up questions.

    A word of caution about criminal convictions: the records of older criminal convictions have now been computerized and are now available to CBP inspectors. This includes criminal convictions in the 50 US states, as well as many countries which have made their criminal records available to the Department of Homeland Security.

    In particular, if you are a lawful permanent resident who was convicted of a crime at some time in the past, your past ability to travel in and out of the United States was not because the government had forgotten about the conviction or forgiven you. It was because the CPB didn't previously know about the conviction. In 2010, the Department of Homeland Security initiated removal proceedings based upon one of our client's convictions that occurred in 1995.

    The best way to avoid being escorted to secondary would be to steer clear of the following actions:

    -- misrepresentations about your identity
    -- using fraudulent travel documents
    -- using a passport that does not belong to you
    -- using a passport that has been manipulated or tweaked
    -- using a visa that is fraudulent
    -- traveling when you have an outstanding warrant for your arrest
    -- a LPR returning to the United States after being convicted of certain criminal offenses
    -- a LPR returning to the United States who may have indicia of abandoning his or her permanent resident status

    You should consult with experienced counsel before you seek to enter or re-enter the United States. Doing so may help you prevent any surprises in the immigration inspection area. --ra

    June 7, 2011

    Are we THERE yet? The Mysteries of the Visa Bulletin.

    Hourglass.jpg ** You are a US citizen, and you have petitioned your brother from China.

    ** You are a US legal permanent resident, and you have petitioned your adult, unmarried daughter from Egypt.

    ** You are a US citizen, and you have petitioned your married son from Argentina.

    "When is my relative going to be able to immigrate to the USA. Why do we have to wait so long? I know my relative's priority date, but the dates on the Visa Bulletin swing backwards and forwards. It makes no sense!"

    Strangely enough, this is one of the MOST DIFFICULT things to ask an immigration lawyer. The immigration attorneys at the Law Offices of J Craig Fong in Los Angeles have decades of experience with the immigration system, and we still find it difficult to estimate the progress of the Visa Bulletin. We tell the client to look at the Visa Bulletin, to see which dates are being processed currently. The client calls us back and says, "the Visa Bulletin says that people in my relative's category who applied in 2003 are being processed now! Does that mean my relative must wait another eight years? (Assume we are in the year 2011.) Well, maybe, and maybe not.

    The movement of priority dates on the Visa Bulletin is vastly and famously difficult to predict.  That is because guessing is difficult due to (a) the total number of visas available, (b) the number of visas permitted to each country of the world,  (c) the number of visas taken up by each petition, and (d) the time of year.

    There are some technical, extremely detailed explanations about how the Visa Bulletin works. If you would like to read one -- and if you think it will help -- click here. I have read a number of these explanations, and to be honest, after 30 years of practicing law, the system is as opaque as ever. In practice, this is the way I explain the movement of priority dates when my clients ask me:

    First, the US Congress has limited the maximum number of family-based immigrant visas (green cards) that can be granted each year to 480,000.  (There are exceptions to this, but they are not relevant to this discussion.) Of the 480,000, maximums are set for the visas available in each family-based category: son or daughter of a US citizen, spouse or minor child of a legal permanent resident, unmarried son or daughter of a legal permanent resident, married son or daughter of a US citizen, and sibling of a US citizen.

    Why 480,000? It is a figure set by Congressional act and is based, at least in part, on the Congressional judgment of the number of immigrants that the USA can reasonably absorb in any one year.

    Further: nationals of any one country of the world may not receive more than a maximum of 25,000 annually.  This does not mean that all 25,000 will be given out for each country, but it sets the maximum.

    Why 25,000? Again, this number is set by Congress, and it reflects the desire not to have too many immigrants from any one single country arrive in one year, creating an unbalanced demographic picture.

    This means that a low-demand country, say, Monaco or Vanuatu, would probably not use up its allotment of 25,000, across all the family-based visa categories.  However, a high-demand country, say, China or the Philippines, would have more than 25,000 people who want to immigrate to the USA in any given year.  However, even if Monaco does not use up its 25,000 visa allotment, China does not get to have more than the maximum 25,000 visas as a result!

    Second, each petition can account for more than one beneficiary.  For example, let's pretend that Mr. Smith, from the United Kingdom, is married with two minor children. Mr. Smith's brother is an American citizen, and Brother files an I-130 Family Petition for Mr. Smith. So: when Mr. Smith immigrates, the one petition will end up using up four green cards: one for Mr. Smith, one for Mr. Smith's wife, and two for each of Mr. Smith's minor children.  

    US immigration counts petitions not beneficiaries. This makes estimates VERY difficult.

    Third, the US fiscal year begins on 1 October.  It is on this date that the "new" batch of 480,000 green cards (immigrant visas) hits the system.  This means that ANY of the unused visas for the fiscal year that just ended die -- although there are RARELY any of the 480,000 visas which go unused, given the high demand.  The new fiscal year means a brand-new start with 480,000 family-based visas.

    As a practical matter, this means that US consulates begin processing many, many green cards at the beginning of the fiscal year -- October, November, December, and January.  When this happens, the priority dates begin to move rapidly.  People look on the monthly Visa Bulletin issued by the Department of State, and they see the priority dates moving like lightning.  People say to themselves, "My god: the priority date is jumping 8-9 months every calendar month!  I will get to immigrate soon!!!"

    Then in February, March, and April, as the fiscal year moves on, the movement in the processing dates begins to slow to a crawl, because consular officers get cautious about processing people when there may not be enough visas to last until 30 September, to the end of the fiscal year.  Finally, in July, August, and September, the numbers stop advancing and SOMETIMES they retrogress.

    My advice to any one who is waiting for the arrival of a priority date: regularly watch the State Department's  Visa Bulletin, which comes out on the 15th of each calendar month.  This will provide you with a better idea of how the priority date is advancing. --jcf