Over the years, the business immigration attorneys at Fong & Aquino have reported on PERM processing times, which have varied at just several days to several weeks to over a year for initial adjudication. Currently, the Office of Foreign Labor Certification “OFLC” is reporting that initial adjudications are being completed in less than a month, which is a welcome relief for those on H-1B, H-1B1, TN, E-3 or other status where they may be running out of time to complete the labor certification process.

In terms of an update, the OFLC released it’s annual performance report on FY2010 just this week. As many of you might know, the PERM application (Form ETA9089) is set to expire in June 2011, and the new form will be much longer and detailed (possibly 20 pages long as opposed to the current 10 pages). The annual report also makes this statement: “OFLC will apply stricter scrutiny to applications.” In addition, the Department of Labor also announced that they will propose that employers pay a user fee to fund the PERM, H-2A and H-2B programs. Many people seeking PERM have already dealt with issues of eligibility on those dreaded Request for Evidence (RFEs) for nonimmigrant statuses and now the hurdles to filing a successful PERM case have also increased. It is more important than ever to prepare your PERM case early with an experienced immigration attorney especially one who will take the time to explain what employers and applicants should expect throughout the pre-filing and adjudications period for PERM, because be it slow or fast, OFLC is implementing much stricter scrutiny on all applications. For a initial consultation on a PERM case, call the attorneys at Fong & Aquino. –ecf 577.jpg,

giraffes.jpgIt’s been a busy time since yesterday, when the Obama Administration announced it would no longer defend in court the section of the Defense of Marriage Act (DOMA) that would deny Federal benefits to same-sex couples who are legally married. The phones here at Fong & Aquino in Los Angeles have been ringing off the hook. In my many years as an advocate for gay and lesbian immigrants, I do not think I’ve received as many calls in one day, from Palm Springs to Providence, from West Hollywood to Washington, all asking the $64,000 question: “Can we get married and file our Spouse Petition now?”

First, to give you fair warning, I am going to punt the answer to that question down field. I think that — at this moment in the legal process — it would be prudent to think of SAFETY, to look at the facts of each couple before advising whether to file the paperwork. Why? Because there are simply too many variables right now, and we have no assurance from the immigration authorities that they won’t run out, arrest, and quickly deport an undocumented alien the moment they know where s/he is.

Next, the Obama administration has said that they will no longer defend DOMA in court. This is NOT the same as saying that they are freely granting equal rights to all same-sex married couples for tax, social security, or immigration purposes. I anticipate that — as well-meaning as the administration may be — the powers-that-be at US Citizenship and Immigration Services will fight tooth and nail until specifically ordered by the White House to recognize same-sex marriages.

Consequences.jpegWednesday’s announcement by the White House that the Obama Administration has said it will not defend section 3 of the Defense of Marriage Act in court is something of a welcome surprise. This should mean that — at least in states where same-sex marriage is legal — same-sex couples can claim federal benefits on an equal footing with opposite-sex married couples. Such benefits would likely include marriage petitions for foreign spouses. The attorneys at Fong & Aquino have sought and created legal immigration solutions for same-sex couples for years, here in West Hollywood and Los Angeles, throughout the United States, and even overseas. I have been an attorney for almost thirty years and have been an advocate for gay and lesbian immigrants for most of that time. I have counseled over a thousand same-sex couples in my time, and this is the best news so far in the fight to permit US citizens to petition their same-sex partners.

However, it is not clear how this will spin out. I wish I could tell couples to go out, get married where it’s legal to do so, and file the Family Petitions — but I don’t think it’s prudent just yet. Why not?

First, the Department of Homeland Security is no joke. They are serious about removing people from the USA wherever undocumented people can be found. If you are trying to protect your loved one, you don’t volunteer him or her to be a guinea pig! By filing a petition, you are revealing the exact address of your spouse. US Immigration and Customs Enforcement (ICE) is famous for the “knock in the middle of the night.”

caduceus1.jpgA bill was proposed in Arizona that would force hospitals to check the immigration status of patients. Like many advocates for immigrants, family immigration lawyers at Fong & Aquino see many situations here in California where such a bill would discourage people who genuinely need medical help from seeking that assistance. It appears that this proposed law — a bad immigration idea, and a bad public health idea — was removed from consideration by the Arizona Senate today.

For very good reasons, doctors and other health care providers would not want to be forced into the role of immigration officers. Health care professionals must establish a relationship of trust with their patients, and if the patient is afraid s/he might be turned in, the patient might not seek needed medical care. Whether we like immigrants or not, it is not a good idea from a public health point-of-view to allow sick or injured people to walk around untreated.

Serious contagious conditions like tuberculosis, H1N1 influenza, whooping cough, measles, and many others should be treated — no matter who contracts them. It is in America’s best public interest to keep such diseases under control. –jcf

Clients who file their permanent residency applications through Fong & Aquino are always advised to use employment authorization and advance parole (often referred to as “travel permit”) documents with caution. As of February 11, 2011, USCIS has begun issuing employment authorization and advance parole documents in ONE SINGLE CARD, and as a result, the attorneys at Fong & Aquino are concerned that applicants for permanent residency do not utilize the card without a careful analysis of whether using the card might jeopardize their current status or prevent them from re-entering the US after traveling abroad!Screen shot 2011-02-15 at 12.59.51 PM.png

For many applicants who are applying for greencards through employment, using an employment authorization card with a company other than the sponsoring employer can be a violation of the applicant’s current non-immigrant visa status. In some cases, this can result in a denial of the entire adjustment of status application!

It is very common for some applicants to be granted the advance parole document by USCIS, although leaving the country, even with the advance parole in hand, could bar them from re-entering. This scenario is typical for those who face the 3 or 10 year bar because of unlawful presence. Please contact the attorneys at Fong & Aquino if you or someone you know is applying for permanent residency. —ecf

Individuals who seek the assistance of the immigration attorneys at the Los Angeles Fong & Aquino often marry their spouses after they are placed into removal proceedings. The question then became: how much patience will the Immigration Judge have while the government determines if it was a “bona fide marriage,” or if it one entered solely to save the respondent from deportation?

The Ninth Circuit U.S. Court of Appeals recently determined that an immigration judge cannot deny a request for a continuance simply because the government takes too long to adjudicate cases. In Malilia v. Holder, the Ninth Circuit considered the case of an individual who married his fiancee while he was in removal proceedings. Mr. Malilia’s lawyer requested that the judge wait until U.S. Citizenship & Immigration Services made a decision on the petition filed by Mr. Malilia’s wife. The judge denied the request for a continuance, finding first, that there was a presumption that Mr. Malilia had married his wife in order to obtain immigration benefits and second, that USCIS would take an “unpredictable period of time” to adjudicate the marriage petition. Because Mr. Malilia was not then eligible for relief, the judge ordered his removal from the United States and Mr. Malilia appealed. During the course of Mr. Malilia’s appeal, USCIS determined that the marriage was bona fide and approved the petition.

Ultimately, the Court sided with Mr. Malilia. The Court agreed with the Immigration Judge that a presumption exists. However, the Court noted that the presumption can be overcome by evidence presented by the couple. In other words, the couple must have an opportunity to persuade the government that their marriage is genuine and not for the purpose of obtaining immigration benefits. This process takes time — months, sometimes years.

Rom.pngLike many other areas of the law, immigration and nationality law is vast and complex. It has come to the point where no one attorney can truly know ALL of immigration law. For this reason, the lawyers of Fong & Aquino in Los Angeles are very happy to welcome Romben Aquino as of counsel to our firm. Romben will handle the deportation (removal), asylum, appellate, and other specialized cases in our office.

My law partner, Eileen Chun-Fruto, and I have long wanted someone to handle the litigation cases in the office, most especially because the current administration’s immigration policies have resulted in record numbers of deportations (removals) from the United States. Finding such a person was not easy. Eileen and I have very strong ideas about the way that an attorney should practice immigration law. We are thrilled to have Romben Aquino as part of our team.

Romben is the son of immigrants. A graduate of UCLA and Northeastern University School of Law, he is keenly aware of how important an attorney’s role is in counseling immigrants and their families. He has worked with a well-known immigration law firm in New York City and a firm in the San Fernando Valley. The litigation and appeal process is challenging and requires a strong, keen mind and a feeling heart. Romben has both.

Hand Stop.jpgThe immigration lawyers at Fong & Aquino prepare hundreds of visa applications annually. We handle visa applicants from the UK, France, Spain, Switzerland, China, Japan, Canada, México, El Salvador, Argentina, Australia, Nigeria, Ghana, South Afrika, and dozens of other countries.

Under some circumstances, our clients, whether they are here in Los Angeles or elsewhere, must leave the USA to obtain their visas from the US Embassy or Consulate-General outside the USA.

Because of heightened security concerns at US posts abroad, many everyday articles MAY NOT be brought into a US Embassy or Consulate. The obvious ones are: fire arms, ammunition, sharp weapons. But other prohibited items include:

flag+liberty.jpegThe USA naturalizes about 680,000 new citizens per year, at ceremonies across the USA and around the world. For many immigration law clients of Fong & Aquino, US citizenship is their goal. For many, US citizenship is the culmination of a life-long dream.

In 2009, just under 75% of all newly-naturalized persons resided in ten states (in descending order): California, New York, Florida, Texas, New Jersey, Illinois, Virginia, Massachusetts, Washington, and Maryland. The leading metropolitan areas were:

* New York, Northern New Jersey, Long Island: 15%

So the H-1B cap for FY 2011 was finally reached on January 26, 2011. Petitions delivered to a USCIS service center on the 26th, will undergo the H-1B lottery, and if you “win” a slot for the coveted last day to submit an H-1B for FY 2011, your case will go on towards adjudication. Petitions that do not get “chosen” through the lottery, will be returned, along with filing fee checks and all documentation.

For the rest of you reading who are still looking for a job, or perhaps using your time on OPT which may expire in the next few months, the obvious question is “what next?” Aside from getting your petition ready for an April 1, 2011 filing (allowing an October 1, 2011 start date), the options care woefully limited.

F-1 students with degrees in the so-called “STEM” majors (science, technology, engineering and medicine) can apply for an extended OPT period. Others may be out of luck if they can’t find a job offer that is H-1B eligible. Other than extending F-1 status by pursuing another degree or perhaps some type of certificate program in your major, some people will opt for a J-1 internship which allows professional graduates to work for up to 18 months in an internship program that is certified by USCIS through a J-1 sponsoring organization. Other options might be an O-1 if you are of extraordinary ability or perhaps you might be eligible for an investors visa if you are the entrepreneurial type. For more information on what your options might be, visit our website at www.jfonglaw.com and fill out an intake form so we can help you decide your next move. –ecf