Immigration Visa Attorney Blog

When the Senate advanced the job-creation bill last week, employers were given the signal that hiring tax incentives are on the horizon. Perhaps in a nod to the Administration's No. 1 priority of creating jobs for unemployed Americans, the USCIS has just announced a forum on the EB-5 immigrant investor program. In the last year, and as recently as December 2009, the USCIS issued updated guidance on I-526 and I-829 filings so that USCIS adjudications could make decisions with clarity and consistency, allowing investors to make job creation through the EB-5 program a reality soon as possible. These are all indications that this is the time for foreign investors to again bring private enterprise to our great nation.

The upcoming USCIS EB-5 forum is only open to attorneys representing these so-called "million dollar investors." Fong & Chun attorneys will be in attendance and ready to present concerns facing our clients as well as potential issues for those investors considering the EB-5 program.

It is true that the EB-5 investors greencard process is often called "hypertechnical," and has in the past been plagued by administrative delay and inconsistent treatment. But I believe that the view of recent USCIS' actions, the agency is acknowledging just how critical the EB-5 investors program is to our nation's economic recovery. For each EB-5 investment, 10 full-time jobs must be created, and that means 10 more working Americans. Call Fong & Chun, LLP if you would like to discuss how you can start investing in America. ---ecf

Chile: an 8.8 magnitude earthquake hit Chile today. Lasting 90 seconds it was 500x more powerful than the one that shook Haiti. Tsunami warnings and alerts are now in place from South America to Asia and throughout the Pacific. Evacuations have already begun in Hawai'i. Fong & Chun, LLP sends a message of hope and support to our Chilean clients who may have relatives or loved ones in the country.

Like Haitians present in the United States after the devastating earthquake in their home country, Chileans in the United States may soon be eligible for "Temporary Protected Status" or "TPS" if Congress designates Chile as a country where nationals cannot return safely because of dire conditions impacting the country. Haiti was designated a TPS country on January 21, 2010, only nine days after the January 12 earthquake.

Travel back to Chile may be impossible for quite some time, however those who have H-1B1 or other temporary visas, and who want to travel to the country in the weeks to come should review the Department of State website for all warnings on travel conditions.

Please contact Fong & Chun, LLP if you are from Chile and your visa has expired or if you have other questions about possible TPS status. ---ecf

The H-1B season begins on April 1, 2010. The attorneys at Fong & Chun, LLP have been fielding phone calls and queries about filing new H-1B petitions. With relatively new changes in place for processing labor condition applications (LCA) this new process has caused such delay that even the USCIS ombudsman has called for some leniency in accepting cases with no certified LCA.

Based on last H-1B season, employer's tax returns, payroll records and other indicators of viability are now highly scrutinized. Applicants should also be prepared for the USCIS to review all of their previous immigration history, and of course their qualifications for the job. If you have questions about the H-1B process and how you can best prepare your application, contact Fong & Chun, LLP. ---ecf

As immigration attorneys with very strong roots in the immigrant communities of Los Angeles, the lawyers at Fong & Chun stay current on legislative developments that could affect our clients and their families. On 15 December 2009, over ninety House Democrats unveiled a comprehensive immigration reform bill. The bill is called the Comprehensive Immigration Reform for America's Security and Prosperity Act of 2009 (CIR-ASAP).

President Obama has said there should be comprehensive immigration reform. The bill includes an "earned" legalization program. The program as currently proposed would allow undocumented people in the USA as of 15 December 2009 to apply for legalization. There would be special, more lenient rules for young persons. Many people want to call this an "amnesty," but it is important to see all the details about the program before getting too excited.

There are other provisions for "visa recapture" to reduce waiting times and backlogs. This bill would also put a new employment-eligibility-verification system into place. There would be harsh penalties for hiring unauthorized workers.

These proposed changes are very exciting; however, we must remember that this bill is only a PROPOSAL. It will have many reincarnations before a final bill passes, if a bill passes at all. The President has said he wants CIR on his desk by the end of 2010, but there are obviously many other things occupying the attention of Congress at this time. Stay tuned. --jcf

All immigration law attorneys must deal with foreign countries, unique international legal issues, and some quaint interpretations of law. The lawyers at Los Angeles' Fong & Chun are no exception, and in fact, this recent change affects some of our clients who do business in or own businesses in the Commonwealth of the Northern Mariana Islands (CNMI).

On 28 November 2008, "the United States" as defined for purposes of the Immigration & Nationality Act (INA) just got bigger, with the addition of the Commonwealth of the Northern Mariana Islands. Although there are probably wrinkles I have not yet read in the treaty, this essentially puts the CNMI on the same footing as Puerto Rico. Here's the cute part:

Because the CNMI will become part of the "United States" as defined by §101(a)(38) of the INA, "residence or presence in the CNMI before 28 November 2009 shall NOT be considered residence or physical presence within the USA for INA purposes. Thus, on 29 November 2009, all persons physically present in the CNMI are considered "to be present in the United States without inspection, by operation of law."

Will these PWIs (present without inspection) be eligible to adjust status? Unclear? Are they working "abroad" for purposes of L visas? Yes, as it turns out. One thing is clear: Legal Permanent Residents (so-called "green" card holders) who wish to base a naturalization application based on physical presence in the CNMI will NOT be able to do so for pre-29 November 2009 periods of time. Isn't this esoterica fun? --jcf

Beginning January 4, 2010, applicants for visas or greencards will no longer be considered inadmissible for being HIV positive. Early last month, the Health and Human Services Department (HHS) removed HIV (human immunodeficiency virus) from the definition of a "communicable disease of public health significance."

This marks a major success by immigration advocates like Fong & Chun, LLP and HIV/AIDS health advocates. J Craig Fong was cited in a recent Los Angeles Times article as one of the few immigration attorneys in the nation who work with HIV positive immigrants and who has been extremely successful in HIV waiver applications with the USCIS to overcome this ban.

Fong & Chun, LLP applauds the Centers for Disease Control, the HHS, and USCIS in recognizing that the ban against nonimmigrant visa and permanent residency applications by HIV positive individuals was wrong. --ecf

No, not the Michael Jackson, This is It. This is it for FY 2009 H-1B season. USCIS states that as of December 15, approximately 64,200 cases have been filed. That leaves about 800 slots left for H-1B applicants and perhaps several hundred on top of that since USCIS will need to account for potential denials or revocations of previously filed H-1B applications.

Back on April 1, 2009, a lot of speculation was made about how fast or slowly the H-1B quota would fill. Predictions from one day to 6 months were made. But it looks a lot clearer now... by Christmas or maybe, by the New Year. There really is no way to tell. Practitioners who focus on H-1B work like me, know that odds look dim for someone seeking a new H-1B and who hasn't started the process yet. Issues of delayed LCAs (labor condition applications) and employer FEIN (federal employer ID numbers) are wreaking havoc on how quickly anyone can prepare a new application to get in on this year's quota.

If you have not been able to file an H-1B yet. Call us about planning your case for April 1, 2010. It's never too early, but it can be too late. ---ecf

The H-1B quota is slowing reaching its limit. The so-called advanced degree cap is now full and approximately 53,800 cases have been counted against the 65,000 allocated to the regular cap. USCIS has advised that those wishing to be counted against this year's cap should submit their applications as soon as possible.

A lot has been said about how much longer the H-1B quota has lasted this year. There's a been a lot of speculation about the reasons why the quota is still open. It's pretty obvious that the economic situation has led to a reduced number of filings, but less people talk about the other reason. USCIS is generally pretty skeptical about the H-1B program, believing that many candidates for H-1B are filing marginal cases. This has increased the number of requests for evidence that USCIS has issued this season as well.

While the open cap provides an opportunity for a late-season submission, H-1B applicants and their employers should be well aware of the scrutiny they may have to endure. Working with advocates like the attorneys at Fong & Chun, LLP will ensure that you have a candid opinion before you make the decision to file an H-1B and how you can make a difference in your chances by simply being educated about the H-1B process.

Anyone wishing to file an H-1B case should call the attorneys at Fong & Chun, LLP for a free consultation and realistic assessment of their case. ---ecf

On 14 October 2009, Congressman Luis Gutíerrez of Illinois released a set of principles which he hopes will be incorporated into any Comprehensive Immigration Reform (CIR) package. As advocates for immigrants, the attorneys at the Los Angeles-based immigration law firm of Fong & Chun, we watch closely any progress on CIR.

Central to his approach are:

1. a rational and humane approach to resolving or legalizing the status of the undocumented population,

2. a mechanism to protect US and legal immigrant workers,

3. allocation of sufficient visas to stop immigrants from trying to "cut in line" or "jump the queue" and get to America earlier but illegally,

4. enhancements to protect the US homeland,

5. establish a wise border enforcement policy that reflects America's needs and values,

6. keeping together and unifying American families,

7. promotion of immigrant integration,

8. inclusion of the DREAM Act and AgJobs bill, and

9. protection of fundamental rights.

Representative Gutíerrez' statement of principles is an excellent first step as the debate over CIR begins. --jcf

PERM cases are backlogged now to December 2008. So if you have a PERM case pending that was submitted more than a year ago, DOL may entertain an email inquiry from you. But if your case was submitted in October 2008 or after, you still have a long wait ahead of you and yes, DOL does not want to hear from you at all...

USDOL reports that they have approximately 65,800 cases in the processing queue for PERM. This number also includes cases that are on appeal. Of these cases, approximately 24,600 or about 37% of the cases were issued audits.

For people waiting for final adjudication after submitting an audit response, DOL informs us that they are still working on audited cases from October 2007!

This is obviously bad news for applicants and employers who are waiting patiently for these processing queues to move forward. If you have been in this queue already, you already know that PERM has slowed down to a crawl. For anyone thinking of filing a new PERM case, be warned that since it is taking so long for an initial or final adjudication, employers and employees must be extremely careful about how their case is presented and hope that their case goes through without the additional delay of an audit. Further, take care to cover yourself and maintain status throughout the anticipated pendency of a PERM application. If you have questions about PERM or presenting a new case, contact the attorneys at Fong & Chun for a free initial consultation. ---ecf

The H-1B quota has now reached approximately 46,700 and although the USCIS has announced that they've received approximately 20,000 advanced degree applications, it still continues to accept advanced degree cases.

I have been fielding a lot of questions about whether a person is still "in H-1B status" even if they are no longer working for the employer who sponsored them. Simply put, the answer is "no." When H-1B workers are petitioned for by a specific employer, not only are they expected to work for that employer only (unless they have a concurrently approved H-1B for a separate employer), but they must always comply with the original terms of the H-1B petition. Any changes considered to be material to the employment must be reported to the US Department of Labor and possibly to the USCIS.

Further, H-1B employees are considered to be out of status if they lose their jobs or quit working for the H-1B sponsor. And as of late, the USCIS has been conducting random on-site visits to H-1B employers, interviewing the foreign worker(s), HR or the company owner, as well as verifying the terms and conditions of their work.

It shouldn't be a surprise to people that the Department of Homeland Security is utilizing their resources to crack down on employers and employees under the H-1B program.

Just 3 days ago, Senator Grassley of Iowa wrote a letter to USCIS Director, Alejandro Mayorkas, imploring him to "ensure accountability" in the H-1B program. This wasn't the first time Sen. Grassley has done so. Earlier this year, Sen. Grassley called out "Microsoft" for their usage of the H-1B program as well.

If your company is facing lay offs or you have lost your H-1B job, you need advice on how to maintain status (if possible) and/or guidance on what you may face in future applications for work authorization or work visas. ---ecf

The Bush Administration, in its final days, implemented rules to make it easier for farmers to hire temporary foreign laborers. These rules also arguably cause the reduction of wages and the proliferation of poor working conditions for all farmworkers, foreign and domestic. Although the immigration law firm of Fong & Chun is in Los Angeles, we have had inquiries about the wages and conditions of employment faced by foreign farmworkers.

The Obama administration today moved to roll back some of those Bush Administration rules. This roll-back is expected to result in an increase of about $1.44 per hour for the average wage for farmworkers -- who often do back-breaking work for very long hours. The change in rules would also protect American workers from being displaced, if Americans wish to apply for and take such jobs. --jcf

Because the debates about Health Care Reform are taking so much of the Congress' energy, the Obama Administration believes that Comprehensive Immigration Reform (CIR) will not be considered by the Congress until the beginning of 2010. The immigration law firm of Fong & Chun has many clients in Los Angeles, CA and throughout the nation who would benefit from the passage of CIR. In a recent article, President Obama restated his commitment to humane immigration law reform.

Two of the most anticipated provisions of CIR would be the Development, Relief, and Education for Alien Minors Act (DREAM Act) and the Uniting American Families Act (UAFA).

The DREAM Act would allow the normalization of the immigration status of certain undocument students who were brought prior to age 16 to the United States by their parents or guardians. These students have lived and been educated in the USA, and it would be fundamentally unfair to deny them immigration status, when they did not come to the USA through their own decision, and when the USA is often the only country these students have ever really known.

UAFA would correct a long-standing inequity under immigration law and would permit US Citizens and Legal Permanent Residents to petition for and bring their permanent partners to the USA on the same footing and subject to the same conditions as traditional married couples.

Although CIR will not be debated in Congress until the beginning of 2010, we are still urging Americans to be ready to write both of their Senators and their Congressional Representative in support of CIR. Further, we are also asking Americans also to write their state governors and full city councils, encouraging them to contact Washington to urge passage of CIR.

For more information about CIR, also see the Fong and Chun blogs of
29 June 2009
26 June 2009
--jcf

H-1B quota update...what's going on with the H-1B cap? Just updated today, the USCIS now reports that as of August 14, 2009, about 45,000 cap-subject cases have been received. So that's about 100 more than what USCIS reported a week ago.

Based on what USCIS has reported in the last 4 months, this seems to be a pattern. Up by 100, down by 100. Whatever the reason, H-1B season remains open! At some point, cases already counted in the queue can also be denied, so that might keep the quota open longer.

As for the advanced degree cap, commonly called the "advanced degree quota," USCIS tells us in their most recent H-1B quota update that they have collected approximately 20,000 applications. However, the USCIS reports that they will still continue to accept master's (advanced) degree cases until the quota has been filled.

Something that I counsel clients about is that there are also cap-exempt cases that can be filed. However, the only quota-exempt cases that are accepted are those filed by employers that are bona fide non-profit organizations, which have a documentable relationship with US colleges or universities. Granted this is a small exception, many clients have found this to be useful when working around the quota. Plus, filing fees are cheaper! --ecf

As a direct result of the Ruiz-Diaz religious worker litigation, the USCIS announced this week that religious workers should file their I-485 applications for adjustment of status by the end of this month.

The USCIS issued this statement to remind religious workers to file for adjustment of status if they have pending or approved I-360s. The reason for this comes from the fact that the employment-based fourth preference category will become unavailable beginning September 1, 2009. The USCIS will only accept adjustment of status applications from those ministers or non-minister religious workers if they have a pending or approved I-360.

Filing an adjustment of status application will toll or protect the worker from accruing unlawful presence. Religious workers or religious organizations that have questions regarding this should call Fong & Chun, LLP as soon as possible to ensure that they protect their workers and/or their organization from employer sanctions or other immigration penalties. --ecf