Immigration Visa Attorney Blog

Fiscal 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 Fong & Chun 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

It'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 Fong & Chun 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 Fong & Chun 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 Fong & Chun, LLP for a free consultation. ---ecf

The 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 Fong & Chun 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 Fong & Chun 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

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

The 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 Fong & Chun a call to set up a consultation so we can ensure that your petition is one of the first ones received next year. ---ecf

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 Fong & Chun, LLP if you would like a free consultation on an H-1B application. --ecf

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 Fong & Chun a call now. ---ecf

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 Fong & Chun 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

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 Fong & Chun 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 Fong & Chun, LLP 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.

Fong & Chun, LLP is proud to run our office on Apple technology. We love our Apple computers, iPhones and iPads. But more importantly, the immigration attorneys at Fong & Chun 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 Fong & Chun 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 Fong & Chun, 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 Fong & Chun, 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 Fong & Chun, LLP 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 Fong & Chun 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 Fong & Chun, LLP 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 Fong & Chun, LLP 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 Fong & Chun 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