Immigration Visa Attorney Blog

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

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

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

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

Breaking news. Just posted today are the H-1B quota numbers. It is the same as my previous posts. Cap count is approximately 44,900. Roughly two weeks ago, USCIS reported the cap count was approximately 44,900. So no difference in the quota count to report.

USCIS is still accepting regular H-1B cap cases. USCIS is still accepting US Master's degree H-1B cases, also known as advanced degree cap cases. Nothing much new here. But check back in a couple of weeks. In the meantime, we'll continue to post other topics of immigration interest and intrigue! ---ecf

The H-1B quota has been hovering around the 45,000 mark since April when the H-1B filing period first opened. I have been giving updates every few weeks when the USCIS releases new counts on the number of H-1B cap-subject petitions that have been filed.

We have watched the FY 2010 H-1B numbers yo-yo back and forth from 44,400, 44,900 and 45,000 since June 12, 2009 to present. On July 10, the USCIS announced that it had received approximately 44,900 petitions, about 100 less than the approximately 45,000 reported received on July 3.

What is the reason for the up and down in numbers? Denials, lay offs, less jobs being offered. Sometimes, cases aren't filed properly, something as simple as a typo on the filing check can result in a rejection, though not a denial. Those types of cases can be re-filed, assuming that the quota is still open as it remains today.

Other cases, which could have been marginal, will get denied. Sometimes, employers file for H-1Bs without knowing how to present a properly certified LCA, other times, a job description does not meet the criteria for a specialty occupation. Lots of things can go wrong in filing for an H-1B. And finally, the USCIS makes mistakes too, denying cases, perhaps by applying the wrong standard as they did recently in the case of health care specialty occupations. Wow, USCIS makes mistakes. Imagine that!?!

Premium processing is now available again for religious worker petitions. After a long hiatus which caused many delays in religious worker processing, the USCIS is once again accepting premium processing (Form I-907) on R-1 petitions for religious workers, ordained ministers, nuns, monks, priests, religious education teachers, cantors, etc.

The premium processing service in which employers or workers will get a response in 15 calendar days is however, only available to religious organizations that have already passed a site visit or Benefit Fraud Assessment (BFA) by the USCIS Office of Fraud Detection and National Security.

The availability of the premium processing service will alleviate the long waiting times and delays caused by the new regulations in procedures for bringing in R-1 workers. Wait times for an I-129R adjudication without premium processing can be months. However, religious organizations which have already attained a positive BFA can utilize the premium processing service and avoid those costly delays. If you or your employer are awaiting a BFA or are awaiting the results of a site visit, you can call Fong & Chun, LLP to see if there is any way to take advantage of the premium processing service or request that the final results of the BFA be issued without further delay. ---ecf

The immigration law firm of Fong & Chun in Los Angeles has received several calls about artists who have been involved in the preparations for the series of Michael Jackson concerts which were scheduled to take place in London beginning this summer. The performer's recent death has thrown arrangements for those concerts into chaos.

Although the Jackson concerts were to take place in the United Kingdom, extensive preparations were taking place both in the UK and in the United States. In preparation for any big rehearsal, event, performance, or concert, teams of make-up artists, costume designers, hair stylists, choreographers, dancers, back-up vocalists, special effects personnel, music arrangers, musicians, lighting engineers, etc. etc. come together to create the shows that so many enjoy. The number of people involved with a complex series of high-tech, music and dance spectaculars can be upwards of 50 -100 people, not all of them American.

Renowned performers and artists can qualify for the O-1 visa ("extraordinary ability in the sciences, arts, education, business, or athletics) to enter the USA. However, when something catastrophic happens -- like the death of a performer -- the performance or concert on which the O-1 visa is based is cancelled, the performer or artist risks falling out of legal immigration status.

For individuals who have visas which are predicated on a set of facts -- an individual employer, a detailed job description, a specific person, a particular school or academic program, etc., -- it is vital to consult a knowledgeable immigration attorney if there has been any substantial change, in order to preserve visa status. --jcf

Those who are patiently awaiting their EB-3 and EB-2 petitions to become current probably check the Department of State's website every month for the newest visa bulletin. Many of you have probably been in the processing queue for several years, are on AC-21 extensions of your H-1B, or are relying on your work permits (EADs), and EAD renewals year after to year so you can keep working legally while you await your "greencard." Some of you are facing situations where your children face "age out" issues and even more of you are awaiting permanent residency so you can then travel legally to visit relatives in your home country. Some may waiting abroad. Nonetheless, you are all waiting and waiting...

The July 2009 visa bulletin released by the US Department of State confirms what we already know - that waiting times are painfully long and slow. But an announcement by the US Department of State's Visa Office to the American Immigration Lawyers Association (AILA), confirms what we have dreaded along: that the situation is "dire" and will amount to extended delays beyond what you have already endured.

The Visa Office has already indicated that the worldwide cutoff date for EB-3 will be set on or around March 1, 2003. With any luck, we may see quick advances in that category near the beginning of 2010, but I'm not counting on it.

Based on current EB-3 demand, India's cut off date in October 2009 will be set at November 1, 2001 and China and Mexico only slightly better March 1, 2003 cut off dates. However, given how tough USCIS has been lately in adjudicating I-140s and even adjustment of status petitions, a lot can change between now and October 1, 2009. You should remember that these estimations from the Visa Office are just estimates.

From bad to worse: the EB-2 estimates for China and India. Come October 1, 2009, the Visa Office expects that the cut off dates for China and India will both be January 1, 2000.

EB-1 for China and India will probably experience a cut-off date in August, too.

As for religious workers who can now file concurrent I-360 and I-485 applications, you are forewarned as well. This year, the Department of State has announced that a surge of applications may also cause a cut off date before September. But since this category is still current, you should take advantage of it now!

This report underscores the need for immigration reform. Without legislative relief, these backlogs will just continue to grow. It's unrealistic to think that employers will continue to play this waiting game. The most talented of workers will be recruited by companies abroad. And if US employers have to, they will continue to outsource to the very professionals who could have generated significant revenue for our government if they were in the US paying state and federal income taxes. They could also be contributing to another program on the brink: social security. --ecf

Since April, I have been keeping track of the FY 2010 H-1B quota cap. I've posted each of the USCIS updates on the FY 2010 H-1B count and today's update confirms that the H-1B quota is still open. Many of us expected that as in years past, the H-1B quota would be reached on April 1, which the first date that H-1B petitions are received. If not the first day, then within the first week of April. And if not by then, certainly by the summer months. We were all wrong.

Perhaps it should not be much of a surprise that with unemployment rates at an all-time high, the often-coveted H-1B visa for professional, skilled workers is still available today. USCIS reported today that about 44,400 H-1B applications have been filed to date. And as I have been reporting, USCIS has and will continue to make allocations for accepting more than enough applications because the agency has repeatedly reminded the public that many H-1B petitions will be denied.

Today's H-1B update confirms just that: lots of denials.

As of May 29, 2009, the USCIS announced that they received 45,800 petitions against the regular cap, and that although they had received approximately 20,000 petitions for the advanced degree cap, they would still accept petitions for both caps.

Less than 2 weeks later, USCIS announces that they have 44,400 or 1,100 petitions less than on May 29, 2009. This is due to the large numbers of denials they have been issuing recently. Anyone with a pending application or one that has received a Request for Evidence will confirm that H-1Bs applications are being treated with higher scrutiny that in previous years. This is not necessarily fatal for those employers and applicants that have strong cases, but before you entertain the thought of filing and H-1B petition, you should seek advice on what to prepare in advance of an H-1B RFE. --ecf