Matches.jpgThe recent Los Angeles arson situation brings to mind many people who have consulted the attorneys at Fong & Aquino in our Los Angeles and Palm Springs offices. They have a valid visa or legal permanent residence (green card), and they have been convicted of a crime. Sometimes it is a serious crime; sometimes it is something minor. In some of these cases, the conviction has virtually unfixable immigration consequences.

In 1990, Congress created the concept of “aggravated felonies,” crimes that are considered so bad that an alien might not even qualify for the typical defenses to deportation (removal), such as asylum, cancellation of removal, or withholding of removal. In other words, the Congress has simply decided that someone who has committed an “aggravated felony” should just be deported (removed) regardless of the defenses s/he might try to use.

The name “aggrevated felony” is misleading. “Aggravated felony” includes such obviously serious crimes as murder, rape, or arson; we can all agree that these crimes are quite serious. However, “aggravated felony” can also include some less- obviously terrible crimes, such as attempted possession of stolen property, attempted robbery, petty theft, trespass, unauthorized use of a vehicle. Even if a crime was charged as a misdemeanor in the legal system, it can still be considered an “aggravated felony” for immigration purposes.

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

empty_gas_tank.pngThe 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.

DOMA Letters.pngFong & Aquino has a very long history of serving the gay and lesbian community, and communities with non-traditional family structures. At our offices in Los Angeles and in Palm Springs, we are constantly asked about whether the US citizen in a married, same-sex couple can petition the alien spouse. Alas, as of today, the answer is still NO, based on the anti-gay Defense of Marriage Act (DOMA) which is still the law of the land.

The good news is that the Judiciary Committee of the US Senate today began a debate that is a first step in an attempt to repeal DOMA. After today’s hearings, many people with experience on Capitol Hill believe the votes are there on the committee to send the bill to overturn DOMA to the Senate floor. However, in the Senate, there must be 60 senators — the so-called “supermajority” — willing to bring the question to the floor, before the measure can actually be voted on. Finally, if it passes the Senate, most experts feel the measure would die a quiet death on a committee in the House of Representatives.

There is movement in the Congress. It is important for all those for whom this is an important issue — for their own families, for their friends, or for a fundamental fairness principle — to contact their US Senators and Representatives to voice their support for the repeal of DOMA! –jcf

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 & Aquino if you would like a consultation on an H-1B application. –ecf

Stopwatch 15 secs remaining.jpgThe 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.

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
  • headstones.jpgLately, the attorneys at Fong & Aquino have been fielding a number of inquiries from families about what to do when their petitioner passes away. These inquiries have been especially common from our offices in Los Angeles and Palm Springs. Clients will usually ask if there is a way that they can obtain a substitute sponsor. This is known as requesting “humanitarian reinstatement” of the petition from the U.S. Citizenship & Immigration Services, or USCIS.

    For example, a father became a naturalized citizen in 1996 and then immediately filed a petition for his adult son in the Philippines. Although the petition was quickly approved, the priority date would not become current for many years due to the backlog and demand for visas. This delay is due to the Priority Date system used by USCIS and Department of State to determine who is next-in-line. Unfortunately, during the waiting period, the father passed away. Under current regulations, an approved petition is automatically revoked upon the death of the petitioner. The surviving members of the family reside in the United States. Certain members of the family would be eligible to be the substitute sponsor for purposes of the affidavit of support, but the first step would be to request that USCIS reinstate the petition.

    In order to do so, USCIS considers the following factors:

    graduation.jpgOn 9 October 2011, Governor Jerry Brown of California signed the California Dream Act. This bill permits undocumented immigrants to attend California public university and community colleges, providing them access to state financial aid. Only three states in the USA permit undocumented immigrants to qualify for state financial aid for college: California, New Mexico, and Texas.

    To qualify, students must graduate from a California high school, after having attended school in California for a minimum of three years. The student must also sign a declaration that they are in the process of adjusting or legalizing his/her immigration situation. It is not yet known what exactly students will be attesting to when they say they are “in the process” of legalizing.

    Immigrants should be very clear: the California DREAM Act is for undocumented immigrant students wishing to go to university in this state. The California DREAM Act does NOT provide legal immigration status, does NOT make the student immune from removal or deportation, does NOT permit the student to work in the absence of an Employment Authorization Document from the US immigration authorities, and does NOT permit the student to travel out of the USA and to return.

    hanging onto time.jpgSeptember 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 & Aquino if you’d like an assessment of your labor certification or H-1B case, don’t wait another second! –ecf