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Archive for January, 2008
Friday, January 18th, 2008
If you have gone through the recruitment process for a PERM labor certification application, you know how extensive and exhaustive that process can be. Companies going through the labor certification process for professional positions must advertise in six different venues. Three mandatory types of recruitment are: the state job bank, two Sunday print ads, the internal posting. The three alternate types are chosen from a list of ten additional recruitment methods.
One of the most frequently used options on this alternate list is an internet job search website, and one of the most popular of those is American’s Job Exchange (AJE) (formerly American’s Job Bank). The issue that sometimes arises is that a few state workforce agencies actually use AJE for their own state job bank postings. Good practitioners are very careful to make sure they are not duplicating advertising efforts by using AJE as an alternative advertising option when the state in which the position is located uses AJE themselves.
Unfortunately, it appears that the Atlanta office of the Department of Labor (DOL) must be unaware of which states post to AJE. One example is the State of Florida. Although the Florida State Workforce Agency has confirmed that they do not post their job openings on AJE, the Atlanta DOL has denied PERM certifications for just that reason – stating that AJE as an alternate form of recruitment was invalid because Florida had already posted the job there.
What could be more frustrating than waiting months for an important application to be processed only to have it denied by officer error? Trying to CORRECT that error! There is no email communication, and calls are rarely – if ever – returned. Filing an appeal seems to be the only method of getting through to the office, but appeals are languishing at the Atlanta office for many months, with no end in sight. Unfortunately for these foreign national workers, it seems that the best option is starting over and re-filing the application. As difficult as the PERM process is anyway, incorrect and inconsistent decisions by the DOL is making navigating this process even more difficult.
Posted in Labor Certification (PERM), News, Other | No Comments »
Friday, January 18th, 2008
1. It’s the I-94 that governs your stay in the U.S., not the Visa
When a foreign national enters the United States in nonimmigrant status, he/she will receive an I-94 Arrival/Departure Record at the port-of-entry. This I-94 card will state the class of admission (such as B, H, L, F etc) as well as the expiration date of the nonimmigrant status. It is the expiration date on the I-94 card that governs one’s stay in the United States. If a foreign national remains in the United States past this date (without having a pending extension or change of status application at that time), he/she will be out-of-status (or illegal).
A U.S. visa, on the other hand, allows the foreign national to apply for entry to the U.S. in a certain classification (e.g. student (F), visitor (B), temporary worker (H)). A visa does not guarantee entry to the United States. The Department of State (DOS) is responsible for visa adjudication at U.S. Embassies and Consulates outside of the U.S. The Department of Homeland Security (DHS), U.S. Customs and Border Protection (CBP) immigration inspectors determine admission into, length of stay and conditions of stay in, the U.S. at a port of entry. The information on a nonimmigrant visa only relates to when an individual may apply for entry into the U.S. DHS immigration inspectors will record the terms of your admission on your Arrival/Departure Record (I-94 white or I-94W green) and in your passport.
In some cases, the admission period you receive on your I-94 will be different than the validity dates shown on your visa. This is particularly true for some categories of visas, such as E visa holders (who normally receive 5-year visas, but are admitted for only two years at a time) or for certain nationals (such as Chinese H-1B visa holders (who normally receive a 3-month visa validity, but may be authorized to remain in the U.S. for up to three years at a time). Problems may also arise where a foreign national travels on a valid, unexpired visa for a prior employer, but has since been approved for an extension of stay. For these reasons, it is very important that you check your I-94 as soon as you have been admitted to ensure that you have been admitted in the appropriate visa status for the appropriate period of time.
2. If you overstay your I-94 card for even one day, your visa is automatically cancelled
Under Section 221(g) of the Immigration and Nationality Act, a foreign national’s nonimmigrant visa is automatically cancelled if the foreign national overstays the expiration date of his/her I-94 Arrival/Departure Record. (Some exceptions exist for those who have legitimate extension or change of status applications pending.) If the visa is cancelled, a foreign national cannot use it to reenter the United States and must apply for a new visa at a U.S. consulate abroad B normally in one’s home country. Why is 221(g) important to keep in mind when in the U.S.? First, violating one’s nonimmigrant status could have a negative impact when applying for another visa abroad. Second, as hard as it is to get a nonimmigrant visa approved at a U.S. consulate abroad, once a foreign national has it why do something to lose it? Third, being forced to apply for your visa in your home country can be expensive and time-consuming, particularly for nationals of China and India. Do not overstay the expiration date on your I-94 card.
3. If you enter the U.S. with your spouse, don’t forget about him or her!
We have seen many situations where a person enters the U.S. in H1B status with his or her spouse who enters as a dependent in H4 status. However, when the H1B nonimmigrant applies to extend his/her status, they forget to do the same for the spouse. Often the main applicant thinks that the spouse’s status is automatically extended when his/her extension application is approved. This is not the case. One must file a separate application to extend the status of the dependent spouse. If this is not done, the dependent spouse can fall out-of-status and be subject to removal from the United States. This applies not just to persons who enter in H status, but many other nonimmigrant statuses as well. So do not forget about your spouse!
4. If you enter under the Visa Waiver Program, you cannot change or extend your status
The Visa Waiver Program allows citizens of certain countries, traveling temporarily to the United States under the nonimmigrant admission classes of visitors for pleasure and visitors for business, to enter the United States without obtaining nonimmigrant visas. Admission is for no more than 90 days. Unlike a person who enters the United States as a visitor with a B1/B2 visitor visa, a person who enters under the Visa Waiver program cannot extend their stay in the United States nor can they change their status to another nonimmigrant status. Furthermore, if a person who enters under the Visa Waiver program overstays his/her I-94W Arrival/Departure Record or otherwise violates his/her nonimmigrant status, he/she can no longer enter the U.S. under the Visa Waiver program and must apply for a B1/B2 visitor visa at a U.S. consulate abroad.
5. If you’re not sure about something, ask for help
U.S. immigration law is complicated. Even the smallest violation of one’s nonimmigrant status could result in removal, bars to reentry and other negative consequences. Sometimes it is difficult to understand what a person can or cannot do while holding a certain nonimmigrant status. For example, can an H1B work on the side for someone other than his/her employer? Can a student in F status do volunteer work? What will result in a visitor in B status violating his/her status? If you’re not sure, ask a qualified immigration attorney for advice. A little good advice could save you many headaches in the future.
Posted in Family Immigration, H1B Visas, News, Other | No Comments »
Sunday, January 13th, 2008
The United States Department of State (DOS) released its February 2008 Visa Bulletin. As we predicted in a recent issue of our Immigration News Weekly, the Employment-Based Second Preference Category (EB2) for Indian nationals has become ‘unavailable’. That means the demand for this category has exceeded the supply of immigrant visas available for this fiscal year.
To view the entire February Visa Bulletin, please go toTHIS LINK and click on State Department Visa Bulletin.
We will discuss the February Visa Bulletin and the ramifications of EB2 unavailability for Indian nationals in the next issue of our Immigration News Weekly.
Posted in News, Visa Bulletin | No Comments »
Sunday, January 13th, 2008
We are in the business of helping people. So it makes us feel good when clients tell us how happy they are that we helped them.
For this particular client, our office filed an I-140 Immigrant Petition for Alien Worker under the National Interest Waiver (NIW) category. We also filed an I-485 Adjustment of Status application concurrently with the I-140 petition since the priority date was current for her country of nationality. Through the hard work of a number of staff members at the firm, the client’s I-140 NIW application was approved. And subsequently the I-485 adjustment application was recently approved as well. Now the client is a permanent resident of the United States and can begin the process of eventually becoming a U.S. citizen.
Dear Mr. Bashyam,
Yesterday I received my green card!
Thank you so much for your work on my case: I am very satisfied with the result.
I highly appreciate the quality of assistance of Pamela Prather and Tina Huber in preparation of my documents for the application and during the pending process. I found that all members of your team are very knowledgeable and very particular about all details of the process.
I will recommend your firm to my colleagues and friends.
I wish you all the best and Happy Holidays!
Sincerely,
(Name Edited)
Posted in Other | No Comments »
Sunday, January 13th, 2008
U.S. Citizenship and Immigration Services (USCIS) announced that it has received a sufficient number of petitions to reach the congressionally mandated H-2B cap for the second half of Fiscal Year 2008 (FY2008). USCIS said that January 2, 2008 is the “final receipt date” for new H-2B worker petitions requesting employment start dates prior to October 1, 2008. The “final receipt date” is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 33,000 H-2B workers for the second half of FY2008. USCIS will reject petitions for new H-2B workers seeking employment start dates prior to October 1, 2008 that arrive after January 2, 2008.
USCIS will apply a computer-generated random selection process to all petitions which are subject to the cap and were received on January 2, 2008. USCIS will use this process to select the number of petitions needed to meet the cap. USCIS will reject, and return the fee, for all cap-subject petitions not randomly selected.
Petitions for workers who are currently in H-2B status do not count towards the congressionally mandated bi-annual H-2B cap. USCIS will continue to process petitions filed to:
· Extend the stay of a current H-2B worker in the United States;
· Change the terms of employment for current H-2B workers and extend their stay; or
· Allow current H-2B workers to change or add employers and extend their stay.
We will provide more information about the H-2B cap and program when it becomes available.
Posted in H2B Visas, News | No Comments »
Sunday, January 13th, 2008
U.S. Citizenship and Immigration Services (USCIS) announced that the suspension of premium processing services for religious worker (R-1) visa petitions will be extended until July 8, 2008. A previous six-month suspension was announced on June 18, 2007.
The Premium Processing Service provides faster processing of certain employment-based petitions and guarantees a 15-calendar day processing time. Due to the complexities with adjudicating R-1 visa petitions, USCIS said that they cannot reasonably ensure a level of processing service within 15 calendar days.
On April 25, 2007, USCIS proposed significant revisions to its regulations related to the special immigrant and nonimmigrant (R-1) religious worker visa classifications. USCIS is currently considering comments on the proposed rule and promulgating the final rule. The proposed rule suggested steps to eliminate fraud in the religious worker program and discusses concerns addressed in an August 2005 Benefit Fraud Assessment conducted by USCIS’ Office of Fraud Detection and National Security. That assessment revealed potential vulnerabilities in the religious worker program.
USCIS will continue processing R-1 visa petitions which include already-established procedures designed to ensure the legitimacy of the petitioner and statements made in the petition. The procedures may include inspections, evaluations, verifications and compliance reviews for religious organizations – procedures that exceed the 15-day guarantee for premium processing.
In the future, if USCIS is able to properly process these cases within 15 calendar days of receipt, the Petition for a Nonimmigrant Worker (Form I-129) requesting R-1 nonimmigrant visa classification may once again be available for premium processing services. Additionally, USCIS may prescribe additional conditions of availability on the Premium Processing Service for religious worker petitions. We will keep you posted on this issue as additional information becomes available.
Posted in News, Religious Workers | No Comments »
Tuesday, January 8th, 2008
Having been immigration lawyers for over a decade, we have provided advice to thousands of immigrants on a variety of immigration matters. One of the most difficult areas of immigration law to explain to an intending immigrant is the concept of priority dates and immigrant visa numbers. If you have had a consultation with a lawyer on obtaining permanent residency, you may have heard a lawyer say, "you have to wait until an immigrant visa number is available and your priority date becomes current." That sounds nice, but what do all of those words mean?
A ‘priority date’ is the date a labor certification or immigrant petition (I-140 or I-130) is filed on your behalf. The date the case is received by the government agency is your priority date. For example, if you are an employee of Corporation Inc. and they file a labor certification for you that is received by the Department of Labor on January 11, 2008, that becomes your priority date for the rest of your case. If a labor certification is not needed for your case, the date an I-140 Immigrant Petition for Alien Worker is filed on your behalf is the priority date. In the family immigration context, if you are a U.S. permanent resident and you file an I-130 Petition for Alien Relative for your spouse in Russia on January 10, 2008, that date becomes your spouse’s priority date. These are just a few examples of how a priority date can be set for an intending immigrant.
An ‘immigrant visa’ is the legal term for permanent residency or "green card". The U.S. government created per-country limits on immigrant visa or permanent residency availability. There is a maximum number of family-based and employment-based immigrant visas that can be issued to citizens of each country in a fiscal year. If the demand for immigrant visas exceeds the numbers allotted for a country in that year, an immigrant visa would be ‘unavailable’.
So what does an ‘immigrant visa’ have to do with a ‘priority date?’ The Department of State issues a Visa Bulletin every month that provides the date of immigrant visa availability for all employment and family-based preference categories. If an intending immigrant has a priority date that is on or before the date listed in the Visa Bulletin for his/her preference category and nationality, then a visa is available for that person. An available visa would allow the applicant to apply for an I-485 adjustment of status or initiate consular processing of their residency application outside the United States.
For example, Corporation Inc. files a labor certification on your behalf on January 10, 2008 and it was received by the Department of Labor on January 11, 2008. That is your priority date. Your labor certification was then approved on June 15, 2008. Your employer can file an I-140 Immigrant Petition for Alien Worker on your behalf once the labor certification is approved. However, whether or not you can file an I-485 Adjustment of Status Application depends on whether an immigrant visa is available to you. You would need to look at the Department of State Visa Bulletin for June, check the priority dates for your preference category and country, and see if your priority date is on or before that date. If so, you can go ahead and file the I-485 adjustment because a visa number is available. If your priority date is later than the date in the Visa Bulletin for your preference category, you will have to check the Visa Bulletin in each of the subsequent months to see if the date has changed. Only if an immigrant visa is available based on your priority date can your residency case move forward to completion.
Posted in I-140 Petitions, I-485 Adjustment of Status, Labor Certification (PERM), News, Visa Bulletin | 57 Comments »
Saturday, January 5th, 2008
To read the USCIS application and receipting update as of December 14, 2007, please go to THIS LINK.
On January 1, 2008, the fee to apply for any non-immigrant visa to enter the United States, including tourist, business, student and other visas, will increase to $131 world-wide. This increase will also apply to Border Crossing Cards. To read more, please go to THIS LINK.
The Department of Labor Backlog Elimination Center issued Round 8 of its Frequently Asked Questions (FAQ). To read the entire FAQ, please go to THIS LINK.
Speaking of labor certifications, the PERM system started relatively smoothly but it looks like the Department of Labor is starting to change the rules in the middle of the game. As a result, it is important that law firms and employers adapt accordingly, and that expectations are realistic given this ever-evolving process.
Our firm will be holding a series of seminars in early 2008 that will address various PERM-related issues. The first seminar will be on the PERM recruitment process – what do employers have to do, who has to be interviewed, and what needs to be documented. We will most likely have video-conferencing capability for our clients and readers in other parts of the United States. We will provide more detailed information on this seminar in January, but if this sounds interesting to you let us know by sending us an email to info@bashyamspiro.com. We would love to hear if you have any suggestions for future topics as well.
Posted in News, Other | No Comments »
Saturday, January 5th, 2008
It was an interesting year in the world of immigration. In April, we had over 130,000 H1B applications filed for less than 65,000 H1B cap numbers. That showed how much our economy depended on and needed professional workers from overseas. Then the Department of Labor issued a Visa Bulletin that showed the first three employment-based categories as being current, only to revoke it a short time later. Of course, they then reinstated that Visa Bulletin and hundreds of thousands of immigrants were finally able to file their adjustment of status applications and obtain Employment Authorization Documents. And finally, after months and months of debate on illegal immigration and employer sanctions for hiring illegal workers, our government failed to pass a bill on comprehensive immigration reform. This shattered the hopes of millions of immigrants who hoped to legalize their status, as well as the hopes of employers who wanted more H1B numbers and immigrants who wished for reform in our outdated and ineffective immigrant visa number system. That was 2007 – a tough year for immigration but one that had some bright spots as well.
As we move forward into 2008, we need to continue to press our government to change the things that caused problems in the past. We need more H1B and immigrant visa numbers. We linked to the January 2008 Visa Bulletin in our last newsletter, which showed that employment-based category two (EB-2, which applies to advanced degree professionals and aliens of exceptional ability) for Indian Nationals had retrogressed to 2000, even further back than employment-based category three (EB-3, which applies to other professionals and skilled workers)! The EB-2 category is even expected to become ‘unavailable’ in the coming months. This would delay decisions on adjustment of status applications indefinitely. Our country cannot continue to keep our companies at a competitive disadvantage with their counterparts in other parts of the world, nor should it tolerate a system where a hard-working immigrant who ‘plays by the rules’ is kept in limbo for many, many years. With all of our advances in science and technology, the United States ought to have a system where immigration applications are processed quickly and efficiently. This will be the challenge in 2008 – to persuade your U.S. Representatives and Senators that the immigration system needs to change. Without your voice being heard, changes that help businesses and foreign workers are unlikely to happen. We here at BSE Immigration Law Group will continue to keep you updated on legislative news in 2008, as well as work tirelessly to help make change happen.
Posted in News, Other | No Comments »
Saturday, January 5th, 2008
On October 31, 2007, the Department of Homeland Security (DHS) issued a final rule that removed the requirement that a person who has an I-485 adjustment of status application pending and travels using H or L status have an I-797 receipt notice for the I-485 adjustment application before leaving the United States. Under the old rule, the person must have an I-797 receipt notice for the adjustment application before travel to avoid having such application deemed abandoned. This new rule is a result of excessive delays by the Immigration Service in issuing I-485 receipt notices. The final rule is effective November 1, 2007. For more information on this final rule, please do not hesitate to contact our office.
Posted in I-485 Adjustment of Status, News, Other | No Comments »
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