CIS Proposes Amendment to Facilitate H-2 Non-Agricultural Status

The USCIS has proposed liberalizing the H-2B requirements by allowing H-2s to hold that status for up to three years and after three years, to only be required to depart the U.S. for three months (rather than the current six months). The H-2B status applies to employers who require temporary services of the alien based upon the employer's need, regardless of whether the underlying job is permanent or temporary: peak load, one time occurence, seasonal or intermittent.

245(k) memo great benefit to employment based adjustment applicants

CIS issued a memorandum that greatly benefits employment based aliens with status violations or expired status. The usual rule that an employment based alien must be in legal status to qualify for adjustment of status to permanent residence in the U.S. doesn't entirely apply to employment based aliens. Aliens with fewer than 180 days in an expired status and/or status violations since their last entry are still able to adjust. So, if you are on a nonimmigrant working status and worked for an employer who is not your petitioner or your status expires, you are still eligible to adjust status to permanent residence with a labor certification and/or and i-140 petition, as long as those violations do not exceed a total of 180 days. This is of great benefit, particularly to H-1 aliens, who must file a labor certification before the start of their sixth year to extend their H-1 while the labor certification is pending but for whatever reason their labor certification is not pending for at least 365 days prior to the six year expiration of their H-1. Unless a labor certification is filed before the start of the sixth year in H-1 status, an H-1 is ineligible to extend their status. Such person can still adjust status, even though they don't qualify to extend their H-1, as long as they are able to file their adjustment of status application within the 180 days of their H-1 expiry. Such person would be out of status until the adjustment of status application is filed, but is forgiven as long as they can file their adjustment of status application within the 180 days of their H-1 expiry. This assumes that the alien has no other status violations during any other time frame after their last entry and that their priority date is current (i.e., no backlog due to quota) at the time they must filed the adjustment of status application.

No more J-1 flight instruction

Flight instruction will no longer be possible as of June 1, 2010 in J-1 exchange visitor training status. Program sponsors and schools are required to continue providing service to their J-1 students until the end of their programs. 

The Dept. of State found that there are eight flight instruction schools and approximately 350 students in J-1 status studying among them. All flight training programs no longer are viewed to further the public diplomacy mission of the Dept. Dept. of Homeland Security has been better charged with this responsibility according to Dept. of State and flight instruction students will continue to qualify under the M-1 status through DHS

Update on Iraqi Refugees

I knew it was time for Iraqi refugees. The U.S. and other governmental and non-governmental organizations are gearing up for Iraqi refugee applications abroad and in the U.S. Applications for refugee status are being accepted through a consortium of thesee organizations. Iraqis currently in the United States may apply for asylum with USCIS.

To qualify as a refugee or asylee is based on U.N. standards: a person must fear persecution on account of race, religion, membership in a particular social group, ethnicity or political opinion. These are characteristics that cannot be the source of discrimination and much worse, far beyond what is humanly acceptable. 

Fill out an initial consultation form to arrange for further details.

China and India 2nd Preference

China and India Second Preference Employment based permanent residence cases are backlogged to priroity dates before June 2006. This means that for aliens who are native born in these places, labor certifications or immigrant petitions filed before then are eligible as of August 1, 2008 to adjust status in the U.S. or consular process for those not in the U.S. Those who enter after this process do that on an "immigrant visa." 

The choice of procedure, "adjustment of status" or "immigrant visa" can mean the difference between approval or being held longer in the queue, by years potentially. 

A priority date is the date that establishes where an immigrant petition beneficiary for processing purposes. There are more visas applied for than are available. As a result, a line was formed many years ago and based on the availability of visas for that year and demand for those visas. Retrogression occurs when the date of availability of an Immigrant Visa goes backward in time. For example if in April 2007 the number of IVs availabe fell on 5/16/2003. This would mean that at that time visas were available on 4/1/2007 for labor certifications or immigrant petitions filed before 5/16/2003. From that date, forward to May 2007. If on 5/1/2007 availability went backward to 6/27/2001, it would have gone backward in time. 5/1/2007, only petitions filed prior to the 6/27/2001 date could be processed for that month. Visa availability it updated every month in the Department of State Visa Bulletin. When the priority date retrogresses, the case can take much longer. This has been so quite often in recent years due to the large number of Indian and Chinese immigrants to the U.S.

It should be noted that the U.S. owes its technology and prior innovative industries, such as the automobile manufacturing industry, to computer hardware and software design, and design and implementation of factory line manufacturing and the industrial revolution, to aliens, like today's Indians and Chinese. We look forward to the opportunity of working with you.

The world can only be familiar and peace like through exposure to each other. Welcome! Let's find a new means of energy, and we'll be on our way toward that trajectory. Along the way, note your priority date and pursue adjustment or consular processing.

Iraqi Refugees

Beginning February 2007, 6,480 Iraqi refugees have arrived in the U.S. A total of 27,940 Iraqi people have applied. CIS has interviewed 18,926 and have approved 13,067. Iraqis fearful to return to Iraq based on persecution on account of religion, race, political opinion, membership in a particular social group or ethnicity who are physically in the U.S. may apply for asyum. The figures above only apply to those who apply abroad. The difference between refugee and asylee is the location of application. Both are granted when there is persecution for one of the above reasons.

I-140 premium processing

I-140s can again be premium processed for those aliens who are ineligible to get extensions of H-1 status beyond six years. This is welcome relief for those who could not file I-140s within six months of labor certification approval by shortening the waiting time abroad or in another immigration status by the period of time it would have otherwise taken for I-140 adjudication. Many months are saved this way for such people.

EB-3 adjustments available until 6/30

Beginning July 1, 2008, the EB-3 category for Bachelor Degree Professional and Skilled Worker visas become unavailable for the remainder of the fiscal year ending September 30, 2008. All aliens with approved labor certifications with priority dates before June's availability date must submit their I-140 petitions and adjustment of status applications by June 30, 2008 to beat the July 1 cut off or have to wait at least until October 1, 2008, at the start of the fiscal year to submit their applications.

New Visa Waiver Requirements

On June 3, 2008, DHS announced an interim final rule on a new online system, the "Electronic System for Travel Authorization" for the Visa Waiver Program. Effective some time next year, all nationals of VWP countries (low fraud countries that as a result don't require visas for short term visits ,such as most European countries, Australia, Japan, etc.) who plan to travel to the U.S. under the VWP will need to receive electronic travel authorization prior to departure.

USCIS Applies CSPA Retroactively

When the Child Status Proteciton Act (CSPA) was enacted, it seemed to provide coverage for a broad range of cases: petitions and applications for immigrant visas or adjust6ments of status on or after August 6, 2002, the date of enactment. Based on early interpretation of the CSPA, most children who had turned 21 prior to August 6, 2002 didn't qualify, however, with retroactive applications of parts of CSPA, many, though not all can now qualify. 

If you or someone you know is the beneficiary, direct or derivative of an immigrant petition and you are over 21 having not yet applied for permanent residence, please contact Ms. Yardum-Hunter for analysis of your case. Contact Ms. Yardum-Hunter even if she has analyzed your case before. The rules are now different and for some people, it is easier to get permanent ("green card") resident alien status.
 

ICE Workplace Enforcement - Agriprocessor plant

ICE submitted an Application and Affidavit for a Search Warrant of the Postville Agriprocessors meat processing plant prior to the May 12 raid of the facility. These documents reflect the imperativeness of perfect I-9 compliance by employers or face devastating criminal, financial and immigration consequences. Your next hire could be a Department of Homeland Security undercover agent, who turns you over to federal criminal prosecution. Alice Yardum-Hunter counsels employers on how to avoid this devastation.

More great news...for TNs

A proposed regulation will permit TN (NAFTA professionals) from Mexico and Canada to qualify for entry for three years at a time, rather than the current one year. Mexican TNs are required to have a visa issued. Such visas as of late are permitted to be issued for three years instead of one year. The visa is the document that permits coming to a port of entry to request to be allowed to come into the U.S. Once here, until this proposal, entry would only be allowed for one year, even though the same visa could be used. Canadians could only come for a year at a time as well, with no visa.

Now, the proposal is to match the time allowed in the U.S. with time permitted to approach the border. Instead of entry for just one year, all TNs could, if the proposal is adopted, enter for three years at a time.

One of the chief downsides of the TN was nonimmigrant intent/one year entries which could be viewed as contrary to immigrant intent when the TN applies for a green card which takes several years. With renewal of the TN each year after application for a green card, TN holders could not be sure that the TN would be renewed because of the contrariness of permanent vs. temporary status. With a three year entry, applying for a green card is less likely to cause such stress.

Great News for F-1 Students

F-1 students in the sciences, engineering, mathematics and technology majors are finally being recognized for the tremendous future contributions you make to the U.S. economy and worldwide leadership. In long awaited acknowledgment of this truth, the Citizenship and Immigration Services will now allow students in these majors to get up to two years of practical training, instead of one year. In addition, when applying for H-1 status and a gap between the end of F-1 status (more than 60 days after graduation or end of practical training to the beginning of H-1 status on October 1) and H-1, the Immigration Service will permit the student to remain in the U.S. and obtain H-1 status without having ot leave or change status.

Finally some good news from the government!

May Visa Bulletin Jump Forward

The U.S. Department of State's Monthly Visa Bulletin shows a gain of eight months in the third priority category for worldwide chargability professionals in jobs requiring a bachelor degree or skilled workers to March 1, 2006, meaning that labor certification applications made on that day if approved can be the basis of adjustment of status to permanent residence as of May 1. As this date could retrogress, applications for adjustment should be filed in the month of May in this category. Natives of China, India, Mexico and the Philipines must wait longer due to greater demaind.

The unskilled worker category jumped forward by 10 months for worldwide chargability (all nationalities but China, India, Mexico and the Philippines). 

Second preference master degree professionals or those with exceptional ability from China and India advanced only one month to January 2004. Natives of all other countries are current in this category, meaning they qualify to adjust status during the month of May, at least.

Exceptional ability aliens, certain religious workers and targeted employment area and regional center employees from all countries are eligible to file for adjustment of status during the month of May, at least.

Employers with Undocumented Workers Pay More Fines

Civil fines imposed on employers who knowingly hire illegal immigrants are increasing by 25% starting March 27, 2008 for the first time in nine years. Criminal prosecutions against employer offenders is also increasing, with fines much higher, as much as nearly $1 million dollars per undocumented alien, depending on the specifics of the particular case.

The new fines for civilly knowingly hiring an undocumented worker (or discriminating against a legal worker) are from $375 to $3,200 (up by $100 to $1,000). The maximum penalty under the civil penalty law, for repeat violators is now $16,000 (up $5,000). Criminal fines are far higher.

Fines for I-9 form administrative paperwork violations of $110 to $1,100 will remain the same. 

Decreasing demand for high enough paying jobs to support families in Mexico will alleviate the problem. As Mexico's economy improves while that of the U.S. deteriodrates, there becomes less need for such jobs in the U.S., but despite the move toward each other's economies, the economies of the U.S. and Mexico remain significantly enough apart that the conundrum of unlawful workers remains for the foreseeable future. In the meantime, U.S. employers are charged with the responsibility of having a secure, legally authorized to work, workforce. Failure to comply can result in jail time and fines so high as to bankrupt U.S. employers. 

Alternatives to H-1B Seminar

The Los Angeles County Bar Assn. and the Professionals in Human Resources Assn. are co-sponsoring a three hour seminar on Saturday February 9 at 9 am. Ms. Yardum-Hunter will be the moderator of this event at which speakers from across the country will weigh in on this important topic.