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U.S. IMMIGRATION NEWSLETTER is the E-Newsletter regarding U.S. Immigration Laws, News & Issues compiled by GLOBAL LAW CENTERS on a Bi-weekly basis and special news issues are sent when important immigration news arises. It is a must reading for potential immigrants, employers and human resources managers. It provides analysis of the latest developments in U.S. immigration laws. Information provided in this newsletter is general information only and may not apply to any particular set of facts or situations.
In This Issue
Before you know it, Christmas is here and families are filling up airports travelling all around the world to visit loved ones abroad. It is never too early to plan ahead for your holiday travel, especially if you have a pending adjustment of status (I-485) application.
Immigration Law requires that any alien with a pending adjustment of status application apply for an advance parole while in the U.S. In most cases, if the alien with a pending I-485 leaves for a foreign country without a valid advance parole, the U.S. Citizenship and Immigration Services (USCIS) may consider the I-485 application has been abandoned.
According to the USCIS, the official processing time for an advance parole is 3 months at the Nebraska, Texas and Missouri Service Centers. You may notice that it is currently taking less than 3 months to get an advance parole. However, processing time can change due to staff constraint, or sudden surge in application volume.
In addition to an advance parole, you are also required to present a passport that is valid for more than six months from the time of entry to the U.S.
This requirement applies to travel to Canada, Mexico, most Caribbean islands and most cruises in North America.
If you are planning to travel outside of the U.S. during the Christmas and New Year holiday, contact Global Law Centers now. It is never too early to have your travel documents ready.
If your adjustment of status (I-485) is pending, you are very likely required to have an Employment Authorization Document (EAD) in order to continue working in the United States. If you already have one, be sure to know when it expires.
The USCIS encourages applicants to renew their EAD at least 120 days before it expires. The Federal Regulation requires that an application for an EAD be adjudicated in 90 days by the USCIS.
Because of the increased enforcement of the law, many employers strictly follow the so-called I-9 requirement. Your employer might not allow you to work if your old EAD or nonimmigrant status has expired and are waiting for the renewal. This is a special concern for those I-485 filers of the visa bulletin fiasco in the July of 2007. Most applicants of I-485’s during this time periods will not be adjudicated at any time soon, due to oversubscribed visa categories. Many of these clients’ EAD’s will expire in the next few months.
If your EAD card is expiring within the next 4 months, call us at 714-657-7460 immediately. You don’t want your pay checks stopped.
RFE stands for Request for Evidence. RFE’s are issued when an immigration officer can not adjudicate an application or petition based on the initially submitted evidence.
As defined in the Federal Regulation, an RFE “specif[ies] the type of evidence required, and whether initial evidence or additional evidence is required”. The RFE “indicate[s] the deadline for response” and “[a]dditional time to respond to a request for evidence… may not be granted”.
However, recent trends indicate that the current batch of adjudicators at the various service centers, are lack of training and common sense. One might even conclude that immigration officers issue boiler-plate RFE’s without considering any of the initial evidence submitted in the petition.
Los Angeles Times, on August 10, 2010, reports that an increase in RFE’s and denials for O and P visas prompted an outcry in the communities of artists and researchers of extraordinary ability. Readers are encouraged to check out the report.
O and P visas are not alone. H-1B and R-1 visa petitions are also flooded with RFE’s. We have selected some uneducated and ridiculous RFE’s as reported by the Immigration Bar community for our readers:
An R-1 Religious Worker filed by an Islamic organization was asked what they consider their religion was. In the RFE, the organization was referred to as a Christian church. This is a classic example of the immigration officer not reading the materials and issuing a boiler-plate RFE without editing.
In an H-1B petition, a 4-page RFE questioned the employee’s bachelor degree equivalency. The case was denied on grounds that were never mentioned in the RFE. The officer set up a trap for the Petitioner to fall into.
An immigration examiner asked why a bachelor’s degree in software engineering was required for the position of software engineer. A case where the officer seemed to have no common sense.
An H-1B was filed for a Certified Public Accountant (CPA) by a CPA firm. The RFE requested evidence of a genuine need for a CPA. The officer believed that a CPA firm did not need a CPA!
An employer was asked to provide more “detailed” job duties where 3 pages of job duties were originally submitted. What had the examiner been thinking?
We urge the USCIS director to look into the matters carefully and maintain the integrity of the immigration adjudication standard. RFE’s have cost employers and employees lots of pain, money and time.
An H-1B Visa (Specialty Occupation) is a non-immigrant visa that is available to a foreign national who has been offered a job by a United States company for services to be performed in the United States. H-1B Visas are available to workers in specialty or professional occupations. It allows one to stay and work in the U.S. for an initial period of three years, but not to exceed six years. H-1B Visa holders can travel in and out of the United States, when it has been granted by a U.S. consulate. Spouses and unmarried children under the age of 21 may receive visas as well.
Per federal regulations, the USCIS is only permitted to issue 65,000 H-1B visas each fiscal year (FY). They are also required to set aside 6,800 for nationals of Chile and Singapore, thereby leaving only 58,200 visas available for the regular H-1B program. Out of these individuals who have earned a U.S. Master’s degree are processed under a separate quota of 20,000. Any remaining master’s cap applicants not selected in this special category will then be run in the random selection under the regular H-1B cap.
As of August 6, 2010, the USCIS has received approximately 28,500 H-1B petitions counting toward the 65,000 cap. The agency has received approximately 11,900 petitions for individuals with advanced degrees.
Employers interested in obtaining H-1B Visas for prospective employees do not need to demonstrate that there is a shortage of qualified U.S. workers so there is no need for Labor Certification. It is recommended that employers have an attorney to present the proper documentation and establish that the offered position is a specialty occupation; and that the employee has the appropriate credentials for the job. To further discuss your possibilities for an H-1B visa please contact our office at 714-657-7460 for a free consultation.
The U.S. Department of State (DOS) released the September 2010 Visa Bulletin on August 11, 2010. Visa dates are announced by the DOS every month. Only applicants who have a priority date earlier than the cut-off date may be allotted a number. Should it become necessary during the monthly allocation process to immediately retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date.
Movements in different preference vary in this month. However, the advancement in September should not be viewed as a forecast for the future movement as September is the last month of the fiscal year of the Federal Government. The Department of State is merely trying to use up all visa numbers in the fiscal year of 2010.The DOS did not provide any outlook on the future of the visa bulletin. We should wait for the October 2010 bulletin to get any insight on the development.
Make sure to stop by our website for the latest updates and information on the DOS Visa Bulletins. Pursuant to INA § 245(a)(3), aliens with priority dates prior to the cut-off dates shown on the Visa Bulletin will be eligible to file adjustment of status (green card) applications during the month of September 2010.
The Southwest Security Border Bill was signed into law by President Obama on Friday, August 13, 2010. The border security programs established in the bill will be funded by a large H-1B and L-1 fee increase. Employers who have 50 or more H-1B or L-1 employees or have 50% of their workforce on these visas will be required to pay the new Fraud Prevention and Detection Fee of $2,250 for each L-1 visa and $2,000 for each H-1B visa. These new fees do not include the current $1,500 American Worker Training Fees for H-1B petitions and the current $320 base fee of I-129. Please check out our website for the latest development on how the USCIS interprets the new fees mandated in the law.
How can I find my priority date?
The priority date appears on your I-130 or I-140 approval notice. If the application is still pending, the priority date is the date that the application was received by the USCIS. If your I-140 is based on a labor certification, your priority date is the date that your PERM was filed with the Department of Labor.
What is the difference between an Employment Authorization Document and a Work Permit?
Under the U.S. Immigration Law, there is no such thing as a “work permit”. The official name of the so-called work permit is Employment Authorization Document (EAD). EAD holders can work for any employer in the U.S. It is only issued to certain aliens. Non-immigrants in statuses such as H-1B, L-1 and O-1 are not issued any EAD because their employers filed non-immigrant petitions for them to work for the employers. These aliens are allowed to work for the employers who filed the petitions only.
You are welcome to submit your general questions about immigration to us at firstname.lastname@example.org.
The U.S. Immigration and Customs Enforcement and the Los Angeles County District Office has charged four Chinese citizens with conspiracy to import and harbor aliens for prostitution and pimping and pandering by procuring and keeping or residing in house of ill fame. One of the four Chinese nationals was also charged with conspiracy to commit marriage fraud. The federal and state complaints allege the quartet recruits female employees in China to work in the two brothels operated in San Gabriel and Monterey Park, both suburbs of Los Angeles, CA. The Chinese employees were allegedly directed to use fake documents and enter into sham marriages to obtain student or immigrant visas to enter the U.S. During the probe, the agency seized two vehicles — a Lexus GX 470 and a Mercedes Benz ML 500; $9,419 in cash, five government stamps from the Republic of China and an unregistered pistol.
The Immigration and Customs Enforcement (ICE) and the U.S. Attorney’s Office announced that nine people pleaded guilty to charges connected with their involvement in a scheme in central Ohio to arrange marriages between foreign nationals and U.S. citizens. The sentences range from probation, home confinement to imprisonment and deportation of one of the convicted after imprisonment. The ICE reported that one of the nine had established an informal “business” to find U.S. citizens who would accept money to enter into sham marriages with foreign aliens. The ICE indicated that the agency would aggressively investigate and prosecute those who seek to profit from compromising the integrity of immigration laws.
ICE is not something you want on a scorching day in the summer. It is a federal law enforcement agency under the Department of Homeland Security. The Immigration and Customs Enforcement (ICE) is not just responsible for investigating immigration or customs law violations, but also responsible for national security, intelligence, cyber crimes, human trafficking, child predators… etc. To learn more about this agency, go to their website at www.ice.gov.
USCIS has updated the processing dates for VSC, TSC, NBC, CSC, and NSC. Visit our website at http://globallawcenters.com/processing_times.php where you can find all the links to these updates!
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