IMMIGRATION NEWSLETTER

Our monthly newsletter features the trends, amendments, changes in the Immigration Law. Visit us often to check the latest developments!

Key Immigration Update - September 16, 2011

H-1B Petitions Subject to the Fiscal Year 2012 Cap Continuing To Be Accepted By USCIS 

USCIS is continuing to accept H-1B Cap Petitions for Fiscal Year 2012 ("FY 2012") which begins on October 1, 2011.  Congress mandated that the first 20,000 H-1B petitions with advanced degrees (applicants whose qualifying education level is aU.S. master's degree or higher) are exempt from the 65,000 regular Cap for FY 2012.  In total, there is a numerical limitation of 85,000 H-1Bs available under both Caps (20,000 under the Master's Cap and 65,000 under the regular Cap).

Currently, H-1Bs for FY 2012 are still available.  As of September 9, 2011, USCIS has reported that they have received a total of 48,900 Cap subject H-1B petitions, of which 32,200 are under the Regular Cap and 16,700 are under the Master's Cap Exemption.

It is difficult to predict when the Cap will actually close.  Last year it closed in mid January.  Therefore, it is advantageous to apply as soon as possible. 

Winners of Fiscal Year 2012 Diversity Visa ("Green Card") Lottery Have Been Notified

The Kentucky Consular Center has registered winners of the DV-2012 diversity lottery.  Winners were applicants of the DV-2012 diversity lottery program who registered with the U.S. Department of State (DOS) from noon on October 5, 2010 through noon November 3, 2010.  Winners were randomly selected out of over 14 million qualified entries.  The lottery made available 50,000 permanent resident visas annually to persons from countries with low rates of immigration to the U.S.  Approximately 100,021 applicants have been registered and notified and may now make an application for an immigrant visa.  Because it is likely that some of the first 50,000 persons registered will not pursue their cases to visa issuance, this larger figure helps insure that all DV-2012 numbers will be used during the 2012 Fiscal Year (October 1, 2011 through September 30, 2012).

The DOS is NOT accepting new entries/applications for the 2012 Diversity Lottery. Those who were not selected may try for the upcoming DV-2013 diversity lottery. 

If you believe you have been selected, please contact our office for further assistance as soon as possible.

Note: Please be aware of SCAMS, such as fraudulent emails and letters sent from individuals or organizations posing as the U.S.government in an attempt to receive payment from diversity lottery applicants.  The DOS will NOT send notifications to lottery winners by email.  Lottery participants should check the status of their entries through the Entry Status Check on the E-DV website [http://www.dvlottery.state.gov/] now through June 30, 2012. 

REMINDER: USCIS IS Conducting Surprise Site Visits to H-1B Employers

USCIS has engaged outside contractors to conduct thousands of H-1B employer site visits without notice at both large and small companies. Many of these visits occur after the approval of an H-1B petition (as well as an extension) and often without any warning. The investigators are looking to investigate and confirm various factors such as: (1) is the petitioning company a real operating entity; (2) is the beneficiary employee a "legitimate" employee; (3) did the foreign beneficiary worker falsify an application and claim to work for a company that he/she does not work for; (4) is the H-1B beneficiary being paid the wage or salary referenced in the petition and (5) did the petitioning company falsify its petition. The investigator may request to meet with the company's Human Resources person or anyone on site to confirm the H-1B beneficiary worker's date of hire, title, work location and salary information. Also, investigators may take photos of the company's building or office as evidence that the company actually exists or for other purposes related to its investigation. Hence, it is vital that employers maintain proper public inspection files and valid I-9 forms for all H-1B employees, and be on the lookout for a potential visit.

In the event your company is selected for a site visit, we recommend our clients to advise the investigator to contact our office.

Diversity Visa ("Green Card") Lottery Program Registration Begins October 4, 2011 for Fiscal Year 2013

50,000 Diversity Visas ("Green Cards") will be available for fiscal year 2013 (October 1, 2012 through September 30, 2013) to persons from countries with low rates of immigration to theU.S.  The Department of State's 2013 Diversity Visa (DV) lottery program registration period will begin on Tuesday, October 4, 2011. Entries for the DV-2013 Diversity Visa lottery must be submitted electronically between noon on Tuesday, October 4, 2011 and noon on Saturday, November 5, 2011, Eastern Daylight Time (EDT). During this registration period, applicants may access the electronic Diversity Visa entry form (E-DV) at www.dvlottery.state.gov. Paper entries will not be accepted. Applicants are strongly encouraged not to wait until the last week of the registration period to enter. Heavy demand may result in website delays. No entries will be accepted after noon, EDT, on November 5, 2011.

If you would like our office to assist you in registration for the Diversity Visa Lottery Program, please call our office to set up a consultation.

Natives of the following countries are not eligible to apply in the Diversity Visa Lottery:

BANGLADESH, BRAZIL, CANADA, CHINA (mainland-born), COLOMBIA, DOMINICAN REPUBLIC, ECUADOR, EL SALVADOR, GUATEMALA, HAITI, INDIA, JAMAICA, MEXICO, PAKISTAN, PERU, PHILIPPINES, SOUTH KOREA, UNITED KINGDOM (except Northern Ireland) and its dependent territories, and VIETNAM.

Employment Based Visa Numbers for October 2011

Immigrant ("Green Card") visa numbers for the employment based third preference category (EB-3) for professional and skilled workers and third preference "other workers" (OW) category have continued to advance.  However, there are still extensive delays in EB-3 and OW (particularly for nationals of India and China).  It is impossible to predict how fast the quotas will advance.

Visa numbers are currently available only in categories listed as "C" or Current, or for applicants whose priority date (filing date for labor certification) is earlier than the cut-off date listed below.

• Second Preference (EB-2: Members of Professions Holding Advanced Degrees or Persons of Exceptional Ability) cut-off dates are: China-mainland born: July 15, 2007; India: July 15, 2007; Mexico: Current (Visa Number Available); Philippines: Current (Visa Number Available); All Other Chargeability Areas: Current (Visa Number Available).

• Third Preference (EB-3: Skilled Workers and Professionals) cut-off dates are: China-mainland born: August 8, 2004; India: July 15, 2002;Mexico: December 8, 2005;Philippines: December 8, 2005; All Other Chargeability Areas: December 8, 2005.

• Third Preference (Other Workers) cut-off dates are: China-mainland born: April 22, 2003; India: June 8, 2002;Mexico: September 15, 2005;Philippines: September 15, 2005; All Other Chargeability Areas: September 15, 2005.

Note: Certain applicants in the EB-3 Category may be eligible to "upgrade" to the Second Preference Category (EB-2) but this is not automatic.  For example, one viable option for applicants who may qualify due to changed circumstances is to file a new labor certification application under the EB-2 Category based on holding a qualified advanced degree or significant employment experience, or to file a new immigrant visa petition. The EB-2 Category backlog is considerably less backlogged than the EB-3 Category and applicants can retain their previous priority dates.  This has been a very successful strategy for many of our clients.  Also, premium/rush processing is available for certain immigrant visa petitions.  Please contact us to set up a consultation to discuss your particular case. 

Note: If your pending Adjustment of Status application has recently become current and you have not received any notification or approval of your application within 45 days, please call the office to update us on the status.  

WARNING: Obama's New Deportation Policy is NOT an Amnesty Program & Will NOT Provide Legal Status!

On August 18, 2011, the Department of Homeland Security (DHS) announced that DHS and the Department of Justice will begin reviewing all 300,000 pending cases of individuals currently in removal proceedings to ensure that they constitute the "highest priorities" ("the Announcement").  Also included in the category of "highest priorities" category are new cases placed in removal proceedings, which will be reviewed on a case-by-case basis.

Beware, the DHS announcement is NOT an amnesty or legal status program!

If someone, a friend, family member, neighbor, or coworker, encourages you to act,

do not try to contact immigration authorities (USCIS)!  Currently, there is NO application or form to fill out, NO filing fee to pay, and NO guidance from immigration authorities on how the review of these cases will happen.

The American Immigration Lawyers Associate (AILA) recently issued a warning about the Announcement, stating:

• Do NOT believe anyone who tells you they can sign you up for a work permit (Employment Authorization Document or "EAD") or get you legal status based on Secretary Napolitano's August 18, 2011 announcement!  Anyone who says that is not to be trusted!

• There is NO "safe" way to turn yourself in to USCIS and there is NO guarantee that your case will be considered "low priority."  ANY person who comes into contact with immigration authorities may be arrested, detained or even removed.

• Only a QUALIFIED IMMIGRATION LAWYER can evaluate your case and tell you about your rights.

• Do NOT seek legal advice from a notario or immigration consultant.

Clients should also note the following:

• The Announcement is NOT about granting legal status and is NOT something people can sign up for.  The Announcement is NOT about giving people work permits or legal status.  The Announcement is for DHS' review of all cases already pending before immigration courts.  DHS wants to ensure that "low priority" cases, which are already in the system, do not continue to clog up an overburdened immigration court system.  "Low priority" cases may be administratively closed, whereas "high priority" cases will be prosecuted more aggressively.  If a case is administratively closed, the individual will be able to apply for a work permit (EAD), however, the Announcement did not include details, guidelines or instructions on how to apply for an EAD, or who will be eligible for an EAD.

• The Announcement does NOT mean that all "low priority" cases will automatically be granted a work permit or EAD.  There are no rules or guarantees that a particular type of immigration case will be considered a "low" or "high" priority.  No one can tell you what type of priority your case will be considered-only immigration authorities will make that decision.

• Unless you are already eligible for an EAD under existing regulations and guidelines, you should not go to USCIS and ask for an EAD, or apply to immigration for an EAD.  An EAD does NOT give an individual legal status-it is just temporary permission to work.

• The Announcement is not a new law.  Its applicability is limited to individuals who are already in U.S., have been apprehended and are in removal proceedings.

Note: If you have any questions regarding the DHS announcement, the best and safest course of action is to call our office for a consultation with one of our immigration lawyers.

Key Immigration Update - June 17, 2011

Significant Movement in the EB-2 Visa Numbers for Indian and Chinese Nationals

There has been significant movement in the employment based second preference (EB-2) category for nationals of India and China in the July Visa Bulletin. Visa numbers have progressed for EB-2 applicants from India and China to March 8, 2007.  

We strongly advise EB-2 applicants from Indiaand China who do not have an Adjustment of Status pending to be aware of their priority date (filing date for labor certification) and contact our office if their priority date is now current or soon will be.

If you are an Indian or Chinese national who has an EB-2 petition pending and have already filed your Adjustment of Status application (primarily during the July 2007 "Crunch") and will be current as of July 1, 2011, please call the office to update us on the status if you have not received any notification or approval of your application within 45 days.

The Results of the 2012 Diversity Lottery Posted in May 2011 Have Been Voided

Due to a computer programming mistake, the results of the 2012 Immigrant ("Green Card") Diversity Lottery have been voided. The DOS has rescinded and invalidated all notices for applicants who checked the 2012 Diversity Lottery website for results in May, 2011 and found a notice that they were selected for further processing or a notice that they were not selected. 

The U.S. Department of State (DOS) will be "re-running" the lottery with ONLY THE ORIGINAL ENTRIES.  The DOS expects the new results of the 2012 Diversity Lottery to be available on or about July 15, 2011.

Note: Please be aware of SCAMS!  The DOS isNOT accepting new entries/applications for the 2012 Diversity Lottery.  

U.S. Supreme Court Upholds Arizona Law Which Punishes Businesses That Hire Illegal Immigrants

On May 26, 2011, the U.S. Supreme Court upheld an Arizona law that allows the State of Arizona to shut down businesses that hire illegal immigrants.  This Arizona law suspends or revokes business licenses in the state as a penalty against employers who knowingly hire illegal immigrants.  It forces businesses/employers to use an electronic verification system to check the work authorization status of employees through E-Verify, a federal database.   This ruling could provoke other states to implement their own tougher immigrations laws.

H-1B Petitions Subject to the Fiscal Year 2012 Cap Are Currently Being Accepted By USCIS

USCIS is continuing to accept H-1B Cap Petitions for Fiscal Year 2012 ("FY 2012") which begins onOctober 1, 2011.  Congress mandated that the first 20,000 H-1B petitions with advanced degrees (applicants whose qualifying education level is a U.S. master's degree or higher) are exempt from the 65,000 regular Cap for FY 2012.  In total, there is a numerical limitation of 85,000 H-1Bs available under both Caps (20,000 under the Master's Cap and 65,000 under the regular Cap).

Currently, H-1Bs for FY 2012 are still available.  As of June 13, 2011, USCIS has reported that they have received a total of 25,400 Cap subject H-1B petitions, of which 15,200 are under the regular Cap and 10,200 are under the Master's Cap.

It is difficult to predict when the Cap will close.  Therefore, it is advantageous to apply as soon as possible. 

Employment Based Visa Numbers for July 2011

Immigrant ("Green Card") visa numbers for the employment based third preference category (EB-3) for professional and skilled workers and third preference "other workers" (OW) category have continued to advance.  However, there are still extensive delays in EB-3 and OW (particularly for nationals of India andChina).  It is impossible to predict how fast the quotas will advance.

Visa numbers are currently available only in categories listed as "C" or Current, or for applicants whose priority date (filing date for labor certification) is earlier than the cut-off date listed below.

• Second Preference (EB-2: Members of Professions Holding Advanced Degrees or Persons of Exceptional Ability) cut-off dates are: China-mainland born: March 8, 2007; India: March 8, 2007; Mexico: Current (Visa Number Available);Philippines: Current (Visa Number Available); All Other Chargeability Areas: Current (Visa Number Available).

• Third Preference (EB-3: Skilled Workers and Professionals) cut-off dates are: China-mainland born: July 1, 2004;India: May 1, 2002; Mexico: July 1, 2005; Philippines: October 8, 2005; All Other Chargeability Areas: October 8, 2005.

• Third Preference (Other Workers) cut-off dates are: China-mainland born: April 22, 2003; India: May 1, 2002;Mexico: November 22, 2004;Philippines: November 22, 2004; All Other Chargeability Areas: November 22, 2004.

Note: Certain applicants in the EB-3 Categorymay be eligible to "upgrade" to the Second Preference Category (EB-2).  For example, one viable option for applicants who may qualify due to changed circumstances is to file a new labor certification application under the EB-2 Category based on holding a qualified advanced degree or significant employment experience, or to file a new immigrant visa petition. The EB-2 Category backlog is considerably less backlogged than the EB-3 Category and applicants can retain their previous priority dates.  This has been a very successful strategy for many of our clients.  Also,premium/rush processing is available for certain immigrant visa petitions.  Please contact us to set up a consultation to discuss your particular case. 

Note: If your pending Adjustment of Status application has recently become current and you have not received any notification or approval of your application within 45 days, please call the office to update us on the status. 

Alabama Adopts Tough New Immigration Law

On June 9, 2011, an Alabama law was adopted that allows local law enforcement to check individuals' immigration status during a police stop, and requires Alabama public schools to force students and their parents to provide proof of legal status, which would turn school officials into immigration gatekeepers.  Furthermore, this law contains a provision making it a crime for individuals to knowingly rent to, transport, or harbor illegal immigrants and, just like the State of Arizona, requires employers to use the E-Verify federal database. 

Key Immigration Update - April 15, 2011

H-1B Petitions Subject to the Fiscal Year 2012 Cap Are Currently Being Accepted By USCIS

As of April 1, 2011, USCIS has begun accepting H-1B Cap Petitions for Fiscal Year 2012 ("FY 2012") which begins on October 1, 2011.  Congress mandated that the first 20,000 H-1B petitions with advanced degrees (applicants whose qualifying education level is a U.S. master's degree or higher) are exempt from the 65,000 regular Cap for FY 2012. In total, there is a numerical limitation of 85,000 H-1Bs available under both Caps, 20,000 under the Master's Cap and 65,000 under the regular Cap.

Currently, H-1Bs for FY 2012 are still available.  USCIS has recently reported that they have received a total of 10,400 Cap subject H-1B petitions as of April 7, 2011. 5,900 are under the regular Cap and 4,500 are under the Master's Cap.

Hence, H-1B slots are still available, but it is difficult to predict when the Cap will close.  Therefore, it is advantageous to apply as soon as possible.  The H-1B Cap from the prior fiscal year remained open until January 26, 2011. 

USCIS is Now Using a New Web Based Program, Validation Instrument for Business Enterprises (VIBE) Program, for Employment-Base Immigration Petitions

USCIS is now using a new web-based program, Validation Instrument for Business Enterprises (VIBE), to adjudicate many immigrant and non-immigrant employment based petitions such as H-1B and L-1.  VIBE uses commercially available data from an independent information provider to validate basic information about companies or organizations petitioning to employ alien workers.  VIBE is a USCIS tool used to help determine a petitioner's eligibility for immigration sponsorship.   Presently, the independent information provider to USCIS is Dun and Bradstreet.  USCIS is now using the VIBE program and petitioners may begin seeing VIBE-related Requests for Evidence (RFEs) if company or organization information submitted with a petition is different from the information obtained from the VIBE program.

USCIS and U.S. Consulates Access the Internet and Social Networking Sites to Adjudicate Immigration Applications and Petitions

USCIS and U.S. Consulates around the world have access and often access internet search tools like Google Maps and social networking sites such as Facebook, Linkedin and MySpace when adjudicating immigration applications and visa petitions.  Therefore, when applicants put their personal information such as job positions and locations, martial status, or current location online, please be aware that this information is publicly available to USCIS and State Department and could be used against you.

Employment Based Visa Numbers for May 2011

Immigrant ("Green Card") visa numbers for the employment based third preference category for professional and skilled workers and third preference "other workers" category have continued to advance.  However, there are still extensive delays in the Third Preference Category (EB-3 particularly for nationals of India, Mexico, Philippines and China) and it is impossible to predict how fast the quotas will advance.

Visa numbers are currently available only for applicants whose priority date (filing date for labor certification) is earlier than the cut-off date listed below.

Second Preference (EB-2: Members of Professions Holding Advanced Degrees or Persons of Exceptional Ability) cut-off dates are: China-mainland born: August 1, 2006; India: July 1, 2006; Mexico: Current (Visa Number Available); Philippines: Current (Visa Number Available); All Other Chargeability Areas: Current (Visa Number Available).

Third Preference (EB-3: Skilled Workers and Professionals) cut-off dates are: China-mainland born: April 15, 2004; India: April 15, 2002; Mexico: September 8, 2004; Philippines: August 22, 2005; All Other Chargeability Areas: August 22, 2005.

Third Preference (Other Workers) cut-off dates are: China-mainland born: April 22, 2003; India: April 15, 2002; Mexico: September 8, 2003; Philippines: September 8, 2003; All Other Chargeability Areas: September 8, 2003.

Note: Certain applicants in the EB-3 Categorymay be eligible to "upgrade" to the Second Preference Category.  For example, one viable option for applicants who may qualify due to changed circumstances is to file a new labor certification application under the Second Preference (EB-2) Category based on holding an advanced degree or significant employment experience, or to file a new immigrant visa petition. The Second Preference (EB-2) Category backlog is considerably less backlogged than the Third Preference (EB-3) and applicants can retain their previous priority dates.  This is a successful strategy based upon our experience.  Also, premium/rush processing is available for certain immigrant visa petitions.  Please contact us to set up a consultation to discuss your particular case. 

Note: If your pending Adjustment of Status application has recently become current and you have not received any notification or approval of your application within 45 days, please call the office to update us on the status. 

Enforcement  of  Arizona's Controversial Immigration Law Put on Hold

A federal appeals court ruled on Monday, April 11, 2011, that key sections of Arizona's tough immigration statute are preempted by federal law and may not be enforced.  One of the more controversial provisions requires Arizona's state and local police to ask for proof of immigration status from every individual stopped for a traffic violation or other civil infraction if they have a "reasonable suspicion" that the person is in the U.S. in violation of the immigration laws.  The Court denied the state's appeal of a federal district court's July decision that prevented segments of the law from going into effect because it violates the U.S. Constitution.  It is expected that this decision will be appealed to the U.S. Supreme Court.

H-1B Employees Have a Right to Remain in the U.S. and to Continue Working While Their H-1B Extension Applications Are Pending

A recent ruling by U.S. District Judge Janet C. Hall, a federal judge in Connecticut, reaffirmed and recognized the federal regulation that allows H-1B employees to continue working for 240 days pending the adjudication of their H-1B extension application in the case of El Badrawi v. United States.  The regulation provides for work authorization when a timely-filed H-1B extension application is pending, necessarily authorizing H-1B employees to remain in the United States and continue working up to 240 days past  their expiration of their authorized period of stay.

Dramatic Reduction in EB-1 Immigrant Visa Applications Will Result in Unused Numbers to be Available for Use to the EB-2 Category

Charles Oppenheim, Chief of Immigrant Visa Control and Reporting Division of the U.S. Department of State announced in late March that USCIS has had a dramatic decline in EB-1 filings and does not expect a change in the number use pattern in the near future.  Therefore, due to this decline in EB-1 number use, the USCIS will begin using those unused EB-1 numbers and drop them down to be available for use in the EB-2 category (not EB-3).  Chief Oppenheim stated, "Based on current indications, that would mean that at least 12,000 additional numbers will be available to the EB-2 category. This situation will allow me to advance the India EB-2 cut-off date for May. The reason being that all 'otherwise unused' numbers are provided strictly in priority date order, and the India demand has the largest concentration of early dates."  Please note, however, that because of the significant backlog for the EB-2 category for India, the dates may only move by several weeks each month.

USCIS is Issuing a New Version of  the Employment Authorization Document (EAD) Card

USCIS recently announced that it is now issuing employment and travel authorizations on a single card for eligible foreign national applicants filing an Application to Register Permanent Residence or Adjustment of Status in the U.S.  The new dual-purpose card looks very similar to the current Employment Authorization Document (EAD) Card except for a one line of text near the bottom of the card which reads: "Serves as I-512 Advance Parole".

U.S. Visa Processing in Mexico Has Changed

Under new procedures implemented earlier this year, most U.S. visa applicants in Mexico will first go to an Applicant Service Center (ASC) prior to going to their visa interview at their applicable U.S. Embassy or U.S. Consulate.  At the ASC, their staff will collect the applicant's biometric information (fingerprints) that will be reviewed by the U.S. Consular section.  Many visa applicants who are renewing their visas will no longer require a visa interview at a U.S. Embassy or Consulate.  This new process is designed to lessen the time an applicant spends at a U.S. Embassy or Consulate because the collection of biographic information will have already taken place at an Applicant Service Center.  Please note many visas issued to Mexican nationals are only issued up toone year due to visa reciprocity restrictions with the U.S.  

A Less Restrictive Entrepreneur StartUp Visa Act Reintroduced Into Congress

Democrat Senator John Kerry of Massachusetts and Republican Senator Richard Lugar of Indiana have reintroduced a bill in March 2011 which seeks to ease immigration for foreign entrepreneurs with new provisions for current visa holders and foreign business owners with a U.S. market presence.

The "StartUp Visa" bill would grant a visa to the following people who would qualify under one of the three options below:

Option One: Immigrant entrepreneurs living outside the U.S. would be eligible to apply for a StartUp Visa if a qualified U.S. investor agrees to financially sponsor their entrepreneurial venture with a minimum investment of $100,000.  After two years, their business must have created 5 new jobs and raised not less than $500,000 in additional capital investment or generate not less than $500,000 in revenue.

Option Two: Immigrant entrepreneurs currently in the U.S. on an unexpired H-1B visa; OR immigrant entrepreneurs currently in the U.S. who have completed a graduate level degree in science, technology, engineering, math, computer science, or other relevant academic discipline from an accredited United States college, university, or other institution of higher education would be eligible for a StartUp Visa if;

- They demonstrate annual income of not less than roughly $30,000 or the possession of assets of not less than roughly $60,000; and

- Have proven that a qualified U.S. investor agrees to financially back their entrepreneurial venture with a minimum investment of $20,000.

After two years, their business must have created 3 new jobs and raised not less than $100,000 in additional capital investment or generate not less than $100,000 in revenue.

Option Three: Immigrant entrepreneurs living outside the U.S. would be eligible to apply for a StartUp Visa if they have controlling interest of a company in a foreign country that has generated, during the most recent 12-month period, not less than $100,000 in revenue from sales in the U.S.

After two years, their business must have created 3 new jobs and raised not less than $100,000 in additional capital investment or generate not less than $100,000 in revenue.

We will continue to update this development.