Update on Government Shutdown and USCIS and Immigration Court in Boston

October 1st, 2013

USCIS will continue to hold immigration interviews in Boston, MA during the government shutdown.  Also, the US Immigration Court in Boston will be continuing all cases except for detained cases.

Government Shutdown Freezes PERM Processing and Other Immigration Cases

October 1st, 2013

The US government shutdown will have a tremendous negative and deleterious effect on many types of immigration petitions and applications.  The most important and dire consequence is the freezing of the processing of PERM labor certification applications, prevailing wage determinations (required for PERM cases) and labor conditional applications (LCAs – required for H-1B visa processing)by the US Department of Labor (DOL).  There are many H-1B foreign workers who need to file extensions of their status to continue their employment in the US.  A certified LCA is required for filing an H-1B petition.  Hopefully, USCIS will allow for the filing of H-1B extension petitions without a certified LCA, especially where the foreign worker’s H-1B status is about to expire.

Also, many H-1B workers may only extend their H-1B status beyond the six-year limit if a PERM labor certification application is filed on their behalf by the end of their fifth year in H-1B status.  If the PERM cannot be filed for them, then they must hope that the Form I-140 immigrant visa petition is approved on their behalf before the end of their sixth year in H-1B status.  If a PERM application is audited, then this is highly unlikely, since an audit can lead to processing times of over 18 months.  Therefore, the suspension of PERM processing will lead many H-1B workers to lose their status in the US, causing grave harm to them and their employers.

US Citizenship and Immigration Services (USCIS) should be functioning at around 97 percent, but it relies on nonessential Federal workers and therefore USCIS’s processing times will most likely be negatively affected.

The US Department of State (DOS), which includes US consulates worldwide, may remain open for a few more weeks with alternative funding.  Once this funding is exhausted it is hard to imagine the impact of a freezing of the issuance of temporary visas to the US (business, student, H-1B worker, L-1A intracompany transferee, E-2 treaty investor, etc.).

The US immigration courts may only remain open for certain cases deemed important for national security, such as detained cases.

 

 

Approval of L-1B Specialized Knowledge Intracompany Transferee Visas

April 20th, 2012

“Remarkably” I was able to recently obtain approvals for several L-1B specialized knowledge petitions for an IT company.  It was remarkable since USCIS has created such a narrowly restrictive interpretation of specialized knowledge and now defines specialized knowledge as knowledge that is unique or rare in an organization.  They pulled this from an old dusty case that should never have been brought back to life.  What was the purpose of renewing such a rigid view?  Is it politics or USCIS’s unreasonable fear of rampant fraud?  How are US employers supposed to help grow the economy and create jobs if H-1B numbers are capped and L-1Bs are virtually impossible to obtain?  Even in this weak economy, there are many skilled positions that are going unfilled because of a dearth of US workers with advanced skills.  With foreign nationals now deciding to stay in or return to their home countries such as India and China, because of their growing economies, we must become more competitive and try to attract as many necessary and highly educated and skilled workers as possible.

Long Processing Times for Fiance Visa Petitions

October 21st, 2011

The fiance visa petition processing should be relatively quick. In the golden days (if there is such a thing in the world of immigration law), I could get a fiance visa petition approval within several months. Now it has slowed down to approximately six months, and this is just for the first stage when USCIS must adjudicate the petition. Then there’s no saying how long the National Visa Center could take to start the visa processing and send the case to the US Consulate. For most cases it can be be three to six months on average depending on the luck the beneficiary has with his or her background check. If there is a problem with the background check, and your client happens to share the same name as some unsavory character whom the US government has found to be a threat to our nation’s security, then all bets are off and the US Department of State becomes like “big brother.” There is absolutely no way to expedite the matter or get more definitive information on the delay.

So what is the silver lining to all this? Maybe it’s a true test of the relationship – for anyone who could maintain a long distance relationship with no guarantee of success must be pretty committed. Although the real challenge is maintaining a long relationship with little space from one’s partner!

USCIS Updates Fiscal Year 2012 H-1B Cap as of October 14, 2011

October 21st, 2011

As of October 14, 2011, USCIS has received approximately 43,300 H-1B petitions subject to the FY 2012 bachelor’s degree cap, of which there are 65,000 visas each fiscal year. Also, USCIS has received 19,600 H-1B petitions subject to the FY 2012 US master’s degree cap, of which there are 20,000 visas each fiscal year. If the master’s cap is reached, USCIS has stated that any petitions filed on behalf of aliens with an advanced US degree will be counted toward the general 65,000 H-1B cap. These numbers are still moving very slowly and it appears that the cap may not be reached until the end of this year or even later, since the numbers moved by only 1,000 for the bachelor’s cap in one week.

Once these numbers are exhausted, then new petitions subject to the cap can be filed as early as April 1, 2012, requesting a start date of October 1, 2012.

USCIS Updates Fiscal Year 2012 H-1B Cap as of July 5, 2011

July 22nd, 2011

As of July 5, 2011, USCIS has received approximately 20,500 H-1B petitions subject to the FY 2012 bachelor’s degree cap, of which there are 65,000 visas each fiscal year. Also, USCIS has received 12,800 H-1B petitions subject to the FY 2012 US master’s degree cap, of which there are 20,000 visas each fiscal year. If the master’s cap is reached, USCIS has stated that any petitions filed on behalf of aliens with an advanced US degree will be counted toward the general 65,000 H-1B cap. These numbers are still moving very slowly and it appears that the cap may not be reached until the end of this year or even later, since the numbers moved by only 1,000 for the bachelor’s cap in one week.

Once these numbers are exhausted, then new petitions subject to the cap can be filed as early as April 1, 2012, requesting a start date of October 1, 2012.

Bill to Give Green Card Status to Military Families

June 3rd, 2011

US Senator Robert Menendez (D-NJ) has introduced the Military Families Act, a welcome piece of legislation that would grant legal permanent residency to immediate family members of active military service members. Under the Act, US DHS could adjust the status to legal permanent residency of a spouse, child, son or daughter (unmarried child over 18) of an Armed Forces member who is serving or who has actively served honorably in active-duty in the military, air or naval US forces, or the immediate relative of an Armed Forces member who died as a result of an injury or disease incurred in the military after September 11, 2001.

Gearing up for H-1B Cap Cases for 2012

February 17th, 2011

It is time for us to prepare for a new round of H-1B petitions filed pursuant to the cap.  The opening date is April 1, 2011, and the earliest start date is October 1, 2011.  If the economy continues to be depressed, then it is not likely that the cap will be reached within a day or a week, like several years prior.  Will it take until December 2011 for it to be reached?  Who knows, but the rate of cap usage is certainly indicative of the state of the economy, especially from this immigration law office.  I am recommending that petitioners still file as early as possible to ensure that they get an H-1B visa number.

DREAM Act Hanging in There

December 14th, 2010

Based on the complexity of the procedural maneuvering of the House and Senate on the DREAM Act, it would appear that the legislation is dead.  However, after careful analysis it is clear that it still has a chance of success.  Essentially, it the Senate (S. 3992) will be voting on it later this week or early next week and the House has already passed its version (H.R. 6497/ H.R. 5281). 

If the Senate passes the same legislation as the House’s version, then it next goes to President Obama for signature.  The Democrats need 60 votes to win and they may have to negotiate amendments along the way.  If that is the case, then it will return to the House for another vote before the President can sign it. 

The DREAM Act would provide legal status to undocumented students in the US who entered the US before age 16 and who either attend college or join the military.  In the vaccuum of more comprehensive immigration legislation, this stand-alone provision is a fair and necessary alternative.

USCIS Increases Filing Fees

October 20th, 2010

USCIS has announced that on November 23, 2010, the filing fees (“Immigration Benefit Request Fees”) will increase for many applications and petitions.  The most popular forms that will be increasing are the Form I-129 (from $320 to $325, used in most employment-based nonimmigrant visa petitions such as H-1Bs, L-1s, O-1s and E-1s and E-2s), Form I-130 immigrant visa petition (from $355 to $420), Form I-485 application to adjust status (from $930 to $985), Form I-601 waiver of the grounds of inadmissibility (from $545 to $585), Form I-140 immigrant visa petition for employment-based cases (from $475 to $580), Form I-751 petition to remove conditions of residence (from $465 to $505) and Form I-907 request for premium processing (From $1,000 to $1,225). 

The filing fee for the Form N-400 for naturalization will remain the same at $575.  Some forms fees will actually decrease in price, including Form I-129F for fiances (from $455 to $340) and the Form I-539 to extend or change certain nonimmigrant statuses (from $300 to $290).

In this battered economy, it is quite amazing that USCIS is raising its fees.  Filing fees are already outrageously high, especially for most working families, and reflect the US’s ambivalence or outright hostility to immigrants.  If we truly valued the contributions of immigrants, then we would be reducing or eliminating filing fees and simply cover such expenses through general taxes imposed on the entire population.  Immigrants create companies and jobs, take jobs that US workers are unwilling to do and open our minds to the rest of the world, creating greater tolerance and understanding of the other.  Also, we already have many mechanisms in place to protect the US workforce and ensure that immigrants and their families do not impose an undue burden on our welfare system. 

Should we have a reasonable expectation that such fee increases will also enhance service and speed up processing times?  Unfortunately not, based on past experience with other immigration programs, such as the PERM labor certification program.  PERM was established with the goal of decreasing processing times from years to weeks or months.  That goal quickly flew out the window and became a pipe dream.  Initially, PERM was relatively quick, but then it increased to around 10 months to one year.  Recently, without an audit, it is possible to get a decision within around four months on average.  However, with an audit, it could be over one year.  Let’s continue to dream that this time it will be different.