MVP "Immigration Q & A Forum" - This Friday, Sept. 4, 2015

August 31, 2015

We wanted to find a new way to engage our reader base. Every other Friday, we will post the ten (10) best/most frequently asked questions received during the week from our h1bvisalawyerblog, Facebook, and Twitter readers. We will answer those questions and provide the Q&A on our H-1B Visa Lawyer Blog.

If you have a burning question, are seeking assistance with a difficult immigration related case, wish to discuss your views on Comprehensive Immigration Reform, DREAMers, Deferred Action for Childhood Arrivals, priority dates, the monthly visa bulletin, adjustment applications, etc., please contact us by submitting your question/comment/viewpoint in our comment box provided on our H-1B Visa Lawyer Blog.

Our next “Q & A Forum” will take place this Friday, September 4, 2015. Act now and submit your questions!

THANK YOU!

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. Therefore, your communication with us through this forum will not be considered as privileged or confidential.

Alert: USCIS Discontinues Legacy e-Filing System

August 28, 2015

On Monday, August 24th, USCIS released the News Alert, “USCIS Discontinues Legacy e-Filing System”, stating that they are discontinuing their legacy e-Filing system. This USCIS legacy system has offered online filing for several USCIS forms. When this system is decommissioned, you must use paper forms when filing all categories of:

Form I-131, Application for Travel Document

Form I-140, Immigrant Petition for Alien Worker

Form I-765, Application for Employment Authorization

Form I-821, Application for Temporary Protected Status

Form I-907, Request for Premium Processing Service

The last day to start a new form using the existing e-Filing system will be August 30, 2015. All forms on the legacy e-Filing must be completed and submitted by September 20, 2015. After that date only the paper versions, which can be found on the USCIS web site, of Form I-131, Form I-140, Form I-765, Form I-821, and Form I-907 can be used.

Note: USCIS is transitioning to a new system called the Electronic Immigration System. The forms being removed from the legacy e-Filing system will not be available immediately in the Electronic Immigration System, but there are plans to add them in the future.


Source of Information:
USCIS.gov, 8/24/15, News Alert:
USCIS Discontinues Legacy e-Filing System

BALCA OKs Omission of Language Requirement in NOF

August 27, 2015

The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Production Supervisor.”

Upon evaluating the Employer’s Application for Permanent Labor Certification, the CO denied the Labor Application because he believed it violated PERM regulation 20 C.F.R. 656.17(f)(3), as made applicable by regulation 20 CFR 656.10(d)(4). The CO stated the Employer’s Notice of Filing (NOF) did not include the requirement of having the “ability to speak Spanish” that was listed on the Employer’s 9089 form. The regulations require that an advertisement “provide a description of the vacancy specific enough to apprise the US workers of the job opportunity for which certification is sought.”

The Employer sent a reconsideration request to the CO. In the argument, the Employer stated their NOF met the criteria, as it provided enough information for job applicants and by omitting the Spanish requirement, it would have allowed more candidates to apply.

Upon reconsideration of the employer’s arguments, the CO confirmed his denial of the labor certification.

The CO forwarded the case to BALCA for further examination. After BALCA’s examination of the case, the CO’s decision to deny certification was overturned. BALCA believed that PERM regulation 656.10(d)(4) does not mandate that all job requirements have to be listed on an advertisement. Advertisements only have to be specific enough to apprise the U.S. workers of the job opportunity. BALCA believed the exclusion of the Spanish requirement did not violate the PERM regulations, as the NOF was specific enough to apprise U.S. workers of the job opportunity.

Administrative Appeals Office (AAO) Processing Times - 8/1/15

August 26, 2015

Administrative Appeals Office (AAO) Processing Times were released with processing dates as of 8/1/15.

If you filed an appeal, please review the link below to determine the applicable processing time associated with your particular case.

Administrative Appeals Office

The processing time for an I-129 H-1B Appeal is current; for an I-129 L1 Appeal is current. The current processing time for an I-140 EB2 Appeal for an Advanced Degree Professional is current; for an I-140 EB3 Appeal for a Skilled or Professional Worker is now 9 months.

*Current = 6 months or less

**Other cases are within USCIS's processing time goal of 6 months or less except for:
> I-140 EB3 - (E) Skilled or Professional Worker - 9 months
> I-700 - Special Agricultural Worker - 10 months
> I-821 - Temporary Protected Status - 7 months


Source of Information:

USCIS.gov, (8/20/15), AAO Processing Times

AILA Doc. No. 15082435. (Posted 8/24/15)

Impact of New Americans (2015) - Missouri, Montana & Nebraska

August 25, 2015

Immigration Policy Center Releases Updated State-by-State Fact Sheets (2015)

The Immigration Policy Center (IPC) has released all fifty states, the District of Columbia and the United States (Overall), for a total of fifty-two updated fact sheets with accompanying info graphics and other details. These fact sheets highlight the demographic and economic impact of Immigrants, Asians and Latinos in each state. The Immigration Policy Center (IPC) is the research and policy division of the American Immigration Council (AIC).

As Washington D.C. continues the discussion of Comprehensive Immigration Reform, we thought that it would be a good time to provide some statistics on the Immigrant population in the United States as provided by this IPC research. Once a week we will be posting a blog with information on three states at a time. This week we will highlight; Missouri, Montana & Nebraska.

The IPC has compiled research which shows that Immigrants, Latinos and Asians are an essential part of each of these states’ economy, labor force and tax base. Immigrants and their children are a growing economic and political force as consumers, taxpayers and entrepreneurs. With the nation working towards economic recovery, immigrants and their children will continue to play a key role in shaping the economic and political future of each of these states.

To view the state-by-state fact sheets click on the links below:

Missouri
Montana
Nebraska


Source of Information:
The Immigration Policy Center (IPC), Interactive Map (fact sheets):
The Economic and Political Impact of Immigrants, Latinos and Asians State by State

The Immigration Policy Center (IPC), List (fact sheets):
The Economic and Political Impact of Immigrants, Latinos and Asians in all 50 States

Updated Service Center Processing Times (as of 6/30/15)

August 24, 2015

Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Service Centers were released on 8/18/15 with processing dates as of 6/30/15.

If you filed a petition with one of the Service Centers, please review the links below to determine the applicable processing time associated with your particular case.


California Service Center (CSC)

National Benefits Center (NBC)

Nebraska Service Center (NSC)

Texas Service Center (TSC)

Vermont Service Center (VSC)

EB-5 Immigrant Investor Program Office (IPO)


**Please be aware that the data provided above is approximately 45 days old at the time of posting.

If your petition is out-side of the normal range listed, contact USCIS (1-800-375-5283).

If you are a client of MVP Law Group and would like our assistance please contact our office.

MVP LAW GROUP – Immigration Q&A Forum, Friday, August 21, 2015

August 21, 2015

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. Therefore, your communication with us through this forum will not be considered as privileged or confidential.


Question #1 – Deferred Action for Childhood Arrivals (DACA)
If I returned my work permit for DACA, during the required time period, will I be issued a new one and how soon?

Answer #1

Yes.
The USCIS website provides the following information:
• IF you have a three-year Employment Authorization Document that was issued to you after the February 16, 2015, court order. THEN, your three-year card is no longer valid and you must return it. USCIS has already sent a replacement card valid for two years and one or more letters instructing you to return your three-year EAD.
• If you have a three-year Employment Authorization Document that was initially issued to you on or before the February 16, 2015, court order, but then re-mailed to an updated address after the court order. THEN, your three-year card is no longer valid and you must return it. In those cases, USCIS is in the process of sending you a replacement card valid for two years.


Question #2 - Immigration Petition for Alien Relative
As a U.S. citizen, for whom can I file an I-130 Form?

Answer #2
As a USC, you may sponsor (file an I-130, Immigration Petition for Alien Relative) petition on behalf of your Immediate Relatives – Parents, Spouse, and Children who are under 21 and unmarried. Visas are always available for Immediate Relatives of USCs.

You may sponsor other family members who are not immediate relatives; however, the preference categories apply and you may experience significant delays in the sponsorship of those relatives depending upon their country of chargeability and relationship to you.
• First preference: Unmarried, adult sons and daughters of U.S. citizens (adult means 21 or older.)
• Third Preference: Married sons and daughters (any age) of U.S. citizens
• Fourth Preference: Brothers and sisters of adult U.S. citizens


Question #3 - General
How long can you lawfully stay in the United States before returning home after a visa expires?

Answer #3
There is no safeguard/grace period written in the regulations; however, everyone should be aware of the 3 year/10 year bars. Persons who have accumulated 180 days or more of unlawful presence after April 1, 1997, and have then left the country, cannot return to the U.S. for 3 years. Persons who have accumulated one year or more of unlawful presence after April 1, 1997, and have then left the country, cannot return to the U.S. for 10 years.


Question #4 – Employment Authorization (EAD)
I filed for my EAD renewal back in May and it is still pending. My current EAD expires next week. What are my options?

Answer #4
Stop working once your current EAD expires and wait for the delivery of your new EAD. Or, if you are eligible/qualify, you may submit an expedite request to the USCIS through an INFOPASS Appointment at a local office.

USCIS Expedite Criteria:
• Severe financial loss to company or individual
• Extreme emergent situation
• Humanitarian situation
• Nonprofit status of requesting organization in furtherance of the cultural and social interests of the United States
• Department of Defense or National Interest Situation (Note: Request must come from official United States Government entity and state that delay will be detrimental to our Government)
• USCIS error
• Compelling interest of USCIS


Question #5 – Visa Bulletin
Where can I find the visa bulletin numbers?

Answer #5
On the U.S. Department of State website: Visa Bulletin


Question #6 – General
My name was spelled incorrectly on my I-797 receipt notice for my I-129. Can I have it corrected and will it affect the approval process?

Answer #6
Contact the USCIS at 1-800-375-5283 and initiate a Service Request to correct the typographical error, so that the approval notice is accurate.


Question #7 – Green Card
Does Green Card processing duration depends on the country of birth or country of nationality?

Answer #7
Chargeability is usually determined by country of birth. Exceptions are made to prevent the separation of family members when the limitation for the country of birth has been met.


Question #8 – Green Card
If my wife just received her EAD, can she apply for a Social Security Number or does she have to wait until her Green Card is approved?

Answer #8
Once you are officially authorized to work in the United States (issuance of an Employment Authorization Document) you may apply for a Social Security Number.


Question #9 – H4 Dependent Visa
Are there pros to Consular Processing an H-4 Visa rather than just applying for one while in the US?

Answer #9
Yes. You do not have to pay a legal fee to a lawyer to prepare the I-539 form, and you do not have to pay a filing fee to the USCIS ($290.00). You pay for and schedule the appointment, and then appear for the visa stamping appointment with the necessary documentation (proof of spouse’s H1B approval; spouse’s paystubs; marriage certificate, birth certificate of any children, etc.) Generally, it is a short process unless the Consulate is experiencing a backlog in the scheduling of appointments. General processing with the USCIS is 3-4 months depending upon the Service Center.


Question #10 - Affidavit of Support
What is an Affidavit of Support?

Answer #10
USCIS: An affidavit of support is a document an individual signs to accept financial responsibility for another person, usually a relative, who is coming to the United States to live permanently.


MVP Law Group would like to thank everyone who contributed a question or comment.

Our next “Immigration Q & A Forum” is scheduled for Friday, September 4, 2015!

Please remember to submit your questions/comments on our H1B Visa Lawyer blog!

NO ROOM FOR ERROR - BALCA Says 20 CFR 656.11(b) Effectively Overruled HealthAmerica

August 20, 2015

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Cook Assistant, Japanese Cuisine.”

After audit, the CO denied the labor certification stating the prevailing wage on the ETA form 9089 did not match the one listed on the prevailing wage determination (PWD). The Labor application listed “$10.04” per hour and the prevailing wage determination listed “$10.14” per hour. The Employer requested reconsideration of the denial stating the prevailing wage discrepancy was “a minor typographical error”, “a clerical mistake of minor importance,” and that “no potential applicant was exposed to the clerical error.” They cited its Notice of Filing included the accurate wage. The Employer also argued in order to correct and re-file the labor application they would have to re-start the time-consuming recruitment process all over again.

After reviewing the reconsideration, the CO affirmed its denial of certification. He believed that under the PERM regulations, “employers must present an application that is complete and accurate to ensure the integrity of the PERM process.” The CO also pointed out that “$10.04” was typed twice on the application. The CO based his decision on the 20 C.F.R. 656.10(c)(1), which requires employers to certify in applications for permanent employment certification that the “offered wage equals or exceeds the prevailing wage.” The CO forwarded the case to BALCA for review.

Upon review, the BALCA panel affirmed the denial. The panel was required to follow PERM regulation 20 CFR 656.11(b). This regulation states “requests for modifications to an application will not be accepted for applications submitted after July 16, 2007.” Although they believed the errors were typographical, the Board was not going to second guess the PERM regulation.

EB-5 Regional Centers Naming Conventions – Be Careful!

August 19, 2015

The U.S. Citizenship and Immigration Services (USCIS) would like to remind stakeholders that “EB-5 regional centers” and related commercial enterprises should not contain the words “United States,” “U.S.,” “US” and “Federal” in their names. Using these words in the name of a regional center or enterprise may imply a false relationship between the entity (using the name) and the U.S. government and its’ federal agencies. Please read the USCIS message, “News: USCIS Message on EB-5 Regional Centers Naming Conventions” for further details and regulations.

On Monday, August 17th, USCIS also reminded stakeholders that no one, including EB-5 regional centers, may use the official U.S. Department of Homeland Security (DHS) seal or the DHS seal coupled with the USCIS signature without first obtaining express written approval from the Secretary of DHS. Please read the USCIS message, “News: USCIS Message: Unauthorized Use of the DHS Seal” for further details and regulations.


Background:
In 1990, Congress created the EB-5 Program to help stimulate the U.S. economy through job creation and capital investment by approved immigrant investors. Under this program, entrepreneurs (and their spouses and unmarried children under 21) are eligible to apply for a green card (permanent residence) under specific conditions. Congress placed a 10,000 annual limit on the number of visas available for the EB-5 program. In 1992 Congress set aside 3,000 of the EB-5 visa total for the EB-5 Immigrant Investor Program, also known as the Regional Center Program. These set aside EB-5 visas are for participants who invest in commercial enterprises associated with regional centers which are approved by USCIS.
USCIS warns that potential investors should always do their own research and consult with a financial professional before making any investment decisions.


Source of Information:
ILW.com (The Immigration Portal), 8/12/15, USCIS message:
News: USCIS Message on EB-5 Regional Centers Naming Conventions

USCIS.gov, 8/10/15, Web Page:
Immigrant Investor Regional Centers

ILW.com (The Immigration Portal), 8/17/15, USCIS message:
News: USCIS Message: Unauthorized Use of the DHS Seal

Impact of New Americans (2015) - Michigan, Minnesota & Mississippi

August 18, 2015

Immigration Policy Center Releases Updated State-by-State Fact Sheets (2015)

The Immigration Policy Center (IPC) has released all fifty states, the District of Columbia and the United States (Overall), for a total of fifty-two updated fact sheets with accompanying info graphics and other details. These fact sheets highlight the demographic and economic impact of Immigrants, Asians and Latinos in each state. The Immigration Policy Center (IPC) is the research and policy division of the American Immigration Council (AIC).

As Washington D.C. continues the discussion of Comprehensive Immigration Reform, we thought that it would be a good time to provide some statistics on the Immigrant population in the United States as provided by this IPC research. Once a week we will be posting a blog with information on three states at a time. This week we will highlight; Michigan, Minnesota & Mississippi.

The IPC has compiled research which shows that Immigrants, Latinos and Asians are an essential part of each of these states’ economy, labor force and tax base. Immigrants and their children are a growing economic and political force as consumers, taxpayers and entrepreneurs. With the nation working towards economic recovery, immigrants and their children will continue to play a key role in shaping the economic and political future of each of these states.

To view the state-by-state fact sheets click on the links below:

Michigan
Minnesota
Mississippi

Source of Information:

The Immigration Policy Center (IPC), Interactive Map (fact sheets):
The Economic and Political Impact of Immigrants, Latinos and Asians State by State

The Immigration Policy Center (IPC), List (fact sheets):
The Economic and Political Impact of Immigrants, Latinos and Asians in all 50 States

MVP "Immigration Q & A Forum" - This Friday, August 21, 2015

August 17, 2015

We wanted to find a new way to engage our reader base. Every other Friday, we will post the ten (10) best/most frequently asked questions received during the week from our h1bvisalawyerblog, Facebook, and Twitter readers. We will answer those questions and provide the Q&A on our H-1B Visa Lawyer Blog.

If you have a burning question, are seeking assistance with a difficult immigration related case, wish to discuss your views on Comprehensive Immigration Reform, DREAMers, Deferred Action for Childhood Arrivals, priority dates, the monthly visa bulletin, adjustment applications, etc., please contact us by submitting your question/comment/viewpoint in our comment box provided on our H-1B Visa Lawyer Blog.

Our next “Q & A Forum” will take place this Friday, August 21, 2015. Act now and submit your questions!

THANK YOU!

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. Therefore, your communication with us through this forum will not be considered as privileged or confidential.

BALCA Says Laid-Off U.S. Worker was Rejected for a Lawful, Job-Related Reason

August 14, 2015

The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Software Engineer.”

The CO denied the labor certification stating “the Employer did not notify potentially qualified laid-off US workers of the job opportunity.” In response, the Employer requested reconsideration of the denial. The Employer argued they did not have a US worker who met the qualifications of the position. The CO sent an Audit Notification requesting documentation of all of the laid-off US workers and how they were advised of the available position and the results of such notification and consideration. A month later, the Employer presented a recruitment report that summarized its “lay-off review.”

Once again, the CO denied the labor application because he believed “a US worker was rejected for non-job related reasons.” The Employer did not re-hire the US worker because he did not have the required specific skill sets. While the CO was aware that the US worker lacked the qualifications, he believed the worker could gain through reasonable on the job training the skills necessary to perform the job duties of the position.

The Employer filed another request for reconsideration of the denial. They argued the lack of special skills was a “lawful job related reason” for rejection. The Employer strongly felt those skills could not be taught within a realistic period of on the job training. In response, the CO upheld his denial and forwarded the case to BALCA for review. The CO stated his denial was valid because the Employer did not provide any documentary proof, as mere assertions are insufficient to prove a lawful rejection.

Upon review, the BALCA panel reversed the denial of the CO. The Board believed the Employer appropriately turned down the US Worker because he failed to meet the minimum requirements of the proffered position as listed in the ETA 9089. In addition, the CO did not mention in his initial denial that he wanted to see actual documentation of the lawful job-related reasons for rejection. BALCA believed the Employer was not provided sufficient notice of this part of the CO’s denial and was not able to present any evidence to rebut. BALCA stated the CO did “not provide adequate authority to deny the application,” so it was sent back to the CO for certification.