DACA – Updated Frequently Asked Questions

July 29, 2015

On June 15, 2015 the USCIS updated their Deferred Action for Childhood Arrivals (DACA) frequently asked questions (FAQs). Reviewing these frequently asked questions is a great way to get a better understanding of the DACA process.

These FAQs cover:
- What is Deferred Action for Childhood Arrivals?
- DACA Process
- Background Checks
- After USCIS Makes a Decision
- Initial Requests for DACA
- Travel
- Criminal Convictions
- Miscellaneous


DACA is a memorandum signed by President Obama directing U.S. Customs and Border Protection (CBP), U.S. Citizenship and Immigration Services (USCIS), and U.S. Immigration and Customs Enforcement (ICE) to practice prosecutorial discretion towards some individuals who immigrated to the United States as children and are currently in this country illegally. They are also eligible for work authorization, but deferred action is not a lawful status nor does it lead to a lawful permanent status. The eligibility requirements for who can apply for DACA are very specific and can be reviewed on the USCIS website at: Consideration of Deferred Action for Childhood Arrivals (DACA).


Source of Information:
USCIS.gov, 6/18/15, FAQs:
DACA – FAQs updated 6/15/15

USCIS.gov, 10/7/14, Video:
Consideration of Deferred Action for Childhood Arrivals - How to Apply or Renew DACA

Related Links:
USCIS.gov, 6/15/15, Web Page:
Renew Your DACA

USCIS.gov, 3/10/15, Web Page:
Consideration of Deferred Action for Childhood Arrivals (DACA)

Impact of New Americans (2015) - Illinois, Indiana & Iowa

July 28, 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; Illinois, Indiana & Iowa.

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:

Illinois
Indiana
Iowa

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

BALCA on Travel Requirements and Multi-Position Notices of Filing

July 27, 2015

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

Upon evaluating an Employer’s Application for Permanent Labor Certification, the CO ordered the Employer to present copies of its recruitment data.

After reviewing the recruitment data, the CO denied the Labor Application because he believed it violated PERM regulations 20 CFR 656.10 (d)(4) and 656.17(f)(6). The CO stated the Employer’s Notice of Filing (NOF) and other recruitment materials included a travel requirement not listed on the Employer’s ETA Form 9089.

The Employer sent a reconsideration request to the CO. In the argument, the Employer declared that its NOF was used to fulfill multiple positions. Some of these positions did require travel while others did not. The Employer argued that the phrase “may be assigned to various unanticipated sites throughout the United States” does not create an obligatory travel condition for all of its job openings. Additionally, the Employer argued that the Department of Labor (DOL) endorsed the use of the phrase “some positions may require travel” in advertisements covering multiple positions, and the phrase “may be assigned to various unanticipated sites throughout the United States” bears no logical or material distinction from the DOL endorsed language.

Upon reconsideration of the employer’s arguments, the CO confirmed his denial of the labor certification. The CO thought the use of “open-ended” terms such as “may require travel” could be interpreted as a compulsory job requirement for applicants. He forwarded the case to BALCA for further examination.

After BALCA’s examination of the case, BALCA affirmed the CO’s decision. BALCA believed that “potential job applicants could be confused as to whether the Software Engineer positions had the potential requirement of travel.” BALCA cited the NOF does show it is for multiple positions. However, it does not convey that the travel requirement only pertained to certain positions. There were no contextual cues in the NOF that would signify to a reader that the travel requirement only applied to some of the positions. The Employer in no way differentiated between the various software engineer positions. Accordingly, the phrase “may be assigned to various unanticipated sites” constituted a travel requirement that exceeded the requirements listed in the ETA Form 9089.

MVP LAW GROUP – Immigration Q&A Forum, Friday, July 24, 2015

July 24, 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 – Alternate Options to H1B Nonimmigrant Work Visa
Since the H-1B Cap Case Quota has been met, are there any other options for me to hire a Foreign Worker?

Answer #1
Now that all of the new H-1B visas for the 2016 Fiscal Year have been allocated, What options do Employers who are looking to hire Foreign National Professionals have?
Here are some creative solutions to this problem:

OPT – STEM Extension
If the company is registered for E-Verify, the database that enables employers to verify the legitimacy of work authorization and identity documents at the time of hire, those who have been granted 12 months of Optional Practical Training after graduation, are eligible for a STEM extension of an additional 17 months of work authorization.

O-1 Visa
The O-1 visa is suited for individuals of extraordinary ability or achievement. The O classification is a useful and flexible alternative to the H-1B program because there is no overall limit on time in the classification and there is no cap. O-1 beneficiaries in the sciences, arts, education, business, or athletics must have extraordinary ability “demonstrated by sustained national or international acclaim.”

E-3 Visa
The E-3 visa classification is limited to Australian Professionals. The E-3 visa is a “specialty occupation” visa similar to the H-1B visa. Therefore to be eligible for the visa, the Australian citizen must possess a bachelor’s degree or higher (or its equivalent) in the specialty and the specialty occupation must require the degree. There is a 10,500 annual limit on the E-3 visa.

L-1 Visa
The L-1 visa is an option for international organizations with offices in the United States who transfer employees to the United States for temporary periods of time. In order to be eligible for an L-1 visa, the petitioning entity must prove that the beneficiary of the visa has worked for the non-U.S. based sister company/subsidiary for at least one full year within the last three years as an executive, manager or employee with specialized knowledge.

H-1B Visa for FY2017
WAIT for the H-1B FY2017 Quota! The H-1B FY2017 Quota will open on April 1, 2016 with employment beginning on October 1, 2016. 65,000 visas are annually allocated to foreign nationals who possess a bachelor’s degree or higher (or its equivalent) in the specialty and the specialty occupation must require the degree. We can begin to prepare cases for the annual quota now; however, no cases will be filed with the USCIS towards the CAP until after April 1, 2016.

Contact MVP Law Group for more information!


Question #2 – H1B Nonimmigrant Work Visa
My H1B visa got approved in 2014 which was filed by my previous employer. I did not get chance to travel to USA or my visa stamped. Now that I am with another employer, can I transfer my H1B?

Answer #2
Yes, as your facts appear to indicate that you were subject to the H1B CAP within the past six years.


Question #3 – Lawful Permanent Residence
Last week, I received my Green Card. What are my next steps?

Question #3
Congratulations on receiving your Green Card!

1. USCIS maintains a useful web page on the topic “Now That You Are A Permanent Resident.” It can be found at http://uscis.gov this is the USCIS home page, go to the left side of the page under More Information on and click on “Permanent Residence-Green Card” Then look to the right side and under Related Links you will find valuable information on, among other topics, how not to lose your status as a permanent resident. I highly recommend that you review this page and contact our office if you have any questions concerning the information it provides.
2. USCIS also maintains good information on the topic of naturalization (U.S. citizenship) on their website. If you have any interest in applying for U.S. citizenship, I would recommend that you familiarize yourself with this information now so that you can begin to lay the groundwork for a successful application.
3. All permanent residents are required to advise USCIS of changes in their home address. The permanent resident’s change of address form can be found at the website listed above.
4. Your card is good for 10 years. It must be renewed when it expires. If you have any questions concerning this information, do not hesitate to contact our office.

Question #4 – Dependent Spouse H4 EAD
What are the USCIS filing fees for an H-4 EAD?

Answer #4
The USCIS filing fee for Form I-765 is $380.00. No biometrics filing fee is required.


Question #5 – H1B Nonimmigrant Work Visa
Is it possible for me to switch from an H-1B visa to another status? How long does it normally take?

Answer #5
Generally, yes and it depends. You have not provided sufficient information to provide a solid answer. Please contact our office to schedule a consultation to discuss any options that may be available.


Question #6 – Lawful Permanent Resident
If I am a Permanent Resident, can I file a petition for my parent’s Green Card?

Answer #6
No. You may sponsor your Parents if/when you become a United States Citizen.


Question #7 - Biometrics
My priority date is current but waiting for a Green Card. I just received second biometrics appointment notice. My first one I got was in Feb of 2013. Do I have to attend the second appointment?

Answer #7
Yes, you should attend your biometrics appointment and notify the front reception desk that you appeared back in February 2013. If a second set of fingerprints is not required, they will let you know. Generally, fingerprints are valid for a period of 15 months only, so it is likely that a second set of fingerprints are required to complete the adjudication process.


Question #8 – TN Nonimmigrant Work Visa
What is required to obtain a TN visa at the border?

Answer #8
You must be a Canadian National, with a valid offer of employment from a U.S. employer. Mexican Nationals are required to seek the TN visa directly from the Consulate and are not able to obtain a TN visa directly at the border.


Question #9 – Family Based Immigration
I am marrying a United States citizen in two weeks; do you know when I can expect to have my interview to change my status?

Answer #9
You will have to file the Immigrant Petition along with the Adjustment Application and allow those petitions to process. It can take anywhere from 6-12 months, if not longer depending upon the current case load for the Immigrant Petition and Adjustment Application at the Service Center. It is not an automatic process.


Question #10 – Premium Processing
If my employer does Premium Processing for my H-1B extension, how long does it take for my case to get approved?

Answer #10
Premium processing allows a case to be adjudicated within a period of 15 calendar days from the date the USCIS receives the petition. If a request for additional evidence (RFE) is issued, the 15 day clock stops and will re-start once the USCIS receives the response to the RFE.


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

Our next “Immigration Q & A Forum” is scheduled for Friday, August 7, 2015!

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

Impact of New Americans (2015) - Georgia, Hawaii & Idaho

July 23, 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; Georgia, Hawaii & Idaho.

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:

Georgia
Hawaii
Idaho

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 5/31/15)

July 22, 2015

Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Service Centers were released on 7/17/15 with processing dates as of 5/31/15.

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.

BALCA Remands, Says Ads Would Not Prevent U.S. Workers from Applying

July 21, 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 “Support Engineer”.

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification directing the Employer to present its recruitment records. In the Notice of Filing (NOF), the Employer lists the position “requires a BA/BS or MA/MS degree or equivalent in Computer Science, Engineering, Physics, Math, Information Systems, Business or related field; Team Manager Positions are available.” The Washington State Workforce Agency (SWA) job order stated “qualifications may include a MA/MS degree or equivalent or a BA/BS degree or equivalent in Computer Science, Engineering, Math, Physics, Information Systems, Business or related field; Multiple positions available.”

The Employer complied with the Audit request and ultimately the CO denied certification of the application. The position communicated in its NOF and SWA did not match the one listed on the Employer’s ETA Form 9089 in violation of PERM Regulation 20 C.F.R. § 656.17 (f)(6). On the Employer’s NOF and SWA, it listed a Master’s degree that surpassed the requirements recorded on the ETA Form.

The Employer requested reconsideration. In its argument, the Employer stated that neither the NOF nor SWA indicated a Master’s degree was a requirement for the position. The terms “may include a BA/BS or MA/MS” or “requires a BA/BS or MA/MS” were used to clarify that some of the positions could necessitate a Master’s degree.

After BALCA’s examination of the case, BALCA sided with the Employer. The Board thought any job applicant could clearly view that multiple positions were available with varying qualifications. Specifically, the Employer’s job description was written in plural term and it was clear from the inclusion of the team manager positions in the ad that the various positions had differing educational requirements. BALCA believed the Employer’s advertisements were not misleading or would have stopped any US applicant from applying to these jobs. The labor application was sent back to the CO for certification.

MVP "Immigration Q & A Forum" - This Friday, July 24, 2015

July 20, 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, July 24, 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.

Administrative Appeals Office (AAO) Processing Times - 7/1/15

July 17, 2015

Administrative Appeals Office (AAO) Processing Times were released with processing dates as of 7/1/15.

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 current.

*Current = 6 months or less

**Most other cases are within USCIS's processing time goal of 6 months or less.


Source of Information:

USCIS.gov, (7/9/15), AAO Processing Times

AILA Doc. No. 15071010. (Posted 7/1/15)

BALCA Rejects Newspaper HQ as Determinative in Evaluating Area of Intended Employment

July 16, 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 “Computer Programmer.”

Upon evaluating an Employer’s Application for Permanent Labor Certification, the CO denied the Labor Application because the Employer ran its recruitment advertising in the Arkansas Democrat Gazette, as he believed it was not the newspaper of general circulation for Bentonville, Arkansas. The company was located in Bentonville, AR and the newspaper was headquartered in Little Rock, AR. He believed that the Arkansas Democrat Gazette would not bring replies from available US workers in the area of intended employment.

The Employer sent a reconsideration request to the CO. In the argument, the Employer declared that “The Arkansas Democrat Gazette is most likely to bring responses from available US workers because it is the most widely circulated newspaper in Bentonville and the most widely circulated Sunday newspaper in all of Arkansas.” They submitted several pieces of evidence to back up their claims including circulation numbers from the Arkansas Democrat Gazette and Mondo Times website. One of these documents stated there is no other newspaper in Bentonville, AR.

Upon reconsideration of the employer’s arguments, the CO confirmed his denial of the labor certification. He thought the 200 mile commuting distance between the area of intended employment, Bentonville, AR, and the newspaper’s headquarters in Little Rock, AR could not be considered normal. The CO assumed the Employer should have posted ads in a newspaper within closer proximity to Bentonville.

The Employer filed an appeal to BALCA. They had clearly obeyed PERM regulations by placing two different Sunday advertisements in a newspaper of general circulation in the area of intended employment.

After BALCA’s examination of the case, the CO’s decision was reversed. The Board believed the CO did not interpret the regulations correctly. They cited the PERM regulations do not state the newspaper’s business address has to be within commuting distance of the job location.

DACA Recipients with 3-Year EADs Issued After the Injunction Must Return them by 7/17/15

July 15, 2015

In response to the injunction in Texas v. United States, USCIS is requiring approximately 2,000 individuals to whom 3-year Employment Authorization Documents (EAD) were issued after the February 16, 2015 injunction, to return their EADs to the USCIS by July 17th or show cause.

The USCIS letter sent to the affected individuals stated, "USCIS must receive your EAD by 7/17/15. Failure to return the invalid EAD without good cause may affect your deferred action and employment authorization."
This does not affect EADs that were issued before the injunction. Also, and most important - these affected individuals have already been issued a new 2-year EAD as a replacement for the invalid 3-year EAD.

The lawsuit, State of Texas, et al v. United States, was filed in December 2014 by 26 states and challenged the expanded Deferred Action for Childhood Arrivals (DACA) and creation of the Deferred Action for Parental Accountability (DAPA) program that President Obama announced on November 20, 2014. On February 16, 2015, a federal district court in Texas issued a preliminary injunction temporarily blocking the expansion of DACA and the implementation of DAPA.


Source of Information:
AILA.org, 7/9/15, AILA Doc No. 15070802:
DACA Recipients with Three-Year EADs Issued After the Injunction Must Return EAD by July 17

Catholic Legal Immigration Network, 5/2/15, Article:
Frequently Asked Questions: DAPA, Expanded DACA, and the Court Injunction

Visa Bulletin - August 2015

July 14, 2015

The Department of State has released its latest Visa Bulletin.

Click here to view the August 2015 Visa Bulletin

As projected by the U.S. Department of State, the August 2015 Visa Bulletin shows the EB2 date for nationals from India stayed at 10/1/08; the EB3 date for nationals from India moved from 2/1/04 to 6/1/04; the EB2 for Chinese Nationals moved from 10/1/13 to 12/15/13; the EB3 for Chinese Nationals retrogressed from 9/1/11 to 6/1/04 due to large demand; and EB3 for WW moved from 4/1/15 to 7/15/15; and the F2A category moved from 11/8/13 to 12/15/13, except Mexico which moved from 9/15/13 to 11/1/13. The F2A category is reserved exclusively for Spouses and unmarried children (under the age of 21) of green card holders (LPRs).


*The priority date is current if there is no backlog in the category, or if the priority date is on or before the date listed as current in the State Department's monthly Visa Bulletin.

**”All Chargeability Areas except Those Listed”, includes all other countries except: China, India, Mexico and Philippines.