Posted On: October 30, 2009

FY10 DHS Appropriations bill signed into Law

On Wednesday, October 28, 2009, President Obama signed into law the FY10 Department of Homeland Security Appropriations bill. This Law provides a three year extension for four (4) immigration related programs. Specifically, the law extends the non-minister religious worker program, the “Conrad 30” program, the EB-5 visa program, and the E-Verify program through September 30, 2012.

The information contained in this web posting was provided by:
AILA InfoNet Doc. No. 09102968 (posted Oct. 29, 2009)"

Posted On: October 29, 2009

USCIS Offers FREE Naturalization Information Sessions

The United States Citizenship and Immigration Service (USCIS) is offering FREE Naturalization Information Sessions in various places in the U.S. during the months of November and December.

Each session will cover the following topics: Naturalization eligibility requirements, the Naturalization process, the Naturalization test, and the rights and responsbilities of U.S. Citizenship.

In November, the free sessions will be held in Hartford, Connecticut; Oakland Park, Florida; Redding, California; and Atlantic City, New Jersey. Please click on the link below to find out more information or to register for a free informational session.

In December, the free sessions will be held in Beaverton, Oregon; Seattle, Washington; and Yakima, Washington. Please click on the link below to find out more information or to register for a free informational session.

USCIS FREE Naturalization Informational Sessions

If you are in need of assistance in applying for Naturalization, please contact our office for more information!

Posted On: October 23, 2009

USCIS Issues a Fact Sheet to Remind Individuals to apply EARLY for Advance Parole

The United States Citizenship and Immigration Service (USCIS) has recently issued a fact sheet reminding qualifying applilcants to apply EARLY for an Advance Parole document, as Advance Parole processing times take about 90 days.

The list of applicants who must obtain an Advance Parole document before traveling outside of the United States is as follows:

• Applicants that have been granted Temporary Protected Status (TPS);
• Applicants with a pending application for adjustment of status to lawful permanent resident (LPR);
• Applicants with a pending application for relief under section 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA 203);
• Applicants with a pending asylum application; or
• Applicants with a pending application for legalization

If you are an Appllicant with a pending Application for Adjustment of Status to Lawful Permanent Resident (LPR) and need assistance with filing Form I-131, contact our office, as we currently have a SPECIAL running for the preparation and filing of the Advance Parole document.

$450 flat fee (no admin fee) for filing both EAD and Advance Parole per applicant
$200 + $50(admin fee) if filing either EAD or Advance Parole separately
Our normal legal fees are $250 + $50(admin fee) per application
**If an RFE is received, an additional legal fee will be required to respond**

Posted On: October 21, 2009

BALCA upholds denial of Labor Certification – Job Order Placed 184 days prior to CO’s date stamp

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the nonprofessional position of “Drywall taper."

The employer filed a LC which was mailed on September 20, 2006 and accepted for processing on September 22, 2006. ETA Form 9089 indicated that the State Workforce Agency (SWA) job order was run from March 22, 2006 through March 26, 2006. The CO issued a denial letter on July 5, 2007 on the basis that the job order was completed more than 180 days prior to the submission of the labor application.

PERM Regulation 20 C.F.R. § 656.17(e)(2) controls and it provides that if the application is for a nonprofessional occupation, the employer must place a job order no more than 180 days before the filing of the application. Furthermore, the filing date for a mailed application is the date the CO stamps it as received, not the postmark date. In the instant case, the SWA job order was placed 184 days prior to the CO’s date stamp. Even if the date was calculated from when the employer shipped the application, the SWA job order was still untimely.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.

Matter of The Drywall Doctors

Posted On: October 20, 2009

Updated Service Centers Processing Times

Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Centers were released on October 18, 2009 with processing dates as of August 31, 2009.

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
National Benefits Center
Nebraska Service Center
Texas Service Center
Vermont Service Center

If your petition is out-side of the normal range listed, contact USCIS. (1-800-375-5283)
If you are a client of the MVP Law Group and would like our assistance, please contact our office.

Posted On: October 19, 2009

BALCA upholds denial of Labor Certification – FEIN Discrepancy

The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of Electrical Helper.

The employer filed a LC on behalf of an alien worker and in November of 2007, the CO denied the application because he was unable to verify the Employer as a bona fide business entity. The Employer requested reconsideration by submitting its 2006 Federal Corporate Tax Return, its Business Certificate Registration and two utility bills. The Federal Employer Identification Number (FEIN) provided on the 2006 Tax Return only matched the first two digits of the FEIN previously provided on Form ETA 9089. Furthermore, the utility bills and the tax return provided a different address from that on the Business Certificate Registration. Thereafter, the CO issued a letter denying reconsideration because the FEIN on the corporate tax return did not match the FEIN on ETA Form 9089. The CO then forwarded the case to BALCA. The Employer filed a letter stating that its company had two addresses, one for its motor shop and the other for its main office, the CO did not file an appellate brief with the Board.

Upon BALCA review, it was determined that the requirement in ETA Form 9089 requiring submission of a FEIN was fully supported by the regulations and by policy of using the FEIN as a means of verifying whether an employer is a bona fide business entity. An employer MUST possess a valid FEIN when applying for labor certification pursuant to PERM regulation 20 C.F.R. § 656.3. In the present case, there was a discrepancy in the FEIN provided in ETA Form 9089 and in the 2006 tax return; however, the Employer failed to explain the discrepancy.

Accordingly, since the discrepancy in the FEINS was not clarified, the Board affirmed the CO’s denial of certification.

Posted On: October 14, 2009

SPECIAL – EAD and Advance Parole Renewal

$450 flat fee (no admin fee) for filing both EAD and Advance Parole per applicant

$200 + $50(admin fee) if filing either EAD or Advance Parole separately

Our normal legal fees are $250 + $50(admin fee) per application

**If an RFE is received, an additional legal fee will be required to respond**


Contact our office to process your EAD and Advance Parole Renewal!


The required documents for filing an EAD renewal are as follows:
1. copy of current EAD card (front and back)
2. copy of I-485 receipt notice
3. copy of I-765 approval notices
4. two (2) colored passport style photographs for each applicant
5. application fee $340 each (Check made payable to U.S. Department of Homeland Security- DO NOT ABBREVIATE)

The required documents for filing an AP renewal are as follows:
1. copy of current Advance Parole approval
2. copy of current status for each applicant; (For example, if on H1B, a copy of current H1B approval notice, etc.)
3. copy of I-485 receipt notice
4. two (2) colored passport style photographs for each applicant
5. application fee $305 (Check made payable to U.S. Department of Homeland Security – DO NOT ABBREVIATE)


FREQUENTLY ASKED QUESTIONS:

Question: How soon can I renew my EAD and Advance Parole (AP)?
Answer: You can file the renewal 120 days prior to the expiration date. However, AP applicants are advised to reapply within 30 days or less remaining on their current I-131 document.

Question: I have a valid H-1B. Do I need to renew EAD and AP?
Answer: No. You do not have to renew your EAD or AP. According to the new USCIS guidance issued last November, People on L1 or H-1B status can travel without AP. However, it is advisable to renew the EAD and AP as a precautionary measure if you plan to travel. For instance, if you travel outside the U.S. and you are not allowed back into the U.S. by customs on H-1B for any given reason, you can always come back in with AP and ensure that your adjustment of status proceeding continues.

Question: My spouse has H4 and is currently not working; do I need to renew EAD? Can I renew later when I need it?
Answer: You do not need to renew EAD. You can reapply for EAD anytime while your I-485 is pending.

Question: How long does it take to get a new EAD and AP?
Answer: Current processing times can be viewed on the USCIS website.

Question: My H-1B is expiring, should I extend H-1B or be on EAD?
Answer: You can work on EAD while your adjustment of status application (I-485) is pending. However, in the unforeseen event that your adjustment of status application is denied by the USCIS, you would fall out of status. Therefore, it is a good idea to maintain H-1B status as long as you can. However, this is decision that you have to make.

Question: Can I renew AP while I am outside the U.S.?
Answer: No

Question: What happens if my EAD expires and I’m still waiting for an approval of 485 while I am working?
Answer: If not on valid H-1B/L status, you cannot work until you get an approval.

Question: If I am currently on O1 status, and would like to travel, should I apply for AP and EAD, or just AP?
Answer: If you are on a nonimmigrant status other than H-1B, H-4, L-1, or L-2, you should obtain an AP, but EAD is not needed. Problems could occur while traveling, especially when attempting to reenter the U.S. Therefore, it is recommended that if you are not on H-1B/L status, that you should obtain both an EAD and AP if you wish to travel outside the U.S. while your I-485 is pending.

Question: What is the validity period for the EAD card?
Answer: As of June 30, 2008, USCIS will issue EAD valid for two years for individuals who qualify. The new two-year EAD is only available to individuals who have filed Adjustment of status I-485 and are unable to become a lawful permanent resident because an immigrant visa number is not currently available.

Posted On: October 13, 2009

All NATURALIZATION Applicants must take NEW Naturalization Test

The United States Citizenship and Immigration Services (USCIS) completed a multi-year redesign of the naturalization test which has been in effect since October 1, 2008. From October 1, 2008 until September 30, 2009, applicants were able to choose whether to take the old test or the new test.

The major goal of the redesign process was to ensure that naturalization applicants have uniform, consistent testing experiences nationwide, and to provide a fair and meaningful naturalization process. The USCIS believes that the newly designed test will help encourage citizenship applicants to learn and identify with the basic values we all share as Americans. Currently the passage rate for those taking the NEW test is 91%.

Effective October 1, 2009, all Citizenship applicants must take the NEW redesigned test.

Study materials for the NEW test are available on the USCIS newly designed website.

If you are considering applying for Naturalization or have questions about the process, please contact our office.

Posted On: October 12, 2009

November 2009 Visa Bulletin

The Department of State has released its latest Visa Bulletin. The November 2009 visa bulletin still shows employment based third preference (EB-3) visas as oversubscribed while the employment based second preference (EB-2) is current for all areas of chargeability except for China and India.

Click here to view the November 2009 Visa Bulletin.

Posted On: October 9, 2009

BALCA upholds denial of Labor Certification – Application Filed Less Than 30 Days After Job Order Ended

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of “Care Provider."

The employer filed an application for LC which was accepted for processing on January 30, 2008. On February 15, 2008, the CO denied certification on several grounds, one being that the Job Order was placed less than 30 days prior to the date the application was filed in violation of the governing regulations.

PERM Regulation 20 C.F.R. § 656.17(e) controls and it provides that if the application is for a nonprofessional occupation, the employer must at a minimum, place a job order and two newspaper advertisements within 6 months of filing the application. The steps must be conducted at least 30 days but no more than 180 days before the filing of the application. The employer must place a job order with the State Workforce Agency (SWA) serving the area of intended employment for a period of 30 days. The start and end dates of the job order entered on the application serve as documentation of this step.

The Employer acknowlegded the timing fact, but blamed its non-compliance on the SWA; however, it is the employer's responsibility to comply with filing requirements. As such, the Board found that the CO properly denied certification.

To read the entire decision: Maria's Home for the Aged

Posted On: October 8, 2009

APPLY TODAY for the 2011 Diversity Visa (DV) Lottery – ONLY ONLINE ENTRIES ACCEPTED

Annually, the United States government issues a maximum of 55,000 green cards through a computer-generated random lottery drawing. Applications for the DV 2011 random lottery will be accepted Friday, October 2, 2009 through Monday, November 30, 2009. Paper entries will not be accepted, eligible participants may access the electronic Diversity Visa entry form (E-DV) to apply during this period.

These green cards are only available to those eligible participants from countries with low rates of immigration to the United States. For DV-2011, persons born in Hong Kong SAR, Macau SAR, Taiwan, Russia and Kosovo are eligible. No countries have been removed from the list of eligible countries for DV- 2010.

Natives of the following countries are not eligible to apply because the countries sent a total of more than 50,000 immigrants to the U.S. in the previous five years: Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Philippines, Peru, Poland, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

To enter the DV lottery , you must be a native of one of the eligible countries. In most cases this means the country in which you were born. However, there are two other ways you may be able to qualify. First, if you were born in a country whose natives are ineligible but your spouse was born in a country whose natives are eligible, you can claim your spouse's country of birth provided both you and your spouse are on the selected entry, are issued visas and enter the U.S. simultaneously. Second, if you were born in a country whose natives are ineligible, but neither of your parents was born there or resided there at the time of your birth, you may claim nativity in one of your parents' country of birth if it is a country whose natives qualify for the DV-2011 program.

You must also meet either the education or work experience requirement of the DV program. You must have either a high school education or its equivalent, defined as successful completion of a 12-year course of elementary and secondary education; OR, two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform. The U.S. Department of Labor's O*Net OnLine database will be used to determine qualifying work experience.

If you cannot meet either of these requirements, you should NOT submit an entry to the DV program.

Diversity Visa (DV) Lottery Instructions

Posted On: October 7, 2009

USCIS Issues Information Collection on Form I-290B

The United States Citizenship and Immigration Services (USCIS) has extended information collection for Form I-290B, Notice of Appeal or Motion until November 30, 2009.

During this period, USCIS will be evaluating whether to revise Form I-290B.

Members of the public are encouraged to submit comments and/or suggestions to USCIS, especially comments regarding the estimated public burden and associated response time.

Written comments and suggestions from the public and affected agencies should address one or more of the following four points:

(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

Continue reading " USCIS Issues Information Collection on Form I-290B " »

Posted On: October 7, 2009

USCIS Issues Information Collection on Form I-129F

The United States Citizenship and Immigration Services (USCIS) has extended information collection for Form I-129F, Petition for Alien Fiance(e) until November 30, 2009.

During this period, USCIS will be evaluating whether to revise Form I-129F.

Members of the public are encouraged to submit comments and/or suggestions to USCIS, especially comments regarding the estimated public burden and associated response time.

Written comments and suggestions from the public and affected agencies should address one or more of the following four points:

(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

Continue reading " USCIS Issues Information Collection on Form I-129F " »

Posted On: October 7, 2009

USCIS Extends Information Collection for Form I-140

The United States Citizenship and Immigration Services (USCIS) has extended information collection for Form I-140, Immigrant Petition for Alien Worker until October 28, 2009.

During this period, USCIS will be evaluating whether to revise Form I-140.

Members of the public are encouraged to submit comments and/or suggestions to USCIS, especially comments regarding the estimated public burden and associated response time.

Written comments and suggestions from the public and affected agencies should address one or more of the following four points:

(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

These comments/suggestions should be directed to the Department of Homeland Security (DHS), and to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), USCIS Desk Officer.

Comments may be submitted to:
USCIS,
Chief, Regulatory Products Division, Clearance Office,
111 Massachusetts Avenue
Washington, DC 20529-2210.

Comments may also be submitted to DHS via facsimile to 202-272-8352 or via e-mail at rfs.regs@dhs.gov.

Comments may also be submitted to the OMB USCIS Desk Officer via facsimile at 202-395-5806 or via e-mail at oira_submission@omb.eop.gov.
**When submitting comments by e-mail, please make sure to add OMB Control No. 1615-0015 in the subject box.

Posted On: October 6, 2009

LATEST UPDATE - FY 2010 H-1B Cap Count

On October 1, 2009, the United States Citizenship and Immigration Service (USCIS) updated the count of H-1B petitions received and counted towards the 65,000 cap.

As of September 25, 2009, 46,700 H-1B cap subject nonimmigrant visa petitions have been accepted by USCIS. The Service has advised that they will continue to accept petitions until the cap is reached.

Additionally, the Service has reported that they received 20,000 advanced degree H-1B petitions. Although the limit on advanced degree petitions is 20,000, past experience has tended to show that not all petitions received are approvable.

Accordingly, qualifying applicants are still able to petition for an H-1B nonimmigrant visa either under the general cap, or as an applicant with an advanced degree. (i.e., U.S. Master’s degree)

If you are interested in applying for an H-1B nonimmigrant visa, please contact our office.

Posted On: October 5, 2009

USCIS Office of Fraud Detection & National Security Commence H-1B Assessment Program: Site Visits

In an effort to detect, deter and combat immigration benefit fraud and strengthen efforts in ensuring benefits are not granted to those who threaten national security or public safety, the United States Citizenship and Immigration Services’ (USCIS) Office of Fraud Detection and National Security (FDNS) have commenced an assessment of the H-1B nonimmigrant visa program. As part of the assessment program, FDNS officers collect information during site visits to verify information pertaining to petitions that are pending and already approved.

The FDNS consists of approximately 650 individuals, including Immigration Officers, Intelligence Research Specialists, and Analysts located in field offices throughout the United States. FDNS has also contracted with multiple private investigation firms to conduct site visits on behalf of FDNS.

These visits by FDNS officers are unannounced and may take place at the employer’s principal place of business and/or the H-1B non-immigrant’s work location (end client site). FDNS Officers do not need a subpoena for the site visit because the regulations governing the filing of immigration petitions allow the government to take testimony and conduct broad investigations relating to the petitions. However, USCIS will provide an opportunity for an Employer to address any adverse or derogatory information that may result from these types of site visits. An employer may request that counsel be present; however FDNS will not reschedule the visit just for counsel, therefore, if requested, counsel can be present via telephone for the site visit.

During a site visit, the FDNS Officer will ask questions to verify information contained in a specific immigration petition. They will have a copy of the petition, ask to speak with the employer’s representative (the one who signs immigration forms), and will ask questions regarding the employer’s business, locations, number of employees, and the number of H-1B petitions previously filed. They may also request to review company’s tax returns, quarterly wage reports, among other documents to verify that the Employer is a bona fide business entity. Additionally, the Officer may ask questions regarding the H-1B non-immigrant’s title, job duties, work location and salary; and may ask to review the non-immigrant’s most recent pay stub and Form W-2. FDNS Officers may also inquire about the Employer’s Immigration Counsel.

After interviewing the employer’s representative, the FDNS Officer may request a tour of the facility, take photographs, and may even request to interview the H-1B beneficiary. The Officer will then ask the beneficiary similar questions to the ones asked of the Employer’s representative: the beneficiary’s job title, job duties, responsibilities, employment dates, position location, requirements for the position, academic background, previous employment experience, current address, and information about family members (husband/wife and/or children). Additionally, the Officer may ask a colleague of the beneficiary similar questions about the beneficiary.

Typically, these H-1B site visits last for less than an hour after the walk thru, documentation gathering and interviews are complete.

Continue reading " USCIS Office of Fraud Detection & National Security Commence H-1B Assessment Program: Site Visits " »

Posted On: October 2, 2009

Updated Administrative Appeals Office Processing Times

The Administrative Appeals Office (AAO) Processing Times were released on October 1, 2009 with processing dates as of October 1, 2009

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

Administrative Appeals Office

The current processing time for an I-129 H-1B Appeal is 13 months. The current processing time for an I-140 EB2 Appeal for an Advanced Degree Professional is 27 months. Most other cases are within USCIS's processing time goal of 6 months or less.

Posted On: October 1, 2009

BALCA upholds denial of Labor Certification – Job Order Placement Period Insufficient

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of “Financial Manager."

The employer filed an application for LC which was accepted for processing on April 12, 2007. Form 9089 provided that the State Workforce Job Order had a start date of February 5, 2005 and an end date of February 13, 2005. The CO thereafter denied certification on several grounds, one being that the Job Order was not placed for a period of 30 days as required by the governing regulations.

PERM Regulation 20 C.F.R. § 656.17(e)(1)(i)(A) controls and it provides that an employer must place a job order with the SWA serving the area of intended employment for a period of 30 days for professional occupations. The start and end dates of the job order entered on the application shall serve as documentation of this step.

The Employer failed to address the timing issue, and as such, the Board had to affirm the decision of the CO in denying labor certification.

To read the entire decision: Matter of Pacific Lumber Supply, Inc.