Posted On: December 31, 2010

Missouri Business Owner Pleads Guilty to Harboring Illegal Aliens

Hua Huang, manager of China Buffet/Mongolian Grill in Missouri plead guilty to harboring, transporting, and hiring illegal aliens in addition to conspiracy to commit visa fraud on December 10.

It was discovered during the investigation that between January 2009 and August 2010, Huang regularly employed illegal workers from Mexico and China. During that time Huang obtained fake identification for the illegal workers and tried to arrange marriages for them in order to secure visas. Huang’s sentencing is set for March 2011.

Posted On: December 30, 2010

El Paso Businesses Become IMAGE Members

On December 10, two local El Paso businesses signed up to become IMAGE (ICE Mutual Agreement between Government and Employers) partners. The IMAGE program was started in 2006 by US Immigration and Customs Enforcement (ICE) to minimize the number of unauthorized workers being hired, reduce fraud, and create a more secure workplace. To qualify as an IMAGE partner, a business must first meet certain criteria such as: assessing their hiring practices to uncover weaknesses that could potentially be exploited, enrolling in employment eligibility verification programs, training employees on how to use the new IMAGE screening tools and practices, as well as undergoing a Form I-9 audit by ICE.

After being audited last year, Tony Marquez of Jobe Materials, LP became an advocate for the IMAGE program and says, “I feel that by being audited by ICE, and having my employees trained through the E-Verify online system to determine the authenticity of new employee documentation, I will be a more vigilant employer and a guardian of immigration laws.” For more information or to learn how to become an IMAGE partner, visit http://www.ice.gov/image/.

Posted On: December 30, 2010

I was Adopted by Americans, I am an American

Tara Ammons Cohen, a Washington state resident, is set to be deported back to Mexico due to an investigation into her citizenship. Cohen was adopted by US citizen parents when she was a baby and believes she is an American citizen. Legally, Cohen is not an American citizen because when she was adopted from Mexico at 4 months old; her adoptive parents never secured her citizenship. Cohen is very scared at the possibility of being deported to Mexico, as she doesn’t speak any Spanish and Mexico is a very unfamiliar place to her. Being deported would also mean that Cohen would leave her husband and three children behind in the US. The investigation into her citizenship began after she pleaded guilty and served time for drug trafficking. Cohen plans to keep fighting her deportation even it means going all the way to the Supreme Court.

Posted On: December 29, 2010

Corpus Christi Business Becomes IMAGE Member

A Corpus Christi business became a member of US Immigration and Customs Enforcement (ICE) “ICE Mutual Agreement between Government and Employers’ (IMAGE) program on December 10.

The IMAGE program was launched in 2006 and actively pursues partnering with businesses in hopes of minimizing the number of unauthorized workers being hired and reducing fraud. Undocumented workers that are hired create vulnerabilities in the system because they provide falsified documents and identities to gain benefits.

In order for a business to qualify as an IMAGE partner they must first meet a few requirements such as: assessing their hiring practices to uncover weaknesses that could potentially be exploited, enrolling in employment eligibility verification programs, training employees on how to use the new IMAGE screening tools and practices, as well as undergoing a Form I-9 audit by ICE. Previously this year, 6 businesses in the Houston area signed up to become IMAGE partners. Once becoming an IMAGE partner, ICE provides free training to all employers on Form I-9 and how to detect fraudulent documents. Companies interested in the IMAGE program or those who would like more information visit http://www.ice.gov/image/.

Posted On: December 29, 2010

Dulles CBP Initiative: Global Entry

On December 6, 2010 Global Entry, a US Customs and Border Protection (CBP) initiative, at Washington-Dulles International Airport exceeded 75,000 users. The program was created in hopes of speeding up processing at international airports for “pre-approved trusted travelers.”

Global Entry was launched at Dulles on June 6, 2008, where there are currently 14 self-help kiosks which assist the pre-approved travelers in avoiding long lines and completing their session in less than a minute. Average processing times for all the Global Entry kiosks is approximately 56 seconds compared to a wait of 60 minutes for a regular traveler going through primary inspection. Partaking in the Global Entry program is voluntary and there are a few requirements such as: possessing a US passport or permanent resident card, paying a $100 application fee, submitting an online application and attending an interview with a CBP official.
For more information on how to apply to the Global Entry program, visit www.globalentry.gov.

Posted On: December 28, 2010

Florida Couple Sentenced in Forced Labor Conspiracy

After an investigation by US Immigration and Customs Enforcement (ICE) Office of Homeland Security (HSI) Sophia Manuel and Alfonso Baldonado Jr. were sentenced in a forced labor conspiracy on December 10.

It was uncovered during the investigation that Manuel and Baldonado Jr., owners of Quality Staffing Services Corporation, were forcing 39 Filipino nationals to work in country clubs and hotels around Southeast Florida. The pair first made the Filipino nationals pay up-front recruitment fees, which they knew they didn’t have so the Filipino nationals were already in debt. Then, when they no longer wanted to work, Manuel and Baldonado threatened to arrest and deport them. The nonpayment of debts is very serious in the Philippines and the two knew they could use that against the workers to stay. Manuel was sentenced to 78 months in prison not only for her crimes against the Filipino nationals but she also admitted to making false statements on a form filed with the US Department of Labor. Baldonado was sentenced to 51 months in prison.

Posted On: December 28, 2010

Bay Area Restaurant Owners Charged with Hiring Illegal Workers and Tax Violations

Following an extensive investigation led by US Immigration and Customs Enforcement (ICE) Office of Homeland Security Investigations (HSI), the Internal Revenue Service (IRS), and the Social Security Administration (SSA) Marino and Nicole Sandoval, owners of El Balazo restaurants, were charged in a criminal information filed last month with a variety of tax and immigration violations.

The investigation revealed they were harboring illegal aliens for financial gain, had employed at least 10 unauthorized aliens at their restaurants, reported false Social Security numbers, evaded taxes, and filed inaccurate tax returns. The Sandoval’s were able to hide the fact they underrepresented the restaurants sales on their tax returns and illegally paid their unauthorized workers with payroll checks and cash. Marino Sandoval’s brother, Francisco also pleaded guilty to charges of harboring illegal aliens and failure to pay taxes. The Sandoval’s are set to appear in court on January 31, 2011, but until then they are out on a $100,000 bond.
During the 2010 fiscal year, criminal charges have been filed on 180 owners, employers, managers and/or supervisors following investigations conducted by ICE.

Posted On: December 27, 2010

Colombians Sentenced to Alien Smuggling and Visa Fraud

Heilber Toro Mejia, Humberto Toro Mejia, and Luz Elena Acuna Rios of Bogota were found guilty of conspiracy to smuggle aliens and conspiracy to commit visa fraud. They were sentenced to 23 months in prison following an investigation by US Immigration and Customs Enforcement (ICE) Office of Homeland Security (HSI) on December 7. After serving out their sentence, the three Colombians are also ordered to undergo three years of supervised release and are recommended for deportation.

The three were arrested in Bogota back in June 2009 and extradited to the US to await their trial. The scheme involved helping other Colombian nationals receive fraudulent visas from the US Embassy in Bogota by creating false identities and submitting forged documents to the officials on behalf of the aliens. Additionally, they trained the aliens on how to successfully pass a visa application interview. The defendants admitted to helping over 100 aliens obtain or attempt to obtain visas to enter the US illegally. In connection to their sentencing, the defendants were also forced to forfeit their office in Bogota and $234,533.00

Posted On: December 27, 2010

Nigerian Man Stripped of U.S. Citizenship

After an investigation led by U.S. Immigration and Customs Enforcement (ICE) Office of Homeland Security Investigation (HSI) Ibraheem Adeneye, a Nigerian native, was stripped of his US citizenship on December 6. His citizenship was revoked after being convicted of marriage fraud, naturalization fraud, and giving false statements to a federal agent.

Since it is no longer legal for him to reside in the United States because of his stripped citizenship, Adeneye is now facing deportation. The investigation by ICE HSI uncovered that Adeneye was setting up sham marriages between US citizens and Nigerians so that they could obtain immigration benefits like citizenship. The US citizens involved in the sham marriages received monetary payment to help the Nigerians. Adeneye was caught by authorities after a previous wife of his became a confidential informant (CI). Specifically, he was caught when he came into contact with an undercover agent (UCA). The UCA posed a US citizen willing to enter into a sham marriage with a Nigerian, which Adeneye arranged and brokered. Local officials were aware of the ongoing operation.

Posted On: December 25, 2010

Seasons Greetings from MVP Law Group!

Meetesh Patel, Kellie Lego and the entire staff of MVP Law Group would like to wish you and your family a happy and healthy holiday season!

Posted On: December 24, 2010

BALCA Affirms Final Determination of CO - Computer Software Engineer

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination of a Certifying Officer (CO) denying labor certification for an alien worker for the position of “Computer Software Engineer."
The Employer’s Labor Application was accepted by the CO on July 26, 2007, where the prevailing wage was indicated as $50.88 per hour. The Employer also gave evidence of posting for the position on a job search website from February 4, 2007 to February 21, 2007. An audit was issued on September 19, 2007 by the CO requesting additional recruitment documentation. The Employer submitted evidence of its ad posting on monster.com for 17 days, which listed the salary as 50 to 70 dollars per year. Since the wage listed on the ad was lower than that listed on the prevailing wage document, the CO denied certification. On December 12, 2007, the Employer asked for a re-evaluation citing the fact that they submitted the wrong job advertisement, the correct one was an ad placed on NJ.com. On the NJ.com advertisement for the job there was no indication of wage. Again the CO denied certification citing 20 C.F.R. § 656.24(g) which states a review can only include documentation requested from a CO or documentation that that Employer originally did not have the opportunity to present.

PERM regulation 20 C.F.R. § 656.24(g)(2) controls and it provides a request for reconsideration may only include “documentation actually received from the employer in response to a request from the CO” or “documentation that the employer did not previously have the opportunity to present to the CO.”

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

Posted On: December 23, 2010

The New Export Control Attestation Requirement on the New Form I-129

Please note that USCIS now requires employers filing Form I-129 for H, L, and O visa status on behalf of foreign nationals to certify that they have (1) reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR), and (2) have made a determination as to whether or not an export control license is required to release any controlled technology or technical data to the foreign national. If an export license is required to be obtained before such release, the employer must attest that the worker will not be exposed to covered technologies without first obtaining an export license covering the foreign worker.

UPDATED INFORMATION: December 22, 2010, According to USCIS, petitioners will not be required to complete Part 6 of Form I-129 containing the export controls/ITAR questions until February 20, 2011. USCIS received a number of inquiries from stakeholders, including AILA, requesting a delay in order to give petitioners time to establish the necessary internal processes to properly satisfy the attestation requirements.

We wish to make sure that you do not make a misrepresentation on Form I-129 in this regard, which in itself would be a violation of federal law. Read all of the forms and know that you are signing under penalty of perjury.

Part 6 of the new version of Form I-129 states:

With respect to the technology or technical data the petitioner will release or otherwise provide access to the beneficiary, the petitioner certifies that it has reviewed the Export Administration
Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and has determined that:

􀀀 A license is not required from either the U.S. Department of Commerce or the U.S. Department of State to release such technology or technical data to the foreign person;

OR

􀀀 A license is required from the U.S. Department of Commerce and/or the U.S. Department of State to release such technology or technical data to the beneficiary and the petitioner will prevent access to the controlled technology or technical data to the beneficiary until and unless the petitioner has received the required license or other authorization to release it to the beneficiary.

The petitioner must check one of the above boxes on the form.

“Technology” and “technical data” that are controlled for release to foreign persons are identified on the Export Administration Regulations(EAR) Commerce Control List (CCL) and the International Traffic in Arms Regulations(ITAR) U.S. Munitions List (USML). The Department of Commerce Bureau of Industry and Security (BIS) administers the EAR. The Department of State Directorate of Defense Trade Controls (DDTC) administers the ITAR.

Information about the EAR and how to apply for a deemed export license from BIS can be found at www.bis.doc.gov. Information about EAR’s requirements pertaining to the release of controlled technology to foreign persons is at www.bis.doc.gov/deemedexports. Information about the ITAR and how to apply for an export license from DDTC can be found at www.pmddtc.state.gov. Information about the ITAR’s requirements pertaining to the release of controlled technical data can be found at http://www.pmddtc.state.gov/faqs/license_foreignpersons.html.

If you are unsure as to whether your company requires an export license or would like more information, please contact MVP Law Group or the BIS directly.

Posted On: December 23, 2010

BALCA Vacated CO determination - Violation of Due Process

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

The CO accepted the Employer’s Application for Permanent Employment Certification which stated the job required a bachelor’s degree in Pharmacy and a “Valid Florida Pharmacist license or ability to obtain a license” for processing on December 31, 2009. To show fulfillment of the advertising and recruitment requirements, the Employer gave evidence of postings in two papers. Citing the ad print in Pharmacy Today, a professional journal, the CO said it did not qualify as the required second advertisement because the job listed didn’t require experience or an advance degree and therefore denied certification. After the Employer reviewed the denial letter from the CO, the Employer asked that the advertisement in Pharmacy Today be allowed in light of the fact that the standards for the job were changed to 6 years in the PharmD program as well as experience in the field. Further, the Employer argued that advertising in that journal offered a larger pool of more highly skilled applicants needed for the job and that finding a qualified person for the job is highly difficult. In the appeal, the CO stuck to the denial of the application stating that even though Pharmacy job requirements have increased, CVS is not asking for someone with those requirements to fill the job. On the other hand in the appeal, the employer argues it only advertised that the job required a bachelor’s degree in order to “recruit based on the largest applicant pool,” which would include those individuals who were not affected by the increase in requirements in 2000 because of a grandfather clause. The Employer goes on to argue that states have different licensure standards for pharmacists before that licensure can be awarded.

PERM regulation 20 C.F.R. 656.17(e)(l)(i)(B)(4) controls and it provides that an employer may advertise in a professional journal in place of a Sunday advertisement if the job in question requires “experience and an advanced degree.”

In the instant case, the CO denied certification on the grounds that the Employer placed an ad in a professional journal even though the application only stated the requirements for the job included a Bachelor’s degree and no experience. After reviewing the case BALCA determined the CO dismissed the Employer’s argument on appeal and simply forwarded it to the Board. Further citing a previous decision, 2010-PER-628, BALCA decided the Employer was not given the right to argue the case before the CO, violating due process. The case was returned for further review and to allow the Employer to fully present his argument dismissed by the CO.
Accordingly, the Board vacated the decision of the CO in denying labor certification.

Posted On: December 23, 2010

Third Conspirator Sentenced in 55 Million Dollar Visa Fraud Scheme

Following an investigation by the U.S. Immigration and Customs Enforcement (ICE) Office of Homeland Security Investigations (HSI) Florida resident, Eduardo Dozzi Barbugli, was convicted of visa fraud, alien smuggling, and conspiracy. ICE HSI sentenced Barbugli to 20 months in federal prison on December 1 and he was also ordered to pay a fine of $55 million dollars, representing the amount he had gained illegally through his conspiracy.

In addition, Eduardo’s parents were also convicted for their part in the conspiracy and sentenced on October 14. Through the visa fraud, the Barbugli’s supplied illegal workers to more than 160 hotels. The Barbugli’s helped more than 1,000 illegal aliens enter the U.S. on fraudulent H-2B visas. To show that the companies they where supplying the workers to had a legitimate need, the Barbugli’s created shell companies and hid the fact the all workers in fact were employed by the same company, VR Services. Since Barbugli is an illegal immigrant working in the U.S. from Brazil, he will be deported after serving out his sentence.

Posted On: December 22, 2010

LATEST UPDATE: H-1B FY2011 CAP COUNT

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

As of December 17th, 2010, 53,900 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of December 17th, 2010, 19,700 H-1B Masters Degree CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 20,000 cap.

USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

Stay tuned to MVP Law Group for FY 2011 H-1B CAP updates!

Posted On: December 22, 2010

Monthly Determination of Employment Preference Cut-Off Dates

Each month, annual preferences and foreign state limitations are subdivided by the Visa Office into monthly portions based on the applicants reported at consular posts and CIS Offices. If there is a sufficient amount of visas in a category to supply the demand then that category is considered “current” but when the demand over-exceeds the allotted supply of visas the category is considered “oversubscribed.” This is when a visa cut-off date is established, the cut-off date is the “priority date of the first documentarily qualified applicant would could not be accommodated for a visa number.”

To view the chart with the estimated total number of visas available for each employment preference category and country for fiscal year 2011 visit: http://www.travel.state.gov/pdf/EmploymentDemandUsedForCutOffDates.pdf

Posted On: December 21, 2010

BALCA Grants Reconsideration - CO Abused Discretion

The Board of Alien Labor Certification Appeals (BALCA) recently granted an Employer reconsideration for a case in which the CO originally denied labor certification (LC) for an alien worker for the position of “Care Taker-Ranch Hand.”

After the Employer filed an LC on June 5, 2009 on behalf of an alien worker, the CO denied certification on February 23, 2010 citing that section M-1, which asks whether the form was completed by the employer, was incomplete. If an individual answers “no” then they must fill out Section M-2 to M-5 which ask questions on whether the information filled out on the application is true and correct to the best of their knowledge. Though neither “yes” nor “no” was checked in Section M-1, at the bottom of Section M-2 to M-5 the Customer Service Coordinator, Collette Reed, signed her name indicating that she prepared the documents. During a request for review on March 18, 2010 the Employer stated the failure to check “yes” or “no” in Section M-1 was a accidental error and submitted a completed form. The appeal was forwarded to the Board without review by the CO. The Employer stated during the appeal that they only wanted reconsideration of the case by the CO, not an appeal to the Board. The CO did not specify how he had chosen to handle the Employer’s request for review; the case was forwarded to the Board without a ruling. The Board tried to determine whether the CO abused his discretion when deciding not to reconsider the denial of the certification. After evaluating previous cases and precedents, BALCA found the Employment and Training Administration (ETA) failed to, “create a workable system to apply in every situation that can arise during the PERM filing process.”

In the instant case, the Board reviewed the Employer’s original request, “Request for Review of Denial of Form ETA 9098” and found that the Employer specifically meant for the CO to reconsider the decision, it was not intended for BALCA review. Further, the Board found that the CO did abuse his discretion by sending the request for review off to BALCA instead of reviewing it personally.

Accordingly, the Board granted the Employer’s request to send the case back for reconsideration by the CO.

Posted On: December 21, 2010

Green Card Lottery: 15 Million Entries for ONLY 50,000 Green Cards

This year a record number of 15 million foreign applicants entered the green card lottery system which only hands out 50,000 green cards each year.

The lottery program was established by the State Department back in 1990. Participation in the lottery has grown steadily as people in the developing word have gained increasing access to the internet. The month long enrollment period ended on November 3. Many people apply year after year since there is no limit on the number of times you can apply. The only rule is that only 7% of the winning applicants may come from any one country.

Posted On: December 20, 2010

Updated Service Center Processing Times

Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Service Centers were released on December 15, 2010 with processing dates as of October 31, 2010.

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

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

Given this information, 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.

Posted On: December 20, 2010

Monetizing the Green Card

With the hard economic times today and the reality that many traditional sources of financing are unavailable, many U.S. companies are turning towards U.S. immigration laws to obtain money.

The EB-5 investor visa program can provide U.S. companies an unusual source of financing-a foreign investor can receive a visa for permanent residence after making qualified investments. A qualified investment has two requirements: (1) amount of the investment, and (2) number of jobs the investment creates. The investment must be $1 million or can be $500,000 if it’s made in a “targeted employment area” meaning the area has either experienced an unemployment rate that is at least 150% of the U.S. national average or is a rural area as designated by the U.S. Office of Management & Budget. At least 10 full-time jobs must also be generated by the investment; this includes both indirect and direct jobs. A benefit to the EB-5 program is that the companies are usually able to offer lower annual returns to the investors.

Posted On: December 20, 2010

Virginia Business Owners Harbored Illegal Aliens

On November 23, US Immigration and Customs Enforcement (ICE) Office of Homeland Security Investigations (HIS) sentenced Bao Ping Wang and Trang Lu to 18 months in prison with two months probation for hiring and harboring illegal aliens. Along with their sentencing, the two defendants were required to pay $1.2 million, a combination of fines and payback of illegal proceeds gained. In addition, Wang agreed to deport from the US after serving out his sentence.

Wang and Lu managed companies called Hi-Tech Trucking, Inc. and SeaLands Food where they employed both legal and illegal workers. Wang and Lu knowingly hired the illegal workers, as they did not have proper documentation and credentials. The two also provided residence and food for their illegal employees. Their bank records showed that they made payments for the properties the illegal employees were staying at.

Posted On: December 18, 2010

CBP El Paso Implements "READY LANE" Pilot Program

On December 14, US Customs and Border Protection (CBP) announced the implementation of the pilot program “Ready Lane” which will go into effect Sunday December 19 and run for 90 days.

The “Ready Lane” pilot program will be located at the El Paso port of entry/Ysleta international crossing. It is a primary vehicle lane (lanes 9 and 10) open from 6am to 10pm that only accepts crossing travelers with a Western Hemisphere Travel Initiative (WHTI) Radio Frequency Identification (RFID) travel document. Being processed at the “Ready Lane” allows travelers to move through much faster because CBP officers do not have to manually enter the traveler’s information. The US passport, the new Legal Permanent Resident “green card” and the new Border Crossing Card are all RFID-equipped. CBP asks travelers planning to use the “Ready Lane” to remember three simple steps: (1) wait for a signal to move forward into the inspection lane, (2) remove your travel card from the protective sleeve and hold it up toward a window on the driver’s side so it can be read, and (3) stop at the inspection booth ready to present documents for any other passengers in the car.

Posted On: December 17, 2010

MVP LAW GROUP – Immigration Q&A Forum, Friday, December 17th, 2010

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. And, therefore, your communication with us through this forum will not be considered as privileged or confidential.

Question #1 – Temporary Work Visas – H-1B & L1A/L1B Nonimmigrant Visas
Does the new public law apply to transfer and extension petitions for nonimmigrant workers?

Answer #1
Under Public law 111-230, petitioners subject to the new fees must submit the fee with an H-1B or L-1 petition filed (1) initially to grant an alien nonimmigrant status (initial cases); or (2) to obtain authorization for an alien having such status to change employers (transfer cases). Therefore, the fee must be submitted with any initial H-1B filings and any transfers, but extensions with the same employer do not require the new fee.


Question #2 – Employment Based Immigration – Green Card
My spouse and child have received their Green Cards but I have not received mine. I filed for our GCs through my employer. Is there a problem with the processing of my case? Could my case have been denied?

Answer #2
Based on the information provided, it seems like there may just be an issue with the production/issuance/mailing of your Green Card. Your spouse and child would not have received their Green Cards if there was a pending issue with your case. From the information you provided, you are the primary applicant and your spouse and child are your derivatives. Therefore, the USCIS would not approve the I-485 Application to Adjust status for the derivatives without first approving it for the primary applicant. Follow up with the USCIS after 60 days from the date your spouse and children received their Green Cards by calling 1-800-375-5283.


Question #3 – Temporary Work Visa – H-1B Nonimmigrant Visa
Is the H1B CAP still available? Can I still file?

Answer #3
As of December 10th, there were approximately 12,600 H-1B Regular CAP subject nonimmigrant visas remaining and approximately 900 H-1B Masters Exemption nonimmigrant visas remaining. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn. For continuous FY2011 H-1B Cap updates, please refer to www.mvp.com.


Question #4 –Temporary Work Visa - H-2B Nonimmigrant Visa
What is the H-2B temporary visa? Does your firm work with these types of visas?

Answer #4
The H2B working visa is a nonimmigrant visa which allows foreign nationals to enter into the U.S. temporarily and engage in nonagricultural employment which is seasonal, intermittent, a peak load need, or a one-time occurrence. To qualify for an H-2B visa, you must have a valid job offer from a U.S. employer to perform temporary or seasonal nonagricultural work and proof of intent to return to your home country on expiration of the visa.

The limitations of the H-2B visa are that the job must be temporary in nature and the need must be for one year or less, the employer's need may not be ongoing or continuous. The employer has the burden of establishing the facts necessary to support a finding that the need is a one-time occurrence, seasonal, peak load or intermittent need. H-2b time counts whether you are in the U.S. or abroad, and H-2b dependents may not work in the U.S. For more specific information on the H2B nonimmigrant visa, please contact our office to schedule a telephone or in-person consultation.


Question #5 – Temporary Work Visa – H-1B Nonimmigrant Visa
What are the new USCIS filing fees for H1B visa petitions? Can we send company checks/personal checks? Who are they made out to?

Answer #5
The new USCIS filing fees for an H-1B nonimmigrant visa petition consists of the following: $325.00 for Form I-129 (increased fee, originally $320.00); $750.00/$1500.00 for Form I-129DC (same fee); $500.00 Fraud Protection fee (same); $1225.00 for Form I-907, Request for Premium Processing (increased free, originally $1000.00). For H-1B nonimmigrant visa petitions, USCIS will only accept company checks for petition filing fees. You need to make your check(s) payable to “U.S. Department of Homeland Security.”


Question #6 – General
I work for a company in Chicago, Illinois, a computer company. They have expressed an interest in sponsoring my green card. I have a friend in Maryland who used your firm for other immigration service and I wanted to know if I could use your firm to process my green card? With me in Chicago and your firm in Maryland, can we do this, is it legal?

Answer #6
MVP Law Group is an innovative law firm that provides business immigration services to corporations, universities, hospitals, and other organizations, as well as, entrepreneurs and individuals. Immigration law is federal in nature (i.e., no state or provincial law is involved), therefore, our firm is able to provide U.S. business immigration services to clients located anywhere in the United States and around the world. If you would like to schedule a consultation to discuss your particular situation, please contact our office.


Question #7 – Employment Based Immigration – Green Card
I have an approved I-140 in EB-3 category filed by my previous company. I have since moved onto employment with a new company and filed AC-21 request with new employer. My new employer would also like to file for me under EB-2 category. I believe that I have all qualifications to do so. Can you have more than one immigrant petition filed/pending with the USCIS?

Answer #7
Yes, you may have more than one I-140 Immigrant Petition filed with the USCIS.


Question #8 – Temporary Work Visa – H-1B Nonimmigrant Visa
I am not sure what is going on. I have an H-1B application pending since June 2010, no RFE issued yet. Can I contact USCIS and make a service request for them to look further into the case and why it is taking so long. Is it true?

Answer #8
For a pending I-129 petition, the Petitioner/Authorized Representative or an Attorney for the Petitioner/Applicant should contact the USCIS National Customer Service Center, which can be reached at 1-800-375-5283, to initiate the service request for a petition that is outside of the normal processing time.

If making a service request to the Customer Service Center, please have the following information handy so that the Officer/Agent will be better able to assist you: your full name, the applicant’s full name, your complete company mailing address, the applicant’s complete mailing address, the applicant’s date of birth, the applicant’s receipt number for the pending application/petition, and the filing date of the applicant’s pending application/petition. If your case is outside of the normal processing time, the Officer/Agent should initiate a service request and will provide you with a timeframe for a response and a referral number in case you have to call back because no correspondence was issued within the timeframe suggested.


Question #9 – Employment Based Immigration – Green Card
My priority date is current and has been since the November 2010 visa bulletin. How long do I have to wait, we’ve already waited 5 years for our green cards. Do you suggest I call USCIS and make a service request to make sure they have everything and to speed up the issuance of my card??

Answer #9
Normally when priority dates become current according to the Visa Bulletin, it takes anywhere from 30-90 days to complete the processing of the I-485 before issuing the Green Card to the primary applicant and his/her derivatives, unless issues arise during the process. If you do not receive any correspondence from the USCIS with regard to your case, I would follow up with the USCIS National Customer Service at 1-800-375-5283.


Question #10 – Temporary Work Visa – H-1B Nonimmigrant Visa
What is the grace period on H-1B extension? I reside in Tampa, Florida, my current H-1B visa expires on 12/25/2010 and I’ve filed for an extension on 10/25/2010. Got receipt for it. I was told by my lawyer that I have 240 days grace period when an extension application is pending. I need some proof of this, is there anyway I can obtain it?

Answer #10
Under regulation 8 C.F.R. §274a.12(b)(20), a person lawfully employed under A-3, E-1,E-2,E-3,G-5,H-1B, H-2A/B, H-3, I, J-1, L-1, O-1/O-2, P-1/P-2/P-3, R or TN status who timely files an application for extension consistent with 8 C.F.R. §214.1, is automatically given 240 days from the date of expiration. This extension does not apply to persons seeking a change of status. During 240 days, there is no INA 245(c) bar to adjustment of status.


MVP Law Group would like to thank everyone who contributed a question or comment. We hope the information provided is helpful.

Our next “Immigration Q & A Forum” is scheduled for Friday, January 7th, 2011! Please remember to submit your questions/comments on our h1bvisalawyerblog. HAPPY HOLIDAYS!

Posted On: December 16, 2010

Boston Measure to Allow Green Card Holders to Vote

The town of Brookline, Massachusetts has approved a measure that will someday allow immigrants with a green card to vote once voted on by the Legislature. Similar measures in San Francisco and Portland were turned down but because Brookline is such a highly diverse area where 53 languages are spoken and immigrants with green cards pay taxes and have a say in town affairs, many believed they should also be allowed to vote.

One Brookline resident said, “They live here, they should vote here. They’re going to be citizens, ultimately, if they have a green card.”

Posted On: December 16, 2010

USCIS Introduces First Fee Waiver Form

On November 23, US Citizenship and Immigration Services (USCIS) launched their first-ever standardized form for requesting fee waivers on the fees charged for immigration-benefit processing (Form-912, Request for Fee Waiver).

The fee waiver is a reflection of contributions made by stakeholders, community organizations and the public after USCIS heard concerns that lack of standardization created confusion over the principles used to approve a waiver. The new Form-912 clearly states the criteria USCIS uses to evaluate a waiver.

USCIS is currently asking for feedback from the public and stakeholders on a new guidance memorandum reviewing the new policy for reviewing fee waiver requests at www.uscis.gov/outreach.

Posted On: December 15, 2010

Steve King Vows to Take On Birthright Citizenship

Representative Steve King (R-IA) plans to take on birthright citizenship as likely chairman of a House subcommittee on Immigration.

King says that the Framers of the Constitution weren’t thinking about babies of illegal immigrants when they passed the 14th amendment in the Dred Scott case because there was no immigration law at that time. He plans to pass legislation banning “anchor babies,” with the plan that if there is any opposition, he can challenge it in courts or on the chance he loses, he will move for a constitutional amendment to change the practice. Other Senators have also spoken out against the 14th amendment and birthright citizenship. At least 13 state legislators have already started drafting bills that if passed would end birthright citizenship benefits.

Posted On: December 15, 2010

LATEST UPDATE: H-1B FY2011 CAP COUNT

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

As of December 10th, 2010, 52,400 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of December 10th, 2010, 19,100 H-1B Masters Degree CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 20,000 cap.

USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

Stay tuned to MVP Law Group for FY 2011 H-1B CAP updates!

Posted On: December 15, 2010

Women Found Guilty of Impersonating ICE Officers

US Immigration and Customs Enforcement (ICE) Office of Homeland Security Investigations (HSI) charged Genova Navarro and Dianne Racity on November 17 for impersonating federal officers, aiding and abetting as well as harboring illegal immigrants. In addition to Navarro and Racity, Alicia Domench- Van Rhyn was charged with conspiracy charges.

The three women posed as federal immigration officers and employees offering special immigration benefits and faster application processing in return for substantial fees that their clients paid ranging from $5,000 to $18,000. The women fully knew while taking their clients money that they did not have the authority to carry out any of the promises they had made. If found guilty, the defendants could face up to 20 years in prison.

Posted On: December 14, 2010

China Leads Rise in International Student Enrollment in U.S. States

According to Open Doors 2010, an annual report published by the Institute of International Education, there has been record growth of international students enrolling in US colleges and universities during the 2009-2010 academic year.

The rise was driven by a 30 percent increase in Chinese students enrolling in the US; Chinese students now account for more than 18 percent of foreign students in the US. The US Department of Commerce found international students contribute around $20 billion to the US economy in addition to their diverse perspectives, talents and ideas.

The Bureau of Educational and Cultural Affairs (ECA) sends emerging US leaders in many fields through an exchange program to more than 160 countries in hopes of promoting understanding. 40,000 individuals participate annually in the program and alumni of the program consist of over 51 Nobel Laureates and more than 340 current and past heads of state and government.

To read the full Open Doors 2010 report, visit www.iie.org/opendoors.

Posted On: December 14, 2010

Condo Residents Fight for Immigrant Chief Engineer

After Marco Antonio Rua, chief engineer at the Wisconsin condominium in North Bethesda, was ordered by immigration authorities to leave the country along with his 17 year old daughter, residents of the condominium began working on his behalf.

His petition for permanent residency had been denied because it was not filed properly and therefore it was no longer legal for him to be in the US. The residents of the condominium, including Hawaii’s senator Daniel Inouye, petitioned Congress and the Department of Homeland Security to let Rua remain in the US. Their support for Rua was demonstrated through 333 signatures gathered for a petition in just 24 hours in addition to a total of $2,400 in donations to help with his legal fees. Since his arrival to the US in 1995, his efforts at the Wisconsin have saved the condominium thousands of dollars in maintenance and repairs.

Senator Inouye a co-sponsor of the DREAM Act which if passed would offer a path to citizenship for illegal immigrants advised Gail Shultie, the property manager of the Wisconsin, to contact Maryland lawmakers for support in Rua’s case.

Andrea, Rua’s daughter, is in her fourth year at Montgomery College pursuing a career as a dentist but if deported she will have to end her education and go back to Spain with her father. Rua’s son was born in the US and is considered a citizen but with no one able to stay behind with him, he and his mother will have to go back to Peru where she has citizenship.
Shultie says the condo will petition for Rua and his family’s return if they are deported.

Posted On: December 13, 2010

REMINDER - Submit Your Questions

MVP "Q & A Forum" - This Friday, December 17th, 2010

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, AZ SB1070, priority dates, or the debate focused on Ending Birthright Citizenship, 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, December 17th, 2010. 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. And, therefore, your communication with us through this forum will not be considered as privileged or confidential.

Posted On: December 13, 2010

Mother Tries to Help Son's Widow Enter into the U.S.

Robin Ferschke of Tennessee pleaded with Senator Jeff Sessions (R-AL), top Republican on the Senate Judiciary Committee, to pass a bill that would allow her widowed Japanese daughter-in-law and grandson to enter into the U.S.

The bill is currently pending because some senators are concerned that the wording of the bill is too general and if passed would allow too many immigration safeguards to be removed that do not apply to the case. Ferschke’s daughter-in-law, Hota, married Marine Sgt. Michael Ferschke approximately one month before he was killed on duty in Iraq. The wedding was by proxy- Michael was in Iraq and Hota in Japan. Since their marriage is not recognized under a Cold War-era immigration law, she cannot move to Tennessee with Robin to raise her son like she had promised Michael.

The bill at hand would add a provision into immigration law that would allow, “exemption for couples who are unable to consummate their marriage because one of them was on active duty in the armed forces.” The bill cleared the House smoothly with support from both Democrats and Republicans but due to some senators concerns, the process has slowed. In order to approve the bill in the Senate and pass the bill quickly so the family can be reunited more detailed language that specifically applies to the issue is being added to the bill.

Posted On: December 13, 2010

Legislation to Aid U.S. Service Members who Marry Foreigners

On November 15th, the House of Representatives passed legislation to aid US service members who marry foreigners.

The bill was created in response to the case of Hotaru Ferschke, a Japanese woman, who married an US marine that was killed in Iraq. Since she was not a US citizen, Ferschke could not immigrate to the US in order to raise their son. The bill passed would prevent foreigners married to US service members from having to consummate their marriage in order to qualify for US citizenship. Hotaru and Michael Ferschke were married over the phone in July 2008, learned Ferschke was pregnant shortly after he deployed from Okinawa and a month later he was killed in Baghdad. Hotaru was denied paperwork for legal immigration to the US because the Department of Homeland Security stated their marriage wasn’t in accordance with US law.
Many senators and representatives are working to get the bill passed in both houses, the bill’s sponsor Rep. John J. Duncan (R-TN) said, “any person looking at this case can see that this loophole is tragic and deserved to be closed.” It’s still unclear when the bill will make it to the senate.

Posted On: December 10, 2010

Company Fined and Debarred for Wages & H-1B Violations

Peri Software Solutions Inc and its owner, Saravanan Periasamy, were ordered on December 7 to pay $638,449 in back wages with interest to 67 workers for violating provisions of the Immigration Nationality Act by the US Department of Labor related to the H1-B visa.

Peri Software Solutions was additionally ordered to pay $126,778 in civil money penalties with interest for failure to provide, “notice of the filing of labor condition applications at each place where any H1-B worker was to be employed” as well as filing lawsuits against workers who ended their employment early. As a result of the violations, the company is prohibited from participating in the H1-B for one year.

Deputy administrator of the department’s Wage and Hour Division, Nancy Leppink says, “Peri Software not only took advantage of these workers by not properly compensating them, it also violated the part of the law that provides the greatest protection to the American workforce.”

Posted On: December 10, 2010

January 2011 Visa Bulletin

The Department of State has released its latest Visa Bulletin.

Click here to view the January 2011 Visa Bulletin.

The January 2011 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.

**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.

Have you already applied in EB3, thinking about filing in EB2...are you eligible to file in another category?...contact MVP Law Group online.

Did you file in EB3 or EB2 and still waiting...and married to a U.S. Citizen or Permanent Resident?...you may be eligible to file a Family Based Immigrant Petition for faster processing.

Questions, contact MVP Law Group online or toll free at 1-800-447-0796.

Posted On: December 10, 2010

DHS Released: Privacy Impact Assessment for the “Immigration Benefits Background Check Systems"

On November 5, the Department of Homeland Security released a Privacy Impact Assessment for the “Immigration Benefits Background Check Systems.” Every applicant seeking immigration benefits is required to undergo background checks administered by the United States Citizenship and Immigration Services (USCIS). Each applicant’s check includes cross-references against systems within the Department of Homeland Security (DHS), Federal Bureau of Investigations (FBI) and the Department of Justice (DOJ). The information collected through the background checks is gathered by five main technology electric systems. The new Privacy Impact Assessment (PIA) released by Homeland Security will replace any previous publications on planned background related systems and is part of an effort by USCIS to streamline the process, reducing the risk of an invasion into applicant’s privacy.

The background check is a way for USCIS to determine the applicant’s legitimacy for the benefit. The applicant must go through four background checks: a FBI fingerprint, the US-VISIT’s Automated Biometric Identification System (IDENT) fingerprint, the FBI name check, and the TECS name check. An applicant can choose to decline to provide information under the Privacy Act Notice but doing so will result in the denial of the immigration benefit requested.

In investigating the current background check procedures, the Privacy Impact Assessment found that with all the technologies used, many outdated and overly complex, it’s likely one will fail. USCIS has also put into practice increasing measures to restrict access to the systems to authorized personnel only, preventing the misuse of any data. In addition, to reduce the unnecessary duplication of data, USCIS is developing a more centralized system as a part of their “Transformation Initiate.”

The information collected through background checks such as fingerprints and biographical data can be used in the future if an applicant were to commit a crime or become a subject of national security. Measures are also taken to ensure that information submitted by an applicant is true and that all information uploaded to the database is correct.

Information is stored in the Fingerprint Masthead Notification System (FMNS) for 60 days, no information is ever stored in the Customer Identity Capture System (CICS), 75 years in the FD-258 Tracking System- Mainframe, paper records are kept 100 years from the applicant’s date of birth, biographical and name check results are retained for 180 days, and the Benefits Biometrics Support System (BBSS) data is stored indefinitely.

Posted On: December 9, 2010

BALCA vacated and remanded - "Ongoing" Recruitment

The Board of Alien Labor Certification Appeals (BALCA) recently vacated and remanded the final determination of a Certifying Officer (CO) denying labor certification for an alien worker for the position of “Controls Engineer."

The application was accepted on October 2, 2009 and on the application where additional recruitment efforts required were suppose to be reported, the Employer cited the posting on its web site and use of a referral program as well as a private employment firm. The dates listed for posting were “06/26/09 to Ongoing.” The application was denied by the CO citing the Employer failed to fill out a section, rendering the whole application incomplete. The Employer then asked for a review but also wanted the chance to change and correct information on the new application. The revised application stated that the end of the posting on the website and referral program was “07/30/09.” The application was redirected to Appeals where the CO argued under 20 C.F.R. § 656.11(a) that an application revised after July 17, 2007 cannot be accepted.

PERM regulation 20 C.F.R. § 656.17(a) controls and it provides that any incomplete application will be denied. However, the BOARD found that the Employer did not submit an “incomplete” application, the Employer simply did not fill out the section in the format instructed, mm/dd/yyyy. Further, BALCA found that there was no precedent to suggest that filling out “ongoing” in the answer field was incorrect.

Accordingly, BALCA remanded to the CO to grant certification.

Posted On: December 8, 2010

Justice Department Settles Immigration-Related Employment Discrimination Allegations with Hoover Inc.

The Justice Department settled with Hoover Inc. on November 10, after allegations that the company had been implementing discriminatory employment practices such as imposing excessive procedures for permanent residents going through the I-9 process.

The investigation into Hoover Inc. revealed that the company was requiring all legal permanent residents to reproduce new green cards after theirs had expired while US citizen employees were not required to submit any documentation. Under the Immigration and Nationality Act, employees are prohibited from treating a permanent resident employee any differently than any US citizen.

The terms of the settlement between the Justice Department and Hoover Inc. included Hoover Inc. paying $10,200 in civil liberties as well as requiring the company to begin training its human resource personnel about nondiscriminatory practices. Follow up reports are required to be sent the Department of Justice for one year.

Posted On: December 7, 2010

LATEST UPDATE: H-1B FY2011 CAP COUNT

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

As of December 3rd, 2010, 51,200 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of December 3rd, 2010, 18,700 H-1B Masters Degree CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 20,000 cap.

USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

Stay tuned to MVP Law Group for FY 2011 H-1B CAP updates!

Posted On: December 7, 2010

BALCA vacated and remanded CO determination - SWA Job Posting

The Board of Alien Labor Certification Appeals (BALCA) recently vacated and remanded the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of “Purchasing Manager.”

The CO originally denied the application on the grounds that the Employer failed to provide evidence of its State Workforce Agency (SWA) job posting subsequent to an audit. The Employer stated that a screenshot of the Oklahoma Job Link Website was in fact submitted. The request for review was sent to the Appeals Board by the CO. In an appellate brief, the Employer continued to argue that the SWA job posting was included in the original audit while the CO stood by its original position that it was not.

Accordingly, the BOARD reversed the decision of the CO, finding that the Employers SWA job posting was clearly included in the audit response. The application was sent back to the CO for issuance of a labor certification.

Posted On: December 6, 2010

Administrative Appeals Office Processing Times

The Administrative Appeals Office (AAO) Processing Times were released with processing dates as of December 1, 2010.

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 15 months. The current processing time for an I-140 EB2 Appeal for an Advanced Degree Professional is 25 months; for an I-140EB3 Appeal for a Skilled or Professional Worker is 28 months.

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

Posted On: December 6, 2010

First Alabama Company to Become IMAGE Partner with ICE

Long’s Human Resource Service signed an agreement on November 10, becoming the first Alabama business to be an IMAGE partner with the US Immigration and Customs Enforcement (ICE). The IMAGE program, also known as the ICE Mutual agreement between Government and Employers, was launched in 2007 to helps employer’s better follow the language and regulations of the law by providing them with the necessary information and tools.

To become an IMAGE partner, a company must undergo a rigorous process that includes in-depth training and investigation into its hiring practices. Employers are provided with the screening tools necessary to prevent illegal workers from being hired. The IMAGE program works to combat that weakness that illegal workers create both within the company and the government by using fraudulent documents to gain employment and commit identity theft against US workers. Companies who sign the IMAGE partnership are agreeing to use the best hiring methods, train and hold their staff to the highest standards, and use the screening tools for all employee applicants offered by the federal government. IMAGE partner companies also process I-9 forms, use the E-Verify system, maintain employee records and comply with all employment laws in order to improve their business as well as meet the standards of the program.

Posted On: December 6, 2010

USCIS Naturalizes Largest Number of Service Members Since 1955

During the 2010 fiscal year 11,146 members of the armed forces were granted citizenship by the United States Citizenship and Immigration Services (USCIS), the largest number amount in any year since 1955. The number represents a 6 percent increase in naturalizations from the 2009 fiscal year.

Outreach programs created by USCIS have been launched in order to reach more military members. They are encouraged to attend seminars that review that naturalization process and other immigration services. Attendance at the seminars often results in increased applications for naturalizations within the community. The Naturalization at Basic Training Initiative has also allowed for all processes like the interview, administration of the Oath of Allegiance and collection of biometrics to be done on the military bases. The initiative allows recruits to gain citizenship once they complete basic training. Specific information about citizenship and immigration benefits for the armed forces and their families can be found at http://www.uscis.gov/military.

Posted On: December 3, 2010

MVP LAW GROUP – Immigration Q&A Forum, Friday, December 3rd, 2010

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. And, therefore, your communication with us through this forum will not be considered as privileged or confidential.


Question #1 – Temporary Work Visa – H-1B Nonimmigrant Visa
Is the H1B CAP still available? If so, can I still file and get accepted before the cutoff?

Answer #1
As of November 26, 2010, there were approximately 14,600 H-1B Regular CAP subject nonimmigrant visas remaining and approximately 1,600 H-1B Masters Exemption nonimmigrant visas remaining. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn. For continuous FY2011 H-1B Cap updates, please refer to www.mvplg.com.


Question #2 – Employment Based Immigration, Green Card – Labor Certification
We filed a labor application and it was approved for a software engineer. We have not received the certified labor application in the mail (approved several weeks ago) and wish to move to the next step, file the I-140. What can we do?

Answer #2
Generally, there are two options available to you; however, both are rather similar. The recommended route is to file the I-140 petition with a request that the United States Citizenship and Immigration Service (USCIS) obtain the certified Labor from the Department of Labor (DOL) itself. The other option is to write a letter to the DOL notifying them that the USCIS will be requesting the certified Labor from them directly for purposes of filing the I-140 petition.


Question #3 – Temporary Work Visa – H-1B Nonimmigrant Visa
I am planning on traveling to Canada during the Winter Holidays. I have heard through various people that when I attempt to pass the border back to the US, Customs may change my I-94 expiration date. Is this true?

Answer #3
Although you may have a valid visa that was approved by the USCIS, the Customs and Border Patrol (CBP) Officers operate under their own set of rules. If you have legitimate/bona fide paperwork evidencing your employment and a valid work visa or other proof of your eligibility to be in the US when you attempt to cross the border from Canada to the United States, the CBP Officer should stamp the new I-94 with the expiration date of your current valid visa.


Question #4 – Temporary Work Visa – H-1B Nonimmigrant Visa
My I-140 was denied and my employer has appealed the decision. My H1 is due to expire next May 2011 as I am currently in my 6th year. Can we apply for H1 extensions based on my pending I-140 appeal? If yes, for 3 years or for 1 year?

Answer #4
Under AC21, yes you may be eligible to file an H-1B extension beyond the six year period if you appealed the denied I-140 in a timely manner (before the deadline). An applicant is eligible to file for H-1B one-year extensions if they have a pending I-140 petition appeal at the Administration Appeals Office (AAO).


Question #5 – Employment Based Immigration – Green Card
I have a US green card, but I came to India without filling re-entry permit form as due to recession time not getting jobs even in three months, can I fill from it on India?

Answer #5
If you have a US Green Card, you do not have the have a re-entry permit (the green card itself is your authorization to be in the US), you have the status of a Lawful Permanent Resident and may enter and exit the country based on your U.S. Green Card. Re-entry documents are requested by applicants when their Adjustment petitions (I-485) are pending with the USCIS. Therefore, once you obtain a U.S. Green Card, you are allowed to travel inside and outside the U.S. without having a re-entry permit (Advance Parole document).


Question #6 – Temporary Work Visa – H-1B Nonimmigrant Visa
I got my H1B approved in 2009. Recently I saw that my I-797C form, states that my "Valid from" is from10/1/2009 to 3/29/2012. This is strange, since most of my buddies have it till 9/29/2012. Is this an error. Can I legally stay till Sep, i.e. till H1B is renewed? Kindly help me as this is bothering me a lot. Thanks in advance.

Answer #6
The USCIS can decide the date of the expiration of your H-1B visa status on their own. You may request an end date, but the USCIS will give you the date they wish. However, it could have been a typo/misunderstanding, therefore, you can contact the USCIS National Customer Service at 1-800-375-5283 and make a service request so that your case will be re-opened and reviewed to determine if the expiration date is correct or needs to be changed. Additionally, if a Work Order/Purchase order was included in your petition to the USCIS, they may have relied solely upon the end date of the work order/purchase order. These are issues you may wish to investigate before contacting the National Customer Service number.


Question #7 – Temporary Work Visa – H-1B Nonimmigrant Visa
Are your fees included in the fees to go to USCIS for filing an H-1B petition?

Answer #7
No, our legal fees are separate and distinct from the filing fees paid to the USCIS for the processing of the H-1B petition. The USCIS filing fees have increased as of November 23, 2010, please see below:

USCIS filing fees:
$325 for Form I-129
$750/$1500 for Form I-129DC (depends upon amount of employees of company)
$500 for Fraud Fee
$1225 for Premium Processing (entirely OPTIONAL)
$2000 new fee ONLY if employer has over 50 employees with over 50% of them on a nonimmigrant visa (H or L)


Question #8 – Family Based Immigration
My Grandfather (Dad's Dad) was a US citizen and he had filed an I 130 petition (Immigrant petition for relative, fiancé, or orphan) for my dad in Feb 2007. Unfortunately, my grandfather passed away this April. My dad's sisters are US citizens and they are willing to take over the case, if we can transfer the petition. I would like to know if there anything that can be done with this petition now? Or is it a closed chapter?

Answer #8
Under regulation 8 C.F.R. § 205.1(a)(3)(i)(C)(2), an I-130 petition is automatically revoked upon the death of the petitioner, unless:
USCIS determines, as a matter of discretion exercised for humanitarian reasons in light of the facts of a particular case, that it is inappropriate to revoke the approval of the petition. USCIS may make this determination only if the principal beneficiary of the visa petition asks for reinstatement of the approval of the petition and establishes that a person related to the principal beneficiary in one of the ways described in section 213A(f)(5)(B) of the Act is willing and able to file an affidavit of support under 8 C.F.R. part 213a as a substitute sponsor.

Only a spouse, parent, mother in law, father in law, sibling, child, son, daughter, son in law, daughter in law, brother in law, sister in law, grandparent, grandchild or legal guardian of the principal beneficiary is eligible to be a substitute sponsor. A substitute sponsor must also be a U.S. Citizen/national or Lawful Permanent Resident (LPR), be at least 18 years of age, be domiciled (live) in the U.S. and meet all of the financial requirements of a sponsor.


Question #9 – Temporary Work Visa – H-1B Nonimmigrant Visa
For a part time H-1B worker, what is the minimum number of hours per week and days per week of work required to be eligible for maintaining the part-time H1B visa status?

Answer #9
40 hours + per week would be considered a full time employee, therefore, anything less than 40 hours per week would be considered part-time. The regulations do not provide a minimum number of hours per week or days per week to be considered a part time H-1B worker. The I-129 petition and certified LCA must cover the jurisdiction of employment, hours per week and pay per hour. If the position becomes full time, an amended H-1B petition would need to be filed with the USCIS


Question #10 – Family Based Immigration
I am a US Citizen. I have a sister that lives in Antwerp, Belgium. I would like for my sister to have a Green Card and she can live with me in the US. With my sister case she is married and her husband is a Belgium Citizen. All I know is I would like my sister to come to the United States and obtain a Green Card. I would like to sponsor or bring my sister to come to the United States. I know that if I would like to sponsor my sister I need to file Form I-130, Petition for Alien Relative, Form I-864, Affidavit of Support, and Form I-485, Application to Register Permanent Residence or Adjust Status. I was wondering is there any better approach for my sister come to the US and what would you recommend me to do. Thank you for your time and I hope to hear from you soon.

Answer #10
In order to sponsor an applicant for lawful permanent residency, a sponsoring relative must provide evidence of the following: They are a United States citizen or a Lawful Permanent Resident of the U.S.; they can support the dependent relative at 125% above the mandated poverty line; and they must also establish proof of their relationship to the dependent relative. If you are a U.S. Citizen, then the family fourth preference category is what you would file under.
A sponsoring relative should first submit an immigrant visa petition, (Form I-130, Petition for Alien Relative). This form should be accompanied by proof of the relationship between the sponsoring relative and the dependent foreign applicant, along with the Affidavit of Support (AOS) and then the I-485 petition once the underlying I-130 petition has been approved.


MVP Law Group would like to thank everyone who contributed a question or comment. We hope the information provided is helpful.

Our next “Immigration Q & A Forum” is scheduled for Friday, December 17th, 2010! Please remember to submit your questions/comments on our h1bvisalawyerblog.

Posted On: December 2, 2010

Likely Enforcement Proposals for 112th Congress

The 112th congress which will begin its term on January 3, 2011 is likely to introduce many new proposals such as ones raising penalties for immigration related crimes, initiatives that make the removal of convicted immigrants easier, the enforcement of immigration law at state/local level, increased funding for border patrol, and increased inquiry into DHS practices. In the 112th Congress, Lamar Smith (R-TX) will most likely be named the Chair of House Judiciary Committee since he is already the current Ranking member and Steven King (R-IA) is also predicted to become the chair of the House Subcommittee on Immigration.

Some of specific initiatives include expanding the 287(g) which allows local police officers to enforce federal immigration laws and policies, expanding Operation Streamline which is a program that already prosecutes first time border crossers, and making unlawful presence in the US a federal crime. Smith was also the founder of the Illegal Immigration Reform Responsibility Act (IIRIRA) of 1996 which put into effect expedited removal of aliens that deprived them of a formal hearing before a judge, mandatory detention under 236 (c), as well as limitation of judicial review on final orders of removal. Smith also passed H.R. 4437 in the House on December 16, 2005 which would have implemented provisions such as: requiring DHS to hold all individuals seized at ports along the border until they were deported or admitted to the US, creating a single-judge certification process for removal orders review, and expanding the definition of aggravated felony.

Posted On: December 2, 2010

Bills on illegal immigration, voter ID among first of upcoming legislative session

Since the recent mid-term election which resulted in a Republican majority in the House of Representatives, many conservative lawmakers have begun introducing an over 300 bills including those that would crackdown on illegal immigration and require a photo ID to vote. Representative Debbie Riddle, R-Tomball, camped outside the House chamber just to be the first in line to submit propositions that included voter ID and legislation that would allow police officers to arrest illegal immigrants. In addition, many lawmakers submitted legislation that would call for all state and local governments to participate in the E-Verify system. Many lawmakers are hoping that with the large Republican majority, many of their bills will be passed.

Posted On: December 1, 2010

LATEST UPDATE: H-1B FY2011 CAP COUNT

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

As of November 26, 2010, 50,400 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of November 26, 2010, 18,400 H-1B Masters Degree CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 20,000 cap.

USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

Stay tuned to MVP Law Group for FY 2011 H-1B CAP updates!

Posted On: December 1, 2010

U.S. Supreme Court: Gender Discrimination in Immigration Case

Since the 1970’s the Supreme Court has consistently ruled that laws that discriminate on the basis of gender are unconstitutional, but on November 10 the justices gave the impression they were ready to allow an exception to the rule.

The case revolved around whether “children born of mixed marriages abroad can claim U.S. citizenship.” Currently, legislation allows unwed mothers with U.S. citizenship of at least one year to pass on their citizenship to their foreign-born babies while unwed fathers can’t pass on their citizenship unless they’ve lived in the U.S. for at least five years after the age of 14.

In this case, Ruben Flores-Villar, born of a Mexican mother and raised by his American father in San Diego was about to be deported for the fourth time in response to the sale of marijuana, when he argued that he should be granted U.S. citizenship due to the fact his father was a 16 year old U.S. citizen when he was born. His lawyers argued that the above law is discriminatory against fathers and therefore unconstitutional.

Though Justice Ruth Bader Ginsburg spoke out against the stereotype that women are traditional caregivers for children and that in fact it was Flores-Villar’s father who took care of him, others on the court disagreed. Justice Kennedy didn’t want to go against Congress’ ruling and Justice Scalia said there was no precedent in which the court had ordered the government to permit someone citizenship. Due to the fact the Justice Kagan sat out on the case because of her previous involvement while at the State Department, it seems unlikely that the court will rule with Flores-Villar and declare the legislation unconstitutional.

Posted On: December 1, 2010

23 New Immigration Judges Sworn In

On November 5, Acting Deputy Attorney General Gary Grindler swore in 23 new immigration judges during a ceremony at the Executive Office for Immigration Review’s (EOIR) headquarters.

Hiring for the judges began back in December 2009 but not before the applicants went through screening on criteria such as: ability to demonstrate the appropriate temperament, knowledge of immigration laws and procedures, experience in litigation and with complex issues, as well as knowledge of judicial practices. After the panel, the mostly highly regarded candidates went through a series of interviews and the final decision was made by the Attorney General, Eric Holder.