Posted On: February 28, 2011

REMINDER - Submit Your Questions

MVP "Immigration Q & A Forum" - This Friday, March 4th, 2011

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, March 4th, 2011. 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: February 25, 2011

Improved E-Verify Program? Customer Satisfaction Survey Says YES

A recent survey along with a report issued by the Government Accountability Office (GAO) affirm the E-Verify system is a key tool in ensuring a legal workforce in the U.S. The report by the GAO also revealed improvements in the system such as establishing better safeguards for personal information and reducing the mismatch rates.

E-Verify also received 82 out of 100 on the American Customer Satisfaction Index scale for a customer survey that evaluated key aspects of the program. Customer Support was one area that respondents overwhelming approved of, with a score of 89 which was based on the many improvements made by the Obama administration. The survey additionally revealed that users were likely to recommend the program to other employers, were secure in the program’s precision, and were likely to continue with the program. Although the E-Verify program under the Obama administration is showing continued success, the passage of comprehensive immigration legislation is crucial to fix the current immigration system.

Over 243, 000 employers are currently using the E-Verify program and approximately 1,000 new employers enroll every week. For more information about the E-Verify program visit www.uscis.gov/everify.

MVP Law Group, P.A. provides assistance to employers interested in establishing an effective employment compliance program which includes training administrative personnel and other employees. If you are interested, please contact our office.

Posted On: February 24, 2011

VIBE SnapShot- Validation Instrument for Business Enterprises

A new web-based tool called “Validation Instrument for Business Enterprises” (VIBE) is being introduced by the U.S. Citizenship and Immigration Service (USCIS) to enhance the adjudication of certain employment-based immigration petitions.

VIBE functions by compiling basic information about companies/organizations who petition on behalf of alien workers to confirm authenticity. Currently, USCIS uses documentation submitted by the employer to adjudicate the case. When insufficient documentation is submitted, USCIS issues a Request for Evidence (RFE). This request for additional documentation delays the process of adjudicating the petition.

With the new VIBE program in place, USCIS can electronically receive information about the company/organization through an independent provider. Some of the information USCIS will soon be receiving about the petitioner includes: financial standing, number of employees, relationships with other entities, business activities, status, company executives, and date of establishment as an entity.

Additionally, USCIS assures it will not deny a petition based on information received through VIBE without giving the petitioner an opportunity to respond. USCIS is hopeful the introduction of VIBE will increase efficiency in the review of petitions, reduce the number of RFEs issued and further down the road eliminate the need to submit identical documentation with the filing of each new petition.

Questions regarding RFEs or NOIDs involving information received through VIBE can be sent to VIBE-Feedback@dhs.gov.

Posted On: February 23, 2011

USCIS Issuing EAD and AP on a Single Card to Certain Applicants

As of February 11, 2011 U.S. Citizenship and Immigration Services (USCIS) began issuing employment and travel authorization on a single card to certain applicants.

An individual will only receive the new card after filing Forms I-765 (Application for Employment Authorization) and I-131 (Application for Travel Document) concurrently or after filing Form I-485 (Application to Register Permanent Residence or Adjust Status). The new card serves both as employment authorization as well as the Advance Parole document. Additionally, the combination of the two documents creates a more protected and durable card. USCIS will continue to issue separate EADs and Advance Parole documents for certain applicants when needed.

Posted On: February 22, 2011

Naturalization Questions - Check Out the NAT Fact Sheet

Over the course of the 2010 fiscal year, U.S. Citizenship and Immigration Services (USCIS) naturalized over 676,000 individuals. 6.6 million individuals have been naturalized in the United States in the last decade.

To become naturalized, an individual must file an Application for Naturalization (Form N-400) and meet the following requirements as set forth by the Immigration Nationality Act (INA):

• Be at least 18
• Be a lawful permanent resident
• Have lived in the US for at least five years
• Have been physically present in the US for 30 months
• Have good moral character
• Speak, read, and write in English
• Be knowledgeable of US government and history
• Take the Oath of Allegiance

There are however exceptions and special exemptions to the requirements of naturalization. The provisions mainly apply to spouses of US citizens, members of the military and children under the age of 18.

After fulfilling the naturalization requirements and filing a Form N-400, an individual will have an interview scheduled with a USCIS officer. If found qualified by the USCIS officer during the interview, the individual is then scheduled to take the Oath of Allegiance which completes the naturalization process.

Posted On: February 18, 2011

MVP LAW GROUP – Immigration Q&A Forum, Friday, February 18, 2011

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 – Nonimmigrant Visa
Can I travel on my current nonimmigrant visa or do I need to get advance parole?

Answer #1
If you have a valid nonimmigrant visa stamp in your passport and copies of your approval notice and a copy of the petition, you should be able to travel on your nonimmigrant visa. Advance Parole is a separate creature that you may apply for once you are able to file an I-485 petition for either a family based or employment based green card. The Advance Parole document allows you to travel outside the country while your I-485 application is pending.

The nonimmigrant visa and advance parole are two separate and distinct items, you may have both if you are applying for adjustment, but if you only have a valid nonimmigrant visa stamp in your passport, you should be able to travel.


Question #2 –Green Card
How long can you live outside the United States and still keep your green card valid?

Answer #2
One should be able to use one's green card to return from trips abroad of up to one year. However, anytime a green card holder leaves the U.S., he or she is subject to being accused by the Customs and Border Patrol (CBP) of having abandoned the intention of living in the U.S., and is subject to having the green card taken away--on the spot. Staying longer than one year may also affect the naturalization process if and when you attempt to apply.


Question #3 – Temporary Work Visa
I am interested in coming to the United States and being sponsored by a religious organization. I know that the H-1B cap is closed, so you can tell me about the R-1 visa and what requirements it has?

Answer #3
According to the Department of State, Religious workers include persons authorized, by a recognized employing entity, to conduct religious worship and perform other duties usually performed by authorized members of the clergy of that religion, and workers engaging in a religious vocation or occupation. To qualify: The applicant must be a member of a religious denomination having a bona fide nonprofit religious organization in the U.S.; the religious denomination and its affiliate, if applicable, are either exempt from taxation or qualifies for tax-exempt status; and the applicant has been a member of the denomination for two years immediately preceding applying for religious worker status. The applicant is planning to work as a minister of that denomination, or in a religious occupation or vocation for a bona fide, non-profit religious organization (or a tax-exempt affiliate of such an organization).There is no requirement that individuals applying for "R" visas have a residence abroad that they have no intention of abandoning. However, they must intend to depart the U.S. at the end of their lawful status, absent specific indications or evidence to the contrary.


Question #4 – Nonimmigrant Visa
What is the TN Visa and how can I qualify for it?

Answer #4
The TN Visa is a product of NAFTA, the North American Free Trade Agreement. Under the North American Free Trade Agreement (NAFTA), certain citizens of Canada and Mexico are eligible to enter the U.S. under the nonimmigrant TN status. The TN Visa enables Canadian and Mexican citizens to temporarily work in the U.S. in a NAFTA-approved professional occupation.


Question #5 – General
How long can you lawfully stay in the United States before returning home after a visa expires?

Answer #5
Generally, it depends on the visa issued. We recommend a period of two weeks after the expiration of your visa to get your affairs in order for your departure. However, if you remain in the U.S. longer than 180 days after the expiration of your visa, you most likely will be subject to the 3 year or 10 year bar from returning to the U.S., unless certain circumstances prevented your departure.


Question #6 – Temporary Work Visa – H-1B Nonimmigrant Visa
I am interested in filing for an H-1B visa but I know the cap just closed so when can I file my case for the next year’s cap?

Answer #6
The H-1B FY2012 CAP will open on April 1, 2011 with employment beginning October 1, 2011. For more information contact MVP Law Group, P.A.


Question #7 – Temporary Work Visa – H-1B Nonimmigrant Visa
If I am on an H-1B visa, do my wife and children automatically receive H-4 status or do they have to apply for it?

Answer #7
No, they would have to apply for the H4 visa status. If the beneficiary’s spouse/children are in the United States on another status other than H status, e.g. student status, an application to change their status to an H status should be filed. If the beneficiary or the beneficiary’s spouse/children are outside the United States and the beneficiary wishes to apply for a derivative visa (referred to as an H4 visa) abroad, and the H4 visa application can be made and is available on walk-in basis at the U.S. Consulate abroad along with or after the grant of the H1B approval, no other processing is required for an H4 visa abroad. Contact the consulate abroad or an Information Officer at the United States Department of State Visa Office at 202.663.1225 for the procedures or documents that may be required.


Question #8 – General
If my case was issued an RFE, what does that mean? Does it automatically mean that my case will be denied? What chance do I have of getting my visa granted if an RFE was issued?

Answer #8
A Request for Evidence (RFE) is issued when additional evidence is required, as the adjudicator believes that it cannot make a decision based on the initial evidence/documentation provided. A USCIS adjudicating officer could issue an RFE pertaining to the alien applicant's eligibility, the Petitioner’s financials, the legitimacy of the Petitioner’s company, etc. Many cases do receive RFE’s, and after submission of additional legal arguments, explanations, and evidence, the cases are often approved. Receiving an RFE on a submitted case does not automatically mean that the case will be denied.


Question #9 – Family Based Immigration – Green Card
As a US citizen, who can I file a Form I-130, Petition for Alien relative on behalf of? Do the people I can petition on behalf of change if I am only a legal permanent resident?

Answer #9
As a U.S. Citizen (USC), you may petition on behalf of the following individuals: Immediate relatives of U.S. citizens may immigrate to the United States in unlimited numbers - Spouses of U.S. citizens (including widows and widowers of U.S. citizens who were married to U.S. citizens for at least two years and are applying for a green card within two years of the U.S. citizens’ death); Unmarried children of U.S. citizens that are under the age of 21; Parents of U.S. citizens. The U.S. citizen petitioner must be 21 years of age.

These individuals will most likely have to wait in line, possibly for many years, prior to being able to obtain a green card - Unmarried children, any age, of U.S. citizens; Married children of U.S. citizens; Sisters and brothers of U.S. citizens. The U.S. citizen must be at least 21 years of age.

As a Lawful Permanent Resident (LPR), you may petition on behalf of the following individuals: Spouses and unmarried children (under the age of 21) of green card holders; and Unmarried sons and daughters of green card holders, who are at least 21 years old.


Question #10 – Employment Based Immigration – Green Card - EAD Renewal
I filed for my EAD renewal back in November of 2010 and it is still pending. My current EAD expires next week. What are my options moving forward - can I expedite the EAD since my card is expiring? What can I do I can’t risk losing my current job?

Answer #10
When an EAD renewal has been pending for 75+ days, you may initiate an ‘outside the processing times’ Service Request with the USCIS. If you do not receive your EAD approval by the time your current EAD expires, you MUST WAIT and NOT WORK until your EAD is approved. You MAY NOT continue to work. You MUST wait for your EAD card to arrive in the mail before you can begin to work again.

You may file an EAD renewal request up to 120 days in advance of the expiration of your current EAD and should be aware of the Service Center processing times well in advance of filing so that you can obtain an approval of the EAD to continue working.


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, March 4th, 2011! Please remember to submit your questions/comments on our h1bvisalawyer blog.

Posted On: February 17, 2011

Updated Service Center Processing Times

Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Service Centers were released on February 14, 2011 with processing dates as of December 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.

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: February 16, 2011

BALCA Vacates CO's Denial and Provides Standards for Employee Referral Programs

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 “Software Applications Engineer.”

The CO accepted the employer’s application for Permanent Employment Certification on behalf of the alien. The CO denied certification after issuing an audit citing the Employer’s Notice of Posting was only posted for nine consecutive business days because one of the days the NOF was posted was Columbus Day. Additionally, the certification was denied on the grounds that the Employer did not provide sufficient evidence of the employee referral program with incentives.

PERM regulation 20 C.F.R. § 656.10(d)(1)(ii) controls and it provides a “business day” is “any day that employees are working on the premises and can see the Notice of Filing.

In the instant case, the Employer had no opportunity to establish Columbus Day was a legitimate business day for the Employer. Additionally, BALCA found that the documentation for the employee referral program was sufficient, specifically; the Board found that (1) the employer had established the employee referral program with incentives prior to recruitment, (2)the program was ongoing during recruitment and (3) the job opening was advertised within the company to put employees on notice.

Accordingly, the Board vacated the decision of the CO in denying labor certification and remanded to the CO, to provide the Employer with the opportunity to prove Columbus Day was a business day for the Employer.

Posted On: February 15, 2011

REMINDER - Submit Your Questions

MVP "Immigration Q & A Forum" - This Friday, February 18th, 2011

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, February 18th, 2011. 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: February 14, 2011

March 2011 Visa Bulletin

The Department of State has released its latest Visa Bulletin.

Click here to view the March 2011 Visa Bulletin.

The March 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.

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

Posted On: February 11, 2011

BALCA Remands Due to Employer's Confusing Address

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 “Chef.”

After certification was denied on May 25, 2007 because the company could not prove that it was a legitimate business, the Employer requested review of the case and an opportunity to submit evidence that it was a bona fide company. The Employer stated the notification of denial was not received until September 12, 2007and only after an email inquiry request had been sent about the case to the Atlanta Processing Center. The Employer asserted that there was no time to reply to the original denial letter and argued that the denial should be rescinded so that there was an opportunity to present evidence. The Employer did not respond to an Audit Notification issued by the CO on January 28, 2009 requesting documentation of recruitment efforts. After failing to respond to the Audit Notification, the CO denied certification on April 2, 2009. On April 14, 2009 the Employer argued the Audit Notification letter was never received and requested review but the CO did not grant the request. In the Employer’s statement of appeal to BALCA, the Employer argued that because there was no USPS tracking number attached to the Audit Notification there was no way of knowing whether the Audit Notification was delivered or received.

PERM regulation 20 C.F.R. § 656.20(b) controls and it provides that a “substantial failure by the employer to provide required documentation will result in that application being denied under § 656.24...”

In the instant case, the Employer did not respond to the CO’s Audit Notification by the specified date, which would normally constitute a denial of certification. However, BALCA believed it was possible the Postal Service made a mistake in delivering the Audit Notification and as a result the Employer could not submit its response. The Board’s decision is strictly limited to the facts of this case.

Accordingly, the Board vacated the decision of the CO in denying labor certification and remanded for further proceedings.

Posted On: February 10, 2011

Administrative Appeals Office Processing Times

The Administrative Appeals Office (AAO) Processing Times were released with processing dates as of February 1, 2011.

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 27 months; for an I-140EB3 Appeal for a Skilled or Professional Worker is 30 months.

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

Posted On: February 9, 2011

BALCA Remands Finding Evidence of Job Order Placement Sufficient

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 nonprofessional position of “Baker.”

The Employer’s application was accepted for processing on May 2, 2007 but later denied by the CO who cited that the Employer could not prove the business was a bona fide entity. The Employer submitted evidence to show the business was bona fide. As a result, the CO issued an Audit Notification and requested documentation of the Employer’s recruitment procedures as well as a copy of the job order the Employer placed with the State Workforce Agency (SWA). The Employer’s response to the audit was filed but certification was again denied by the CO who stated the Employer submitted insufficient documentation for the SWA job order. The Employer asked for reconsideration and argued that the documentation submitted complied with the regulatory requirement. The Employer also noted a certified copy was unable to be obtained because prior to the audit, the records were purged after 18 months by the SWA. Still, the CO found the denial accurate citing it was the Employer’s duty and requirement to “retain documentation supporting the application for five years under the regulation.” The case was forwarded to BALCA. On appeal, the Employer argued that there are no current standards that specify what constitutes proof of a SWA job order.

PERM regulation 20 C.F.R. § 656.17(e)(2)(i) controls and it provides “the start and end dates of a job order entered on the application serve as documentation of placing the SWA job order.”

After reviewing the case, BALCA agreed with the Employer in that there are no specific regulations on “what type of documentation is sufficient enough to establish the job order was placed in compliance with the regulations.” Further, BALCA believes the CO did not have the authority to require the Employer to provide such concrete evidence of the job order. In this instant case, BALCA found the Employer did give sufficient documentation of the SWA job order.

Accordingly, the Board vacated the decision of the CO in denying labor certification and remanded to the CO to grant certification.

Posted On: February 8, 2011

H-1B Visa Season Quickly Approaching - Get Your H-1B Cases Ready Now To File On April 1 for October 1, 2011 Start Date

H-1B Nonimmigrant Visa Petitions should be filed on April 1, 2011 for Fiscal Year 2012, which begins on October 1, 2011 and ends September 30, 2012. The U.S. Citizenship and Immigration Services (USCIS) will begin accepting new H-1B visa petitions for professionals that count against the FY2012 cap on April 1, 2011. These professionals will be eligible to begin H-1B employment on October 1, 2011. In past years, the H-1B cap has been exceeded on the first day, April 1st.

H-1B nonimmigrant visas are for professional foreign workers with a U.S. bachelor’s degree or its foreign equivalent. Congress allows 65,000 visas to be issued annually to qualifying foreign workers. An additional 20,000 H-1Bs are reserved for professional foreign workers who receive U.S. Master’s degrees. Employers petition the United States Citizenship and Immigration Services (USCIS) on behalf of the professional foreign worker beginning six months prior to the beginning of the upcoming fiscal year. Frequently, employers interested in utilizing the H-1B visa program contact an experienced Immigration Business Lawyer for a consultation about the process, determine eligibility, discuss applicable lawyer’s fees and filing fees, and so forth.

If your company is interested in a consultation about this process, CONTACT OUR OFFICE IMMEDIATELY!

Employers looking to hire new H-1B professionals are urged to begin the H-1B petition process now.

Employers should review their employment needs and determine whether any foreign national employees will be requiring H-1B visas. This is extremely important where employers are planning to hire foreign nationals who will soon graduate from U.S. universities. While many of these individuals may already have an employment authorization card, you may still have to file an H-1B petition for them. For instance, if you plan to hire an individual that will graduate in May 2011, that individual’s employment authorization card will be valid through the end of May 2012. After May 2012, this individual will no longer be able to work for you unless you have already filed an H-1B petition for them on April 1, 2011 asking the USCIS to change their status to H-1B from October 1, 2011. H-1B status grants such an individual up to three years of employment authorization from October 1, 2011.

**The H-1B cap does not apply to foreign nationals who already hold H-1B status and are seeking to change their H-1B employer and/or extend their H-1B stay in the United States.

Contact MVP Law Group to begin the process now!

Posted On: February 7, 2011

BALCA Affirms CO's Denial - NOF Did Not Provide "Offered Wage"

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 “Senior Immigration Paralegal."

The Employer’s Application was originally accepted by the CO on August 22, 2007 on which the Employer had stated a bachelor’s degree and 60 months of related experience were required for the position. Also indicated were a yearly wage of $70,000 and a prevailing wage of $43,413 per year. An Audit Notification was issued by the CO requesting proof of business necessity as well as a copy of the NOF. The Employer’s response containing the NOF included a prevailing wage determination (PWD) of $43,413 per year, and the response included a statement justifying the business necessity for the stated minimum job requirements. Certification was denied by the CO on January 9, 2009. The wage listed on the NOF was lower than the wage offered to the alien by the Employer. After reviewing the case, the Employer argued that at the time of posting the NOF the alien was being paid a different amount and offered supporting documentation. The case was then forwarded to BALCA by the CO.

PERM regulation 20 C.F.R. §656.17(f)(7) controls and it provides that an advertisement must not contain wages or terms and conditions of employment that are less favorable than those offered to the alien. In the present case, the NOF listed a wage range of $50,000-$65,000 but when the application was filed by the Employer, the alien was being paid $70,000 per year. Therefore, the wage offered to the alien was “$70,000.00.”

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

Posted On: February 4, 2011

MVP LAW GROUP – Immigration Q&A Forum, Friday, February 4, 2011

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
My company petitioned on behalf of a foreign national back in 2008. The national arrived in 2009 and has since obtained her PT license. Back in 2008 we filed her as a PT assistant. Is there anything we need to do now other than file a new LCA?

Answer #1
This sounds like a material change in duties, salary and possibly location and will require not just a new LCA but an amended H-1B petition will need to be filed with the USCIS. A new LCA alone will not update the records with the USCIS; it only creates a new record with the Department of Labor (DOL). If you are interested in placing this individual at a new client site based on her PT qualifications, a new petition will definitely need to be filed with the USCIS, not just the filing of a new LCA.


Question #2 – Employment Based Immigration – Green Card
I appealed my denied my labor application to BALCA. My employer just got notice that my appeal has been docketed. When can I expect a decision?

Answer #2
According to the United States Department of Labor website, it is approximately taking up to two (2) years for a case to be reviewed by BALCA from the date of filing the appeal.


Question #3 – Temporary Work Visa – H-1B Nonimmigrant Visa
Is the H-1B FY2011 CAP still open?

Answer #3
NO. As of January 26th, 2011 USCIS reported that they have received a sufficient number of H-1B nonimmigrant visa petitions to reach the 65,000 annual CAP. The H-1B FY2012 CAP will open on April 1, 2011 with employment beginning October 1, 2011. For more information contact MVP Law Group, P.A.


Question #4 – Employment Based Immigration – Green Card
Is an approved I-765 any indication that the I-485 is getting close to approval and would eventually be approved without a hitch or are they autonomous processes?

Answer #4
They are separate and distinct creatures. Therefore, to put it simply, an approved I-765 is not an indication that the I-485 is getting closer to being approved.


Question #5 – Temporary Work Visa – H-1B Nonimmigrant Visa
I have a student on OPT currently working for my company. I need to apply for her H-1B but wasn’t able to make it under this CAP. Will she have to return home prior to October 1, if I file her under the new cap in April?

Answer #5
According to the regulations, an F-1 student who is the beneficiary of an H-1B petition and who has timely filed a Change of Status petition will have his/her status and work authorization (if in OPT) automatically extended until October 1st of the following fiscal year so that there is no “gap” between the time her F-1 stay would have expired and the October 1 start date for the H-1B.


Question #6 – Family Based Immigration – Green Card
My father is a U.S. Citizen and agreed that he would sponsor my GC. He currently makes roughly $21k annually. Can he sponsor me for my GC?

Answer #6
To qualify as a sponsor, he must demonstrate that his income is at least 125 percent of the current Federal poverty guideline for his household size. Please refer to the Federal Poverty Guidelines to determine if he could be the primary sponsor for your family based GC application.


Question #7 – Temporary Work Visa – H-1B Nonimmigrant Visa
I am presently working on H1 for an exempt University and have found an employer willing to sponsor me in the private sector. Now that the cap has been reached, do I have any options? Can I leave my present employer?

Answer #7
According to a letter dated May 23, 2007 from the Chief of Business and Trade Services of the USCIS, an H-1B applicant may port from a cap-exempt employer to a cap-subject employer if no H-1B visas are available as long as the cap-subject H-1B application is eventually approved and the LCA covers the entire period of employment.


Question #8 – General
My father is in the U.S. on B2 visa obtaining medical treatment for a rare disease. It is unsafe for him to return to his country at this time, plus his treatment isn’t finished. He would like to renew/extend his visa. Can he and how can he?

Answer #8
If your father wants to extend his stay in the U.S., he will have to file an extension with the USCIS. He will need to file Form I-539, Application to Extend/Change Non-immigrant Status before his current status expires (look to the date on his I-94 document). The USCIS recommends that individuals apply to extend their status at least 45 days before the status expires. He will need to provide documentation evidencing the reason for the extension along with the Form I-539.


Question #9 – Temporary Work Visa – H-1B Nonimmigrant Visa
Can more than one (1) employer file a temporary (part-time) H1B visa application on my behalf at the same time? For a part time H1B work, 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
Simply put, yes more than one employer can file a temporary part-time H-1B visa application for you during the same time period, as long as a certified LCA covering the jurisdiction of employment is obtained and the I-129 petition and additional supporting documentation reflects this part-time period. 40 hours + per week would be considered a full time employee, therefore, anything less than 40 hours per week would be considered part-time.


Question #10 – Employment Based Immigration – Green Card
My husband and daughter have received their Green Cards but I didn’t get mine. I filed for our green cards through my employer. Is there a problem with my case?

Answer #10
Based on the information provided, it seems like there may be an issue with the production/issuance/mailing of your Green Card. Your husband and daughter 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 husband and daughter 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 husband and daughter received their GCs by calling the National Customer Service Center at 1-800-375-5283.


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, February 18th, 2011! Please remember to submit your questions/comments on our h1bvisalawyer blog.

Posted On: February 3, 2011

BALCA Affirms CO's Denial - Employer Website Posting Insufficient

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 “Applications Engineer.”

The Employer’s Application was accepted by the CO on October 10, 2007 and listed that the Employer had advertised on its website for the position from May 29, 2007 to July 19, 2007. An Audit Notification was issued by the CO. In the Employer’s response, extensive evidence of the website posting was given. However, the CO denied certification citing the job posting on the website was dated September 24, 2007-outside the date the Employer reported on ETA Form 9089. On, October 15, 2009 the Employer argued for reconsideration because the Vice President submitted an affidavit attesting to the fact that he posted the job opportunity on the website during the dates provided above. The Employer also argued that in light of the fact the date on the website print out was September 24, 2007, the advertisement was posted for at least one day within the 30 days prior to the date the application was submitted. The case was forwarded to BALCA.

PERM regulation 20 C.F.R. § 656.17(e)(1)(ii)(B) controls and it provides that one of the additional recruitment efforts for a professional position can be a website positing which can be documented by providing dated copies of pages from the site that advertise the occupation involved in the application.

In the instant case, BALCA found the Employer’s audit response insufficient under the regulation. Although the letter from the Vice President was proof, it was not adequate evidence to persuade the CO and BALCA that the Vice President was the official within the employer’s organization responsible for the posting of such occupations on the company website.

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

Posted On: February 2, 2011

Congratulations on Becoming a U.S. Citizen

After taking the oath and becoming a Unites States Citizen (USC), it is important to be aware of the newfound rights and responsibilities that come along with Citizenship.

All American citizens enjoy the following rights: freedom of expression and worship, right to vote in elections, right to a just and speedy trial, ability to apply for federal employment, and of course the freedom of “life liberty and the pursuit of happiness.” The rights guaranteed to individuals who are citizens by choice and by birth also come with responsibilities that they are expected to uphold. Responsibilities include: participating in a democracy, respecting the beliefs and opinions of others, reporting for jury duty, paying taxes, supporting the local community, and being ready to defend the country if the need arises.

Now that you are a citizen, it is also important to make sure you update your Social Security Record because it establishes your eligibility to receive benefits and obtain a job. You can call 1-800-772-1213 or visit www.socialsecurity.gov to locate the nearest office but remember to make sure you bring your Certificate of Naturalization or Passport with you.

If you do not have a U.S. passport but would like one, you are eligible to apply for one now that you are a U.S. citizen. For information on how to apply visit: www.Travel.State.Gov.

Additionally, if you have a child who is younger than 18 years old on the day you were naturalized, they automatically acquire your citizenship status and you may apply for a U.S. passport for them as well.

U.S. citizens can also petition for relatives to become lawful permanent residents by becoming their sponsor. For more information visit: www.uscis.gov/howdoi or contact MVP Law Group.

Posted On: February 1, 2011

BALCA Affirms CO's Denial - NOF Contained A Wage Less Than That Offered to the Alien

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 “Production Planning/Scheduling Manager.”

The Employer listed the offered wage for the position as $67,000 per year and required a Master’s degree in Industrial Engineering plus six months of experience on the Application which was accepted by the CO on July 24, 2007. The CO requested the Employer’s Notice of Filing (NOF) when an Audit Notification was issued. The CO additionally requested that the Employer submit proof of business necessity. The Employer listed on the NOF an annual salary of $66,435 for the position in its response to the Audit Notification. The CO denied labor certification on December 19, 2008. Labor certification was denied because the wage the Employer listed on the NOF was less than yearly wage offered to the alien. The requirements for the position also surpassed the Specific Vocational Preparation (SVP) level assigned by O*Net and the Employer did not provide significant documentation in its response to prove the additional requirements were necessary. After reviewing the denial, the Employer argued the Office of Foreign Labor Certification (OFLC) gave the impression that the NOF didn’t have to include the wage offered to the alien, it was only necessary to include the prevailing wage. The Employer further argued the CO never specifically asked for proof of business necessity and as a result the Employer did not know to submit it. On February 17, 2010 the case was forwarded by the CO to BALCA.

PERM regulation 20 C.F.R. §656.17(f)(7) controls and it provides that when filing an application for permanent labor certification notification the advertisement must not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.

In the instant case, BALCA found the CO’s denial was appropriate as the Employer’s NOF contained a wage lower than the wage offered to the alien.

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