Posted On: April 29, 2011

MVP LAW GROUP – Immigration Q&A Forum, Friday, April 29, 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 – Employment Based Immigration – Green Card
How long is the processing of I-140? Will there still be chances of getting I-140 denied even if the worker is labor certified? If yes, what are the grounds?

Answer #1
The processing time for the I-140, Immigrant Petition for Alien Worker is approximately 4 – 6 months or longer depending upon the preference category. The processing times are published monthly by the USCIS. For all EB2 and EB3 filings, a certified labor application is required prior to submitting the I-140 Immigrant Petition. Therefore, the grounds for denial or receiving an RFE from the USCIS would be due to the beneficiary’s eligibility – experience and/or education; and/or the petitioner’s ability to pay – company financials.


Question #2 – Employment Based Immigration – Green Card
How long is the processing of I-485?

Answer #2
The processing time for the I-485, Application to Adjust Status to Permanent Resident is approximately 4-6 months or longer, depending upon the type of I-485 – Employment/ Family Based, etc. However, one must factor in that there are other individuals also waiting for the adjudication of their I-485 application who have earlier priority dates. The processing times are published monthly by the USCIS.


Question #3 – Temporary Work Visa – H-1B Nonimmigrant Visa
Are there any H1B nonimmigrant visas remaining?

Answer #3
As of April 22, 2011, there were approximately 57,000 H-1B Regular CAP subject nonimmigrant visas remaining and 14,100 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to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.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 FY2012 H-1B Cap updates, please refer to our www.h1bvisalawyerblog.com.


Question #4 – Family Based Immigration – Green Card
I have a U.S. citizen son. At what age can my son petition me for permanent residency? It used to be at age 18. Now it is 20. Is that true?

Answer #4
If the U.S. citizen child is 21 years of age or above, he/she can sponsor his/ her parents for immigration.


Question #5 – Temporary Work Visa – H-1B Nonimmigrant Visa
Our district lawyer planned to convert my H-1B exempt to H-1B cap because it can guarantee me a slot and less RFE. My own lawyer said it is not necessary and I can still retain the H-1B exempt status. Which is more advantageous?

Answer #5
I really do not have enough information to provide you with a sufficient answer. When seeking Immigration benefits with the USCIS, nothing is guaranteed. Therefore, speaking of a less chance of obtaining an RFE is not guaranteed. The USCIS may issue an RFE regardless of whether the petition is CAP exempt or to be considered under the CAP. If the USCIS determines that they cannot make a decision based upon the initial evidence presented in the petition, they will request an RFE regardless. If I were you I would speak with your lawyer about this possible conversion, as it seems as though he knows your case and would know what is best given your current situation.


Question #6 – Student – F1 Visa Status
I have been working for a company on my OPT and now they wish to file for my H-1B. I also just recently got married to a U.S. Citizen. My OPT expires next month and I want to be able to continue to work. Which should I proceed forward with? The H-1B or the family based case?

Answer #6
If you do not file a petition prior to the expiration of your OPT, you will begin to accrue unlawful status and will need to leave the country. Therefore, if you have a valid job offer, you should file an H-1B petition under the FY2012 CAP, which will allow you to remain working after the expiration of your OPT up until the starting date of your H-1B, October 1, 2011.

Given the current time frames for processing of family based immigrant petitions, I do not believe that you would have sufficient time to file and then obtain an EAD to continue working. You may initiate the family based petition at any time.


Question #7 – Temporary Work Visa – L1A Intra-Company Transferee Visa
I am on valid L1A until end of next month. What do I need to show to get grant of approval for extension of L1A status?

Answer #7
You will need to fully document the following: (1) The U.S. company and the foreign company continue to be qualifying organizations; (2) The foreign company employed the applicant in an executive/managerial capacity for at least one year prior to the transfer to the U.S. Company; and (3) the U.S. Company will continue to employ the applicant in the executive/managerial capacity.


Question #8 – Temporary Work Visa – H-1B Nonimmigrant Visa
I am in the process of transferring employers and I don’t know if I can get a hold of an ‘end client letter,’ as the project is being run exclusively through the vendor. Can we submit my petition without the end client letter?

Answer #8
You may submit the case without the end client letter; however, you most likely will receive a request for additional evidence (RFE) asking for an end client letter, which will further delay the approval. The most important thing the USCIS wants to see when filing an H-1B petition for third party placement is the contractual placement of the beneficiary and the establishment of a bona fide employer-employee relationship. They want to make sure that the duties the employee will be engaged in at the third party client site are ‘specialty occupation’ duties, and the end client letter attests to that exact information. This was not always the case; however, now a days, there are a lot of companies that take advantage of the H-1B program and place applicants at third party sites and do not retain any employment relationship with them, so much so that the USCIS released a memo back in January of 2010 indicating the acceptable documents to establish the legitimacy of the third party placement. Therefore, in order to obtain an approval, you have to document the above information – ‘contractual placement’ of the applicant and the ‘bona fide employer-employee relationship.’ In the past we have done so without the end client letter, by submitting a vendor verification letter, timesheets and progress sheets from the end client and so forth; however, the strongest most sound evidence is the ‘end client letter.’


Question #9 – Family Based Immigration – Green Card
I am a permanent resident, short of the five years needed for Citizenship. I would like to sponsor my parents for a Green Card; can you please let me know the process?

Answer #9
As a permanent resident, you are currently not able to sponsor your Parent’s Green Cards at this time. Once you apply and are granted Citizenship, then you may apply through the USCIS on behalf of your parents.


Question #10 – Temporary Work Visa – H-1B Nonimmigrant Visa
Just need some advice. I have a concept for a truly authentic Indian restaurant and wish to sponsor a Chef under the H-1B visa program. Is this possible? What is required? I would be looking to sponsor him under the quota for next year, 2013, as I need this year in order to fully develop, carry out and incorporate my restaurant.

Answer #10
It is possible, if you have the requisite documentation and the concept of the restaurant is dependent upon the qualifications and expertise of the skilled Chef. We have filed numerous Executive Chef petitions through our firm and did not have trouble if the Chef is one who is highly noted for his work, has documentation to prove this, and the concept of the restaurant is focused on the Chef’s work.


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

Our next “Immigration Q & A Forum” is scheduled for Friday, May 13, 2011! Please remember to submit your questions/comments on our h1bvisalawyer blog.

Posted On: April 27, 2011

LATEST UPDATE: H-1B FY2012 CAP COUNTS

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 April 22nd, 2011, 8,000 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of April 22nd, 2011, 5,900 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 H-1B 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 2012 H-1B CAP updates!

Posted On: April 25, 2011

MVP "Immigration Q & A Forum" - This Friday, April 29th, 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, April 29th, 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: April 21, 2011

LATEST UPDATE: ICE Secure Communities Program in Maryland Counties

The U.S. Immigration and Customs Enforcement (ICE) program "Secure Communities" was activated in the following county on April 19, 2011: Wicomico. Currently, all counties in Maryland use the program except Montgomery and Baltimore City.

Frederick County and Anne Arundel County participate in the 287(g) program, which is more expansive than Secure Communities.

The implementation of Secure Communities into these counties means that individuals arrested and fingerprinted by the police will also have their fingerprints cross-checked against those stored in the Department of Homeland Security’s (DHS) database. If an individual who was arrested in one of the previously mentioned counties is discovered to be in the United States illegally, deportation proceedings will begin immediately.

Statistics complied on the Secure Communities program reveal that individuals who were arrested and later deported because they did not have lawful status had no previous criminal convictions.

Posted On: April 20, 2011

Immigration in 2011 - Part 8 of 10, Restrictions on Immigration That Hurt Families

Eighth part of our ten part series examining the American Immigration Lawyers Association’s (AILA) publication of “What to Watch Out for on Immigration in 2011.”

Topic #8: Restrictions on Immigration That Hurt Families
Throughout history, the majority of legal immigration into the United States has comprised of individuals reuniting with their family members and workers obtaining jobs in American businesses. Both business and family immigration have benefited the country greatly in times of economic hardship.

Immigration law currently allows U.S. citizens and lawful permanent residents to sponsor other family members for immigrant visas, but because of the lack of immigration reform, there are tremendous backlogs. These backlogs can keep families from being reunited for up to 20 years.

Legislation is currently being proposed by lawmakers that would further restrict and even try to eliminate the family visa system. If passed, the legislation would dramatically alter U.S. immigration policy. The support of family helps immigrants better integrate and assimilate into American society. Families also benefit the overall U.S. economy by paying taxes, starting businesses, expanding our tax base, and broaden tax revenues. Additionally, the proposed laws would only send the message that the U.S. punishes individuals that have followed the law and worked to enter the country legally to be reunited with their family.

A points system was proposed in 2007 that would have replaced the need for family and employer sponsorship. Points would have been awarded for certain characteristics such as age, skills, education and English proficiency – then if you had enough points you could apply for a green card. AILA disagreed with the points system and found many inherent problems with it. If it had been passed it would have changed the fundamental immigration system, been difficult to implement and very vulnerable to fraud. Also, with the points system all immigrants are put into one lumped group, they are not separated by skill level which favors higher skilled workers and hurts family immigration. Lastly, the system would have given too much authority to the federal government to select who is best for jobs; as employers would no longer be the ones recruiting individuals based on specialized skills and knowledge.

AILA believes a policy is needed that recognizes the importance and economic contribution of family immigration.

Posted On: April 20, 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 April 18, 2011 with processing dates as of February 28, 2011.

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: April 18, 2011

LATEST UPDATE: H-1B FY2012 CAP COUNTS

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 April 15th, 2011, 7,100 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of April15th, 2011, 5,100 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 H-1B 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 2012 H-1B CAP updates!

Posted On: April 15, 2011

MVP LAW GROUP – Immigration Q&A Forum, Friday, April 15, 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 – Employment Based Immigration – Green Card
I always check the visa bulletin and the movement varies. One time, there was a 3 month movement and the next time it was just 22 days, then a month. Why is that so?

Answer #1
Each month, the State Department issues the visa bulletin, usually in the middle of the month. When the bulletin is issued, it will provide information that will take effect on the first day of the following month. Depending on the availability of immigrant visas, the priority dates in each category and for each country can change each month. However, please note that the priority dates can also stay the same. They can move very slowly or progress by several months or years. They can move forward or backward. Therefore, there is no way to anticipate what the priority date will be in a future month or when a category will become current.


Question #2 – Employment Based Immigration – Green Card
My priority date (I am an Indian under EB-3) is September 2010, when do you think I will become current?

Answer #2
The State Department is currently processing applications that were filed back in 2002. Therefore, I believe you have quite a long wait ahead of you.


Question #3 – Employment Based Immigration – Green Card
After my priority date becomes current, when is my spouse able to get a working permit?

Answer #3
Your spouse will be able to get a working permit once the I-765, Employment Authorization application is approved with the USCIS. Once approved, your spouse will receive an EAD card and will be able to begin working. You will file the I-485 application along with the I-765 application and I-131, Advance Parole application if requested.


Question #4 – Temporary Work Visa – H-1B Nonimmigrant Visa
My I-140 is pending for approval and might come out this August 2011. The end of 6th is on June 20, 2012. If I am going to renew my visa beyond the 6th year and my I-140 gets approved, will I be counted towards the 65,000 cap or am I already guaranteed a slot because my perm has been filed?

Answer #4
You will be eligible for an extension beyond the 6th year due to the unavailability of visa numbers. Under AC21 law, where an H1B immigrant has an I-140 petition which has been approved under an employment based preference category and the AOS/485 is pending due to the unavailability of visa numbers, they are eligible for a three year extension to extend H-1B nonimmigrant visa status.


Question #5 – Temporary Work Visa – H-1B Nonimmigrant Visa
How many H1 nonimmigrant visas are left?

Answer #5
As of April 7, 2011, there were approximately 59,100 H-1B Regular CAP subject nonimmigrant visas remaining and 15,500 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 FY2012 H-1B Cap updates, please refer to our h1bvisalawyer blog.


Question #6 – Temporary Work Visa – H-1B Nonimmigrant Visa
I am planning on traveling to Canada in a few weeks for personal travel. I heard that when I attempt to come back to the US, Customs may change my I-94 expiration date. Is this true?

Answer #6
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 #7 –Employment Based Immigration, Green Card
I have an approved I-140 petition and wish to file my I-485. I am currently on H-1B and my wife, H4. She wants to be able to work so we would like to file 485 and obtain EAD documents. My lawyer says I must wait for my priority date to become current. Please explain to me what “priority date being current” means? I filed in EB2 from China.

Answer #7
In order for an individual to obtain an immigrant visa, a visa number must be available to you. This is referred to as the priority date being "current." 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. This Bulletin is accessible at www.travel.state.gov. Currently, there is a backlog in the Employment-Based Second Preference (EB-2) category, which is the category you were filed in. This means, that you must wait until a visa becomes available, until your priority date becomes current. When your priority date becomes current, you may file the I-485 application, but until then, you must wait.


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
We filed a labor application and it was approved for an industrial engineer. We have yet to receive the certified labor in the mail and wish to move to the next step, filing the I-140 because the applicant can file I-485 concurrently. What can we do?

Answer #9
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 #10 – Temporary Work Visa - H-2B Nonimmigrant Visa
What is the H-2B temporary visa? Does your firm work with these types of visas?

Answer #10
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.


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

Our next “Immigration Q & A Forum” is scheduled for Friday, April 29th, 2011! Please remember to submit your questions/comments on our h1bvisalawyer blog.

Posted On: April 14, 2011

UPDATE: ICE Secure Communities Program in Maryland Counties

The U.S. Immigration and Customs Enforcement (ICE) program "Secure Communities" was activated in the following counties as of April 12, 2011: Allegany, Garrett, and Washington. Currently, all counties in Maryland use the program except Montgomery, Wicomico and Baltimore City.

Frederick County and Anne Arundel County participate in the 287(g) program, which is more expansive than Secure Communities.

The implementation of Secure Communities into these counties means that individuals arrested and fingerprinted by the police will also have their fingerprints cross-checked against those stored in the Department of Homeland Security’s (DHS) database. If an individual who was arrested in one of the previously mentioned counties is discovered to be in the United States illegally, deportation proceedings will begin immediately.

Statistics complied on the Secure Communities program reveal that individuals who were arrested and later deported because they did not have lawful status had no previous criminal convictions.

Posted On: April 13, 2011

Immigration in 2011 - Part 7 of 10, Attacks on the 14th Amendment

Seventh part of our ten part series examining the American Immigration Lawyers Association’s (AILA) publication of “What to Watch Out for in Immigration in 2011.”

Topic #7: Attacks on the 14th Amendment

The proposal by Senator Lindsay Graham (R-SC) to revoke portions of the14th amendment which gave automatic citizenship to children born on U.S. soil sparked controversy back in July 2010. Since Senator Graham’s proposal many other senators have continued to debate and propose new legislation over the issue of birthright citizenship. Although many senators are pushing to pass laws that would prohibit children born in the U.S. from being granted U.S. citizenship, AILA believes this type of legislation would do little to fix our broken immigration system. Additionally, passing the law would only increase the number of individuals in the U.S. who are residing here illegally.

28 different bills have been proposed by Republican senators since 1995 to prohibit citizenship rights under the 14th amendment. AILA believes restricting the civil rights guaranteed under the 14th amendment would “offend the country’s most sacred values” and put into place discrimination that the country was founded on to fix. Passing the law and actually repealing the citizenship clause would mark the first time in history that the Constitution was amended to restrict civil rights and liberties. Eliminating the basis of citizenship based on place of birth would create problems for the general American public as well because they would no longer be able to provide their birth certificate as proof of citizenship.

Revoking portions of the 14th Amendment of the U.S. Constitution will not fix our broken system; it will only create more problems and increase the amount of undocumented individuals in the U.S. If you have any ideas on how best to fix our broken immigration system, we welcome your comments and suggestions…

Posted On: April 12, 2011

LATEST UPDATE: H-1B FY2012 CAP COUNTS

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 April 7th, 2011, 5,900 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of April 7th, 2011, 4,500 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 H-1B 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 2012 H-1B CAP updates!

Posted On: April 11, 2011

May 2011 Visa Bulletin

The Department of State has released its latest Visa Bulletin.

Click here to view the May 2011 Visa Bulletin.

The May 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: April 11, 2011

MVP "Immigration Q & A Forum" - This Friday, April 15th, 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, April 15th, 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: April 8, 2011

UPDATE: What Happens If The Government Shuts Down?

As Congress continues its budgetary deadlock, the possibility of a government shutdown looms larger by the minute. If Congress is unable to reach accord on Friday, the government will close at midnight, Saturday April 9.

In general, if the government shuts down for budgetary reasons, all but "essential" government are furloughed and not allowed to work. So what does this mean for immigration agencies?

USCIS Update: USCIS has confirmed to AILA Liaison that it will be operating, except for E-Verify, if the government does shut down.

DOS Update: DOS confirmed to AILA Liaison that if there is a shutdown, the only visa processing will be for "life or death" emergencies. In prior budget-related shutdowns, DOS has continued to provide diplomatic visas and has been wont to say "a really, really important business meeting is not life or death."

CBP: Inspection and law enforcement are considered "essential personnel," though staffing may be more limited than usual. The borders will be open, and CBP is unsure of how the shutdown will affect the processing of applications filed at the border.

EOIR: EOIR has been advised to "put its shutdown plans in place." As with other agencies, personnel who are not considered "essential" will be furloughed. EOIR has indicated that the detained docket would likely be considered an essential function and would therefore be able to continue in operation.

DOL Update: OFLC confirmed that it would cease processing all applications in the event of a government shutdown. DOL is making plans for a possible shutdown. If there is a shutdown, DOL personnel will not be available to respond to e-mail or other inquiries.

Other agencies will be added, and the above updated, as AILA obtains more information.

Information Source: "AILA InfoNet Doc. No. 11040730 (posted Apr. 8, 2011)"

Posted On: April 8, 2011

What Happens If The Government Shuts Down?

The following information has been provided by AILA, the American Immigration Lawyers Association.

As Congress continues its budgetary deadlock, the possibility of a government shutdown looms larger by the minute. If Congress is unable to reach accord on Friday, the government will close at midnight, Saturday April 9.

In general, if the government shuts down for budgetary reasons, all but "essential" government are furloughed and not allowed to work. So what does this mean for immigration agencies?

USCIS (United States Citizenship and Immigration Services): A couple of shutdown threats back, a USCIS official stated at a stakeholder engagement that USCIS (other than the human touches on E-Verify) would not need to shut down, since all of the agency, other than E-Verify, is funded by fees. However, it is not clear that this is the case, and at least one local office has indicated that it is working on its shutdown plan. AILA will update this information as they get more information.

DOS (Department of State): If there is a shutdown, the result for DOS will likely be the same as it was in the 1996 government closing. Then, the only visa issuance being done was for some diplomats and for "life or death" situations. As DOS is wont to say "a really, really important business meeting is not life or death."

CBP (Customs and Border Patrol): Inspection and law enforcement are considered "essential personnel," though staffing may be more limited than usual. The borders will be open, and CBP is unsure of how the shutdown will affect the processing of applications filed at the border.

EOIR (Executive Office for Immigration Review): EOIR has been advised to "put its shutdown plans in place." As with other agencies, personnel who are not considered "essential" will be furloughed. EOIR has indicated that the detained docket would likely be considered an essential function and would therefore be able to continue in operation.

DOL (Department of Labor): DOL is making plans for a possible shutdown. If there is a shutdown, DOL personnel will not be available to respond to e-mail or other inquiries. AILA does not know at this point whether iCERT/PERM would continue to function. However, because the systems require funding to run, practitioners should assume that they would not be available.

Other agencies will be added, and the above updated, as AILA obtains more information.

Source of Information - AILA InfoNet Doc. No. 11040730 (posted Apr. 7, 2011)

Posted On: April 7, 2011

MD - PG County Public School System & H-1B Visa Program Violations

Maryland’s Prince George’s County Public School System (PGCPS) was found to be in violation of the regulations governing the H-1B temporary foreign workers visa program after an investigation by the U.S. Department of Labor Wage and Hour Division.

The investigation in PGCPS’s practice of the H-1B program revealed 1,044 teachers hired under the program had their wages illegally reduced. Under the H-1B program foreign professionals are hired to work in the U.S. temporarily; however, they must be paid at the same wage level or higher and be given the same benefits as U.S. workers doing a similar job in the same area. The violations amount to $1,740,000.00 in civil damages and PGCPS may be prohibited from filing new H-1B petitions, extensions or requests for permanent residency. The fees employers are suppose to pay for hiring workers under the H-1B program were not paid by PGCPS and instead the school system mandated the fees to be paid by teachers themselves. These fees are the reason why the teachers earnings fell below the level required by the regulations under the H-1B visa program.

Posted On: April 6, 2011

Immigration in 2011 - Part 6 of 10, Limiting the Opportunity for a Fair Hearing and Due Process

Sixth part of our ten part series examining the American Immigration Lawyers Association’s (AILA) publication of “What to Watch Out for in Immigration in 2011.”

Topic #6: Limiting the Opportunity for a Fair Hearing and Due Process

One of the most basic and fundamental rights we as citizens have been afforded is access to the court system and equal judgment under the law. In the immigration system, the idea of due process and the right to a fair trial have been disregarded.

Since 1996, legislation has been passed prohibiting the rights of both legal and undocumented immigrants in the court system. The passing of such laws has allowed individuals to be removed by the Department of Homeland Security (DHS) without as much as a court hearing. Even now the decisions made by DHS concerning the removal and judicial treatment of immigrants are only able to be narrowly reviewed by federal district courts. Further, restrictions have been proposed recently that if passed would prohibit individuals applying for citizenship from appealing their case to the federal courts and would expand summary deportations.

AILA outlined some pertinent reasons to ensure both undocumented and legal immigrants are granted the right to a fair hearing and due process. Limiting the rights of immigrants eliminates the “checks” in the “checks and balances” of our government. Additionally, it gives too much responsibility to immigration officers who can change the lives of immigrants instantly with a decision to deport them. The number of deportations of asylum seekers and individuals who should rightfully remain in the U.S. will also rise with the increase in use of summary deportations.

If you have any ideas on how best to fix our broken immigration system, we welcome your comments and suggestions…

Posted On: April 5, 2011

Administrative Appeals Office Processing Times

The Administrative Appeals Office (AAO) Processing Times were released with processing dates as of April 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 17 months. The current processing time for an I-140 EB2 Appeal for an Advanced Degree Professional is 29 months; for an I-140EB3 Appeal for a Skilled or Professional Worker is 32 months.

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

Posted On: April 1, 2011

MVP LAW GROUP – Immigration Q&A Forum, Friday, April 1, 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 – Employment Based Immigration – Green Card
If my priority date is June 2008 under the EB-3 category and my H-1B visa will expire in October 2012 (using up my 6 years), should I move to a different company so I can re-file my green card application under EB-2? Or should I wait until I renew my H-1B until 2012 before moving?

Answer #1
If you have an approved I-140 and a valid offer of employment, you may move to the new company by filing an H-1B extension for three years based on the approved I-140; however, it can complicate your green card application. If you move, the previous employer could withdraw your approved I-140 and you would have to begin the Labor process from scratch and lose your priority date. This is an important factor that you will have to consider and discuss with your current employer.


Question #2 – Employment Based Immigration – Green Card
My husband is on H-1B is waiting for his I-485 (EB-3 Mexico with a July 11, 2008 priority date). I am currently on H4 and also have a degree in Economics, so I was wondering if I could apply for a TN visa without jeopardizing my chance to get a green card?

Answer #2
Has an I-485 application been filed on your behalf? By applying for a TN visa, you are not jeopardizing your chances, as long as you are eligible for the visa and have a sponsoring employer.


Question #3 – Employment Based Immigration – Advance Parole
We have advance parole expiring on Sep 29th, 2011. And we would like to renew our Advance parole within 120 days of expiration date. What is the earliest date that we may apply without being rejected?

Answer #3
You may apply on or after June 2, 2011.


Question #4 –Temporary Work Visas – H-1B Nonimmigrant Visa
I’d like to apply for an H-1B visa under the H-1B CAP. Is the H1B Visa Quota still available for the year 2011?

Answer #4
No, the H-1B FY2011 CAP opened on April 1, 2010 and the quota was reached in January of 2011. The H-1B FY2011 runs from October 1, 2010 until September 30, 2011. FY stands for Fiscal Year. 65,000 visas have already been allocated for FY2011.

The H-1B 2012 CAP opens today April 1, 2011 and will remain open until a sufficient amount of visa petitions are received to reach the quota. The H-1B FY2012 runs from October 1, 2011 until September 30, 2012.


Question #5 –Temporary Work Visas – H-1B Nonimmigrant Visa
Can your firm sponsor my H-1B or find a company to sponsor me? I am ready to come to the U.S. and work; I have a BS in Computer Science

Answer #5
We are a law firm that will help you prepare the paperwork (Forms and documents) for your H-1B non-immigrant petition once you find an employer willing to sponsor you for employment; however, we cannot find you H-1B sponsorship. In summary, once you have secured an H-1B sponsor (U.S. employer), we can then assist you with the process.


Question #6 – General
I am not sure what is going on with my pending I-140 application. I heard through the various immigration forums that I can contact USCIS and make a request for them to look further into my case and see why it is taking so long. Is this true? How do I do it? Does my employer need to contact them?

Answer #6
The USCIS National Customer Service Center, which can be reached at 1-800-375-5283, will initiate a service request when a petition is outside of the normal processing time if the request is made by the sponsoring Petitioner, the Applicant/Beneficiary, or an Authorized Representative or an Attorney for the Petitioner/Applicant. 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, your complete mailing address, your date of birth, your receipt number for the pending application/petition, the filing date of your pending application/petition, your priority date, your preference category, and possibly, the position indicated on your certified labor. If your case is outside of the normal processing time, the Officer/Agent will 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 #7 – Employment Based Immigration – Advance Parole
We would like to file for renewal Advance Parole document. Please confirm if this is going to be an issue if we travel to India during June or August. During that time we will have current Advance parole (Exp August 28,2011) and future advance parole in pending status.

Answer #7
As long as you file the advance parole renewal prior to your departure and return prior to the expiration of your current AP document 8/28/2011, you should not encounter any issues.


Question #8 – Employment Based Immigration – Green Card: Biometrics
I believe the fingerprints that the USCIS have on file for my 485 application are old. Additionally, my wife has received her fingerprint appointment notice, should I just go and get my done with her, I haven’t got my notice yet. Should I take Info pass appointment to give them a new set of fingerprints?

Answer #8
USCIS will send you an appointment notice with a specific date, time and place for you to go to a USCIS Application Support Center (ASC) for biometrics processing. You must WAIT for that appointment notice and take it to your ASC appointment along with your photo identification.


Question #9 –Temporary Work Visas – H-1B Nonimmigrant Visa
If we sponsor an employee and pay the associated legal fees and USCIS filing fees, can we consider those payments in their employment review/raise evaluation in subsequent years? I am trying to treat all employees fairly, and it seems odd that the company is required to pay legal fees for one employee, but not another.

Answer #9
I understand your frustrations; however, the H-1B nonimmigrant program is a program designed to allow foreign professional workers to work temporarily in the United States to help boost the economy and keep U.S. businesses at the top in terms of work productivity, developing new products, etc. When you speak of using the associated legal fees when determining employment reviews/raise evaluations, it is not fair to the H-1B worker who has been sponsored by you for the sole purpose of working for your company to then take those fees and hold them against them. To my knowledge, it is unlawful and the Department of Labor (DOL) would not look favorably over this issue. It may seem odd that you are required to pay for the foreign worker's legal fees and associated filing fees, but that is just an aspect of the United States Citizenship and Immigration Service (USCIS) and DOL’s partnership in the H-1B nonimmigrant program. A job is a job and when performance reviews/raise evaluations are conducted, they should be based entirely on the ability/productivity and experience of the worker.


Question #10 – Family Based Immigration – Green Card – Marriage Based (K1)
What are the restrictions on a 'conditional green card”? Once my husband gets his GC, can he travel (internationally)?

Answer #10
Yes, he can travel internationally provided the trip is less than 6 months out of the year. The restrictions are mostly just the time frame, given most GCs are issued for 10 years, the USCIS wants to make sure at the end of the two (2) years, prior to renewal of the GC, that you are still in a legitimate marriage and that the marriage was not for fraudulent purposes. Once the two (2) years are over and the conditions are removed after he applies to remove them, he will receive a GC valid for 10 years. Within 90 days of the two-year anniversary of obtaining conditional residence, you and your husband will be required to file a Joint Petition to Remove Conditions on Residence (Form I-751). Once the conditions are removed, your husband will officially have Lawful Permanent Residence in the US.


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

Our next “Immigration Q & A Forum” is scheduled for Friday, April 15th, 2011! Please remember to submit your questions/comments on our h1bvisalawyer blog.