Posted On: July 29, 2011

Changing Your Address with USCIS/DOS/EOIR/BIA

Changing an address with the various Federal immigration agencies can be confusing, and failure to properly make an address change can lead to denials and other adverse immigration consequences. The Ombudsman's Office encourages immigration benefits applicants and petitioners to promptly notify U.S. Citizenship and Immigration Services (USCIS), the Executive Office for Immigration Review (EOIR), the U.S. Department of State (DOS), and/or the U.S. Department of Labor (DOL) of any change in address.

USCIS, DOS, EOIR and DOL have separate procedures, filing locations, and timeframes for submitting an address change. A change of address should be reported for each application type, petition, case, and family member with each government agency from which an immigration benefit is being sought. Applicants should use the most permanent address available. To view the chart provided by the Department of Homeland Security, please click here.


USCIS - Change of Address Requirements: Differences between U.S. citizens and non-U.S. citizens

U.S. Citizens
Not required by law, but it's important that you report a change of address for pending cases.

Online: USCIS Online Change of Address
OR
By phone: 1-800-375-5283.


Non-U.S. Citizens
By law, you must complete Form AR-11 to report any change in permanent address within 10 days.

Online: USCIS Online Change of Address (recommended)*
AND
By mail: Download Form AR-11 and Instructions


Note penalty: Willful failure to give written notice to USCIS of a change of address within 10 days is a misdemeanor crime, and could also jeopardize the ability to obtain a future immigration benefit.


*The Ombudsman recommends reporting changes of address online. U.S. citizens will be brought directly to the page where they may update their address for any pending USCIS applications or petitions. Non-U.S. citizens will first be required to report changes of address by completing an electronic Form AR-11 (PDF, 1 page - 370 KB), and thereafter may separately update their address for pending cases.

Information Provided By: U.S. Department of Homeland Security

Posted On: July 26, 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 July 22, 2011, 21,600 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of July 22, 2011, 13,300 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: July 25, 2011

DOL Experiencing Delays in Processing Prevailing Wage Determinations

AILA members have reported receiving the following e-mail message from the DOL National Prevailing Wage Center (NPWC) in response to inquiries into the status of prevailing wage requests:

Thank you for your inquiry.

The NPWC is currently experiencing delays in processing prevailing wage determinations as it is working to reissue certain prevailing wage determinations to comply with a court order issued June 15, 2011 in the United States District Court for the Eastern District of Pennsylvania. We continue to encourage all requestors to submit their ETA Form 9141 at least 60 days in advance of the employer’s initial recruitment efforts.

Thank You, NPWC-#####

The June 15, 2011 court order stems from the August 30, 2010 decision in CATA v. Solis, where the district court ordered DOL to promulgate new H-2B prevailing wage regulations (AILA Doc. Nos. 101061580 and 10100169). AILA has contacted DOL for additional information on steps it is taking to comply with the court order, including how long it will take to reissue the H-2B wage determinations, and the short-/long-term impact of the order on prevailing wage processing times.

Source of Information: AILA InfoNet Doc. No. 11072571

Posted On: July 22, 2011

MVP LAW GROUP – Immigration Q&A Forum, Friday, July 22nd, 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
My employer appealed my denied labor to BALCA. My employer just got notice that my appeal has been docketed. When will I get a decision?

Answer #1
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 #2 – Temporary Travel as a Non-Immigrant
I have an H1B visa stamped on my passport, which expires in Feb. 2012. I am planning to travel outside of the country in Sept. The agency where I work has applied for Adjustment of Status and filed an I-131 form, but I don't have the documents to travel. Can I travel? without this documentation and re-enter just with my H1B visa? Thank you!

Answer #2
Yes, you may travel on your H-1B visa, IF and ONLY IF you are presently still working for your H-1B employer. If so, you may use the H-1B visa stamp and re-enter the U.S. as an H-1B nonimmigrant and resume employment with your H-1B employer. However, you should carry with you a copy of your entire approved petition, along with an updated employment verification letter, most recent paystubs, employment agreement, just to be safe. If not, you must wait for the Advance Parole document to be approved before you may exit the country and attempt to re-enter.


Question #3 – Employment Based Immigration – Green Card
I filed for AOS based on employment. I moved six months after filing concurrently, I-140 and I-485 applications. My fingerprint notice was sent to my old address and then I received a notice in the mail that my I-485 had been denied due to abandonment. (An old friend lives at my old address). I subsequently re-filed the I-485. Some of my friends say this re-filing could have been avoided? How?

Answer #3
If you move while a case is pending with the USCIS, under Section 265 of the Immigration and Nationality Act (8 U.S.C. 1305), you must submit Form AR-11 within 10 days of your move to a specific address provided by the USCIS. If you fail to update your address with the USCIS, correspondence may continue to be sent to your old address and if you fail to respond within a timely manner, it could result in a denial or seriously affect the processing of your case. You could have avoided this situation by simply updating your mailing address online or by submitting Form AR-11 to the USCIS. As explained to you in the I-485 denial, failure to show at a scheduled fingerprint appointment without prior notice is considered abandonment of the application and may result in a denial. With the facts provided, it seems that by the time you received the fingerprint appointment notice and I-485 notice concerning denial, it was beyond the time required to submit a response in a timely manner. Accordingly, you re-filed your I-485 application. Next time, I would recommend you contact an experienced Immigration Attorney.


Question #4 – Temporary Work Visa – H-1B Nonimmigrant Visa
I had gone for visa stamping and was issued 221(g) blue form. This is the reason given: "Your petition is not currently reflected in the PIMS database. Processing of your case will be suspended until we can verify your petition details." I am worried, is this normal?

Answer #4
It is a normal process and there is no reason to be alarmed, this is a standard procedure, so unfortunately, you must wait until your status/case can be confirmed and then you will receive your visa stamp. As stated below by the DOS, extensions of stay and change of status petitions take longer to verify through the database.

The U.S. Department of State (DOS) has instructed consular posts that approvals of H, L, O, P and Q visa petitions must be verified through the Petition Information Management Service (PIMS) before a nonimmigrant visa can be issued. PIMS is an electronic report generated by DOS’s Kentucky Consular Center that collects nonimmigrant visa petition approval information from USCIS. PIMS contains data on initial petition approvals and on L blanket petitions that were approved in 2004 or later. PIMS does not contain information on approvals of extension of stay or changes of status petitions. Consular officers adjudicating visa applications must consult PIMS to verify the approval of the underlying nonimmigrant visa petition. If the petition approval cannot be verified through PIMS, the officer must contact the Kentucky Consular Center, which in turn attempts to verify the approval through USCIS’s Computer Linked Applications Information Management System (CLAIMS).

DOS officials state that PIMS verification typically takes no more than 24 hours and that verification through CLAIMS typically takes two business days. Most cases involving initial nonimmigrant visa petitions are verified within these timeframes. However, they have received many reports of longer processing times for extension of stay and change of status cases. These cases must be verified with the assistance of the Kentucky Consular Center and can take longer to be processed. DOS has indicated that there are no current plans to include extension and change of status approval information in PIMS, which may result in significant delays for many applicants. Foreign nationals who will be applying for nonimmigrant visas should expect longer processing times due to the new PIMS and CLAIMS verification requirement. How long the electronic process will take may vary from case to case. However, same-day and next-day visa issuance should not be expected.


Question #5 – Employment Based Immigration – Green Card
Please explain to me what “priority date becoming current” means?

Answer #5
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. If there is a backlog in the preference category in which 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 #6 – Employment Based Immigration – Green Card
My husband received his GC and his last name is spelled wrong on the card. How do I fix it?

Answer #6
You will need to file Form I-90, Application to Replace Permanent Resident Card. If you believe this was an administrative error on the part of the USCIS, you will need to check box d in Part 2, number 2 of the application. Along with the Form I-90 and accompanying filing fee please attach the incorrect card and evidence of the correct information (original birth certificate; passport; previous approval notices, etc). You will need to submit the USCIS filing fees (made payable to the “U.S. Department of Homeland Security”) even though you believe it was an administrative error. If you send the form with accompanying documentation without the filing fees, the case will be returned until you provide those fees. If the USCIS agrees that the error was administrative in nature, they will issue a new card and return the filing fees.


Question #7 – Immigration Options for a Nanny
I am looking to hire a Nanny for my twin daughters who are 18 months. What options are available?

Answer #7
The options for hiring foreign-born nannies are very limited, but there are options. Options available: J-1 Visa, H-2B Visa, and Sponsorship of the Foreign Worker as a Skilled Worker under the EB3 Preference Category (Employment Based Immigrant Visa – Green Card). You should consider each option and the possible benefits and drawbacks of each option. Unfortunately, the EB3 preference category for Skilled Workers is oversubscribed, and accordingly, this option will take years and thus may not be the best available option considering your children may be 10 years old by the time an Immigrant Visa number becomes available for the sponsored Nanny.


Question #8 – Visa Bulletin
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 #8
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 #9 – Temporary Work Visa – H-1B Nonimmigrant Visa
One of our employees is going on vacation from 08/15-09/10 and we are getting his h1b ext. in October and he has to go for visa in home country and he is requesting us to premium process his H1 ext. and wondering whether we can do it right now and can get approval before he leaves and he wants to appear for Visa with the new one. Please suggest whether we can do it right now or can we do it after he comes back from the vacation.

Answer #9
The answer to your question depends upon the specifics of your case; whether an end client will need to be obtained and if it can be obtained within the time period, whether forms and filing fees can be returned within a reasonable time; whether the LCA will be certified within the time frame given; etc. There are many circumstances that will need to be considered before a final decision is made on whether to prepare and file the extension now or wait until the return of the beneficiary to the U.S. We can file cases with the USCIS within 6 months of the current visa's expiration. Therefore, if his current H-1B expires on 10/2011, you could prepare and file the extension case now. Knowing the above information, please consider all of the circumstances of the case before you make a decision to proceed forward.


Question #10 – Temporary Work Visa – H-1B Nonimmigrant Visa
How many H-1B nonimmigrant visas remain under the CAP?

Answer #10
As of July 15, 2011, there were approximately 44,500 H-1B Regular CAP subject nonimmigrant visas remaining and 7,200 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.


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

Our next “Immigration Q & A Forum” is scheduled for Friday, August 5th, 2011!

Please remember to submit your questions/comments on our h1bvisalawyer blog.

Posted On: July 21, 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 July 20th, 2011 with processing dates as of May 31, 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: July 20, 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 July 15, 2011, 20,500 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of July 15, 2011, 12,800 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: July 18, 2011

MVP "Immigration Q & A Forum" - This Friday, July 22nd, 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, July 22nd, 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: July 14, 2011

Administrative Appeals Office Processing Times

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

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

Administrative Appeals Office

The current processing time for an I-129 H-1B Appeal is 20 months; for an I-129 L1 Appeal - 23 months. The current processing time for an I-140 EB2 Appeal for an Advanced Degree Professional is 32 months; for an I-140EB3 Appeal for a Skilled or Professional Worker is 34 months.

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

Posted On: July 13, 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 July 8, 2011, 19,000 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of July 8, 2011, 12,200 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: July 12, 2011

August 2011 Visa Bulletin

The Department of State has released its latest Visa Bulletin.

Click here to view the August 2011 Visa Bulletin.

The August 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: July 11, 2011

Round-Up of Immigration Related Legislation (June 2011)

The following immigration-related bills were introduced into the House of Representatives and the Senate in June 2011 and summarized below by AILA (American Immigration Lawyers Association):

Senate Bills

Protect Our Workers from Exploitation and Retaliation (POWER) Act (S. 1195)
Introduced by Sen. Menendez (D-NJ) on 6/14/11
Summary: Amends the INA to exclude from the definition of "immigrant" under such Act a nonimmigrant alien who files a petition for status if the Secretary of Homeland Security (DHS) determines that the alien: (1) has suffered abuse or harm as a result of having been a victim of criminal activity; (2) has suffered substantial abuse or harm related to specified labor or employment violations related to a workplace claim (workplace violation); (3) is a victim of specified criminal activity and would suffer extreme hardship upon removal; (4) has suffered a workplace violation and would suffer extreme hardship upon removal; (5) has been helpful to a local judge, DHS, the Equal Employment Opportunity Commission (EEOC), the Department of Labor, or the National Labor Relations Board (NLRB) or to other authorities investigating, prosecuting, or seeking civil remedies for workplace violation; or (6) has filed, is a material witness in, or is likely to be helpful in the investigation of, a bona fide workplace claim and reasonably fears, has been threatened with, or has been the victim of, an action involving force, physical restraint, retaliation, or abuse of the immigration or other legal process by the employer in relation to acts underlying or related to the filing of the claim.
Authorizes the Secretary of DHS to permit certain aliens to remain temporarily in the United States. Sets forth protections in an enforcement action leading to a removal proceeding taken against certain aliens.

Accountability Through Electronic Verification Act (S. 1196)
Introduced by Sen. Grassley (R-IA) on 6/14/11
Summary: Expands the use of E-Verify.

Refugee Protection Act of 2011 (S. 1202)
Introduced by Sen. Leahy (D-VT) on 6/15/11
Summary: Amends the INA to reaffirm the United States' historic commitment to protecting refugees who are fleeing persecution or torture.

Border Tunnel Prevention Act of 2011 (S. 1236)
Introduced by Sen. Feinstein (D-CA) on 6/20/11
Summary: Deters the construction and use of border tunnels to reduce the trafficking of drugs and to prevent human smuggling across the Southwest Border.

S. 1258
Introduced by Sen. Menendez (D-NJ) on 6/22/11
Summary: Provides for comprehensive immigration reform.

Trafficking Victims Enhanced Protection Act of 2011 (S. 1259)
Introduced by Sen. Durbin (D-IL) on 6/22/11
Summary: Amends the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 to prohibit the provision of peacekeeping operations assistance to governments of countries that recruit and use child soldiers.

Trafficking Victims Protection Reauthorization Act of 2011 (S. 1301)
Introduced by Sen. Leahy (D-VT) on 6/29/11
Summary: Authorizes appropriations for fiscal years 2012 to 2015 for the Trafficking Victims Protection Act of 2000, to enhance measures to combat trafficking in person

House Bills

IDEA Act of 2011 (H.R. 2161)
Introduced by Rep. Lofgren (D-CA) on 6/14/11
Summary: Immigration Driving Entrepreneurship in America Act of 2011. Amends the INA to promote innovation, investment, and research in the United States.

Legal Workforce Act (H.R. 2164)
Introduced by Rep. Smith (R-TX) on 6/14/11
Summary: Amends the INA to make mandatory and permanent requirements relating to the use of an electronic employment eligibility verification system.

Protect Our Workers from Exploitation and Retaliation (POWER) Act (H.R. 2169)
Introduced by Rep. Chu (D-CA) on 6/14/11
Summary: Amends the INA to exclude from the definition of "immigrant" under such Act a nonimmigrant alien who files a petition for status if the Secretary of Homeland Security (DHS) determines that the alien: (1) has suffered abuse or harm as a result of having been a victim of criminal activity; (2) has suffered substantial abuse or harm related to specified labor or employment violations related to a workplace claim (workplace violation); (3) is a victim of specified criminal activity and would suffer extreme hardship upon removal; (4) has suffered a workplace violation and would suffer extreme hardship upon removal; (5) has been helpful to a local judge, DHS, the Equal Employment Opportunity Commission (EEOC), the Department of Labor, or the National Labor Relations Board (NLRB) or to other authorities investigating, prosecuting, or seeking civil remedies for workplace violation; or (6) has filed, is a material witness in, or is likely to be helpful in the investigation of, a bona fide workplace claim and reasonably fears, has been threatened with, or has been the victim of, an action involving force, physical restraint, retaliation, or abuse of the immigration or other legal process by the employer in relation to acts underlying or related to the filing of the claim. Authorizes the Secretary of DHS to permit certain aliens to remain temporarily in the United States. Sets forth protections in an enforcement action leading to a removal proceeding taken against certain aliens.

Refugee Protection Act of 2011 (H.R. 2185)
Introduced by Rep. Lofgren (D-CA) on 6/15/11
Summary: Amends the INA to reaffirm the United States' historic commitment to protecting refugees who are fleeing persecution or torture.

Deport Convicted Foreign Criminals Act (H.R. 2199)
Introduced by Rep. Poe (R-TX) on 6/15/11
Summary: Prohibits the issuance of certain visas to nationals of a country that denies or unreasonably delays the repatriation of a national ordered removed from the United States to such country.

Child Trafficking Victims Protection Act (H.R. 2235)
Introduced by Rep. Roybal-Allard (D-CA) on 6/16/11
Summary: Provides enhanced protections for vulnerable unaccompanied alien children and female detainees.

Border Tunnel Prevention Act of 2011 (H.R. 2264)
Introduced by Rep. Reyes (D-TX) on 6/21/11
Summary: Deters the construction and use of border tunnels to reduce the trafficking of drugs and to prevent human smuggling across the Southwest Border.

Torture Victims Relief Reauthorization Act of 2011 (H.R. 2404)
Introduced by Rep. Smith (R-NJ) on 6/28/11
Summary: Amends the Torture Victims Relief Act of 1998 to authorize appropriations to provide assistance for domestic and foreign programs and centers for the treatment of victims of torture.

Source:"AILA InfoNet Doc. No. 11070672 (posted Jul. 6, 2011)"

Posted On: July 8, 2011

MVP LAW GROUP – Immigration Q&A Forum, Friday, July 8th, 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 is considering merging with another company, if we do merge, will we need to file amended petitions for each nonimmigrant worker to remain in compliance? I will still remain head of the organization, and the workers will remain in their respective positions and nothing else will change except for the name of the company. Please advise.

Answer #1
Under the Visa Waiver Permanent Act of October 2000, a person is no longer required to file an H1B amendment after a merger, consolidation or other corporate restructuring in many cases if the new job is identical to the prior job before the merger, etc. We would recommend the applicant carry a letter explaining the merger for travel purposes.


Question #2 – Naturalization/Citizenship
What are the eligibility requirements to apply for naturalization?

Answer #2
The general requirements for administrative naturalization include: a period of continuous residence and physical presence in the United States (if LPR – period of 5 years; if LPR spouse of U.S. Citizen – period of 3 years); an ability to read, write and speak English; a knowledge and understanding of U.S. history and government; Good moral character; attachment to the principles of the U.S. Constitution; and favorable disposition toward the United States.


Question #3 – Temporary Work Visa – H-1B Nonimmigrant Visa
If one has an approved I-140 can employer still have the discretion not to renew one's H1B? Or are they bound by law to petition working visas until one gets the green card?

Answer #3
The employer has the ultimate discretion not to renew/extend an applicant’s H-1B. If the employer no longer wishes to employ the applicant, has decided to terminate the applicant, he may do so; however, if the beneficiary is terminated or otherwise released early, the employer is responsible for paying the associated transportation costs for the beneficiary’s return to his home country.


Question #4 – Temporary Work Visa – H-1B Nonimmigrant Visa
How many H-1B nonimmigrant visas remain under the CAP?

Answer #4
As of July 1, 2011, there were approximately 46,600 H-1B Regular CAP subject nonimmigrant visas remaining and 8,100 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 #5 – Employment Based Immigration – Green Card
I got my I-140 petition approved. Next step is to apply for AOS. What kind of document I need to have for AOS application?

Answer #5
In order to apply for AOS, your priority date needs to be current, once your priority date is current, you may be able to file the Form I-485, Application to Adjust Status to Permanent Resident along with the Form I-765, Application for Employment Authorization and Form I-131, Application for Travel Document. There are numerous background documents that will need to be submitted along with your petition, specifically, a sealed medical examination from a civil surgeon in your area, birth certificates, copies of federal tax returns, bank statements, and an employment verification letter, among other documents.


Question #6 – Employment Based Immigration – Green Card
I have a question about the work. Can I directly work for my own company now because my I-485 is approved and waiting for getting the Green card? (The card already produced and mailed).

Answer #6
Although the regulations are silent on the issue, our office recommends that you remain with the company that sponsored your Green Card for at least 6 months before moving to a new company or beginning to work for your own. We recommend this frame for applicants interested in applying for Citizenship down the line, as to avoid any unnecessary questions concerning your intent and previous employment.


Question #7 – 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 #7
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 #8 – 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 for me what “priority date becoming current” means? I filed in EB2 category from China.

Answer #8
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.

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 #9 – 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 #9
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 appeal at the Administration Appeals Office (AAO).


Question #10 – General
How and when do I obtain a Social Security Card?

Answer #10
Generally, you may obtain a Social Security Card once you are legally authorized to work in the United States. Such authorization may be evidenced by receipt of an employment authorization card, an Alien Registration Card (Green Card), or receipt of temporary evidence of Green Card status (as established by presentation of an I-551 stamp in your passport). You will need to file an application for a Social Security Number in person at the Social Security Office. When filing this application at the Social Security Office, you should bring the following documents with you: your original birth certificate, passport, and employment authorization document, stamped passport or Green Card. Call 1-800-772-1213 for further information including the address of your local Social Security office, or visit their website at www.ssa.gov.


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

Our next “Immigration Q & A Forum” is scheduled for Friday, July22nd, 2011! Please remember to submit your questions/comments on our h1bvisalawyer blog.

Posted On: July 7, 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 July 1, 2011, 18,400 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of July 1, 2011, 11,900 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: July 6, 2011

USCIS Welcomes More than 24,000 New Citizens During Fourth of July Celebrations

The USCIS conducted numerous naturalization ceremonies, welcoming more than 24,000 new citizens beginning on June 27 and leading up to July 4th, to commemorate America’s 235th birthday. Eight of the approximate 350 ceremonies were specifically held for members of the U.S. armed forces. The Director of USCIS, Alejandro Mayorkas provided in his remarks that “every Fourth of July, we celebrate our country’s spirit of independence…this spirit, and our founding ideals of freedom and democracy, have allowed us to achieve great success as a nation of immigrants. Immigrants come to America in search of opportunity and, by taking the Oath of Alligence, embrace the rights and responsibilities of U.S. citizenship.

Posted On: July 5, 2011

MVP "Immigration Q & A Forum" - This Friday, July 8th, 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, July 8th, 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: July 5, 2011

BALCA Says Wall Street Journal Is Not a Professional Journal

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 “Personal Finance Advisor.”

After receiving the Employer’s Application, the CO issued an Audit Notification. After receiving the audit response, the CO denied certification citing the fact that the journal the Employer used to advertised the position did not qualify as a professional journal and therefore did not satisfy the regulation. In the request for review, the Employer’s representative argued that the advertisement of the position in The Wall Street Journal did qualify as a professional journal. The case was forwarded to BALCA and the Employer filed a State of Intent to Proceed on June 24, 2010.

PERM regulation 20 C.F.R. § 656.17(e)(1)(B)(4) controls and it provides that if the position being offered requires experience and an advanced degree, a professional journal must be used to advertise the job.

In the instant case, the Employer tried to argue that The Wall Street Journal is a leading business journal; however BALCA found that it was in fact a widely read and respected newspaper – a newspaper and not a professional journal. Therefore, the Employer did not fulfill the requirement set by the PERM regulations to advertise in a professional journal.

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

Posted On: July 1, 2011

BALCA Affirms Denial, Finds Recruitment Report 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 “Software Engineer, Applications.”

An Audit Notification was issued by the CO requesting evidence of the Employer’s recruitment efforts. In the response to the audit submitted, the Employer included copies of Form ETA 9089 with original signatures, a statement of business necessity, a copy of the internal Job Posting, and other recruitment documents. The application was denied by the CO on the grounds that the Employer only completed 2 of the required 3 recruitment efforts for professional occupations. A request for review was submitted by the Employer who cited that in the CO’s “Reason for Denial” letter the wrong case number was used. A revised “Reason for Denial” letter was submitted by the CO with the correct case number included and it provided the reason for denial was the fact that the Employer did not submit its recruitment report. In another Request for Review, the Employer argued that the original response to the audit did include the recruitment documentation and recruitment report. The case was then forwarded to BALCA after the CO found the Employer did not overcome the original deficiencies in review of the case.

PERM regulation 20 C.F.R. § 656.17(g) controls and it provides that all employers must prepare a recruitment report, and in the event the CO notifies the employer that its application is to be audited, the employer must submit the report prior to a final determination. This report must also be signed by the employer or the employer’s representative and that individual must be the person who normally interviews or considers, on behalf of the employer, applicants for job opportunities.

In the instant case, the Employer failed to submit a recruitment report in response to the CO’s Audit Notification, the Employer’s response only included the statement, “There were no qualified U.S. workers who applied for this job opening.” Additionally, the statement was only signed by the Employer’s attorney, not the Employer. As a result of the Employer’s failure to sign the report, he did not attest to the results of its recruitment efforts.

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