Posted On: September 28, 2012

MVP LAW GROUP – Immigration Q&A Forum, Friday, September 28, 2012

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


Question #1 – General
I was able to file I-485 applications for myself and my wife in February and since then we have received the combined EAD/AP card. Can my wife apply for a SSN now? My health insurance coverage is requesting that she obtain a SSN.

Answer #1
Yes, your wife can apply for a Social Security Number. She will need to take her valid Employment Authorization Document (EAD), her passport, birth certificate and the completed application to the local Social Security Administration office to apply.


Question #2 – Green Card
If my I-485 was denied while I was working on EAD, can I still apply for an H-4 since my wife still has a valid H-1?

Answer #2
You may apply for an H4 as a dependent of your wife; however, you are not able to work while maintaining H4 dependent status.


Question #3 – Temporary Work Visa - H-1B Nonimmigrant Visa
What is “Cap-Gap”?

Answer #3
As provided by the USCIS website, Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the period of time when an F-1 student’s status and work authorization would otherwise expire through the start date of their approved H-1B employment period. This is referred to as filling the “cap-gap,” meaning the regulations provide a way of filling the “gap” between the end of F-1 status and the beginning of H-1B status that might otherwise occur if F-1 status is not extended for qualifying students.


Question #4 – General
I am reading in the online forums and am reading things mentioned as PIMS? and CLAIMS? Can you tell me what they are?

Answer #4
PIMS stands for Petition Information Management System which is an electronic report generated by the Department of State’s (DOS) Kentucky Consular Center (KCC) that collects nonimmigrant visa petition approval information from the USCIS.

CLAIMS stands for Computer Linked Application Information Management System. CLAIMS provides USCIS employees with automated support for adjudicating cases and processing various notices, among other things. CLAIMS capabilities include case tracking, status update, notice reporting, and document production.


Question #5 –Temporary Work Visa – H1-B Nonimmigrant Visa
I have been considering teaching for a while as a way to give back to my community and was wondering being on H1-B, would I be able to hold a part-time teaching position at a university, if given the opportunity?

Answer #5
You would be able to hold a part-time teaching position at a university; however, the University must be willing to sponsor your H-1B visa. The University would have to go thru the normal process of preparing and filing the necessary forms and paying the necessary USCIS filing fees, if applicable, as well as paying all legal fees involved.


Question #6 – Temporary Work Visa – H-1B Nonimmigrant Visa
I have heard from friends and by reading the forums that the Consulates are very strict and ask for original I-797 approval notice but my employer is not willing to give me the original, they only provide me with bottom portion of original. Can I request USCIS to give me another original to take to Consulate? Is there anything I can do, I do not want rejected based on me not having original I-797 approval?

Answer #6
You do not need the entire original I-797 approval notice to schedule/attend a Consulate interview. Consular Officers are able to verify all approved petitions through the PIMS or CLAIMS system, and therefore the I-797 original notice is not required in order to verify that the petition has been approved. Additionally, the original I-797 notice clearly provides that the bottom portion may be torn off and provided to the applicant to be used for purposes of applying for a visa at a Consulate abroad.


Question #7 – Temporary Work Visa – H-1B Nonimmigrant Visa
The Processing Time Table indicates it takes about 2 months. My case has been pending for four months already. Can you tell me why it is taking so long?

Answer #7
Although the USCIS processing times may state 2 months, you have to factor in that when it is posted, that data is already 45 days old. Reports indicate that nearly 17,000 H-1B CAP-subject cases remain un-adjudicated. Additionally, with the recent enactment of DACA, remaining resources of the USCIS are being used to actively process those cases as well. There are many factors that contribute to the processing times for the H-1B nonimmigrant visa.


Question #8 – Temporary Work Visa – H-1B Nonimmigrant Visa
We received approval from USCIS for an H-1B for our new employee. Our new employee scheduled a consulate interview and was denied the visa, how is this possible?

Answer #8
Form I-797 indicates that the approval is not a visa, only the U.S. Consulates have the authority to grant or deny a nonimmigrant visa. If an individual has an H1B petition approved by USCIS that does not mean that the U.S. Consular Officer will automatically issue the H1B visa. The Consular Officer may ask a serious of questions and if they believe that the information obtained during the questioning was not information available at the time of the USCIS’s approval of the petition, they will likely issue a denial and provide a written explanation as to why the visa was denied.


Question #9 – Employment Based Immigration – Green Card
Can you premium process or otherwise speed up the Green Card process?

Answer #9
You may only premium process the I-140 Immigrant Petition, which is the petition that is filed with the USCIS after the labor application is certified by the Department of Labor (DOL). You cannot speed up the process of labor certification with the DOL, nor the process of adjudicating the Adjustment of Status petition with the USCIS.


Question #10 – Temporary Work Visas
What is the grace period on an O-1 extension? I reside in New York City, NY, USA, my current O1 visa expires on 10/25/2012 and I’ve filed for an extension on 8/17/2012. I have received a receipt notice.

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


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

Our next “Immigration Q & A Forum” is scheduled for Friday, October 12, 2012!

Please remember to submit your questions/comments on our H1B Visa Lawyer blog!

Posted On: September 26, 2012

Diversity Visa Program Scam Alert

The Department of State is warning the public that there has been an increase in fraudulent emails and letters being sent to Diversity Visa applicants. Some of these scammers are posing as the U.S. government and attempting to have payments sent directly to them. Diversity applicants should review the, “INSTRUCTIONS FOR THE 2014 DIVERSITY IMMIGRANT VISA PROGRAM (DV-2014)” to know what to expect when applying for the program.

Note: Fees for the DV application process are paid to the U.S. Embassy or consulate cashier at the time of your scheduled appointment. The U.S. government will never ask you to send payment in advance by check, money order, or wire transfer.

For further details read the two Alerts:

U.S. Department of State Fraud Warning
- Scam Alert: Diversity Visa Program Scammers Sending Fraudulent Emails and Letters

FTC Consumer Alert
- How to Recognize a Diversity Visa Lottery Scam

Posted On: September 25, 2012

Diversity Visa (DV-2014) Lottery - APPLY BEGINNING October 2, 2012 – ONLY ONLINE ENTRIES ACCEPTED

Annually, the United States government issues a maximum of 50,000 green cards through a computer-generated random lottery drawing. Applications for the DV-2014 random lottery will be accepted Tuesday, October 2, 2012 through Saturday, November 3, 2012. Paper entries will not be accepted, eligible participants may access the electronic Diversity Visa entry form (E-DV) to apply during this period. Early entry is recommended and they strongly encourage applicants not to wait until the last week of the registration period to enter!

These green cards are only available to those eligible participants from countries with low rates of immigration to the United States. Please check the INSTRUCTIONS FOR THE 2014 DIVERSITY IMMIGRANT VISA PROGRAM (DV-2014)” for the complete list of countries/areas whose natives are eligible for DV-2014.

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

Changes in eligibility this year: FOR DV-2014, NATIVES OF GUATEMALA ARE NOW ELIGIBLE FOR SELECTION.

To enter the DV lottery, you must be a native of one of the eligible countries. In most cases this means the country in which you were born. However, there are two other ways you may be able to qualify. First, if you were born in a country whose natives are ineligible but your spouse was born in a country whose natives are eligible; you can claim your spouse's country of birth provided both you and your spouse are on the selected entry, are issued visas and enter the U.S. simultaneously. Second, if you were born in a country whose natives are ineligible, but neither of your parents was born there or resided there at the time of your birth, you may claim nativity in one of your parents' country of birth if it is a country whose natives qualify for the DV-2014 program.

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

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

Diversity Visa (DV) Lottery Instructions

Posted On: September 24, 2012

AILA VSC Practice Alert: Projected Processing Times for H-1B Cap Petitions at the VSC

The AILA VSC liaison committee has been informed that the Vermont Service Center is doing its final push to adjudicate all pending FY2013 H-1B cap petitions. The VSC expects to action (i.e. issue approvals, denials, or RFEs) all remaining H petitions for F-1 beneficiaries with cap-gap authorization before the end of September 2012. VSC estimates there are 100 pending H-1B petitions for cap-gap beneficiaries. Approximately 10,000 H-1B cap petitions also remain pending, and VSC anticipates issuing notices of approval, denial, or RFEs for each of these cases by the second week in October.

Source of Information: "AILA InfoNet Doc. No. 12091849 (posted Sep. 18, 2012)"

Posted On: September 24, 2012

MVP LAW GROUP – Immigration Q&A Forum, Friday, September 28, 2012

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, DREAMers, Deferred Action for Childhood Arrivals, priority dates, the monthly visa bulletin, adjustment applications, etc., 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, September 28, 2012. 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. Therefore, your communication with us through this forum will not be considered as privileged or confidential.

Posted On: September 21, 2012

Celebrate Citizenship Day! (September 17, 2012)

September 17 was designated as Constitution Day and Citizenship Day to commemorate the signing of the Constitution in Philadelphia on September 17, 1787. This year marks the U.S. Constitution's 225th anniversary!

Many special Naturalization Ceremonies are being held at different locations across the country to honor this special day and anniversary! Before naturalizing, potential U.S. citizens must pass a naturalization test, which includes 10 civics questions, chosen from a pool of 100 possible questions. How well would you do on these sample questions?

1. What is the supreme law of the land?
2. The House of Representatives has how many voting members?
3. What is one responsibility that is only for U.S. citizens?
4. Who wrote the Declaration of Independence?
5. What territory did the U.S. buy from France in 1803?
6. Who was the President during World War I?
7. Name one of the two longest rivers in the U.S.
8. Why does the flag have 13 stripes?
9. When do we celebrate Independence Day?
10. When was the Constitution written?

Posted On: September 20, 2012

Administrative Appeals Office (AAO) Processing Times

Administrative Appeals Office (AAO) Processing Times were released with processing dates as of September 1, 2012.

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 15 months; for an I-129 L1 Appeal - 17 months. The current processing time for an I-140 EB2 Appeal for an Advanced Degree Professional is 8 months; for an I-140 EB3 Appeal for a Skilled or Professional Worker is 31 months.

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

Posted On: September 19, 2012

S. 3245 – 3-year Extension of EB-5, E-Verify, Religious Worker, and Conrad State 30 J-1 Visa Waiver Programs (Updated 9/14/12)

Both the US House and Senate have passed the bill S.3245, which provides a 3-year extension to the following programs:

1. EB-5 Regional Center program - The Immigrant Investor Pilot Program (“Pilot Program”) was created by Section 610 of Public Law 102-395 (Oct. 6, 1992), and has been extended through Sept. 30, 2012. EB-5 requirements for an investor under the Pilot Program are essentially the same as in the standard EB-5 investor program, except the Pilot Program provides for investments that are affiliated with an economic unit known as a “Regional Center.” Investments made through regional centers can take advantage of a more expansive concept of job creation including both “indirect” and “direct” jobs.

2. E-Verify - an internet-based program used by an employer to verify an employee's identity and to establish that the worker is eligible to accept employment in the United States.

3. Special Immigrant Non-minister Religious Worker program – a limit of 5,000 workers who may be issued a special immigrant non-minister religious worker visa during each fiscal year under the (EB-4) visa classification.

4. Conrad State 30 J-1 Visa Waiver program - allows J-1 medical doctors to apply for a waiver of the 2-year home residence requirement upon completion of the J-1 exchange visitor program to work in underserved areas in the US.

The measure now goes to the President for signature.

Source of Information: "AILA InfoNet Doc. No. 12080343 (posted Sep. 14, 2012)"

Posted On: September 18, 2012

Social Security Number — Deferred Action for Childhood Arrivals

If you are granted Deferred Action status and after you are issued an Employment Authorization Card (I-765), you may apply for a Social Security Number. You must apply in person at your local Social Security office and must bring your newly issued I-765 and proof of age and Identity. To prove age and identity you must show an original or certified copy of one of the documents listed below.
• Foreign birth certificate;
• Foreign passport;
• U.S. military record;
• U.S. military identification card;
• Religious record showing age or date of birth;
• U.S. driver’s license;
• U.S. state-issued identification card;
• School record showing age or date of birth;
• School identification card; or
• Copy of medical record.

For further details read the original publication (http://www.socialsecurity.gov/pubs/deferred_action.pdf)

Posted On: September 17, 2012

Updated Service Center Processing Times

Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Service Centers were released on September 13, 2012 with processing dates as of July 31, 2012.

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 provided 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: September 14, 2012

MVP LAW GROUP – Immigration Q&A Forum, Friday, September 14, 2012

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

Question #1 – Employment Based Immigration – Green Card: Biometrics
The fingerprints that I gave the USCIS a while ago are set to expire soon. Should I make an Info Pass appointment at my local USCIS office to give them a new set of fingerprints?

Answer #1
As written on the I-797C, Notice of Action, in some types of cases USCIS requires biometrics. In such cases, 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 #2 – J-1 Visa
I have a J1 visa and some things have occurred and now my sponsor wishes to cancel my visa. My question is what is the time period that I have to leave the country without incurring any unlawful presence?

Answer #2
Considering the circumstances, if your visa was cancelled, you should make arrangements to leave immediately. If your visa has expired, which is different, you should make arrangements to leave within 30 days of the expiration of your J1 visa, this time period is called a ‘grace period.’


Question #3 – Non-Immigrant Visas
Are a B-1 and an H-1B visa interchangeable as far as my ability to work in the United States?

Answer #3
NO. A B-1 visa is reserved for Business visitors who are not allowed to be gainfully employed in the United States. B1 visa holders are limited in the actions that they may partake in while in the U.S. as a business visitor. In order for them to be able to work (gainful employment) while in the U.S. a work visa is required. An H-1B nonimmigrant visa is a work visa reserved for specialty occupation foreign workers.


Question #4 – Green Card: Travel
We just applied for my husband’s green card. Can he travel back home to visit family while the I-485 is pending?

Answer #4
If you included Form I-131 in the Adjustment of Status petition for your husband, then once Form I-131 is approved, he should be able to travel back home to visit his family while his I-485 remains pending. Form I-131 is called Advance Parole, the document will allow him to exit and enter the United States for the validity period listed on the document.


Question #5 –Temporary Work Visa: H-1B
What should I do if I am fired from my job while in the United States on an H-1B visa?

Answer #5
If you have been fired from your job while in the United States your employer is liable to pay for your return transportation to your country of residence. Your employer is also responsible for informing the USCIS that you are no longer an employee. Once the USCIS receives this information, they will revoke the underlying H-1B.


Question #6 – Green Card: Family Based
My EB-2 priority date is January 18, 2010 and I have a pending I-485 application. My fiancé and I are getting married in February 2013. Since my I-485 is not approved yet, I heard thru the online forums that it is possible to include her in my green card application so that both of us can get our green cards when my priority date is current. Is that true? If so, when and how should I start the process?

Answer #6
You will need to wait for your priority date to become current before you are able to file your spouses’ I-485, Adjustment of Status application.


Question #7 – DACA
I think I am eligible under DACA. Do you think given the risks, I should file my application?

Answer #7
Only YOU can make the decision of whether or not to file your application. I would recommend that you speak with a qualified Immigration Attorney first to discuss your eligibility and the risks involved in submitting a DACA Application to the USCIS. Please feel free to contact our office.


Question #8 – Tourist Visa
How do I provide proof of return, if I have gone home after being on a tourist visa?

Answer #8
When you exit the United States, you hand over your I-94, Arrival-Departure Document. When you enter your home country, your passport is stamped with the date of your arrival. This passport stamp serves as proof of your return to your home country.


Question #9 – Student Visa (F1)
Should I apply for a student visa before or after I am accepted to an institution in the U.S.? And approximately how much time should be in between when I apply for the visa and when I plan on coming to the States?

Answer #9
You should apply for a student visa after you are accepted into an SEVP certified institution in the United States. The School will assist you in completing the necessary paperwork and obtaining the appropriate papers (Form I-20) for you to obtain your student visa, enter the U.S. and begin your education in the U.S. Students are encouraged to apply for their visa early to provide ample time for visa processing. Students should note that Embassies and Consulates are able to issue your student visa 120 days or less, in advance of the course of study registration date. Students should be advised of the Department of Homeland Security regulation which requires that all initial or beginning students enter the U.S. 30 days or less in advance of the course of study start/report date as shown on the Form I-20.


Question #10 – Temporary Work Visa: H-1B
Can I travel in and out the country at free will while on an H-1B visa?

Answer #10
You may travel in and out of the U.S. while on the H-1B visa if you have a valid H-1B visa stamped in your passport; however, we recommend that you limit your international travel to emergency/vacation purposes. Customs and Border Patrol (CBP) is the agency that grants or denies re-entry into the U.S.


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

Our next “Immigration Q & A Forum” is scheduled for Friday, September 28, 2012!

Please remember to submit your questions/comments on our H1B Visa Lawyer blog!

Posted On: September 14, 2012

The U.S. Embassy Announces a New Visa Processing System throughout India

On September 5, 2012, the United States Embassy in India announced it will begin using a new visa processing system. The new system will standardize procedures and simplify fee payments. Appointment scheduling will be completed by phone or through the website, www.ustraveldocs.com/in. The new visa processing system for India will be available beginning September 26, 2012. This system streamlines the visa process to help meet the increased demand for U.S. visas by offering more online services. One difference to note is that first-time applicants will need to schedule two appointments; one for fingerprinting and one for the consular interview.

For further details read the original press release (http://newdelhi.usembassy.gov/pr090512.html).

Posted On: September 13, 2012

DHS Advises On Various DACA Process Questions

The Department of Homeland Security (DHS) has advised how they will handle and process Deferred Action for Childhood Arrivals (DACA) requests. AILA has listed these advisories below:

• DHS has advised AILA that its current internal goals for processing of DACA requests are:
o One month from receipt issuance to biometric appointment (the first round of biometrics started on September 6, 2012)
o Four to six months average processing time for the initial group of DACA deferred action requests. DHS anticipates that this timing may slow down as the volume picks up.

• USCIS will first issue notices regarding the exercise of discretion to grant deferred action, then will process the EAD applications.

• DHS indicates that we can expect to start seeing adjudications of the requests for exercise of discretion in the next couple of weeks.

• USCIS is working on another round of FAQs to address some of the issues being raised as people are working with the actual process.

• Where requests are not approved on the initial submission, USCIS intends to send either a Request for Evidence (RFE) or Notice of Intent to Deny (NOID). It will go straight to denial only where the individual is clearly ineligible (the example given was if the requester was born in 1972).

• USCIS will notify those whose requests are denied by using a checklist with the reason(s) for the denial checked off.

Source of Information: "AILA InfoNet Doc. No. 12090747 (posted Sep. 7, 2012)"

Posted On: September 12, 2012

OCTOBER 2012 VISA Bulletin

The Department of State has released its latest Visa Bulletin.

Click here to view the October 2012 Visa Bulletin.

The October 2012 Visa Bulletin shows employment based second preference (EB-2) as oversubscribed and employment based third preference (EB-3) visas are also listed as oversubscribed.

**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.

Posted On: September 10, 2012

MVP "Immigration Q & A Forum" - This Friday, September 14, 2012

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, DREAMers, Deferred Action for Childhood Arrivals, priority dates, the monthly visa bulletin, adjustment applications, etc., 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, September 14, 2012. 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. Therefore, your communication with us through this forum will not be considered as privileged or confidential.

Posted On: September 7, 2012

Is an Amended H-1B Petition Required When the Worksite Changes?

The question of whether a new or amended H-1B petition is required when the beneficiary’s worksite changes has been raised with USCIS at the October 5, 2011 stakeholders meeting (AILA Doc. No. 11100570) and again at the March 29, 2012 stakeholders meeting (AILA Doc. No. 12033045). AILA supports the position taken in the October 23, 2003, Efren Hernandez letter, that an amended Form I-129 is not needed for geographic moves so long as the following conditions are met:

1) an LCA has been filed and certified for the new location prior to the employee’s move to the new location;

2) the LCA has been posted in accordance with DOL regulations;

3) other wage and hour obligations are met; and

4) there are no other material changes to the terms and conditions of employment (AILA Doc. No. 03112118).

In addition, 20 CFR §655.735 provides guidance on short-term placement of H-1B nonimmigrants at places of employment within and outside the areas of intended employment listed on the LCA.

At the March 29, 2012 meeting, USCIS stated that it is continuing to review and develop new guidance on amended H-1B petitions as part of its overall policy review and that it may issue additional guidance on this issue in the USCIS Policy Manual. However, the California Service Center (CSC) appears to be taking the position that an amended petition must be filed for a geographic job location change. At a CSC Stakeholder meeting held on August 10, 2011, the CSC stated that 8 CFR §214.2 requires an amended or new petition to reflect material changes in the terms and conditions of an H-1B petition. Generally, it is the position of the CSC that an amended H-1B petition should be filed if an LCA is filed after approval of an H-1B petition. (AILA Doc. No. 11093037).

Practitioners are reporting site audits and revocation of petitions where USCIS could not find the beneficiary of the petition at the worksite listed in the initial petition. Despite documentation of an LCA for the beneficiary’s new worksite, as well as additional documentation supporting the worksite change, the CSC nevertheless has revoked the H-1B petition stating that an amended petition must be filed because the new worksite was not shown on the original petition.

Until USCIS headquarters issues a definitive answer as to whether a new or amended petition is needed for a change in location, MVP Law Group will continue to exercise caution by advising their clients to file a new LCA and amended petition prior to the geographic relocation of the employee.

Source of Information: "AILA InfoNet Doc. No. 12083048 (posted Aug. 30, 2012)"

Posted On: September 6, 2012

Immigration Highlights from the Republican and Democratic Party Platforms

In the past two weeks the Republican and Democratic Parties have released their official 2012 Party Platforms. Here we’ve compiled the major points of each Party’s platform that relate to immigration.


The Republican Party Platform on Immigration (Summary)

• Supports the rule of law and opposes any form of amnesty.

• Top priority is security at borders and ports of entry to prevent drug trafficking, illegal immigration, and terrorism. Calls for completion of the double-layered fencing on the southern border

• Supports “humane procedures to encourage illegal immigrants” to leave the U.S. Supports increased enforcement against overstays.

• Opposes the current administration’s 2012 policy of granting deferred action to certain individuals who came to the U.S. as children.

• Supports tougher penalties for ID theft, human trafficking and for those who deal in fraudulent documents.

• Supports long-term detention of those who cannot be deported to their country of nationality.

• Supports use of the 287(g) cooperation agreements with states and localities.

• Opposes the Obama administration’s “assaults on state governments” on immigration. Opposes the ongoing Department of Justice litigation against state immigration laws.

• Calls for denying federal funding to “sanctuary cities” and to universities that offer in-state tuition rates to illegal immigrants.

• Supports making E-verify mandatory nationwide. Supports state immigration enforcement efforts in the workplace.

• Supports making the SAVE program mandatory. SAVE verifies the lawful presence of applicants for State or federal government entitlements or IRS refunds.

• Calls for English as the nation’s official language.

• Supports granting more visas to holders of advanced degrees in science technology, engineering and math fields.

• Willing to consider a guest worker program to meet labor needs.


Democratic Party Platform on Immigration (Summary)

• Supports comprehensive immigration reform with the following components: bring undocumented immigrants out of the shadows and require them to get right with the law, learn English, and pay taxes in order to get on a path to earn citizenship; and create a system for allocating visas that meets the nation’s economic needs, keeps families together, and enforces the law.

• Supports the DREAM Act and continuing to provide deferred action to undocumented people who came to the U.S. as children.

• Plans to hold employers accountable for whom they hire.

• Prioritizes enforcement against criminals who endanger communities instead of immigrants who do not pose a safety threat.

• Supports family reunification as a priority. Supports the current administration’s streamlining of the process of legal immigration for immediate relatives of U.S. citizens and the enhanced opportunities for English-language learning and immigrant integration.

• Supports continued litigation to oppose state enforcement laws that interfere with federal immigration law.

• Supports inclusion of lesbian, gay bisexual, transgender relationships in the definition of family in immigration policy to protect bi-national families threatened with deportation.

• Asserts that the southwest border is more secure than at any time in the past twenty years, unlawful crossings are at a 40-year low, and that the Border Patrol is better staffed than at any time in its history.

Source of Information: "AILA InfoNet Doc. No. 12090541 (posted Sep. 5, 2012)"

Posted On: September 5, 2012

H-1B CAP Processing Update – USCIS Is Trying

The American Immigration Lawyers Association (AILA) Service Center Operations (SCOPS) liaison committee expressed concern to USCIS that the significant delays in adjudicating cap-subject H-1B petitions at the two service centers will cause disruptions for employers who rely on the arrival of new H-1B workers and disruptions for the continued employment of F-1 practical trainees as H-1B workers, on October 1, 2012, initiate, continue, or expand projects. SCOPS replied that USCIS understands AILA’s concerns about the processing times for cap-subject H-1B petitions, including cap-gap and consular notification cases.

Service Center Operations has made adjudication of these cases by October 1st a top priority by adding additional resources as available. USCIS states that service centers are doing their best to adjudicate these cases as soon as possible. AILA thanked SCOPS for that information and alerted them that petitioners are concerned that they will be forced to upgrade to premium processing.

Source of Information: "AILA InfoNet Doc. No. 12090443 (posted Sep. 4, 2012)"