H1B Visa Lawyer Blog

Administrative Appeals Office (AAO) Processing Times were released with processing dates as of January 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 22 months; for an I-129 L1 Appeal - 22 months. The current processing time for an I-140 EB2 Appeal for an Advanced Degree Professional is 26 months; for an I-140EB3 Appeal for a Skilled or Professional Worker is 35 months.

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

Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Service Centers were released on January 25, 2012 with processing dates as of November 30, 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 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.

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, the monthly visa bulletin, adjustment applications or the debate focused on Ending Birthright Citizenship, please contact us by submitting your question/comment/viewpoint in our comment box provided on our H-1B Visa Lawyer Blog.

Our next “Q & A Forum” will take place this Friday, February 3rd, 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. And, therefore, your communication with us through this forum will not be considered as privileged or confidential.

The United States Immigration and Customs Enforcement (ICE) recently updated the list of Student and Exchange Visitor Program (SEVP) approved schools. The schools listed have all been certified to participate in the program.

The program allows foreign students interested in obtaining an education in the United States to complete a visa petition, pay the required fee, attend a visa interview at a U.S. Consulate, and enroll in a U.S. College or University.

Interested Foreign students: There is a process in obtaining a student visa, but it is not a difficult one. The student must first obtain Form I-20 from the U.S. College or University from which he/she intends to enroll, pay the required visa fee (Form I-901) and contact a local U.S. Consulate/Embassy to schedule an interview. The SEVP procedures differ among U.S. Consulates/Embassies; contact your U.S. Consulate/Embassy NOW to determine its particular procedure on applying for a visa before planning for the interview.

Interested Schools: There is a separate process to obtain F & M Certification. Authorized school officials must obtain and complete Form I-17. An overview of the SEVP Certification process can be found on the ICE website. If approved, the school will be certified and allowed to issue Form I-20 to qualifying foreign students.

If you need assistance or an explanation of the SEVP/student visa, please contact our office to schedule a consultation.

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 – General
If I do not speak English, when I go to my interview for my visa, will a translator be provided for me or will I need to provide one myself?

Answer #1
It depends upon the type of visa you are applying for and from where you are applying for the visa. Most Consulates have counters were different languages are spoken. If you are applying in the U.S., when you go to your visa interview, you will need to provide a translator for yourself. This translator should not be an interested party in your case.

Question #2 – Consular Processing
What is the purpose of consular processing?

Answer #2
Consular Processing allows applicants who have been approved for an Immigrant Visa, with an Immigrant Visa immediately available - the ability to apply at the U.S. Department of State Consulate abroad in order to come to the United States and be admitted as a Permanent Resident.

Question #3 – Consular Processing vs. AOS
What is the difference between consular processing of immigrant visa and adjustment of status?

Answer #3
Adjustment of Status is an alternate process by which an individual who has been approved for an Immigrant visa with an Immigrant visa immediately available,the ability to apply from within the United States to adjust status to that of a Permanent Resident without returning to their home country to process paperwork.

Question #4 – Temporary Work Visa
If I plan to continue working for my employer in the United States, at what point should I apply for an extension?

Answer #4
It depends upon which type of nonimmigrant visa you are utilizing. For the H-1B (Specialty Occupation) nonimmigrant visa, you are able to apply for an extension at least 6 months prior to the visa’s expiration date.

Question #5 – Premium Processing
How does premium processing for the H-1B visa work?

Answer #5
Premium Processing is an option that allows a case to be adjudicated within a period of 15 calendar days from the date the USCIS receipted the case. For an additional USCIS filing fee of $1225.00, the USCIS will review the case and make a decision within the specified time period. If an RFE is issued, once the response is received by the USCIS, the clock begins to run again for 15 calendar days. Regular processing is currently taking 2-3 months from the date of filing to be adjudicated by the USCIS.

Question #6 – General
Is it necessary that I have someone sponsoring me when I apply for a visa?

Answer #6
It depends, as almost all types of visas require sponsorship whether employment based or family based.

Question #7 – Visitor Visa v. Temporary Work Visa
Are a B-1 and an H-1B visa interchangeable as far as my ability to work in the United States?

Answer #7
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 #8 – General
My sister is filling up the form DS 160 for H1b through her multinational company in India. What should she mention in the question, “Do u have a relative in USA”? I was on J1 visa for 3 years and got F1 approved while in USA only. But unfortunately, I lost my F1 visa due to Tri Valley University, but I am still enrolled as full time student in a school in USA and the F1 reinstatement application is still pending with USCIS. Will she face further questions on my visa details or terminated SEVIS during visa interview? Can it jeopardize her prospects of getting visa?

Answer #8
Your sister should be truthful in the completion of her DS-160 application. Your status should not affect her status. This ultimately is an application and an interview regarding her potential employment and should not concern you. It is not her business to know all of the details of your visa status. The questioning from the visa officer should be centered on her, not her family or your status. Your visa status/circumstances should not jeopardize her attainment of an H1B nonimmigrant visa.

Question #9 – Green Card
My EB-3 priority date is October 18, 2006 and I have a pending I-485 application filed back in July 2007 when all categories were current. My fiancé and I are getting married in February 2012. Since my I-485 is not approved yet, I heard that it is possible to include him 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 #9
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 #10 – Schedule A Green Card
Hi! I would like to ask regarding the schedule A visa for Registered Nurse. I am a Filipino citizen, residing at spring, Texas, USA. My visa is H1-B as medical Technologist and i just came last November 2011.I have SSN already. I am a registered Nurse also in the US with CGFNS visa screen certificate and NCLEX passer, licensed in the states of California and Texas.. My employer just mentioned to me about the green card application for Registered nurses. Is it possible for my case to apply for the said green card application? Thank you.

Answer #10
Based on the information you have supplied, you seem to be eligible as a Registered Nurse to obtain permanent residency through the Schedule A Green Card category.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, February 3, 2012!
Please remember to submit your questions/comments on our h1bvisalawyer blog.

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, the monthly visa bulletin, adjustment applications 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, January 20th, 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. And, therefore, your communication with us through this forum will not be considered as privileged or confidential.

As reported on the U.S. Consulate General Chennai, India website - The U.S. Consulate General in Chennai will no longer process Immigrant Visa petitions as of January 1, 2012. The U.S. Embassy in New Delhi and U.S. Consulate in Mumbai will become the only acceptance centers in India for Immigrant Visas. The Immigrant Visa allows an individual to live and work in the United States on a permanent basis, as well as provides the immigrant the opportunity to work towards U.S. citizenship.

Examples of Immigrant Visa based petitions are those that work toward family reunification of parents, children and siblings. These petitions also include Fiancée and the unique employer category, where one’s employer can petition for the individual and their dependents to immigrate to the United States.

This change affects only the locations for processing of Immigrant Visas; it does not change the law or policy for visa processing.

*The American Immigration Lawyers Association (AILA) contacted the Consulate regarding the change in procedure, please see the questions AILA asked and the answers received, provided below:

Why the change?
This change is in order to streamline the immigrant visa (IV) issuance process and is part of the U.S. Government's ongoing effort to provide efficient visa services throughout India. It does not affect any other category of visa, including non-immigrant visas for work, study, or tourism. The change brings India in line with other large countries, including Mexico and China, where IV processing is administered in a more central fashion within the Mission.

When will IV interviews stop in Chennai?
The last day for IV interviews at U.S. Consulate General Chennai was on December 30, 2011.

I have a pending application. Where should I send my follow up documentation?
If you have a pending application and were requested to provide additional documents, please contact the U.S. Consulate General Chennai via e-mail at ChennaiIVU@state.gov

Pending applications will be processed in Chennai through March 30, 2012. If an applicant has not completed his/her application process by March 30, 2012, the case will be transferred to Mumbai. The IV unit in Chennai has been working aggressively since October 2011 to bring closure to pending cases.

Source of Information: AILA InfoNet Doc. No. 12011064 (posted Jan. 10, 2012)

The Department of State has released its latest Visa Bulletin.

Click here to view the February 2012 Visa Bulletin.

The February 2012 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.

**There has been significant forward movement in the EB-2 category for the past 4 visa bulletin issues.

**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.

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 – H-1B Nonimmigrant Work Visa
Any H-1B visas left under quota for this year?

Answer #1
The H-1B FY2012 Quota was reached on November 22, 2011, accordingly, you will have to wait until April 1, 2012 to submit an H-1B CAP petition for employment beginning October 1, 2012.

Question #2 – J-1 Visa
My niece has a J1 visa and some things have occurred and now the sponsor wants to cancel her visa. My question is what is the time period that she has to leave the country without incurring any unlawful presence?

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

Question #3 – Travel
We just applied for my wife’s green card (she just became my wife here in U.S.). Can she travel back home to visit family while the I-485 is pending?

Answer #3
If you included Form I-131 in your Adjustment of Status petition for your wife, then once Form I-131 is approved, she should be able to travel back home to visit her family while her I-485 remains pending.

Question #4 – Unlawful Presence in USA
I cannot remember the specifics regarding unlawful presence towards the 3yr and 10yr bars, can you provide those time periods?

Answer #4
If an applicant remains in the US unlawfully (without authorization) for more than 180 days, they may be subject to the 3 year bar. If an applicant remains in the US unlawfully (without authorization) for more than 360 days (1 year), they may be subject to the 10 year bar.

Question #5 – Temporary Work Visa – H-1B Nonimmigrant Visa
I have exhausted my 6 years on H-1B visa and returned to my home country. I have been here for a little less than a year; can I now apply for a new H-1B visa under the current cap to return to U.S.? Please let me know so we can move forward immediately.

Answer #5
According to the regulations, once you have exhausted the 6 year limit on H-1B, you must return to your home country for one (1) year before you can petition again for an H-1B nonimmigrant visa. Additionally, once you are eligible, you will have to wait until April 1, 2012 in order to submit your new H-1B visa petition under the FY2013 CAP with employment beginning October 1, 2012.

Question #6 – Marriage Based Immigration – Conditional Permanent Resident
Please let me know the procedure for removing conditions based on marriage to a U.S. citizen. When can I file? I am married to a U.S. Citizen and my conditional green card is set to expire in May 2012.

Answer #6
You can file to remove the conditions 90 days prior to the expiration of your second anniversary as a conditional resident. It is very important that you file Form I-751 (Petition to Remove the Conditions on Residence) within the 90 day window of time. If you file too early, the USCIS will send your application back. You may file at any time during the 90 day window, but it is suggested that you file fairly early in the window. If you fail to properly file Form I-751 within the 90 day period, your conditional resident status will automatically be terminated and the USCIS will order removal proceedings against you and a hearing will be conducted where you will be given the opportunity to rebut the government’s allegations against you.

Question #7 – Employment Based Immigration – Employment Authorization Document (EAD)/Advance Parole Document (AP)
My EAD and AP are expiring this year. When is the earliest that I can file my renewal petitions?

Answer #7
According to the USCIS, you can petition for an EAD renewal no more than 120 days in advance of the expiration of your current EAD. For instance, if your current EAD card expires on October 16, 2012, the earliest you can file is on or after June 19, 2012.

According to the USCIS, you can petition for AP renewal no more than 30 days in advance of the expiration of your current AP or the USCIS could issue an RFE requesting your current AP document before issuing a new AP document.

Question #8 – Temporary Work Visa – H-1B Nonimmigrant Visa
One of our IT employees is going on vacation from 03/2012 – 04/2012 and we are getting his h1b ext. in June 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 #8
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 6/2012, 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 #9 – Employment Based Immigration – Green Card
They accepted our petition to remove the conditions on my conditional residence. I just received my GC and my name is spelled wrong on the card. How do I fix this?

Answer #9
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 #10 – Employment Based Immigration – Green Card: Biometrics
The fingerprints that I gave the USCIS 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 #10
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.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, January 20, 2012!
Please remember to submit your questions/comments on our h1bvisalawyer blog.

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, the monthly visa bulletin, adjustment applications 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, January 6th, 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. And, therefore, your communication with us through this forum will not be considered as privileged or confidential.

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

Senate Bills

S. 1856
Introduced by Sen. DeMint (R-SC) on 11/10/11
Prohibits federal funding for lawsuits seeking to invalidate specific State laws that support the enforcement of federal immigration laws.

Families First Immigration Enforcement Act (S. 1949)
Introduced by Sen. Kerry (D-MA) on 12/07/11
Provides for safe and humane policies and procedures pertaining to the arrest, detention, and processing of aliens in immigration enforcement operations.

Science, Technology, Engineering, and Mathematics– STEM Visa Act of 2011 (S. 1986)
Introduced by Sen. Bennet (D-CO) on 12/13/11
Amends INA to promote innovation, investment and research in the United States.

Irish Recognition and Encouragement Act of 2011- IRE Act (S. 2005)
Introduced by Sen. Brown (R-MA) on 12/15/11
Authorizes the Secretary of State to issue up to 10,500 E-3 visas per year to Irish nationals.

House Bills

H-2A Improvement Act (H.R. 3232)
Introduced by Rep. Owens (D-NY) on 10/14/11
Includes within the H-2A nonimmigrant category an alien coming temporarily to the United States to work as a sheepherder, goat herder, or dairy worker. The bill also exempts an employer filing a petition to employ such a worker from the requirement to show that the position is of a seasonal or temporary nature.

Deport Convicted Foreign Criminals Act of 2011 (H.R. 3256)
Introduced by Rep. Poe (R-TX) on 10/25/11
Directs the Secretary of Homeland Security to report quarterly to Congress regarding each country that has refused or unreasonably delayed repatriation of an alien. The bill also prohibits the Secretary of State, upon the passage of specified periods of time, from issuing certain nonimmigrant (including certain diplomatic) visas and immigrant visas to a citizen, subject, national, or resident of a listed country.

Haitian Emergency Life Protection Act of 2011- H.E.L.P. Act (H.R. 3297)
Introduced by Rep. Clarke (D-NY) on 11/01/11
Amends the INA with respect to V visa (spouses/children of LPR who come to the United States to wait for completion of immigrant visa process) nonimmigrants to include certain Haitian nationals whose petition for a family-sponsored immigrant visa was approved on or before January 12, 2010.

Foster Children Opportunity Act (H.R. 3333)
Introduced by Rep. Stark (D-CA) on 11/03/11
Requires state plans for foster care and adoption assistance to have procedures to assist alien children in the child welfare system achieve special immigrant juvenile status and LPR status before exiting foster care.

Visa Improvements to Stimulate International Tourism to the United States of America- VISIT USA (H.R. 3341)
Introduced by Rep. Hirono (D-HI) on 11/03/11
Provides qualifying nationals of China (PRC) with a five-year multiple entry/exit visitor visa. The bill also requires such persons to be screened through the automated electronic travel authorization system.

Enhanced Border Security Act (H.R. 3401)
Introduced by Rep. Mack (R-FL) on 11/10/11
Directs the Secretary of State to submit to Congress a counterinsurgency strategy to combat the operations of transnational criminal organizations in Mexico.

American Growth, Recovery, Empowerment, and Entrepreneurship Act- AGREE Act (H.R. 3476)
Introduced by Rep. Hanna (R-NY) on 11/18/11
Amends Internal Revenue Code to extend certain tax expenditure provisions for business taxpayers. Also, amends INA to eliminate the per country cap for employment-based immigrants and increase the per country cap for family-based immigrants to 15% of the total number.

Religious Worker Visa Reciprocity Act of 2011 (H.R. 3557)
Introduced by Rep. King on 12/02/11
Requires the country of origin of certain special immigrant religious workers to extend reciprocal immigration treatment to United States nationals.

Immigration and Naturalization Investment Ventures for Engineering, Science, and Technology- INVEST in America Act (H.R. 3692)
Introduced by Rep. Schiff (D-CA) on 12/15/11
Establishes an entrepreneur-based immigrant category for alien entrepreneurs who have completed or are in the process of completing a degree in Science, Engineering, Math or a technology-related field.

Save Our Small and Seasonal Businesses Act of 2011 (H.R. 3718)
Introduced by Rep. Keating (D-MA) on 12/16/11
Prioritizes certain returning workers for purposes of the numerical limitation on H-2B temporary workers.

New Illegal Deduction Elimination Act- New IDEA Act (H.R. 3720)
Introduced by Rep. King (R-IA) on 12/16/11
Amends the Internal Revenue Code of 1986 to clarify that wages paid to unauthorized aliens may not be deducted from gross income.

H.R. 3761
Introduced by Rep. Thompson (D-CA) on 12/20/11
Amends the INA to protect the well-being of soldiers and their families

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 – H-1B Nonimmigrant Work Visa
After the I-129 was received by uscis for review from the DOS, it was on the post decision stage. now the uscis sent me an email that they mailed a duplicate copy of their decision on the case or the instructions to follow if it is still pending. My case is now on acceptance stage. why is my case back to acceptance stage?

Answer #1
When a case is returned by the DOS to the USCIS, the USCIS is afforded the opportunity to review the case and determine whether to uphold their original decision (approval) or to revoke the approved filing. If they decide to revoke the petition, the USCIS will issue to the Petitioner or Authorized Representative a Notice of Intent to Revoke outlining the reasons for revocation. It is the burden of the Petitioner or Authorized Representation to present evidence to overcome the allegations/reasons for revocation. Since the USCIS is reviewing the case, this could explain why the case status indicates ‘Acceptance Stage.’

Question #2 – H-1B Nonimmigrant Work Visa
How long does it typically take for the USCIS to review an H1 case that has been returned by the Department of State? When can we contact USCIS?

Answer #2
The USCIS has indicated that when cases are returned to them from the DOS, those cases are reviewed and processed when time and resources allow. Pursuant to the USCIS National Customer Service Center (1-800-375-5283), you may initiate a Service Request after waiting 180 days from the date your case is returned to the USCIS.

Question #3 – Travel
I am planning on traveling out of US for short trip. I heard from friends that I may not be able to obtain a new visa stamp for my recently approved I-129 and come back.

Answer #3
If you MUST travel on H-1B status, we recommend that you have the following: at least two months’ worth of pay stubs, a copy of the approved H-1B petition, an original employment verification letter, the original approval notice, and any other documentation that would demonstrate compliance with the laws governing the H-1B program and the establishment of a bona fide job opportunity, and a legitimate employer-employee relationship.

Question #4 – H-1B Nonimmigrant Work Visa
Any H-1B visas left under quota for this year?

Answer #4
The H-1B FY2012 Quota was reached on November 22, 2011, accordingly, you will have to wait until April 1, 2012 to submit an H-1B CAP petition for employment beginning October 1, 2012.

Question #5 – Employment Based Immigration – Green Card
My Priority date will be current soon. I am prepared to file my I-485, what are the associated USCIS filing fees? Do I have to pay for EAD and AP separately?

Answer #5
You will need to make payment in the amount of $1,070.00 or less depending upon your age, which will cover the I-485 processing, the biometrics, the employment authorization document (EAD) processing and the Advance Parole document (AP) processing.

Question #6 – Temporary Work Visa – H-1B Nonimmigrant Visa
I have a student on OPT currently working for my company. Her OPT will expire in July of 2012. I need to apply for her H-1B but wasn’t able to make it under this CAP. Will she have to return home prior to October 1, if I file her under the new cap in April 2012?

Answer #6
According to the regulations, an F-1 student who is the beneficiary of an H-1B petition and who has timely filed a Change of Status petition will have his/her status and work authorization (if in OPT) automatically extended until October 1st of the following fiscal year so that there is no “gap” between the time her F-1 stay would have expired and the October 1 start date for the H-1B.

Question #7 – H-1B Nonimmigrant Work Visa
My current H-1B visa expires on 1/14/2012 and I’ve filed for an extension in late October and received a receipt for it. Can I continue working without the new approval?

Answer #7
Yes, under regulation 8 C.F.R. §274a.12(b)(20), a person lawfully employed under A-3, E-1,E-2,E-3,G-5, H-1B, H-2A/B, H-3, I, J-1, L-1, O-1/O-2, P-1/P-2/P-3, R or TN status who timely files an application for extension consistent with 8 C.F.R. §214.1, is automatically given 240 days from the date of expiration. During 240 days, there is no INA 245(c) bar to adjustment of status.

Question #8 - Employment Based Immigration - Green Card
My priority date is current as of the January 2012 visa bulletin. I heard through various forum posts that we can call them and provide details of our case so that based on first come first call they would process and issue the GC faster, is this true?

Answer #8
You cannot call the USCIS to speed up the processing/issuance of your Green Card. Priority dates were established for this exact purpose. Each individual has a specific priority date which was issued to them when their Labor application was submitted to the Department of Labor (DOL). Only when the applicant’s priority date becomes current will the USCIS begin to process the applicant’s I-485 paperwork and thereafter may issue the Green Card.

Question #9 – Employment Based Immigration – Green Card
Is an approved I-765 any indication that the I-485 is getting close to approval and would eventually be approved without a hitch or are they autonomous processes?

Answer #9
They are separate processes. Therefore, to put it simply, an approved I-765 is not an indication that the I-485 is getting closer to being approved.

Question #10 – Temporary Work Visa – TN Visa
What is required to obtain a TN visa at the border? What documents do I need to have to get the visa?

Answer #10
You must establish that the position in question requires the employment of a person in a professional capacity, consistent with the NAFTA Chapter 16, Annex 1603, Appendix 1603.d.1. You will need to carry your educational documents (degree/transcripts/license, if applicable) and work experience documents (experience letters, resume, tax documents, etc.) to evidence your qualifications for the position. You will also need to present an offer letter and/or employment agreement from the company which clearly explains the position you are seeking to be employed in.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, January 6, 2012!
Please remember to submit your questions/comments on our h1bvisalawyer blog.

The United States Immigration and Customs Enforcement (ICE) recently updated the list of Student and Exchange Visitor Program (SEVP) approved schools. The schools listed have all been certified to participate in the program.

The program allows foreign students interested in obtaining an education in the United States to complete a visa petition, pay the required fee, attend a visa interview at a U.S. Consulate, and enroll in a U.S. College or University.

Interested Foreign students: There is a process in obtaining a student visa, but it is not a difficult one. The student must first obtain Form I-20 from the U.S. College or University from which he/she intends to enroll, pay the required visa fee (Form I-901) and contact a local U.S. Consulate/Embassy to schedule an interview. The SEVP procedures differ among U.S. Consulates/Embassies; contact your U.S. Consulate/Embassy NOW to determine its particular procedure on applying for a visa before planning for the interview.

Interested Schools: There is a separate process to obtain F & M Certification. Authorized school officials must obtain and complete Form I-17. An overview of the SEVP Certification process can be found on the ICE website. If approved, the school will be certified and allowed to issue Form I-20 to qualifying foreign students.

If you need assistance or an explanation of the SEVP/student visa, please contact our office to schedule a consultation.

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, the monthly visa bulletin, adjustment applications or the debate focused on Ending Birthright Citizenship, please contact us by submitting your question/comment/viewpoint in our comment box provided on our H-1B Visa Lawyer Blog.

Our next “Q & A Forum” will take place this Friday, December 23rd, 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.

The Administrative Appeals Office (AAO) Processing Times were released with processing dates as of December 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 22 months; for an I-129 L1 Appeal - 22 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 35 months.

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

The Department of State has released its latest Visa Bulletin.

Click here to view the January 2012 Visa Bulletin.

The January 2012 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.

There has been significant forward movement in the EB-2 category for the past 3 visa bulletin issues. We have received some reliable information from Charles Oppenheim, Chief, Immigrant Visa Control and Reporting Division, DOS, that the upcoming advancement of the cutoff dates in EB-2 for India and China will advance again for the next several bulletin issues. We hope that the trend continues.

**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.

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 – H-1B Nonimmigrant Work Visa
On my H-1B visa, because I am not yet a citizen of the United States, do I still pay federal taxes?

Answer #1
If you are in the U.S. on a nonimmigrant work visa, you pay federal taxes. As an employee of a U.S. company, the employer is responsible for withholding the applicable taxes from your paychecks in accordance with the laws. You must pay federal and state income taxes - You must report all wages, salaries, and tips even if you do not get a Form W-2 from your employer. You must also report all your taxable interest, including interest from banks, savings and loans, credit unions, etc., even if you do not get a Form 1099-INT.

Question #2 – H-1B Nonimmigrant Work Visa
I am from Egypt and working as physical therapist from 10 years and I want to find job as P.T in USA. I am unlicensed P.T in USA. I need H1B Visa. Please answer me. Thanks.

Answer #2
The H-1B FY2012 Quota has been reached, accordingly, you will have to wait until April 1, 2012 to submit an H-1B CAP petition for employment beginning October 1, 2012. You will need to find a sponsoring employer to sponsor your H-1B petition. You will need to come to the U.S. to sit for a licensing exam before acquiring your PT license in the U.S. Once you have a sponsoring employer we can assist you, but we cannot assist you until you find a sponsoring employer.

Question #3 – Travel
My husband works under the visa f1/opt, my son and I have f2 visa. Recently, my husband's company began the process for H1b visa, current status, December 2011, is "initial review.” We would like to leave the country, during this month of December.My questions are: Do our visas and F opt, are still in effect and are valid, while the H1b visa is in the initial review? Can we leave the country and re-enter without any problem? We have the passport, I20 and I94 in order.

Answer #3
I would highly recommend not departing the U.S. while you have an application pending for Immigration benefits. If you do leave the country while your application is pending, the USCIS can consider your departure an abandonment of your case and hence will not approve the extension of status for you, requiring you to obtain visa stamping.

Question #4 – H-1B Nonimmigrant Work Visa
Any H-1B visas left for this year?

Answer #4
The U.S. Citizenship and Immigration Services (USCIS) announced November 23, 2011 that it received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2012. USCIS notified the public that November 22, 2011 was the final receipt date for new H-1B specialty occupation petitions for FY2012. USCIS will reject cap-subject H-1B petitions that arrive after November 22, 2011.

Question #5 – General
If I am in the country on an H-1B visa and I decide to attend college here in the United States, can I continue to work for my H-1B sponsor?

Answer #5
There is a legacy INS letter that states that there is nothing that prevents an H-1B nonimmigrant from attending school so long as it is incidental to the H-1B status. The gist of it is that the main purpose of the individual's stay in the US has to be to work for the H-1B employer. Taking classes on the side will not interfere with that unless it becomes the main purpose. In other words, if it's not specifically prohibited by the regulations, it's permitted.

Question #6 – General
What is the difference between a person who applies for a first preference EB-1 and a person that applies for an H-1B?

Answer #6
The EB1 preference category is a Green Card preference category reserved for Individuals with extraordinary ability in the sciences, arts, education, business or athletics; and Outstanding professors or researchers.
The H-1B is a temporary work visa for nonimmigrants; this nonimmigrant work visa is reserved for individuals who qualify for ‘Specialty Occupations.’ Specialty Occupations are defined as those that require a theoretical and practical application of a body of highly specialized knowledge, and the attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.

Question #7 – H-1B Nonimmigrant Work Visa
Can an H-1B applicant change employers during the visa process?

Answer #7
Yes, an H-1B applicant is free to change employers during the visa process, changing H-1B employers is considered an H-1B transfer, and that petition would not be counted against the CAP, unless they are changing from a CAP EXEMPT employer to an employer who is not CAP EXEMPT.

Question #8 – General
What is the State Department Diversity Visa Program (DV-2013)?

Answer #8
The congressionally mandated Diversity Immigrant Visa Program makes available up to 55,000 diversity visas (DVs) annually, drawn from random selection among all entries to persons who meet strict eligibility requirements from countries with low rates of immigration to the United States.

Question #9 –H-1B Nonimmigrant Work Visa
As a religious worker looking to apply for a visa, do I need to be sponsored by a religious organization prior to applying, or is that only necessary for other professions?

Answer #9
According to the Department of State, Religious workers include persons authorized, by a recognized employing entity, to conduct religious worship and perform other duties usually performed by authorized members of the clergy of that religion, and workers engaging in a religious vocation or occupation. The applicant must be a member of a religious denomination having a bona fide nonprofit religious organization in the U.S.; the religious denomination and its affiliate, if applicable, are either exempt from taxation or qualifies for tax-exempt status; and the applicant has been a member of the denomination for two years immediately preceding applying for religious worker status. The applicant is planning to work as a minister of that denomination, or in a religious occupation or vocation for a bona fide, non-profit religious organization (or a tax-exempt affiliate of such an organization).There is no requirement that individuals applying for "R" visas have a residence abroad that they have no intention of abandoning. However, they must intend to depart the U.S. at the end of their lawful status, absent specific indications or evidence to the contrary. The applicant has resided and been physically present outside the U.S. for the immediate prior year, if he or she has previously spent five years in this category.

Question #10 – H-1B Nonimmigrant Work Visa
If I am a medical professional, and I want to obtain an H-1B visa, what requirements are there for me to practice medicine in the U.S.? Do I need to pass any specialized examinations?

Answer #10
Depending upon your medical profession, you will need to pass any applicable examinations and also obtain the required license to practice in the medical field in the United States.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, December 23, 2011!
Please remember to submit your questions/comments on our h1bvisalawyer blog.

When there are severe disturbances in countries, such as natural disasters, civil unrest, war, or security concerns, U.S. embassies can be forced to change the manner in which they provide their visa services. Currently, visa services are limited in Cote D’Ivoire, Finland, Montenegro, Netherlands Antilles, Saudi Arabia, and Syria.

The U.S. Embassy Abidjan in Cote D’Ivoire is providing limited nonimmigrant visa services for applicants with emergency travel needs. The U.S. Embassy in Helsinki, Finland is undergoing renovations, but provides the options for appointments to be scheduled at the U.S. Embassy Tallinn in Estonia, while its services are limited. In Montenegro, priority is being given to Montenegrin students, business people, and emergency cases. They too offer appointments elsewhere, namely at the U.S. Embassy Podgorica. The U.S. Consulate General Curaçao in the Netherlands Antilles is currently providing nonimmigrant visa services to applicants with Dutch passports, and only those who are applying for certain categories of nonimmigrant visas. For all other nonimmigrant and immigrant visa applications, they are being processesd at U.S. Embassy Caracas, Venezuela. The U.S. Consulate General Jeddah in Saudi Arabia is processing A, G, J, F, and B-1/B-2 visas for diplomats and government officials, employees and representatives to international organizations, government sponsored international exchange visitor programs, students, and businesses and tourists, respectively. Immigrant visa services for all residents of the country are provided at U.S. Embassy Riyadh and other nonimmigrant visa categories are being handled at U.S. Embassy Riyadh as well as U.S. Consulate General Dhahran. In Syria, U.S. Embassy Damascus is providing limited immigrant and nonimmigrant visa services.

Visa services are suspended in Minsk, Belarus until further notice, but nonimmigrant visa applicants resident in Belarus may apply in person at these suggested locations: U.S. Embassy Moscow, Russia; U.S. Consulate General St. Petersburg, Russia; U.S. Embassy Warsaw, Poland; U.S. Embassy Kyiv, Ukraine; and U.S. Embassy Vilnius, Lithuania. Similarly, full visa services are suspended until further notice in Asmara, Eritrea, but nonimmigrant visa applications are being processed for limited categories including A, G, F, and J visas for diplomats and government officials, employees and representatives to international organizations, students, and exchange visitors, respectively. Nonimmigrant visa applicants residing in Eritrea may apply in person at these suggested locations: U.S. Embassy Cairo, Egypt, and U.S. Embassy Nairobi, Kenya. Immigrant visa services for residents of the country are provided at the same locations. All visa services are suspended indefinitely at the U.S. Embassy Tripoli, in Libya.

The United States does not have diplomatic relationships with Iran or North Korea, therefore, there are no U.S. embassies or consulates in these countries. Immigrant visas for residents of Iran are processed at: U.S. Embassy Vienna, Austria; U.S. Embassy Ankara, Turkey; U.S. Embassy Abu Dhabi, United Arab Emirates; U.S. Consulate General Frankfurt, Germany (family-based applicants only); and U.S. Consulate General Naples, Italy. North Korea has no designated U.S. embassy or consulate to accept immigrant or nonimmigrant visa applications. U.S. Embassy Beijing, China has generally processed those requests from North Korea because it is the most convenient location.

The Department of State, being dedicated to the protection of American borders and the safety of American citizens, has 222 visa-issuing embassies, worldwide, that adjudicate millions of visa applications each year. The U.S. recognizes the importance of international travel to the American domestic economy and is taking steps to keep up with the demand for visas; a consular officer may interview over 100 visa applicants per day. Over 9.6 million visas were processed in the 2011 fiscal year. That is a 17% increase in processed visas from the previous fiscal year. The past five years has brought a 234% increase in visa issuances in Brazil, 124% increase in China, 51% increase in India, and a 24% increase in Mexico. The Department of Commerce reports that of the 60 million visitors to the U.S. last year, 35% entered with State Department issued visa. This international travel generated $134 billion in revenue and helped to support 1.1 million U.S. jobs last year. The Department of Commerce also estimates that by 2016, the number of U.S. visitors could reach 88 million.

In order to meet the growing demand of visas, more personnel and resources are being dedicated to visa adjudications especially in China and Brazil in the fiscal year 2012. In China and Brazil, 98 adjudicators are being hired, many of whom already speak Mandarin or Portuguese, as well as expanding facilities at which visas can be processed and applicants can be interviewed.

Student visa interview appointments have wait times less than 15 days. These visas are prioritized because of the social, intellectual, and economic benefits that foreign students bring to the U.S. Foreign students contributed almost $20 billion to the domestic economy in the 2009-10 academic year.

Procedures to expedite interview appointment for urgent business travelers have been established with U.S. officials working closely in more than 100 countries to cut down the processing times for business travelers. More than 3,500 business visa requests were handled by the United States State Department’s Business Visa Center facilities in fiscal year 2011.

The U.S. Department of State touched on the current efforts to gain attention from future international leaders to take advantage of stellar educational opportunities here in the United States, during International Education Week. The State Department also is aware of the social, intellectual, and economic benefits that foreign students bring with them to this country. That being said, the Department’s Bureau of Consular Affairs expedites student visas for those qualified foreign students that will begin their academic program on time. The maximum wait for a student visa is less than 15 days, with the earliest application time for foreign students is 120 days before the academic program begins.

With a current emphasis on international education as a critical part of succeeding in the global marketplace, the Unites States has brought a 9% increase of international education during the 2010/11 academic year as well as $21.3 billion dollars into the domestic economy from foreign students.

An increase in international education promotes mutual understanding and respect between Americans and other international citizens.

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, the monthly visa bulletin, adjustment applications or the debate focused on Ending Birthright Citizenship, please contact us by submitting your question/comment/viewpoint in our comment box provided on our H-1B Visa Lawyer Blog.

Our next “Q & A Forum” will take place this Friday, December 9th, 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.

USCIS Service Center Operations has confirmed that as of November 30, 2011, the California and Vermont Service Centers will once again send all original notices, including I-797 approval notices, to the G-28 attorney or representative of record.

The change will be implemented at the remaining service centers on or before December 5, 2011.

Now that all of the new H-1B visas for the 2012 Fiscal Year have been allocated, What options do Employers who are looking to hire Foreign National Professionals have?

Here are some creative solutions to this problem:

O-1 Visa
The O-1 visa is suited for individuals of extraordinary ability or achievement. The O classification is a useful and flexible alternative to the H-1B program because there is no overall limit on time in the classification and there is no cap. O-1 beneficiaries in the sciences, arts, education, business, or athletics must have extraordinary ability “demonstrated by sustained national or international acclaim.”

E-3 Visa
The E-3 visa classification is limited to Australian Professionals. The E-3 visa is a “specialty occupation” visa similar to the H-1B visa. Therefore to be eligible for the visa, the Australian citizen must possess a bachelor’s degree or higher (or its equivalent) in the specialty and the specialty occupation must require the degree. There is a 10,500 annual limit on the E-3 visa.

L-1 Visa
The L-1 visa is an option for international organizations with offices in the United States who transfer employees to the United States for temporary periods of time. In order to be eligible for an L-1 visa, the petitioning entity must prove that the beneficiary of the visa has worked for the non-U.S. based sister company/subsidiary for at least one full year within the last three years as an executive, manager or employee with specialized knowledge.

H-1B Visa for FY2013
WAIT for the H-1B FY2013 Quota. The H-1B FY2013 Quota will open on April 1, 2012 with employment beginning on October 1, 2012. 65,000 visas are annually allocated to foreign nationals who possess a bachelor’s degree or higher (or its equivalent) in the specialty and the specialty occupation must require the degree. We can begin to prepare cases for the annual quota now; however, no cases will be filed with the USCIS towards the CAP until after April 1, 2012.

Contact MVP Law Group for more information!

WASHINGTON, DC – The American Immigration Lawyers Association (AILA) commented on Wednesday’s announcement from the United States Citizenship and Immigration Services (USCIS) that it has received a sufficient number of H-1B petitions to reach the statutory cap of 65,000 visas for fiscal year 2012 since the filing window opened on April 1st this year.

“During a time when job creation is the nation’s number one priority, why are we still fiddling around with an outmoded quota system that ignores the importance of immigrants to the economic engine?” said AILA President Eleanor Pelta.

“The marketplace dictates the pace and type of demand by business for specialized workers. To be more competitive globally, we really should be smarter about our high skilled visa distribution so that it is related to market needs instead of pinned to a static limit that was determined by Congress in the last decade,” continued Pelta. “Congress needs to be working on ways to make the visa system work for fueling the economy. The status quo is no longer acceptable.”

H-1B petitions are filed by U.S. employers seeking to hire a specific foreign national in a specialty occupation involving the theoretical and practical application of a body of specialized knowledge (such as the sciences, medicine and health care, education, biotechnology). The numerical limitation on H-1B petitions for fiscal year 2012 is 65,000. Additionally, the first 20,000 H-1B petitions filed on behalf of aliens who have earned a U.S. master’s degree or higher are exempt from the fiscal year cap.

MVP Law Group agrees wholeheartedly with AILA's President Eleanor Pelta's recommendation to change the current system!

Source of Information: "AILA InfoNet Doc. No. 11231102 (posted Nov. 23, 2011)"

The U.S. Citizenship and Immigration Services (USCIS) announced November 23, 2011 that it received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2012.

USCIS notified the public that November 22, 2011 is the final receipt date for new H-1B specialty occupation petitions for FY2012. USCIS will reject cap-subject H-1B petitions that arrive after November 22, 2011.

To find out about alternatives to H-1B visas, please stay posted to MVP Law Group's H-1B Visa Lawyer Blog!!

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 – H-1B Nonimmigrant Work Visa
Any H-1B visas left?

Answer #1
As of November 18, 2011, there were approximately 3,200 H-1B Regular CAP subject nonimmigrant visas remaining and the H-1B Masters CAP has been reached. USCIS will continue to accept cap-subject 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. Petitions filed on behalf of beneficiaries who have obtained a U.S. master’s degree or higher will be counted against the regular cap once USCIS has received sufficient petitions to reach the advanced degree exemption.

Question #2 – Family Based Immigration – Green Card
Can I bring siblings with me to the United States when I apply for a green card?

Answer #2
Siblings (Brothers/sisters) are considered a family based preference category and would have to ‘wait in line’ to come to the United States once an Immigrant Petition is first filed on their behalf by a sponsoring relative. Therefore, no your siblings cannot accompany you to the United States when you apply for a green card.

Question #3 – General
If my visa was denied, can I apply again? If so, how soon can I apply again?

Answer #3
Yes, you can apply again, but you should consider the grounds (reasons) for denial of the visa prior to applying again. If you are able to overcome the grounds for denial then maybe you should consider re-applying. We would recommend that you speak with an experienced Immigration Lawyer before re-applying to further discuss your specific situation.

Question #4 – Family Based Immigration – Green Card
I am a US legal permanent resident with a green card, can I get divorced and keep my green card?

Answer #4
It depends. How did you become a Lawful Permanent Resident (LPR), through employment or marriage? If through employment, you should be able to obtain a divorce and legally keep your green card. If through marriage, it depends upon how long you have already been an LPR. If you are still a GC holder within the first two years of marriage, you will have to file Form I-751, Petition to Remove the Conditions of Residence and if you do not, you will be removed. If you are still married, the petition should be filed jointly by you and the spouse through whom you obtained conditional status. However, you may apply for a waiver of this joint filing requirement if: (a) you entered the marriage in good faith, but your spouse subsequently died; (b) you entered the marriage in good faith, but the marriage was later terminated due to divorce or annulment; (c) you entered the marriage in good faith and have remained married, but you have been battered or subjected to extreme cruelty by your U.S. citizen or permanent resident spouse; or (d) the termination of your status and removal would result in extreme hardship. You will have to provide proof of your reason for applying for the waiver.

Question #5 – General
Will a criminal offense prevent me from becoming a lawful permanent resident in the United States?

Answer #5
The Immigration and Nationality Act (INA) recognizes three categories of crimes that can place a non-citizen at risk of deportation or prevent a non-citizen from ever becoming a lawful permanent resident. (1) Aggravated felonies are the most serious crimes and are specifically defined by statute in the INA. Because of the sentence imposed by the state criminal court, some common misdemeanor crimes can be considered aggravated felonies for immigration purposes. These crimes include theft and crimes of violence. For both of these crimes a non-citizen can be placed in deportation proceedings and deported from the United States, if the person is sentenced to more than one-year imprisonment, including any suspended time. A “crime of violence” is a term vaguely defined by the United States Code and could include convictions for assault in the fourth degree and felony driving under the influence. (2) Crimes of moral turpitude are the second category of crimes that can impact a non-citizen’s ability to remain in the United States. Generally, a crime of moral turpitude is defined as a crime that encompasses a base or vile act. Although the case law interpreting the term is not entirely uniform, the following types of crimes have been held to involve moral turpitude: crimes (felonies or misdemeanors) in which either an intent to defraud or an intent to steal is an element; crimes (felonies or misdemeanors) in which there is an element of intentional or reckless infliction of harm to persons or property; felonies, and some misdemeanors, in which malice is an element; sex offenses, in which some “lewd” intent is an element. Thus, murder, rape, voluntary manslaughter, robbery, burglary, theft, arson, aggravated forms of assault, forgery, prostitution and shoplifting have all been consistently held to involve moral turpitude. (3) A third category of crimes specifically listed in the INA may either trigger deportation or prevent a non-citizen from attaining lawful permanent resident status. Crimes included in this category include violations of any law relating to a controlled substance, domestic violence convictions, judicial determinations of protective order violations and convictions under any law of purchasing, selling, using or possessing a firearm or destructive device.

Question #6 – General
I am on H-1B, just filed I-485, with my pending I-485, can I invest in stocks?

Answer #6
Yes, as an H-1B nonimmigrant, you may own real estate property; you may also invest money in stocks, bonds and mutual funds.

Question #7 – H-1B Nonimmigrant Work Visa
My husband’s petition for nonimmigrant I129 was returned to USCIS for review. It has been 4 months since USCIS received the petition from DOS. How long will we wait for the reaffirmation?

Answer #7
There is no set period of time for the USCIS to review a case that has been returned to them by the Department of State (DOS). The USCIS commonly provides the following response when you request information concerning a case returned to them from a U.S. Consulate: The Petitioner for Non-Immigrant Worker Form I-129 was returned to this office from a U.S. Consulate and is currently pending review. Our office processes these cases as our resources and priorities allow. I would recommend following up with the USCIS National Customer Service Center, 1-800-375-5283 every thirty days to see if any decision has been made. I would wait 6 months before initiating a Service Request with the USCIS.

Question #8 – General
I have to travel to India during the months of February and March 2012…do I have wait for Advance parole to process (How long does it take to approve I-131?) or take appointment at an Indian consulate
a. Do we have to do anything to expedite the process?
b. Since I will be in the midst of green card processing, does the process jeopardize my visa stamping (if my I-131 is not approved by that time)

Answer #8
a. You cannot expedite the process unless you are traveling for medical reasons, death, etc. The processing time is currently 2-3 months for an approval of the I-131. You can only receive the Advance Parole (AP) document while in the U.S., you cannot receive it at an Indian consulate.
b. The GC and the H-1B are two entirely different programs – GC for permanent residency; H-1B for temporary employment. As long as you have a valid underlying H-1B visa and you continue to be employed by the H-1B sponsor, you may still travel on the H-1B visa if your AP is not approved by the time of your intended travel.

Question #9 –H-1B Nonimmigrant Work Visa
I'm currently on F-1 (OPT), and the company I work for just started the process to sponsor me an H-1B visa on 11/18/2011. My OPT will expire in June 2012. I wonder if my H-1B petition will be denied given that my mother filed the I-130 for me in 2009 and I have a family member who is a US citizen. Thanks for your assistance.

Answer #9
Your H-1B petition should not be denied because your mother previously filed an I-130 petition for you or for the mere fact that you have a family member who is a U.S. Citizen.

Question #10 – General
Any update on prevailing wage determinations from the Department of Labor?

Answer #10
The Office of Foreign Labor Certification has provided the following update to the public on the issuing of prevailing wage determinations:

PERM: Became current the week of October 23, 2011
H-1B: Became current the week of November 6, 2011
H-2B: Anticipated becoming current the week of November 27, 2011

“Current” carries a different meaning in each program. A prevailing wage determination is “current” in the PERM and H-1B programs when it is issued within 60 days of submission. For H-2B prevailing wage determinations, “current” is within 30 days of submission in accordance with the program’s regulations. These dates may be subject to change based on actions not anticipated by the Department at this time, such as any additional judicial determinations or legislative actions. PWD appeals (redeterminations and Center Director Reviews) are being processed as resources allow, with priority placed on becoming current on initial PWD requests in each of the respective program areas.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, December 9, 2011!

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

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

As of November 18, 2011, 61,800 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of November 18, 2011, 20,000 H-1B Masters Degree CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 20,000 cap.

Petitions filed on behalf of beneficiaries who have obtained a U.S. master’s degree or higher will be counted against the regular cap once USCIS has received sufficient petitions to reach the advanced degree exemption.

*USCIS will continue to accept H-1B petitions until a sufficient number of 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!

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, the monthly visa bulletin, adjustment applications 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, November 25th, 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.

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

As of November 14, 2011, 56,300 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of November 14, 2011, 20,000 H-1B Masters Degree CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 20,000 cap.

Petitions filed on behalf of beneficiaries who have obtained a U.S. master’s degree or higher will be counted against the regular cap once USCIS has received sufficient petitions to reach the advanced degree exemption.

*USCIS will continue to accept H-1B petitions until a sufficient number of 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!

Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Service Centers were released on November 14, 2011 with processing dates as of September 30, 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 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.

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 have applied to become a lawful permanent resident of the United States, but I have a family emergency outside of the country. Will I have trouble re-entering the United States upon my return?

Answer #1
If you applied for and have a valid Advance Parole (AP) document then you should not experience any issues when re-entering the United States. Carry your advance parole document and your I-485 receipt notice as evidence of your Adjustment of Status filing. If you did not apply for Advance Parole (AP) and you have a valid H-1B nonimmigrant visa, then you should be able to re-enter as an H-1B nonimmigrant. Valid meaning an unexpired visa status and you are currently employed by the H-1B sponsoring employer.

Question #2 – Nonimmigrant Visas
What is the difference between an H-1B and an H-2B visa?

Answer #2
An H-1B is a nonimmigrant Specialty Occupation visa. Specialty Occupations are defined as those that require a theoretical and practical application of a body of highly specialized knowledge, and the attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States. The H-1B visa allows foreign workers to enter the U.S. and work in a variety of fields ranging from architecture and engineering to teaching and medicine. The H-1B visa offers a wide range of employment possibilities and is a logical first step toward permanent immigration. In order to qualify for H-1B classification, the applicant must have at least a U.S. bachelor’s degree or its foreign equivalent AND the job sought must require at least a bachelor’s degree or its equivalent. This is not a self-petitioning category; therefore the applicant must have a sponsoring employer in the U.S. The period of employment is generally for a period up to three years, and may be extended for up to six years. Extensions may be available beyond the sixth year if green card processing has been initiated on behalf of the individual.

H-2B nonimmigrant visas are available for individuals to perform nonagricultural work of a temporary or seasonal nature, if U.S. workers capable of performing such service or labor cannot be found in the U.S. This classification requires the Sponsoring Employer to conduct active recruitment to determine if U.S. workers are available to fulfill the temporary need. Nonagricultural work includes Amusement Park workers; Bellhops; Bricklayers; Cannery workers; Commercial, Industrial and Residential Cleaners;Construction workers; Cooks; Crab Meat Processors; Fishing Vessel Deckhands;Dining Room Attendants; Electricians; Fast Food Workers; Forest Workers; Game Attendants; Industrial Groundskeepers; Landscapers; Kitchen Helpers; Sales Clerks; Tree Planters and the list goes on. In order to be eligible for H-2B classification, the Employer (Petitioner) should confirm that the job is temporary, that the Department of Labor (DOL) has certified that no U.S. workers are available to perform the job, that the beneficiary’s employment in the U.S. will not harm U.S. workers, and that all requirements have been met. The employer’s need for the services or labor shall be either: (1) a one-time occurrence; (2) a seasonal need; (3) a peakload need; or (4) an intermittent need. The period of employment is generally for a period of 1 year or less, but could be for a specific one-time need of up to 3 years. The foreign national must also be able to demonstrate that they have strong ties to their home country and will return at the end of the season. Nationals from the following countries are eligible to participate in the H-2B visa program: Argentina; Australia; Belize; Brazil; Bulgaria; Canada; Child; Costa Rica; Croatia; Dominican Republic; Ecuador; El Salvador; Ethiopia; Guatemala; Honduras; Indonesia; Ireland; Israel; Jamaica; Japan; Lithuania; Mexico; Moldova; the Netherlands; New Zealand; Nicaragua; Norway; Peru; Philippines; Poland; Romania; Serbia; Slovakia; South Africa; South Korea; Turkey; Ukraine; United Kingdom and Uruguay. Nationals from other countries not listed above may be eligible; however, additional evidence will be required. This is not a self-petitioning category; therefore the applicant must have a sponsoring employer in the U.S.

Question #3 – General
I’ve been told that I can find my case status online. Where would I go to find out my approximate processing time?

Answer #3
The USCIS website provides case status information. You will find the case status online mechanism at www.uscis.gov on the left hand side of the screen. Use your receipt number found on Form I-797 in the upper left hand corner and enter it into the box. If you wish to determine the applicable processing time for your case, you will find a link on the USCIS website on the left hand side of the screen which reads: Processing Times, click on the link and scroll down to the bottom and find the Service Center where your case is undergoing processing. You will find the Service Center where your case was filed on Form I-797. Your Form I-797 will also display the Form type/number that was filed on your behalf in the upper right hand corner.

EAC – Vermont Service Center
SRC – Texas Service Center
WAC – California Service Center
LIN – Nebraska Service Center

Question #4 – Family Based Immigration - Green Card
Can a relative currently living in the United States legally write my affidavit of support?

Answer #4
Yes, if the relative currently living in the United States is willing and able to be a sponsor/joint sponsor and is aware of and understands the responsibilities associated with being a sponsor/joint sponsor.

Question #5 – Employment Based Immigration - Green Card
My wife and I have been working on H-1B for different employers. My employer applied for my green card in 2007 and my I-140 has been approved. My wife's H-1B term ends on Jan 2012. If she wishes to continue her employment with the same employer after Jan 2012, is she required to use her Employment Authorization Documents?

Answer #5
If she is no longer eligible to extend her H-1B nonimmigrant visa status beyond January 2012 , then yes, she will be required to utilize her Employment Authorization Document (EAD) to legally remain working.

Question #6 – Green Card
I am an Indian born citizen, but I have also attained Canadian citizenship. When I am applying for an I-485, which priority dates do I need to regard: Canada or India?

Answer #6
Country of Chargeability is determined by your country of birth. Accordingly, when applying for I-485 you would need to monitor the priority dates for India in the preference category under which your case was filed.

Question #7 – H1B Nonimmigrant Visa
Any H1B visas left under cap?

Answer #7
As of November 2, 2011, there were approximately 14,200 H-1B Regular CAP subject nonimmigrant visas remaining and the H-1B Masters CAP has been reached. USCIS will continue to accept cap-subject 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. Petitions filed on behalf of beneficiaries who have obtained a U.S. master’s degree or higher will be counted against the regular cap once USCIS has received sufficient petitions to reach the advanced degree exemption.

Question #8 – Employment Based Immigration - Green Card
What is AC21 Portability?

Answer #8
AC21 portability allows an individual to change employers while undergoing the Green Card process without having to start the process over from the beginning with a new employer. To qualify for AC21 portability, a foreign national must be the beneficiary of a certified labor application (first step of the green card process), an approved I-140 petition (second step of the green card process) and have an I-485 application (third step of the green card process) pending over 180 days. A new position which is within the “same or similar” occupational classification as listed on the certified labor application would make the applicant eligible for AC21 portability.

Question #9 – Family Based Immigration - Green Card
As a U.S. citizen, for whom can I file Form I-130, Petition for Alien Relative?

Answer #9
As a U.S. citizen, you may file Form I-130, Petition for Alien Relative on behalf of the following relatives:
Immediate relatives (no annual limit/quota) - spouse; unmarried children under age 21; parents

Preference relatives (subject to priority dates/preference categories) – unmarried and married children of any age; siblings.

Question #10 – General
What is the difference between and immigrant and non-immigrant visa?

Answer #10
An immigrant visa is for individuals who intend to permanently live in the United States.

A nonimmigrant visa is for people who enter the United States on a temporary basis – whether for tourism, business, temporary work or study. Once a person has entered the United States in a nonimmigrant visa status, they are restricted to the activity or reason for which they were granted entry.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, November 25, 2011!

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

The Department of State has released its latest Visa Bulletin.

Click here to view the December 2011 Visa Bulletin.

The December 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.

There has been significant forward movement in the EB-2 category for the past 3 visa bulletin issues. We have received some reliable information from Charles Oppenheim, Chief, Immigrant Visa Control and Reporting Division, DOS, that the upcoming advancement of the cutoff dates in EB-2 for India and China will advance again for the next several bulletin issues. We hope that the trend continues.

**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.

The Administrative Appeals Office (AAO) Processing Times were released with processing dates as of November 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 22 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 31 months; for an I-140EB3 Appeal for a Skilled or Professional Worker is 35 months.

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

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, the monthly visa bulletin, adjustment applications 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, November 11th, 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.

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

Senate Bills

S. 1506
Introduced by Sen. Rubio (R-FL) on 8/2/11
Prevents the Secretary of the Treasury from expanding United States bank reporting requirements with respect to interest on deposits paid to nonresident aliens.

S. 1545
Introduced by Sen. Inhofe (R-OK) on 9/13/11
Designates Taiwan as a visa waiver program country under INA Section 217(c).

S. 1576
Introduced by Sen. Landrieu (D-LA) on 9/19/11
Measures the progress of relief, recovery, reconstruction and development efforts in Haiti following the earthquake of Jan. 12, 2010, and for other purposes.

House Bills

Strengthening the Child Welfare Response to Human Trafficking Act of 2011 (HR 2730)
Introduced by Rep. Bass (D-CA) on 8/1/11
Better enables State child welfare agencies to prevent human trafficking of children and serve the needs of children who are victims of human trafficking.

H.R. 2763
Introduced by Rep. McDermott (D-WA); Ros-Lehtinen (R-FL) on 8/1/11
Extends by two years the special rule relating to eligibility for benefits under the supplemental security income program for certain aliens and victims of trafficking. Amends section 402(a)(2)(M) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996.

H.R. 2771
Introduced by Rep. Rivera (R-FL) on 8/1/11
Amends Public Law 89-732 to increase to 5 years the period during which a Cuban national must be physically present in the United States in order to qualify for adjustment of status to that of a permanent resident

Doctors for Underserved Areas in America Act (H.R. 2805)
Introduced by Rep. Lofgren (D-CA) on 8/5/11
Amends Section 220 of the Immigration and Nationality Technical Corrections Act of 1994 to make the section permanent.

Trafficking Victims Protection Reauthorization Act of 2011 (H.R. 2830)
Introduced by Rep. Smith (R-NJ) on 8/30/11
Authorizes appropriations for fiscal years 2012 and 2013 for the Trafficking Victims Protection Act of 2000.

H.R. 2831
Introduced by Rep. Rivera (R-FL)on 8/30/11
Amends Cuban Refugee Adjustment Act to make ineligible for adjustment of status under Section 1 individuals who return to Cuba after admission or parole into the U.S.

American Specialty Agriculture Act (H.R. 2847)
Introduced by Rep. Smith (R-TX) on 9/7/11
Establishes a H-2C nonimmigrant visa for an alien having residence in a foreign country which he or she has no intention of abandoning and who is coming temporarily (10-month maximum per contract period) to the United States to perform agricultural services, including the pressing of apples for cider on a farm. Requires an employer or employer association to file an H-2C petition.

Compassionate Visa for Medical Treatment Act (H.R. 2878)
Introduced by Rep. Cohen (D-TN) on 9/9/11
Amends INA with respect to temporary admission of nonimmigrant aliens for the purpose of receiving medical treatment.

Legal Workforce Act (H.R. 2885)
Introduced by Rep. Smith (R-TX) on 9/12/11
Makes mandatory and permanent requirements for use of E-Verify for employment verification.

Legal Agricultural Workforce Act(H.R. 2895)
Introduced by Rep. Lungren (R-CA) on 9/12/11
Amends INA to provide for a temporary agricultural worker program.

Chinese Media Reciprocity Act of 2011(H.R. 2899)
Introduced by Rep. Rohrabacher (R-CA) on 9/12/11
Establishes a reciprocal relationship between the number of visas issued to state-controlled media workers in China and in the U.S.

Immigration Backlog Reduction Act of 2011(H.R. 2952)
Introduced by Rep. Hunter (R-CA) on 9/15/11
Provides for expedited removal of certain aliens.

Senior Citizenship Act of 2011 (H.R. 2957)
Introduced by Rep. Nadler (D-NY) on 9/15/11
Amends INA to exempt certain elderly persons (75+ years; 5 years as LPR) from demonstrating an understanding of the English language and the history/government of the United States as a requirement for naturalization. The bill also permits other elderly persons (65+ years; 5 years LPR) to take the history and government examination in a language of their choice.

Restoring Protection to Victims of Persecution Act (HR 2981)
Introduced by Rep. Stark (D-CA) on 9/21/11
Amends the INA to eliminate the 1-year deadline for application for asylum in the United States.

Illegal Immigration Sentencing Uniformity Act of 2011 (HR 2991)
Introduced by Rep. Culberson (R-TX) on 9/21/11
Disapproves of a certain sentencing guideline amendment submitted by the United States Sentencing Commission, and for other purposes.

Fairness for High-Skilled Immigrants Act (HR 3012)
Introduced by Rep. Chaffetz (R-UT) on 9/22/11
Eliminates the per-country numerical limitation for employment-based immigrants, and increases the per-country numerical limitation for family-sponsored immigrants.

SSI Extension for Elderly and Disabled Refugees Act of 2011(H.R. 3083)
Introduced by Rep. McDermott (D-WA) on 10/3/11
Extends eligibility period for supplemental security income benefits for refugees, asylees, and certain other humanitarian immigrants.

Protecting American Families and Businesses Act of 2011(H.R. 3119)
Introduced by Rep. Lofgren (D-CA) on 10/6/11
Amends the INA to remove the per-country limitation on employment-based immigrant visas and adjusts the per-country limitation on family-sponsored immigrant visas.

Student Visa Reform Act (H.R. 3120)
Introduced by Rep. Lofgren (D-CA) on 10/6/11
Amends the INA to require accreditation of certain educational institutions for purposes of a nonimmigrant student visa.

H.R. 3162
Introduced by Rep. Alexander (R-LA) on 10/12/11
Prohibits the Secretary of Labor from implementing certain rules relating to employment of aliens described in section 101(a)(15)(H)(ii)(b) of the Immigration and Nationality Act.

Illegal Alien Crime Reporting Act of 2011 (H.R. 3168)
Introduced by Rep. Jones (R-NC) on 10/12/11
Prohibits the payment of funds to a state under any program by DHS unless the state 1. compiles statistics on persons arrested, charged, convicted or incarcerated, including immigration status and country of origin; 2. reports such statistics monthly to the FBI; and 3. certifies compliance with requirements of this Act.

Source: "AILA InfoNet Doc. No. 11110234 (posted Nov. 2, 2011)"

The United States Immigration and Customs Enforcement (ICE) recently updated the list of Student and Exchange Visitor Program (SEVP) approved schools. The schools listed have all been certified to participate in the program.

The program allows foreign students interested in obtaining an education in the United States to complete a visa petition, pay the required fee, attend a visa interview at a U.S. Consulate, and enroll in a U.S. College or University.

Interested Foreign students: There is a process in obtaining a student visa, but it is not a difficult one. The student must first obtain Form I-20 from the U.S. College or University from which he/she intends to enroll, pay the required visa fee (Form I-901) and contact a local U.S. Consulate/Embassy to schedule an interview. The SEVP procedures differ among U.S. Consulates/Embassies; contact your U.S. Consulate/Embassy NOW to determine its particular procedure on applying for a visa before planning for the interview.

Interested Schools: There is a separate process to obtain F & M Certification. Authorized school officials must obtain and complete Form I-17. An overview of the SEVP Certification process can be found on the ICE website. If approved, the school will be certified and allowed to issue Form I-20 to qualifying foreign students.

If you need assistance or an explanation of the SEVP/student visa, please contact our office to schedule a consultation.

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 – General
What is PIMS? What is CLAIMS?

Answer #1
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 #2 – H4 – Dependent Visa
My H1B visa was approved and notice sent to Consulate. My wife and child wish to come to U.S. with me. Can I apply for my wife and child during my H1B consulate interview? Please advise.

Answer #2
If the beneficiary or the beneficiary’s spouse/children are outside the United States and the beneficiary wishes to apply for a derivative visa (referred to as an H4 visa) abroad, and the H4 visa application can be made and is available on walk-in basis at the U.S. Consulate abroad along with or after the grant of the H1B approval. No other processing is required for an H4 visa abroad. Contact the consulate abroad or an Information Officer at the United States Department of State Visa Office at 202.663.1225 for the procedures or documents that may be required.

Question #3 – Temporary Work Visa – H-1B Nonimmigrant Visa
How many H-1B nonimmigrant visas remain under the CAP?

Answer #3
As of October 21, 2011, there were approximately 18,800 H-1B Regular CAP subject nonimmigrant visas remaining and the H-1B Masters CAP has been reached. 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.

Question #4 – Employment Based Immigration – Green Card
I am a Pakistani National but was born in UAE. Should i be applying for Green Card on the basis of my country of birth or nationality?

Answer #4
It is based on country of birth, since you are not from China, India, Mexico or the Philippines, your case would fall under ‘All Chargeability Areas’ and the time period whether from Pakistan or the United Arab Emirates would be the same.

Question #5 – Family Based Immigration – Green Card
At what stage of family based green card does the priority date attach?

Answer #5
A priority date is assigned in a family based green card immigration proceeding when the I-130 petition is received by the USCIS.

Question #6 – Employment Based Immigration – Green Card
Has the suspension been lifted for the issuance of Prevailing wage determinations for PERM?

Answer #6
As of October 24, 2011 -
The Office of Foreign Labor Certification provided the following update to the public on its plans for becoming current on issuing prevailing wage determinations:
PERM: Week of October 23, 2011
H-1B: Week of November 6, 2011
H-2B: Week of December 18, 2011
"Current" carries a different meaning in each program. A prevailing wage determination is "current" in the PERM and H-1B programs when it is issued within 60 days of submission. For H-2B prevailing wage determinations, "current" is within 30 days of submission in accordance with the program's regulations. These dates may be subject to change based on actions not anticipated by the Department at this time such as any additional judicial determinations. The PWD appeals are being processed as resources allow with priority being placed on becoming current on initial PWD requests in each of the respective program areas.

Question #7 – Employment Based Immigration – Green Card
At what stage of employment based green card does the priority date attach?

Answer #7
A priority date is assigned in an employment based green card immigration proceeding when the labor application is submitted to the Department of Labor (DOL). If no labor application is required for the preference category, then the priority date is assigned when the I-140 Immigrant Petition is received by the USCIS.

Question #8 – Temporary Work Visa – H-1B Nonimmigrant Visa
We have an employee that has a U.S. Master’s degree; we noticed Masters CAP exemption was reached. Do we have to wait until next year to file for her H-1B work visa? Is there any way around this?

Answer #8
Petitions filed on behalf of beneficiaries who have obtained a U.S. master’s degree or higher will be counted against the regular cap once the USCIS has received sufficient petitions to reach the advanced degree exemption.

Question #9 – Employment Based Immigration – Green Card
Can you premium processing the GC process?

Answer #9
You may only premium process the I-140 Immigrant Petition, which is the petition that is filed 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 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 #10
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.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, November 11, 2011!

Please remember to submit your questions/comments on our H1B Visa Lawyer Blog.

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 October 21, 2011, 46,200 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of October 21, 2011, 20,000 H-1B Masters Degree CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 20,000 cap.

Petitions filed on behalf of beneficiaries who have obtained a U.S. master’s degree or higher will be counted against the regular cap once USCIS has received sufficient petitions to reach the advanced degree exemption.

*USCIS will continue to accept H-1B petitions until a sufficient number of 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!

USCIS Director, Alejandro N. Mayorkas has announced that the USCIS will resume the existing process of sending all I-797 original notices to the G-28 Attorney on Record and not the Employer. The Employer will receive only courtesy copies. Director Mayorkas made this decision after receiving valuable feedback from USCIS Stakeholders. Unfortunately, this change will not go into effect for another six weeks due to programming issues.

A year ago, USCIS initiated an internal system change that altered where we send receipt
notices (I-797). Last month, when the change went into effect, we heard from
stakeholders that this change had an unintended negative external impact. We scheduled
a stakeholder meeting, gained an understanding of the impact, and have decided to return
to our previous practice of sending the original notice to the attorney or accredited
representative’s address listed on the Form G-28. A copy will be sent to the address
provided by the applicant or petitioner in the applicable form. This change will take
effect in approximately six weeks due to the need to re-program our system. We
appreciate the feedback you provided.

I look forward to continued collaboration with you on matters of importance to our
nation’s economic prosperity and those whom we serve.

Alejandro N. Mayorkas
Director
U.S. Citizenship and Immigration Services
Department of Homeland Security

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, October 28th, 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.

Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Service Centers were released on October 18th, 2011 with processing dates as of August 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 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.

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 October 14, 2011, 43,300 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of October 14, 2011, 19,600 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!

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

Answer #1
Yes, your wife can now 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 – Temporary Work Visa – H-1B Nonimmigrant Visa
How many H-1B nonimmigrant visas remain under H1B CAP? MASTER’S CAP?

Answer #2
As of October 7, 2011, there were approximately 24,000 H-1B Regular CAP subject nonimmigrant visas remaining and 900 H-1B Masters Exemption nonimmigrant visas remaining. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn. For continuous FY2012 H-1B Cap updates, please refer to our www.h1bvisalawyerblog.com.

Question #3 – Employment Based Immigration – Green Card
Has the suspension been lifted for the issuance of Prevailing wage determinations? Please provide an update.

Answer #3
As of October 14, 2011 – More AILA members are beginning to receive PERM prevailing wage determinations for requests that were submitted in late July 2011 (OES based). Notice has not yet been provided by the DOL that the suspension has been lifted.

As of September 30, 2011 – More AILA members are beginning to receive PERM prevailing wage determinations for requests that were submitted in early July 2011 (OES based). Notice has not yet been provided by the DOL that the suspension has been lifted.

As of September 15, 2011 - DOL Liaison has received reports that AILA members are beginning to receive PERM prevailing wage determinations for requests that were submitted as recently as June 23, 2011.

As of September 9, 2011 - Of the approximately 3,500 H-2B wage redeterminations to be completed by the end of September, DOL has completed approximately 2,700. DOL expects to be current on H-2B redeterminations by the week of Sept 18, 2011. After H-2B redeterminations are current, a few employees will continue to work on “straggler” H-2B cases and all others who were working on redeterminations will be reassigned to work on new H-2B prevailing wage requests. DOL expects H-2B prevailing wage determinations to be current (regulatory 30 days) by mid-October. After H-2Bs are current, DOL will shift resources to focus on PERM prevailing wage requests. DOL commits to have PERM prevailing wage requests current (processed within 60 days of filing) by November 1. DOL commits to have H-1B prevailing wage determinations current by the second week of November. The aforementioned dates were said to be the “worse case scenario,” absent something catastrophic (e,g. hurricane) or other major event/change. DOL agreed that stakeholders would benefit from updates on progress made toward these processing targets, and would consider publishing an update on the status of prevailing wages at the end of September on the OFLC website. DOL repeated that it will not waive any of the regulatory requirements and did not provide any additional guidance on alternative avenues for PERM cases that are ripe for filing but for the lack of a prevailing wage determination.

As of August 25, 2011 - The Department of Labor (DOL) Liaison has received reports from members that PERM prevailing wage determinations are beginning to be received for requests submitted in early June 2011. Additionally, the American Immigration Lawyers Association (AILA) has been in discussions with other stakeholders on possible courses of action, including individual mandamus actions, if DOL does not resume issuing prevailing wage determinations promptly.

Original Update: The OFLC National Prevailing Wage Center is experiencing delays in processing prevailing wage determinations as it is currently working to reissue certain determinations to comply with a court order issued June 15, 2011 in the United States District Court for the Eastern District of Pennsylvania. A Notice of Proposed Rulemaking was published in the Federal Register on June 28, 2011, and a Final Rule was published on August 1. All Center resources are currently being utilized to comply with this court order. The processing of Prevailing Wage Determinations, redeterminations, and Center Director Reviews has been temporarily suspended. Processing will resume as soon as full compliance with the court order has been completed by OFLC.

Question #4 – Employment Based - Green Card
I would like to ask - i have a pending eb3 application with priority date on May 2007 but a new employment visa is offered to me - h1b. Can i be approved with the said visa even if i have pending eb3 application? Thank you.

Answer #4
It depends. You have not provided enough information to provide a solid answer to your question. The temporary H-1B nonimmigrant visa is a different process than the Employment Based Green Card process. I would recommend that you contact an experienced Immigration Attorney to discuss your eligibility. Please feel free to contact our office to schedule a consultation.

Question #5 – Temporary Work Visa – H-1B Nonimmigrant Visa
We received approval from USCIS for H-1B for our new employee. Our new employee scheduled consulate interview and was denied visa, how is this possible?

Answer #5
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 #6 – Family Based Immigration – Green Card
My wife arrived in the U.S. about three (3) weeks back. She went through Consular Processing and received temporary LPR stamp valid for one year. When should we be receiving her physical Green Card? Do we need to go to Airport again for issuance or will the USCIS send the Green Card to her?

Answer #6
The USCIS should send/mail the Green Card to the address they have listed. If you have not received the Green Card within 60 days from her arrival, contact the USCIS National Customer Service Center (NCSC) at 1-800-375-5283.

Question #7 – Diversity Lottery (DV)
Can I apply for DV now?

Answer #7
Yes, applications for the DV 2013 random lottery are being accepted electronically until Saturday, November 5, 2011.

Question #8 – Temporary Work Visas – H-1B Nonimmigrant Visa
The Processing Time Table indicates it takes about 2 months to process H1B. So I am not sure why I have not received decision yet, my case was filed in June. Can you tell me why it is taking so long?

Answer #8
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. Also, due to the FY2012 H-1B CAPS still being available, the USCIS is busy with attempting to adjudicate change of status petitions, extensions and transfers all within the same processing times. Although this explanation is not an excuse, you should be aware of the background with the processing times for the H-1B nonimmigrant visa.

Question #9 – Family Based Immigration – Green Card
What happens if my wife and I do not file to remove the conditions on her permanent residency?

Answer #9
If you do not apply to remove the conditions near the expiration of her two-year conditional period then the permanent residency automatically expires and she is subject to deportation and removal. To avoid this, within 90 days of the expiration of the conditional period, she must file Form I-751, Petition to Remove Conditions on Residence.

Question #10 – Marriage Based Immigration –Green Card
My spouse and I have been called for Stokes interview. What exactly is a “Stokes” interview?

Answer #10
A “Stokes” interview is the last opportunity the USCIS provides for you and your spouse to prove the bona fides of your marriage. If the USCIS does not think that your marriage is legitimate, they will schedule a “Stokes” interview. The husband and wife are separately questioned by a USCIS Officer regarding their relationship history, daily interactions, relationship in general, and presence on social networking websites, etc. The interview/questioning is recorded and an attorney is permitted to attend.

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 28th, 2011!

Please remember to submit your questions/comments on our H1B Visa Lawyer Blog.

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 October 7, 2011, 41,000 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of October 7, 2011, 19,100 H-1B Masters Degree CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 20,000 cap.

*USCIS will continue to accept 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!

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, October 14th, 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.

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 September 23, 2011, 36,300 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of September 23, 2011, 17,700 H-1B Masters Degree CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 20,000 cap.

*USCIS will continue to accept 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!

The Administrative Appeals Office (AAO) Processing Times were released with processing dates as of October 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 22 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 29 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.

The Department of State has released its latest Visa Bulletin.

Click here to view the November 2011 Visa Bulletin.

The November 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.

Annually, the United States government issues a maximum of 50,000 green cards through a computer-generated random lottery drawing. Applications for the DV 2013 random lottery will be accepted Tuesday, October 4, 2011 through Saturday, November 5, 2011. Paper entries will not be accepted, eligible participants may access the electronic Diversity Visa entry form (E-DV) to apply during this period.

These green cards are only available to those eligible participants from countries with low rates of immigration to the United States. For DV-2013, persons born in Hong Kong SAR, Macau SAR, Taiwan, South Sudan and Poland are eligible.

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, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

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-2013 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

From May 1, 2012, DV-2013 entrants will be able to use their unique confirmation number provided at registration to check online through Entry Status Check to see if their entry was selected. Successfull entrants will receive instructions on how to apply for immigrant visas for themselves and their eligible family members. Confirmation of visa interview appointments will also be made through Entry Status Check.

Annually, the United States government issues a maximum of 50,000 green cards through a computer-generated random lottery drawing. Applications for the DV 2013 random lottery will be accepted Tuesday, October 4, 2011 through Saturday, November 5, 2011. Paper entries will not be accepted, eligible participants may access the electronic Diversity Visa entry form (E-DV) to apply during this period.

These green cards are only available to those eligible participants from countries with low rates of immigration to the United States. For DV-2013, persons born in Hong Kong SAR, Macau SAR, Taiwan, South Sudan and Poland are eligible.

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, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

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-2013 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

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 priority date is current according to October Visa Bulletin. I want to apply for I-485, regarding my birth certificate – it is not available and as I understand it, I need to have a certified birth certificate in order to apply. Can I submit something else? Any suggestions?

Answer #1
A certified copy of an original Birth Certificate is requested (if you do not have an original BC, please obtain either a non-availability certificate or a re-issued BC), in addition, if your BC is not registered within a year of your birth, please obtain two birth affidavits.

Question #2 – Temporary Work Visa – H-1B Nonimmigrant Visa
On F1/OPT, my employer filed an H-1B for me back in July, no decision yet. Am I covered under “cap gap”?

Answer #2
H-1B petitions that are timely filed, on behalf of an eligible F-1 student, that request a change of status to H-1B on October 1 qualify for a cap-gap extension. Once a timely filing has been made, requesting a change of status to H-1B on October 1, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed. Timely filed means filed within the H-1B acceptance period beginning April 1, 2011. The paperwork (LCA and I-129) must also reflect a beginning employment date of October 1, 2011 to be covered under the CAP GAP.

Question #3 – Family Based Immigration – Green Card
What is the age limit on USC sponsoring foreign parent or foreign relative?

Answer #3
For parents of U.S. Citizens – the U.S. Citizen Petition must be at least 21 years of age. (Immediate relatives of U.S. citizens may immigrate to the United States in unlimited numbers. Currently, there is no annual limit or quota that applies to this category.)
For sisters and brothers of U.S. Citizens – the U.S. Citizen Petition must be at least 21 years of age. (Depending on the demand, these individuals will most likely have to wait in line, possibly for many years, prior to being able to obtain a green card.)

Question #4 – Employment Based Immigration – Green Card (AC-21)
I have an approved I-140 filed by my previous company and they also submitted my I-485 back in 2007. I have since moved onto employment with another company on my EAD. Can I file AC21 Portability letter?

Answer #4
You may be eligible to file an AC21 106(c) Portability Request if the new position/duties are the same or substantially similar to the position/duties listed in your Labor application certified by the DOL.

Question #5 – Temporary Work Visa – H-1B Nonimmigrant Visa
How many H-1B nonimmigrant visas remain for the H1B CAP?

Answer #5
The USCIS has not provided an updated on the receipt of H-1B CAP subject petitions since September 9, 2011. As of September 9, 2011, there were approximately 32,800 H-1B Regular CAP subject nonimmigrant visas remaining and 3,300 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 #6 – Employment Based Immigration – Green Card
Has the suspension been lifted for the issuance of Prevailing wage determinations? I am hearing conflicting information on the internet – forums.

Answer #6
As of September 30, 2011 – More AILA members are beginning to receive PERM prevailing wage determinations for requests that were submitted in early July 2011 (OES based). Notice has not yet been provided by the DOL that the suspension has been lifted.

As of September 15, 2011 - DOL Liaison has received reports that AILA members are beginning to receive PERM prevailing wage determinations for requests that were submitted as recently as June 23, 2011.

As of September 9, 2011 - Of the approximately 3,500 H-2B wage redeterminations to be completed by the end of September, DOL has completed approximately 2,700. DOL expects to be current on H-2B redeterminations by the week of Sept 18, 2011. After H-2B redeterminations are current, a few employees will continue to work on “straggler” H-2B cases and all others who were working on redeterminations will be reassigned to work on new H-2B prevailing wage requests. DOL expects H-2B prevailing wage determinations to be current (regulatory 30 days) by mid-October. After H-2Bs are current, DOL will shift resources to focus on PERM prevailing wage requests. DOL commits to have PERM prevailing wage requests current (processed within 60 days of filing) by November 1. DOL commits to have H-1B prevailing wage determinations current by the second week of November. The aforementioned dates were said to be the “worse case scenario,” absent something catastrophic (e,g. hurricane) or other major event/change. DOL agreed that stakeholders would benefit from updates on progress made toward these processing targets, and would consider publishing an update on the status of prevailing wages at the end of September on the OFLC website. DOL repeated that it will not waive any of the regulatory requirements and did not provide any additional guidance on alternative avenues for PERM cases that are ripe for filing but for the lack of a prevailing wage determination.

As of August 25, 2011 - The Department of Labor (DOL) Liaison has received reports from members that PERM prevailing wage determinations are beginning to be received for requests submitted in early June 2011. Additionally, the American Immigration Lawyers Association (AILA) has been in discussions with other stakeholders on possible courses of action, including individual mandamus actions, if DOL does not resume issuing prevailing wage determinations promptly.

Original Update: The OFLC National Prevailing Wage Center is experiencing delays in processing prevailing wage determinations as it is currently working to reissue certain determinations to comply with a court order issued June 15, 2011 in the United States District Court for the Eastern District of Pennsylvania. A Notice of Proposed Rulemaking was published in the Federal Register on June 28, 2011, and a Final Rule was published on August 1. All Center resources are currently being utilized to comply with this court order. The processing of Prevailing Wage Determinations, redeterminations, and Center Director Reviews has been temporarily suspended. Processing will resume as soon as full compliance with the court order has been completed by OFLC.

Question #7 – Temporary Work Visa – H-1B Nonimmigrant Visa
I live in VA and my driver’s license is expiring. What do I need to do? My H1B extension is pending and I need to renew my license soon, like in three weeks! Any suggestions?

Answer #7
Information provided by the Virginia Department of Motor Vehicles website - If you are authorized to be in the U.S. temporarily and have been issued a limited duration driver's license, the license cannot be renewed. A subsequent license will be processed as an original license. However, you will not be eligible to receive an original driver's license if your authorized stay in the U.S. is less than 30 days from the date you apply. Each time you apply for an original driver's license you must show two proofs of identity (one proof of identity if under age 19), one proof of legal presence and one proof of Virginia residency. Proof of your social security number (if you have been issued one) is required also. If you present a valid legal presence document without an expiration date, you will be issued a limited duration license that is valid for one year. This does not apply to a U.S. birth document since it does not contain an expiration date. Foreign applicants applying should present the following - USCIS form I-797 displaying applicant’s name (Depending on the purpose and nature of the form, the I-797 may not be accepted. The I-797 for an I-765 petition is not accepted); and an unexpired foreign passport with an Unexpired or expired U.S. visa and unexpired or expired I-94. You most certainly can upgrade your filing to Premium Processing.

Question #8 – Temporary Work Visa – H-1B Nonimmigrant Visa
One of our consultants is nearing his 6th year on H-1B visa status, but he has an approved I-140 filed by a different company. Is it possible to use that approved I-140 to get a three year extension with our company.

Answer #8
Yes. Pursuant to AC21 law, an H-1B immigrant may extend his or her status beyond the 6 year limitation if a labor certification, I-140, or employment based adjustment of status application has been filed where 365 days or more have elapsed since the filing of the labor certification or I-140. Or, where the H-1B immigrant has an I-140 petition which has been approved under the employment based green card and the AOS/485 is pending due to the unavailability of visa numbers.

Question #9 – Temporary Work Visa – H-1B Nonimmigrant Visa
Similar question to #7. I live in MD and my driver’s license is expiring. My H1B extension is pending and I need to renew my license. Any suggestions?

Answer #9
Information provided by the Maryland Department of Transportation, Motor Vehicle Administration website - If you hold a Maryland Driver’s License with the “T” restriction indicating that your license is a Limited Term driver’s license, expiring on the date that your lawful status in the U. S. expires, you will be required to provide new or extended proof of your lawful status. You will be required to provide proof of a social security number (SSN) that can be verified by the Social Security Administration, or proof of ineligibility for an SSN. The name(s) on the actual Social Security Card or other acceptable document used to provide proof of a valid, verifiable SSN or proof of ineligibility MUST match the source document(s) used to provide proof of the applicants' Age and Identity and licensure if required. If you held a valid Maryland driver's license, permit or identification card prior to April 19, 2009, you may be eligible for a subsequent license, permit, or identification card without proof of lawful presence or social security number, but it will not be acceptable for official federal purposes. (1) Please check your renewal notice for any errors. (2) Present your renewal notice, expiring license, and fee in person to any one of the MVA locations. (3) Pass a vision screening (4) Present new lawful status documentation if your Maryland license is expiring due to the expiration of your lawful status. You most certainly can contact the MVA itself and ask if that facility would accept your I-129 receipt notice as proof of your pending extension or upgrade your filing to Premium Processing.

Question #10 – Employment Based Immigration – Green Card
We appealed a denial of I-140 Immigrant Petition filed on behalf of one of our employees. How much longer can we expect to wait for a decision to be made?

Answer #10
According to the Administrative Appeals Office, Appeals filed under the EB2 preference category (Professionals with Advanced Degrees) are currently being reviewed within 31 months of filing the appeal. Appeals filed under the EB3 preference category (Skilled and Professional workers) are currently being reviewed within 35 months.

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 14th, 2011!

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

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, September 30th, 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.

Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Service Centers were released on September 16th, 2011 with processing dates as of July 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 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.

As of September 15, 2011 -
DOL Liaison has received reports that AILA members are beginning to receive PERM prevailing wage determinations for requests that were submitted as recently as June 23, 2011.

As of September 9, 2011 -
Of the approximately 3,500 H-2B wage redeterminations to be completed by the end of September, DOL has completed approximately 2,700. DOL expects to be current on H-2B redeterminations by the week of Sept 18, 2011. After H-2B redeterminations are current, a few employees will continue to work on “straggler” H-2B cases and all others who were working on redeterminations will be reassigned to work on new H-2B prevailing wage requests. DOL expects H-2B prevailing wage determinations to be current (regulatory 30 days) by mid-October. After H-2Bs are current, DOL will shift resources to focus on PERM prevailing wage requests. DOL commits to have PERM prevailing wage requests current (processed within 60 days of filing) by November 1. DOL commits to have H-1B prevailing wage determinations current by the second week of November. The aforementioned dates were said to be the “worse case scenario,” absent something catastrophic (e,g. hurricane) or other major event/change. DOL agreed that stakeholders would benefit from updates on progress made toward these processing targets, and would consider publishing an update on the status of prevailing wages at the end of September on the OFLC website. DOL repeated that it will not waive any of the regulatory requirements and did not provide any additional guidance on alternative avenues for PERM cases that are ripe for filing but for the lack of a prevailing wage determination.

As of August 25, 2011 -
The Department of Labor (DOL) Liaison has received reports from members that PERM prevailing wage determinations are beginning to be received for requests submitted in early June 2011. Additionally, the American Immigration Lawyers Association (AILA) has been in discussions with other stakeholders on possible courses of action, including individual mandamus actions, if DOL does not resume issuing prevailing wage determinations promptly.

Original Update: The OFLC National Prevailing Wage Center is experiencing delays in processing prevailing wage determinations as it is currently working to reissue certain determinations to comply with a court order issued June 15, 2011 in the United States District Court for the Eastern District of Pennsylvania. A Notice of Proposed Rulemaking was published in the Federal Register on June 28, 2011, and a Final Rule was published on August 1. All Center resources are currently being utilized to comply with this court order. The processing of Prevailing Wage Determinations, redeterminations, and Center Director Reviews has been temporarily suspended. Processing will resume as soon as full compliance with the court order has been completed by OFLC.

We will continue to post new information as soon as it becomes available.

Source: AILA Doc. No. 11072571

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
How many H-1B nonimmigrant visas remain for the H1B CAP?

Answer #1
As of September 9, 2011, there were approximately 32,800 H-1B Regular CAP subject nonimmigrant visas remaining and 3,300 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 #2 – Employment Based Immigration – Green Card
Does green card processing duration depends on the country of birth or country of nationality? (I am asking this because I am a Pakistani National but born in United Arab Emirates so wanted to know if my processing will take less time or not)

Answer #2
It is based on country of birth. Since you are not from China, India, Mexico or the Philippines, your case would fall under ‘All Chargeability Areas’ and the time period whether from Pakistan or the United Arab Emirates would be the same.

Question #3 – Marriage Based Immigration –Green Card
I am marrying a United States citizen in a few weeks, do you know when I can expect to have my interview and eventually get my green card?

Answer #3
Once you have married and have submitted your paperwork to the USCIS, it is taking approximately 4-6 months nationwide to obtain an interview appointment. This is an estimate as all cases are not the same and the circumstances in one case may be different than in another. If there are any prior marriages, criminal charges, or other circumstances that could affect the case, processing may take even longer.

Question #4 – Temporary Work Visa – H-1B Nonimmigrant Visa
We are a new company utilizing the H-1B temporary work nonimmigrant visa program. Quick question: it’s okay to give copies of the entire petition to the H-1B employee once approved?

Answer #4
You MUST provide each applicant with a complete copy of the entire petition (including the LCA), it is a REQUIREMENT, and you must retain a complete copy of the petition within the applicant’s immigration file (public access file).

Question #5 – Temporary Work Visa – H-1B Nonimmigrant Visa
I have transferred my H1 from Employer A to Employer B and it got denied. Employer B has appealed the denial. Now my question is: Can I go out of US and come back when appeal is in process. If so what will be option?

Answer #5
Depending upon your I-94 card, if it has expired, you need to depart the country, as receiving a denial leaves you without a valid nonimmigrant visa status, in violation of U.S. immigration laws and can negatively affect your re-entry to the U.S. in the future. You will either need to wait in your home country or elsewhere until a decision is made, or until you find another sponsoring employer willing to sponsor your H-1B nonimmigrant visa for temporary employment in the United States.

Question #6 – Temporary Work Visa – H-1B Nonimmigrant Visa
Same set of facts as above. What will be approximate processing time for appeal to be decided?

Answer #6
The current processing time for an H-1B appeal is 21 months.

Question #7 – Employment Based Immigration – Green Card
I’ve been working at my current company for nearly 5 years and have a bachelor’s degree in EE. Can I change jobs within the company after the five year mark and be able to use the experience for my current job towards my labor certification and moving to an EB-2 category?

Answer #7
No, you cannot use the experience obtained in your current job to apply for another position within the same company. The experience needed for EB-2 classification cannot be from your current employer.

Question #8 – Employment Based Immigration – Green Card
Is it possible to apply for Green Card for me and my wife in parallel to H1 and H4?

Answer #8
Yes, it is possible to initiate a GC case parallel to the H-1B/H4 proceedings if there is a legitimate permanent position available within the company and the employer is willing to sponsor you for the permanent position.

Question #9 – Temporary Work Visa – H-1B Nonimmigrant Visa
My OPT Extension Period ends on May 15, 2012 also my student visa expires on the same day. Do I have to apply for H1 this year or can I apply next year?

Answer #9
If your employer wishes to continue your employment, they should file an H-1B petition on your behalf under the FY2012 Cap which opened on April 1, 2011 and is still available. Employment does not begin until October 1, 2011; if however, the CAP is reached within the next few days, you will not be able to petition again until next year and will begin to accrue unlawful status unless you transfer to another nonimmigrant visa status or return to your home country once your OPT expires.

Question #10 – Temporary Work Visa – H-1B Nonimmigrant Visa
After graduation I worked for a company ‘A’ as a database administrator using my optional practical training /OPT/ for less than a year. Initially I was on a student visa until my employer sponsored me for a H1B visa, which was successfully selected to an H1B visa status and to begin in October 2011. Unfortunately for personal reasons I left USA and returned to my country on the 28th of August. On August 31, 2011 the H1B visa was terminated by my former employer. At this time I have another employment opportunity stateside and wish to reclaim my visa status. I’m writing you to get information as to what I can do to return my status for the H1B visa. Can you please provide me with any information on the process required to do this? Does my future employer need to sponsor me as before? Currently I’m in my home country, is it possible to do this from here? How long does the procedure take? I hope you can help me with my situation.

Answer #10
The normal process for H-1B sponsorship starts when you or your employer contacts our office to initiate the process. Your employer would contact our office, discuss the regulations and expectations of H-1B sponsorship, and sign a legal agreement detailing the legal fees associated with the preparation and filing of the H-1B visa petition. An H-1B questionnaire and documents checklist will be emailed to you for your review and completion. You would then complete the H-1B questionnaire, and send all requested background documents to our office to begin the process. Once the legal payment, the completed questionnaire and background docs have been received in our office, we would be able to begin preparing your paperwork. Once your forms have been prepared and thoroughly reviewed, we email the final documents to your sponsoring employer for their review, signatures and posting requirements. These forms must then be returned to our office with the requisite USCIS filing fees, and will be filed on your behalf with the USCIS. Upon receipt of the H-1B petition, the USCIS will issue a receipt notice containing a specific number which will allow you to monitor your case while it is being processed. It is possible for our office to prepare and file your paperwork while you are in your home country. If the case is filed under regular processing, a decision will be made in approximately 3-4 months. If the case is filed under premium processing, a decision should be made within 15 calendar days after submission of the case unless an RFE is issued.

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 30th, 2011!

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

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 September 9, 2011, 32,200 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of September 9, 2011, 16,700 H-1B Masters Degree CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 20,000 cap.

*USCIS will continue to accept 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!

As of September 9, 2011 -
Of the approximately 3,500 H-2B wage redeterminations to be completed by the end of September, DOL has completed approximately 2,700. DOL expects to be current on H-2B redeterminations by the week of Sept 18, 2011.

After H-2B redeterminations are current, a few employees will continue to work on “straggler” H-2B cases and all others who were working on redeterminations will be reassigned to work on new H-2B prevailing wage requests. DOL expects H-2B prevailing wage determinations to be current (regulatory 30 days) by mid-October.

After H-2Bs are current, DOL will shift resources to focus on PERM prevailing wage requests. DOL commits to have PERM prevailing wage requests current (processed within 60 days of filing) by November 1.

DOL commits to have H-1B prevailing wage determinations current by the second week of November.

The aforementioned dates were said to be the “worse case scenario,” absent something catastrophic (e,g. hurricane) or other major event/change.

DOL agreed that stakeholders would benefit from updates on progress made toward these processing targets, and would consider publishing an update on the status of prevailing wages at the end of September on the OFLC website.

DOL repeated that it will not waive any of the regulatory requirements and did not provide any additional guidance on alternative avenues for PERM cases that are ripe for filing but for the lack of a prevailing wage determination.

As of August 25, 2011 -
The Department of Labor (DOL) Liaison has received reports from members that PERM prevailing wage determinations are beginning to be received for requests submitted in early June 2011. Additionally, the American Immigration Lawyers Association (AILA) has been in discussions with other stakeholders on possible courses of action, including individual mandamus actions, if DOL does not resume issuing prevailing wage determinations promptly.

Original Update: The OFLC National Prevailing Wage Center is experiencing delays in processing prevailing wage determinations as it is currently working to reissue certain determinations to comply with a court order issued June 15, 2011 in the United States District Court for the Eastern District of Pennsylvania. A Notice of Proposed Rulemaking was published in the Federal Register on June 28, 2011, and a Final Rule was published on August 1. All Center resources are currently being utilized to comply with this court order. The processing of Prevailing Wage Determinations, redeterminations, and Center Director Reviews has been temporarily suspended. Processing will resume as soon as full compliance with the court order has been completed by OFLC.

We will continue to post new information as soon as it becomes available.

Source: AILA Doc. No. 11072571

The Department of State has released its latest Visa Bulletin.

Click here to view the October 2011 Visa Bulletin.

The October 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.

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, September 16th, 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.

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 – Prevailing Wage
Has the suspension been lifted for the issuance of Prevailing wage determinations? I am hearing conflicting information on the internet – forums.

Answer #1
As of August 25, 2011 - The Department of Labor (DOL) Liaison received reports from members that PERM prevailing wage determinations are beginning to be received for requests submitted in early June 2011. Additionally, the American Immigration Lawyers Association (AILA) has been in discussions with other stakeholders on possible courses of action, including individual mandamus actions, if DOL does not resume issuing prevailing wage determinations promptly.
Original Update: The OFLC National Prevailing Wage Center is experiencing delays in processing prevailing wage determinations as it is currently working to reissue certain determinations to comply with a court order issued June 15, 2011 in the United States District Court for the Eastern District of Pennsylvania. A Notice of Proposed Rulemaking was published in the Federal Register on June 28, 2011, and a Final Rule was published on August 1. All Center resources are currently being utilized to comply with this court order. The processing of Prevailing Wage Determinations, redeterminations, and Center Director Reviews has been temporarily suspended. Processing will resume as soon as full compliance with the court order has been completed by OFLC. They hope to comply with the court order before October 1, 2011.
We have not received any information that the suspension has been lifted as of yet. Stay tuned to MVP Law Group, as we will continue to post new information as soon as it becomes available.

Question #2 – Employment Based Immigration – Green Card
My spouse and daughter have received their Green Cards but I have not. I filed for our GCs through my employer – employment based. What do I need to do to fix this? Is there a problem with my case? Could my GC be denied? Please advise.

Answer #2
Based on the small amount of information you have provided, it seems like there may be an issue with the issuance/mailing of your Green Card. Your spouse and daughter would not have received their Green Cards if there was a pending issue with your case. From the information you provided, you are the primary applicant and your spouse and daughter are your derivatives. Therefore, the USCIS would not approve the I-485 Application to Adjust status for the derivatives without first approving it for the primary applicant. Follow up with the USCIS after 30 days from the date your spouse and daughter received their Green Cards by calling 1-800-375-5283.

Question #3 – Temporary Work Visa – H-1B Nonimmigrant Visa
How many H-1B nonimmigrant visas remain for the CAP for FY2012 beginning October 1, 2011?

Answer #3
As of August 26, 2011, there were approximately 36,000 H-1B Regular CAP subject nonimmigrant visas remaining and 4,200 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.

Question #4 – Temporary Work Visa – H-1B Nonimmigrant Visa
My current H-1B visa expires on 9/14/2011 and I’ve filed for an extension in late July and received a receipt for it. Can I continue working without the new approval?

Answer #4
Yes, under regulation 8 C.F.R. §274a.12(b)(20), a person lawfully employed under A-3, E-1,E-2,E-3,G-5, H-1B, H-2A/B, H-3, I, J-1, L-1, O-1/O-2, P-1/P-2/P-3, R or TN status who timely files an application for extension consistent with 8 C.F.R. §214.1, is automatically given 240 days from the date of expiration. During 240 days, there is no INA 245(c) bar to adjustment of status.

Question #5 – General
Is a new I-9 form required when an applicant applies for an extension to their employment authorization and are then granted the extension?

Answer #5
A new I-9 form is not required, but Section 3 of the original form should be completed by the authorized representative of the Company prior to the expiration of the applicant’s employment authorization.

Question #6 – Temporary Work Visa – H-1B Nonimmigrant Visa: Traveling
I am planning on traveling out of US for short trip. I heard from friends that I may not be able to obtain a new visa stamp for my recently approved I-129 and come back. Please advise.

Answer #6
If you MUST travel on H-1B status, we recommend that you have the following: at least two months’ worth of pay stubs, a copy of the approved H-1B petition, an original employment verification letter, the original approval notice, and any other documentation that would demonstrate compliance with the laws governing the H-1B program and the establishment of a bona fide job opportunity.

Question #7 – Temporary Work Visa – H-1B Nonimmigrant Visa
I have an H-1B application pending since early June 2011, 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?

Answer #7
Please review the processing times prior to calling for the Service Center where your case is being adjudicated. If your case is in fact outside of the normal processing time, 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 available so the Representative 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 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 #8 – Temporary Work Visa – H-1B Nonimmigrant Visa
My brother needs to file H-1B. If he needs to apply for his new H1B under the quota, is the quote full or is it still open for this year or would he need to wait till April for new quota to open and wait till October 2012 to start work.

Answer #8
The FY2012 quota, with employment beginning October 1, 2011 remains open. As of August 26, 2011, there were approximately 36,000 H-1B Regular CAP subject nonimmigrant visas remaining and 4,200 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.

Question #9 – Employment Based Immigration – Green Card - EAD Renewal
I filed for my EAD renewal back in May 2010 and it is still pending. My current EAD expires next week. What are my options moving forward - can I expedite the EAD renewal process since my card is expiring next week, can I continue to work with the receipt notice?

Answer #9
To my knowledge you normally cannot expedite an EAD renewal request; however, after an EAD renewal has been pending for 75+ days, you may initiate an ‘outside the processing times’ Service Request with the USCIS. If you do not receive your EAD approval by the time your current EAD expires, you MUST WAIT and NOT WORK until your EAD is approved. You MAY NOT continue to work using the EAD receipt notice as the receipt is not evidence of an approval.

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

Question #10 – Temporary Work Visa – H2B Nonimmigrant Visa
How many H-2B nonimmigrant visas remain under the 2nd half of FY2011, if any? Under the 1st half of FY2012?

Answer #10
As of 8/26/11, USCIS receipted 30,999 petitions toward the 33,000 H-2B cap amount for the second half of the fiscal year (FY) 2011 (April 1 - September 30). This count includes 29,921 approved and 1,078 pending petitions.

As of 08/26/11, USCIS receipted 4,326 petitions toward the 33,000 H-2B cap amount for the first half of Fiscal Year (FY) 2012, (October 1 - March 31). This count includes 3,173 approved petitions and 1,153 pending petitions.

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 16th, 2011!

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

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 August 26, 2011, 29,000 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of August 26, 2011, 15,800 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!

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

Senate Bills

Immigration Fraud Prevention Act of 2011 - S. 1336
Introduced by Sen. Feinstein (D-CA) on 7/7/11
Summary: Prevents immigration fraud by making it a Federal crime to defraud individuals in connection with any matter arising under immigration laws.

Hinder the Administration's Legalization Temptation (HALT) Act - S. 1380
Introduced by Sen. Vitter (R-LA) on 7/12/11
Summary: Suspends until Jan. 21, 2013 certain provisions of federal immigration law.

Trafficking in Persons Report Improvement Act of 2011 - S. 1362
Introduced by Sen. Webb (D-VA) on 7/13/11
Summary: Simplifies the Trafficking in Persons Report by reducing the number of country categories and ranking countries within each category according to their relative adherence to the minimum standards set forth in TVPA of 2000.

Helping Agriculture Receive Verifiable Employees Securely and Temporarily (HARVEST) Act of 2011 - S. 1384
Introduced by Sen. Chambliss (R-GA) on 7/19/11
Summary: Amends the INA to provide for the temporary employment of foreign agricultural workers.

Humane Enforcement and Legal Protections for (HELP) Separated Children Act - S. 1399
Introduced by Sen. Franken (D-MN) on 7/21/11
Summary: Protects children affected by immigration enforcement actions.

S. 1405
Introduced by Sen. Feinstein (D-CA) on 7/21/11
Summary: Private bill for the relief of Guy Privat Tape and Lou Nazie Raymonde Toto.

House Bills

H.R. 2805
Introduced by Rep. Lofgren (D-CA) on 8/5/11
Summary: Amends Section 220 of the Immigration and Nationality Technical Corrections Act of 1994 to make permanent made by the section.

Strengthening the Child Welfare Response to Human Trafficking Act of 2011- H.R. 2730
Introduced by Rep. Bass (D-CA) on 8/1/11
Summary: Amends Part E of Title IV of the Social Security Act to better enable State child welfare agencies to prevent human trafficking of children and serve the needs of children who are victims of human trafficking.

Hinder the Administration's Legalization Temptation (HALT) Act - H.R. 2497
Introduced by Rep. Smith (R-TX) on 7/12/11
Summary: Suspends until Jan. 21, 2013 certain provisions of federal immigration law.

H.R. 2556
Introduced by Rep. Ryan (D-OH) on 7/15/11
Summary: Suspends the issuance of visas to nationals of Brazil until Brazil amends it laws to remove the prohibition on extradition of nationals of Brazil to other countries.

Humane Enforcement and Legal Protections for (HELP) Separated Children Act - H.R. 2607
Introduced by Rep. Woolsey (D-CA) on 7/21/11
Summary: Protects children affected by immigration enforcement actions.

Military Families Act - H.R. 2638
Introduced by Rep. Filner (D-CA) on 7/25/11
Summary: Authorizes the adjustment of status for immediate family members of individuals who served honorably in the Armed Forces of the United States during the Afghanistan and Iraq conflicts.

Jobs for Americans Act of 2011 - H.R. 2670
Introduced by Rep. Brooks (R-AL) 7/27/11
Summary: Provides that States and local government may pass laws that identify illegal aliens, deter illegal aliens from entering the United States, apprehend illegal aliens, or encourage or otherwise cause illegal aliens to leave the United States.

H.R. 2556
Introduced by Rep. Ryan (D-OH) on 7/15/11
Summary: Prohibits the issuance of a visa to a citizen, subject, national, or resident of Brazil until Brazil has removed the prohibition on extradition of Brazilian nationals to other countries. The bill authorizes the President to waive such prohibition on a case-by-case basis if in the U.S. national interest.

Source: "AILA InfoNet Doc. No. 11082563 (posted Aug. 25, 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, September 2nd, 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.

As of August 25, 2011 -
The Department of Labor (DOL) Liaison has received reports from members that PERM prevailing wage determinations are beginning to be received for requests submitted in early June 2011. Additionally, the American Immigration Lawyers Association (AILA) has been in discussions with other stakeholders on possible courses of action, including individual mandamus actions, if DOL does not resume issuing prevailing wage determinations promptly.

Original Update: The OFLC National Prevailing Wage Center is experiencing delays in processing prevailing wage determinations as it is currently working to reissue certain determinations to comply with a court order issued June 15, 2011 in the United States District Court for the Eastern District of Pennsylvania. A Notice of Proposed Rulemaking was published in the Federal Register on June 28, 2011, and a Final Rule was published on August 1. All Center resources are currently being utilized to comply with this court order. The processing of Prevailing Wage Determinations, redeterminations, and Center Director Reviews has been temporarily suspended. Processing will resume as soon as full compliance with the court order has been completed by OFLC. They hope to comply with the court order before October 1, 2011.

We will continue to post new information as soon as it becomes available.

Source of Information: AILA InfoNet Doc. No. 11072571

The United States Citizenship and Immigration Service (USCIS) has updated the count of H2B Visa petitions received by the USCIS for the second half of FY2011 and first half of FY2012.

As of August 12, 2011, USCIS receipted 30,810 petitions toward the 33,000 H-2B cap amount for the second half of Fiscal Year (FY) 2011. This count includes 29,736 approved petitions and 1,074 pending petitions. The second half of FY2011 runs from (April 1, 2011 - September 30, 2011).

As of August 12, 2011, USCIS receipted 3,260 petitions toward the 33,000 H-2B cap amount for the first half of Fiscal Year (FY) 2012. This count includes 2,516 approved petitions and 744 pending petitions. The first half of FY2012 runs from (October 1, 2011 - March 31, 2012).

Stay tuned to MVP Law Group for H-2B CAP updates!

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
How many H-1B nonimmigrant visas remain under the CAP for FY2012 beginning October 1, 2011?

Answer #1
As of August 12, 2011, there were approximately 39,700 H-1B Regular CAP subject nonimmigrant visas remaining and 5,300 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 #2 – Family Based Immigration – Green Card
My wife and I, USC, are from El Salvador and we are going for vacation this weekend for a few weeks back to El Salvador. We have an adult child who still lives in El Salvador with his wife and children – we are interested in bringing him over here to the United States. Can you let us know what time period we would be looking at for bringing him over here as a Permanent Resident?

Answer #2
According to the September Visa Bulletin which is effective beginning September 1, 2011, the Family Based third preference category (F3) for all chargeability areas except China, India, Mexico and the Philippines, is backlogged, this means, that you must wait until a visa becomes available, until the priority date becomes current. Individuals in that preference category with priority dates of August 22, 2001 and earlier are being serviced. Accordingly, you would be looking at a time period of approximately 10+ years, if not longer, as it all depends upon 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 #3 – General
I work for a company in San Bernardino, CA, a pharmaceutical company. They have expressed an interest in sponsoring my green card. I have a few friends in Maryland who used your firm for other immigration services and I wanted to know if I could use your firm also to process my green card? With me in California and your firm in Maryland, is it legal, can we do this?

Answer #3
MVP Law Group is an innovative law firm that provides business immigration services to corporations, universities, hospitals, and other organizations, as well as, entrepreneurs and individuals.. Immigration law is federal in nature (i.e., no state or provincial law is involved), therefore, our firm is able to provide U.S. business immigration services to clients located anywhere in the United States and around the world. If you would like to schedule a consultation to discuss your particular situation, please contact our office.

Question #4 – Employment Based Immigration – Green Card
Can a company sponsor my GC as an United Arab Emirates born individual in parallel to H1? (I was born in UAE and I have searched that GC processing depends on your birth country and my GC will be approved in just 6 months).

Answer #4
Based on the general information you have provided, a company is be able to initiate your Employment Based green card filing at the same time as the H-1B filing. Additionally, the priority date for citizens from the UAE in the EB2 preference category is current; however, the priority date for citizens from the UAE in the EB3 preference category is backlogged to November 22, 2005. Accordingly, if you are eligible to file in the EB2 preference category, you should be able to file the I-140 and I-485 petitions concurrently and should receive your GC according to the processing times listed on the USCIS website.

Question #5 – Temporary Work Visa – H2B Nonimmigrant Visa
How many H-2B nonimmigrant visas remain under the 2nd half of FY2011? Under the 1st half of FY2012?

Answer #5
As of 8/12/11, USCIS receipted 30,810 petitions toward the 33,000 H-2B cap amount for the second half of the fiscal year (FY) 2011 (April 1 - September 30). This count includes 29,736 approved and 1,074 pending petitions.

As of 08/12/11, USCIS receipted 3,260 petitions toward the 33,000 H-2B cap amount for the first half of Fiscal Year (FY) 2012, (October 1 - March 31). This count includes 2,516 approved petitions and 744 pending petitions.

Question #6 – Dependent H4 Nonimmigrant Visa
Will my spouse automatically be shifted from F2 to H4 once I receive my approved H1B or do I need to process her case separately?

Answer #6
In this situation, your spouse’s status will not automatically be converted to H4 status, she must file a Form I-539 (Application to Extend/Change Nonimmigrant Status), along with your I-129 visa petition requesting a change of status from F2 to H4. Her case will not need to be processed separately; it can be prepared and filed along with your H-1B visa petition. If you have already filed your H-1B petition, you will have to file her I-539 (H4) petition separately.

Question #7 – Employment Based Immigration – Green Card
It seems like it’s taking a lot longer to conduct recruitment prior to filing the Labor application, what’s the issue?

Answer #7
There are two known reasons for the delay:

(1) As of January 1, 2010 the Department of Labor (DOL) federalized the process for obtaining Prevailing wage requests, which is the first step in the Labor process before recruitment can be conducted. We normally could obtain a prevailing wage request directly from the specific state workforce agency within a few days to a week. In addition to federalizing the process, the DOL made the process for obtaining the prevailing wages by electronic means as well as by requesting a prevailing wage through the U.S .mail. After the centralization of this process, it takes approximately 45-60 days to obtain a prevailing wage determination from the DOL. The determinations are issued on a first come, first serve basis.

(2) Currently, the OFLC National Prevailing Wage Center is experiencing delays in processing prevailing wage determinations as it is currently working to reissue certain determinations to comply with a court order issued June 15, 2011 in the United States District Court for the Eastern District of Pennsylvania. A Notice of Proposed Rulemaking was published in the Federal Register on June 28, 2011, and a Final Rule was published on August 1. All Center resources are currently being utilized to comply with this court order. The processing of Prevailing Wage Determinations, redeterminations, and Center Director Reviews has been temporarily suspended. Processing will resume as soon as full compliance with the court order has been completed by OFLC. They hope to comply with the court order before October 1, 2011.

Question #8 – Family Based Immigration: Marriage – K1 Fiancé Visa
My son is a U.S. Citizen and is engaged to marry his British fiancé. Both have known one another for over nine years and have been engaged for six months. Can my son sponsor his fiancé? What needs to be done?

Answer #8
U.S. Citizens who are engaged to be married to a foreign national may petition the USCIS on behalf of their fiancé by way of the K-1 visa. To be eligible for this visa: (1) you must be legally able to marry; (2) the marriage must be a bona fide marriage with good intent; (3) you must be willing to marry within 90 days of the fiancé entering the United States; and (4) you must have met within two years of filing for the visa. Your son should first file a Petition for Alien Fiancé (Form I-130) with the USCIS. Once the petition is approved, the USCIS will forward the approved petition to the appropriate consulate to interview the applicant. Once the applicant attends the consular interview and is approved for the visa, she may travel to the United States to marry your son. A petition for K-1 status is valid for four months from the date of USCIS action, and may only be revalidated by the consular officer.

Question #9 – Temporary Work Visa – H-1B Nonimmigrant Visa
This is my first time filing for H1B; I just graduated from U.S. University few months ago. My approval notice states that the Consulate has been notified and that I need to appear there to obtain H-1B visa. I thought the approval notice I received was the H-1B visa. What to do?

Answer #9
Before you can commence work with your petitioning employer, an I-9 (Employment Eligibility Verification Form) will need to be prepared and an I-9 requires evidence of a valid and current I-94 (Arrival and Departure Record). If an I-94 has NOT been issued with your approval notice, you must obtain a valid and current I-94. Since you are already in the United States you will need to go back to your home country and obtain an H4 visa and I-94. Or as noted in the Approval Notice, you can file a new H4 petition to seek to change or extend your status based on this petition, if a request was not made or was made and you believe it was improperly or incorrectly denied.

Question #10 – Employment Based Immigration – Green Card
I know there are quite a few GC cases pending and USCIS can only work on cases up to available VISA numbers and once the numbers are consumed, then it could go back with the next VISA bulletin. I think we can call the USCIS and provide details of our case so that based on first come first call; they would process and issue the GC faster.

Answer #10
You cannot call the USCIS to speed up the processing/issuance of your Green Card. Priority dates were established for this exact purpose. Each individual has a specific priority date which was issued to them when their Labor application was submitted to the Department of Labor (DOL). Only when the applicant’s priority date becomes current will the USCIS begin to process the applicant’s I-485 paperwork and thereafter may issue the Green Card. However, your attorney may contact the USCIS via email on your behalf if your I-485 application was filed through the Texas Service Center (TSC). The attorney may send an email to a specific email address to inform the Service Center that their client’s priority date is current. The “streamline” process was created to provide a mechanism for American Immigration Lawyer Association (AILA) members to facilitate TSC processes relating to the identification of EB I-485 applications.

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 2nd, 2011!

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

Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Service Centers were released on August 17th, 2011 with processing dates as of June 30, 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 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.

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination of a Certifying Officer (CO) denying labor certification for an alien worker for the position of “Computer Systems Analyst.”

The CO denied the application stating that the journal used to advertise the position was not a recognized journal on websites and does not qualify as a professional journal. The Employer accordingly made a request for review of the denial stating that it fulfilled its obligation to advertise as indicated in the regulations and that the magazine, Computer, is a recognized professional journal. In its request for review the Employer included six pages of information from the IEEE website, which states that “for more than 40 years, developers, researchers, and managers have relied upon Computer for timely, peer-reviewed information about research, trends, best practices, and changes in the profession.” The CO forwarded the case directly to BALCA as a request for reconsideration was not made by the Employer.

PERM regulations 20 C.F.R. § 656.17(e)(1)(i)(B) and 656.17(e)(2)(ii) control and provide: sponsoring employers are normally required to attest to having placed two print advertisements on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the worker likely to apply for the job opportunity. However, an exception under 20 CFR § 656.17(e)(1)(B)(4) provides that if the job requires experience and an advanced degree and a professional journal would normally be used to advertise the job opportunity, the employer may substitute one of the Sunday advertisements for an ad in the professional journal most likely to bring responses from able, willing, qualified and available U.S. workers.

In the instant case, because the Employer did not initially make a request for reconsideration from the CO, BALCA was limited by 20 CFR § 656.27(c) and had to analyze the record based only on the evidence upon which the CO’s denial was made. Therefore, the six page document provided by the Employer could not be reviewed by BALCA. The Board was forced to affirm the denial even though they believed that the CO was arguably incorrect in his determination that Computer magazine was not a qualifying professional journal.

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

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 August 12, 2011, 25,300 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of August 12, 2011, 14,700 H-1B Masters Degree CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 20,000 cap.

*USCIS will continue to accept 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!

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, 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, August 19th, 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.

AILA has received a report that the NPWC is now sending out the following revised message regarding prevailing wage determinations:

The OFLC National Prevailing Wage Center is experiencing delays in processing prevailing wage determinations as it is currently working to reissue certain determinations to comply with a court order issued June 15, 2011 in the United States District Court for the Eastern District of Pennsylvania. A Notice of Proposed Rulemaking was published in the Federal Register on June 28, 2011, and a Final Rule will be published on August 1. All Center resources are currently being utilized to comply with this court order. The processing of Prevailing Wage Determinations, redeterminations, and Center Director Reviews has been temporarily suspended. Processing will resume as soon as full compliance with the court order has been completed by OFLC.

Q: How long will the suspension of prevailing wage determinations last?
This is unclear. In the rule published on August 1, DOL indicated that while they will be able to reissue all of the required H-2B wage determinations before October 1, they also stated that DOL could not reissue all 4,000 required H-2B wage determinations before August 31, 2011. DOL has not issued any estimate on when they will resume processing prevailing wages.

Q: Is there any way to expedite a prevailing wage request?
DOL’s policy is that they will not expedite, and applications will be handled on a first-in, first-out basis.

Q: What is AILA liaison doing about the PWD delays?
AILA liaison has been in communication with DOL for the past several weeks about the prevailing wage delays (as well as other problems related to the new SOC codes introduced on July 1), and has forwarded specific requests for guidance to DOL. AILA has also asked that DOL immediately resume processing all prevailing wage requests, as suspension of prevailing wage determinations prevents employers from filing any PERM applications. DOL will be holding a call with AILA liaison and other stakeholders next week on prevailing wages, and we hope that DOL will be able to provide some estimate on PWD processing times, as well as whether any relief may be available for PERM cases that must be filed due to AC-21 requirements, expiring recruitment, or other reasons.

AILA is continuing to follow up with DOL to obtain additional information on the extent and duration of the prevailing wage delays and will post new information as soon as it becomes available.

Source of Information: AILA InfoNet Doc. No. 11072571

The Department of State has released its latest Visa Bulletin.

Click here to view the September 2011 Visa Bulletin.

The September 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.

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 “Electrical Helper.”

A selection was not made for Section M-1, which concerns whether or not the application was completed by the Employer. The CO denied certification citing the omission of a response for Section M-1. The Employer requested reconsideration or review of the denial and submitted an amended form. The CO did not reconsider its decision and the case was forwarded to BALCA on April 30, 2010.

PERM regulation 20 C.F.R. § 656.17(a) provides that incomplete applications will be denied. Further PERM regulation 20 C.F.R. § 656.11(b) provides that once an application is filed, requests for modifications to the application will not be accepted.

In the instant case, the facts as presented are similar to those found in a 2010 BALCA decision, Gunnels, 2010-PER-626 (November 16, 2010) where an Employer had neglected to check the box in Section M-1, but similarly provided a preparer’s name and signature, thereby signifying that someone other than the Employer had filled out the application. In Gunnels, the Employer made a request for reconsideration, but titled it “Request for Review”. In that decision, the BALCA panel determined that the CO abused its discretion and elevated form over substance in refusing to reconsider the denial. Here, the Employer merely neglected to check a box in M-1, but provided the preparer’s name and signature. Whether the CO abused his discretion depends upon whether he denied the Employer the opportunity to be heard on its legal argument.

Accordingly, the Board remanded to provide the CO the opportunity to reconsider the issue.

The Administrative Appeals Office (AAO) Processing Times were released with processing dates as of August 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 21 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 31 months; for an I-140EB3 Appeal for a Skilled or Professional Worker is 35 months.

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

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 “Programmer Analyst.”

The Employer listed the minimum requirements as a Bachelors degree plus 5 years of experience in the position offered, or in the alternative, a Masters degree plus 1 year of experience in the job offered. The prevailing wage for the position listed in the application was $34.67 per hour. After receiving the Employer’s Application, the CO issued an Audit Notification. The CO denied certification citing that the PWD listed on the application was different from that provided in the Audit response. The audit response provided a PWD of $46.16 per hour. The Employer requested reconsideration and provided the PWD consistent with the wage listed on the labor application. The $34.67 per hour wage was based upon a separate PWD containing the primary requirements of Bachelors degree plus 5 years experience; and the $46.16 per hour wage was based upon another PWD containing the alternative requirements of a Masters degree plus 1 year experience. The CO denied reconsideration providing that the PWD submitted in the audit response did not match the prevailing wage listed in the labor application. The case was forwarded to BALCA and the Employer filed a State of Intent to Proceed on August 3, 2010.

PERM regulation 20 C.F.R. § 656.1(a)(2) controls and provides that labor certification can only be granted if the employment of the foreign worker will not adversely affect the wages and working conditions of U.S. workers who are similarly employed.

In the instant case, the facts present a clear example of how certification of the foreign worker could have an adverse effect on the wages of U.S. workers. The foreign worker has a Bachelors degree plus 5 years of experience and ought to be paid the amount that similarly situated U.S. employees earn in this position in the same area of intended employment, $46.16 per hour. Here, employment of the foreign worker could have an adverse effect on the wages of U.S. workers similarly employed that have a Bachelors degree plus 5 years of experience, since the Employer is only offering $34.67 per hour for this position. Accordingly, the proper PWD in such a situation is not the PWD that matches the “primary” or “alternative” job requirements; rather, the proper PWD is the higher of the two PWDs.

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

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 (Biometrics)
I went for ASC fingerprint appointment with my wife. She received code 2 biometrics and I received code 3 biometrics. What do these codes mean?

Answer #1
In order to inform the ASC what data they need the USCIS places a code in the upper right corner of the appointment notice.
Code 1 = Ten (10) fingerprints ONLY
Code 2 = Index fingerprint, Photo and Signature
Code 3 = Ten (10) fingerprints, Index fingerprint, Photo and Signature

Question #2 – Temporary Travel as a Non-Immigrant
For how long can a person stay in US on a Business Visa (B1/B2)?

Answer #2
It depends, normally for a period of 6 months; however, whatever date the Customs and Border Patrol (CBP) stamp on your I-94 card is the length of time you are eligible to remain in the U.S. lawfully.

Question #3 – Employment Based Immigration – Green Card (Biometrics)
My priority date is current – waiting on issuance of GC. Just received second biometrics appointment notice, as first was received back in 2007. Do I have to attend the second appointment?

Answer #3
Yes, you should appear for the fingerprint appointment. If your fingerprints were taken over 15 months ago, they have expired and the USCIS requires a new set in order to continue with the processing of your AOS petition.

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

Answer #4
As of July 29, 2011, there were approximately 42,300 H-1B Regular CAP subject nonimmigrant visas remaining and 6,200 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.

Question #5 – Employment Based Immigration – Green Card (Biometrics)
Can I appear for the biometrics before the date printed on the notice which is Aug 18? Few of my friends have managed to get it done much before the date printed on the notice so I wanted to ask you if its okay to take a chance?

Answer #5
There are procedures and policies set in place by the USCIS so that petitions are adjudicated and processes are completed in a timely manner. The USCIS has scheduled the appointment for the date listed due to their tremendous workload at the present time. We recommend that you attend the biometrics as scheduled. Please be aware that the USCIS has the discretion to turn you away if you do attempt to have your fingerprints taken outside of the time listed on your appointment notice.

Question #6 – Temporary Work Visas – H-1B Nonimmigrant Visa
I recently got a new project in Redmond, Washington. I will be working at a client in Redmond. I have a certified LCA for my location in Boise, Idaho which was filed with my H1B petition. Does my employer need to file a new labor for Redmond, WA? If so can you guide me and my employer in filing labor in a new state?

Answer #6
According to the regulations governing the H-1B program, when you move to a new location outside of the geographical location listed on the original certified LCA, a new LCA must be submitted to the Department of Labor (DOL), as well as an amended petition filed with the USCIS. In summary, since your location change would be considered a "material change" in your previously approved employment, you would need to file a new LCA as well as the amended petition to stay within the regulations.

Question #7 – 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’. Can we submit my petition without the end client letter?

Answer #7
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 that the ‘bona fide employer-employee relationship’ will continue to exist throughout the requested period.

Helpful Resources:
USCIS Memo - January 8, 2010
USCIS Q&A Guidance

Question #8 – Visa Bulletin
Where do I find the visa bulletin?

Answer #8
The Department of State's Bureau of Consular Affairs publishes the monthly Visa Bulletin on their website at www.travel.state.gov under the Visas section. Alternatively, visitors may access the Visa Bulletin directly by going to:
http://www.travel.state.gov/visa/bulletin/bulletin_1360.html.
To be placed on the Department of State’s E-mail subscription list for the “Visa Bulletin”, please send an E-mail to the following E-mail address: listserv@calist.state.gov and in the message body type: Subscribe Visa-Bulletin First name/Last name (example: Subscribe Visa-Bulletin Sally Doe)

Question #9 – Temporary Work Visa – H-1B Nonimmigrant Visa
My last name has been omitted from form I-129 receipt notice. All my paperwork and G-28 had both my first and last name spelled correctly. Last Name omitted on I-129 receipt, what do I need to do now?

Answer #9
You will need to contact the USCIS National Customer Service number (1-800-375-5283) and speak with a Representative to request that the mistake be corrected, so that your I-129 Approval notice (Form I-797) will provide your first and last name.

Question #10 – Temporary Work Visa – H-1B Nonimmigrant Visa
I need to renew my H-1B visa. I have my H-1B visa since 2003.I already filed for my green card. Currently, I'm at the last step waiting for I-485 approval. My I-140 has been approved. I have my EAD. I spoke with my employer, they are willing to sign the paperwork and renew my H-1B. However, they are not willing to pay for the attorney fee and filing fee. Will it be alright for me to pay all the fees (attorney fee + filing fee)?

Answer #10
Absolutely not. The legal fees for the preparation and filing of the H-1B nonimmigrant extension petition should be borne by the Employer. Additionally, the USCIS filing fees shall be borne by the Employer. The H-1B nonimmigrant visa program calls for sponsorship, meaning the Employer must “sponsor” you, meaning pay the necessary fees and support your employment in 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, August 19th, 2011!

Please remember to submit your questions/comments on our H1B Visa Lawyer Blog.

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 29, 2011, 22,700 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of July 29, 2011, 13,800 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!

Introduction
U.S. Citizenship and Immigration Services (USCIS) issued updated guidance to adjudication officers to clarify what constitutes a valid employer-employee relationship to qualify for the H-1B ‘specialty occupation’ classification. The memorandum clarifies such relationships, particularly as it pertains to independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party worksites. The memorandum is titled: “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements: Additions to Officer’s Field Manual (AFM) Chapter 31.3(g)(15)(AFM Update AD 10-24).” In addition to clarifying the requirements for a valid employer-employee relationship, the memorandum also discusses the types of evidence petitioners may provide to establish that an employer-employee relationship exists and will continue to exist with the beneficiary throughout the duration of the requested H-1B validity period.

Questions & Answers
Q: Does this memorandum change any of the requirements to establish eligibility for an H-1B petition?

A: No. This memorandum does not change any of the requirements for an H-1B petition. The H-1B regulations currently require that a United States employer establish that it has an employer-employee relations with respect to the beneficiary, as indicated by the fact that it may hire, pay, fire, supervise or otherwise control the work of any such employee. In addition to demonstrating that a valid employer-employee relationship will exist between the petitioner and the beneficiary, the petitioner must continue to comply with all of the requirements for an H-1B petition including:

- establishing that the beneficiary is coming to the United States temporarily to work in a specialty occupation;
- demonstrating that the beneficiary is qualified to perform services in the specialty occupation; and
- filing of a Labor Condition Application (LCA) specific to each location where the beneficiary will perform services.

Q: What factors does USCIS consider when evaluating the employer-employee relationship?

A: As stated in the memorandum, USCIS will evaluate whether the petitioner has the “right to control” the beneficiary’s employment, such as when, where and how the beneficiary performs the job. Please see the memorandum in the links in the upper right hand of this page for a list of factors that USCIS will review when determining whether the petitioner has the right to control the beneficiary. Please note that no one factor is decisive and adjudicators will review the totality of the circumstances when making a determination as to whether the employer-employee relationship exists.

Q: What types of evidence can I provide to demonstrate that I have a valid employer-employee relationship with the beneficiary?

A: You may demonstrate that you have a valid employer-employee relationship with the beneficiary by submitting the types of evidence outlined in the memorandum or similar probative types of evidence.

Q: What if I cannot submit the evidence listed in the memorandum?

A: The documents listed in the memorandum are only examples of evidence that establish the petitioner’s right to control the beneficiary’s employment. Unless a document is required by the regulations, i.e. an itinerary, you may provide similarly probative documents. You may submit a combination of any documents that sufficiently establish that the required relationship between you and the beneficiary exists. You should explain how the documents you are providing establish the relationship. Adjudicators will review and weigh all the evidence submitted to determine whether a qualifying employer-employee relationship has been established.

Q: What if I receive or have received an RFE requesting that I submit a particular type of evidence and I do not have the exact type of document listed in the RFE?

A: If the type of evidence requested in the RFE is not a document that is required by regulations, you may submit other similar probative evidence that addresses the issue(s) raised in the RFE. You should explain how the documents you are providing address the deficiency(ies) raised in the RFE. Adjudicators will review and weigh all evidence based on the totality of the circumstances. Please note that you cannot submit similar evidence in place of documents required by regulation.

Q: Will my petition be denied if I cannot establish that the qualifying employer-employee relationship will exist?

A: If you do not initially provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period, you may be given an opportunity to correct the deficiency in response to a request for evidence (RFE). Your petition will be denied if you do not provide sufficiently probative evidence that the qualifying employer-employee relationship will exist for any time period.

Q: What if I can only establish that the qualifying employer-employee relationship will exist for a portion of the requested validity period?

A: If you do not initially provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period, you may be given an opportunity to correct the deficiency in response to a request for evidence (RFE). Your petition may still be approved if you provide evidence that a qualifying employer-employee relationship will exist for a portion of the requested validity period (as long as all other requirements are met), however, USCIS will limit a petition’s validity to the time period of qualifying employment established by the evidence.

Q: What happens if I am filing a petition requesting a “Continuation of previously approved employment without change” or “Change in previously approved employment” and an extension of stay for the beneficiary in H-1B classification, but I did not maintain a valid employer-employee relationship with the beneficiary during the validity of the previous petition?

A: Your extension petition will be denied if USCIS determines that you did not maintain a valid employer-employee relationship with the beneficiary throughout the validity period of the previous petition. The only exception is if there is a compelling reason to approve the new petition (e.g. you are able to demonstrate that you did not meet all of the terms and conditions through no fault of your own). Such exceptions would be limited and made on a case-by-case basis.

Q: What if I am filing a petition requesting a “Change of Employer” and an extension of stay for the beneficiary’s H-1B classification? Would my petition be adjudicated under the section of the memorandum that deals with extension petitions?

A: No. The section of the memorandum that covers extension petitions applies solely to petitions filed by the same employer to extend H-1B status without a material change in the original terms of employment. All other petitions will be adjudicated in accordance with the section of the memorandum that covers initial petitions.

Q: I am a petitioner who will be employing the beneficiary to perform services in more than one work location. Do I need to submit an itinerary in support of my petition?

A: Yes. You will need to submit a complete itinerary of services or engagements, as described in the memo, in order to comply with 8 CFR 214.2(h)(2)(i)(B) if you are employing the beneficiary to perform services in more than one work location. Furthermore, you must comply with Department of Labor regulations requiring that you file an LCA specific to each work location for the beneficiary.

Q: The memorandum provides an example of when a beneficiary, who is the sole owner of the petitioner, would not establish a valid employer-employee relationship. Are there any examples of when a beneficiary, who is the sole owner of the petitioner, may be able to establish a valid employer-employee relationship?

A. Yes. In footnotes 9 and 10 of the memorandum, USCIS indicates that while a corporation may be a separate legal entity from its stockholders or sole owner, it may be difficult for that corporation to establish the requisite employer-employee relationship for purposes of an H-1B petition. However, if the facts show that there is a right to control by the petitioner over the employment of the beneficiary, then a valid employer-employee relationship may be established. For example, if the petitioner provides evidence that there is a separate Board of Directors which has the ability to hire, fire, pay, supervise or otherwise control the beneficiary, the petitioner may be able to establish an employer-employee relationship with the beneficiary.

Q: What happens if I do not submit evidence of the employer-employee relationship with my initial petition?

A: If you do not initially provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period, you will be given an opportunity to correct the deficiency in response to a request for evidence (RFE). However, failure to provide this information with the initial submission will delay processing of your petition.

For more information on USCIS and its programs, call 1-800-375-5283.

Information Provided by: United States Citizenship and Immigration Services (USCIS) Published Jan. 13, 2010; revised Aug. 2, 2011

On June 17, Immigration and Customs Enforcement (ICE) issued a new policy entitled "Exercising Prosecutorial Discretion…" clarifying how immigration officials should focus on the agency's key priorities to pursue criminal immigrants who pose real threats to public safety and national security. Commentators, including a member of Congress and the union that represents immigration officers, have criticized the memo, calling it a grant of amnesty that shirks the Obama Administration's duty to enforce immigration law. Last week, Congressman Lamar Smith (R-TX) sent a letter to all members in the House of Representatives stating that the June 17 "memo suggested that the agency take steps to legalize millions of illegal immigrants."

Please click here to review the Policy - Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens

Myth 1. The Administration's "prosecutorial discretion" policy is a grant of amnesty

Ever since President Reagan signed a law in 1986 granting legal status for millions of undocumented immigrants, those in favor of more restrictive immigration laws have complained that Reagan should not have granted an "amnesty" to lawbreakers. In the past decade, every bill proposing to register undocumented immigrants and legalize their status-no matter how tough the enforcement provisions-have been labeled amnesty. Those same charges were leveled at ICE's June 17 policy announcement. But nothing in that policy can be accurately described as even close to an amnesty. Most importantly, it does not authorize immigration officials to grant any immigrant legal status that is not already established in law. The policy reiterates ICE's existing enforcement priorities and gives guidance as to how and when to apply them in the field in a variety of settings from the moment an agent speaks to a person through the point of a prosecutor deciding whether and how to appeal a decision by a judge.

Myth 2. The Administration is being soft on immigration enforcement.

Immigration enforcement has never been more vigorous. In the fiscal year that ended September of last year, ICE deported nearly 400,000 people, a record high. Last year, Congress granted the Administration's request for an additional $650 million to provide increased border resources, including more border patrol agents, more surveillance equipment, and technology improvements. President Obama has also cited significant increases in the number of criminal aliens that have been apprehended and deported. Smart and effective enforcement does not mean picking up everyone on the streets dragnet-style. It requires targeting ICE resources to achieve the agency's mission of enforcing the law and ensuring public safety and national security.

Myth 3. The Obama Administration has granted "deferred action"-effectively amnesty-to thousands of people.

In March, Homeland Secretary Janet Napolitano testified before Congress that DHS had granted deferred action in less than 900 cases in the previous fiscal year, fewer times than the previous administration. Deferred action is a decision by the government to suspend temporarily deportation proceedings against someone. Deferred action does not grant legal status or provide a path to legal permanent residency, and DHS can revoke it and reinitiate proceedings at any time. Typically deferred action has been granted to ameliorate hardship on a case by case basis both for people who may be eligible in the future for legal status and those who are not.

Since Napolitano testified, she has been accused of misleading the public. The Federation for American Immigration Reform, an advocacy group in support of more restrictive immigration policies, announced that DHS had, in fact, granted deferred action in 12,338 cases in 2010. Of those cases, however, 96 percent (or 11,796) were made to victims of domestic violence, human trafficking and serious crimes as part of the process for granting special visas to protect them, including many who are helping law enforcement in the investigation and prosecution of dangerous criminals. These special visas were authorized by Congress to prevent domestic abuse, human trafficking and other violent crimes, goals that have long had strong bipartisan support in Congress.

Myth 4. Prosecutorial discretion is a new invention of the Obama Administration.

ICE's June 17 policy did not create anything new but affirmed a long-standing principle used by prosecutors and law enforcement officials nationwide to decide whether and how to enforce the law in a particular case. Every day, our nation's law enforcement officials make decisions about who to arrest, who to prosecute, and what sentences to seek. In the past decade, administration officials under Presidents Clinton, Bush and Obama have issued more than a dozen memoranda outlining the practice. In 1999, 28 members of the House of Representatives from both parties, including Rep. Lamar Smith who now criticizes the policy, wrote to then-Attorney General Janet Reno encouraging the use of prosecutorial discretion in the enforcement of immigration law. The letter questioned why there were not policies in place to guide prosecutorial discretion in cases where deportation was "unfair" and caused "unjustifiable hardship" - for example, in cases of immigrants who came to this country as children or had U.S. citizen family members. The June 17 policy uses similar criteria to guide its officials.

Myth 5. The Administration is bypassing Congress and creating new immigration law.

Critics have suggested that ICE's June 17 policy oversteps the Administration's executive powers and usurps Congress's authority to legislate. The Constitution delegates authority to Congress to make laws. The executive branch has the responsibility to implement those laws and must do so in a well-balanced manner consistent with the law. Historically, immigration officers, just as any other law enforcement officers, have exercised prosecutorial discretion to conserve finite enforcement resources and to prevent injustices. In a 2010 memo, Attorney General Holder explained, "[t]he reasoned exercise of prosecutorial discretion is essential to the fair, effective, and even-handed administration of the federal criminal laws. Decisions about whether to initiate charges, what charges and enhancements to pursue, when to accept a negotiated plea, and how to advocate at sentencing, are among the most fundamental duties of federal prosecutors." The June 17 ICE policy does not grant new authority but simply seeks to consolidate, update, and clarify the more than a dozen prosecutorial memos that have been issued over the past decade. ICE is not usurping Congress' authority; it is doing its job.

This Information provided by: The Pulse: AILA's Capitol Beat - August 2, 2011 Edition

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, 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, August 5th, 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.

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)*
OR
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

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!

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

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.

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.

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!

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.

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.

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!

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.

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)"

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.

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!

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.

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.

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.

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.

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 June 24th, 2011, 17,400 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of June 24th, 2011, 11,300 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!

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 “Cook.”

On ETA Form 9089 the Employer listed 2 years as the minimum amount of experience required for the position. Certification was denied by the CO on the grounds that the Employer did not select the name of the newspaper for the second advertisement in Section I-11. In a request for review, the Employer argued the omission was inadvertent and the “New York Daily News” should be inserted and included copies of the advertisement. An Audit Notification was then issued by the CO who stated that the minimum requirements set by the Employer exceed the SVP level assigned by O*NET. In order for the Employer to list requirements higher than those set by SVP, he must demonstrate that the additional requirements are essential for the position. The Employer submitted its response to the Audit and explained the business necessity for the additional requirements. The Employer stated that in the past when he had hired individuals with less than two years experience their skills were unsatisfactory and “they lacked knowledge to put together the necessary menus.” However, the CO denied certification due the fact that the Employer did not respond to the Audit before the specified date of 3/31/2008. The Employer wrote back arguing that a response was sent on March 12 and that a Federal Express Receipt show the audit team received it on March 14. Again the CO denied certification going back to the original reason for denial that the Employer exceeded the requirements set by the SVP level and did not adequately prove a business necessity for the additional requirements. In request for review the Employer submitted letters from other restaurant owners who require a minimum of two years experience, pages from the O*NET website and Dictionary of Occupational Titles showing a SVP of 6 for a cook position. The CO found the Employer’s response did not overcome the deficiencies and the documentation the Employer submitted was new evidence. The case was then forwarded to BALCA and a Notice of Docketing was issued.

PERM regulation 20 C.F.R. § 656.17(h)(1) controls and it provides that unless adequately established for business necessity, the job requirements must not exceed those set by the SVP level assigned by O*NET.

In the instant case, the Employer’s requirements for the position exceed those set by the SVP assigned by O*NET for the position of “Cook.” The letter from the Employer did not sufficiently prove business necessity for the additional experience requirement of two years. The Employer did prove business necessity but did so with evidence not within the record during the original denial; therefore it could not be considered.

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

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

Certification was denied by the CO who cited that ETA Form 9089 was incomplete; specifically section F-4 (skill level) and M-3 (preparer’s title) had been left blank. A request for review was issued by the Employer who cited that the fields left blank were too minor to, “consider the form ‘incomplete’ and outright deny [the certification].” The Employer went on to further argue that in the past he had routinely left those same fields blank and certification had never been denied, therefore he should have the chance to correct the form. Included with the request for review, the Employer submitted corrected forms with the previously omitted fields completed. After the case was forwarded to BALCA and a Notice of Docketing was issued, the Employer filed a Statement of Intent to Proceed on April 23, 2010.

PERM regulation 20 C.F.R. § 656.17(a) controls and it provides that an Employer filing for labor certification on behalf of an alien must submit a fully completed ETA Form 9089 (Application for Permanent Employment Certification). Applications that are not complete or that have missing fields will automatically be denied.

In the instant case, the Employer argued that the omissions were so insignificant that they did not have bearing on the decision of certification. BALCA found that while regulation states all applications must be fully complete, “some omissions may not be material to the review of the substance of an application.” BALCA found that the Employer made a sufficient argument that the omissions were not material and were provided elsewhere on the form. Additionally the CO offered no argument as to why the omissions were needed in completing a sufficient review of the case to determine certification.

Accordingly, the Board vacated the decision of the CO in denying labor certification and returned the matter to the CO for completion of processing.

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 “Propagation Supervisor.”

An Audit Notification was issued by the CO to the Employer requesting a copy of the job order placed with the State Workforce Agency (SWA) and any other SWA related documents. A response to the audit was submitted by the Employer. Certification was thereafter denied by the CO on the grounds that the audit response material was insufficient to, “demonstrate that a U.S. worker could not be trained to qualify for the position.” The representative of the Employer requested a review of the case and argued that the owner’s illness, substantial growth and other factors prevented the Employer from training U.S. workers. The CO stood by his original decision and denied certification again. The case was then forwarded to BALCA and a Notice of Docketing was issued. In the Employer’s appellate brief, he argued an acceptable amount of evidence was presented to the show inability to train US workers for the position.

PERM regulation 20 C.F.R. § 656.17 (i)(3) controls and it provides, “the employer cannot require domestic worker applicants to posses training and/or expertise beyond what the alien possessed at the time of hire unless the employer can demonstrate it is no longer feasible to train a worker to qualify for the position.”

In the instant case, the Employer argued a “change in business conditions” was the prohibiting factor in training U.S. workers. In reviewing the case, BALCA did not agree with the Employer’s defense that it was impossible to train U.S. workers. Additionally, BALCA did not find that the Employer’s extenuating circumstances should have prevented the training of U.S. workers.

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

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
How many H1 nonimmigrant visas remain under the CAP?

Answer #1
As of June 17th, 2011, there were approximately 48,700 H-1B Regular CAP subject nonimmigrant visas remaining and 9,200 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.

Question #2 – Employment Based Immigration – Green Card
My priority date is current as of the July 2011 visa bulletin. I heard we could call and provide details of our case so that based on first come first call they would process and issue the GC.

Answer #2
You cannot call the USCIS to speed up the processing/issuance of your Green Card. Priority dates were established for this exact purpose. Each individual has a specific priority date which was issued to them when their Labor application was submitted to the Department of Labor (DOL). Only when the applicant’s priority date becomes current will the USCIS begin to process the applicant’s I-485 paperwork and thereafter may issue the Green Card.

Question #3 – Temporary Work Visa – H-1B Nonimmigrant Visa
A couple of our employees are nearing their 6th year on H-1B visa status, and they have approved I-140s in the EB2 category filed by different companies. Can we use those approved I-140s to get three year extensions with our company?

Answer #3
Yes. Pursuant to AC21 law, an H-1B immigrant may extend his or her status beyond the 6 year limitation if a labor certification, I-140, or employment based adjustment of status application has been filed where 365 days or more have elapsed since the filing of the labor certification or I-140. Or, where the H-1B immigrant has an I-140 petition which has been approved under the employment based green card and the AOS/485 is pending due to the unavailability of visa numbers.

Question #4 – Temporary Work Visa – H-1B Nonimmigrant Visa
How long can we continue to request three year extensions based on an approved I-140 when the applicant has exhausted his time on H-1B status?

Answer #4
You will be able to continue to request extensions up to a three year period until a visa number becomes available for the applicant pursuant to AC21 law.

Question #5 – Employment Based Immigration – Green Card
Last time I gave fingerprints was when I filed I-485 back in 2007. The fingerprints that the USCIS have on file may have expired. Should I take an appointment to give them a new set of fingerprints?

Answer #5
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 #6 – Employment Based Immigration – Green Card
My daughter received her green card and her birthdate is incorrect on the card. How can I fix this?

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 – Temporary Work Visa – H-1B 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 #7
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 #8 – Temporary Work Visas
What is the grace period on an O-1 extension? I reside in New York, my current O1 visa expires on 7/25/2011 and I’ve filed for an extension on 4/17/2011. I have received a receipt notice.

Answer #8
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.

Question #9 – 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 #9
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. Also, due to the FY2011 H-1B CAP still being available, the USCIS is busy with attempting to adjudicate change of status petitions, extensions and transfers all within the same processing times. Although this explanation is not an excuse, I just want you to be aware of the background with the processing times for the H-1B nonimmigrant visa.

Question #10 – Employment Based Immigration – Green Card
Regarding changing jobs, is there a recommended wait time after the green card that I can change employers. On the EAD there was a 6mth after which I could do this, but was wondering after the GC if there is any such thing. Appreciate your answer.

Answer #10
Although the regulations are silent on this issue, we recommend that you wait at least six (6) months before changing your employer to avoid issues if you intend on applying for citizenship when you become eligible.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, July 8th, 2011! Please remember to submit your questions/comments on our h1bvisalawyer blog.

Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Service Centers were released on June 13th, 2011 with processing dates as of April 30, 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.

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

The Employer’s Application was denied by the CO who found the company to be illegitimate because the Employer did not have a valid Federal Employer Identification Number (FEIN). The CO did not issue an audit notification. In the Employer’s request for review copies of its business license, FEIN documentation, certificate of liability insurance, and income tax returns were included. In the reconsideration of the decision, the CO stated the Employer did prove sufficient evidence verifying the business license but there was no documentation to support the Employer’s FEIN. The CO also pointed out that no response had been received by the Employer after request had been sent to the Atlanta National Processing Center for proof of the Employer’s FEIN. The case was forwarded to BALCA; however, the Employer did not submit an appellate brief. In the Statement of Position, the CO argued that because the Employer failed to produce any documentation validating its FEIN he was unable to determine whether the company was legitimate and therefore had to deny certification.

PERM regulation 20 C.F.R. § 656.24(g)(2)(i)-(ii) controls and it provides in a request for reconsideration of denial of labor certification an employer may submit documentation requested from the CO or documentation that the Employer did not have the opportunity to present when the application was originally filed.

In the instant case, certification was denied because the CO could not determine whether the company was a bona fide business entity. In reconsideration, documentation concerning the Employer’s FEIN was presented by the Employer that was not originally available at the time of filing. However, the CO still found that it could not determine if the company was bona fide. BALCA found that the Employer did provide information which lists the Employer’s FEIN and matches the number on the certification application, concluding that the CO’s denial was improper.

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

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 June 17th, 2011, 16,300 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of June 17th, 2011, 10,800 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!

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, June 24th, 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.

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

The position advertised listed the minimum level of education required as a bachelor’s degree in computer science, information systems or computer engineering as well as 12 months experience in section H.4 and H.5 of the application. In Section H.8 the Employer also noted that just a bachelor’s with no experience or a foreign education equivalent would be acceptable for the position. Additionally, the Employer listed “system analysis & design, VB, C++, database design & development, MIS, operating systems, etc” in the section for specific skills and other requirements for the position. Certification was denied by the CO on the grounds that the alien only had a bachelor’s degree in information systems, no training or experience was listed to meet the requirements of the Employer. A request for review was submitted by the Employer who cited that a bachelor’s degree with no experience was an acceptable combination of education and experience. The case was then forwarded to BALCA and a Notice of Docketing was issued.

PERM regulation 20 C.F.R. § 656.16(i)(1) controls and it provides that the listed job requirements must match an Employer’s actual minimum job requirements.

In the instant case, the Employer does list on the application that he was willing to hire an individual with the required bachelor’s education and no experience as an alternative to the 12 months experience. The alien did meet the Employer’s alternative accepted education and experience requirements at the time of hiring. As a result, BALCA found the CO’s decision in denying certification unwarranted.

Accordingly, the Board vacated the decision of the CO in denying labor certification and returned the matter to the CO for completion of processing.

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 “Product Manager.”

Certification was denied by the CO who cited the applicant did not meet the position’s education requirements or the minimum experience qualifications. The Employer thereafter requested reconsideration on the grounds that the alien had attended a university for one year and had fourteen and one-half years of experience. The CO noted that with the given information and the employer’s formula, the alien’s education and experience would be equivalent to 17 years. This translates to 12 years of experience required as the equivalent for a Bachelor’s degree plus five years experience. However, according to the Field Memorandum NO. 48-94, Policy Guidance on Labor Certification Issues (FM) a Bachelors’ degree is only equivalent to two years of experience, therefore a Bachelor’s degree plus five years experience is only equivalent to seven years experience. Since the Employer’s requirement of 17 years of experience was not “substantially equivalent” to the primary requirements for the job, the CO denied certification. The case was then forwarded to BALCA and the Employer filed an appellate brief. In the appellate brief, the Employer argued that “17 years of experience” had never been listed on the application for the position of “product manager.” The CO submitted a Statement of Position stating the Employer also submitted the application too many days after the end date of the SWA job order, violating regulation.

PERM regulation 20 C.F.R. § 656.17(i)(1)-(2) controls and it provides that an Employer must represent the actual minimum requirements for the position on an application and an Employer must not hire individuals with less training or experience for a position than set by the requirements.

In the instant case, BALCA found the Employer’s formula for equivalent experience was “a gross departure” from that determined by FM. The Employer would have required 17 years while the FM formula only required 7 years as an equivalent.

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

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.”

The Employer was issued an Audit Notification by the CO who requested additional documentation of recruitment as well as its ability to pay foreign workers the wage offered. The evidence requested included state payroll taxes for the last three years, federal income taxes statements for the last three years, list of current employees with their titles, work contracts, etc. The Employer responded to the audit; however the CO denied certification on the grounds that the Employer submitted no documentation to prove the ability to pay the $48, 200 per year offered to the foreign workers. Review was requested by the Employer who argued that because it’s a consulting company the amount of money available depends on the funds generated by clients. Even after the letter of reconsideration, the CO still found that the Employer did not sufficiently prove its ability to pay the wage offered to the foreign worker. The CO cited that the Employer’s 2007 tax return was only $9,855 after operating costs. BALCA issued a Notice of Docketing and the CO’s appellate brief provided evidence to show that the Employer did not “have sufficient funds to pay the wage offered to the Alien.”

PERM regulation 20 C.F.R. § 656.10(c)(3) controls and it provides that one part of the labor certification process is that the Employer must sufficiently prove the ability to pay the salary offered to the alien.

In the instant case, the documentation provided contradicted the Employer’s claim that he could adequately pay the offered wage to the foreign workers. The Employer’s taxable income was negative after deductions and even before deductions it was around $40,000 short of the salary offered to the alien. BALCA found the Employer submitted no evidence to show he had enough funds to pay the wage offered to the Alien.

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

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
Potential employers keep telling me USCIS is no longer accepting H1B Visa petitions. I had the same answer from more than one employer. How can it be possible if the 2012 cap has not been reached? They told me I have to apply for an O1 visa...

Answer #1
I am not sure where these employers are obtaining their information from, as the H1B Regular Cap and Masters Cap for FY2012 remain open and petitions are readily accepted and processed by the USCIS for employment beginning October 1, 2011.

Question #2 – Employment Based Immigration – Green Card
Hi, I have a pending 485 application in EB3 category with a priority date of Oct 2006. I am interested in porting my EB3 application to EB2. Can I do this?

Answer #2
If you have the necessary education and experience you may qualify to port your earlier EB3 I-140 priority date to the new EB2 I-140 petition.

Question #3 – Temporary Work Visa – H-1B Nonimmigrant Visa
How many H1 nonimmigrant visas remain under the CAP?

Answer #3
As of June 1st, 2011, there were approximately 51,400 H-1B Regular CAP subject nonimmigrant visas remaining and 10,700 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 #4 – General
I work for a company in San Diego, California, a computer company. They have expressed an interest in sponsoring my green card. I have a friend in Maryland who used your firm for other immigration service and I wanted to know if I could use your firm to process my green card? With me in California and your firm in Maryland, can we do this, is it legal?

Answer #4
MVP Law Group is an innovative law firm that provides business immigration services to corporations, universities, hospitals, and other organizations, as well as, entrepreneurs and individuals. Immigration law is federal in nature (i.e., no state or provincial law is involved), therefore, our firm is able to provide U.S. business immigration services to clients located anywhere in the United States and around the world. If you would like to schedule a consultation to discuss your particular situation, please contact our office.

Question #5 – Employment Based Immigration – Green Card
Is it true that once I got the I-140 I can find another company to sponsor me beyond my 6 years in case my current company will no longer continue my employment?

Answer #5
The American Competitiveness in the 21" Century Act of 2000 (AC21), which amends §204(j) of the Immigration and Nationality Act (INA) provides:

Job flexibility for long delayed applicants for adjustment of status to permanent residence. —A petition under subsection (a)(1)(D) for an individual whose application for adjustment of status pursuant to section 245 has been filed and remained un-adjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or similar occupational classification as the job for which the petition was filed.

This provision allows employment-based adjustment of status applicants (from any nonimmigrant status) whose I-485s have been pending for 180 days or more to change jobs or employers without invalidating the underlying Petition for Alien Worker (Form I-140) or certified Application for Alien Employment Certification (ETA Form 9089), as long as the new job is in the same or similar occupational classification as the one for which the Petition was filed.

Question #6 – Temporary Work Visa – H-1B Nonimmigrant Visa
I am not sure what is going on. I have an H-1B application pending since February 2011, no RFE issued yet. Can I contact USCIS for them to look further into the case and why it is taking so long. Is it true?

Answer #6
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 #7 – 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 January 2012 as I am currently in my 6th year. Can we apply for H1 extension based on pending I-140 appeal? If yes, for 3 years or for 1 year?

Answer #7
Under AC21, yes you may be eligible to file an H-1B extension beyond the six year period if you appealed the denied I-140 in a timely manner (before the deadline). An applicant is eligible to file for H-1B one-year extensions if they have a pending I-140 petition appeal at the Administration Appeals Office (AAO).

Question #8 – Temporary Work Visa – H-1B Nonimmigrant Visa
I have to go for visa stamp in India. What documents should I have?

Answer #8
We recommend that you take the following with you to your visa appointment (by having all of this documentation you should be fully prepared and able to answer any questions that may arise concerning your petition) - all the required documents for any non-immigrant visa Plus; I-797 -- the original notice of approval; two (2) copies of the complete I-129 petition submitted by your prospective employer including the Labor Condition Application (LCA); the originals, plus one copy, of your university diplomas, mark sheets and any certificates you may have. (Secondary school information is not required); Letter from petitioning employer confirming employment; Original, plus one copy, of your work experience letters from your previous employers; Pay slips from current or most recent place of employment; Names and current phone numbers of the personnel managers at the applicant's present and past jobs; Photographs of the inside and outside of current or most recent employer's place of business; Names and contact information of two co-workers from your current or most recent place of employment; Names and contact information of two co-workers from past jobs; A complete resume/bio-data and cover letter describing current job duties in detail; Personal bank records for the last six months; and US company information: photographs of the inside and outside of the company's offices, prospectus, brochures, and annual report.

Question #9 – Family Based Immigration
My Grandfather (Dad's Dad) was a US citizen and he had filed an I-130 petition (Immigrant petition for relative, fiancé, or orphan) for my dad in Feb 2007. Unfortunately, my grandfather passed away this April. My dad's sisters are U.S. citizens and they are willing to take over the case, if we can transfer the petition. I would like to know if there anything that can be done with this petition now? Or is it a closed chapter?

Answer #9
Under regulation 8 C.F.R. § 205.1(a)(3)(i)(C)(2), an I-130 petition is automatically revoked upon the death of the petitioner, unless:
USCIS determines, as a matter of discretion exercised for humanitarian reasons in light of the facts of a particular case, that it is inappropriate to revoke the approval of the petition. USCIS may make this determination only if the principal beneficiary of the visa petition asks for reinstatement of the approval of the petition and establishes that a person related to the principal beneficiary in one of the ways described in section 213A(f)(5)(B) of the Act is willing and able to file an affidavit of support under 8 C.F.R. part 213a as a substitute sponsor.

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

Question #10 – Temporary Work Visa – H-1B Nonimmigrant Visa
I just got my H-1B extension approved and they gave me valid I-94. Do I need to go home to obtain visa stamp in order to work?

Answer #10
If the beneficiary has been issued a valid I-94 but the beneficiary does not have a valid H1B visa in the passport, they can commence work with the petitioning employer. The beneficiary does not need current visa in their passport unless the beneficiary desires to travel. The beneficiary will probably be required to go to the beneficiary’s home country to obtain the H1B visa.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, June 24th, 2011! Please remember to submit your questions/comments on our h1bvisalawyer blog.

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 “Purchasing Manager.”

On Form ETA 9089 the Employer listed the offered wage and prevailing wage at $67,787.00 per year. An Audit Notification was issued by the CO requesting documentation including a copy of the Notice of Filing (NOF). A copy of the NOF was submitted as the Employer’s response to the Audit, listing the rate of pay as $67,454.00 per year. The application was denied by the CO on the grounds that the NOF listed a lower wage than the prevailing and offered wage. A request for reconsideration was submitted by the Employer arguing that labor certification should not be denied “based solely on the deficiency less than .50% of the prevailing wage.” However, the CO still denied certification after reconsideration and the case was then forwarded to BALCA. In the Employer’s appellate brief, he argued that the amount of $333 difference between the prevailing wage and NOF listed wage should be forgiven, since it equals 99.51% of the prevailing wage.

PERM regulation 20 C.F.R. § 656.17(f)(5) and (7) controls and it provides the Notice of Filing must list a wage equal or exceed the prevailing wage entered by the State Workforce Agency.

In the instant case, the wage listed on the NOF is less than the prevailing wage and less than the wage offered to the alien. BALCA found the $333 difference clearly violated the statutory requirement and the regulations at Section 656.17(f)(5) and (7).

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

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 June 1st, 2011, 13,600 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of June 1st, 2011, 9,300 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!

The Board of Alien Labor Certification Appeals (BALCA) recently reversed the final determination of a Certifying Officer (CO) denying labor certification for an alien worker for the position of “Junior Trading Systems Developer.”

On the Application for Permanent Employment Certification accepted by the CO on September 14, 2007, the Employer listed the three additional recruitment steps taken to advertise the position. The steps included listing on a job search web site, advertising in a local newspaper as well as advertising with the employee referral program from July 10, 2007 to August 10, 2007. An audit was issued by the CO requesting documentation of the Employer’s employee referral program. Thereafter, certification was denied by the CO who cited the Employer failed to include dated copies for the advertising of its employee referral program. In a request for review to the CO, the Employer argued that the program is ongoing and every new hire is provided a copy of the memorandum. An email dated March 17, 2008 was also submitted to demonstrate the Employer regularly notified its employees of the program.

PERM regulation 20 C.F.R. § 656.12(e)(1)(ii)(G) controls and it provides as part of the three recruitment steps an Employer must fulfill as part of PERM regulations, one can be an employee referral program with incentives. The program can either be documented with “dated copies of the employer notices or memoranda advertising the program and specifying the incentives offered.”

In the instant case, BALCA found the Employer sufficiently provided evidence of its employee referral program as a method of recruiting workers. Documents were submitted specifying the incentives offered, evidence was provided supporting the program was in existence at the time of recruitment, and over 90% of the applicants were a result of the employee referral program.

Accordingly, the Board reversed the decision of the CO and granted labor certification.

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, June 10th, 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.

Opponents of the federal program called Secure Communities are speaking out in protest saying a program that was created to catch illegal immigrants with criminal records is now forcing individuals who are non-criminals to be deported.

According to the National Day Laborer Organizing Network, an estimated 1 in 4 individuals are deported by Secure Communities that had no prior criminal convictions. For instance, more than half the people in Franklin County, Ohio where Secure Communities was adopted in January 2010 were deported with no criminal record.

Many opponents of the program, like chairman of the Ohio Hispanic Coalition Joe Luis Mas are urging the President and the federal government to push immigration agents to focus on immigrants with convictions and change how Secure Communities works. Additionally, others like the spokesman for the National Day Laborer Organizing Network B. Loewe fear the program allows law enforcement to use racial profiling.

To help create a more safe, secure and timely way of delivering immigration documents, US Citizenship and Immigration Services (USCIS) recently implemented the Secure Mail Initiative (SMI).

The new SMI was created through a partnership between USCIS and USPS which utilizes priority mail and delivery confirmation of permanent resident cards, documents for travel and employment authorization. Additionally, SMI allows individuals to track and stay up-to-date on the status of their package through USPS tracking. Once an individual has been notified of an approval, they can call the USCIS Customer Service Center at 800-375-5283 to request tracking information. After receiving the tracking number, individuals can log on to www.usps.com to track their package.

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 May 26th, 2011, 13,100 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of May 26th, 2011, 9,000 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!

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
Are there any H1B nonimmigrant visas remaining?

Answer #1
As of May 20th, 2011, there were approximately 52,700 H-1B Regular CAP subject nonimmigrant visas remaining and 11,500 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 www.h1bvisalawyerblog.com.

Question #2 – Employment Based Immigration – Green Card
My Priority date will be current soon. I am prepared to file my I-485, what are the associated USCIS filing fees? Do I have to pay for EAD and AP?

Answer #2
You will need to make payment in the amount of $1,070.00 or less depending upon your age, which will cover the I-485 processing, the biometrics, the employment authorization document (EAD) processing and the Advance Parole document (AP) processing.

Question #3 – Temporary Work Visa – TN Visa
What is required to obtain a TN visa at the border? What documents do I need to have to get the visa?

Answer #3
You must establish that the position in question requires the employment of a person in a professional capacity, consistent with the NAFTA Chapter 16, Annex 1603, Appendix 1603.d.1. You will need to carry your educational documents (degree/transcripts/license, if applicable) and work experience documents (experience letters, resume, tax documents, etc.) to evidence your qualifications for the position. You will also need to present an offer letter and/or employment agreement from the company which clearly explains the position you are seeking to be employed in.

Question #4 – Family Based Immigration – Green Card
I am marrying a United States citizen in a few weeks, do you know when I can expect to have my interview and eventually get my green card?

Answer #4
Once you have married and have submitted your paperwork to the USCIS, it is taking approximately 4-6 months nationwide to obtain an interview appointment. This is an estimate as all cases are not the same and the circumstances in one case may be different than in another. If there are any prior marriages, criminal charges, or other circumstances that could affect the case, processing may take even longer.

Question #5 – Temporary Work Visa – H-1B Nonimmigrant Visa
One of our employees is going on vacation from 06/25/2011 – 07/28/2011 and we are getting his h1b ext. in June, as he expires in September 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 #5
The answer to your question depends upon the specifics of your case; whether an end client letter 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 9/2011, you could prepare and file the extension case once the beneficiary returns and it will still be deemed a timely filing. Knowing the above information, please consider all of the circumstances of the case before you make a decision to proceed forward.

Question #6 – Temporary Work Visa – H-1B Nonimmigrant Visa
I went for visa stamping and was issued 221(g) 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." According to the visa officer, I should get my passport in 14 days. I am worried, is this a normal thing? What can my employer do to speed things up?

Answer #6
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. Your employer has no control or authority over this process; therefore, there is nothing they can do to assist. 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 #7 – Temporary Work Visa – H-1B 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 or college, if given the opportunity?

Answer #7
You would be able to hold a part-time teaching position at a university or college; however, the University or College must be willing to sponsor your H-1B visa. The University or College 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 #8 – Temporary Work Visa – H-1B Nonimmigrant Visa
What is the grace period on an H1B extension? I reside in California, my current H1 visa expires on 6/25/2011 and I’ve filed for an extension on 4/9/2011. I got receipt already.

Answer #8
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.

Question #9 – Employment Based Immigration – Green Card
My priority date is current as of the June 2011 visa bulletin. I heard through various forum posts that we can call them and provide details of our case so that based on first come first call they would process and issue the GC faster, is this true?

Answer #9
You cannot call the USCIS to speed up the processing/issuance of your Green Card. Priority dates were established for this exact purpose. Each individual has a specific priority date which was issued to them when their Labor application was submitted to the Department of Labor (DOL). Only when the applicant’s priority date becomes current will the USCIS begin to process the applicant’s I-485 paperwork and thereafter may issue the Green Card.

Question #10 – Temporary Work Visa – H-1B Nonimmigrant Visa
Is a Nurse Practitioner considered a Specialty Occupation? A doctor’s office has given me a job opportunity (I’m on OPT) and I wanted to make sure before I accept that this is doable?

Answer #10
If you have at least a Bachelor’s degree in a specific field and the position requires at least a Bachelor’s degree in a stated filed, then you may be eligible for the H-1B nonimmigrant visa. In the medical industry, most of these occupations require graduate school. This type of position also requires extensive skill, knowledge and experience.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, June 10, 2011! Please remember to submit your questions/comments on our h1bvisalawyer blog.

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 May 20th, 2011, 12,300 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of May 20th, 2011, 8,500 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!

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

In Section M-1 of Form 9089 where the employer is suppose to check whether they completed the application, the Employer failed to check either “yes” or “no”. The CO denied certification of the application on March 23, 2010 citing the fact that Section M-1 was not completed. The case was forwarded to BALCA after the Employer submitted a corrected copy of Form 9089, with Section M-1 complete. The Employer stated he was only seeking reconsideration of the case instead of a formal appeal in a letter to BALCA on August 2, 2010.

PERM regulation 20 C.F.R. § 656.11(b) controls and it provides that after July 16, 2007 no request for modifications to an application will be accepted.

In the instant case, the Employer did submit an amended and complete copy of Form 9089 after receiving the original denial from the CO. Under regulation however, modification to an application can no longer be used for reconsideration of an application. BALCA noted that the attorney for the Employer did fill out the certification below section M-1. The Board thereafter stated they have not, “made a finding whether failure to make a selection in Section M-1 is or is not material under the circumstances of this case.” BALCA declined to affirm or reverse the denial of the case, and instead sent it back to the CO for further consideration.

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

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, May 27th, 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.

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 “Maintenance and Repair Workers, General.”

The Employer’s Application for Permanent Employment Certification was denied on August 28, 2007 by the CO who cited that in section H of Form ETA 9089, the job opportunity listed was not offered to the alien in section J of Form ETA 9089. In the Employer’s request for review, he stated it was a careless mistake to check the “no” box in Section H16 instead of the yes “box”, referencing the view of Matter of Health America. An additional request was submitted by the Employer on September 11, 2008. An audit was then issued and the Employer was requested to provide documentation of the job order placed with the State Workforce Agency (SWA), a copy of the job order issued by the SWA or other evidence to prove publication by the SWA. The documentation submitted by the Employer was found unsatisfactory to the CO in proving the SWA ran the job order and certification was denied on August 26, 2009. After the case was forwarded to BALCA, the Employer filed a Statement of Intent to Proceed on January 12, 2010.

PERM regulation 20 C.F.R. § 656.17(e)(1)(i)(A) controls and it provides that one of the ways an Employer must inform US workers about a job opportunity is by placing a job order with the SWA in the area of intended employment for 30 days.

In the instant case, the Employer did not provide any of the documentation specifically requested by the CO’s Audit Notification to verify the job order placed with the SWA serving the area of intended employment. The documents the Employer did provide were not sufficient enough to conclude that the job order was received and published by the SWA.

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

Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Service Centers were released on May 17, 2011 with processing dates as of March 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.

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 May 13th, 2011, 11,200 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of May 13th, 2011, 7,900 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!

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination of a Certifying Officer (CO) denying labor certification for an alien worker for the position of “Senior SAP Basis Technology Analyst.”

In the Employer’s Application for Permanent Employment Certification, three additional recruitment steps were listed because the job advertised was a professional position. The Employer’s ETA Form 9089 was audited on November 15, 2007. The CO requested recruitment documentation in the Audit Notification and the Employer responded to the audit with a screenshot of its internal job posting website. This screenshot included the dates on which the posting began and ended. Certification was denied by the CO on the grounds that documentation of the additional recruitment steps was insufficient as well as no employer notices or memorandum that specifically indentified incentives offered were submitted. A request for reconsideration was submitted by the Employer on June 18, 2009 who argued the screenshot qualified as sufficient evidence under the regulation. The Employer also sent information detailing the talent referral program in the request for reconsideration. The CO upheld his previous decision in denying certification even after the employer’s request for reconsideration and forwarded the case to BALCA on February 12, 2010. The CO filed his Statement of Position stating the Employer’s inability to submit documentation on time was a just cause for denial.

PERM regulation 20 C.F.R. § 656.24(g)(2)(i) ,(ii) controls and it provides that an Employer’s request for reconsideration may only include documentation that Employer originally did not have to opportunity to present or documentation the CO specifically requested.

In the instant case, the Employer had the opportunity to submit documentation of advertising and the specific incentives in the audit response but failed to do so. Additionally, evidence was submitted by the Employer in the request for reconsideration that was not previously submitted or asked for by the CO. Therefore the evidence cannot be used in the reconsideration of the case and the CO’s denial of certification was valid.

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

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

After accepting the Employer’s Application for Permanent Certification on October 26, 2007, the CO issued an Audit Notification which requested documentation of the Notice of Filing. The Employer responded to the Audit and submitted three pieces of evidence, but an actual copy of the Notice of Filing was not included. A status update of the case was requested by the Employer on June 9, 2008 since no reply had been given since the submission of the audit response. A second request for a status update was sent on November 25, 2008. The denial of the case was issued on December 9, 2008 by the CO who cited failure to produce a copy of the Notice of Filing as well as a difference in the wages listed on the Prevailing Wage Determination (PWD) and ETA Form 9089. The Employer submitted a request for review that included copies of the Notice of Filing and PWD. The Employer also stated in his request for review that the two documents were previously submitted in the audit response. Additionally, the Employer clarified a second PWD was acquired when it was realized the state department of labor had left the prevailing wage blank. However, the CO concluded the denial was valid on November 17, 2009. The CO argued that the Employer did not originally submit the Notice of Filing following the Audit Notification and the copy included in the request for review could not be considered as it was new evidence; however, the CO did accept the Employer’s explanation as to why the wage on the PWD and Form 9089 did not match. The case was then forwarded to BALCA and a Notice of Docketing was issued on December 7, 2009. In the appellate brief, the Employer argued that the Notice of Filing was included in the Audit response, suggesting it may have been lost. The Employer’s attorney also contested there was a copy of the Notice of Filing in her copy of the audit response.

PERM regulation 20 C.F.R. § 656.20(b) controls and it provides that an application can be denied by the CO if the Employer fails to provide the requested documentation following an Audit Notification.

In the instant case, the Employer did respond to the Audit Notification in a timely manner but the documentation submitted did not include the Notice of Filing, which the Employer suggests may have been lost or accidently left out of the response. BALCA found that the Notice of Filing was fully intended to be included in the audit response and its absence was either due to mistake by the sender or recipient.

Accordingly, the Board vacated the decision of the CO in denying labor certification and returned the case to the CO for complete processing.

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
Are there any H1B nonimmigrant visas remaining?

Answer #1
As of May 6th, 2011, there were approximately 54,800 H-1B Regular CAP subject nonimmigrant visas remaining and 12,700 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 #2 – Employment Based Immigration – Green Card
My Priority date will be current soon. I am currently on EAD through my spouse’s I-485 filing and wish to file my I-485 when my priority date becomes current. Can I file while on EAD or do I need to obtain an H-1b or stop working and get an H4? I apologize, I have been reviewing forums and they all say different things.

Answer #2
Based on the limited facts you have provided… pursuant to Section 245, you would be considered a restricted alien– (9) any alien who seeks adjustment of status pursuant to an employment based immigrant visa petition under Section 203(b) of the Act…who is not maintaining a lawful nonimmigrant status at the time he or she files an application for adjustment of status. Restricted aliens are not eligible to adjust unless they qualify under 245(k).

Question #3 – Temporary Work Visa – H-1B Nonimmigrant Visa
I found a company willing to sponsor me, but they asked if I could extend my OPT (I have 8 months remaining) because the attorney said that the process to obtain an H-1B takes longer than that. Is this true? Please help.

Answer #3
The current processing time period for an H-1B petition based on change of status is roughly 3-4 months, with premium processing - 15 calendar days from receipt of the case. The H-1B CAP for FY2012 is still open and you would be able to file under the current quota, so I am not sure where the attorney is obtaining this information from.

Question #4 – Family Based Immigration – Green Card
Are there any types of restrictions on a conditional permanent resident card? Once my husband gets his green card, can he travel (internationally)?

Answer #4
Yes, he may 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, they want 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 should 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.

Question #5 – Temporary Work Visa – H-1B Nonimmigrant Visa
I found a company willing to sponsor me, but they are strongly considering not sponsoring me due to the costs associated with sponsoring me – lawyer fees, filing fees, etc. Can I pay these fees directly to USCIS and lawyer or can I reimburse my sponsoring company, or arrange some type of payment plan?

Answer #5
NO. Lawyer fees and USCIS filing fees MUST be paid solely by the employer, not by the beneficiary. This action would be in violation of the laws governing the H-1B nonimmigrant visa program.

Question #6 – Student – F1 Visa Status
I want my youngest brother to come to USA to go to school; he has mentioned it many times. What do we need to do?

Answer #6
Please visit the following website http://www.ice.gov/sevis/students/index.htm as it will provide the steps for how your brother can obtain an F1 visa to come to the U.S. for school.

The first step for a prospective nonimmigrant student is being accepted for enrollment in an established school which is SEVP certified. There is a list of SEVP certified schools on the website listed above. Therefore, as his first step, your brother must first apply for enrollment at a college of his choice which is listed on the SEVP certified list. Once he has been accepted by that SEVP certified school, he will then need to apply for his F1 student visa. All of the steps for obtaining such status are available on the website listed above, and additional information can be found on this website http://travel.state.gov/visa/temp/types/types_1268.html.

Question #7 – Temporary Work Visa – H-1B Nonimmigrant VisaOne of our employees is nearing his 6th year on H-1B visa status and he has an approved I-140 filed by a different company. Is it possible to use the approved I-140 to get a three year extension with our company?

Answer #7
Yes. Pursuant to AC21 law, an H-1B immigrant may extend his or her status beyond the 6 year limitation if a labor certification, I-140, or employment based adjustment of status application has been filed where 365 days or more have elapsed since the filing of the labor certification or I-140. Or, where the H-1B immigrant has an I-140 petition which has been approved under the employment based green card and the AOS/485 is pending due to the unavailability of visa numbers.

Question #8 – Temporary Work Visa – H-1B Nonimmigrant Visa
I used all my 6 years on H-1B visa and returned to my country. I have been here for almost 6 months now and have a new job offer. Can I now apply for a new H-1B visa under the current cap to return to U.S.? Please let me know so we can move forward.

Answer #8
According to the regulations, once you have exhausted the 6 year limit on H-1B, you must return to your home country for one (1) year before you can petition again for a new H-1B nonimmigrant visa. However, you may qualify for some other type of nonimmigrant visa.

Question #9 – Employment Based Immigration – Green Card
I have an approved I-140 filed by company A and they also submitted my I-485 back in 2007. I have since moved onto employment with company B on my EAD. Can I file AC21 Portability letter?

Answer #9
You may be eligible to file an AC21 106(c) Portability Request if the new position and duties are the same or substantially similar to the position/duties listed in your Labor application certified by the DOL and company B is willing to take over your Green Card sponsorship.

Question #10 – Temporary Work Visa – H-1B Nonimmigrant Visa
What document determines how long I can stay legally in the United States: my visa, my I-94 card or the expiration of my current passport?

Answer #10
Short answer: The visa stamp issued by the U.S. State Department displayed in your passport allows you to enter the U.S. at a port of entry. The I-94 card issued by an Immigration Inspector at the port of entry is your admission ticket and displays the time period you are authorized to stay in the United States. If your I-94 card expires and you did not obtain an extension, and you remain in the U.S. without taking further action, this inaction will result in you accruing unlawful presence in 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, May 27, 2011! Please remember to submit your questions/comments on our h1bvisalawyer blog.

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

The CO issued an Audit Notification on October 2, 2007 requesting additional documentation in regards to the Employer’s recruitment efforts. The Employer responded to the audit by producing copies of its recruitment report and an ad listed on a job search website. Certification was denied by the CO because the recruitment done through the web site neglected to list the employer’s name, marking it as “confidential”. In a request for review, the Employer argued that the Employer’s full name and address were in fact listed on the ad at the following website http://hotjobs.yahoo.com. Though the Employer tried to prove the “advertisement could clearly be matched to the sponsored job opportunity,” the CO found the Employer did not overcome the original deficiencies of the application’s denial. The case was then forwarded to BALCA on November 19, 2009 and the Employer filed a Statement of Intent to Proceed. In the Statement of Position filed on January 22, 2010, the CO restated the reason for denial as the Employer’s identification as “confidential” on the website advertisement.

PERM regulation 20 C.F.R. § 656.17(f)(1) controls and it provides if an employer places an advertisement on a job search web site other than the employer’s, there are certain requirements such as including the “name of the employer.”

In the instant case, the Employer’s name was marked as “confidential” but if a searcher clicked on the links of the website they would be taken to the advertisement which did contain the employer’s name and address. BALCA found a potential employee would have been able to find the full information by clicking on the links available in the listing. Further, the web page without the Employer’s name was not the advertisement itself; the advertisement was a link that could be found on the web page that did include the Employer’s name.

Accordingly, the Board vacated the decision of the CO in denying labor certification and returned the matter to the CO for completion of processing.

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 May 6th, 2011, 10,200 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of May 6th, 2011, 7,300 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!

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 “High School Science Teacher.”

After the Employer neglected to respond to an Audit Notification, the CO denied certification on February 27, 2007. The Employer then proceeded to argue that they had never received the Audit Notification and requested a review of the case. Once the CO re-issued the Audit Notification on May 27, 2008 the Employer did respond. Following a review of the Employer’s response, the CO denied certification on the grounds that the requirements for the job didn’t match on ETA Form 9089 and the order placed with the State Workforce Agency (SWA). The ETA Form 9089 listed a wage lower than that on the job order as well as the fact that the Employer did not submit two recent letters of recommendation to fulfill the requirement of the ad placed on Edjoin.com. In a request for review, the Employer argued the requirement difference on the forms occurred as a result of SWA’s mistake and the Edjoin.com ad shouldn’t have asked for two letters of recommendation. The case was then forwarded to BALCA on November 18, 2009 and a Notice of Docketing was issued. In a Statement of Position, the CO explained the case was denied because the SWA requirements are greater than those listed on ETA Form 9089 and the requirements on the website ad exceed those listed on the application as well.

PERM regulation 20 C.F.R. § 656.17(f)(6) controls and it provides: “advertisements must not contain any job requirements or duties which exceed the job requirements or duties listed on the ETA Form 9089.”

In the instant case, the SWA job order violated the above regulation because the requirements exceeded those stated on ETA Form 9089. Additionally, BALCA found it was the Employer’s responsibility to make sure the job order complies with the filing requirements even if the SWA made a mistake when entering the information.

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

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, May 13th, 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.

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination of a Certifying Officer (CO) denying labor certification for an alien worker for the position of “Senior Software Engineer.”

On the Employer’s Application for Permanent Employment Certification, three additional types of recruitment were listed because the job advertised was a professional position. An Audit Notification was issued by the CO on October 5, 2007 requesting documentation on the Employer’s additional recruitment steps which included: listing the job on a job search website, using the employee referral program and listing the job with a private employment firm. The Employer responded to the Audit Notification on October 19, 2007 and submitted documentation which included: a copy of ETA Form 9098, a letter from HR stating the need for the job’s requirements, the posting of the available notice for the job (dated May 21, 2007 to June 1, 2007), the recruitment report, prevailing wage determination, copies of additional postings, list of recruitment agencies used, and a copy of the employee referral program. Certification was denied on February 11, 2008 by the CO who cited failure to provide, “adequate documentation of additional recruitment steps for professional occupations” as the reason for denial. The CO went on to say the Employer lacked evidence to support the company listing minimum requirements for the job that exceeded the SVP level as well as failed to demonstrate the recruitment efforts by the private employment firms. The Employer submitted a request for review on February 29, 2008 arguing the previous evidence submitted was adequate. Following the Employer’s request for review, the CO still denied certification. The CO accepted the Employer’s argument and additional documentation concerning the business necessity but did not accept the evidence to support the recruitment efforts by private employment firms. The case was then forwarded to BALCA and a Notice of Docketing was issued on October 8, 2009. In a Statement of Position, the CO defended the denial of certification, arguing sufficient documentation was not provided by the Employer to show individuals were given the opportunity to apply for the position or, “that any recruitment was done in a timely manner.”

PERM regulation 20 C.F.R. § 656.17(e)(1)(ii)(F) controls and it provides that an employer may consult private employment firms as one of their additional recruitment steps for a professional position. The regulation also stipulates documentation must be provided that is “sufficient to demonstrate that recruitment has been conducted by a private firm for the occupation for which certification is sought.”

In the instant case, the Employer submitted additional evidence of the private employment firm’s recruitment efforts that was not in the original record; therefore the evidence could not be considered. BALCA found the CO properly denied certification and concluded that the Employer failed to comply with regulations.

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

The Administrative Appeals Office (AAO) Processing Times were released with processing dates as of May 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 18 months; for an I-129 L1 Appeal - 22 months. The current processing time for an I-140 EB2 Appeal for an Advanced Degree Professional is 30 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.

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 “Cook.”

After accepting an application for Permanent Employment Certification on August 28, 2007, the CO issued a denial of the application citing nine different reasons. The Employer requested review of the case on September 14, 2007 and argued that although portions of the application had been “mistakenly overlooked,” he had complied with all the regulations. The letter of request for review from the Employer did not satisfy the CO and the case was forwarded to BALCA on January 6, 2010. The official denial from the CO stated the application was denied on the grounds that the alien did not sign Section L-2 of ETA Form 9098 and the offered wage was lower than the prevailing wage noted on ETA Form 9098. Following a Notice of Docketing issued by BALCA, the Employer filed an appellate brief arguing that they were unable to submit ETA 9098 with the alien’s signature because the alien lives in a remote area of Kosovo with limited mail service. Additionally, the Employer noted in the brief that the higher end of the salary range offered does coincide with the prevailing wage determination listed on ETA Form 9098.

PERM regulation 20 C.F.R. § 656.17(a) controls and it provides that it is the Employer’s responsibility when applying for labor certification on behalf of an alien to submit a fully completed ETA Form 9098 which includes signatures from the employer, alien, and attorney/agent.

In the instant case, BALCA found the burden to be on the Employer as he failed to ensure the application was fully complete upon submission. Without signatures from all necessary parties, a visa petition cannot be processed and is therefore denied.

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

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 29th, 2011, 9,200 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of April 29th, 2011, 6,600 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!

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.

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!

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.

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.

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.

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.

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!

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.

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.

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…

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!

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.

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)"

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)

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.

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…

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.

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.

The United States Citizenship and Immigration Services (USCIS) will begin to accept H-1B petitions for the FY 2012 cap on April 1, 2011 for employment beginning on October 1, 2011 . Cases are considered accepted on the date USCIS receives a complete application with the fee enclosed, not on the postmarked date.

H-1B nonimmigrant visas are for professional foreign workers with a U.S. bachelor’s degree or its foreign equivalent. Congress allows 65,000 visas to be issued annually to qualifying foreign workers. An additional 20,000 H-1Bs are reserved for professional foreign workers who receive U.S. Master’s degrees. Frequently, employers interested in utilizing the H-1B visa program contact an experienced Immigration Lawyer for a consultation about the process, determine eligibility, discuss applicable lawyer’s fees and filing fees, and so forth.

If an individual works at any of the below entities, their H-1B petition will be considered EXEMPT from the CAP:
• Nonprofit research organization
• Government research organization
• Institute of higher education
• Nonprofit organization related to/affiliated with an institute of higher education

Until December 21, 2014 individuals who file of behalf of beneficiaries from Guam or the Commonwealth of the Northern Marianas Islands are also EXEMPT from the CAP.

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

Employers looking to hire new H-1B professionals are urged to begin the H-1B petition process immediately as in prior years, the H1B CAP was reached on the day it opened, April 1.

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

Because immigration law is federal in nature (i.e., no state or provincial law is involved), our firm is able to provide U.S. business immigration services to clients located anywhere in the United States and around the world!

Contact MVP Law Group to begin the process now!

MVP Law Group, P.A.
9192 Red Branch Road, Suite 110
Columbia, MD 21045

Local - 240-390-0600
Fax - 240-390-0603
Toll free - 1-800-447-0796