OUTSIDE THE BOX THINKING, DELIVERING CUTTING EDGE SOLUTIONS!

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An amicus brief was filed by the Legal Action Center of the American Immigration Council (LAC) and the American Immigration Lawyers Association (AILA) that argued an H-1B employee should not face arrest, deportation, or detention if he/she has a pending extension request. The reasoning behind the brief is that the employers who follow immigration law and proceedings should not have to lose employees because there are delays at the processing centers. LAC and AILA also argue that arresting individuals undermines the purpose of the H-1B program and includes support from three prominent companies who rely on the work of individuals with H-1B visas in the amicus brief.

The LAC sent the brief on behalf of a Lebanese national whose employer requested an H-1B extension a month before the deadline and paid the $1,000 premium processing fee. The decision was suppose to be received within 15 business days but the government neither sent back an approval or denial of the extension. Seven months after the extension had been requested, there had still been no response and the Lebanese national was arrested for overstaying.

H-1B’s are only granted in three year intervals by the government even though an individual can stay on an H-1B visa for up to six years or longer depending upon the circumstances. An individual is also only allowed to work 240 days after his/her visa expires as long as he/she has filed an extension, after that time period they are subject to arrest.

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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 “Chef.”

The applicants’ Employer Application for Permanent Employment Certification was originally accepted by the CO on December 1, 2006 but the application was then denied on December 14 due to the fact that alien did not meet the minimum education, training and experience requirements. The CO issued an audit notification and request for Notice of Filing (NOF) on January 15, 2009 after the Employer asked for a review of the case. On February 11, 2009 the alien’s employer provided all of the information that was questioned in the initial denial as well as the NOF which stated the position was posted from September 1 to September 13. The CO again denied the application on March 16 citing that neither the Employer’s name nor sufficient contact information was provided in the posting. Even though the Employer asked for reconsideration and provided evidence that the posting was sufficient, the CO stuck by the denial. The CO’s main reason for denial was that even though the NOF contained the name and title of the Employer, the information was only added after the initial posting. In the appellate brief filed, the CO reiterated the fact that the information was added to the document after it had already been posted. The CO also mentioned the ambiguity in regards to how many companies resided at that location.

PERM Regulation 20 C.F.R. § 656.10(d) controls and provides that the Employer give notice of filing of the Employer Application for Permanent Employment Certification and that the posting must contain the required information. It is the employer’s responsibility to submit thorough documentation, interpret requests broadly and to be confident that the documentation submitted will support the application. In this case, the Employer’s application did not contain the business name on the NOF and the NOF did not the fully meet all requirements.

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United States Citizenship and Immigration Services (USCIS) issued a reminder that its new application and petition fees go into effect November 23, 2010.

The new fees increase application and petition fees by approximately 10 percent but naturalization fees will remain the same.

To review the increased USCIS filing fees, please click here.

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The Department of Labor (DOL) recently released version 1.2 of its Enforcement Data Site. Features of the updated site include an interactive map and dashboard, integrated data system with collaboration from other agencies, more advanced search criteria, and datasets being available to the public in a readable format. Users can also stay connected and receive immediate updates through the website with the social networking sites Twitter and Facebook.

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After pleading guilty to a charge of counterfeiting a passport application, Ramon Francisco of the Dominican Republic who resided in Connecticut was sentenced to 14 months in prison October 28. During the investigation by the US Immigration and Customs Enforcement (ICE) Office of Homeland Security Investigations (HSI), it was discovered that Francisco used another individual’s identity to apply for his passport. Francisco has been going through removal procedures carried out by ICE’s Office of Enforcement and Removal Operations (ERO) since his arrest in August of 2009.

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The Department of State has released its latest Visa Bulletin.

Click here to view the December 2010 Visa Bulletin.

The December 2010 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.

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MVP “Q & A Forum” – This Friday, November 19th, 2010

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.

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US Immigration and Customs Enforcement (ICE) recently released information on their new relaxed deportation policy. This new policy mainly affects immigrants who are married or related to US citizens and legal residents. Before this policy was instated, if an immigrant was going through deportation proceedings they would automatically be deported even if they had pending petitions. Now with this new rule, the proceedings are stopped if the person is qualified for a green card. There is one stipulation that ICE created to the policy, in order to benefit the immigrant can not be a convicted criminal. This helps ensure and carry out ICE’s number one focus of “removal of criminal aliens and those who pose a danger to national security.”

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To celebrate Gay, Lesbian, Bisexual, Transgender Pride in the month of June, the US Department of State announced its policy regarding gender change on passports and Consular Reports of Birth Abroad. Beginning on June 10, 2010 an applicant may change the gender on their passport or Consular Report of Birth Abroad if certification is presented from a medical physician stating the applicant has undergone treatment for gender transition. A limited-validity passport can also be obtained with a physician’s statement that the applicant is currently going through the process of gender transition. Note: sexual reassignment surgery is no longer the qualification for gender change on a passport.

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The Administrative Appeals Office (AAO) Processing Times were released with processing dates as of November 1, 2010.

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

Administrative Appeals Office

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