While the majority of international travel occurs without problem, there is always some risk involved when a foreign national departs the United States. Delays in returning to the U.S. are increasingly common, and can be costly, for both foreign nationals and employers.
It is important to make sure immigration paperwork is in good order PRIOR to departing the US. If you intend to travel in the coming months, and have concerns about your trip, please do not hesitate to contact the attorneys at Ryvin Wallace Group for advice.
What documents are necessary to return to the U.S. after an international trip?
Foreign nationals traveling abroad should bring with them documentation that encourages a Consular Officer (CO) or U.S. Customs and Border Protection (CBP) Officer grant the visa, or entry to the U.S., respectively. When planning your trip, double-check that your immigration documents are in order.
Generally, foreign nationals who already hold nonimmigrant visa stamps such as an H-1B or L-1, should carry the following documents prior to departure from the United
States:
1. Valid passport with valid visa stamp inside - take care to confirm not only the visa stamp expiry date, but number of entries permitted;
2. Two (2) most recent pay stubs and employment verification letter, confirming employment, in good standing, as per the terms and conditions of the visa; and
3. Original I-797 approval notice.
Further, foreign nationals should be prepared to answer questions about their proposed entry. A CBP Officer will generally prefer to obtain all the information they need by asking questions, as opposed to reviewing paperwork. So, be prepared to address:
1.) The purpose of your visit, in no more than a short sentence, ie, "to work for Company X", or "to visit my friend in San Francisco, California";
2.) Who your application states you are, ie, a Software Architect working for Company Y in City, State;
3.) How you are qualified to perform the proposed work in the US, ie, how your educational background and/or experience qualifies you for your work in the U.S. (be brief);
4.) Your U.S. immigration status (and status of family members), ie, "an H-1B with a pending I-140 petition based on approved labor certification";
5.) Any prior violations of immigration or criminal law - note these issues may be complex depending on the nature of the violation, so it may serve you well to travel with a letter from an immigration attorney, supported with documents that confirms admissibility despite the violation(s).
What if I do not have a valid visa to return to the U.S. stamped in my passport?
If you do not have a valid visa stamp in your passport, you can apply for a visa at a U.S. embassy or consulate abroad. It is generally NOT possible to apply for a visa while physically inside of the U.S. Most U.S. consulates require personal interviews before the visa will be processed.
You should be sure to contact the U.S. consulate well in advance of travel to schedule an appointment and check on processing times and procedures. Please note that different U.S. consulates sometimes have particular procedures specific to their location, and that processing times for issuing the actual visa can vary from a few days to several weeks.
In order to apply for a visa, you may need the following documents:
1. Form I-797 (original approval notice);
2. A certified copy of your underlying nonimmigrant (usually H-1B or L-1) visa petition;
3. A passport valid for 6 months beyond the expiration of the validity date you are requesting;
4. Passport size color photograph;
5. Completed nonimmigrant visa application;
6. Copies of your diplomas (usually included in the underlying petition);
7. Employment verification letter;
8. Copies of recent pay stubs; and
9. Copies of all U.S. tax returns filed in connection with any U.S. employment.
Contacting the U.S. embassy or consulate at which you plan to apply for a visa to schedule an appointment for a personal interview and obtaining information on the consulate's particular processing times and procedures, is critical. Please note the following links which should help find the appropriate Consulate web page, as well as visa wait times:
Websites of U.S. Embassies, Consulates, and Diplomatic Missions
Visa Wait Times
Foreign nationals who do not currently hold valid visa stamps in their passports and require assistance in applying for a visa should contact an immigration attorney.
Planning Ahead
For any international travel, especially including visa stamping - planning ahead will be crucial to avoiding delays or other problems. Planning ahead includes:
1. Checking with your immigration support network including immigration attorney to confirm the level risk associated with traveling;
2. Confirming the level of risk with your Manager, and establishing a Plan B in the event of lengthy delays, such as working remotely while visa matters are sorted out;
3. Checking the procedures, standard wait times, and requirements at the U.S. embassy or consulate where you will be applying.
May I apply for a visa to enter the U.S. at any U.S. embassy or consulate?
The State Department recommends that visa applicants apply for their visas at a U.S. embassy or consulate located in the visa applicant's home country. However, it is possible to apply for a visa in a country that is not your home country or country of citizenship. U.S. embassies and consulates have the discretion to accept visa applications from so called “third country nationals” - individuals who are not citizens or residents of the country in which the U.S. consulate is located.
If you wish to apply for a visa as a third country national, you should contact the U.S. embassy or consulate that you plan to visit to confirm their policy on third country applications. You should also confirm this plan with your immigration attorney and employer, as third country national applications are more likely to result in delays.
Please note that if the U.S. embassy or consulate refuses to process the visa application or denies the application, you must travel to your home country and apply for a visa at a U.S. embassy or consulate there.
Preparing the Visa Application Forms
The nonimmigrant visa application most commonly used today, Form DS-160, must be completed by everyone applying for a U.S. visa. This form is completed online and is relatively new, replacing the DS-156 and DS-157 at most consulates and embassies.
AILA (American Immigration Lawyers Association) recently provided comments to the U.S. Department of State focused on common problems with the DS-160 and suggestions for making it better. We encourage you to read these comments and be prepared to spend about 2 to 3 hours completing the form.
Particular attention should be paid to providing complete and accurate responses to all the questions on the visa forms, particularly those related to prior immigration violations. If questions arise, you may contact the attorneys at Ryvin Wallace Group.
A visa applicant's spouse and children (under 21) are eligible for dependent visas, such as H-4 and L-2. Each individual applying for a visa will need to complete separate visa forms as described above.
Requests for Additional Information
U.S. consulates and embassies also have the discretion to request additional supporting documentation in addition to the above information. Common requests for other documents include individual or corporate tax returns, original educational documents, and letters confirming prior employment. The propensity for extensive documentation requirements can vary between Consulates, and we encourage your efforts to determine the local requirements.
For third country national visa applicants applying under categories which require temporary intent (such as a B-1/2 or E-1/2/3) – note the embassy or consulate might have difficulty identifying sufficient ties to the home country, so we encourage this type of visa applicant to bring sufficient evidence of ties, ready to provided upon request.
Possible Causes of Delay
Although relatively uncommon, substantial delays in visa processing due to security clearances, name checks, or fingerprint checks performed in the interest of the U.S. national security, do occur. Such delays can add anywhere from a few weeks to six months or more to the visa issuance process.
Parties planning to travel abroad to secure a visa must be willing to accept this risk. As delays in visa issuance may have a negative impact on a foreign national's job, you might want to discuss the risks of traveling with your employer, in an effort to prepare for prolonged delay in visa issuance, before deciding to leave the U.S.
Please note the following security related checks that are initiated by US Consular Officers in connection with nonimmigrant visa interview:
"Visas Condor" – The criteria for Condor security check are classified, but "hits" appear to be triggered by a.) information disclosed in the visa application form (DS-160/DS-157) including travel to predominately Muslim countries in the last ten years, prior employment, military service for certain nations, specialized skills or training; and b.) Country of birth, citizenship or residence, and persons born in countries the Department of State designates as State Sponsors of Terrorism (T-4) including Iran, Cuba, Syria and Sudan, or male applicants from a classified "List of 26" predominantly Muslim countries. Most Condor Security Advisory Opinions (SAOs) take 1-2 weeks to process.
"Visas Donkey" – Triggered by a name hit based on non-criminal issues and is not nationality specific. Donkey hits most often occur to those applicants with common names. This type of check could take months for the U.S. Department of State to complete its review and issue a Security Advisory Opinion (SAO). Clearance time is anywhere up to 9 months, sometimes longer, for the process to come full circle and Security Advisory Opinion to be issued.
“Visas Mantis” - Know as the "sensitive technology clearance", based on whether the applicant is working in an area included in the "critical fields list" of the Department of States’ Technology Alert List (TAL). Commonly, research scientists, physicians, academics and engineers working in areas that raise technology transfer concerns, including those subject to export controls, may be subject to additional visa application delays or denials at U.S. embassies/consulates. If a Consular or DOS officer believes that a visa applicant is working in a critical TAL field, the officer must request an advisory opinion from the Visa Office, a process which may take several months to complete. According to prior DOS guidance, a Mantis clearance is generally not warranted if the technology falls within the public domain, ie, widely available to the public. Mantis clearances are now valid for 2 years for H, L, or O visas, 4 years for F/J visas and 1 year for B visas.
NCIC Criminal Hits – The FBI’s National Crime Information Center (NCIC) records feed into the Consular Lookout and Support System (CLASS) name check database. Combined these databases reportedly hold 18 million records. The records contain information about terrorists and foreign warrants and extensive records about the occurrence of criminal convictions or arrests including relatively minor offenses. Applicant’s may present certified final court dispositions, arrest records, and legal briefs at the time of the interview, but the Post cannot issue the visa until it has received results from a fingerprint check run by the FBI.
Course of Actions Against Delays
Unfortunately, if a visa application becomes "stuck" there is very little which can be done to move the process forward; and generally, both the foreign national and employer are left with having to let the process run its course. Of course, cases are evaluated on a case by case basis to determine if any action can be taken to assist with issuance of the visa.
The Department of State may expedite security clearances only of there is a significant U.S. government interest or a humanitarian concern. The expedite request must be approved by the Chief of Deputy Chief of the Coordination Division in the Visa Office (VO). If a security check has been pending for over 60 days, you may call the Visa Office (VO) Public Inquires line at 1(202)663-1255.
Is there anything I need to do after I return from an international trip?
Upon your return to the United States, you will receive an I-94 card. The I-94 card is marked by a U.S. Customs and Border Protection (CBP) officer and will indicate your current nonimmigrant status and expiration date to note how long you may stay in the U.S. in valid status.
When the officer marks your card, please check the I-94 card to ensure that all information is correct. If the officer has made a mistake in noting your immigration status or lists an expiration date that does not match the end validity date on your approval notice, please ask the officer to correct the card at that time – BEFORE you step away from the counter. If the officer refuses to make the correction, please enter the United States and contact an immigration attorney to discuss correcting the error on the I-94 card, possibly at a CBP deferred inspection site.
We recommend that you keep a record of all of your entry and exit dates in and out of the United States. After returning from an international trip, you should send to your immigration attorney a copy of the I-94 card so they may database and monitor your immigration status, to follow-up with you in a timely manner about extending, etc.
May I Apply for a New Visa Inside the United States?
In the past, it has been possible to obtain a visa to travel to the U.S. by either applying at a U.S. Embassy or Consulate abroad or if the foreign national was present in the U.S., by applying for Visa Revalidation through the U.S. State Department. The visa revalidation program allowed certain foreign nationals to renew their visas by mail rather than by applying through a U.S. Consulate abroad.
Unfortunately, due to new biometric identifier requirements that went into effect in October 2004, the State Department has announced that they will no longer revalidate visas due to inability to gather biometric data on applicants. The closure of the visa revalidation program means that foreign nationals who were formerly eligible for visa revalidation will now need to apply for new visas abroad.
We are aware of certain consulates which have resumed a similar procedure, often including a third party (i.e. a local bank); however, it is not common, and so we strongly urge any foreign national considering obtaining a visa stamp in this way to check with their immigration attorney.
Do Canadian Citizens and Landed Immigrants Need to Apply for a Visa to Enter the United States?
Citizens of Canada do not require a visa, unless they are traveling to the United States as foreign government officials or officials and employees of international organizations; NATO officials, representatives and employees if they are being assigned to the U.S. (as opposed to an official trip); treaty traders; treaty investors; fiancés and children of fiancés; U.S. citizen's foreign citizen spouse, who is traveling to the U.S. to complete the process of immigration; children of a foreign citizen spouse described above; spouses of lawful permanent residents traveling to the U.S. to reside in the U.S. while they wait for the final completion of their immigration process; and children of spouses of lawful permanent residents described above.
Formerly, landed immigrants or permanent residents of Canada, like Canadian citizens, were not required to obtain visas in order to enter the U.S. However, as of March 17, 2003, all Canadian landed immigrants must present a valid visa and passport to enter the U.S. unless the landed immigrant is a national of a country that participates in the visa waiver program (VWP), meets the VWP requirements, and is seeking to enter the U.S. for 90 days or less under that program.
Travel Advisory
Ryvin Wallace Group is committed to helping you navigate the sometimes murky waters of international travel. Planning ahead will be critical so you can work towards minimizing risks, and be prepared to deal with issues before they arise.
Wednesday, November 24, 2010
Virginia DMV News (Posted 11/16/10)
Tracey Keller at VA DMV (Department of Motor Vehicles) headquarters confirmed that they will issue a one year renewal for individuals who have filed a timely I-129 extension petition. She said applicants should bring the previous (expired) I-797 approval notice and the extension petition I-797 receipt notice showing that it was filed before status expired. The contact number for the legal presence unit is 804.367.6774.
Can I Expedite My Case?
Clients often want to know if their case can be expedited. Please see the following USCIS expedite criteria:
All expedite requests are reviewed on a case-by-case basis, and are granted at the discretion of the Director. The burden is on the applicant or petitioner to demonstrate that one or more of the expedite criteria have been met. The criteria are as follows:
1.) Severe financial loss to company or individual
2.) Extreme emergent situation
3.) Humanitarian situation
4.) Nonprofit status of requesting organization in furtherance of the cultural and social interests of the United States
5.) Department of Defense or National Interest Situation (Note: Request must come from official United States Government entity and state that delay will be detrimental to our Government)
6.) USCIS error
7.) Compelling interest of USCIS
If you have already filed your application or petition you can make an expedite request by contacting the National Customer Service Center (NCSC) at 1-800-375-5283. The NCSC will take a “service request” and forward your expedite request to the office with jurisdiction over the application or petition. You also have the options of 1). visiting your local office by scheduling an InfoPass appointment or 2). writing a letter to the local office or service center.
Link.
All expedite requests are reviewed on a case-by-case basis, and are granted at the discretion of the Director. The burden is on the applicant or petitioner to demonstrate that one or more of the expedite criteria have been met. The criteria are as follows:
1.) Severe financial loss to company or individual
2.) Extreme emergent situation
3.) Humanitarian situation
4.) Nonprofit status of requesting organization in furtherance of the cultural and social interests of the United States
5.) Department of Defense or National Interest Situation (Note: Request must come from official United States Government entity and state that delay will be detrimental to our Government)
6.) USCIS error
7.) Compelling interest of USCIS
If you have already filed your application or petition you can make an expedite request by contacting the National Customer Service Center (NCSC) at 1-800-375-5283. The NCSC will take a “service request” and forward your expedite request to the office with jurisdiction over the application or petition. You also have the options of 1). visiting your local office by scheduling an InfoPass appointment or 2). writing a letter to the local office or service center.
Link.
USCIS CSC on the L-1B Specialized Knowledge Visa, E-2 Treaty Investor Visa and Third Party Placement with IT Consulting Companies
L-1B Specialized Knowledge
Question: Will you please explain your standard of review for
“specialized knowledge?”
Answer: CSC applies the regulation, legacy INS and USCIS memos, and filters the information using the preponderance of the evidence standard when reviewing the information – this is a “more likely than not” standard. There are no hard-and-fast rules as to what is specialized knowledge; it is a very fact-intensive type of inquiry. CSC is looking for a preponderance of information relating the particular industry, company and beneficiary. CSC looks to see what education and training the beneficiary possesses, as well as how the beneficiary came to obtain the knowledge. There is a new L-1B RFE template being developed. The regulation does not require the provision of a specific type of information, and CSC leaves it up to the petitioner to decide what evidence to submit. CSC does not rely on the 2008 non-precedent decision for adjudications. CSC says it cannot apply any particular aspect of this case, or cite to portions of it to deny cases.
E-2 Treaty Traders
Question: Members report receiving Requests for Evidence calling into question the validity of unsecured personal loans as an investor’s source of funds. 9 FAM 41.51 n8.1-2 and the preamble contained in the E-2 final rule promulgated in 62 Fed. Reg. 42142 (Sept. 12, 1997) provide that loans, even if guaranteed by the mere signature of the investor,are a sufficient instrument to demonstrate both source of funds and possession and control of funds. Please confirm that the CSC will treat an unsecured personal loan as satisfactory evidence of an investor’s source of funds and possession and control of funds for E-2 investment purposes.
Answer: The CSC agrees that, as noted above, unsecured personal loans are an appropriate method for investment. However, CSC does not apply this requirement in a vacuum; they still look to see that the investment is at risk and whether the funds emanate from a lawful source.
Question: Members report receiving RFEs in E-2 cases asking for evidence of the source of funds not from the investor, but from the source where the investor received the capital. For example, if the investor received the investment funds as a gift from family members, the CSC requests evidence of the source of the family member’s funds. As the regulations appear to require only that the source of funds be lawful and have not been obtained through criminal activity, so long as the agreement to provide the investor with the funds is valid, there should be no further inquiry.
Answer: The CSC agrees that the source of funds may be a gift given to the investor by family members. However, as noted above for unsecured personal loans, the USCIS may still inquire as to the lawful source of the gifted funds (i.e. that the funds did not arise from a criminal act or enterprise). CSC states it is obliged by the regulations to find out this information.
Third Party Placement with IT Consulting Companies
Question: As recognized recently in Stakeholder’s notes issued by VSC, USCIS has recognized that many end clients of IT consulting companies have a policy of not issuing letters to verify duration/specialty occupation. Can CSC provide guidance regarding what other documents can be provided to support duration/specialty occupation?
Answer: The CSC will review any and all information submitted in support of duration/specialty occupation (such as ID badges, e-mails, co-worker statements, contracts, itineraries, letters from petitioner, etc.) with a view to determining whether the totality of the evidence presented supports the existence of the employer/employee relationship and specialty occupation.
Question: Will you please explain your standard of review for
“specialized knowledge?”
Answer: CSC applies the regulation, legacy INS and USCIS memos, and filters the information using the preponderance of the evidence standard when reviewing the information – this is a “more likely than not” standard. There are no hard-and-fast rules as to what is specialized knowledge; it is a very fact-intensive type of inquiry. CSC is looking for a preponderance of information relating the particular industry, company and beneficiary. CSC looks to see what education and training the beneficiary possesses, as well as how the beneficiary came to obtain the knowledge. There is a new L-1B RFE template being developed. The regulation does not require the provision of a specific type of information, and CSC leaves it up to the petitioner to decide what evidence to submit. CSC does not rely on the 2008 non-precedent decision for adjudications. CSC says it cannot apply any particular aspect of this case, or cite to portions of it to deny cases.
E-2 Treaty Traders
Question: Members report receiving Requests for Evidence calling into question the validity of unsecured personal loans as an investor’s source of funds. 9 FAM 41.51 n8.1-2 and the preamble contained in the E-2 final rule promulgated in 62 Fed. Reg. 42142 (Sept. 12, 1997) provide that loans, even if guaranteed by the mere signature of the investor,are a sufficient instrument to demonstrate both source of funds and possession and control of funds. Please confirm that the CSC will treat an unsecured personal loan as satisfactory evidence of an investor’s source of funds and possession and control of funds for E-2 investment purposes.
Answer: The CSC agrees that, as noted above, unsecured personal loans are an appropriate method for investment. However, CSC does not apply this requirement in a vacuum; they still look to see that the investment is at risk and whether the funds emanate from a lawful source.
Question: Members report receiving RFEs in E-2 cases asking for evidence of the source of funds not from the investor, but from the source where the investor received the capital. For example, if the investor received the investment funds as a gift from family members, the CSC requests evidence of the source of the family member’s funds. As the regulations appear to require only that the source of funds be lawful and have not been obtained through criminal activity, so long as the agreement to provide the investor with the funds is valid, there should be no further inquiry.
Answer: The CSC agrees that the source of funds may be a gift given to the investor by family members. However, as noted above for unsecured personal loans, the USCIS may still inquire as to the lawful source of the gifted funds (i.e. that the funds did not arise from a criminal act or enterprise). CSC states it is obliged by the regulations to find out this information.
Third Party Placement with IT Consulting Companies
Question: As recognized recently in Stakeholder’s notes issued by VSC, USCIS has recognized that many end clients of IT consulting companies have a policy of not issuing letters to verify duration/specialty occupation. Can CSC provide guidance regarding what other documents can be provided to support duration/specialty occupation?
Answer: The CSC will review any and all information submitted in support of duration/specialty occupation (such as ID badges, e-mails, co-worker statements, contracts, itineraries, letters from petitioner, etc.) with a view to determining whether the totality of the evidence presented supports the existence of the employer/employee relationship and specialty occupation.
Tuesday, November 23, 2010
Dispelling DREAM Act Myths (Pro-DREAM)
From the Immigration Policy Center
November 23, 2010
November 23, 2010
Washington D.C. - The DREAM Act - a popular proposal to provide legal status to undocumented youth who entered the U.S. as children, graduated from U.S. high schools, and attend college or enter the military - is the target of a smear campaign from anti-immigration hardliners. This tired effort to pit immigrants and native-born, whether they are workers or students, against one another is not only destructive, but has no basis in fact. Moreover, it ignores the economic benefits that come from legalizing a group of talented, hard-working individuals who want nothing more than to contribute to America and repay the country for the opportunities they've been given.Read more about DREAM Act Myths and Facts.
Research has shown that providing a legal status for young people who have a proven record of success in the United States would be a boon to the economy and the U.S. workforce. The U.S. military also needs the DREAM Act. Deputy Undersecretary of Defense for Military Personnel Policy, Bill Carr, stated that the law would be "good for readiness" and would help to recruit "cream of the crop" students. The DREAM Act is part of the Department of Defense's 2010-2012 Strategic Plan to assist the military in its recruiting efforts.
Yet, despite the popular support and extensive data that should make passage of the DREAM Act a no-brainer, there are those who continue to spread half-truths. The Immigration Policy Center has compiled a fact check that breaks down typical myths about the DREAM Act.
U.S. Embassy in New Delhi to Accept Visa Applications From Across India
In an effort to make the visa application process more convenient for all Indians, the U.S. Embassy in New Delhi and Consulates General in Mumbai, Chennai, Kolkata and Hyderabad now accept visa applications from across India at all visa facilities, regardless of the applicant's home address or city of residence. This is part of Mission India's ongoing effort to facilitate legitimate travel to the United States.
Read the Press Release.
Read the Press Release.
Sunday, November 21, 2010
US Embassy London: Implements Fingerprint Reuse Program and Allows Third Country Visa Processing
According to a recent AILA liaison meeting, including representatives from the US Embassy in London, the Embassy has confirmed implementation of the fingerprint recapture reuse program for the O and P visa categories, for applicants who 1.) do not have inadmissibility issues, 2.) either hold an unexpired O or P visa or had an O or P visa expire less than 12 months ago and 3.) are appluing in the same visa category. You can check your eligibility for this program here. There are plans to extend the program to H, L, F and Js in December. Applicants using this program must be present in the consular disctrict (the UK) at the time of submission of the visa application and will still be required to go through the call center to pay the MRV fee.
Further, third country nationals may apply for a visa at the U.S. Embassy in London, if the third country nationals are in the UK. However, the Embassy noted that if the applicants are not resident in the UK, Consular Officers may find it difficult to assess applicants' ties outside of the UK for those visa categories that require a residence abroad to qualify for the visa.
Further, third country nationals may apply for a visa at the U.S. Embassy in London, if the third country nationals are in the UK. However, the Embassy noted that if the applicants are not resident in the UK, Consular Officers may find it difficult to assess applicants' ties outside of the UK for those visa categories that require a residence abroad to qualify for the visa.
Thursday, November 18, 2010
Immigration Practice Pointer: Inter-filing I-140s, Priority Date Re-Capture, EB-3 to EB-2 Upgrades
This week, AILA published guidance for inter-filing a Form I-140 into a pending I-485 Adjustment of Status (AOS) application, with a request to re-capture an old priority date, and to upgrade to a higher preference category.
This information is especially useful for those individuals who were able to file an adjustment of status application during the summer of 2007 - known as "the Blizzard" (or the "AOS Crunch") in geeky immigration circles.
Basically, the July 2007 Visa Bulletin brought current all employment-based visa categories (with the exception of other workers). And so from July 1, 2007 to August 17, 2007, 325,000 adjustment of status (AOS) applications flooded the USCIS.
It was a very small window of opportunity, particularly for Indian and Chinese workers, who are subject to the longest wait times for employment based green cards.
Notably, there are a number of advantages to having a pending AOS, including authorization to stay in the United States while the application is pending, and substantially greater job mobility.
For Indian and Chinese professional and advanced degree workers in particular, whose priority dates retrogressed immediately (meaning they would still have to wait years to become permanent residents) a pending AOS would help them live in the United States and change employers under AC-21, while they wait for their priority date to become current again.
Many of these long-pending AOS applicants obtained master's degrees, moved up the corporate ladder or changed employers. They also started new green card cases based on labor certification, usually in higher preference categories, such as EB-2 (as opposed to EB-3).
Once the labor certification and I-140 is filed/approved, these foreign nationals have sought to inter-file the pending/approved I-140 petition into their pending AOS application, with a request to re-capture their old priority dates, and to upgrdae the entire case into the higher preference category. These actions would substantially speed-up the green card process.
If you are one of these individuals still waiting for your green card and believe you might be eligible to upgrade your green card case, we invite you to read our explanation of the process and requirements below, with frequently asked questions; and the aforementioned AILA practice pointer, for those who have already begun the process:
RWG EB-2 to EB-3 Upgrade Background
AILA Practice Pointer_Interfiling I-140s_Priority Dates_Upgrades
This information is especially useful for those individuals who were able to file an adjustment of status application during the summer of 2007 - known as "the Blizzard" (or the "AOS Crunch") in geeky immigration circles.
Basically, the July 2007 Visa Bulletin brought current all employment-based visa categories (with the exception of other workers). And so from July 1, 2007 to August 17, 2007, 325,000 adjustment of status (AOS) applications flooded the USCIS.
It was a very small window of opportunity, particularly for Indian and Chinese workers, who are subject to the longest wait times for employment based green cards.
Notably, there are a number of advantages to having a pending AOS, including authorization to stay in the United States while the application is pending, and substantially greater job mobility.
For Indian and Chinese professional and advanced degree workers in particular, whose priority dates retrogressed immediately (meaning they would still have to wait years to become permanent residents) a pending AOS would help them live in the United States and change employers under AC-21, while they wait for their priority date to become current again.
Many of these long-pending AOS applicants obtained master's degrees, moved up the corporate ladder or changed employers. They also started new green card cases based on labor certification, usually in higher preference categories, such as EB-2 (as opposed to EB-3).
Once the labor certification and I-140 is filed/approved, these foreign nationals have sought to inter-file the pending/approved I-140 petition into their pending AOS application, with a request to re-capture their old priority dates, and to upgrdae the entire case into the higher preference category. These actions would substantially speed-up the green card process.
If you are one of these individuals still waiting for your green card and believe you might be eligible to upgrade your green card case, we invite you to read our explanation of the process and requirements below, with frequently asked questions; and the aforementioned AILA practice pointer, for those who have already begun the process:
RWG EB-2 to EB-3 Upgrade Background
AILA Practice Pointer_Interfiling I-140s_Priority Dates_Upgrades
Wednesday, November 17, 2010
Family Based Green Card Practice of Ryvin Wallace Group
Spouses of US Citizens. The family-based immigration practice of Ryvin Wallace Group helps obtain green cards for spouses of US citizens. Whether applying for adjustment of status in the United States, or applying for an immigrant visa at a US consulate abroad, we understand the importance of communication in this time of transition. Ryvin Wallace Group employs a hands-on approach to help our clients successfully navigate the process.
We are also able to extend advice and develop strategies for people who need to later become divorced, need to file with USCIS to remove the conditions on residence, or even have problems so personal that filing a battered spouse petition for emotional, mental or physical abuse is necessary.
Family Members Filing for Green Cards. Ryvin Wallace Group helps with routine green card filings for parents of US citizens, children of US lawful permanent residents, foreign stepchildren of US citizens, and other categories to obtain green cards as relatives of a US citizen or resident.
National/International Reach of our Family-Based Immigration Practice. Notably, the federal practice of immigration law allows Ryvin Wallace Group to represent people in any US state or residing in any country in the world. We know well the nuances of choosing filing methods and location, depending on where the foreign national lives, or where he/she wishes to be. Further, our work can be done quickly to help a foreign national who is currently in the US or has to be in the US in the shortest time frame possible.
Citizenship is Not the Same as a Green Card. US Citizenship is obtained via separate filing with USCIS only after a green card holder has been in the US as a lawful permanent resident for a certain period of time.
Personal Experience. Our Partner, Michael, has taken part in the family based immigration process personally, having successfully acted as attorney and petitioner for his own spouse.
How to Prepare for a Green Card Interview:
http://ryvinimmigrationblog.blogspot.com/2011/10/preparing-for-marriage-based-green-card.html
We are also able to extend advice and develop strategies for people who need to later become divorced, need to file with USCIS to remove the conditions on residence, or even have problems so personal that filing a battered spouse petition for emotional, mental or physical abuse is necessary.
Family Members Filing for Green Cards. Ryvin Wallace Group helps with routine green card filings for parents of US citizens, children of US lawful permanent residents, foreign stepchildren of US citizens, and other categories to obtain green cards as relatives of a US citizen or resident.
National/International Reach of our Family-Based Immigration Practice. Notably, the federal practice of immigration law allows Ryvin Wallace Group to represent people in any US state or residing in any country in the world. We know well the nuances of choosing filing methods and location, depending on where the foreign national lives, or where he/she wishes to be. Further, our work can be done quickly to help a foreign national who is currently in the US or has to be in the US in the shortest time frame possible.
Citizenship is Not the Same as a Green Card. US Citizenship is obtained via separate filing with USCIS only after a green card holder has been in the US as a lawful permanent resident for a certain period of time.
Personal Experience. Our Partner, Michael, has taken part in the family based immigration process personally, having successfully acted as attorney and petitioner for his own spouse.
How to Prepare for a Green Card Interview:
http://ryvinimmigrationblog.blogspot.com/2011/10/preparing-for-marriage-based-green-card.html
Do the minimum education/experience requirements in your H-1B match those in your Labor Certification (PERM) application?
We have obtained a copy of a USCIS Notice of Derogatory Information (see below) which focuses on a discrepency between the minimum education/experience requirements noted in an H-1B petition, and those noted in a Labor Certification (PERM) application.
As stated in the USCIS Notice:
By way of background, US employers commonly hire foreign nationals to work for them in H-1B status. The H-1B is often followed by a green card case, based on a labor certification application, commonly referred to as a "PERM" application. Further, while the green card case is pending, additional H-1B extensions are often required.
Both an H-1B petition and PERM application require the employer to confirm the minimum requirements for the position offered. Notably, to qualify for the H-1B, the position offered MUST require at least a Bachelor's degree; while a PERM application can be successful with a lesser requirement, such as high school plus 2 years of work experience (see the EB-3, Skilled Worker).
In this case, the foreign national's PERM had a different minimum requirement (high school plus two years) from his H-1B (at least a bachelor's degree), but the job duties in both the H-1B and PERM were identical. So USCIS is thinking possible fraud or willful misrepresentation.
The moral of the story is when requesting immigration benefits, including new H-1Bs, H-1B extensions, visa stamp applications, labor certifications, immigrant petitions, adjustment of status (green card) applications or naturalization (citizenship) applications - it is good practice to review and consider prior AND prospective submissions to the US government, PRIOR to filing the request.
Notably, positions and circumstances can change, and in such cases, pro-actively attaching an explanation, with supporting documentation (if applicable) often helps to encourge approval, and avoid further complications.
USCIS Notice of Derogatory Information
As stated in the USCIS Notice:
You filed the ETA Form 9089 which supports the instant Form I-140 petition. The position requires only a high school education and 24 months of experience in the proffered position. Your previous Form I-129 filing for the same position indicated that the position required the minimum of a baccalaureate degree. The duties listed on the Form I-140 and Form I-129 positions are nearly identical. Please explain the positions’ differing educational requirements... unless you can resolve the inconsistent information provided in these two filings with independent objective evidence, the AAO intends to dismiss the appeal and enter a formal finding of fraud into the record. The AAO may also invalidate the labor certification based on fraud or willful misrepresentation.
By way of background, US employers commonly hire foreign nationals to work for them in H-1B status. The H-1B is often followed by a green card case, based on a labor certification application, commonly referred to as a "PERM" application. Further, while the green card case is pending, additional H-1B extensions are often required.
Both an H-1B petition and PERM application require the employer to confirm the minimum requirements for the position offered. Notably, to qualify for the H-1B, the position offered MUST require at least a Bachelor's degree; while a PERM application can be successful with a lesser requirement, such as high school plus 2 years of work experience (see the EB-3, Skilled Worker).
In this case, the foreign national's PERM had a different minimum requirement (high school plus two years) from his H-1B (at least a bachelor's degree), but the job duties in both the H-1B and PERM were identical. So USCIS is thinking possible fraud or willful misrepresentation.
The moral of the story is when requesting immigration benefits, including new H-1Bs, H-1B extensions, visa stamp applications, labor certifications, immigrant petitions, adjustment of status (green card) applications or naturalization (citizenship) applications - it is good practice to review and consider prior AND prospective submissions to the US government, PRIOR to filing the request.
Notably, positions and circumstances can change, and in such cases, pro-actively attaching an explanation, with supporting documentation (if applicable) often helps to encourge approval, and avoid further complications.
USCIS Notice of Derogatory Information
FY2011 H-1B Cap Count (Updated 11/16/10)
As of November 12, 2010, approximately 47,800 (out of 65,000) H-1B cap-subject petitions were receipted. Additionally, USCIS has receipted 17,400 (out of 20,000) H-1B petitions for aliens with advanced degrees.
Estimates are that this year's cap will be reached by mid-February 2011.
Estimates are that this year's cap will be reached by mid-February 2011.
Sunday, November 14, 2010
CBS News Exclusive with President Felipe Calderon, discusses cartels and immigration
CBS News Exclusive: Peter Greenberg speaks with Mexican President Felipe Calderón about the issues involving illegal immigration into the U.S. President Calderón also weighed in on the controversial immigration law in Arizona. Link immigration portion of CBS Interview.
The Invisibles, Part 4, Goal
A film by Marc Silver & Gael Garcìa Bernal
Every year, tens of thousands of women, men and children travel through Mexico without legal permission. As "invisible" migrants they head for the US border in the hope of finding a new life far from the poverty they've left behind. Their journey is one of the most dangerous in the world.
Every year, tens of thousands of women, men and children travel through Mexico without legal permission. As "invisible" migrants they head for the US border in the hope of finding a new life far from the poverty they've left behind. Their journey is one of the most dangerous in the world.
The Invisibles, Part 3, What Remains
A film by Marc Silver & Gael Garcìa Bernal
Every year, tens of thousands of women, men and children travel through Mexico without legal permission. As "invisible" migrants they head for the US border in the hope of finding a new life far from the poverty they've left behind. Their journey is one of the most dangerous in the world.
Every year, tens of thousands of women, men and children travel through Mexico without legal permission. As "invisible" migrants they head for the US border in the hope of finding a new life far from the poverty they've left behind. Their journey is one of the most dangerous in the world.
The Invisibles, Part 2, Six out of Ten
A film by Marc Silver & Gael Garcìa Bernal
Every year, tens of thousands of women, men and children travel through Mexico without legal permission. As "invisible" migrants they head for the US border in the hope of finding a new life far from the poverty they've left behind. Their journey is one of the most dangerous in the world.
Every year, tens of thousands of women, men and children travel through Mexico without legal permission. As "invisible" migrants they head for the US border in the hope of finding a new life far from the poverty they've left behind. Their journey is one of the most dangerous in the world.
The Invisibles, Part 1, Seaworld
A film by Marc Silver & Gael Garcìa Bernal
Every year, tens of thousands of women, men and children travel through Mexico without legal permission. As "invisible" migrants they head for the US border in the hope of finding a new life far from the poverty they've left behind. Their journey is one of the most dangerous in the world.
Every year, tens of thousands of women, men and children travel through Mexico without legal permission. As "invisible" migrants they head for the US border in the hope of finding a new life far from the poverty they've left behind. Their journey is one of the most dangerous in the world.
Immigration Documentary: The Other Side of Immigration
Based on over 700 interviews in Mexican towns where about half the population has left to work in the United States, The Other Side of Immigration asks why so many Mexicans come to the U.S. and what happens to the families and communities they leave behind. Through an approach that is both subtle and thought-provoking, filmmaker Roy Germano provides a perspective on undocumented immigration rarely witnessed by American eyes, challenging audiences to imagine more creative and effective solutions to the problem. Since its premiere at the Las Vegas Film Festival in April 2009, THE OTHER SIDE OF IMMIGRATION has screened at over 50 film festivals, universities, and community events in the U.S. and Europe. The film won the Founders Award at Politics on Film, Washington DC's political film festival, and features music by My Morning Jacket, Conor Oberst, and Bright Eyes.
Saturday, November 13, 2010
Американское иммиграционное законодательство
Oднo из наиболее сложных отраслей права, продиктованное необходимостью государственного регулирования постоянного притокa новых иммигрантов.
Три федеральных департамента - Государственный Департамент (U.S. Department of State), Департамент Государственной Безопасности (U.S Department of Homeland Security) и Департамент Труда (U.S. Department of Labor) - регулируют вопросы иммиграционной системы, а десятки ведомств принимают непосредственное участие в их претворении в жизнь и принятии конкретных решений.
Веб-страницы и сервис-центры этих ведомств предоставляют базовую информацию которая носит только общий ознакомительный характер и содержит существенные пробелы. Полагаться только на эту информацию не всегда правильно по ряду нижеперечисленых причин:
• Эти центры и веб-страницы не несут юридическую ответственность за полноту и правильность предоставленных данных, зачастую отражая изменения с большим опозданием. Использование устаревших форм или правил может привести к отказу, упущенному времени и бессмысленным затратам, так как деньги за подачу документов (filing fee) не подлежат возврату.
• Первоочередная функция федеральных ведомств представлять интересы правоприменительной системы США и не включает в себя предоставление профессиональной юридической помощи иностранным гражданам.
• Сотрудники телефонных и информационных центров государственных служб не имеют юридического образования и далеко не всегда обладают должными знаниями в свете часто меняющихся законов и нормативных поправок. При этом они не несут никакой ответственности за неверно предоставленную информацию.
• Индивидуальные обстоятельста в каждом конкретном случае существенно отличаются друг от друга и сотрудники службы cервисa не имеют возможости ознакомиться со всеми деталями вашего персонального дела, что крайне важно для выявления наиболее оптимального и правильного подхода.
• Вопросы указанные в иммиграционных формах могут показаться простыми с первого взгляда, однако они составлены для получения информации связанной со сложными аспектами права и зачастую даже один неправильный ответ может повлечь за собой такие серьезнейшие последствия как дальнейший отказ или даже депортацию подателя петиции из США.
В дополнение к этому, законодательство также имеет много неписанных правил, а иммиграционная служба - множество внутренних инструкций и предписаний, и только адвокат с иммиграционными инстинктами, основанными на фундаментальных знаниях и многолетней практике, с тонким пониманием сути вещей, сумеет правильно и эффективно увязать факты вашего дела c существующими законами.
Если Вы нуждаетeсь именно в такой серьезной юридической поддержке по любым иммиграционным вопросам, Вы можете обратиться к высококвалифицированному юристу в любое удобное для Вас время.
Юридическая Иммиграционная фирмa Михаила Рывина
Михаил Рывин – это адвокат с которым Вы без проблем найдете общий язык – и не только в переносном смысле слова. В большинстве иммиграционных фирм предоставляющих русскоязычную помощь, русским языком владеют только помощники и ассистенты адвокатов, в то время как Михаил сам говорит по-русски. В любой момент Вы или члены вашей семьи не владеющие английским языком, могут задать все вопросы лично ему, поинтересоваться состоянием своего дела, попросить совета и развеять свои сомнения.
Будучи cам иммигрантом первого поколения с 1976 года, Михаил Рывин cвободно владеет несколькими языками включая русский и, естественно, английский и как никто другой понимает важность его работы на жизнь своиx клиентов.
Три федеральных департамента - Государственный Департамент (U.S. Department of State), Департамент Государственной Безопасности (U.S Department of Homeland Security) и Департамент Труда (U.S. Department of Labor) - регулируют вопросы иммиграционной системы, а десятки ведомств принимают непосредственное участие в их претворении в жизнь и принятии конкретных решений.
Веб-страницы и сервис-центры этих ведомств предоставляют базовую информацию которая носит только общий ознакомительный характер и содержит существенные пробелы. Полагаться только на эту информацию не всегда правильно по ряду нижеперечисленых причин:
• Эти центры и веб-страницы не несут юридическую ответственность за полноту и правильность предоставленных данных, зачастую отражая изменения с большим опозданием. Использование устаревших форм или правил может привести к отказу, упущенному времени и бессмысленным затратам, так как деньги за подачу документов (filing fee) не подлежат возврату.
• Первоочередная функция федеральных ведомств представлять интересы правоприменительной системы США и не включает в себя предоставление профессиональной юридической помощи иностранным гражданам.
• Сотрудники телефонных и информационных центров государственных служб не имеют юридического образования и далеко не всегда обладают должными знаниями в свете часто меняющихся законов и нормативных поправок. При этом они не несут никакой ответственности за неверно предоставленную информацию.
• Индивидуальные обстоятельста в каждом конкретном случае существенно отличаются друг от друга и сотрудники службы cервисa не имеют возможости ознакомиться со всеми деталями вашего персонального дела, что крайне важно для выявления наиболее оптимального и правильного подхода.
• Вопросы указанные в иммиграционных формах могут показаться простыми с первого взгляда, однако они составлены для получения информации связанной со сложными аспектами права и зачастую даже один неправильный ответ может повлечь за собой такие серьезнейшие последствия как дальнейший отказ или даже депортацию подателя петиции из США.
В дополнение к этому, законодательство также имеет много неписанных правил, а иммиграционная служба - множество внутренних инструкций и предписаний, и только адвокат с иммиграционными инстинктами, основанными на фундаментальных знаниях и многолетней практике, с тонким пониманием сути вещей, сумеет правильно и эффективно увязать факты вашего дела c существующими законами.
Если Вы нуждаетeсь именно в такой серьезной юридической поддержке по любым иммиграционным вопросам, Вы можете обратиться к высококвалифицированному юристу в любое удобное для Вас время.
Юридическая Иммиграционная фирмa Михаила Рывина
Михаил Рывин – это адвокат с которым Вы без проблем найдете общий язык – и не только в переносном смысле слова. В большинстве иммиграционных фирм предоставляющих русскоязычную помощь, русским языком владеют только помощники и ассистенты адвокатов, в то время как Михаил сам говорит по-русски. В любой момент Вы или члены вашей семьи не владеющие английским языком, могут задать все вопросы лично ему, поинтересоваться состоянием своего дела, попросить совета и развеять свои сомнения.
Будучи cам иммигрантом первого поколения с 1976 года, Михаил Рывин cвободно владеет несколькими языками включая русский и, естественно, английский и как никто другой понимает важность его работы на жизнь своиx клиентов.
Job Changes During the Immigration Process
It is important to understand that job changes, including title, description, and geographic location changes, may have a significant impact on a foreign national’s immigration status.
When contemplating a change to a new employer, the American Competitiveness in the Twenty First Century Act of 2000 (AC-21) provides job flexibility to employers and employees, but can also pose logistical challenges and risks.
Whether changing jobs within the same company, or transitioning to a new employer, both employers and employees should understand the immigration impact, process, and related cost - BEFORE THE CHANGE IS MADE.
At Ryvin Wallace Group, our lead attorneys have been providing strategic guidance to employers and employees in connection with job changes for more than 25 years, and are ready to answer your questions. Below please find a few examples for some of the most common situations.
Nonimmigrant Processing
H-1B Petition
USCIS grants H-1B status to foreign national employees to work for a specific employer, in a specific position, and in a designated geographic location. In the event of a job change with the same employer - it is important to review the new position against the original H-1B. An amended H-1B petition or a new LCA (Labor Certification Application) may be required to remain in compliance with applicable immigration law.
In the event of a job change with a new employer (H-1B Portability) - A foreign national who holds or has previously held H-1B status may be eligible to accept new employment with a new employer, upon the filing of a new H-1B petition by the prospective employer, if: (1) the foreign national was lawfully admitted to the United States; (2) the new H-1B petition filed by the prospective employer is non-frivolous; (3) the new petition is filed before the date of expiration of the period of stay authorized by the AG (see I-94); and (4) subsequent to such lawful admission the H-1B beneficiary has not been employed without authorization before the filing of such petition.
L-1 and TN Petition
Both L-1 and TN status provide some flexibility for changes in position and geographic location. Individuals in L-1 and TN status may change geographic locations without filing amended petitions with USCIS. Changes in position, however, may require the filing of an amended petition. The new position should be assessed PRIOR to the change, to determine any action that may be required.
Permanent Residency Processing
Permanent Employment Certification Application
The US Department of Labor (DOL) approves Permanent Employment Certification Applications (PERMs or Labor Certifications) for specific positions in designated "areas of intended employment". If a job change is contemplated, it is very important to notify assess the change PRIOR to accepting the new position to ensure that the underlying PERM filed on your behalf will remain valid.
In the event the job change is material, ie, significant changes in position or geographic location, a new PERM should be filed. This could greatly impact the timing of a foreign national’s green card processing due to the issuance of a new filing or "priority date." It could also eliminate the ability of an H-1B status holder to extend his/her stay beyond the 6 year limit, if the new PERM is filed less than 365 days prior to the 6 year expiration.
Outstanding Researcher and Multinational Manager/Executive 1-140 Petition
Generally, changes in position for Outstanding Researchers and Multinational Managers will not require the filing of a new I-140 petition provided the new position is similar to the position noted in the original I-140. However, an amended nonimmigrant petition may be required. Notably, EB-1A (Extraordinary Ability Aliens) are not included under AC-21 Section 106(c), most likely because Congress assumed such petitions were already portable.
Adjustment of Status
I-140 portability provisions of AC-21 provide job flexibility to long-delayed adjustment of status applications, by enabling the beneficiary to accept employment that is different from the position described in the I-140 petition, and leave the employment of the I-140 petitioner.
AC-21 Section 106(c) allows an approved or pending I-140 immigrant petition filed on behalf of a foreign national in the first three employment based preference categories (with the exception of EB-1A extraordinary ability aliens) to remain “valid” if, (1) the foreign national’s adjustment of status application has been filed and remained un-adjudicated for 180 days or more; and (2) the foreign national changes jobs or employers and the new job is in the same or similar occupational classification.
When contemplating a change to a new employer, the American Competitiveness in the Twenty First Century Act of 2000 (AC-21) provides job flexibility to employers and employees, but can also pose logistical challenges and risks.
Whether changing jobs within the same company, or transitioning to a new employer, both employers and employees should understand the immigration impact, process, and related cost - BEFORE THE CHANGE IS MADE.
At Ryvin Wallace Group, our lead attorneys have been providing strategic guidance to employers and employees in connection with job changes for more than 25 years, and are ready to answer your questions. Below please find a few examples for some of the most common situations.
Nonimmigrant Processing
H-1B Petition
USCIS grants H-1B status to foreign national employees to work for a specific employer, in a specific position, and in a designated geographic location. In the event of a job change with the same employer - it is important to review the new position against the original H-1B. An amended H-1B petition or a new LCA (Labor Certification Application) may be required to remain in compliance with applicable immigration law.
In the event of a job change with a new employer (H-1B Portability) - A foreign national who holds or has previously held H-1B status may be eligible to accept new employment with a new employer, upon the filing of a new H-1B petition by the prospective employer, if: (1) the foreign national was lawfully admitted to the United States; (2) the new H-1B petition filed by the prospective employer is non-frivolous; (3) the new petition is filed before the date of expiration of the period of stay authorized by the AG (see I-94); and (4) subsequent to such lawful admission the H-1B beneficiary has not been employed without authorization before the filing of such petition.
L-1 and TN Petition
Both L-1 and TN status provide some flexibility for changes in position and geographic location. Individuals in L-1 and TN status may change geographic locations without filing amended petitions with USCIS. Changes in position, however, may require the filing of an amended petition. The new position should be assessed PRIOR to the change, to determine any action that may be required.
Permanent Residency Processing
Permanent Employment Certification Application
The US Department of Labor (DOL) approves Permanent Employment Certification Applications (PERMs or Labor Certifications) for specific positions in designated "areas of intended employment". If a job change is contemplated, it is very important to notify assess the change PRIOR to accepting the new position to ensure that the underlying PERM filed on your behalf will remain valid.
In the event the job change is material, ie, significant changes in position or geographic location, a new PERM should be filed. This could greatly impact the timing of a foreign national’s green card processing due to the issuance of a new filing or "priority date." It could also eliminate the ability of an H-1B status holder to extend his/her stay beyond the 6 year limit, if the new PERM is filed less than 365 days prior to the 6 year expiration.
Outstanding Researcher and Multinational Manager/Executive 1-140 Petition
Generally, changes in position for Outstanding Researchers and Multinational Managers will not require the filing of a new I-140 petition provided the new position is similar to the position noted in the original I-140. However, an amended nonimmigrant petition may be required. Notably, EB-1A (Extraordinary Ability Aliens) are not included under AC-21 Section 106(c), most likely because Congress assumed such petitions were already portable.
Adjustment of Status
I-140 portability provisions of AC-21 provide job flexibility to long-delayed adjustment of status applications, by enabling the beneficiary to accept employment that is different from the position described in the I-140 petition, and leave the employment of the I-140 petitioner.
AC-21 Section 106(c) allows an approved or pending I-140 immigrant petition filed on behalf of a foreign national in the first three employment based preference categories (with the exception of EB-1A extraordinary ability aliens) to remain “valid” if, (1) the foreign national’s adjustment of status application has been filed and remained un-adjudicated for 180 days or more; and (2) the foreign national changes jobs or employers and the new job is in the same or similar occupational classification.
Defying Trend, Canada Lures More Migrants
New York Times
By Jason DeParle
Published: November 12, 2010
Link.
The United States largest neighbor, Canada, generates a substantial amount of immigration work for our firm. It is not accidental that many companies with offices around the United States also have offices in Canada. As a result, Ryvin Wallace Group works closely with a number of law firms with whom we co-counsel to assist our clients with Canadian immigration matters.
By Jason DeParle
Published: November 12, 2010
Demanding “our fair share,” Manitobans did something hard to imagine in American politics, where concern over illegal immigrants dominates public debate and states seek more power to keep them out. In Canada, which has little illegal immigration, Manitoba won new power to bring foreigners in, handpicking ethnic and occupational groups judged most likely to stay.
This experiment in designer immigration has made Winnipeg a hub of parka-clad diversity — a blue-collar town that gripes about the cold in Punjabi and Tagalog — and has defied the anti-immigrant backlash seen in much of the world.
Rancorous debates over immigration have erupted from Australia to Sweden, but there is no such thing in Canada as an anti-immigrant politician. Few nations take more immigrants per capita, and perhaps none with less fuss.
Link.
The United States largest neighbor, Canada, generates a substantial amount of immigration work for our firm. It is not accidental that many companies with offices around the United States also have offices in Canada. As a result, Ryvin Wallace Group works closely with a number of law firms with whom we co-counsel to assist our clients with Canadian immigration matters.
2009 Report on International Religious Freedom
Executive Summary of the Bureau of Democracy, Human Rights, and Labor, International Religious Freedom Report 2009, dated October 26, 2009:
Link to the 2009 Report on International Religious Freedom.
The Annual Report on International Religious Freedom records the status of respect for religious freedom in all countries during the period from July 1, 2008 to June 30, 2009. The Annual Report's primary focus is on the actions of governments, including those that contribute to religious repression or tolerate violence against religious minorities as well as those that protect and promote religious freedom. Each country report contains sections covering the country's religious demography; government respect for religious freedom (including the legal and policy framework, restrictions on religious freedom, abuses of religious freedom, and improvements and positive developments); societal respect for religious freedom; and U.S. Government policy and actions. We strive to report fairly and accurately, with sensitivity to the complexity of religious freedom in varied settings.Continue reading the Executive Summary here.
The International Religious Freedom Act of 1998 (IRF Act) designates the promotion of religious freedom for all persons as a core objective of U.S. foreign policy. U.S. advocacy for religious freedom is grounded in our commitment to advance respect for human rights and fundamental freedoms worldwide. The vast majority of the world's population professes some religious belief or identification. The right to believe or not to believe, without fear of government interference or restriction, provides an essential foundation for human dignity, robust civil society, and sustainable democracy. This principle holds a central place in American culture, values, and history. It is also a global concern; both the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights articulate the right to freedom of thought, conscience, and religion or belief.
The IRF Act also provides the mandate for this report and prescribes the principal topics for this Executive Summary: following an introductory overview of challenges to religious freedom, Part I outlines the religious freedom situations in selected countries, Part II addresses U.S. actions in designated countries of particular concern (CPCs), and Part III discusses improvements and positive developments, with a special section on efforts to promote interfaith dialogue and understanding.
Link to the 2009 Report on International Religious Freedom.
Department of Justice OSC Settlements in 2010
The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) posts settlement agreements online, including those involving document abuse, citizenship, national origin, and H-1B recruitment. You can review some of the posted agreements from last six months in 2010 here:
Hoover, Inc., pdf (Document Abuse) November 2010
Catholic Healthcare West, pdf (Document Abuse) October 2010
Elena Rush Noel v. Macy's, pdf (Citizenship and Document Abuse) June 2010
Kristen West c/o Edelsa Fajardo-Bacallao v. Morton’s Steakhouse, pdf (Citizenship and Document Abuse) June 2010
Anthony Ernest Gobran v. Aquatico Pool Management, Inc., pdf (Citizenship and Document Abuse) June 2010
Hoover, Inc., pdf (Document Abuse) November 2010
Catholic Healthcare West, pdf (Document Abuse) October 2010
Elena Rush Noel v. Macy's, pdf (Citizenship and Document Abuse) June 2010
Kristen West c/o Edelsa Fajardo-Bacallao v. Morton’s Steakhouse, pdf (Citizenship and Document Abuse) June 2010
Anthony Ernest Gobran v. Aquatico Pool Management, Inc., pdf (Citizenship and Document Abuse) June 2010
Secretary Napolitano and USCIS Director Alejandro Mayorkas Announce Anti-Fraud Enhancements to E-Verify
WASHINGTON – Department of Homeland Security (DHS) Secretary Janet Napolitano and U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas today announced the expansion of the E-Verify program's capabilities to include U.S. passport photo matching—further enhancing the integrity of the program by enabling E-Verify to automatically check the validity and authenticity of all U.S. passports and passport cards presented for employment verification checks.
"E-Verify is a smart, simple and effective tool that helps employers and businesses throughout the nation maintain a legal workforce," said Secretary Napolitano. "Including U.S. passport photo matching in E-Verify will enhance our ability to detect counterfeit documents and combat fraud."
"U.S. passport photo matching is another in the long line of enhancements we have made to improve the integrity of the E-Verify system," said Director Mayorkas. "Adding U.S. passport photos expands our current photo matching efforts and will play a significant role in preventing and detecting the use of fraudulent documents—all part of major anti-fraud initiatives undertaken by the Department."
Beginning today, E-Verify employers are now able to verify the identity of new employees who present a U.S passport or passport card by comparing that data with State Department records. Approximately 10 percent of all E-Verify queries currently provide a U.S. passport to establish both identity and employment authorization in order to prove employment eligibility.
Since September 2007, E-Verify has provided photo matching capabilities to employers throughout the nation to verify the identity of new employees when they presented employment authorization documents or permanent resident cards as proof of identity and work authorization for the Form I-9, Employment Eligibility Verification.
E-Verify is a free, easy-to-use web-based system—operated by DHS in partnership with the Social Security Administration—that enables participating employers to electronically verify the employment eligibility of their employees. E-Verify is now used by more than 230,000 employers at more than 800,000 worksites.
For more information, visit www.dhs.gov/e-verify.
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Link to the DHS press release.
USCIS Revises Form I-129 (Petition for a Nonimmigrant Worker)
NEW FORM TO BE USED STARTING 12/22/2010 - Petitions postmarked or filed on or after this date require the revised version.
Please note the requirement for a petitioner to submit a duplicate copy in ALL instances. Previously, a duplicate copy was required only for those cases seeking consular processing (as opposed to a change or extension of status). In addition to added cost, it is possible that immigration authorities may seek to use the duplicate copy for enforcement related activities. If this is the case, we look forward to information about such activities, in the interest of transparency.
Further, we also draw your attention to Part 3, Section F, "Amended Petition". Based on well established guidance, historically this box would only be marked in the event of a "material change in the terms or conditions of employment". However, USCIS provides two examples, a change to job duties or "geographic location of the position". Notably, in the context of an H-1B petition, when a petition is approved for a single location based on an approved LCA, an amended petition is not required for merely a change geographic location, where the LCA continues to remain valid. This guidance is confirmed in a letter from Efren Hernandez and in the Adjudicator's Field Manual (AFM). The USCIS examples, combined with recent trends in H-1B employer investigations conducted by FDNS officers seem to represent a policy shift. Specifically, H-1B employers are now being expected to file H-1B amendments for mere changes in geographic locations, as opposed to just filing new LCAs.
Finally, the Beneficiary will now be asked to sign the H-1B Data Collection Supplement form. Notably, H-1B petitions previously had not required the Beneficiary's signature. This is positive development considering it can only help the Beneficiary understand what is being filed on their behalf.
Revised Form I-129
Please note the requirement for a petitioner to submit a duplicate copy in ALL instances. Previously, a duplicate copy was required only for those cases seeking consular processing (as opposed to a change or extension of status). In addition to added cost, it is possible that immigration authorities may seek to use the duplicate copy for enforcement related activities. If this is the case, we look forward to information about such activities, in the interest of transparency.
Further, we also draw your attention to Part 3, Section F, "Amended Petition". Based on well established guidance, historically this box would only be marked in the event of a "material change in the terms or conditions of employment". However, USCIS provides two examples, a change to job duties or "geographic location of the position". Notably, in the context of an H-1B petition, when a petition is approved for a single location based on an approved LCA, an amended petition is not required for merely a change geographic location, where the LCA continues to remain valid. This guidance is confirmed in a letter from Efren Hernandez and in the Adjudicator's Field Manual (AFM). The USCIS examples, combined with recent trends in H-1B employer investigations conducted by FDNS officers seem to represent a policy shift. Specifically, H-1B employers are now being expected to file H-1B amendments for mere changes in geographic locations, as opposed to just filing new LCAs.
Finally, the Beneficiary will now be asked to sign the H-1B Data Collection Supplement form. Notably, H-1B petitions previously had not required the Beneficiary's signature. This is positive development considering it can only help the Beneficiary understand what is being filed on their behalf.
Revised Form I-129
Thursday, November 4, 2010
Tuesday, November 2, 2010
Monday, November 1, 2010
NPR: Warnings Abound In Enforcing Immigration Job Rules
Associated Press, Seattle
November 1, 2010, 02:00 pm ET
Link.
November 1, 2010, 02:00 pm ET
They cost clothing chain Abercrombie & Fitch $1 million in fines, tripped up Meg Whitman's campaign for California governor, prompted mass layoffs across the country and have been at the center of countless other workplace immigration disputes.
An obscure federal document called the I-9 form has emerged as a contentious element in the national immigration debate since the Obama administration vowed to go after employers who hire undocumented workers. Employers must fill out and sign the form, which requires them to acknowledge, under penalty of perjury, that they examined documents that allow an employee to work.
The Obama administration a year ago announced plans to ramp up I-9 audits — a shift from the notorious work site raids common under the Bush administration.
Link.
United States v. Arizona, Court of Appeals, Ninth Circuit: Oral Arguments on CSPAN
A panel of three judges at the Ninth Circuit Court of Appeals are hearing oral arguments on the constitutionality of Arizona Senate Bill 1070 today. The bill requires state law enforcement officers to check a person's immigration status under certain circumstances, and authorizes a warrantless arrest in the case of probable cause to believe that the person has committed an offense punishable by removable from the United States.
Link to CSPAN's live feed from the US Court of Appeals, Ninth Circuit, in San Francisco.
Link to CSPAN's live feed from the US Court of Appeals, Ninth Circuit, in San Francisco.
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