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Welcome
back to all our regular
readers, and to all
our new readers. There
is a lot of news to
get to this month, and
there was a lot going
on in the immigration
landscape, with the
29th Olympiad being
the source of several
immigration related
stories. VisaPro would
like to congratulate
all the immigrants representing
the United States in
the 2008 Olympics in
Beijing, China. The
Chicago Tribune, on
Aug 13, 2008, reported
that the US is being
represented at the Beijing
Olympics by at least
33 immigrant athletes
who migrated from other
countries, up from 27
during the 2004 Summer
Games. This statistic
does not include any
of the athletes who
are children of recent
immigrants. We should
be in high spirits because
these Olympic athletes
immigrated to the US
seeking a better life
and are now sharing
their talents with the
nation. Nora Garcia
of the Illinois Coalition
for Immigrant &
Refugee Rights (Chicago)
said that we should
design a fair and humane
immigration policy that
recognizes the talents
in the faces of the
immigrants who come
to give their all to
the nation. Well, this
seems to be good news
for all immigrants,
isn't it?
Let's now look at what
else is going on in
the Immigration landscape.
As was the case in recent
months; this month was
not a tranquil one for
the United States Citizenship
and Immigration Services
(USCIS). The USCIS was
ruffled by Hurricane
Dolly as it was forced
to temporarily close
its Harlingen, Texas
Office. But the USCIS
deserves a word of praise
as they raised a helping
hand for all applicants
who missed appointments
due to Hurricane Dolly
by quickly rescheduling
new appointments. USCIS
may be have to make
these same arrangements
with the projected landfall
of Hurricane Gustav
along the Gulf Coast.
On another front, while
the USCIS is charged
with protecting US citizens
it made a crucial decision
when it decided to revise
the list of vaccines
essential for applicants
seeking Adjustment of
Status to become legal
permanent residents.
This revision follows
input and guidance from
the Department of Health
and Human Services,
Centers for Disease
Control and Prevention
(CDC).
On the employment visa
front the USCIS announced
a series of proposed
rule changes intended
to streamline procedures
for hiring foreign workers
under the H-2B
program. As we noted
in a recent article,
the H-2B program allows
employers to hire foreign
workers to fill temporary,
non-agricultural occupations
for which U.S. workers
cannot be found. Under
the current rules the
maximum validity of
an H-2B visa is usually
for one year. Among
several proposed changes
is a reduction in the
amount of time H-2B
workers must wait outside
the US after they have
reached the 3 year maximum
time in H-2B status
before being eligible
to reapply under an
H or L class visa. The
proposals would also
eliminate the requirement
for employers to show
"extraordinary
circumstances"
to hire an H-2B worker
for more than 1 year.
Watch this column for
updates as additional
information becomes
available.
Moving on,the USCIS
on July 30, 2008, announced
that it had received
a sufficient number
of petitions to reach
the congressionally
mandated H-2B cap for
the first half of Fiscal
Year 2009 (FY2009).
The USCIS gave notice
to the public that July
29, 2008 was the "final
receipt date" for new
H-2B worker petitions
requesting employment
start dates prior to
April 1, 2009. The final
receipt date is the
date on which USCIS
determines that it has
received enough cap-subject
petitions to reach the
limit of 33,000 H-2B
workers for the first
half of FY2009. Therefore
the USCIS began rejecting
all petitions for new
H-2B workers seeking
employment start dates
prior to April 1, 2009
that arrived after July
29, 2008.
On another front, the
USCIS announced on August
25, 2008, it has revised
the filing instructions
for the Petition to
Remove Conditions on
Residence (Form I-751).
With this announcement
all petitioners filing
a Form I-751 must file
with the California
or Vermont Service Center,
depending on the state
in which they reside.
Additionally, beginning
September 24, 2008,
USCIS will only accept
the revised form dated
August 25, 2008, and
will reject any applications
submitted with previous
versions of the form,
as well as petitions
filed with the incorrect
Service Center. Contact
VisaPro with any questions
you have regarding the
process to remove the
conditions from your
permanent resident status.
The USCIS also issued
a reminder to use the
correct version of the
Application for Employment
Authorization (Form
I-765).
Only the version dated
05/27/08 should be used.
The edition date appears
in the lower right hand
corner of the form as
"Form I-765 (Rev. 05/27/08)
N". Submission
of an earlier version
of the form may result
in rejection of the
application, and delays
in receiving your work
authorization.
Other Developments
in Immigration Law
USCIS Changes
Vaccination Requirements
for Adjustment of Status
Applicants
The USCIS on July 24,
2008 announced a revised
list of vaccines required
for applicants seeking
to adjust status to
become legal permanent
residents. This revision
follows guidance from
the Department of Health
and Human Services,
Centers for Disease
Control and Prevention
(CDC). The requirements
for these new vaccines
went into effect on
July 1, 2008, however
CDC approved a 30day
grace period for any
medical exam conducted
before August 1, 2008.
At that time the new
vaccinations, if appropriate,
must be administered
in order for USCIS to
approve the applicant
for Adjustment of Status.
CDC's revised Technical
Instructions to Civil
Surgeons for Vaccination
Requirements require
the following age-appropriate
additional vaccinations
for the applicants undergoing
their Adjustment of
Status to legal permanent
resident:
- Rotavirus
- Hepatitis
A
- Meningococcal
- Human Papillomavirus
- Zoster
USCIS Clarifies
Fee Exemption Eligibility
for the Application
for Waiver of Grounds
of Inadmissibility (Form
I-601)
The USCIS remind its
customers that the Application
fee for Waiver of Grounds
of Inadmissibility (Form
I-601)
is always required.
Actually this year the
USCIS has received numerous
applications filed without
the appropriate fee
due to an incorrect
interpretation of the
regulations. The authority
to waive or exempt payment
of the $545 fee as discussed
in the Code of Federal
Regulations 8 CFR 245.1(f)
cites an October 1977
law that applied only
to applications from
certain Vietnamese,
Laotian and Cambodian
parolees filed by October
28, 1983.
DOL Announced
grant exceeding $758,000
to Assist Trade-Affected
Workers in Massachusetts
The U.S. Department
of Labor (DOL) announced
a $758,714 grant to
assist approximately
170 workers affected
by ongoing layoffs at
the Alcatel-Lucent plant
in North Andover, Mass.
The grant, awarded to
the Massachusetts Department
of Workforce Development,
will provide Alcatel-Lucent
workers with full access
to dislocated worker
services not available
through the Trade Adjustment
Assistance (TAA) program.
These services include
skills assessment, counseling,
case management and
job search assistance.
On Dec. 10, 2007, Alcatel-Lucent
workers were certified
by the Department of
Labor (DOL) as eligible
for TAA. The plant is
scheduled to close on
Dec. 31, 2008.
Immigration
Articles and Other Fun
Stuff
Now for the regulars
-- this month's Immigration
Article, marks
the continuation of
our journey to explore
alternatives to the
H-1B
visa. So far our travels
have covered the E-3,
H-1B1,
and TN
NAFTA (Mexico),
most of the visas that
typically serve as alternatives
to the H-1B visa. This
month we bring you TN
NAFTA (Canada) as
an alternative to the
H-1B for Canadian citizens.
Also check out our In
Focus section
this month which will
provide a detailed analysis
of all the preference
categories that qualify
an individual for a
Family
Based Immigrant visa.
These visas are all
based upon the beneficiary's
relationship to a US
citizen or Legal Permanent
Resident.
Every month we bring
you a new, and of course
interesting, question
for our opinion poll.
Last month's poll results
indicate that 77.78%
of the respondents believe
that a person who served
the United States honorably
in the warfront should
be eligible to apply
for immediate US Citizenship.
We appreciate that people
take an interest in
the pole questions and
take the time to cast
their vote and give
us their feedback. Keep
it up! and continue
to cast your vote to
express Your
Opinion.
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We
congratulate Anna
Fernandez
for winning last
month's Immigration
Quiz.
As usual, we received
a significant
number of responses
from our readers
who talked about
various solutions
to the quiz question,
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but Anna Fernandez gave
the correct answer and
won a free online consultation
to discuss her Immigration
issues. So it's time
to get ready again for
this month's quiz. If
you know the correct
answer your name might
be featured in next
month's newsletter.
All the Best!!!
To ensure you receive
your Immigration Newsletter,
please add Immigration-Monitor@VisaPro.com
to your address book
or safe list.
See you next
month with a lot more
noise from the Immigration
World!
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Do
you intend to enter, live,
work, study, invest or retire
in the U.S.? You can now download
and read the exclusive Immigration
Reports from VisaPro.
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Wanted to take part in our
immigration events, but missed
your chance? Check out the
informative library of immigration
law videos from past conferences.
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USCIS
Informs the Public that
New Passport Card is
Acceptable for Employment
Eligibility Verification
The USCIS informed the
public that the new
U.S. Passport Card may
be used in the Employment
Eligibility Verification
form (I-9) process and
can also be accepted
by employers participating
in the E-Verify program.
The new card provides
a less expensive and
more portable alternative
to the traditional passport
book, and will expedite
document processing
at United States land
and sea ports-of-entry
for U.S. citizens traveling
to Canada, Mexico, the
Caribbean, and Bermuda.
However the new passport
card cannot be used
for the international
travel by air. The new
passport card would
be considered a "List
A" document that may
be presented by newly
hired employees during
the employment eligibility
verification process
to show work authorized
status.
USCIS
Updates Projected Naturalization
Processing Times
The
USCIS announced today
that it continues to
make steady progress
in reducing the significant
number of naturalization
applications it received
last year. USCIS now
anticipates naturalization
application processing
will average 10-12 months
nationally by the end
of September 2008 -
a substantial improvement
from its estimated average
processing time of 16-18
months first announced
last year. In response
to the surge in applications,
USCIS implemented a
work plan to reduce
the backlog. The USCIS
also anticipates completing
more than one million
naturalization applications
by the end of this fiscal
year, including most
of the applications
received during the
summer of 2007.
USCIS
Proposes Changes to
Improve the H-2B Temporary
Non-agricultural Worker
Program
The
USCIS announced on August
15, 2008 a series of
proposed rule changes
that will streamline
procedures for hiring
workers under the H-2B
program. These changes
are being proposed in
further fulfillment
of the commitment made
by the Administration
last August, after the
failure of Congress
to pass comprehensive
immigration reform,
to review and improve
visa programs for temporary
workers on H-2B using
existing authorities.
The proposed rule, which
has been sent to the
Federal Register, supplements
the extensive reforms
of the H-2B program
already proposed by
the Department of Labor
in its proposed rule
published on May 22.
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Family-Based
Immigrant Visa: Who Qualifies?
The US Congress, by conferring
permanent residence eligibility
upon certain family-based
groups, has properly recognized
the importance of family unification
in American immigration law.
The family-based Immigration
falls under two basic categories:
Unlimited (Immediate relatives
of U.S. Citizens) and Limited
(the "preference" categories).
Approximately 500,000 family-based
immigrant visas are available
each year. Family based immigration
has many benefits for US citizens
or permanent residents that
want to be reunited with family,
be it a spouse and children,
a newly adopted child, or
brothers and sisters. The
closeness of the relationship
will determine if the foreign
national can be sponsored
under the family based categories,
and if they can how long it
will take for them to get
the immigrant visa.
TN
Visa, a viable alternative
to H-1B for Canadians
This is the second of two
articles on the TN visa. The
TN visa came into being with
the passage and ratification
of the North America Free
Trade Agreement – NAFTA.
The first article explored
the TN as it applies to Mexican
citizens. In this segment
we will review the application
of the TN status to Canadians.
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QUESTIONS
AND ANSWERS
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| 1. |
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I am a
US citizen and
my fiancée
is on a 2-year
work visa in the
United States.
We want to get
married and reside
in the USA. Is
there any way
we can do that
if her employer
cancels her work
visa? If she needs
to return to her
home country,
would it be to
our advantage
to get married
in the USA before
she leaves the
country?
If you and your
fiancée
get married she
will be considered
an "immediate
relative"
and can apply
for her permanent
residence without
having to wait.
If you are in
the US when you
marry you can
submit a Petition
for Alien Relative
on your spouse's
behalf, and she
can file for Adjustment
of Status
concurrently (she
would NOT have
to leave the US
to get her green
card). Once she
has filed for
adjustment of
status she is
considered to
be maintaining
a legal status
in the US until
the USCIS makes
a decision on
her application.
Therefore, she
will be in status
even if she is
no longer working
for the H-1B employer.
Moreover, as part
of the adjustment
package she can
request work authorization
that would allow
her to work for
any employer she
wishes, i.e.,
she would no longer
be tied to the
H-1B
employer. The
adjustment of
status application
also allows her
to apply for Advance
Parole that
would allow her
to travel and
return to the
US without having
to get a new US
visa in her home
country. |
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| GOT
A
QUESTION? |
If
you
have
a
short,
simple
query
on
immigration
to
the
U.S.,
send
your
questions
to
us.
We
will
select
and
answer
a
few
of
the
queries
in
every
issue.
Note:
Responses
posted
in
this
section
provide
only
general
information.
Since
immigration
law
is
a
complex
matter,
please
consult
an
immigration
attorney
before
acting
upon
any
responses
provided. |
| Ask
Your
Question |
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| 2. |
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Can
a person in India, whose
family-based green card
application is being
processed, come to the
U.S. on a J-1 visa for
a short time? |
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The
pending green card application
makes it very difficult
to obtain a J-1
visa. This is based
on a concept known as
"nonimmigrant intent."
Under US immigration
law all applicants for
a visa are considered
to be intending immigrants
until they prove otherwise.
To qualify for a J-1
visa, or to enter the
United States in J-1
status, the applicant
must intend to come
to the US on a temporary
basis. A pending green
card application clearly
shows that the applicant
has expressed the intention
to come to the US on
a permanent basis. However,
if the waiting period
to process the family-based
green card is extensive
(as it is for the second,
third and fourth preference
categories), and it
is possible to enter
the US on the J-1 visa,
complete the J-1 purpose,
and return home to complete
the two-year home residency
requirement (if applicable)
before the green card
process is completed,
the nonimmigrant intent
may not be an issue.
Each situation has to
be carefully evaluated. |
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How Strategy
and Preparation
can Prevent Denial
of H-4 (Dependant)
Visa Resulting
from Out-of-Status
F-1 (Student)
Visa
The
scene
- You just got
married and everything
is looking good.
Your spouse has
a great job offer
in the US and
is moving there
to start work
in a couple of
weeks. She got
her H-1B
visa at the consulate
several weeks
ago, but yours
was denied. You
are now faced
at being separated
from your new
wife for several
months (or years).
Do you reapply?
or do you just
accept the decision
of the consular
officer and wait
it out? A client,
Mr. N, came to
VisaPro with this
scenario recently.
The
background
- Mr. N had been
granted a visa
for the US in
the past. Several
years ago he had
come to the US
to pursue his
Master's degree
on an F-1
visa. As a student
you have to continue
to attend classes
full-time to maintain
your status. Unfortunately
Mr. N had some
medical issues,
he suffered from
clinical depression,
which prevented
him from attending
school. He did
not finish his
classes one semester,
was denied readmission,
and his student
status was terminated.
He worked with
the school to
get treatment
for his depression
and was given
a second chance.
He applied for
reinstatement
of his student
status and was
approved, allowing
him to continue
his studies. At
this point we
wish we could
say that everything
worked out and
he finished his
degree program
and returned to
India. But the
depression continued
to affect his
school work. He
transferred to
another school
and started over.
Unfortunately
he was no more
successful at
the new school
and soon dropped
out. He again
found himself
out of status.
Since he was no
longer in school
he no longer had
access to the
treatment that
he had been receiving
for the depression.
It took him several
years before he
was able to return
to India. Once
back in India
he was able to
get treatment
and has now overcome
the depression.
However because
he had failed
to maintain his
student status
the consular officer
denied him the
H-4
visa, and as a
consequence, the
ability to live
with his wife
in the US.
The
solution
-- When he
first came to
us Mr. N had already
been denied an
H-4 visa so we
were facing an
uphill battle.
We sat down with
Mr. N and got
a complete history.
To his credit
Mr. N had been
forth coming and
truthful with
the consular officer
at his first interview
- he did not try
to hide any of
his background.
Our analysis showed
that even though
Mr. N had been
out of status
in the US for
over 3 years he
was not subject
to the10 year
ban for being
an overstay. Because
he had entered
the US as a student
he was granted
duration of status,
meaning that he
did not have a
set date that
he had to leave
the US. Because
he did not have
a set date to
leave the US he
never "overstayed
his authorized
stay in the US,"
and therefore
never triggered
the bar. With
this in hand we
prepared an extensive
letter for Mr.
N that outlined
his background
and the law that
applied to his
situation. We
also obtained
extensive documentation
from his doctors
showing that his
depression was
no longer the
problem that it
had been when
he was in the
US as a student.
The final step
in the process
was to prepare
Mr. N for his
second visa interview.
We went through
the process with
him several times
to prepare him
for the type of
questions that
he was likely
to receive and
how to phrase
his answers.
The
result
- Mr. N attended
his second interview,
but this time
he was much better
prepared. He was
able to answer
all the consular
officer's questions
and presented
himself very well.
Our letter showed
that while he
had been out of
status he never
had an overstay,
therefore he did
not trigger the
3/10 year bans.
We also showed
that as an H-4
he was not subject
to the "intending
immigrant" provisions
in Section 214(b),
the section used
most often by
consular officers
to deny visa applications.
All of
the hard work
and preparation
paid off, because
at the end of
the interview
the consular officer
granted the H-4
visa. Mr. N is
now residing in
the US with his
wife, beginning
a new life together.
Our lawyers have
the experience
to review and
analyze difficult
cases and formulate
strategies for
success. We would
be happy to review
your case and
discuss your options.
We cover the latest
happenings on
work visas in
Immigration Monitor,
our monthly newsletter.
Click
here to subscribe
to Immigration
Monitor.
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