November 2010

From the Editor's Desk

Hello and welcome to the November 2010 Immigration Newsletter!

Let us begin our most recent immigration expedition with one of the most important pieces of news this month. Well, no points for guessing that we are talking about the increase in fees for immigration benefits. This is the second time in three years that USCIS has announced an increase in fees. Almost all fees are increasing, on average, by 10%. The fees for Form N-400, Application for Naturalization, however, will remain the same. Fees for six individual applications and petitions will actually go down; they are Form 129F, Petition for Alien Fiancé; Form I-539, Application to Extend/Change Nonimmigrant Status; Form I-698, Application to Adjust Status from Temporary to Permanent Resident; Form I-817, Application for Family Unity Benefits; Form I-131, Application for Travel Document when filed for Refugee Travel Document and Form N-565, Application for Replacement Naturalization/Citizenship Document. The changes will go into effect on November 23, 2010. All applications received on or after November 23, 2010 with the old fee will be rejected.

USCIS is also reminding all stakeholders that it has revised Form I-129, Petition for Nonimmigrant Worker, which will be published on November 23, 2010, the same day as the above noted fee changes go into effect. The previous version of the form will be accepted for 30 days, ending on December 21, 2010. All applications submitted to USCIS with the older version must be postmarked on or before December 21, 2010. USCIS has also informed that it will publish the revised edition of the Form I-129 on November 23, 2010 and until December 21, 2010, USCIS will accept the old version of the form but after December 21, it will not accept the previous editions of the form.

Here is a synopsis about the crucial changes that are going to take place in coming days:

Nov. 8, 2010

Pursuant to a decision from the 9th Circuit Court of Appeals, USCIS will no longer accept I-485 applications (with accompanying Form I-765, and/or Form I-131), filed concurrently with or filed based on pending I-360 petitions for individuals seeking classification as special immigrant religious workers.

Read more on Changes in Form I-485 and I-360 Concurrent Filing for Special Immigrant Religious Workers

Nov. 23, 2010

USCIS revised fee schedule for most applications and petitions including I-129I-129FI-130I-140I-485I-539I-765 will go into effect.

Read more on Changes in the Fee Structure

Nov. 23, 2010USCIS will release the revised Form I-129, Petition for Nonimmigrant Worker.
Dec. 22, 2010

USCIS will no longer accept previous editions of the Form I-129.

Revised Form I-129

  • Asks petitioners to indicate whether an H-1B beneficiary will work offsite
  • Requests representations about the beneficiary’s wage rate and the petitioner’s compliance with labor condition application obligations
  • Eliminates previously proposed language that would have required the petitioner to state whether the H-1B beneficiary was to work offsite under a contract with a third party, provide contact information for the third party, and obtain the beneficiary’s consent to working conditions at the third-party site
  • Adds questions concerning the petitioner’s liability for the new border security fee imposed on H-1B and L-1 employers with 50 or more employees and a workforce with more than 50% H-1B or L-1 workers

On November 2nd, 2010, the Democratic Party suffered huge election losses, mostly tied to voter frustration with the state of politics in America and the weakened economy. After a disappointing two years for most immigration proponents in terms of any sweeping policy changes, it is difficult to say if there will be any immigration reform now, considering that the Republicans have wrested control of the Lower House.

On November 5th, 2010, President Obama departed on a ten-day trip to Asia, which began in India, followed by visits to Indonesia, Japan and ending in South Korea where he attended the G-20 Summit.

On November 6, 2010, President Obama addressed the US-India Business Council Summit at the Hotel Trident-Oberoi. We are pleased to share that the VisaPro team was a part of the Presidential Executive Mission to India.

Mr. Ramineni (standing on the extreme right, holding the President’s hand) from our DC office is interacting with President Obama at the Business and Entrepreneurship Summit in Mumbai where the President announced nearly $10 billion in U.S. export deals.

This Business and Entrepreneurship Summit in India’s financial capital (Mumbai) was the President’s first stop with the business community in India, enabling the President to experience first-hand the excitement underway being generated by the entrepreneurial spirit that unites the business communities and which binds the two countries.

Other Developments in Immigration Law:

Changes in Consular Processing for Family Second Preference (F2A) Applicants from Cuba

DOS and USCIS have announced that because of decreased worldwide demand in the family second preference category, all Cuban Family Reunification Program (CFRP) participants in this category will be eligible to be processed as regular immigrant visa applicants beginning January 1, 2011.

DOL Approves Standards for Direct Support Professional Occupation Under National Registered Apprenticeship System

DOL’s Employment and Training Administration (ETA) has approved national guidelines for apprenticeship standards for the occupation of direct support professional. These standards will enable employers to use ETA’s Registered Apprenticeship program to train workers for careers in the long-term care sector of the health care industry. Under the new standards, the Registered Apprenticeship program will provide direct support professional apprentices with on-the-job instruction to develop competencies in assisting people in need. The credentials and competencies to be achieved are based upon criteria for the NADSP national voluntary direct support credentialing program.

Immigration Articles and Other Fun Stuff:

Now for the regulars – this month’s Immigration Article titled ‘B1 In Lieu Of H3: An Often Overlooked Trainee Visa’ contains a quick look at the similarities and differences between the B-1 and H-3 visas. The article also presents a brief introduction to B1 in lieu of H3 for employees required to undergo a training program in the U.S. Also check out our In Focus section for this month where we discuss some key concepts to be considered by both F1 students and H1B employers while changing status from OPT to H1B. The article also tells the FOUR steps you have to go through to change your status from OPT to H1B.

Every month we introduce a new and interesting question for our opinion poll. Last month’s poll results indicate that 60.00% of the respondents think that USCIS’ urge to Fraud Prevention Officers to check social networking sites like Facebook and Twitter when investigating cases may disturb a person’s privacy. We appreciate that people take an interest in our opinion question. Keep it up! And continue to cast your vote to express Your Opinion.

We congratulate Rehaan Hussain for winning last month’s Immigration Quiz. Again, we received a significant number of responses from our readers, who talked about various solutions to support their position, but Rehaan Hussain gave the correct answer and won a free online consultation to discuss the concerned Immigration issues. So it’s time to get ready for this month’s quiz. If you know the correct answer your name might be featured in next month’s newsletter. All the Best!!!

Latest Immigration News

H1B Cap Count Increases Further - Total 47,800 Petitions Received

As of November 11, 2010, USCIS received 47,800 H-1B cap subject petitions and approximately 17,400 petitions qualifying for the advanced degree cap exemption. USCIS will continue to accept both cap subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits.

Honduran National Imprisoned for Conspiracy to Harbor Illegal Aliens by Wearing an ICE T-Shirt

Kenneth Barahona, 19, Honduran national, was sentenced by U.S. District Court Judge Sim Lake Nov. 5 to eight years and four months in prison for conspiracy to harbor aliens and possessing a firearm. Barahona is subject to deportation after he completes his prison sentence. Barahona admitted to the attempted kidnapping of more than 20 illegal aliens by wearing an ICE T-shirt.

Registration Period Closed for DV Lottery 2012

DOS has stopped accepting electronic registrations for the DV Lottery for fiscal year 2012 at 12:00 pm EDT (GMT -4) on Wednesday, November 3, 2010.

November's Featured Articles

B1 In Lieu Of H3: The “Other” Trainee Visa

Employers requiring their overseas employees to undergo temporary, job-related training in the U.S. often overlook B1 in lieu of H3 visa. Unlike the H-3 trainee visa, the B1 in lieu of H3, which allows foreign national employees to participate in professional training programs of short durations in the U.S., does not require a prior USCIS petition. To qualify for the B1 in lieu of H3 visa, foreign nationals must present to the consular officer ample evidence to demonstrate compliance with certain special requirements in addition to the general eligibility requirements of a B1 visa. For the benefit of employers and trainees, we present a brief introduction to the B1 in lieu of H3 visa along with a quick comparison of the two visas, which would be help employees consider all options before identifying an appropriate visa option to suit their particular requirements.

OPT to H1B in 4 Easy Steps

F1 students on OPT often enquire about the steps they need to take to change status from OPT to H1B. They often seek clarifications on Optional Practical Training, H1B filings for them, cap-gap and cap-gap extension, consequences of traveling outside the U.S. while on cap-gap extension etc. On the other hand, we also receive enquiries from employers employing students on OPT, seeking advice on how to properly file an H1B petition for such students on OPT employed by them and steps that they could take to ensure that there are no undesirable breaks in the employment. For the benefit of our readers, we present in this article, an introduction to some key concepts to be considered by both F1 students and the employers while changing status from OPT to H1B and give the readers an overview of how to change status from OPT to H1B in 4 easy steps.

Questions and Answers

Q1.

I am currently working with a company under TN Canadian work permit which will expire in January 19, 2011. I want to move to another company. The question is: can I work for the other company with my current work permit? In my passport the name of my current employer is stated. I would like to know what is the procedure, if the new company needs to sponsor my TN visa or if I can just move to the new company with the current TN visa and renew it when it expires.

A.

The TN visa is employer specific so you cannot change employers until you have a new TN from your new employer. You can either process the new TN at the border or you can file for a change of employer with the USCIS Service Center. If you process at the border you will get the approval at the time of filing. If you file for a change of employer with the service center it will take 15-75 days for a response.

Q2.

I got married to my U.S. citizen fiancé in August 2008 and got conditional Green Card. In August 2010 my petition to remove the conditions on the residence was denied by the USCIS. I do not know what to do now? What is my stance on this situation?

A.

When a Form I-751, Petition to Remove the Conditions, is denied the case is usually referred to the Immigration Court, and you should have received a notice for a hearing. When a Form I-751 is referred to the Immigration Court you are given an opportunity to renew your petition and another chance at trying to prove that you have a valid marriage. If you have not received any notices you will need to follow up on that and make sure that you have not missed any hearings or notices from USCIS.

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