August 2009

From the Editor's Desk

Hello and welcome to the August 2009 Immigration Newsletter!

Here we are again, in the dog days of summer, as the month of August is often called. We have lots of updates and news from the world of immigration. While we have lots of things to share with you, let’s begin with the appointment of Alejandro Mayorkas as the new Director of the US Citizenship and Immigration Services.                 Mr. Mayorkas, a Cuban immigrant to the US, was sworn in as the Director on August 12, 2009.

“The USCIS mission is rooted in the vision of our founding fathers,” Mayorkas said. “My family, like millions of others, came to this country to pursue our dreams in a land of liberty and opportunity. I am committed to administering our country’s immigration and naturalization laws efficiently and with fairness, honesty, and integrity.”

Now let’s turn our attention to what we hope is the start of a pleasant trend. The Bureau of Labor Statistics has released unemployment figures for the month of July. The unemployment rate actually fell in July. Although the US lost 247,000 jobs, this is nearly 200,000 fewer jobs lost than in June. Speaking in response to the news, President Obama explained how the Recovery Act is helping country rebound:

“Today we’re pointed in the right direction. We’re losing jobs at less than half the rate we were when I took office. We’ve pulled the financial system back from the brink, and a rising market is restoring value to those 401(k)s that are the foundation of a secure retirement. We’ve enabled families to reduce the payments on their mortgages, making their homes more affordable and reducing the number of foreclosures. We helped revive the credit markets and opened up loans for families and small businesses.”

Another sign of just how bad the US economy is comes from the    H-1B program. For the first time in several years the H-1B cap was not reached with the initial filing. As of mid-August the cap for the fiscal year 2010 has not been reached. The last numbers released show that USCIS has only received 45, 000 H-1B cap subject petitions and 20,000 advanced degree cap exemption petitions.

Many articles have been written and many immigration experts have addressed the situation trying to figure out the actual cause for fall in the demand of H-1B visa. After all the scrutiny by the experts, it has been concluded that the fall in the demand for the H-1B visa is not solely due to the economic crisis; the other reason behind this seems to be the increased scrutiny given to H-1B petitions.There is much anecdotal evidence from employers and immigration practitioners that many H-1B petitions are receiving much stricter review than in the past several years. Whether this is an outgrowth of the economy or just a shift in policy we may never know.

There is also good news on the H-2B front. USCIS has reopened the fiscal year 2009 H-2B petition filing period and will immediately accept new H-2B petitions. Although USCIS announced on Jan. 7, 2009, that it had accepted and approved a sufficient number of H-2B petitions to meet the congressionally mandated annual cap of 66,000, the Department of State (DOS) received far fewer requests for H-2B visas than expected. As a result, the DOS has issued only 40,640 H-2B visas for fiscal year 2009 to date. This means that there are approximately 25,000 H-2B visas that are unused. Because of the low visa issuance rate, USCIS has reopened the filing period to allow employers to file additional petitions for qualified H-2B temporary foreign nonagricultural workers.

Finally, USCIS announced on July 21, 2009, that, effective immediately, it will resume Premium Processing Service for nonimmigrant religious worker petitions filed by certain                   R-1 petitioners. Only those petitioners who have successfully passed an on-site inspection are eligible to file under Premium Processing Service. Based on a 2005 Benefit Fraud Assessment of religious worker petitions conducted by the USCIS Office of Fraud Detection and National Security (FDNS) USCIS instituted a site inspection requirement as part of the adjudication process for all religious worker petitions. Because of this site inspection requirement prior to approval, premium processing was suspended for R-1 nonimmigrant religious worker visa petitions on November 28, 2006.

However, USCIS will now resume accepting requests for premium processing for R-1 petitions, but only from those religious organizations that have previously had a successful site inspection of the location where the beneficiary will be employed. Before accepting any such premium processing requests USCIS will conduct a system search to verify whether or not a successful site inspection was completed at the location where the beneficiary will work.

Religious organizations may submit a copy of Form I-797 approval notice for the previously approved R petition to facilitate USCIS in locating the petitioner’s site inspection record.

Finally, while the Recovery Act may be showing signs of progress and improvement, comprehensive immigration reform is needed to put the broken immigration system back on track.

In a major address given at the 6th Annual Immigration Law and Policy Conference, sponsored by the Migration Policy Institute, on June 24, 2009, US Senator Charles E. Schumer (D-NY), Chairman of the Senate Immigration Subcommittee, stated that he is optimistic that comprehensive immigration reform can be enacted as soon as this year.

He is currently writing legislation that he intends to introduce in the Senate later this year. Schumer is basing his legislation on 7 basic principles, including taking a strong stance against illegal immigration, gaining control of our borders, and (something that is sure to be controversial) providing a route for foreign nationals currently in the US illegally to register and eventually earn citizenship. During his remarks Schumer stated “When the President asks me whether we can pass comprehensive immigration reform this Congress, I will smile and say, “Mr. President, yes we can. All of the fundamental building blocks are in place to pass comprehensive immigration reform this session and, even possibly, later this year.’”

We will have to wait to see where this effort will go. Visapro will pass on any new information as it becomes available.

Other Developments in Immigration Law:

USCIS Reminds Special Immigrant Religious Workers to File Adjustment of Status Application Before August End

USCIS issued a reminder for special immigrant religious workers having a pending or approved Petition for Amerasian, Widow(er), or Special Immigrant, (Form I-360), to file their Application to Register Permanent Residence or Adjust Status, (Form I-485), on or before Aug. 31, 2009. USCIS will reject Form I-485 applications submitted on or after Sept. 1, 2009, because an immigrant visa will not be immediately available, as required by INA 245(a).

US Visas for Nurses – Possible New W Visa

Due to the massive shortage of nurses in the US, on February 11, 2009, a new Nurse Relief Act was introduced in the House – HR 1001. The new Nurse Relief Act would introduce a new non-immigrant W visa category for nurses with an annual cap of 50,000.

Immigration Articles and Other Fun Stuff:

Now for the regulars – this month’s Immigration Article entiled ‘The H-1B Visa Portability Provisions: Who Can Take Advantage of Them to Change Employers Freely?’ explains how easy it has been for the H-1B nonimmigrants to change employers freely because of the H-1B Portability provisions designed by the American Competitiveness in the 21st Century Act (AC21). Also check out our In Focus section for this month where we discuss the reason behind the steep decline in the demand for H-1B visa. Is it the economy or the increased scrutiny on the H-1B? Read out the article to find out more.

Every month we introduce a new and interesting question for our opinion poll. Last month’s poll results indicate that 54.17% of the respondents believe that the American Recovery and Reinvestment Act 2009 continue to make progress. We appreciate that people take interest in the opinion question and cast their vote to give us their feedback. Keep it up! And continue to cast your vote to express Your Opinion.

We congratulate Andres 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 Andres 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

H-1B Remains Available While H-2B for FY 2010 May Go Off Soon

USCIS has updated the count of H-1B and H-2B visa petitions received and counted towards the respective caps for the fiscal year 2010 employment. While the number of H-1B visa petitions remains unchanged, USCIS has informed that it has received 8,974 H-2B visa petitions for the first half of FY 2010. It has approved 8,183 petitions and only 791 petitions are pending.

USCIS Explains Employment-Related Notification Requirements for Petitioners of Religious Workers

USCIS in one of its announcement explained the manner in which petitioners for religious workers must notify USCIS regarding their employment of nonimmigrant religious workers in R-1 nonimmigrant status. The procedures are necessary to enable petitioners to comply with the notification requirements established by USCIS regulations governing the R-1 nonimmigrant classification.

August's Featured Articles

Behind the fall in H-1B Visa Demand; Is it the Economy or Increased Scrutiny on H-1B?

The economy did not leave any one untouched by its drastic impact. Stories of banking crises, bailouts, rising unemployment, plummeting securities and housing prices, rising inflation, rising gas and food prices, recession, depression, and laid off of foreign employees in the US are no new. However, amongst all the worries of a foreign national worker in the US, the most worrisome is a layoff, these days. This article is designed to help you understand your rights and privileges in the US in case you are laid off from your job.

The H-1B Visa Portability Provisions: Who Can Take Advantage of Them to Change Employers Freely?

Changing jobs on H-1B visa had been so easy until the H-1B portability designed by the American Competitiveness in the 21st Century Act (AC21) came into existence. The American Competitiveness in the 21st Century Act (AC21) allows an H-1B worker to change employers and begin working for the new employer as soon as the new employer files the H-1B petition. The H-1B employee no longer has to wait for the new H-1B petition to be approved. Read the complete article to understand how the H-1B portability provision works and what are its advantages.

Questions and Answers


I am a citizen of Canada and currently I am in US on TN visa which was filed by Company A and it is valid for next six months. Now I have another job offer from Company ‘B’. Can I change my employer without applying for a new TN visa? Or should my new employer file a new TN Visa? If possible can my new Company ‘B’ file my H-1B visa for me now?


The TN visa is employer specific so you cannot change employers until you have a new TN for your new employer. You can either process the new TN at the border or you can file for a change of status 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. And yes, your new employer may file an H-1B for you now as the H-1Bs are still available.


I have an English fiancé who is considering moving to America. He is filing bankruptcy in England. Does this affect our ability to get him a green card for him to emigrate to America? If so, what are our other options? I would think that marriage would “override” other scenarios, but I’d like to clear this up for him.


Your fiancée filing for bankruptcy in the UK will not affect his ability to get a green card for the US through marriage to you. US immigration authorities (the USCIS) will be looking only at whether you have the ability to meet income level for the affidavit of support — they do not look to the foreign national spouse’s income. As long as your income (and assets if necessary) meets 125% of the poverty guidelines this will not be an issue. In fact, unless bankruptcy is a crime in the UK (there are some countries where bankruptcy is considered a crime) his bankruptcy does not even have to be disclosed to the USCIS.

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