February 2008

From the Editor's Desk

Hello and welcome to the February 2008 Immigration Newsletter!

We have just returned from an exciting tour of India after presenting another installment of our popular Immigration Workshops and for the first time offering a comprehensive Immigration Training Seminar to over 100 attendees in Bangalore. Our program spanned 5 major Indian cities and involved more than 475 attendees from companies representing a wide spectrum of industries and size. You can read more about the experience in one of our attending attorneys’ diary entry for the Hyderabad and Bangalore events.

During our travels across India, things continued to develop on the political front in the U.S. presidential campaigns with Obama pulling ahead of Clinton in a series of state democratic primaries wins. On the Republican side, John McCain has galvanized his support and is now the leading frontrunner. From an immigration perspective the developments on the Republican side are quite positive as McCain is considered to have a pragmatic approach to immigration.

Developments in Immigration Law:

Upcoming Regulations Prohibiting Multiple H-1B Filings on Behalf of a Single Foreign National

The U.S. Citizenship and Immigration Services (USCIS) will soon issue an interim final regulation that will prohibit employers from filing more than one H-1B petition on behalf of a single foreign national. The regulation is now being reviewed by federal authorities and is expected to be made public in time for the start of the Fiscal Year 2009 filing season on April 1.

USCIS Announces Faster I-485 Background Checks

An Interoffice Memorandum from USCIS Associate Director Yates outlines a new procedure for administering national security adjudications and reporting, allowing approval of I-485 and other cases that have been pending for more than 180 days due to delays in the FBI Name Check. The memo reserves a revocation right for USCIS should the Name Check reveal any actionable information after the I-485 adjudication.

USCIS Revised Filing Instructions for the Petition for Alien Relative

USCIS revised the filing instructions for the Petition for Alien Relative (Form I-130). Effective immediately, all petitioners filing stand-alone Form I-130s must file their petitions with the Chicago Lockbox instead of a USCIS Service Center.

DHS Proposed New Rules to Streamline H-2A Procedures

The proposed rule is designed to remove unnecessary limitations on H-2A employers while preventing fraud and abuse, and protecting the rights of temporary workers. The proposed modifications are mostly aimed at making the H-2A category a more worker and employer friendly category.

Immigration Articles and Other Fun Stuff:

Now for the regulars — this month’s Immigration Article will compare the E and L visa categories and discuss which is more appropriate for setting up a new business in the U.S. Check out our In Focus section to read about our attorney’s experiences on the road this month and find out how our events in Hyderabad and Bangalore turned out. Make sure to also participate in our monthly poll. Last month 60% of the respondents did not believe that USCIS would meet its goal of maintaining processing times of 6 months or less in all categories by 2010. This month’s poll question deals with the ever elusive H-1Bs and the possible impact of proposed regulations on their filing in April. Cast your vote to express Your Opinion.

Pallavi Vajranabhaiah deserves Congratulations for winning last month’s Immigration Quiz. Of the answers received her’s was most accurate and as a result Ms. Vajranabhaiah won a free online consultation to discuss her Immigration issues. So get ready for this month’s quiz. Your name might be featured in next month’s newsletter. Good Luck!!!

See you next month with a lot more noise from the Immigration World!

Latest Immigration News

USCIS Extends Validity of Expiring Medical Certifications I-693

In a recent memorandum, USCIS has once again renewed their policy to extend the validity of the civil surgeon’s endorsement on Form I-693 for cases that have been pending for longer than a year. Generally, the endorsement on Form I-693 is valid for one year and this form is concurrently filed with Adjustment of Status applications. However due to various backlog issues, some of these applications remain pending for longer than the one year period. If USCIS did not provide this extension then petitioners would be forced to undergo another examination and submit a new Form I-693 to USCIS after the already submitted medical examination form expires after one year.

TSC Pilots New Adjustment Processing System

In an effort to streamline the adjudications procedures, Texas Service Center (TSC) started the “PLUS Pilot” program for adjudicating concurrently-filed adjustment of status application packets. Until recently, each form in a typical AOS packet was separated and sent to a different officer for a preliminary name check and adjudication. This often caused confusion and led to lost documentation and delays in processing.

Announcement of Higher Fines for Immigration Violations

On Friday, Attorney General Michael B. Mukasey announced higher civil fines against employers who violate federal immigration laws. The announcement was made in a joint briefing today with Secretary of Homeland Security Michael Chertoff about newly enacted border security reforms put in place by the Departments of Justice and Homeland Security. Under the new rule, which was approved by Attorney General Mukasey and Secretary Chertoff, civil fines will increase by as much as $5,000. The new rule will take effect on March 27, 2008, and will be published in the Federal Register early this week.

February's Featured Articles

A Rendezvous with India: Immigration Seminars and Training

This month and next, Attorneys Thomas Joy and Jan Krasny will share some of the experiences related to their travels in India for the VisaPro workshops and training session. During these events, the VisaPro legal team traveled to five different cities in India to present substantive and comprehensive information on business immigration issues.

Setting up a new business: Choosing between L-1 or E visa!

Setting up a new business can be quite exciting. But there are also many challenges. In-depth market research and planning can minimize the risks. Foreign nationals setting up a business in the U.S. face another challenge – which visa do they use to be able to enter the U.S. to operate the business once it has been established? Generally L-1 visas are used to set-up a new entity in the U.S. when it is a subsidiary, parent, branch, or affiliate of an overseas company. However, foreign nationals from countries with certain treaty with the U.S. have the choice of using E-1, E-2 or L-1 visa for establishing a new entity in the U.S. Let us first understand the situations under which each of these visa options can be used.

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Questions and Answers


Please advise me on the visa requirements for my family. I am transferring to our U.S. office on an L-1A visa and would like to know for what kind of a visa my wife and son qualify and how I should apply for them so they can come with me. Will my wife be able to work?


Your initial L-1A visa will be good for 3 years, and can be renewed twice for 2 years each time. Your employer will have to file an L-1 petition with the USCIS for approval before you can apply for your visa in London. The standard processing is currently 60 to 120 days. If necessary your employer can use the premium processing procedure and have an answer in 15 days.

Your wife and son will enter the US on L-2 visas as your dependents. No separate petition to the USCIS is required for them. They will be issued visas based on your L-1. The L-2 visa is one of the few dependent visas that allow the holder to apply for work authorization, but this is only limited to your spouse.

Once your wife enters the US in L-2 status she will have to submit a Form I-765 to get the Employment Authorization Document. This will take about 90 days. She can look for work, but will not be able to get a social security number and start working until the EAD is issued.


What are the procedures to recapture time spend abroad by an H-1B nonimmigrant worker?


Any time spent outside the US while in H-1B status is recaptured through an extension of status application. You would file a regular H-1B application and supporting documents requesting an extension for any amount of time the beneficiary has remaining.

The application, with the normal H-1B filing fee, is sent to the “USCIS service center with jurisdiction over the place of your employment.”

If you are recapturing time, you need to provide proof of the time the individual spent outside the U.S. This would usually include exit and entry stamps in the person’s passport showing the dates they left the US and entered another country. If the person has traveled extensively while in H-1B status we recommend that a chart be submitted that summarizes all the travel.

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