July 2011

From the Editor's Desk

Hello and welcome to the July 2011 Immigration Newsletter!

While most of the country tries to survive the dog days of summer with temperatures in the 100s, July (which is also National Ice Cream month!) continues to see the H-1B cap count inch forward. As of July 15, 2011, USCIS has received only 20,500 regular cap eligible cases out of 65,000 and 12,800 master’s cap cases out of 20,000. While the cap is not expected to be reached very soon, employers who intend to employ foreign workers should not assume anything. Make sure to contact VisaPro to discuss all options as soon as a position is offered.

While the unemployment rate remains above 9%, which partly explains the decrease in H-1B demand, U.S. labor and immigration experts continue to report that some sectors in the U.S. job market are facing labor shortages. For example, since the enactment of the Georgia and Alabama “immigration enforcement” laws, farmers all over those states have reported that they do not have enough laborers to work the farms and pick fruits and vegetables. A recent report released by Fitch Ratings states that U.S. resources industries like mining, natural gas sectors and the tech industry are also facing shortages of skilled workers. Unfortunately, our current immigration system does not address these types of labor shortages, as clearly evident by the severe backlog in the employment-based third preference immigrant category and the fact that there is no satisfactory non-immigrant visa system in place for non-professional skilled labor. Many have suggested that adopting a “points-based” system as seen in Canada, Australia and Denmark is the clearest solution. Hopefully, Congress will eventually heed the call to reform our broken immigration system and begin the discussion on how to best protect American interests while at the same time creating an immigration system that works.

In other important news, USCIS posted an Interim Policy Memorandum regarding Requests for Evidence for review titled “Change in Standard Timeframes for Applicants or Petitioners to Respond to Requests for Evidence; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.5(b), Chapter 25.2(e)(3), Chapter 38.1(e)(6), and Appendix 10-9; AFM Update AD11-36”. While the comment period is open until July 27, 2011, the Memo has been effective as of July 13, 2011. The new policy memo standardizes the response time for Requests of Evidence (RFE) across most immigration petition types and also standardizes extra response times for applicants and petitioners who are abroad.

For most petitions, except I-539s, asylum and NACARA 203 applications, the response time has been set at 84 days (12 weeks) regardless of the type of Request for Evidence (initial evidence, additional evidence or for evidence from overseas). The response time for I-539s has been set to 30 days. The standard additional mailing time of 3 days, set by statute at 8 CFR 103.5a(b), has been confirmed while USCIS will now, as a matter of policy, allow a mailing time of 14 days for applications or petitioners who are abroad. Most importantly, officers will no longer have broad discretion to decrease (or increase) the response time for Requests for Evidence. The standard response time of 84 days + mailing response time can only be altered with supervisory concurrence on a case-by-case basis. Amendments have been made to the Adjudicators Field Manual (AFM) at Chapter 10.5(b), Chapter 25.2(e)(3), Chapter 38.1(e)(6), and Appendix 10-9 to reflect the new policy. The standardization of RFE response times is very welcome news and it is always good to see that USCIS continues to listen to stakeholder concerns.

Other Developments in Immigration Law:

DOS Announces U.S.-Russian Agreement on Visa Issuance

Secretary of State Hillary Rodham Clinton and Russian Foreign Minister Sergey Lavrov announced an agreement on the issuance of nonimmigrant business, tourist, private and humanitarian visas to the Russian Federation, and for business and tourist visas to the United States, as well as short-term official travel visas to both counties in keeping with the joint statement issued during the meeting of President Obama and President Medvedev in Deauville, France on May 26, 2011. The agreement also streamlines the visa issuance process by reducing the documentation required. These new visa validity periods will allow for expanded contacts and promote greater mutual understanding between our societies.

DOL Solicits Nominations for 2012 ERISA Advisory Council

DOL’s Employee Benefits Security Administration is soliciting nominations to fill five three-year vacancies on the Advisory Council on Employee Welfare and Pension Benefit Plans, known as the ERISA Advisory Council. The deadline to submit nominations is Sept.16. Nominations are being accepted for one vacancy each to represent the fields of employee organizations, employers, corporate trust, investment management and the general public.

Immigration Articles and Other Fun Stuff:

Check out our In Focus section for this month, titled ‘Adjustment of Status for the K-1 Fiancé(e): What You Need to Know?’ tells you everything that you need to know about adjusting your status if you have entered on K-1 fiancé(e) visa.. Every month we introduce a new and interesting question for our opinion poll. Last month’s poll results indicate that 50.00% of the respondents favor the changes proposed to the H-1B and L-1 visa categories by Rep. Zoe Lofgren in the Immigration Driving Entrepreneurship in America (IDEA) Act of 2011 introduced on June 15, 2011? 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 Stuti Dave 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 Stuti Dave 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!!!

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

Latest Immigration News

US-China Cooperation in the Asia-Pacific Region

Secretary of State Hillary Rodham Clinton and Republic of China Foreign Minister Yang Jiechi reviewed the wide range of common interests between the United States and China and discussed ways to advance our shared goal of maintaining peace, stability, and prosperity in the Asia-Pacific region.

21,600 H1B Cap-subject Petitions Received

USCIS has updated the count of H1B visa petitions received and counted towards the H1B cap for the fiscal year 2012 employment. As of July 22, 2011, USCIS has received approximately 21,600 H1B cap-subject petitions and 13,300 petitions for foreign nationals with advanced degrees.

July's Featured Articles

Adjustment of Status for the K-1 Fiancé(e): What You Need to Know?

In our previous article, we learnt how we helped Xia Chang successfully pass her K-1 fiancé(e) visa interview, we are delighted to help Xia and Jacob again, with Xia’s adjustment of status process. This article explains all that Xia and many other foreign nationals like her NEED to know before filing the application for adjustment of status. Filing incorrect forms and mailing insufficient documents could do more harm than just denial. Therefore, read out what you need to know about adjusting your status if you have entered on K-1 fiancé(e) visa.

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Questions and Answers


I am staying in US for the past nine years on P-3 visa and now it is going to be expired in couple of months. I have maintained my legal status in US. Now I’m getting married to a US citizen this year and I want to stay in US without going back adjust my status to permanent residency on my own. What do you suggest to become a Green Card holder and what is the procedure?


If you marry a US citizen you will be able to file for permanent residence as soon as you are married. Since you will be marrying a US citizen you will be considered an “immediate relative” and do not have to wait for a visa to become available. Your spouse would file a Form I-130, Petition for Alien Relative, on your behalf, and you would file the adjustment of status package concurrently. As part of the adjustment package you would file for work authorization using Form I-765 (once you have filed the adjustment of status application you can no longer work on the P-3 visa). If you need to travel outside the US while you are waiting for your green card you would file for advance parole on Form I-131(again, once you have filed for adjustment of status you cannot leave the US until the green card is granted unless you have advance parole).


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

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