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USCIS Publishes Final Rule Creating Wage-Based Selection Process for H-1Bs

Posted on January 24, 2021 by sethlerner1964

USCIS published a final rule in the Federal Register creating a wage-based selection process for H-1B registrations. The regulatory text is the same as the text in the notice of proposed rulemaking published on November 2, 2020. The rule is effective March 9, 2021.

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OFLC Announces Updates to Implementation of the H-2A Adverse Effect Wage Rate Methodology for Non-Range Occupations Final Rule

Posted on January 24, 2021 by sethlerner1964

In response to a December 23, 2020, district court order in United Farm Workers, et al. v. DOL, et. al. that enjoined DOL from implementing the DOL final rule on Adverse Effect Wage Rate (AEWR) methodology for non-range H-2As, DOL’s Office of Foreign Labor Certification (OFLC) announced that H-2A job orders filed on or after December 21, 2020, must use the AEWRs in effect on December 20, 2020.

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USCIS publishes interim rule on T nonimmigrants

Posted on December 21, 2016 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Regulations governing the requirements and procedures for victims of human trafficking who seek T nonimmigrant status, in order to respond to public comments on the initial 2002 T visa rule and conform with legislation that has since been passed. The interim rule will take effect on January 18, 2017. Comments on the amendments to Form I-914, Application for T Nonimmigrant Status, are due by January 18, 2017; other comments are due by February 17, 2017.

Form I-129

K-nonimmigrant

Nonimmigrant admissions

Nonimmigrant waiver by US Immigration Attorney

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US Embassy in Mexico City on the new Nonimmigrant Visa Procedures

Posted on January 12, 2011 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

FAQs from the US Embassy in Mexico City on the new nonimmigrant visa procedures which took effect on 1/10/11. Please note that DOS website erroneously listed the start date of these new procedures as 1/10/10.

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Nonimmigrant Alphabet Soup

Posted on December 27, 2010 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Nonimmigrant Alphabet Soup http://ping.fm/gzUo5

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The New Immigration Reform Bill

Posted on February 22, 2010 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Eagerly awaited legislation to legalize millions of undocumented immigrants was filed in the House of Representatives Tuesday, but chances of passage were unclear.

Provisions in the legislation from Rep. Luis Gutierrez, D-Ill., are somewhat similar to those in prior bills.

Democratic lawmakers, led by Rep. Luis Gutierrez, D-Ill., on Tuesday filed the first comprehensive immigration reform bill in the current Congress, giving renewed hope to millions of undocumented immigrants in South Florida and around the country.

But the prospects for passage remain as uncertain as ever.

Provisions in the Gutierrez legislation — Comprehensive Immigration Reform for America’s Security and Prosperity Act of 2009 — are somewhat similar to those in prior bills. The Immigration Bill is trying to reform a broken system and give hope to millions of illegal aliens.

Undocumented immigrants in the United States prior to Dec. 15, 2009, would be encouraged to come forward and register with the government in exchange for a future path to residency and citizenship.

Certain immigrants in deportation proceedings, facing removal or ordered to depart would be able to apply for legalization under Gutierrez’s bill. Applicants would pay a $500 fine — lower than the thousands of dollars sought in prior bills — and must have clean criminal records. If approved, applicants would receive a six-year visa, which eventually could be replaced by a green card — the path to possible citizenship.

The bill also incorporates provisions of the DREAM Act, separate legislation filed earlier that would provide green cards to children of undocumented parents who are in high school or college and were brought to the United States as minors.

As Gutierrez, an eight-term House member representing a Chicago district, unveiled his legislation at a news conference on Capitol Hill, immigrant rights activists in Miami and other U.S. cities stepped up efforts to convince federal lawmakers and the Obama administration to embrace immigration reform as a priority.

Several South Florida groups are organizing news conferences, a march to Washington by young students and a hunger strike in January — initial steps in what is expected to be a national campaign by immigration activists on behalf of immigration reform.

Similar bills in recent years have failed because of fierce opposition by conservative and anti-immigrant forces. Whether the political climate has changed is difficult to say, but most experts say debate on immigration reform will be as emotional and polarizing as the healthcare reform debate. However, there is currently a Democratic President and a Democratic Congress, so there may be a much higher chance of getting approved this time.

President Obama has signaled he will push immigration reform, but not until healthcare reform is out of the way.

Rep. Lincoln Diaz-Balart, R-Fla., who supports immigration reform, criticized Gutierrez’s bill because it disrupts efforts by him and a group of bipartisan lawmakers drafting a separate immigration reform bill.

“This effort today, a showhorse not workhorse effort, is throwing a hand grenade into the midst of the bipartisan efforts,” said Diaz-Balart.

Mario Diaz-Balart, R-Fla., echoed his brother saying Gutierrez’s bill “will probably destroy the chances of passing any real reform.”

Long standing opponents vehemently criticized Gutierrez’s bill.

“The bill proposes to reduce illegal immigration by making all illegal immigrants legal,” Rep. Lamar Smith, R-Tex., a longtime legalization opponent, said in a statement.

The Obama Administration is doing enough to ease the suffering of immigrant communities,” the organizations said in a statement.

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Do you fall under The Child Status Protection Act?

Posted on December 28, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I am very confused if I fall under the Child Status Protection Act (CSPA.) I have heard various things and just do not know if I qualify. Can you shed some light on this subject?

Answer: Yes it is true that there has been some confusion as to whether or not certain cases apply to the Child Status Protection Act. Within the last week, the Bureau of Citizenship and Immigration Services (BCIS) has issued some new interpretations of the CSPA. Unfortunately, some of the regulations limit what and who can fall under the CSPA.

First, the BCIS now states that the terms of the CSPA are not retroactive. Hence, persons whom age-out and would possibly fall under the CSPA must age-out after August 6, 2002 in order to qualify.

Question: Are there any exceptions to this age-out rule?

Answer: Yes. If you aged-out after August 6, 2002, but the petition has not yet been adjudicated or ruled upon. Also, if the petition has been ruled upon, but the adjustment of status application is still pending you would qualify for this exception.

Question: If I qualify for some other nonimmigrant visa, can I use the sections of CSPA?

Answer: No. Especially listed are the K (for fiancée related beneficiaries) and V (for persons with family petitions pending for over three years.)

Question: When is it actually determined if a person “ages-out”?

Answer: This occurs on the date of the visa number availability. Therefore, you would need to find out exactly when the visa became available and then find out exactly how old the beneficiary was on that date. This will apply not only to the beneficiary, but to the derivative beneficiaries as well.

Question: I have a friend who would have a current visa number available, but his father (the petitioner) became a U.S. Citizen and now the visa number availability is years off. Can he do anything?

Answer: Yes. A simple letter to the BCIS will suffice to show that he wants to retain the old preference. His visa number will become current, and he will be able to adjust his status.

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Immigration Article: Special Registration. What is it?

Posted on December 23, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have heard that there is some kind of law out that requires some people from certain countries to register with the INS. Who does this affect and what does it mean?

 Answer: You are correct. There is a new procedure referred to as Special Registration. The deadline, if you are a national of one of the designated countries is January 10, 2003. This Notice requires certain nonimmigrant aliens to appear before, register with, and provide requested information to the Immigration and Naturalization Service on or before January 10, 2003. It applies to certain nonimmigrant aliens from one of the countries designated in this Notice who was last admitted to the United States on or before September 30, 2002, and who will remain in the United States until at least January 10, 2003.

 The countries originally specified were Iran, Iraq, Libya, North Korea, Sudan, and Syria. Just recently, the following countries were added to this list of seven. Pakistan, Saudi Arabia, and Yemen who are males between the ages of 16 and 45. Finally, the following 13 countries have been added: Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, United Arab Emirates, and Yemen.

Question: What if one of my friends is a Lawful Permanent Resident or U.S. Citizen from one of those countries? Must he also register?

Answer: No. This is only meant for persons who are on temporary visas in the U.S.

Question: What exactly must be done if a person is from one of the above listed countries to comply with the special registration requirement?

Answer: Registrants must register at the designated INS district office 30 days after they enter the United States and re-register annually. Of course, if they have not yet registered, they must go the INS district office before January 10, 2003. If a registered foreign national leaves the United States for either business or pleasure, he or she must notify the INS of all plans for departure, and depart through one of eighteen pre-approved airports or one of fifty approved land or seaports. This means that they cannot simply leave the U.S. without notifying the INS. Failure to notify the INS of a departure could render a foreign national inadmissible upon return to the United States. These people will be fingerprinted, questioned and photographed.

 They must re-register within 10 days of each anniversary. A willful failure to comply with these requirements renders the person deportable from the United States.

Question: When do all these provisions go into effect and does it take some rights away from these people?

Answer: Immediately. As we can see, the U.S. government is becoming more of a ‘big brother’ type government. As with anyone, I would do anything to prevent another terrorist attack. However, I do believe that some constitutional rights are going to be infringed on these people whom have nothing to do with terrorism. The scary part is when these registration requirements spill over onto the general population. We must fight for our constitutional rights and be careful of a government that takes liberties and rights away in the name of national security.

Filed under: Immigration Law, immigration provisions, Nonimmigrant Visa, USCIS, Visa | Tagged: , | Leave a comment »

Jumping Ship is a thing of the past

Posted on December 16, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I am a member of the crew on a luxury ship. I know many of my friends have basically ‘jumped ship’ once they got to the U.S. They would just be on the crew list and then once came to the U.S. they would jump ship, not return and are now illegally living in the U.S. Some have been deported and others cannot find work. Why does the U.S. make it so easy to do this?

Answer: Previously, the law permitted a crew member to enter the United States on the basis of a crew manifest that has been given visas by a consular officer. However, this does not require a consular officer to visa a crew manifest and it authorizes the officer to deny admission to any individual alien whose name appears on a given visas crew manifest. However, in most instances, each and every crew member was not interviewed for the visa. It was the ‘crew manifest’ that was used. Now, the Crew List Visa has been eliminated.

Question: Why Has the Department Eliminated the Crew List Visa?

Answer: The Department has eliminated the crew list visa for security reasons. Since the September 11, 2001 attacks, the Department has reviewed its regulations to ensure that every effort is being made to screen out persons whom they deem to be undesirable. By eliminating the crew list visa, the Department will ensure that each crewmember entering the United States is be required to complete the nonimmigrant visa application forms, submit a valid passport and undergo an interview and background checks. Additionally, visas issued after October 26, 2004 have a biometric indicator. This means crew list visas would necessarily be eliminated by that date.

Question: Won’t this now make it more difficult for crewman to get visas in the first-place?

Answer: Regarding difficulties for crewmen obtaining individual visas caused by last-minute scheduling, the Department recognizes the problem, but continues to believe that the security of the U.S. demands individual crew visas despite the dislocations that the requirement may cause initially. Nevertheless, the Department hopes that shipping companies and unions will encourage their employees and members to obtain visas where there is a reasonable possibility that a crewman may be required to enter the U. S. at any time.

Thus, as with most immigration related visa issues, it is getting more difficult to enter the U.S. Hopefully, this increased scrutiny and way of issuing visas will not hamper or impair the shipping industry into the U.S. Many ships change schedules during the last minute, or have to get crew persons to work the ships at a moments notice. If they cannot get the proper people to man and work the ships, it is possible that this new regulation and way of individually issuing visas to crewmembers will have an effect on the U.S. economy. Additionally, for those people who ‘jumped ship’, it is likely that they can and will still continue to do so as they will still be in the U.S. upon arrival. Clearly, persons should not do this and should find alternatives around coming to the U.S. and staying illegally. However, the new policy of issuing visas individually to crew members may not have the desired effect that the U.S. intends.


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Why do I have to wait so long to be with my U.S. Spouse?

Posted on December 16, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

 Question: I just married my U.S. Citizen husband in my home country. I thought I could just go to the United States and live with him. However, I found out it is actually is going to take over one year to get back together with my husband. I am heartbroken. Is there anything I can do to speed up this process?

Answer: Yes. There is what is known as a K-Nonimmigrant as the Spouse or Child of a U.S. Citizen? The Legal Immigration Family Equity Act and its amendments (LIFE Act) established a new nonimmigrant category within the immigration law that allows the spouse or child of a U.S. citizen to be admitted to the United States in a nonimmigrant category. The admission allows the spouse or child to complete processing for permanent residence while in the United States. It also allows those admitted in the new category to have permission for employment while they await processing of their case to permanent resident status.

Question: Who is Eligible?

A person may receive a K-3 visa if that person: has concluded a valid marriage with a citizen of the United States; has a relative petition (Form I-130) filed by the U.S. citizen spouse for the person; seeks to enter the United States to await the approval of the petition and subsequent lawful permanent resident status, and, has an approved Form I-129F, Petition for Alien Fiancé, forwarded to the American consulate abroad where the alien wishes to apply for the K-3/K-4 visa. The consulate must be in the country in which the marriage to the U.S. citizen took place if the United States has a consulate which issues immigrant visas in that country. If the marriage took place in the United States, the designated consulate is the one with jurisdiction over the current residence of the alien spouse.

Question: Will I Get a Work Permit?

Answer: Persons in K-3 or K-4 status and applicants for adjustment to permanent resident status from K-3 or K-4 are eligible to apply for a work permit while their cases are pending.

Question: Can I Travel Outside the United States?

Answer: If you are in K-3 or K-4 status, you may travel using your unexpired K-3/K-4 nonimmigrant visa to travel outside of the United States and return, even if you are applying for adjustment of status simultaneously.

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