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Are H-1B’s and H-2B’s used up yet?

Posted on December 14, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

 Question: I have heard that H-1B’s and H-2B’s are going quickly. Are they used up yet?

Answer: The DHS recently published numbers of H-1B’s and H-2B’s currently used. The H-1B nonimmigrant visa category allows U.S. employers to augment the existing labor force with highly skilled temporary workers. H-1B workers are admitted to the United States for an initial period of three years, which may be extended for an additional three years. The H-1B visa program is utilized by some U.S. businesses and other organizations to employ foreign workers in specialty occupations that require theoretical or technical expertise in a specialized field. Typical H-1B occupations include architects, engineers, computer programmers, accountants, doctors and college professors. The current annual cap on the H-1B category is 65,000. It appears that for non advanced degree holders, the cap of about 58,000 has approved over 22,000 and has about 30,000 pending. This means there are only about 5,000 left. You should get your H-1B in right away.

However, if you have an advanced degree, there was an extra 20,000 H-1B’s allocated. For the rest of the 2005 fiscal year, there have been about 10,300 that have been approved. Thus, there is still a reasonable amount left. For the fiscal year of 2006, there have already been about 8,000 used up.

The H-2B visa category allows U.S. employers in industries with peak load, seasonal or intermittent needs to augment their existing labor force with temporary workers. The H-2B visa category also allows U.S. employers to augment their existing labor force when necessary due to a one-time occurrence which necessitates a temporary increase in workers. Typically, H-2B workers fill labor needs in occupational areas such as construction, health care, landscaping, lumber, manufacturing, food service/processing, and resort/hospitality services.

Of the 35,000 left until October 1, 2005, about 16,000 have been used. There have only been about 300 used up for the first half of 2006. Therefore, there seems to be quite of bit of H-2B’s left.

Question: Do you think there is any problem with filing an H-1B or an H-2B at this time?

Answer: You never know how soon all of the visas will be used up. There are people across the U.S. who are aware that there is a limit on these visas and are trying to get their visas in right away. Therefore, you should have your visa petition prepared right away to ensure you get in this years allotment. All kinds of status problems could occur if the allotment is used up and your stay in the U.S. expires afterwards.

Question: Should we file the H-1B and/or H-2B with premium processing?

Answer: Definitely. You never know if your application will be filed one after the last one. Therefore, to ensure your chances, pay the $1,000 premium processing fee and have peace of mind.

Filed under: H-1B, H-2B, Immigration, Immigration Law, USCIS | Tagged: , | Leave a comment »

Why can’t I file My Adjustment?

Posted on December 14, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have just filed under the PERM program and it was very fast. In fact, it only took two weeks after filing. Now I was prepared to file for my Adjustment of Status application, but am told I cannot. What is going on?

Answer: The U.S. Department of State (DOS) has released its monthly Visa Bulletin for July 2005. This is a document which tells us which categories of employment based visas are current and which are not current. It basically lets us know what the processing priority date is. As of July 1, 2005, the third employment-based immigrant visa categories for professional workers, skilled workers, and unskilled workers will have reached their annual limits, and no further allocations of visas in these categories will be possible for citizens of any country through the end of 2005 fiscal year (FY 2005), which ends on September 30, 2005. With the start of the new fiscal year on October 1, 2005, immigrant visas will once again become available in these categories, but it is not possible to predict at this time what cut-off dates the DOS will impose. When retrogression occurs, the adjustment can no longer be filed.

Question: So what is the priority date that is being processed?

Answer: Note that through June 30, 2005, the cut-off date for professional and skilled workers is June 1, 2002; the cut-off date for unskilled workers from all countries is January 1, 1999. This means that you would have needed a Labor Certification priority date before that time. As of now, those categories are ‘U’ or unavailable.

Basically, individuals approved I-140 petitions in the third employment-based preference category for professional and skilled workers may apply for adjustment of status to permanent residence or for immigrant visas through June 30, 2005 only if their priority dates were before June 1, 2002. Adjustment applications received at a U.S. Citizenship and Immigration Services (USCIS) service center on or before June 30, 2005 with the above met criteria are fine. Concurrent filings of the I-140 and adjustment applications were also permissible through June 30, 2005, provided the individual has a current EB-3 priority date for which an I-140 petition has not yet been filed. Again, such cases must have been received at the service center by June 30, 2005.

Question: What happened after June 30, 2005?

Answer: After June 30, 2005, the USCIS will reject all I-485 adjustment applications for third preference workers unless they are for occupations on the Department of Labor’s Schedule A. Individuals who are applying for immigrant visas abroad must have obtained their visas by June 30, 2005.

Recent legislation provided for the recapture of 50,000 employment-based immigrant visa numbers that were unused in FY 2001 through FY 2004. Such numbers are to be made available to employment-based immigrants described in the Department of Labor’s Schedule A and their accompanying spouses and children. Schedule A applies only to professional nurses, physical therapists, and certain aliens of exceptional ability in the sciences or arts. The Schedule A category is now current, meaning that immigrant visa numbers are available to Schedule A workers. The DOS estimates that immigrant visa numbers for Schedule A beneficiaries should be unaffected by the lack of professional and skilled worker EB-3 numbers for the foreseeable future.

With regard to properly filed adjustment applications (whether filed alone based on an approved I-140 petition or concurrently filed with an unapproved I-140 petition), such applications will be held in abeyance for the foreseeable future once EB-3 numbers retrogress on July 1. However, applicants will be entitled to employment authorization documents (EADs) and advance parole while their adjustment applications remain pending.

Filed under: Immigration Law, immigration provisions, PERM, Retrogression, USCIS | Tagged: , | Leave a comment »

Are H-1B’s gone yet?

Posted on December 14, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have a Masters Degree in Business Administration and want to obtain an H-1B. Are they all used up yet?

Answer: The U.S. Citizenship and Immigration Services (USCIS) announced on May 24, 2005, that it has received approximately 6,400 H-1B petitions that will count against the Congressionally-mandated 20,000 cap exemption for fiscal year 2005 established by the H-1B Visa Reform Act of 2004. This would be for people with advanced degrees (not the normal type of H-1B.) The USCIS published an interim final rule on May 5, 2004, implementing the new H-1B cap exemption for foreign nationals holding U.S.-earned advanced degrees, pursuant to the H-1B Visa Reform Act of 2004. The Act exempts 20,000 H-1B visa numbers from the overall H-1B cap for foreign nationals holding masters or higher degrees from U.S. universities. Petitions seeking Fiscal Year 2005 H-1B visa numbers under the exemption received on or after May 12, 2005, will be accepted for filing.

The new regulations, which took effect on May 5, 2005, changed the H-1B filing procedures for FY 2005 and for future fiscal years. The regulations make available 20,000 new H-1B visas, only for foreign workers with a minimum master’s level degree from a U.S. academic institution, in addition to the Congressionally-mandated annual cap of 65,000 H-1B visas.

Question: About how many more remain this year for the advanced degree holders?

Answer: About 13,600 slots remain available for fiscal year 2005 (which ends on September 30, 2005). Only foreign nationals holding masters or higher degrees from U.S. universities are eligible for one of these numbers. Because the 65,000 cap has already been reached, H-1B employers seeking the services of foreign nationals who do not hold such degrees are restricted to filing petitions for a FY 2006 number (i.e., for employment commencing on or after October 1, 2005) unless a different cap exemption is applicable (e.g., the employer is an institution of higher education). Note that a new 20,000 cap exemption will apply for FY 2006. The USCIS will exempt the first 20,000 petitions for H-1B workers who have a master’s degree or higher from a U.S. institution of higher learning. After those 20,000 slots are filled, the USCIS will apply petitions for H-1B workers with a master’s degree or higher against the annual cap of 65,000. As a result, once the 20,000 numbers are used, an initial petition for an advanced-degree worker will be approved only if a number is available within the general 65,000 cap or the case is not subject to the cap under a different exemption (i.e., the employer is an institution of higher education).

Question: My friend has had an H-1B for almost 6 years and has had a Labor Certification pending for over 1 year. I heard you can only have an H-1B for 6 years maximum. What is he to do?

Answer: Post-Sixth Year H-1B Extensions Based on Long-Pending Permanent Residence Papers under what is known as AC-21 § 106(a)) allows for an extension if a labor certification or employment-based petition has been filed on behalf of the alien and remains pending for 365 days. Note the following issues clarified by the 2005 memo. Combined standard and post-sixth year H-1B extensions permitted. To obtain a post-sixth year H-1B extension, there is no need for the foreign national to first request an extension of time through the completion of his or her initial six years and then request an additional extension of time beyond the six-year limit. The petitioner can request an extension that combines the remaining time in the initial six-year H-1B period and post-sixth year time. Post-sixth year time can only be granted in one-year increments, and the total period of extension cannot exceed three years.

Question: When should the extension be filed?

Answer: The post-sixth year extension request can be filed prior to the passage of 365 days from the filing of a qualifying labor certification or I-140 petition, as long as the qualifying labor certification or I-140 petition has or will have been pending for 365 days prior to the foreign national’s requested extension start date. However, the extension will not be granted if the foreign national will not be in H-1B status at the time that the 365 days have elapsed, i.e., where there is a gap in status.

Filed under: H-1B, Immigration Law, USCIS, Visa, Work Visa | Tagged: , | Leave a comment »

Does the Government need to know you will be tortured?

Posted on December 14, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

 Question: I have heard a great deal about the Convention Against Torture and what might be needed. I have a friend that escaped his country because he thought he was going to be killed. However, I am not sure if the government knew that this group of rebels wanted to torture him. Will this qualify for the Convention Against Torture?

Answer: There is a case that just came down in the 9th Circuit Courts of Appeal and it address this issue. First, it is necessary to discuss the facts of that case. In Colombia, Ochoa owned a women’s clothing store in the San Andresito Shopping Center. Initially, Ochoa purchased clothes in Colombia and sold them at his shop. Then in 1996, he started traveling to the United States to purchase clothing. The clothes he purchased were shipped to Colombia, where he sold them wholesale and retail. In the course of Ochoa’s business he borrowed $20,000 from a private lender. The money was lent to Ochoa at six percent interest monthly, seventy-two percent interest annually. In addition to lending money, the lender sent retailers to Ochoa. The retailers would buy clothing from Ochoa on credit and then resell the clothes. The retailers would post-date OCHOA v. GONZALES 5235 checks for the clothes and thirty days later Ochoa would cash the checks. Several of the retailers defaulted on their checks. Ochoa never recovered the money. Because the retailers defaulted on their credit, Ochoa could not repay his loan. Soon thereafter a man named Efrain came to Ochoa’s store on behalf of the lender to collect the money. In a very harsh way, Efrain demanded Ochoa repay the money immediately. Ochoa had heard that Efrain was the “kind of person that you had to watch out for, that he had possibly killed one or two people, but that no one could really prove it.” Ochoa was also approached by a person who claimed to own the money lent to Ochoa. This person, who never said his name, proposed a plan for Ochoa to work for him to repay the loan. Ochoa testified, “he simply wanted me to keep on doing my traveling, so they’d be in charge of picking up my merchandise, send it to Colombia, and then delivering it to me.” Ochoa’s testimony and evidence in the record indicates the lender was a narco trafficker and that he was pressuring Ochoa to participate in a narco-trafficking money laundering scheme. Ochoa did not accept the proposal. Instead, Ochoa offered to give the lender/narco-trafficker his house, car, and business to pay off the loan. The approximate value of these things was $30,000. This would have been an immediate fifty percent profit on the loan. The lender refused. Ochoa’s friends and family advised him to reject the deal and “to just get out, to leave.” They said that people who “worked” for the lenders “normally got killed, or else those who refused to work for them got killed right away.” Ochoa said in his asylum declaration that “In San Andrecito merchants disappeared on a regular basis without any police inquiry, when the merchants had fallen in disgrace with the money lenders.” Because of the threats to their lives Ochoa and Diaz left Colombia and came to the United States. Ochoa entered the United States on December 4, 1997. Diaz entered approximately a month and a half later. They have not returned to 5236 OCHOA v. GONZALES Colombia since. Ochoa believes the situation in Colombia has “actually gotten worse” since they left.

Question: What happened at the Immigration Court with these people?

Answer: The Judge found the petitioners credible and directed Colombia as the country of removal. The Judge denied the petitioners’ applications for asylum and withholding because he found the petitioners did not prove their fear of persecution was “on account of” an enumerated basis. The Judge found the petitioners would be subject to torture if they returned to Colombia and he granted them withholding under the Convention Against Torture (CAT.) The Board of Immigration Appeals reversed the Judges decision that granted relief under CAT. The BIA found there was not sufficient evidence to show the government’s acquiescence in the feared torture.

Question: This certainly seems unfair. What was the outcome in the 9th Circuit Court of Appeals?

Answer: Under CAT a person qualifies for relief if “it is more likely than not that he or she would be tortured in their home country. CAT define torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for . . . any reason based on discrimination of any kind . . . by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” The BIA found Ochoa could not show the Colombian government acquiesced to the feared torture. That standard (which is now overruled) requires a petitioner to “do more than show that the officials are aware of the activity constituting torture but are powerless to stop it.” In that standard, it is required that government officials to be “willfully accepting” of the feared torturous activities.

The proper standard under CAT is that a petitioner need only prove the government is aware of a third party’s tortuous activity and does nothing to intervene to prevent it. Therefore, in your friend’s case, if he can show the government is aware of the rebel activity, but does nothing to stop it, he will have met that standard for CATS.

Filed under: asylum, Convention Against Torture (CAT), Immigration Law, immigration provisions, USCIS | Tagged: , | Leave a comment »

PERM: The Online Perm System

Posted on December 14, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

 Question: I understand that the new PERM applications can be submitted online. However, where the employer has established a sub-account for an attorney or agent is the attorney or agent permitted to submit applications on-line?

Answer: Yes, attorney or agent may submit applications under the following circumstances. An employer must complete the registration process as explained at http://www.plc.doleta.gov, including the initial log-in. During the initial log-in, the employer will change the employer’s temporary password (as assigned by the system during registration) and once logged-in, the employer can establish a sub-account for an attorney or agent. The employer will select a username for the attorney or agent, and the system will assign a temporary password. The attorney or agent will receive an e-mail with the username, temporary password, and the employer’s PIN. When the attorney or agent logs in and changes the attorney’s or agent’s password, the attorney or agent is then permitted to complete and submit applications on-line on behalf of the employer using the PIN of the employer in whose name the application is being filed.

Question: Are there any circumstances under which mailing in a labor certification application would prove more successful than electronically submitting an application on-line?

Answer: No, mailing-in an application will not prove more successful, as the mailed-in application, upon receipt at the National Processing Center, is date stamped. Until the application is data entered into the system by a data entry person (using the exact information shown on the form 9089), processing will not begin on the application. Once entered in the system, the mailed-in application receives the exact same automated analysis and manual scrutiny as an application submitted electronically. If there are two identical applications, one submitted electronically and one mailed-in, there will be no difference in how they are processed. The only difference will be in processing time; a mailed-in application will take longer, as not only mailing but also the data entry time will be involved. Remember: the on-line system will identify mistakes (e.g. entering four digits for a zip code instead of five digits) before allowing the application to be submitted, but the data entry person must enter the information exactly as shown on the application; a mistake on the form may trigger an audit or denial.

Question: Are there some tips you might have to get the process done quicker?

Answer: DOL verifies the existence of each employer that attempts to register. At first, this process went very quickly and employers received their PIN numbers and passwords sometimes within hours. Now that more employers are registering, it is taking an average of two weeks to get feedback on a registration. Because of the length of time it’s taking to register an employer, some are attempting to register multiple times, thus exacerbating the problem.

In many cases, DOL is sending back emails indicating that it cannot verify the employer’s existence and/or asking for documentation to verify that existence. DOL provided some pointers to avoid these requests or, if received, to respond to them:

• On the form, please make sure that the company’s Headquarters address is included as the company address. You can put the address of the office where the beneficiary will work in the appropriate box, but it’s the overall corporate address that is pivotal on the “existence check”.

• Avoid “doing business as (dba)” names wherever possible, and instead use the company’s legal name. The dba may complicate an existence check.

• For companies that have several EINs, please use the EIN that the company had when it filed its articles of incorporation. If a separately incorporated subsidiary is registering, do use that subsidiary’s EIN, but don’t use a different EIN if the employer is just a division, or otherwise is not a legally separate entity.

• The DOL recognizes that the Form SS-4 may not be readily available to some employers. If you’ve received a request for documentation to verify the employer’s existence that requests a Form SS-4, the DOL indicates that it will accept the employer’s most recent quarterly tax return instead. It has recently changed its requests to include that option, but if you received one of the old requests that give no alternative to the Form SS-4, please be advised that the quarterly tax return is nonetheless an option.

• To create a sub-account for an attorney, the employer must log on using the designated PIN and password and create the account.

• The employer can view all filings prepared by attorneys for which it has set up sub-accounts, but an attorney can view only the applications he or she has done, and cannot view any filings done by the employer or its other attorneys.

• Because DOL wants the employer to be answerable for the process, an attorney will need to have a separate user account and password for each of its client companies. DOL realizes the difficulties this presents in managing multiple passwords, but is insistent on this system.

• When an employer registers, it gets two emails, one providing the PIN and one providing a password. The employer is then supposed to log on and change the password to one of its own choosing. DOL notes that some employers have been simply forwarding the PIN and password to the attorney, and then the attorney logs in and changes the password. The employer then loses control of the account, as it no longer has control of the password. DOL asks that employers make the password change themselves, as DOL want the employer to maintain control of the master account.

• Some employers have been having trouble receiving the emails with the PINs and passwords because of their spam filters. Because they come in two consecutive emails from the same sender—Dept. of Labor—some spam filters clear the emails out into the spam box. This, apparently, is a particular problem with those who use AOL as their ISP. One solution DOL suggests (apart from checking your spam box) is to create a free email account on Yahoo or hotmail for this purpose and thereby bypass the AOL filters. You might also be able to turn off some of AOL’s spam blocking.

Therefore, it seems as though it might take some time to get used to, but once familiar, it should go faster.

Filed under: Immigration, Immigration Law, immigration provisions, PERM, USCIS | Tagged: , | 1 Comment »

How can I petition a helper from Mexico?

Posted on December 14, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have a business that I have started in the U.S. I am from the Philippines and my business partner is from Mexico. We would like to petition someone from Mexico and another person from Singapore. Can you give me an option of what needs to be done?

Answer: Prior to January 1, 2004 there was what was known as NAFTA (North American Free Trade Agreement.) While it still exists, there are some changes which have just gone into effect. This will answer your question on how to petition the person from Mexico. Mexican Nonimmigrants (“TN”) Professionals have newer, easier and faster procedures for coming in under this type of visa.

Under the new provisions of the NAFTA, the petition requirements employers wanting to hire Mexican professionals under the provisions of the NAFTA will no longer be required to obtain a certified labor condition application from the US Department of Labor or file Form I-129 with the USCIS. In many cases, this procedure would take six months to one year. Now, Mexican professionals desiring a free trade visa will apply directly to a US Department of State consular office in Mexico for the visa. This will allow you to petition for him/her much quicker as the application can be sent directly to the U.S. Consulate.

Question: What if one of the Mexican nationals I cam considering hiring is already in the U.S. on another status. Must he leave the U.S.?

Answer: No. Extensions and changes of nonimmigrant status for NAFTA professionals in TN classification will continue to be processed by the USCIS. Extension and change of status applications for TN nonimmigrant professionals must be submitted to the Nebraska Service Center for processing, accompanied by a letter from the US or foreign employer stating the activity to be engaged in, the anticipated length of stay, and the arrangements for remuneration.

Question: Do these new NAFTA provisions apply to my prospective worker from Singapore?

Answer: No. ‘TN’ visas under NAFTA apply only to persons from Mexico and Canada. However, there has been an implementation of New Chile and Singapore Free Trade Agreements as of January 1, 2004. Under the immigration provisions of these agreements, as approved by Congress in Public Laws 108-77 and 108-78, a new H-1B1 nonimmigrant category has been created for professionals from Chile and Singapore. For purposes of the trade agreements, a professional is defined as “a national of [Chile or Singapore] who is engaged in a specialty occupation requiring (a) theoretical and practical application of a body of specialized knowledge; and (b) attainment of a post-secondary degree in the specialty requiring four or more years of study (or the equivalent of such a degree) as a minimum for entry into the occupation.”

In addition, the two agreements allow for the presentation of alternate educational credentials in the case of certain Chilean citizens seeking admission as H-1B1 Agricultural Managers and Physical Therapists. Further, in the case of both countries, the two agreements allow persons seeking admission as Management Consultants to present alternative documentation reflecting experience in the area of specialization. By statute, Chile will be allocated a maximum of 1,400, and Singapore a maximum of 5,400 H-1B1 nonimmigrant visas annually for professionals from these countries.

Question: Where must the people from Singapore apply?

Answer: Citizens of Chile or Singapore must apply directly to the US Department of State overseas for an H-1B1 nonimmigrant visa to be eligible for admission to perform professional services for a US employer pursuant to the two trade agreements. As with the provisions of the NAFTA, the USCIS will only process requests for extensions and changes of nonimmigrant status to H-1B1 nonimmigrant professional for citizens of Chile and Singapore. USCIS will not accept initial requests for H-1B1 status under the two Free Trade Agreements.

Filed under: Immigration Law, immigration provisions, NAFTA, TN, USCIS | Tagged: , | Leave a comment »

Removal Proceedings – What is it?

Posted on December 14, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

 Question: I am now in removal proceedings. I also have many friends who are in the same type of removal proceedings. However, all of us have different situations. Under what basis can we be put into removal proceedings?

Answer: The Executive Office for Immigration Review (EOIR), an agency of the Department of Justice, oversees three components which adjudicate matters involving immigration law matters at both the trial and appellate level. Under the Office of the Chief Immigration Judge, more than 200 Immigration Judges located in 53 Immigration Courts nationwide conduct proceedings and decide individual cases. The agency includes the Board of Immigration Appeals (BIA), which hears appeals of Immigration Judge decisions, and the Office of the Chief Administrative Hearing Officer, which handles employment-related immigration matters.

Immigration Judges conduct removal proceedings, which account for approximately 80 percent of their caseload. Removal hearings are conducted to determine whether certain aliens are subject to removal from the country. Beginning April 1, 1997, the distinction between exclusion and deportation proceedings was eliminated, and aliens subject to removal from the United States were all placed in removal proceedings. Thus, the removal proceeding is now generally the sole procedure for determining whether an alien is inadmissible, deportable, or eligible for relief from removal. The Department of Homeland Security (DHS) is responsible for commencing a removal proceeding.

Removal proceedings generally require an Immigration Judge to make two findings: (1) a determination of the alien’s removability from the United States, and (2) thereafter deciding whether the alien is eligible for a form of relief from removal.

Usually at the beginning, an Immigration Judge conducts a bond redetermination hearing for aliens who are in DHS detention. The person in proceedings makes a request to the Immigration Judge to lower or eliminate the amount of the bond set by the DHS. These hearings are generally informal and are not a part of the removal proceedings. This decision can be appealed by either the alien or by DHS to the BIA.

Question: One of my friends actually already has their Green Card. Why would he be in removal proceedings?

Answer: An Immigration Judge can conducts a rescission hearing to determine whether a lawful permanent resident (LPR) should have his or her residency status rescinded because he or she was not entitled to it when it was granted. Additionally, it is possible for someone who is an LPR to commit a crime making them ineligible to keep their Green Card.

Question: What about someone who fears going back to their home country?

Answer: An asylum-only hearing will be used to determine whether certain aliens who are not entitled to a removal hearing but claim a well-founded fear of persecution in their home country are eligible for asylum. In normal circumstances, asylum claims are heard by Immigration Judges during the course of a removal hearing.

Thus, there are many different types of hearings that can be conducted. There is many times relief from removal proceedings, so you need to fight hard during the proceedings and do not let anyone walk over your rights.

 

Filed under: Immigration, Immigration Law, immigration provisions, Removal Proceedings, USCIS | Tagged: , | Leave a comment »

Act NOW or it might be too late!

Posted on December 11, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have heard that Congress will finally be passing some type of new comprehensive Intelligence Bill. But at the same time, I have heard that there are various immigration provisions that will also be passed. Are these items related?

Answer: Unfortunately, in order to get certain congresspersons to help to pass a major reform bill, there is a great deal of back door negotiating. In this bill, it is no different. The provisions that they have requested go into this bill regarding immigration are draconian and will hurt immigrants.

Question: Is it law yet? Is there anything anyone can do to stop the immigration provisions from going into the bill?

Answer: No, it is not law yet. When Congress returns to session, your Senators and Representatives may be voting on intelligence reform legislation. Whether that legislation includes anti-immigrant and anti-civil liberty measures could be up to you! Join pro-immigration groups across the country this week and contact your Senators and Representatives through the Congressional Switchboard (202-224-3121) and through Contact Congress. Congressional offices are reporting that calls and letters in support of these ill-conceived measures are coming into their offices. Now, it is up to all of us to make sure that we make our voices heard and send a letter or e-mail or simply call our congressional representative.

Along with your own Members of Congress, please contact the following Members of Congress by phone: Speaker of the House Dennis Hastert (R-IL) at 202-225-2976. Representative Hoekstra (R-MI) at 202-225-4401. Representative Harman (D-CA) at 202-225-8220. We need to thank her for her leadership and urge her to hold firm. Senator Collins (R-ME) at 202-224-2523. We need to also thank her for her leadership and urge her to hold firm. Senator Lieberman (D-CT) at 202-224-4041. We need to thank him for his leadership and urge him to hold firm.

After calling your Members of Congress, you can also write to them using Contact Congress to urge them to oppose the anti-immigrant provisions in the proposed Intelligence Reform legislation.

President Bush also needs to hear from you because he has said that he will work to get a bill passed this year. It is important that you contact him by phone and email a letter to urge him to support an intelligence reform bill that does not include these negative provisions. Contact the White House by phone at 202-456-1111.

It may seem that a single person cannot make a difference. However, if each of us tries to take this small step, it could make all the difference in the end.

Filed under: Congress, Family Petition, Immigration Law, immigration provisions, USCIS | Tagged: , | 1 Comment »

PERM: 245(i): Am I or am I not under it?

Posted on December 10, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have heard a great deal of 245(i) and how people who are here illegally can still adjust status in order to obtain Lawful Permanent Residency. I can’t figure out who is under 245(i) and who is not. Can you explain?

Answer: In general, 245(i) allows someone who filed either a Labor Certification or a family based petition prior to April 30, 2001. They would pay $1,000 fine and then they can apply for adjustment of status.

Question: What if my sister applied for me and it will take another 12 years for the visa number to become current? Can I fall under 245(i) with another application?

Answer: Yes, 245(i) is ‘grandfathered’ and can be transferred to another quicker application (like PERM) and still be eligible under 245(i).

Question: What if the adjustment application is denied? Can I file another application and still be under 245(i)?

Answer: Yes. Regardless of how many applications you have, you can keep paying the $1,000 penalty fee along with the normal application fees until an adjustment application is approved.

Question: How about dependants of the person who qualifies for adjustment of status? Who exactly qualifies?

Answer: If the relationship existed at the time the application was filed, the spouse and children are grandfathered. This means that even if there is a divorce or the child becomes older than 21 years of age, they are still grandfathered.

However, if the relationship with the principal did not exist until after April 30, 2001, then the dependants do not independently qualify under 245(i), but rather, must apply with the principal alien. In other words, they are under 245(i) as long as the relationship still exists with the principal person.

If the principal person applied for adjustment of status and then gets married or has another dependant, that person cannot then apply for adjustment of status under 245(i).

Thus, whether you are grandfathered under 245(i) is of critical importance as to whether you can eventually apply for lawful permanent residency. Therefore, you need to be very careful in determining whether you qualify under the above referenced rules.

Filed under: 245(i), Immigration Law, immigration provisions, PERM, USCIS | Tagged: , | Leave a comment »

PERM: Backlog Reduction: What does it mean?

Posted on December 10, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have had a Labor Certification pending for several years. I understand the new PERM process is the new way of doing a Labor Certification. However, I am thinking that I would like to keep my current Labor Certification without converting it to PERM. How can I do this?

Answer: All of the current Labor Certifications have been or will be sent to the Backlog Reduction Centers. The names of these centers mean exactly what is indicated. They are opened for the sole purpose of reducing the entire backlog of old Labor Certifications. Once every old Labor Certification has been processed, the Backlog Reduction Centers will close.

Question: How many Applications have been shipped from the local processing centers prior to the newly created Backlog Reduction Centers?

Answer: Slightly over 180,000.

Question: How many applications have had data input into the new database systems?

Answer: Approximately 86,000.

Question: How many 45 day letters have gone out to indicate that the Petitioner and Beneficiary still want to continue with the Labor Certification at the Backlog Reduction Center?

Answer: Over 40,000.

Question: What is the number of hired/trained contractor personnel at each Backlog Reduction Center site?

Answer: Approximately 100 at each site (Atlanta and Chicago.)

Question: Will Atlanta/Chicago continue to process traditional cases after March 28, 2005?

Answer: They will keep some temporary work only. They are in the process of shipping all other cases to Backlog Reduction Centers. There are approximately 10,000 in total.

Question: Have contractors begun to review cases for substantive compliance with the necessary guidelines? If not, when is this expected to happen?

Answer: Yes and the Department of Labor are in training now.

Question: Is it actually possible that the backlog reduction process can be complete in two years? If not, what is the current projection?

Answer: It seems that as of now, the current projection is 24 to 30 months. Of course, this could markedly change.

Question: When do they expect to complete initial data entry on all cases?

Answer: The goal at this time is to finish data entry on all cases by the end of summer 2005. It seems that no actual process will be performed on the case until initial entry log in is complete.

Question: Will there be an on-line system available to check the status of cases?

Answer: The Department of Labor is working on getting information on their website about which cases have shipped. They are also working on an e-mail capability to enable a party to find out whether a case is located at the Backlog Reduction Center. The contractor staff would answer the e-mails.

Question: In what order will they process the cases?

Answer: They expect to process them based upon when they were originally filed. In other words, the older it was filed, the sooner it should get processed.

Filed under: Backlog Reduction, Immigration Law, Labor Certification, Retrogression, USCIS | Tagged: , | Leave a comment »

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