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What exactly is the ‘Prevailing Wage’?

Posted on June 18, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: What changes to the prevailing wage process are caused by the H-1B Visa Reform Act of 2004?

Answer: The two changes to the prevailing wage determination process for foreign labor certification due to the H-1B Visa Reform Act (effective on March 8, 2005) are: The wage required to be paid shall be 100 percent of the prevailing wage; and where the Secretary of Labor uses, or makes available to employers, a governmental survey to determine the prevailing wage, such survey shall provide at least 4 levels of wages commensurate with experience, education, and the level of supervision.

Question: What changes to the prevailing wage process are caused by the publication of the Labor Certification for the Permanent Employment of Aliens in the United States, or PERM, regulation?

Answer: The PERM regulation (effective date of March 28, 2005) modified the prevailing wage determination process in three significant ways. (1) The use of Davis-Bacon or the McNamara-O’Hara Service Contract Act is no longer controlling for prevailing wage determinations although an employer may request that either be considered as an employer-provided wage source. (2) If an employer-provided survey does not contain an arithmetic mean, and only provides a median, the median wage figure can be used for determining the prevailing wage.

Question: When and where does the employer obtain prevailing wage information when filing a PERM application?

Answer: Prior to filing the Application for Permanent Employment Certification, ETA Form 9089, the employer must request a prevailing wage determination from the State Workforce Agency (SWA) having jurisdiction over the proposed area of intended employment. The employer is required to include on the ETA Form 9089 the SWA provided information: the prevailing wage, the prevailing wage tracking number (if applicable), the SOC/O*NET(OES) code, the occupation title, the OES skill level (if applicable), the wage source, the determination date, and the expiration date.

Question: How do employers get a prevailing wage if filing an H-1B, H-1B1, or E-3 Labor Condition Application?

Answer: The Immigration and Nationality Act provides that, unlike the other labor certification programs, the employer has the option of using one of three sources: (1) requesting a prevailing wage determination from the appropriate SWA; (2) using a survey conducted by an independent authoritative source; or (3) using another legitimate source of information.

Question: How do employers get a prevailing wage if filing an H-2B temporary nonagricultural labor certification application?

Answer: Employers have the option of using one of three sources: (1) requesting a prevailing wage determination from the appropriate SWA; (2) using a survey conducted by an independent authoritative source; or (3) using another legitimate source of information. Otherwise, the prevailing wage for an H-2B application is provided by the SWA as part of the standard processing of the application.

Question: Can wage information be obtained over the telephone?

Answer: No. Prevailing wage determinations will not be provided over the phone. All prevailing wage determinations provided by the State Workforce Agencies must be in writing.

Question: Where can an employer get a prevailing wage request form from the State Workforce Agency (SWA)?

Answer: Employers must request and receive the determination of the prevailing wage from the SWA having jurisdiction over the geographic area of intended employment. Many SWAs provide prevailing wage request forms electronically through their own websites. If the form is not available electronically, the employer should contact the SWA representative and request the form be faxed or mailed.

Question: What are the primary factors to be considered in making the prevailing wage determination?

Answer: Determining the appropriate wage level depends on full consideration of the experience, education, and skills required by the employer as indicators of the complexity of the job duties, the level of judgment required and the amount of supervision involved. The step-by-step process provided in the guidance is not intended to be an automatic process. The wage level assigned to a prevailing wage request should be commensurate with the wage level definitions.

Question: How does the SWA determine the prevailing wage?

Answer: If the SWA determines the job opportunity is covered by a collective bargaining agreement (CBA) negotiated at arms length and a wage rate has been negotiated under the agreement as evidenced by information provided by the employer, than the CBA wage rate is the prevailing wage.

Question: Are the SWAs instructed to process prevailing wage determinations on a first in, first out (FIFO) basis?

Answer: SWAs generally process prevailing wage determinations on a FIFO basis.

Question: What is the average processing time for the SWA to respond to a prevailing wage request?

Answer: Although the time frames vary from state to state due to the number of requests pending at the time of submission, SWAs generally provide responses within 14 business days of the receipt of the request. If the employer provides its own survey, responses to such requests are generally done within 30 business days of the receipt of the request.

Question: How can an employer check the status of a prevailing wage request?

Answer: An employer can check the status of a prevailing wage request by contacting the SWA. However, an employer should take into consideration the fact that frequent calls to the SWA may result in more time responding to such requests rather than processing the request itself.

Question: Does the offered wage need to be included in the advertisement?

Answer: The offered wage does not need to be included in the advertisement for applications for permanent labor certification, but if a wage rate is included, it must be at or above the prevailing wage rate. The wage offer does need to be stated in the advertisements for H-2B applications.

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212(c) Deportation Relief Expanded.

Posted on June 17, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have been in the U.S. for the last 25 years and committed only 1 crime in 1996. However, I am in deportation now and they claim that I am an aggravated felon and not eligible for 212(c) relief and that I will be deported for the rest of my life. I committed the crime in August of 1996, and plead guilty the following October. Is there anything I can do to avoid deportation?

Answer: If you happen to live in the jurisdiction of the 9th Circuit you are in luck. If you live elsewhere, I would get a good immigration attorney to fight for you up to the appellate level to make the same similar arguments that were made in the newly published 9th circuit case. First, it is necessary to have a little background. In 1996, Congress passed IIRAIRA which expanded quite considerably the definition of what crimes constitute an aggravated felony. It also repealed or took away 212(c) relief. This is a type of relief whereby if a person had a certain number of years in the U.S. as a lawful permanent resident and committed a crime that was not an aggravated felony (basically any crime that they received less than five years of jail time), they could apply for this relief in deportation proceedings. If they won, they would get their Green Card back and could remain in the U.S.

From 1996 until sometime in 2001, every court was denying 212(c) relief because it was repealed by IIRAIRA. However, the Supreme Court of the United States came out with a case called St… Cyr. Which essentially stated that it was unconstitutional to retroactively apply IIRAIRA to these people. It stated that if someone PLEAD guilty before April of 1996, that they could now apply for 212(c).

While St.. Cyr was a great case, it left a group of people out of its ruling that were similarly situated, but did not fall under the exact parameters of this case. It was those people who COMMITTED the crime before the passage of IIRAIRA, but were CONVICTED after the passage. In these cases, these people for all these years have not been eligible for 212(c) and have been deported for the rest of their lives.

Question: What did this new case rule?

Answer: Cordes v. Gonzales held that post-IIRIRA case law (namely INS v. St. Cyr) limiting the availability of §212(c) relief, to legal permanent residents who had not committed deportable offenses at the time of their conviction offends equal protection when §212(c) is available to similarly situated permanent residents who committed deportable offenses at the time of their conviction. The “only discernible difference” between the two groups, the court said, is that “those entitled to section 212(c) relief faced deportation at the time they entered their guilty pleas.” “This difference, however, is ‘irrelevant and fortuitous’ since the [immigrant in this case] quite obviously faces deportation now,” the court said. The court also found there is no rational basis for the disparate treatment of lawful permanent residents who are eligible for §212(c) relief under St. Cyr based on the “ironic fortune of facing the prospect of deportation at the time that they entered their guilty pleas” and permanent residents, like Petitioner, who are not eligible simply because their crime was not serious enough to render them deportable at the time they pled guilty. The court said:

“Allowing permanent residents who have committed worse crimes than Cordes to apply for section 212(c) relief, while denying the same opportunity to Cordes, does not achieve Congress’ express purpose behind the expanded definition of aggravated felony and its retroactive application: to expeditiously remove criminal aliens and make it more difficult for them to obtain relief from removal. Indeed, the disparate grant of section 212(c) relief here does not increase the total number of criminal aliens subject to removal, as Congress intended, but rather perversely increases only the number of less dangerous criminals subject to removal.”

Thus, this case now opens up the possibility of applying for 212(c) relief to those previously not eligible (at least in the 9th circuit court of appeals) and gives a much better fighting position to those in other jurisdictions to fight on this same basis.

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Can I get a new visa in Mexico?

Posted on June 16, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I came here on an F1 Visa and later applied for a change of status to H-1B. However, I have been told that if I go back to the Philippines, that I must have an interview at the U.S. Embassy in the Philippines which could be denied (even though I was approved for the change of status.) Is there any way to get a visa in Mexico without having to go through the interview process in the Philippines?

Answer: There are several qualifications to be able to go to Mexico. Applicants seeking to renew their C1/D, D, F, H, I, J, L, M, O, P and R visas, if the initial visa was issued in the applicant’s home country or at one of the border posts in the past few years.

Applicants for visas that reflect a change of status (e.g., F1 to H1B or F1 to J), provided the applicant originally entered the US in other than B status and possesses an original change of status notice (I-797) from the Department of Homeland Security.

Applicants possessing B visas issued in their home country with annotations showing intent to change visa status, such as “Prospective Student.”

Question: Who Cannot Apply in Mexico?

Answer: Applicants who entered the U.S. with a B visa issued in their home country that changed status to another visa category, e.g., F, J, H1B, but the visa did not have an annotation indicating intent to change status.

Applicants who have been out of status in the U.S. having violated the terms of their visas or having overstayed the validity indicated on their I-94s.

A, B, E, G and Q visa applications, including renewals are not accepted from Third Country Nationals (TCN) that are not resident in the appropriate consular district.

Citizens of Iran, Sudan, Libya, Iraq, North Korea, Cuba and Syria.

Question: How can I go about making an interview appointment.

Answer: You can actually make it online at the website available 24 hours a day, 7 days a week at http://www.visa-usa.com.mx. In order to use the service the applicant must purchase a PIN for US$10.00 payable by Visa or Mastercard. Please note that the PIN will expire 10 days after the appointment date. If an appointment is not scheduled, the PIN will expire 90 days after purchase. The PIN provides for 3 scheduling opportunities so that an applicant can schedule an appointment and reschedule it up to 2 additional times if necessary. Appointments cannot be changed or cancelled within 5 business days of the appointment date.

For further information the US Embassy Mexico Customer Service Center is available Monday through Friday from 7am to 9pm Central and Saturday and Sunday from 9am – 3pm Central. There are several payment options for accessing the Customer Service Center, including a new option to pay by Visa or MasterCard via a toll-free number from the United States which is 1-900-476-1212 with a cost of US$1.25 per minute.

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Are H-1B’s and H-2B’s used up yet?

Posted on June 12, 2025 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.

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Why can’t I file My Adjustment?

Posted on June 10, 2025 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.

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PERM: LULAC and CSS are still not over

Posted on June 8, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I think I’m under LULAC, but never knew I could file again. I believed I missed the deadline. Is there anything I could do?

Answer: Yes. U.S Citizenship and Immigration Services (USCIS) announced today that the filing deadline for applications for legalization under the terms of the CSS and LULAC (Newman) settlement agreements is extended from May 23, 2005 until December 31, 2005.

This is not a new amnesty program. The CSS and LULAC (Newman) settlement agreements allow for those who meet certain requirements to apply or reapply for Temporary Resident status under the 1986 amnesty program of Section 245A of Immigration and Nationality Act.

Eligible individuals may apply by submitting a Form I-687, Application for Status as a Temporary Resident under Section 245A of the Immigration and Nationality Act, and a CSS/ LULAC (Newman) Class Membership Worksheet.

Question: What are the basic requirements to be eligible?

Answer: 1) You had to live in the United States unlawfully from before January 1, 1982, to a date between May 5, 1987, and May 4, 1988, when you went to an office of the Immigration Service or a Qualified Designated entity to apply for legalization.

2) You, your parent or your spouse visited an INS office or Qualified Designated Entity between May 5, 1987, and May 4, 1988, to apply for legalization.

3) The INS or QDE told you that you were ineligible for legalization because you had traveled outside the United States without INS permission. You, your spouse or your parent returned to the United States with an immigration issued document such as a Student Visa, Visitor Visa or some other Immigration issued document.

4) You do NOT need to have previously “registered” as a LULAC class member or even had a completed application. However, you did need to go the QDE in the specified time period.

Question: What type of evidence do I need to present to win under this LULAC Settlement agreement?

Answer: Clearly, many people do not have the original documents, or even any stamped documents from Immigration. Usually, if the former INS had rejected the application because of what is known as ‘front-desking’, the person was just turned away. Thus, it is not possible in many instances for an applicant to prove that they were rejected. However, the LULAC settlement specifically states that persons who fall under this settlement may establish eligibility for legalization by way of declarations, and not only by original documents. The settlement also provides class members the right to appeal to a “special master,” a judicial officer with the authority to correct the CIS’s errors in the event the agency does not decide a class member’s legalization application promptly, fairly, and in accordance with the settlement’s guidelines.

Question: When can I apply for this?

Answer: The settlement provides that CIS must begin accepting legalization applications no later than May 24, 2004, but the government might decide to begin the one-year application somewhat earlier. This means that individuals will now have until December 2005, to apply for legalization under the settlement.

Question: Is there any other previous amnesty related provisions that this settlement agreement is applicable toward?

Answer: Actually there are others. Catholic Social Services is another program that is applicable to this settlement agreement. There are a couple of differences. First, you would have had to travel outside the U.S. without authorization after November 6, 1986. Second, you returned to the U.S. without permission.

Therefore, since it has been extended, do not let the deadline pass again if you qualify.

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PERM: The Online Perm System

Posted on June 5, 2025 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.

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How can I petition a helper from Mexico?

Posted on June 4, 2025 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.

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Removal Proceedings – What is it?

Posted on June 3, 2025 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.

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My child is a U.S. Citizen – and I didn’t even know!

Posted on June 2, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: We just petitioned our child after not seeing him in our home country for over 2 years. He will be coming to the U.S. as a Lawful Permanent Resident. When can we apply for citizenship for him?

Answer: On October 30, 2000, the Child Citizenship Act of 2000 (CCA) was signed into law. The new law permitted foreign-born children (including adopted children) to acquire citizenship automatically if they meet certain requirements. It became effective on February 27, 2001.

Question: Which Children Automatically Become Citizens Under the CCA?

Answer: Since February 27, 2001, certain foreign-born children of U.S. citizens (including adopted children) residing permanently in the United States acquired citizenship automatically. The term “child” is defined differently under immigration law for purposes of naturalization than for other immigration purposes, including adoption. To be eligible, a child must meet the definition of “child” for naturalization purposes under immigration law, and must also meet the following requirements: The child has at least one United States citizen parent (by birth or naturalization); The child is under 18 years of age; The child is currently residing permanently in the United States in the legal and physical custody of the United States citizen parent; The child has been admitted to the United States as a lawful permanent resident or has been adjusted to this status; An adopted child must also meet the requirements applicable to the particular provision under which they qualified for admission as an adopted child under immigration law. Acquiring citizenship automatically means citizenship is acquired by operation of law, without the need to apply for citizenship.

Question: Must an application be filed with USCIS to establish a child’s citizenship?

Answer: No. If a child qualifies for citizenship under the Child Citizenship Act, the child’s citizenship status is no longer dependent on USCIS approving a naturalization application. The child’s parents may, however, file an application for a certificate of citizenship on the child’s behalf to obtain evidence of citizenship. If a child satisfies the requirements listed above, he or she automatically acquires U.S. citizenship by operation of law either on the day of admission to the United States or on the day that the last condition for acquiring citizenship is satisfied.

Question: Will Eligible Children Automatically Receive Proof of Citizenship?

Answer: If the child falls under this provision, they will automatically receive a Certificate of Citizenship within 45 days of admission into the U.S. This program eliminates the need for the issuance of a Permanent Resident Card for newly entering children, since these cards are not applicable to U.S. citizens.

In other words, if the child falls under this provision of law, the moment they are admitted as a Lawful Permanent Resident, they are immediately considered to be a U.S. Citizen.

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