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H-2B’s: There back!

Posted on December 12, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I had petitioned for temporary workers earlier, but was told all H-2B’s were used up. Is there anything that can be done? I really need these workers.

Answer: Yes, beginning May 25, 2005, U.S. Citizenship and Immigration Services (USCIS) will begin to accept additional petitions for H-2B workers as required by the Save Our Small and Seasonal Businesses Act of 2005.

Question: Who will benefit from this Act?

Answer: The Act allows USCIS to accept filings beginning May 25, 2005 for two types of H-2B workers seeking work start dates as early as immediately: 1. For fiscal year 2005: Approximately 35,000 workers, who are new H-2B workers or who are not certified as returning workers, seeking work start dates before October 1, 2005.

2. For FY 2005 and 2006: All “returning workers,” meaning workers who counted against the H-2B annual numerical limit of 66,000 during any one of the three fiscal years preceding the fiscal year of the requested start date. This means: In a petition for a work start date before October 1, 2005 (FY 2005), the worker must have been previously approved for an H-2B work start date between October 1, 2001 and September 30, 2004. In a petition for a work start date on or after October 1, 2005 (FY 2006), the worker must have been previously approved for an H-2B work start date between October 1, 2002 and September 30, 2005. If a petition was approved only for “extension of stay” in H-2B status, or only for change or addition of employers or terms of employment, the worker was not counted against the numerical limit at that time and, therefore, that particular approval cannot in itself result in the worker being considered a “returning worker” in a new petition. Any worker not certified as a “returning worker” will be subject to the numerical limitation for the relevant fiscal year.

Question: What is needed to file for the H-2B’s under this Act?

Answer: Petition forms and processing will follow current rules, with these additional requirements for “returning workers:” The petition must include a certification from the petitioner (employer) signed by the same person who signed the Form I-129 stating, “As a supplement to the certification made on the attached Form I-129, I further certify that the workers listed below have entered the United States in H-2B status or changed to H-2B status during one of the last three fiscal years.” The list must set forth the full name of the worker. If the petition seeks change of status of the worker within the United States, it must include evidence of previous H-2B admissions, such as a visa or a copy of I-94 admission document.

A single petition may benefit more than one worker, including unnamed workers in “special filing situations” for business reasons. However, any returning workers must be listed in a certification as described above. For multiple named workers, including returning workers, “Attachment 1” to Form I-129 must be included and completed.

A petition approval notice will list any returning workers, who must be prepared to show to the U.S. consulate (when requesting an H-2B visa) or CBP port inspector (if visa exempt) proof of the worker’s previous H-2B admissions, such as a visa or a copy of I-94 admission document. The State Department will confirm prior visas through its electronic system, and that alone may be sufficient, but failure to show these documents may result in denial of visa or admission.

Thus, because of the limited number of H-2B’s, you should file right away.

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New L1-B Provisions

Posted on December 10, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: My employer has a business in my home country and wants to send me to the United States to work in a branch office he is opening up. However, it would require that I work at different locations in the U.S. Is there a problem with doing this?

Answer: Since you will not actually be running the company, but rather, worker as a person who has specialized knowledge of the products of your company, you would fall under the L-1B category. Previously, there might not have been a problem. However, a new law regarding L-1B’s has just come into effect. The USCIS has just implemented the L-1 Visa Reform Act of 2004. The changes were mandated by L-1 Visa Reform Act of 2004 which became law last December as part of the Omnibus Appropriations Act for FY 2005. The L-1 Visa Reform Act amends previous legislation to address the “outsourcing” of L-1B temporary workers. An L-1B nonimmigrant is an alien who has been employed overseas by a firm with an affiliated entity in the U.S., who comes to the U.S. to perform services for the international entity that involve specialized knowledge.

Question: What are the changes mandated by this law?

Answer: L-1B temporary workers can no longer work primarily at a worksite other than that of their petitioning employer if either: (a) the work is controlled and supervised by a different employer or (b) the offsite arrangement is essentially one to provide a non-petitioning party with local labor for hire, rather than a service related to the specialized knowledge of the petitioning employer. USCIS will interpret the “control and supervision” provisions of the new law to require an L-1B petitioning employer to retain ultimate authority over the worker. The determination as to whether an alien is or will be employed primarily at a worksite other than that of the petitioner will depend on the specific facts presented. In addition, the bar will not apply if the satisfactory performance of such off-site employment duties requires that the L-1B temporary worker must have specialized or advanced knowledge of the petitioning employer’s product, service, or other interests, as defined under current USCIS regulations. General skills or duties that relate to ordinary business or work activities would not meet the test of whether specialized knowledge is required for the work.

Question: Therefore, what exactly is meant by this outsourcing provision?

Answer: The “outsourcing” provisions described above apply to all L-1B petitions filed with USCIS after June 6, 2005, and include extensions and amendments involving individuals currently in L-1 status. The Act also requires that all L-1 temporary workers must have worked for a period of no less than one year outside the United States for an employer with a qualifying relationship to the petitioning employer. Previously, participants in the “blanket L-1” program could participate after as little as six months of qualifying employment. This change applies to petitions for initial L-1 classification filed with USCIS after June 6, 2005; extensions of status under the blanket program are not affected by this new provision.

Question: Are the filing fees the same?

Answer: No. As with other applications, there is now a fraud related fee. There is the base filing fee of $185.00 plus the new $500.00 Fraud Prevention and Detection Fee as applicable. [Employers seeking a worker’s initial grant of H-1B or L nonimmigrant classification and employers seeking to hire an existing H-1B or L worker currently employed by another employer must pay the $500 Fraud Prevention and Detection Fee. The $500 fee does not need to be submitted by: 1) employers who seek to extend a current H-1B or L alien’s status where such an extension does not involve a change of employers; 2) employers who are seeking H-1B1, Chile-Singapore Free Trade Act nonimmigrants; or 3) dependents of H-1B or L principal beneficiaries.

Therefore, while there are changes, the L-1B still exists and you should go forward with the application assuming you qualify.

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What new Bills are on the Horizon?

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

Question: I have heard that there are a large number of new immigration bills that are in Congress. Can you give a summary?

Answer: Yes, there are a significant number of bills. Whether they actually become law will only be determined by time. However, it does appear that there should be a significant number of changes in the coming year. Below are just a few of the bills introduced.

The Uniting American Families Act or the Permanent Partners Immigration Act: Introduced on June 21 by Senator Patrick Leahy (D-VT), S. 1278 would provide a mechanism for U.S. citizens and lawful permanent residents to sponsor their permanent partners for residence in the United States. S. 1278 defines the term “permanent partner” to mean an individual 18 years of age or older who (a) is in a committed, intimate relationship with another individual 18 years of age or older in which both parties intend a lifelong commitment; (b) is financially interdependent with that other individual; (c) is not married to or in a permanent partnership with anyone other than that other individual; (d) is unable to contract with that other individual a marriage cognizable under the INA; and (e) is not a first, second, or third degree blood relation of that other individual. The bill is companion legislation to H.R. 3006 below.

The Unaccompanied Alien Child Protection Act of 2005: Introduced on January 24, 2005, by Senator Dianne Feinstein (D-CA), S. 119 would build upon the Homeland Security Act, which transferred the care and custody of unaccompanied alien children from the former INS to the Department of Health and Human Services’ Office of Refugee Resettlement (ORR). Among other things, the bill would ensure that unaccompanied alien children have access to counsel; give ORR the authority to provide guardians to such children; establish minimum standards for the care and custody of unaccompanied alien minors; and strengthen policies for permanent protection of unaccompanied alien children. The bill is similar to legislation that Senator Feinstein introduced in the 108th Congress.

The Civil Liberties Restoration Act: Introduced on April 6 by Representative Howard Berman (D-CA), H.R. 1502 seeks to roll back some of the most egregious post-9/11 policies and strike an appropriate balance between security needs and liberty interests. Among other things, H.R. 1502 would secure due process protections and civil liberties for non-citizens in the U.S., enhance the effectiveness of our nation’s enforcement activities, restore the confidence of immigrant communities in the fairness of our government, and facilitate our efforts at promoting human rights and democracy around the world.

The Secure America and Orderly Immigration Act: Introduced on May 12 by Senators John McCain (R-AZ), Edward Kennedy (D-MA) and others, S. 1033 would comprehensively reform our immigration laws so that they enhance our national security and address the concerns of American businesses and families. Among other things, the bill would establish a break-the-mold new essential worker visa program (the H-5A visa) while also providing a mechanism by which eligible undocumented immigrants present in the U.S. on the date of the bill’s introduction could adjust to temporary nonimmigrant (H-5B) status; promote family unity and reduce backlogs; call for the creation and implementation of a national strategy for border security and enhanced border intelligence; create new enforcement regimes; and promote circular migration patterns. House companion legislation (H.R. 2330) was introduced on May 12 by Representatives Jim Kolbe (R-AZ), Jeff Flake (R-AZ), and Luis Gutierrez (D-IL).

The Agricultural Job Opportunities, Benefits, and Security (AgJobs) Act of 2005: Introduced on February 10, 2005 by Senators Larry Craig (R-ID) and Edward Kennedy (D-MA), S. 359 would create an earned adjustment program for undocumented farm workers who would be eligible to apply for temporary immigration status based on their past work experience, and could become permanent residents upon satisfying prospective work requirements. The legislation would also streamline the existing H-2A foreign agricultural worker program while preserving and enhancing key labor protections. Representatives Chris Cannon (R-UT) and Howard Berman (D-CA) introduced a companion measure in the House (H.R. 884). The bill is similar to legislation that the two Senators introduced in the 108th Congress.

The Save America Comprehensive Immigration Act of 2005: Introduced on May 4 by Representative Sheila Jackson Lee (D-TX), H.R. 2092 would, among many other things, increase the allocation of family-based immigrant visas; provide age-out protection for children; provide earned access to legalization; provide adjustment of status for certain children; update the registry provisions; and enhance border security.

We have fought long and hard to try to get reform of unfair immigration laws, and hopefully, this will be the year that much of the positive reform happens.

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Can I get review of my denied case under the REAL ID Act?

Posted on November 30, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have had my case denied in Immigration Court and I have heard about the REAL ID act and am very confused if I can get some type of judicial review of my case. Can you clarify?

Answer: The REAL ID Act did not change the language of either subpart (i) or (ii) of the statute giving/denying review. Rather, the Act made two changes to the paragraph preceding these subparts. First, it specified that the phrase “notwithstanding any other provision of law” applied to “statutory and nonstatutory” law and included the habeas corpus statute, the mandamus statute, and the All Writs Act. Second, the REAL ID Act also expanded the scope of § 242(a)(2)(B) so that it now applies “regardless of whether the [discretionary] judgment, decision, or action is made in removal proceedings.” Prior to the REAL ID Act, some – though not all – courts had held that § 242(a)(2)(B) was applicable only in removal cases. Presumably, this amendment was intended to reverse these earlier court decisions.

Question: Do these amendments eliminate all mandamus and other types of affirmative suits?

Answer: No, these changes do not eliminate all jurisdiction over mandamus and other affirmative lawsuits in non-removal cases. To determine whether jurisdiction remains available in a particular case, it is necessary to carry out a several step analysis. This analysis is essentially the same as the analysis to determine whether jurisdiction exists in a removal case involving agency discretion. Consequently, court decisions interpreting § 242(a)(2)(B) in the removal context will be helpful in determining whether the provision applies in a non-removal case.

Question: What steps are involved in determining whether a court has jurisdiction under § 242(a)(2)(B) in a removal or non-removal case?

Answer: There are several items that one must look at to determine if this section applies. 1. Does the issue/case fall completely outside the scope of INA § 242(a)(2)(B)? A. INA § 242(a)(2)(B) only limits jurisdiction over certain discretionary actions and decisions. B. INA § 242(a)(2)(B) does not apply to asylum decisions.

C. INA § 242(a)(2)(B) also does not apply to naturalization decisions and D. INA § 242(a)(2) should not apply to S, T and U visas.

Question: What if the case is one that appears to have fallen under the provision not permitting discretionary review?

Answer: Again, it is necessary to do an analysis. First, has there been an actual exercise of discretion? Even where there has been an actual exercise of discretion, is this exercise of discretion the issue in the case? Is the challenged action or decision discretionary? Is the decision or action specified by statute to be discretionary? Is the grant of discretion one of pure discretion unguided by legal principles? (9th Circuit cases.)

Thus, while the REAL ID Act may seem to completely limit judicial review of cases, if you fight the matter and analyze the case, there are different ways to still get judicial review of your case.

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I can get a temporary work permit?

Posted on November 27, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: An employer wants to petition me for the next 6 months because of my knowledge in his industry. I do not seem to qualify for any types of visas that I know about. Do you have any ideas?

Answer: Yes. You may qualify for the H-2B. The U.S. Citizenship and Immigration Services (USCIS) has just announced that, as required under the recently-enacted Save Our Small and Seasonal Businesses Act of 2005 (“the Act”), the agency will begin to accept additional petitions for H-2B workers as of May 25, 2005. Under the Act, the USCIS has been granted a waiver of the normal requirement to issue regulations implementing the new law. Therefore, in order to implement these new provisions expeditiously, the USCIS has issued a Public Notice detailing filing requirements and procedures, and does not intend to supplement it with any further notice or regulation.

Question: Who Can Benefit From The Act?

Answer: Beginning on Wednesday, May 25, 2005, the USCIS started accepting filings for two types of H-2B workers: 1) For Fiscal Year 2005: Approximately 35,000 workers, who are new H-2B workers or who are not certified as “returning workers” (as explained further below) seeking start dates before October 1, 2005. 2) For Fiscal Year 2005 and 2006: All “returning [H-2B] workers,” meaning workers who were counted against the annual H-2B cap of 66,000 during any one of the three fiscal years preceding the fiscal year of the requested start date. In other words: (a) in a petition for a start date before October 1, 2005 (i.e., for FY 2005), the worker must have been previously approved for a start date in H-2B status between October 1, 2001 and September 30, 2004; (b) in a petition for a start date on or after October 1, 2005 (i.e., for FY 2006), the worker must have been previously approved for a start date in H-2B status between October 1, 2002 and September 30, 2005.

Question: What Is A Returning Worker?

Answer: If a previous petition for an H-2B worker was approved for an extension of stay, change in the terms of employment, or change or addition of employers, the worker was not counted against the annual cap at that time; therefore, that particular approval cannot in itself result in the worker being considered a “returning worker” for purposes of filing a new petition now. As a general rule, only previous petitions for a change of status or new employment that were filed during the requisite three-year period before the requested start date will qualify a worker as a “returning worker.” Any worker not certified as a “returning worker” will be subject to the numerical limitation for the relevant fiscal year.

Question: What Are The Filing Requirements?

Employers wishing to file petitions for H-2B workers who qualify under the Act should follow all current requirements, as well as the following additional requirements for returning workers: The petition must include a certification from the employer, signed by the same person who signs the I-129 form, stating, “As a supplement to the certification made on the attached I-129, I further certify that the workers listed below have entered the United States in H-2B status or changed to H-2B status during one of the last three fiscal years.” The list must set forth the full name of the worker(s). If the petition seeks a change of status, it must include evidence of previous H-2B admissions (i.e., a copy of each worker’s visa and I-94 admission record).

A single petition may be filed on behalf of multiple workers, including unnamed workers in “special filing situations” for business reasons. However, any returning workers must be listed in a certification as described above. For multiple-named workers, including returning workers, “Attachment 1” to Form I-129 must be included and completed. This is a supplement to the new I-129 form on which the names and other biographic information of multiple workers must be listed.

As usual, each petition must include a labor certification from the U.S. Department of Labor (DOL). The USCIS will accept a copy of the labor certification in those cases where the original labor certification has previously been filed with the USCIS. (Note that the USCIS and DOL both published proposed regulations in January 2005 that would substantially revamp the labor certification application process for H-2B workers and would replace the current procedure with a one-step, electronically-filed, attestation-based petition that would bypass the DOL and be filed directly with the USCIS.

Approval notices issued under the Act will include the names of all returning workers listed on the petition. Each worker must be prepared to show to the U.S. consulate abroad (when applying for an H-2B visa) or to the inspector at the port of entry (if the worker is exempt from the visa requirement) proof of his or her previous H-2B admissions (e.g., a previous H-2B visa in the worker’s passport, and a copy of a prior I-94 admission document). Although the Department of State will seek to confirm prior visas through its electronic system, an applicant for an H-2B visa under the returning worker provision who does not show these documents may be denied a visa and/or be denied admission when traveling to the United States.

Premium processing is available by including a Form I-907 and an additional $1,000 fee. Petitions for start dates of October 1, 2005, or later must include a new anti-fraud fee in the amount of $150.

Question: What New Sanctions Does the Act Include?

Answer: The Act contains new provisions including sanctions and civil monetary penalties (up to $10,000 per violation) for failure to meet any of the H-2B petition conditions for willful misrepresentation of a material fact. These new provisions become effective on October 1, 2005.

Question: What Happens When the Annual Cap is Reached?

Answer: Whenever the annual H-2B numerical limitation has been reached, the USCIS will reject any additional filings that are subject to the cap (i.e., other than for returning workers, extension of stay, change of employers, or change in terms of employment). For FY 2006 filings, the Act provides that the numerical limit for the first six months of the fiscal year shall be no more than 33,000, with the remaining 33,000 to be allocated on or after April 1, 2006. Employers may file H-2B petitions no more than six months in advance of the requested start date.

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Can I get a new visa in Mexico?

Posted on November 25, 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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I have been beaten by my husband. Now what?

Posted on November 24, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have been beaten by my husband and he never petitioned me. He was a lawful permanent resident, but was deported and now has no status. I really did love him at some point in the past. Is there something I can do?

Answer: You do not have to stay in this relationship and there is something you can do. There is a petition known as the self-petitioning battered spouse provision. Parts of the law providing help in this regard come from provisions of the Immigration and Nationality Act (the Act) by the Victims of Trafficking and Violence Protection Act (VTVPA). Title V of the VTVPA is entitled the Battered Immigrant Women Protection Act (BIWPA), and contains several provisions amending the self-petitioning eligibility requirements contained in the Act.

Question: However, my husband was deported and no longer has legal status in the U.S. Can I still file this petition?

Answer: As long as the petition is filed within two years of when your husband lost his status, you are still eligible to file the petition. For example, if your abusive husband has died, the spouse or child of a U.S. citizen who died within the two years immediately preceding the filing of the self-petition may benefit from the self-petitioning provisions for abusive United States Citizens.

Assuming this is not a case dealing with the death of a USC, you must demonstrate that the abuser’s loss of status was related to or due to an incident of domestic violence, and that you file your self-petition within two years of the loss of status. Thus, in your case, since your husband was deported most likely because of the domestic violence, there would not be a problem filing this petition. You should provide the circumstances surrounding the loss of status; the requisite causal relationship between the loss of status and the incident of domestic violence; and that the loss of status occurred within the two-year period immediately preceding the filing of the self-petition.

Similarly, divorce from an LPR or loss of LPR status by an LPR abuser after the filing of the self-petition shall not adversely affect the approval of the self-petition, nor shall it affect the ability of an approved self-petitioner to adjust status to that of an LPR.

Question: When must I file the application?

Answer: Eligibility to Self-Petition as a Battered Spouse or Child of a U.S. Citizen or Lawful Permanent Resident must be filed within Two Years of the Abuser’s Loss of Status.

Question: What must I provide and what evidence is necessary to be able to file this petition?

Answer: A self-petitioning spouse or child must demonstrate that his or her abusive spouse or parent is or was a U.S. Citizen (USC) or Lawful Permanent Resident (LPR). A self-petition filed by a battered spouse or child must be accompanied by evidence of citizenship of the U.S. citizen or evidence of the immigration status of the lawful permanent resident abuser. Self-petitioners are encouraged to submit primary evidence whenever possible, although adjudicators will consider any relevant credible evidence. USCIS regulations provide detailed information concerning the primary supporting documentation needed as evidence of a petitioner’s U.S. citizenship or lawful permanent residence. Self-petitioners can submit evidence of a spousal relationship to a USC or LPR. Evidence should include a birth certificate issued by a civil authority that shows the abuser’s birth in the United States; The abuser’s unexpired U.S. passport issued initially for a full ten-year period to a citizen of the United States; The abuser’s expired U.S. passport issued initially for a full five-year period to a citizen of the United States who was under the age of 18 at the time of issuance; A statement executed by a U.S. consular officer certifying the abuser to be a U.S. citizen and the bearer of a currently valid U.S. passport; The abuser’s Certificate of Naturalization or Certificate of Citizenship; Department of State Form FS-240, Report of Birth Abroad of a Citizen of the United States, relating to the abuser; and the abuser’s Form I-551 Alien Registration Receipt Card, or other proof given by USCIS as evidence of lawful permanent residence.

Question: What is I cannot find evidence that my husband was a Lawful Permanent Resident?

Answer: If primary evidence is unavailable, the self-petitioner must present secondary evidence. Any evidence submitted as secondary evidence should be evaluated for authenticity and credibility. If a self-petitioner is unable to present primary evidence or secondary evidence of the abuser’s status, the officer will attempt to electronically verify the abuser’s citizenship or immigration status from information contained in DHS computerized records. Other DHS records may also be reviewed at the discretion of the adjudicating officer. It is ultimately, however, the self-petitioner’s burden to establish the abuser’s U.S. citizenship or immigration status. If USCIS is unable to identify a record as relating to an abuser or the record does not establish the abuser’s immigration or citizenship status, the self-petition will be adjudicated based on the information submitted by the self-petitioner.

Thus, if your spouse or parent is abusing you, there is no need to stay. You are able to file a self petition to help yourself and to get status by yourself.

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What is Registry?

Posted on November 20, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have been in the U.S. for over 30 years. I’m illegal here, but cannot seem to find a way to get my status. Is there anything I can do?

Answer: If you have been present in the United States since January 1, 1972, you may be eligible for the “registry” provisions of our immigration laws which would allow you to obtain lawful permanent residence even if you are illegally in the United States now, or if you initially entered the U.S. illegally.

Question: Where Can I Find the Law?

Answer: The part of the law concerning the registry provisions is located at INA §249. The specific eligibility requirements and procedures for becoming a permanent resident through registry are included in the Code of Federal Regulations (CFR) at 8 CFR 1259 .

Question: Who Is Eligible?

Answer: You are eligible to apply for permanent residence based on 8 CFR 1259 if you: Entered the United States prior to January 1, 1972; Have continuously resided in the United States since entry; Are a person of good moral character; Are neither ineligible for citizenship, except for the requirement of five years of lawful permanent residence, nor inadmissible for participation in terrorist activities, certain criminal or security grounds, or for alien smuggling and never participated in Nazi persecutions or genocide.

Any alien who has at any time engaged in terrorist activities is ineligible for registry. Further, any alien who fails to appear at a removal hearing, or who fails to depart after agreeing to voluntary departure, is ineligible for registry for a period of ten years.

Question: How Do I Apply?

Answer: You must submit a completed Form I-485 with filing fee, and a completed Form G-325A with evidence that you have continuously resided in the United States prior to January 1, 1972, to the USCIS district office having jurisdiction over the place in which you live. You must establish that you are eligible and that registry should be granted in the exercise of discretion. There is no appeal from the decision of the District Director but your application may be renewed in front of an Immigration Judge.

Question: Will I Get a Work Permit?

Answer: Applicants who are inside the United States and have filed Form I-485 (Application to Register Permanent Residence or Adjust Status) are eligible to apply for a work permit while their case is pending. You should use Form I-765 to apply for a work permit.

You do not need to apply for a work permit once you are accorded permanent resident status. As a lawful permanent resident, you should receive a permanent resident card that will provide evidence that you have a right to live and work in the United States permanently.

Question: Can I Travel outside the United States while I am waiting for my application under the registry provision to be processed?

Answer: If an alien obtains Advance Parole from the USCIS following approval of a Form I-131, he or she may travel outside of the United States and return without jeopardizing their registry application. However, any alien who has accrued more than 180 days of unlawful presence in the United States and then travels outside the United States is inadmissible for a period of 3 to 10 years. Registry applicants have, by definition, accrued long periods of time in unlawful status. If you are applying for permanent residence using the section 249 registry provisions, you should not travel outside of the United States without first obtaining advance parole from the Service, or you will be unable to return to the United States.

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The New Year’s Hope for Immigration

Posted on November 19, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have been fighting my case for some time and yet do not have anything. What can I do?

Answer: As the year comes to an end, you need to try to give thanks for what you do have and then start again after the New Year. I am sure that you can appreciate and understand that practically everything is getting more difficult at Immigration. Whether your case is in Immigration Court, on Appeal to the Board of Immigration Appeals or the Circuit Courts or in front of USCIS, things are taking longer. Whether you have a Labor Certification or are applying for a Religious Visa, or a multitude of other types of visas, everything has gotten harder. Whether you are applying for a particular kind of Waiver or relief in Immigration Court, the evidence needed to present is much more than it used to be.

Therefore, you must keep fighting and you must keep your hopes up high. No matter how hard it is to get what you want from Immigration, you can always make a better case than before and you can always submit more evidence. We as a people cannot let the forces at Congress, USCIS, BICE, BCBP, and DOL or any other government agency drive immigrants and nonimmigrants away. If we permit the forces against the natural flow of immigration to win, then the United States will become the opposite of a land of dreams. It will become a land that will become unwelcoming.

As an immigration attorney, I am committed to keeping the fight going. Since IIRAIRA passed in 1996, lawyers across the U.S. have fought against provisions that were hurtful and spiteful to immigrants. Slowly, bit by bit, we have had successes to show that certain parts of legislation aimed against immigrants were unfair or unconstitutional. Now, there are more cases in Circuit Courts across the U.S. that are immigration related than ever before. The Circuit Courts are inundated with immigration cases because we must keep appealing and keep fighting what are laws that are aimed to deprive the immigrant of their dreams. If we give up, then we are validating the unfair laws, the discrimination, and the laws that will keep immigrants out of the U.S.

Therefore, do not despair that it is taking a long time to resolve your visa or your status. Keep in mind that there are multitudes of people in a much worse situation than you. There are people whom did not have anyone to fight for them and have been deported; had their appeals denied; had their Labor Certifications denied or had their relief denied. However, as long as you have an immigration attorney fighting for you, keep up your hope. It is only the fighting by that immigration attorney and other immigration attorneys across the country that will eventually prevail against antiquated laws and the discrimination against immigrants that exists by some of Congress.

It is almost New Year’s. Let’s give thanks for our health and our family. Let’s give thanks that we are still in the U.S. fighting to stay and fighting to get what is deserved. Let’s look at the people who did not win and hope that someday they have a successful return to the U.S. Hope is a powerful emotion and all of us can have hope to get what we eventually want.

I would like to wish all of my readers a Happy and Prosperous New Year’s and a hope that next year will give each and everyone of you prosperity and happiness.

Brian D. Lerner is an Immigration Attorney Specialist. This firm does every aspect of immigration law including family and employment based petitions, deportation defense and criminal related immigration issues, asylum, naturalization, appeals, nonimmigrant visas, immigrant visas, and all other areas of immigration law. An appointment can be made by calling    (866) 495-0554    or    (562) 495-0554   . The Firm website is www.californiaimmigration.us.

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Are H-1B’s and H-2B’s used up yet?

Posted on November 17, 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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