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April 17, 2014

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On April 7, 2014, the U.S. Citizenship and Immigration Services announced that it received approximately 172,500 total H-1B cap-subject petitions between April 1, the first day USCIS began accepting H-1B cap-subject petitions, and April 7, the last day to file an H-1B cap petition for FY 2015. This figure includes both regular cap-subject petitions and petitions filed under the U.S. Master's cap exemption and far exceeds the statutory limit of 65,000 for regular cap petitions and 20,000 for U.S. Master's cap petitions. Given the excess number of petitions, the USCIS completed the computer-generated random selection process ("lottery") to determine which petitions would be accepted for adjudication. In the lottery process, the USCIS first selects 20,000 qualifying H-1B U.S.-Master's cap-subject petitions from the pool of U.S. Master's Cap petitions received. Those U.S. Master's cap petitions that were not selected in the first lottery are then added to the pool of regular H-1B cap subject petitions. The USCIS then randomly selects 65,000 H-1B cap-subject petitions from the unselected U.S. Master's cap petitions and the regular cap petitions. Our team has received questions regarding this process. Here is a summary of those questions and our answers:

Q: How will I know if my petition has been accepted?

A: While it is unlikely that the USCIS has processed all of the cap cases yet, the earliest way to know if your petition was accepted is to see if the filing fee checks have been deposited by the USCIS. If you have access to the check information, you may look to see if your filing fee checks were deposited. On the back on the checks, you will find your receipt number.*

Otherwise, the USCIS will notify our team by email or my regular mail (on the Form I-797) whether your petition was accepted or rejected. Please rest assured that the moment our team receives any notifications from the USCIS, we will immediately inform you of such correspondence.

* If our firm issued the checks, we kindly ask that you refrain from contacting our accounting team to request this information.

Q: When will I find out if my petition has been accepted?

A: With 172,500 petitions on their hands, it will take some time for the USCIS to inform you as to whether your petition was received or rejected. While we have received email notifications a few of our clients who filed under Premium Processing, notifying us that the petition was received, do not be alarmed if you have not received any communication from us or the USCIS regarding whether your petition was accepted or rejected. Right now, it's simply a matter of waiting for the USCIS to process the numerous petitions they have on their hands.

Continue reading "Post-H-1B Q & A" »

April 17, 2014

DACA: Two Years Later Many Approach Renewal Deadline

In September of 2012 the United States Citizenship and Immigration Services (USCIS) began issuing work authorization cards to those that had applied through the Deferred Action for Childhood Arrivals (DACA) program. This program allows those who entered the United States without status to have action deferred in their case and receive a work permit valid for two years. Every two years, those granted DACA are required to renew their work permits as well as the grant of deferred action. For those who were the first to apply when the program was announced, their expiration dates are quickly approaching and USCIS has released preliminary information on how the renewal process will proceed.

The DACA program came into effect on June 15, 2012 through a presidential order signed into law by President Barack Obama. You may qualify for DACA if: (1) you were under 31 years of age on June 15, 2013; (3) you arrived in the United States before the age of 16; (3) you have lived in the United States since June 15, 2007 until the present time; (4) you were physically present in the United States on June 15, 2012 as well as at the time of requesting DACA; (5) you entered the United States without inspection or you entered with lawful status that expired before June 15, 2012; (6) you are currently in school, have received a GED, graduation from high school, were honorably discharged from the Coast Guard or Armed Forced of the United States, or are currently enrolled in a GED program; and (7) you have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and you do not pose a threat to national security or public safety.

Those who applied as soon as the DACA program took effect, June 15, 2012, will be coming up for renewal of their benefits within the next few months. Many applicants as well as attorneys have been wondering how the renewal process will proceed since this is the first time that anyone will have to renew and the DACA program is one of a kind.

Continue reading "DACA: Two Years Later Many Approach Renewal Deadline" »

April 17, 2014

Reflecting on H-1B season

Thumbnail image for visa-approved11.jpgLooking back on the most recent H-1B Cap season, it becomes clear that the H-1B process works best when employers, employees and attorneys work clearly and efficiently together. There are many things that your employer's attorney will need from you to determine if you qualify for a H-1B visa and to prepare the best petition possible for you. The basic things that will be needed from you include:

  • Your current passport

  • Your educational credentials (diplomas and transcripts)

  • Evidence of your current status, if applicable.

Your employer's attorney will then use this information to demonstrate to USCIS that you meet the qualifications for an H1B visa. For you to qualify to accept a job offer in a specialty occupation you must meet one of the following criteria:

  • Have completed a U.S. bachelor's or higher degree required by the specific specialty occupation from an accredited college or university

  • Hold a foreign degree that is the equivalent to a U.S. bachelor's or higher degree in the specialty occupation

  • Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment

  • Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

Thus, ensuring that the attorney has sufficient time to review your job description and your relevant education and experience will help give them an opportunity to thoroughly review your credentials and determine if you qualify or require and academic evaluation. An academic evolution will demonstrate to USCIS that your degree is the equivalent of a US degree in the specialty occupation field, or that your degree plus experience is the equivalent of a bachelor degree in the relevant field. It is very important to get a quality education evaluation as USCIS can reject poor ones. Thus, it is very important to get the attorney all your education information early so that they can review and determine the best course of action for your petition.

Continue reading "Reflecting on H-1B season" »

February 11, 2014

H-1B Cap - The Ten Day Commitment

April 1st is just around the corner, which means...It's time to start the H-1B process! This year, there is no time for hesitation. The H-1B cap was reached within the first week last year, and this year will likely see an even higher demand. Thus, it is essential that when the U.S. Citizenship and Immigration Services Processing Centers open their doors on April 1st, your H-1B petition is on their welcome mat.

If you are an employer seeking to hire a foreign worker, you should be making final determinations about the position they seek to fill, the proffered salary and the foreign worker they wish to hire. If you are a foreign national seeking H-1B sponsorship, you should pinpoint your prospective U.S. employer(s) and gather the necessary documentation, keeping in mind that all supporting documentation must include a certified English translation. To ensure your petition is properly filed, contact an experienced immigration attorney now to give yourself time to perfect your case.

Having filed thousands of H-1B petitions, the Law Firm of Shihab & Associates has mastered the art of skillful and efficient filing. With your full cooperation, our team is able to complete your classic H-1B petition from start to finish in 10 days.

From our hands to the USCIS Processing Center's doorstep, here is a breakdown of our 10-day commitment to you:

Day 1: Hit the Ground Running

Our Collaboration with U.S. Employers on Day 1. On the first day that your case is opened, we will create your case file. Your case file is made up of the information that you are able to provide to us on Day 1. In order to hit the ground running, you should at least be prepared to provide us with the proposed position title, a detailed job description and the proffered salary. Using this information, we will determine the appropriate Standard Occupational Classification (SOC) Code and occupation title to be used on the Labor Condition Application (LCA). In addition, we will confirm that the proposed salary complies with the prevailing wage requirements.

Once the job title and salary are finalized, we will draft an internal posting notice for you to post in compliance with the federal regulations. As soon as you confirm with our team that the notice has been posted in compliance with the federal regulations, we will file the LCA with the U.S. Department of Labor (DOL). It typically takes the DOL seven (7) days to certify the LCA. However, if this is your first time filing for a foreign worker, you must first have your Federal Employer Identification Number (FEIN) verified by the DOL's Chicago National Processing Center. This process usually takes about three (3) days and should be completed prior to filing the LCA to prevent the possibility of denial due to an unverified FEIN.

Our Collaboration with Foreign Workers on Day 1. If you are a foreign worker seeking an H-1B visa and you have a degree from a foreign university, a foreign academic equivalency evaluation will be required. Although this process usually takes between three (3) and five (5) business days, it is a good idea to send the request to an evaluator on Day 1 to guarantee that it is received by the time the H-1B petition is ready to be mailed to USCIS. Thus, if a foreign academic equivalency evaluation is required, you should be prepared to provide our team with your academic credentials, including the diploma and transcripts ("marksheets") from the foreign academic institution. As soon as we receive these documents, our team will request a foreign academic equivalency evaluation.

Continue reading "H-1B Cap - The Ten Day Commitment" »

February 10, 2014

L-1 Visa Function Managers

To be eligible for an L-1A Intracompany Transferee Executive or Manager visa, you must first determine whether your position in the United States will be an "executive capacity" or in a "managerial capacity." The requirements regarding executive capacity are much simpler than the regulations for managerial capacity. If at all possible, it is best to argue that your position will be in an executive capacity. However, if you believe that your employment will be in a managerial capacity, but you do not supervise any subordinate employees, you still may qualify for an L-1 if you can establish your position meets the requirements of a "function manager." The elements of a managerial capacity position are:

  1. The position manages the organization, a department, subdivision, function, or major component of the organization;
  2. The position supervises and controls the work of other supervisory or professional employees; or manages an essential function of the organization, a department or subdivision of the organization;
  3. If the position directly supervises other employee(s), the position has the authority to hire and fire or take personnel actions over said employee(s); or if no employee(s) is directly supervised, acts as a senior level supervisor within the organizational or managed function; and
  4. The position must exercises discretion over the day-to-day operations over the areas s/he has authority. If the position supervises employees, simply being a first-supervisor is not enough; to be managerial the position must supervise professionals

The functional manager analysis is relevant to the second element of the managerial analysis. The second element is fulfilled even though the position does not supervise any employees. As long as the position manages an essential function of the organization, or a department or subdivision of the organization the position still meets the managerial capacity requirements Therefore, to meet the second requirement of the managerial capacity analysis, an employee may either supervise and controls the work of other professional employees or manage an essential function, department or subdivision of the organization.

Case law supports the approval of L-1A petitions for "functional" managers with small or no staff. The AAO approved a scrap metal company's L-1A petition filed for its only employee and president. See Matter of X, 16 Immig. Reporter B2-84 (AAO Feb. 29, 1996). The beneficiary's primary function was to obtain scrap metal for export and develop real estate through independent contractors.

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February 10, 2014

My Criminal Defense Attorney Never Told Me I Could Be Deported!

At some point in their lives everyone comes in contact with the police, many times for simple traffic violations that do not carry serious consequences. However, many criminal offenses can and often do carry serious consequences, especially if you are not a United States Citizen. The majority of non-citizens have no idea that a conviction for certain criminal offenses could lead to the loss of their current status and deportation.

The intersection of criminal and immigration law is extremely complicated. Many times the criminal defense attorney has no idea that there are immigration consequences to pleading guilty to an offense let alone the seriousness of those consequences. If you are a non-citizen who entered a guilty plea and your defense attorney did not advise you of the immigration consequences then there may be some relief if you come in contact with the immigration system as a result.

On March 31, 2010 the United States Supreme Court decided Padilla v. Kentucky which affirmatively established that the Sixth Amendment of the United States Constitution requires a defense attorney to advise anyone who is not a citizen of the United States of the immigration consequences of pleading guilty to a criminal offense. If the criminal defense attorney did not advise of immigration consequences then the non-citizen could bring a claim of ineffective assistance of counsel.

In order to bring a successful ineffective assistance of counsel claim, you must demonstrate that the attorney's representation fell "below an objective standard of reasonableness" and there must be "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668. This means that the attorney did not do what a reasonable person would have done knowing that a non-citizen was about to plead guilty to a criminal charge and that had the attorney not made that mistake, the non-citizen would be in a better position (e.g., the non-citizen would not have plead guilty).

The criminal defense attorney does not need to be well versed in immigration law and is not required to give the non-citizen a list of "what-ifs" but he is required to, at the very least, tell the non-citizen that the pending criminal charges against him may carry negative immigration consequences.

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January 16, 2014

BIA Makes Important Decisions Regarding Aggravated Felony Convictions

There are several crimes that qualify as aggravated felony convictions under immigration law. Even if a crime is considered a misdemeanor under state law, it can be seen as an aggravated felony conviction for immigration purposes. A conviction for a crime that qualifies as an aggravated felony will foreclose a non-citizen from applying for most types of relief from removal such as asylum and cancellation of removal.

A non-citizen may be put into removal proceedings due to a conviction for an aggravated felony. Before the non-citizen can apply for relief with the immigration court, he must show that the crime he was convicted of does not qualify as an aggravated felony. This analysis depends on several factors: the language of the state statute of conviction, whether the state statute is divisible, what type of evidence is contained in the conviction record, and the language of the corresponding federal statute.

Recently, the Board of Immigration Appeals (BIA) made some important decisions concerning whether certain convictions qualify as aggravated felonies. The first case comes from North Dakota where the respondent was convicted of the crime of contributing to the delinquency of a minor under North Dakota law. The government charged him as being removable from the United States for being convicted of an aggravated felony, specifically sexual abuse of a minor under section 237(a)(2)(E)(i) of the Immigration and Nationality Act (INA). First, the court looks to the elements of the statute of conviction. In this case they determined that the North Dakota statute did not contain any reference to sexual conduct. Since the elements did not line up, the North Dakota statute is not divisible. Since the statute is not divisible the court may not look at the record of conviction to determine what the actual conduct of the underlying conviction was. A statute is divisible when some but not all of the elements of the offense give rise to removability. In that case, the court can look at the record of conviction to see exactly which part of the statute the person was convicted for and then see if that matches up with an immigration violation. The BIA ended up terminating the removal proceedings against the respondent.

In a second case, the BIA remanded the case back to the Immigration Judge due to the recent Supreme Court decision of Descamps v. United States. The decision in Descamps states that the Immigration Judge can use a modified categorical approach if the statute under which the respondent was convicted is divisible, that is if it sets out various offenses for which someone can be convicted of, and only some of those offenses are a match to the federal standard for the crime. In this case, the respondent was convicted in Minnesota of criminal sexual conduct. That qualifies as an aggravated felony of sexual abuse with a minor. However, the Minnesota statute did not make any reference to the age of the victim. At the time of the Immigration Judge's decision, the Descamps decision was not yet available. The Immigration Judge decided that the statute was divisible and looked at the record of conviction to find that the victim was 15 years old and indeed a minor. Therefore, the Judge decided that the respondent was guilty of an aggravated felony and not eligible for any immigration relief. Since the Immigration Judge did not have the Descamps decision available, the BIA remanded the case in light of that decision so that the Immigration Judge can conduct further proceedings on the case.

Continue reading "BIA Makes Important Decisions Regarding Aggravated Felony Convictions" »

January 15, 2014

Academic Equivalency: H-1B v. PERM

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Depending on your degree, you might meet the educational requirements to file your H-1B petition but when you go to file your PERM application, be denied for not have the required level of education. The important distinction to remember when reviewing the educational requirements for these two types of petitions is that the Department of Labor (DOL) does not use the same standard as the United States Citizenship and Immigration Service's (USCIS). The DOL has stated that it will treat years of education, work experience and training as interchangeable and that this interchangeability will only work on a one-for-one basis. This is unlike the rule the Three for One Rule that USCIS applies to H-1B adjudications. Under the three for one rule, three years of specialized training and/or work experience is equivalent to one year of college level training. This means that how the term "equivalence" is defined by each adjudicating body will have a significant impact on the analysis of the educational requirements for these two types of petitions.

To meet the educational requirements for an H-1B petition, an employer must show that the foreign national worker meets the educational requirements specified in the regulations. Generally, this means that the foreign national worker must have obtained a Bachelor's degree or higher from an accredited college or university and that degree must be a requirement to qualify for the specialty occupation. The Three for One Rule makes the analysis of the equivalent of a three year bachelor degree for an H-1B petition much easier. The equivalent of a U.S. bachelor's degree can be established by showing that the foreign national worker has obtained a three year foreign bachelor's degree plus additional university level education or work experience.

To meet the PERM academic requirements, the employer must demonstrate that the academic requirements for the offered position are not greater than those defined in the OES Job Zones level and Specific Vocational Preparation (SVP) level for that position. If the educational requirements are above those listed, then the employer is required to provide a business necessity justification for the additional requirements. Applying this standard to the main categories of immigration petitions results in a higher level of proof required than for H-1B petitions.

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January 15, 2014

Three means Three: BALCA Case Finding Link to External Job Search Website Does Not Satisfy Posting Job Opening on Employer's Website

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The Regulations

Before permanently employing a foreign worker, employers must certify that there are no U.S. workers available for the position by performing specified recruitment steps in order to receive a labor certification. The employer bears the burden of proving that it conducted the mandatory recruitment steps as a good faith effort to confirm that there are no US workers available before hiring a foreign worker. There are three mandatory recruitment steps that every employer must follow. First, the employer must post the job with a state workforce office for 30 days. Second, the employer must post an internal notice of the employer's intent to hire a foreign worker. Third, the employer must post the job announcement in a Sunday newspaper that is in general circulation in the area of proposed employment for two weeks. If the position that the employer seeks to fill is "professional," then the employer must choose an additional three of the ten recruitment steps listed in 20 C.F.R. § 656.17(e)(1)(ii)(A)-(J). One of the options is to post the position announcement on the employer's website. Another option is to post the job opportunity through a job search website other than the employer's website. As evidence of these options, the employer usually must provide dated printouts of the webpages showing the job advertisement, but other evidence, such as affidavits, may be acceptable. It is the employer's duty to prove that all of the regulatory labor certification requirements have been satisfied before the labor certification may be granted.

In a decision of Board of Alien Labor Certification Appeals case, issued on December 30, 2013, the Administrative Law Judge ("ALJ") affirmed a denial of a labor certification because the employer in that case failed to meet the regulatory recruitment requirements. (In the Matter of The Dallas Morning News, L.P., BALCA Case No.: 2011-PER-02302, December 30, 2013)


In that case, the Certifying Officer ("CO") denied the labor certification in the grounds that the employer did not satisfy the three additional recruitment steps required for a professional position. Two of the three recruitment steps that the employer elected to perform were to post the job opening on the employer's website and to post the job announcement on an external job search website. The employer posted the job opening to Yahoo's HotJobs, which is an online career management website containing job listings. In addition, at the bottom of the homepage of the employer's website, a "careers" hyperlink redirected job seekers to the employer's profile and job listings on Yahoo's HotJobs' website. The CO denied the labor certification based on a finding that the employer did not adequately document that it posted the job opening to its website.
Upon filing a request for reconsideration, the employer submitted an affidavit attesting that the employer entered into a contract with HotJobs whereby the career section of the employer's website was linked to HotJobs's website. Therefore, if a potential job seeker clicked on the "careers" tab on the employer's website, it would redirect that job seeker out of the employer's website and to the employer's profile and job openings listed on HotJobs.

Continue reading "Three means Three: BALCA Case Finding Link to External Job Search Website Does Not Satisfy Posting Job Opening on Employer's Website" »

January 2, 2014

U.S. Consulate Interview Preparation Tips for Indian Nationals

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Indian nationals currently living in India who wish to receive an immigrant or non-immigrant visa to travel to the United States typically must attend an interview at a U.S. Embassy or Consulate. These interviews are conducted in order to determine applicant's eligibility to receive a visa prior to traveling to the United States. As such, being prepared to answer whatever questions are posed by the Immigration Officer in addition to presenting documentation to support any answers provided by the applicant are the keys to a successful interview.

Immigration Officers have indicated that they are typically more interested in what the applicants say over what is reported on the documents that are submitted in support of their applications. Despite this emphasis on applicant responses during the interview, it is essential that the applicant has documentation to support what is said during the interview to corroborate the statements made. Applicants should be completely prepared to answer any questions posed by an Immigration Officer in a clear and articulate manner and be able to put forth evidence to substantiate a claim.

General Interviewing Tips

In general, applicants must be able to confidently answer questions about why they are traveling to the United States, their intent to abide by the terms of the visa and their overall plans while in the United States. For nonimmigrant visas, Immigration Officers will likely ask questions that will evoke from the applicant any intent to permanently reside in the United States. If the Immigration Officer believes you intend to permanently remain in the United States, the nonimmigrant visa will be denied. For immigrant visa applicants, Immigration Officers will ask questions to verify the truthfulness of applicant statements.

Some questions asked by the Immigration Officer might be: "What are your ties to India" (social, economic, family)?"; "Why did you choose the particular university?"; and "How did you and your spouse meet?" In addition, Immigration Officers may pose hypothetical "what if" questions, such as: "What would you do if you won the lottery in the United States?" or even "What if a U.S. citizen proposes marriage to you?" Finally, applicants for work visas should be able to talk about the specifics of job duties in the United States. The applicant's ability to clearly, confidently and consistently answer these types of questions will be the ultimate deciding factor in the approval or denial of a visa.

Although these questions might begin to feel uncomfortable and accusatorial, the U.S. Embassy and consular offices in India have indicated that they are working on making the interview process less adversarial in nature.

Continue reading "U.S. Consulate Interview Preparation Tips for Indian Nationals" »

December 24, 2013

2014 H-1B Cap Season (FY 2015)

On Tuesday April 1, 2014, the U.S. Citizenship and Immigration Service (USCIS) will begin accepting new H-1B petitions for the 2015 fiscal year, with a start date of October 1, 2014. The cap was reached almost instantly last year. With increased demand for H-1B visas expected in 2014, employers who plan to petition for a foreign worker under H-1B should begin the process early to be ready to file on March 31, 2014.

The 2013 H-1B Season
Last year, the statutory H-1B cap of 65,000 was reached within the first week of opening their doors to cap-subject H-1B petitions. With nearly 124,000 H-1B petitions filed, USCIS implemented a computerized random selection process, called the "lottery" to select the lucky 65,000 cap subject and 20,000 advanced degree H-1B petitions for filing. Last year, the regular cap-subject petitions had a 62.5 percent chance of being selected. Those H-1B petitions that were not selected were rejected and returned, along with the filing fees, to the petitioners.

Increased Demand for H-1B Visas in 2014
It is certain that demand for H-1B visas will be even higher this year for two big reasons. First, the Federal Reserve is predicting good growth in the job market in 2014. The correlation between the job market and H-1B visas is impossible to ignore. When the unemployment rate was nearly 10 percent in 2010, the cap wasn't reached until November. As the unemployment rates have slowly gone down since then, the cap has been reached earlier each year. Last year, the unemployment rate was averaging around 7.7 percent when the cap was reached. The Federal Reserve forecasts a healthy job market with an unemployment rate as low as 6.4 percent in 2014. Thus, demand for H-1B visas will be even higher this year.

In addition to the improving job market, employers have not been able to file for new H-1B workers since April of last year. Thus, the demand has been building for almost a year. With nearly 39,000 H-1B petitions rejected last year, there are thousands of people ready to try their luck again in 2014. Taking this into consideration, employers seeking to file a new H-1B petition in 2014 must be ready to file when USCIS opens the door in April.

Continue reading "2014 H-1B Cap Season (FY 2015)" »

December 23, 2013

New E-Verify Security Enhancement Permits USCIS to Lock Social Security Numbers

Love it or hate it, the Department of Homeland Security's E-Verify Program, which enables employers to verify employment eligibility of new employees electronically, is likely here to stay. Since its introduction in 2008, a major concern with E-Verify was the fact that the program was not able to catch an employee's fraudulent use of another person's name and social security number (SSN), enabling employees and employers alike to circumnavigate immigration laws by using or overlooking the common issue of identity theft. In the past, as long as the SSN provided by an employee matched the employees name and other personal information, E-Verify confirmed the information as valid and the employee was authorized to work, with no way of determining if the SSN was fraudulently obtained.

With hopes to remedy this flaw in the system, Director of the U.S. Citizenship & Immigration Services (USCIS), Alejandro Mayorkas released a statement introducing new security enhancements to the E-Verify program. According to Director Mayorkas, these enhancements will help curb identity theft and falsely obtained employment authorization by detecting and preventing the fraudulent use of SSNs for work authorization.

This new safeguard enables USCIS to "lock" SSNs that appear to have been stolen or fraudulently obtained. Using algorithms and detection reports and analysis, USCIS will track SSN usage patterns in order to track and detect suspicious pattern usage. If it appears that an SSN is being used fraudulently, USCIS will lock that SSN and prevent further usage of that SSN until the issue is resolved. For instance, if an SSN is used to obtain employment in California one day and then used the very next day to obtain employment in New York, the SSN would be locked from usage to obtain work authorization. If an employee attempts to gain work authorization using that locked SSN, the employee will receive a Tentative Nonconfirmation (TNC). A TNC does not automatically mean the employee is not authorized to work in the United States. However, in that situation, the employee may contest the lock at a local Social Security Administration (SSA) field office. If the field officer finds that the employee's identity matches the SSN, the field officer will change the TNC to "Employment Authorized" status with E-verify. Director Mayorkas explained that this is similar to how credit card companies will lock a credit card if suspicious activity is detected.

As with the introduction of any new procedure or program, it is likely that this new security enhancement will have several bugs to be worked out. For instance, anyone who has ever had their credit card locked knows that the algorithms used to track usage patterns are often inaccurate, resulting in credit cards be locked simply because of travel or large or unusual purchases. Similarly, this security enhancement may result in several employees with valid identity information to have their SSNs locked as a result of possibly suspicious usage patterns. While not severely detrimental, having your SSN locked can be very frustrating and time consuming. On the other hand, it could be a very useful tool for individuals who have unwittingly had their identities stolen. For now, one can only speculate on the outcome of the new enhancements. It remains to be seen what the full effect will be. If you have experienced the effects of USCIS' new ability to lock SSNs, please share your story with us.

December 18, 2013

What's to Come: The Good, the Bad and the Ugly Predictions for Immigrant Visa Processing Times for 2014

In 2013, we saw some interesting changes in processing times, from rapid progressions in some visa categories to retrogression in others. Using the latest Visa Bulletin for January 2014 along with the predictions made by Charles Oppenheim of the Visa Office, our team has come up with some of our own predictions for processing times for the upcoming year. Here is a highlight of the Visa Bulletin predictions for 2014:

The Good

  • It is possible that the cut-off dates for India EB-2 visas will return to pre-retrogression dates (circa December 2008) in August or September of 2014.
  • It is likely that the processing times for EB-3 visas for Mexico, China and the rest of the world will continue to progress at a healthy rate in 2014. However, be wary as there may be a greater than expected demand in these areas, causing stagnation or even retrogression.

The Bad

  • The processing time for all India EB visas will remain stagnant through the beginning of 2014.
  • It is very likely that a cut-off date for China EB-5 visas will be introduced in 2014.
  • A cut-off date for EB-5 visas for the rest of the world may also be imposed in 2014.
  • The processing time for China EB-2 visas will continue to move very slowly.

The Ugly

  • The cut-off date for EB-3 visas worldwide may retrogress in 2014.
  • There may be retrogression of the cut-off date for the Mexico F-2A visa category in 2014.

While these forecasts are intended to help you plan for the upcoming year, please keep in mind that these are only predictions and are subject to change.

December 18, 2013

A Unique Opportunity for Chinese Nationals Seeking Employment-Based Immigrant Visas

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Since the June 2013 Visa Bulletin was released, the priority date cut-off for Chinese nationals filing under the EB-3 immigrant visa category has been more recent than the priority date cut-off for the EB-2 visa category. In fact, the cut-off date for EB-3 visas for Chinese nationals has progressed nearly four years since June 2013, from September 1, 2008 to April 1, 2012, thanks in large part to a dramatic 18 month jump between August and September of 2013. Contrastingly, cut-off dates for the EB-2 category have lingered around the second half of 2008, progressing only five months, to December 8, 2008, between June 2013 and January 2014. In October 2013, Charles Oppenheim of the Visa Office predicted that the cut-off dates for EB-3 visas for Chinese nationals will likely continue to progress more rapidly than the EB-2 visa category.

With this in mind, employers who have already petitioned for Chinese nationals under EB-2 or those who are planning to file for an employment-based immigrant visa in the near future should consider alternative options that could accelerate their path the permanent residence. For instance, employers who have petitioned for Chinese nationals and have a pending or approved EB-2 immigrant petition may subsequently file under the EB-3 category for the same beneficiary ("downgrade"). Employers who seek to file a new Form I-140, Immigrant Petition for an Alien Worker from China may also concurrently file under both EB-2 and EB-3 visa categories.

This is possible because the federal regulation at 8 CFR §204.5(e) indicates that when a beneficiary has more than one approved petition, either because of concurrent EB-2/EB-3 filing or because of subsequent "upgrading" from EB-3 to EB-2, the beneficiary's priority date is the earliest priority date assigned. Similarly, though less common, if a petitioner originally files under EB-2 and subsequently files under EB-3, the beneficiary will be assigned the earlier priority date.

"Downgrading" from EB-2 to EB-3

Thanks to a unique exception to the 180-day validity period rule, employers who have already petitioned for a Chinese beneficiary under the EB-2 immigrant visa category may file a second I-140 using the original labor certification to support an EB-3 petition. While it is uncommon to "downgrade" from EB-2 to EB-3, employers of Chinese beneficiaries with either a pending or approved EB-2 petition may wish to consider filing under the EB-3 category because they could move ahead in the visa queue.

Considering the recent progression rate for EB-3 cut-off dates and the likelihood that this trend will continue, there is a very good chance that those Chinese nationals who choose to "downgrade" from EB-2 to EB-3 will receive an earlier priority date. However, even if by the time the EB-3 petition is filed the EB-2 cut-off date surpasses the EB-3 cut-off date, there is nothing to lose, as the beneficiary will retain the earliest priority date.

EB-2/EB-3 Concurrent Filing

Employers who intend to file for an employment-based immigrant visa on behalf of a Chinese national should consider concurrently filing the Form I-140 under both the EB-2 and EB-3 visa category using the same labor certification. Pursuant to 8 CFR §204.5(e), the beneficiary will be assigned the earlier priority date.

This unique opportunity for Chinese nationals will not last forever. Thus, it is important to act fast. Keep in mind that there are several requirements and strategies to consider when concurrently filing under EB-2/EB-3 or subsequently filing a second employment-based petition.

December 13, 2013

Detained Without Bond, Now What?

A foreign national can come in contact with U.S. Immigration and Customs Enforcement (ICE) through the United States criminal justice system. This can happen whether the foreign national is in the country lawfully or unlawfully. This article will focus on those foreign nationals that have been admitted to the United States as lawful permanent residents but the processes discussed are similar for those who are present unlawfully as well.

A lawful permanent resident may come in contact with ICE if they commit certain crimes that render them removable from the United States. In fact, a lawful permanent resident can be deported from the United States if they are found to have committed certain crimes that make them deportable and the Immigration Judge orders them removed. These crimes are enumerated in the Immigration and Nationality Act and include: aggravated felonies, crimes involving moral turpitude, controlled substance offenses, firearms offenses, and domestic violence or child abuse. The list of crimes is quite extensive but, for example, a lawful permanent resident can be arrested by local police for possession of marijuana. If that individual had more than 30 grams of marijuana in his possession then ICE can place a hold on him or her. This means that once the person is released from local police custody, ICE can step in and detain them further.

A bond determination hearing will take place about 48 hours after ICE takes custody of the individual. This is very similar to a bond hearing in a criminal case. Unfortunately, some crimes are labeled "mandatory detention offenses" under immigration law in which there is no opportunity for a bond. The foreign national must remain detained throughout the pendency of his immigration proceedings. Crimes that will subject a foreign national to mandatory detention include: two or more crimes involving moral turpitude, an aggravated felony, a firearms offense, or a controlled substance conviction.

The good news is that in many cases mandatory detention can be challenged. The result being that the foreign national becomes eligible for a bond and can remain free during the pendency of his or her proceedings with immigration. In order to challenge the government's finding that the foreign national is subject to mandatory detention an attorney must file a motion requesting a Matter of Joseph hearing before the Immigration Judge. Typically, an Immigration Judge has no power to determine whether or not a foreign national should be detained. However, in a Matter of Joseph hearing the Immigration Judge can determine that the government is substantially unlikely to prevail on the charge of removability that is the basis for the mandatory detention.

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