Immigration Visa Lawyer Blog

The first installment of The Law Firm of Shihab & Associates webinar series kicks off on Thursday, February 17, 2011 at 2PM. This is the first webinar in a series of six presented in an effort to describe the current state of employment-based immigration in a post-Neufeld/pre-CIR world. The first series is called "Don't Waste Any More Time Waiting on EB-3 Priority Dates - Convert your Green Card Case to EB-2 and Jump to the Finish Line." This free immigration webinar is intended to illustrate the mechanics of the Priority Date Recapture mechanism and methods to finishing up the Green Card process quickly.

The webinar will begin on Thursday, February 17, 2011 at 2PM and will be re-run on Thursday, February 24, 2011 at 2PM.

Continue reading "Shihab Immigration Firm Webinar Series Announcement" »

The USCIS has announced on January 27, 2011 that it has received sufficient number of petitions to reach the H-1B visa cap for fiscal year 2011.
In its statement circulated by e-mail 8 p.m. on Thursday January 27, 2011, the USCIS stated that the final receipt date for inclusion in the H-1B visa cap for the current fiscal year is January 26, 2011. As an immigration lawyer in Columbus, Ohio, I have been closely monitoring the consumption of the cap subject H-1B visa petitions received and it was a remarkably linear line since April 1, 2010. Once the "Master's Degree" cap is reached, the consumption drastically increased. We predicted the cap to be reached the end of January beginning of February and we were right on the mark.

It appears from the message which was posted late Thursday on the USCIS website that the USCIS received more petitions on January 26, 2011 than H-1B visas available hence it will employ a computer generated lottery system to select the petitions for inclusion in the H-1B visa cap.

The next opportunity to file cap subject H-1B visas is on April 1, 2011 for an employment which will begin on October 1, 2011 which Marks the beginning of the 2012 federal fiscal year.

Tri-Valley University at Pleasonton, California near San Fransisco has been raided and shut down due to allegations of visa fraud on a massive scale. As Columbus, Ohio Immigration lawyers, we came to become aware of this situation over several calls we received from frantic students not knowing what to do. At the present time, Immigration & Customs Enforcement is seeking to interview every student. Immigration authorities allege that Tri-Valley University was a sham institution from its inception and that it was established merely to provide F-1 visas, curricular practical training or optional practical training employment authorization to its mostly forign national student base. As a result of this raid, immigration attorneys in Columbus, Ohio as well as attorney's from around the country have been fielding questions from those students who may have been affected by the actions of this university.

Immigration issues for these former students vary in thier severity. Some students have been detained and questioned by the authorities. Some have been issued Notices to Appear before deportation officers. Other students have not been questioned at all and simply hope to find a college to enroll at in time to take classes for the winter semester.

Beside the possible invalidity of F-1 visas issued by Tri-Valley University, it has been reported that some students were permitted to engage in CMT without waiting the requisite 9 month period before comencing work on a student basis. Such persons will need to answer for charges or unauthorized employment as well as a lapse in immigration status.

While the investigation into the circumstances surrounding this institution and it's alleged immigration violations, students from this institution should be reminded that all immigration cases are different. Schools have closed before, leaving forign students in a state of immigration limbo and the law does provide solutions to questions of immigration status due to circumstances beyond a student's control. Additionally, for those students that have been signled out by authoritites, there are forms of relief from removal that are available to students depending on the circumstances of each case. Stated another way, forign nationals who may be caught in this mess have the ability to fight for thier right to remain in the United States, but each person will require a different approach depending upon the educatiton, employment and family relationships of each person.

Continue reading "Department of Homeland Security Alleges Massive Immigraion Fraud at Tri-Valley University " »

is With a new, more conservative congress now in power, many ideas for restricting immigration are expected to be proposed in the 112th congress. The American Immigration Lawyers Association has recently compiled a list of the hot button immigration issues that will most likely be introduced in the house in the upcoming term. Below is a brief explanation of the types of laws that may be proposed in the next two years.

Emphasis on Border and Interior Enforcement: Bills appropriating additional funding for boarder security, including the southern border fence, as well as funding for mass deportations, are likely to be proposed.

Mandatory Employment Verification: There will likely be legislation proposed that would make the E-Verify, electronic employment verification, system of checking an employee's ability to work under the immigration laws mandatory for all employers.

Restrictions on State-Issued Identification Cards--the REAL ID Act: Aspects of the post 911 REAL ID Act, passed by congress to create a unified system of state ID and drivers licenses will become effective in 2011. In additional, expect to see legislation proposed that would decrease the types of immigrants eligible for state IDs even further than the REAL ID Act mandates.

State and Local Authority to Enforce Immigration Law: An increase in the amount of legislation passed by state and local governments that require local police to enforce immigration laws is highly likely.

Punitive Enforcement Approaches: Efforts to increase the penalty for presence in the United States without a lawful immigrant status, including criminalization of illegal presence, are likely to be introduced.

Limits on the Opportunity for a Fair Hearing and Due Process: Review of immigration cases and appeals by the federal court system is likely to be attacked.

Attacks on the 14th Amendment: The continued prevalence of mean spirited and irresponsible legislation aimed at reducing the protections of the 14th amendment in a misguided attempt at assailing the mythical "anchor baby" is expected to continue.

Restrictions on Legal Immigration That Hurt Families: Attempts at replacing the family based and employment based avenues of legal immigration with some sort of points system, whereby the government would choose the attributes and skills that are most desirable for permanent immigration to America will be introduced.

Restrictions on Immigrants' Access to Public Services and Benefits: Legislation that would prevent access to social benefits, such as social security, which many immigrants pay into yet will never collect, is expected to be proposed.

English-Only Proposals: Legislation perpetuating lingual ignorance and the disenfranchisement of non-English speaking people is likely to be suggested.

Looking at the types of legislation listed above, it easy for those who are in favor of just and well reasoned immigration reform to become dissuaded. However, legislative gridlock giveth and also taketh away. Due to the divisions of political philosophy between the house, senate and the office of the president, not much of the above legislation is likely to become law. However, Americans should be vigilant for the prevalence of nonsensical immigration legislation and remain prepared to persuade our representatives and neighbors that unfettered legislation if the above referenced varieties would make for horrible public policy

Seeking to strike the "right balance" in the continual struggle between the freedom of commerce and public protections, President Obama has signed an executive order which mandates that all regulations be examined for internal conflict and cost efficiency. Columbus Immigration lawyers hope that the examination of regulations extends to titles 8 and titles 29 of the code of federal regulations which deal with aliens and nationality as well as labor. Employment based immigration regulations provide ample red tape for such a review of administrative law for efficiency. Perhaps the federal government could start striking a better "balance" by removing some of the restrictions from the H-1B and PERM programs which in many cases set up unnecessary barriers to the American dream for the world's most highly educated professionals. Immigration lawyers can only "hope" for such a "change."

Beginning January 10, 2011, the U.S. Embassy and Consulates will process visas differently. Under the new procedures, most applicants will go to Applicant Service Centers (ASCs) prior to their consular section interview. The ASC staff will collect the applicant's biometric information that will be reviewed by the consular section prior to the applicant's interview. ASCs will be located in buildings separate from the U.S. Embassy and Consulates. This may affect clients located in Columbus, Ohio who may wish to bring their loved ones to the U.S. on an immigrant visa (green card) or nonimmigrant visa ("temporary" or "tourist").

Earlier this week the US Consulate at Mumbai reported that persons filing for Employment Based Permanent Residency in the Second Preference, or the EB-2 preference category, were current. This erroneous report gave false hope many persons from India who hold master's degrees, have endured the PERM process and are currently waiting for a visa to be made available to them. It is unfortunate that a US Consulate would report such a drastic progression of the priority date only to later disappoint the many thousands of people who have waited so long to adjust to Green Card Status.

Just to clarify, the Mumbai consulate's report of current visa availability for persons in the EB-2 preference category was in error. Foreign nationals from India who are waiting for a visa to be made current under the EB-2 preference category must have a priority date of May 8, 2006 in order to file for adjustment of status to Lawful Permanent Resident or Green Card status pursuant to the February 2011 Visa Bulletin.

As leading Columbus, Ohio Immigration Lawyers, we are proud to be the first to announce that officers from the Department of State Kentucky Consular Center (KCC) are now making phone calls to H-1B visa employers. These calls are intended to corroborate information given in H-1B visa petitions with the employer themselves. Lawyers in Columbus, Ohio as well as around the nation are reporting that such phone calls are being made directly to H-1B petitioners even in instances where the petitioner is represented by an attorney. Recently, the US Department of State (DOS) has clarified some of the reasoning behind these phone calls

Why am I being Called by the Kentucky Consular Center?

The DOS has stated that officers from the Kentucky Consular Center will usually only call in a support role to the US Consulates around the world. When H-1B visas are adjudicated by consular processing, time and distance limits the amount of investigation that a consular post on the other side of the world can undertake when it has questions regarding the accuracy of H-1B documentation presented at the consular post. The DOS claims that such call can result in more rapid adjudications and may help to avoid unnecessary returns by foreign nationals to the consulate.

I filed a G-28, Shouldn't you be talking to my Immigration Lawyer Instead?
Under most circumstances the DOS must notify the attorney of record when it contacts a person or entity that is represented in a particular immigration matter. The Immigration Form G-28 is the document that signals to the DOS and the USCIS that a party is represented by counsel. However, the DOS has made an important designation between normal practice and the new practice of making phone calls to employers.

Specifically, the DOS is required to notify the attorney on record in matters that involve the status of an alien or of actions that the DOS will be taking in connection with an alien's case. What these phone calls are intended to do is to root out fraud. Investigating for fraud is designated as an investigation and in such cases no sharing of information is given to the attorney in advance or contemporaneously.

What should I do if I receive a call from the Kentucky Service Center?

Those H-1B visa petitioners that receive a phone call from the KCC can assume that they are being investigated for fraud. At such a point, there is a decision to be made. First, the petitioner can co-operate with the KCC and provide the information that is requested. This is the most desirable option as satisfactory answers will reduce further inquiry and hopefully result in the H-1B visa being approved at the consulate. The other option is to be uncooperative and not reply to the questions asked. This could have un-desirable consequences on the petition and the company as the DOS, the USCIS and the Department of Labor may take it upon themselves to investigate the matters of a company further.

It is best to be prepared. This means that a person or persons within the company should have a working knowledge of the wage, location of employment and other working conditions of the employee petitioned for. This person should also have a copy of the H-1B petition within access as a reference. Call from the KCC should be directed to only knowledgeable persons within the company. Such persons should answer the questions asked politely and directly. However such persons should limit their answer to the immediate question asked of them. Finally, the petitioner's lawyer should be contacted immediately upon receiving such an inquiry from the KCC.

Continue reading "Department of State Kentucky Consular Center Calling Employers Regarding H-1B Visas" »

Could it be that the worst is behind us? Columbus immigration lawyers are seeing a recent increase in H-1B increase in H-1B visa approvals and a decrease in requests for evidence notices issued in third party placement situations. While it may just be a coincidence that a few H-1B visa applications have not been approved without the draconian requirements imposed by USCIS adjudicators in requesting mounds of additional documentation last year, it is a rare occurrence for the USCIS to apply one standard to one petition and another, more rigorous standard to another petition. Assuming that the USCIS has decreased its unreasonable demands, below are a few explanations that come immediately to mind for this sudden change.

The USCIS is a self-funded agency

The USCIS is almost entirely self sufficient in its funding. The fees that are paid with visa petitions, including H-1B petitions, fund the USCIS operations. This year we have witnessed a drastic drop in demand for employment based H-1B visas. In fact, last year's H-1B visa cap of 65,000 visas has not yet been reached. If the USCIS does not receive as many visa applications, it does not make as much income. With the profit motive in mind, it is easy to assume that there is a profit motive behind a decrease in unreasonable demands by the USCIS.

The USCIS and Department of Labor have increased its screening and enforcement actions against employers who try to take advantage of the system.

Last year, the USCIS and Department of Labor instituted a system for tracking screening out fictitious employers by requiring all H-1B petitioning employers prove their existence through the I-Cert system. Only employers with a valid FEIN, Federal tax identification number are permitted to submit H-1B applications. This means that only real, tax-paying companies may file for H-1B visas. Introducing a more stringent requirement on the front end of H-1B visa applications may have resulted in the decrease in need for the USCIS to harass a business on the back end of the petition process.

There have also been increases in LCA enforcement activities by the Department of Labor (DOL) whereby the DOL will visit a petitioning employer's place of business to ensure that wage and hour attestations made in the H-1B visa petition are being carried out in reality. I would not surprise me if such visits became an even more common occurrence. Keeping this in mind, businesses and attorneys should pay more attention to public inspection files and documentation of working conditions and wages that could be trouble if the DOL conducts a search of business records.

New I-129 Forms have reduced the need for ancillary documentation

As of December 23, 2010, H-1B visas are to be filed on new versions of the I-129 immigration form. The new I-129 forms require disclosure of third party placement and other significant attestations that were not made in previous versions of the form I-129. Perhaps these forms have helped the USCIS streamline the adjudication process.
Greater Sharing of Information across the USCIS Intranet
The USCIS has also increased its efforts to unify the information available across its many different databases into a format that is easily searchable for immigration officers. Perhaps the officers can now answer their own questions about a petitioning company or alien by accessing USCIS files and discovering that an issue had been addressed in a previous H-1B petition or case involving the same party or parties.

The Possible Dawn of a New Day

While it is too soon to be certain, we may be experiencing the dawn of a new period in H-1B adjudication where the facts of each case are judged fairly and efficiently, without undue harassment or visa denial and the accompanying uprooting of tax-paying, college educated aliens who have been living productive lives in the United States for years with their families. Or maybe the USCIS was feeling the holiday spirit as of late. Either way, the apparent ease on the requirements of unnecessary documentation is a welcome relief for the good businesses and good people who utilize the H-1B visa.