Immigration Visa Lawyer Blog

Miriam Mendiola-Martinez, a foreign national of Mexico, filed a lawsuit in Arizona last week against Maricopa County Sheriff, Joseph M. Arpaio alleging that she was mistreated while she was pregnant as an inmate in the Sheriff's jail. She was six months pregnant when she was arrested in 2009 on charges of identity theft. The suit states that her Eighth and Fourteenth Amendment rights were violated by the MCSO's infliction of cruel and unusual punishment, deliberate indifference to her serious medical needs, and disparate treatment. The lawsuit alleges that MCSO and Maricopa Medical Center's unconstitutional policies, practices, acts and omissions, Ms. Mendiola-Martinez suffered immediate and irreparable injury, including physical, psychological and emotional injury and risk of death.

According to the lawsuit, Ms. Mendiola-Martinez was undernourished at the jail due to what jail staff called a "special" pregnancy diet. These pregnancy meals consisted of items such as two slices of bread, two slices of cheese or ham, undistinguishable cooked vegetables, and an occasional piece of fruit. She was also given two small cartons of milk per day. This hardly seems to be enough food for a pregnant woman eating for two.

She was taken to the Maricopa Medical Center by MCSO officers when she began to go into labor. Ms. Mendiola-Martinez gave birth to her son via Cesarean section, and she was not allowed to nurse or even hold her son after he was delivered. Officers put shackles on her feet before and after the surgery, and she was shacked to the hospital bed. Wearing only a hospital gown, Ms. Mendiola-Martinez was forced to walk through the hospital, with her hands and feet shackled. She began to bleed and could do nothing about it. She was not provided with a breast pump to safely and hygienically remove the breast milk she produced while she was separated from her infant son.

When she was discharged from the hospital, Ms. Mendiola-Martinez was not given a wheelchair to assist her, even though she was in great pain and could hardly walk. A deputy took her so quickly from the hospital that she did not receive her pain medication and discharge paperwork. A deputy then chained Ms. Mendiola-Martinez again and forced her to walk back to the nurse's station. Then, while shackled at her hands and ankles, with a bleeding surgery wound, Ms. Mendiola-Martinez was returned to the Estrella Jail.

About September 2008, the Maricopa County jails lost their accreditation from the National Commission on Correctional Health Care. On October 22, 2008, the Honorable Neil V. Wake found that the food given to inmates in the Maricopa County Jails constituted "current and ongoing violation of pretrial detainees' federal right to adequate nutrition."

On December 15, 2011, the United States Department of Justice issued the findings of the investigation it began in June 2008 in a letter addressed to Maricopa County Attorney William Montgomery. In that, letter, the Justice Department stated: "MCSO operates its jails in a manner that discriminates against its limited English proficient ("LEP") Latino inmates. Specifically, we find that MCSO, through the actions of its deputies, detention officers, supervisory staff, and command staff, routinely punishes Latino LEP inmates for failing to understand commands given in English and denies them critical services provided to the other inmates, all in violation of Title VI and its implementing regulations." The Department of Justice also noted: "MCSO fosters and perpetuates discriminatory police and jail practices by failing to operate in accordance with basic policing and correctional practices and by failing to develop and implement policing and correctional safeguards against discrimination in such areas as training, supervision, and accountability systems."

An Ohio federal judge denied a request by convicted Nazi war criminal John Demjanjuk for renewed U.S. citizenship last week, citing false and inconsistent statements by Demjanjuk about his whereabouts during World War II. The new citizenship claim was based on supposedly "newly discovered" documents, according to the Associated Press, including some that allegedly called earlier documents used against Demjanjuk into question. Judge Dan Aaron Polster, however, looked at Demjanjuk's admittedly false statements in earlier visa and immigration applications, writing that Demjanjuk has never given a "single, consistent accounting of his whereabouts" during the war.

Demjanjuk was born in 1920 in Kiev, in what was then the Soviet Union. He first emigrated to the United States in 1952, gaining citizenship in 1958. After Holocaust survivors identified him as a guard at the Treblinka and Sobibor extermination camps known as "Ivan the Terrible," the U.S. deported him to Israel. He stood trial for crimes against humanity and was sentenced to death in 1988, but the sentence was overturned in 1993 because of evidence of possible mistaken identity. Specifically, some evidence suggested that, while he was a prison guard, he was not "Ivan the Terrible."

He returned to Ohio, but faced further charges in 2001, this time alleging that he served as a guard at two camps in Poland, Sobibor and Majdanek, and one in Germany, Flossenburg, during the war. After a lengthy legal process, he was deported to Germany in 2009 for his trial. A German court convicted him in May 2011 of being accessory to the murder of 27,900 Jews in those prison camps. He received a five-year prison sentence, which is suspended while he appeals.

The 91 year-old Demjanjuk currently resides in a nursing home in Germany, where he has suffered from poor health for years. Since losing his U.S. citizenship, he has been unable to leave Germany. He has steadfastly denied the charges of war crimes made against him. Among the new evidence he presented to the Ohio court is a supposedly secret FBI report from 1985 that claims a Nazi ID card naming him as a camp guard was actually a Soviet forgery. The FBI agent who prepared the report has stated that it was based solely on speculation. The key issue for the judge was Demjanjuk's history of false or misleading information regarding where he was and what he was doing between 1942 and 1945, at the height to both World War II and the Holocaust in Europe.

Continue reading "Citizenship Denied by Ohio Judge for Convicted Nazi" »

The "Self Check" program, part of the U.S. Citizenship and Immigrations Services' (USCIS) E-Verify system, allows immigrants to check their own eligibility for employment through an online database. Now available in limited areas, including Ohio, USCIS recently announced that it will soon make the service available around the country. It is also requesting feedback from people who use the program

The E-Verify program itself allows employers to compare information provided by an employee on a Form I-9 to a database maintained by DHS. Employees have had little to no involvement with E-Verify itself, since employers mainly accessed the service. Errors or discrepancies in the database sometimes caused problems for employees, as otherwise employable immigrants appeared in the database as lacking employment authorization for one reason or another. USCIS says they launched Self Check in part to combat this problem.

USCIS launched Self Check on March 21, 2011 as a means of improving the efficiency of the E-Verify program by allowing immigrants and job applicants to access their employment eligibility information directly. The system also gives people an opportunity to spot errors in their records and work to correct inaccuracies, particularly discrepancies between records kept by the Department of Homeland Security (DHS) and the Social Security Administration (SSA). Errors in federal immigration databases can cause all manner of problems ranging from inaccurate records of employment eligibility to mistaken imprisonment. USCIS has issued assurances that all personally identifiable information will be secured and not misused.

The program was first available in five states and the District of Columbia. It is currently available in twenty-one states. USCIS states that that over 50,000 people have used the service since it launched. It hopes to expand to all fifty states within the next few months.

People can access Self Check by first entering identification information on the website, such as name, address, or date of birth. The service then asks users to confirm their identity with questions from a third-party verification service. These may be similar to questions used in online credit report services. Users then provide a social security number or Alien Registration Number to access database records. Self Check will search through databases maintained by DHS and SSA. It will also provide users with information on how to contact SSA and DHS to resolve errors or inconsistencies in database entries.

Continue reading "USCIS's "Self Check" Program Will Soon Go Nationwide" »

Police in Georgetown, Ohio arrested three men for suspected trafficking of controlled substances, as reported by the Maysville Ledger Independent. All three men were charged with felony counts of drug trafficking and drug possession. Two of the men were released on bond. The third man, a 32 year-old gas station manager named Yogesh Patel, remains in custody. Police reportedly determined that he is an undocumented immigrant and placed a detainer on him. This means that he cannot be released from custody until his case is reviewed by federal immigration authorities. Once his criminal case is resolved, county authorities intend to turn him over to Immigration and Customs Enforcement (ICE).

ICE and the Department of Homeland Security (DHS) may issue detainers to local law enforcement requesting them to hold an individual for a period of time so that they can review the person's immigration status and, if necessary, take custody. This period of time does not begin to accrue until after local law enforcement no longer has need to hold the person. A person could therefore post a bond and still be subject to detention by ICE. Typically, ICE has 48 hours to take custody of a person once they have posted bond locally, or else the person must be released. If ICE takes custody of the person and decides to seek removal, they may not allow a bond. People may find themselves forced to post bonds to both local law enforcement and to immigration authorities.

Immigration detainers have begun to affect an increasing number of U.S. citizens, according to a recent report in The New York Times. DHS and ICE have expanded the Secure Communities program, which aims to integrate local law enforcement with federal databases of suspected immigration law violators nationwide by 2013. Local law enforcement officials participating in the program check fingerprints of everyone booked into jail against DHS databases. Flaws in these databases' records have reportedly led to a number of false positives, causing local authorities to hold citizens wrongly identified as suspected undocumented immigrants, sometimes for long periods of time.

ICE officials assert that, as they lack the legal authority to detain U.S. citizens, they give "immediate and close attention" to anyone who claims they are a citizen. ICE has announced that it is revising its detainer forms to require local law enforcement to inform suspects of their immigration holds. The agency also says it plans to offer a hotline giving detainees direct telephone access to ICE.

Continue reading "Ohio Businessman's Arrest Leads to a Hold by Immigration Officials" »

A class action lawsuit was filed last week against US immigration agencies on behalf of many asylum applicants who were wrongly denied work authorization, A.B.T., K.M.-W., G.K., L.K.G., D.W. v. USCIS; EOIR (Case No. 2:11-cv-02108 A.B.T). The nationwide lawsuit was filed by the American Immigration Council's Legal Action Center (LAC) against the U.S. Citizenship and Immigration Services (USCIS) and the Executive Office for Immigration Review (EOIR) in the United States District Court in Seattle. The suit alleges that the USCIS and EOIR delays violate the Constitution, federal statutes, and governing regulations.

Asylum seekers are not eligible for work authorization during the 180-day period after the application is filed. But according to federal law, asylum applicants are to be granted work authorization after the application has been pending for 180 days. Due to unlawful and unfair practices and policies, U.S. immigration agencies have prevented asylum seekers from obtaining work authorization after the 180-day waiting period has elapsed. For example, one named plaintiff in the lawsuit is a man from China who filed his asylum application in 2003, and he has been pursuing work authorization for years without success.

In calculating the 180-day period, the USCIS relies on immigration judge determinations who work for the EOIR, which results in arbitrary policies on when the 180-day "clock" should start and stop. This, along with the increasing backlog in U.S. immigration courts, has unlawfully prevented asylum seekers from working. According to the lawsuit, these unlawful policies and practices prevented asylum applicants from obtaining work authorization and forced them to rely on the goodwill of others to support themselves and their families while they await decisions on their asylum applications, and this process can take many months and sometimes years.

The 180-day period (or "asylum EAD clock") may be suspended, but only for applicant-requested or caused delay of the adjudication of their asylum application, according to the lawsuit. USCIS and EOIR policies result in EAD clocks being arbitrarily started and stopped, and even permanently stopped in some cases. Many asylum seekers have not received adequate notice that their EAD asylum clocks have stopped, and they are consequently deprived of a meaningful opportunity to remedy these determinations.

Continue reading "Class Action Lawsuit Alleges Asylum EAD Clock Is Unfair" »

A campaign led by U.S. Citizenship and Immigration Services (USCIS) intends to educate immigrants, both documented and undocumented, regarding common scams purporting to be legitimate immigration services. The Unauthorized Practice of Immigration Law Initiative began in seven U.S. cities including Detroit, and includes advertisements and printed materials in both English and Spanish. Its website has educational materials available in at least fourteen languages. The USCIS has partnered with the Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE), the Federal Trade Commission (FTC), the Department of Justice (DOJ), and the Board of Immigration Appeals (BIA) for this campaign. They are also engaging state and local agencies to improve communication and facilitate enforcement of laws prohibiting immigration scams.

USCIS offers a list of common scams targeting immigrants. People using the title "Notario Publico" sometimes rely on a difference in the meaning of that title between the U.S. and Latin American countries in order to lure immigrants from those areas. A "notary public" in the U.S. has basic authority to witness signatures and administer some oaths. In some parts of Latin America, the title refers to someone with lawyer-like credentials and authority, leading some immigrants to incorrectly think they have the authority to render legal services.

Some sophisticated scammers set up websites offering guidance on immigration paperwork with URL's closely resembling official sites. The sites often directly copy design elements of government websites. The telltale sign of a scam website is a fee to download official immigration forms. All official forms are available for free on USCIS's website.

A particularly damaging type of scam involves the Department of State's diversity lottery, which makes 50,000 visas available each year to certain people from countries with low immigration rates. Scam services may claim to be able to help improve someone's chances of being selected in the lottery. Ohio's chapter of the League of United Latin American Citizens (LULAC) issued a warning regarding Ohio-based scams targeting applicants for the diversity lottery.

Another scam that may seem obvious to immigration attorneys can ensnare people who do not know about the many changes to federal immigration agencies over the past decade. Scammers claiming to work with the Immigration and Naturalization Service (INS) may prey on immigrants. The INS has not existed since 2003, when it became part of DHS and its functions were divided between USCIS, ICE, and other agencies.

Continue reading "Officials Launch Campaign to Raise Awareness of Immigration Scams" »

The U.S. Supreme Court, at the request of Arizona governor Jan Brewer, has granted certiorari to an appeal in a lawsuit by the federal government challenging Arizona's controversial 2010 immigration statute. By agreeing to hear the case, the Court is putting the issue center stage in its docket for a presidential election year. It will likely hear oral argument in the case in April 2012, and should issue a decision next summer.

Governor Brewer signed the Support Our Law Enforcement and Safe Neighborhoods Act into law on April 23, 2010. The law requires law enforcement to check a person's immigration status in certain situations, and it empowers police to detain and arrest a person without a warrant if they have probable cause to believe the person is undocumented and has committed an offense that would make them removable from the U.S. It places a considerable amount of responsibility on state and local law enforcement for enforcing immigration laws, which are set exclusively at the federal level. Supporters of the law say it is necessary to combat crime and other problems resulting from increased levels of illegal immigration into the state, and to make up for the federal government's purported inaction in enforcing its own laws. Critics point out the lack of guidelines as to how law enforcement makes determinations as to who might be undocumented. Racial profiling and harassment of Hispanics and other minority group, they argue, are the inevitable results of the law.

The Obama administration, for its part, has announced a policy of focusing immigration enforcement efforts on people with serious criminal histories and people who pose a clear threat to national security. People who have lived in the United States for a long period of time and have generally followed the law are deemed low-priority under this policy. Arizona's approach of potentially treating everyone as a possible undocumented immigrant is at odds with the White House's policy. The U.S. Constitution specifically gives Congress power over setting immigration policy, and the federal government has long had primary control over immigration law.

The U.S. Department of Justice filed suit in the U.S. District Court for the District of Arizona on July 6, 2010 challenging the constitutionality of the Arizona law, seeking an injunction preventing its enforcement, and requesting an order holding that federal immigration law preempts the Arizona statute. The U.S. requested a preliminary injunction, which a federal judge granted on July 28. Arizona requested and obtained an expedited appeal to the Ninth Circuit. The appellate court issued its ruling on April 11, 2011, in which it upheld the trial court's injunction. An appeal of the Ninth Circuit's ruling will now go to the U.S. Supreme Court.

Continue reading "Supreme Court Will Consider Controversial Immigration Law" »

An Ohio business owner received a nine-month prison sentence from a federal district judge in Dayton last month, according to a press release from Immigration and Customs Enforcement (ICE). The man, 47 year-old Amarnath Trichy, was accused of filing false labor certification applications and employment-based immigration petitions for non-existent jobs with a fictitious company. His legitimate business, Recursive Technologies, Inc. (RTI) apparently developed a software project in 2005, called MEDBPO, intended to produce software to maintain electronic patient medical files. The company was never actually established, but Trichy reportedly filed multiple documents with the U.S. Department of Labor on behalf of MEDBPO beginning in 2005, and continuing for about five years, certifying a need for immigrant workers for positions U.S. citizens could not fill.

The first step for an employer in bringing a foreign worker to the United States, with the intention of obtaining legal permanent resident status, is to apply for "labor certification" from the Department of Labor. The employer must certify that, after a reasonably extensive recruitment process, it cannot find suitable U.S. workers for the position. The immigrant worker must not displace available U.S. workers by law. The wage offered to the immigrant must also meet certain standards set by the Department of Labor, as a means of trying to prevent immigrant labor driving down wages for other workers. The employer must demonstrate that it is financially sound enough to pay the proposed wage.

Officials alleged that Trichy would interview applicants for non-existent jobs with MEDBPO, and would demand payment of $1,500 to $2,000 from job applicants in exchange for assistance with their visa petitions. He filed as many as 248 petitions with the Department of Labor, and U.S. Citizenship and Immigration Services (USCIS) approved at least 26 visas for immigrant workers for his company.

The Department of Labor's Office of the Inspector General investigated irregularities in Trichy's case, along with ICE's Homeland Security Investigations (HSI) division. Federal officials charged Trichy with fraud and misuse of official documents. He pleaded guilty to one count on December 14, 2010. The judge in the Dayton federal district court issued his sentence on November 1, 2011.

Federal criminal statutes treat the offense of "fraud and misuse of visas, permits and other documents" very seriously. The federal criminal code makes it a crime to knowingly forge or falsify any official immigration document. Penalties vary based on the defendant's intent. The statute sets aside a specific penalty of up to five years' imprisonment for fraudulent acts committed as part of a plan to unlawfully employ immigrant labor.

Continue reading "Ohio Business Owner Sentenced to Prison for Employment-Based Immigration Scam" »

The Department of State Visa Bulletin took a giant leap today, advancing nine (9) months for the EB-2 preference category for persons from India and China. As it stands now, people from India and China who have a priority date of January 2009 or sooner will be able to file for their adjustment of status. This is great news for those who have been waiting with approved I-140 documents in the EB-2 preference category.

For all of the advancement in the EB-2 category, there was relatively little advancement in the EB-2 categories. If this trend continues, thousands of more EB-2 beneficiaries could be eligible to adjust in the coming months. Persons holding approved I-140 documents in the EB-3 categories may want to consider taking action to obtain a labor certification under the EB-2 preference category to take advantage of these developments.

Continue reading "January 2011 Visa Bulletin Takes a Giant Leap Forward" »

A California man recently went from a bicycle ride in Livermore to a bus trip to Mexico in only a few days, thanks to the Secure Communities program. The Contra Costa Times tells the story of Eduardo Lopez-Reynoso, a Mexican immigrant who was stopped by police in late October after he ran a stop sign on his bicycle. A mere five days later, federal agents from Immigration and Customs Enforcement (ICE) dropped him on the far side of the Mexican border.

Secure Communities, a program initiated by the Obama Administration, puts local law enforcement at the forefront in enforcing federal immigration laws. The program allows sharing of biometric and other identifying information between local law enforcement databases and databases maintained by the FBI and the Department of Homeland Security (DHS). The program is intended to allow efficient removal of violent criminal immigrants, repeat immigration offenders, and others deemed the "worst of the worst" by the government.

Lopez, as an example of the implementation of the program, reportedly does not fit the general notion of the "worst of the worst." While he had a history of drug-related arrests, he had never been more than a nuisance to local police. He falls somewhere between the "worst" and the rest of the immigrant population, many of whom may nevertheless get caught up in Secure Communities' dragnet. Local law enforcement apparently rarely stay involved, or even informed, regarding cases referred to the system. ICE does not offer any breakdown of their arrest and deportation records based on specific criminal convictions. There is therefore no way to know how many immigrants ensnared by this program are truly dangerous criminals and how many are not.

Implementation of Secure Communities in Ohio has been gradual. Counties generally opt in to the program, according to ICE press releases. ICE last announced the new involvement of Ohio law enforcement in June 2011, when it announced that seven Ohio counties had begun participating in the program: Auglaize, Carroll, Columbiana, Erie, Holmes, Medina and Mercer. They join other counties who had already opted in.

Continue reading "Deportations Speed up with the Secure Communities Initiative" »

With the rise of H-1B visa audits, H-1B visa site visits and Labor Condition Application (LCA) investigations, the US Department of Labor (USDOL) Wage & Hourly Division (WH) is becoming more veracious in prosecuting employers suspected of violating LCA regulations. In this escalated enforcement environment, an immigration lawyer defending employers in H-1B visa audits must be a seasoned litigant. Having fiercely defended H-1B visa audit cases during the past several years, I can speak with authority on the subject. It is my belief that once an investigation is launched against an employer, the USDOL will rarely agree to walk away empty handed unless forced to do so by vigorous and aggressive litigation. H-1B visa dependent employers are more vulnerable and stand to receive more scrutiny as well as WH determinations carrying higher fines and back wages.

Some of the employer practices which I commonly see causing the launching of H-1B visa audits include benching of employees, paying employees "per diem" compensation instead of payroll, failing to file a new LCA once the employee changes employment, and failing to pay the employee after the H-1B visa petition is approved.

Whether the employer likes it or not, she might find herself suddenly facing an LCA or H-1B visa investigation process that may later lead to litigation and a potential financial liability as well as debarment from using the H-1B visa program. These consequences might very well bring the entire business to a lethal downward spiral. What I find as a common denominator in all H-1B visa audit cases I defended is that the employer is culpable to variant degrees. That is to say, there are usually issues that cause concern for employers once they undergo such a process. Hence, once the employer becomes subject to an H-1B visa audit or LCA investigation process, the USDOL will most likely find infractions and deviations from the LCA regulatory requirements somewhere in the employer's system. Perhaps such frequent incidence of employer deviation is caused by complex, and often conflicting, record keeping and reporting directives of the H-1B visa process vis-à-vis the realities of today's marketplace requirements.

Weakening the USDOL's Case

Hence, with such a high number of employer infractions and increasing H-1B visa audits, my job as an immigration lawyer is to preserve the employer's business from possible extinction and damage management. In my H-1B visa audit defense work, I am seeing back wages and penalties in the hundreds of thousands of dollars. I have found the best strategy for H-1B visa audit defense is to slowly and surely chip away at the government's case by engaging in a deliberate process of evidence elimination using advanced litigation strategies and tactics. The competent immigration lawyer must examine all pieces of evidence available to the USDOL and seek all possible ways to discredit or eliminate each such evidence entirely, thereby forcing the USDOL to return to the negotiating table. When the USDOL is faced with a weaker case, they will have a great incentive to settle the H-1B visa audit case with a much smaller dollar amount. It is only with such aggressive and vigorous litigation advocacy will the employer survive an H-1B visa audit case without having to close its doors for business, as often happens.

The Initial Investigation Stage

The H-1B visa audit process normally undergoes three main stages, namely, the LCA investigation process, the pretrial WH litigation process, and the trial before an Administrative Law Judge. At various steps in these stages, the employer is confronted with a myriad of allegations and legal issues that require careful handling. Mismanaging the employer's case from the outset of the process could increase the employer's liability. For instance, giving the WH investigator more evidence than requested by the initial investigation letter could increase the employer's liability.

Obviously, the best possible scenario for the employer is to survive the first stage in the H-1B visa audit process, namely the WH investigation process, without having to resort to a hearing. The initial LCA investigation process could be as short as a few months or as long as a couple of years. Often times, the investigation process ends up with the issuance of a "determination letter" signed by the WH Administrator setting forth the back-wages and penalties levied against the employer. The employer must remember that the WH investigator has little authority to settle the case at that point and has an absolute 15 calendar days to request a de novo review of the WH Administrator's determination before an Administrative Law Judge.

Continue reading "H-1B Audit Defense Requires Immigration Lawyer to be Litigation Savvy " »

Alabama's controversial immigration law, passed earlier this year, invited yet more scrutiny several weeks ago when police arrested a German businessman. Police pulled the man over just outside Tuscaloosa on November 16. He was driving a rental car that did not have tags, and he only had a German ID. Since Alabama's law requires police to investigate the immigration status of people involved in traffic stops, they arrested him. The man turned out to be a Mercedes-Benz executive visiting the company's 3,400-employee plant in Tuscaloosa.

The Mercedes-Benz plant is one of Alabama's great success stories of the past few decades. The company's 1993 decision to open the Tuscaloosa facility paved the way for similar plants by Honda, Hyundai, and Toyota, according to Bloomberg News. Mercedes-Benz itself described the arrest as "unfortunate" and declined additional comment. The incident has fed a growing sense among Alabama business leaders, some would say finally, that the law does more harm than good for the state's economy.

In other parts of the state, leaders are already sensing that the law is driving away not only workers, but investors and foreign employers. In March of this year, Golden Dragon Precise Copper Tube Group, a Chinese manufacturer, announced its intention to build a $100 million factory, employing at least 300 people, in Thomasville, Alabama. The company has now hinted that it will consider other offers elsewhere, which has Thomasville's mayor scrambling to do damage control. Other states are even trying to woo Mercedes-Benz and other large companies away from Alabama.

State leaders claim they intended the law to deter undocumented workers and increase the number of available jobs for unemployed Alabamans. Alabama is already very low on the national scale of economic strength and employment rates, and the new law has shown no signs of improving that. Fields of crops lay rotting because the people with experience working those fields either stayed away for fear of arrest or fled the state entirely. Small businesses in small towns and big cities alike across the state told a New York Times reporter that business was significantly down as their regular customers vanished.

Continue reading "Alabama Immigration Law Shows More Unintended Consequences After Arrest of German Businessman" »

The process of priority date advancement in the visa bulletin, is a matter of mystery to the immigration community. Immigration lawyers wish they have a crystal ball with which they can advise clients when their I-485 applications can be filed. Immigrants are always apprehensive about their green card applications and they do not know when their priority dates might become current. For certain Indian and Chinese nationals, the wait can be daunting. The US Department of State has recently made predictions regarding priority date advancement for Indian and Chinese nationals. This article provides a summary of these predications.

It is important for Chinese and Indian EB-2 petitioners to file their I-485 applications in the first month of visa availability. Moreover, it would be wise for Indian nationals in the EB-3 category to take the steps necessary to file an EB-2 petition due to the long wait in priority dates. Priority dates will be advanced significantly for category EB-2 nationals of India and China but EB-3 category dates will remain stationary, according to the Chief of the Visa Control and Reporting Division of the Department of State, Charles Oppenheim.

For nationals of India and China in the EB-2 category, Mr. Oppenheim predicts that over the next few visa bulletins, priority dates could advance eight months by February 2012, then remain stationary through June 2012 when there is a possibility of retrogression. Mr. Oppenheim explained that retrogression is necessary to make sure that all the visa numbers are used before 9/30/12, otherwise they would be lost forever.

Priority dates are predicted to stay the same during 2011 for nationals of India in the EB-3 category, advancing only one month from December 2011 through June 2012. This is because India is limited to only 3,000 EB-3 based green cards per year and the queue is estimated at 210,000. If this were to remain, a 70 year wait is conceivable. There is legislation pending that could eliminate this limitation, which would cause priority dates to advance.

For nationals of China in the EB-3 category, priority dates are predicted to advance about three weeks per month during 2012, which would mean an advancement of four months between December 2011 and June 2012.

The prediction for the rest of the world is that EB-2 priority dates will remain current in 2012, and the prediction for the EB-3 is that dates will advance about four weeks per month, moving ahead almost six months between December 2011 and June 2012.

Mr. Oppenheim explained that priority date predictions are hard to make because the number of people in the queue is difficult to estimate due to the unknown number of spouses and minor children who will apply for a visa number with each foreign national.

Continue reading "Department Of State Makes Predictions Regarding EB-2 and EB-3 Priority Dates For India and China" »

The H-1B Visa category for specialty occupation workers offers many foreign nationals and American companies a great opportunity to engage in a mutually beneficial working relationship on a temporary basis. Thousands of highly skilled professionals and specialists from around the world have utilized the H-1B visa for their personal benefit, for the benefit US employers and to the benefit of the US economy in general. However, in recognition that unscrupulous US employers could potentially take advantage of an immigrant's desire to work in the United States, Congress placed various safeguards and mandated certain duties that H-1B employers must adhere to, or risk liability for back wages and penalties. Below, I will discuss the employer's responsibility to pay the higher of the prevailing wage or the actual wage to H-1B workers under Federal Law.

Continue reading "H-1B Visa Violations: Employee's Rights, Employer's Responsibilities" »