Immigration Visa Lawyer Blog

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 " »

US Citizenship & Immigration Service announced this afternoon that it has received sufficient H-1B visa petitions to reach the annual numerical quota for this federal fiscal year. The announcement came one day before the Thanksgiving holiday while Immigration lawyers nationwide were scrambling to file last minute H-1B visa petitions. Our own law firm attorneys had planned to work through the holiday weekend to meet the demands of our clients when the news was released thereby bringing H-1B visa petition filing this year to a screeching halt.

Our law firm had performed a statistical and progression analysis and announced in our newsletter that the cap will be met by Thanksgiving this year. "We were right on the mark!!" said attorney Gus Shihab, founder and CEO of the Law Firm of Shihab & Associates. "our analysis were almost perfect in predicting when the H-1B visa cap will be reached this fiscal year."

We are now in federal fiscal year 2012; the H-1B visa quota was just met in November 2011. In comparison, federal fiscal year 2011 H-1B visa quota was met by January 2011 while federal fiscal year 2010 H-1B visa quota was met in December 2009. Hence, this year's H-1B visa cap announcement comes earlier than the last 2 years indicating a recovering economy since there is a strong correlation between H-1B visa usage and the employment of highly skilled US workers.

Is the H-1B Visa Numerical Cap Needed?

Congress instituted the H-1B visa cap limitation in order to "protect" US workers. The idea is that importing foreign nationals in highly skilled jobs could adversely affect the working conditions of Americans. This premise, however, has been unequivocally disproved by numerous studies which concluded that the employment of foreign nationals in Specialty Occupations (H-1B), has a positive impact on the country's innovations and advancement. Furthermore, the linear relationship between H-1B visa demand and a stagnant economy showed that as the economy slowed down, so did the number of H-1B visa petitions filed. Hence, employers were not racing to replace US workers with, as opponents claim, cheap foreign labor. To the contrary, when the US economy suffered, demand for H-1B visa workers was drastically reduced.

Since there is a strong correlation between innovation and H-1B visa workers, and since the employment of foreign nationals in H-1B visa status does not adversely affect American workers, it follows that the H-1B visa numerical cap stifles US innovation and technology.

The H-1B visa cap should be abolished.

The Department of State has issued its Visa Bulletin for December 2011. The new bulletin shows a five month jump in the priority date cutoff in the EB-2 category for foreign nationals born in India and China. Persons in this category with a priority date of March 15, 2008 or earlier are now eligible for immigrant visas. Because of the five month jump, some people in the EB-2 category are now current who may not have been expecting it. Others may be unaware completely. Persons with pending or approved I-140s in the EB-2 category should double check their priority dates and contact the Law Firm of Shihab and Associates with any questions about their current eligibility for lawful permanent residency.

Unfortunately, the EB-3 category for China and India born foreign nationals only advanced one month from the current priority dates in the November 2011 Visa Bulletin. The EB-3 category remains stagnant, with the backlog for Indian born persons now over nine years. Some people with labor certifications qualifying them for EB-3 classification may now have the requisite years of experience or an advanced degree allowing them to now pursue an EB-2 classification. Persons interested a possible "EB-2 upgrade" should contact the Law Firm of Shihab and Associates for a consultation to see if they qualify.

On May 26, 2011 the US Supreme Court ruled that Arizona's mandatory E-Verify law is constitutional and can go forward thereby requiring all businesses operating in the State of Arizona to use this federally created voluntary pilot system, on a mandatory basis. A month later, the Ohio Legislature introduced Senate Bill 286 which is an Arizona E-Verify copycat bill, purporting to also mandate Ohio businesses to use the E-Verify employment eligibility verification online system. This article will explain that the proposed Ohio E-Verify law is bad for Ohio's businesses and bad for Ohio's economy. The current E-Verify system is riddled with inaccuracies and a mandatory compliance law will cost Ohio employers and citizens millions of dollars in administrative overhead and down time.

The Arizona Case

The US Chamber of Commerce had sued the State claiming that federal immigration laws may not be enforced by any State and that such enforcement is exclusively reserved for the federal government. They cited the sweeping 1986 immigration reform which stripped the States from any ability to undertake any such enforcement actions. In reality, however, Congress did leave a clause in such laws allowing the states to legislate regarding "all licenses necessary to operate the business." It was from this narrow clause was that the State of Arizona able to successfully defeat the constitutional challenge to its E-Verify legislation.

In a 5-3 ruling, Chief Justice John Roberts wrote the majority opinion stating that Arizona had the authority to legislate enforcement provisions for its employment verification apparatus. "We hold that Arizona's licensing law falls well within the confines of the authority Congress chose to leave to the states and therefore is not expressly preempted," the Chief Justice ruled.

The Ohio Mandatory E-Verify Proposal

Ohio's E-Verify copycat legislation was introduced in the Ohio Senate on Wednesday June 29, 2011. Representatives Combs and Bubp introduced this bill, which would require all Ohio employers - both public and private - to use the E-Verify system in ensuring the employment eligibility of new hires. The bill also outlines provisions for filing complaints and sanctions for employers that hire illegal aliens, which include firing all such workers, revocations of business license as well as criminal liability for violators. As of the date of this article, this proposed law was not referred to committee.

Why Ohio's Mandatory E-Verify Program is Bad for Ohio's Employers

A Mandatory E-Verify law in Ohio would cost Ohio employers millions of dollars in administrative cost plugging in data in the federal E-Verify system. Many rural employers do not have the skills or the high-speed Internet connectivity to do so. Furthermore, in many small businesses that do not have an HR department, the compliance will fall on the shoulders of the owner of the business herself which is not practical.

Errors in the E-Verify system itself will cost 800,000 workers nationally to lose their jobs and $3.6 million to correct such errors according to government data. The loss of such workers in today's high unemployment reality is certainly bad news for Ohio's workers and their employers. Such government data suggest that the error rate in E-Verify are even higher for employers who have a higher percentage of immigrant worker population as is the situation in many sectors of the workforce including high tech. and agricultural, and construction jobs. Green card holders and recently naturalized foreign nationals are ten times more apt to be erroneously identified by the system as ineligible to accept employment. Hence, Ohio's proposed mandatory E-Verify system will have the unintended consequence of discriminating against such workforce.

The Congressional Budget Office estimates that a mandatory E-Verify system will decrease national tax proceeds by $17 billion over a decade. Ohio's share of such proceeds will proportionally decrease as a result. Immigration lawyers in Columbus and Ohio as a whole have voiced their objection to this proposed legislation and plan to testify in opposition. Please join us in opposing this ill advised proposal.

At a time when Ohio is trying to lift itself out of an economic rut, a mandatory E-Verify system seems to take us deeper and deeper in the hole.

The H-1B visa cap experience in calendar year 2011 has been a remarkable copycat performance of last year and the year before that. Unlike prior years where all cap-subject 85,000 H-1B visas were consumed in one day (April 1 or shortly thereafter), the last three years have shown a screeching slow down for H-1B visa usage with visas available well into Christmas and New Year's. This experience is shared by Columbus immigration lawyers alike. For instance, as of October 14, 2011, there remains more than 20,000 new H-1B visas available this federal fiscal year.

I have been closely monitoring the H-1B visa usage during the last three years and have noticed a remarkable similarity in the rate of its consumption. This is indicative of a stagnant economy and one where reliance on highly skilled foreign labor has decreased when compared to 2008 and prior years. An examination of the H-1B visa usage since July 2011, however, shows a stronger absorption rate than was experienced in the prior two years indicating a possible growth in certain industries which rely on highly skilled labor.

In July of this year, I had performed a statistical comparison between this federal fiscal year's consumption of H-1B visas to the prior year and concluded that a slower consumption of H-1B visas was reported earlier in the year but later weekly usage showed a slightly stronger consumption than the year prior. Now three months later, the rate of consumption for new H-1B visas is somewhat stronger than last year on a weekly basis. I predicted that H-1B visas will be consumed this federal fiscal year between Thanksgiving and New Year's. This projection continues to be true based on analysis of H-1B visa consumption this year.

Noticeable Rush for H-1B Visas After July 2011

In examining the rate of consumption this year, two patters emerge: one from April to July and another from July 2011 onward. The rate of consumption from April to July 2011 was more linear with approximately 700 to 900 new petitions received by the USCIS on a weekly basis. From July onward, however, the rate of consumption appears to have jumped to an exponential curve with an increasing rate of consumption weekly to 2300 H-1B visas between October 7 and October 14, 2011. Hence, there appears to be a rush to acquiring new H-1B visas as the year nearing to end. If you compare this rush to acquire highly technical labor against the overall US job growth, one certainly gets confused; the US has reported a disappointing zero job gain in the second quarter of 2011. But in examining employment data released by the US Bureau of Labor Statistics on October 7, 2011 covering the period ending September 30, 2011, one finds that there has been measurable growth in education, construction, healthcare, telecommunication, manufacturing and consulting services. Those industries grew by about 500,000 workers between August and September of 2011.

Continue reading "H-1B Visa Cap Predication and Update" »

Just about when the pre PERM filing prevailing wage determination processing times improved, we began noticing significant delays recently. As a way of background, employers wishing to sponsor a foreign national for an employment based permanent residence application in either the EB-2 or EB-3 categories regulations require such employers to make a formal prevailing wage determination request. Based on the news coming out of the US Department of Labor, such employers must now wait.

Background

Prior to January of 2010, all prevailing wage requests were determined by the State Workforce Agency ("SWA"). In some cases, SAWs were completely unreasonable in their computation methodologies and were quite arbitrary. Ohio for instance was one of the worst states in their computation methodologies. The Ohio Department of Jobs & Family Services located in Columbus, Ohio was the agency historically commissioned with the task of determining prevailing wages for all pre PERM filing application processes.

Ohio's prevailing wage determination process was later challenged in matter of Reed Elsevier, Inc., 2008-PER-00201 wherein Board of Alien Labor Certification Appeals agreed that the Ohio Department of Jobs & Family Services used an erroneous method of combining experience and educational requirements when computing prevailing wages; a methodology which was inconsistent with the regulatory provisions. For a decade prior to the issuance of the Reed case, our Columbus, Ohio Immigration Law Firm has challenged these determinations repeatedly and brought to the attention of various organizations the injustice brought about Ohio's arbitrary system.

Kudos to the lawyers who challenged the Ohio prevailing wage process; this challenge obviously did not help the thousands of employers who previously had been issued outlandish prevailing wage determinations by the Ohio SWAs use of erroneous methodologies. I might add that some employers faced with such unreasonable prevailing wage determinations may have been dissuaded from pursuing permanent residence for some of their employees.

Such inconsistencies prompted the US Department of Labor to centralize the prevailing wage determination process and took it away from the various State SWAs. The new re-engineered system was to be an on-line application process and it became effective January 2010. Initially the prevailing wage processing times were incredibly slow totaling 90 days in some cases. Eventually, the processing times became better down to 25 days. It is not clear now how long the prevailing wage determination process will take.

Processing Delays

The American Immigration Lawyer Association posted on its website this morning that several AILA members noted significant delays in the processing of prevailing wage requests in connection with a PERM application process. The US Department of Labor states that these delays happened as a result of a temporary halt in their operations in an attempt to comply with order of the US District Court for the Eastern District of Pennsylvania in CATA v. Solis, wherein the Court ordered the US Department of Labor to establish new H-2B prevailing wage regulations.

As the US Department of Labor issues regulations in connection with the H-2B visa program, employers wishing to process PERM applications must wait. I will post updates once they become available on the prevailing wage processing times.

If anything can be learned from the market's absorption of new highly skilled foreign labor in Specialty Occupation (H-1B) visas last year, is that these foreign nationals do not compete with US workers over the same jobs. Since numerous prestegeous studies corrolated innovation in America with the population of H-1B visa workers, the H-1B visa worker market absorption data is an indicator of how well the overall country is doing economically.

Even though the federal government made 85,000 new such visas available for the picking on April 1, 2010 (as it does every year), employers were slow to apply. For the first time in over a decade, all new specialty occupation, H-1B visas were finally consumed by January 21, 2011.

In prior years, all available visas were swallowed up voraciously by employers in a matter of hours when H-1b visas became available on April 1. Desperate employers could not fill open positions in information technology and all other highly skilled sectors fast enough; hence they resorted to importing these workers from other countries. But last year was different. Unemployment figures soared to double digits, a matter which the US had not witnessed for decades. Hence, if the H-1B visa worker market absorption experience last year tells anything, it says that employers were able to fill some of the available positions with US workers and/or that there were no jobs to fill.

Earlier this calendar year, pundits predicted an economic resurgence and that we are now on the brink of recovery. Hence a comparison between the 2011 and 2012 federal fiscal years' market absorption rates of H-1B visa workers should be a good indicator of the overall employment market and particularly the health of the technical employer sector.

One interesting phenomenon this fiscal year, is that by April 15, 2011 the USCIS reported receiving only 12,200 H-1B visa petitions , as compared to last year which was 7,200 more (19,400) for the same date. In other words, early indicators of the H-1B visa market usage this year showed potentially weaker absorption rate of foreign H-1B visa workers. Even with a lower starting point this year, however, the rate of weekly H-1B visa petitions filed since April 2011 is greater than was last year for the same period, indicating a stronger H-1B worker market absorption. For instance, last federal fiscal year, there were 16,900 petitions filed between April 15 and July 16 while this year, there were almost twice that many - 32,080 petitions filed in the same period. It is unclear why the initial filing numbers in April of this year were so much lower but certainly it is a much more robust year than last year for H-1B visa workers.

Moving forward, my prediction is that we will continue to have H-1B visas available well into the end of the year. Unless market demands shift, which they may very well do so as a higher number of weekly petitions filed occurred after July 2010 and continued to climb during the last quarter of the year, it is expected that the cap will reach between November 2011 and January 2012.

As the Democrats and Republicans of congress continue to negotiate a compromise to the federal budget that is set to expire Friday, April 6th, 2011 at midnight, immigration attorneys in Columbus, Ohio have turned their attention to how a government shutdown will affect the normal adjudication of visas. Visa applications, including employment based I-140 and H-1B petitions as well as family based petitions including I-130 and I-485 applications, filed in the United States are usually adjudicated at one of the USCIS service centers throughout the country. These service centers are staffed by immigration officers who adjudicate visa applications. These immigration officers are employees of the federal government and could be furloughed if the federal government shuts down for lack of congressional funding.

Historically, government shutdowns have resulted in delays for visa adjudication. The reason for the potential delay is based upon the wording of the federal Antideficiency Act. This law states that in the event of a governmental shutdown the only governmental employees that will be permitted to continue to carry out their work will be employees who prevent or respond to "emergencies involving the safety of human life or the protection of property." The law goes on to state that "ongoing, regular functions of government the suspension of which would not imminently threaten the safety of human life or the protection of property" are not to continue their operations during a shutdown. Officers who adjudicate visas at the service centers will most likely not be deemed essential to the protection of safety or property and will be furloughed. With no-one to adjudicate visas, visa applications will be backlogged to some extent. However, other aspects of United States immigration policy will continue to be enforced. Customs and border patrol officials, for example, should remain active.

While the chance of a government shutdown is small, it remains a definite possibility. Also, delays in US postal service operations could occur. Therefore, foreign nationals and attorneys should be cognizant of the potential for delays in the adjudication and delivery of visa petitions and applications to the USCIS service centers.

Continue reading "Government Shutdown Could Effect Visa Adjudications" »

Late last year, the US Citizenship & Immigration Service ("USCIS") announced that it will be implementing a new web enabled Specialty Occupation H-1B Visa Cap Registration system whereby the H-1B visa cap petitioners would register online prior to filing their H-1B visa cap-subject petitions. The Columbus Ohio Immigration Lawyers at The Law Firm of Shihab & Associates has been following these developments and will bring you updated information as they become available. This article will discuss the new H-1B Visa Cap Registration, its applicability and whether it will impact the upcoming H-1B visa cap season (Federal Fiscal year 2012) which will begin on April 1, 2011.

On March 3, 2011, the USCIS published in the Federal Register a Notice of Advanced Rulemaking in which it provided the public the opportunity to comment on this proposal. The comment period will end on May 2, 2011. Once implemented, the USCIS promised that the new system will yield increased efficiency and cost effectiveness in the administration of the H-1B visa petition process. Under this proposal, H-1B visa petitioning employers seeking to file a cap-subject H-1B visa petition must first register through a web enabled process that they intend to file such petition. Once the registration process is complete, the USCIS would then make a selection through a lottery system if the number of registrations exceeded the visas available and then announce which beneficiaries will be eligible to have their H-1B visa petitions filed. The USCIS states that this process would save the petitioning employer from having to unnecessarily file a cap-subject H-1B visa that will be rejected through a lottery system.

What is the Effective Date of the H-1B Visa Cap Registration Process?

The new H-1B Visa Cap Registration process has not become effective yet. At the present time, this is only a proposal. The USCIS is seeking comment from interested parties until May 3, 2011 as it is required by law through what is called Notice of Proposed Rulemaking or NPRM. Once comments are received, the USCIS will then compile and disseminate the comments to the public and issue final regulations. It is not known when the final rules will be published. On that basis, it is not known yet when the H-1B Visa Cap Registration system will become effective.

Will the new H-1B Visa Cap Registration Impact the Upcoming FY 2012 H-1B Visa Cap Season?

No. The H-1B Visa Cap Registration process will not affect any cap-subject H-1B visa petitions filed towards the FY 2012 the filing for which begins on April 1, 2011. Because no final regulations have been promulgated by the USCIS, the H-1B Visa Cap Registration Process is still not in force. It is expected that regulations installing the new H-1B Visa Cap Registration Process to be effective federal fiscal year 2013 filings beginning on April 1, 2012.

What Information will USCIS Request in the Pre-filing Registration Process?

On March 14, 2011 the USCIS made public a document entitled Privacy Impact Assessment in which it announced the information that it will seek from petitioners in the pre filing H-1B Visa Cap Registration process. The Information includes: (1) petitioner's name and employer identification number (EIN), petitioner contact information, (2) petitioner designated user's name and contact information, (3) beneficiary's name, date of birth, country of birth, country of citizenship, gender, and passport number, and (4) any additional information requested by the registration or USCIS. In requesting this information, the USCIS stated that this new process will eliminate some unethical practices such as multiple H-1B visa petition filings by one employer for the same beneficiary and other fraudulent filing by fictitious companies. Once the information is compiled, the USCIS will use the information and check it against information available publically from undisclosed sources. USCIS also stated that the information gathered through this process will not be shared with any external organizations or agencies.

Will the new H-1B Visa Cap Registration Process Delay the H-1B visa Processing Times?

That remains to be seen. USCIS advises that the new H-1B Visa Cap Registration process will not delay the processing times once a petition is accepted for processing. It is still not known how the USCIS will use the information it will receive from the pre-filing registration process or whether the preliminary information provided to the USCIS will in any way predispose the adjudication of the H-1B visa process. As mentioned earlier, the USCIS will be checking the initial information provided by the petitioning employer against available public records sources, presumably available on the Internet. Will the USCIS group the cases based on such initial check? I believe it is troublesome that the USCIS will make such initial cross checking and could cause the agency to preadjudicate the H-1B visa petition prior to the filing of the petition itself.

This article is the second installment following up and providing a conclusion to the first segment which provides the final techniques utilized by the Columbus Immigration Lawyers at The Law Firm of Shihab & Associates regarding the preparation of a Motion to Reopen/Reconsider or Request for Evidence (RFE) responses. Again this article focuses on the RFE response, but its techniques are applicable to any written brief or statement made in response to USCIS.

Critique the Request for Evidence Itself
A major component of drafting the response to an RFE is the need to critique the request itself. The immigration officer may not have developed the facts in a complete and accurate manner. It is your job to comprehensively develop those facts (often by use of affidavits). By showing inconsistencies and other problems with the facts, as developed by the immigration officer, you begin to establish credibility to your case. The Immigration Lawyers at The Law Firm of Shihab & Associates are very experienced at analyzing the facts and respectfully presenting them correctly to the USCIS in an RFE response.

Secondly, you must scrutinize the quality and quantity of the legal research conducted by the immigration officer. Determine if the officer identified all the relevant legal authority. Often times, RFE's will present "biolerplate" legal authority. Did the immigration officer properly interpret the law? Did the officer correctly apply the law to the issue and the facts in the case at hand? Did the officer include legal authorities in the RFE, but not use them in the analysis or argument? Don't leave these questions unanswered. If there are flaws in the legal research conducted by the immigration officer, or flaws in the ways by which the officer cited legal authorities, point it out.

Finally, test the immigration officer's arguments. Has the officer adequately connected the issues with the facts and law? Have convincing analogies been developed by the officer? Has the officer adequately answered the questions asked? If there are flaws in the officer's arguments, point them out.

Revise, Revise, Revise....then Revise One More Time!
As Justice Louis Brandeis stated: "There is no such thing as good writing. There is only good rewriting." Justice Brandeis often revised his writing 15 or more times before he was satisfied. While this is obviously extreme, it is suggested that you revise your writing at least three times, more if time and money permit. Excessive use of passive voice, timid phrasing, vague words and other examples of poor writing are often found in first drafts. The lawyers at The Law Firm of Shihab & Associates spend the time to make sure your case is prepared with great diligence to grammer, form, substance and style.

As this article demonstrates, regardless of the inherent strengths or weaknesses of a given case, there is much that can be achieved by mastering the art of preparing a successful RFE response, Motion to Reopen/Reconsider brief or appeal. Our lawyers know this more than anyone!

Continue reading "Drafting a Motion to Reopen/Reconsider or Request for Evidence Response to USCIS: Proven Techniques for Success (Part 2)" »

USCIS provides minimal guidance regarding the preparation of a Motion to Reopen/Reconsider or Request for Evidence (RFE) response. Unlike other USCIS procedures, CIS does not require the completion of a form when filing an RFE response. This little guidance provides a wide range of possibile methods to responding to the RFE. This article presents techniques that the Columbus Immigration Lawyers at The Law Firm of Shihab & Associates have implemented for preparing a successful responses to USCIS and focuses on the brief in support of an RFE response.

Prepare a Roadmap: Presentation Matters
While this might sound obvious, the most important element of the RFE response is drafting the response itself. Don't spend all your time meeting with the client, gathering facts and conducting legal research. Too often, not enough time is spent on planning and presentation. Remember, an RFE has a strict deadline that often poses a tight timetable to prepare the supporting documentation and legal arguments. As the saying goes, "plan the work; work the plan." This is an axiom the lawyers at The Law Firm of Shihab & Associates live by. You must leave sufficient time to prepare a polished product. Preparing a polished written RFE response does not simply happen. It requires good planning, organization and writing.

Focus on the Facts: Don't Drive from Boston to Chicago via Nashville!
Regardless of what factual informaiton you decide to present, you must determine the order in which to present the facts. Consider the following illustration: If you decide to drive from Boston to Chicago, it is unlikely you would drive first to Baltimore, then to Nashville and finally to Chicago, unless of course time and money were of no concern. Likewise, the immigration officer will expect to see some logical order to the presentation of the facts in your RFE response letter. Don't confuse the Immigration officer by driving from Boston to Chicago via Nashville!

There are various approaches for ordering the presentation of the facts: chronological, biographical (e.g., describing key individuals along with facts associated with them), or transactional. Employ whatever approach you use consistantly throughout the RFE response. Your facts should be presented persuasively without being argumentative. Facts, not opinions, will convince the USCIS officer to look favorably upon your client's case.

Continue reading "Drafting a Motion to Reopen/Reconsider or Request for Evidence Response to USCIS: Proven Techniques for Success (Part 1)" »

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.

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.

The latest results issued by the USCIS indicate that there is still sufficient time to file for an H-1B visa to start in the 2011 fiscal year. The latest projections show that 53,900 of the 65,000 visas allotted for the FY 2011 have been accepted. The current rate of H-1B visa consumption indicates that petitioner's will most likely have just enough time to file for a new H-1B visa beneficiary under the current cap and receive an approval to hire that worker on an H-1B basis without waiting until the next financial year, starting in October 2011. Companies that anticipate the need to hire a worker on an H-1B basis to keep up with staffing needs can still do so if quick action is taken.

The Amount of Time Needed to File an H-1B Visa on an Expedited Basis.

An H-1B visa can be filed with the USCIS in as little as nine days. Because of the new centralized system whereby the Department of Labor examines and approves the petitioning business's existence as well as the wage to be paid to the beneficiary in relation to the location of employment and the proposed job duties, a wait time of about seven calendar days must now be calculated into each new H-1B visa. This wait is caused by the submission of a document called the Labor Condition Application (LCA) to the Department of Labor. Each application is reviewed by the Department of Labor, which checks to see if the company has a valid FEIN Tax ID number and if the petitioning company will be paying a salary that is equal or greater than the prevailing wage for the job applied for in the location of employment. However, with quick action and good communication between the petitioning company and its attorney, the LCA portion of the H-1B visa process can be quickly filed and approved.

What is the H-1B Visa Cap?

Congress has mandated that only 65,000 H-1B visa applications for persons who are filing for a new H-1B visa, as opposed to an extension of a previously approved H-1B visa, will be approved per year. Additionally, 20,000 more H-1B visas are allotted for persons who hold at least a master's degree from a college or University in the United States. New H-1B visas are made available every October, but the USCIS allows petitions to be filed beginning in April of every year at the beginning of the fiscal year. Usually, the H-1B cap for visas to be handed out in October of 2010 has still not been reached. This means that petitioners still have the opportunity to hire an H-1B worker in the current fiscal year, or in other terms, immediately.

When will the H-1B Visa Cap be reached?

Although no one can predict with exact certainty the date that the H-1B cap will be reached, based upon the slow application rate thus far, it is fair to say that an H-1B visa that is filed within the next two weeks will have a fair chance of being accepted for processing.

Continue reading "Columbus Immigration Attorney Discusses the FY 2011 H-1B Visa Cap Count" »

The Department of Justice announced that it has awarded $720,321 in grants to 13 organizations throughout the country to conduct public education programs for workers and employers about federal protections against immigration-related job discrimination. The grants range from $43,664 to $88,000, and are awarded by the Office of Special Counsel for Immigration-Related Unfair Employment Practices. Recipients will assist discrimination victims; conduct seminars for workers, employers and immigration service providers; and place advertisements in local communities through mainstream and ethnic media to educate workers and employers about their rights.