Immigration Visa Lawyer Blog

The United States Department of Homeland Security announced it will make changes in the F-1 and H-1B visa categories, which will likely benefit professionals from countries such as India. Changes would include providing work authorization for spouses of H-1B visa holders, 17-month extension of optional practical training (OPT) for certain F-1 international students, allow for additional part-time study for spouses of F-1 students, and allow outstanding professors and researchers to present a broader scope of evidence of academic achievement.

Under current immigration law, H-4 visa spouses of H-1B work visas holders are not permitted to work themselves. One of the proposed DHS regulations would change this. The new regulation would allow some spouses of H-1B visa holders to work legally while the H-1B visa holder spouses wait for their adjustment of status applications to be adjudicated. H-4 dependent spouses would be granted employment authorization when the principal H-1B visa holders begin the process of seeking lawful permanent resident status through employment after meeting a minimum period of H-1B status in the United States.

Currently, F-1 students may only work in optional practical training (OPT) for 12 months. DHS plans to provide 17 month extensions of OPT for those students with degrees in Science, Technology, Engineering and Mathematics (STEM).

Changes would also allow for additional part-time study for spouses of F-1 students, and would increase the number of Designated School Officials (DSOs) at DHS certified schools to enroll international students. Under current immigration regulation, spouses may only take part-time vocational or recreational classes. The proposed changes would permit spouses of F-1 students to enroll in additional academic classes on a part-time basis while the F-1 student is enrolled in full-time studies.

The DHS's stated purpose here is to reform administrative practices and ease the visa process for highly-skilled immigrants who want to come to the United States for work. This effort could help retain talented professionals who are valued by U.S. employers and who seek to contribute to our economy.

President Obama proposed to eliminate country-specific caps for certain immigrant visa categories to stimulate small-business growth. Country-specific immigrant caps are limits on the number of immigrant visa the United States will grant each year. According to a White House statement, the purpose is to attract more high skilled foreign workers, including entrepreneurs to the United States. Employers, especially those in the technology business, complain that these caps prevent them from hiring skilled workers and growing their companies in the United States.

Obama called for a comprehensive immigration reform bill, and if this is not politically possible, he will seek reforms in smaller steps. "If election-year politics keeps Congress from acting on a comprehensive plan, let's at least agree to stop expelling responsible young people who want to staff our labs, start new businesses and defend this country," Obama said.

The Department of Homeland Security said it will implement several measures to simplify the process for immigrant entrepreneurs to do business in the United States, and also to keep more foreign nationals with science and technology degrees from U.S. universities.

Obama said the proposal was a "symbol of how important it is for us to spur entrepreneurship, to help start-ups, to move aggressively so that we can ensure more companies that create most jobs in our economy are getting a leg up from various programs that we have in our government."

Opponents of Obama's plan point to the high unemployment rate in the United States and question why the government would be extending nonimmigrant visas for highly skilled workers while many US citizens and permanent residents are unemployed and are seeking those jobs.

Obama told reporters on Tuesday that he expects Congress to pass a bill this year. However, some members of Congress are likely to oppose the proposal.

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" »

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 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 US Citizenship & Immigration Services (USCIS) recently announced that it will be altering decades' worth of a well established procedure which has Columbus Ohio immigration lawyers and their clients confused and angry.

For as far back as I can remember in the 18 plus years I have been practicing immigration law, the USCIS's established procedure called for mailing approval notices relative to employment based non-immigrant visas (such as H-1B visas) directly to the attorney who had filed a signed Notice of Entry as an Attorney of Record along with the petition. That procedure allowed the attorney to carefully monitor the progress of the case during the USCIS adjudication process as well as post the approval of the case itself. Simply put, the prior procedure worked well.

Now, the USCIS wants to fix a procedure which was never broke. The new procedure now calls for mailing the approval notice for such non-immigrant visa petitions (also known as the I-797 Notice of Action) directly to the sponsoring employers, instead to the attorney of record. US immigration lawyers believe that this is yet another way the USCIS seeks to drive a wedge between them and their clients, the petitioning employers.

The American Immigration Lawyers Association has sharply criticized the new policy thereby requesting the USCIS to restore the prior procedure. The USCIS held a teleconference on October 12, 2011 to review this new procedure. Interestingly, in its announcement for the teleconference, the USCIS offered an unusual way to have immigration attorneys continue to receive the I-797 approval notices by including on the petition for non-immigrant worker (Form I-129) the attorney's address in the filed where the company's address must be entered. This, as the USCIS explained, will cause the USCIS to mail the approval notice to the attorney instead of to the company. The USCIS warned, however, that it utilizes the Validation Instrument for Business Enterprises (VIBE) process, which relies on the business address of the employer to validate whether the petition is filed fraudulently. Using the attorney's address on Form I-129 may disrupt the VIBE process, the USCIS explains and advised attorneys to enclose a separate sheet along with the petition indicating the true address of the employer in order to avoid such discrepancy (without any guarantees).

What a disaster!!! In other words, the USCIS is encouraging attorneys to intentionally misrepresent the address of the employer on Form I-129 and to risk having the employer's identity validated in order to do her job of correctly monitor the progress of the case and advise the client efficiently.

I join my immigration attorney colleagues in stating that this is an ill-advised policy for many reasons. but, before delving into the problems that I see with this new procedure, I would like to share with you the steps that we normally undertake once we receive an employment based non-immigrant visa approval notice on behalf of our client's employees. For the last 10 years in my practice, I have utilized an intricate on-line document storage, data gathering and reminder system integrated into a proprietary web-based processing portal. Upon receipt of an approval notice, we scan and upload it to our immigration processing portal. An instant reminder is created in our system which will alert us to contact the client six (6) months prior to the expiration of the employee's status. Then an email is generated to the client and the employee informing them that their case has been approved. Finally, the approval notice is mailed to the employee providing them with tips about maintaining their status and advising them what to do in the event they need to travel. (Our law firm was named finalist in innovation by TechColumbus in 2008. We now utilize a vendor-based system which we call ShihabEDGE.)

With the approval notices now going to employers, these valuable practices will be compromised. Unless the employer has in-house counsel versed in immigration-related matters (which is very rare), the employer does not possess the skills or resources to monitor the expiration status of their employees' status and/or to advise them regarding the procedures in obtaining visa stamping.

We must remember that the non-immigrant visa approval notice in most scenarios has THE ONLY PROOF of the foreign nationals legal status in the United States. It must be surrendered to the foreign national promptly. with some large employers, the approval notice may arrive on the wrong desk and the recipient may not know what to do with the approval notice or who in the large organization should dispose of it. The attorney on the other hand has direct access to the foreign national and can ascertain that she receives it timely.

The recent policy by USCIS is ill advised; it wastes time and increases the employer's costs. I urge all employers to contact their congressmen to put pressure on the USCIS to reveres this unnecessary procedure. Tell the USCIS that the prior system worked just fine and there is no reason to drive a wedge between the attorney and the employers they represent. If it ain't broke, don't fix it!

In these times of economic uncertainty, it seems that many in the American public target employment based immigration as one of the many causes of high unemployment rates in the United States. However, overwhelming evidence shows that the immigration of high skilled workers through the H-1B and PERM programs actually improves the economy. Much of the unemployment problems in the United States and specifically Columbus, Ohio stem from a mismatch of skilled persons available for high tech jobs.

In a recent interview, Alan Greenspan placed his support behind supporting the immigration of persons who hold higher degrees from American colleges and Universities. In this interview, Mr. Greenspan cautioned America against artificially creating more low skill jobs to try and reduce unemployment. In Mr. Greenspan's opinion, the true path to raising the standard of living in America is to open the workforce to more skilled workers.

A recent article in the Columbus Dispatch illustrates the point that many high skilled jobs go unfilled because of a lack of persons possessing skills to fill those jobs. As more non-tech businesses integrate technology into their business models, the demand for highly skilled workers is only going to increase. This demand is also expected to be compounded by the move of American employers to the international based financial reporting standards. Clearly there is a demand for skilled workers in Columbus, Ohio as well as the United States as a whole.

One way to meet this demand is to allow more high skilled immigrants to obtain temporary and permanent employment through the H-1B and PERM programs. Allowing more of these jobs to be filled will produce more tax revenue as well as add more consumers to the United States market. Some of the greatest economic minds as well as the raw evidence support the notion that immigration of high skilled workers helps rather than hurts the American economy.

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 you are a company in Columbus, Ohio or any of the areas surrounding central Ohio, the Immigration Lawyers at The Law Firm of Shihab & Associates understand that the economy may have hampered your hiring and recruitment efforts. The H-1B visa may be in decline for certain large businesses, due to the often burdensome evidentiary requirements and increasing fees; however, some smaller businesses here in Ohio should take advantage of the glut of H-1Bs still available to fill positions that may be in short supply from the U.S. labor force.

How can I use the H-1B Program?
U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers. IT companies have been the largest applicants for the H-1B visa. There are two basic ways to hire an H-1B worker: you can hire a foreign national directly (usually right of college), or so long as certain evidentiary requirements are met, IT companies can "assign" H-1B workers to your company to implement a project, design inventory software, or create other cutting edge software that will set your company apart in the 21st century.

For more information about the H-1B program, see the our firm's webpage dedicated to various complex H-1B speicalty occupation issues.

These H-1B workers fill a void in the U.S. labor market for jobs in mathematics, software and engineering, and can offer an excellent temporary solution to your company's short term needs. USCIS recently announced that approximately 19,000 H-1B cap-subject petitions (out of 65,000), and 12,200 H-1B petitions for aliens with advanced degrees (out of 20,000), were receipted as of July 1, 2011. This means that there are currently 53,800 H-1B visas still available for the government's 2012 fiscal year (which begins on Oct. 1, 2011 and ends Sept. 30, 2012)!

Continue reading "H-1B "Specialty Occupation" Work Visas Aplenty" »

On April 7, 2011, the USCIS published on its website a page entitled "Questions about Same or Similar Occupational Classifications Under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21)." The issuance of this new page implies renewed USCIS position in the adjudication of I-485 portability applications pursuant to AC21. This is significant since there has recently been a significant increase in the incidence of "job hopping" on the part of many aliens who are currently in the I-485 stage awaiting visa availability. So, what does this mean for those aliens currently in the I-485 stage who wish to take advantage of the portability provision?

Prior to the introduction of AC21, foreign national beneficiaries of employment based permanent residence applications, were forced to remain with their sponsoring employers until their I-485 applications were adjudicated. As a result abuse of employees, who endured unfavorable working conditions for the sake of their pending green card applications, was widely reported. In cases where certain Indian and Mainland China born nationals were forced to wait out the per-country immigrant visa limitations prior to filing their I-485 applications, their indentured servitude with their current employer were even more painful. Making matters worse, those employees who reached their six years on H-1B visa prior to the filing of their I-485 applications were forced to surrender their American Dream and return to their home country for a one year wait prior to embarking on their immigration journey to the US.

What is the I-485 Portability Provision?

Congress realized the inequities caused by the prior state of immigration laws and passed AC21 which allowed the mobility of not only H-1B visa holders who wished to change employers, but also introduced what is now known as the "I-485 portability provision" of AC21. This provision was introduced by section 106(c) which is very brief and created ambiguity regarding its application. The statutory portability provision allows for "job flexibility" premised on "lengthy adjudication" of adjustment of status applications. It states "a petition ......for an individual" shall remain valid with respect to a new job offer, if such individual has filed an application for adjustment of status which remains unadjudicated for 180 days and the new job is in the "same or similar occupational classification" as the job for which the petition was originally filed.
Subsequent to the Introduction of AC21, the USCIS and its predecessor agencies, the Bureau of Citizenship & Immigration Services as well as the Immigration & Naturalization Service issued several memoranda and other publications which sought to clarify some of the ambiguous provisions of the statute. We shall examine all of these guidance publications in brevity.

The June 19, 2001 Yates Memo - The No-Guidance "Guidance Memo"

This memo simply reintroduced the statutory language without much in the way of explanation. It is worthy to note that July 31, 2002, a guidance memo issued by the USCIS allowed for the concurrent filing of the I-140 immigrant petition and I-485 adjustment applications. The portability provisions did not contemplate such concurrent filing because it speaks about continuing validity of the I-140 petition which presupposes that such petition would have been approved prior to the filing of the I-485 adjustment application and would therefore continue to be valid with the changed employment. What then be the fate of an I-485 that remains unadjudicated for more than 180 days but where the concurrently filed I-140 petition also remains unadjudicated? These questions would linger for 4 more years.

The portability provisions also created another ambiguity. The employment based immigrant petitions do not require the foreign national to be employed by the petitioning employer. Rather, it requires such individual to join the petitioning employer upon the approval of the I-485 application. Hence, the foreign national requires a "job offer" not an actual job to keep the green card application alive. But the statute speaks about increased "job flexibility" and continuing validity of the immigrant petition in the case of a "new job." Did the statute create a deviation from well established legal principles in that it requires the foreign national to have an actual job instead of a job offer? How does it work?

Eventual guidance memoranda do not provide explicit clarification on this issue; however, such guidance memoranda make it clear that a "new job" is intended to mean a new "job offer."

The August 3, 2003 Yates Guidance Memorandum - When Do Revocations of Approved I-140 petitions Hurt and When are they Ineffectual?

This memorandum, by far is the most useful guidance relative to the "portability of an I-485 adjustment application" vis-à-vis an attempt by an the petitioning employer to revoke the approved I-140 immigrant worker petition. You might wonder, why would an employer attempt to revoke an already approved I-140? There are three main reasons: 1) some employers retaliate against a departing employees for variety of reasons; 2) some employees carry a large number of approved I-140s which hinders their abilities to obtain approval on subsequent I-140s; hence they revoke departing employees' approved I-140 petitions not to retaliate against them, but to make room for I-140 approvals for existing employees. Lastly 3) some employers believe that they have a legal obligation to revoke the approved I-140 for employees who are no longer employed by them.

No matter what the reason for the revocation of the I-140, the August 3, 2003 guidance memorandum that an attempt to revoke an approved I-140 petition by an employer is effective when: a) at any time before the I-485 is filed; and 2) before 180 days from the filing of the I-485 petition. It also confirms that an attempt by an employer to revoke an approved I-140 petition after the passage of 180 days of the filing of form I-485 adjustment application is ineffectual and the I-140 petition remains approved toward a new job offer. This will obviously solidify the alien/beneficiary's endeavor to continue on (or port) his green card application with an employer other than the one who originally sponsored his petition.

What is I-140 Vesting?

The practical effect of this rule is to prevent an alien beneficiary from changing employment during the green card process until the occurrence of these two occurrences: 1) the approval of the I-140 immigrant petition; and 2) the passage 180 days after the filing of the of I-485 adjustment application. It is only when these two facts occur will the alien/beneficiary's approved I-140 completely vests in him. Vesting is when the alien beneficiary is able to safely change his employment and preserves the green card process initiated by a prior employer.

As will be seen in part 2 of this article, subsequent memoranda by the USCIS greatly expanded its interpretation of this provision. Tune in form Part II of my article very soon.

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" »

We expect a marked improvement in the advancement of the Second Preference (EB-2) immigration petition priority dates for Indian and Chinese nationals. The May and June visa bulletin should reveal significant advancement of the EB-2 immigrant visa petitions because of a surplus in the EB-1 visa numbers. It remains to be seen whether the circumstances leading to the improvement in the priority dates for EB-2 immigrant petitions will cause such priority dates for Indian and Chinese nationals to become current. The Columbus immigration attorneys at The Law Firm of Shihab & Associates, Co., LPA will continue to monitor these developments and will bring you up-to-date on the latest developments.

Yesterday, Charlie Oppenheim, Chief, Immigrant Visa Control and Reporting Division, U.S. Department of State, communicated to the American Immigration Lawyers Association of a remarkable decline in the filing of EB-1 visa petitions with the USCIS which then resulted in a large number of unused visas which will be dumped into the EB-2 visa category. Mr. Oppenheim stated that more than 12,000 additional visas will become available to the EB-2 category as of May 2011. He also stated that citizens from India have the largest demand for EB-2 immigrant visa numbers.

Hence, we are encouraged with this news and will announce any new developments as they become available.

The AAO recently approved an EB-3 case that was denied at the Texas Service Center for a petition for immigrant worker seeking to employ a quality assurance manager/researcher and development specialist (professional food technologist) in the skilled-worker or professional EB-3 classification.

The position required a bachelor's degree or equivalent in food science. The beneficiary had a bachelor's degree in agriculture and master's degreee in animal science from the Philippines, as well as a PhD in agriculture and forestry from the University of Melbourne, Australia. The Service Center denied the petition upon the finding that the petitioner failed to submit persuasive evidence to demonstrate that the beneficiary possessed a four-year single-source U.S. bachelor's degree or higher degree or a foreign equivalent degree in food science qualifying her for the position at issue. The petitioner appealed. Reversed.

Our clients in the mid-west and Columbus, Ohio have inquired about employment based immigration when the required degree does not exactly match the foreign degrees. At The Law Firm of Shihab & Associates, we have a staff of attorneys ready to help you prove to the USCIS that your employee's degree matches the job requirements through academic equivalency and study of AAO and BIA case decisions.

In the above-mentioned AAO case, Matter of X, SRC 07 249 5158, the AAO approved the petition upon finding that the beneficiary's PhD in agriculture and forestry specializing in dairy technology qualified her for the proffered position in charge of researching and developing dairy- and non-dairy based food products and for which a bachelor's degree or equivalent in food science was required.

This case teached us that what may seem to be common sense in terms of eductation (the beneficiary had a doctorate degree for an EB-3 food technologist position!!), it may be insufficient at the Service Center level. The Service Centers notoriously adjudicate employment based I-140 cases strictly. This AAO decision gives a petitioner some breathing room when a foreign national's educational background - while duly impressive - does not exactly match the requirements for the job. The AAO got it right in this case since the overriding factor in employment based immigration is whether the foreign national possesses the necessary skills and education for the job. Clearly in this case, the foreign national had such skill and education. This is just an example of how technical and precise one must be in preparing a PERM case or I-140.

How to Contact Us
If you have questions about a PERM case, I-140, employment based immigrant petition, and/or you need help in an immigration process, please contact our immigration attorneys or call The Law Firm of Shihab & Associates Co., LPA at the nearest office close to you to consult with an attorney. Our law firm handles various matters including Green Cards and Permanent Residence, family immigration, immigrant visas, non-immigrant visas, employment visas and H1B visas, Investor Visas, PERM applications, and many more. Please contact us and experience how our law firm can assist you in your immigration matters. Whether you are an employer, an employee or a family member, The Law Firm of Shihab & Associates, Co., LPA has competent, responsive and innovative lawyers who can make your immigration experience pleasant and seamless.

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)" »