Clients have been asking me "what is going on with this 'everybody' can adjust thing?" My answer is that the USCIS is 'broken', meaning that it is a confused governmental agency, with no real funding, i.e., money, but more importantly, no direction or will to act with focus.
There is a 'history' here, a story to tell. Years ago, I'd say about 20 years back, the former INS pretty much told politicians and Congress what was needed in terms of changes that needed be made to the immigration law, and Congress went ahead and gave them what they needed (including funding); the INS proposed regulations, and, even technical corrections (when they needed to), and they were summarily adopted and implemented. Today, the attitude of the USCIS is, "We will not take the lead", "you go first"; we will not act as the experts we are, "you tell us". Therefore, no one is willing to act, or if Congress acts, as they have several times in the past, we end up with ridiculous 'political', often draconian solutions, and the INS/USCIS justs says "ok". Everyone is afraid. Congress won't, and now politically "can't" act - so things are frozen and we are stuck with a broken system that was never meant to work in a totally different environment, under a completely different economy, and labor situation. Of course, the last time we produced engineers, and even scientists, was in the 1950s. Nor can we fulfill the needs of Silicon Valley - Congress woke up for awhile, when they increased the quota for H-1bs, but that is long past.
People, including those in Congress, don't understand that even our 'preference system' was designed with far fewer people wanting to come here. The 'lines' that we have all come to see and experience, the "wait", was never meant to be. Can you imagine anyone telling a PR who marries someone overseas, or for that matter, even someone here, that they must wait 3-5 years to bring their spouse to the country to join them, or allow them to maintain a legal status here? It's absurd and never meant to be - but is a direct result of a broken system that no one is willing to fix.
But here is the point of this 'blog'; what is happening (by accident) now, under the recently 'revised' visa bulletin, that is, allowing everyone, from every country, regardless of the wait, or line, on the employment-based side, to adjust their status (if otherwise eligible), makes alot of sense - and should be continued long past August 17, 2007.
I'd like my readers to comment on this - to see if you know where I am going.
Or just email me: heller@hilglaw.com.
More tomorrow, or early next week; thank you.
Best,
Paul
Thursday, July 19, 2007
VISA BULLETIN FIASCO II, What's Wrong With USCIS?
Tuesday, July 17, 2007
What the USCIS Adjustments Mean, July 17th Visa Bulletin Update
http://hilglaw.com/contactus.htm
Please Email us
Dear Readers,
As many of you know, the USCIS issued July Visa Bulletin (#107) on June 12, which made current all employment-based visa numbers, thereby allowing people in those categories to apply for adjustment of status and obtain permanent residency. The USCIS then announced on July 2, 2007—the first day that July Visa Bulletin #107 was to go into effect—that it was reversing its position to make unavailable all employment-based visa numbers. The effect was that all those who thought their number had become current, were ineligible to apply for adjustment of status.
Today the USCIS once again reversed themselves and posted a memo making all those originally eligible under the July Visa Bulletin (#107) to adjust their status between July 17 – August 17, 2007. The effect is that all those originally eligible to adjust their status under the July Visa Bulletin issued June 12, are once again eligible to adjust their status.
On the employment-based side, this means hat everyone who has a PERM approval can currently file their I-140/I-485 petition/application (along with dependent children and spouses). This application is also filed with form I-765 allowed for work authorization and, if eligible, filed with form I-131 for ‘advance parole,’ which allows applicants to travel in and out of the country while their I-485 application is pending.
Also important for many is the ‘portability’ rule in AC21, which allows employees to port (switch) to another job with another company 180 days after the filing of their I-485 application.
Whether you are a company requesting HILG to begin the process of filing I-485 applications or concurrent I-140/I-485 petition/applications on behalf of employees , or an employee who wishes us to file on their behalf (pre or post I-140 approval), please do not hesitate to contact us below. Thank You.
__________
http://hilglaw.com/contactus.htm
Please Email us
___________________
Paul M. Heller, Esq. (Owner/Principal)
New Silicon Valley Office:
Heller Immigration Law Group, LLP
2479 E. Bayshore Rd., Suite 709
Palo Alto, CA 94303
Tel: 1.650.424.1900 x11; Fax: 1.415.276.9099
Email: heller@hilglaw.com; www.hilglaw.com (formerly: greencard1.com)
THE BULLETIN:
Office of Communications
July 17, 2007
Contact: Office of Communications
202-272-1200
USCIS Update: Adjustment of Status Applications, I-485 Adjustment
USCIS Update
USCIS Announces Revised Processing Procedures for
Adjustment of Status Applications
WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced that,
beginning immediately, it will accept employment-based applications to adjust status (Form I-
485) filed by aliens whose priority dates are current under the July Visa Bulletin, No. 107.
USCIS will accept applications filed not later than August 17, 2007.
On July 2, 2007, USCIS announced that it would not accept any additional employment-based
applications to adjust status. USCIS made that announcement after receiving an update from the Department of State that it would not authorize any additional employment-based visa numbers for this fiscal year. After consulting with USCIS, the Department of State has advised that Bulletin #107 (dated June 12) should be relied upon as the current July Visa Bulletin for
purposes of determining employment visa number availability, and that Visa Bulletin #108
(dated July 2) has been withdrawn.
“The public reaction to the July 2 announcement made it clear that the federal government’s
management of this process needs further review,” said Emilio Gonzalez, USCIS Director. “I
am committed to working with Congress and the State Department to implement a more efficient
system in line with public expectations.”
USCIS’s announcement today allows anyone who was eligible to apply under Visa Bulletin No.
107 a full month’s time to do so. Applications already properly filed with USCIS will also be
accepted. The current fee schedule will apply to all applications filed under Visa Bulletin No. 107
through August 17, 2007. (The new fee schedule that becomes effective on July 30, 2007, will
apply to all other applications filed on or after July 30, 2007).
-USCIS
Please Contact: heller@hilglaw.com
We have staff waiting to help you with your I-485 adjustment needs.
Friday, July 6, 2007
Immigration Information for Foreign Physicians
http://www.hilglaw.com/articles/articles20.htm
Aren't U.S. immigration laws ironic? These laws seem to apply more stringent standards on highly esteemed professions with clear shortages. The medical profession stands as a visible example of such shortages. For example, a recent issue of Business Week reports that the U.S. has fewer physicians per dollar of gross domestic product than most countries in the Organization for Economic Cooperation & Development. The January/February 2002 issue of Health Affairs, a policy journal, predicts that the nation will face a shortage of 50,000 physicians by 2010.
Before they are free to live and practice medicine in the U.S., foreign physicians experience frustration over the complex immigration process. This situation affects a surprising number of people and medical facilities-the American Medical Association's current statistics show that international medical graduates (IMGs) now comprise more than 20% of physicians working in the U.S. Future increases in the number of IMGs practicing medicine illustrate one possible way of stemming an increasingly significant shortage of physicians in the U.S. An overview of obtaining proper work authorization for IMGs shows how nonimmigrant and immigrant options available to foreign medical doctors makes it possible for individuals in this situation to live and practice medicine in the U.S.
Requirements
All physicians (IMGs as well as U.S. citizens) must overcome basic hurdles in order to practice medicine in the U.S. In addition to their degree from a foreign medical school, IMGs must pass Parts 1 & 2 of the U.S. Medical Licensing Exam (http://www.usmle.org/). They must also pass an English-language proficiency test and obtain certification from the Educational Commission on Foreign Medical Graduates (http://www.ecfmg.org/), which establishes knowledge equivalent to that gained at a U.S. medical school.
J-1
Many IMGs come to the U.S. to train in J-1 status under the sponsorship of the Educational Commission for Foreign Medical Graduates (ECFMG) or other academic institutions. Duration of this program is limited to 7 years, and participation in such a program subjects the alien to a two-year home country physical presence requirement under INA s.212(E). Unless foreign physicians are willing to return to their home country for two years, they must obtain a waiver of the two-year home residency requirement.
Unfortunately, obtaining a J-1 waiver often has its own restrictions. Foreign medical graduates are specifically precluded by statute from applying for a waiver based solely on a 'no objection' statement. However, they may apply for a waiver based on exceptional hardship, persecution, or through the support of an interested government agency. For more information on these waivers, please visit the J-1 waiver section at our website.
For the majority of the J-1 foreign medical graduates, finding an interested government agency may be the only option. Over 1,000 IMGs are sponsored for J-1 waivers each year, but obtaining a waiver of the foreign residency requirement through this means has become increasingly difficult. An interested government agency must determine that the alien's continued stay in the U.S. is in the national interest. To obtain waivers for J-1 visa holders, the sponsoring employer must be located in a federally designated Health Professional Shortage Area ('HPSAs,' bphc.hrsa.gov/databases/newhpsa/newhpsa.cfm) or Medically Underserved Areas ('MUAs' bphc.hrsa.gov/databases/newmua), and the physician must practice primary care or psychiatry.
Several federal agencies currently sponsor IMGs for waivers, albeit in a limited manner. These include the Appalachian Regional Commission (www.arc.gov), which covers 13 Appalachian states; the Department of Health and Human Services (www.hhs.gov) in research positions; and the Veterans Administration (www.vacareers.com) in its facilities. The Department of Agriculture (USDA) used to sponsor IMGs for J-1 waivers but ceased doing so this year in response to security concerns.
Lastly, a J-1 physician may apply for a waiver using the "Conrad 20" program, named after its author, Senator Kent Conrad of North Dakota. Under this program, participating states may sponsor up to 20 IMGs for J-1 waivers each year. Over 40 states participate in the program, with Texas and California standing as notable exceptions. The participating physician must pledge to provide service for not less than 3 years in a facility located in HPSAs or MUAs, but not all states require that they practice primary care or psychiatry.
H-1B visas
The H-1B category provides an alternative to the J-1 for U.S. employers who wish to employ IMGs. The H-1B category is preferable because it is less restrictive to both employers and physicians:
The employer does not have to be located in federally designated areas Physicians are not limited to specific practice areas Physicians are not subject to the 2-year home residency requirement. In order to attend U.S. residency programs on H-1Bs, the alien must: 1) be a graduate of a U.S. medical school and have licensure as required for the type of employment by the statue of intended employment; or 2) be an IMG who has completed all three parts of USMLE or passed both parts of the Federation Licensing Exam (FLEX) and obtained ECFMG English-language certification and licensure.
E-2 visas
When the foreign physician wishes to be self-employed, the E-2 visa category offers itself as an option for exploration. A physician from a country that has a bilateral commercial treaty with the U.S. may qualify as an E-2 principal investor for the purpose of setting up his/her own medical practice in the U.S. In addition to possessing a license to practice medicine in the state of intended employment, a foreign physician seeking E-2 treaty investor status must make a substantial, non-marginal investment. He or she also takes responsibility for the development and overall direction of the investment.
Canadian physicians
As a surprise to many, Canadian-educated physicians are not considered IMGs. They may obtain medical licenses in most U.S. states and obtain green cards based on their Canadian training and exams. However, they cannot obtain H-1B visas unless they have completed a U.S. qualifYing exam, such as USMLE, NBME, or FLEX. Canadian physicians who have completed a U.S. exam can obtain H-1B visas and work in the U.S. in a matter of months. Those who have not taken a U.S. exam may have to wait a longer time until they obtain a green card and are legally authorized to work.
Permanent residence ("green card")
Foreign physicians seeking to become lawful permanent residents have several options. One prominent option is the National Interest Waiver, a convenient option for those physicians already working in health professional shortage areas. Another option is applying under other preference categories.
The National Interest Waiver (NIW) is a waiver from the job offer and labor certification requirement when work by the alien serves the "national interest." Until late 1998, cases involving a physician serving or situated in HPSA, MUA, or a state-designated area experiencing underservice of health care, were clearly approvable as National Interest cases. However, by late 1998, the BCIS began denying NIW cases of physicians in shortage area cases under this category, on the interpretation that the physician's work only provided local benefit and was not national in scope. Such narrow interpretation caused concerns over providing adequate health care coverage, so the U.S. Congress passed a law in 1999 that carved out an exception for physicians in these circumstances and restored NIW benefits to physicians in shortage areas.
Under the interim regulations, BCIS will grant NIWs to physicians who serve at least five years in medically underserved areas. To obtain a NIW for a foreign physician, the following requirements must be met:
Physician must agree to work full-time in a health shortage area as designated by the Secretary of Health and Human Services or at a VA facility;
Determination by a federal agency or state public health department that the work is in the public interest; and Physician must work full-time for an aggregate of 5 years (waivers filed before November 1st, 1998 are approved with evidence of full-time work for 3 years instead of 5).
One advantage of the NIW is that Adjustment of Status applications can be filed concurrently with NIW petitions (or, for those who began as J-1s, immediately after completion of their three years of service pursuant to a commitment under the Conrad Amendment) prior to the completion of the fifth year. This means that the dependent spouse may also obtain an Employment Authorization Document.
If the employment is not situated in one of the designated shortage areas or the physician wishes to avoid the 5-year obligation, other immigrant options exist. Alternative options include:
Self-petition under the Alien of Extraordinary Ability category. This category can be used by physicians who are internationally renowned, as indicated by meeting three of ten evidentiary criteria An employer's petition for outstanding professors and researchers in the medical discipline. An immigrant petition based on pre-approved labor certification, which requires proper licensure for the state of intended employment.
As this overview reveals, physicians must contend with rather complex immigration rules and regulations before they can legally practice in the U.S. Again, many limitations are imposed on the foreign physicians, although several exemptions are available for individuals in these circumstances. In tandem, these limitations and exemptions create a labyrinth that make careful and advanced planning a must for medical professionals dealing with the complexities of immigration law.
The information provided throughout the Website is general in nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of Heller Immigration Law Group, LLP, or establish an attorney-client relationship.
Questions or comments, visit our site at hilglaw.com or email us at comments@hilglaw.com
20 Loopholes in the Senate Immigration Bill
20 Worst Loopholes in the Senate Immigration Bill - From Senator Jeff Sessions
read more | digg story
Senators Release List Of Top L-1 Visa Employers -- H-1B Visa -- Information
The Senate released the list of the top L-1 visa users.
read more | digg story
Companies to Bypass U.S. Immigration Law
The crack down on immigration, the government’s purposely slow pace of approving new immigrants and their bias against Muslim countries is forcing some companies to bypass the process all together. As corporations begin to find loop holes in the immigration policies the system will cease to work properly.
read more | digg story
Thursday, July 5, 2007
Visa Officer Dispels Rumor
http://www.hilglaw.com/articles/articles8.htm
The following article was originally published in the Beijing Youth Daily (June 8, 2000), following Mr. Charles Bennett's telephonic answers to public queries on F-1 visa. This article can also be found at the U.S. Consulate's website. Mr. Bennett, who is a chief of the visa section at the U.S. Embassy in Beijing, clarifies prevailing misunderstanding about the F-1 visa process, they call the "Four Myths". Although Mr. Bennett is addressing the Chinese public, we find these questions and answers have wide application to other foreign nationals. We reproduce this article because it is of interest to HILG clients wishing to study in the U.S.
"U.S. Visa Officers Dispel Rumors"
(8 June 2000) On 2 June Mr. Charles Bennett, chief of the visa section at the American Embassy in Beijing, went to the Beijing Telegraph Building to answer telephone queries from the public. He was accompanied by visa officers James Heller and William Duff, together they answered several dozen questions over a system that allowed up to 400 callers to listen in.
Mr. Bennett began by saying "There are certain matters people do not have accurate information about concerning the American Embassy and visas. We call these misconceptions the Four Myths.
The first myth is that we don't issue visas to Chinese students . I can tell you categorically that this is not true. The proof is that last year alone we issued over 8,000 visas to Chinese students to go to study in American universities and colleges. I would also like to point out that according to statistics from various sources there are now more Chinese studying in the U.S. than students from any other country; over 50,000 Chinese students are currently enrolled in U.S. universities.
The second myth is that we have a quota for Chinese students-that we can only issue a certain number of student visas, either every day, or every month or every year. This is also false. We issue a student visa to any student we think is qualified . We have no quotas, and anybody can apply; if we find that you are qualified, we will issue you a visa. It's that simple. And there is no maximum number of visas that we can issue per day, month or year.
The third myth is that we have special law or policy regarding visas for Chinese students . This also is not true. There is one U.S. law concerning student visas - a law passed by Congress - and that law applies just as much to students from France, from Russia or from Mexico as to students from China.
The fourth myth is that how many visas we issue depends on the current state of the political relations between the U.S. and China. This is absolutely not true. Issuance of visas depends on the law passed by Congress, making the decisions of visa officers completely outside the realm of politics. Even if the political relationship between our two nations is not doing so well, or if, as now, it is comparatively relaxed, the policy remains the same. Whether or not we issue somebody a visa depends not on politics, but rather on that individual applicant's qualifications."
Below are some of the more interesting questions asked by callers, with the answers that the visa officials gave:
Q: I have been refused a visa once. Will this influence my next application?
A: No, it won't. At the Embassy we have a rule that when you reapply, the officer who turned you down cannot see you again. You must be interviewed by another officer. We think this is fair. We visa officers are human beings, not computers, and sometimes we do make mistakes. So we guarantee that we will give your application a fresh look-as Americans say, we'll give you "an impartial hearing".
We have another rule:
If you've been turned down once, you must reapply on Thursday.
Q: My husband is in the US now, and I want to apply for an F-2 visa. I've heard that I have to present wedding pictures and other group photos as part of the application process. Unfortunately I don't have any. What should I do?
A: The purpose of asking to see your wedding pictures is to confirm that you are truly married. Some Chinese applicants have cheated us in the past with bogus marriages. If you don't have any group photo, you can bring letters or e-mails between you and your husband, or anything else that demonstrates the genuineness of your relationship.
Q: My money is not coming from my parents but from a relative. Can I get a visa?
A: You should tell the truth when you come in for your interview. What is your relation to your sponsor? You will need to explain what your plans are. If you tell us that somebody is going to give you all that money, you can be sure that we will ask how you intend to pay it back.You had better be prepared to explain how you are going to return to China and make money!
Q: I want to pursue an MBA at Indiana University, but last year I was turned down for a visa three times. I was rejected again last week. Could you tell me honestly what my chances are of getting a visa next time?
A: It's very hard for us here in the studio to tell you exactly why we couldn't issue you a visa - we don't have your application in front of us. I can tell you, however, that the vast majority of people who fail to get a student visa from us are unsuccessful because we are not convinced that they have solid reasons to come back to China after finishing their education. Everybody has a different way of answering our questions, but you must be prepared to explain to the consular officer in detail how you are going to use what you learn in the U.S. here in China. We know that with an MBA you can get a good job in the U.S. . You have to persuade us that you intend to come back to China and use your new expertise here in China. This is a critical question.
Q: My visa application was rejected last month. I've been told I should wait three months before reapplying. Is that true?
A: According to our rules, you can apply three times in one year, but the period between any two times depends on you. If you were turned down today, Friday, then you can apply again on this coming Thursday. But if , for example, you were turned down on 3 March, 5 April and 2 June, you cannot apply again until 2 June of next year.
The information provided throughout the Website is general in nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of Heller Immigration Law Group, LLP, or establish an attorney-client relationship.
Questions or comments, visit our site at hilglaw.com or email us at comments@hilglaw.com
Friday, June 22, 2007
Criminal Convictions
http://hilglaw.com/articles/articles27.htm
Today, I will address an issue that is somewhat unusual but seems to affect many more people than we imagine. As many of the readers know, my and our firm's specialty is employment-based and business-related immigration law. However, I am also called upon to consult and, in the course of their case, represent highly respected non-U.S. citizens with past criminal charges and even convictions. Almost universally, their involvement with the criminal justice system is a result of bad luck and/or unfortunate incidents and even a misunderstanding. Often these individuals were poorly represented and not fully made aware or cognizant of the draconian immigration consequences. I felt it was an important enough issue to write and warn my readers about.
In most immigration and visa petitions and applications, the party must reveal if he/she has been arrested or convicted. This question can have severe immigration consequences since the immigration law enacted in 1996 (IIRIRA), included virtually every crime as a ground of deportability (being removed from the U.S.) and or inadmissibility (not being allowed to enter the U.S.). To name a few, crime of violence, theft or burglary, fraud or tax evasion, commercial bribery, counterfeiting, or forgery, attempt or conspiracy to commit any of these, domestic violence, and any crime involving moral turpitude are included. For example, one DUI (driving under the influence) will not bring immigration consequences but repeated offenses will; and any drug-related offense and sex-offenses will have serious consequences.
Non-U.S. Citizens, who get arrested and/or convicted in the U.S., can suffer three kinds of problems. They may not qualify for naturalization; they may get detained and deported even after they have served their sentence; and when they travel abroad, they may not be allowed back in. Similarly, non-U.S. Citizens, who have an arrest and/or conviction record abroad, may not be able to obtain a visa at the U.S. consulate or may get refused at the port of entry, depending on the nature of the crime.
In an extreme example, a B-2 visitor, who was accused of stealing $600 and was put in immigration detention for over 6 months waiting for a trial, which eventually determined his innocence. In a similar fashion, a misunderstanding over a spousal argument can result in the arrest of a spouse and conviction for domestic violence. The arrest itself can cause severe problems for the immigration practitioner trying to represent the client.
When someone is arrested, regardless whether he committed a real crime or the whole thing was a misunderstanding, a public defender or private defense attorney not familiar with the severity of these acts on immigration may suggest that one works out a deal with the prosecutor and therefore advise the client to plead 'no contest', or plead guilty to a lesser offense to settle the case instead of fighting the Charge. Although immigration consequences are often mentioned by the defense counsel and even the judge, too often neither the criminal lawyer him/herself nor the client clearly understands how severe the consequences are and how likely they will follow.
From immigration's perspective, an "arrest record" alone can establish the person's bad moral character (depending on what was written in the police report.) and lead to deportability. Pleading no contest and working out a deal is considered the same as a guilty conviction. Therefore, whereas an immigration lawyer would advise the client to fight for innocence or to at least negotiate a deal that will minimize immigration consequences, a criminal lawyer, unfamiliar with immigration laws, may opt out for a settlement that has greater immigration consequences. For example, pleading guilty or no contest to any felony that could result in a sentence of one year or more is a ground of deportability even if no sentence was actually imposed. If one pleads guilty or no contest to any crime involving moral turpitude and more than 6 months incarceration was imposed, this conviction is likely to lead to removal proceedings. Even if your arrest was a mistake or a misunderstanding and you were even later released the arrest itself will often lead to serious immigration consequences.
It is bad enough to be arrested and or convicted of a crime - especially, if you have never had legal trouble before and were caught in an unfortunate chain of events. How do you prevent facing additional immigration consequences? If you are a non-U.S. Citizen and get arrested for any reason, first and foremost one should engage criminal defense counsel (never a public defender) and ask specific questions about immigration consequences to any strategy or plea other than "not guilty". If they cannot authoritatively answer your questions, as they should, seek a new and more qualified attorney. If a conviction has already occurred or is in your background, seek a qualified immigration lawyer.
The information provided throughout the Website is general in nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of Heller Immigration Law Group, LLP, or establish an attorney-client relationship.
Questions or comments, visit our site at hilglaw.com or email us at comments@hilglaw.com
