New Naturalization Certificate Designed to Enhance Security

More than 600,000 new citizens will receive the enhanced certificate over the next year, according to U.S. Citizenship and Immigration Services (USCIS). Please click the following link to see the full article and the image of the new certificate.

http://greencard1.com/new-naturalization-certificate-designed-to-enhance-security/

America in Trouble: Immigrant Saviors...

Dear Readers,

I felt this needed to be said, so I am saying it. Immigrants, come one, come all!

America (meaning the United States - no offense South America) is in trouble, big time. This did not happen yesterday, and it has been a long time coming. Holes this deep don't get dug overnight. There are many reasons, including 'globalization', developing countries... developing; China and India.. growing, OPEC - sticking it to us. The world is just changing, all around us and rapidly.

But this blogger thinks we wouldn't be in the mess, and can get out of it, if we had an immigration policy that made sense - instead we have had years now, unrelenting years, of anti-immigrant scapegoating. A refusal to "let go". A society, a government, a population that refuses to see what should be obvious, that dismisses our past reliance on new immigrants, that does not understand that we must "every so often" refresh, and, in computer terms - 'restart' our sytem, should be held at least partly responsible for the mess we are in.

As many insiders know, and most if they are not should be aware, that we've shut for the most part shut down U.S. immigration - and, to our detriment, the world, our competitors, and, most importantly, to those stuck in this lousy immigration system, know it. They can be the saviors, but we won't let them.

I am not just speaking about illegal entrants or those waiting for some type of amnesty. Yes, our economy needs even these people to become part of the system, to help us energize, pay taxes, become part of the new fabric that we will no doubt create. But just as importantly we need to send a clear message to those here (waiting to get through the legal immigration gate), and to those outside the country, that we also need the highly skilled, the scientists, engineers, entrepreneurs, and other builders of a society, to come, and recognize that the delays in our system for those going through it can be disheartening, and energy zapping, and for those wishing and willing to come - an impossible dream.

America, wake up! Closing our borders is not good for our economic well-being.

The future will involve teamwork, and we will certainly need 'all' of our people, including new immigrants, to become excited about America and its promise. We need immigrants and U.S. citizens alike to feel confident the future is bright and then together we can move American forward. This "promise of America" will not happen, I feel, until we 'refresh' - and that means allowing comprehensive immigration reform and bringing in those that will do the hard work, that will help us innovate, energize, and bring new entrepreneurial spirit to America; just like immigrants from generations past.

Right now everyone is stunned, and we as a society in a holding pattern, waiting for the worst, and it is very bad for America. We need to wake up.

Push the button America and watch the computer boot up! Release the energy that is just waiting for its time. Go ahead, push the button.

Alert: F-1 OPT to H1B (October 1 2008); Read Carefully!

To my readers, listen and read carefully - this is good news for many!

For those of you on F-1 OPT but whose 'work auhorization' would have expired prior to October 1, 3008 (if lucky enough to be chosen under the H1b lottery), you may be in luck.

The USCIS announced today that they will extend the OPT for 17 months for certain foreign students.

Please read on:

________________



Questions and Answers: USCIS Announces New Rule Allowing Extension of Optional Training Program for Qualified Students

PRIOR F-1 Regulations Relating to Practical Training:


What is optional practical training?
Optional Practical Training (OPT) is temporary employment that is directly related to an F-1 student’s major area of study. Under existing rules, an F-1 student may be authorized to receive up to 12 months of practical training either pre- and/or post- completion of studies.

Pre-completion OPT:
An F-1 student may be authorized to participate in pre-completion OPT after he/she has been enrolled for one full academic year. The pre-completion OPT must be directly related to the student’s course of study. Students authorized to participate in pre-completion OPT must work part-time while school is in session. They may work full time when school is not in session.

Post-completion OPT:
An F-1 student may be authorized to participate in post-completion OPT upon completion of studies. The post-completion OPT must be directly related to the student’s course of study.



What is the application process to participate in pre- or post-completion OPT?
Students must initiate a request by having their Designated School Official (DSO) recommend the OPT by endorsing Form I-20 and by making the appropriate notation in SEVIS, the system used to track F-1 academic students.
Students then file Form I-765, Application for Employment Authorization Document (EAD), with USCIS. If approved, the student will be issued an EAD.
The student may begin engaging in pre- or post-completion OPT once an application has been approved and an EAD has been issued.


How many students stand to benefit from today’s announcement?
There are approximately 26,000 students on OPT that have earned a bachelor's, master's, or doctorate in a STEM field. ICE and USCIS estimate that approximately 12,000 will take advantage of the STEM extension. Some of these students will be selected for an H-1B to start October 2009. Others may choose to continue their education, while some will depart the United States.
We estimate another 10,000 students will benefit from the automatic "cap gap" extension.


What is the maximum duration of post-completion OPT?
Under the new rule, certain students will be eligible to receive a 17 month STEM extension of post-completion OPT.


Do the periods of pre-completion OPT count against the available periods of post-completion OPT?
Yes. All periods of pre-completion OPT are deducted from the available periods of post-completion OPT.


Are there fees associated with filing for extended OPT?
Yes. USCIS charges $380.00 when an applicant files an I-765 for optional practical training.




Current H-1B/Cap Gap Regulations for F-1 Academic Students:


What is the H-1B cap?
The cap is the Congressionally-mandated limit on the number of individuals who may be granted H-1B status during each fiscal year. For FY08, the cap is 65,000.


What is the cap-gap?
Cap-gap occurs when an F-1 student’s status and work authorization expire in the current fiscal year, before they can start their approved H-1B employment in the next fiscal year beginning on October 1. An F-1 student in a cap-gap situation would have to leave the United States and return at the time his or her H-1B status becomes effective at the beginning of the next fiscal year.


How does cap gap occur?
Many employers file H-1B petitions on behalf of F-1 students after their post-completion OPT expires. An employer can not file, and USCIS could not approve, an H-1B petition submitted earlier than six months in advance of the date of actual need for the beneficiary’s services or training.
As a result, the earliest date that an employer can file an H-1B petition for consideration under the next fiscal year cap is April 1, for an October 1 employment start date. If that H-1B petition and the accompanying change of status request are approved, the earliest date that the student may start approved H-1B employment is October 1.

Consequently, F-1 students who are the beneficiaries of approved H-1B petitions, but whose periods of authorized stay (including authorized periods of post-completion OPT and the subsequent 60-day departure preparation period) expire before October 1, must leave the United States, apply for an H-1B visa at a consular post abroad, and then seek readmission to the United States in H-1B status.



What are the current cap-gap regulations?
Current regulations address the cap gap by authorizing an extension of the student’s authorized stay, but they do not extend the student’s employment authorization. This extension was not automatic, which meant that a notice had to be published in the Federal Register announcing the extension.
When this Federal Register notice was published, the student’s authorized stay was extended, but not the employment authorization. This means the student can remain in the United States until October 1, when the approved H-1B employment can begin, but cannot work until then.
If a Federal Register notice is not published, the student must leave the United States, apply for an H-1B visa, and seek readmission to the United States in H-1B status.


How is the cap-gap situation changed under the interim final rule?
F-1 academic students on post-completion OPT maintain valid F-1 status until the expiration of their OPT. Once that OPT has ended, they are authorized to remain in the United States for up to 60 days to prepare for departure.
This cap-gap extension automatically becomes effective when the H-1B cap has been reached and the student has an H‑1B petition filed on his/her behalf during the acceptance period.
If the H-1B petition filed on behalf of the student is not selected during the acceptance period, the automatic extension terminates when USCIS announces completion of the random selection on its public web site.
If the H-1B petition filed on behalf of the student is selected during the acceptance period, the student may remain in the United States and continue working until the October 1 start date indicated on the approved H-1B petition. The student may benefit from this provision only if he/she has not violated his/her status.


What is covered and clarified under the interim OPT Rule?
F-1 academic students may now apply for post-completion OPT 90 days before their academic programs end and no later than 60 days after their academic programs end.
This allows F-1 students seeking post-completion OPT to apply during their 60-day departure preparation periods, in the same way that they are allowed to apply for H-1B status during their departure preparation periods.
This allows students to ensure that they meet graduation requirements before applying for post-completion OPT.


Is there additional post-completion OPT available to students in the high-tech industry?
F-1 academic students who receive science, technology, engineering, and mathematics (STEM) degrees and who receive an initial grant of post-completion OPT, may apply for a 17-month extension for a maximum of 29 months of post-completion OPT.
This gives U.S. businesses two chances recruit these highly desirable graduates through the H-1B process.


Who is responsible for the development of the designated list of STEM degrees?
The STEM Designated Degree Program List is based on the "Classification of Instructional Programs" developed by the U.S. Department of Education's National Center for Education Statistics.


What are the eligible STEM degrees?
To be eligible for the 17-month OPT extension, a student must have received a degree in one of the following fields:
Computer Science Applications Life Sciences
Actuarial Science Mathematics
Engineering Military Technologies
Engineering Technologies Physical Sciences.

The STEM degree list is posted on the ICE website in the Related Links section of this page.
What are the eligibility requirements for the 17-month extension of post-completion OPT?
The student must have a bachelor’s, master’s or doctorate degree in a STEM field.
The employer must be enrolled in E-Verify.
The student must apply on time (at least 90 days before the current post-completion OPT expires).
What is the E-Verify program?
The E-Verify program is an internet-based system operated by USCIS, in partnership with the Social Security Administration (SSA).
The E-Verify program currently is the best means available for employers to determine employment eligibility of new hires and the validity of their Social Security Numbers.
E-Verify electronically compares information contained on the Employment Eligibility Verification Form I-9 with records contained in SSA and DHS databases to help employers verify identity and employment eligibility of newly-hired employees.
Is there a cost associated with employers participating in the E-Verify program?
No, E-Verify is a free, easy to use web-based system available to employers and in all 50 states, the District of Columbia, Puerto Rico, Guam, and the U.S. Virgin Islands.
What is the application process for the 17-month STEM extension?
The student files Form I-765 with USCIS, Form I-20 endorsed by the DSO, a copy of the STEM degree, and the required application fee.
Form I-765 is being amended to require the student to indicate the degree and provide the employer’s E-Verify information.
Students who timely file their STEM extension applications with USCIS may continue working while their applications are pending for 180 days or the date of the decision, whichever date is earlier.
This interim extension minimizes disruption in the student’s employment and also ensures that employers will conduct the necessary employment eligibility re-verification.
What must a student do after being granted the 17-month STEM extension?
The student must report to his or her DSO (by email, within 10 days) any change in:
Legal name;
Residential and mailing address;
E-mail address;
Employer name;
Employer address;
Job title or position;
Supervisor name and contact information;
Employment start-date; and
Employment end-date
The student must also report to his or her DSO every six months (by email), confirming the information listed above; even if there have been no changes.
The requirement to report continues if the student’s 17-month STEM extension is extended further by the automatic cap-gap extension.

AC21 Portability and You: Moving Around after 180 Days

To My Readers:

The below USCIS Memo is still the ultimate in understanding how the Immigration Service looks at 'porting' under AC21, that is, leaving ones job and sponsor - who filed a visa petition on one's behalf, to take another job (but before the individual has obtained PR status).

The Service and Congress decided that if one was in the last stages of obtaining permanent resident status (plus 180 days), one could leave one's petitioning employer to go to a job in the "same or a similar" job category with another employer - and not lose one's right to obtain his/her 'green card'.

It was clear that Congress decided that at some point these individuals must have 'free reign'.

In my opinion, this was Congress' way of helping to 'fix' a broken immigration system, but that is another blog (and I've been there, done that). Reforming or immigration system that is so out of step with reality, the global nature of things today - and competing in such a world, our broken educational system... is not really possible. A total recall is in order.

Back to the issue of porting and helping readers understand what is written below. The most important thing is that porting is possible and no one should feel forced to stay with a petitioning employer after 180 days after the I-485 is filed.

On my own cases, where I know the file was put together properly, that the merits are all in order, in my mind 180 days mean 180 days. If USCIS could artificially delay the porting somehow - thus changing the timeframe mandated by Congress then it would have no meaning.

The memo, however, suggests just that - and most practitioners still advise clients, I believe erroneously, that they must "wait" until the underlying employment-based visa petition (submitted on form I-140) is approved.

Is it prudent to wait? In situations where a meritorious RFE (Request for Evidence) may ensure, yes. Does the Memo lead one to believe that one should fear one's employer (after leaving them to 'port') can refuse or fail to respond to an RFE issued by the Service - and thus sabotage one's future immigration? I think the memo suggests that the Service has no alternative and I understand this. But if one's I-140 petition has merit and was properly prepared by qualified and experienced immigration counsel, I don't think there should be a problem (and them Memo overreaches). That is just my opinion.

Most non-citizens fear the Immigration Service as they should naturally fear any authority; however, truth has strength too - and can be a very, very powerful weapon itself. Everyone should remember that.

The Memo:


____


To: REGIONAL DIRECTORS

SERVICE CENTER DIRECTORS

From: Michael Aytes

Acting Director of Domestic Operations

Date: December 27, 2005

Re: Interim guidance for processing I-140 employment-based immigrant petitions and I-485 and H-1B petitions affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313)

This memorandum serves to reissue the prior guidance of May 12, 2005 without change except to clarify the answer to question 1 in Section I. The entire reissued memorandum, with the clarification, follows:

Purpose

The purpose of this memorandum is to provide field offices with interim guidance on:
(1) Processing Form I-140 petitions and Form I-485 applications in connection with the I-140 portability provision of §106(c) of AC21;

(2) Adjudication of H-1B petitions in connection with the 7th year extension provisions of §106(a) of AC21;

(3) Adjudication of H-1B petitions in connection with the 7th year extension provisions of 104(c) for aliens subject to per country visa limitations; and

(4) Adjudication of H-1B petitions in connection with the H-1B portability provisions of §105 of AC21;

This interim guidance will only be in effect until regulations that are currently in progress are published as a final rule. The proposed rule may take a more restrictive position than this memorandum. Please note that the Adjudicator’s Field Manual (AFM) will not be updated at this time.

Prior AC21 Guidance

􀂃 On January 29, 2001, the Office of Field Operations issued a memorandum entitled "Interim Guidance for Processing H-1B Applications for Admission as Affected by the American Competitiveness in the Twenty-First Century Act of 2002, Public Law 106-313."

􀂃 On June 19, 2001, the Office of Programs issued a follow-up memorandum entitled "Initial Guidance for Processing H-1B Petitions as Affected by the American Competitiveness in the Twenty-First Century Act (Public Law 106-313) and Related Legislation (Public Law 106-311) and (Public Law 106-396)."

􀂃 On February 28, 2003, the Immigration Service Division issued a memorandum entitled “Procedures for concurrently filed family-based or employment-based Form I-485 when the underlying visa petition is denied.”

HQPRD 70/6.2.8-P20 Massachusetts Avenue, NW
Washington, DC 20529

Interim guidance for processing I-140 employment-based immigrant petitions and I-485 and H-1B petitions affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313)

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􀂃 On April 24, 2003, the Office of Operations issued a memorandum entitled “Guidance for Processing H-1B Petitions as Affected by the Twenty-First Century Department of Justice Appropriations Authorization Act (Public Law 107-273).”

􀂃 On August 4, 2003, the Office of Operations issued a memorandum entitled “Continuing Validity of Form I-140 Petition in Accordance with Section 106(c) of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21).”

All of these memoranda remain in effect and this memorandum supplements the existing guidance.

New AC21 Guidance

New issues and questions in connection with I-140 portability cases and H-1B cases have arisen since the previous guidance memoranda were issued. Implementation of the provisions of AC21 have been further complicated by the interim rule published on July 31, 2002, allowing, in certain circumstances, the concurrent filing of Form I-140 and Form I-485. Previous Service regulations required an alien worker to
first obtain approval of the underlying Form I-140 before applying for permanent resident status on the Form I-485.

This guidance is intended to address those questions and issues. This memorandum is divided into four separate sections, establishing guidelines and interim procedures for use by USCIS personnel:

􀂃 Section I - Processing of Form I-140 petitions and Form I-485 applications when there is a question of eligibility for I-140 portability benefits under §106(c) of AC21.

􀂃 Section II - Processing of H-1B petitions where there is a question of eligibility for an H-1B extension past the 6-year limit under §106(a) of AC21.

􀂃 Section III - Processing of H-1B petitions where there is a question of eligibility for an H-1B extension past the 6-year limit under §104(c) of AC21 (aliens subject to per country limitations).

􀂃 Section IV - Processing of H-1B petitions where there is a question of the affect of H-1B portability under §105 of AC21.

I. Q & A ON PROCESSING OF I-140 PETITIONS AND I-485 APPLICATIONS UNDER THE I-
140 PORTABILITY PROVISIONS OF §106(C) OF AC21

Question 1. How should service centers or district offices process unapproved I-140
petitions that were concurrently filed with I-485 applications that have been pending
180 days in relation to the I-140 portability provisions under §106(c) of AC21?

Answer: If it is discovered that a beneficiary has ported off of an unapproved I-140 and I-485 that has been pending for 180 days or more, the following procedures should be applied:

A. Review the pending I-140 petition to determine if the preponderance of the evidence establishes that the case is approvable or would have been approvable had it been adjudicated within 180 days. If the petition is approvable but for an ability to pay issue or any other issue relating to a time after the filing of the petition, approve the petition on it’s merits. Then adjudicate the adjustment of status application to determine if the new position is the same or similar occupational classification for I-140 portability purposes.

B. If a request for additional evidence (RFE) is necessary to resolve a material issue, other than post-filing issues such as ability to pay, an RFE can be issued to try to resolve the issue. When a response is received, and if the petition is approvable, follow the procedures in part A above.

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Question 2. How should service centers or district offices process unapproved I-140
petitions that were concurrently filed with I-485 applications that have been pending
180 days and a Request for Evidence (RFE) has been issued?

Answer: If a response to an RFE is received, and the response does not adequately address the issues, or the response is simply that the beneficiary no longer works for the petitioner, or a response is not received at all, and the petition still cannot be approved:

A. Deny the petition on the merits of the case; and

B. Deny the I-485 and the portability request since there was never an approved petition from which to port.

Question 3. What is “same or similar” occupational classification for purposes of I-140 portability?

Answer: When making a determination if the new employment is the “same or similar” occupational classification in comparison to the employment in the initial I-140, adjudicators should consider the following factors:

A. Description of the job duties contained in the ETA 750A or the initial I-140 and the job duties of the new employment to determine if they are the “same or similar” occupational classification.

B. The DOT code and/or SOC code assigned to the initial I-140 employment for petitions that have a certified ETA 750A or consider what DOT and/or SOC code is appropriate for the position for an initial I-140 that did not require a certified ETA 750A. Then consider the DOT code and/or SOC code, whichever is appropriate for the new position to make a determination of “same or similar” occupational classification.

C. A substantial discrepancy between the previous and the new wage. (See Question 5 of this section for further clarification).

Question 4. Should service centers or district offices use a difference in geographic location of the employment in the approved labor certification and initial I-140, and the new employment as basis for denial in I-140 portability cases?

Answer: No. The relevant inquiry is if the new position is the same or similar occupational classification to the alien’s I-140 employment when considering the alien’s new position and job duties and not the geographic location of the new employment.

Question 5. Should service centers or district officers use a difference in the wage offered on the approved labor certification and initial I-140, and the new employment as basis for denial in adjustment portability cases?

Answer: No. As noted above the relevant inquiry is if the new position is the same or similar occupational classification to the alien’s I-140 employment. A difference in the wage offered on the approved labor certification, initial I-140 and the new employment cannot be used as a basis of a denial. However, a substantial discrepancy between the previous and the new wage may be taken into consideration as a factor in determining if the new employment is “same or similar.”

Question 6. Can multinational managers or executives classifiable under 8 USC
203(b)(1)(C) avail themselves of AC21 §106(c) (8 USC §204(j)) portability benefits even where the alien changes to a new job as a manager for an unrelated company? Can
“same or similar” for multinational employees mean employment with an unrelated
company?

Answer: Yes, multinational managers or executives can avail themselves of portability benefits where the alien changes to a new job as a manager or executive even for an unrelated company. However, there may be factual circumstances where such aliens cannot benefit from porting (i.e. where the job Interim guidance for processing I-140 employment-based immigrant petitions and I-485 and H-1B petitions affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313)

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duties are vastly different, so that that the new position is not in the same or similar occupational classification as the I-140 employment).

Question 7. Should service centers or district offices request proof of “ability to pay” from successor employers in I-140 portability cases, in other words, from the new company/employer to which someone has ported?

Answer: No. The relevant inquiry is whether the new position is in the same or similar occupational classification as the alien’s I-140 employment. It may be appropriate to confirm the legitimacy of a new employer and the job offer through an RFE to the adjustment applicant for relevant information about these issues. In an adjustment setting, public charge is also a relevant inquiry.

Question 8. Can an alien port to self-employment under INA §204(j)?

Answer: Yes, as long as the requirements are met. First, the key is whether the employment is in a "same or similar" occupational classification as the job for which the original I-140 petition was filed.

Second, it may be appropriate to confirm that the new employer and the job offer are legitimate through an RFE to the adjustment applicant for relevant information about these issues. Third, as with any portability case, USCIS will focus on whether the I-140 petition represented the truly intended employment at the time of the filing of both the I-140 and the I-485. This means that, as of the time of the filing of the I-140 and at the time of filing the I-485 if not filed concurrently, the I-140 petitioner must have had the intent to employ the beneficiary, and the alien must have intended to undertake the employment, upon adjustment. Adjudicators should not presume absence of such intent and may take the I-140 and supporting documents themselves as prima facie evidence of such intent, but in appropriate cases additional evidence or investigation may be appropriate.

Question 9. Must a successor employer in an I-140 portability case provide a new labor certification?

Answer: No. There is no requirement that successor employers in adjustment portability cases obtain a new labor certification for those occupations traditionally requiring one. AC21 also provides that any underlying labor certification also remains valid if the conditions of §106(c) are satisfied. The
beneficiary of an approved labor certification may benefit from it although the alien seeks to adjust on the basis of different employment.

Question 10. Should service centers or district offices deny portability cases on the sole basis that the alien has left his or her employment with the I-140 petitioner prior to the I-485 application pending for 180 days?

Answer: No. The basis for adjustment is not actual (current) employment but prospective employment. Since there is no requirement that the alien have ever been employed by the petitioner while the I-140 and/or I-485 was pending, the fact that an alien left the I-140 petitioner before the I-485 has been pending 180 days will not necessarily render the alien ineligible to port. However, in all cases an offer of employment must have been bona fide. This means that, as of the time the I-140
was filed and at the time of filing the I-485 if not filed concurrently, the I-140 petitioner must have had the intent to employ the beneficiary, and the alien must have intended to undertake the employment, upon adjustment. Adjudicators should not presume absence of such intent and may take the I-140 and supporting documents themselves as prima facie evidence of such intent, but in appropriate cases additional evidence or investigation may be appropriate.

Question 11. When is an I-140 no longer valid for porting purposes?

Answer: An I-140 is no longer valid for porting purposes when:

A. an I-140 is withdrawn before the alien’s I-485 has been pending 180 days, or

B. an I-140 is denied or revoked at any time except when it is revoked based on a withdrawal that was submitted after an I-485 has been pending for 180 days.

Interim guidance for processing I-140 employment-based immigrant petitions and I-485 and H-1B petitions affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313)

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Question 12. Can the 180 days that an I-485 application must be pending for I-140
portability eligibility accrue during a period when visa numbers are unavailable?

Answer: Yes. The fact that a visa number becomes unavailable after the filing of the I-485 application does not stop the number of days required for I-140 portability eligibility from accruing.

Question 13. Does the alien’s priority date change as a result of porting under §106(c) of AC21?

Answer: No. The priority date continues to be determined at the time of the initial labor certification filing with the Department of Labor or at the time the initial I-140 immigrant petition is filed with USCIS (in cases where no labor certification is required).

Question 14. Must the alien have a new offer of employment at the time the I-485 is being adjudicated under the I-140 portability provisions?

Answer: Yes. The alien cannot still be looking for “same or similar” employment at the time the I-485 is being adjudicated under the adjustment portability provisions. The alien must be able to show there is a new valid offer of employment at the time the I-485 is adjudicated.

II. Q & A ON PROCESSING OF H-1B PETITIONS UNDER THE EXTENSION PROVISION OF
§106(A) ALLOWING EXTENSION PAST THE H-1B 6 YEAR LIMIT

Question 1. When an alien would otherwise be eligible for an H-1B extension, is it necessary to first file a Form I-129 requesting an extension of time to allow the beneficiary to complete or nearly complete the initial 6 years, and then file an additional Form I-129 requesting an extension of time beyond the 6 years?
Answer: No. Section 106(a) of AC21 allows an alien to obtain an extension of H-1B status beyond the 6-year maximum period, when:

A. 365 days or more have passed since the filing of any application for labor certification, Form ETA 750, that is required or used by the alien to obtain status as an EB immigrant, or

B. 365 days or more have passed since the filing of an EB immigrant petition.
Once these requirements have been met, the alien may be granted an extension beyond the 6-year maximum on or prior to the date the alien reaches the 6-year maximum. Such extensions may only be granted in one-year increments, but may be requested on a single (combined) extension request for any remaining time left in the initial 6-year period. Requiring the filing of two extension petitions merely increases petitioner and CIS workloads, and has no basis in statute. In no case, however,
may the total period of time granted on an extension exceed a cumulative total of 3 years. 8 CFR 214.2(h)(15)(ii)(B)(1).

Question 2. How early can a request for an H-1B extension beyond the 6th year be filed?

Answer: The April 24, 2003 guidance memorandum is modified in the following manner: a petitioner must establish that the above criteria (see Question 1 outlining requirements under Section 106(a)) were or will be met either on or before the requested start date on the H-1B extension application. Thus, an alien is eligible for an extension of H-1B status beyond the 6th year as long as either the qualifying labor certification application or I-140 petition has or will have been pending for at least 365 days prior to the alien’s requested start date, regardless of whether the H-1B extension application was filed prior to the passage of such period If the alien would no longer be in H-1B status at the time that 365 days from the filing of the labor certification application or immigrant petition has run, thus leaving a gap in valid status, then the extension of stay request cannot be granted.
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Question 3. Are there cases where an alien, who has been granted an H-1B extension
beyond the 6th year, will nonetheless only be allowed to remain for the 6-year maximum period of stay?

Answer: Yes. As addressed in the April 24, 2003 guidance memorandum, USCIS is required to grant the extension of stay request made under section 106(a) of AC21, in one-year increments, until such time as a final decision has been made to:
A. Deny the application for labor certification, or, if the labor certification is approved, to deny the EB immigrant petition that was filed pursuant to the approved labor certification;

B. Deny the EB immigrant petition, or

C. Grant or deny the alien’s application for an immigrant visa or for adjustment of status. If at any time before or after the filing of the single (combined) extension request a final decision is made on the above-stated grounds, the beneficiary of the extension request will not be entitled to an extension beyond the time remaining on his or her 6-year maximum stay unless another basis for exceeding the maximum applies.

Question 4. In a labor substitution context, can both the original alien and the substituted alien apply for an H-1B extension beyond the 6-year limit based on §106(a) of AC21?

Answer: No. Only the “current” beneficiary (meaning the alien that was most recently substituted into the labor certification) is eligible to get an H-1B extension beyond the 6-year limit.

Question 5. Does a timely and non-frivolous I-140 appeal pending at the AAO allow an alien to request an H-1B extension beyond the 6-year limit?

Answer: Subject to regulatory modification, as long as a decision may be reversed on direct appeal or certification to the Administrative Appeals Office (AAO), USCIS will not consider that decision final for this purpose.

Question 6. Should service centers or district offices deny a request for an H-1B extension beyond the 6-year limit where the labor certification was filed over 365 days ago, has been approved, but the I-140/I-485 has not yet been filed?

Answer: No. Until further guidance is published, a request for an H-1B extension beyond the 6-year limit should not be denied on the sole basis that an I-140 petition has not yet been filed.

Question 7. Should service centers or district offices deny a request for an H-1B extension beyond the 6-year limit where the labor certification or immigrant petition from an employer who is not the H-1B petitioner was filed for the beneficiary more than 365 days ago?

Answer: No. The statute does not require that the labor certification or immigrant petition must be from the same employer requesting the H-1B extension.

Question 8. Should service centers or district offices deny a request for an H-1B extension beyond the 6-year limit where the labor certification or the immigrant petition was filed over 365 days ago, but the H-1B nonimmigrant intends to consular process rather than adjust status?

Answer: No.

Question 9. Are H-4 dependents eligible for an H extension beyond the 6-year limit?
Answer: Yes. H-4 dependents are eligible for an extension of their H-4 status beyond the 6-year limit provided they meet the H-4 requirements and based on the principal (H-1B) alien’s eligibility for an H-1B extension beyond the 6-year limit. This includes cases where the dependent may have held another status prior to becoming an H-4 dependent. However, in order to qualify for an H-1B Interim guidance for processing I-140 employment-based immigrant petitions and I-485 and H-1B petitions affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313)

Page 7

extension beyond the 6 year limit year of their own H-1B status, the alien must meet all the requirements independently of their H-1B spouse’s eligibility for a 7th year extension.

Question 10. What are the guidelines for processing 7th Year Extensions with the
implementation of the new DOL PERM Program?

Answer: Guidance on this subject will be provided via separate memorandum.

III. Q & A ON PROCESSING OF H-1B PETITIONS UNDER THE “ONE-TIME PROTECTION
UNDER PER COUNTRY CEILING” PROVISION OF §104(C) ALLOWING EXTENSION PAST
THE H-1B 6-YEAR LIMIT

Question 1. Must an alien be the beneficiary of an approved I-140 petition in order to qualify for extension of H-1B status beyond the 6-year limit based on §104(c) of AC21?

Answer: Yes. Consistent with prior USCIS guidance on this subject, an approved I-140 petition is required in order for an alien to qualify for an extension of H-1B status beyond the 6-year limit under § 104(c).

Question 2. If an alien qualifies for an extension past the H-1B 6-year limit under §104(c), may an extension be granted for a period of up to three years?
Answer: Yes, provided all other H-1B statutory and regulatory requirements are met (e.g., the petition must request three years, and include a Labor Condition Application covering such period).

Question 3. If an alien qualifies for an extension past the H-1B 6-year limit under §104(c), may more than one extension be granted?

Answer: Yes. USCIS recognizes that in some cases, because of per country visa limitations, it may take more than three years for the alien to be eligible to adjust. Thus, despite the reference to a “onetime protection” a qualifying alien may be granted more than one extension under this provision.

IV. Q & A ON PROCESSING OF H-1B PETITIONS UNDER THE H-1B PORTABILITY
PROVISIONS

Question 1. Can an H-1B temporary worker “port” under §105 of AC21 (INA § 214(n)) from one employer to another even after the alien’s I-94 or last approved petition has expired as long as he or she is still in a “period of stay authorized by the Attorney General”?

Answer: Yes. Under certain circumstances, an H-1B alien may still be able to port to another H-1B employer even after the alien’s I-94 or last approved petition has expired. In order to port, however, such alien must meet all the requirements of INA § 214(n), including the requirement that the new petition be filed while the alien is in a “period of stay authorized by the Attorney General.” USCIS has previously determined and issued guidance explaining what constitutes a “period of stay authorized by the Attorney General.” One example would be:

Alien is in H-1B status. Employer A timely files a non-frivolous extension of the alien’s H-1B status. Alien’s original petition, approved for Employer A, expires during the pendency of the extension. Alien is then in a “period of stay as authorized by the Attorney General” while Employer A’s extension is pending. Employer B then files new petition and alien wants to port to Employer B. Under INA § 214(n), the alien should be permitted to port because he or she is in a
“period of stay as authorized by the Attorney General.” In other words, porting under INA §214 does not require that the alien currently be in H-1B status as
long as he or she is in a “period of stay authorized by the Attorney General.”
Interim guidance for processing I-140 employment-based immigrant petitions and I-485 and H-1B petitions affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313)

Page 8

Question 2. Can there be successive H-1B portability petitions filed for an alien while the previous H-1B petitions remain pending (i.e. creating a “bridge” of H-1B petitions)?

Answer: Yes. However, to be approved every H-1B portability petition must separately meet the requirements for H-1B classification and for an extension of stay.

Question 3. If successive H-1B portability petitions can be filed, what happens if an alien’s nonimmigrant status expires while the H-1B portability petitions are pending and a petition in the “bridge” is denied?

Answer: As stated above, to be approved every H-1B portability petition must separately meet the requirements for H-1B classification and for an extension of stay. In the event the alien’s nonimmigrant status has expired while the petitions are pending, the denial of any filing in the string of extension of stay and/or change of status filings undercuts the “bridge” that “carried” any petition
filed after the expiration of any approved status which will result in the denial of the successive requests to extend or change status.

* * * * *
Questions regarding this memorandum may be directed through appropriate channels to Service Center Operations.

Now that the H1B fiasco is over.....

I asked people on LinkedIn what they thought about an upcoming Immigration Article. My LinkedIn Question asked readers about their experience or thoughts on Employee Retention. It could have been subtitled: IMMIGRATION: A BROKEN SYSTEM - Will We (THE USA) Go Down with the Ship?

______ Here is my response to one email.

Paul M. Heller, Esq. wrote:

Hi Dimitrios,

Of course what you said was very perceptive (and we are in 100% agreement); it is very sad that this country is, and has been, headed the way of the British Empire and Rome - but I do believe we are fighting an uphill battle against our own politics (too bad only US citizens vote).

Xenophobia always thrives in bad economic times (really since 1999), i.e., scapegoats and the concept of 'devil' have been around forever, and it also arises when 'McCarthyism' raises its ugly head. I coined the term "New McCarthyism" after 9/11 - but it really hasn't been picked up yet.

But I think that it isn't just "bad economic times"; it is globalization and an economic and seismic shift that we aren't prepared for (and still don't fully understand). It is easily defended against not by closing or tightening immigration but by changing our country's immigration policy to attract those that we need "to innovate" and compete in a global market for a brighter and better future.

The "best and brightest" still want to come to this country if it affords them the opportunities and freedoms often lacking in other cultures. At this point in time we have an unbelievable 'closed door' policy (that makes absolutely no sense - except to U.S. politicians who are voted in and out of office and who feel there role in this society is to keep their job!

Fear is a powerful tool of the powerful and often used by those who govern over the governed. It is a sad time that we live in. Everyone is waiting for a true Statesman (man/woman) to arrive on the scene.

Email me directly and we will then be e-Connected; thanks.

Best,

p



On 3/30/08 8:51 AM, Dimitrios Goranitis wrote:
--------------------
Hello Paul,

I would like to reply privately to this if you dont mind.

I am a european union citizen (greek), but I spent 5 years in New York where I got my MBA and then worked for Bear Stearns and UBS. Even though I understand the problem US faces with immigration I would expect a different treatment towards low risk countries and I would call them low risk in terms of low possibility to pursue permanent stay in the US. I find two basic flaws in the current situation:

- First of all, more strict laws block human capital traffic creating a non competitive HR market. The consuquence for that would be less effective firms and finally a less effective economy.
- Second, such laws restrict the choices an expat has in terms of employment (it was clear that only a big bank and not a boutique could sponsor my visa...) and also restrict negotiating power of the employee (based on sponsoring my visa, each bank could force me to comply with its terms of employment - money, ttile)

There is an urban myth that becomes more and more intense that immigrants steal jobs from citizens, and that myth has been used as a toy in the hands of politicians in several societies. Upon this myth, politicians take measures that hurt economy and restrict its growth. Simply put, if I make money in the states, I spend it in the states and I pay taxes, feeding the economy, which expands and creates more employment opportunities.

This is my view of the situation. I hope it helps.

Best,

Dimitrios

Question Details:
--------------------
Writing an Article on U.S. Immigration Law - Employee Recruitment & Retention: The Good, Bad & Ugly.

View question - Respond to Paul M. Heller, Esq.
LinkedIn Answers
• View question

• Respond to Paul M. Heller, Esq.

Great News on the Immigration Front: USCIS revises FBI Name Check Policy!

USCIS Revises Name Check Policy.

This is great news!

The USCIS previously required that the FBI name check clearance be obtained before any immigration benefits applications were approved, regardless of the length of time required for the FBI name check approval.

This has led to many frustrated clients (often brilliant scientists) that often have been waiting for years.

Now the USCIS has issued this new policy, which essentially says that they'll wait 180 days for a clearance - and if the case is approvable it will be granted! This is the USCIS' way of forcing the FBI to do its job.

As an aside, this has been a long time in coming. Let's all cross our fingers for more!

_________________


"Where the application is otherwise approvablc and the FBI name check request has been pending for more than 180 days, the adjudicator shall approve the 1-485,1-601,1-687, or 1-698 and proceed with card issuance. The FBI has committed to providing FBI name check results within this timeframe."



FEB4- 2008

HQ 70/23 & 70/28.1

Interoffice Memorandum

TO: Field Leadership

FROM: Michael Aytes

Associate Director, Domestic Operations

SUBJECT: Revised National Security Adjudication and Reporting Requirements
Background

U.S. Citizenship and Immigration Services (USCIS) conducts background checks on alt
applicants, petitioners, and beneficiaries seeking immigration benefits. This is done both to enhance national security and to ensure the integrity of the immigration process. USCIS has previously mandated that FBI name checks be completed and resolved before any positive adjudication can proceed on certain form types. This memorandum modifies existing guidance for applications where statutory immigration provisions allow for the detention and removal of an alien who is the subject of actionable information that is received from the FBI or other law
enforcement agencies after approval of the application. USCIS is issuing revised guidance in response to recommendations of the DHS Office of Inspector General (OIG-06-06) regarding the need to align the agency's background and security check policies with those of U.S. Immigration and Customs Enforcement (ICE). The
Background and Security Investigations in Proceedings Before Immigration Judges and the Board ofImmigration Appeals regulations prevent immigration judges and the Board of Immigration Appeals (BIA) from granting benefits to aliens before DHS confirms that all background and security checks have been completed. See 8 C.F.R. § 1003.47(g); 8 C F R. § 1003.1(d)(6)(i). In the context ofremoval proceedings, ICE has determined that FBI fingerprint checks and Interagency Border Inspection Services (IBIS) checks are the required security checks for purposes of the applicable regulations. In the unlikely event that FBI name checks reveal actionable information after the immigration judge grants an alien permanent resident
K?5 ??iLmay detain and initittt0 remoya proceedings against the permanent resident. See 8 U.S.C. § 1227; see also 8 U.S.C. § 1256 (allowing DHS to rescind an alien's adjustment of status).

WWWUUClLgOV

"Best and Brightest": Let's Keep Them Here!

Dear Readers,

I thought you might find the below article interesting. Our Presidential hopefuls should 'listen' carefully to the story told.

It is about one individual, an Indian national, who did come here (circa 1993) as a young and brilliant graduate of one of India's most prestigious academic institutions - only to obtain hiS PhD and go on to start 6 U.S. companies. Eventually he obtained his U.S. citizenship.

His message? Today, fewer "best and brightest" want to come here!

Read on...

____________________________________

First Published in Forbes Magazine in early 2007..

Letter From Silicon Valley
Silicon Valley's Immigration Problen

____________________________________

Reposted Article:

If you could choose between starting a high-tech career in India or the U.S., which would you pick?

Indian immigrant Rosen Sharma opted for the U.S. in 1993 and has done extraordinarily well here. But if he were just coming out of college these days, he says, he would pick India. The business opportunities are better, he says, and quality of life issues are at least as good: Nice housing? Schools? Safe streets? The chance to feel prosperous on a young engineer's salary? India is holding its own just fine against the U.S., he believes.

Sharma's answer is unnerving. A big part of the U.S. tech boom over the past 20 years has come from our ability to pull in the best and the brightest from India, Taiwan and other Asian countries, year after year. We've taken it for granted that these talented immigrants want to come here and that they will help the next generation of American start-ups achieve greatness.

But Sharma's perspective demands our attention.

In 1993, he says, after graduating with flying colors from the Indian Institute of Technology in Delhi, Sharma headed straight for the U.S. So did most of his classmates. Of the 40 people in Sharma's graduating class at IIT Delhi, he says, all but three came to the U.S.

It was a smart move for him and a great deal for the U.S. Sharma earned a Ph.D. from Cornell University and has since started more than a half-dozen companies--building products, generating revenue, rewarding investors and creating jobs. Now he sits on five company boards and runs his own start-up, SolidCore Systems, in Palo Alto, Calif.

The U.S. is home to Sharma now. He's applied for U.S. citizenship. He's raising his children here. He wants the U.S. to be an engine of innovation, for U.S. companies to build sought-after products and to generate good returns for workers and shareholders.

But Sharma, who is president of the IIT Delhi Alumni Association, says the next generation of Indian engineers are unlikely to feel the way he does: Last year, only 10 of the 45 IIT graduates who went through the same program Sharma did decided to pursue jobs in the U.S., he says.

If this represents a trend, it will have significant consequences for the U.S. AnnaLee Saxenian, now dean of the School of Information at the University of California, Berkeley, has devoted years to tracking the impact of immigrant entrepreneurs. Along with researchers at Duke University, she reported in January that foreign-born immigrants helped start one of every four U.S. technology start-ups over the past decade. Together, those companies employed 450,000 people and generated $52 billion in sales in 2005, according to the study.

As America staggers toward the next national election, we'll hear plenty of slogans about making the U.S. "more competitive." Candidates will debate tax policies and vow to fix our public schools. Chances are you won't hear them talking about making the U.S. more receptive to ambitious graduates from overseas. But they should.

But take another look at my first question: It doesn't just apply to foreign nationals. If you're a bright young person born in the U.S., where should you begin your career? In this country or abroad?

"Overseas," asserts Sharma--but this time, for positive reasons. In order for U.S. companies to be competitive, to serve the largest number of customers and build the most suitable products for customers all over the globe, they will need executives who have broad global experience.

Students are already sensing this trend: Several months ago, when I spoke to business school students touring Silicon Valley about job prospects, many said they were actively considering international opportunities, too.

It sounds like a contradiction--that the U.S. should continue to try to try to woo the best and the brightest from overseas even as homegrown emerging stars seek their fortunes outside our borders. But in a world where competition is truly global, that kind of exchange program makes sense--particularly if those Americans eventually return home and help build stronger companies.

National Interest Waivers: The Untold Story!

Heller Immigration Law Group, LLP (http://greencard1.com), and our staff, are extremely adept and highly successful at expeditiously putting together and then filing EB2/NIW cases for advanced degreed professionals, or those who possess exceptional abilitiy in the sciences, arts, or business.

There is some confusion about eligibility under this category, and this is the reason for the blog, here it is:

1/ Contrary to what is often said, an applicant does not need international fame, or renown; we have many I-140 approvals of individuals whose recognition is limited to their own home country; that is, it is perfectly OK and acceptable that one's fame does not extend beyond one's own border!

Of course, HILG - on behalf of the client - must still convince the USCIS that giving such an individual a green card will benefit the United States and will truly be in the U.S. "National Interest".

2/ Letters of reference and advisory opinions that we receive (and often redraft) attesting to the applicant's exceptional ability do not need to come from U.S. sources at all. Each and every one can be from individuals or entities that are within the applicants own country - and even written in one's own language!

As stated, HILG can file these NIW cases for those that are presently here in the United States, and except for Indian and Chinese citizens (who have a backlog in the EB2 category), we may proceed directly to filing an adjustment of status of the principal and all dependent family members through concurrent filing procedures.

The entire family will be eligible for work authorization and be given authority to travel abroad (EAD and AP).

FOR THOSE WISHING TO IMMIGRATE FROM ABROAD:

If the individual is outside of the United States, please notify us and we will ask you for certain documentation, including completing a Questionnaire, and sending us a CV/Resume. Once we establish eligibility, HILG will immediately send out an Engagement Package. We will then put together the case with your help, and then directly file the I-140 (NIW) petition with the USCIS.

After the Approval is received, the case will proceed to Visa Processing at the appropriate U.S. Consulate - and soon thereafter the obtaining of immigrant visas for the entire family.

It should be noted that these cases will almost always be filed with the USCIS under self-petition rules and there is no need for an immediate job offer (often a stumbling block for those living abroad with very little contact with the United States).

Even the lack of English skills is not a stumbling block. However, we caution our many NIW clients who we self-petition from abroad that within a reasonable time after entering with their green card, the individual should expect to and truly seek employment in one's specialized field.

For more information, please contact me: heller@greencard1.com

An Immigration Solution: Not bad for a Politician...

Watching the Sunday cable news shows I came across Rudy Guiliani, the Presidential candidate from NYC ("the country's mayor"). Of course, I do not like his silly attempts to exploit 9/11, but I do think he's a smart guy. I don't want to get into politics here, or in the blog itself (maybe later); let it just be said that I am a registered independent, socially progressive, "progressively conservative", but really I just have a strong 'independent' bent that avoids being categorized (pretty much I don't like government or anyone to tell me what I should do or think). My mother, now deceased, was a Stanford 'Limo Liberal' who pretty much listened without critique or skepticism to NPR. In her mind, I was some sort of "right winger" (nothing, of course, could be further from the truth). However, I love ideas, and concepts, and therefore, god (small 'g') forbid in her mind ... I watched Fox news! It's not interesting to listen to those one agrees with. Well, in her mind, and in Palo Alto where I was born and raised, a Republican was automatically a racist, sexist, stupid, evil... (and you would certainly never associate yourself with 'that kind'). I'm not a Republican, nor have I ever been one, but the idea of small government, markets, low taxes, no IRS (ad valorem tax), liberatarianism, "no nation building", religious freedom, all appeal to me. It's to bad that the party of Lincoln was taken over by the religious right and the neo-cons who seem to have forgotten their own party's roots. The Democrats? I personally think that there is a huge amount of hypocricy on both sides, but I'd say more from the Democrats. Show me a poor Democrat (who hasn't already made it - whatever that means). To me, let them give away their own fortune first, show me their tax returns so I can verify that they've done so, then ask others to... The phrase itself is an Oxymoron. Of course, the Republicans have their own hypocricy. How can one be for personal freedom, free markets, low taxes, capitalism, free enterprise, then be for a war that costs the national a trillion dollars? Rail against "nation building" in Yugoslavia (under Clinton), then for it in Iraq? Philosophically it is the party for less government, for less government involvement, for personal privacy, and "State's Rights", less Federalism, but then we watch them constantly propose and have a strong legislative agenda (different, mind you; different constituencies) that does its best to invade that same personal privacy, and citizen's freedoms (to be free of an over zealous government). What is that about? Of course, the Democrats do the same thing. Have their own interest groups that they fight for. Did I talk about Religion? Why are our Politicians, both on the left and the right, talking about Christianity in the Presidential race? Explain that again? OK, there's so much more to say but I'll stop here for now.

Immigration and Guiliani? The purpose of this blog? Yes, that's why it is called a blog... you can meander. Give me a few hours...

Filing a new H-1b Case: Are there alternatives?

Dear Readers,

With the 2009 H-1b lottery fast approaching, and the need to get these matters properly prepared before the end of March 2008, I advise my clients (both individuals and companies) to get their cases to me now.

I ask the HR Directors, or other human resource staff, to gather up a spreadsheet of all company employees with some sort of immigration status (especially those on F-1 OPT), and to speak with Hiring Managers about any potential employees they are now interviewing and seriously looking at - and may want to offer a position to. I'll want to see the CV/resume as well. For example, if the individual has a U.S. advanced degree, there are additional H-1b visas available for them (20,000). It is imperative that I find out the nationality/birthplace of the individuals as this too is an important consideration. Are they Australian (E3 eligible)? From Chile or Singapore (H1b1)? Canadian or Mexican professionals (TN)?

This process has other advantages for HILG's company clients as well. It allows me to get into a new or renewed dialog with HR, often with the CEO or CFO, about the consequences of ignoring immigration as a matter of "policy"; I see it differently. I see it as an issue of employee retension. And my attitude is adamant. Too often I see companies "playing games" with an employee who long ago should have had their immigration status adjusted over to permanent residence, or at least should have begun the process. This is a huge mistake. More on this next......

H-1B Cases - Get Ready Now

Heller Immigration Law Group, LLP, and many immigration law firms, is beginning to prepare for filing new H-1b cases in late March 2008. In fact, we've started taking on new cases for 3 months now. Because of the volume of cases, we utilize INSZoom case management software, which is a comfort to clients who are given a 'login' code so that they can follow the progress of their cases.

Whether HILG is retained by an HR/corporate client or the individual him/herself, the H-1b petitioner will always be a validated and 'bona fide' company.

The concept behind H-1b is pretty straightforward. First, the petitioner/employer must be a legal entity, that is, a valid and verifiable business; it must have a tax or federal id number, employees, and be solid financially (to convince USCIS that it can actually pay the proferred wages). It does not have to be a large or formal 'inc' corporation and can even be organized as a sole proprietorship or partnership. USCIS, however, frowns upon anything that looks like "self-employment".

Another thing that can cause USCIS to take a closer look at a case is the appearance of what has become known as "speculative employement". Athough there is nothing in the statute or regulations that allow the USCIS to go there, they can and do (and if the issue is missed by the USCIS at this end, often it will come up at the US Consulate when a beneficiary of an approved H-1b petition is applying for his/her visa). I recommend that one avoid this type of job offer. In my experience such a job offer is usually associated with IT contracting type companies (willing to offer an H-1b position to an individual domestically or abroad but expecting that once on board pursuant to an H-1b approval he/she will find an IT 'project').

In fact, under the rules, one cannot be 'benched' even for a short period; the employee must be paid a salary which is consistent with the LCA filed with the U.S. Dept. of Labor and which is posted on the company premises.

Finally, it should be remembered that the duties and responsibilities offered must be described in such detail that the USCIS is convinced that the position involves a "specialty occupation", which is immigration/legal speak for a professional level job. Almost always this will be a job that requires a specialized bachelor's degree, or higher, or the foreign equivalent, even for entry level. Specialty occupations include: teacher, engineer, accountant, scientist, financial analyst, lawyer, MD, graphic artist, historian, and many others.

The term "Prevailing wage" is also a term of art. Generally, the lawyer involved makes certain the wage offered meets this requirement by utilizing the OES (a DOL salary survey for all occupations). And unlike a green card situation, an employer can hire and petition for the professional employee of their choice!

More on H-1b, and alternatives, shortly.

The Presidential Candidates: Why they don’t care about Immigration?

Dear Readers,

This is a simple and straightforward question. And the answer is quite simple. No. Why?

First and foremost, non-citizens don’t vote. Although President Bush sought the Hispanic vote for the Republican party by pushing comprehensive immigration reform, he didn’t come to grips with or understand the ability of ‘anti-immigrant’ advocates and radio/tv personalities to mobilize people to want the deportation of 20 million illegals. They also appealed to the “we must shut down our borders immediately” types. Except for Nativists such as Patrick Buchanan who want a “pure” America, few are against legal immigration - but most voters in the country are willing to wait to deal with our broken system until the problem of illegal immigration has been handled; of course, few seem to understand that the solution of illegal immigration inevitably involves and is tied to “comprehensive reform”, that is, taking away the incentive to come here illegally.

All that said, why are our politicians against even talking about immigration? The answer is simple. I’ve been practicing immigration law, mostly on the employment-based side, for over 25 years. Our economy and this anti-immigration wave of rhetoric are tied together. When good, immigration is off the table, when we are in a recession, or the economic realities are perceived in trouble by citizens, then “here it goes again”. Nothing really changes. Each time we are in a down cycle, recession or not, we look for a scapegoat. Immigrants are that scapegoat. Many years back it was the Jews who emigrated from Eastern Europe, the Italians, the Irish during that same time period. Ellis Island and all that. Now it is the low skilled Mexicans crossing the border in search of jobs, as well as the Indian and Chinese H-1b Engineers needed here in Silicon Valley. Besides the refrain “They are taking our jobs!”, I now hear “Terrorists”. It is McCarthyism all over again.

Again, how does this answer the question? You got it! Yes, immigrants, legal and illegal, don’t vote. Politicians have one major job, and that is to get re-elected (and they think of that all the time). And that is why you hear virtually nothing about immigration from them. They don’t want to lose. Period.

Death of Petitioner: What is the effect?

Dear Readers,

The below case, although not a precedent decision - that is, the USCIS does not have to follow it in all jurisdictions (but probably will!), is still important.

The Court in its wisdom showed compassion on an immigrant beneficiary and also exhibited 'common sense', a rare commodity. The USCIS is not known for showing compassion or having common sense. Such behaviors must be imposed on them, like was done here.

The real point is that maybe the USCIS in the near future, via 'memo', from Michael Aytes or another memo-issuing 'head', will change it's policy to summarily deny such petitions and require lawyers like this one do our best to ask for "humanitarian consideration".

Well, we must wait and see...

_______________________________
Paul M. Heller, Esq. (Founder/Principal)

Heller Immigration Law Group, LLP
2479 E. Bayshore Rd., Suite 709
Palo Alto, CA 94303
__________________________

Massachusetts District Court Holds Widow Remains “Immediate Relative”
Cite as "AILA InfoNet Doc. No. 07121762 (posted Dec. 17, 2007)"


This case presents a question of first impression in the First Circuit -- does a properly filed "immediate relative" visa petition lapse upon the death of the immediate relative during the processing period? This case arises out of USCIS’ denial of an "immediate relative" visa petition upon an application for adjustment of status where the petitioner's husband died while the application was pending. The District Court of Massachusetts agreed with the Ninth Circuit’s interpretation of INA Sec. 201(b)(2)(A)(I) in Freeman v. Gonzales holding that an I-130 beneficiary remains an “immediate relative” after death of petitioning spouse and they remanded the case to the USCIS for further proceedings in accordance with their decision. Neang v. Chertoff (Mass. Dist. Ct. Dec. 12, 2007)

VISA BULLETIN FIASCO II, What's Wrong With USCIS?

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

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.