H1b 2009 Lottery: A Status Update

Dear Readers,

Here's the latest on the H1b 2009 Lottery:

USCIS has now confirmed that if they receive a sufficient number of H1B cap cases during the first five business days of April to reach the cap, the "lottery" will be based on petitions received all five days.

This allows us to accommodate more last minute H1B requests from clients (cases received on 4/7 will have the same priority status as cases received on 4/1), but please file the cases that are ready to go tomorrow, on 3/31, as originally planned.

Note: USCIS will not begin to issue receipts, until a determination is made that sufficient H-1B petitions have been received within the first five business days of April, ending April 7, 2009. After the "lottery" is conducted, the USCIS will then issue receipts for those cases which are selected, and the receipts will likely all have the same receipt date, April 8, 2009.

Most Recent Immigration Thoughts...

Green Card Thoughts and More: An Immigration Overview...

It is clear that at least on the immigration front that the hopeful thoughts we all had with coming of the Obama administration haven't materialized. Immigration has become even more isolated and untouchable by a nation whose entire focus now is trying to figure out how to move forward and why we are here. Our leaders do not want to be distracted and the public at large, mad as they are, wants someone to do something. Immigration is on the back and last burner.

Of course, it shouldn't be.

One way 'out', historically, has been to revitalize the country with new immigrants, fresh blood. But the mood of the country is still in a shock mode (with the economy the way it is). I see many intending immigrants struggling with the question whether to stay with a process that is so protracted and broken that it is hard to find meaning in its continuation. Many are now asking themselves why are they here, and should they abandon their dreams and return to their home country?

One wonders why anyone who can leave (this mess) and go home actually stays? Their reasoning, the decision to stay, is the point. These intending immigrants see things that many of us don't. They see opportunity. They want to be part of the fabric of America and truly believe they will be America's future. They may see a challenging environment but they see so much more that is positive and worthwhile.

These same individuals, whether the hardworking 'unskilled', the skilled workers, or the "best and brightest", each and every one, want to help our country. The want no more than to be part of us - and if they need to motivate us, to help us move mountains, to do more than their fair share to get us moving again... they will.

An Obama Win: The Immigration Factor

Dear Readers,

Let's talk about what's next, after the Presidential Election.

It's likely that Obama will win, for sure, but how will he approach immigration - and what's likely to happen?

Obama has stated that he is for 'Comprehensive Immigration Reform". This is a political statement, which has no bearing on reality.

McCain, for example, is also for CIR, but he wants to shut the borders down first. Again, a purely political pronouncement, directed to his 'right wing' (as was his VP choice).

Now let's get down to the truth: In difficult economic times, 'Joe' public usually falls for anti-immigration rhetoric and demagoguery.

Politicians almost always vote their constituency, meaning that they vote in a way to assure their continued reelection. Immigrants, by their nature, and status, do not vote as they are not U.S. citizens. Period.

You'd hope though, given that Obama is smart, thinks in terms of foresight, future generations and the like, that he'd consider as President elect (once elected, mind you), a sensible immigration policy.

I think he will. And although I don't expect a push for Comprehensive Reform, I do see some interest in eliminating crazy backlogs, enticing "the best and the brightest" to stay in this country, and if not here, to come here, .... to allow entrepreneurs, employers, and startups to seek the talented pool of foreign nationals that will help us build the "new economy".

I even see the promise of Obama at some point in his administration's first term leading the way towards 'documenting, the undocumented' in a fair and humane way and without a so-called 'amnesty', which would finally allow millions of otherwise law abiding residents to come out of the shadows - without shame or fear.

But true 'Comprehensive Immigration Reform', as proposed? Forget about it. A pipedream. Not in the cards for a variety of reasons.

Congress won't have time to tackle the issue, and I don't believe even look at it seriously, for years to come. Our representatives will no doubt be struggling with putting policies in place that will help to revive this country and get it working again.

Many of Obama's other issues will have to fall by the wayside as well.

Will increased immigration help this country - you bet! Will there be useful legislation on the immigration front? Let’s wait and see, but I’d bet yes.

Immigrants are just too important. Let's cross our fingers and hope that our leaders, and our President, see it the same way.

Thank you.

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.

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.

LINKEDIN QUESTION: NEVER EXPECTED SUCH A RESPONSE!

I am a member of the business networking site Linkedin (http://linkedin.com); I now have almost 1200 'connections' and am very gratified that so many people willingly link to me and want to be in my network.

Today I posted a Question on Linkedin about the H1b lottery coming up in April. I was astonished that almost immediately I received several comments attacking me for helping foreigners take away American's jobs.

Below is my response to one such email:

_________________________


Hi John,

I’m interested in your views. Call me. (THIS WAS MEANT TO CALM THE GUY DOWN...)

For your information, the clients and companies that I deal with – no, I do not represent the Indian type recruiting companies, cannot find the skill sets and senior people they need, and as a last resort may turn to an H-1b type employee (but I assure you it is not their first choice). No company in their right mind would do so. However, within my clients, the wages paid at least here in Silicon Valley are generally $90k - $120k for this type of talent pool of software type engineers (higher if they come from an Agency).

I have two very good friends, one from UC, an American, and a Scientist at NASA, the other his girlfriend, also American, who works at SRI, a MIT PhD and Stanford grad too, both of whom rail against the unfair competition of the evil foreigners taking jobs away from American citizens. I believe that attitude is more reflective of personal fears for their own job security in bad economic times than any reality of ‘abuse’ often alleged.

If a company is willing to pay the ‘prevailing wage’, don’t you think they should be able to hire whomever they choose (and for a variety of reasons)? Should the government force them to hire American? Do we want a government official to decide that the American offered is ‘sufficiently’ qualified, thereby forcing the U.S. employer to hire someone they choose not to? On its face, that scenario is absurd and contrary to a market based, private sector, economic system (unless I’m mistaken).

Generally, I don’t like the Government involved in my affairs (personal or otherwise). And I am not a Republican!

Best,


p


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

Heller Immigration Law Group, LLP

2479 E. Bayshore Rd., Suite 709
Palo Alto (Silicon Valley), CA 94303

A Silicon Valley-based law firm specializing in family and employment-based immigration, offering corporations a fixed monthly retainer fee option.

Toll-Free: 1/800 863-4448; Int'l/Local: 1/650 424-1900; Fax: 1/415 276-9099

Email: heller@greencard1.com; http://greencard1.com

Blackberry/Cell: 1/650 799-0123

Heller Blog: http://blog.hilglaw.com

YM: paulhilg; GoogleTalk: hilglaw

"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

H-1b Cases Need to be Filed Now: Why is our Gov't doing this to us?

Let's talk about alternatives to capped H-1b filings - and, more importantly, why we are in the mess we are in. These cases should be filed no later than April 1, 2008 (for any chance to receive one of these visas).

"Capped exempt" cases do not have to participate in the lottery coming up, because individuals previously accorded H-1b status, or who are presently working under this status, are exempt from the upcoming quota. However, new H-1b cases are capped at 65,000 per year, with an additional 20,000 for those with a U.S. "advance degree". The foreign equivalent, even with a proper credential evaluation, will not allow an applicant to utilize one of these special visas.

The situation described, each year running out of H-1b visas, and going into a lottery situation, is a disaster for this country and our technology companies especially.

Although Silicon Valley continues to function, and the entrepreneurial spirit here persists despite our country's, and really the world's, economic woes, thre is no question in my mind that our broken immigration system (yes, let's just talk about legal immigration), and the Government's total inattention to the extraordinary needs of American business to hire and/or keep what I call "the best an brightest", is inexcusable.

Whether the the pundits and so-called experts finally realize that we are now in a recession (something the 'average citizen' could have easily called), the fact remains that there are still no new H-1b visas available. These visas, often called temporary "work permits" for professionals, and the employers that use them, will not be alloted or be able to be used until the beginning of fiscal year 2009 - which begins 10/1/2008!

If one speaks to HR Directors and Engineering Managers, CEOs, Venture Capitalists, and the many other Executives and Managers who are responsible for our 'innovative' and cutting edge industries, there is a huge shortage of highly technical and skill U.S. workers, most apparent in the 'high tech' sector.

But it is not just a shortage of highly skilled scientists, academics, and PhD engineers that is killing our economy. Our companies also need to import and staff positions of lesser high technology and other workers - including skilled programmers and software engineers. This workforce too is in short supply in the United States.

Our colleges are filled with exceptional foreign students, as are our graduate schools. U.S. citizens generally do not go into the sciences, but seek MBAs ad Law degrees. Forcing these exceptional individuals home to compete against is just lousy immigration policy. Let's at least give them an option to stay here (and become part of our local economy). I'm not even mentioning the extraordiary foreign citizens who are interested in coming here to work.

To force companies to wait one year to even apply for an H-1b prospective employee, and then not even be guarantee the workforce they need (remember there is a lottery), it is no wonder more and more companies are giving up and off-shoring their talent pool.

Yes, there is a globalization aspect to the phenomenon, but it is, contrary what one might read, a situation too often forced by necessity, ignorance, or just plain "stupdity".

One must ask, why is our Government doing this to us?

Cont'd....

An Immigraton Solution: Continued...

Ok...back to the Sunday shows and what Rudy had to say about immigration. It is highly unlikely that I'll vote for him but the fact that someone out there in "la la land" is actually speaking somewhat intelligently and thoughfully about immigration issues gives me hope. Could the press or other candidates actually pick up on it (not likely, but who knows).

Essentially, Rudy's the only candidate that I've seen or heard that has actually thought about the issue or has advisors who have - and can actually articulate it quite well. When I hear John McCain talk about the subject (and he's actually authored and tried to push through comprehensive immigration reform!), I wonder if he has any real idea what he is talking about. The other Presidential candidates are just engaging in either demogagory or mouthing nonsense (that they were given) and have absolutely no understanding of the issue - on both sides of the isle.

RUDY'S PLAN (OR HOW HE WOULD PROCEED):

1/ Nothing happens (and I agree to a point) until the borders are secured (high tech and low tech - a fence). He understands that no matter what program is agreed upon, any immigration reform, comprehensive or otherwise, will be a magnet for a new wave of illegals to come in if this doesn't really occur.

2/ At present, and then after the border is secured, he wants to focus on and catch and deport criminal aliens (legal and undocumented) who remain; this too makes sense.

3/ That leaves those otherwise law abiding illegals, ok... undocumented. Let's get them to come forward, give them the ability to drive, pay taxes, get insurance, buy homes, educate their children/themselves, and make certain they learn English. He argues they should pay a fine, and be given time to "get in line" and become citizens, but in the back of it. And no, it would be silly to make them leave the country. This is his mind, and I agree, is not Amnesty. He says amnesty is "just giving them a green card". Oh yes, those that don't come forward probably have their reasons so they to should be deported.

4/ The basis for the above is practical; he knows that we cannot deport 12 or more million people. He argues that for government to actually do something (as opposed to talking about it), the problem must be attacked realistically and be manageable. I couldn't agree more. So why not concentrate on criminals?

But in the end none of the above will or can happen until the borders are secure and the public is convinced that is the case.

IS LEGAL IMMIGRATION BEING LEFT BEHIND?

ARE WE LOSING OUT TO OTHER COUNTRIES?

SHOULD A MODERN IMMIGRATION POLICY BE ABOUT BRAINPOWER?

ALLOWING THE "THE BEST AND THE BRIGHTEST" TO COME AND STAY?

WHAT ABOUT BRAWN? THE LOW SKILLED WORKER?

SHOULD WE CONSIDER BOTH?

MAYBE WE SHOULD PROTECT AMERICAN JOBS AND SHUT DOWN IMMIGRATION PERIOD?

Just some of the questions I'd like comments on.... more soon.

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.

What's likely to happen immigration-wise in 2008?

It is clear to this blogger, and most other experts in the field, that comprehensive immigration reform will not happen this year, certainly not until the election year 'poli-bickering' is over.

However, the idea of some reform, in piecemeal form, is not unlikely. Here are some thoughts:

1. The public still demands the focus to be on enforcement. So I don't foresee that this political need, or cover, will diminish in the near term at all. I predict we will continue to hear anti-immigration soundbites certainly until the November 2008Presidential Election.

2. If the Congress feels that the public is otherwise distracted by the inflammed and xenophobic rhetoric, then they may get on with actually making progress on immigration, including a/ creating some sort of guest worker/low skill program; and, b/ adding more visas to the H1b category (for higher skilled workers). The nurse shortage should also be addressed.

3. Regarding any sort of amnesty for those illegally here, I don't see that happening. I cross my fingers that Congress will deal with the undocumented, but don't hold your breadth.

4/ I think "our" representatives will concentrate more on a silly border fence, and even more importantly, and seriously, on creating a workable "employer verification system" mandated by earlier immigration legislation. This system, of course, would not work without a true national identity or smart card issued to everyone, including US citizens - and I wonder whether this is palatable with the American public.

5/ As things stand now, employers hiring anyone must utilize the I-9 form with serious penalities imposed for any discrimination. This provision was put in the law as being necessary to avoid employers only asking for documents from those that "don't look American". For the new system to work the employer must be able to verify everyone's document instantly. This means not only must we all be in the computer system, but that the system actually works....hmmm?

Back to ground zero - no immigration progress? Maybe.

In conclusion:

The best way to deal with this mess is to understand that we are all tracked anyway, so let's get on with it! I personally don't have a problem with a national identity or smart card myself and I think the public is changing too. In fact, the new U.S. passport is a smart card.

As stated, anyone with a U.S. passport, or who leaves and enters the country is.....tracked! Use a credit card, buy a airline ticket, groceries, or gas? Tracked. Does the U.S. government have a secret database? No one really knows. You get the picture. Privacy IS really a thing of the past.

Let's not even go there...you guessed it - the web!

An Incredible Article by Intel's Craig Barrett - Repost.

Dear Readers,

Below I wanted to repost an Article written by Craig Barrett, Chairman of Intel Corp, published in the Washington Post. I couldn't have said it better.

The direct link is: http://tinyurl.com/3cammo

Read below:

Best,

p

_________________________________

By Craig Barrett
Sunday, December 23, 2007; B07



The European Union took a step recently that the U.S. Congress can't seem to muster the courage to take. By proposing a simple change in immigration policy, E.U. politicians served notice that they are serious about competing with the United States and Asia to attract the world's top talent to live, work and innovate in Europe. With Congress gridlocked on immigration, it's clear that the next Silicon Valley will not be in the United States.

European politicians face many of the same political pressures surrounding immigration as their U.S. counterparts, and they, too, are not immune to those pressures. Nationalist and anti-immigrant factions in several Western European countries have made political gains in recent elections and are widely viewed as mainstream. Despite the hot-button nature of immigration issues, though, E.U. politicians advanced the "Blue Card" proposal in late October.

The plan is designed to attract highly educated workers by creating a temporary but renewable two-year visa. A streamlined application process would allow qualified prospective workers to navigate the system and start working in high-need jobs within one to three months.

This contrasts starkly with the byzantine system in place in the United States, which increasingly threatens America's long-term competitiveness.

The United States relies primarily on two programs to augment its workforce with highly educated, highly skilled foreign professionals. The H-1B visa is a three-year temporary visa that can be renewed once. The employment-based (EB) green card is the program for permanent residency. Both programs serve the needs of U.S. employers seeking to fill job vacancies in highly skilled professions. Extreme shortages of visas in both these programs are well documented.

H-1B visas, which are capped at 85,000 per year, are now gone in one day, with the "winners" determined by lottery.

The EB green card program has an annual allotment of 140,000 visas; these are allocated equally across all countries around the world, regardless of population. The inflexible country quotas mean that professionals from countries such as China and India are almost always at a disadvantage, finding themselves stuck in a system -- often for five to 10 years -- in which they cannot seek promotions and raises. Spouses and children count against the quota, which has not been raised since 1990. And even though they count against the quota of foreign workers allowed to come here, spouses are inexplicably forbidden to work, no matter their level of education and skill.

The U.S. system forces thousands of valuable foreign-born professionals -- including badly needed researchers, scientists, teachers and engineers -- into legal and professional limbo for years. Not surprisingly, many are considering opportunities in competitor nations -- even those who have lived in the United States for years and have graduated from American universities.

To be competitive in the global economy, U.S. companies depend on specialized talent coming out of U.S. graduate schools. These scientists and engineers are often foreign-born, as more than half of U.S. engineering master's students and PhD recipients are international students. Yet America shuts the door on many of these highly educated graduates, forcing them to look abroad for opportunities -- and our competitors are capitalizing on our failed policies.

E.U. leaders recognize that the top minds coming out of universities in the United States and other countries can help to reinvigorate European industry and enable it to create the next wave of businesses that drive innovation and economic growth.

While its Blue Card proposal still requires approval by member countries, Europe has sent a message. It intends to aggressively pursue the professional talent necessary to compete on the global stage. The United States, on the other hand, seems intent on driving away the very same talent the European Union is rolling out the red carpet to welcome.

The writer is chairman of Intel Corp., which employs about 2,000 employees with H-1B visas among its 86,000 workers worldwide.



© 2007 The Washington Post Company

King for a Day: An Immigration Solution

Let's say I became King. What would my immigration policy be?

First, I would not shut down the border, build a fence, nor stop issuing visas to students, tourists, investors, or others. I would likely increase technology and personnel.

More importantly, I would instantly fund, then finish or develop an employer verification and ID system.

Next, I would advise everyone in the country, legal and illegal, permanent residents - "green card holders" and non-immigrants alike, that they have 3 months to sign up for the new ID/verification system and smart card. For US citizens who do not have a new 'smart' passport, or a new smart driver's license, they too must obtain a new ID/verification card - but we might give them a longer time to do so.

Why would anyone 'sign up' and be issued one of these cards? Well, if one is a legal resident or non-immigrant, they'd have no choice - lose their status or be removed. For illegals, this would be their "last chance" to not be removed (in the next phase). Those that do come forward, would not be rewarded with a 'green card', but would be eligible for a smart driver's license, the ability to obtain employment, and have 10 years to find a way to lawfully become a permanent resident and then U.S. citizen, that is, "get in line". Of course, to be eligible for the progam, they must not have been convicted of a serious, or in my mind, any crime, and must agree to learn English. That is, they must have generally behaved themselves. In extraordinary cases where bona fide spouses might be separated, and/or there are U.S. children involved (in an intact family) waivers should be possible for minor past criminal activity. Aggravated or multiple felons, sexual predators, or violent criminals, however, should not under any circumstance be granted waivers.

The concept above is not amensty, it is about cleaning up the present mess, and even more importantly identifying those that will not or cannot sign up and those that enter after a 'sign up' period (for which there will be a huge 'outreach' to make certain everyone in the country is aware of this last opportunity). Of course, those that do not identify themselves will obviously be those that cannot.

Phase two will involve the issuing of IDs, documenting the millions who have behaved (but did indeed enter illegally for work, or did fall into an undocumented status - but otherwise have been good residents), deploying the employer verification system, and identifying and removing everyone else.

This last part of phase two, enforcement, will utilize not only the resources and reach of the Federal government, but local governments too. The computer and verification systems deployed with employers will also be tied into local police, state, city and other administrative entities (IRS, banks, SSA, Highway Patrol, etc.) as well.

I envision those entering the US as non-immigrants in the future (with the intent to depart) to check in at kiosks with their smart ID and then do so periodically so that they can continue their lawful status, that is, be a foreign student or visitor. If these temporary visitors do not 'check in', they would have their status automaticaly cancelled, and they would be subject to removal.

OK, what about those who do 'get in' (across the border, or do not check in), which is inevitable, and end up in the underground economy or just disappear here?

First, we'll also be constructing a new and better immigration system that will make sense and be realistic to the needs of our economy and business interests. To this end, we'll need a "guest worker program", which will help stem the tide of illegal entry. There is no question that cheap labor is necessary in a successful economy such as ours. For those that don't use the system, or overstay, or enter illegally, or don't go home when they should, they'll more easily be caught and removed - for example, being picked up by local police or the highway patrol. Yes, fewer people will be able to remain "under the radar".

Oh yes, our future lies in innovation, new industries and technologies, so why not make it easy for the world's "best and brightest" to come here (and stay).

Worried about 'Big brother'? It is already here if you have a credit card, buy gas, etc. Should there be oversight to prevent abuses? Of course.

Well, that's my plan. Love to hear about yours.

IMMIGRATION DEBATE: A DYSFUNCTIONAL FAMILY MEMBER..

I want to spend a few minutes writing about the state of the converstion about immigration in this country, and why, essentially, the debate is non-existent.

As most people know, immigration is a political 'hot potato'. For those that don't
understand this term, it is a child's game where no one wants to hold the "hot" potato very long or they'll get burned, and therefore does his/her best to hand it off to someone else. Few politicians, and I don't know any, want to talk about this issue - either legal or illegal immigration.

Well, what now?

Is it likely that anyone will actually take hold of the hot potato and run with it? Can it be politically clever or smart to do so? I believe it can. Let me explain.

I think it can be brought up if talked about in the right way, in a rational way.

Recently, I wrote a question and sent in a video for the CNN Youtube debate. It wasn't picked - granted I turned it in at the last second, but I thought maybe it had a chance anyway. It was clearly a difficult, pointed, and provocative question that no journalist would ever have the fireballs to ask, but this format cleverly gave cover to such aquestion.

My question was..

Why don't you, and all your fellow Republican candidates, digitally fingerprint and take photo IDs of everyone in the country, legal and illegal, who are not U.S. citizens, issue a smart card/ID to them, thus allowing us to separate and isolate the "good" from the "bad" - and the go after the bad, first? That is, if we immediately create immediately on such a program, only the good would be entired to come forward, leaving the bad naked, exposed, and more easily focused on (and deport). With our limited resources, what would be the harm in approaching this problem in an intelligent way, I asked?

If my question were chosen and asked, I dreamed, it would expose the silliness, the uselessness of the present debate, both in Republican and Democratic circles, and we could actually move on as country to a solution.

I thought 'The Question', if directly asked of them, would shock the politicians into actually thinking, and force a national debate. It would leave behind the idiotic rhetoric, the pure demogaguery that fills our airways and broadcasts now.

Since I could foresee it coming, my video asked the Republican debaters,
specifically, not to talk about Amnesty, because I wasn't speaking to that, nor do I support it.

Anyway, that question was just the tip of the immigration iceburg, so there's much more to say later.


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

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

A Silicon Valley-based law firm specializing in employment-based immigration, for corporations seeking fixed monthly retainer fee arrangements.

Toll-Free: 1/800 863-4448; Local: 1/650 424-1900; Int'l: 1/650 424-1900; Fax: 1/415 276-9099

Email: heller@hilglaw.com; www.hilglaw.com (formerly: greencard1.com)

Heller Blog: blog.hilglaw.com

YM: paulhilg

THE TRUTH ABOUT H-1B VISAS: THE UNTOLD STORY.

In the October 18, 2007 issue of the Palo Alto Daily News, an editorial opinion piece by Tom Elias presented so many misstatements that I felt compelled to address the issue.

First and foremost, I need to answer the question, what is an H-1b visa? We also need to define the term “specialty occupation“. All such cases filed by employers (large or small) must, by statute, involve a truly professional position. It does not involve “factory workers, low-level draftsman and the like” as Mr. Elias stated. Rather, “specialty occupations” refer to positions which require, at minimum, a specialized Bachelor’s degree or higher. The USCIS defines an H-1b job as one that requires the “the theoretical and practical application of a body of highly specialized knowledge“. The degree of specialization required in the law to qualify for an H-1b visa is such that not even a CEO, Prime Minister, nor a President of the United States, would generally qualify. These individual may need to be highly educated, or talented, but a specific academic degree, or any degree, is not required for successful entry into these fields. By contrast, positions such as CFO, Accountant, Software Engineer, Market Research Analyst, Chemist, Research Scientist, MD, Teacher, Lawyer, would all qualify as H-1b positions.

I do not want to argue that abuse hasn’t’ entered the system, nor that the program itself does not have flaws. However, Mr. Elias makes broad assertions and claims of ‘abuse’. He does not cite facts, but reveals as his source in his column an “unnamed” organization who, he says, has “uncovered” a document which purports to expose “the truth”. This brings to mind McCarthyism of the 1950s, using the tools of scare tactics and ½ truths. In fact, the H-1B program tries to balance the global economic realities, and U.S. companies’ needs, with a strong effort to protect American jobs and wage scale. The Labor Condition Attestation (LCA), required to be submitted by the employer in all H-1b cases, requires that the hiring company offer, at minimum, compensation that meets the “prevailing wage” - using the U.S. Department of Labor’s own wage surveys. Go to: http://www.bls.gov/oes/2000/oes_alph.htm. Employers must also attest in the H-1b petition that they have not laid off similar workers, nor will they, and that they have made a “good faith” effort to find equally or more qualified U.S. workers. My personal experience tells me, with the high USCIS filing fees, legal fees involved, and the need to often ‘premium process’ these cases at an additional $1000 per applicant, U.S. employers do not use the H-1b program unless they truly have a need for these highly-skilled professionals.

In conclusion, to compete in the global marketplace, a reality now for all our U.S. companies, business needs to recruit and find the best and most qualified talent they can, whether American or foreign born nationals. In this time in our history, we cannot close our national gate, nor should we discourage international talent from competing with Americans for jobs. Nor should we limit our companies to only the U.S. market, anymore than we should limit Americans to only U.S. manufactured goods. Of course, unfair competition is unfair, and that is why it makes sense to require a company who employs an H-1b worker to pay, at minimum, the “prevailing wage”. But requiring American companies to hire anything but the best and most talented (whether native born or foreign) just doesn’t make sense. At the same time, there is no argument here that we must also immediately focus on and fix our broken educational system, and do our best as a nation to motivate our young people -- to enter science and technology programs. But until we do, we cannot tie the hands of U.S. business. We must not restrict, but increase the H-1b Program so that we can continue to attract, and then try to keep here, a highly specialized and skilled workforce. In the end, doing so will ultimately benefit every American.


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

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

A Silicon Valley-based law firm specializing in employment-based immigration, for corporations seeking fixed monthly retainer fee arrangements.

Toll-Free: 1/800 863-4448; Local: 1/650 424-1900; Int'l: 1/650 424-1900; Fax: 1/415 276-9099

Email: heller@hilglaw.com; www.hilglaw.com (formerly: greencard1.com)

Heller Blog: blog.hilglaw.com

YM: paulhilg

The Social Security ‘Name Checks’; The New McCarthyism

A few days ago a Federal Judge here in San Francisco issued a temporary restraining order (TRO) preventing the USCIS (DHS) from informing companies of the names of employees whose social security card doesn't 'match'. Under the program the employee must somehow explain any discrepancy or be fired.

On the surface this seems reasonable and fully understandable given that there is a huge demand and flow into the hands of 'illegals' of phony documents. However, this seems to fly in the face of an employer's present obligation under current law. That is, as long as the I-9 is completed and submitted with certain documents, the employer can subject themselves to stiff fines, and even criminal penalties - if they attempt to scrutinize the individual or documents further. This was Congress' way of preventing discrimination because one 'looks foreign'. Obviously, if one looks American (whatever that means!), the employer is less likely to question or be suspicious of the documents submitted to support the I-9.

Now let's get back to the Federal Judge's decision (which is only temporary, awaiting a further Hearing in October).

The one fact that struck me when I read the attempted Appeal is that a large percentage of 'mistakes' are just that—honest mistakes (and can easily be corrected). The fear is that this new requirement is just a tactic to scare away those workers that indeed did use fraudulent documents to get a job here in this country.

I don't think that the TRO will stand. But I do fear discrimination.

MY SOLUTION:

Instead of issuing these 'demand letters', allowing prospective and existing employers "off the hook" from the strong anti-discrimination provisions of the present law, why not put in place a comprehensive system that allows an employer to truly verify each and every worker's right to work? Until that system is in place, leave well enough alone. It should not be up to employers to enforce the law, nor should employees fear their employers! If the IRS or Social Security Administration have clerical or other issues with a card holder, then so be it. Let the two of them deal with it.

I coined a phrase years ago, "The New McCarthyism"; many of you don't remember Joe McCarthy, or don't know who he was. He was a U.S. Senator who made a name for himself by "red baiting", calling anyone he chose to focus on "Communists", everyone fearing that he'd look at them. To avoid the spotlight, people started turning in their friends, not hiring people under suspicion, and the like. He finally attacked the U.S. Army and that was too much. The final nail..."Have you no shame, Senator".

I'm waiting for someone to stand up to what is happening in this country, in this period of "The New McCarthyism", and say "Have you no shame...". Wake up Congress, wake up people...

P

______________________________________
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: 1.650.276.9099

Email: heller@hilglaw.com; www.hilglaw.com (formerly: greencard1.com)

Heller Blog: blog.hilglaw.com

YM: paulhilg

Employment Based Green Card in 3 Stages

STAGE 1: Labor Certification (Department of Labor)
Start

Employee, with manager's assistance, forwards to HILG information necessary to begin the case.
Work-up

Employee's information and documents are reviewed and organized.
Attorney performs legal analysis and develops case strategy.
First draft of job notice is sent to employee and manager for approval.
HILG exchanges drafts and consults with the employee and Human Resources Department, and manager until the Human Resources and Manager approves a final job notice.
Preparation

Once the job notice is approved,

Obtain job/wage classification from SWA (State Workforce Agency) (4-8 weeks).
Obtain evaluation of academic degree (if necessary).
Once prevailing wage is received, initiate internal company posting and obtain confirmation (3 weeks).
Employer conducts recruitment (30 days must expire after the required requirement before the application can be filed)
Employer provides recruitment results to HILG
HILG assembles recruitment documentation package to be maintained according to PERM.
Help employee draft and obtain reference letters.
Prepare final form for employee and company.
Prepare company's recruitment letter.· Final check of all documents and letters.
Labor certification application form is filed with DOL.
DOL (Department of Labor)

DOL reviews and adjudicates the labor certification
If approved, DOL returns the application to be signed by the employer and the employee


STAGE 2: Company I-140 Petition (CIS)
Preparation

Once the labor certification is approved, HILG will:

Prepare forms for company.
Assist in preparing the company's employment letter.
Obtain final forms and letter signed by company.
Final check of all documents, forms, and letters.
I-140 application is filed with CIS.
CIS

CIS examines position requirements, determines if applicant meets all requirements, and assigns applicant a preference category.
I-140 application is adjudicated by CIS.


STAGE 3: Employee I-485 Adjustment of Status Application (CIS)
Advance

If not eligible to file with the I-140, HILG tracks priority dates of cases subject to quota.
Preparation

Once an employee has a current priority date, HILG will:

Provide final advice to employee to gather required documents and medical exam.
Prepare final forms for employee and company.
Get final forms signed by employee.
Assemble package with all documentation.
Final check of all documents, forms, and letters.
File I-485 and requests for advance parole and employment authorization documents.
Advance Parole (AP - travel permission)

AP (advance parole) approved and received.
Employee and dependents can now travel outside the US
Employment Authorization Document (EAD)

EADs approved and received for employee and dependents.
Employee's dependents are now authorized to work in the United States
I-485 approved

Employee and dependents are now permanent residents.


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

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

A Silicon Valley-based law firm specializing in employment-based immigration, for corporations seeking fixed monthly retainer fee arrangements.

Toll-Free: 1/800 863-4448; Local: 1/650 424-1900; Int'l: 1/650 424-1900; Fax: 1/415 276-9099

Email: heller@hilglaw.com; www.hilglaw.com (formerly: greencard1.com)

Heller Blog: blog.hilglaw.com

YM: paulhilg

What To Do When Your Visa Application Is Denied

http://www.hilglaw.com/articles/articles29.htm

Please Take A Look At Our Website At http://www.hilglaw.com

People who are applying for non-immigrant (temporary) visas such as a visitor's visa (B1 or B2) or student visa (F1), as well as those applying for permanent immigration, can be found ineligible for a visa based on a variety grounds. For example, the U.S. Consulate may not issue a temporary visa to a single person who does not have a good job or other strong ties to his or her home country on the basis of the notorious section'214(b)'. In other words, the U.S. official reviewing one's application believes that you have not met your legal burden of showing him/her that you will indeed return home after the temporary visit to the United States.

In a case of a s.214(b) refusal, one can simply make a new application with new or better information and supporting documentation showing the likelihood and certainty that the visit is truly temporary. Unfortunately, the dice are cast against 'proving' a negative. A more ominous situation, however, arises when a visa refusal is based on other grounds of excludability such as prior misconduct or other misrepresentation made to the U.S. Consulate and/or Immigration Inspectors at a port of entry. These situations require the filing of a more formal waiver application.

Although the BCIS and Consular Officers have broad discretionary power to grant waivers for people previously found inadmissible, these waivers are not easily obtained, especially when the grounds for excludability are based on prior criminal convictions (including even minor drug offenses), prostitution, public charge concerns, previous deportation and exclusion, material misrepresentation or fraud, and alien smuggling, to mention just a few. One may be surprised to learn from the above list of grounds of ineligibility, that the U.S. government takes what may seem to be even minor misconduct very seriously. Abusing the U.S. system such as attending the public schools, receiving or attempting to receive public benefits, lying to border inspectors about one's intention in the U.S., attempting to change one's visa status too soon after an entry, slight overstaying, and bringing one's children into the U.S. so that they can later change status (which can be interpreted now as 'alien smuggling'), I have found is often done without a serious thought about later consequences.

If your visa application has been denied based on a prior misconduct other than s.214(b), you must first present your request for a waiver in person to a U.S. Consular Officer. The Consular Officer then decides whether to recommend the waiver issuance to BCIS, and BCIS ultimately makes the decision to either approve or deny the waiver. The Consul cannot issue a visa unless the BCIS acts favorably on the waiver request. The processing of waiver applications is not a 'high priority' with the BCIS and may take more than several months.

Please note that when considering a waiver application, the BCIS will consider three factors: the risk of harm to society if the applicant is admitted; the seriousness of the applicant's prior violations or convictions, if any; and the reason for wishing to enter the United States. In addition, the BCIS will look at the passage of time since the ground of inadmissibility occurred. This is called the period of rehabilitation, and the more time that has passed since the incident took place, the more likely BCIS will make a favorable determination.

We are frequently asked what the minimum time is that one should wait before applying for a waiver. There is no definite guideline. A three-year rule of thumb is frequently raised, but each case must be comprehensively reviewed.

Once again, a s.214(b) refusal should not be confused with a Denial, above; it is simply a determination by a Consular Official, based upon facts and documents presented (at a specific point in time), that the officer does not believe the applicant has met one's burden to show that he/she will return home after a temporary visit to the U.S.; it also is an indication the applicant did not meet his/her burden of showing sufficient and strong 'ties' to his/her home country. The applicant may reapply at anytime.

In summary, the best policy is, of course, knowing the law, and burdens to overcome, before applying for a visa, and avoiding any misconduct (in prior trips or visits to the U.S. Consulate or on entry to the U.S.). Ignorance of law is not a defense. One must realize that as a temporary visitor to another country, it is wise to live by the legal boundaries imposed and be careful not to violate the rules. However, if one has already found themselves ineligible for a visa, and for a variety of reasons wishes to reapply, either as a non-immigrant (visitor or student, or in another category), or as an immigrant, professional and qualified legal help must be sought to review one's situation and, if applicable, make a waiver application.

Remember, you can always email us at Heller@hilglaw.com, or call us toll free at (800) 863-4448. We offer consultation free of charge!


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

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

A Silicon Valley-based law firm specializing in employment-based immigration, for corporations seeking fixed monthly retainer fee arrangements.

Toll-Free: 1/800 863-4448; Local: 1/650 424-1900; Int'l: 1/650 424-1900; Fax: 1/415 276-9099

Email: heller@hilglaw.com; www.hilglaw.com (formerly: greencard1.com)

Heller Blog: blog.hilglaw.com

YM: paulhilg

Good News, Bad News For Those Dealing With The USCIS

Dear Blog readers:

Here is the ‘latest’ from the USCIS FAQ (causing even more havoc!).

The good news…

I-485/EB adjustments filed up to and including August 17, 2007 will be allowed to be filed with the pre-July 30 (old) rate of $325 + $70 biometric fee

The bad news..

Those attempting to file an EB Adjustment where no prior PERM/LC or I-140 case was approved, and/or an I-140 petition was at least filed (establishing a priority date prior to August), may not file their case after July 30, 2007 – it will be rejected. The reason: no current ‘priority date’ since all categories are unavailable according to the August Visa Bulletin!

This leaves one week to put together a ‘concurrent’ I-140/EB (EB1 or EB2/NIW) Adjustment filing, which, essentially, is not possible.

Best,

P

Here’s the FAQ:

Frequently Asked Questions1

Employment-Based Adjustment Applications Filed by Aliens Whose Priority Dates are Current under Department of State July Visa Bulletin No. 107

Q1: Will USCIS reject a concurrently filed EB I-140/I-485 case if it is lacking a required Labor Certification?

A1. USCIS will not accept an I-140 based on a required labor certification application if the approved labor certification application is not submitted in connection with the filing. USCIS will not accept a concurrently filed Form I-485 if the required Form I-140 is rejected for lack of an approved labor certification application.

Q2: Will USCIS reject an application for missing or incorrect filing fees?

A2: Yes, in accordance with standard procedure and applicable regulations, USCIS will reject any filings submitted with incorrect filing fees.

Q3: Will USCIS reject an application for a missing signature?

A3. Yes, in accordance with standard procedure and applicable regulations, USCIS will reject any filings that do not contain required signatures.

Q4: Will a concurrently filed I-140/I-485 be rejected if filed with an incorrect I-140 or I-1485 fee?

A4. USCIS will reject any filings submitted with the incorrect filing fees.

Q5: Where should employment-based adjustment applications be filed?

A5. Forms I-485 may be filed at either the Nebraska Service Center or the Texas Service Center in accordance with the Direct Filing Update issued June 21, 2007.

Q6: What happens if an application is filed at the wrong Service Center?

A6. Forms I-485 should be filed at either the Texas or Nebraska Service Centers. However, through August 17, 2007 only, employment-based adjustment applications filed at the California and Vermont Service Centers will not be rejected and will be relocated to the appropriate Service Center. Filing at the wrong location could result in processing delays.

Q7: Which fees apply to I-765 and I-131 applications associated with AOS applications filed on or after July 30th under the July Bulletin?

A7. The fee of $180 for Forms I-765 and the fee of $170 for Form I-131 will remain in effect for those aliens eligible to file an employment-based adjustment of status application pursuant to July Visa Bulletin No. 107. These fees will remain in effect for all such applications filed between July 17 – August 17, 2007.

Q8: What is the correct fee for concurrently filed I-140s filed between July 30 and August 17?

A8. The new fee applies to Forms I-140, whether or not concurrently filed with an employment-based adjustment application, that are filed on or after July 30, 2007. That fee is $475.

Q9: Will customers eligible to file adjustment applications under July Visa Bulletin No. 107 have the option to pay the NEW filings fees in connection with adjustment applications filed on or after July 30, 2007 and on or before August 17, 2007?

A9. No, customers will not have the option of paying the new filing fees for adjustment applications. USCIS has determined that aliens in employment-based categories filing applications pursuant to July Visa Bulletin No. 107 should be subject to the pre-July 30, 2007 fees as that fee schedule would have applied had aliens been allowed to file throughout the month of July.

Q10: Will USCIS accept employment-based adjustment of status applications under July Visa Bulletin No. 107 if the priority date is August 1, 2007 or later?

A10. No.

Q11: Will USCIS accept adjustment applications under July Visa Bulletin No. 107 if the priority date is before July 31, 2007, but the certification is granted after August 1, 2007?

A11. Yes, USCIS will accept such cases provided they are submitted by August 17, 2007.

Q12: Will USCIS accept concurrently filed I-140s/I-485s filed after July 31 when a labor certification is not required (i.e. priority date is established on or after August 1)?

A12. USCIS will accept properly filed Forms I-140 filed on behalf of aliens with a priority date on or after August 1, 2007; however, pursuant to August Visa Bulletin No. 109, USCIS will reject any concurrently filed adjustment of status applications filed by aliens with a priority on or after August 1, 2007.

Q13: Can applications be filed without a required medical examination report?

A13. Yes. Consistent with its current regulations and practice, USCIS will accept adjustment of applications filed pursuant to Visa Bulletin No. 107 without a completed medical examination. In such cases, USCIS will issue a request for evidence.

Q14: USCIS’ July 17, 2007 press release stated that USCIS would accept applications filed not later than August 17, 2007. Does this mean applications delivered on August 17, 2007 will be accepted but those arriving August 18, 2007 will be rejected?

A14. Yes

Q15: How long will aliens have to wait for their employment-based applications to be adjudicated?

A15. Applicants should monitor the State Department’s visa bulletin to determine whether a visa number is available based upon their individual priority dates. There are annual statutory limitations, thus some aliens may have to wait a significant period of time, perhaps years, before visa numbers become available.

Applications for interim benefits (employment authorization and advance parole) will be processed prior to final adjudication of the adjustment application and in accordance with USCIS standard procedures.

Q16: When will premium processing of Forms I-140 be reinstated?

A16. Premium processing of Forms I-140 has been suspended until further notice. USCIS will publish any updates on the availability of premium processing for Forms I-140 on its website.

Q17: How will USCIS interpret the language of AC21 Sec 104(c) (for three-year H-1B extensions) during a period in which AOS applications could be filed?

A17. USCIS interprets AC21 §104(c) as only applicable when an alien, who is the beneficiary of an approved I-140 petition, is eligible to be granted lawful permanent resident status but for application of the per country limitations. Any petitioner seeking an H-1B extension on behalf of a beneficiary pursuant to AC21 §104(c) must thus establish that at the time of filing for such extension, the alien is not eligible to be granted lawful permanent resident status on account of the per country immigrant visa limitations.

Q18: Will there be any delays in processing applications received as a result of the July 17 notice reopening the filing period for employment-based adjustment applications under the July Visa Bulletin?

A18. Depending on the volume of applications received, there may be some delay in the issuance of receipt notices. Processing times will be updated on the USCIS web site.

Q19: What procedures should be followed when filing an I-485 application based on a pending I-140, when the petitioner has not received a copy of the I-140 receipt notice?

A19. Applicants filing a Form I-485 that does not contain a copy of an I-797 receipt notice for a previously filed Form I-140 are advised to put a brightly colored sheet of paper on top of the filing with the following notice and information:

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

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

A Silicon Valley-based law firm specializing in employment-based immigration, for corporations seeking fixed monthly retainer fee arrangements.

Toll-Free: 1/800 863-4448; Local: 1/650 424-1900; Int'l: 1/650 424-1900; Fax: 1/415 276-9099

Email: heller@hilglaw.com; www.hilglaw.com (formerly: greencard1.com)

Heller Blog: blog.hilglaw.com

YM: paulhilg