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 - 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 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:

please continue to check our Immigration blog at our new site at www.blog.hilglaw.com, Our Immigration Blog!


_______________________________
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

VISA BULLETIN FIASCO III - THE TRUE STORY!

When I last wrote, I wanted to offer the suggestion that the USCIS (aka Immigration), should make it a statutory policy to continue allowing adjustment of status for anyone here legally. This policy should be extended to include those here in family-based categories as well as those in employment-based categories.

This way, everyone who would eventually be eligible for a green card can formally begin the process. Even though the process would still take years, it would at least allow people to obtain work authorization for themselves and their dependents, be fingerprinted, start the process of security/background checks, and, if eligible, be able to travel outside of the United States under a document called 'advance parole’.

This, of course, is fantasy, but it does make sense.

Consider, are we more secure as a nation by having people here who are not documented the way they should be? Does it make sense to hold people in limbo for years simply because of a Visa Bulletin that doesn't list them as 'current'? Why force people to come up ways to maintain a status just for the ridiculous reason that, years later, when their number does come up, they can adjust?

Why not put them in the process sooner as opposed to later? How does it hurt us?

I’m not talking about ‘illegals’, just folks that are lawfully waiting in line-usually under some contrived “non-immigrant status. Why not start the process of adjustment in anticipation? The system is broken anyway--a fact that is no longer controversial—therefore it makes no sense to use this broken system to determine when a person can begin to be documented.

The same argument applies to those who are married to American citizens, have children born here, but who entered the country illegally and for that reason alone, aren't eligible for adjustment of status.

Previously, there was a law to address that very situation: INA 245(i) allowed those technical violators who would otherwise be eligible to adjust as “immediate relatives”, to pay a penalty fee of $1000 to forgive their illegal entry concurrent with their application to adjust status.

This is much more logical than the irrational distinction Congress makes between those who are here illegally by virtue of overstaying their visas (usually from Europe or Asia), and those who are here illegally by virtue of entering illegally. Under INA 245(A), the former is eligible to adjust to legal status following a marriage to a US Citizen, while the latter, even following a marriage to a US citizen and raising children, are ineligible to adjust because they crossed the border illegally. There is no meaningful difference, and it’s irrational to punish one group and not the other.

This is not to say that everyone should be given amnesty. The real issue should be to identify those that can be put into the system now, even if they aren't immediately eligible for permanent residence, and those that have no basis at all for being here, or even being here in the future.

To end this rant, does it make sense that one can fall in love with a permanent resident alien (green card holder), and yet the system requires that they have to wait up to 3-5 years for 'status', any kind of status?

One must remember, we are talking about husbands and wives not being able to live together, even though a visa petition has been filed and approved. There is no 'status' that allow them to do so under the present system.

The same holds true for beneficiaries of approved PERM/labor certification applications filed by an employer on behalf of an employee they wish to hire. These individuals too, cannot work for the prospective employer until they obtain work authorization through adjustment of status (above); however, most are not eligible to immediately adjust because they must often wait years to do so (under the current system).

If they do not hold H-1b status with the sponsoring employer, they are out of luck.

Of course, I could go on and on, and will in upcoming blogs, but for now I would like to hear your comments (and maybe suggestions).

Alternatively, you can just email me: heller@hilglaw.com

More tomorrow, or early next week; thank you.

Best,

Paul.

_______________________________
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

Immigration Law Blog: What the USCIS Adjustments Mean, July 17th Visa Bulletin Update

Immigration Law Blog: What the USCIS Adjustments Mean, July 17th Visa Bulletin Update

US business lobby seeks liberal H1b visa regime to bring in brightest

Check out this very interesting article about H1B Visas, from the Hindustan Times.

Don't forget to check back for more Immigration News Updates!

Best,
Paul

My Take On Immigration And USCIS

Hilglaw.com
As the ‘Immigration Doctor’, I am asked to speculate about immigration issues, comprehensive immigration reform (and whether I think it will ever happen), and just give my opinion on the current state of affairs.

First off, no, there is not likely to be the kind of reform that those here illegally, or even legally, want or expect. And, yes, the system is completely and unequivocally broken. It has been now for close to 10 years.

People don’t realize that the USCIS, formerly INS, is cashed strapped. Congress doesn’t give USCIS any monies or funding, per se, and it is the one bureaucracy that deals exclusively with non-citizens (so it has ‘last priority’). Of course, what is ironic is that now that we are in a “War on Terror” and the Immigration Service (now called CIS) ostensibly comes under the Department of Homeland Security, one would think that it would have a strong priority for our Government. But it doesn’t.

This fact has been used by the “right wing”, and even the “left” to slam the current Administration’s efforts to pass comprehensive reform as Amnesty for those that have broken our laws and, of course, and allow in “potential terrorists” that will be truly legalized and infiltrate our country even further and do us harm.

There is some truth to these assertions, and I am certainly not against real enforcement and border security. But damning and confusing those who are attracted here by jobs, who other than breaking ‘status’ laws, or entered illegally - but otherwise have obeyed themselves, with terrorists, is crazy (and is causing us to lose focus).

The job of Homeland Security, and other Security Agencies, including the CIA/FBI, etc, is to truly protect our nation, and to watch for, and kill/arrest/deport terrorists, and those that would harm us; to say the least, it is serious business (and none of the above should not be mixed together).

OK, enough said for now; more on this tomorrow.

Best,
Paul

My Take On Immigration And USCIS

As the ‘Immigration Doctor’, I am asked to speculate about immigration issues, comprehensive immigration reform (and whether I think it will ever happen), and just give my opinion on the current state of affairs.

First off, no, there is not likely to be the kind of reform that those here illegally, or even legally, want or expect. And, yes, the system is completely and unequivocally broken. It has been now for close to 10 years.

People don’t realize that the USCIS, formerly INS, is cashed strapped. Congress doesn’t give USCIS any monies or funding, per se, and it is the one bureaucracy that deals exclusively with non-citizens (so it has ‘last priority’). Of course, what is ironic is that now that we are in a “War on Terror” and the Immigration Service (now called CIS) ostensibly comes under the Department of Homeland Security, one would think that it would have a strong priority for our Government. But it doesn’t.

This fact has been used by the “right wing”, and even the “left” to slam the current Administration’s efforts to pass comprehensive reform as Amnesty for those that have broken our laws and, of course, and allow in “potential terrorists” that will be truly legalized and infiltrate our country even further and do us harm.

There is some truth to these assertions, and I am certainly not against real enforcement and border security. But damning and confusing those who are attracted here by jobs, who other than breaking ‘status’ laws, or entered illegally - but otherwise have obeyed themselves, with terrorists, is crazy (and is causing us to lose focus).

The job of Homeland Security, and other Security Agencies, including the CIA/FBI, etc, is to truly protect our nation, and to watch for, and kill/arrest/deport terrorists, and those that would harm us; to say the least, it is serious business (and none of the above should not be mixed together).

OK, enough said for now; more on this tomorrow.

Best,
Paul