A free service provided by Paul Szeto LLC, a full service immigration law firm. Paul Szeto - a former INS attorney and an experienced immigration practitioner - can be reached at 732-632-9888, http://www.szetolaw.com/ (All information is not legal advice and is subject to change without prior notice.)

Friday, July 18, 2014

New Policy on Late CSPA Filings

On June 6, 2014, USCIS issued a new interim policy memo on the treatment of late filings under the Child Status Protection Act (CSPA). The policy memo explained what constitutes "extraordinary circumstances," for the purposes of excusing late filings under CSPA. Applicants whose cases were previously denied due to failure to file within the one-year filing window may also file motions to reopen their cases.

The Child Status Protection Act (CSPA) is a special law that allows over-aged immigrants to be treated as minor children for certain immigration benefits, even though their actual ages are over 21.  However, to take advantage of the CSPA, one must must "seek to acquire"  permanent residence status within one year from the date her priority date becomes current.

According to the new policy memo, an aged-out applicant must file an application for adjustment of status (Form I-485), an application for action on approved  petition (Form I-824), or an application for immigrant visa (Form DS-230) within one year.  Merely contacting a lawyer does not meet the "seek to acquire" requirement.

A recent Board of Immigration Appeal (BIA) decision held that USCIS has discretionary power to excuse late CSPA filings due to extraordinary circumstances.  Matter of O. Vasquez, 25 I&N Dec. 817 (BIA 2012).  The new policy memo explains that adjudicators, when deciding whether late filings should be excused, must decide whether extraordinary circumstances exist on a case-by-case basis and consider the totality of circumstances.

According to the policy memo, an adjudicator should excuse late filing if (1) The circumstances were not created by the individual's own action or inaction; (2) The circumstances were directly related to the failure to act within the one-year period, and (3) The delay was reasonable under the circumstances.

Specifically, valid reasons justifying late filings under CSPA include, but are not limited to: serious illness or mental or physical disability during the one-year period; legal disability (such as mental impairment); ineffective assistance of counsel;  timely filing rejected by the USCIS which was followed by a corrected filing within a reasonable time; and death or serious illness or incapacity of legal representative or immediate family member.  Other less compelling reasons such as financial difficulty, minor medical conditions, and circumstances within the alien’s control are not considered extraordinary.

Finally, the policy memo also allows applicants to file motions to reopen cases that were denied after the June 8, 2012 BIA decision solely based on late filings of applications.  Such motions should include evidence establishing extraordinary circumstances based on the new policy memo.

Monday, July 14, 2014

Visa Bulletin Predictions by Charlie Oppenheim - July 2014

State Department's Charlie Oppenheim made the following predictions to AILA regarding the Visa Bulletin after the release of the August 2014 bulletin:

Family Immigration:
Family 2A (spouses and minor children of permanent residents): The F2A cut-off date will advance in September from May 2012 a few months to fall 2012. The number of cases in this visa category with current priority dates has declined.

Employment Immigration:
EB-3 China: This category has started to advance in August after two months of retrogression.  The prediction is that it will continue to advance. The number of "downgrade" cases has decreased and there are also spill-over visa numbers from family immigration.

EB-2 India: This category will retrogress as early as November for Fiscal Year 2015. The prediction, according to Mr. Oppenheim, is based on "a number of variables such as historical demand patterns, expected future demand patterns, expected return rates of unused numbers, information received from USCIS on expected processing, and National Visa Center (NVC) petition processing trends." 


EB-5 China:  This category will likely no longer be current in FY2015.  A cut-off date will be established as early as June 2015 but no later than August 2015 due to ever-increasing demands and faster USCIS approvals.

Wednesday, July 9, 2014

August 2014 Visa Bulletin - India EB-2 advances 4.5 months; China EB3 advances 2 years

In August, India's Employment Second (EB-2) continues its forward movement to January 22, 2009 after July's 45.5 month advancement.  However, the State Department warns that heavy visa demand and case backlog will likely result in some retrogression in this visa category within the next few months. China's Employment Third (EB-3) advances 25 months to November 1, 2008.  This category retrogresses recently due to the large number of "upgrades" from the EB-2 category.  However, the demand for visas has declined during the two months.  The State Department expects advancement in EB-3 China to continue in September.

For family immigration, F2A (spouses and children of permanent residents) remains unchanged at May 1,2 2012 for most countries. F2B advances 60 days to July 1, 2007 for China, India and Other Countries.   F1 Philippines moves forward by 17 months to June 1, 2004.

FAMILY
Other Countries
China
India
Mexico
Philippines
F1
04/22/07
04/22/07
04/22/07
04/08/94
06/01/04
F2A
05/01/12
05/01/12
05/01/12
03/15/11
05/01/12
F2B
07/01/07
07/01/07
07/01/07
04/01/94
10/08/03
F3
11/15/03
11/15/03
11/15/03
09/15/93
04/15/93
F4
01/01/02
01/01/02
01/01/02
01/01/97
01/22/91

1st: Unmarried Sons and Daughters of Citizens (about 23,000 per year).
2A: The 2 "A" preference is for Spouses and Children (under 21 & unmarried) of LPR's.
2B: The 2 "B" Preference is for Unmarried Sons and Daughters (21 or older) of LPR's.
3rd: Married Sons and Daughters of Citizens.(about 23,000 per year)
4th: Brothers and Sisters of Adult Citizens.(about 65,000 per year)


EMPLOYMENT
Other Countries
China
India
Mexico
Philippines
EB1
C
C
C
C
C
EB2
C
10/08/09
01/22/09
C
C
EB3
04/01/11
11/01/08
11/08/03
04/01/11
06/10/10
Other Workers
04/01/11
07/22/05
11/08/03
04/01/11
06/01/10
EB4
C
C
C
C
C
EB5
C
C
C
C
C


1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers, outstanding prof./researchers)
2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.
3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)
4th: "Special Immigrants" (Religious & others)
5th: Employment Creation (Investors)

Tuesday, July 8, 2014

Foreign H-1B workers may apply for visas now

H-1B workers whose I-129 petition for nonimmigrant workeer has been approved for FY2015 may begin filing their visa applications now at overseas U.S. consulate offices, according to a State Department alert.

The H-1B visa is for foreign professional employees to engage in specialty occupations in the U.S. for a temporary period of time.  Under the current policy, applications are accepted starting April 1 and employment begins on October 1 every fiscal year.

According to the Foreign Affairs Manual, H-1B workers may apply for visas up to 90 days in advance of the beginning of the employment status.  Hence, starting July 7 (the first business date within the 90-day window), applicants with approved H-1B petitions filed by their U.S. employers may beginn submitting applications for their H-1B visas.  State Department also reminds consular officers to advise visa applicants both verbally and in writing that they are only allowed to use the visa to apply for admission to the United States starting ten (10) days prior to the beginning of the approved employment period.  In fact, similar wordings will also be included in such H-1B visas.  Based on the 2014 calendar, September 21st will be the first date for such admission.  

Monday, June 23, 2014

Documents needed for TN Visa

The U.S. Customs and Border Protection (CBP) recently released a checklist of documents used by their officers to evaluate NAFTA (TN) applications.  The TN visa category was established by the North American Free Trade Agreement (NAFTA) to allow Canadian and Mexican citizens who are coming to the U.S. to work in professional positions. However, unlike the H-1B visa program, the listing of TN visa positions are pre-defined.

Generally speaking, Mexican citizens must first apply for a visa before they are allowed to enter the U.S. Canadian citizens may directly request for admission as a TN professional at a Class A port of entry (POE), a U.S. international airport, or a designated pr-eclearance station.  The CBP officers are responsible for checking a TN applicant's documents and his or her eligibility for TN admission. Therefore, they have the authority to approve or deny a TN application at the port of entry.  Hence, it is extremely important that a TN applicant present proper and sufficient documents to prove his or her eligibility.

To ensure that the officers at different ports of entry adjudicate TN applications consistently, CBP has released a checklist of basic documents used by the agency's officers.  The basic documents include: 1) Proof of Canadian citizenship; 2) Offer of Employment Letter specifying the job title, detailed job description, salary and compensation, duration of employment; 3) Applicant's qualification documents including educational diplomas and transcripts, proof of employment experience and other qualifications; 4) Additional Mandatory Evidence such as Visa Screen for healthcare workers, state license, and waivers of inadmissibility; 5) Dependents' marriage license, birth certificate, adoption documents and TD visa for non-Canadian dependents; and 6) Other relevant documents.

The purpose of the checklist is to facilitate determination by CBP officers that applicants have all the required documentary evidence required for the TN status. A CBP officer can either deny the request for admission or request for additional evidence if here are deficiencies with the documents.  The applicant may re-apply again with additional documents later on. The checklist will be kept in file and the next officer will use it as a reference.

Some applicants, after their TN admission was denied, try to re-apply at a different port of entry, thinking some other officers or ports of entry are "easier" than the others.  Such thinking is not correct for two reasons. First, the CBP system will have records of the applicant's prior entry records which can be accessed by all CBP officers.  So going to a different port of entry should not make a difference.  Secondly, such actions of shopping for different entry points could be viewed negatively by the CBP officers, hence making it even more difficult to obtain TN status.   By being as open as possible, e.g., by going to the same port of entry regularly, and by visiting during regular office hours, a Canadian's chances of getting TN status would actually be better.



Tuesday, June 10, 2014

July 2014 Visa Bulletin: EB-2 India advances almost 4 years to 9/1/08!

In July, as predicted previously, EB-2 India finally advances after seven (7) months of absolutely no movement.  EB-2 India moves forward to 09/01/08 from 11/15/04, a 45 1/2 months jump! This is certainly good news for Indian nationals who have pending EB-2 cases.  For those Indians whose priority dates are current, they should file their green card applications as soon as possible.

EB-3 India moves forward to 11/01/03.  EB-2 China advances to 07/01/09.  Another significant move is EB3/Other Workers for Philippines, which move forward by one (1) year to 01/01/2009.

For family immigration, F2A (spouses and children of permanent residents) remains unchanged at 05/01/12 for most countries. There are some slight movements in most other family visa categories too.  F1 Philippines advances seven (7) months to 01/01/03.

FAMILY
Other Countries
China
India
Mexico
Philippines
F1
04/01/07
04/01/07
04/01/07
02/01/94
01/01/03
F2A
05/01/12
05/01/12
05/01/12
03/15/11
05/01/12
F2B
05/01/07
05/01/07
05/01/07
11/22/93
08/15/03
F3
10/15/03
10/15/03
10/15/03
08/08/93
03/22/93
F4
12/22/01
12/22/01
12/22/01
12/15/96
01/01/91

1st: Unmarried Sons and Daughters of Citizens (about 23,000 per year).
2A: The 2 "A" preference is for Spouses and Children (under 21 & unmarried) of LPR's.
2B: The 2 "B" Preference is for Unmarried Sons and Daughters (21 or older) of LPR's.
3rd: Married Sons and Daughters of Citizens.(about 23,000 per year)
4th: Brothers and Sisters of Adult Citizens.(about 65,000 per year)


EMPLOYMENT
Other Countries
China
India
Mexico
Philippines
EB1
C
C
C
C
C
EB2
C
07/01/09
09/01/08
C
C
EB3
04/01/11
10/01/06
11/01/03
04/01/11
01/01/09
Other Workers
04/01/11
01/01/03
11/01/03
04/01/11
01/01/09
EB4
C
C
C
C
C
EB5
C
C
C
C
C


1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers, outstanding prof./researchers)
2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.
3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)
4th: "Special Immigrants" (Religious & others)
5th: Employment Creation (Investors)

PERM Labor Application Processing Times - updated 06/05/2014

PERM Labor Application Processing Times

U.S. Labor Department posted the following PERM processing times as of 06/05/2014 -

Analyst Reviews: December 2013  (About 6 months turn around)

Audit Review: January 2013 (About 15 months turn around)

Reconsideration Requests: June  2014

Gov't Error Reconsiderations: Current

(Note: the dates denote initial filing dates)

Monday, June 9, 2014

Supreme Court narrowly held that CSPA only applies when a new petition is not needed

Today, the Supreme Court issued a 5-to-4 decision in Scialabba v. Cuellar de Osario (formerly known as Mayorkas v. Cuellar de Osorio).  This decision held that the Child Status Protection Act (CSPA) only applies to retain the original priority date for those aged-out children who qualified or could have qualified as principal beneficiaries of an immigrant visa petition.  If they need a new petition (e.g., one filed by their parents) to fit into a new visa category, CSPA does not apply and they must stand in line again.  This is just a quick update of our previous blogging on this important issue.  We will discuss this case further in details soon. 

Friday, May 30, 2014

New policy: Immigration Medical Examination report (I-693) will be valid for one year only

USCIS announced the following new policy on the Immigration Medical Examination today as follows:

1) Starting June 1, 2014, USCIS will limit the validity period for all Forms I-693, Report of Medical Examination and Vaccination Record, to one year from the date of submission to USCIS.

2) Applicants must also submit Form I-693 to USCIS within one year of the immigration medical examination.

3) According to the USCIS Policy Manual, applicants should wait for an official Request for Evidence (RFE) or interview notice before submitting an updated I-693 medical examination report.

Thursday, May 29, 2014

PERM Ads: Daily edition of Sunday newspaper can be used for local newspaper advertising

The labor certification appellate board has ruled that employers may use the daily edition of a Sunday newspaper for local newspaper advertising for PERM recruiting purposes.  Matter of Delta Search Labs, Inc., 2011-PER-02871.  This decision, dated April 24, 2014, resolved a dilemma that many employers face when conducting PERM labor application advertising.

The PERM regulation specifies that employer may put ads in local or ethnic newspapers as one of the three additional recruiting steps required for professional occupations.  The regulation provides no guidance as to what local or ethnic newspapers are suitable for PERM advertising except  "to the extent they are appropriate for the job opportunity." The DOL has challenged the use of certain local and ethnic newspapers as being inappropriate for PERM recruiting and even denied labor applications on that basis.

Some employers and attorneys decided to place additional ads in the same newspaper that had already been used for Sunday advertising.  The rationale is that if a newspaper is appropriate for Sunday advertising, it should also be suitable for local advertising.  However, this practice was also challenged by the DOL as being repetitive - that the use of the same newspaper for local advertising is not "an additional" recruiting step.

In Matter of Delta Search Labs, BALCA held that the employer may use the daily edition of The Boston Globe for local newspaper advertising, in addition to the Sunday ads that have already been placed there. The Board distinguished the daily and Sunday editions of the newspaper based on circulation and target audiences.  The PERM regulation added local and ethnic newspaper as an additional recruiting step in the Final Rule without further explanation. The Board held that the use of the same newspaper did not go against the intent of the PERM regulation.

Friday, May 23, 2014

PERM Labor Application Processing Times

U.S. Labor Department posted the following PERM processing times as of 05/05/2014 -

Analyst Reviews: October 2013  (About 7 months turn around)

Audit Review: January 2013 (About 15 months turn around)


Reconsideration Requests: May 5, 2014

Gov't Error Reconsiderations: Current

(Note: the dates denote initial filing dates)

Monday, May 19, 2014

Can a visitor travel to Canada or Mexico with a U.S. B-1 or B-2 visa?

Many foreign visitors entered the United States with a temporary Visitor Visa such as B-1 and B-2 visa. The B-1 visa is issued to visitors who come here for business reasons such as attending a convention, meeting a customer, negotiating a contract, etc.  The B-2 visa is issued to visitors who visit the U.S. for personal reasons such as sightseeing, visiting relatives, etc.  While they are in the United States, many visitors are also interested in visiting the adjacent countries such as Canada and Mexico.  At the same time, they also wonder if they could re-enter the United States after such visits.

Fortunately, the current U.S. immigration policy makes it very convenient for visitors to travel to Canada and Mexico with a valid B-1 or B-1 visa.  Generally speaking, a B-1 or B-2 visitor is allowed to visit Canada or Mexico for up to 30 days and re-enter the U.S.  One requirement is that the visitor must return to the U.S. before the end of the authorized period of stay as noted in the Form I-94.  The Form I-94 is issued when a foreign visitor enters the U.S. It used to be issued as a white paper form to visitors at the port of entry. Beginning April 30, 2013, the paper version of the I-94 form was replaced by an online version.

For instance, if you came to the U.S. on June 10 on a B-1 Visitor Visa, and was authorized to stay until December 10 in the Form I-94.  You then decided to visit Canada or Mexico.  You applied for a visa to enter these countries (note: visitors from many countries may enter Mexico without a visa) on November 10. Although these countries may allow you to stay for more than 30 days, you must return and depart the U.S. on or before December 10 to avoid "overstaying" your B-1 visa status.  

The process of allowing certain holders of U.S. nonimmigrant visas to return is called "automatic revalidation" of visa.  In the above situation, if the visitor would like to stay longer in the U.S. or an adjacent country, he or she may apply for an extension of his / her B-1 status with the U.S. Citizenship and Immigration Services. But such application should be submitted as early as possible.

However, it should be noted that nationals of Iran, Syria, Sudan and Cuba with expired or single-entry visas are not eligible for automatic revalidation.

It is also important to note that automatic revalidation only applies to temporary travel to the adjacent countries of the U.S.  If you travel to other countries such as England or Brazil, then return to the U.S., your entry will be considered a "new entry".   What are the differences? Well, basically the immigration officers of the Customs and Border Patrol (CBP) will scrutinize your entry more rigorously.  More questions will be asked. For example, you may be required to present evidence that you have an intention to return to your country of citizenship.  Further, if you committed a crime or performed other illegal acts while you were away, you would likely be denied re-entry.


Sunday, May 11, 2014

How to correct immigration records for government benefits?

There are important government benefits that immigrants are entitled to.  However, most of these benefits are only provided for legal immigrants. Further, a person's immigration status also determines what type of benefits or how much benefits he or she is entitled to.  For instance, naturalized U.S. citizens are entitled to more government benefits than permanent residents (green card holders).  Hence it is very important for an immigrant to make sure that his or her immigration record is correct.

The Systematic Alien Verification for Entitlements (SAVE) system was created to allow federal,
state and local benefit-issuing agencies to confirm the immigration status of benefits applicants so
that only those entitled to benefits receive them.  The system accesses the databases of the USCIS to confirm an applicant's immigration status. That's why it is very important that your immigration status is correctly recorded in the USCIS databases, so that the benefit agencies can obtain correct information through SAVE.

If you are denied a benefit due to mistakes in your immigration record, you should contact the USCIS to correct the record by making an InfoPass appointment with a local office.  To make an InfoPass appointment, visit http://infopass.uscis.gov, or call the National Customer Service Center, 1-800-375-5283. You should bring your immigration documents such as your green card, passport, visas, naturalization certificate, etc., and also documents from the benefit agency that denied you benefits.


Saturday, May 10, 2014

June Bulletin: Major retrogression in Family 2A and Employment 3rd

In June, there is major retrogression in both family-based and employment-based categories, as predicted recently by the Visa Office of the State Department.

On the family side, F2A (spouses and children of permanent residents) moves back to May 1, 2012 for all countries except Mexico, which moves back for 13 months to March 15, 2011.  This family visa category was current for two months in August and September of 2013, generating a large number of cases.  Since then, there has been no forward movement.

On the employment side, the EB-3/Other Workers categories also suffer from major retrogression in June. The recent rapid forward movement in EB-3 has resulted in the filing of many I-485 adjustment applications, making it necessary to retrogress this category to control visa usage.  The situation is particularly prominent with EB-3 China, after many EB-2 applicants have filed new petitions to "downgrade" to EB-3 to take advantage of the advancement in cut-off dates over the past six months.  As a result, EB-3 China moves all the way back to October 1, 2006 in June's Visa Bulletin.  For those Chinese applicants who have a priority date before October 1, 2012, they can still try to downgrade and file their I-485s  in May.  Many of our clients have already submitted their I-485s; some of them actually have already been received their green cards.

On the other hand, EB-3 India actually advances 15 days to October 15, 2013.  EB-2 India is also expected to advance to 2008 later this year.

FAMILY
Other Countries
China
India
Mexico
Philippines
F1
03/22/07
03/22/07
03/22/07
12/15/93
06/01/02
F2A
05/01/12
05/01/12
05/01/12
03/15/11
05/01/12
F2B
04/01/07
04/01/07
04/01/07
08/01/93
07/15/03
F3
10/01/03
10/01/03
10/01/03
07/22/93
03/08/93
F4
12/15/01
12/15/01
12/15/01
12/08/96
11/15/90

1st: Unmarried Sons and Daughters of Citizens (about 23,000 per year).
2A: The 2 "A" preference is for Spouses and Children (under 21 & unmarried) of LPR's.
2B: The 2 "B" Preference is for Unmarried Sons and Daughters (21 or older) of LPR's.
3rd: Married Sons and Daughters of Citizens.(about 23,000 per year)
4th: Brothers and Sisters of Adult Citizens.(about 65,000 per year)


EMPLOYMENT
Other Countries
China
India
Mexico
Philippines
EB1
C
C
C
C
C
EB2
C
05/22/09
11/15/04
C
C
EB3
04/01/11
10/01/06
10/15/03
04/01/11
01/01/08
Other Workers
04/01/11
01/01/03
10/15/03
04/01/11
01/01/08
EB4
C
C
C
C
C
EB5
C
C
C
C
C


1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers, outstanding prof./researchers)
2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.
3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)
4th: "Special Immigrants" (Religious & others)
5th: Employment Creation (Investors)

Friday, May 9, 2014

DHS proposes to grant spouses of H-1B workers employment authorization

The Department of Homeland Security (DHS) proposes to grant employment authorization to certain H-4 dependent spouses of H-1B workers in the United States if they are in the process of applying for permanent residence.  Currently, H-4 dependents are authorized to live in the U.S. but are not allowed to work for pay. Under this proposal,  the H-4 dependent spouse of an H-1B worker would be authorized to work if:

1) The principal H-1B nonimmigrant is the beneficiary of an approved Immigrant Petition for Alien Worker (Form I-140), or

2) The principal H-1B nonimmigrant has been granted an extension of his/her authorized period of stay in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21).

The proposal will be published in the Federal Register and open to public comments for 60 days before it can be implemented.