John Valdez’s Legal Blog

It is only February, but already the direction of immigration is shaping up.  Once again, there are no H-1B visas, as the cap has been filled.  The visa bulletin is extremely backlogged, which means that the wait for most immigrant visas is very, very long.  The government is readying to conduct a record number of audits in H-1B and Religious Worker cases.

Despite the mostly poor news I note above, there are some good signs in the direction of the all powerful immigration winds.  Blowing our way is the fact that beginning April 1st, we will once again be able to submit H-1B petitions (for a start date of October 1st).  I have also noticed that, in general, the USCIS is processing petitions and applications much faster than in past times. 

 It is too early to determine if Congress will seriously try to make improvements in immigration laws, but I am hopeful.

In the meantime, Garg & Associates will monitor changes in the immigration field and continue to inform you of the latest information.

One of the pleasant surprises for nonimmigrants this year has been the availability of H-1B visas.  Normally, the H-1B Cap is reached long before people can begin using them on October 1st of each new fiscal year.  This year, because of the weak job market, many fewer people have applied for H-1B status.  The result is that there are still H-1B visas available.

The USCIS just released its latest H-1B count.  So far this fiscal year, it has received 53,800 petitions for new H-1B employment under the 65,000 Cap.  Yearly, there are also an additional 20,000 H-1B numbers available for those with U.S. Master degrees or higher, but that cap has now been reached; thus, those with Master degrees will now have to fit under the 65,000 Cap.

While it is impossible to say exactly how long H-1B visas will remain available, it is certainly possible that the numbers will be exhausted in the next one to two months.  From that time on, H-1B visas will not be available until October 1, 2010.  Therefore, if you are thinking of using this classification, I recommend that you seek immigration assistance as soon as possible.  Also, there are a number of exceptions to the annual Cap.  A qualified immigration attorney can provide advice regarding these exceptions. 

It is always nice to pass along good immigration news.  The good news is that Congress has extended some immigration programs that help foreign nationals come to the United States.  In the 2010 Homeland Security Appropriations Act (H.R. 2892), Congress extends, for three years, the EB-5 permanent resident program for immigrant investors, the Conrad 30 program for physicians, and the EB-4 subcategory for non-minister religious workers.

The above-mentioned programs have been lingering in limbo for an extended time while Congress has been debating extensions.  The passage of the bill will end a difficult period of uncertainty for many foreign nationals.  Although the President still needs to sign the bill to make it law, it appears the President will put his signature on it.  You may contact us if you need an Immigration Attorney to help you with one of these programs.

On October 23, 2009, the USCIS announced that, in certain circumstances, it would allow H-1B sponsors to file H-1B petitions without an approved Labor Condition Application (”LCA”).  In particular, in the notice the USCIS adopts the Ombudsman’s recommendations to allow the following:

(1) Reinstate USCIS’ previous practice of temporarily accepting an H-1B petition (Form I-129) supported by proof of timely filing of an LCA application with DOL, and issue a Request for Evidence (RFE) whereby the H-1B petitioner later provides the certified LCA; and

(2) Establish a temporary policy under which USCIS would excuse late H-1B filings where the petitioner has documented an LCA submission to DOL that was improperly rejected.

The cause of this change in policy can be traced to deficiencies in the Department of Labor’s new LCA technology.  The new program is meant to make the process of obtaining an LCA more efficient, but as with many other releases of new technology, the progress comes with defects.  There have been numerous delays and improper denials of LCAs because of program defects.  In addition, I have noticed that the language implemented in the new application is convoluted and difficult to understand, which makes it harder for most people to use. 

The USCIS has made a very reasonable accomodation to employers facing difficulties with the LCA.  Still, the government will not approve the H-1B petition until the sponsor obtains an approved LCA.  Thus, it is critical that the DOL improve its new system as soon as possible.

 If you are facing an H-1B problem, or simply want to start the process, you may contact our Long Beach immigration attorney. 

Good news in the immigration field is hard to come by lately.  Indeed, it seems that the lines for green cards are hopelessly long.  The November Visa Bulletin did little to change things.

The new Visa Bulletin reports that the wait for a 3rd preference immigrant visa is seven years for those in the world-wide category.  If you are from India, the wait is a year longer.  For those with master’s degree who fit into the second preference category, the Visa Bulletin is current unless you are from China (a four year wait) or India (nearly a five year wait). 

 The Family-based categories also remain ridiculously backlogged.  Unmarried sons and daughters of U.S. citizens face a line requiring a six year wait for most people.  If you are from Mexico, the wait is seventeen years!  A brother or sister petition for Philippine nationals is worthless until you have waited twenty-two years!

I certainly hope that Congress and the President address these backlogs in a new Comprehensive Immigration Bill.  Unfortunately they have their hands full with health care issues, but, being an optimist, I am hopeful that next year they will fix many of the system flaws that have been present in the immigration process for years. 

 In the meantime, if you have an immigration issue, contact us.  The immigration attorneys with Garg & Associates will be happy to look for the best available methods to address your immigration concerns.