John Valdez’s Legal Blog

Today, the USCIS reported that the H-1B Cap was not reached in the first week since petitions were received.  This is great news for all of those will petitions already filed, since they will not need to be placed in a lottery situation.

 For those who have not filed an H-1B petition, but still wish to submit one, there is very little time left. The immigration attorneys at Smith & Garg in Long Beach would be glad to help you file a last minute application.

At this time, many foreign nationals are anxiously waiting to see if they will be allowed to stay and work in the United States.  I am speaking of the thousands of nonimmigrants waiting to see if the H-1B Cap has been reached.  In recent years, so many people have applied for initial H-1B visas that the annual quota has been filled during the first week that petitions are accepted for the new fiscal year.  Because of this demand, the USCIS has placed all of those applying in the first week in a large lottery.  Winners get their petitions reviewed; losers see their applications rejected.  It is a tough time for those awaiting results.

 The first week to apply for H-1B petitions just passed yesterday and there is still hope for H-1B hopefuls.  The USCIS announced today that it will continue to accept H-1B petitions until the quota is reached. 

The USCIS’s announcement does not state that the cap has not been reached, but it also does not state that it has been reached.  It is likely that the demand for H-1B visas is dramatically down this year, because of the state of the U.S. economy.

 As soon as we learn more about the Cap situation, the attorneys at Smith & Garg will pass it on to you.

Many religous workers and immigrant investors are anxious about the coming sunset of the immigration programs concerning them; thus, I have been providing regular updates on the subjects.  Both the religous worker immigrant visa program and the EB-5 regional center program are due to expire on March 6, 2009.  Congress is notorious for waiting until the last minute to extend these programs.

Congress is making progress on the extensions, though not in the way I envisioned.  The House passed legislation yesterday that would extend the regional center program.  Included in the Fiscal 2009 Omnibus Appropriations bill (H.R. 1105), the law would extend the program only until September 30, 2009.  This action means that Congress would need to address the issue all over again by September.  The bill still must by passed by the Senate and then signed by the President.

 Last night another bill was introduced in the House by Rep. Lofgren (D-CA) that would extend the religous worker immigrant visa program.  Similar to the regional center provision, Representative Lofgren’s bill (H.R. 1127) would extend the religous worker immigrant visa program only until September 30, 2009. 

I anticipate that Congress will pass the provisions of law to extend the EB-5 regional center and religious worker immigrant visa programs in early March.  If these programs are only extended until September 30, 2009, I recommend that foreign nationals with a stake in these programs take immediate actions to file their applications quickly.  If you need advice concerning your visa possibilities, please contact the Long Beach immigration attorneys of Smith & Garg, PC.  

The USCIS has a very nice feature in its system called the CIS Ombudsman.  This person examines the way the USCIS adjudication process is working, issues criticism when appropriate, and makes recommendations to increase service to non-citizens.  Of course, if the USCIS officials do not agree with the Ombudsman, they may not make any systematic changes.

 A case in point involves the delayed issuance of some employment authorization documents, known as EADs.  Under the government’s regulations, the USCIS is required to issue the EAD within 90 days of the filing of the application for this document.  The USCIS has come up with policies that allow it to take more than 90 days to adjudicate such an application in certain circumstances.  For example, the USCIS stops the clock when it issues a request for evidence.  The 90 day clock resumes from where it left off after the requested evidence is received.  In the case of a request for initial evidence (evidence missing from the application), the USCIS does not even start the 90 clock until the evidence is received. 

The Ombudsman recently made recommendations to improve the EAD adjudication process because of a significant number of cases where adjudication exceeded, wrongly, 90 days.  Unfortunately, in a Memorandum just issued, the USCIS found that delayed issuance of EADs is not a “significant” issue because, according to its calculations, these cases “constitute only 1.3% of the total applications.” 

Of course, 1.3% of the more than a million EAD applications submitted each year still represents many thousands of cases, which means many people are harmed by delays.  The EAD is a very important document, since without it most applicants cannot work!  During my years in practice, I have had many clients who were ready to pull their hair out in frustration because the government was not timely adjudicating their EAD applications. 

Although the USCIS stated that EAD delays did not constitute a significant issue, in the Memorandum it does state that it will try to comply with some of the Ombudsman’s recommendations, including some involving the release of more public information on the issue of EAD adjudications.  On the whole, though, I don’t think the USCIS is doing enough to solve the problem.  One way to improve the situation would be to automatically issue a temporary EAD, perhaps limited to three months, when the application has been pending for 90 days.  Currently there is method to apply for a temporary EAD, but many non-citizens have difficulties pursuing this process, and sometimes it takes much too long.  An automatic issuance of the temporary document would be much more efficient.  I seriously doubt that such a policy would harm national security, while it would alleviate the monetary and emotional stress of those victims of slow adjudications.

If you have a problem with any immigration issue, let us know.  The immigration attorneys at Smith & Garg, PC would like to assist you.

Congress has a way of putting off legislation until the last second.  Take for example the Religious Worker and EB-5 Regional Center programs.  Throughout my years of practice, I have watched Congress wait until the last second to renew these categories before they sunset.  Sometimes, Congress has allowed the religious worker statute to sunset, only to renew it shortly afterward. 

Expect to see a similar pattern this year.  The religious worker statute and the EB-5 Regional Center statutes are due to expire next month.  Both were due to expire last year, but President Bush extended the programs until March 6, 2009.  He signed a continuing resolution which extended the EB-5 Regional Center Pilot Program and the Special Immigrant Nonimmister Religious Worker Program Act, both of which extended the laws for a six month period.

The religous worker program allows religious organizations to bring well-intending individuals to the U.S. to perform religious work.  Usually this work does not pay much and calls for a dedicated commitment from the individual.  The EB-5 regional program allows certain investors to acheive permanent residence after commiting a large sum of money to a U.S. business that will create at least 10 jobs for U.S. workers.

Both of these programs are needed in the U.S.  My best estimate is that these programs will be extended right around the deadline:  March 6, 2009.  I’ll keep you updated in legislation in these areas.  Meanwhile, if you need assistance with either category, please contact Smith & Garg’s Long Beach immigration attorneys.