John Valdez’s Legal Blog

For many non-citizens, it is much easier to leave the U.S. than it is to return.  Because many non-citizens are not aware of the many possible issues related to travel, they should obtain legal advice before booking a plane ticket.

Even if the United States Citizenship and Immigration Services (USCIS) issues you a travel permit, you should ask an immigration attorney if travel is recommended.  Many people seeking a green card obtain advance parole when applying for adjustment of status.  The USCIS does not analyze if travel is problematic when issuing these documents; they simply issue the travel document.  If a non-citizen is barred from reentry because of prior unlawful status or a previous conviction, the advance parole document will offer no protection to the individual.  In some cases, the traveler will not be allowed to return to the United States for ten years.

Permanent residents also must understand the potential consequences of travel.  For example, when permanent residents leave the United States for longer than six  months, the USCIS will sometimes seek to terminate their green card status on the basis that they abandoned their residence in the United States.  A trip of one year will automatically terminate green card status, unless the traveler has obtained a reentry permit. 

For those contemplating naturalization, an immigration attorney can help formulate a strategy for a frequent traveler to meet the physical presence and continuous residence requirements for citizenship. 

The above travel concerns touch on just a few of the many possible travel issues for non-citizens.  The immigration attorneys at Garg & Associates, PC can answer your travel questions or any other immigration concerns you may have.   

It has now been several years since the USCIS started providing Premium Processing for selected immigration applications and petitions.  Premium Processing is a USCIS program that permits an applicant or petitioner to submit an extra $1,000 in order to receive fast adjudication.  How fast?  In most cases, the application or petition is decided in 15 days.  If the case is not decided in 15 days, it is normally because the USCIS has requested some additional evidence, in which case, the government promises to process the case within 15 days of receiving the additional evidence.

When premium processing was first instituted, many believed that it inappropriately gave a benefit to the rich, and that those without much money would see longer lines while the premium processing beneficiaries received swift approvals.  My experience is that most people, regardless of their incomes, prefer to use premium processing, and I haven’t heard many complaints, except for the valid argument that not enough cases are eligible for premium processing.

A list of the types of immigration cases eligible for premium processing can be found at the USCIS website at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=ebaf0c594dafd010VgnVCM1000000ecd190aRCRD&vgnextchannel=54519c7755cb9010VgnVCM10000045f3d6a1RCRD.

Recently, the USCIS announced that it would resume premium processing for two types of petitions.  First, in June, it announced that it would again start processing Form I-140 petitions for an immigrant visa under premium processing.  This announcement was limited to certain types of immigrant visa petitions.  Left out were I-140 petitions for EB-1 multinational executives and managers and EB-2 members of the professions with advanced degrees or exceptional ability seeking a national interest waiver.

On July 21, 2009, the USCIS announced it would again allow premium processing for R-1 cases.  Previously, the government had suspending premium processing for religious worker cases because of heightened scrutiny involving its perception of fraud involving R-1 petitions.  The use of R-1 premium processing will be limited to petitioners that have successfully passed an on-site inspection. 

Hopefully, the USCIS will make more visa categories eligible for premium processing in the near future.  In the meantime, immigration attorneys at Garg & Associates can help you plan the fastest, most efficient process to meet your immigration needs. 

The American immigration system is a mess.  Not many will disagree with this statement. There are roughly 12 to 15 million people in this country without legal papers.  The legal immigration process is severely stalled and ineffective, with many waiting for six, ten, twenty, or more years for a visa.  There are far too many problems with the system to list them in one blog; but the real question is when will Congress overhaul the system.  The answer to this question may be soon thanks to the conclusion of a Senate race.

On June 30, 2009, the Minnesota Supreme Court unanimously decided that Al Franken was the winner of a Minnesota Senate seat.  Norm Coleman, who was challenging the election results, conceded the win to Franken soon after the Court decision.

 You may be asking what this one election win has to do with an overhaul of the immigration system.  The relevance is that the victory gives the Democrats the chance to bring a Comprehensive Immigration Reform Bill to a vote in the Senate.  The rules of the Senate provide that a Senator can filibuster until the end of days on a bill — meaning the bill will never be brought to a vote — unless the bill gets 60 votes to prevent this tactic.  With Franken’s win, the Democrats have 60 fairly reliable votes in the Senate.

In the past, Comprehensive Immigration Reform has been doomed by the Democrates’ failure to obtain the magic 60 super majority.  I believe that while not all Democrats will vote for Comprehensive Immigration Reform, there is a very good chance that they can get the 60 votes to bring a measure to a full Senate vote, and there are likely more than 50 Senators, including some Republicans, willing to pass a Comprehensive Immigration Reform Act. 

Garg and Associates will keep you updated on major changes to the immigration laws.  I truly believe such changes are coming.  Look for a major overhaul next Spring. 

For many years, immigration attorneys have been advising employers to file their H-1B petitions on the first day possible each year, April 1st, because the number of petitions will far exceed the number of available visas under the H-1B Cap during the first week that petitions may be submitted.  This year is proving to be an anomaly.   

Indeed, we are now in the fourth month of the H-1B season and there are still plenty of H-1B visas available.  The USCIS just announced that as of July 3, 2009, there are still 20,000 H-1B visas available, and there are few new petitions being submitted.  At the current rate, it is likely that H-1B visas will be available for many months.

The reason for the availability of H-1B visas is undoubtedly the slow economy.  There are simply fewer offers of employment.  This situation is great for companies that want to hire professional nonimmigrants.  If you need help processing an H-1B visa, please contact us.

Ruiz-Diaz v. United States of America (”Ruiz”) was a very good decision for religious workers because it put them on equal status with other visa holders seeking permanent residence.  In the past, while most applicants in the U.S. seeking green cards could file an immigrant petition along with an application for adjustment of status (AOS application), religious workers were deprived of this benefit.  The filing of the two applications together has come to be known as “concurrent filing.”

Instead of being allowed to file concurrent applications, religious workers needed to wait for the approval of their immigrant visa petition before they could file the AOS application.  This restriction put them at a distinct disadvantage, since the immigrant visa petition alone did not allow them to seek separate employment authorization, travel permission, or an independent basis to maintain lawful status; all advantages that come with the filing of an AOS application.

The Ruiz Court found that the USCIS’ bar against concurrent filing for religious workers was an unreasonable interpretation of the applicable statute.  It ordered the government to accept religious worker concurrent filings.  Moreover, the Court ruled that religious workers whose AOS applications and/or work authorization applications were rejected by the USCIS can reapply and are entitled to have their applications processed as though they had been submitted on the original date they attempted to initially file.  No unlawful presence, unlawful status, or unauthorized employment could be attributed to these workers in most cases.    

If you have any questions about the religious worker category, please contact a Long Beach immigration attorney at 562-590-7300 or email us at jvaldez@gargandassociates.com.