John Valdez’s Legal Blog

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. 

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.