PIERCE'S IMMIGRATION LAW E-NEWSLETTER
“Informative * Innovative * Interesting”

WWW.CPVISA.COM

JUNE 2008, Vol. XI. 

 

PIERCE'S IMMIGRATION LAW E-NEWSLETTER is free.  It is published by the Law Offices of Curtis Pierce, Certified Specialist, Immigration & Nationality law, The State Bar of California Board of Legal Specialization.  523 West Sixth St., Suite 348, Los Angeles, CA 90014.  (213) 327-0044.

The Law Offices of Curtis Pierce abhor spam and applaud the efforts of organizations that seek its elimination. This newsletter is in strict compliance with the federal CAN-SPAM Act regarding unsolicited emails.    If you do not wish to continue receiving this monthly e-newsletter on immigration law, please click "Leave mailing list" on the bottom of this page and you will be IMMEDIATELY removed from this mailing list.

CURTIS PIERCE NAMED CALIFORNIA SUPER LAWYER
FOR THIRD CONSECUTIVE YEAR.  

Curtis Pierce was honored by Super Lawyers Magazine as one of the top 5% of attorneys in California.  Super Lawyers are chosen by their peers and through independent research.  Mr. Pierce has been chosen for the years 2008, 2007, and 2006.

IMMIGRATION ITEMS OF INTEREST 

 

• ATTENTION TRAVELERS:  UPDATES IN THE ENTRY PROCESS AT U.S. PORTS OF ENTRY FOR INTERNATIONAL TRAVELERS
  
  
• RECENT SPEAKING ENGAGEMENT:  CURTIS PIERCE DELIVERED SEMINAR ON INVESTOR VISAS (E-2, EB-5) AND VISAS FOR INTRACOMPANY TRANSFEREES (L-1) AT THE AMERICAN BUSINESS SCHOOL PARIS.   
  .
  

IMMIGRATION NEWS & INFORMATION

• ATTENTION TRAVELERS TO U.S. FROM VISA WAIVER COUNTRIES:  INFORMATION ON PRE-TRAVEL AUTHORIZATION
  
  

   

PROCESSING TIMES & CASE STATUS   

• PROCESSING TIMES
  
• CHECK STATUS OF YOUR CASE ONLINE

 

IMMIGRATION ITEMS OF INTEREST

 ATTENTION TRAVELERS:  UPDATES IN THE ENTRY PROCESS AT U.S. PORTS OF ENTRY FOR INTERNATIONAL TRAVELERS

The U.S. Department of Homeland Security (DHS) announced on June 6, 2008 the launch of three initiatives – the Global Entry pilot program, the Passenger Service Program, and an expanded Model Ports Initiative – intended to strengthen customer service at U.S. ports of entry.

"Perhaps the single criticism we hear most from international travelers is frustration with the entry process," said Homeland Security Secretary Michael Chertoff. "We're committed to a more welcoming environment for the roughly one million foreign travelers arriving at our ports each day. These initiatives will reduce much of the frustration and anxiety we encounter, and make it easier on our frontline personnel to focus even more on actual security and criminal risks."

Global Entry is a customer service and security program designed to expedite the screening and processing of pre-approved, low-risk travelers entering the U.S.  Currently only U.S.Citizens and Lawful Permanent Residents (LPR) are eligible to join. The pilot starts today at George Bush Intercontinental, John F. Kennedy International and Washington Dulles International airports. Global Entry applicants will voluntarily provide their biographic and biometric information, undergo a background check and complete an interview with a U.S. Customs and Border Protection (CBP) officer. Once accepted, Global Entry travelers can use a kiosk at any of the three pilot airports to verify their identity electronically and make any needed customs declarations. CBP has been accepting applications at www.cbp.gov/travel since May 12.

Under the new Passenger Service Program, CBP Program Service Managers will serve as a dedicated point of contact for identifying and resolving passenger issues. The initiative promotes customer service techniques in officer interactions with the traveling public, and includes joint efforts with the private sector and industry stakeholders to reduce wait times through the use of improved signage and technology. The program will be established at CBP's top 20 Model Ports.

The department also is expanding the Model Ports Initiative to 18 additional airports. Originally established in 2006 as part of the Rice-Chertoff Initiative, Model Ports has enhanced border security with the use of the new technology while streamlining security processes and facilitating travel for legitimate visitors. In addition to brochures and increased signage, a new video, currently available in Spanish, French, German and English, will assist travelers through the customs and immigration process by providing practical information about the entry process and required entry documents and forms.

In a related effort, CBP is providing wait times online at www.cbp.gov for 16 of the busiest international airports and pedestrian wait times for 12 land border crossings in Arizona, California, and Texas.

  

 AN AMERICAN IMMIGRATION LAWYER IN PARIS

On May 27, 2008, Immigration Attorney Curtis Pierce presented a 90 minute seminar on investor visas (E-2, EB-5) as well as visas for intracompany transferees (L-1) at the American Business School Paris, in the City of Light.   The seminar featured a power point presentation as well as a demonstration of the forms used for the visas E-2 and L-1.  

In attendance were international lawyers, heads of legal departments of France's leading banks, and several corporate executives from the upper echelons of France's business community.  After attending the seminar, they may one day be utilizing their extraordinary talents here in the United States.  On ne sait jamais.

 

IMMIGRATION NEWS & INFORMATION  

ATTENTION TRAVELERS TO U.S. FROM VISA WAIVER COUNTRIES:  INFORMATION ON PRE-TRAVEL AUTHORIZATION

On June 3, 2008, the U.S. Department of Homeland Security (DHS) announced the Interim Final Rule for the Electronic System for Travel Authorization (ESTA), a new online system that is part of the Visa Waiver Program (VWP) and is required by the Implementing Recommendations of the 9/11 Commission Act of 2007. 

ESTA is an automated system used to determine the eligibility of visitors to travel in the U.S. under the VWP and whether such travel poses any law enforcement or security risk.  The goal of ESTA is to add another layer of security that allows DHS to determine, in advance of travel, whether an individual is eligible to travel to the United States under the VWP and whether such travel poses a law enforcement or security risk.

“Rather than relying on paper-based procedures, this system will leverage 21st  century electronic means to obtain basic information about who is traveling to the U.S. without a visa,” said Homeland Security Secretary Michael Chertoff. “Getting this information in advance enables our frontline personnel to determine whether a visa-free traveler presents a threat, before boarding an aircraft or arriving on our shores. It is a relatively simple and effective way to strengthen our security, and that of international travelers, while helping to preserve an important program for key allies.”

Once ESTA is mandatory, all nationals or citizens of VWP countries who plan to travel to the United States for temporary business or pleasure under the VWP will need to receive an electronic travel authorization prior to boarding a U.S.-bound airplane or cruise ship. The requirement will go into effect next year and does not affect U.S. citizens traveling overseas. 

Accompanied or unaccompanied children, regardless of age, will be required to obtain an independent ESTA approval.  A third party, such as a relative or travel agent, will be permitted to submit an ESTA application on behalf of a VWP traveler.

The Visa Waiver Program is administered by DHS and enables eligible nationals of certain countries to travel in the U.S. for tourism or business for stays of 90 days or less without obtaining a visa. 

Which countries participate in the Visa Waiver Program?  The list includes the following:  Andorra, Austria, Australia, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstine, Luxembourg, Monaco, The Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and United Kingdom.

Currently, citizens of VWP countries complete a written I-94W form providing basic biographical, travel, and eligibility information while en-route to the U.S.  With ESTA, VWP travelers will provide this information online prior to departure for the U.S.

The ESTA travel authorization is not a visa.  It does not meet the legal or regulatory requirements to serve in lieu of a U.S. visa when a visa is required under U.S. law.  Individuals that possess a valid visa will still be able to travel to the United States on that visa for the purpose it was issued.  Individuals traveling on valid visas will not be required to apply for an ESTA.  Obtaining ESTA approval, for most travelers, is projected to be a simple process.  Obtaining a visa, however, typically requires an appointment, travel to a U.S. Embassy/Consulate, an interview with a consular officer, processing time, and the payment of a fee (currently $131). 

ESTA will determine, almost immediately in many cases, if an individual is eligible for VWP travel, and if such travel poses any law enforcement or security risks. ESTA applications may be submitted at any time prior to travel, and once approved, will be valid for up to two years or until the applicant’s passport expires, whichever comes first.  Authorizations will also be valid for multiple entries into the U.S. To facilitate the authorization process, DHS recommends that ESTA applications be submitted as soon as an applicant begins planning U.S.-bound travel, and not less than 72 hours prior to travel.

A frequently asked question is if one is approved through ESTA to travel to the United States, does that mean that he can enter the country?  Not necessarily.  An ESTA approval only authorizes a traveler to board a carrier for travel to the United States under the VWP.  In the same way that a valid visa does not constitute a determination of admissibility, an approved ESTA is not a guarantee of admissibility to the U.S. at a port of entry.  In all cases, U.S. Customs and Border Protections (CBP) officers make admissibility determinations at our ports of entry or pre-clearance facilities.

ESTA is a web-based system.  On Aug. 1, 2008, the department will begin to accept voluntary applications through the ESTA Web site at https://esta.cbp.dhs.gov. Until ESTA is mandatory for all VWP travelers, however, ESTA applicants will also still need to complete an I-94W form en-route, for presentation at a U.S. port of entry. The Secretary of Homeland Security is anticipated to publish a notice in the Federal Register by mid-November 2008, announcing implementation of mandatory ESTA requirements on Jan. 12, 2009.

To apply for authorization to travel to the United States under the VWP, travelers will log on to the ESTA web-based system and complete an application online providing the biographical and eligibility information currently required on the paper I-94W form.  The ESTA web-based system will be available for voluntary applications after Aug. 1, 2008.  ESTA will be implemented as a mandatory program 60 days after publication of a notice in the Federal Register.  DHS anticipates that the Secretary of Homeland Security will issue that notice in November 2008, for implementation of the mandatory ESTA requirements on Jan. 12, 2009.

ESTA applications may be submitted at any time prior to travel to the United States, and VWP travelers are encouraged to apply for authorization as soon as they begin to plan a trip to the United States.  If applicants’ destination addresses or itineraries should change after their authorization has been approved, they may easily update that information through the ESTA website. 

The traveler must provide (in English) biographical data including name, birth date, and passport information, as well as travel information such as the flight number and destination address in the United States.  The traveler will also be required to answer VWP eligibility questions regarding communicable diseases, arrests and convictions for certain crimes, and past history of visa revocation or deportation, among others.

Just as the I-94W paper form must be completed in English, you will be required to enter the information required on your ESTA application in English.  Your computer should, therefore, be configured to include the U.S. English language with a suitable English font set as a language selection for keyboard input.

If your computer’s operating system is Microsoft Windows 95 or higher and you are unsure as to the English language capabilities of your computer, refer to the following website for information on configuring your computer: http://www.conversationexchange.com/resources/keyboard-language.php#xp.

If your computer is using a non-Windows operating system, refer to the documentation or help information provided by your operating system vendor.

Once an ESTA application has been successfully completed and submitted online, the application will be queried against appropriate law enforcement databases.  ESTA application data will remain active for the period of time that the ESTA authorization is valid.  DHS will maintain this information for an additional year, and then will archive the information for twelve years to allow retrieval of the information for law enforcement and investigatory purposes.

In most cases, ESTA will provide an almost immediate determination of eligibility for travel under the VWP.  Possible responses include:  Authorization Approved, Travel Not Authorized, or Authorization Pending.

An approved ESTA travel authorization is:

Once ESTA is mandatory, all travelers from VWP countries will be required to obtain an ESTA approval prior to boarding a carrier to travel by air or sea to the United States under the VWP. 

In the event that an ESTA applicant is denied authorization to travel to the United States under the VWP, he or she will be referred to www.travel.state.gov for information on how to apply for a visa to travel to the United States.  This process is similar to the current practice, in which VWP travelers who arrive at a United States port of entry and are determined by U.S. Customs and Border Protection (CBP) to be ineligible for admission under the VWP may be returned to their country of origin to apply for a visa to enter the United States.  It will be far more convenient for most travelers to receive this notification before commencing travel.

Accompanied and unaccompanied children, regardless of age, will be required to obtain an independent ESTA authorization and determination of eligibility.  VWP travelers who fail to obtain an ESTA travel authorization after ESTA becomes mandatory may be denied boarding, experience delayed processing, or be denied admission at a U.S. port of entry.

 ESTA application data will remain active for the period of time that the ESTA authorization is valid, which is generally two years, or until the traveler’s passport expires, whichever comes first.  DHS will then maintain this information for an additional year after which it will be archived for twelve years to allow retrieval of the information for law enforcement, national security, and investigatory purposes.  Once the information is archived the number of DHS officials with access to it will be even further limited.  This retention is consistent both with CBP’s border search authority and with the border security mission mandated for CBP by Congress.  Data linked to active law enforcement lookout records, CBP matches to enforcement activities, and/or investigations or cases, including applications for ESTA that are denied  will remain accessible for the life of the law enforcement activities to which they may become related.

The ESTA application data will over time replace the paper I-94W form. In those instances where an ESTA is then used in lieu of a paper I-94W, the ESTA will be maintained in accordance with the retention schedule for I-94W, which is 75 years.

The information collected by and maintained in ESTA may be used by other components of DHS on a need to know basis consistent with the component’s mission. 

Information submitted during an ESTA application may be shared under a memorandum of understanding (MOU) with consular officers of the Department of State (DOS), to assist consular officers in determining whether a visa should be issued to the applicant after an ESTA application has been denied.

Carriers will also receive the information regarding the applicant’s ESTA via the Advance Passenger Information System (APIS)/ APIS Quick Query system.

Information may be shared with appropriate federal, state, local, tribal, and foreign governmental agencies or multilateral governmental organizations responsible for investigating or prosecuting the violations of, or for enforcing or implementing, a statute, rule, regulation, order or license, or where DHS believes information would assist enforcement of civil or criminal laws.  Additionally, information may be shared when DHS reasonably believes such use is to assist in anti-terrorism efforts or intelligence gathering related to national or international security or transnational crime.  All sharing will remain consistent with the Privacy Act System of Records Notice, which is available on the DHS Web site.

ESTA does not apply to travelers entering the U.S. via land borders.  ESTA will only be required for visitors traveling under the VWP to the United States via air or sea carriers. Travelers applying for admission to the United States under the VWP at land border ports of entry will continue to be processed as they are today. Neither Canada nor Mexico is a VWP member country, and so ESTA does not apply to Canadian or Mexican nationals’ travel.

 

 

Processing Times

 

·  To view processing times and your case status, click one of the links below to connect to the correct U.S. Citizenship and Immigration Services information page.

·  California Service Center ·  Nebraska Service Center ·  Texas Service Center ·  Vermont Service Center 

 

Case Status Service Online

If you have an application receipt number, you can use the Internet to check the status of your case with the USCIS.

https://egov.uscis.gov/cris/jsps/index.jsp

 

 

The IMMIGRATION LAW E-NEWSLETTER is free. 

It is published by the Law Offices of Curtis Pierce, 213-327-0044.

 

Disclaimer:  The information contained in this newsletter is analysis and commentary of a general nature.  Nothing in this newsletter applies to a specific case nor does it constitute legal advice. 

 

Schedule appointment:  For legal advice on your case, please schedule an appointment with Curtis Pierce, Certified Specialist, Immigration & Nationality Law, The State Bar of California Board of Legal Specialization.

 

“The only title in our democracy superior to that of President (is) the title of citizen”.

Former Supreme Court Justice Louis Brandeis.   (In the case Ng Fung Ho v. White, 259 U.S. 276, 284 (1922), Justice Brandeis wrote that deportation can deprive an individual of "life, or of all that makes life worth living.")

In the words of President John F. Kennedy, the United States is a "nation of immigrants." 

 

 

 

 

IMMIGRATION LAW E-NEWSLETTER

 

 

curtis f.pierce

Attorney At Law

certified specialist, immigration & nationality law

the state bar of california board of legal specialization

THE PACIFIC CENTER

523 WEST SIXTH STREET, SUITE 348

LOS ANGELES, CALIFORNIA 90014

tel (213) 327-0044
FAX  (213) 327-0066

 

email: curtis.pierce@cpvisa.com
website:  http://www.cpvisa.com/

 

 

 

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PIERCE'S IMMIGRATION LAW E-NEWSLETTER
“Informative * Innovative * Interesting”
WWW.CPVISA.COM

APRIL 2008, Vol. XV. 

PIERCE'S IMMIGRATION LAW E-NEWSLETTER is free.  It is published by the Law Offices of Curtis Pierce, Certified Specialist, Immigration & Nationality law, The State Bar of California Board of Legal Specialization.  523 West Sixth St., Suite 348, Los Angeles, CA 90014.  (213) 327-0044.

CURTIS PIERCE NAMED CALIFORNIA SUPER LAWYER
FOR THIRD CONSECUTIVE YEAR.  

Curtis Pierce was honored by Super Lawyers Magazine as one of the top 5% of attorneys in California.  Super Lawyers are chosen by their peers and through independent research.  Mr. Pierce has been chosen for the years 2008, 2007, and 2006.

PIERCE'S IMMIGRATION LAW E-NEWSLETTER
“Informative * Innovative * Interesting”

WWW.CPVISA.COM

APRIL 2008, Vol. XV. 

CURTIS PIERCE NAMED CALIFORNIA SUPER LAWYER
FOR THIRD CONSECUTIVE YEAR.  

Curtis Pierce was honored by Super Lawyers Magazine as one of the top 5% of attorneys in California.  Super Lawyers are chosen by their peers and through independent research.  Mr. Pierce has been chosen for the years 2008, 2007, and 2006.

IMMIGRATION ITEMS OF INTEREST    

• EB-5 INVESTOR VISAS:  IMMIGRATION THROUGH INVESTMENT   
  
  
• UPCOMING SPEAKING ENGAGEMENT:  CURTIS PIERCE TO DELIVER SEMINAR ON INVESTOR VISAS (E-2, EB-5) AND VISAS FOR INTRACOMPANY TRANSFEREES (L-1) AT THE AMERICAN BUSINESS SCHOOL PARIS.   

IMMIGRATION NEWS & INFORMATION

• SUPPLEMENTAL PROPOSED RULEMAKING FOR THE NO-MATCH RULE.  
   
• CHANGES TO FY2009 H-1B PROGRAM:  INTERIM FINAL RULE PROHIBITS EMPLOYERS FROM FILING MORE THAN ONE H-1B PETITION IN A SINGLE YEAR. 
  
  
• ATTORNEY GENERAL MICHAEL MUKASEY ANNOUNCES HIGHER CIVIL FINES AGAINST EMPLOYERS FOR IMMIGRATION VIOLATIONS.

PROCESSING TIMES & CASE STATUS  

• PROCESSING TIMES
   
• CHECK STATUS OF YOUR CASE ONLINE

 

IMMIGRATION ITEMS OF INTEREST

EB-5 INVESTOR VISAS:  IMMIGRATION THROUGH INVESTMENT

PART I

The following is part I of a series on EB-5 Investor Visas.  The EB-5 offers important flexibility for alien investors with $1,000,000 or, in some cases, $500,000 to invest in a new business in the U.S. 

Benefits of an EB-5

If you are an active investor in a U.S. enterprise in which you are investing at least $1 million, or $500,000 in certain targeted areas, and the enterprise creates at least 10 full-time jobs, then you may be able to obtain U.S. Permanent Residency under the EB-5 category.  If an EB-5 application is approved, the alien becomes a conditional permanent resident for 2 years.  In effect, through his investment, the alien and his family can secure a temporary green card.  After 2 years, the person and his family file to remove the condition.  If he has satisfied the conditions, then he and his family will receive a permanent Green Card.

Regional Center Program and Its Benefits:  A Quicker Path to a Green Card

The EB-5 category is an important option for foreign investors to consider because of the unique advantages it affords.  These include the flexibility to live anywhere in the U.S., not just in the geographic area of the investment and the option to be a limited partner not required to be involved in the daily management of the new commercial enterprise.  The required investment is $500,000 or more in USCIS designated Regional Centers.  Further, the EB-5 category provides a quicker path to obtaining a green card.   

1. A regional center is an entity, organization or agency that has been approved as such by the USCIS;
2. Focuses on a specific geographic area within the United States; and,
3. Seeks to promote economic growth through increased export sales, improved regional productivity, creation of new jobs, and increased domestic capital investment.

1. Demonstrate that a "qualified investment" is being made in a new commercial enterprise located within an approved Regional Center; and,
2. Show that 10 or more jobs are actually created either directly or indirectly by the new commercial enterprise through revenues generated from increased exports, improved regional productivity, job creation, or increased domestic capital investment resulting from the pilot program.

What Does It Mean to Indirectly Create New Jobs? 

If you invest in an USCIS approved regional center, you do not need to directly create 10 full-time jobs.  The requirement of creating at least 10 new jobs is met by a showing that as a result of the new enterprise, such jobs will be created directly or indirectly through revenues generated from job creation.  If effect, if you invest in a USCIS approved regional center, only a creation of a few jobs may meet the 10 job requirement because an increase in a few jobs also leads to indirect job gains, the sum of which equals at least 10.

  

 AN AMERICAN IMMIGRATION LAWYER IN PARIS

On May 27, 2008, Immigration Attorney Curtis Pierce is scheduled to present a seminar at the American Business School Paris on investor visas (E-2, EB-5) as well as visas for intracompany transferees (L-1). ABS Paris is located at  12, rue Alexandre Parodi 75010 PARIS.  The seminar will be conducted in French and begin at 7:00 P.M. All those wishing to attend are requested to RSVP by emailing Mr. Pierce at curtis.pierce@cpvisa.com.  

IMMIGRATION NEWS & INFORMATION  

SUPPLEMENTAL PROPOSED RULEMAKING FOR THE NO-MATCH RULE.

Of great concern to employers is the U.S. Department of Homeland Security's (DHS) No-Match Rule.  The purpose of the No-Match Rule is to ensure that employers are not employing unauthorized workers.  The original No-Match Rule was issued by the DHS on June 14, 2006 and the final rule was issued on August 15, 2007.  The Supplemental Proposed Rulemaking was released on March 21, 2008.  DHS is requesting public comment on the Supplemental Proposed Rulemaking for 30 days after its publication in the Federal Register.

Enforcement is the obvious concern of the No-Match Rule.  According to DHS's March 21, 2008 released statement by Homeland Security Secretary Michael Chertoff, "We are serious about immigration enforcement. The No-Match Rule is an important tool for cracking down on illegal hiring practices while providing honest employers with the guidance they need." 

DHS maintains that the No-Match Rule clarifies the obligations and provides more guidelines for employers to avoid hiring unauthorized workers.  According to the DHS's release, the rule does not create new legal obligations for businesses. It simply outlines clear steps an employer may take in response to receiving a letter from the Social Security Administration indicating that an employee’s name does not match the social security number on file. If the business follows the guidance in the No-Match Rule, comprising various actions to rectify the no-match within 90 days of receiving the letter, it will have a safe harbor from the no-match letter being used against them in an enforcement action.

Opponents of the No-Match Rule point out that the rule is misleading because employers may believe that they have no choice but to fire employees who are unable to resolve a records discrepancy within 90 days.  President of the American Immigration Lawyers Association, Kathleen Campbell Walker criticized the No-Match Rule, "The Social Security Administration is charged with administering social security benefits, and is not structured or oriented to be an immigration enforcement tool. This misguided attempt to fit the square peg of immigration enforcement into the round hole of social security benefits is a guarantee of increased discrimination and erroneous terminations".  AILA Info Net Doc No. 08032140. 

In essence, the Supplemental Proposed Rulemaking for the No-Match Rule was for the purpose of clarification.  No substantial changes are contained in it.  To read the entire text of the Supplemental Proposed Rulemaking for the No-Match Rule go to:  http://www.dhs.gov/xlibrary/assets/press_nomatch-snprm.pdf

CHANGES TO FY2009 H-1B PROGRAM:  INTERIM FINAL RULE PROHIBITS EMPLOYERS FROM FILING MORE THAN ONE H-1B PETITION IN A SINGLE YEAR.

The interim final rule will become effective upon publication in the Federal Register.

Background

U.S. businesses utilize the H-1B program to employ foreign workers in fields that require theoretical and practical expertise in specialized occupations requiring a bachelor’s degree or higher (or its equivalent), such as scientists, engineers, or computer programmers.  By law, USCIS cannot grant more than 65,000 new H-1B visas per fiscal year, subject to certain limited exceptions.  The first 20,000 H-1B petitions filed on behalf of aliens with U.S.-earned masters’ or higher degrees are exempt from the H-1B numerical limitation of 65,000.  USCIS administers a separate “20,000 cap” for such exempt petitions. 

USCIS will use a random selection process for all the master’s degree or higher cap-exempt cases received on the first five business days available for filing H-1B petitions for a given fiscal year, if necessary.   In the event that the U.S. master’s exemption limit is reached on the first five business days, USCIS will first conduct the random selection process for such petitions before it begins random selection for petitions to be counted toward the 65,000 cap.  Petitions eligible for the U.S. master’s degree or higher exemption that are not selected to receive an H-1B visa number from the 20,000 cap will be considered with the other H-1B petitions in the random selection for the 65,000 cap filed on the first five business days. 

Cap-Exempt Petition

USCIS also notes that petitions for new H-1B employment are exempt from the cap if the aliens will work at the defined institutions of higher education or a related or affiliated nonprofit entities, or at nonprofit research organizations or governmental research organizations. Thus, employers may continue to file petitions for these exempt H-1B categories regardless of H-1B visa number availability.

Cap Procedures

USCIS will use the following process for handling H-1B petitions subject to the FY 2009 cap:

• April 1, 2008 is the first day petitions may be received for an October 1, 2008 start date.  When it is determined that the numerical limitations have been reached, USCIS employs a random selection process to choose among the petitions received on the “final receipt date.”  If the “final receipt date” falls within any one of the first five business days, the random selection will be run using all the cap-subject petitions received on those five days. 
• USCIS will reject and return the filing fee(s) for all cap-subject H-1B petitions that are not selected in the process described above. The new rule clarifies that this provision only applies to petitions that indicate they are cap-subject.  If a petitioner claims to be exempt from the cap and is later found to be subject to the cap, USCIS will not refund or return fees and that petition will be denied if no cap numbers are available.
• Petitions for the FY 2009 cap received before April 1, 2008 will be rejected.  A petition is considered received when USCIS takes possession of and stamps the petition as received, not by the date the petition is postmarked.  

In order to fully utilize its data entry and initial processing capacity, USCIS may choose to distribute filings received at one service center to other service centers for data entry.   In the event that USCIS exercises this option, petitioners may receive receipt notices or other correspondence from a service center other than the one to which their H-1B petition was mailed. 

Premium Processing

Cap-subject petitions requesting premium processing that are received on the “final receipt date,” or during the initial five business day period mentioned above, cannot be processed until after the random selection has been completed.  The premium processing 15-day adjudication period (processing deadline) will not begin until such time as USCIS has completed the random selection process.  

The number of master’s exemption cases received cannot be determined until all the petitions have been sorted and counted.  The same holds true for the master’s exemption premium processing cases.   In accordance with established guidelines, USCIS will refund premium processing fees for any filings for which it cannot meet processing deadlines.  Even if USCIS issues a refund of the premium processing fee, it will continue to provide premium processing for these filings until completion.

Current H-1B Workers

Petitions filed on behalf of current H-1B workers do not count towards the congressionally mandated H-1B cap.    Accordingly, this rule does not affect USCIS processing of petitions filed to:

• Extend the amount of time a current H-1B worker may remain in the United States;
• Change the terms of employment for current H-1B workers;
• Allow current H-1B workers to change from one cap-subject position to a different cap-subject position with a different employer; or
• Allow current H-1B workers to work concurrently in a second H-1B position.

Restricting the number of petitions an employer may file in a fiscal year to only one may be intended to promote fairness and equity in the H-1B program.  However, in reality, it imposes more limitations on employers struggling to meet the needs of the marketplace.  The cap of 65,000 H-1B visas is far too low.  It is expected that the cap will be reached within days of the receipt of petitions. 

The answer to the H-1B problem is not to limit employers to one petition per fiscal year.  It is for Congress to mandate H-1B visas per year. 

 

 

Attorney General Michael B. Mukasey Announces
Higher Civil Fines Against Employers for Immigration Violations

Attorney General Michael B. Mukasey recently announced higher civil fines against employers who violate federal immigration laws. The announcement was made in a joint briefing with Secretary of Homeland Security Michael Chertoff about newly enacted border security reforms put in place by the Departments of Justice and Homeland Security. Under the new rule, which was approved by Attorney General Mukasey and Secretary Chertoff, civil fines will increase by as much as $5,000. The new rule will take effect on March 27, 2008.

Under the Immigration and Nationality Act, employers who violate employment eligibility requirements are subject to civil monetary penalties. Employers may be fined under the Act for knowingly employing unauthorized aliens or for other violations, including failure to comply with the requirements relating to employment eligibility verification forms, wrongful discrimination against job applicants or employees on the basis of nationality or citizenship, and immigration-related document fraud. For each of these violations, the employer has the right to a hearing before an administrative law judge in the Executive Office for Immigration Review.

Under the new rule and applicable law, civil penalties for violations of the Immigration and Nationality Act are adjusted for inflation. Because these penalties were last adjusted in 1999, the average adjustment is approximately 25 percent. Under the specific rounding mechanism of the law, the minimum penalty for knowing employment of an unauthorized alien increases by $100, from $275 to $375. Some of the higher civil penalties are increased by $1,000; for example, the maximum penalty for a first violation increases from $2,200 to $3,200. The biggest increase under the rounding mechanism raises the maximum civil penalty for multiple violations from the current $11,000 to $16,000. These penalties are assessed on a per-alien basis; thus, if an employer knowingly employed, or continued to employ, five unauthorized aliens, that could result in five fines.

The announcement follows a series of reforms, announced by the Administration in August 2007, to be made within the boundaries of existing law to secure our borders, improve interior and worksite enforcement, and improve the current immigration system. In addition to the higher civil penalties, measures announced and discussed at today’s briefing included expanded prosecutions and removals of criminal aliens, a streamlining of existing guest worker programs, and the Southwest Border Enforcement Initiative.

The Southwest Border Enforcement Initiative includes a $100 million request in new Justice Department funding for FY 2009 for new hiring and resources to better enable the United States to combat the flow of illegal immigration, drugs, and weapons across the Southwest Border, and to arrest, detain, prosecute, and incarcerate violent criminals, drug offenders, and immigration violators along the Southwest Border. More information on this funding request can be found at http://www.usdoj.gov/opa/pr/2008/January/08_opa_079.html and http://www.usdoj.gov/opa/pr/2008/January/08_opa_080.html.

###

08-134

PROCESSING TIMES & CASE STATUS 

 

Processing Times

 

·  To view processing times and your case status, click one of the links below to connect to the correct U.S. Citizenship and Immigration Services information page.

·  California Service Center ·  Nebraska Service Center ·  Texas Service Center ·  Vermont Service Center 

 

Case Status Service Online

If you have an application receipt number, you can use the Internet to check the status of your case with the USCIS.

https://egov.uscis.gov/cris/jsps/index.jsp

 

 

The IMMIGRATION LAW E-NEWSLETTER is free. 

It is published by the Law Offices of Curtis Pierce, 213-327-0044.

 

Disclaimer:  The information contained in this newsletter is analysis and commentary of a general nature.  Nothing in this newsletter applies to a specific case nor does it constitute legal advice. 

 

Schedule appointment:  For legal advice on your case, please schedule an appointment with Curtis Pierce, Certified Specialist, Immigration & Nationality Law, The State Bar of California Board of Legal Specialization.

 

“The only title in our democracy superior to that of President (is) the title of citizen”.

Former Supreme Court Justice Louis Brandeis.   (In the case Ng Fung Ho v. White, 259 U.S. 276, 284 (1922), Justice Brandeis wrote that deportation can deprive an individual of "life, or of all that makes life worth living.")

In the words of President John F. Kennedy, the United States is a "nation of immigrants." 

 

 

 

 

IMMIGRATION LAW E-NEWSLETTER

 

 

curtis f.pierce

Attorney At Law

certified specialist, immigration & nationality law

the state bar of california board of legal specialization

THE PACIFIC CENTER

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LOS ANGELES, CALIFORNIA 90014

tel (213) 327-0044
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email: curtis.pierce@cpvisa.com
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IMMIGRATION ITEMS OF INTEREST    

• IMMIGRATION AND THE 2008 PRESIDENTIAL CAMPAIGN   
  

IMMIGRATION NEWS & INFORMATION

• H-1Bs ARE SUBJECT TO CAP.  NOW IS THE TIME TO PREPARE TO APPLY FOR FISCAL YEAR 2009.  
  
  
• ATTENTION AMERICAN CITIZENS: NEW TRAVEL DOCUMENTS ARE REQUIRED FOR LAND PORTS OF ENTRY EFFECTIVE JANUARY 31, 2008. 
   

PROCESSING TIMES & CASE STATUS

• Processing Times 
  
   
• CHECK STATUS OF YOUR CASE ONLINE

 

IMMIGRATION ITEMS OF INTEREST

 

IMMIGRATION AND THE 2008 PRESIDENTIAL CAMPAIGN 
(from the February 2008 newsletter)

Immigration continues to be a hot topic in both the Republican and Democratic presidential primaries.  How well do you know the positions of the presidential candidates on immigration reform?  Which candidates support family reunification?  Which candidates supported the DREAM Act?  Has the spirit of California Proposition 187 been resurrected in the current campaign?  (California Proposition 187 was a 1994 ballot initiative designed to deny undocumented immigrants social services, health care, and public education.)  Chances are if you are reading Pierce's Immigration Law E-Newsletter, you have at least a passing interest in the issue of immigration reform.  Learn more about the positions of the remaining candidates.

Governor Mike Huckabee

Republican candidate Mike Huckabee confused the facts when he related illegal immigration to the assassination of former Pakistani Prime Minister Benazir Bhutto.  Former Arkansas Governor Huckabee mistakenly stated that Pakistani immigrants are the largest group of illegal immigrants in the U.S. after Mexicans.  On December 28, 2007, ABC News' Kevin Chupka reported, during a press conference Thursday night in West Des Moines, Iowa, Governor Huckabee suggested that after the assassination of former Pakistani Prime Minister Benazir Bhutto, the United States should, "have an immediate, very clear monitoring of our border, and particularly to make sure, if there's any unusual activity of Pakistanis coming into the country."

Huckabee's "The Secure America Plan"

Governor Mike Huckabee’s written position on immigration can be found on his website.  His focus is clearly on enforcement and border security detailed in his plan called “The Secure America Plan”.   The overview of Mike Huckabee’s nine point strategy for immigration enforcement and border security includes:

1. Build the Fence
2. Increase Border Patrol
3. Prevent Amnesty
4. Enforce the Law on Employers
5. Establish an Economic Border
6. Empower Local Authorities
7. Ensure Document Security
8. Discourage Dual Citizenship
9. Modernize the Process the Legal Immigration

Opposition to Family Fourth Preference 

Modernizing the process of legal immigration for Mike Huckabee includes eliminating the admission category for adult brothers and sisters of U.S. citizens.  This means limiting family based immigration by cutting the category of family fourth preference.  For unskilled workers from certain countries, family based immigration may be the only way they have of obtaining legal status in the U.S. 

(See www.cpvisa.com and go to family based immigration for more information).

120 DAYS TO REGISTER BEFORE RETURNING TO HOME COUNTRIES

Governor Huckabee expects that the 12 million undocumented workers who are currently in the U.S. will leave the country voluntarily and return to their native countries.   He plans on providing illegal immigrants a 120-day window to register with the Bureau of Citizenship and Immigration Services before they leave the country.  Those who register and return to their home country will face no penalty if they later apply to immigrate. 

Governor Huckabee's Quotes From His Campaign Website:

I oppose and will never allow amnesty.  I passionately rejected the amnesty bill that President Bush and Senator McCain tried to ram through Congress this summer after secret meeting of an under the radar cabal of amnesty-loving senators. 

I opposed the misnamed DREAM Act, which was a nightmare because it would have put us on the slippery slope of amnesty for all.  Because once we open that door even a crack, we'll never get it closed again.

I oppose and will not tolerate sanctuaries for illegals.  The federal government must enforce our existing laws by cracking down on rogue cities and town that willfully undermine our economy and our homeland security by giving benefits and protection to illegals.  The consequences for illegal entry must be swift, certain, and uniform throughout our country.

I oppose giving driver's licenses to illegals, such as governor Spitzer tried to do in New York.  I support legislation that would prevent the states from granting this privilege to illegals.  In 2005, I signed legislation that prevents illegals in Arkansas from getting driver's licenses.

Points that benefit potential immigrants in Huckabee’s plan include increasing visas for highly skilled and highly educated applicants.  He plans on providing illegal immigrants a 120-day window to register with the Bureau of Citizenship and Immigration Services before they leave the country.  Those who register and return to their home country will face no penalty if they later apply to immigrate.    In practice, Governor Huckabee has made sympathetic gestures toward illegal immigrants.  He has advocated prenatal care for pregnant immigrants and has proposed a scholarship program for illegal immigrants who graduate from Arkansas high schools (Arkansas News Bureau). 

Senator John McCain

Senator John McCain’s (R-AZ) support of a temporary worker program for the 12 million illegal immigrants in the U.S. angered many conservative voters and put at risk his bid for the Republican presidential nomination.   The guest worker program was one of the most controversial elements of the failed comprehensive immigration reform bill supported by President Bush and a bipartisan group of lawmakers in the House and Senate.

Comprehensive Immigration Reform

The Arizona Republican now says that, in the wake of last summer's defeat of comprehensive immigration reform, he has "gotten the message" that the border must be secured before the status of illegal aliens already in the United States can be dealt with. 

Border Security 

Border security is a major component of Senator McCain’s plan for solving U.S. immigration problems.  His official statement on the John McCain for President Website puts the responsibility on the federal government for failing to secure the border.  

Senator McCain was a cosponsor of S. 774, the Dream Act, providing in-state tuition for undocumented aliens. Remember, Governor Huckabee opposes the DREAM ACT.  In 2006, Senator McCain voted for an amendment to S. 2611 offered by Senator Arlen Specter to require consultation with the Mexican government concerning the construction of fencing along the U.S.-Mexican border.  Last year, Mr. McCain voted against an amendment (Senate Amendment 1184) introduced by Sen. John Cornyn, Texas Republican, that would have permanently barred gang members, terrorists, sex offenders, alien absconders, aliens convicted of domestic violence and aliens convicted of at least three DUIs from the United States. The Cornyn Amendment was rejected on a 51-46 vote.

Governor Mitt Romney

"We need to make America more attractive for legal immigrants -- for citizens -- and less attractive for illegal immigrants. I want to see more immigration in our country, but more legal immigration and less illegal immigration." - Governor Romney, AP, June 23, 2006

Further, Romney posted on his campaign website that immigration has been an important part of our nation's success. The current system, however, puts up a concrete wall to the best and brightest, yet those without skill or education are able to walk across the border. We must reform the current immigration laws so we can secure our borders, implement a mandatory biometrically enabled, tamper proof documentation and employment verification system, and increase legal immigration into America.

ENFORCEMENT:

In December 2006, Governor Romney Signed A Memorandum Of Agreement With The Federal Government To Allow State Troopers To Enforce Federal Immigration Laws. "Governor Mitt Romney and U.S. Immigration and Customs Enforcement (ICE) Assistant Secretary Julie L. Myers today announced the signing of a Memorandum of Agreement (MOA) between the Commonwealth of Massachusetts and ICE, which will give specially trained Massachusetts State Troopers the authority to administer and enforce federal immigration laws in the Commonwealth. " (Office Of The Governor, "Governor Romney, ICE Sign Immigration Enforcement Pact," Press Release, 12/13/06)

IN-STATE TUITION:

Governor Romney Vetoed In-State Tuition For Illegal Immigrants.

"Romney also vetoed a number of outside sections of the budget, including:...A plan that would have permitted illegal aliens to pay the same in-state tuition rate at our public colleges and universities as Massachusetts citizens." (Office Of The Governor, "Romney Signs $22.402B Fiscal Year 2005 'No New Tax' Budget," Press Release, 6/25/04)

ENGLISH IMMERSION:

Governor Romney Fought Efforts To Weaken Massachusetts' English Immersion Law. "But yesterday, Romney press secretary Shawn Feddeman said the governor will fight all attempts to slow the implementation of English immersion, known on the ballot as Question 2. ... 'He will veto anything that weakens or delays English immersion,' Feddeman said." (Anand Vaishnav, "Romney Firm On English Timetable," The Boston Globe, 1/24/03)

- In June 2002, Mitt Romney Said "The Approach Of English Immersion Is One That I Support. ... I Would Make English Immersion The Educational Norm For All Non-Native English Speakers."

(John McElhenny, "Mitt Romney Endorses 'English Immersion' Education Plan," The Associated Press, 6/4/02)

DRIVER'S LICENSES:

Governor Romney Opposed Efforts To Give Driver's Licenses To Illegal Immigrants. "'Those who are here illegally should not receive tacit support from our government that gives an indication of legitimacy,' the governor said, echoing arguments that opponents have voiced in the Commonwealth and in other states considering similar license measures. 'If they are here illegally, they should not get driver's licenses,' he said." (Scott S. Greenberger, "Romney Stand Dims Chances Of License For Undocumented," The Boston Globe, 10/28/03)

Governor Romney Would Take Action To Secure The Borders Through Physical And Virtual Fences.

Governor Romney: "In my view, there are several principles that need to be part of our immigration plan. First, to secure the border..." (Governor Mitt Romney, Interview On The Northern Alliance Radio Network, 1/27/07)

Governor Romney: "You've got to have a wall or fence or electronic surveillance. You have got to make sure we secure our border, that's first." (Fox News' "The O'Reilly Factor," 9/19/06)

Governor Romney Opposes The McCain-Kennedy Bill And Any Form Of Amnesty For Illegal Immigrants.

Governor Romney: "McCain-Kennedy Isn't The Answer." "Another aspect of American sovereignty is the security of our borders. The current system is a virtual concrete wall against those who have skill and education, but it's a wide-open walk across the border for those that have neither. McCain-Kennedy isn't the answer. As governor, I took a very different approach. I authorized our state police to enforce federal immigration laws." (Governor Mitt Romney, Remarks At The Conservative Political Action Conference, Washington, D.C., 3/2/07)

Congressman Ron Paul 

Opposition to Automatic Citizenship by Birth for the Children of the Undocumented

Congressman Paul takes a notably tough position on children born to undocumented aliens.  He refers to them as "anchor babies" and opposes their automatic citizenship by birth in the U.S.  The following quotes are from his campaign website.  The anchor baby phenomenon has also been very problematic.  Simply being born on US soil to illegal immigrant parents should not trigger automatic citizenship.  This encourages many dangerous behaviors and there are many unintended consequences as a result of this blanket policy.  I am against amnesty and I have introduced an amendment to the Constitution (H.J. Res 46) which will end this form of amnesty.

Social and Financial Implements of Illegal Immigration 

Congressman Paul's comments on this subject are also quoted from his campaign website.  We have security issues at home and our resources are running thin.  Our education system is stretched, and immigration accounts for virtually all the national increase in public school enrollment in the last 2 decades.  There is a worker present in 78% of immigrant households using at least one major welfare program, according to the same study.  It’s no surprise then that often times these immigrants can afford to work for lower wages.  They are subsidized by our government to do so.

Right now we are subsidizing a lot of illegal immigration with our robust social programs and it is an outrage that instead of coming to the United States as a land of opportunity, many come for the security guaranteed by government forced transfer payments through our welfare system.  I have opposed giving federal assistance to illegal immigrants and have introduced legislation that ends this practice.  In the last major House-passed immigration bill I attempted to introduce an amendment that would make illegal immigrants ineligible for any federal assistance. Unfortunately, that amendment was ruled "not relevant" to immigration reform.  I believe it is very relevant to taxpayers, however, who are being taken advantage of through the welfare system.  Illegal immigrants should never be eligible for public schooling, social security checks, welfare checks, free healthcare, food stamps, or any other form government assistance.

Border Security 

I (Congressman Paul) have also supported the strengthening our border and increasing the number of border patrol agents. It is an outrage that our best trained border guards are sent to Iraq instead of guarding our borders.  For national security, we need to give more attention to our own border which is being illegally breached every day, and yet the government shirks one of its few constitutionally mandated duties, namely to defend this country.   Citizens lose twice with our current insecure border situation – we don’t have the protection we should have, and then taxpayers have to deal with the fallout in the form of overstretched public resources and loss of jobs.

The anger is understandable when it comes to illegal immigration and the problems with our borders.  I will continue to fight in Congress for more effective ways to address these issues in keeping with the Constitutional mandate to protect America .

Senator Hillary Clinton

"Our Immigration System in Crisis"

Senator Hillary Clinton’s (D-NY) website (www.hillaryclinton.com) introduces the immigration reform issue with the phrase, “Our immigration system is in crisis”.  Clinton stresses putting a premium on compassion, respect, and policies that help families.  Further, she makes the point that our current immigration laws don’t reflect that. 

Comprehensive Immigration Reform 

Within the framework of comprehensive immigration reform, Clinton stresses honoring the rule of law.  She believes comprehensive reform must include strengthening our borders, greater cross-cooperation with neighboring countries, strict but fair enforcement of our laws, federal assistance to our state and local governments, strict penalties for those who exploit undocumented workers, and a path to earned legal status for those who are here, working, and respect the law.

Legislation Supported by Clinton 

Senator Clinton led efforts for the Immigrant Children’s Health Improvement Act which would give states the option to provide federally funded Medicaid and SCHIP benefits to low-income legal immigrant children and pregnant women.  She wrote the Access to Employment and English Acquisition Act to meet the growing demand for English language courses and other job skills.  She co-sponsored the DREAM Act which provides a path to citizenship thorough military service or higher education for children who were brought to the U.S. by their parents.  (Governor Huckabee is a staunch opponent of the DREAM Act).  Further, Senator Clinton was a cosponsor for the Agricultural Job Opportunity Benefits and Security Act of 2003 and offered an amendment to make family reunification the gilding principle of our immigration system. 

Clinton's Voting Record 

Clinton’s record on immigration issues includes the following:  

Voted YES on comprehensive immigration reform. (Jun 2007)

Voted  NO on declaring English as the official language of the US government. (Jun 2007)

Voted YES on building a fence along the Mexican border. (Sep 2006)

Voted YES on establishing a Guest Worker program. (May 2006)

Voted YES on allowing undocumented workers to participate in Social Security. (May 2006)

Voted YES on giving Guest Workers a path to citizenship. (May 2006)

Senator Barack Obama

Obama's Voting Record

Barack Obama’s (D-IL) voting record on the issues is similar to Clinton’s.  Compare them on the issues. Senator Obama's votes are as follows: 

Voted YES on comprehensive immigration reform. (Jun 2007)

Voted NO on declaring English as the official language of the US government. (Jun 2007)

Voted YES on building a fence along the Mexican border. (Sep 2006)

Voted YES on establishing a Guest Worker program. (May 2006)

Voted YES on allowing undocumented workers to participate in Social Security. (May 2006)

Voted YES on giving Guest Workers a path to citizenship. (May 2006)  

"The time to fix our broken immigration system is now...We need stronger enforcement on the border and at the workplace... But for reform to work, we also must respond to what pulls people to America... Where we can reunite our families, we should.  Where we can bring in more foreign-born workers with the skills our economy needs, we should" - Barack Obama, Statement on U.S. Senate Floor, May 23, 2007

For more on Barack Obama's plan, see http://www.barackobama.com/issues/pdf/ImmigrationFactSheet.pdf  from http://www.barackobama.com. 

Comprehensive Immigration Reform

Like Clinton, Barack Obama supports comprehensive immigration reform.  Again, like Clinton, Obama uses the phrase "bringing people out of the shadows".  He supports a system that allows undocumented immigrants, who are in good standing to pay a fine, learn English, not violate the law, and go to the back of the line for the opportunity to become.  (Obama's campaign website)

Border Security 

Also, like other candidates, Senator Obama wants to preserve the integrity of our borders.  He supports additional personnel, infrastructure and technology on the border and at our ports of entry.  Obama believes we need additional Customs and Border Protection agents equipped with better technology and real-time intelligence. 

Employment Eligibility Verification System 

To remove incentives to enter the country illegally, Obama would crack down on employers that hire undocumented immigrants.  Barack Obama has supported a proposal with Senators Charles Grassley (R-IA), Ted Kennedy (D-MA) and Max Baucus (D-MT) to create a new employment eligibility verification system so employers can verify that their employees are legally eligible to work in the U.S.

Conclusion 

While several candidates have frequently stated that undocumented immigrants should "go to the back of the line", they do not explain that statement.  Some real logistical problems exist.  For example, what line are they talking about?  Where is the back?  What does one do if he is an unskilled immigrant from a country like Mexico?  Check the Visa Bulletin to find out what the current waiting period is.  What does one do if she is a skilled professional if the yearly quota of H-1B visas has been filled?  What does one do if he has no family members to file an immediate relative petition for him?  How long will the wait be then and where is the back of the line?

Solving the immigration problem involves far more than using catchy phrases or talking tough.  If you are fortunate enough to already be an American citizen, it is your responsibility to choose the candidate who can grasp the complexity of the issues and implement reform. 

We, at the Law Offices of Curtis Pierce, support the importance of increasing the number of visas for high tech workers in order to make our economy competitive in the global marketplace.  Further, we support family reunification, a defining value in the history of American immigration policy.   

 

 

 

IMMIGRATION NEWS & INFORMATION  

 

H-1Bs ARE SUBJECT TO CAP.  NOW IS THE TIME TO PREPARE TO APPLY FOR FISCAL YEAR 2009.

 

 

Last year, the quota for cap subject H-1Bs was reached on the first day of filing.   It is important to begin the application procedure in a timely manner for FY 2009.  Congress allocates the number of available H-1Bs.  Current laws limit the number to 65,000.

 

The H-1B is a non-immigrant visa that enables professionals in "specialty occupations", i.e., those that require a minimum of a baccalaureate, to work in the United States. A U.S. degree or acceptable foreign alternative is required.

 

In some cases, work experience and education may be combined to meet the requirements. Non-graduates may be employed on an H-1B visa where they can claim to be “graduate equivalent” with twelve or more years work experience in the occupation (three years of relevant work experience may substitute for one year of education).

 

We at the Law Offices of Curtis Pierce strongly urge employers who are seeking to employ a foreign national on an H-1B visa for fiscal year (FY) 2009 to begin preparation early so as to be able to file visa petitions with the U.S. Citizenship and Immigration Services (USCIS) on April 1, 2008.

The petitions are submitted by employers based on their need for non-U.S. resident employees in “specialty occupations”. The H-1B non-immigrant work visa may be issued to applicants seeking temporary work in a "specialty occupation" which requires the skills of a professional such as scientists, engineers, information technology or other computer professionals, engineers, financial analysts, management consultants, architects, system analysts, journalists, lawyers, market research analysts, teachers in elementary or secondary schools or colleges, accountants, nurses, physicians, surgeons, and dentists. This list is by no means exclusive.

 

 ATTENTION AMERICAN CITIZENS: NEW TRAVEL DOCUMENTS ARE REQUIRED FOR PORTS OF ENTRY EFFECTIVE JANUARY 31, 2008. 

The U.S. Department of Homeland Security (DHS) and the U.S. Department of State (DOS) remind the traveling public that as of Jan. 31, 2008, all adult travelers will be required to present proof of citizenship, such as a birth certificate, and proof of identity, such as a driver’s license, when entering the United States through land and sea ports of entry. DHS will be issuing a notice in the Federal Register formally announcing the change.

This change is a necessary step to prepare travelers and ease the transition to the future requirements of the Western Hemisphere Travel Initiative (WHTI). WHTI proposes to establish documentation requirements for travelers entering the United States who were previously exempt, including citizens of the U.S., Canada, and Bermuda. As recommended by the 9/11 Commission, Congress enacted WHTI in the Intelligence Reform and Terrorism Prevention Act of 2004. WHTI will result in both enhanced security and increased facilitation across the border once implemented. During this transition, DHS and the Department of State are working diligently to minimize the impact on legitimate trade and travel.

Currently, U.S. Customs and Border Protection (CBP) officers may accept oral declarations of citizenship from U.S. and Canadian citizens seeking entry into the United States through a land or sea border. However, as of January 31, 2008:

• Oral declarations of citizenship alone will no longer be accepted
• U.S. and Canadian citizens ages 19 and older will need to present a government-issued photo ID, such as a driver’s license, along with proof of citizenship, such as a birth certificate or naturalization certificate
• Children ages 18 and under will only be required to present proof of citizenship, such as a birth certificate
• Passports and trusted traveler program cards - NEXUS, SENTRI and FAST - will continue to be accepted for cross-border travel

All existing nonimmigrant visa and passport requirements will remain in effect and will not be altered by this change.

DOS reminds the public that the current turnaround time for a passport is four to six weeks, so Americans planning international travel may wish to apply now. For information on obtaining a U.S. Passport visit www.travel.state.gov or call 1-877-487-2778. Specific documentation requirements for land, sea and air travel may be found at www.cbp.gov/xp/cgov/travel/vacation/ready_set_go/. To learn more about NEXUS, SENTRI and FAST, visit www.cbp.gov/xp/cgov/travel/trusted_traveler/.

 

   

 

PROCESSING TIMES & CASE STATUS  

 

Processing Times

·  To view processing times and your case status, click one of the links below to connect to the correct U.S. Citizenship and Immigration Services information page.

·  California Service Center ·  Nebraska Service Center ·  Texas Service Center ·  Vermont Service Center 

 

Case Status Service Online

If you have an application receipt number, you can use the Internet to check the status of your case with the USCIS.

https://egov.uscis.gov/cris/jsps/index.jsp

 

 

The IMMIGRATION LAW E-NEWSLETTER is free. 

It is published by the Law Offices of Curtis Pierce, 213-327-0044.

 

Disclaimer:  The information contained in this newsletter is analysis and commentary of a general nature.  Nothing in this newsletter applies to a specific case nor does it constitute legal advice. 

 

Schedule appointment:  For legal advice on your case, please schedule an appointment with Curtis Pierce, Certified Specialist, Immigration & Nationality Law, The State Bar of California Board of Legal Specialization.

 

“The only title in our democracy superior to that of President (is) the title of citizen”.

Former Supreme Court Justice Louis Brandeis.   (In the case Ng Fung Ho v. White, 259 U.S. 276, 284 (1922), Justice Brandeis wrote that deportation can deprive an individual of "life, or of all that makes life worth living.")

In the words of President John F. Kennedy, the United States is a "nation of immigrants." 

 

 

 

 

 

 

 

 

 

 

IMMIGRATION ITEMS OF INTEREST    

• E-3 VISAS FOR AUSTRALIAN PROFESSIONALS.   
  G’day, computer professionals, engineering mates, and similar professionals from th' land down under.  This article is for you.

IMMIGRATION NEWS & INFORMATION

• H-1Bs ARE SUBJECT TO CAP.  NOW IS THE TIME TO PREPARE TO APPLY FOR FISCAL YEAR 2009.  
  
  
• ATTENTION AMERICAN CITIZENS: NEW TRAVEL DOCUMENTS ARE REQUIRED FOR LAND PORTS OF ENTRY EFFECTIVE JANUARY 31, 2008. 
   

PROCESSING TIMES & CASE STATUS

• Processing Times 
  
   
• CHECK STATUS OF YOUR CASE ONLINE

 

IMMIGRATION ITEMS OF INTEREST

 

E-3 Visa Category for Australians 

The E-3 visa is an important alternative to the H-1B for Australian nationals working in “specialty occupations” which merits further exploration.  This option is particularly relevant in light of the limited number of H-1B visas available and the expensive fees attached to them by recent legislation.    The E-3 category for visa issuance for Australians is a relatively new category of visas.  Section 501 of the REAL ID Act of May 2005 created the E-3, a nonimmigrant category available only to Australian citizens. 

Can permanent residents of Australia apply for an E-3 visa?
No.  E-3 visas are available only for Australian nationals.  If you are a new Australian citizen or in the process of becoming one, you must possess an Australian passport by the time of your visa interview.  

Is the term “specialty occupation” the same term used in H-1B cases? 
Yes.  The term “specialty occupation” is the same term used in H-1B cases. Pursuant to section 214(i)(1) of the Immigration and Nationality Act (INA), specialty occupation means and occupation that requires a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation.  In order to be eligible for an E-3 classification, an alien must be able to show he or she will be employed in a specialty occupation in the U.S. and he or she possess the required U.S. bachelor’s or higher degree (or its equivalent) in the specific specialty to meet the minimum requirement for entry into the occupation.  

Are there differences between the E-3 and the H-1B?
Yes, there are differences between the E-3 and the H-1B. 

1. The first concerns time limits.  The E-3 visa does not have a six-year time limit like the H-1B.  E-3 visas are valid for two years and are renewable indefinitely provided that the applicant can demonstrate that his or her stay in the U.S. is temporary. 
2. The second difference concerns dual intent.  The E does not carry strict dual intent as does the H-1B.  The dual intent provision of the H-1B allows a person to obtain an H-1B even if she has expressed immigrant intent.  In fact, one can have a green card case in process. 
3. Since the E-3 is a non-immigrant visa, the applicant must establish intent to return to Australia when his/her E-3 employment is finished.  Note the difference from the H-1B, also a non-immigrant visa, which carries dual intent.
4. While there are quotas for both H-1Bs and E-3s, the annual quota for initial E-3 applications is 10,500 thus making these visas more available than the ever elusive H-1B. 
5. A consular interview conducted outside of the United States is required for the E-3 visa.

Does the cap of E-3 applications apply to extensions of E-3s?

No.  The annual cap of 10,500 initial applications for each fiscal year applies to all initial E-3 application made abroad and to all change of status E-3 applications made through USCIS.  The cap does not apply to extensions of E-3 provided that the alien continues to be employed by the same employer.

 

Does the E-3 require that one have an unrelinquished domicile abroad? 

No.  The consular officer need only be satisfied that the individual has the intent to depart upon the termination of nonimmigrant status. 

What are the advantages of the E-3 visa? 
One notable advantage of the E-3 is the E-3 spouses will be able to seek employment since they can apply for the Employment Authorization Document, EAD.  The spouses of H-1Bs do not have this advantage.  Also, the E-3 visa is renewable for two year periods, indefinitely, provided the principal demonstrates that he/she does in intend to remain in the U.S. permanently.  Also, the fees are considerably lower than those for an H-1B.  

Fees
The considerably lower fees to the E-3 visa offer a significant advantage over the H-1B.  Because of recent Congressional action, the government filing fees for the H-1B are over $2,000.  If you choose premium processing, add approximately $1,000.  The E-3 is a great bargain because although it requires a Labor Condition Application, there is no fee.  U.S. consular fees apply for all non-immigrant visas.  The worldwide application fee for a U.S. nonimmigrant visa increased to $131 effective January 1, 2008. 

Do the spouse and children of the E-3 principal applicant have to be Australian citizens? 
No.  The spouse and children need not be Australian citizens.  It should be noted that the U.S. does not recognize De Facto relationships or same-sex Civil Partnerships for the purposes of immigration.  

Where does one apply for an E-3 visa? 
Initial application for a visa to enter may be made at a consular office overseas.  One can apply at any U.S. Embassy or Consulate which processes nonimmigrant petition based, visas, but it very important to note that one cannot apply for an E-3 visa from within the U.S.  In Australia, one may apply in Sydney, Melbourne, or Perth.  

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