Immigration News

H-2B Temporary Suspension Lifted: Petition Processing Resumes!

Under the H2B Temporary Worker program, US employers are able to fill temporary positions open because of a one time occurrence, seasonal need, peak load or intermittent need.  The position must generally be for less than 1 year and the employer is required to demonstrate that there are no US citizen or Permanent Resident employees available to fill the position and that the employment of an H2B worker will not adversely affect the wage rates or working conditions of similarly situated US employees.

As part of the H2B application process, the employers must comply with prevailing wage determinations made by the Department of Labor.  In a lawsuit challenging the methodology used by the DOL to determine the prevailing wage rates, the Federal District Court in the Eastern District of Pennsylvania vacated a portion of the DOL’s wage methodology rule.  In response, USCIS suspended adjudication of H2B petitions while DOL revised its procedures.  As a result, all new H2B workers were placed on hold and employers were unable to fill these critical positions.

On April 24, 2013, the Department of Homeland Security and DOL published the revised procedures in the Federal Register and now the adjudication of H2B petitions has resumed.  To see the USCIS announcement, please click:  USCIS Resumes H2B Adjudication

To read the Dept of Labor’s H2B Program Information:  DOL H2B Program

No More I-94 Cards – CBP Automated Entry Record Process

Beginning April 30, 2013, CBP began implementation of the automated I-94 process, which eliminates the need for a paper I-94 card to be placed in the passport of everyone arriving to the United States via an air or sea port.  Historically, the white I-94 card has served as the official record of a person’s lawful admission to the country, including the class of admission and the authorized period of stay.

With the new automated system, individuals will receive a stamp in their passport, which will indicate the class of admission and the authorized period of stay.  For those individuals who would like to receive a paper record of their admission, a record of admission can be obtained from the CBP.gov website.  Although a paper copy will no longer be required, it still may prove useful for those individuals who may want to extend, change or adjust status within the country.

To learn more about the I-94 automation process, please click here

USCIS Officially Recognizes Same Sex Marriage

Only a week after the US Supreme Court ruled the Defense of Marriage Act (DOMA) unconstitutional, Secretary Napolitano announced that USCIS will treat same sex marriages like any other marriage for purposes of eligibility for Lawful Permanent Resident status or receipt of an Immigrant visa to live permanently in the United States.

Previously, a lawful, same sex marriage was not recognized by USCIS.  As a result, a US citizen could not sponsor his/her same sex marriage partner to receive Lawful Permanent Resident status (green card) in order to live in the United States with his or her spouse.  In essence, same sex couples were forced to live apart or find some other way for the non-citizen to immigrate to the country.  No more!  With Secretary Napolitano’s announcement, and after the Supreme Court’s historic ruling, a US citizen who is lawfully married to a non-citizen may submit an Immediate Relative Petition (I-130) on his/her spouse’s behalf, regardless of the gender of the spouse.

Go to www.uscis.gov to read the official USCIS press release or click here

Happy Ending for the Tapia Family!

It has been a long and complicated legal journey, but Jose Tapia and his wife Griselda are finally both permanent legal residents of the United States.

Both Jose and Griselda are originally from Mexico, but they have been living in the United States most of their lives. Griselda first came to the United States with her family when she was just eight years old. Jose first came to the United States when he was fifteen, to find work to support himself and his parents.

In California, where both were living, Jose and Griselda met and fell in love. They soon got married and had their first child, Jose Angel, in 1997. In 2004, they had a little girl, Gabriela.

In 1999, after learning of his brother’s death in Mexico, Jose made a brief trip to Mexico to be with his family. Upon Jose’s return to the United States, Jose was caught by immigration officers trying to enter the United States without a visa. Jose was caught four times, each time the Immigration officers briefly interviewed him and turned him back to Mexico.

In 2000, Jose and Griselda consulted with a “notario,” an immigration consultant who unlawfully practices law without a law degree or license. The notario caused Jose and Griselda to be placed in removal (deportation) proceedings.

In danger of being deported to Mexico, Jose and Griselda asked our law firm to represent them before the Immigration Judge. We determined that Jose and Griselda were eligible to apply for Cancellation of Removal, which if granted by the Immigration Judge, would make Jose and Griselda lawful permanent residents of the United States.

Cancellation of removal is a very difficult case to win. To be eligible for Cancellation of Removal, a person needs […]

H-1B Visas Gone for the Year! USCIS Announces Lottery to Select Recipients

Each year United States Citizenship and Immigration Services (USCIS) is authorized by law to issue up to 65,000 H1B visas for US employers to fill specialty positions that require at least a bachelor’s degree as a minimum qualification for the position.  In addition, USCIS is authorized to issue another 20,000 H1B visas where the prospective employee has earned a Master’s degree or higher from a US university.  Employers are required to pay H1B employees the prevailing wage for the position and must comply with all other US labor laws.

The reality is the demand for an H1B visa, which authorizes an individual to lawfully work for the sponsoring employer for 3 years (and can be extended for another 3 years), far exceeds the supply.  As a result, the H1B quota is used up before the government’s fiscal year even begins!  In order to secure an H1B visa for a prospective employee, the US employer may file an application 6 months in advance of the date the H1B visa will be available.  Since the government’s fiscal year begins on October 1, April 1 is the first day that an employer can submit an H1B petition for the coming year.  However, even filing on the very first day – April Fool’s Day (is this a coincidence?) does not guarantee that an employer’s H1B petition will be processed.

This year is a perfect example.  USCIS announced on Friday, April 5, 2013, that it had received more than the available quota for both the regular H1B filings and the separate US Master’s degree quota.  As a result, USCIS announced that it will conduct a random lottery amongst all petitions received between April 1 and April 5 in order to choose which […]