Archive for February, 2011

Interviewed for Naturalization But Still Waiting? Consider Filing a Mandamus Suit

February 24, 2011

Many applications for naturalization remain undecided by USCIS even after the applicant has been interviewed. This may happen because USCIS cannot obtain the needed FBI name check or simply because of administrative inefficiencies.

However, a special provision of the immigration laws permits many such applicants to file a “mandamus” action in federal district court to compel USCIS to act. The case must be pending for at least 120 days after the interview before an action can be filed.

Filing a naturalization mandamus action is relatively easy, inexpensive, and achieves results — it gets the case decided. That’s because U.S. Attorneys don’t like them and judges don’t like them. U.S. Attorneys don’t like to appear before a judge on a matter than should have been decided administratively; judges consider them a waste of value judicial resources.

Typically, upon service of the law suit, the U.S. Attorney contacts the local USCIS attorney in charge of naturalization applications and requests that the case be adjudicated. The USCIS counsel directs an adjudicator to review the case and make a decision. Mandamus actions usually result in the case being decided in two to six months. While mandamus does not guarantee a favorable decision on the naturalization application, it does compel that a decision be made.

If you’ve had your naturalization interview and more than 120 days have passed without a decision, contact our firm to discuss how a mandamus action can help you.

Interviewed for Naturalization But Still Waiting? Consider Filing a Mandamus Suit

February 24, 2011

Many applications for naturalization remain undecided by USCIS even after the applicant has been interviewed. This may happen because USCIS cannot obtain the needed FBI name check or simply because of administrative inefficiencies.

However, a special provision of the immigration laws permits many such applicants to file a “mandamus” action in federal district court to compel USCIS to act. The case must be pending for at least 120 days after the interview before an action can be filed.

Filing a naturalization mandamus action is relatively easy, inexpensive, and achieves results — it gets the case decided. That’s because U.S. Attorneys don’t like them and judges don’t like them. U.S. Attorneys don’t like to appear before a judge on a matter than should have been decided administratively; judges consider them a waste of value judicial resources.

Typically, upon service of the law suit, the U.S. Attorney contacts the local USCIS attorney in charge of naturalization applications and requests that the case be adjudicated. The USCIS counsel directs an adjudicator to review the case and make a decision. Mandamus actions usually result in the case being decided in two to six months. While mandamus does not guarantee a favorable decision on the naturalization application, it does compel that a decision be made.

If you’ve had your naturalization interview and more than 120 days have passed without a decision, contact our firm to discuss how a mandamus action can help you.

New I-9 Handbook Addresses H-1B Portability and Nonimmigrant Extensions of Status

February 23, 2011

USCIS recently issued new guidance for employers on the process of completing Form I-9 (employment eligibility verification) by issuing an updated version of The Handbook for Employers.Some of the most important changes address the issue of “portability,” or transferring an H-1B employee to another employer, and pending extension of status petitions. The Handbook now provides that an employee in valid H-1B status who ports to a new employer can begin to work with the new employer upon filingan H-1B petition with USCIS. Previously, the H-1B employee would have to wait to receive an I-797 receipt notice prior to beginning work with the new employer, which could take weeks or even months to arrive. With respect to extensions, the Handbook provides that an employee with a timely filed extension of status petition — in other words, a petition filed before the employee’s work authorization expires — is eligible for continued work authorization for up to 240 days beyond the expiration date of that authorization, as long as the extension remains pending. The Handbook provides a detailed explanation on how to complete the Form I-9 and the documentation to be attached for individuals in H, E, L, O, and P status.

Employers are encouraged to consult the new Handbook when reviewing their company’s I-9 compliance procedures. All employersmust complete Form I-9 for every worker hired after November 6, 1986. Those employers with multiple foreign-national employees are encouraged to establish formal I-9 audit and compliance plans. A link to download the Handbook can be found at www.uscis.gov/i-9.

New I-9 Handbook Addresses H-1B Portability and Nonimmigrant Extensions of Status

February 23, 2011

USCIS recently issued new guidance for employers on the process of completing Form I-9 (employment eligibility verification) by issuing an updated version of The Handbook for Employers. Some of the most important changes address the issue of “portability,” or transferring an H-1B employee to another employer, and pending extension of status petitions. The Handbook now provides that an employee in valid H-1B status who ports to a new employer can begin to work with the new employer upon filing an H-1B petition with USCIS. Previously, the H-1B employee would have to wait to receive an I-797 receipt notice prior to beginning work with the new employer, which could take weeks or even months to arrive. With respect to extensions, the Handbook provides that an employee with a timely filed extension of status petition — in other words, a petition filed before the employee’s work authorization expires — is eligible for continued work authorization for up to 240 days beyond the expiration date of that authorization, as long as the extension remains pending. The Handbook provides a detailed explanation on how to complete the Form I-9 and the documentation to be attached for individuals in H, E, L, O, and P status.

Employers are encouraged to consult the new Handbook when reviewing their company’s I-9 compliance procedures. All employers must complete Form I-9 for every worker hired after November 6, 1986.  Those employers with multiple foreign-national employees are encouraged to establish formal I-9 audit and compliance plans. A link to download the Handbook can be found at www.uscis.gov/i-9.

 

Family-Based Immigrant Visa Backlogs Continue to Increase

February 22, 2011

Close family members of green card holders and U.S. citizens, who are already used to the long wait times for their visas, will now have to wait even longer. The March 2011 Visa Bulletin, the official Department of State publication establishing visa availability and cut-off dates, reports that heavy demand for visa numbers has required categories to continue to retrogress. The Family F2A category (spouses and children of lawful permanent residents) has been particularly impacted, with a cut-off date of January 1, 2007 for all countries except Mexico (with a cut-off date is January 1, 2006). Compare these dates to the cut-off in December 2010, when the F2A category was at August 1, 2010 for all countries, expect Mexico.

On the employment-based side, no significant changes are reported in the March Visa Bulletin, with numbers slowly inching forward for most categories. Still, EB-3 professional visas remain seriously backlogged — more than five to eight years — and EB-2 master-level visas remain backlogged for more than five years for foreign nationals from India and China.

Only Congress has the authority to reduce these long wait lines through ameliorative legislation.

Family-Based Immigrant Visa Backlogs Continue to Increase

February 22, 2011

Close family members of green card holders and U.S. citizens, who are already used to the long wait times for their visas, will now have to wait even longer. The March 2011 Visa Bulletin, the official Department of State publication establishing visa availability and cut-off dates, reports that heavy demand for visa numbers has required categories to continue to retrogress. The Family F2A category (spouses and children of lawful permanent residents) has been particularly impacted, with a cut-off date of January 1, 2007 for all countries except Mexico (with a cut-off date is January 1, 2006). Compare these dates to the cut-off in December 2010, when the F2A category was at August 1, 2010 for all countries, expect Mexico.

On the employment-based side, no significant changes are reported in the March Visa Bulletin, with numbers slowly inching forward for most categories. Still, EB-3 professional visas remain seriously backlogged — more than five to eight years — and EB-2 master-level visas remain backlogged for more than five years for foreign nationals from India and China.

Only Congress has the authority to reduce these long wait lines through ameliorative legislation.

USCIS Announces Combined EAD/Advance Parole Card for I-485 Adjustment Applicants

February 21, 2011

U.S. Citizenship and Immigration Services (USCIS) has announced that it is now issuing a single, dual-purpose card combining the employment authorization document (EAD) and advance parole travel authorization (AP) for certain applicants who have pending family- or employment-based adjustment of status applications (Form I-485). This is welcome news and a significant improvement from the current practice of issuing the two documents separately — often at different times. For many adjustment applicants, the inability to plan travel abroad during the pendency of their advance parole application produces great consternation. Now, adjustment applicants can plan travel with more predictability because issuance of the new card presumably will be governed by the 90-day regulatory period for employment authorization documents (EADs). Under current regulations, EADs must be issued within 90 days from the time of filing, but no corresponding regulation mandates the issuance of advance parole.

Under this new policy, applicants may receive the combined card when they file both an application for employment authorization (Form I-765) and an application for travel document (Form I-131). Both forms must be filed at the same time to receive the new card.

USCIS advises that for individual who already have an EAD and a separate travel document with a different expiration date, applicants may receive the new card ONLY IF 1) both documents have less than 120 days of validity left OR 2) if the EAD has less than 120 days of validity left and the advance parole document is for a single entry only. Those wishing to apply for the new card are advised to wait until they are within 120 days of the expiration of their current work authorization card. The validity period for the combined card will begin on the date both applications are adjudicated. The fee for the card, if applied for separately from the adjustment application, is $740. Not all applicants are eligible for the combined card, and USCIS advises that it will continue to issue separate EAD and advance parole documents as warranted.

As with the current advance parole document, obtaining a combined advance parole and employment authorization card allows an adjustment applicant to travel abroad and return to the United States without abandoning his or her pending adjustment application. Upon returning to the United States, the individual must present the card to request parole through the port-of-entry. The decision to parole the individual is made at the port-of-entry.

The new card will look similar to the current EAD but will include the text, “Serves as I-512 Advance Parole.” The card is obviously more secure and more durable than the paper advance parole document currently in use.

USCIS Announces Combined EAD/Advance Parole Card for I-485 Adjustment Applicants

February 21, 2011

U.S. Citizenship and Immigration Services (USCIS) has announced that it is now issuing a single, dual-purpose card combining the employment authorization document (EAD) and advance parole travel authorization (AP) for certain applicants who have pending family- or employment-based adjustment of status applications (Form I-485). This is welcome news and a significant improvement from the current practice of issuing the two documents separately — often at different times. For many adjustment applicants, the inability to plan travel abroad during the pendency of their advance parole application produces great consternation. Now, adjustment applicants can plan travel with more predictability because issuance of the new card presumably will be governed by the 90-day regulatory period for employment authorization documents (EADs). Under current regulations, EADs must be issued within 90 days from the time of filing, but no corresponding regulation mandates the issuance of advance parole.

Under this new policy, applicants may receive the combined card when they file both an application for employment authorization (Form I-765) and an application for travel document (Form I-131). Both forms must be filed at the same time to receive the new card.

USCIS advises that for individual who already have an EAD and a separate travel document with a different expiration date, applicants may receive the new card ONLY IF 1) both documents have less than 120 days of validity left OR 2) if the EAD has less than 120 days of validity left and the advance parole document is for a single entry only. Those wishing to apply for the new card are advised to wait until they are within 120 days of the expiration of their current work authorization card. The validity period for the combined card will begin on the date both applications are adjudicated. The fee for the card, if applied for separately from the adjustment application, is $740. Not all applicants are eligible for the combined card, and USCIS advises that it will continue to issue separate EAD and advance parole documents as warranted.

As with the current advance parole document, obtaining a combined advance parole and employment authorization card allows an adjustment applicant to travel abroad and return to the United States without abandoning his or her pending adjustment application. Upon returning to the United States, the individual must present the card to request parole through the port-of-entry. The decision to parole the individual is made at the port-of-entry.

The new card will look similar to the current EAD but will include the text, “Serves as I-512 Advance Parole.” The card is obviously more secure and more durable than the paper advance parole document currently in use.

H-1B Cap Reached

February 18, 2011

On January 26, USCIS announced that it had received a sufficient number of cap-subject H-1B temporary non-immigrant petitions for employment commencing during the current fiscal year (October 1, 2010 to September 30, 2011). Cap-subject employers seeking to employ new professional workers now must wait until April 1 of this year to file new petitions for employment commencing October 1, 2011.

Under the immigration laws, visas for professional specialty workers are capped at 65,000 per fiscal year. Another 20,000 slots are available to workers with advanced degrees (masters or higher) obtained at U.S. institutions of higher education. Of the total 85,000 H-1B visas available, some 6,800 visas are set aside each year for nationals of Chile and Singapore (a maximum of 1,400 for Chile and 5,400 for Singapore). While not all H-1B applicants are subject to the cap, the vast majority in business are subject.

For the second year in a row, H-1Bs remained available for some 9–10 months after the U.S. government began accepting applications. Even in 2009, with the recession beginning to take hold, employers snapped up the 65,000 visas available in just one day, as they had for the past several years. While the weakened economy no doubt has played a significant role in lessening the demand for the once-coveted visa, more recently companies have become increasingly reluctant to petition for foreign workers in the face of rising costs and greater governmental scrutiny. In the past two years, several disincentives for H-1B visas were put into place. These include the USCIS:

  • appreciably altering its definition of what constitutes a valid employer-employee relationship
  • adding fees for H-1B “dependent employers”
  • requiring companies that received TARP federal bailout funds to prove they have tried to recruit US workers at prevailing wages and that foreigners are not replacing US citizens
  • effective February 20, requiring that H-1B employers attest that they are in compliance with the Export Administration Regulations (EAR) and International Traffic in Arms Regulations (ITAR) regarding the release of controlled technology or data. (We will post more information on this issue soon)

Even though the cap has been reached for this fiscal year, some H-1B petitions can still be filed because they are exempt from the numerical cap. These include petitions for physicians with certain J waivers, as well as petitions filed by institutions of higher education or related or affiliated nonprofit entities, by nonprofit research organizations, or by governmental research organizations. Also, petitions filed on behalf of current H-1B workers who have previously been counted against the cap are not counted again. This means H-1B petitions for extension of status, change of employment, or concurrent employment may be submitted at any time.

H-1B Cap Reached

February 18, 2011

On January 26, USCIS announced that it had received a sufficient number of cap-subject H-1B temporary non-immigrant petitions for employment commencing during the current fiscal year (October 1, 2010 to September 30, 2011). Cap-subject employers seeking to employ new professional workers now must wait until April 1 of this year to file new petitions for employment commencing October 1, 2011.

Under the immigration laws, visas for professional specialty workers are capped at 65,000 per fiscal year. Another 20,000 slots are available to workers with advanced degrees (masters or higher) obtained at U.S. institutions of higher education. Of the total 85,000 H-1B visas available, some 6,800 visas are set aside each year for nationals of Chile and Singapore (a maximum of 1,400 for Chile and 5,400 for Singapore). While not all H-1B applicants are subject to the cap, the vast majority in business are subject.

For the second year in a row, H-1Bs remained available for some 9–10 months after the U.S. government began accepting applications. Even in 2009, with the recession beginning to take hold, employers snapped up the 65,000 visas available in just one day, as they had for the past several years. While the weakened economy no doubt has played a significant role in lessening the demand for the once-coveted visa, more recently companies have become increasingly reluctant to petition for foreign workers in the face of rising costs and greater governmental scrutiny. In the past two years, several disincentives for H-1B visas were put into place. These include the USCIS:

· appreciably altering its definition of what constitutes a valid employer-employee relationship

· adding fees for H-1B “dependent employers”

· requiring companies that received TARP federal bailout funds to prove they have tried to recruit US workers at prevailing wages and that foreigners are not replacing US citizens

· effective February 20, requiring that H-1B employers attest that they are in compliance with the Export Administration Regulations (EAR) and International Traffic in Arms Regulations (ITAR) regarding the release of controlled technology or data. (We will post more information on this issue soon)

Even though the cap has been reached for this fiscal year, some H-1B petitions can still be filed because they are exempt from the numerical cap. These include petitions for physicians with certain J waivers, as well as petitions filed by institutions of higher education or related or affiliated nonprofit entities, by nonprofit research organizations, or by governmental research organizations. Also, petitions filed on behalf of current H-1B workers who have previously been counted against the cap are not counted again. This means H-1B petitions for extension of status, change of employment, or concurrent employment may be submitted at any time.


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