The July 2012 Visa Bulletin is out, and please be informed that the EB2 Category is not current anymore for Mexico, Philippines, and “Other Countries”. India and China actually have an “unavailable” priority date and it will likely be “unavailable” until the October 2012 Visa Bulletin comes out.  Whereas other countries including the Philippines and Mexico have always been current on the EB2 category, now, based on the visa bulletin for July 2012, the priority date is January 1, 2009. This means that for Mexico, Philippines, and other countries, even if EB2 labor certifications are approved, the I-140 could not be filed simultaneous to the I-485 adjustment of status application. Even if the I-140 is approved, with the priority date listed as 2009, it may take close to 3 years before one can even file the adjustment of status application. For China and India, even those with I-140s approved and priority dates of 2008, 2009, and 2010 could not even file I-485s until the visa numbers become available, and their priority dates current.  Thus, it is very important to maintain non-immigrant status until the priority date becomes current again.

If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 

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On June 11, 2012, the SCIS received a sufficient number of petitions to reach the statutory cap for FY 2013.  On June 7, 2012, USCIS also received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption.  According to the USCIS’ Website, the USCIS will reject petitions subject to the cap for H-1B specialty occupation workers seeking an employment start date in FY 2013 (normally October 1, 2012) that are received after June 11, 2012.

Nevertheless, USCIS will continue to accept petitions exempted from the cap and DOD cooperative research worker H-1B petitions and Chile/Singapore H-1B1 petitions requesting an employment start date in FY 2013.

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The USCIS released the number of receipted cap-eligible H-1B visa petitions from April 1, 2012 to June 1, 2012. As of June 1, 2012, approximately 55,600 H-1B cap-subject petitions were receipted. The Annual Cap amount for H-1B regular cap is 65,000.  Additionally, the USCIS has receipted 18,700 H-1B petitions for foreign workers with advanced degrees (master’s degree or higher). The Annual Cap amount for H-1B Master’s Degree Exemption is 20,000.

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Our Associate Attorney, Sung Hee (Glen) Yu, Esq. was invited to talk about the practice of immigration law practice and his professional experience at the Third Annual Case Western Midwest APALSA (Asian Pacific American Law Students’ Association) Conference last February 18, 2012.

This year’s conference entitled “Building Your Niche: Creating a Professional Identity in Practice and Beyond,” was designed by law students in light of the challenging employment market. APALSA members sought to put on a conference that focused on the expansive opportunities that a Juris Doctor can open up for students, law related or otherwise.  Over twenty-five attorneys, professors, and other professionals were invited to attend and share their experiences. More than 80 law students attended this all day conference.

Mr. Yu, a Case Western Law School alum, was invited to speak at the Immigration Law Breakout sessions with two other immigration attorneys.  He discussed various issues common to the practice of immigration law and shared his experiences in handling employment-based, family-based, and deportation and removal cases. He also offered advice on how to find internships and employment in immigration law firms and other jobs related to the field.

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On November 29, 2011, Congress passed H.R. 3012 (The Fairness for High-Skilled Immigrant Act) by a vote of 389-15 with no additional amendments.  The measure now moves on to the Senate for consideration. The Fairness for High-Skilled Immigrant Act was introduced on September 22, 2011 by Rep. Chaffetz (R-UT) to eliminate the employment-based per-country cap entirely by fiscal year 2015 and raises the family-sponsored per-country cap from 7% to 15%.

This passed Bill aims to move away from the current law, under which immigrants from an individual country who are in the U.S. on an employment visa such as an H1-B cannot apply for more than seven per cent of the 140,000 green cards issued annually by the State Department. The Act ultimately eliminates this per country percentage cap. What this implies is that countries that are facing the highest demand-supply mismatch for green cards, among which India ranks first and China second, then Mexico and the Philippines will see a benefit in terms of prospective green card issuance (shorter waiting time for priority dates to be current), whereas the waiting time for other nations would be significantly longer.

Therefore, the Act greatly will improve the processing times for Indian and Chinese green card applicants.  However, an unintended consequence of the Act likely would be the slower processing times for natives of other countries.

If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 

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The USCIS on August 17, 2011 issued a policy memorandum regarding officer adjudication of B-2 applications by cohabiting partners or family members of non-immigrants in the U.S., such as family members and partners of F-1 students and H-1B workers. The memorandum pointed out that in some circumstance, elderly parents, cohabiting non-immigrant partners, and other household members of the principal non-immigrant may be ineligible for derivative status. It defined “household member” as aliens who “regularly resides in the same dwelling as the principal non-immigrant and with whom the principal non-immigrant maintains the type of relationship and care as one normally would expect between nuclear family members.” These aliens may apply for B-2 visas, or change whatever status they are in to a B-2, to enable them to reside with the principal non-immigrant visa holder. Extensions may also be sought in six month increments for the duration of the principal alien’s non-immigrant status.

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The USCIS updated its H-1B guidance to clarify the employer-employee relationship standard for self-employed individuals. The memorandum does not change any of the requirements for H-1B petitions. Currently, the CIS requires that a U.S. employer prove that it has an employer-employee relationship with the beneficiary in that it may hire, pay, fire, supervise, or otherwise control the work of any such employee. Other requirements include establishing that the beneficiary is coming to the U.S. to work in a specialty occupation, showing that the beneficiary is qualified to perform that specialty occupation, and the filing of a Labor Condition Application specific to each location where the beneficiary will be working.

But as to self-employed individuals and H-1B petitions, the CIS mentioned that if the facts show that there is a right to control by the petitioner over the employment of the beneficiary, then a valid employer-employee relationship may be established. They went on to provide that if the petitioner provides evidence that there is a separate Board of Directors, which has the ability to hire, fire, pay, supervise or otherwise control the beneficiary, the petitioner may be able to establish an employer-employee relationship for H-1B purposes. The CIS cites Matter of Aphrodite, 17 I&N Dec 530 (BIA 1980), which held that the USCIS acknowledges that a sole stockholder of a corporation can be employed by that corporation as the corporation is a separate legal entity from its owners and even its sole owner. The memo also stated that several unpublished Administrative Appeals Office (AAO) decisions determined that corporations are separate and distinct from their stockholders and that a corporation may petition for, and hire, their principal stockholders as H-1B temporary employees.

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On August 2, 2011, the U.S. Embassy in Manila established its Visa Reissuance Program (VRP) to expedite tourist visa renewals for those who previously have been issued multiple entry visas to the United States valid for five years or longer.

Under this program, a Philippine citizen holding a valid tourist visa can apply for re-issuance within 12 months of its expiration date. Visa reissuance applicants will be given a priority appointment date. They only need to appear at the Consular Section of the Embassy at the designated appointment time to submit a valid passport and application confirmation page, and to have their fingerprints digitally scanned. No interview will normally be needed. The applicants can expect to receive their passports with the new U.S. visa within a week of application.

Below are the requirements to be eligible for the visa reissuance program:

• Philippine passport holder
• Previously been issued a B1/B2 visa good for five or ten years
• Visa is still valid or has expired within the last twelve months
• In possession of all passports covering the entire period of time since that most recent full-validity visa
• Have not been refused a U.S. visa in the last twelve months
• Visa is not annotated “clearance received”
• Have not stayed in the U.S. longer than 6 months straight (even if the CIS approved an extension)
• Have not ever been arrested or convicted for any offense or crime, even if subject of a pardon
• Can provide the visa control number from the visa

If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 

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On December 14, 2011, President Obama signed the Accreditation of English Language Training Programs Act which requires ESL programs seeking to enroll international students to receive accreditation by a regional or national agency recognized by the Department of Education. The law came into effect 180 days later, on June 12, 2011.

International students enrolling on an ESL school or program who wish to obtain an F-1 visa or status in the U.S. should be careful of potential ESL schools’ accreditation status. They should make sure the schools are accredited before they apply for a change of status or a visa.

The following important dates should be noted:

December 14, 2011: Non-accredited, SEVP-certified English language training programs must submit an application for accreditation to a regional or national accrediting agency recognized by the Secretary of Education by this date.

December14, 2013: If by this date, the non-accredited, SEVP-certified English language training program has not obtained or was denied accreditation, the applicant may not be granted a non-immigrant visa through this sponsoring program.

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On June 23, 2011, the Board of Immigration Appeals (BIA) concluded that the derivative child of a finacee visa holder is not ineligible for adjustment of status simply by virtue of having turned 21 after admission to the United States on a K-2 visa.

In Matter of Le, the respondent came to the U.S. with his mother, who became engaged to a U.S. citizen. The K visa petition was approved for the respondent’s mother and respondent, and they subsequently applied for adjustment of status in the United States.  Respondent was 19 years old when he filed his adjustment application.  Eventually, his mother’s adjustment application was approved, however, respondent’s application was denied since he had already reached the age of 18 at the time of his mother’s marriage.  He was therefore determined to be ineligible to adjust status.

The issue was whether a fiancé derivative child who accompanied or followed to join his alien fiancé parent to the United States remains eligible to adjust status, if after satisfying the other statutory requirements, he attains the age of 18 or 21.  The BIA conclude that to adjust based on a K-2 visa, an alien derivative child must establish that he or she was under 21 years of age at the time of admission to the United States.  In this case, the Respondent was 19 years old at the time of admission to the United States, thus, he was allowed to renew his application for adjustment of status.

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