logo
IMMIGRATION ATTORNEY, CURTIS PIERCE
HOME | CONTACT email Curtis Pierce TEL (213) 327-0044  FAX (213) 327-0066
 
margin
space
NEWSLETTER ARCHIVE

FEBRUARY 2007
MARCH 2007
APRIL 2007
MAY 2007
JUNE 2007
JULY 2007
AUGUST 2007
SEPTEMBER 2007
OCTOBER 2007
NOVEMBER 2007
DECEMBER 2007

JANUARY 2008
FEBRUARY 2008
MARCH 2008
APRIL 2008
 
 
 
 
 
cmargin
space

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.

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    

IMMIGRATION NEWS & INFORMATION

PROCESSING TIMES & CASE STATUS  

 

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. 

Congress enacted the EB-5 immigrant visa category for alien investors seeking to enter the U.S. to engage in an active commercial enterprise that will benefit the U.S. economy and create at least 10 full-time jobs.  The investment must be in an active business; it may not be a passive investment such as the stock market.  Further, this new business must employ at least ten people per investor. As a general rule, the immigrant must invest at least $1,000,000, although the amount may be $500,000 if the investment is made in an approved “targeted employment area.”  Both of these options will be discussed in detail in this series. Under section 203(b)(5) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1153(b)(5), 10,000 immigrant visas per year are available to qualified individuals seeking permanent resident status on the basis of their engagement in a new commercial enterprise.  Of the 10,000 investor visas (i.e., EB-5 visas) available annually, 5,000 are set aside for those who apply under a pilot program involving a United States Citizen and Immigration Service (USCIS) designated “Regional Center”.   


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.   

This is an option for foreign investors who are looking for an investment that does not require the daily responsibilities of running a company.  

What is a regional center and what makes the Regional Center Program unique?
  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.
The designated regional center is located in an area with high unemployment and is one that the USCIS has determined would benefit by indirect employment provided by the investor’s project. 

Foreign investors in a designated regional center must do the following:
  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.

How many USCIS approved regional centers are there in the U.S.?

Currently, there are more than 20 USCIS approved regional centers in the U.S.  If the regional center is also in “targeted employment area” then the investment may be only $500,000. “Targeted employment area” is defined as a rural area or an area that has an unemployment rate at least 150% of the national average. Each state notifies the USCIS which areas constitute targeted employment areas for that state. However, you may also submit your own evidence that the area in which you will invest is a targeted employment area, even if the state has not so designated it.

Summary
If you qualify for EB-5 status, it can be an advantageous category for obtaining U.S. Permanent Residency because you can self-petition, the priority date is usually current, and you can obtain Conditional Resident status upon filing the EB-5 petition and making the initial showing, thereby often avoiding the necessity of obtaining some type of temporary status while waiting for the Permanent Residency Status.

The major disadvantages include the amount of money which must be put at risk, and the number of jobs which must be created.  It is important to note that, as with any investment, the amount the alien invests, can be lost.  Also, the new business venture must create 10 jobs.  If the business fails to accomplish that, Permanent Residency Status will not be granted.

Permanent resident status based on EB-5 eligibility is available to investors, either alone or coming with their spouse and unmarried children. Eligible foreign nationals are those who have invested -- or are actively in the process of investing -- the required amount of capital into a new commercial enterprise that they have established. They must further demonstrate that this investment will benefit the United States economy and create the requisite number of full-time jobs for qualified persons within the United States. 

Upon filing EB-5 and making the initial showing, the foreign national first obtains Conditional Resident status, and the only at the end of the process does the foreign national obtain Permanent Resident status, if the petition is successful.

Follow our series on the EB-5 Investor Program next month in Pierce's Immigration Law E-Newsletter for more information on this important opportunity for alien investors.

  

 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 USCIS announced more limitations for employers seeking to employ engineers, architects, and high tech workers.  On March 19, 2008 the U.S. Citizenship and Immigration Services (USCIS) issued an interim final rule that prohibits employers from filing more than one petition for an H-1B visa for a single employee in a fiscal year.   This rule ensures that companies filing H-1B petitions that are subject to numerical limits will have an equal chance to receive consideration for an H-1B worker.  

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

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/

 

 

 

"LEAVE MAILING LIST" BUTTON IS BELOW

ON THE RIGHT

 

 


 

 

 

 

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

WWW.CPVISA.COM

MARCH 2008, Vol. XIV. 

 

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    

IMMIGRATION NEWS & INFORMATION

PROCESSING TIMES & CASE STATUS

 

IMMIGRATION ITEMS OF INTEREST

 

H-2B CAP FOR SECOND HALF OF FISCAL YEAR 2008 HAS BEEN REACHED BY JANUARY 3, 2008:  DEJA VU ALL OVER AGAIN 

 

 

On January 3, 2008, the Citizenship and Immigration Services (USCIS) announced that it has received a sufficient number of petitions to reach the congressionally mandated H-2B cap for the second half of Fiscal Year 2008. 

 

What is the H-2B Visa? 

The H2-B visa is a nonimmigrant working visa which allows foreign nationals to enter the U.S. temporarily and engage in non-agricultural work.  A ski resort in Colorado or an amusement park in Florida exemplifies U.S. businesses that may need seasonal workers with H-2B visas.  The H-2B supplies temporary workers to meet recurring seasonal needs, intermittent needs,  peak-load needs, or a one time occurrence.  In addition to the hospitality industry, landscaping and construction are industries dependent on H-2B workers.

 

Disconnection Between Needs of the U.S. Labor Market and Availability of H Visas 

 

It seems a matter of course that the Congressional mandate for H visas falls very short of the needs of the U.S. economy.  Kathleen Campbell Walker, President of the American Immigration Lawyers Association (AILA), described the situation with strong language:  “This continuing failure to connect the dots between meeting valid labor needs and our immigration laws is inexcusable.  Placing America at a competitive disadvantage is unacceptable....Maxing out on a cap four months before the applicable period even begins shows how little relation there is between immigration policy and the needs of the economy.”  Walker added, “This issue of whether the government should allow more seasonal workers to be granted visas is a no brainer that should have been solved by now. An increase in this cap, tied to documented labor needs, would only serve to help make legality the norm and enable U.S. employers to hire needed workers. But Congress is unfortunately unable to muster the political gumption to proceed with even the most basic solutions. Just last month, Congress passed on a chance to add a one-year fix to the H-2B nonimmigrant visa program to the $517 billion omnibus spending bill that passed the House.”

 

Selection Process for Petitions
According to the USCIS statement, USCIS will reject petitions for new H-2B workers seeking employment start dates prior to October 1, 2008, that arrive after January 2, 2008. USCIS will apply a computer-generated random selection process to all petitions which are subject to the cap and were received on January 2, 2008.

 

 

 

 

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.

 


 DHS PROPOSES CHANGES TO H-2A TEMPORARY AGRICULTURAL WORKERS PROGRAM. 

 

On February 8, 2008, U.S. Department of Homeland Security (DHS) announced a series of proposed rule modifications to provide employers with a streamlined hiring process for temporary and seasonal agricultural workers under the H-2A program. 

"These proposed changes are designed to provide an efficient and secure program for farmers to legally fulfill their need for agricultural workers within the law rather than outside the law,” said Homeland Security Secretary Michael Chertoff.  “This common-sense simplification of H-2A will provide farm employers with a more orderly and timely flow of legal workers, while continuing to protect the rights of laborers and promoting legal and secure methods for determining who is coming into the country.”

The proposed modifications to the rule reduce current limitations and certain delays faced by U.S. employers and relax the current limitations on their ability to petition for multiple, unnamed agricultural workers. It extends from 10 to 30 days the time a temporary agricultural worker may remain in the U.S. after the end of employment. The rule also reduces from six to three months the time a temporary agricultural worker must wait outside the U.S. before he or she is eligible reenter the country under H-2A status. Additionally, under the proposed rule H-2A workers who are changing from one H-2A employer to another may begin work with the new petitioning employer before the change is approved by USCIS, provided the new employer participates in USCIS’ E-Verify program. 

To better ensure the integrity of the H-2A program, and encourage the lawful employment of foreign temporary and seasonal agricultural workers, the proposed rule would:

  • Require an employer attestation regarding the scope of the H-2A employment and the use of recruiters to locate H-2A workers;
  • Crack down on employers and recruiters who impose fees on prospective H-2A workers;
  • Eliminate the ability of employers to file an H-2A petition without an approved temporary labor certification; and
  • Prohibit the approval of H-2A petitions for nationals of countries determined to be consistently refusing or unreasonably delaying repatriation of their nationals.

The rule also proposes the establishment of a land-border exit system pilot program. Under the program, H-2A visa holders admitted through a port of entry participating in the program would also depart through a port of entry participating in the program and present upon departure designated biographical information, possibly including biometric identifiers. 

 

 

E-VERIFY'S NEW PHOTO TOOL:  BIOMETRIC VERIFICATION HAS BEGUN.

 

E-Verify (formerly known as the Basic Pilot/Employment Eligibility Verification Program) is an Internet based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA) that allows participating employers to electronically verify the employment eligibility of their newly hired employees.

E-Verify is free and voluntary and is the best means available for determining employment eligibility of new hires and the validity of their Social Security Numbers.

 

Biometric Verification Has Begun with the Advent of the Photo Tool

The future is now.  E-Verify's new Photo Screening Tool is the beginning of biometric verification within the E-Verify system. This additional feature will be the first step in giving employers the tools they need to detect identity theft in the employment eligibility process.   The Photo Screening Tool feature allows an employer to check the photo on his or her new hire's Employment Authorization Document (EAD) or Permanent Resident Card ("Green Card") against the 14.8 million images stored in DHS immigration databases.


 

Can E-Verify Determine the Immigration Status of an Employee?

No.  E-Verify is designed to verify the employment eligibility not the immigration status of an employee.

E-Verify is a means for employers to electronically verify the employment eligibility of their newly hired employees. The goal of E-Verify is to eliminate Social Security mismatch letters, improve the accuracy of wage and tax reporting, protect jobs for authorized U.S. workers, and help U.S. employers maintain a legal workforce.

You can register for E-Verify at https://www.vis-dhs.com/EmployerRegistration.

 

When Can An Employer Initiate a Search on E-Verify?

The earliest the employer may initiate a query is after an  individual accepts an offer of employment and after the employee and employer complete the Form I-9. The employer must initiate the query no later than the end of three business days after the new hire's actual start date.

 

An employer may initiate the query before a new hire's actual start date; however, it may not pre-screen applicants and may not delay training or an actual start date based upon a tentative non-confirmation or a delay in the receipt of a confirmation of employment authorization. An employee should not face any adverse employment consequences based upon an employer's use of E-Verify unless a query results in a final non-confirmation. In addition, an employer cannot use an employment authorization response to speed up an employee's start date. This would be unfair treatment to use E-Verify results to accelerate employment for this employee compared to another who may have received a tentative non-confirmation.

Employers must verify employees in a non-discriminatory manner and may not schedule the timing of queries based upon the new hire's national origin, citizenship status, race, or other characteristic that is prohibited by U.S. law.

How Does E-Verify Affect Me As An Employee?

Federal law requires that all employers verify the identity and employment eligibility of all new employees (including U.S. citizens) within three days of hire.

 

Employees are required to complete the Form I-9, and employees must provide employers with documentation establishing both identity and eligibility to work in the United States.

 

The Department of Homeland Security (DHS) and the Social Security Administration (SSA) have established an electronic system called E-Verify to assist employers further in verifying the employment eligibility of all newly-hired employees. In short, through E-Verify, employers send information about you from your Form I-9 to SSA and DHS to ensure that you are authorized to work in the United States and that your name, Social Security Number, date of birth, citizenship status, and any other non-citizen information you choose to provide your employer on the Form I-9 match government records. If your employer uses E-Verify, you as an employee have certain rights and responsibilities.

 

 

 

 

 

 

 

#08-134:02-22-08 Attorney General Michael B. Mukasey

 

FOR IMMEDIATE RELEASE
FRIDAY, FEBRUARY 22, 2008
http://www.usdoj.gov/
AG
(202) 514-2007
TDD (202) 514-1888

 

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

WASHINGTON—Attorney General Michael B. Mukasey today announced higher civil fines against employers who violate federal immigration laws. The announcement was made in a joint briefing today 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, and will be published in the Federal Register early next week.

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.

Today’s 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

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/

 

 

 

 

"LEAVE MAILING LIST" BUTTON IS BELOW

ON THE RIGHT

 

 

 

 

 

 

 

 

 

 

 

 

 

 



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

FEBRUARY 2008, Vol. XIII. 

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.

IMMIGRATION ITEMS OF INTEREST    

IMMIGRATION NEWS & INFORMATION

PROCESSING TIMES & CASE STATUS

 

IMMIGRATION ITEMS OF INTEREST

 

IMMIGRATION AND THE 2008 PRESIDENTIAL CAMPAIGN 

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    

IMMIGRATION NEWS & INFORMATION

PROCESSING TIMES & CASE STATUS

 

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. 

It functions like the H-1B in that it allows temporarily work in specialty occupations in the United States.     Again, this visa is limited to Australian nationals.  It has many advantages over the other types of working visas, including the ability for spouses of E-3 recipients to apply for work authorization.  This is an advantage over the H-1B and even the TN visa issued to Canadian and Mexican citizens.   

Furthermore, H-1Bs are subject to an annual cap which is often reached in the first few days of availability.  The quota of E-3 visas is 10,500 annually for each fiscal year.  However, the demand for E-3s is much lower than that for H1Bs; consequently, there is much more availability of E-3s.

Who qualifies for the E-3 visa?
The E-3 visa classification currently applies to nationals of Australia as well as their spouses and children.  E-3 principal applicants must be going to the United States solely to work in a specialty occupation.

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.  

Do I have to find a job in the U.S first before applying for an E-3 visa? 
Yes, you need to have a job offer from the U.S. before you can apply for the E-3 visa.  

Can I travel to the U.S. on the Visa Waiver Program to find a job or attend interviews and then apply for the E-3 visa once I have returned to Australia? 
Yes, you can travel on the Visa Waiver Program if you meet the requirements.  The Visa Waiver Program enables nonimmigrants from qualified countries to travel to the United States without a visa if they meet certain conditions.  To be admitted, they must be citizens of a Visa Waiver Program country, seek entry as a tourist or business traveler for a period of not more than 90 days, posses a valid, machine-readable e-passport with digitized photograph, have a round-trip ticked with a qualified carrier and meet other requirements.  Visa Waiver Program entrants are not permitted to extend their visits or change to another visa category.   If you do not meet the VWP requirements, you may be eligible to travel on the B-1/B-2 Combined Visa for Business or Pleasure.   You must leave the U.S. before applying for your E-3 visa

Is the sponsoring employer required to submit a petition to the Department of Homeland Security (DHS)? No, the United States based employer of an E-3 principal is not required to submit a petition to the Department of Homeland Security.  

What documents must the sponsoring employer submit?
Similar to an H-1B visa, the sponsoring employer must present a labor condition application (LCA) attesting to the wages and working conditions certified by the Department of Labor (Department or DOL) to the Department of State (DOS) Consular Officer at the time of visa application. Consider the advantages of the E-3 visa if you are an Australian professional seeking temporary employment in the U.S.  This may be the visa for you.  For questions, contact the Law Offices of Curtis Pierce at 213-327-0044.

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 Stat