The Department of State has released the Visa Bulletin for August and it contains welcome news for Lawful Permanent Residents (LPR’s) who wish to sponsor their spouses and/or children for a green card.

The F2A category, previously oversubscribed and subject to a waiting list of several years, will become “current” as of August 1, 2013. This means that Immigrant Visas or “green cards” are available to all applicants in this category without a waiting list. Individuals in the following situations should be prepared to take advantage of this unexpected situation:

• If you are the foreign national spouse of an LPR, are lawfully present in the US as a nonimmigrant, have already had a Visa Petition (Form I-130) filed on your behalf by your spouse and were on the waiting list, whether the I-130 is approved or still pending, you may file for Adjustment of Status (Form I-485) during the month of August.
• If you are a foreign national lawfully present in the US as a nonimmigrant and you now marry an LPR, you may have your spouse file a Visa Petition on your behalf and file for Adjustment of Status during the month of August.

When an Adjustment of Status application (together with the associated Form I-765 and Form I-131) is properly filed, the applicant will be issued an employment authorization (EAD) and travel authorization (Advance Parole) document within about four to twelve weeks of filing. Even if the F2A visa numbers regress and become backlogged after August (which is likely), the Adjustment of Status will remain pending for as long as it takes for the priority date to become current, and the employment and travel authorization will continue.

If the visa numbers do regress after August, this opportunity will disappear. Foreign nationals who wish to file for Adjustment of Status should be prepared to do so as quickly as possible after August 1 and no later than the end of August!

Most applicants should be able to acquire and prepare the necessary documents without significant delay. A birth certificate is always required for an Adjustment of Status and steps should be taken to procure the proper document from abroad to avoid delay. The same is true for any other foreign documents required, for example, proof of termination of any prior marriage. An English translation, if necessary, can be done in the U.S. The applicant will also require a Medical Examination Report from a “Civil Surgeon” authorized by the Immigration Service so an appointment with the physician should be made as soon as possible. It bears repeating that this opportunity is unlikely to extend beyond August and all required documents must be available in time to properly file an application.

Please feel free to contact our office if you have any questions.

The United States Supreme Court has declared the federal Defense of Marriage Act unconstitutional. This is the statute that prevented the Immigration Service from recognizing as valid same sex marriages even where those marriages were legal in the state (or foreign country) where they took place.

In light of this development, it is now possible for foreign nationals who entered into a legal same sex marriage to immediately seek and obtain any benefits accorded to spouses under the immigration laws. These include, but are not limited to, the following:

• Applying for a green card on the basis of marriage to a US citizen or Lawful Permanent Resident;
• Acquiring green card status as the spouse of an applicant seeking a green card in an employment-based category (or self sponsored category such as EB-1A or NIW);
• Obtaining derivative status as the spouse of a nonimmigrant in F, J, H, L, or any other category;
• Seeking various waivers and other exceptions that apply only to spouses of US citizens or Lawful Permanent Residents.

We look forward to working with foreign nationals to take advantage of these opportunities previously denied to them.

As of May 21, 2013, Customs and Border Protection (CBP) began automating most I-94 Forms. Rather than distributing a paper Form I-94, CBP will scan a traveler’s passport, generating an electronic arrival record with data elements found on the current paper Form I-94. A traveler’s passport will be updated with an admission stamp that shows date of admission, class of admission and expiration date. The electronic I-94 is then made available on the CBP website. Individuals may wish to visit the CPB website at www.cbp.gov/i94 and print their electronic record information before applying for immigration or public benefits, such as driver’s licenses or social security numbers. This may also be used to complete and update I-9 forms.

We are aware of many instances of incorrect information appearing on the online record of admission. To correct your record you may visit a local CBP Deferred Inspection Site or a Port of Entry or Admission and speak to an Officer.

For Boston area residents, the Deferred Inspection Office of CBP is located at Terminal E, Logan International Airport. Hours of operation are Monday through Thursday only from 8:00 AM to 4:00 PM. For a list of Deferred Inspection Sites or Ports in other locations, please visit the CBP website and click on the “Ports” link at the bottom of the page. (Please note if USCIS issued your Form I-94, you should contact USCIS to correct that particular record.)

CBP intends to continue to provide a paper Form I-94 to certain classes of aliens, such as refugees, certain asylees and parolees, and whenever CBP determines the issuance of a paper Form I-94 is appropriate.

From the US Department of State Website (www.travel.state.gov):

DV-2014 entrants will be able to check the status of their entries starting 12:00 noon, Eastern Standard Time (EST) on May 1, 2013 through Entrant Status Check (ESC) on the E-DV website. Review more about Entrant Status Check. (Online registration for the DV-2014 Program began on October 2, 2012 and ended November 3, 2012; therefore, additional entries cannot be accepted.) See the Diversity Visa Program Instructions webpage for the DV 2014 Instructions and any available translations.

If selected and if you are in the US, you may be eligible to apply for adjustment of status here.

Beware of scammers and fraudulent websites!

Please feel free to contact our office if you have any questions.

Immigration regulations permit the filing of an H-1B petition as early as six months before the intended start date of the employment. Therefore, it will be possible to file H-1B petitions seeking an October 1, 2008 start date for “new” petitions on April 1.

Filing ON April 1 is strongly recommended to secure an H-1B visa number from the “regular” (non U.S. Masters Degree) quota of only 65,000 numbers for the coming fiscal year beginning October 1. Last year more than 100,000 petitions were filed on April 1st and 2nd and a random lottery was held to select cases. Many were unable to secure a number despite filing on those dates.Applicants are chosen by a computer-generated random drawing after submitting a simple application and photograph via an online system established by the State Department.

This is particularly relevant in those situations where an individual is currently employed in F-1 Practical training status, J-1 status, or on the basis of any other form of employment authorization of limited duration and who wishes to secure H-1B status using next years’ numbers before the “cap” is reached again.

There is an additional, separate, allotment of 20,000 H-1B numbers available to applicants who possess at least a Masters Degree earned in the U.S. Last year, those numbers remained available for just a few weeks after April 1. They are expected to be used up more quickly this year as well.

Once the new numbers are gone, it will no longer be possible to obtain “new” H-1B status prior to October 1, 2009 unless one of the following exceptions apply.

•  Extensions of H-1B status for aliens currently employed by the petitioner.

• “New” employees who currently maintain H-1B status with another employer, OR who have previously been in H-1B status in the past six years and have not subsequently been absent from the U.S. for more than one year [note: if the prior H-1B employer was an exempt employer as described below, the new petition will require a number under the cap and will not be approvable when the numbers run out!].

• “New” employees for a private employer who would normally be subject to the “cap” but who will be employed “at” (on the physical premises) of an exempt employer as described below.

• “New” employees currently employed in H-1B status with an exempt employer as described below who will continue in that exempt employment and who are seeking concurrent, part-time employment with an otherwise cap-subject employer.

• Petitions on behalf of citizens of Chile and Singapore (those numbers remain current even now for the current fiscal year!)

The following organizations are exempt from the “cap” and may continue to obtain H-1B status for new employees:

• institutions of higher education

• a nonprofit organization related to or affiliated with an institution of higher education. Caution: this does not exempt all nonprofit organizations; only those affiliated with an institution of higher education. However, the term affiliate is broadly defined to include a non-profit employer who has a “cooperative relationship” with an institution of higher education.

• a nonprofit research organization or governmental research organization

Alternatives to the H-1B

The anticipated shortage of H-1B visa numbers will require a closer look at other visa alternatives. Briefly, these include:

•  TN visa status for citizens of Canada or Mexico

• L-1 status for employees who have worked abroad for the same or affiliated employer for at least one year

• E-3 visa status for citizens of Australia

• J-1 status available to employers who have their own J-1 visa program in place (these are generally academic institutions)

• J-1 status through third party sponsors where the goal of the employer is to train the visa applicant

• O-1 visa status for aliens of extraordinary ability

Further details about these options may be found on our web site atwww.rcosta.com.

Finally, some applicants who might have been considered for H-1B status may have the ability to obtain an Employment Authorization Document (EAD) independent of the prospective employer. There are many examples, the most common of which are the following:

•  An alien whose spouse is applying for a green card through his or her employer and who as a result is already an applicant for “Adjustment of Status.”

• An alien who may have (or will consider) filing a “self petition” for a green card as an alien of Extraordinary Ability or on the basis of a National Interest waiver

• An alien who has married or will marry a U.S. citizen and will be eligible to obtain an EAD on that basis.

Please feel free to contact us if you have any questions.

The Department of State is currently accepting online entries for the next Visa Lottery. Detailed information is available on the Department of State website at:
www.travel.state.gov/visa/immigrants/types/types_1318.html

The Visa Lottery enables 55,000 individuals from most countries of the world an opportunity to obtain a green card provided they meet certain minimal qualifications. In addition, they must not be “excludable” from the U.S. as a result of such factors as criminal record, immigration violations, etc.

Applicants are chosen by a computer-generated random drawing after submitting a simple application and photograph via an online system established by the State Department.

For DV-2009, natives of the following countries are not eligible to apply because they sent a total of more than 50,000 immigrants to the U.S. in the previous five years:

BRAZIL, CANADA, CHINA (mainland-born), COLOMBIA, DOMINICAN REPUBLIC, ECUADOR, EL SALVADOR, GUATEMALA, HAITI, INDIA, JAMAICA, MEXICO, PAKISTAN, PHILIPPINES, PERU, POLAND, RUSSIA, SOUTH KOREA, UNITED KINGDOM (except Northern Ireland) and its dependent territories, and VIETNAM. Persons born in Hong Kong SAR, Macau SAR and Taiwan are eligible.

A “native” is a person born in a country, or entitled to be “charged to” the country under the rules of “alternate chargeability.” Under the rules of alternate chargeability, an alien applicant born in an ineligible country may “use”

• The country of birth of his or her spouse, if the alien applicant is married to a native of an eligible country; or

• The country of birth of either parent, if the alien applicant was born in a country in which neither of his or her parents had established a residence at the time of the applicant’s birth.

The spouse or children (a “child” is an unmarried person under 21 years of age) of a successful Applicant will also be eligible for immigrant status, regardless of their place of birth.

If selected, Applicants will be instructed to apply for an immigrant visa at the U.S. Consulate in their country of residence. However, Applicants who are in the U.S. will, in many cases, be eligible to adjust their status through a local Immigration office.

A successful Applicant must prove that he or she has at least a high school education or its equivalent, or two years of work experience during the past five years in a job which, according to the Department of Labor’s O*Net OnLine database, requires at least two years of training or experience. An Applicant must also establish that she/he meets the usual qualitative requirements for entry to the U.S. For example, an Applicant with a criminal record may be barred.

Entries for the DV-2009 Diversity Visa lottery are now being accepted and must be submitted electronically before noon Eastern Standard Time (EST) (GMT-5) Sunday, December 2, 2007. Applicants may access the electronic Diversity Visa entry form at www.dvlottery.state.gov during the registration period. Paper entries will not be accepted. Applicants are strongly encouraged not to wait until the last week of the registration period to enter. Heavy demand may result in website delays. No entries will be accepted after noon EST on December 2, 2007.

NO FEE is required to submit an entry. We believe that anyone with access to the internet can complete the entry process without hiring an attorney or paying a fee to a third party. PAYMENT OF A FEE TO A THIRD PARTY WILL NOT INCREASE YOUR CHANCE OF BEING SELECTED. However, it may be worthwhile for some individuals who are not computer savvy to pay a small fee to have someone assist them with the process. Anyone selected in the lottery should consult with an attorney before taking any further action.

Please feel free to contact our office if you have any questions.

The regulations of Citizenship and Immigration Service at 8 CFR 245.2(a)(4) address the situation of an applicant for Adjustment of Status who departs from the U.S. after filing the I-485. The regulations provide that the Applicant is considered to have abandoned the I-485 application UNLESS

• He/she was ISSUED an Advance Parole document prior to departure and is paroled into the U.S. upon reentry on the basis of that document

  OR

• He/she is in lawful H-1 or L-1 status at the time of departure, and
• Remains eligible for H-1 or L-1 status upon return with the same employer, and
• Is in possession of a valid H-1 or L-1 visa (unless exempt, e.g. as a Canadian citizen),

  AND

• Is in possession of the original Form I-797 Receipt Notice for the I-485 application.

It is this last point that is problematic for many of our clients since it is impossible to know how long it will take for the Immigration Service to issue a receipt. In recent months it has sometimes taken four to six weeks, but with the large influx of applications in July it may well take longer. The following factors should be taken into consideration before planning international travel after filing for Adjustment of Status:

• Unlike the rules governing the use of an Advance Parole document, the regulation does NOT specify that the receipt must be issued prior to departure-only that it be presented at time of reentry. An individual planning a lengthy trip might be reasonably confident that the receipt will be available prior to returning to the U.S.

• Traveling abroad before obtaining the receipt raises at least the slight possibility that the application will be rejected and returned without being receipted into the system. Reasons for rejection could include missing critical initial evidence, failing to properly sign the form, or presenting an incorrect filing fee or an unsigned check. In addition, the receipt could be issued and lost in the mail, and at the present time there is no procedure available to obtain a duplicate copy from the Immigration Service.

• We are aware that in many, if not most cases, Immigration Officers at the Port of Entry have not been asking travelers to present the Form I-797 receipt. Nevertheless, the regulation as it stands is clear and potential travelers ought to be aware of it.

The same principles apply to H-4 and L-2 dependant family members.

In short, traveling abroad without an Advance Parole document in hand, or without meeting all the requirements for H-1 and L-1 visa holders listed above, presents some degree of unavoidable risk.

On October 6, 2006, Department of Labor (“DOL”) published an important regulation relating to applications pending at Backlog Elimination Centers (“BEC”).  Under regulations in effect prior to March 28, 2005, most applications were processed under a “Traditional Method” (“TR”) standard.  Under this process, employers’ recruitment was supervised by the local DOL offices in the particular state of filing.  Lengthy processing times were commonplace.   Some applications were filed using the “Reduction-in-Recruitment” (“RIR”) process.  This process allowed employers to complete its’ recruitment prior to filing the labor certification application.  This process significantly reduced processing times for DOL offices.

In  an effort to meet their goal of eliminating all pending applications at the BECs by September, 2007, this new regulation will allow employers to request conversion of any pending TR case to an RIR case, with the exception of any cases at BEC where recruitment (i.e., a job order) has been initiated by the BEC.  DOL will process RIR conversions using the same process it currently uses in the backlog centers.

Our office will be contacting all employers who may have pending TR applications at BECs to discuss moving forward with recruiting for pending cases.  Typical recruiting for an RIR case involves print ads, an in-house posting, and in some cases, web advertising or other sources normal to the industry.

An RIR request is generally submitted with the following:

The Department of Labor published a Final Rule in the Federal Register effective as of July 16, 2007 which introduces significant changes in the Labor Certification program in a continuing effort to reduce “fraud and abuse” in the program. The most important provisions of the new rules are the following:

Substitution of alien beneficiaries will no longer be allowed.

Approved Labor Certifications must be filed along with an I-140 Immigrant Visa Petition with the Immigration Service within 180 days of approval (previously, Labor Certifications were valid indefinitely as long as the position remained available without a time limit).

The sale, barter, or purchase of an approved Labor Certification is prohibited (note: we were unaware that there was a market for the “sale, barter, or purchase of an approved Labor Certification”!)

Employers must pay all legal fees and recruiting costs incurred in the preparation, filing, and processing of a Labor Certification application and cannot transfer those costs to the alien beneficiary. However, the Department concedes that the alien beneficiary may legitimately incur costs including legal fees to represent his/her own interests in the process.

We will continue to evaluate the impact of these changes on pending and future cases and will confer with our clients to as we modify our practices and procedures to comply with the new rules.