Green Cards

In preparation for a long-delayed transition to online processing of immigration applications, the Homeland Security Department has released new rules for describing forms and filing procedures in official policies.

The 43-page federal notice published Monday instructs the U.S. Citizenship and Immigration Services, a unit of DHS, to stop typing on documents the traditional numbers and titles for various benefit claims, such as "Application for Naturalization, form N-400." Instead, to accommodate the new computerized Transformation system, USCIS policies and rules will carry more generic phrases, such as "the form designated by USCIS."

Question: I have 13 years of teaching experience, before moving to the US. My employer filed my Labor Certification (PERM) application and I-140 under the EB3 category with a priority date in 2009. Now, I am planning to port from EB3 to EB2. Is this possible with the same employer? My previous lawyer did not include my 11 years of experience. He just put my 2 years of experience in China. Also, what would happen to my eldest daughter, who will turn 21 in a couple of years, if I just wait for my 2009 priority date to become current?

Answer: Your current employer may indeed file a new PERM with EB-2 requirements, but not only do you have to be qualified, the position offered must also qualify. Filing a second labor certification with the same employer might be appropriate in several situations. A change to a different occupation classification as defined by the Department of Labor is one event that would require filing a second labor certification. In addition, a second labor certification might be justified when (1) the first labor certification was an EB3; (2) you qualified for EB2 at the time you began working in the current occupation; (3) your manager approves EB2 requirements; and (4) you experienced an objective change in the terms of employment such that EB2 qualifications are now required for the job. The objective change may consist of a promotion or a new work assignment that requires higher qualifications. Finally, as long as each I-140 would be accurate at the time of filing. You are entitled to the earliest priority date under the regulation 8 CFR 204.5(e).

Q: My employer wants to file a Labor Certification “PERM” based green card application for me. What are the regulations regarding advertising the position? 

A: A labor certification application is commonly referred to as “PERM” application and is submitted electronically to the U.S. Department of Labor after the U.S. employer [sponsor] performs a good faith test of the U.S. labor market. The PERM based green card process consists of three Stages:

By JOSE ANTONIO VARGAS

Published: June 22, 2011 But I am still an undocumented immigrant. And that means living a different kind of reality. It means going about my day in fear of being found out. It means rarely trusting people, even those closest to me, with who I really am. It means keeping my family photos in a shoebox rather than displaying them on shelves in my home, so friends don’t ask about them. It means reluctantly, even painfully, doing things I know are wrong and unlawful. And it has meant relying on a sort of 21st-century underground railroad of supporters, people who took an interest in my future and took risks for me.

Jose Antonio Vargas (Jose@DefineAmerican.com) is a former reporter for The Washington Post and shared a Pulitzer Prize for coverage of the Virginia Tech shootings. He founded Define American, which seeks to change the conversation on immigration reform.

H-1B season opened several weeks ago on April 1st and we are off to a SLOW start. This comes as great news for employers and foreign nationals who would like to secure Hs this year [for a start date of October 1, 2011] but is also a clear indicator that U.S. employers are simply not hiring as much as some reports would like us to believe.

Below you will find an update on how many H-1Bs have been used this year and a look back at H-1B usage since 2007. Clearly, H-1B usage is WAY down from ‘07 and ’08, when the 65,000 H-1B cap was met in the very first days of April!

In comparison, since 2009, the H-1B Cap of 65,000 has not been met for at least nine months or more, and based on usage in the first two weeks of this year, we estimate this year's Cap will be open through to March 2012.

2011 H-1B Season [FY2012]

Cap Subject H-1Bs filed as of April 15: 7,100
Cap Hit: To Be Determined [estimated March 2012 based on first two weeks usage]

2010 H-1B Season [FY2011]

Cap Subject H-1Bs filed during first week of April: 13,500
Cap Hit: January 27, 2011 [ten months later]

2009 H-1B Season [FY2010]

Cap Subject H-1Bs filed during first week of April: 42,000
Cap Hit: December 21, 2009 [nine months later]

2008 H-1B Season [FY2009]

Cap Subject H-1Bs filed during first week of April: 140,000
Cap Hit: Immediately! First days of April 2008

2007 H-1B Season [FY2008]

Cap Subject H-1Bs filed during first week of April: 123,000
Cap Hit: Immediately! First days of April 2007

We are pleased to report an excellent decision from the USCIS [United States Citizenship and Immigration Service] Nebraska Service Center on a national interest waiver green card petition!

This was a challenging petition for a highly skilled, but young, social researcher, dedicated to improving the lives of America’s elderly population. USCIS acknowledged "that the proposed employment was in the national interest of the United States". BUT, USCIS also had serious doubts about whether our client's "past record of specific prior achievement justified projections of future benefit in the national interest”.

Question: I am a PhD candidate in petroleum engineering (finished my masters in 2009) who works at a supercomputing center. I have about 16 publications including one journal article and 1 book chapter. I am either 1st or 2nd author on these. I have been a reviewer on 6 conferences. My area of research is geologic CO2 sequestration, identifying the candidate reservoirs and studying the long term effects. To a lesser extent, the research is about shale gas (but in development phase) because that's where the CO2 is going to be stored. I managed to get 6 letters from collaborators, including 2 letters from NSF program directors. I also have a national award and about 40 citations of my work.

My question to you is this: What are my odds of getting an NIW EB2 approved given my qualifications?

Answer: Hello and thank you for contacting me. Based on the information you have provided, it sounds very promising. Have you filed yet?

I would say your qualifications are good, in that USCIS should be satisfied that your past record of accomplishment will lead to tangible benefits in the US. However, with respect to the field, and whether it should be considered an area of substantial intrinsic merit and national in scope, that is more difficult to say, mainly because you have not provided as much information.

Please find below the standards for the NIW, for your reference. I would also advise that for EB-1 outstanding researcher/extraordinary ability cases and EB-2 NIW cases, presentation techniques play a large part in the process. In other words, you want to make the adjudicators job easier by presenting your evidence in a way that allows them to determine if your case is a winner within the first 5 minutes of review.

Question: I filed an I-130 for my spouse when I had my green card. Two months ago we received a receipt notice with a file number. My spouse is in the US on an H1B and needs to adjust status. I just became a US citizen and want to apply I-485 for my spouse. How can I upgrade my I-130? What location should I file the I-485? For concurrent filing or location for just I-485 filing? Should I attach a copy of my citizenship certificate and a copy of I-130 and receipt notice with my I-485? Is that enough or I should call some number to update my I-130 status before I file I-485?

Question: I am a July 2007 filer with a Oct 2006 PD. My labor was filed as a Software Developer. Recently I got a job offer in a fortune 500 firm as a technical lead architect. My labor certification (PERM) application was filed for the position of Electrical Engineer (SOC 17-2071.00). My new position falls under the Computer Software Engineer (SOC 15-1031). My new employer said that he will not file under AC-21 and they will take appropriate action if I get an RFE. I want to know how strict the same similar job requirement is? Do you feel that taking a Lead Architect job with an Electrical Engineer labor cert would jeopardize my green card ?

by Vivek Wadhwa

Many foreign-born techies in the U.S. and abroad are pinning their entrepreneurial hopes on the passage of a bill, sponsored by Senators John Kerry (D-Mass.) and Richard Lugar (R-Ind.), to create a startup visa. Tech-industry notables such as Paul Graham, Eric Ries, Brad Feld, Fred Wilson, and David McClure have lobbied for this. I, too, lent this my support. In fact, I have been advocating such a visa since 2007—when my team’s research revealed that 52% of Silicon Valley’s startups from 1995 to 2005 were founded by immigrants. We also learned that a million skilled workers and their families were stuck in “immigration limbo” and that many were beginning to return home—causing America’s first brain drain.

Link to article which appears on TechCrunch.com.

by Jeffrey Kaye via Immigration Policy Center

When President Obama delivered his State of the Union speech last month, he repeated a theme that’s been a constant in his references to immigration reform: “I am prepared to work with Republicans and Democrats to protect our borders, enforce our laws, and address the millions of undocumented workers who are now living in the shadows,” he said, pausing for applause. The phrase I’ve emphasized is one that has resonated for Obama in the past. Bringing workers “out of the shadows” and showing concern for immigrants living “in the shadows” has been a regular refrain in Obama’s immigration lexicon. But intentions and rhetoric don’t appear to match policy. Current immigration-enforcement strategies are backfiring and, contrary to the President’s stated goals, are forcing more people into the shadows. As a result, underground economies and communities are growing, not only harming workers (many of whom have been here for many years and are settled members of our society and labor force), but also their families and the public at large.

Link: http://www.immigrationpolicy.org/special-reports/deeper-shadows