Application Procedures

Question: My girlfriend is from Brazil and has a B-2 visa stamp. Over the last year, she has spent more than half the time visiting me in the US. The last time she left was about three months, and now she wants to return. Does she run any risk of being denied entry, and how to minimize such risks? Can she alternatively apply for an F-1 VISA to study English?

Immigration lawyers around the United States welcomed the Administration's recent announcement that younger immigrants may be eligible for "Deferred Action" and work authorization. The policy will grant qualified immigrants the opportunity to live free from fear of deportation and allow them to work legally. This exciting new development brings hope to immigrants and their families. It is not currently a path to a Green Card or Citizenship, nor does it grant permanent legal status to anyone. It will also not extend to family members – everyone must qualify on his or her own.

On the 23 JAN 2012 the American Immigration Lawyers Association (AILA) posted notes from a discussion with Charlie Oppenheim of the Visa Office about visa demand in the employment preference categories, and predictions for the FY2012 Visa Bulletin.

Question: Foreign national is in H-1B status with I-94 expiring in June 2012. Spouse has indepedant L-1A status. I-129 H-1B extension pending with USCIS. Foreign national is asking RWG - in case H-1B extension is rejected, can he change status to L-2 (dependent of L-1A) without having to leave the United States?

RWG Answer: Possibly.

What is USCIS ELIS?

USCIS ELIS is a user-friendly system created to streamline the application process for immigration benefits. It allows immigration benefit seekers and their legal representatives to create an account and file benefit requests online. USCIS ELIS provides more accurate and secure customer service. It also allows USCIS to process cases in a more efficient, consistent and secure environment.

Who will be able to use USCIS ELIS?

In this initial release, certain applicants can electronically file Form I-539, Application to Extend/Change Nonimmigrant Status. Over time, USCIS ELIS will include more benefit types and increased functions.

Link to USCIS webpage with more information.

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).

The Vermont Service Center has confirmed to AILA Liaison that its preferred order of Form I-129 petition and supporting documents at the time of submission is as follows:

1. Fee(s) - staple to first page

2. I-907 Request for Premium Processing Service (if filing as Premium Processing)

3. Form G-28

4. Form I-129 petition pages 1- 6 (and 7 if submitted)

5. Classification or Free Trade Supplement page

6. H-1B Data Collection and Filing Fee Exemption Supplement, if applicable

7. Form I-129 Addendums/Attachments

8. Labor Condition Application or application for temporary labor certification, if applicable

9. SEVIS form, if applicable

10. I-94 copies, passport pages, I-797 approval notices

11. Attorney letter

12. Company letter

13. Documents related to the beneficiary's qualifications

14. Other supporting documents

15. I-129 Duplicate Copy and supporting documentation

By submitting the documents in the preferred order, practitioners may help facilitate faster administrative processing of cases through the VSC intake process.

Below please find a copy of a January 2011 AAO [Administrative Appeals Office] decision which overturns a denial issued by USCIS in an L-1 “New Office” extension case.

L-1 “New Office” petitions are commonly used when an established foreign company wants to expand in the United States and send a manager/executive or specialized knowledge employee to work for the NEW U.S. entity.

New Office L-1s are granted for one year by showing, among other things, physical premises in the U.S. and the financial viability of the U.S. entity.

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:

Last year, I posted a video trailer for Janina’s American Wedding, a feature length documentary that gets to the heart of the broken, red tape ridden U.S. immigration system. After 18 years in America, Tony and Janina Wasilewski’s family is torn apart when Janina is deported back to Poland, taking their 6 year old son Brian with her. Set on the backdrop of the Chicago political scene, and featuring Illinois Congressman Luis Gutierrez at the heart of the immigration reform movement, this film follows the Wasilewski’s 3-year struggle to be reunited, as their Senator Barack Obama rises to the Presidency. With a fresh perspective on the immigration conversation, this film tells the untold human rights story of Post-9/11, that every undocumented immigrant in America faces today, with the power to open the conversation for change.