Visas

Question: I stayed in the US on H-1B for six years plus, based on having an approved I-140 petition, and then left the US for more than one year. I now want to return to work for a different employer in H-1B status. Am I subject to H-1B Quota Limitations? Can I use my previously established Priority Date, even though I left the employer that sponsored my I-140?

Courtesy of AILA:

DHS: All USCIS offices worldwide are open and individuals should report to interviews and appointments as scheduled. E-Verify is currently unavailable due to a government shutdown. Please see their notice for policies implemented due to E-Verify’s unavailability.

DOL: The Administration is working very hard to avoid a government shutdown and believes there is sufficient time to avoid such an occurrence; however, prudent management requires the Department to plan for the possibility that it may need to suspend operations should Congress be unable to pass a funding bill by midnight on Monday, September 30, 2013.

OFLC functions are not "excepted" from a shutdown and its employees would be placed in furlough status should a lapse in appropriated funds occur. Consequently, in the event of a government shutdown, OFLC will neither accept nor process any applications or related materials (such as audit responses), it receives, including Labor Condition Applications, Applications for Prevailing Wage Determination, Applications for Temporary Employment Certification, or Applications for Permanent Employment Certification. OFLC's web site, including the iCERT Visa Portal System, would become static and unable to process any requests or allow authorized users to access their online accounts.

DOL's Office of Administrative Law Judges will be unable to perform any case-related activities, including conducting hearings. Hearings that have been previously scheduled will therefore be cancelled prior to the date of the hearing, and they will not be rescheduled for hearing until an appropriations bill or continuing resolution takes effect.

The Hells Angels Motorcycle Club has a history of clashing with law enforcement, but the group is hoping a Washington federal judge will take its side in a new fight over federal immigration law.

In a lawsuit filed last week, Hells Angels challenged policies that bar foreign members from traveling to the United States.

Hells Angels describes itself as a club for motorcycle enthusiasts, but it's classified as a criminal organization by the U.S. Department of State and U.S. Department of Homeland Security. In a lawsuit filed August 16 in U.S. District Court for the District of Columbia, Hells Angels claims that the "known criminal organization" designation isn't warranted and that federal officials have a blanket policy of denying visas to foreign members that conflicts with federal immigration laws.

Hells Angels, according to the complaint, has charters in 35 countries, including theUnited States, and clubs in at least four more countries are seeking to join.

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?

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.

Courtesy of the American Immigration Council

Washington D.C. - In a blow to the state anti-immigration movement, the Supreme Court ruled today that the authority to enforce immigration laws rests squarely with the federal government, limiting the role that states may play in crafting state-level answers to immigration enforcement. By a 5-3 margin, the Court struck down three of the four provisions of SB 1070 that were challenged by the Obama administration as pre-empted under federal law. While the Court agreed that Arizona’s attempt to limit immigration by creating new laws and new penalties to punish undocumented immigrants was pre-empted, it found that a provision requiring local police to investigate the legal status of suspected undocumented immigrants was not pre-empted on its face. The court read this provision very narrowly, however, leaving open the door to future lawsuits based on racial profiling and other legal violations.

“Today’s decision makes clear that the federal government—and only the federal government—has the power and authority to set the nation’s immigration policies,” said Benjamin Johnson, Executive Director of the American Immigration Council. “Despite its strongly worded rejection of Arizona's effort to set its own immigration policies, the Court adopted a wait-and-see approach to the controversial racial profiling section of the law. There is already ample evidence of discrimination and abuse in Arizona, and many communities in the state will bear the brunt of the Court's unwillingness to face that reality. It's time for Congress to heed the dire warnings contained in this opinion and recommit to fixing our broken immigration system.”

Update: There is no news on H.R. 3012, the High Skilled Immigrants Act, which was put on hold by Senator Charles Grassley (R-IA).  But even without H.R. 3012, the January 2012 Visa Bulletin showed the China and India EB-2 category (for aliens with advanced degrees or equivalent, or in the national interest (NIW) advancing more than 9 months from 3/15/08 to 1/1/2009.  This rapid advancement demonstrates that demand for green cards amongst advanced degree professionals from countries other than India and China is decreasing, so unused green cards are being granted to those seeking immigration from China/India.  

More on H.R. 3012.  On 12/15/11, in order to release his hold, Senator Grassley offered an amendment that would make dramatic changes to the bill including elimination of family per country limit increase and reducing the employment based per country limit to 15%.  The amendment would also eliminate the diversity visa program and add provisions that would increase enforcement and U.S. worker protections to the H-1B and L-1 visa programs.

H-1B Cap Update: As of 10/7/11, USCIS received approx 41,000 cap subject H-1B cases and another 19,100 towards the advanced degree cap.

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."

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.