Coming to America: An attorney's commentary on US immigration law

The N-648 medical waiver for Naturalizaton applicants

The N-648 medical waiver (formally known as Medical Certification for Disability Exceptions) is used to exempt people who have a physical or developmental disability or mental impairment from the requirement to demonstrate the otherwise required knowledge of English language and US history and civics in the Naturalization process.  The form is to be completed by the applicant’s physician.  It provides instructions to the physician as well as samples of the correct terminology.  The concepts are simple: the physician states a clinical diagnosis and description of the applicant's disability or impairment, explains the connection between the impairment and the applicant's inability to learn or demonstrate knowledge of English and history and finally, states their professional opinion that the applicant is unable to comply with the normal requirements of the test because of the disability.  While this sounds simple, physicians often do not have the time or the patience (no pun intended) to properly complete the form.  Gerstein & Baret, P.L. has had much success in resolving these cases.  Often, we’re contacted by an applicant or their family member after their application has been denied or they have been rescheduled to present a properly completed application.  We work closely with physicians to properly and fully complete the form so that the applicant’s waiver can be granted.  Proper planning and understanding of the requirements can lead to a very smooth process.  The hiring of an attorney experienced in dealing with these matters goes a long way and, if the attorney is involved from the beginning, fees can often be less than when the attorney has to rectify the situation after the fact.

The nightmare of name check delays appears to be over!

On February 4, 2008, the associate director of the USCIS issued a memorandum which stated that applicants with pending adjustment of status applications and waiver applications could be approved if the FBI name check has been pending for 180 days or more and the case is otherwise approvable.  This does not apply to naturalization applications, though.  He went on to say that if negative information comes to light after the case is approved, that the approval could later be revoked.  This is positive news for thousands of people who have been stuck in limbo for years.  The actual method of identifying these cases has yet to be determined.  As for cases pending at service centers, attorneys have been asked to hold off on inquiring for a couple of months while the USCIS attempts to identify these cases.  As for cases pending at local offices, no method has yet been released as to how they will identify these cases or have them brought to their attention.  Nevertheless, it appears, now, that relief has arrived and these cases will soon be finalized.

The Dream Act: A proposal to benefit immigrant children

Often times the public can be unsympathetic with the plight of an immigrant.  They may feel that because someone came to the US illegally or overstayed their visa, that they should not be entitled to anything.  Well, what if that person is a child who had no say in the matter?  The Senate is currently considering the Development, Relief and Education for Alien Minors (DREAM) Act .  To be eligible, a child would have to have been brought to the US before the age of 16, be a person of good moral character (not having committed certain heinous offenses) and either attends college or joins the military.  This would place that person on the path towards permanent residence (green card) in the US.  Many members of the US Senate support the Act.  Those who do not argue that it is not appropriate to attach it to a defense spending bill or that immigration should not be tackled in a piecemeal fashion.  However, with the comprehensive immigration bill failing twice in the Senate and with an upcoming presidential election, I think that any immigration reform under possible consideration should be explored.

Thoughts on the eve of H-1B season

As many of you are aware, there are only 58,200 “new” H-1B visas available per fiscal year. Applications are first accepted on April 1 (or the first business day after April 1) for work to begin on October 1. These are for cases subject to the H-1B cap. Our office completed a frenzy of H-1B filings last night so that our clients would be assured (as best as possible) of being amongst those receiving an H-1B visa for this coming fiscal year. There are some exceptions to the cap though. If you are filing for an H-1B extension (or H-1B renewal), the cap does not apply to your case. If you are being sponsored by an institute of higher education or a non-profit research institute affiliated with an institute of higher education the cap does not apply. An interesting exemption is if you’ve had H-1B status in the past six years and not left the US for more than a year since that time. It is predicted that all of the new cases subject to the cap will be used up on the first day that applications are accepted this year. I’ve previously expressed my thoughts on the ridiculousness of this process (meaning that if there is such a demand for these visas from US businesses, why does Congress not increase the available numbers?). So, if you’ve found yourself with an expired H-1B or if you were not able to submit your petition in time for this year’s season, do realize that there are other options available. Some are specific to your country of nationality while others can apply to anyone. Please see our post from June 8, 2006 (What to do now that H-1B Visas have been exhausted) which discussed some of these other options. As the H-1B has turned into a very limited opportunity, it has become all the more important to concentrate on some of these other options.

US Immigration Proposes to Increase Filing Fees

The latest news from US Immigration is that fees are proposed to increase in the coming few months.  I am providing our readers with a link to a chart for applications and petitions for which fees are proposed to increase.  The chart illustrates the current filing fees and the proposed filing fees side by side for easy comparison.  A press release was issued by the USCIS explaining the need for the fee increase based upon several factors including increased cost of processing applications and the fact that prior fees were based upon an older model.  One interesting proposal relates to the fee increase for adjustment of status (form I-485).  The current fee (excluding the biometrics cost) is $325.00.  The proposed fee is $905.00.  However, the fee is to include ancillary applications such as the applications for employment authorization and advance parole.  This is all well and good.  However, some people do not want or need these benefits and many others are not even eligible for advance parole (at least not without seriously jeopardizing their case).  It is also not clear whether renewals of those benefits are included based upon long processing times for adjustment of status.  The overall reason for the fee increase is to improve customer service and to shorten processing times while ensuring security.  If this is the result, then I would not have a problem with it.  If applicants are to pay much higher fees without seeing improved results, then applicants will really be at a disadvantage.

Background Check Delays

On our subsection category of "Immigration Through Marriage" we received a comment asking for further clarification.  The comment was as follows: "What happens AFTER the interview and you're told you must wait for a name check?  Is there any way any of the attorney services out there could help expedite this process?  Also, what happens after the interview, and your spouse's H1B status comes to the 6 year limit? will he/she have to leave the country even with the green card pending? will he/she be able to continue to work?"

Name and background checks are supposed to be completed before the applicant is interviewed.  I would say that in about ten percent of cases, this is not done.  When it has not been completed, these checks can take anywhere from weeks to years to resolve.  It is no USCIS that completes these checks, but rather another agency.  Therefore, when one is told that their case is being held up as a result, there really isn't anything that the immigration officer can do about it.  Someone in each office is assigned to check on these cases once per week for any updates.  Other than waiting for the results, one could institute a Mandamus action against the government to in effect push them into obtaining the needed results rather than sitting on it endlessly. 

The commenter’s second question asks about how his or her foreign spouse will be able to work after H-1B visa status expires.  Whenever you have an adjustment of status case pending, you have the right to apply for an employment authorization document (work permit).  This card allows you to work anywhere in the US and is not limited to a specific employer and specific job as is the H-1B.  The commenter’s spouse would be best advised to apply for a work permit as soon as possible and it will allow him or her to continue to work with the greatest amount of flexibility.

As always, we invite our readers to comment on our blog and as always, we'll do our best to answer your questions.

So what are they going to ask me for at my immigration marriage interview?

Immigration clients who come in for their initial attorney consultation always want to know what they will be asked to show at their interview as evidence of their marriage.  I believe that the best way to succeed at the interview is to begin preparing far in advance.  Generally, the USCIS is looking for items containing both the husband's and wife's names.  After we file our clients' applications, we provide them with a list of instructions which includes suggestions for items that they may want to collect as to use as evidence of their good faith marriage at their interviews.  Some examples of documents or items containing both names include: auto insurance, health insurance, leases or mortgage/deed documents, joint bank statements, joint investments or credit card accounts, life insurance where one party is the beneficiary of the other's policy, wills, income tax returns, joint credit card statements, joint utility bills, birth certificates of children born of the marriage, wedding and other photographs, etc.  The list can go on and on, but you can see the gist of what serves as good evidence.  Once this evidence is collected, it has to be sorted for relevancy, copied and organized.  If you make the interviewing officer's job easy by coming to your interview prepared and organized you will see that they can make your life easier in return.

What is the USCIS premium processing service?

Premium processing can be thought of as an upgrade to certain non-immigrant and immigrant employment based visa categories.  The way that it works is that the sponsoring employer pays $1,000 to the US immigration service in exchange for a commitment to process the petition within 15 calendar days.  What does "process" mean you may ask?  It means that they will either approve, deny or request additional evidence within that time frame.  If they request additional evidence, then the 15 day clock restarts anew when they receive your reply for additional evidence.  The process is available for nearly all of the first three employment based immigrant categories (with the exception, currently, of multinational executives and managers).  It also does not apply to immigrant investors and immigrant religious workers.  Nearly all of the applicable non-immigrant employment based categories are covered.  Additionally, you can either file the premium processing request initially with your petition or you can upgrade it at any point.  It can be a real time saver.  The question to ask yourself is whether the time savings is worth $1,000.  Many times it can be.  For example, if an alien is in H-1B status that will expire in the next month or two and has an employment based immigrant petition pending, upgrading that petition through premium processing may mean that the alien can apply for adjustment of status and a work permit sooner and avoid having to renew his H-1B status and the costs associated with it.

What is being done about the lack of H-1B and Employment-Based immigrant visas?

As many of our readers are aware, there is an artificially set number of H-1B visas available each fiscal year, 85,000 to be exact.  Of these, some are set aside for people who graduated with Masters' degrees in the US and some are put aside for Chile and Singapore free trade agreements.  The fiscal year runs from October 1 to September 30.  Six months prior to the beginning of the fiscal year, one may submit a new (as opposed to renewal or extension) H-1B petition.  As mentioned in our blog post from earlier this year, the season only lasted about seven weeks.  Think about how few visas are available for this big country.  These are jobs that are only for professionals.  This means we're turning away talent rather than keeping it here.  On the same note, employment based immigrant visas are backlogged in several categories.  For jobs that require education and/or experience (but something less than a Master's degree or equivalent) there is a backlog of more than four years.  This basically means that the labor certification process is theoretically flawed.  An employer goes through a detailed process of showing that it cannot find an employee who meets certain minimum qualifications (of which of course, the foreign national possesses).  Then, after having proved this, the process is relatively on hold for four years.  The American Immigration Lawyers Association recently posted a letter to Congress from nearly one thousand businesses, schools and hospitals in the US complaining about these backlogs and shortfalls and asking for relief.  If we as a country are going to have these categories in place, should we not at least make sufficient visas available so that they can be used as intended?

If it's too good to be true then it is: The Unauthorized Practice of Law

I am angry right now and I'll tell you why.  I just met with a potential client who wasted significant time and money by obtaining advice from a non-lawyer rather than a qualified immigration attorney.  The person who came to visit me arrived in the US about two years ago and his lawful stay expired about a year and a half ago.  Around the time his status was to expire, he paid several thousand dollars to a non-lawyer who blindly told him to sign a form that that person had prepared that would lead to a work permit in the US.  If it's too good to be true then it is.  The form that this person signed was an application for a process designed for people who arrived in the US before 1982 (when this particular applicant would have been only a small child).  He was not even remotely eligible for this process.  Non-lawyers prey upon uninformed people by promising them unachievable results for large sums of money and of course, they never deliver.  They call themselves, notaries, notarios, immigration consultants, etc.  The bottom line is that unless they have a law degree that allows them to practice law in the US, they are not qualified to give advice.  State legal bar associations, to differing degrees, seek out these non-lawyers for prosecution.  The State Bar of Texas actively pursues violators of their statute.  The previous link is to an article on their web site related to the unlawful practice of law.  The Florida Bar also pursues violators of Florida law related to this matter.  The bottom line is that people should seek immigration advice only from qualified immigration attorneys.  In my immigration practice, I have a number of cases  devoted to fixing the damage that non-lawyers have done to people's cases.  Sometimes, the damage is so great that it cannot be fixed.

Will the party shift in Congress affect immigration reform?

As we all now know, the Democrats have won majority control of both the US House of Representatives and the Senate.  Last year the House passed a restrictionist only immigration bill.  Earlier this year, the Senate passed a more comprehensive immigration bill that included a guest worker program and other forms of relief.  Before either of these can become law, the two houses of the legislature must meet to reconcile the differences between the two bills and present a final version for the President to either sign or veto.  Unfortunately, for reasons of politics and elections amongst others, this has not yet come to pass.  Overall, Democrats have been more willing to work on the immigration issue in a positive and less restrictionist manner.  Additionally the President has shown great interest in passing an immigration bill that includes guest worker provisions amongst other real life, realistic solutions to our country's immigration issues.  Perhaps the recent change in the balance of power in Congress will bring this issue back to the forefront.

What to do now that H-1B Visas have been exhausted

On June 1, 2006, the USCIS announced that as of May 26, 2006, they had received enough H-1B visa petitions to reach the cap for fiscal year 2007.  This occurred in record speed, less than two months after they began to accept petitions and more than four months before the start of the fiscal year (see press release).  This leaves employes in a quandry as to how to fill this void.  There are some options out there, however they apply only to certain foreign nationals, being citizens of Australia, Chile, Singapore, Canada and Mexico.  Citizens of Australia are eligibe for the E-3 visa (see our post from January 10, 2006).  This is similar to the H-1B in that it is for professional employment, but is limited to 10,500 visas for citizens of Australia only.  Similar in name to the H-1B is the H-1B1.  This applies to citizens of Chile and SIgnapore and there are 5,800 visas alloted annually.  This visa can be issued for up to 18 months of stay and can be renewed indefinitely.  Finally, there is the TN visa for citizens of Canada and Mexico.  This visa also is for professional employment, is valid for one year and can be renewed each year indefinitely.  Each of these visas have their own application procedures, but for the most part can be applied for in the applicant's home country at the appropriate US Consualte.  While these visas are limited to citizens of the countries mentioned, they do offer some alternatives to the H-1B, particulaly for affected employers in the US.  Those interested in further information about these visas can feel free to contact us.

Solutions for Temporary Employment - The H-2B Visa

The H-2B visa is specifically for foreign nationals who will fill a temporary position in short (labor) supply in the US. The visa is good for up to one year initially and can be renewed twice (in one year increments). It is important that one’s intention to work in the US is temporary and that a potential employer’s need for labor services be temporary.

The employer must be able to prove that its need for foreign labor services are temporary (will not exceed one year) and that they are:

1. Either a one time occurrence;

2. Seasonal (this often times applies to landscaping positions and wait staff positions in country clubs);

3. Peak-load (such as construction job); or,

4. An intermittent need (for short periods of time).

The employer must prove that it cannot find US worker(s) to fill a position. The employer goes through a process known as labor certification (not to be confused with the labor certification process for a permanent position). While it is helpful if the employer has tried to recruit for the position in the past, it is not absolutely required. The attorney completes an application for the requested position with the state Department of Labor. The Labor Department will then check to see what is the appropriate wage for the position and make sure that the employer is willing to pay at least that much, if not more. Once the Labor Department reviews the application, they will direct the employer to advertise for three consecutive days in a local newspaper. The Labor Department will also post the job on-line with America’s Job Bank for ten days. The ads will direct applicants to send their resumes to the Labor Department who will then turn them over to the employer to review and contact the potential applicants. It should also be noted that the job description placed in the application is exactly what will appear in the ad. For this reason, the employer must be brief and succinct otherwise, the advertisement costs with the newspaper can be astounding. In order for the process to be successful, it is hoped that no one applies or that those who do apply do not meet the job’s minimum requirements. This part of the process can last two months.

When the application for the Labor Certification is made, the job start date must be no sooner than 60 days from that application date and no more than 120 days from the application date. For example, if an employer wants an employee to begin a job on April 1, 2006, the Labor Certification application would be submitted between December 1, 2005 and February 1, 2006.

Once the application with the Labor Department is approved, an H-2B petition is submitted to US Immigration. By means of this petition, the employer will show that it properly recruited and has not found a US worker to fill the position, that the workers listed in the petition are qualified for the position and that the position is temporary. That process takes approximately four to six weeks. This can be shortened to 15 days by payment to the US Immigration Service of a Premium Processing fee of $1,000. Once that case is approved, an application is made at the US Consulate to have a visa stamp placed into the foreign national’s passport and entry into the US can be made so that work can begin.

There is a limitation on the number of visas available each fiscal year. Because of these limitations, the soonest that work could begin in this status at this time would be April 1, 2006. On the web site of US Immigration, one may view the progression of approved visas (in order to estimate how many are left), please consult the column for (H-2B 2nd Half (FY 06)).

The E-3 Visa for Australian Professionals

Today we write to you about a new visa opportunity that is strictly for Australian nationals.  It is called the E-3 visa and it is for professional employment in the United States.  The visa is good for two years and can be renewed indefinitely.  Basically it must be shown that a US employer is sponsoring an Australian national for a professional position which normally requires a University degree.  The Australian national must show that he or she possesses the required degree.  A benefit to this status is that it can be used as an alternative to the H-1B (the primary professional visa) which is subject to numerical caps and frequently is used up early.  Another benefit is that the Australian national's spouse can obtain an unrestricted work permit while his or her spouse is working in the US with an E-3 visa.  This visa can be obtained at a US consulate abroad or one can apply for change to E-3 status in the United States.  Finally, the E-3 visa does not carry with it the very expensive filing fees associated with the H-1B (which could be up to $2,190).  There is an annual limit of 10,500 new visas per year.  However, since only Australian nationals can apply for this visa, it remains to be seen whether the numerical limit will ever be reached before the end of the fiscal year.  Please also see the US immigration press release regarding this new status.

What is a Priority Date and what does it mean to me?

Immigration is basically a quota system.  For each category of immigrant visas, there is a quota allotting the number of visas that can be used in any given fiscal year.  There are two main categories and several sub categories beneath them.  They are family and employment.  For the most part, the closer the family relationship or the higher educated the employee, the higher their ranking will be in the quota system.  For example, the unmarried adult child of a US citizen currently has about a four and a half year backlog, while the sibling of a US citizen has an eleven year backlog.  To give an example in the employment based aspect, an outstanding professor or researcher has no backlog while a professional holding a bachelor's degree has four and a half year backlog.  This system can be tracked on line by viewing the State Department's Visa Bulletin.  It is important to plan ahead properly in order to deal with the system of priority dates.  An attorney will figure a way, if possible, to keep his or her client present in the US in valid non-immigrant status until such time as their priority date becomes current, thereby allowing them to apply for adjustment of status to lawful permanent resident.  For certain countries which send many immigrants to the US, there are even greater backlogs separate from the rest of the world.  Those countries are China, India, the Philippines and Mexico.  There are some borderline cases where an argument can be made (but planned from the beginning) to include a client in a higher preference category.  Earlier this year, this did not seem to matter in the employment based preference system because there were few, if any, backlogs.  Now, the backlogs are significant and it is crucial to take these factors into account before embarking on a new case.

What do you do when the government won't respond?

We receive many calls from frustrated applicants to the immigration process that have had their cases "lost" in the system, cannot find out what is happening with their case or have a case that has gone beyond the normal processing time frame.  Fortunately, US immigration allows you to track most cases on the Internet at USCIS On Line Case Status Service.  This has been a vast improvement over the old days.  You can even set up an account whereby they will e-mail you when there is action (good or bad) taken on your case.  This is not yet possible with overseas Consulates.  However, many are responsive to e-mails from applicants or attorneys (see links to US Consulates).  Customer service is an important goal of US Immigration, but it is not perfect.  If a case has taken 30 days or longer than the normal processing time (see USCIS Processing Times) you can call their customer service toll free number.  An operator will take your information and promise a response within 30 days.  Unfortunately, quite often, there is a one line non-responsive letter that you will receive in the mail to the effect that the case is under review and a decision will be rendered shortly.  In these types of frustrating cases, an attorney can be of assistance.  Generally, the US Consulates seem to be open to communication with attorneys.  Also, if an attorney is a member of the American Immigration Lawyers Association, he or she has an added method of obtaining a response to a pending case.  AILA (its acronym) has staff members in place whose job it is to have direct contact with officials at the various immigration offices to obtain reasonably responsive answers and to resolve simple and even complex problems.  As an attorney, I use this resource quite often and have found it to be very helpful.  In addition to this, many local immigration offices have privileges for attorneys only to meet in person and inquire about or resolve pending matters.  Aside from our existing clients, we have taken on a number of new clients whose only task for us is to use our resources to facilitate a resolution to their long pending case.  Nothing is impossible.

Options for Fiancées - The K-1 Visa

Now that our readers are familiar with the process of immigration through marriage, we will discuss pre-marriage immigration options.  Consider the scenario.  You are a United States citizen, you are engaged to a person who lives outside the United States and who otherwise cannot obtain a visa in the United States.  You could get married abroad and have your spouse process for his or her permanent residence at the United States Consulate in their home country.  However, you may feel that you would like for your fiancée to take the opportunity to experience life with you in the United States before you marry.  In this case, you would opt for the K-1 fiancée visa.  This process requires that you have seen your future spouse in person within the past two years and show proof of a relationship, such as phone records, e-mails, etc.  The United States citizen files a petition in the United States with the required information and evidence.  When the case is approved, the United States Consulate in the foreign fiancée's home country is notified.  Additional paperwork, a medical exam and an interview are completed at the Consulate.  Once the foreign fiancée is issued his or her K-1 visa, he or she has four months in which to enter the United States.  Once the foreign fiancée enters the US, the couple has 90 days in which to marry, otherwise the foreign fiancée must return to his or her home country.  Once married, the couple applies for the adjustment of status (green card) for the foreign spouse.  The green card process through marriage is discussed in more detail in the prior day's article.

Immigration through marriage

Since the first comment to our blog came from a client who obtained her immigration status through marriage, it seems a fitting category to discuss.  Generally, when a foreign national marries a United States citizen, that person can obtain permanent residence (otherwise known as green card) status through this process.  If the foreign national is in the United States, the process is known as adjustment of status and if they are outside of the United States, they go through a process known as Consular Processing at the United States Consulate in their home country. 

Since there is a great deal of fraud in these types of cases, we carefully screen potential clients to make as certain as possible that they are in a legitimate relationship for love as opposed to marrying a "friend" who is "helping them out".  Since we have handled these cases for many years, we are able to advise our clients about the process with a great deal of experience and insight into what the United States Immigration Service is looking for.  We first gather documentation and information from our clients and prepare all of the various applications and forms.  We then assemble these completed forms and evidence into a package that is filed with the United States Immigration Service. 

Once the case is filed, we provide our clients with the original receipts as well as information and suggestions on how to prepare for their upcoming interview.  This is done so that proof of the validity of their marriage can be gathered over time rather than scrambling at the last minute.  Before the interview, we meet to review the evidence and go through a dry run of the interview process.  In most cases, we attend the interview with our clients to make certain that the process is smooth and that our clients obtain the benefits for which they've applied.  The process can seem deceptively simple.  It does not have to be complicated if one prepares properly.  However, there are pitfalls along the way that an attorney looks out for from the beginning by knowing what questions to ask and how to best proceed.  For each interview, the government allots a half hour time frame.  Most of our cases are accomplished within 15 to 20 minutes because of the level of preparation that goes into each case prior to the day of the interview.  We will post further discussion about this process in the future.  In the meantime, those with questions may feel free to comment and we will elaborate on the process.

Introduction

Welcome to the first post of our blog.  The intention of this web log is to inform our readers of updates in US immigration law, topics of interest in US immigration law as well as how to choose and work with an immigration attorney.  I would like to take this opportunity to let our readers know about us and our philosophies of work.  I work with my wife, Dori, also an attorney.  Our offices are in Boca Raton, Florida.  While our clients come from all over the world, we wish for our potential clients to know that we also speak Spanish and Italian.  The nature of US immigration law is such that in most cases, we can assist our clients no matter where they live in the world or desire to settle in the US.  In fact, we have many clients whom we have never met in person.  It's not that we wouldn't want to, but rather that the miracle of technology allows us to work with people around the block from our office and from all corners of the globe.  We utilize technology to our advantage to facilitate communication and to minimize costs.  When we come into contact with a new client, we assess the client's desires and qualifications and then determine the best course of action for their desired goal.  Most immigration attorneys work on a flat fee basis.  This means that there is a single cost for the fee that is charged for the work performed.  We do not accept cases unless we believe, after reviewing the situation, that there is a good chance of success.  This sometimes means that our clients hear what they do not want to, but we feel that it is better to know up front than to have a problem of failed expectations down the road.  Honesty is the best policy.  One of our philosophies, as with anything else in business, is that a client that is pleased with our services will recommend us to others whom we can help.  The mark of a good attorney is one that is responsive.  We receive calls and inquiries from interested individuals all day long who want to know the price, but do not inquire about what they get for their money.  We are not the most expensive and we are not the cheapest.  However, we do strive to respond timely to all questions and to perform our services on a timely basis.  We will discuss this and other topics in greater detail in future posts.  For the meantime, those with inquiries may feel free to contact us with their questions and we will be more than happy to provide you with a realistic assessment of your situation.