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Posted on May 2, 2011 by Robert A. Kraft

Ideology ran into practicality in theTexas Legislature recently when business interests objected to Republican proposals to punish companies that hire illegal aliens. It will be interesting to see whether the “social-conservative” wing of the Republican party wins out over the “business-conservative” wing. This conflict was reported in the Dallas Morning News. Here are excerpts from the article:

Business interests, including small contractors and GOP stalwarts, have raised concerns that could derail proposals to fine or lock up employers who hire illegal immigrants, Rep. Byron Cook, chairman of a top House committee, said.

Measures before the House State Affairs Committee would require employers to use the federal E-Verify system or make other good-faith efforts before hiring new workers, to ensure they are citizens or authorized to work in the U.S.

The toughest bill, by Rep. Debbie Riddle, R-Tomball, would make intentionally hiring an illegal immigrant subject to jail time, although family maids and gardeners were exempted.
Employers could defend themselves against charges by showing that they asked for driver’s licenses or other verification, Riddle said.

The other bills, by Carrollton Republicans Reps. Jim Jackson and Burt Solomons, would push for state agencies to use E-Verify in their own hires and for contractors.

It’s part of a broad effort in the House to tackle illegal immigration, with measures that would challenge automatic U.S. citizenship for children born on American soil to illegal immigrants, and resolutions exhorting Congress to do a better job of securing the borders.

But when it comes to employment verification, businesses are pushing back. A steady stream of people testified that the E-Verify system is flawed, has too many false-positives and can be easily skirted by businesses that claim their workers are “independent contractors” not subject to the system.

Most of what needs to happen is at the federal level, said Cook, R-Corsicana, on Thursday.
“What we can do is limited and is subject to federal jurisdiction,” the chairman of the State Affairs Committee said.

Almost a dozen people testified Wednesday night that using the E-Verify system doesn’t stop the problem. Bill Hammond of the Texas Association of Business said each verification could cost a business $127.

David Coburn, a painting contractor from Austin, told the committee that he advertises for $13-an-hour jobs, and the applicants are all Hispanic. He said he complies with the law and checks their information, even though he suspects some are in the country illegally. He also said he has seen bidders for state contracts come in so low that he knows they must be using illegal immigrant laborers and not paying Social Security or other taxes.

Only a few people spoke in favor of the bills, saying the state should punish those who offer the jobs that attract immigrants and keep them in the country illegally. The bills were left pending in the committee.

Posted on December 28, 2009 by Robert A. Kraft

The Department of Labor (DOL) announced a new prevailing wage determinations (PWD) for H-1B, H-1B1 (Chile/Singapore), H-1C, H-2B, E-3 (Australia), and Permanent Labor Certification Programs. Rather than obtaining the prevailing wage from the local state workforce agency, a centralized prevailing wage determination from DOL in Washington, D.C. will be used. The new procedure will become effective January 1, 2010. Beginning January 1, 2010 in order to file a PWD with the new system, Form ETA 9141 must be used. Form ETA must be filed by U.S. mail or other delivery service to:   U.S. Department of Labor- ETA National Prevailing Wage and Helpdesk Center Attn: PWD Request 1341 G Street, NW, Suite 201 Washington, D.C. 200005-3142  

On or about January 20, 2010, DOL will implement the online prevailing wage system through iCERT, and employers will be able to file the PWD online.

Posted on October 12, 2009 by Robert A. Kraft

The USCIS Office of Fraud Detection and National Security has started an assessment of the H-1B program where they have immigration officers go to the H-1B employers and employees and make unannounced site visits. The unannounced site visits will occur at the place of business that is listed on the H-1B petition, so they will go to the employee’s work site. Essentially, what they are doing is making sure that there is no fraud in the H-1B program and that the employee is actually working at the employer’s place of business. They have other verification methods that include, but are not limited to: review of the public records and information; contact via written correspondence, the Internet, fax, e-mail or telephone.   At the unannounced site visits, an interview may be conducted to make sure the H-1B employee is performing the duties as stated on the H-1B petition. USCIS could ask what the employee’s job title is, the position duties, the requirements for the position, and how much the employee is getting paid. They could ask for paycheck stubs (just to verify).   Tips for the employer and employee:

  • Make sure to review the petition in its entirety, the nature of the job offer, and the terms of employment;
  • The H-1B petitioner/employer must pay for all expenses including attorney’s fees and filing fees.USCIS may request to see a copy of the payment records. Make sure to reimburse if any of the fees were paid by the employee;
  • If the employer or employee is not present during an unannounced site visit, then USCIS will usually ask for the HR manager. Make sure the HR manager is aware of this specific information;
  • Make sure you request the officer’s name, his or her title, and contact information for the site investigator. There are multiple government agencies that may audit in the H-1B program, including Immigration and Customs Enforcement (ICE), the USCIS, the Department of Labor’s Wage and Hour Division, and/or the USCIS National Threat Assessment Unit. Know which agency you’re providing information to in the event follow up is needed;
  • Request a business card with a toll free number to obtain confirmation of his/her credentials prior to providing any information.
  • Employers should comply with reasonable requests by the officers examining the employer’s premises or work areas and documents. But if there is a secure area that no one goes to, then the employer should explain it to the officer.
  • Do not “guess” about any information provided during a site visit. If you do not know the answer, you may want to tell the officer that you will follow up with the officer to provide accurate information after requested information is obtained;
  • Take notes of all information requested and provided,whether orally or in writing, the locations visited, the pictures taken (obtain copies), and any other information from the site visit.
  • Keep a record of all documentation provided by the officer during the site visit.

Posted on September 24, 2009 by Robert A. Kraft

The U.S Department of State (DOS) has advised that there are no more employment-based visa numbers available for fiscal year 2009, which concludes September 30, 2009. This affects all employment based categories, but particularly applicants in the employment-based non-ministerial fourth category (EB-4). The EB-4 non-ministerial category includes religious occupation, vocation and professional categories (but not the ministerial category).

The non-ministerial EB-4 category is set to expire September 30, 2009 and individuals in this category must have their adjustment of status applications approved or if they applied via consular processing, they must be admitted into the United States by midnight by September 30, 2009. Unless Congress extends the sunset provision, individuals in the EB-4 non-ministerial category are unable to file Form I-485 Adjustment of Status Applications or consular processing applications after September 30, 2009.

While the I-360 religious worker petitions (ministerial and non-ministerial categories) may still be filed before September 30, 2009, given the unavailability of visas in the EB-4 category the month of September, the Applications to Adjust Status (Form I-485) or applications for consular processing will not be accepted this month. Thus, adjustment of status applications that remained pending will not be approved unless a visa number had already been captured.  

Individuals in the EB-4 ministerial category are eligible to file Adjustment of Status applications until October 1, 2009, when visas in the EB-4 category become available. Please visit the visa bulletin available at the DOS’s Web site.

 

Posted on August 18, 2009 by Robert A. Kraft

The U.S. Department of State has released its September 2009 Visa Bulletin.   For the month of September 2009, the visa bulletin displays unavailable visas for the employment-based category – third preference category, other workers, fourth preference category, and certain religious workers. Special Immigrant Religious Workers would be categorized under the employment-based fourth preference category. Recently, U.S. Citizenship and Immigration Service (USCIS) began accepting concurrent filing of Form I-360 Religious Worker Petition and Form I-485 Adjustment of Status Application pursuant to the district court’s final order under Ruiz-Diaz v. United States. Pursuant to the order, individuals who file Form I-485 based on a pending Special Immigrant Religious Worker Petitions (Form I-360) or file concurrent I-360 and Form I-485 on or before September 9, 2009 would receive protection from the accrual of any unlawful presence and unauthorized employment that began, up until September 9, 2009.  

Under the September 2009 visa bulletin, beginning September 1, 2009, there will be no visas available for the special immigrant religious worker category – employment-based 4th preference category. It is vital that all pending or approved special immigrant religious worker petitions file their adjustment of status applications before August 31, 2009. USCIS will reject any adjustment of status applications based on a pending or approved Form I-360 seeking special immigrant religious worker classification filed on or after September 1, 2009. More information is available at www.uscis.gov.

 

Call Kraft & Associates at 214-999-9999 and we will answer your questions regarding adjustment of status to permanent residence based on a Special Immigrant Religious Workers Petition.

Posted on August 17, 2009 by Robert A. Kraft

A petitioner who sponsored a foreign national based on a temporary religious worker (R-1) visa is required to notify U.S. Citizenship and Immigration Services (USCIS) within 14 days if the R-1 beneficiary is working less than the required number of hours, or the beneficiary was terminated before the expiration of his or her authorized stay.  

The notification must include the following information:

  • Employer’s information (name, address, telephone number, and FIEN associated with employer, if available);
  • R-1 beneficiary’s information (name, address, telephone number, and FEIN associated with employer;
  • USCIS receipt number of the approved R-1 petition.

Reason for the notification:

  • R-1 beneficiary working less than the required number of hours; or
  • R-1 beneficiary has been terminated before the authorized stay.

 
Employers can notify USCIS via e-mail or via letter mailed to the California Service Center. More information is available at the USCIS Web site.  

Kraft & Associates will answer your R-1 questions. Call us at 214-999-9999.

Posted on August 12, 2009 by Robert A. Kraft

H-1B visas are work visas that allow foreign nationals to temporarily work in the United States for a U.S. employer. A U.S. employer may petition a foreign national under the H-1B classification which specifically applies to individuals in a “specialty occupation.” A specialty occupation has three requirements. First, an individual must have a bachelor’s degree or higher degree or its equivalent for the particular position. Second, the degree must be common in the industry among similar organizations. Third, the employer must normally require a degree or equivalent; or the nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with attainment of the degree.   Individuals with H-1B visas are allowed to work in the United States for up to six years, but visas are granted in three-year increments. In some cases, the H-1B visas may be extended for more than six years. If the individual is in the United States, a change of status to an H-1B is filed in the United States. If the individual is outside the United States, upon approval of the petition, the individual must apply for an H-1B visa at the U.S. consulate. There are only 65,000 H-1B visas issued per year.   The beginning of the fiscal year for 2010 is October 1, 2009.  Employers may begin filing their petitions six months prior to the start date of employment but the individuals cannot start their jobs until October 1.    

It is vital for those individuals wishing to work in the United States to begin preparing their H-1B paperwork before the cap is reached. As of August 7, 2009, approximately 44,900 H-1B cap-subject petitions had been received by U.S. Citizenship and Immigration Services (USCIS) and counted towards the cap. Please call us at 214-999-9999 if you would like to begin the H-1B process. The H-1B cap-subject count is available at the USCIS Web site.

Posted on August 3, 2009 by Robert A. Kraft

We recently assisted a client from Johannesburg, South Africa, regarding an H-1B specialty occupation visa. He was approved for an H-1B visa, but in order for our client to enter the United States, he must obtain an H-1B visa in his passport. Because the chances of visa issuance vary greatly depending on documentation and individual circumstances, we suggested that he go to the interview at the U.S. consulate very well prepared. We told him to take a certified copy of his entire H-1B package that was filed with the Immigration Service, along with his Form I-797 Approval Notice. We also suggested that he take original birth certificates, marriage certificate, and proof of financial support. He attended the interview this morning and his experience at the U.S. consulate in Johannesburg, South Africa was documented as follows. 

“My wife, myself and our son had our interview at the U.S. Consulate here in Johannesburg this morning, at 9:00am. We duly arrived at 8:30am, had our relevant DS documents checked at the door, took a number, and waited for the “call.” At promptly 9:00am we were called to a booth, where our fingerprints were taken, the DS forms checked with the original I-797 form, and then told to go and sit down again. 10 minutes later, we went back to the booth, had our fingerprints taken again, and that was it. All visas approved, and to pay DHL the delivery costs. No questions asked, no documents asked for, no requirement of proof of copies of documents, nothing. All in all a painless and easy task.”
 

Posted on August 3, 2009 by Robert A. Kraft

As of July 24, 2009, approximately 44,900 H-1B cap-subject petitions have been received by U.S. Citizenship and Immigration Services (USCIS) and counted towards the H-1B cap. Approximately 20,000 petitions qualifying for the advanced degree cap exemption have been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits. The H-1B program allows foreign nationals to work for their U.S. sponsor employer in a specialty occupation that requires theoretical or technical expertise in specialized fields. This may include scientists, engineers, and commuter programmers to name a few.  The cap count for H-1B fiscal year 2010 is available at www.uscis.gov.  

Call us at 214-999-9999 and Kraft & Associates will answer your H-1B questions.

Posted on July 15, 2009 by Robert A. Kraft

A frequent question that arises is whether a foreign national living in the United States for a certain number of years can obtain permanent residency based on the years of living in the United States. There is no law or regulation currently in place allowing foreign nationals to automatically obtain permanent residency based on the number of years residing in the United States. There are however, many ways foreign nationals can immigrate and obtain permanent resident status. Two ways to obtain permanent resident status are based on employment and family sponsorship.   One of the ways foreign nationals can obtain permanent residency is based on employment. The U.S. employer will sponsor the employee to qualify under a certain visa category. Specifically, the foreign national may qualify under one or more of the employment-based “EB” visa preference categories that are divided into four separate categories.   The four EB visa preference categories are:   EB-1: Extraordinary Ability, Professors, Researches, or Executives, filed on form I-140 EB-2: Exceptional Ability in the Sciences, Arts or Business, filed on form I-140 EB-3: Skilled Worker, Professional, Or Unskilled Worker, filed on form I-140 EB-4: Immigrant Religious Worker, filed on form I-360

Another process to obtain lawful permanent residence in the U.S. is through family sponsorship. That is, either a U.S. citizen or permanent resident family member or as a fiancé to a U.S. citizen and subsequent marriage. The process begins by either the U.S. citizen or lawful permanent resident relative filing form I-130 Petition for Alien Relative or form I-129F Petition for Alien Fiance with U.S. Citizenship and Immigration Service (USCIS). Just as in employment-based sponsorship, there are visa preference categories in family-based sponsorship. Family-based “FB” preference categories are divided into four categories.   FB-1: Unmarried sons and daughters of U.S. Citizens FB-2A: Spouses and children of lawful permanent residents of the U.S. FB-2B: unmarried sons and daughters of permanent residents of the U.S. FB-3: Married sons and daughters of U.S. Citizens. FB-4: Brothers and sisters of U.S. Citizens who are at least 21 years old.  

The above preference categories are subject to a numerical limitation. More information on these visa categories is available at the U.S. Department of State’s visa bulletin at:  www.travel.state.gov

Posted on July 14, 2009 by Robert A. Kraft

H-1B visas are a relatively swift path to employment for foreigners with bachelor’s degrees and U.S. employers to sponsor them. Each year, the U.S. government makes 65,000 H-1B visas available to qualified individuals on a first-come basis. The cap has been reached every year for the last several years, and for fiscal year 2008, it was reached on the first day of filing. As of July 10, 2009, U.S. Citizenship and Immigration Services (USCIS) had received 44,900 H-1B cap-subject petitions that have been counted towards the 65,000 H-1B cap. USCIS continues to accept cap-subject petitions.  

If you would like more information regarding the H-1B visa cap, please call Kraft & Associates at 214-999-9999.

Posted on July 9, 2009 by Robert A. Kraft

As of July 3, 2009, approximately 45,000 H-1B cap-subject petitions have been received by U.S. Citizenship and Immigration Services (USCIS) and counted towards the H-1B cap. Approximately 20,000 petitions qualifying for the advanced degree cap exemption have been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits.  

The cap count for H-1B fiscal year 2010 is available at www.uscis.gov.

Posted on July 6, 2009 by Robert A. Kraft

With the recent implementation by U.S. Citizenship and Immigration Service (USCIS) allowing concurrent filing of Form I-360 Religious Worker Petition and Form I-485 Adjustment of Status Application, most applicants want to know what documents to submit with an adjustment of status (AOS) application.

Persons with a pending I-360 religious worker petition are now eligible to file an AOS application before September 9, 2009. The AOS application is used by persons who are in the United States to apply with USCIS to adjust to permanent resident status.

Along with the Adjustment of Status Application on Form I-485, one must remember to submit:

  • a copy of the I-360 receipt notice,
  • two passport style photos,
  • a copy of the applicant’s passport,
  • a copy of the applicant’s birth certificate (along with a certified English translation if the document is not in English), and
  • a medical examination report performed by a designated civil surgeon.

If an AOS applicant has ever been arrested then a court-certified copy of all arrest records and the final disposition of the case is required (excluding traffic tickets).

Individuals between the ages of 14-79 are also required to submit a Biographic Information Sheet on Form G-325A.

The most important thing to remember before sending the AOS application is the filing fee! Do NOT forget to submit a check or money order to the U.S. Department of Homeland Security in the amount of $1010. No additional fee is required for Form I-765 Employment Authorization Application and for Advance Parole on Form I-131 if filing with an AOS application.  

Call us at 214-999-9999 and we will be happy to answer your questions.

Posted on June 30, 2009 by Robert A. Kraft

As of June 26, 2009, approximately 44,800 H-1B petitions have been received and counted toward the 65,000 cap. USCIS continues to accept cap-subject petitions and advanced degree petitions until the 65,000 statutory cap limit is reached. More information is available at www.uscis.gov.
 

Posted on June 30, 2009 by Robert A. Kraft

Do you have a pending Form I-360 Special Immigrant Religious Worker Petition? If so, you are now eligible to file an application to adjust your status to permanent resident. On June 25, 2009, in response the district court’s order in Ruiz-Diaz v. United States, No. CO7-1881RSL (W.D. Wash. June 11, 2009), U.S. Citizenship and Immigration Services (USCIS) is now accepting concurrently filed Form I-360 and Form I-485 Applications to Adjustment. Applicants who filed Form I-360 religious worker petitions and are currently pending with USCIS are immediately eligible to file Form I-485 Application to Adjust Status and Form I-765 Application for Employment Authorization. USCIS has posted this notice on their website and is available at http://www.uscis.gov/files/article/dkt_127-2_notice.pdf.   Under the district court’s order, if you have a Form I-360 religious worker petition that is pending with USCIS as of June 11, 2009, then you are eligible to file Form I-485 and/or Form I-765. Also, applicants filing after June 11, 2009, are eligible to concurrently file Form I-360/I-485. The order protects foreign nationals from the accrual of unlawful presence and unauthorized work since any period of unlawful presence and unlawful employment will be tolled until will be tolled until September 9, 2009.  

For additional information please see the USCIS Web site.

 

Posted on June 25, 2009 by Robert A. Kraft

As of June 19, 2009, approximately 44,500 H-1B cap-subject petitions have been received by USCIS and counted towards the H-1B cap. Approximately 20,000 petitions qualifying for the advanced degree cap exemption have been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits.   Note: the reduction in count from May 27, 2009, is due to H-1B cap cases that have been denied, revoked, or withdrawn during the filing period.  

For more information, please visit www.uscis.gov.

Posted on June 25, 2009 by Robert A. Kraft

Effective June 29, 2009, the U.S. Citizenship and Immigration Services (USCIS) will resume Premium Processing Service for Form I-140 (Immigrant Petition for Alien Worker) for the following petitioner categories:   ·   EB-1 Aliens with Extraordinary Ability, ·   EB-1 Outstanding Professors and Researchers, ·   EB-2 Members of Professions with Advanced Degrees or Exceptional Ability not seeking a National Interest Waiver, ·   EB-3 Professionals, ·   EB-3 Skilled Workers, and ·   EB-3 Workers other than Skilled Workers and Professionals.   Premium Processing Service guarantees petitioners that USCIS will issue either an approval notice, a notice of intent to deny, a request for evidence, or will open an investigation, within 15 calendar days of receipt for a $1,000 processing fee. If USCIS does not process the petition within that 15-day window, the $1,000 fee will be refunded, but the Premium Processing Service will continue. Additionally, each petitioner who uses Premium Processing will have a dedicated phone number and e-mail address to check their petition status as well as ask any questions they may have.  

For additional information, please visit www.uscis.gov.

Posted on June 8, 2009 by Robert A. Kraft

Final implementation of the rule requiring federal contractors and subcontractors to begin using U.S. Citizenship and Immigration Services (USCIS) E-Verify system has been delayed until September 8, 2009. Once applicable, the rule will require federal contractors and subcontractors to agree to electronically verify the employment eligibility of their employees. The E-Verify system will ensure that the federal government only does business with companies that agree to verify the new hires are authorized to work in the U.S.

The Federal Acquisitions Regulatory Councils published an amendment in the Federal Register on June 5, 2009, which postponed the applicability of the final rule until September 8, 2009. For more information on E-Verify, please visit: www.uscis.gov/everify.

Posted on May 29, 2009 by Robert A. Kraft

As of May 27, 2009, U.S. Citizenship and Immigration Services (USCIS) had received 45,700 H-1B petitions counting toward the 65,000 cap. For the fiscal year 2010 H-1B program, USCIS continues to receive petitions subject to the 65,000 cap. Visit the USCIS Web site for updates at: http://www.uscis.gov.

Posted on May 23, 2009 by Robert A. Kraft

As of May 18, 2009, U.S. Citizenship and Immigration Services (USCIS) had received 45,500 H-1B petitions counting toward the 65,000 cap. For the fiscal year 2010 H-1B program, USCIS continues to receive petitions subject to the 65,000 cap. Visit the USCIS Web site for updates.

Posted on May 19, 2009 by Robert A. Kraft

On March 20, 2009, President Obama signed Public Law 111-9 extending the non-minister special immigrant worker program through September 29, 2009. The program, which had expired on March 6, 2009, includes professional or non-professional capacities within a religious vocation or occupation.

Religious workers seeking to file in professional or non-professional capacities within a religious vocation or occupation must file their special immigrant petitions before September 29, 2009. For more information on the non-minister special immigrant religious worker program, please call us at 214-999-9999.

Posted on April 25, 2009 by Robert A. Kraft

On April 20, 2009, U.S. Citizenship and Immigration Services (USCIS) announced that for fiscal year 2010 H-1B program, 44,000 petitions were received and counted toward the 65,000 Congressionally-mandated cap. USCIS continues to accept petitions subject to the 65,000 cap. More information is available at www.uscis.gov.

Posted on April 14, 2009 by Robert A. Kraft

The Technology section of the New York Times this week ran an article about an employee at Google whose job it is to “fix” problems Google employees have with the immigration system. The article is interesting, but what is really striking is the tone of the comments to the online article. There is a display of real anger at Google’s hiring of foreign workers in this time of economic hardship – when so many U.S. citizens are looking for work. Read the article. What’s your opinion?

Posted on April 9, 2009 by Robert A. Kraft

As of April 3, 2009, all U.S. employers are required to use the revised Form I-9. The changes to the form include a list of accepted documents. Employees must present to their employers documentation to identify their identity and verify employment authorization. Changes to the list require unexpired, valid documents, and adds documentation for citizens of the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI).   Two new documents were added to the list: a passport from the FSM or RMI with a valid Form I-94; or Form I-94A indicating non-immigrant admission under the Compact of Free Association Between the United States and the FSM or RMI; temporary I-551 printed notation on a machine-readable immigrant visa in addition to the foreign passport with a temporary I-551 stamp.   Three documents were removed from the list, and employers may no longer accept these document. The following are no longer issued and have expired: Form I-688, Temporary Resident Card; Form I-688A, Employment Authorization Card; and Form I-688B, Employment Authorization Card  

Additional information is available at www.uscis.gov

Posted on April 8, 2009 by Robert A. Kraft

U.S. Citizenship and Immigration Services (USCIS) announced that they are still accepting H-1B petitions for the fiscal year 2010. USCIS began accepting H-1B cap petitions subject to the cap on April 1. After five days, almost half of the 65,000 cap for fiscal year 2010 have been received. USCIS grants 65,000 H-1B visas per fiscal year, with certain exceptions. When sufficient petitions have been received, a random lottery selection is conducted. U.S. employers file H-1B petitions for foreign workers in a specialty occupation that require a theoretical or practical expertise in fields requiring a bachelor’s degree or higher or its equivalent, such as scientists, engineers, or computer programmers. It is not too late to file your H-1B petition for fiscal year 2010!  

For more information on H-1B cap petitions please call us at 214-999-9999

Posted on March 23, 2009 by Robert A. Kraft

On April 1, 2009, U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions for the 2010 fiscal year. Since there are only 65,000 H-1B visas issued per year, yet there are more than 65,000 applicants, the H-1B visas are entered into a random computer lottery system.

If a foreign national is selected in the H-1B program, he or she is allowed to work in a specialty occupation that requires theoretical or technical expertise in a specialized field. This may include scientists, engineers, and commuter programmers to name a few. Employment will commence on October 1, 2009, for fiscal year 2010. Since H-1B petitions cannot be filed more than six months before employment commences, it is vital to file the H-1B petition no earlier than April 1, 2009.   The following are individuals who are exempt from the 65,000 cap. ·   The first 20,000 H-1B petitions for those individuals who have earned a U.S. masters degree or higher education. ·   Individuals who will work at institutions of higher education or a related or affiliated nonprofit entities, or at nonprofit research organizations or governmental research organizations. ·   Current H-1B workers who were previously counted in the cap.  

For more information on H-1B petitions, please call us at 214-999-9999.

Posted on February 24, 2009 by Robert A. Kraft

For the second time this year, the Vermont Service Center (VSC) has issued Employment Authorization cards with errors, specifically on the expiration date. Employment authorization cards produced around February 4, 2009, should have an expiration date on the card of September 9, 2010, rather than February 9, 2010. 132 individuals (all from El Salvador) were affected by the error. VSC has notified the affected individuals with instructions on how to proceed. If an affected individual prefers to have the corrected EAD card issued immediately rather than wait for a new card to be reissued, the steps to follow are on the letter provided by VSC.

Posted on February 23, 2009 by Robert A. Kraft

ImmigrationWorks USA is an organization of business owners dedicated to the proposition that legal immigration is good for American businesses. Here is information from their Web site:

ImmigrationWorks USA is a national organization advancing immigration reform that works for all Americans – employers, workers and citizens. Its twin goals: to educate the public about the benefits of immigration and build a mainstream grassroots constituency in favor of better law – business owners and others from across America willing to speak out and demand an overhaul. The organization links some 25 state-based business coalitions: employers and trade associations from Florida to Oregon and from every sector of the economy that relies on immigrant workers. The federation’s aim: to strengthen these groups, expand their membership and help them fight local immigration battles even as they build and train for a renewed debate in Congress.

The battle today is beyond the beltway – in state legislatures, courtrooms, congressional elections – where these local coalitions are ideally positioned to explain the need for immigrant workers and push back against policies that could damage the economy. But the ultimate goal, when immigration reform comes up again in Washington, is to have a grassroots army in place – the national business presence that was missing in the last congressional fight.

Posted on February 2, 2009 by Robert A. Kraft

In a previous message posted January 23, 2009, we noted that a new version of Form I-9 would become effective February 2, 2009. Employers who hire new employees must verify employment eligibility and complete a Form I-9. The new rule would amend the types of acceptable documents employees may present to their employers for completion of Form I-9. Employers will no longer be able to accept expired documents to verify employment authorization. This rule has been delayed by 60 days, until April 3, 2009. U.S. Citizenship and Immigration Services (USCIS) announced this update on its Web site.

Posted on January 23, 2009 by Robert A. Kraft

Employers must complete form I-9 for all employees, citizens, and non-citzens who are hired and working in the United States. The new version must be used on February 2, 2009 and thereafter. It is available at the U.S. Citizenship and Immigration Service Web site.

Posted on January 7, 2009 by Robert A. Kraft

In an effort to detect and deter fraud in the religious worker program, U.S. Citizenship and Immigration Services (USCIS) implemented significant changes to the special immigrant and non-immigrant (R-1) religious worker rules. The new rule became effective November 26, 2008.   Some of the changes in the new rule requires sponsoring employers to submit the petition on the foreign national’s behalf for R-1 status, provides increased on-site inspection by USCIS, includes compensation requirements, reduces initial period of admission on R-1 status to 30 months, and increases employer’s evidentiary requirements.   One significant change is that an employer must sponsor the nonimmigrant religious worker by submitting the Petition for a Nonimmigrant Worker (Form I-129). Additionally, the employer must now submit a determination letter by the Internal Revenue Service (IRS) which will verify the religious organization’s tax-exempt status. In order to obtain a determination letter, the religious organization must pay a one time fee to the IRS. R-1 visa holders will now be admitted for an initial period of up to 30 months and may extend their stay for an additional period of 30 months.  

For further information on the new revisions, please call us at 214-999-9999.

Posted on January 5, 2009 by Robert A. Kraft

A recent Associated Press article provides a good summary of the dilemma faced by foreign workers as the U.S. economy deteriorates. These workers are finding themselves less in demand, and are searching for alternative jobs or other means of maintaining their immigration status and stay in the United States. Here are excerpts:

For foreign professionals in the United States, the rising unemployment rate is especially daunting. Laid-off foreign workers are scrambling for temporary visas and seeking advice from immigration attorneys about how long they can legally stay in the country while hunting for jobs. Even some foreigners here on visas or work permits are switching employers, fearing that an unstable job during a recession could lead to a one-way ticket home or end their chance of getting a green card. An undetermined number of foreign workers have been casualties of the recession, which pushed the nationwide jobless rate to 6.7% in November, a 15-year high. Economists expect unemployment to continue to climb through much of 2009 and could surpass 8%. Nearly half a million foreign professionals are working in the country on visas, known as H-1Bs, or have applied for green cards with support from their employers, said Stuart Anderson, executive director of the National Foundation for American Policy, a research group in Arlington, Va. Many came to the U.S. to pursue graduate degrees and have lived and worked here for years. Those who lose their jobs in the downturn may head home or move to countries that have more lenient immigration rules. That could drive much-needed innovation in technology and engineering overseas in the years ahead, Anderson said. “What you may find is there are people who could be future entrepreneurs in the United States who end up starting these companies in other countries,” he said. Immigration lawyers say they have received an increasing number of calls from foreign professionals who have been terminated — many in the financial services industry as investment banks slash payroll to stay afloat. Following the dot-com bust in 2000, many high-tech workers were laid off and some foreign workers returned overseas. This time, immigration attorneys say the pain began primarily in the financial sector — though manufacturing and technology companies have also started eliminating jobs. One of the biggest challenges for laid-off visa holders is the lack of a grace period to leave. Companies must provide a return ticket home for workers, who may try to switch to another visa, such as a six-month tourist visa, to buy time to pack their belongings or to look for another job. Immigrants seeking green cards — which would let them remain in the country permanently — face different problems. If they are laid off, they can stay and look for a new job but must find one before the government reviews their paperwork, which could take months or years, depending how far along they are in the process. The bottom line: no employer, no green card. During an economic slump, companies may reduce hiring abroad to scale back on legal fees. They also may do so to comply with U.S. laws that ban firms from sponsoring foreigners for green cards to replace laid-off American workers, said Robert Hoffman, president of government and public affairs at software company Oracle Corp. and co-chair of Compete America, a coalition that supports policies that would allow more skilled workers from other countries to be hired in the U.S. A clearer picture of the recession’s effect on foreign workers could emerge in April when companies can request visas for workers they hope to hire in 2009.

For the last six years, the demand for work visas has surpassed a 65,000 annual cap put in place by Congress, with 163,000 applications filed last year.

Posted on January 4, 2009 by Robert A. Kraft

Here’s an interesting debate about last-minute changes to the H-2A agricultural worker program proposed by the Bush administration. As expected, employers who would benefit from the changes are in favor, and American farm workers who might be harmed are opposed. These are excerpts from an article in the Dallas Morning News:

Farm worker advocates and opponents of illegal immigration are blasting one of President George W. Bush’s “midnight regulations” that will make it easier for agricultural employers to hire foreign workers.

They say the changes undermine worker protections, exploit immigrants and set wage levels so low that domestic workers cannot compete with foreign workers for jobs.

The regulation, which makes changes in the U.S. Labor Department’s H-2A Temporary Agriculture Worker Program, allows agricultural employers to hire temporary foreign workers if not enough domestic workers are able or willing to fill farm jobs.

The changes also promise to reduce paperwork and make processing deadlines more efficient.

In fiscal 2008, the U.S. State Department issued more than 64,000 H-2A visas, a 26 percent increase over the previous fiscal year. Since 2003, the number of temporary agricultural worker visas has steadily increased, according to a department spokeswoman.

But the number of workers covered by H-2A visas is only a small segment of a larger farm worker contingent that’s close to 1.6 million, more than 80 percent of whom are foreign-born, said Craig Regelbrugge of the American Nursery and Landscape Association. Of those foreign-born workers, nearly three-quarters are unauthorized, he said.

Labor Department officials say the changes are needed to provide agricultural employers with workers in a timely fashion so that crops can be harvested.

But Bruce Goldstein of the Washington, D.C.-based Farmworker Justice Fund said the four-tier wage structure is not a reliable standard because the survey it relies on doesn’t study farms, which are regulated by the U.S. Department of Agriculture. As a result, he said, it sets farm worker wages too low and makes it hard for the workers to earn a living wage.

Additionally, Goldstein said, the new regulations weaken worker protections because employers can now claim they have fulfilled the program’s requirements instead of having to provide evidence of their compliance before their visa requests are approved.

“These seem typical of the Bush administration policies, where whatever employers want, that’s what we’re going to give them,” said Ira Mehlman of the Federation for American Immigration Reform, a nonpartisan advocacy group that seeks to reduce illegal immigration.

Mehlman said that by continuously adding foreign workers to their employment rolls and paying them according to the prevailing wage, employers undercut the need for domestic workers by relying on a steady stream of immigrants who can be easily replaced if they complain. Employers’ actions also cap wages at such low rates that Americans can’t compete for agricultural jobs.

Posted on December 7, 2008 by Robert A. Kraft

That’s the premise behind the Web site WeHireAliens.com. You can go there and report any business you suspect hires illegal aliens. You need not have any evidence at all, and you certainly don’t have to leave your name or reason for reporting the business.

The site was the subject of a recent article in the Dallas Morning News. Here are excerpts:

Hundreds of Texas employers, and thousands around the nation, have inspired Internet publicity they didn’t court: They’re accused of hiring illegal immigrants.

A Web site, www.wehirealiens.com, lists companies from Pilgrim’s Pride to Swift & Co. as “alleged” employers of illegal immigrants. Both those food companies have had employees at their Texas operations arrested for immigration violations and document fraud, but many other companies listed on the site have not.

And that has employers angry that the founders of the Southern California-based site publicly accuse them of breaking laws. The founders contend they established the site in 2004 in frustration over what they call ineffective action by the federal government. There are now nearly 5,000 “illegal employers” listed from nearly every state.

The Web site reflects one more way that technology is amplifying the national debate over illegal immigration. Scores of sites have gone up in the last few years to defend, to denigrate, and to discuss civilly the estimated 12 million illegal immigrants in the U.S.

The federal government won’t divulge its tipsters. “ICE doesn’t confirm special sources, but we use various sources to obtain intelligence,” said Carl Rusnok, spokesman for Immigration and Customs Enforcement in Dallas. “Then we determine if follow-up action is appropriate.”

ICE runs its own hotline – 1-866-DHS-2ICE – and information there keeps the Department of Homeland Security agency very busy, Mr. Rusnok added. Mr. Mrochek said they send information to ICE, the FBI and the Social Security Administration. He also said that information is vetted and less than a third of the complaints they receive are actually posted on the Web site.

Dallas-based La Madeleine Bakery, Cafe and Bistro is also listed on the site. Officials at the privately owned restaurant chain said they have tried to get the chain’s name removed from the site and that they comply with federal immigration laws. “It would appear that they never remove these postings and do not verify if the allegations are true,” said CEO Mike Shumsky. “This, as you might expect, is concerning.”

Posted on November 17, 2008 by Robert A. Kraft

The Washington Post reports that the Department of Homeland Security will significantly scale back its planned crackdown this winter on federal contractors that hire illegal immigrants. Here are excerpts from the article:

Under a rule published yesterday, the agency said only contractors that do more than $100,000 in federal work will be required to use an electronic government system to check the work documents of new hires. Originally, officials had proposed that companies doing $3,000 in federal work must comply.

The agency also said it would require federal contractors to check only laborers used on specific contracts, instead of their entire workforce.

The revisions significantly reduce the number of companies that will be subject to the program, which will apply to federal contracts and solicitations issued after Jan. 15. The Bush administration had hoped to make the work eligibility system, called E-Verify, mandatory for nearly 200,000 government contractors, covering about 4 million U.S. workers over 10 years.

The change came after months of intense lobbying by business groups, which argued that the requirement singled out contractors, was unduly burdensome and was so big that it would overwhelm the government system. Randel K. Johnson, vice president and spokesman for the U.S. Chamber of Commerce, said that the Bush administration “had been responsive to a substantial amount of business concerns,” particularly by limiting the rule to large contractors, but that the chamber is reviewing its legal options.

Posted on August 26, 2008 by Robert A. Kraft

An article today in the Dallas Morning News details the opinions of the owner of Pilgrim’s Pride poultry company regarding our immigration laws.Here are excerpts:

Poultry mogul Lonnie “Bo” Pilgrim on Monday called for an overhaul of the nation’s immigration laws.

“We have to rise up and do something,” the 80-year-old co-founder of Pilgrim’s Pride Corp. said at a gathering of Texas employers. “Every individual, all 300 million of us, every man, woman and child, is touched by this issue. We all have to have food. We all have to have shelter. And America doesn’t have the labor to support the economy.”

More than 300 workers at Pilgrim’s Pride’s plants in Mount Pleasant, Texas, and four other locations were arrested in April by immigration officers as part of an investigation into identity fraud. The sweep illustrated a switch in tactics in which the government uses criminal law to prosecute illegal immigrants. In that law enforcement action, Pilgrim’s Pride, based in Pittsburg, Texas, wasn’t charged.

Posted on August 26, 2008 by Robert A. Kraft

That’s not simply my opinion, but the title of a recent Dallas Morning News editorial. If we don’t make major changes to our immigration laws soon we will fall behind (some would say further behind) the rest of the industrialized world in technical research and engineering. Here is the editorial:

When it comes to U.S. exports, big-ticket items like cars and aircraft come to mind. But America’s No. 1 export is actually the tiny semiconductor. It’s what creates thousands of jobs here and helps make Texas the top exporting state in the country.

Other nations are doing their best to take over our lead. They’re trying to lure away the scholars, scientists and engineers whose research and innovation give America its competitive edge. A large percentage of these experts are foreign citizens who must endure the painstakingly slow process of obtaining permits to study and work here.

To eliminate any confusion, we’re talking about legal immigrants, who are doing everything by the book – not the millions of illegal immigrants dominating the agenda in Washington. Highly skilled foreigners should be at the front of the line for the coveted “green card” that grants them permanent residency and work rights. But only 140,000 qualify because of annual limits Congress set in 1990.

Some highly skilled immigrants have had to wait up to 10 years to get their green cards. During that wait, they cannot move or be promoted. Their families live in limbo. More and more, countries in Europe and Asia are capitalizing on their frustrations and luring them away with offers of high pay and minimal visa hassles.

America’s antiquated green card policy is driving one of our most precious assets – scientific and technological expertise – into the welcoming hands of our competitors. That’s insanity.

Three bills with bipartisan sponsorship are awaiting a vote this fall in Congress to expand quotas or exempt foreign-born employees with advanced science or technology degrees from the employment-based green card limit. It’s important that these measures pass without being drowned in the debate over illegal immigration.

CompeteAmerica, a 130-member alliance of employers, universities and trade associations, backs this legislation. One member of the alliance, Dallas-based Texas Instruments, employs more than 12,000 people in Texas – 800 of whom are foreigners in various stages of the green card waiting process.

TI staffing director Heidi Nagel says innovations by a single one of those employees can add millions of dollars to company revenue. That creates a multiplier effect, which can ripple positively through our economy. But if that foreign employee leaves, the positive effects move with him to another country.

The way America can maintain its edge is to retain, not drive away, its brightest talent. If Congress continues stalling, we might as well replace semiconductors with jobs on the list of our major exports.

55 percent The portion of engineering master’s degrees awarded by major Texas universities that went to foreign citizens   75 percent The portion of engineering Ph.D.s that went to foreign citizens from those same universities   30 percent The increase in skilled foreign talent being sought by Australia next year   30 to 90 days The waiting time planned by the European Union for skilled immigrants to obtain a new “blue card” work permit   10 years The waiting time some skilled immigrants must wait in the United States for a green card

SOURCES: American Association of Engineering Societies, CompeteAmerica

Posted on August 21, 2008 by Robert A. Kraft

You could qualify for an E-2 Treaty Investor Visa. First, the investor should be from a country that has a treaty of commerce and navigation or bilateral investment treaty with the U.S. Once the investor enters the U.S, the investor will be responsible for the development and administration of the investment enterprise in which he or she has invested, or is actively in the process of investing, a large sum of capital. To begin the process, the investor should be the majority owner in the investing company, specifically more than 50% owner. The investor has to show that the investment enterprise will have sufficient capital to guarantee jobs for U.S. citizens or residents of the U.S. Once the investment company ceases to exist, the investor will no longer be an E-2 visa holder and needs to immediately depart the U.S. Generally, E-2 visa holders are admitted for a 2 year period but are eligible for extensions.

If you need further information regarding the E-2 visa process, please call 214-999-9999.

Posted on August 21, 2008 by Robert A. Kraft

Usted puede calcificar para una Visa de Inversionista  (E-2 visa).  Primero que todo, el solicitante debe ser ciudadano de un país que mantiene un tratado de comercio con los Estados Unidos. El propósito de la visa es para que el solicitante entre a los Estados Unidos para desarrollar y administrar las operaciones de una empresa en la cual él o ella ha invertido, o está activo en el proceso de invertir, una suma de capital alta. Para empesar, el solicitante debe ser dueño de más del 50% de la compañía que ya existe o que se va a establecer en los Estados Unidos, o ser un empleado indispensable dentro de la compañía como por ejemplo ejecutivo o administrador. Tiene que demostrar que la compañía, en la cual invertirá, obtendrá ganancias suficientes para garantizar el empleo de trabajadores ciudadanos o residentes legales de los Estados Unidos.  Si el negocio deja de existir, el solicitante tiene que estar dispuesto de salir inmediatamente de los Estados Unidos. Generalmente, los solicitantes que obtengan una visa E-2, son admitidos por un periodo de 2 años, y se pueden obtener extensiones.

Si usted quiere más información sobre el proceso de la visa E-2, porfavor llame al 214-999-9999.

Posted on July 28, 2008 by Robert A. Kraft

An article in the New York Times reveals that the recent immigration raid in Postville, Iowa has exposed not only immigration violations, but also violations of child labor laws. This is a rather shocking example of how illegal aliens and their families are exploited in this country. Here are excerpts:

When federal immigration agents raided the kosher meatpacking plant here in May and rounded up 389 illegal immigrants, they found more than 20 under-age workers, some as young as 13.

Now those young immigrants have begun to tell investigators about their jobs. Some said they worked shifts of 12 hours or more, wielding razor-edged knives and saws to slice freshly killed beef. Some worked through the night, sometimes six nights a week.

At first, labor officials said the raid had disrupted federal and state investigations already under way at Agriprocessors Inc., the nation’s largest kosher plant. The raid has drawn criticism for what some see as harsh tactics against the immigrants, with little action taken against their employers.

But in the aftermath of the arrests, labor investigators have reaped a bounty of new evidence from the testimony of illegal immigrants, teenagers and adults, who were caught in the raid. In formal declarations, immigrants have described pervasive labor violations at the plant, testimony that could result in criminal charges for Agriprocessors executives, labor law experts said.

Out of work and facing deportation proceedings, many of the immigrants say they now have nothing to lose in speaking up about the conditions in the plant. They have told investigators that they were routinely put to work without safety training and were forced to work long shifts without overtime or rest time. Under-age workers said their bosses knew how young they were.

Because of the dangers of the work, it is illegal in Iowa for a company to employ anyone under 18 on the floor of a meatpacking plant.

So far, 297 illegal immigrants from the May raid have been convicted of document fraud and other criminal charges, and most were sentenced to five months in prison, after which they will be deported. Most of the young immigrants have been released from detention but remain in deportation proceedings. Ms. Parras Konrad said she will ask immigration authorities to grant them special four-year temporary visas, known as U visas, which are offered to immigrants who assist in law enforcement investigations. Mark Lauritsen, a vice president for the United Food and Commercial Workers Union, which has tried to organize the plant, said he remained skeptical. “They are the poster child for how a rogue company can exploit a broken immigration system,” Mr. Lauritsen said.

Posted on July 23, 2008 by Robert A. Kraft

Have you been issued an Employment Authorization Document (EAD) with a notation “Serves as I-512 Advance Parole”?  Please note that EAD cards serve specifically for employment authorization purposes and not for international travel. The foreign national should not travel outside the United States without an approved I-512 Advance Parole. If you have received an EAD card in error, call U.S. Citizenship & Immigration Services or visit USCIS.gov to obtain a replacement card as soon as possible.

Posted on July 21, 2008 by Robert A. Kraft

The Washington Post has a very good article today about the increasing effect of immigration enforcement raids on employers. I continue to believe that as more and more middle-level and upper-level managers are arrested, pressure will increase from Big Business for enactment of comprehensive immigration reform. There are probably tens of thousands of managers who are turning blind eyes to the hiring of illegal immigrants. They can’t and won’t all be arrested, but as more are, the rest are going to be running scared. This may decrease the hiring of illegal immigrants, which no one can legitimately complain about, but more importantly it may accelerate long-overdue reform. Please read the entire article. Here are excerpts from the article:

A three-year-old enforcement campaign against employers who knowingly hire illegal immigrants is increasingly resulting in arrests and criminal convictions, using evidence gathered by phone taps, undercover agents and prisoners who agree to serve as government witnesses.

But the crackdown’s relatively high costs and limited results are also fueling criticism. In an economy with more than 6 million companies and 8 million unauthorized workers, the corporate enforcement effort is still dwarfed by the high-profile raids that have sentenced thousands of illegal immigrants to prison time and deportation.

Stewart A. Baker, assistant secretary for policy at the Homeland Security Department, recently told immigration experts the disparity can be traced to ineffective policies that need to be addressed by Congress.

“Companies tell me, ‘We have an immigration system that allows us to hire illegal workers, legally,’ ” Baker said. Asked to defend President Bush’s track record, he said, “Why are employers not punished more often? Because the laws we have don’t really authorize that.”

In the first nine months of this fiscal year, U.S. Immigration and Customs Enforcement (ICE) made 937 criminal arrests at U.S. workplaces, more than 10 times as many as the 72 it arrested five years ago. Of those arrested this year, 99 were company supervisors, compared with 93 in 2007.

But Baker’s comments acknowledged criticism by labor union leaders, immigrant rights’ groups and Democrats about the limits of employer enforcement. His remarks also illuminate why the White House, Congress and some states have scrambled recently to adopt new steps to compel companies to identify illegal workers, and why such efforts will probably remain ineffective.

Political opposition from big business, labor and immigrant and civil rights interests has diluted immigration law for two decades, according to analysts in both parties.

“If you want law enforcement, you have to have laws that are enforceable,” said Doris M. Meissner, who headed the former Immigration and Naturalization Service under the Clinton administration. The 1986 law banning the hiring of illegal immigrants, she said, “has just been chronically flawed from the time it was passed.”

Raids against Swift packinghouses in six states in December 2006 highlight the administration’s strategy to seek criminal indictments and felony convictions against corporate violators. An earlier approach that relied on administrative fines and forfeitures was increasingly dismissed by executives as a cost of doing business.

Enforcement disparities were displayed vividly May 12 when ICE agents swept into an Agriprocessors Inc. kosher meatpacking plant in Postville, Iowa. They arrested 389 illegal workers; 270 were convicted within days in expedited court proceedings at a cattle fairgrounds; and many were sentenced to five months in prison, mostly on criminal document-fraud charges.

By contrast, ICE agents arrested two supervisors and issued an arrest warrant for a third man on July 3. The firm remains in operation.

Frank Sharry, executive director of America’s Voice, a newly formed group that promotes citizenship for the estimated 12 million illegal immigrants, said the raid shows the misdirected policy of criminalizing illegal immigration for workers while not shutting down the jobs “magnet” that lures them. Several critics, including a federal court interpreter who participated in the Agriprocessors hearings, said the government’s legal tactics are coercive and threaten defendants’ due process rights.

“There’s no question this administration is coddling unscrupulous employers while arresting undocumented immigrants in order to make their statistics look good,” Sharry said.

But he echoed Baker’s frustration at politicians who seek to look tough on immigration and yet do not provide effective law enforcement tools or address the nation’s labor needs and underground population. “The dysfunctional immigration system really is the fault of Congress, for failing to lead,” Sharry said.

Few expect the situation to change soon with this fall’s elections looming. Some GOP congressional campaigns are talking tough, but the party is wary of further alienating its traditional business base. Democrats in turn rely on labor and immigrant support, leading the House to propose a $40 billion DHS budget bill that would require ICE to prioritize $800 million in enforcement funding next year to deporting illegal immigrants with criminal records, not workers.

At a Georgetown Law School conference in May, Baker of DHS described a sense among voters that “both parties owed their base a kind of collusion of pretend enforcement of the immigration laws.” He added, “I can’t say that was completely misplaced skepticism.”

Posted on July 10, 2008 by Robert A. Kraft

Earlier this month, in Iowa, two supervisors at a kosher meatpacking plant where hundreds of illegal immigrants were rounded up in May were arrested on criminal immigration charges. I believe this is just the first of many such management arrests to come. Employers are not going to be able to continue to pretend that hundreds of unauthorized aliens got jobs at their plants without management being aware of the employees immigration status.

As managers higher up in the chain of command are arrested, I predict business owners will put increasing pressure on politicians for comprehensive immigration reform. Everyone knows the current system is broken. We just need some political courage to come up with an improved system.

Posted on July 7, 2008 by Robert A. Kraft

An article in the Dallas Morning News points out that more and more illegal immigrants are returning to their home countries because of the worsening U.S. economy. The jobs are not as plentiful and the pay is not as good as a couple of years ago. Of course increased enforcement of workplace immigration laws has contributed to the exodus, as has a growing sense among immigrants that U.S. immigration law reform is not going to happen anytime soon. Here are excerpts from the article:

According to Mexican consulate officials in Dallas, some 400 immigrant families have told them so far this year that they’re going back to Mexico and asked for transfer documents to enroll their children in Mexican schools.

Enrique Hubbard Urrea, Mexican consul general in Dallas, said it is impossible to track every Mexican who leaves the area. But he said the number asking for transfer documents at the consulate is on the rise.

In 2005, the consulate issued 162 such documents; in 2006 it was 199; and last year it was 270. At the current rate, more than twice as many people will leave this year as last, he said.

“There is no doubt the trend indicates that the number is growing,” Mr. Hubbard said.

And it isn’t happening only in Dallas. At the Mexican consulates in Chicago and Phoenix, too, the number of Mexican families applying for transfer documents for their children has increased.

According to informal surveys by the Mexican consulate in Dallas, most of those wanting to return to Mexico cite the sudden scarcity of jobs, fear of deportation and uncertainty about obtaining legal resident status any time soon.

 Mark López, associate director of the Pew Hispanic Center, said he has no reliable data about the number of immigrants returning to Mexico but is not surprised many are going.

“Lower-income people – obviously including immigrants – have been disproportionately affected by the economic downturn,” he said.

Two weeks ago, the Pew center said the unemployment rate among Hispanic immigrants reached 7.5 percent in the first quarter of 2008, compared with 5.5 percent during the same quarter of last year.

Posted on July 6, 2008 by Robert A. Kraft

Today’s New York Times has an excellent article about employers fighting tougher immigration laws. This is presenting a dilemma for certain politicians who want to appear tough on immigration but soft on big business. Most lawyers who are involved with immigration saw this impasse coming long ago —you just can’t have it both ways. Politicians can’t get illegal immigrants out of the country without cracking down on the employers who hire them. And now the politicians are going to have to choose between getting the votes of the tough-on-immigrants citizens or getting the donations of the we-need-employees business owners.

Posted on June 23, 2008 by Robert A. Kraft

The Dallas Morning News has an interesting op-ed piece today, written by the owner of a large Texas produce company. The gist is that many farmers are having to cut back on their production, or change the types of crops they grow, because of a shortage in farm laborers. He suggests we need immigration reform or we will have to begin importing our food from Mexico. Here are excerpts:

American farmers are living an unfolding labor crisis so much worse than a drought or a flood or a plague of locusts. But unlike those natural disasters, this one is entirely preventable, if we only had enough national leaders willing to act on common-sense solutions.

Instead, we’re getting nothing but “get tough” laws and regulations that will bring dangerous consequences.

While row crops like corn and wheat have been successfully mechanized, the fact is that hand labor is still critical to bringing in the harvest of wholesome fresh fruit, vegetables, milk and meat. More than 80 percent of the hired labor force bringing in the harvest is foreign born, and likely two-thirds to three-quarters does not have proper immigration status.

Despite this, America’s current dysfunctional immigration policy is one of “enforcement first, damn the consequences.” This approach is driving our food productivity out of the U.S., plain and simple.

Here in Texas, we have the third-largest labor-intensive agricultural sector in the country. What is happening to it? In a recent Texas A&M study and survey, 77 percent of responding growers reported that they are actively scaling back their business because of labor concerns.

This means planting less, harvesting less and switching to subsidized row crops rather than free-market crops like fruit and vegetables. Almost 30 percent reported moving at least some of their operations out of the country. Many more are considering that option.

As production leaves the U.S., the giant sucking sound will be the shriveling of our rural economies.

Our policymakers keep bringing us more of the same dangerous policies. This month, President Bush announced new rules forcing federal contractors and subcontractors to electronically verify the eligibility of their workforce. Only a handful of farms across America could meet this test. Yet the immigration restrictionists cheered loudly.

Will they be cheering when our military and school lunch programs are forced to buy fruit, vegetables and milk from other countries to feed our troops and our children?

A solution for the farm labor crisis cannot wait until a new president and Congress decide to revisit this toughest of issues. The cost of losing control of our food supply is too great

Posted on June 9, 2008 by Robert A. Kraft

The Associated Press is reporting that President Bush has signed an executive order requiring contractors and others who do business with the federal government to verify that their employees are working in the United States legally

The order says federal departments and agencies must require contractors to use an electronic system to verify that the workers are eligible to work in the U.S.

AP notes that this order comes as a worker verification bill has stalled in Congress.

The impact of this executive order could be enormous. There are tens of thousands of employers who “do business” with the government, including most hospitals and universities. Plus of course every company that deals with the Department of Defense. One big question unanswered for now is when the order goes into effect.

Posted on June 1, 2008 by Robert A. Kraft

The Houston Chronicle ran a thought-provoking article today titled Immigration raid spurs calls for action against employers. The point of the article is that if the government was serious about workplace enforcement, they would arrest officers and management, not just workers. In the recent Iowa raid, more than ⅓ of the employees were arrested and labeled as illegal immigrants. As the article quotes a New York congressman, “Is it not reasonable to assume that if over a third of the work force employed at this plant violated labor law in one form or another that management has to have some complicity in those violations?”

So will we continue to put on a show of hassling workers while we allow management to skate free? Or will we get serious about enforcement by sending some corporate officers to prison? Or, would it be smarter to just sit down and come up with a comprehensive immigration reform package that both political parties could agree to pass? Here are excerpts from the article:

After the biggest immigration raid in U.S. history, hundreds of workers have been sentenced but not one company official as yet faces any charges — something critics say is typical of a federal government that is tough on employees but easy on owners.

Worker advocates and lawmakers say the fact that nearly 400 workers were arrested in the May 12 raid at the Agriprocessors Inc. plant in Postville — or more than one-third of the total number of employees — proves that company officials must have known they were hiring illegal immigrants.

“Until we enforce our immigration laws equally against both employers and employees who break the law, we will continue to have a problem with immigration,” said U.S. Rep. Bruce Braley, an Iowa Democrat whose district borders Postville.

Such raids are designed to get headlines and make it appear that the federal government is cracking down on illegal immigration, said Frank Sharry, executive director of the immigration reform group America’s Voice. But he says even those who think enforcement is the answer can’t seriously believe the 12 million illegal immigrants in the U.S. can be arrested and deported.

“Even if you wanted to pursue an imbalanced enforcement-first strategy, the only thoughtful way to do it would be to go after employers, make examples of them and try to scare other employers into compliance,” he said. “They’re not doing that.”

Continue Reading…

Posted on May 25, 2008 by Robert A. Kraft

The Wall Street Journal ran an editorial a few days ago that I’m just getting around to reading. The subject is employment-related illegal immigration, and specifically the government’s E-Verify program. The Journal takes the very sensible position that the whole system is pretty much stupid.

The Journal makes the point that the only logical way to reduce legal immigration is to increase the opportunities for legal immigration. Otherwise, as long as there is a labor shortage in the United States, it will continue to be filled by workers coming to the country illegally. Here are excerpts:

Federal immigration officials raided an Iowa meatpacking plant this month in what is being called the largest operation of its kind in U.S. history. Nearly 400 of the plant’s 900 employees were arrested on immigration charges. Do you feel safer?

Ever since immigration reform died in Congress last year, the Bush Administration has made a show of stepping up enforcement. But do homeland security officials really have nothing better to do than raid businesses that hire willing workers – especially in states like Iowa, where the jobless rate is 3.5%? These immigrants are obviously responding to a labor shortage for certain jobs. Giving them a legal way to enter the country would free up homeland security money and manpower to focus on real threats.

The Secure America Through Verification and Enforcement Act (SAVE) was introduced by Heath Shuler, a North Carolina Democrat. The bill does nothing to increase legal immigration, which is the only realistic way to decrease illegal immigration. Instead, it throws more money at a mandatory employment verification system (E-Verify) for the nation’s six million employers.

This political theater notwithstanding, the SAVE Act deserves to die on the merits. E-Verify is pitched as a check on undocumented workers. But this law would require that every worker in the country run this new verification gauntlet to change jobs.

E-Verify is currently a voluntary pilot program for new workers. About 50,000 employers use it, and studies have revealed problems galore, partly because the Social Security Administration (SSA) database on which it relies contains an error rate of around 4%. With about 55 million new hires in the U.S. annually, a 4% error rate means erroneously flagging some two million people each year. They would then have to visit their local SSA office to prove in person that they have permission to work in their native land.

Keep in mind that the SSA isn’t exactly a model of speed and efficiency. By its own admission 50% of calls to branch offices and 25% to the 1-800 number aren’t even answered. And what of calls that do get through? It currently takes, on average, more than 500 days to get a decision on a disability appeal. Even if E-Verify were ready for prime time, there’s little chance it would reduce illegal immigration. As the CBO analysis concluded, an employment verification mandate is more likely to drive illegal aliens – most of whom now work on the books – into the underground economy, not out of the country.

It’s also easy to lose perspective. Restrictionists insist that we’re in the middle of an illegal alien “crisis.” Yet illegal immigrant workers in the U.S. number about seven million, which is less than 5% of an overall workforce of 145 million people. Is this problem really big enough to justify a centralized federal government file on every U.S. worker?

Posted on March 26, 2008 by Robert A. Kraft

The Washington Post published a good editorial yesterday lamenting the nation’s H-1B visa crisis, and proposed an interesting solution. Here are excerpts:

April’s just around the corner, and that means it’s H-1B preparation time once again. H-1Bs, which are visas for skilled foreign workers, are capped at 65,000, with another 20,000 given to foreign alumni of U.S. postgraduate programs. Last year, the cap was reached within hours on the first day that the U.S. Bureau of Citizenship and Immigration Services began accepting applications. Because a bachelor’s degree is required for these applications, most foreign graduates from the class of 2007 were among the tens of thousands who were shut out of the process. If nothing changes, America will miss out on another crop of talent this year.

H-1B visas are reserved for the world’s best and brightest, and barring their entry is economic self-sabotage. The cap keeps out doctors, engineers and other specialists — people who save lives and often create jobs for others in America. One need only look at the national origins of founders of companies such as Google and Sun Microsystems to realize that foreign talent has helped keep the U.S. economy on the cutting edge. These are talents the United States has been struggling to grow at home, given that more than a third of all science and engineering doctorates awarded in the United States go to foreign students (for whom the number of visas is not capped), according to the National Science Foundation.

The H-1B visa cap was set well before the tech boom and so does not reflect current needs. It was raised temporarily in 1999, but that increase was allowed to lapse a few years later. Since last year’s debacle, there have been congressional attempts to increase the cap, but these have been held up by the political sensitivities surrounding immigration reform, and in particular reforms aimed at illegal and unskilled workers. Because lawmakers lack the political will to keep the world’s talent in America, companies are following it overseas, setting up shop in Canada, India, Eastern Europe and other areas where the skills they need are plentiful. As a result, investment and jobs are being shipped abroad.

One solution that may be less politically inflammatory would be to recapture H-1B visas that Congress has already approved but that went unused during the post-Sept. 11 economic downturn. About 300,000 surplus visas could be doled out over the next several years to provide a short-term fix to the current shortage and could perhaps include an additional fee — which employers would pay — to create more revenue. A long-term solution is still necessary. Allowing the cap to stay so low effectively exiles not only the world’s best and brightest but also the U.S. companies that employ them.

Posted on March 23, 2008 by Robert A. Kraft

The Wall Street Journal published an interesting editorial a few days ago about the need for increasing the number of H-1B visas allowable each year. Here are excerpts:

Bill Gates appeared before Congress again last week to make a simple point to simpler pols: The ridiculously low annual cap on H-1B visas for foreign professionals is undermining the ability of U.S. companies to compete in a global marketplace. “Congress’s failure to pass high-skill immigration reform has exacerbated an already grave situation,” said the Microsoft chairman. “The current base cap of 65,000 H-1B visas is arbitrarily set and bears no relation to the U.S. economy’s demand for skilled workers.” The Labor Department projects that by 2014 there will be more than two million job openings in science, technology, engineering and math fields. But the number of Americans graduating with degrees in those disciplines is falling. Meanwhile, visa quotas make it increasingly difficult for U.S. companies to hire foreign-born graduates of our own universities. Last year, as in prior years, the supply of H-1B visas was exhausted on the first day petitions could be filed. Mr. Gates said his software company exemplifies this phenomenon. “Microsoft has found that for every H-1B hire we make, we add on average four additional employees to support them in various capacities,” he told lawmakers. “If we increase the number of H-1B visas that are available to U.S. companies, employment of U.S. nationals would likely grow as well.” The preponderance of evidence continues to show that businesses are having difficulty filling skilled positions in the U.S. By blocking their access to foreign talent, Congress isn’t protecting U.S. jobs but is providing incentives to outsource. If lawmakers can’t bring themselves to eliminate the H-1B visa cap, they might at least raise it to a level that doesn’t handicap U.S. companies.

Posted on February 18, 2008 by Robert A. Kraft

An employment-based category is available for an individual who has already invested or plans to invest in a new commercial enterprise employing at least 10 full-time workers. This category allows such an investor to obtain permanent residency within a year.

In order to qualify as an investor, the foreign national must meet certain requirements as provided in the regulations.

First, the investor must invest or be actively in the process of investing at least $1,000,000 in the enterprise. The enterprise may be in the form of creating an original business, or purchasing an existing business and simultaneously or subsequently restructuring or reorganizing the business such that a new commercial enterprise results, or expanding an existing business by 140 percent of the pre-investment number of jobs or net worth, or retaining all existing jobs in a troubled business that has lost 20 percent of its net worth over the past 12 to 24 months. Instead of investing $1,000,000, the investor may opt to invest at least $500,000 where the investment is being made in a “targeted employment area,” which is an area that has experienced unemployment of at least 150 per cent of the national average rate, or a rural area as designated by the Office of Management and Budget.

The source of funds must be obtained through lawful means, and the capital may be in the form of cash, equipment, inventory, certificates of deposit, treasury bonds, or other instruments that can be converted readily into cash. Since the rationale behind this category is to benefit the economy of the United States, the new commercial enterprise must create full-time employment for not fewer than 10 qualified individuals, or maintain the number of existing employees at no less than the pre-investment level for a period of at least two years, where the capital investment is being made in a “troubled business,” which is a business that has been in existence for at least two years and that has lost 20 percent of its net worth over the past 12 to 24 months. The investor must be active in the new commercial enterprise, and this requirement could be accomplished by participating in the day-to-day managerial control.

Once the above documentation is gathered, the foreign investor must file, on his or her own behalf, an Immigrant Petition by Alien Entrepreneur on Form I-526, with the Immigration Service. Once the petition is approved, the foreign national will go to the U.S. consulate in his or her country of residence, and will file an application for an immigrant visa. The foreign national will thereafter receive conditional residency. Conditional residency is the same as permanent residency, but it is used to deter visa fraud. The difference between conditional and permanent residency is that after a year and nine months, the investor has to file another petition to remove entrepreneur conditions on Form I-829. The petition is accompanied with supporting documentation of the aforementioned documents. Once the conditions are removed, the investor will become a permanent resident. After five years of being a permanent resident, the foreign national can apply for U.S. citizenship.

Please call us at 214-999-9999 for more information on how to obtain permanent residency for Investors.

Posted on February 14, 2008 by Robert A. Kraft

The Dallas Morning News today has a very interesting story about Oklahoma’s tough anti-illegal-immigrant laws, and how those laws may provide templates for other states to follow. The article also notes several downsides of the tough laws, and emphasizes that while such laws might work in Oklahoma, a state with an estimated 7% Hispanic population, the situation would be much different in Texas, with an estimated 36% Hispanic population. Here are excerpts:

Welcome to the nation’s laboratory for a crackdown on illegal immigration. Last year, Oklahoma’s Legislature passed, by huge margins, the nation’s toughest law on illegal immigrants, making it a felony to harbor, transport, shelter or conceal undocumented immigrants.

This summer, the same law also will allow U.S. citizens to sue employers if they think they were fired in favor of illegal workers. Employers in the state say they already see the results: “A total lack of workers,” said Doug Forrest, a Tulsa site-preparation contractor and golf course builder. “This is potentially sending our state into a recession.”

Proponents of the law don’t see such economic harm.

Meanwhile, some Texas lawmakers are already promising bills that mirror Oklahoma’s House Bill 1804.

State Rep. Leo Berman, R-Tyler, said the Oklahoma measure has proved that even as Congress deadlocks on immigration, a state can protect itself against what he calls threats to public health and safety posed by a porous border.

“You don’t have to round up 20 million illegal aliens,” Mr. Berman said. “Stop the two free benefits you’re giving them – free health care and a free education – and they’ll go back across the Rio Grande.”

In December, Oklahoma Treasurer Scott Meacham said “some short-run pain” to that state’s economy might occur, if reports of temporary labor shortages in construction, agriculture and oilfield services industries proved severe and long-lasting.

The U.S. Chamber of Commerce and several Oklahoma business groups recently sued to overturn the law, saying it improperly steps on federal government turf.

Only one group has tried to track the law’s effects on population. The Greater Tulsa Hispanic Chamber of Commerce, after checking with schools, churches, and bus lines with service to Mexico, estimated that between 15,000 and 25,000 illegal immigrants have left Tulsa County since the law was passed.

Several Christian denominations have said they’ll continue to urge parishioners to aid strangers, even though the law threatens those who transport or shelter “aliens” with at least one year in prison and/or at least a $1,000 fine.

In November, messengers to the annual meeting of the Baptist General Convention of Oklahoma passed a resolution saying the law “will not change their ministry to any people,” according to the Southern Baptist group’s Web site.

Last year, the Oklahoma Legislature passed a law that:

•Restricts illegal immigrants’ access to driver’s licenses and ID cards.

•Cuts off several forms of public assistance for illegal immigrants. Emergency medical care, disaster aid and certain immunizations are exempted.

•Makes it harder for illegal immigrants to pay in-state college tuition.

•Encourages state and local law enforcement to enforce federal immigration law.

•Makes it a felony to harbor, transport, conceal or shelter illegal immigrants.

•Requires state and local governments to use a federal database that allows them to check potential employees’ work eligibility.

•Starting this summer, private employers and government contractors will have to verify employment eligibility of all new hires. Employers who don’t could be sued.

This year, Oklahoma lawmakers are considering bills that would:

•Designate English as the state’s official language.

•Let law enforcement seize the property of those who transport, hire or rent to illegal immigrants.

•Make public schools report how many illegal-immigrant children are enrolled.

•Repeal last year’s law.

•Repeal all of last year’s law, except for its ban on most public benefits.

Posted on February 14, 2008 by Robert A. Kraft

The O visa is a temporary visa designed for foreign nationals with extraordinary ability in the sciences, arts, education, business, athletics, or motion picture or television production, which has been demonstrated by sustained national and international achievements. The O visa allows these individuals to come to the United States to work for a U.S. employer in their areas of expertise.

To qualify for an O visa in “science, education, business or athletics,” the foreign national must be one of the small percentage who have risen to the top of his or her field. Documentation may include three of the following:

  • receipts of national or international awards in their field such as the Nobel Prize or other distinguished award;
  • membership in organizations that require outstanding achievement;
  • published materials about the foreign national;
  • original scientific work of major significance in foreign national’s field;
  • evidence that the foreign national has been employed in a critical or essential capacity at an organization that has a distinguished reputation;
  • evidence that the foreign national has commanded or will command a high salary
  • letters of recommendation from experts in the field.

The U.S. employer will file a petition with the Citizenship & Immigration Services along with evidence illustrating the foreign national’s extraordinary ability. Once the petition is approved, the foreign national may obtain the O visa at the U.S. consulate or embassy in their country of residence. Spouses and unmarried minor children may accompany the O visa holder but are unable to work in the United States. Since the O visa is temporary, it is issued initially for three years and may be extended in one year increments. The O visa allows the individual to apply for permanent residency.

If you meet the extraordinary ability requirements outlined above, please contact us at 214-999-9999.

Posted on February 13, 2008 by Robert A. Kraft

The March 2008 Visa Bulletin is available at the State Department, but still shows no availability of visas for employment-based second-preference for citizens of India. 

Posted on February 13, 2008 by Robert A. Kraft

The Citizenship and Immigration Services has come up with a means of expediting certain green card applications. While it makes good sense to me, many people are objecting to the new procedure based on national security concerns. In a nutshell, CIS is proposing to approve applications if they have been pending more than six months and are awaiting only the FBI background check. The reason for the change is that some FBI checks are taking literally years to complete. Here are excerpts from an article about this in the New York Times:

Searching for ways to reduce a huge backlog of visa applications, immigration authorities have eased requirements for background checks by the F.B.I. of immigrants seeking to become permanent United States residents, federal officials said Monday.

If an immigrant’s application for a residence visa has been in the system for more than six months and the only missing piece is a name check by the F.B.I., immigration officers will now be allowed to approve the application, according to a memorandum posted Monday on the Web site of the federal Citizenship and Immigration Services agency.

The memorandum states that “in the unlikely event” that the F.B.I. name check turns up negative information about an immigrant after a residence visa has been granted, the authorities can cancel the visa and begin deportation proceedings.

Under the new policy, which was first reported by the McClatchy news service, immigrants applying for the permanent visas, which are known as green cards, will still be required to complete two other security checks: an F.B.I. criminal fingerprint check and a search in a federal criminal and anti-terrorist database known as Interagency Border Inspection Services.

The policy is intended to speed processing for tens of thousands of immigrants with no criminal records who are living in the United States and have been waiting for years for green cards because their names turned up matches in the F.B.I’s records. Often an immigrant’s name hits a match, immigration lawyers said, because the F.B.I. files include a vast range of names, including those of people mentioned in criminal investigations, even if they had no role in a crime. F.B.I. agents must investigate each name match by manual searches of voluminous records.

Some critics said the agency would be cutting security corners and bending federal law.

“They are knowingly granting a benefit to a person who may be a national security threat or a serious criminal,” said Rosemary Jenks, director of government relations for NumbersUSA, an organization that favors reduced immigration.

“These are people who are asking permission to stay in this country permanently,” Ms. Jenks said, “and we have a right to make sure we know who they are. If it takes a few extra months, so be it.”

Posted on February 7, 2008 by Robert A. Kraft

The Immigration and Nationality Act of 1952, as amended (INA), stipulates that physicians who have entered the United States to undertake a J-1 graduate medical training or education program are uniformly subject to the obligation to return to their home country or country of last residence for a period of two years. INA §212(e). J-1 visa holders are eligible for waiver of the two-year home residence requirement based upon exceptional hardship to a U.S. citizen or permanent resident spouse or child. INA §212(e). There are three other bases for filing a waiver to the two-year foreign residency requirement, but this discussion will be on the exceptional hardship waiver.

In determining a hardship waiver, exceptional hardship must be shown with respect to the U.S. citizen spouse or child in the event they remain in the United States and the foreign spouse returns to the home country. The applicant must also show hardship if the spouse or child accompany the foreign national abroad for two years.

Factors considered to form the basis of exceptional hardship include where the U.S. citizen spouse would be required to interrupt a professional career, suffer unemployment and separation of family.The country conditions to which the exchange visitor and the U.S. citizen or resident spouse would return must also be considered, particularly where they are shown to impact psychological and physical health. Other factors are considered to form the basis of a finding of exceptional hardship as well.

For example, where it is shown that the citizen spouse would suffer adverse consequences to their medical studies by the departure of their J-1 spouse, and that their career would be set back if he or she were either to interrupt their education or attempt to continue their studies in the spouse’s country. Similarly, the threat of disruption of the education of an exchange visitor’s spouse would constitute sufficient hardship to justify granting the waiver. In evaluating a claim of exceptional hardship, evidence of the disruption of the career or of the education of the U.S. citizen or resident spouse will be considered, along with other relevant factors mentioned above.

To learn more about waivers to the two-year foreign residency requirement, please call us at 214-999-9999.

Posted on February 5, 2008 by Robert A. Kraft

Foreign nationals who do not have a valid immigrant visa and wish to travel multiple times outside the United States will need permission to re-enter the United States. An individual who filed an adjustment of status (AOS) application will need a travel document (advance parole) to re-enter the United States. If the AOS application is pending, the foreign national should submit form I-131 Travel Document Application prior to departure. Otherwise, if the foreign national leaves the United States while the AOS application is pending, the application will be deemed abandoned and the AOS application will eventually be denied.

Be aware travelers, in order to avoid the termination of a pending AOS application, it is imperative to apply for Advance Parole prior to leaving the United States. An advance parole is approved within 90 days and is valid for multiple trips throughout one year. Of course, once the foreign national receives his or her green card, an advance parole is no longer needed.

Please note there are certain foreign nationals who may not apply for advance parole. An advance parole document is not available for individuals in the United States illegally, under removal proceedings, or who are exchange foreign nationals subject to the residency requirement.

Please contact us to learn more about Advance Parole and the information needed to apply for an Advance Parole.

Posted on February 4, 2008 by Robert A. Kraft

The Dallas Morning News reports today that tougher anti-immigrant laws in nearby states are encouraging immigrants (legal and illegal) to move to Texas. Depending on your point of view, this is either bad for Texas taxpayers or good for Texas businesses. We’re getting a lot of new labor into the Texas market, but for those who believe immigrants are a drain on state-provided services, it’s not a positive development. I’m not one of those people, so I welcome the new residents. Here are excerpts:

Illegal immigrants are coming into Texas, but not from where most people think.

The rush is coming from Oklahoma, Arizona and other states, places that have recently passed tough new anti-illegal immigrant laws.

The Oklahoma statute, which took effect in November, makes it a crime to transport, harbor or hire illegal immigrants. Effective Jan. 1, the Arizona law suspends the business license of employers who knowingly hire illegal immigrants. On a second offense, the license is revoked.

In Tulsa, Okla., the Hispanic Chamber of Commerce has estimated that 15,000 to 25,000 illegal immigrants have left the area. One builder estimated that 30 percent of the Hispanic workforce left Tulsa.

“There’s been a tremendous impact in Oklahoma City,” said David Castillo, the executive director of the Greater Oklahoma City Hispanic Chamber of Commerce. “We’ve had several companies close shop and leave the state. Banks have called us and say they’re closing 30 accounts per week.”

Enrique Hubbard, Mexico’s consul general in Dallas, said a dozen Mexican families from Oklahoma have applied for consular documents listing their new homes in the Dallas area. He expects more to arrive because jobs are available in North Texas.

Texas’ reputation as a welcoming destination has experts predicting more immigrants will come to Houston and other cities in the state. Texas has not passed any statewide law targeting the employment of undocumented workers.

Posted on January 23, 2008 by Robert A. Kraft

U.S. companies wanting to bring foreign nationals into the United States to perform agricultural labor or services of a temporary or seasonal nature may do so by demonstrating that no U.S. worker is willing, able, qualified, and readily available to perform such service or labor. Under the H-2A program, a U.S. employer must conduct serious recruitment, such as placing a job opening with the State Workforce Agency, and advertising in a newspaper of general circulation in the area of employment. After the recruitment period establishes that there are no U.S. workers capable of performing such agricultural service, and that the employment of the foreign nationals will not adversely affect the wages and working conditions of similarly employed U.S. workers, the employer will file a labor certification with the Department of Labor (DOL).

Once the DOL grants the labor certification, a petition for the foreign national to perform the agricultural labor/services of a temporary or seasonal nature is filed with the U.S. Citizenship and Immigration Services. An approved petition is then forwarded to the U.S. Consulate where the worker applied for the visa.

An H-2A visa is granted for up to a year and may be extended once for two years, for a maximum of three years. If you need more information regarding H-2A visas, please contact us at 214-999-9999.

Posted on January 14, 2008 by Robert A. Kraft

A U.S employer (typically a university or hospital) that desires to employ a professor or researcher who is “outstanding” in an academic field may file an employment-based petition. To qualify as a “priority worker – outstanding professor or researcher,” an individual must meet each of the following evidentiary requirements set out in 8 CFR §204.5(i)(3) and 8 CFR §204.5(g).

A.   Evidence that the individual is recognized internationally
       as outstanding in the academic field;

B.   Evidence that the alien has at least three years of experience in teaching
       and/or research in the academic field;

C.  Provide an offer of employment from a prospective U.S. employer;

D.  Evidence that the U.S. employer is able to pay the proffered wages to the
individual.

Under 8 CFR §204.5(i)(3)(i), evidence that the individual is recognized internationally as outstanding in the academic field shall consist of at least two of the following:

* receipt of major, international prizes, awards, and recognition for the individual’s scholarly achievement;* memberships in associations which require outstanding achievements;* published material in professional publications written by others about the individual’s work in the academic field;* evidence of participation as the judge of the work of others in the same or an allied academic field;* evidence of original or scientific or scholarly research contributions to the academic field which have received worldwide recognition in the field ; or

* evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field.

If a foreign national satisfies these requirements as set forth in the regulations, and upon approval of the petition, the foreign national will be able to adjust their status to a lawful permanent resident.  Please do not hesitate to call us at 214-999-9999 and learn more about the outstanding researcher process.

Posted on January 12, 2008 by Robert A. Kraft

This information is excerpted from the U.S. government’s Social Security Administration Web site, and explains to non-citizens how they can legally obtain Social Security numbers. For more detailed information visit the SSA Web site.

How do I apply for a Social Security number and card?
In general, only noncitizens who have permission to work from the Department of Homeland Security (DHS) can apply for a Social Security number. To apply for a Social Security number:

Complete an Application For A Social Security Card (Form SS-5); and show us original documents proving your: Immigration status; Work eligibility; Age; and Identity. Then, take your completed application and original documents to your local Social Security office.

Immigration status
To prove your U.S. immigration status, you must show us the current U.S. immigration document, I-94, Arrival/Departure Record, issued to you when you arrived in the United States. If you are an F-1 or M-1 student, you also must show us your I-20, Certificate of Eligibility for Nonimmigrant Student Status. If you are a J-1 or J-2 exchange visitor, you must show us your DS-2019, Certificate of Eligibility for Exchange Visitor Status.

Work eligibility
For most foreign workers, we only need to see your I-94, Arrival/Departure Record. Some foreign workers also must show their work permits from DHS (I-766 or I-688B). International students must present further documentation. For more information, see International Students And Social Security Numbers (Publication No. 05-10181).

What can you do if you need a number for tax purposes?
If you need a number for tax purposes and you are not authorized to work in the U.S., you can apply for an Individual Taxpayer Identification Number from the Internal Revenue Service (IRS). Visit IRS in person or call the IRS toll-free number, 1-800-TAXFORM (1-800-829-3676), and request Form W-7, Application For An Individual Taxpayer Identification Number.

Do you need a number for other government services?
Lawfully admitted noncitizens can get many benefits and services without having a Social Security number. You do not need a number to purchase savings bonds, conduct business with a bank, register for school or apply for educational tests, obtain private health insurance, apply for school lunch programs or apply for subsidized housing.

Posted on January 10, 2008 by Robert A. Kraft

From the February 2008 Visa Bulletin comes this sad and disappointing notice:

INDIA EMPLOYMENT SECOND PREFERENCE HAS BECOME “UNAVAILABLE”   

Despite two retrogressions of the India Employment Second preference cut-off date, demand for numbers by CIS Offices for adjustment of status cases has remained extremely high in recent months.  As a result the annual limit for the India Employment Second preference category has been reached, and the category has become “unavailable” effective immediately.

Posted on January 8, 2008 by Robert A. Kraft

H-1B visas are work visas that allow foreign nationals to temporarily work in the United States for a U.S. employer.  A U.S. employer may petition a foreign national under the H-1B classification that specifically applies to individuals in a “specialty occupation.” A specialty occupation has three requirements. First, an individual must have a bachelor’s degree or higher degree or its equivalent for the particular position. Second, the degree is common in the industry among similar organizations. Third, the employer normally requires a degree or equivalent; or the nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with attainment of the degree. 

Individuals with H-1B visas are allowed to work in the United States for up to six years, but visas are granted in three year increments. In some cases, the H-1B visas may be extended for more than six years. If the individual is in the United States, a change of status to an H-1B is filed in the United States. If the individual is outside the United States, upon approval of the petition, the individual must apply for an H-1B visa at the U.S. consulate. There are only 65,000 H-1B visas issued per year. The fiscal year for 2008 reached its cap on the very first day cases were accepted for filing (April 1, 2007).

The beginning of the fiscal year for 2009 is October 1, 2008.  Employers may begin filing their petitions six months prior to the start date of employment but the individuals can not start their job until October 1.   

It is vital for those individuals wishing to work in the United States to begin preparing their H-1B paperwork before the cap is reached. Please call us at 214-999-9999 if you would like more information on beginning the H-1B process.

Posted on January 7, 2008 by Robert A. Kraft

Unfortunately for those employers who can’t find U.S. citizen workers for non-agricultural temporary employment, the government has announced that the quota has already been reached for H-2B workers for the second half of fiscal year 2008. This means that no one else will be allowed to apply for jobs in the United States if the starting date of employment is before October 1, 2008.

This is further evidence that the artificial caps for H-1B and H-2B visas are long overdue for increases. The caps haven’t changed in many years, despite the growth in the U.S. economy. Any employers hoping for worker visas for jobs beginning after October 1, 2008, better get ready to start the process.

Here is the announcement from USCIS:

–U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of petitions to reach the congressionally mandated H-2B cap for the second half of Fiscal Year 2008 (FY2008). USCIS is hereby notifying the public that January 2, 2008 is the “final receipt date” for new H-2B worker petitions requesting employment start dates prior to October 1, 2008. The “final receipt date” is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 33,000 H-2B workers for the second half of FY2008.

The cap was reached with existing totals for that day. USCIS will reject petitions for new H-2B workers seeking employment start dates prior to October 1, 2008 that arrive after January 2, 2008. USCIS will apply a computer-generated random selection process to all petitions which are subject to the cap and were received on January 2, 2008. USCIS will use this process to select the number of petitions needed to meet the cap. USCIS will reject, and return the fee, for all cap-subject petitions not randomly selected. Petitions for workers who are currently in H-2B status do not count towards the congressionally mandated bi-annual H-2B cap. USCIS will continue to process petitions filed to:

  1. Extend the stay of a current H-2B worker in the United States;
  2. Change the terms of employment for current H-2B workers and extend their stay; or
  3. Allow current H-2B workers to change or add employers and extend their stay.

Posted on November 26, 2007 by Robert A. Kraft

The New York Times is reporting that the Bush administration is backing down from the announced policy of punishing employers who hire illegal immigrants. The proposed rule was to enforce so-called “no match” letters from the Social Security Administration by prosecuting employers who did not fire employees whose Social Security numbers did not match the database of the Social Security Administration. Here are excerpts from the New York Times article:

Instead, the administration plans to revise the rule to try to meet concerns raised by a federal judge and issue it again by late March, hoping to pass court scrutiny on the second try. The rule would have forced employers to fire workers within 90 days if their Social Security information could not be verified.

The government’s proposal was a response to an indefinite delay to the rule ordered Oct. 10 by the judge, Charles R. Breyer of Federal District Court in San Francisco. Judge Breyer found that the government had failed to follow proper procedures in issuing the rule and that it should have completed a survey of its impact on small business.

He also found that the Social Security database the government would use to verify workers’ status was full of errors, so the rule could lead to the dismissal of many thousands of workers who were American citizens or legal immigrants.

In a four-page motion filed Friday, the government, without acknowledging any flaws in the original rule, asked Judge Breyer to suspend the case so the Department of Homeland Security could rewrite the rule and conduct the small-business survey, which it expects to do by March 24. The government said that it wanted to “prevent the waste of judicial resources” and that it was confident the amended rule would “fully address the court’s concerns.”

The rule laid out procedures for employers to follow after receiving a notice from the Social Security Administration, known as a no-match letter, advising that an employee’s identity information did not match the agency’s records.

The employer would have had to fire an employee who could not provide verifiable information within 90 days, or face the risk of prosecution for knowingly hiring illegal immigrants. Those immigrants often present fake Social Security numbers when applying for jobs.

Judge Breyer also stopped Social Security from sending out about 141,000 no-match letters, covering more than eight million workers, which contained instructions from Homeland Security about the rule. Social Security sends the letters to clarify workers’ information so it can correctly credit taxes deducted from their wages.

Some businesses welcomed the rule because it clarified what they had to do to avoid immigration raids. But the labor unions cited a report from the inspector general of the Social Security Administration finding that 12.7 million of the records of United States citizens in the agency’s database contained errors that could lead to them being fired.

Posted on November 24, 2007 by Robert A. Kraft

Yesterday, USCIS issued a reminder to employers about the new I-9 form, which must be used beginning December 26, 2007. Here is the text of the reminder:

USCIS Reminds Employers to Transition to New

Employment Eligibility Verification Form by Dec. 26, 2007

WASHINGTON

–U.S. Citizenship and Immigration Services (USCIS) will announce in a Federal Register

(Rev. 06/05/07)N printed on the lower right corner of the form) which is now the only version valid for use. In that Nov. 7 announcement, USCIS explained that employers would have 30 days, beginning on the date the Federal Register notice is published, to transition to the revised form. Accordingly, effective Dec. 26, 2007, employers who fail to use the revised form will be subject to applicable penalties.

On Nov. 7, USCIS announced the availability of the revised version of Form I-9 (includes the revision date —

Both the revised form and the “Handbook for Employers, Instructions for Completing the Form I-9” are available online at www.uscis.gov. To order forms, call USCIS toll-free at (800) 870-3676. For forms and information on immigration laws, regulations, and procedures, call the National Customer Service Center at 1-800-375-5283.

Posted on November 11, 2007 by Robert A. Kraft

For the first time in 16 years, the Federal Government has made major changes to the mandatory I-9 Immigration Form. All new employees must fill out these forms. The Department of Homeland Security has announced that the new I-9 form to verify new hire eligibility requirements will include changes that better reflect current employment eligibility verification requirements. Actually, on the revised form, the government has eliminated several documents from List A of the List of Acceptable Documents. These documents eliminated are the Certificate of U.S. Citizenship (Form N-560 or N-570), Certificate of Naturalization (Form N-550 or N-570), Alien Registration Receipt Card (Form I-151), the unexpired Reentry Permit (Form I-327), and the unexpired Refugee Travel Document (Form I-571).

USCIS has made available a 47 page I-9 handbook for employers. The handbook informs employers about the reasons for the I-9 form and gives instructions for proper completion of the form.

Posted on October 30, 2007 by Robert A. Kraft

The Dallas Morning News had an interesting article yesterday about the tech industry lobbying to raise the cap on H-1B visas. Here are a few excerpts:

High-tech workers here on federal permits are speaking out – many for the first time – over rules that leave them for years in personal and professional limbo.

After Congress failed to reform immigration laws for the second year in a row, hundreds of the largely India- and China-born workers protested this summer in Silicon Valley and Washington, D.C. They were frustrated that the divisive debate over illegal immigration had overwhelmed efforts at comprehensive immigration reform.

Legal immigrants who feel squeezed by limits on the number of green cards issued each year are trying to separate their complaints from the protests by illegal immigrants. And high-tech companies that say they can’t fill jobs because of a cap on skilled-worker visas have stepped up their long-standing plea for the cap to be raised.

The green card application system is akin to “indentured servitude,” said Kim Berry, president of the Programmers’ Guild, a group that opposes current work visa laws. “It takes years for the green card sponsorship to happen, and they can’t leave, can’t ask for a raise unless they want to lose their place in line.”

Applications for work-related green cards – limited to 140,000 each year, about 9,800 per sending country – are backlogged so deep that many immigrants must plod along for years, uncertain about their future in the United States and unable to change jobs while they wait for permanent residence.

And immigration officials resorted to a lottery for H1-B work visas this summer when businesses filed – on just the first day the government was accepting applications – double the number that could be considered the whole year. Three years ago, it took 10 months for businesses to fill the annual quota.

More than 1 million foreign nationals were in line for permanent residency in 2006. More than 500,000 came into the U.S. on H1-Bs, and the rest through family connections.

Microsoft Corp. was the third-largest sponsor of H1-B visas in the last federal fiscal year. But it still didn’t get all the foreign workers it wanted into the country. The company’s government affairs director said this was one motivation for Microsoft to open a new software development center in Canada.

“We currently do 85 percent of our development work in the U.S., and we’d like to continue doing that,” said Jack Krumholtz. “But if we can’t hire the developers we need … we’re going to have to look to other options to get the work done.”

About 8 percent of Mountain View-based Google Inc.’s employees currently work under H1-B visas. This year, the company posted 70 new foreign hires overseas when they couldn’t get visas. They’ll try again next year.

Smaller companies, which may need only one foreign worker, argue they suffer most under the visa cap because they don’t have the flexibility of the giants in the field.

Posted on October 2, 2007 by Robert A. Kraft

The New York Times is reporting today that federal judge Charles R. Breyer has extended for ten more days the tempovary delay in implementing the government’s no-match Social Security letter plans. Here are excerpts from the story:

The ban further delayed the start of a rule, which establishes steps an employer must follow after receiving a notice from the Social Security Administration, known as a no-match letter, reporting that an employee’s identity information does not match the agency’s records. According to the rule, originally scheduled to take effect Sept. 14, if the employee cannot clarify the mismatch within 90 days, the employer would be required to fire the worker or risk prosecution for knowingly hiring illegal immigrants. Those immigrants often provide false Social Security numbers when applying for jobs.

“It is clear to me at this point there would be irreparable harm to the plaintiffs,” Judge Breyer commented at the end of the hearing, rejecting the government’s main argument. “It just seems to me looking at it that this is a potentially enormous burden on the employer,” the judge said, adding that he would issue a ruling within 10 days.

The suit was brought by the American Civil Liberties Union, the A.F.L.-C.I.O. and several San Francisco labor organizations. They were joined by the United States Chamber of Commerce and several national small business associations.

In court documents, the business groups argued that the impact of the rule in terms of hiring and training office workers to comply with the new procedures and deadlines, and firing employees whose discrepancies were not resolved in time, would be “substantial, immediate and irreparable.”

The labor organizations said that Social Security’s records contained many errors that could lead to legal workers, including American citizens, being unjustly fired under the new rule.

The government countered that the rule did not represent any departure from current immigration laws or impose any new burdens on employers, but was designed to help employers by clarifying past confusion about what they had to do to comply with the law.

Posted on September 29, 2007 by Robert A. Kraft

At Kraft & Associates, we recently had an inquiry from a soldier who had just returned from Iraq. He had promised his Iraqi translator that he would try to help the translator gain entry into the United States.

We had to tell this good-hearted military man that the United States has been embarrassingly slow to admit any Iraqi citizens into our country, including those who risked their lives by helping our military. This year alone, Switzerland has accepted thousands of Iraqi refugees, while the United States has accepted only a few hundred, almost all of those in the past two months.

However, there may be something that can be done for these people. Depending on the exact situations and the eligibilities, they may be able to enter the U.S. as Special Immigrants. Translators for the U.S. Armed Forces may be eligible to enter the United States, and are protected under the National Defense Authorization Act.  To benefit from this act they must demonstrate the following:

  • National of Iraq or Afghanistan;
  • worked directly with U.S. Armed Forces as a translator for a period of at least 12 months;
  • obtained a favorable written recommendation from a general or flag officer in the chain of command;
  • cleared a background check and screening as determined by the general or flag officer before filing the petition; and
  • they are otherwise admissible except for 212(a)(4) (public charge)

They must file their petitions on form I-360.  The biggest hurdle to overcome is that there are only 50 visas available per year. Spouse and children may accompany or follow to join if the principal applicant is approved.

Posted on August 31, 2007 by Robert A. Kraft

The Associated Press is reporting tonight that a federal judge in San Francisco has put a temporary hold on the “no match” letters scheduled to be sent out by the Social Security Administration next week.

The ruling came in a lawsuit by the AFL-CIO, and another hearing on the issue is set for October 1, 2007. The U.S. District Judge making the ruling was Maxine Chesney.

Posted on August 23, 2007 by Robert A. Kraft

A columnist for the newspaper where I worked my way through college and law school has an interesting article today about the most recent immigration changes — the “no match” letters.

Rowland Nethaway says this continuing crackdown on illegal workers is going to damage the nation’s economy. Here are excerpts from his column:

WACO, Texas — If authorities continue to crack down on illegal workers, the full Congress will learn the need for comprehensive immigration reform.

The raids and arrests that have occurred so far have already had an economic impact on the nation’s agriculture industry.

Other segments of the economy can expect a sharp downturn as employers lose access to a valuable illegal immigrant workforce.

Unless Congress acts quickly to overhaul the nation’s dysfunctional immigration system, Americans can expect to experience a significant jump in prices at the grocery store.

The hit on American pocketbooks will not be limited to price hikes and shortages at the supermarket. Across the economy, many services will decline while direct costs will rise.

Evidently, not enough members of Congress play chess. Even beginning chess players know they must think several moves ahead to have any chance at winning.

Congress’ enforcement-only camp succeeded in shooting down a comprehensive immigration reform bill supported by President Bush and a bipartisan assemblage of Democrats and Republicans.

The legislation would have provided a method to legally match foreign workers with American employers.

In another example of being careful about what you ask for, immigration authorities have stepped up enforcement of long-ignored laws that make it illegal for U.S. employers to hire illegal immigrant workers.

Additionally, Homeland Security Secretary Michael Chertoff announced a new policy that requires employers to follow up on “no-match” letters from the Social Security Administration.

These letters will inform employers when the nine-digit sequence of numbers provided by their workers does not to match the Social Security database.

For years now, employers have known that nothing would happen to them when they wadded up and tossed these no-match letters into the nearest trash can.

Now, employers have been told that if they do not clear up mismatched Social Security numbers, then the identified workers must be fired or the employers will face fines up to $10,000, as well as possible criminal charges.

It’s been unlawful to hire illegal workers for decades. About the only time the immigration law has made news has been when a presidential nominee was discovered to have hired an illegal nanny.

Breaking the immigration law has been enough to disqualify a nominee from a plum government appointment, but not enough to motivate immigration authorities to enforce the law on employers across the nation.

Full enforcement of the new no-match requirement will only disrupt a fraction of illegal workers who can buy, borrow or steal valid Social Security numbers.

Also, the letters will only be sent to employers with at least 10 workers with mismatched Social Security numbers, and where those workers make up at least 0.5 percent of their workforce.

An estimated 75 percent of day laborers are illegal and undocumented. As a rule, no documents are requested and none are given. Many of these workers endure wage theft from unscrupulous employers.

Still, the recent baby steps that have been taken to enforce long-standing immigration laws have caused serious disruptions in the operations of many American businesses as word of the crackdowns has spread.

Early reports indicate that many farmers will produce only 50 percent of their normal crops due to the growing labor shortage.

In some cases, farmers have chosen to not plant due to the difficulty in finding workers to harvest the crops.

It is estimated that at least two-thirds of the workers in construction and agriculture are working illegally.

The enforcement-only critics who killed comprehensive immigration reform should have easily predicted this outcome. But they didn’t.

Rowland Nethaway writes for the Waco Tribune-Herald.

Posted on August 21, 2007 by Robert A. Kraft

As a result of the inability of Congress to enact workable immigration reform, the Bush Administration has announced plans to increase enforcement, placing employers in a difficult position. The Administration’s latest plan requires employers to resolve discrepancies between employee records and those of the Social Security Administration or the Department of Homeland Security. Once the employer has notice of a discrepancy in Social Security number or immigration status information from what is referred as a “no match” letter, the employer has 90 days to re-verify the information. If the employer is unable to correct the discrepancy within this time frame, the employer has the following two choices: (1) terminate the employment, or (2) continue the employment. If the employer chooses the first option and terminates the employment, he or she may be faced with lawsuits by employees. If the employer chooses the second option, he or she may be faced with severe civil and criminal sanctions from the Department of Homeland Security.Employers often receive “no match” letters for several reasons, such as clerical errors or failure to register a change of name after marriage. Both employers and employees can face bureaucratic delays in attempting to document and correct records. With this new enforcement plan employers will be made to jump through hoops, and employees could face potential termination as a result of these delays. These enforcement measures could have serious consequences on industries such as agriculture, hospitality, and construction.The construction and agriculture labor pool relies in significant part on undocumented or illegal immigrant labor. Nationwide, it is estimated that undocumented illegal workers number more than 12 million, with approximately 2.4 million of those workers employed in construction.American society continues to be redefined by immigration, but the modern illegal immigrant community faces different challenges than previous immigrant populations.After the terrorist attack of September 11, 2001, the U.S. government consolidated Immigration and Naturalization Services (now known as Citizenship and Immigration Services) with the Department of Homeland Security. As a result of the merger between these two agencies, there has been great emphasis on “tightening” America’s borders.There is now a greater focus on regulating the entry and conduct of undocumented illegal immigrants through the primary investigative department, Immigration and Customs Enforcement (ICE). Despite the economic and social reliance on undocumented laborers, Congress continues to introduce bills geared toward immigration enforcement rather than reform, having serious consequences for the industries that employ these immigrants.Potential employers of illegal immigrant laborers should closely monitor immigration reform and enforcement legislation as both could potentially pose severe punishments for such employers. The punishments may include prison sentences for employers who are repeat offenders, and/or fines of up to $10,000. Should such legislation take effect, it is likely that a national labor shortage may occur. The labor shortages in the affected industries would result in increased costs, strains and delays on local businesses as well as the community overall. Unfortunately, we may have to wait for at least the next two years for comprehensive immigration reform. As of now, with the enforcement-only approach immigrant employees and their employers are faced with a huge road block. Employees are unable to apply for legal status because no paths to legal status are available under the current system. Employers cannot find legal workers because no employment visas exist for such workers.

Enforcement-only legislation is not the answer. Congress needs to resume negotiations of comprehensive reforms that will secure our nations future by creating clear paths to lawful residence, providing new worker programs, eliminating backlogs in family immigration, assuring due process and protection of civil liberties while safeguarding our national security interests.

For more information about immigration news, immigration laws, immigration policies, proposed immigration laws, border enforcement, green cards, citizenship, employment visas, family visas, naturalization, and other immigration subjects, please visit Immigration Law Answers and DFW Immigration Law Blog.

Posted on July 19, 2007 by Robert A. Kraft

Immigrants, and immigration lawyers, are getting whiplash from trying to keep up with the government’s changing opinions on the latest visa bulletin. First they’re accepting all application, then they’re accepting in application, now — we’ll, who can say for sure?

The Washington Post had an article this week about the situation. Here are excerpts:

The government did an about-face Tuesday and announced it is accepting applications for green cards filed by skilled immigrant workers.

Citizenship and Immigration Services, a division of the Homeland Security Department, said in a news release it will accept the applications through Aug. 17. Applications already filed, which the agency planned to reject, also will be accepted.

The decision was good news for skilled immigrants.

We are pleased and elated. It’s very good to see a government agency see it’s made a mistake, acknowledge a mistake and fix a mistake,” said Crystal Williams, associate director for programs at the American Immigration Lawyers Association.

Every month the State Department announces how many visa numbers are available, which immigrants need to get in line for green cards or visas to enter the U.S. It can take years for some immigrants to get the numbers.

In June, the State Department said all eligible skilled workers could submit applications to become legal residents. But on July 2, it said the 60,000 available visa numbers were no longer available because Citizenship and Immigration Services had suddenly reduced its backlog of green card applications.

The about face resolves an immigration embarrassment that angered members of Congress and outraged workers and employers.

The process needs review, CIS Director Emilio Gonzalez said in a statement.

Posted on July 13, 2007 by Robert A. Kraft

An editorial this week in the Los Angeles Times details one of the reasons Microsoft has elected to build its new research center in Canada rather than in the United States. Excerpts from the editorial:

Microsoft [is] hiring several hundred software wizards to help develop new products. Instead of landing at the Redmond, Wash., mother ship, however, the new workers will toil in Vancouver, British Columbia. Here’s why, according to the company’s news release (emphasis added): “The Vancouver area is a global gateway with a diverse population, is close to Microsoft’s corporate offices in Redmond and allows the company to recruit and retain highly skilled people affected by immigration issues in the U.S.“Consider it just the latest in a series of monuments to the United States’ botched immigration policy, as well as a reminder of the Senate’s recent failure to pass a comprehensive fix despite bipartisan support. High-tech companies are so frustrated by the limits on visas for skilled labor that they’re not just opening offices in India and China to recruit local talent. They’re also putting facilities in places like Vancouver for prized recruits from around the world — many of them trained at U.S. universities — who cannot work here. The demand for H-1B visas for high-skilled immigrants has become so much greater than the supply that almost twice as many applications arrived in a single day as there were slots available for the year — 65,000, plus 20,000 for those with advanced degrees from U.S. schools. Other countries, by contrast, are starting to make it easier for skilled workers to immigrate. That’s because they’re focusing on the benefits those employees can bring to their economies, not the competition they present to native labor.

Many of these immigrants become the innovators and entrepreneurs who create companies, employ more people and create wealth. Just look at the U.S. experience — about 25% of all venture-capital-backed start-ups here were launched or co-founded by foreign nationals, including Yahoo, Google and EBay. The same benefits come from talented U.S. workers too, but not enough of them are pursuing science, math and engineering careers to fill the voracious demand at Microsoft and other high-tech powerhouses. A comprehensive fix to U.S. immigration policy is overdue, but failing that, Congress should at least adopt a more sensible approach to H-1B visas.

Posted on July 4, 2007 by Robert A. Kraft

The scandal/confusion regarding the latest Visa Bulletin has found its way into the New York Times today. Here are excerpts from the article:

Immigration lawyers raised unusually irate protests yesterday after the State Department and the immigration service abruptly withdrew tens of thousands of job-based visas they had offered last month to foreign professionals hoping to become permanent residents in the United States.

The outcry was provoked by a terse announcement on Monday in which the State Department said it would not grant any more visas for the 2007 fiscal year to foreigners applying to become permanent residents based on their job skills. That notice reversed one the department had issued on June 13 announcing a two-month window starting July 2 for aspiring, high-skilled immigrants from around the world to present applications for visas known as green cards.

The State Department said the 60,000 visas it had expected to offer would no longer be available because of “sudden backlog reduction efforts” by Citizenship and Immigration Services, the federal agency that processes applications for the visas offered by the department.

In a statement yesterday, the American Immigration Lawyers Association accused the two agencies of perpetrating a “hoax” and a “bait and switch” against hopeful legal immigrants who played by the book.

To apply, immigrants must undergo medical examinations and assemble documents to prove their job skills and show that a United States employer has sponsored them. Foreigners must be in the United States when they present their applications, which are processed on a first-come, first-served basis.

Because of backlogs for employment-based visas, foreigners have had to wait many years just to be allowed to file their applications.

Thousands of medical and technology professionals, including many working here on temporary visas, scrambled for weeks to get their documents together, in some cases canceling travel plans, in order to file their applications on Monday, the first day of the window. The State Department and the immigration agency closed the window without accepting a single application.

“I am concerned that such action may violate the law and could threaten the integrity of our immigration system,” Representative Zoe Lofgren, Democrat of California who is chairwoman of the House Judiciary subcommittee on immigration, wrote in letters yesterday to Michael Chertoff, the secretary of homeland security, and Condoleezza Rice, the secretary of state. Ms. Lofgren warned that the federal government could face costly litigation because of its change of course.

The State Department said it would begin accepting applications on Oct. 1 for 2008 visas. On July 30, the immigration agency will raise its processing fees by an average of 66 percent.

Posted on July 3, 2007 by Robert A. Kraft

Just a few weeks ago there was good news for all those who have been waiting for their priority date to become current in an employment-based immigration category. The Department of State announced in June that the July 2007 visa availability bulletin would show that all employment preference categories (except for Third “Other Workers” ) had been made “Current” for July. That meant that as of July 1, 2007, anyone who had been waiting to file an I-485 Application for Permanent Residency could do so.

In a stunning announcement yesterday, the Department of State revised the July visa bulletin to reflect that ALL available employment-based visas had been allocated for the fiscal year 2007. As a result, beginning yesterday, Immigration Services is rejecting applications to adjust status filed by aliens whose priority dates are not current under the revised July visa bulletin. This also means that it is highly unlikely that visas will be available until the start of the new fiscal year which begins on October 1, 2007.

For those who filed their I-140 Petitions and I-485 Applications concurrently, and enclosed separate filing fee checks, the I-140 and supporting documents will be accepted by Immigration Services for processing and the I-485 and supporting documents and applications will be rejected and returned to the applicant with the filing fee checks. All I-485 Applications filed (even those received by Immigration Services on Monday July 2, 2007, before the revised visa bulletin was issued) WILL be rejected.  Filing fee checks will be returned.

There has been a lot of speculation by several immigration attorneys and immigration rights groups in regards to filing a federal lawsuit against Immigration Services. With proof of delivery, proof of rejection by Immigration Services, and evidence that a complete application was submitted to Immigration Services in hand, many lawyers will recommend to their clients that they be plaintiffs in a lawsuit that will probably be filed by the American Immigration Law Foundation (AILF).  Those who were arguably entitled to file their I-485 applications (per the first July visa bulletin) but failed to do so, may not be eligible for a remedy. AILF’s Legal Action Center is preparing to litigate. Plaintiffs and class members whose applications were rejected or returned would have the strongest legal claims and have the strongest claims to benefit from a favorable result.

Posted on June 20, 2007 by Robert A. Kraft

We’ve written about the subject of updating addresses before, but we get this question asked so many times we’re going to revisit the situation.

On January 12, 2007, U.S. Citizenship and Immigration Services announced a new program that allows U.S. immigrants to update their addresses online. Currently, all non-citizens in the U.S. are required to keep Immigration Services updated as to their most current addresses. Immigration Services must be notified within ten days of any change in address. Previously, this was done either by calling USCIS or completing a change of address card (Form AR-11), which was mailed to USCIS.

USCIS now accepts change of address information online. This new service reduced processing times, since Immigration Services typically receives over one million change of address requests each year. Additionally, this new service is convenient and easy to use.

It is vital that you continually notify Immigration Services of any change in address. This is particularly important when you have filed an application or petition for a benefit under the Immigration and Nationality Act and expect notification of a decision on that application. In addition, the USCIS may need to contact you to provide other issued documents or return original copies of evidence you submitted.

You should include the following information in your change of address request:

* For the change of address Form AR-11, complete the information requested on the form, including present address, last address (most recent only), alien or registration number, country of citizenship, date of birth, and your signature.

* You do not need to include temporary addresses as long as you maintain your present address as your permanent residence and continue to receive mail there.

* When sending a change of address, you do not need to include numerous last addresses; only the most recent last address is needed.

* Be sure to also indicate in the appropriate block on the AR-11 your current employment and school, where applicable.

You can find and print the change of address form online at this USCIS page. If you would prefer to update your address automatically through the USCIS Eeb site, please visit this change of address page.

Posted on June 15, 2007 by Robert A. Kraft

The current immigration debate isn’t just about undocumented persons in the United States, it’s also about U.S. employers hiring foreign workers. In many situations, companies hire foreign nationals who are already in the United States or who are interested in coming to this country to work. The following are guidelines that all employers should keep in mind:

1. Carefully audit the company’s I-9 compliance, take corrective action, and be prepared for sudden employer-sanctions enforcement.

Every employer is required to have an I-9 form completed for each employee hired since Nov. 6, 1986, and potentially faces up to $1,000 fines per worker (alien or not) for failure to file the technical requirements. In the last year, Immigration and Customs Enforcement has filed criminal charges against employers who commonly employ undocumented workers.Ensure that employees present original documents to establish their identity and employment eligibility within three business days of the date employment begins. (If they cannot produce the required documents by then, employees must produce receipts showing they have applied for the documents; they then must present the document within 90 days of hire.)

2. Maintain all I-9s and take stock of your I-9 compliance.

It’s a good practice to have all new hires complete and sign Section 1 of the I-9 on their first day of work, but never before you extend a job offer to the applicant. Make sure you carefully review each employee’s documents to make sure they are on the I-9 list of acceptable documents. Review the documents to see if they appear to be genuine.Employers should always remember the following practices when obtaining employee information for I-9s: * Don’t ask for any particular documents or for more documents than the I-9 requires.* Don’t consider the expiration date of any of the I-9 documents.* Do keep I-9s and copies of document for three years after the employee’s date of hire or one year after the date of termination, whichever comes later.* Do keep I-9 documentation separate from the employee’s personnel file to protect yourself from a discrimination claim.

3. Keep all workers in legal status.

All employers should make sure that aliens are in valid immigration status or have a valid, unexpired employment authorization document. If a worker requires an extension of status, make sure to apply for one several months in advance. The short “overstay” results in automatic cancellation of the alien’s visa, which can only be replaced at a U.S. consulate in the alien’s home country. Technical violations of U.S. immigration status that persist for more than 180 days might lead to a three-year or ten-year bar of the worker from the United States.

4. A U.S. employer cannot engage in discrimination on the basis of citizenship status.

Employers are prohibited from discriminating against persons in hiring, discharging, and recruiting and referring for a fee because of their citizenship status. Permanent and temporary residents, refugees, asylees, and U.S. citizens are all protected. Fines are up to $1,000 per person for violations where the employer requests more or different documents than are required, or refuses to honor documents that reasonably appear to be genuine. Other types of discrimination carry fines of up to $2,000 per person for the first offense, $5,000 for the second offense, and $10,000 for the third and subsequent offenses. In addition to fines, employers can be ordered to pay lost wages for applicants not hired or employees discharged in violation of discrimination provisions. Employers can be ordered to hire applicants or reinstate discharged employees if discrimination is found.

5. Immigration law is complex and rapidly changing.

Immigration law is complex and is derived from federal statutes, federal court cases, and federal rules. It involves the Department of Labor, the Department of Homeland Security and the Department of State. A tremendous backlog of cases and processing delays has resulted from the involvement of several different agencies in the immigration process.

The status of employees in the U.S. is something that should be in the forefront of every employer’s mind. An employer should attempt to stay informed of all developments in this important area of the law. An attorney who is experienced in immigration law can help you with all of your questions today.

Posted on June 14, 2007 by Robert A. Kraft

We have some great news for all those who has been waiting for their priority date to become current in an employment-based immigration category. The July 2007 visa availability bulletin, which was released yesterday shows that all employment preference categories (except for Third “Other Workers” ) have been made “Current” for July. This means that as of July 1, 2007, everyone who has been waiting to file their I-485 Application for Permanent Residency can do so.

There has been a lot of speculation regarding this unexpected change in the visa availability bulletin. Many feel that this has been done in an effort to generate increased demand by Immigration Services for adjustment of status cases, and to maximize number use under the annual numerical limit.

Even though the employment categories are now current, that does not mean that they will remain this way. There is the possibility that not all Employment preferences will remain ‘Current” for the remainder of the fiscal year. Should the rate of demand for numbers be very heavy in the coming months, it could become necessary to retrogress some cut-off dates for September, most likely for China-mainland born and India, but also possibly for Mexico and Philippines. Several governmental organizations and officials believe the numbers will retrogress severely by 2008.

If you have a priority date that is now current, please contact us immediately to begin your adjustment of status application. You cannot afford to waste any time as there is no guarantee as to how long your priority date will remain current.

Here is the June 2007 Visa Bulletin:

VISA BULLETIN FOR JUNE 2007

A. STATUTORY NUMBERS:

1. This bulletin summarizes the availability of immigrant numbers during June. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; the Bureau of Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status. Allocations were made, to the extent possible under the numerical limitations, for the demand received by May 11th in the chronological order of the reported priority dates. If the demand could not be satisfied within the statutory or regulatory limits, the category or foreign state in which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. Only applicants who have a priority date earlier than the cut-off date may be allotted a number. Immediately that it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date. 2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

3. Section 203 of the INA prescribes preference classes for allotment of immigrant visas as follows:

FAMILY-SPONSORED PREFERENCES

First : Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for fourth preference.

Second : Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers:

A. Spouses and Children: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference limitation.

Third : Married Sons and Daughters of Citizens: 23,400, plus any numbers not required by first and second preferences.

Fourth : Brothers and Sisters of Adult Citizens: 65,000, plus any numbers not required by first three preferences.

EMPLOYMENT-BASED PREFERENCES

First : Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second : Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third : Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “Other Workers”.

Fourth : Certain Special Immigrants: 7.1% of the worldwide level.

Fifth : Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of P.L. 102-395.

4. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.

5. On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

Fam-ily All Charge- ability Areas Except Those Listed CHINA-mainland born INDIA MEXICO PHILIPP-INES
1st 01JUN01 01JUN01 01JUN01 01JAN91 22APR92
2A 22APR02 22APR02 22APR02 01MAY01 22APR02
2B 01DEC97 01DEC97 01DEC97 08MAR92 01OCT96
3rd 15MAY99 15MAY99 15MAY99 08FEB88 01JAN85
4th 08JUN96 08JAN96 22JAN96 15JUL94 01MAR85

*NOTE: For June, 2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 01MAY01. 2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT  MEXICO with priority dates beginning 01MAY01 and earlier than 22APR02. (All 2A numbers provided for MEXICO are exempt from the per-country limit; there are no 2A numbers for MEXICO subject to per-country limit.)

AllCharge-abilityAreasExceptThose

Listed

CHINA-
mainland born
INDIA MEXICO PHILIP-PINES
Employ-ment
-Based
1st C C C C C
2nd C 01JAN06 01APR04 C C
3rd 01JUN05 01JUN03 01JUN03 01JUN03 01JUN05
Other
Workers
01OCT01 01OCT01 01OCT01 01OCT01 01OCT01
4th C C C C C
Certain Religious Workers C C C C C
Iraqi & Afghani Translators 18SEP06 18SEP06 18SEP06 18SEP06 18SEP06
5th C C C C C
Targeted Employ-ment Areas/
Regional Centers
C C C C C

The Department of State has available a recorded message with visa availability information which can be heard at: (area code 202) 663-1541. This recording will be updated in the middle of each month with information on cut-off dates for the following month.

Employment Third Preference Other Workers Category: Section 203(e) of the NACARA, as amended by Section 1(e) of Pub. L. 105 – 139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

B. DIVERSITY IMMIGRANT (DV) CATEGORY

Section 203(c) of the Immigration and Nationality Act provides a maximum of up to 55,000 immigrant visas each fiscal year to permit immigration opportunities for persons from countries other than the principal sources of current immigration to the United States. The Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997 stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This reduction has resulted in the DV-2007 annual limit being reduced to 50,000. DV visas are divided among six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year.

For June, immigrant numbers in the DV category are available to qualified DV-2007 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region All DV Chargeability Areas Except Those Listed Separately
AFRICA 27,000

Except:Egypt:21,800Ethiopia:18,900Nigeria:

14,600

ASIA 6,800
EUROPE 19,000 Except:Ukraine

11,850

NORTH AMERICA (BAHAMAS) 7
OCEANIA 1,100
SOUTH AMERICA, and the CARIBBEAN 1,750

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2007 program ends as of September 30, 2007. DV visas may not be issued to DV-2007 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2007 principals are only entitled to derivative DV status until September 30, 2007. DV visa availability through the very end of FY-2007 cannot be taken for granted. Numbers could be exhausted prior to September 30.

C. ADVANCE NOTIFICATION OF THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN JULY

For July, immigrant numbers in the DV category are available to qualified DV-2007 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region All DV Chargeability Areas Except Those Listed Separately
AFRICA 35,500

Except:Egypt:22,600Ethiopia 22,900

Nigeria 16,150

ASIA 7,750
EUROPE 23,000 Except:
Ukraine 13,000
NORTH AMERICA (BAHAMAS) 12
OCEANIA 1,800
SOUTH AMERICA, and the CARIBBEAN 2,500

D. EMPLOYMENT THIRD PREFERENCE “OTHER WORKER” CATEGORY FOR JUNE

A few “Other Worker” numbers which had been allocated for April were returned unused at the end of the month. As a result, a very small June allocation has been possible, for applicants with priority dates before October 1, 2001. The category will become “Unavailable” once again beginning in July and will remain so for the remainder of FY-2007.

E. EMPLOYMENT-BASED VISA AVAILABILITY DURING THE COMING MONTHS

The current level of demand in many of the Employment-based categories has been much lower than anticipated. As a result, the June cut-off dates have been advanced significantly in an effort to maximize number use under the annual numerical limits. At this time it appears likely that there will be additional advances during the coming months.

All readers should be aware that such cut-off date movements should allow for action to be finalized on a significant number of Citizenship and Immigration Services adjustment of status cases. Once that level of demand begins to exceed the supply of available numbers it will be necessary to make “adjustments” to the cut-off dates. At this time is in not possible to estimate when this is likely to occur, but it is expected.

Posted on June 7, 2007 by Robert A. Kraft

An article today on the Web site of the New York Times warns that the proposed immigration reform bill now pending in the U. S. Senate may be in trouble. Here are excerpts:

WASHINGTON, June 7 –The Senate refused at midday to shut off debate on the immigration overhaul bill and move toward a vote, leaving the fate of the legislation uncertain and setting up another, all-important procedural vote this evening.

The move to end debate was rejected by 63 to 33, so the bill’s backers fell 27 votes short of the 60 needed to invoke what is known as cloture and set up a yes-or-no vote on the legislation itself.

The result was a setback not only for the bill’s supporters but also for President Bush, who has made a comprehensive immigration bill one of his top legislative priorities.

Nevertheless, Senator Harry Reid of Nevada, the Democratic majority leader, scheduled another, make-or-break cloture vote for this evening. If that vote also falls short, Mr. Reid is expected to shelve the bill, meaning that changes in immigration law might not be considered again for many months.

The midday move to end debate failed chiefly because a significant number of conservative Republicans wanted more time to offer amendments to make the measure more to their liking.

Some 12 hours before the noontime cloture vote, the bill’s supporters suffered a setback when the Senate voted to put a five-year limit on a new guest worker program that would be created under the legislation. By a vote of 49 to 48 shortly after midnight, the Senate approved the limit, in the form of an amendment by Senator Byron L. Dorgan, Democrat of North Dakota.

The temporary worker program is an important element of the “grand bargain” on immigration forged in three months of negotiations by a small group of senators from both parties.

If the Senate votes this evening to end debate, the bill will have cleared a major hurdle — but by no means the last one. The House has yet to take up its version of the immigration legislation, and the issue has deeply divided the representatives. Many conservatives want to do more to restrict immigration and to toughen border enforcement. Many liberals, including members of the Congressional Hispanic Caucus, want to do more to protect immigrants’ rights and promote family-based immigration. The Senate bill, which embodies a fragile compromise strongly supported by the president, would offer most of the estimated 12 million illegal immigrants in the United States the chance to obtain legal status. It calls for the biggest changes in immigration law in more than two decades.

Supporters contend that it would address the problem of millions of illegal aliens without giving them amnesty; that it will further secure the nation’s borders, and that through its guest-worker program it will help immigrants and American employers. Its opponents have argued that there are far too many deficiencies in its nearly 400 pages.

Posted on June 4, 2007 by Robert A. Kraft

Today’s issue of the Dallas Morning News has an interesting article explaining how some Texas employers are eagerly awaiting passage of new immigration reform laws. Employers hope that immigration reform will lead to a more stable legal workforce.

The article states that employers would like to see some sort of error-proof employment verification system, a tamper-proof worker identification card, and a temporary worker program set in place. Currently, the Senate is debating a proposed immigration bill that would create a temporary guest worker program. This program would make 200,000 visas available annually to foreign workers. Employers believe that a guest worker program is vital to the success of a growing U.S. economy.

Although many employers favor immigration reform, some local business groups have urged the Texas senators to suppress the bill. In fact, Senators John Cornyn and Kay Bailey Hutchinson have rejected the bill, saying that it will repeat the mistakes of the 1986 amnesty law. Although the 1986 law provided immigration benefits to millions of illegal aliens, it did nothing to curtail illegal immigration.

Many employers believe that the current employment eligibility verification system is also in need of improvement. The system checks the nine digit social security number of employees to see if it matches with wage and tax reports of federal records. However, the system does not ferret out the use of authentic social security cards, even if they are borrowed, stolen, or rented by illegal immigrations.

In recent months, several corporations and businesses have suffered from immigration raids and have been charged with violations of the nation’s immigration laws. Employers state that even though they had unknowingly hired illegal immigrants, they had complied with the employment eligibility verification system, which is voluntary for employers, but did not realize they had hired undocumented workers. Even though the employer may have gone through all the steps to make sure they were hiring legal workers, the system obviously is not 100% accurate. Companies and businesses hope that immigration reform, by creating a guest worker program and providing visas to illegal immigrants in the United States, will correct the deficiencies found in the current system.

Click for a copy of the Dallas Morning News article in its entirety.

Posted on June 1, 2007 by Robert A. Kraft

Many individuals and employers in the United States are unaware of the existence of the H-2B visa. Although it is not as common as the H-1B visa, it is still an attractive option to individuals wanting to live and work in the U.S.

The H-2B visa is similar to the H-1B visa since the H-2B nonimmigrant work visa also provides a method for U.S. employers to obtain the services of foreign nationals to fill temporary needs of the business or corporation. The H-2B visa, however, has many stringent requirements that must be met prior to filing, which is the main reason for its underuse.

One of the most significant restrictions on the H-2B category is the requirement that the need for the foreign worker be temporary. There are four situations in which there is a temporary need for workers: recurring seasonal need, intermittent need, peak-load need, and need based on a one-time occurrence. It is this requirement that makes this visa category so rarely used. Not only must the employer promise to employ the worker for a limited period of time, the employer must attest that its need for the worker is temporary.

Another cumbersome requirement of the H-2B visa is the requirement that a labor certification be approved prior to filing the visa petition. The Department of Labor must determine that there are no unemployed, qualified U.S. workers available for the position in the area of the proposed employment, and that employment of the foreign national will not adversely affect the wages or working conditions of U.S. workers. The employer must also conduct a recruitment campaign to prove that there are no qualified willing and able U.S. workers for the position.

Although the process to obtain an H-2B visa can be lengthy, there are many benefits in having an H-2B visa. A person can enter the U.S. for temporary work and enjoy all employee benefits. H-2B visa holders can bring dependents to the U.S., travel freely in and out of the U.S., and a new petition can be approved if there is a need to change jobs.

The H-2B work visa was created to allow people to come to the United States temporarily, mainly for non-agricultural jobs, for which the U.S. workers are in short supply. Up to 66,000 H-2B visas are issued every year. Although the quota has been reached for the 2007 year, it is never too early to begin thinking of applying for this visa next year, which actually begins on October 1, 2007. If you are interested in obtaining more information on this visa, please contact us.

Posted on May 25, 2007 by Robert A. Kraft

Number 106Volume VIII

Washington, D.C.

VISA BULLETIN FOR JUNE 2007

A. STATUTORY NUMBERS:

1. This bulletin summarizes the availability of immigrant numbers during June. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; the Bureau of Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status. Allocations were made, to the extent possible under the numerical limitations, for the demand received by May 11th in the chronological order of the reported priority dates. If the demand could not be satisfied within the statutory or regulatory limits, the category or foreign state in which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. Only applicants who have a priority date earlier than the cut-off date may be allotted a number. Immediately that it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date. 2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

3. Section 203 of the INA prescribes preference classes for allotment of immigrant visas as follows:

FAMILY-SPONSORED PREFERENCES

First : Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for fourth preference.

Second : Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers:

A. Spouses and Children: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference limitation.

Third : Married Sons and Daughters of Citizens: 23,400, plus any numbers not required by first and second preferences.

Fourth : Brothers and Sisters of Adult Citizens: 65,000, plus any numbers not required by first three preferences.

EMPLOYMENT-BASED PREFERENCES

First : Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second : Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third : Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “Other Workers”.

Fourth : Certain Special Immigrants: 7.1% of the worldwide level.

Fifth : Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of P.L. 102-395.

4. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.

5. On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

Fam-ily All Charge- ability Areas Except Those Listed CHINA-mainland born INDIA MEXICO PHILIPP-INES
1st 01JUN01 01JUN01 01JUN01 01JAN91 22APR92
2A 22APR02 22APR02 22APR02 01MAY01 22APR02
2B 01DEC97 01DEC97 01DEC97 08MAR92 01OCT96
3rd 15MAY99 15MAY99 15MAY99 08FEB88 01JAN85
4th 08JUN96 08JAN96 22JAN96 15JUL94 01MAR85

*NOTE: For June, 2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 01MAY01. 2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT  MEXICO with priority dates beginning 01MAY01 and earlier than 22APR02. (All 2A numbers provided for MEXICO are exempt from the per-country limit; there are no 2A numbers for MEXICO subject to per-country limit.)

AllCharge-abilityAreasExceptThose

Listed

CHINA-
mainland born
INDIA MEXICO PHILIP-PINES
Employ-ment
-Based
1st C C C C C
2nd C 01JAN06 01APR04 C C
3rd 01JUN05 01JUN03 01JUN03 01JUN03 01JUN05
Other
Workers
01OCT01 01OCT01 01OCT01 01OCT01 01OCT01
4th C C C C C
Certain Religious Workers C C C C C
Iraqi & Afghani Translators 18SEP06 18SEP06 18SEP06 18SEP06 18SEP06
5th C C C C C
Targeted Employ-ment Areas/
Regional Centers
C C C C C

The Department of State has available a recorded message with visa availability information which can be heard at: (area code 202) 663-1541. This recording will be updated in the middle of each month with information on cut-off dates for the following month.

Employment Third Preference Other Workers Category: Section 203(e) of the NACARA, as amended by Section 1(e) of Pub. L. 105 – 139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

B. DIVERSITY IMMIGRANT (DV) CATEGORY

Section 203(c) of the Immigration and Nationality Act provides a maximum of up to 55,000 immigrant visas each fiscal year to permit immigration opportunities for persons from countries other than the principal sources of current immigration to the United States. The Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997 stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This reduction has resulted in the DV-2007 annual limit being reduced to 50,000. DV visas are divided among six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year.

For June, immigrant numbers in the DV category are available to qualified DV-2007 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region All DV Chargeability Areas Except Those Listed Separately
AFRICA 27,000

Except:Egypt:21,800Ethiopia:18,900Nigeria:

14,600

ASIA 6,800
EUROPE 19,000 Except:Ukraine

11,850

NORTH AMERICA (BAHAMAS) 7
OCEANIA 1,100
SOUTH AMERICA, and the CARIBBEAN 1,750

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2007 program ends as of September 30, 2007. DV visas may not be issued to DV-2007 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2007 principals are only entitled to derivative DV status until September 30, 2007. DV visa availability through the very end of FY-2007 cannot be taken for granted. Numbers could be exhausted prior to September 30.

C. ADVANCE NOTIFICATION OF THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN JULY

For July, immigrant numbers in the DV category are available to qualified DV-2007 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region All DV Chargeability Areas Except Those Listed Separately
AFRICA 35,500

Except:Egypt:22,600Ethiopia 22,900

Nigeria 16,150

ASIA 7,750
EUROPE 23,000 Except:
Ukraine 13,000
NORTH AMERICA (BAHAMAS) 12
OCEANIA 1,800
SOUTH AMERICA, and the CARIBBEAN 2,500

D. EMPLOYMENT THIRD PREFERENCE “OTHER WORKER” CATEGORY FOR JUNE

A few “Other Worker” numbers which had been allocated for April were returned unused at the end of the month. As a result, a very small June allocation has been possible, for applicants with priority dates before October 1, 2001. The category will become “Unavailable” once again beginning in July and will remain so for the remainder of FY-2007.

E. EMPLOYMENT-BASED VISA AVAILABILITY DURING THE COMING MONTHS

The current level of demand in many of the Employment-based categories has been much lower than anticipated. As a result, the June cut-off dates have been advanced significantly in an effort to maximize number use under the annual numerical limits. At this time it appears likely that there will be additional advances during the coming months.

All readers should be aware that such cut-off date movements should allow for action to be finalized on a significant number of Citizenship and Immigration Services adjustment of status cases. Once that level of demand begins to exceed the supply of available numbers it will be necessary to make “adjustments” to the cut-off dates. At this time is in not possible to estimate when this is likely to occur, but it is expected.

Posted on May 22, 2007 by Robert A. Kraft

On May 17, 2007, the Department of Labor (DOL) amended its administrative regulations as they relate to labor certifications. The new rules will go into effect on July 16, 2007. Cases already pending with the DOL will not be affected by the new provisions.

Many foreign employees in the U.S. would like for their employers to sponsor them for their green cards, or permanent residency. The first step in this process is obtaining a labor certification that has been approved by the DOL. A labor certification attests that there are not sufficient workers able, willing, qualified and available to perform the work, and that the employment of the foreign workers will not adversely affect the wages and working conditions of U.S. workers in similar positions. Once these certifications are made, the DOL will approve a labor certification.

The new rules issued by the DOL, however, drastically change the way labor certifications are handled. For example, current rules allow for substitution, where employers can replace one foreign worker in a labor certification for another without losing the employer’s place in the processing line. The final regulation eliminates this practice, making it difficult for an employer to make a substitution should a worker be terminated or voluntarily leave the company.

The DOL will now also ban an employer from recouping the costs associated with the labor certification process from the foreign employee, including legal costs. From now on, any costs associated with preparing, submitting, and obtaining a permanent labor certification must be paid by the sponsoring employer and not paid by the employee. Many small to mid-sized companies ask their employees to pay legal costs associated with the employee’s labor certification; the new rules do away with this, which may put a financial strain on employers.

The final rule also provides a 180-day validity period for approved labor certifications; employers will have 180 calendar days within which to file with Immigration Services an approved permanent labor certification in support of a Form I-140 Immigrant Petition for Alien Worker. The rule also prohibits the sale, barter, or purchase of permanent labor certifications and applications.

Posted on May 18, 2007 by Robert A. Kraft

Many overseas professionals wish to immigrate to the United States for employment. Normally, to file an employment-based immigration petition, a Labor Certification approval is a pre-requisite. Schedule A, however, is a list of occupations for which the U.S. Department of Labor (DOL) has determined that there is an insufficient number of U.S. workers who are qualified, willing, and able. Professional nurses and physical therapists are the only two occupations explicitly listed on Schedule A. Additionally, the DOL has authorized U.S. Citizenship and Immigration Services (USCIS) to allow a foreign worker to obtain a green card without first having to go through the entire labor certification process.

To qualify for Schedule A processing, a professional nurse must be in possession of the following:

    A diploma from a nursing school in the home country;

    A license to practice nursing in the home country;

    The nurse must have one of the following:

    A passing test score on the Commission on Graduate in Foreign Nursing Schools (CGFNS) examination; or

    A full and unrestricted license to practice professional nursing in the state of intended employment;

    A Visa Screen Certificate.

In addition, unless the nurse was educated in an English-speaking country, he or she must achieve a certain score on tests in written and spoken English administered by TOEFL or IELTS in order to qualify for the Visa Screen Certificate. The program is also composed of an educational analysis and licensure validation.

Currently, there is such a shortage of nurses working in the United States, persons abroad will find it relatively easy to obtain offers of employment from hospital in the U.S.

A physical therapist is defined as a person who applies the art and the science of physical therapy to the treatment of patients with disabilities, disorders, and injuries to relive pain, develop and restore function, and maintain performance.

To qualify for Schedule A processing, a physical therapist must possess all the qualifications necessary to take the physical therapist licensing examination in the state in which he or she intends to practice physical therapy. To do this a physical therapist must submit a letter from the state of intended employment’s licensing official stating that the applicant is eligible to take the state’s written licensing examination for physical therapists. He or she must also possess a four year degree in physical therapy.

Because the Schedule A designation does not require the approval of a Labor Certification by the DOL, the process for obtaining a green card for a qualified nurse or physical therapist is much shorter than for other occupations that do require an approved labor certification.

While other employers have to test the labor market and show that there are no able, willing, and qualified U.S. workers to perform the job for which the foreign national is seeking permanent residence, the physical therapist’s and nurse’s employer do not have to test the labor market because the Department of Labor has already recognized the unavailability of workers for these positions.

Kraft & Associates can assist you or your employer in preparing and filing the physical therapist or nurse immigration applications. We will work closely with hospitals and other organizations throughout the process, and assist the employer step-by-step during the preparation of the applications. Whether you are a person who has received an employment offer and is contemplating filing a petition, or are a human resource professional of the employer, please give us a call or send us an e-mail. We can provide you the guidance you need through the entire procedure, and help to obtain a successful result for you.

Posted on May 17, 2007 by Robert A. Kraft

U.S. Citizenship and Immigration Services has previously announced that the H-1B visa cap was reached within the first day of filing. In fact, so many visa petitions had been filed that a lottery system was set in place to randomly select the petitions that would be considered for an H-1B visa. The lottery took place on April 12, 2007.

Many individuals and employers are still waiting for any indication from Immigration Services about whether their H-1B petition was randomly selected for processing. USCIS admitted today that they were experiencing delays in issuing receipt notices for cases accepted for consideration for an H-1B visa.

For those who have been anxiously awaiting any news regarding the status of your case, there is still a chance that your H-1B visa petition has been selected and you simply have not received notification of this.

In fact, the backlog at immigration service centers is so great that other individuals or employers who have filed non-H-1B visa petitions are also experiencing delays in obtaining receipt notices for their cases.

Click for more information regarding the ongoing issuance of H-1B receipt notices.

For more information about immigration news, immigration laws, immigration policies, proposed immigration laws, border enforcement, green cards, citizenship, employment visas, family visas, naturalization, and other immigration subjects, please visit Immigration Law Answers and DFW Immigration Law Blog.

Posted on April 11, 2007 by Robert A. Kraft

USCIS has just announced that there are still visas available for those interested in obtaining an H-1B visa as long as they have at least a Master’s degree or higher from a U.S. university.

USCIS announced last week that it had received enough H-1B petitions to meet the regular H-1B cap for fiscal year 2008. Each year, however, an additional 20,000 visas are made available to those persons having at least a Master’s degree. It is this cap which has not yet been reached.

Our office has been receiving many questions regarding when the Master’s quota for H-1B visas will be reached. There really is no possible way to answer this question. USCIS stated in its announcement that it had received 12, 989 cases on behalf of aliens holding a master’s degree or higher from a U.S. university. It is extremely difficult to provide an estimate of when the remaining spots will be taken.

If you are interested in obtaining an H-1B visa, and you have at least a Master’s degree or higher from a U.S. university, you must begin the visa petition process immediately. The remaining visas may be taken by other foreign nationals any day. We strongly recommend that people who wish to obtain an H-1B visa file the petition at the earliest opportunity to avoid a significant delay in employment authorization.

Please do not hesitate to contact us as soon as possible to begin your H-1B case today!

Posted on April 3, 2007 by Robert A. Kraft

Immigration Services announced this afternoon that the H-1B cap has been reached for this year. USCIS began accepting H-1B visa petitions on April 2, 2007, and has stated that they have already received over 150,000 petitions.

Each year, the U.S. government makes 65,000 H-1B visas available to qualified individuals on a first-come basis. The cap has been reached every year for the last several years, although the cap has never been reached on the first day of filing.

USCIS must now perform data entry on all of the visa petitions received on April 2. Once this is completed, the petitions will be subjected to a computer-generated random selection process to determine which petitions will be counted towards the cap. Petitions which are rejected will be returned.

The lottery itself, and the results of the lottery, will not be disclosed to the public for some time because of the high number of filings. The announcement from USCIS does not come as a complete surprise. Immigration attorneys have been predicting for some time that the H-1B cap would be reached on the first day of filing.

H-1B visas are a relatively swift path to work in the U.S. for foreigners with bachelor’s degrees and with U.S. companies to sponsor them. Immigrants, along with the U.S. technology industry lobby, have been advocating for an increase in the H-1B quota to reform the visa program. A current bill under review proposed raising the H-1B visa cap from 65,000 to 115,000.

If you would like more information regarding the H-1B visa cap, please read the announcement issued by USCIS.

Posted on April 3, 2007 by Robert A. Kraft

There is great concern among immigration lawyers that U.S. Citizenship and Immigration Services (USCIS) may have reached the cap on H-1B visas even before the end of the first day of filing, which was April 2, 2007. Reports are surfacing that USCIS received a huge number of envelopes and packages that day, far more than the 65,000 number of H-1B visas available.

This is all unconfirmed at this time, but if true, could be devastating news to those who did all their paperwork properly, filed on the first possible date, and now may have their application denied.

A previous announcement from USCIS explains that if this situation should occur, all the applications received that date would be sorted in a random manner, by computer, and that will be the order in which the applications are accepted.

What a terrible situation — to have the future of your immigration status come down to the random “whim” of a USCIS computer.

Here is the text of the USCIS announcement, with the applicable portion bolded:

U.S. Citizenship and Immigration Services (USCIS) will, on April 2, 2007, begin accepting H-1B petitions subject to the fiscal year 2008 (FY08) H-1B cap. Because March 31 and April 1 are non-business days, USCIS will not take possession of mail delivered during the weekend until Monday, April 2, which is the first business day of the FY08 H-1B filing period. USCIS will not reject cases delivered during the weekend. Instead those petitions will be treated as if they arrived on April 2. The deciding factor for USCIS is not when the petition is postmarked, but when USCIS takes possession of and stamps the petitions as received.

USCIS will monitor the number of petitions received and will notify the public of the date USCIS has received the necessary number of petitions to meet the H-1B cap, known as the final receipt date.

The date USCIS publishes information that the cap has been reached does not control the final receipt date. USCIS Announces Direct Filing Instructions for Forms I-129 and I-539 Under the Bi-Specialization Initiative posted on the USCIS website. The filing charts are also available on the USCIS website. For filing updates and additional information or call USCIS customer service at (800) 375-5283.

To ensure a fair and impartial system, USCIS will, if needed, randomly select the number of petitions required to reach the numerical limit from the petitions received on the final receipt date. This selection is computer-generated. USCIS will reject petitions not selected and petitions received after the final receipt date that are subject to the cap.

If the final receipt date is the same as the first date that petitions may be filed, USCIS will randomly apply all of the numbers among the petitions filed on the final receipt date and the following day. This means that, should the cap be reached on April 2, the first day filings can be received, USCIS will perform a random selection of petitions filed on April 2 and April 3 in accordance with the regulations at 8 C.F.R. 214.2(h)(8)(ii).

For questions on the proper filing location please refer to the March 5 update:

H-1B petitioners should insure they follow all regulatory requirements as they prepare petitions to avoid delays in processing and possible requests for evidence.

8 CFR 214.2(h)(2)(B) requires that petitioners provide a detailed itinerary of the dates and places where work will be performed if those services will be provided in more than one location. For example, a labor contractor or consultant who hires H-1B workers to work at client sites must provide, in advance, an itinerary with dates and places where the worker will perform that work.

In addition, 8 CFR 214.1(c)(4) requires that an applicant for extension of status have maintained his or her nonimmigrant status. In situations where an H-1B worker is changing to an employer other than the one for which the initial H-1B petition was approved, USCIS will require that the worker changing employers demonstrate that he or she actually did perform meaningful work for the original petitioning employer under circumstances not reflective of fraudulent intent in the original petition. In situations where the H-1B worker is processing abroad, USCIS will work closely with the Department of State to ensure that this same level of integrity is applied to consular processed H-1Bs.

Please note: Recent materials posted by USCIS indicated that an original copy of a certified labor condition application is required with Form I-129 and should be signed in blue ink. This statement is in error.

A copy of the LCA may be submitted with the I-129 as is current practice. USCIS did not intend to change the current practices regarding filing of the LCA with the petition. For filing updates and additional information or call USCIS customer service at (800) 375-5283.

Posted on March 28, 2007 by Robert A. Kraft

The United States currently has a severe shortage of licensed nurses, and this is expected to intensify as baby boomers age and the need for health care grows. To address this concern, the U.S. implemented a visa category allowing nurses to obtain permanent residency. The problem with this, however, is that nurses who are eligible to obtain their green card must wait several years before their visas become available. The H-1C visa is an option for nurses who want to work in the U.S. prior to their permanent residency approval.

In 1999, the U.S. Congress passed the Nursing Relief for Disadvantaged Areas Act. This law created the H-1C visa category that allowed foreign registered nurses to work in the United States for up to three years in certain health professional shortage areas. The law allows for up to 500 nurses per year, with each state limited to only 25 H-1C nurses. This category is open to general RN positions.

The H-1C visa program expired on June 13, 2005. However, effective December 20, 2006, it has been “reauthorized” (meaning it is open again) for another three years until December 20, 2009.

To qualify for H1C status, the beneficiary must:

* Have an unrestricted nurse’s license in his/her home country, or have received nursing education in the United States;

* Have passed the CGFNS or have a full and unrestricted license to practice as a registered nurse in the state of intended employment; and

* Be fully qualified and eligible under all state laws and regulations to practice as a registered nurse in the state of intended employment immediately upon admission to the United States.

The H-1C visa allows registered nurses to work in the United States on a temporary basis. This visa also allows nurses to work in the U.S. while their immigrant visa applications are pending with Immigration Services.

The H-1C visa category is based on the former H-1A visa category for nurses, which expired on September 30, 1997. The H-1C classification is more restrictive, due to its numerical cap on the number of visas issued annually and its application only to underserved areas.

If you have questions about the H-1C visa or any other immigration matter, please contact our office.

For more information about immigration news, immigration laws, immigration policies, proposed immigration laws, border enforcement, green cards, citizenship, employment visas, family visas, naturalization, and other immigration subjects, please visit Immigration Law Answers and DFW Immigration Law Blog.

Posted on March 16, 2007 by Robert A. Kraft

Each year 65,000 H-1B visas are made available so that foreign nationals can work in the United States on a temporary basis.  The H-1B category is designed to attract skilled professionals in specialty occupations to work in the U.S. on a temporary basis. A person must possess at least a bachelor’s degree or its equivalent (through a combination of education and work experience) to obtain an H-1B visa.

The H-1B is suitable for occupations such as professors, researchers, engineers, computer specialists and software programmers – just to name a few. The H-1B visa is valid for a period of up to six years. 

The H-1B visa begins on October 1, 2007. This is the first day a person will be allowed to work on an H-1B visa. However, a company may begin the process on behalf of an individual much earlier than this. In fact, Immigration Services begins accepting H-1B visa petitions on April 1, 2007, which is just around the corner.

The H-1B visa cap is expected to be reached on the very first day that Immigration Services begins to accept the visa petition – April 1st!

If you are an employer wishing to hire a foreign national to begin working for your company, you must begin the visa petition process immediately. If you are an individual wanting to work in the U.S. on an H-1B visa next year, you need to discuss this option with your future employer as soon as possible.

If you are a foreign student graduating in May – then you need to begin thinking of the H-1B visa now so that you can apply for this and make arrangements to maintain immigration status until the October 1 start date.

Should you need any assistance in applying for H-1B status or any questions related to this matter, please do not hesitate to contact us. Kraft & Associates is available to help you with all your H-1B related concerns.

Posted on March 13, 2007 by Robert A. Kraft

What is an Employment Authorization Document?
Employment Authorization Document (EAD) is a document that authorizes an foreign national to work in the U.S. for a period of time, usually one year. It is also called a work permit. 

How do I apply for Employment Authorization?You must file a Form I-765 (Application for Employment Authorization) by mail with the USCIS Service Center or District Office that serves the area where you live. You must also submit other supporting documents, photos, and fee.

Do I need an EAD Card?

Maybe. Some types of visas allow a person to work in the U.S. without first obtaining an employment authorization card. If you are in the U.S. on an H-1B visa, for example, you do not need to obtain an EAD card since you are in the U.S. on a work visa.

How long should I wait for the EAD?
It usually takes three to six months to process the EAD application. Processing times, however, are always changing, so it may take more or less depending on how backlogged Immigration Services is.

What should I do if my EAD application is denied?
If your application for an EAD is denied, you will receive a letter that will tell you why the application was denied. You will not be allowed to appeal a negative decision, but you may submit a motion to reopen or a motion to reconsider with the office that denied your application. If that is denied, you will either have to reapply or forego employment authorization in the United States.

What should I do if my EAD card gets lost or stolen?
You may apply for a replacement EAD card. Contact USCIS Customer Service at 1-800-375-5283 and an Immigration Services Customer Representative will be able to help you.

For more information about immigration news, immigration laws, immigration policies, proposed immigration laws, border enforcement, green cards, citizenship, employment visas, family visas, naturalization, and other immigration subjects, please visit Immigration Law Answers and DFW Immigration Law Blog.

Posted on January 27, 2007 by Robert A. Kraft

The possibility of comprehensive immigration reform has been in the forefront of the news for the last several months. Thousands of people in the United States are currently waiting for developments in immigration law. Even more, who are in the United States illegally, believe the passing of new laws will lead to amnesty or eventual citizenship.

Waiting for a new law to pass, however, may prevent you from obtaining immigration benefits now, and may even lead to possible denials of immigration status in the future. Those who are hoping for “amnesty” may find it more productive to begin their immigration cases now, since there are many ways of obtaining a green card in the U.S., even for those here illegally.

If you are married to a U.S. citizen or have relatives who are citizens, there may be different avenues available to you today that would make you eligible to receive your permanent residency. If you have been a victim of persecution in your home country, you may be eligible for asylum. If you have been in the U.S. for a certain length of time, you may also be eligible for immigration status. These are just a few examples of the groups of people who can begin their immigration cases today so that they may obtain permanent residency.

More important, there are many people who are waiting for immigration reform to pass believing that this will provide them a clear and free path to citizenship. This is simply not the case. In fact, many people who have legal options available to them now, may lose those options should any immigration reform be passed in the future. Furthermore, while it is likely that one day immigration reform may pass, we have no idea what benefits, if any, it would provide.

Rather than wait for an amnesty that may never arrive, take steps today to obtain legal status in the United States. Meanwhile, if any immigration reform is passed before your case is completed, there will be less of a chance that your status will be compromised. Finally, simply waiting and not taking any action is almost never a good idea.

For more information about immigration news, immigration laws, immigration policies, proposed immigration laws, border enforcement, green cards, citizenship, employment visas, family visas, naturalization, and other immigration subjects, please visit Immigration Law Answers and DFW Immigration Law Blog.

Posted on January 15, 2007 by Robert A. Kraft

Leaders of religious organizations and institutes are often unaware that they have the ability to hire and sponsor foreign nationals to work in the United States. The R-1 religious worker visa is a nonimmigrant visa that allows foreign nationals in religious occupations to enter into the United States and perform the duties of a religious worker.Persons seeking R-1 status must plan to enter the United States solely to:* Carry on the vocation of a minister of the religious denomination; or* Work in a professional capacity in a religious vocation or occupation or organization within the denomination; or* Work in a religious vocation or occupation for an organization within the denomination, or for a bona fide organization, that is affiliated with the religious denomination. Bona fide religious organizations in the United States must have tax-exempt status as an organization as described in section 501(c)(3) of the Internal Revenue Code of 1986.The initial admission period for religious workers entering the United States in R-1 status is limited to three years. Extensions of the R-1 status may be granted, but the total period for a person residing in the United States on R-1 status may not exceed a total of five years.The R-1 visa also allows for a foreign national to engage in studies, travel freely in and out of the U.S., receive payment for services, and apply for permanent residency (green card). Additionally, the spouse and any children under the age of 21 years of an R-1 holder may also live in the U.S. If a religious worker is interested in obtaining permanent residency, his or her spouse and children under the age of 21 are also included in the immigrant visa petition, so that they are eligible to apply for permanent residence once the petition is approved. In addition, family members in the United States are eligible for work authorization while the applications for permanent residence are pending.The processing time for an R-1 visa petition is normally around three months, but a decision can be reached in 15 days for an additional fee. Once the petition is approved, consular processing normally takes three to four months.

The law firm of Kraft & Associates can help you determine if you are eligible to sponsor a person for a religious worker visa. We will help you file all the necessary petitions and see the process through to conclusion. Should you have any questions regarding religious visas, please do not hesitate to contact us.

For more information about immigration news, immigration laws, immigration policies, proposed immigration laws, border enforcement, green cards, citizenship, employment visas, family visas, naturalization, and other immigration subjects, please visit Immigration Law Answers and DFW Immigration Law Blog.

Posted on January 8, 2007 by Robert A. Kraft

The H-1B visa will allow persons to begin working in the United States on October 1, 2007. Immigration Services will begin accepting H-1B visa petitions beginning April 1, 2007. In anticipation of this event, foreign nationals who are in the United States, or who are wanting to work in the U.S., should begin planning now in order to make sure their visa petition is filed on time.

The H-1B visa is often used as the “next step” after one graduates from a university after completion of an F-1 program. H-1B holders are allowed to remain in the United States for a total of six years. The H-1B visa is reserved for those who will work in a “speciality” occupation. This means that a company requires the services of a professional who holds at least a bachelor’s degree or its equivalent. Generally, most H-1B applicants are doctors, engineers, professors, accountants, lawyers, physical therapists, and computer professionals.

If you plan to work in the U.S. on a temporary basis it is important that you and your employer begin the visa petition process as soon as possible. Every year, Congress makes 65,000 H-1B visas available. Last year, Immigration Services announced that May 26, 2006, was the last day that visa petitions would be accepted. Those who did not file before this date would not be able to begin working on an H-1B visa.

Because of the complex issues involved with an H-1B visa, it is not recommended that a foreign national or a sponsoring employer prepare and submit an H-1B petition on their own. Improperly preparing a H-1B petition can result in a foreign national losing their immigration status and becoming removable from the U.S. It may also result in an employer hiring a worker who doesn’t have work authorization and thus subjecting itself to possible fines and penalties.

At the law firm of Kraft & Associates, we will work to make sure that your petition is filed correctly and in advance of the cap being reached. Please contact us if you have questions about H-1B visas, and we will give you a free phone consultation.

For more information about immigration news, immigration laws, immigration policies, proposed immigration laws, border enforcement, green cards, citizenship, employment visas, family visas, naturalization, and other immigration subjects, please visit Immigration Law Answers and DFW Immigration Law Blog.

Posted on October 12, 2006 by Robert A. Kraft

Maryland immigration lawyer Meetesh Patel has an excellent post about employer sanctions on his Immigration Law Blog.

Here is a portion of the post from attorney Patel:

Tips for Maintaining an Employer Sanctions Compliance Program

  1. Set up internal protocols for handling I-9 forms, including training.
  2. Do regular audits of your I-9 forms.
  3. Complete section one of the I-9 form on the first day that an employee begins work. The remainder of the I-9 form must be completed within three business days. If a worker fails to bring the documentation required by the I-9 within that time period, you may fire them.
  4. Do not request specific documentation from worker to verify employment eligibility. Let the workers choose from the list of acceptable documents listed on the I-9 form.
  5. Do not accept any documents that are not originals except for those stated on the I-9 form.
  6. If an employee provides a document that is not listed on the I-9 form, hand the document back to the employee and ask for another one from the I-9 list.
  7. If during a review of your records you discover that I-9 forms from certain employees are missing, get the documentation from those individuals immediately.
  8. If documentation provided by employees looks genuine on its face, do not ask for more proof as this can subject you to a national origin discrimination claim.
  9. Keep all I-9 records for three years after the date of hire or one year after the date of dismissal, whichever is later.
  10. Treat all employees and job applicants equally.

Posted on August 7, 2006 by Robert A. Kraft

The Education columnist of the Dallas Morning News had an excellent explanation today as to why the U.S. Visa policy is depriving our country of much-needed computer professionals.

Columnist James M. O’Neill used an imaginary scenario in which a Dallas employer brought down a Seattle resident, trained him to develop skills vital to the success of the employer, but after a year of employment told the worker he had to go back home to Seattle. Once in Seattle, the employee uses his new skills to work for a competitor of the Dallas employer.

The point is that this is exactly what the U.S. does with foreign college students — brings them to the U.S., trains them, gives them one year of employment, then sends them home to work for competitors of U.S. companies.

The column goes on to explain why we should encourage these newly trained high-tech employees to stay in the United States, and also explains why they would not be taking jobs from American citizens. It’s well worth reading.