Sometimes following regulations is not enough when navigating the immigration process.  A good example of this truth is the case of El Badrawi v. United States. 

In this case, immigration attorneys had properly advised an H-1B worker that he could continue working while awaiting a decision on the extension of his status, even though his Form I-94 had expired.  Pursuant to 8 C.F.R. section 274a.12(b)(20), an H-1B employee that is the beneficiary of a timely filed request for an extension of status can continue working even if his or her Form I-94 expires while the petition is pending (for a period of 240 days). 

In El Badrawi v. United States, the government disregarded 274a.12(b)(20).  In this case, the H-1B employee was the beneficiary of a timely filed request for extension of status.  While the request was pending for less than 240 days, the government arrested and detained the employee for a violation of status and initiated removal proceedings. 

The government’s action was clearly in violation of the regulations, but it took court action to stop the government’s wrongful detainment.  This author hopes that the decision will prevent further abuses and will help to reassure nonimmigrants and their attorneys that they can safely following regulations regarding timely submissions of requests for extensions of status.

Now is a great time for businesses to inquiry about hiring H-1B workers.  Come April 1st, employers will be allowed to file H-1B petitions for the 2012 fiscal year, which begins on October 1, 2011.  Currently the H-1B Cap is filled for fiscal year 2011, but beginning in April, there will an abundance of H-1B numbers available for the 2012 fiscal year. 

For those of you who may not know about H-1B classification, I can give you a brief description of the category.  Generally, it is a visa category reserved for nonimmigrants with at least a bachelor’s degree.  If a nonimmigrant is offered a job in a position that requires his or her particular bachelor’s degree, then it may be possible to obtain H-1B classification.  Because there are many nuances to the H-1B laws, it would be wise for a business to consult with an immigration attorney to evaluate a job candidate’s potential eligibility for H-1B classification. 

H-1B classification is generally granted for a period of three years, with an extension of H-1B classification possible for an additional three years.  The immigration attorneys at Garg & Associates can provide information about the H-1B classification, if you are interested.

The January 2011 Visa Bulletin was just released, and the news was not very good.  Recently, many of the family based categories had shown dramatic improvement.  For example, the December 2010 Visa Bulletin listed the priority date for Family-Sponsored Preference Category, section A (F2A), as August 1, 2010.  The new Visa Bulletin now lists that category’s preference date as January 1, 2008.

The practical implication of the above-noted retrogression is dramatically harmful.  In November, a green cardholder petitioning for a spouse under F2A could reasonably expect a visa to be available in about four months under the December Visa Bulletin.  Today, looking at the January 2011 Visa Bulletin, this person can expect to see a visa available for a spouse in about THREE YEARS. 

Many other preference categories are much more backlogged than the F2A preference category.  The obvious answer to the long waits under the visa bulletin is new legislation that adds visas to the system, but that fix may take a long time, as Congress does not appear to be moving in that direction.

Techological advances are certainly necessary to increase efficiency, but they can also cause trouble.  US agencies dealing with immigration have been making many technological advances in the past five years, and overall the changes have been positive, but they often begin with nagging issues.

The Department of Labor’s iCERT Visa Portal System (“iCERT”) is just one example of a system not yet perfected.  Employers need to use this system to submit a Labor Condition Application as an early step in obtaining an H-1B approval.  The Labor Condition Application requires employers to agree to certain attestations, such as a promise to pay the H-1B worker the prevailing wage.

A continuing problem with iCERT is its inability to match an employer with its Federal Employer Identification Number.  If its system does not make the match, it denies the Labor Condition Application.  The employer then must submit additional information to prove its existence.

This iCERT failure is fairly common, and it often results in a few days delay in filing an H-1B petition.   At first, the delays were much longer; thus, the system has been improved upon. 

If you are filing an H-1B petition, I would certainly recommend that you hire an immigration firm.  There are numerous potential issues concerning H-1B employment and the systems involved.  Garg & Associates attorneys have considerable experience with this very important visa category.

USCIS has quickly implemented a new law calling for more fees for L-1 and H-1B cases. Congress passed Public Law 111-230 in August. This law requires petitioning employers to pay an additional fee of $2,000 for H-1B petitions and $2,250 for L-1 petitions if the following applies: (1) the petition is for an initial L-1 or H-1B case, or for a change of employer, (2) the petitioner has more than 50 employees, and (3) the petitioner employs more than 50% of its employees in H-1B or L nonimmigrant status.

Armed with this tool to increase fees, the USCIS was fast in announcing that it would mandate payment of the fees immediately. The fee increase is very substantial for those employers that come within its reach. With companies already suffering from the slow recovery from the recession, the increase will undoubtedly be a burden.

You may contact us to see if your firm is subject to the new law, and to get an anaysis of other potential visa categories with fewer costs. The attorneys at Garg & Associates are committed to helping firms choose the most appropriate immigration strategy for their employees.

I have always appreciated a bargain. When I was a teenager, I remember telling everyone I knew what a good price a gallon a gasoline was. I think it was a little more than 30 cents, which meant I could fill my tank with five dollars. The dime phone call was a good deal. And I think seats in the Bleachers for a Dodger game were around $5.

Immigration visa fees were once a bargain, but those days seem rather distant. The Department of State recently raised nonimmigrant visa processing fees, and the USCIS is proposing new fee increases. Now, the Department of State is raising immigrant visa fees.

Some of the increases are substantial. Starting July 13, the employment-based immigrant visa processing fee will rise from $355 to $720. Family-based immigrant visa processing fees (when you include secuirty surcharge increases), will rise from $400 to $404, while the affidavit of support fee will rise from $70 to $88. The fee increases only involve visa processing at U.S. consulates and do not apply to processing in the United States.

Even though the government continues to raise immigration processing fees, foreign nationals will continue to pay them, since there is little alternative. If you have a question about rising fees or need any immigration assistance, you may contact the immigration lawyers at Garg & Associates.

While campaigning for the Presidency, Barak Obama pledged to immediately tackle immigration reform. I thought this promise made a lot of sense. After all, there are perhaps 12 to 15 million undocumented foreigners in the United States, those attempting the obtain permanent residence legally often must wait six, ten, fifteen or more years, and many of the visa caps and procedures seem completed off base when considering economic conditions or business needs.

Sadly, immigration reform is nowhere in sight. The President is not seriously moving discussions forward on the topic. States are attempting to take matters into their own hands. Immigrants hoping for positive changes are left with nothing to cheer.

I do not see immigration reform occuring this year, and I can only hope to see changes next year, after the elections. I also hope the President will lead on the issue. Who is elected in November and the extent of the President’s committment to immigration reform will have much to do with the direction of immigration laws.

Until immigration reform is enacted, Garg & Associates’ immigration attorneys will provide profeesional services to help clients work within the current framework of the law by utilizing its experience and creativity to obtain the best results.

Love can be a wonderful thing, but uniting with the loved one is not always a simple matter if you are marrying a foreign national. You may think that just because you are a U.S. citizen it should be easy to bring your foreign wife to the United States. It should be a fast, easy process, right?

Unfortunately, the immigration process can be much more lengthy than people imagine. First, even if your wife has a visitor visa, she may not be able to use it after her marriage to you. There is a presumption in the immigration rules that any visitor coming to the United States wants to stay here permanently, an impermissible intent under the B (visitor) visa. Thus, the visitor must overcome this presumption with his or her statements at admission. If someone is married to a U.S. citizen, the inspecting officer may not believe that the visitor will leave the U.S. as required within six months. Therefore he or she may refuse entry for your wife.

Moreover, obtaining an immigrant visa takes time. Anywhere from six months to, in extreme cases, years. The one thing that can save you much time and money is the retaining of an experienced immigration attorney. Any slip ups in the paperwork, misunderstanding of the rules, or other unfortunate errors, can cost an inspiring immigrant severe delay and loss of money. If possible, seek immigration advice before marriage, since there may be a strategy that you have not thought of. There are even times when marriage in the U.S. could work out better, but only if the correct immigration rules have been followed.

The immigration attorneys at Garg & Associates are very experienced in these matters.

Immigration has become a hot topic again ever since Arizona passed a new anti-illegal immigration law that could subject many legal immigrants to scrutiny by law enforecement personnel. There is no way to know whether this new law will stand or be overturned, but what is clear is that immigration is certainly in the spotlight.

What can be expected in the near future concerning immigration law? It is probable that Congress will take up immigration issues in the next few months in order to show that it is tuned into the controversies; but since it is an election year, it would be very surpising to see a comprehensive immigration bill signed into law. Look for action on a bill next year.

In the meantime, the visa bulletin remains extremely backlogged, which means that the wait for most immigrant visas is very, very long. The government is readying to conduct a record number of audits in H-1B and Religious Worker cases. And new systems, like the DOL electronic system to issue prevailing wages is not performing well and is creating backlogs in what used to be an efficent system.

Despite the mostly poor news I note above, there are some good signs in the direction of the all powerful immigration winds. Blowing our way is the fact that since April 1st, employers are once again able to submit H-1B petitions (for a start date of October 1st). I have also noticed that, in general, the USCIS is processing petitions and applications much faster than in past times.

This blog is sent to remind foreign nationals to consult with their immigration attorney before traveling outside of the U.S. They are many situations where traveling outside of the U.S. can harm a foreign national’s interests. Consider these examples:

• Most applicants for adjustment of status must wait to receive an advance parole document before leaving the U.S. If this rule is not observed, all of the expense for filing the adjustment application (lawyer fees, filing fees, medical exam fees, etc.) will be wasted. The government will consider the application abandoned in this situation. One exception to this rule occurs if the applicant is in H or L classification. You should consult your attorney to see if you are covered by an exception.
• A applicant for a Reentry Permit must wait until he or she has completed the biometric requirements before leaving the U.S. After filing for the Reentry Permit, the applicant must wait for the USCIS to send the applicant a biometrics appointment, and then attend the appointment. If this formality is not observed, the application is deemed abandoned.
• Green card holders should listen to their immigration attorney’s advice before traveling. There are a number of important rules for such individuals to keep in mind. For example, if a green card holder leaves the U.S. for more than six months, the government may very well question whether the person has given up permanent residence status. If the person leaves the U.S. for more than a year, permanent residence status is deemed abandoned. If the person has a Reentry Permit, these rules may not apply.

There are some exceptions to the rules stated above, but the point is that foreign nationals need to seek out immigration counsel to make sure they will not suffer adverse immigration consequences.