Philadelphia Immigration Lawyer Blog

A tentative settlement of a class action lawsuit that was filed in Federal Court in Philadelphia in December, 2006, that is challenging the delays by the USCIS in deciding applications for both adjustment of status (Form I-485) and naturalization (Form N-400) for applicants who either are or were receiving SSI benefits has been reached, subject to final court approval, in February, 2008.

The issue in the case involved delays in adjustment and naturalization applications where the delays are resulting in actual or possible cut-off of SSI benefits. SSI benefits are paid to severely disabled, blind and elderly poor people and the class action suit was filed because the payments had been stopped to about 12,000 refugees and asylees because USCIS delays were preventing from them becoming U.S. citizens, something that is a new SSI eligibility requirement.

The class action suit does not involve delays in USCIS adjudication of adjustment or naturalization applications filed by anyone not affected by the possibility of an SSI benefit.

The tentative settlement agreement provides that any class member may request Expedited Processing from the for pending applications for naturalization or adjustment of status, or for future applications for naturalization or adjustment of status filed while the settlement agreement is in effect, if six months have elapsed since the filing of the application without a decision. The USCIS has agreed to request priority processing of any pending or future security checks and it will give the earliest available appointment for any such applications that requires an appointment. Also, if an Oath of Allegiance is required, the USCIS promises to schedule the Oath at the next available opportunity.

If a class member has a pending Form I-485 or Form N-400 and has received or is receiving SSI benefits, he or she (or a representative) may call the USCIS at 1-800-375-5283 (which is the USCIS I-800 number) and request this new Expedited Processing.

The idea, of course, is to make sure that applicants who depend on receiving their SSI check not lose out on their benefits just because the USCIS is delaying a decision on their case.

A hearing has been set in Philadelphia for February 29, 2008 to finalize the class action settlement.

Posted by James M. Tyler | Permalink | Email This Post

Posted In: Citizenship and Naturalization

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Here is another in a series of postings I intend to do on H1-B visa because H1-B season is soon upon us. As I mentioned in an earlier posting, the H1-B filing date this year will be April 1, 2008 and it's not too soon to get started on getting applications ready for filing on that date.

Let's start with H1-B basics and I will follow up with subsequent postings about many other H1-B issues.

What is an H1B visa?

An H-1B visa is a nonimmigrant classification used by a foreign worker to obtain temporary employment in the U.S. in a specialty occupation. It is a very common method by which U.S. employers bring in professional level foreign employees.

What is a specialty occupation?

A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. Examples include engineering, mathematics, physical sciences, medical and health jobs, business specialties, accounting, law, theology and architecture among many others.

What is the H1-B annual "cap"?

There is an annual fiscal year limit of 65,000 aliens who may be issued an H1-B visa. There are an additional 20,000 H-1B visas that are available to graduates of U.S. masters degree (or higher) programs.

Are all H1-B visas subject to the cap?

Continue reading " H1-B Visa - the Basics " »

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Posted In: Employment Based Immigration , H-1B

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Here is the February 2008 Visa Bulletin as published by the United States State Department.

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Posted In: Employment Based Immigration , Family Based Immigration

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Business Week reported in its January 28, 2008 issue that more and more U.S. community colleges are marketing themselves abroad in hopes of attracting foreign students who can obtain F student visas and the result is a win-win for the schools and the foreign students.

The community college keeps its enrollment up and it benefits from the multicultural exposure the foreign students provide and the foreign student gets a U.S. education with the option of later transferring to a four year program. For example, Diablo Valley College is right near the University of California's Berkeley campus, a selling point for foreign students who might want to eventually transfer there.

Community colleges are marketing not only in places like Vietnam and other South East Asian countries but also in Eastern Europe, Latin America and the Middle East.

Definitely win-win.

Posted by James M. Tyler | Permalink | Email This Post

Posted In: Student Visas

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A client of mine who is applying for naturalization couldn’t recall whether he registered with the Selective Service Agency and it was easy enough to find out. Since he is a male who was in the United States in immigrant status between the ages of 18 and 26, it was required that he register and registering is a prerequisite (under the circumstances I describe below) for naturalizing. We were able to go to the Selective Service Agency’s website and by inputting his name, Social Security number and date of birth we were able to confirm he did register (and got an instant, printable confirmation that he had done so) back in 1980.

Here are the basic rules about registering with Selective Service before applying to naturalize to U.S. citizenship.

First, the law (technically the Military Selective Service Act) requires every male citizen of the United States, and every other male person residing in the United States who is between 18 and 26 years old to register with the Selective Service Agency. “Male person residing in the United States” makes the law applicable to green card holders—permanent residents. The law does not apply to any female and it doesn’t apply to males who are in non-immigrant status. For example, it doesn’t apply to male students holding F student visas. It also doesn’t apply to any male who wasn’t even in the U.S. when they were between the ages of 18 and 25.

Second the law requires any naturalization applicant to prove (among several other things) that he or she declare a willingness to bear arms on behalf of the United States when required by law. Therefore, the USCIS will not approve a naturalization application for a male who knowing and willful failed to register for Selective Service if he was required to do so.

So what happens if a naturalization applicant was supposed to register with Selective Service but didn’t? Fortunately, the failure to register is not a permanent bar to naturalization. However, if the applicant simply refused to register or knowingly and willfully failed to register if he was required to, then his application is going to be denied.

A male under 26 years of age who has refused to register for Selective Service will not be

Continue reading " Naturalization and Selective Service " »

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Posted In: Citizenship and Naturalization

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I have received a few calls about the specific new address for the USCIS Philadelphia Application Support Center where fingerprinting and biometrics are taken in support of various USCIS immigration applications.

The new address is 10300 Drummond Road, Suite 100, Philadelphia, PA 19154.

Here is the link to directions.

If you are familair with Philadelphia, basically it's located in the Northeast section of Philadelphia off Roosevelt Boulevard near the Philadelphia Northeast Airport.

Posted by James M. Tyler | Permalink | Email This Post

Posted In: Citizenship and Naturalization

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Your N-400 Naturalization application has been pending for one year, two years, three years. You make an InfoPass appointment to ask about the delay and you’re told that your application still being processed without any further explanation.

I am beginning to take more frequent calls about just this scenario from understandably frustrated citizenship applicants.

One possible response is to file a Writ of Mandamus in federal court to compel the USCIS to act on your N-400. Writs of Mandamus are now being used with more frequency and with more success by immigration lawyers to get action on their clients’ applications for both citizenship and adjustment of status applications when the government’s delay is unreasonable and inexplicable. Here are the basics:

Basically, a Writ of Mandamus is filed against the USCIS to get a Federal Judge to order the USCIS to do what it is required to do anyway but, for some reason, is just not doing. Technically, the claim is filed under 8 United States Code 1447(B). Usually, the government’s answer is that it’s doing a thorough, time-consuming security check and that’s why the process is taking so long. Federal Courts, however, have not been reluctant to order the government to act and in the United States District Court in Philadelphia, the Court has recently been very open to such claims by naturalization applicants.

Continue reading " N-400 Naturalization / Citizenship Application Delay – Consider Filing a Writ of Mandamus " »

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Posted In: Citizenship and Naturalization

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It’s not too early to start preparing for April 1, 2008, which is the first day the USCIS will begin accepting H1-B visa applications for the 2009 fiscal year. If last year is any indication, April 1 may also be the last day for filing too! It seems virtually certain that the H1-B cap for the 2009 fiscal year will be reached, just like last year, on the very first day for filing.

The H1-B visa program is the very popular way that U.S. employers are able to hire highly educated foreign professional workers for "specialty occupations" - jobs that require at least a bachelor's degree or the equivalent in the field of specialty. H1-B visas are limited to 65,000 per fiscal year (which are actually reduced by a specific allocation of 6,800 H1-B visas that are set aside each fiscal year for nationals of Singapore and Chile). There is also an additional 20,000 H1-B visas that are available to those with Masters Degrees or higher, earned from a U.S. university.

Employers need to start planning now, as do graduating foreign students who are in the United States in F visa status who hope to qualify for an H1-B visa.

Given the last minute crush of applications last year, one of the very practical problems I experienced as an immigration attorney was obtaining the required degree equivalency report where the beneficiary of the H1-B application obtained their degree from a foreign college or university. Last year, the several services that provide such equivalency reports were so inundated with requests in the week or so leading up to the first day for filing that many of them could not guarantee that their report would be ready in time for filing day. We all need to keep this in mind this year and get those reports done as much in advance as we can.

One of the other issues was getting the appropriate letter from a college or school where the student had completed all the academic requirements for, say, their Masters but were not going to get their actual Masters degree diploma until later in May or June.

Over the next few weeks, I intend to post articles on this blawg on various aspects of the H1-B program—set out the basics of the visa itself, outline the application process, discuss what H1-B applications are not subject to the annual cap, describe alternatives to an H1-B visa when someone is shut out once the cap is reached, etc. In a few days, I start with a posting on the basics of an H1-B visa.

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Posted In: Employment Based Immigration , H-1B

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Microsoft Chairman Bill Gates has testified before Congress on many occasions, criticizing the 65,000 cap on the number of H1-B visas that are issued annually to highly skilled foreign workers so they can come to the U.S. to work. Congress continues to refuse to raise the cap despite similar pleas from other high-tech employers and so Microsoft has come up with a solution – A Canadian solution.

As reported in this week’s edition of Business Week, Microsoft had opened a plant in Richmond, British Columbia, just 130 miles away from its Redmond, Washington headquarters. The Richmond office is staffed with 126 Microsoft engineers from 26 different companies, many who could not obtain H1-B visas to work in the U.S. because of the cap.

From British Columbia, the workers can collaborate with their fellow Microsoft workers in the U.S. (in the same time zone of course) and, whenever necessary, drive over the Peace Arch border to meet face-to-face.

Canada makes it very easy by not imposing any limits of visas for skilled workers.

This is hardly a solution that makes sense for the U.S. and its struggling economy but no one can blame Microsoft for doing what it needs to do. The better and longer term solution would be for Congress to eliminate the H1-B cap altogether.

Posted by James M. Tyler | Permalink | Email This Post

Posted In: Employment Based Immigration , H-1B

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An agreement has been reached in the federal lawsuit that challenges the new Legal Arizona Workers Act—prosecutions under the new law, which actually took effect on January 1, 2008 will not start until March 1, 2008. This will give Federal Judge Neil V. Wake more time to consider the legal challenges that have been raised by a very varied group of plaintiffs. The Judge has promised to rule no later than early February.

In the meantime, some Arizona legislators have introduced bills that would amend some of the more controversial provisions of the law—for example, whether the law will apply to all current employees or only those hired after January 1 of this year. According to the Arizona Republic, two Republicans state legislators who voted for the bill now say they regret their vote.

The law allows Arizona courts to suspend or revoke the business license of any Arizona business that intentionally or knowingly employ illegal immigrants. It also requires Arizona employers to use the E-Verify system to check the legal status of all new hires. E-Verify is a free, voluntary, online federal program that enables employers to check names and identification documents of new hires to confirm their employment eligibility. However, the online system, by the federal government’s own admission, is fraught with problems.

I’ll post updates as the litigation continues.

Posted by James M. Tyler | Permalink | Email This Post

Posted In: Employment Based Immigration

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Here are the latest USCIS processing times as announced on January 15, 2008 for the California Service Center, the Vermont Service Center, the Nebraska Service Center and the Texas Service Center.

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On January 15, 2008, I was privileged to give a presentation to the Delaware Chapter for the Society of Human Resource Management (SHRM) on recent developments in I-9 compliance and the proposed Department of Homeland Security No-Match letter regulation. The presentation was given before the Delaware SHRM Chapter at the Cavalier Country Club in Newark, Delaware.

I discussed recent changes in the I-9 form itself and changes in the List A documents that are now accepted as proof of identity and work authorization and I provided an update on the DHS proposed regulation regarding No-Match letters now being litigated in Federal Court in California.

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Posted In: Employment Based Immigration

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The States Department has announced that its new “U.S. Passport Card” can be applied for starting February 1, 2008 but the Card really only seems to have benefit for border residents who regularly and frequently cross the border.

It can only be used at land and sea ports of entry (NOT airports) and only when arriving from Canada, Mexico, the Caribbean or Bermuda. It’s basically intended to be an easier and less expensive alternative to a traditional passport but only for a very specific group—border residents who don’t otherwise have a need for a traditional passport.

The Card can be applied for starting on February 1 and the State Department says they will start being issued in the Spring.

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Posted In: Passports, Travel Documents

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On January 4, 2008, the U.S. Citizenship and Immigration Services (USCIS) announced that its suspension of premium processing services for religious worker (R-1) visa petitions will be extended again--until July 8, 2008.

With “premium processing” the USCIS provides much faster processing of certain employment-based petitions and it guarantees that it will make a decision on those petitions within a 15-calendar day processing time. In these matters, that means that once the R-1 application is received, the USCIS, if premium processing is requested and paid for, will decide the case within 15 calendar days.

The USCIS blames the “complexities” involved in these nonimmigrant religious worker petitions for its inability to ensure premium processing service within 15 calendar days.

Posted by James M. Tyler | Permalink | Email This Post

Posted In: Employment Based Immigration

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