Philadelphia Immigration Lawyer Blog

I am pleased to report that a Writ of Mandamus that I filed on behalf of a client in the U.S. District Court for New Jersey resulted in very prompt approval of the client’s I-485 Adjustment of Status application—even before the government filed an Answer to the Writ.

The original I-485 was filed on February 27, 2007 by the minor child of a parent whose own employment based I-485 was filed on the same date.

The parent’s I-140 Immigrant Petition for Alien Worker and the parent’s I-485 application for adjustment of status were approved on October 27, 2007 but, for some unexplained reason, the minor daughter’s application was not decided at the same time. I waited for the daughter’s approval which should have routinely followed the mother’s approval---but nothing. After about 3 months of delay, I contacted the Texas Service Center by phone and mail and I was told I should expect a decision within 60 days.

60 days later, I contacted the TSC again and I was told again that I would have to wait another 60 days. When that second 60 day period ran, I advised the client to simply proceed with the Writ of Mandamus.

Actually, the waiting periods in this case were not as bad as some others. What bothered me about the delay was that there really could not have been any possible reason for the delay. There was nothing controversial about the minor’s daughter’s derivative application whatsoever—once the parent’s applications were approved, the daughter’s approval should have been routine.

I filed the Writ of Mandamus on May 28, 2008 and on June 22, 2008 I received a phone call from the U.S. Attorney who was assigned to the case that the daughter’s I-485 had just been approved!

This is not to say that Writs of Mandamus should be filed lightly or that they should be filed before there has been a truly unreasonable delay. But when there is an inexplicable, unreasonable delay and the facts justify filing the Writ, I recommend that client’s proceed with this extraordinary remedy.

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

Posted In: Citizenship and Naturalization , Employment Based Immigration

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A recent decision by the AAO shows how difficult, but not impossible, it is to satisfy the “exceptional hardship” requirement for obtaining a waiver of the requirement that a J-1 nonimmigrant exchange visitor return to her home country for 2 years before being eligible for an immigrant visa. Exceptional hardship in waiver cases is often very difficult to establish because “exceptional” means just that: exceptional. It’s something far beyond just the usual anxiety, loneliness and financial hardship that would be suffered by any loving family members who might be forced to separated from each other.

In this AAO case, the J-1 visa holder was required by regulation to return to her home county, the Philippines, because under the law, all J-1 exchange visitors who come to U.S. to receive graduate medical education must return home for two years before they can apply for permanent residency, unless certain waivers apply. In this case, the only waiver that was available was the “exceptional hardship” waiver. This required her to show that her departure “would impose exceptional hardship upon the alien’s [U.S. citizen or permanent resident] spouse or child”.

The AAO started its analysis by asking whether exceptional hardship would be suffered by the applicant’s spouse or child if the circumstances forced them to travel abroad with the applicant to the applicant’s home country. Just because they chose to stay in the U.S. while the applicant was required to return home, would not show “exceptional hardship”.

Even then, even if exceptional hardship abroad were shown, the AAO said that it still must be shown that the U.S. citizen or permanent resident spouse or child would suffer “exceptional hardship” here in the U.S. if the applicant simply went home alone.

In this case, the applicant offered evidence of exceptional hardship to the California Service Center of the USCIS but her application was denied. Fortunately, the AAO ruled in her favor in her appeal.

It first held that her U.S. citizen children would suffer exceptional hardship if they went to the Philippines with their mother. One child has bronchial asthma which would have worsened in the Philippine environment, the children lived in the U.S their whole lives, did not speak Tagalog and would be subject to kidnappings as U.S. citizens. The applicant wisely submitted affidavits and much documentary evidence about conditions in the Philippines.

The AAO was also satisfied . . . . .

Continue reading "J-1 Visa and the Exceptional Hardship Waiver - a Favorable AAO decision" »

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

Posted In: Employment Based Immigration , Family Based Immigration , Green Card

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On June 11, 2008, the USCIS announced that starting June 16, 2008, it will accept I-907 Premium Processing requests for I-140 applications (Immigrant Petition for Alien Worker) that are filed on behalf of alien workers who are near the end of their sixth year in H-1B nonimmigrant status.

Requests for premium processing will be accepted for I-140 petitions that are filed on behalf of those who are 1) currently in an H-1B nonimmigrant status; 2) whose sixth year in H-1B status will end within 60 days; 3) who are only eligible for a further extension of H-1B nonimmigrant status under section 104(c) of AC21* and 4) who are ineligible to extend their H-1B status under section 106(a) of AC21**.

*Section 104(c) of AC21 permits someone in H-1B status to extend their stay in increments of up to three years if they are the beneficiary of an approved Form I-140 and if an immigrant visa is not immediately available.

**Section 106(a) of AC21 permits someone in H-1B status to extend their stay in increments of up to one year, provided the Form I-140 petition or underlying labor certification has been pending for at least 365 days.

This change will really help those who otherwise would not be able to maintain status while waiting for normal processing times for their I-140 and where because an immigrant visa is not immediately available, they would not be able to file their I-485 application to adjust to permanent residency status when their I-140 is filed.

With premium processing, the USCIS will make a decision on the I-140 within 15 calendar-days from the time of filing the I-907 request for such premium processing.

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

Posted In: Employment Based Immigration , H-1B , News

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On June 9, 2008, DHS Secretary Michael Chertoff announced that EAD authorization periods for those with pending adjustment of status applications will soon be granted for two year periods rather than the current one year period. He announced the change in a “State of Immigration” address he gave with Commerce Secretary Gutierrez in Washington.

The change is a very welcome one. By doubling the validity period for work authorization, it will mean less expense (the filing fee for the I-765 alone is $340.00) and hassle for those with pending adjustment applications. The change is supposed to start later this month.

Here is the quote from Secretary Chertoff’s remarks:

“. . . I'm also pleased to announce that we will be extending the validity period of the employment authorization documents that we issue to individuals who are waiting adjustment of status to lawful permit residency or in colloquial phrase, the green card.

Currently, adjustment applications are granted employment authorization documents with only a one year maximum validity. Beginning later this month, we'll start issuing these documents with a two-year validity period for aliens who are waiting adjustment of status if their application is expected to be pending for more than a year.

This, again, is eliminating a persistent source of frustration for workers who are here, who have a pending adjustment application but have to go and renew their employment documents every single year. It's going to cut the paperwork there. . .”

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

Posted In: Employment Based Immigration , News

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On June 2, 2008, the Department of Labor announced that it is now auditing all permanent labor certification applications filed by attorneys at Fragomen, Del Rey, Bernsen & Loewy. DOL says that it is doing so because of information it says it received that in at least some cases the Fragomen firm improperly instructed clients who filed permanent labor certification applications to contact their attorney before hiring U.S. workers who allegedly were qualified.

During this auditing process, DOL will decide which, if any, applications should be denied or placed into department-supervised recruitment.

The permanent labor certification process allows employers to sponsor aliens for permanent residency but only where it been established through a strict, detailed recruitment process that there is no qualified, willing and available U.S. worker to fill the position. The employer’s attorney is not supposed to be involved in the recruitment process (unless he or she is typically involved in the employer’s hiring).

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

Posted In: Employment Based Immigration

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On May 31, 2008, opponents of the DHS decision to extend Optional Practical Training (OPT) to 29 months (under certain limited circumstances) have challenged that decision in U.S. District Court in Newark, New Jersey. The lawsuit was filed by the so-called Immigration Reform Law Institute and it was joined by the Programmers Guild and some other groups such as the American Engineering Association and Brightfuturejobs.com.

It’s questionable whether these parties even have standing to bring the lawsuit. Assuming that they have standing, it’s clear that the suit has no merit whatsoever.

DHS, which announced the new rule on April 4, 2008, wisely extended the period of OPT from 12 to 29 months for certain qualified F-1 non-immigrant students who have a degree in science, technology, engineering, or mathematics (STEM) and who are employed by businesses enrolled in the E-Verify program.

The whole purpose of the rule change is to do what’s necessary to attract and retain highly skilled foreign workers that will help U.S. companies stay competitive in today’s world economy. If the U.S. doesn't welcome these highly skilled workers, other countries certainly will.

The new rule also addressed the situation where an F-1 student’s status and work authorization expires before he or she can begin employment under the H-1B visa program by automatically extending the period of stay and work authorization for all F-1 students with pending H-1B petitions. Finally, the new rule will also allow students to apply for OPT within 60 days of graduation.

I’ll post updates on the progress of the suit which I am confident will ultimately be dismissed.

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

Posted In: Employment Based Immigration , H-1B

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Here is the June, 2008 Visa Bulletin. I would only point out that Section D notes expected retrogression in the Family 2A category for Mexico and that Section E notes that the Employment Third preference (EB3) category is close to the annual numerical limit.

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

Posted In: Employment Based Immigration , Family Based Immigration

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On March 25, 2008, the 9th Circuit Court of Appeals held that a non-citizen who enters the U.S. by fraudulent means is statutorily ineligible for adjustment of status because that non-citizen has not been “admitted.” The case is Orozco v. Mukasey, 521 F.3d 1068(9th Cir. 2008). In this case, the non-citizen entered the U.S. through a checkpoint where he was inspected but he did so with someone else’s green card. He then married a U.S. citizen who filed an I-130 on his behalf and the I-130 was approved. Sometime thereafter he was put in removal proceedings where he tried to adjust his status to permanent residency because of his marriage and the approved I-130 and he asked for a 212(i) fraud waiver.

The Immigration Judge denied Orozco’s application for adjustment on the grounds that to adjust status, one must have been lawfully “admitted” to the U.S. and because of his fraudulent entry, Orozco was not “lawfully admitted”. The IJ held that the law defines "admission" as the "lawful entry of the alien into the U.S. after inspection and authorization".

The IJ ruled that the 212(i) fraud waiver, even if granted, wouldn’t change the lack of “admission”. The BIA affirmed and the federal court then upheld the IJ and the BIA.

The court’s ruling is binding law in the 9th Circuit only and, in fact, a federal court in the 2nd Circuit ruled completely differently (Emokah v. Mukasey).

On May 12, 2008, the 9th Circuit stayed its ruling for 60 days to allow the parties to file for rehearing so this ruling may not be the last word in the Circuit. Certainly if the case does hold up, one issue for future cases will be whether Orozco controls only where the non-citizen affirmatively enters the U.S. in a fraudulent manner--that is, knowing full well that his documents are counterfeit, as opposed to someone who presents himself at a point of entry with a fraudulent document but is waived through without actually showing it.

I’ll up the post when there is a decision on any re-hearing.

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

Posted In: Employment Based Immigration , Family Based Immigration , Green Card

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The USCIS has published a Notice of Proposed Rulemaking that, if enacted, would increase the maximum amount of time a TN visa holder can remain in the United States before needing to renew his or her stay from one year to three years. The TN visa is a nonimmigrant visa that is available under NAFTA and it’s available to Canadian and Mexican citizens who have a minimum of a bachelor’s degree or who have appropriate professional credentials, who work in certain professions that are listed in the NAFTA regs (Appendix 1603.D.1 to Annex 1603)

Under the proposed rule, the TN visa holder would also be able to apply for extensions of stay in 3 year increments rather than the present one year increment.

The current rule that TN visa extensions can be granted indefinitely would remain the same.

This change would be a welcome, common sense change to the TN visa program. The three year stay would put the TN visa holder on par with H1B professionals who can be granted stays in 3 year increments (although H1B visa holders are generally limited to a maximum of 6 years in H1B status).

The rule change will make it administratively much easier for both U.S. employers and the TN visa holders, not to mention cheaper, too.

Here is the actual proposed rule. The USCIS will accept comments for 30 days before taking further action.

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

Posted In: Employment Based Immigration

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On April 29, Rep. Zoe Lofgren (D-CA) introduced a bill (that has been co-sponsored by Bob Goodlatte (R-VA)), that would eliminate the arbitrary per-country caps for employment-based immigrants.

Currently, the number of employment-based immigrants that can come from any one country per year is capped at 7% and because of this, certain Chinese or Indian employment-based immigrant applicants face up to a decade or longer for a green card. So a top post-graduate at the top of his or her class at a school such as Johns Hopkins or MIT, for example, can sometimes wait much longer than a student from a less-populated country.

The cap is completely arbitrary and makes no sense at all.

The bill is a good example of a lawmaker offering a common sense solution to a problem that presently restricts the opportunity for U.S. employers to employ the talent they want to employ based on just that—talent alone and not country of origin.

I’ll post updates on the bill.

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

Posted In: Employment Based Immigration

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According to a study published in Business Week’s on-line April 25, 2008 edition, the Administration’s effort to get tough on immigration enforcement (perhaps in an effort to get everyone back to the table to agree on comprehensive immigration reform) (see my posting of April 22, 2008 here) will cost U.S. employers more than $1 billion a year and U.S. workers $billions in lost wages. These numbers are not from some left-wing think tank—they are from the U.S. Chamber of Commerce.

According to the study, the Administration’s proposed "no match" rule (which will effectively require employers to fire workers when a social security number mis-match cannot be resolved in time) will impose a heavy cost on employers.

By the Department of Homeland Security’s own admission, two percent of legal workers a year will lose their jobs because they can't resolve the mismatch. Translated, that means between 37,000 to 137,000 legal workers will be unable to get work and lost wages will be from $8 billion to $37 billion.

Hopefully studies like this in combination with the constant news of ICE workplace raids will get all sides to agree that somehow, either before or soon after the presidential election, work on comprehensive immigration reform has to be a priority.

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

Posted In: Employment Based Immigration

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I recently obtained H-1B approval (not a FY 2009 cap case) for a therapist who required licensing in the State of New Jersey but who could not obtain that licensing until after the H-1B petition was approved.

Matters like this can present a classic Catch-22 situation: on the one hand, the H-1B Beneficiary cannot obtain the required license that is necessary to practice his or her profession from a State but they can’t get that license without first obtaining H-1B approval; on the other hand, the USCIS may not approve the H-1B petition without proof that the Beneficiary has obtained the required license.

A recent Memorandum by the USCIS provides common sense guidance to adjudicators in deciding such cases. The Adjudicators Field Manual (Chapter 31) has now been updated to allow for a temporary, one-year USCIS approval of the H-1B petition (assuming all other requirements have been met) that then allows the State (or other licensing authority) to issue the license.

In order for the USCIS to approve the H-1B petition for this one year period, the Beneficiary must prove that he or she has filed an application for the required license and that they are fully qualified to receive the license (that is, that the H-1B beneficiary has met all the educational, training, experience and any other requirements required for the license).

It is incumbent upon the employer and Beneficiary to file a timely request to extend the H-1B status during this one year time period with proof that the Beneficiary has, by then, obtained the license.

The USCIS makes it very clear in the Memorandum that this one year approval does NOT imply that it is authorizing the Beneficiary to actually work at the job that requires the license—the State must issue the license first.

Here is a copy of the USCIS Memorandum.

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

Posted In: Employment Based Immigration , H-1B

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On April 24, 2008, the USCIS announced that it is modifying Form I-765, Application for Employment Authorization, to include additional eligibility codes so that the application is consistent with the DHS new rule for extending OPT status for certain qualified F-1 students. A deadline for using the old edition has been announced. Here is the announcement.

For all I-765 applicants, the USCIS will accept the July 30, 2007 edition of the form only through July 8, 2008.

Starting July 9, 2008, however, the USCIS will only accept the new, revised Form I-765 which has an edition date of April 8, 2008.

Here is my prior entry providing the detail on the new eligibility codes.

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

Posted In: Employment Based Immigration

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In its April 21, 2008 edition, the Houston Chronicle reports on what many businesses are already learning the hard way – that ICE workplace enforcement of immigrant law is way up and still increasing. ICE raided the Shipley Do-Nuts warehouse complex in Houston last week as a part of a very concerted effort at what is calls “interior enforcement” of the law.

The raid followed another high profile ICE raid of a chain of Mexican restaurants in New York, Pennsylvania, West Virginia and Ohio in which the owner of the restaurant chain and nine of his managers were arrested on criminal charges.

The raids appear to be part of an effort by the Administration to get comprehensive immigration reform back on Congress’ agenda. The Administration’s thinking may be that if the raids make life so untenable for everyone - - the undocumented workers, the business community, local politicians who feel enforcement has been hoisted on them - - then maybe everyone will come back to the table and talk about real and comprehensive reform. Company owners, managers (including middle managers) and supervisors, human resources managers, union business agents are all being targeted; they are hardly immune from prosecution. Worksite criminal arrests by ICE increased to 863 in 2007 from 176 in fiscal year 2005 which is an increase of 490 percent.

We’ll see. But in the meantime, employers and undocumented employees have to understand that the USCIS is serious about enforcing immigration laws related to hiring undocumented workers and the penalties are harsh.

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

Posted In: Employment Based Immigration

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I was pleased today that I received the last of the receipt notices for all of the premium processed H-1B applications that I filed on April 1.

The last receipt notice was emailed to me today by the Vermont Service Center followed later tonight by an emailed approval notice on the same matter.

I have not received receipt notices on non-premiumed processed H-1Bs yet.

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

Posted In: Employment Based Immigration , H-1B

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On April 18, 2008, the USCIS announced that it would allow F-1 students who are the beneficiaries of selected H-1B petitions for fiscal year 2009 to request a change of status in lieu of consular processing.

This rule change will greatly benefit students who otherwise would have a gap between the end of their F-1 student status and the start date for their H-1B status. The April 18th announcement is a follow-up to an interim final rule that was announced by the USCIS on April 8th that automatically extended the F-1 status of students who are the beneficiaries of approved H-1B petitions so that this gap can be covered.

F-1 Students will get the automatic extension if they are the beneficiary of an H-1B petition filed for the 2009 fiscal year and if they already requested a change of status as part of their H-1B application.

Students should be aware however that if the USCIS ultimately rejects or denies the H-1B petition, the automatic extension will also terminate at the same time.

If you, understandably, thought that you did not qualify for an extension when your H-1B petition was filed and thought that you needed to depart the U.S. and consular process for your H-1B visa, you can now request a change of status. Your request has to be received within 30 days of the issuance of the receipt notice.

To request a change of status in lieu of consular notification, you (or your lawyer) need to send an e-mail with the change of status request to the USCIS Service Center where your petition is pending. You have to do this within 30 days after you get the H-1B receipt notice. There are specific USCIS email addresses for each service center for just this purpose.

Your request has to include the I-129 Petition receipt number, the petitioner’s and beneficiary’s name, the beneficiary’s date of birth, the I-94 number, and the SEVIS number. Here are the email addresses:

For the Vermont Service Center:

For Premium Processing cases: VSCPPCAPGAP.Vscppcapgap@dhs.gov
For Non-Premium cases: VSCNONPPCAPGAP.Vscnonppcapgap@dhs.gov

For the California Service Center

For Premium Processing cases: CSC.ppcapgap@dhs.gov
For Non-Premium cases: CSC.nonppcapgap@dhs.gov

Please contact me if you have any questions or if you need any assistance in requesting the change of status.

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

Posted In: Employment Based Immigration , H-1B

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