H-1B Update

December 10, 2010 H-1B Cap Count

As of December 10, 2010, approximately 52,400 H-1B cap-subject petitions were receipted (cap is 65,000). Additionally, USCIS has receipted 19,100 H-1B petitions for aliens with advanced degrees.

Visa Bulletin for January 2011

Some interesting visa numbers for January 2011, especially in the EB3 category for Mexico………..

 

Visa Bulletin For January 2011

 

Family	All Chargeability Areas Except Those Listed	CHINA-mainland born	DOMINICAN REPUBLIC	INDIA	MEXICO	PHILIPPINES
1st	01JAN05	01JAN05	01JAN05	01JAN05	08JAN93	01JUN94
2A	01JAN08	01JAN08	01JAN08	01JAN08	01APR05	01JAN08
2B	15APR03	15APR03	01MAR02	15APR03	22JUN92	15MAY99
3rd	01JAN01	01JAN01	01JAN01	01JAN01	22OCT92	22OCT91
4th	01JAN02	01JAN02	01JAN02	01JAN02	22DEC95	01JAN88

 

Employment- Based	All Chargeability Areas Except Those Listed	CHINA- mainland born	DOMINICAN REPUBLIC	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C	C
2nd	C	22JUN06	C	08MAY06	C	C
3rd	22MAR05	15DEC03	22MAR05	01FEB02	15APR03	22MAR05
Other Workers	22APR03	22APR03	22APR03	01FEB02	15APR03	22APR03
4th	C	C	C	C	C	C
Certain Religious Workers	C	C	C	C	C	C
5th	C	C	C	C	C	C
Targeted Employment Areas/ Regional Centers	C	C	C	C	C	C
5th Pilot Programs	C	C	C	C	C	C

Update on DREAM Act

Majority Leader Reid Reintroduces DREAM Act (S.3992)

On 11/30/10, Senate Majority Leader Harry Reid (D-NV) filed a new version of the DREAM Act (S.3992) with the aim of attracting broader support for DREAM to get the requisite 60 votes to pass the Senate during the current "lame duck" session of Congress.

The earliest Reid could file a cloture motion on the new bill would be this coming Thursday, December 2nd. After waiting out the requisite 30 hours post-cloture, it could "ripen" over the weekend, and effectively come up for a vote on Monday, December 6th at the earliest.

The new version addresses many of the concerns raised by Republicans and tightens the restrictions on eligibility in several respects. Among other changes, the new version does the following:

• Excludes from eligibility those with certain criminal convictions, such as for offenses punishable by a maximum term of more than 1 year (felony) or 3 misdemeanors
  
• Requires all applicants to provide their biometric data to DHS, to submit to background checks and medical examination, and to register for military selective service
  
• Requires applicants to pay all taxes
  
• Sets the cut-off age to those who are less than 30 years-old on the date of enactment
  
• Provides a "safe harbor" from removal only to those applicants who present a prima facie case of eligibility
  
• Extends the good moral character requirement back to the date the alien entered the United States rather than the date of enactment of DREAM
  
• Expands the applicable grounds of inadmissibility to include the health-related, public charge, smuggling, draft dodging, and unlawful voting grounds
  
• Expands the applicable grounds of deportability to include public charge, unlawful voting, and marriage fraud grounds
  
• Excludes those who participated in persecution
  
• Clarifies that no one can apply before 1 year after enactment
  
• Requires applicants to demonstrate eligibility by a preponderance of the evidence
  
• Eliminates repeal of the in-state tuition ban
  
• Defines institution of higher education to include only U.S.-based programs
  
• Requires those who subsequently apply for adjustment to meet the English language and civics requirements typically required for naturalization
  
• Expands the circumstances where disclosure of confidential information about DREAM applicants is required for homeland security or national security purposes
  
• Creates conditional nonimmigrant status for 10 years, followed by 3 years of LPR status prior to application for naturalization
  

Senator Durbin (D-IL) has also recently introduced two paired down versions of the DREAM Act (S.3962) and (S.3963) in the hopes of getting the bill passed during the lame duck session.

BUT, in order for the DREAM Act to pass we must keep the pressure on Members of Congress. It's more important than ever that you take action TODAY by writing and calling your member of Congress and urging them to support this common-sense and urgently needed immigration measure.

DREAM Act Update

See below, hopefully Congress will act on this quickly in a positive way.

 

Dan

 

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Date: Wednesday, November 17, 2010

 
 

CONTACT: Jim Manley, (202) 224-2939

 
 

 
 

REID WILL INTRODUCE DREAM ACT AS STAND ALONE BILL

Washington, D.C.--Senate Majority Leader Harry Reid released the following statement today announcing that he plans to bring up the DREAM Act as a stand-alone bill for a vote during the lame duck session.

"If there is a bipartisan bill that makes sense for our country economically, from a national security perspective and one that reflects American values, it is the DREAM Act. This bill will give children brought illegally to this country at no fault of their own the chance to earn legal status. Children brought to this country before the age of 16 who graduate high school, stay out of trouble and go on to serve in the military or to college would be eligible to earn permanent resident status after meeting certain other requirements.
 
"Secretaries of Defense from both parties have supported this bill because it strengthens our Armed Forces. In fact, this bill has a long history of bipartisan support, and was originally co-authored by Republicans. The students who earn legal status through the DREAM Act will make our country more competitive economically, spurring job creation, contributing to our tax base and strengthening communities.
 
"Last time we sought to bring up this bill, all Republicans blocked our effort, even though many have been supporters of the DREAM Act in the past. I hope that our Republican colleagues will join me, Sen. Durbin and Democrats in passing this important piece of legislation, now that we have a stand-alone version and that political season is over." 

 
 

###

 

H-1Bs And Arrests

See below commentary regarding issues related to enforcement efforts. Without going into too much detail about how poorly many of the service centers operate, and how little coordination there is between the various agencies of the DHS after the breakup of the INS, it would seem that enforcement efforts could be focused on those truly have run out of options and appropriate determinations have been made that options have run out? We are seeing strange denials on extension requests for people who have been in valid H1B status for many years. While these cases can often be appealed and rectified, it is frankly beyond comprehension why it is in the interest of the US to not only deprive US employers of employees who are not violating any laws and for which determinations may have been made in error, but also then seek to arrest and deport professionals (H1B petitions require that the job is professional in nature and requiring that the foreign national house at least a US bachelor's degree or its equivalent)? There's no question that laws need to be followed and upheld, but it is very unfortunate when the government flexes its powers often times for more political than actual reasons……. Congress needs to act quickly for comprehensive immigration reform which likely would jumpstart the economy again……… Dan ********************************************************************     For Immediate Release   Legal Action Center Argues H-1B Employees Should Not Face Arrest While Extension Requests Remain Pending   November 8, 2010   Washington D.C. - Late last week, the Legal Action Center of the American Immigration Council (LAC), together with the American Immigration Lawyers Association (AILA), filed an amicus brief arguing that an H-1B employee should not face arrest, detention or deportation after his initial period of admission expires if a pending extension request remains under review. The brief, filed in federal district court in Connecticut, maintains that H-1B employers who follow the law should not lose valuable employees because of widespread delays at immigration processing centers."Both existing law and common sense dictate that the government cannot sit on an employer's H-1B extension request and then arrest the employee due to its own processing delays," said Melissa Crow, director of the Legal Action Center.     The LAC filed the brief on behalf of a Lebanese national represented by the Worker and Immigrant Rights Advocacy Clinic at Yale Law School and the Asian American Legal Defense and Education Fund.  The plaintiff was gainfully employed when his employer requested an H-1B extension in early 2004, more than a month before the deadline.Though his employer paid a $1,000 "premium processing" fee to obtain a decision within fifteen business days, the government neither approved nor denied the application and refused to respond to requests for information.Nearly seven months after the extension request was filed, but before DHS had decided it, immigration agents arrested the plaintiff for allegedly "overstaying" his visa.      While federal law permits H-1B employees to remain in the United States for up to six years, the government grants visas for only three years at a time. Typically, the government may seek to remove noncitizens who overstay a temporary visa. But a federal regulation specifically permits an H-1B employee to continue working for up to 240 days after his initial period of admission expires so long as his employer filed an extension request before that period ended.      In the amicus brief, LAC and AILA argue that the automatic extension of work authorization should prevent the government from arresting H-1B employees while their employers' extension requests remain pending. With supportive declarations from three prominent companies that rely on H-1B workers, the brief further argues that subjecting noncitizens in the plaintiff's position to arrest would threaten to disrupt key sectors of the U.S. economy and undermine the goals of the H-1B program.      ###     For more information contact Wendy Sefsaf at 202-507-7524 or wsefsaf@immcouncil.org

___________________________________________________________________________     The Legal Action Center strives to increase the accountability of government agencies that administer the immigration laws and to ensure these laws are interpreted and implemented in a way that honors fundamental constitutional and human rights. The LAC engages in impact litigation, appears as amicus curiae (friend of the court) before administrative tribunals and federal courts in significant immigration cases on targeted legal issues, and has long worked to protect the right to counsel for noncitizens facing removal from the United States.

DHS/Big Brother

The blog posting below by David is chilling, but also a reminder that it is important to keep your common sense. As David states, don't post anything on-line that you don't want to read on the front of the news……..

Dan

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Big Brother is "Friending" You

10/15/2010, 11:01 am

Written by: David Leopold

Someone once told me that you should never post anything online you don't want to read on the front page of the newspaper.  As an employer I often peruse facebook, myspace and other social networking sites when evaluating job applicants.  The sites sometimes offer a candid glimpse into a prospective employee character—the stuff that is left off the resume and not mentioned during the job interview can be quite revealing.  And, as social networking has become an integral part of modern culture, it can provide a wealth of heretofore unobtainable information about a person.  10 years ago, for example, it would have been impossible to point, click, and bring up an job applicant's wedding, college, or baby photos.  Social networking sites are a potential goldmine of information about a person, his or her associations,  and interests.

So it comes as no surprise that the fraud division of the U.S. Immigration and Citizenship Services—FDNS—targets social networking sites in its effort to ferret out immigration and visa fraud.  In fact this is nothing new.  Years ago I represented a client who had been confronted at a green card interview with chat room postings in which he had asked for advice about disclosing a minor conviction to immigration authorities.

But what is surprising, and maybe even a bit chilling, is the government's tactic of accessing the private data through deception.  A Department of Homeland Security memo released yesterday entitled Social Sites Networking and Their Importance to FDNS encourages officers to take advantage of people's "narcissistic tendencies" to access their private or semi-private pages.  FDNS surmises that the human desire to be popular will enable it to quickly be "friended" by an unknown social networker:

Narcissistic tendencies in many people fuels a need to have a large group of "friends" link to their pages and many of these people accept cyber-friends that they don't even know. This provides an excellent vantage point for FDNS to observe the daily life of beneficiaries and petitioners who are suspected of fraudulent activities. Generally, people on these sites speak honestly in their network because all of their friends and family are interacting with them via IM's (Instant Messages), Blogs (Weblog journals), etc. This social networking gives FDNS an opportunity to reveal fraud by browsing these sites to see if petitioners and beneficiaries are in a valid relationship or are attempting to deceive CIS about their relationship. Once a user posts online, they create a public record and timeline of their activities. In essence using MySpace and other like sites is akin to doing an unannounced cyber "site-visit" on a petitioners and beneficiaries.

So every time I receive a friend request am I to assume it is really a an FDNS investigator looking for access to my facebook page and personal information?  And what really happens in a cyber "site-visit"?  We know from experience that incorrect information can easily be recorded into a petitioner's or beneficiary's file as a result of live site visits.  For example, investigators are quick to assume that an employee who may be absent on the day of the unannounced visit doesn't really work for the petitioning company or presumes fraud when he or she finds the petitioning company's facility vacant not realizing it  relocated weeks before the the unannounced visit.

I can only imagine what a cyber "site visit" might look like.  A crack FDNS agent, playing on your irresistible urge to be popular, logs in to facebook and tries to "friend" you calling himself John Doe.  You immediately accept his friend request and suddenly your facebook page has become the government's window into your personal life.

What if the FDNS agent logs in a week later and you have changed your profile photo?  Some folks put up pictures of their pets.  Will the DHS sleuths find this suspicious?

The more I thought about the DHS memo, the more nervous I became.  I have hundreds of "friends" on facebook.  So, I quickly deleted references to my date of birth, marital status, sexual orientation, and children.  I cleansed it of any compromising photos, references to my hobbies, interests, and travels.  I even deleted pictures of my dog, Louis, an Irish bred farm dog.

But I am not panicking.  Louis was born in Pennsylvania and I have the papers to prove it.

November 2010 Visa Bulletin

Visa Bulletin for November 2010

Family	All Chargeability Areas Except Those Listed	CHINA-mainland born	INDIA	MEXICO	PHILIPPINES
1st	15FEB06	15FEB06	15FEB06	22DEC92	01APR97
2A	01JUN10	01JUN10	01JUN10	01MAR10	01JUN10
2B	01JUN05	01JUN05	01JUN05	22JUN92	01SEP02
3rd	01JUN02	01JUN02	01JUN02	22OCT92	01MAR95
4th	01JAN02	01JAN02	01JAN02	15DEC95	01APR91

 

Employment- Based	All Chargeability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01JUN06	08MAY06	C	C
3rd	22JAN05	22NOV03	22JAN02	01MAY01	22JAN05
Other Workers	01APR03	01APR03	22JAN02	01MAY01	01APR03
4th	C	C	C	C	C
Certain Religious Workers	C	C	C	C	C
5th	C	C	C	C	C
Targeted Employment Areas/ Regional Centers	C	C	C	C	C
5th Pilot Programs	C	C	C	C	C