Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for August, 2008

Form I-751, Petition to Remove Conditions on Residence Revised

The USCIS has revised the instructions on Form I-751 which is generally filed by green card holders who have conditions on their residency – often by marriage or investors.

The revised instructions direct the form to be filed either to the California or to the Vermont Service Centers, depending on the state of residency.

California Service Center.

Petitioners whol live in Alaska, American Samoa, Arizona, California, Colorado, Guam, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin, and Wyoming should file at the California Service Center.

Vermont Service Center.

Petitioners who live in  Alabama, Arkansas, Connecticut, Delaware, Washington, D.C., Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, U.S. Virgin Islands, and West Virginia should file at the Vermont Service Center.

The revised form must be used for all filings after September 24, 2008, can be located here.

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Election Season – What Can Non-U.S. Citizens Do?

It is election season and many non-U.S. citizens are interested in being involved in the election process.  We receive a number of inquiries about what election-related activities are permitted by non-U.S. citizens and we republish an article we wrote in April 2008: Foreigners and the U.S. Political Process – Permitted Activities.

In addition, voting unlawfully is a ground for inadmissibility pursuant to Section 212(a)(10)(D) of the Immigration and Nationality Act.

False claim of U.S. citizenship or unlawful voting  are very serious offenses and may subject a foreign national to severe consequences.  Despite the importance and, sometimes, the urge to get involved politically, we urge our readers who are not U.S. citizens or permanent resident aleins to carefully consider their involvement in the political proces.

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Schedule Departure Program to End

After few weeks, the program entitled “Scheduled Departure” is about to end, according to the Associated Press.  The program allowed illegal immigrants who are subject to judicial order to leave the United States and who do not have a criminal record to turn themselves in voluntarily and be allowed to wrap up their departure in an orderly fashion.

The Immigration and Customs Enforcement (ICE) has decided to scrap the program after netting a total of eight (8) illegal immigrants.  The cost of the program (mainly advertising) is said to have been around $41,000.

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OPT 17-month Extension Court Challenge Fails

We wrote in June about the lawsuit challenging the 17-month OPT extension for STEM students.  The lawsuit was brought by  the Immigration Reform Law Institute, joined by the Programmers Guild and other organizations.   The lawsuit challenged the administration’s decision to extend the work period for students under the OPT program and argued that the OPT extension is just a way to go around the H-1B cap limit.  The argument was based on the fact that the H-1B program, and its annual cap, is set by U.S. Congress and by extending the OPT by 17-month, the administration has circumvented the required process of consent by the U.S. Congress.

There is a disposition in this case favorable to the F-1 and OPT holders who may benefit from the 17-month extension. In an opinion dated August 5, 2008, the US District Court for the District of New Jersey denied the request for preliminary injunction to stop the OPT 17-month program.

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Re-Entry Permit Filing Requires Physical Presence in the U.S.

An AAO decision was released recently which commented on whether it is required for a petitioner who has filed a Form I-131, application for re-entry permit to be physically in the country when the application is filed.

The answer, according to the AAO decision is that the petitioner must be physically located in the U.S. at the time the I-131 re-entry permit application is filed. While it is true that the AAO decision is based on the old rules which did not require biometrics to be taken for each re-entry permit application, it is important to understand that all re-entry permits should be filed when the petitioner is in the U.S. and that the petitioner must attend the biometric appointment or risk a denial of the application.

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Greenspan: How to Solve the Housing Crisis

The title may not suggest how this post is related to labor immigration, but it is.  In an interview with the Wall Street Journal, the formed Federal Reserve Chairman Alan Greenspan suggested that one of the easiest, yet politically difficult, ways to alleviate the housing crisis is by … a major expansion of the quotas for immigrant workers.

Here are his comments:

Public policy can hasten this process by not prematurely propping up housing starts and by expanding the underlying demand for homes generally. The most effective initiative, though politically difficult, would be a major expansion in quotas for skilled immigrants. Skilled immigrants tend to form new households, by far the most important source of new home demand. The number of new households in the U.S. is increasing at a rate of about 800,000 a year, of which about a third are immigrants. Perhaps 150,000 of those are loosely classified as skilled. A double or tripling of this number would markedly accelerate the absorption of unsold housing inventory for sale — and hence help stabilize prices.

Politics aside, it makes sense, as we notice first hand from our clients – many qualified and well-paid foreign workers are willing and able to buy properties and settle down, but they are deterred either by tougher lending standards for non-permanent residents or they are unwilling to invest a substantial amount of money not knowing whether USCIS would successfully, if at all, adjudicate their immigrant application which, in many cases, has been pending for five, six, or even more years.

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September 2008 Visa Bulletin – EB-2 Progresses, EB-3 May Retrogress

The September 2008 Visa Bulletin has been released by the Department of State.  It brings a mix of good and bad news.

The good news for EB-2 applicants from India and China continues this month as well – the dates for EB-2 India and EB-2 China moved by two months, from June 1, 2006, to August 1, 2006.  There are no other changes to the employment-based dates.

However, there were some bad news for employment-based applicants in the EB-3 category.  Earlier in July, when the EB-3 category became “Unavailable” the comment was that it is expected that in October, upon the beginning of the new fiscal year, the EB-3 dates would return to their June 2008 values.  However, the State Department has revised this expectation and has indicated “the that continued heavy demand in those categories may require the establishment of cut-off dates which are earlier than those which had applied in June. ” Although this backward movement is not certain yet, a formal decision is expected in September.

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USCIS Aims to Decrease Naturalization Processing Times

The USCIS has released an update to the projected processing times for naturalization petitions.  Based on updated projections, USCIS estimates that the naturalization process would take an average of 10-12 months by the end of September 2008 (compared with the estimated 16-18 months projections announced last year).

The increase in processing time was mainly due to the 1.4 million naturalization applications received in 2007, an amount which is double the normal annual volume.

The USCIS projections for processing time by office are listed below:

Agana, Guam…………………………….5.0
Albany, N.Y……………………………..5.6
Albuquerque, N.M……………………..8.4
Anchorage, Alaska…………………….5.0
Atlanta, Ga………………………………..6.7
Baltimore, Md…………………………..7.0
Boise, Idaho…………………………….10.5
Boston, Mass…………………………….8.8
Buffalo, N.Y……………………………..7.0
Charleston, S.C………………………..14.1
Charlotte Amalie, Virgin Islands….7.2
Charlotte, N.C………………………….14.9
Chicago, Ill……………………………….5.1
Cincinnati, Ohio………………………..7.0
Cleveland, Ohio…………………………6.8
Columbus, Ohio…………………………5.7
Dallas, Texas…………………………..11.0
Denver, Colo…………………………….5.2
Des Moines, Iowa………………………5.7
Detroit, Mich…………………………….5.0
El Paso, Texas…………………………..7.9
Fort Smith, Ark………………………….7.6
Fresno, Calif……………………………..6.7
Harlingen, Texas……………………….5.0
Hartford, Conn…………………………14.3
Helena, Mont…………………………….5.0
Honolulu, Hawaii………………………5.0
Houston, Texas………………………….5.1
Indianapolis, Ind………………………..5.0
Jacksonville, Fla………………………..7.4
Kansas City, Mo………………………..7.0
Las Vegas, Nev………………………….9.0
Los Angeles, Calif……………………12.5
Louisville, Ky……………………………7.1
Manchester, N.H………………………..5.3
Memphis, Tenn…………………………8.4
Miami, Fla………………………………12.0
Milwaukee, Wis………………………..6.6
Mount Laurel, N.J……………………..5.0
New Orleans, La……………………..14.5
New York, N.Y……………………….10.0
Newark, N.J………………………………7.4
Norfolk, Va………………………………7.2
Oklahoma City, Okla…………………8.6
Omaha, Neb……………………………..5.0
Orlando, Fla……………………………..9.5
Philadelphia, Pa……………………….10.0
Phoenix, Ariz……………………………8.6
Pittsburgh, Pa……………………………6.0
Portland, Maine…………………………5.5
Portland, Ore…………………………….5.4
Providence, R.I………………………….6.7
Reno, Nev…………………………………5.0
Sacramento, Calif………………………5.0
Salt Lake City, Utah…………………..5.0
San Antonio, Texas……………………5.0
San Diego, Calif………………………..5.0
San Francisco, Calif…………………..5.5
San Jose, Calif…………………………..5.0
San Juan, Puerto Rico………………10.4
Seattle, Wash…………………………….9.0
Spokane, Wash………………………….5.0
St Albans, Vt…………………………….9.5
St Louis, Mo……………………………10.3
St Paul, Minn…………………………….5.5
Tampa, Fla……………………………….8.6
Tucson, Ariz……………………………12.0
Washington, D.C……………………..12.7
West Palm Beach, Fla………………..5.0
Yakima, Wash…………………………..5.0

Of course, these times are projections and although we hope that USCIS would be able to meet these timelines, we encourage applicants to allow additional time.


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Automatic Visa Revalidation Program – Travel to Contiguous Territories

The Department of State rule, known as the “automatic revalidation” of visas is a rule which allows holders of almost all classes of U.S. visas to travel to a “contiguous territory” and return to the U.S. without a current valid stamp in the passport.

Persons in F, J, H and O status can travel to Canada or Mexico and return to the U.S. without a valid visa stamp.  Persons in F and J status can, in addition to Mexico and Canada, visit the “adjacent islands” (Caribbean islands except Cuba) and return to the U.S. without a valid visa stamp in their passport.

The automatic revalidation is a slight misnomer because it does not revalidate the visa in the passport in all circumstances.  If the visa stamp in the passport matches the current status in the U.S., then the stamp is considered to be automatically revalidated as of the date of the person’s trip back to the U.S.  If, on the other hand, the person has changed status in the U.S. so that the visa stamp does not match the current status, the visa stamp is considered to be changed to the visa type corresponding to the current status.

There are certain requirements, specified in the Department of State regulations.

  • Citizens of countries which are considered sponsors of terrorism are ineligible.
  • The time outside the U.S. must not exceed 30 days and must be spent solely in a contiguous territory – Canada, Mexico and, for F/J holders, the Caribbean islands, except Cuba.
  • Upon return, the person must present valid and current supporting visa document such as I-20, DS-2019, I-797, etc.
  • The passport must be valid and unexpired at the time of the return into the U.S
  • The person must not have applied for a U.S. visa while in the contiguous country or adjacent island, as applicable.

The Automatic Visa Revalidation program is a very useful, yet somewhat undiscovered, tool for travel to/from Canada, Mexico and certain Caribbean islands.  Please contact us if you would like to obtain more information about this program.

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Electronic System for Travel Authorization (ESTA) Goes Live

We have written previously on several occasions about the Electronic System for Travel Authorization (ESTA) which is now live and operational.  Direct link.

The new system opened on August 1 and will be voluntary in nature until January 12, 2009, when it becomes mandatory for all individuals traveling under the visa waiver program (VWP).  We have not yet received a meaningful amount of feedback to judge the system’s usability, operation, and its actual effect on clearing U.S. border control, but we expect to do so over the next few days as ESTA-registered travelers make their entry into the U.S.

If you are a VWP traveler who used ESTA to pre-register your trip to the U.S. and would like to share your opinion of the ESTA system and your entry into the U.S. please let us know.

Update: we have heard that the ESTA system does not permit passports with expiration of more than 10 years to use the system.  We believe this is an oversight by the ESTA developers and will be corrected soon as there are legitimate reasons to have passports with expiration date of more than 10 years in the future.

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