The Administrative Appeals Office (“AAO”) is a specially designated unit within the Department of Homeland Security/Citizenship and Immigration Service charged with reviewing appeals of various immigration related petitions and applications.  Sometimes the choice of filing an appeal vs. simply re-filing the same application or petition with new evidence depends on a variety of factors, including the time it takes the Administrative Appeals Office to review the original decision and issue their own assessment.  Since processing times at the AAO can be quite prohibitive, re-filing a new petition or application with the office that has already issued a denial, but this time – with new evidence or authority, is indeed a bona fide option for applicants to consider after their initial filing is denied for a legal or factual deficiency.  It should also be noted though, that most every appeal to the AAO will first get reviewed by a supervisor from the unit that originally issued the denial, and if determined to have merit, the appeal will be treated as a request to reopen proceedings and effectuate a reversal, and without the filing ever being sent for AAO review, and subject to AAO processing delays.  The following are current AAO processing times:

**** “CURRENT” means “within the USCIS processing time goal of six months or less”

PUBLISHED December 14, 2011 – “IMMIGRATION LAW FORUM”
Copyright © 2011, By Law Offices of Richard Hanus, Chicago, Illinois

As of November 22, 2011, the allotment of 85,000 H-1B work visas for Fiscal Year 2012 (which includes 20,000 visas reserved for those receiving advanced degrees in the US) has been exhausted.  Thus, any H-1B petitions received by CIS after November 22, 2012 will be rejected, with all paperwork and filing fees returned to the filing party.

In the meantime, petitions involving workers that are otherwise exempt from the cap will continue to be accepted, including petitions to:

• extend a current H-1B worker’s status in the U.S.;
• change the terms of employment for current H-1B workers;
• allow current H-1B workers to change employers; and
• allow current H-1B workers to work concurrently in a second H-1B position.

Also exempt from the H-1B cap are prospective workers for various types of not for profit petitioning entities, such as institutions affiliated institutions of higher learning.  In the meantime, most parties interested in pursuing a petition for a new H-1B worker are left having to gear up for April 1, 2012, the first day an H-1B petition can be filed for fiscal year 2013, which starts on October 1, 2012.

PUBLISHED November 23, 2011 – “IMMIGRATION LAW FORUM”
Copyright © 2011, By Law Offices of Richard Hanus, Chicago, Illinois

For most government agencies, including Department of Homeland Security’s Citizenship and Immigration Services (CIS), fiscal year 2012 starts on October 1, 2011.  Starting on that date, U.S. employers are able to benefit from a new crop of foreign workers who are issued H-1B work visas.  As early as April 1, 2011, interested employers and foreign workers have had an opportunity to start the process of accessing the annual supply of 85,000 visas – with 65,000 visas in the general supply and 20,000 reserved for U.S. graduate school degree holders – with workers then becoming eligible to commence employment in the U.S. as of October 1, 2011.

As of this writing, the supply of 20,000 visas specifically allotted for US educated advanced degree holders has been exhausted.  However, employers seeking to petition this class of worker still will have an opportunity, as CIS will dip into the general supply of 65,000 to accommodate such a request.  To date, however, the general supply of 65,000 has dwindled down to approximately 20,000.   Based on the increased demand shown for H-1B visas for the current fiscal year (as compared to demand in recent years), I would not be surprised if the general supply of H-1B’s is exhausted by mid-December, 2011, if not sooner.

As a reminder, H-1B visa eligibility is generally premised upon a bona fide job offer in a “specialty occupation” (where the attainment of a university degree is usually required), and the prospective employee must possess a degree or experiential equivalent in the field at issue.  Also, positions with a government agency or not-for-profit organization affiliated with an institution of higher learning (e.g. university) are among the type of jobs that are not subject to the H-1B cap described above.  Further, the H-1B visa cap does not impact those who already have an H-1B visa and are otherwise eligible to extend their status or change H-1B employers.

PUBLISHED October 23, 2011 – “IMMIGRATION LAW FORUM”
Copyright © 2011, By Law Offices of Richard Hanus, Chicago, Illinois

Published: June 26, 2009

Expedited processing, or “Premium Processing,” allows for processing of certain immigration petitions in 15 calendar days or less with the payment of an additional filing fee of $1000. In the past, Premium Processing had been available for most types of I-140 immigrant worker petitions, but eventually Citizenship and Immigration Services (USCIS) discontinued the program for I-140′s for a variety of logistical reasons. Effective June 29, 2009, however, Premium Processing for most I-140 petitions is back on again.

Who files an I-140 petition?
In most cases, it is a petition filed by an employer on behalf of a foreign worker, whether in the U.S. or abroad, to facilitate the worker’s U.S. permanent residence. Usually the I-140 petition must be supported by an approved labor certification application (commonly known as a “PERM application” these days) wherein the employer has documented the unavailability of U.S. workers and the U.S. Department of Labor has “certified” the results. Most PERM applications are filed on behalf of workers in the Employment-Based Third Preference, (EB-3), including certain professionals, skilled workers, and unskilled workers.

I-140 petitions that do not require approved labor certifications include petitions:

• on behalf of Registered Nurses and Physical Therapists (EB-3, “Schedule A”),
• on behalf of aliens of “extraordinary ability” (EB-1, with “self-petitions” accepted), and
• on behalf of “outstanding researchers and professors” (EB-1).

Premium Processing for I-140 petitions in all of the above categories has been reinstated. Premium Processing has NOT been reinstated for I-140 petitions for:

a) certain advanced degreed or “exceptional ability” foreign nationals performing work in the “national interest,” as well as
b) managers and executives of multinational companies are being transferred to the U.S.

Practically speaking, Premium Processing will only be beneficial to employers and employees qualifying under employment-based visa categories with visa availability, such as EB-1 or EB-2 classifications (which include advanced-degree professionals, aliens of “extraordinary ability,” “outstanding” researchers/professors, with the exception of EB-2 workers from China and India). That is because no matter how quickly the I-140 petition is processed, it becomes a “hurry up and wait” scenario for workers in the EB-3 category (including RN’s and PT’s), where the employment visa line has become prohibitive. As a  result, no matter how fast the I-140 is approved, the worker still ends up waiting three, four or even five-plus years for immigrant visa availability and the issuance of the permanent resident card.

However, with each new month comes a new Visa Bulletin from the U.S. Department of State, and visa availability in all employment and family based preferences is updated. So, at the start of any given month, particularly October 1 – when the federal government’s fiscal year begins – significant progress in visa availability for any of the preference categories is possible.

PUBLISHED June 26, 2009 – “IMMIGRATION LAW FORUM”
Copyright © 2009, By Law Offices of Richard Hanus, Chicago, Illinois

US lawful permanent residents renewing their Permanent Resident Cards by way of direct mailing of Form I-90 (as opposed to online filing) should pay attention to two important changes.

Firstly, I-90 applicants are now instructed to file their supporting documentation when submitting their application, as opposed to only presenting it when appearing for their post-filing biometrics appointment – as was the procedure previously in place.

Second, all I-90 applications are now to be filed with the following US CIS lockbox:

USCIS
P.O. Box 21262
Phoenix , AZ 85036

or if by courier/express mail:

USCIS
ATTN: I-90
1820 Skyharbor Circle S , Floor 1
Phoenix , AZ 85034

PUBLISHED April 29, 2009 – “IMMIGRATION LAW FORUM”
Copyright © 2009, By Law Offices of Richard Hanus, Chicago, Illinois

Published: January 20, 2009

So, you have made the decision that being in the U.S. without legal status is better than being in your home country with all the legal status in the world. And you continue to hope that President Obama can advance his goal of comprehensive immigration reform and that your particular circumstances will be covered by some prospective legislation. While we await such legislation, are there measures the overstay / undocumented foreign national can take to “legalize” their status and obtain U.S. lawful permanent residence (a.k.a. obtain a green card)?

For the Visa Overstay

With the exception of individuals who entered the U.S. on a K (fiancé) or “Crewman” visa, visa overstays are generally eligible to apply for “Adjustment of Status” and undergo permanent residence processing in the U.S. (without having to return to their home country) under the following circumstances:

1. You marry a U.S. citizen or a lawful permanent resident who becomes a U.S. citizen,
2. you are under 21 years old and you are the child, or step child (as long as step relationship was established prior to your 18th birthday) of a U.S. citizen or a lawful permanent resident who becomes a U.S. citizen, or
3. you are the parent of an over 21 year old adult U.S. citizen.

Additionally, if you were the subject of any type of family preference or employment/labor based immigration application submitted prior to April 30, 2001, or in some cases, January 14, 1998 (pursuant to INA Section 245(i)), you will be able to eventually complete all permanent processing in the U.S. via Adjustment of Status, upon visa availability.

For the visa overstay seeking permanent resident processing in the U.S. by way of a new job offer, things are much more complicated. First, you must be “grandfathered” under INA Section 245(i) – which means you or one of your parents must have been the subject of some sort of family or employment/labor based immigration filing submitted prior to April 30, 2001 or January 14, 1998. Then, you must find an employer to file paperwork on your behalf; this employer will likely be required to demonstrate the unavailability of U.S. workers to fill the position at issue (there are a few exceptions for some professions, such as Registered Nurses and Physical Therapists). From there, you will be looking at a wait of at least a few years toward even an employment authorization. So, employment based avenues are indeed viable for the overstay, just challenging in terms of logistics and time.

For the Foreign National Who Entered the U.S. “Without Inspection” or “EWI”

Simply put, you must be covered by INA Section 245(i) as described above. If you are covered by Section 245(i), the avenues available are identical to those available for the visa overstay. If you are not covered by 245(i), then all you are left with is waiting for immigration reform, or taking a chance at a visa processing at a U.S. consular post in your home country.

The most common EWI risk-taking scenario involves the EWI who marries a U.S. citizen and, as opposed to waiting for immigration reform, he elects to undergo immigration processing at a U.S. consular post in his home country. In order for the EWI to be granted the immigrant visa to reenter the U.S., he must be granted a “waiver of inadmissibility”. You see, those who are in the U.S. without status and depart, generally face a multi-year (up to 10 years) bar to reentry, unless U.S. Department of Homeland Security grants a waiver (plain English – forgiveness) based on the extreme hardship the U.S. citizen spouse and/or parent may face in the event the foreign national is denied a visa. The grant of a waiver is anything but certain, and the result depends entirely on an immigration officer’s assessment of whether the level of hardship presented is “extreme” enough. Furthermore, the parties will never know the answer in advance of the foreign national departing and appearing at the U.S. consular post.

In Removal Proceedings

If you are unlucky enough to be placed in removal proceedings, most of the above rules continue to apply, and your fight to remain in the U.S. will depend on whether you fit into any of the above classifications. BIG EXCEPTION: For those who:

1. have been in the U.S. for more than 10 years – either as an overstay or EWI ,
2. have a U.S. citizen or lawful permanent resident spouse, child or parent,
3. are of good moral character and
4. can demonstrate that their forced departure will cause “exceptional and extremely unusual” hardships to one or more of their U.S. family members, a defense to removal (known as Cancellation of Removal) and a green card, may be within reach.

Certainly #4 is not an easy standard to satisfy, but at the very least, those who are threshold eligible will have their day in court and a chance for thorough due process. (Note: visa overstays and EWI’s may also have other forms of relief available in removal proceedings, such as political asylum.)

The above discussion is certainly not exhaustive, but it does cover the most common scenarios facing foreign national visa overstays or EWI’s. For the most reliable and conclusive feedback in your particular set of circumstances, it is advisable to seek reputable legal counsel.

PUBLISHED January 20, 2009 – “IMMIGRATION LAW FORUM”
Copyright © 2009, By Law Offices of Richard Hanus, Chicago, Illinois

As of this writing there truly is no speedy and simple way to facilitate the issuance of either immigrant or temporary work visas for Registered Nurses from most foreign nations (Canada and Mexico are the only exceptions). Knowing the truth about foreign nurses and US immigration law is critical, specifically because

• US employers and future US RN employees are desperate to be matched up with each other
• There is an abundance of misinformation out there, and
• Employers, and especially prospective work visa holders are vulnerable to misinformation and scams.

Supply and Demand for Nurses

Not a day goes by in my immigration law practice where the shortage of registered nurses and other health care professionals in the US does not come up. Whether it is an employer desperate to staff a position in a nursing home or hospital, or a licensed foreign health care worker who is ready, willing and able to work hard, the process cannot happen soon enough. In the vast majority of cases involving registered nurse positions, however, it will be a matter of years before the foreign worker can start work in the U.S . Why is this?

H-1B: There exists no realistic temporary visa option. US Citizenship and Immigration Services has declared that H-1Bs are inappropriate for RNs except in the rarest of sophisticated, highly specialized, or supervisory RN positions. For the fiscal year 2008, only 136 H-1B visa petitions for RNs were approved.

H-1C: First problem, the position must be in a designated “shortage area” in the US, and getting the US government to formally designate anything is no small job. Second, the yearly supply is limited to only 500 visas, and a per-state limit of 25. With exceedingly restrictive requirements, this visa program did not come close to being used to its limit, with no H-1C visas approved for 2006, just 49 for 2007, and 110 for 2008.

Immigrant Visa: The I-140 petition is relatively straightforward. Give me a solvent healthcare facility and a NCLEX passing or CGFNS certified foreign RN, and I will give you an approvable I-140. But after I-140 approval, comes an unpredictable and almost mysterious wait for visa availability in the Employment-Based 3rd Preference line. Based on the State Department’s visa bulletin for December 2008, visas are being issued to RNs who were originally petitioned back in May of 2005 (and it’s an even longer wait if the RN is from China, India or Mexico). That is because the yearly allotment of immigrant visas made available under current law cannot come close to meeting the demand. Absent some congressional measure to increase the yearly allotment of visas in this category, total processing time – from the time the I-140 is filed to visa issuance – could be close to four years.

Abundance of Misinformation and Scams

Some of the most interesting stories I hear are the ones that I never get the full details on. They start something like, “but I have this friend who was able to get their petition approved in 36 hours, and then a visa issued within just 28 minutes thereafter.” Certainly I have been around long enough to summarily reject these stories as rumors or puffing. (I am always curious, though, and do try to determine if I may have missed something important in my efforts to keep abreast of the latest developments in immigration law and procedures)

However, people who are otherwise pretty smart tend to become purposely ignorant when they feel vulnerable or desperate. There generally is no quick way to facilitate visa issuance for a RN seeking to work in the US. Notwithstanding that reality, suckers across the globe fall for the tactics of predatory staffing agencies or educational “institutions” promising quick work visa turnaround or study/work programs designed to facilitate student visas that will quickly lead to some sort of work visa status. Those who fall for these scams stand to lose large sums of money, and for some foreign workers, it means being stranded in the US without the work or pay promised. Some foreign workers may even find themselves under the control of the “sponsoring” organization that forces them to perform jobs for low pay and with the threat of deportation looming over their heads.

Talk of Change Continues

Last week, the US Department of Homeland Security’s Office of the Citizenship and Immigration Services Ombudsmen released a report entitled Improving the Processing of “Schedule A” Nurse Visas. As reflected in the reference to “Schedule A” in its title, the focus of the report was on immigrant visas for RNs. The report does a fine job reporting on the problem as outlined above (i.e., limited visa options for RNs and employers seeking to fill positions, and the massive visa availability delays), but other than suggesting the need for congressional action to change the law and to increase visa options and quantities, the only solution within the Agency’s control that could be offered and acted upon was the speedier, more consistent adjudication of I-140 petitions. That solution though, will have only a very limited impact on the problem, since no matter how fast an I-140 petition gets approved, the parties are staring at a lengthy wait for visa availability.

So, as is the case for our society’s other immigration problems, we wait for Congress to act.

For citizens of North American countries such as Canada and Mexico, the path toward obtaining a nonimmigrant visa or permission to work in the United States is often much simpler than applying for the H-1B. Since the enactment of NAFTA (the North American Free Trade Agreement) in 1994, workers in certain employment categories have been welcomed to the U.S. along with their families in one-year increments, with the freedom in some cases to renew indefinitely. As we approach 2009 – the year by which the NAFTA accords were set to be finalized – the parameters of the TN (Trade-NAFTA) program have continued to expand. As of last month, TN applicants are eligible for initial approval of up to three years (as opposed to only one year), again with the option in some cases of unlimited renewal (in up to 3-year increments), and applicants’ immediate family members may join them on derivative TD status for the same amount of time.

How do I apply for the TN Visa? How do I know if I’m eligible?
Those eligible for the TN program include professional workers (for example, accountants, engineers, lawyers, pharmacists, scientists, teachers, and certain other professionals and skilled workers) within the categories defined by NAFTA who have received an offer of employment from a U.S-based company.

The process of gaining entry differs slightly for Canadian and Mexican citizens, with Canadians facing less red tape. For Canadians, no visa is required and documentation to facilitate entry in TN/TD status can be presented to Customs and Border Protection officials at most ports of entry. For Mexicans, a visa is required, and a visa application with supporting documentation must be presented at a U.S. consular post in Mexico. In both cases, the required documentation includes:

• detailed letter from the employer featuring a company profile and the specifics of the job offer
• professional and/or educational credentials, e.g. licenses, degrees, etc
• proof of citizenship
• necessary fees

As stated, Mexican applicants are required to first obtain a visa through a U.S. Consular post, which involves completing an online Nonimmigrant Visa Application for each member of their family (self included), scheduling an interview with the post, paying the necessary fees, completing a biometrics requirement, and ensuring that all of the requisite detailed documentation is prepared in advance of the interview. Decisions are issued shortly after the interview.

How does the TN Visa differ from the H-1B?
The TN program can be a nice alternative for U.S. employers and North American workers, because the requirements are simpler than those for the H-1B program. Also, NAFTA’s job categories are broader, allowing more non-degreed workers such as “scientific technicians” and “management consultants” to be approved for temporary admission. Additionally – and quite significantly – the TN program is not subject to the yearly cap that makes the H-1B so difficult to obtain. Moreover, because there is no deadline or availability start-date for TN applications, the approvals are decided on a “rolling basis.” This means there is nothing like the annual “race” for H-1B visas, and the entire TN process is, in general, much faster and more efficient.

Why does this program exist? What is the point of NAFTA?
Ultimately, the North American Free Trade Agreement was created to foster economic relations between Canada, Mexico, and the U.S. by eliminating barriers to trade – such as tariffs on agricultural goods, and barriers to the exchange of labor between the countries. The TN program allows U.S. firms to hire workers from Mexico and Canada more easily, and the increase to three years for initial approval – finalized last month – will cut down on time and paperwork for firms who wish to employ foreign labor on a longer-term basis.

65,000 and 20,000. As of this writing, those are the numbers for the annual allotment of new H-1B visas that employers and their (prospective) foreign national employees will be scrambling for come April, 2009. 65,000 is the general supply , and an additional 20,000 are for individuals who have been awarded graduate degrees in the U.S. No doubt this April, as in the past two Aprils, U.S. Citizenship and Immigration Service offices will receive at least three times as many petitions as there are visas available.

If accepted and approved, an H-1B petition allows the beneficiary worker to commence work in the U.S. come the following October. With October, 2009 more than a year away, is it too early to start thinking about filing a petition? No, and unless Congress acts to expand the meager annual supply now in play (today’s supply is one-third of what was available several years ago), interested companies and employees can very well benefit from putting their ducks in a row at this time. That way, come April 1, 2009 – the earliest date a petition can be filed for the following fiscal year (which begins October 1, 2009) – all employer CIS and Department of Labor paperwork, along with worker credentials and evaluations, can be ready for filing. And given that demand for H-1B visas will exceed the supply in just the first day of the filing period, submitting H-1B paperwork any later than the start of April will likely kill any chance of the petition being accepted or approved.

As a reminder, H-1B visa eligibility is generally premised upon a bona fide job offer in a “specialty occupation” (where the attainment of a university degree is usually required) , and the prospective employee must possess a degree or experiential equivalent in the field at issue. Also, positions with a government agency or not-for-profit organization affiliated with an institution of higher learning (e.g. university) are among the type of jobs that are not subject to the H-1B cap described above. Further, the H-1B visa cap does not impact those who already have an H-1B visa and are otherwise eligible to extend their status or change H-1B employers.

PUBLISHED September 15, 2008 - “IMMIGRATION LAW FORUM”
Copyright © 2007-2008, By Law Offices of Richard Hanus, Chicago, Illinois

For final U.S. immigrant visa processing to be completed, most foreign Registered Nurses are required to present evidence of special certification confirming the bona fides of their educational and professional credentials along with their competence in the English language. The “VisaScreen” certificate is issued by the Commission on Graduates of Foreign Nursing Schools, also known as CGFNS.

As of February 14, 2007, CGFNS has declared that R.N.’s who received their licensure in the Philippines following their passage of the June 2006 licensure exam will not be eligible to be considered for VisaScreen certification. This pronouncement was made after an investigation in the Philippines uncovered compromised test results arising from significant irregularities in the testing process. It is important to note that this decision only affects those nurses whose R.N. licensure in the Philippines was based on their passage of the June 2006 exam, and no other exam.

CGFNS has determined, however, that affected nurses who still wish to pursue their VisaScreen certification may still be eligible by passing the equivalent of Tests 3 and 5 of a future Philippine nursing exam.