Immigration Visa Attorney Blog

April 27, 2009

Swine Flu Outbreak: Plan for Caution and Delays at Ports-of-Entry

The outbreak of a potentially dangerous strain of influenza in Brazil, Canada, México, New Zealand, the United Kingdom, and elsewhere is causing many nations, including the USA, to implement public health precautions to limit further spread of the flu. These precautions may cause delays at US ports-of-entry (POE). The immigration attorneys at Romben Law, APC have clients who travel frequently, and because of Southern California’s proximity to México, and because the Los Angeles area is a major transportation hub, we are cautioning travellers to allot plenty of time to clear the immigration and customs hall at US airports.

Some places, like Hong Kong, have had experience with the prior outbreak of bird flu, so they are using more sophisticated measures to screen arriving passengers, including infrared scanners to identify persons with fever.

Regarding US Public Health Service clearance, both airlines and US Customs & Border Protection will be on the lookout for individuals who are ill or who have fevers. After you are admitted to the US, if you have recently visited one of the affected areas, and you find you have a fever or other flu-like symptoms, you should telephone your doctor.

April 23, 2009

USCIS Confirms H-1B Cap Count, the Quota is Still Open for Regular and Advanced Degree Cases

by Romben Law, APC

The USCIS (CIS) confirmed that the H-1B quota remains open. About a week ago, CIS issued an update on the count against the H-1B cap, stating that about 43,000 applications were received. This week, CIS confirms that they have received only one-thousand more applications.

For advanced degree applicants, there is still time to file an H-1B since the CIS will still accept cases even though they have already received 20,000 cases. CIS accepts more cases than the quota cap because many cases will be rejected or denied. So far, no lottery has been announced for either cap.

In the last several fiscal years, the CIS has had to use a lottery method to randomly choose cases for H-1B consideration. Given the current economic climate with unemployment rates at historic highs, it’s natural to see this year’s quota remain open. We won’t know when the quota will get filled, but I have discussed the H-1B quota and the method that CIS will use to determine the last date that they will accept cases. For those of you who are job seekers, you have just been given more time to find an employer! Good luck!

April 23, 2009

“Funny, you don’t LOOK gay.”

by Romben Law, APC

Because Romben Law, APC sees many gay men and lesbians at our immigration law offices in Los Angeles, we get inquiries about asylum based on sexual orientation. To get asylum, the applicant must demonstrate to a hearing officer or Immigration Judge (IJ) that s/he would suffer persecution if s/he returned to the home country. The US Tenth Circuit Court of Appeals just issued a decision in the case of Razkane vs. Holder, No. 08-9519 (10th Cir., filed Apr. 21, 2009).

In this case, a man from Morocco had overstayed in the USA because he was afraid to return to his home country because, as a gay man, he would be subjected to torture and other persecution. At the initial hearing, the IJ accepted the idea that a gay man might be persecuted in Morocco. However, the IJ denied the request for asylum, because in the IJ’s opinion Razkane’s appearance did not have anything that would mark him as being gay, “[he] does not dress in an effeminate manner or affect any effeminate mannerisms.” In other words, the IJ didn’t think Razkane looked gay enough!

The appellate court criticized the IJ, noting that this “style” of judging was “unhinged” from the need for substantial evidence and would result in terrible results. The judges noted that stereotyping of this kind would not be entertained in a case regarding religion or race, and it will not now be tolerated in a case of a gay man seeking asylum! –jcf

April 22, 2009

H-1B Cap: When is The Last Day to File? H-1B Lottery Clarification

by Romben Law, APC

Many people have been calling our office to ask “when is the last day I can file an H-1B?” The US Citizenship and Immigration Service (USCIS) has clarified how they will determine the “last receipt date” for an H-1B. Initially, the USCIS stated that if a sufficient number of applications were received during the first 2 days of April, USCIS would conduct a random lottery of all H-1B applications filed in the first 5 business days of April, that critical date being April 7, 2009. USCIS was to include all applications filed on or before April 7, 2009 in a random lottery selection process.

However, the USCIS did not receive enough cases to fill the regular H-1B quota by the end of the day on April 7. Therefore H-1B applications are still acceptable until USCIS determines when will be the final date for filing applications. This date is called the “last receipt date.”

USCIS does not announce the “last receipt date” in advance. Instead, USCIS will announce the “last receipt date” after the date passes. Then USCIS will conduct a random lottery of all those cases received on that date.

April 22, 2009

Labor Certification (PERM) Processing Times

by Romben Law, APC

Everyone has noticed how painfully slow labor certification (PERM) cases have become. What was normally about a 45- 60 day adjudication period has now stretched out to 7- 9 months, on average. Last week, the Dept. of Labor (DOL) announced that as of mid-March, they were working on cases that were originally filed in July 2008, and these are cases that were not selected for an audit.

A grim confirmation for cases that in the audit queue: DOL confirmed they are now working on initial filing dates from September 2007. Finally, for cases awaiting a response on appeal: the DOL is working on cases with a priority date of June 2007.

Gone are the days of re-filing PERM cases within a few months in case of a denial. If it is taking 9 months for an initial adjudication and another 12 months for DOL’s response to an audit response, applicants and employers will end up waiting over 18 months to find out if their PERM case is successful or not. If your PERM case is denied, you will not know until 18 months after your initial filing! Employers will have to conduct new advertisng and recruitment which means yes, starting from scratch.

April 22, 2009

HIV Declaration for B-1 + B-2 Visitor Visas Introduced by State Department

by Romben Law, APC

The nonimmigrant visa (B-1 / B-2) rules for HIV-positive people who want to visit the USA have been issued by the US Department of State (DOS). Los Angeles-based immigration law firm Romben Law, APC counsels and represents many HIV-positive persons, and unfortunately, the new nonimmigrant HIV Waiver Authorization puts HIV-positive people in a difficult position.

US immigration law denies entry to the USA to aliens who are HIV-positive. For nonimmigrants who wish to come to the USA as business or touristic visitors, the procedure has been to apply for a waiver under Immigration and Nationality Act (INA) sec. 212(d)(3)(A)(i). This waiver procedure is expensive, time-consuming, and exposes the applicant to possible arbitrary, capricious, or AIDS-phobic decisions of some adjudicating officers.

DOS has put into effect a procedure where the visa officer now has the authority to grant otherwise-visa-qualified HIV-positive applicants a B-1 / B-2 visitor visa, provided the alien signs a declaration (DS-5512) that:

April 20, 2009

2009 Immigration Poverty Guidelines

by Romben Law, APC

Here at Romben Law, APC, we handle many cases for which a “financial sponsor” must submit an I-134 or I-864 Affidavit of Support. These “sponsors” must have resources and income sufficient to meet US government “poverty guidelines.”

The US Department of Health and Human Services sets the poverty guidelines annually. The poverty guidelines in effect for 2009 are set forth here. All cases filed after 1 March 2009 are expected to meet the standard set in the new poverty guideline. –jcf

April 17, 2009

Pending Cal. Initiative Strips Citizenship from Native-Born Americans

by Romben Law, APC

A Southern California politician and some anti-immigrant activists are seeking to put a measure on the California ballot that would deny a “regular” California birth certificate to children born in the USA, if the parents are unlawfully present in the country. The initiative would also limit the public benefits such citizen-children could receive. The immigration law firm of Romben Law, APC opposes this initiative.

Not only does this cynical, divisive initiative cripple the State’s ability to look after all the children who reside in California, but the change it proposes violates the US Constitution. Do not let a radical right-wing measure create second-class citizens!

Please contact your friends and family and urge them to oppose this mean-spirited and unconstitutional measure.

April 16, 2009

TSA to Start “Secure Flight” Screening of Air Passengers

by Romben Law, APC

Many of Romben Law, APC’s immigration law clients travel frequently — domestically and internationally. Passengers, whether in Los Angeles or elsewhere, will begin to notice the “Secure Flight” screening. Airlines will input traveler information so that the Transportation Security Administration (TSA) can screen each person. Airlines will begin asking not only for name, but now also date of birth and gender. TSA will match these names against the no-fly and other watch lists.

TSA states that Secure Flight is intended to protect the secret watch list data and permit security agencies to address security threats earlier — all of which is supposed to make air travel safer. TSA claims that uing one watch list is supposed to make the screening and matching process fairer and more consistent across all airlines.

Using a single watch list also heightens the government’s obligation to create and implement a fair, reviewable, “single portal” process for travelers wrongly placed on a watch list to seek redress. TSA says that its Traveler Redress Inquiry Program (TRIP) will respond to anyone who feels s/he has been wrongly placed on a watch list. Anyone who is having difficulty traveling because of an incorrect entry in the watch list should immediately seek to have the error corrected — and complain directly to elected officials if TSA does not respond quickly and appropriately. –jcf

April 15, 2009

Visiting Cuba

by Romben Law, APC

The Obama Administration announced a change in policy that will loosen US restrictions on Americans who wish to travel to Cuba. The immigration law firm of Romben Law, APC represents a number of Cubans and others in the Los Angeles area who have asked whether it is now possible to visit Cuba.

The announcement on 13 April 2009 states that the government will (a) lift restrictions regarding travel of family members to the island nation, (b) permit remittances to family members in Cuba, (c) relax restrictions for US telecom companies to establish facilities, permit roaming services, offer telecom services, and donate certain consumer telecom devices to Cuba.

Although the announced changes will permit a Cuban-American (and family members who share the American’s home) to visit persons “within three degrees of family relationship,” there has not yet been a blanket removal of the travel restrictions to Cuba for non-Cuban-Americans.