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An excellent decision from the Board of Immigration Appeals (BIA) came out today regarding the Child Status Protection Act, or CSPA.  CSPA requires that applicants that ”aged out” of an immigrant visa petition, but who are otherwise eligible for derivative status under the Act, have “sought to acquire” lawful permanent resident status within one year of a visa number becoming available.  The question in the BIA’s case, In Re Jose Jesus Murillo, was what the phrase “sought to acquire” means - does it require that an application for permanent residence be filed, or do steps short of filing an application still satisfy the law?  The BIA came down on the side of the immigrant in this case, saying that Congress would have said “filed” if it meant filed, but instead chose to say “sought to acquire,” which is necessarily broader than specifically filing an application.  The Respondent in this case found an attorney and prepared an application within one year of his visa becoming available.  According to the court, his actions satisfied the statute, enabling the young Respondent to derive permanent residence through his father’s approved petition.  This case got me thinking more generally: why would the government really want to fight this point?  The purpose of CSPA was to unite families; given that, why would our government feel the need to push the child of now-permanent residents out of the country so unceremoniously?  American immigration law has always reflected some larger policy goals - unite families, protect U.S. workers, kick out criminals, terrorists, and persecutors of others, etc.  Does DHS’s appeal in this case really speak to any of those goals?  The answer has to be a resounding NO.  I for one think that our tax dollars could be used pursuing worthier appeals than this.

The State Department issued its latest visa bulletin today (also known as that &%*$@!! visa bulletin to immigration practitioners), and the news is not good for Mexican nationals applying for permanent residence through the employment-based third preference (also known as the &%*$@!! EB-3 category, or just EB-3 category, to immigration practitioners).  The annual limit on Mexican EB-3 applications has been reached already, and the category is therefore currently unavailable.  When this happens, the visa bulletin shows a nice fat “U” – for “unavailable” – in that category’s box, and intending immigrants with an approved I-140 or a pending I-485 have to wait until an actual date shows up in the box before they can obtain their green card.  The news isn’t much better for anyone else in the EB-3 category.  Nationals of China and  of the Philippines have a seven-year wait for a green card in the third preference category, and Indian nationals have an almost nine-year wait.  There is also a seven-year wait for “all chargeability areas except those listed,” or everyone else in the world aside from Mexicans, Filipinos, Chinese, and Indians that has the misfortune to be stuck in the EB-3 route to permanent residence. 

The long waits in the employment-based immigrant preference categories are a stain on the United States and a major factor in countless highly-skilled and educated immigrants choosing other countries that have more rational immigration systems over this one.  Congress can solve this entire problem with a simple piece of legislation that increases the number of employment-based immigrant visas available in any given year, or that at least recaptures unused numbers from previous years in other preference categories.  Given Congress’s recent track record on getting anything done, however, passing even a simple piece of legislation might be asking for too much right now.

I was just reading through the minutes of a meeting between the American Immigration Lawyers Association (AILA) and the Department of Labor’s Wage and Hour Division (WHD), and realized for the first time just what an important force the WHD is for immigrant workers in the United States.  The WHD investigates, among other things, violations of the terms of a foreign national’s employment in the U.S. with respect to specific immigration benefits.  Anyone that wants to petition for a foreign worker has to either submit a Labor Condition Application (for H-1Bs and some other nonimmigrant categories) or a Labor Certification (for green cards).  Labor Certifications and Labor Condition Applications contain an employer’s promises to both the U.S. government and the foreign worker, and violations of any of the terms in those applications are potentially very serious for the petitioning employer.  The WHD can step in whenever a violation has occurred, using its investigative and enforcements powers to levy a wide range of sanctions on U.S. employers, including the recovery of back wages owed to foreign workers.  According to the minutes I was reading, the WHD recovered $8.3 million in back wages over the course of 189 investigations in 2008, the last year for which data is available.

Some things to keep in mind about using the WHD: there is a 12-month window from the date of occurrence in which to complain about violations of the H-1B program.  Also, if employees have fallen out of status because they were “benched” after complaining about wage or other labor violations, the WHD can issue a letter acknowledging that a complaint has been filed, which is usually required for a petition to transfer their H-1B status to another employer.

Employees with bona fide employment abuse complaints should not hesitate to contact the WHD.  This is one of those agencies that is on the side of employees, not employers.  If you, as an employee, are following the law, but your employer is not, the WHD seems like an effective and under-utilized means of solving your work problems once and for all.

USCIS’s California Service Center – or the CSC to us IAs (figure that one out on your own) – is hosting an EB-5 Forum on March 16, 2010 in Laguna Niguel, California.  According to the posting I saw on AILA’s Infonet:

The CSC has scheduled an EB-5 forum on March 16, 2010 from 1:00pm to 3:00pm. The CSC will be providing brief EB-5 updates and open the floor for an informal Q&A with a panel of EB-5 managers, supervisors, and service center counsel. The meeting will be held at the California Service Center, 24000 Avila Road, Laguna Niguel, California 92677. AILA members attending the meeting should meet at the south entrance prior to the meeting to be escorted inside. The meeting is open to all AILA members by RSVP only. If you wish to attend, please RSVP with Robert Nadalin at robert@nadalinlaw.com before March 8, 2010.

According to the California Service Center, anyone is invited to this forum, as long as you RSVP to the CSC (see the comments to this post).  I had originally said that only AILA members were invited, which is not the case.

The Department of Labor announced today that it is changing the way Prevailing Wages are obtained for many types of applications and petitions.  Here is the content of the DOL’s post:

I. Prevailing Wage Requests As of January 1, 2010, the Office of Foreign Labor Certification (OFLC) National Prevailing Wage and Helpdesk Center (NPWHC) in Washington, DC, will receive and process prevailing wage determination (PWD) requests for use in the H-1B, H-1B1 (Chile/Singapore), H-1C, H-2B, E-3 (Australia), and permanent labor certification programs.

Link to Federal Register: http://edocket.access.gpo.gov/2009/E9-28963.htm

Link to form 9141: http://www.foreignlaborcert.doleta.gov/pdf/ETA_Form_9141.pdf

Link to 9141 instructions: http://www.foreignlaborcert.doleta.gov/pdf/ETA_Form_9141_General_Instructions.pdf

II. New Location for Filing TEMPORARY Labor Certs There is a change in the location where applications for temporary labor certification programs will be filed and/or are being processed.

Link to Federal Register: http://edocket.access.gpo.gov/2009/E9-28954.htm

Link to Form 9142, Application for Temporary Employment Certification: http://www.foreignlaborcert.doleta.gov/pdf/OMBETAForm9142.pdf

Based on this, everything that attorneys knew about obtaining Prevailing Wages is now obsolete.  I just hope that the DOL actually has this new PWD service up and running on January 1st.  The DOL has a bad reputation for implementing sweeping changes to its immigration-related procedures before it is technically able to make them function properly (see my post on LCA snafus).  If that happens here, it’s going to mean chaos, confusion, and a lot of unnecessary stress for literally thousands of employers, employees, and their attorneys.

I’ve notice that USCIS’s Administrative Appeals Office (AAO) has overturned two I-140 denials recently, which is fairly unusual.  The Nebraska Service Center denied both I-140s because the applicants for the jobs in question – software engineer and market research analyst – lacked education in those specific fields.  The AAO held that a specific field of study is not required for either of these positions; in other words, a Bachelors degree or a Masters degree is sufficient, on its own, to qualify the applicant for the positions at issue here.  I find these two decisions especially interesting because they show that (1) the AAO actually does, on occasion, overturn a USCIS Service Center decision, (2) the underlying NSC decisions seem clearly erroneous, making me wonder whether NSC officers are routinely fed crack as part of their job duties, and (3) the time between filing the appeal and getting an answer is absolutely ridiculous, and getting worse.  The NSC denied both of these I-140s in 2007, and the petitioners are just getting answers at the end of 2009.  What kind of dysfunctional system allows people to remain in limbo for such a long time?  It’s worth mentioning that a pending appeal confers no legal status on beneficiaries located in the U.S.; they have to maintain independent nonimmigrant status while their appeals are pending, or they will fall out of status and become ineligible for certain immigration benefits, including, possibly, permanent residence – the point of the appeal in the first place.  Given the low rate of AAO appeals granted, appealing while in the U.S. is a major gamble that might not pay off for years, if ever.  My solution: even if it’s the petitioner’s appeal, let the appeal confer some sort of status on the beneficiary as well, so he or she still qualifies for adjustment down the road.  That’s the least the government can do if it has to take such an insanely long time adjudicating I-140 appeals.

President Obama gave the immigration community a gift today, re-authorizing the EB-5 Regional Centers program through October 31, 2009.  Although this is undoubtedly a positive development, the long-term future of the Regional Centers program is in great doubt right now.  The Senate’s version of the DHS Appropriations bill currently in Congress contains permanent extensions for both the Regional Centers program and the E-verify program; the House version has a 2-year extension for E-verify, but no extension for the Regional Centers program.  The Congressional Hispanic Caucus (CHC) is apparently not too fond of E-verify – and for good reason – but wants no more than a 2-year extension for both programs.  If the CHC can’t get their way, there is a very good chance that both of these immigration riders will be shot down at once, saving America from E-verify, but destroying the Regional Centers program in the process.  As I’ve already said on this blog, that would be a tragedy for America in many ways and should not be allowed to happen.

Two key programs are ending on September 30th, unless Congress authorizes their extension.  The first is the Immigrant Investor Pilot Program, which authorizes the establishment of “Regional Centers” to pool qualifying investments, allowing immigrant investors to more easily obtain permanent residence, and the second is EB-4 classification for Non-Ordained Religious Workers.  Although I’m all for bringing more qualified religious workers into the U.S., even though I’m about as un-religious as anyone can be, I’d be seriously shocked, saddened, and downright pissed to see the Regional Centers program sunset on September 30th.  The fact that this program is good – no, GREAT – for everyone concerned is a true no-brainer.  It brings rich immigrants into the country, creates jobs for American workers, infuses capital into a local economy, and provides a nice source of business for several immigration attorneys.  Well, that last one might only be important to me, but the first three reasons should be important to the nation as a whole.  As a matter of public policy we want to encourage the best, the brightest, and the wealthiest from around the world to come to the United States.  The immigrants taking advantage of the Immigrant Investor Pilot Program are usually a combination of all three, and they have to have obtained their money legally to boot - and prove it – discouraging all those wealthy criminal geniuses from taking advantage of this program.  In its infinite widsom, Congress not only created a means for some extremely wealthy people to essentially buy their way into the U.S., but also made it contingent on job creation, and created extra incentives to invest and create jobs in areas that are either rural or designated Targeted Low Employment  Areas.

My question for Congress is – why would you not want to extend this program?  In a world of increasing complexity, in which it’s often not clear what the best direction for the country is, the Immigrant Investor Pilot Program stands out as something truly good for all concerned.  Let’s hope Congress steps up and does the right thing by extending this important program past its September 30th sunset date.

The State Department’s visa bulletin for July 2009 just came out today.  Guess what?  If you were born in India or China, and have an approved labor certification in the second preference category – meaning you have a masters degree or higher – you now have to wait nine years until you can get permanent residence in the United States.  At least there’s still a queue for the second preference, though; the third preference is completely unavailable for Fiscal Year 2009, and according to State Department official Charles Oppenheim, the wait in Fiscal Year 2010 will be about seven years.  How will we be able to attract the foreign workers we need if they’ll have to wait more than nine years in some cases for permanent residence?  These are not workers that will displace Americans; a labor certification, in fact, is proof that there are no qualified U.S. workers for the job in question.  These are workers that we need and that will strengthen American businesses and the economy as a whole.  Waiting all that time for a green card – in many cases outside the United States – does nothing to make America seem the land of great opportunity it’s always purported to be.  Here’s a link to the latest visa bulletin – see for yourself just how bad the waits are.

In order to really attract the best and brightest foreign workers to the United States, Congress needs to allocate more visa numbers for skilled foreign workers, especially those in the second preference that have extremely high levels of education.  These workers will simply go elsewhere if it’s too burdensome to immigrate to America – taking their skills, knowledge, and money-making ability with them.