Immigration Visa Attorney Blog

Before a Permanent Labor Application (PERM) can be filed, the employer must attempt to recruit U.S. workers for the position being offered. This process is essential to a successful PERM case, and if the recruitment is not carried out according to mandatory Department of Labor (DOL) regulations the PERM case may be denied. What follows is a general overview of this crucial step...

The recruitment process spans professional and non-professional positions, and will vary depending on whether or not the job is one that the DOL considers a professional or non-professional position. In either case, the employer must be able to prove that appropriate recruitment was carried out prior to filing the PERM application; dated copies of all recruitment must be kept on file.

For professional and non-professional positions, the DOL mandates the following (professional positions include any EB-2 position and most EB-3 positions that require a degree):

1. The Job Order
The employer must make sure that a job order is placed with the State Workforce Agency (SWA). This ad must run for a period of at least 30 days.

2. Advertisements in Newspapers or Professional Journals
A newspaper advertisement for the position must run on two Sundays. If the position requires an advanced degree, then an ad may run in a pertinent and national professional journal in place of ONE of the Sunday newspaper ads.

3. Internal Job Posting
The employer must run a job posting at the place in which the offered position will be performed. This ad must be posted for at least 10 consecutive business days.

For professional positions (EB-2 and most EB-3 positions) there are another 3 recruitment activities, for a total of 6. Any 3 of the following recruitment forums may be chosen, and must take place within the recruitment period:

1. Job fairs
2. Employer's web site
3. Job search web site other than employer's
4. On-campus recruiting
5. Trade or professional organizations
6. Private employment firms
7. An employee referral program, but must include verifiable incentives
8. Campus placement office
9. Local and ethnic newspapers
10. Radio and television advertisements

All recruitment must be completed in the 180 days prior to filing the PERM, and 30 days before filing the application, though for a professional position one of the three additional steps may take place less than 30 days prior to submitting the application.

Finally, it is extremely important to keep in mind that errors in recruitment cannot be corrected after the PERM has been filed.

Last month a Congressional bill that would have allotted 55,000 permanent resident visas for foreign graduates with STEM degrees was defeated in the House of Representatives. The fate of the bill is particularly interesting because of the window it provides into the current state of immigration legislation in the United States.

Representative Lamar Smith, a Republican from Texas, sponsored the bill, entitled the STEM Jobs Act. The bill provides thousands of green cards for immigrants who receive degrees in science, technology, engineering and mathematics. On that point many in Congress were supportive.

But the fast-tracked measure failed in its vote, 257-158 coming up short of the two-thirds majority needed. The bill received the vote of the entire Republican caucus, along with that of several dozen Democrats.

Continue reading "Green Card Bill for STEM Graduates Fails" »

Deferred Action for Childhood Arrivals program is the government's way of providing a two-year respite from deportation for so-called DREAM Act youths. And while not a permanent solution to the country's many immigration issues, Deferred Action does seems to be a positive step towards addressing an immigrant group with unique characteristics.

As with virtually any program of this nature, there will always be complications arising from its parameters. Deferred Action is no exception, and in recent weeks we've been seeing some of those make their way to into the public eye.

To meet the criteria for Deferred Action, one must "have continuously resided in the country between June 15, 2007 to the present." Which means immigrants who otherwise would have qualified for Deferred Action but chose to leave the U.S. temporarily in order to apply for citizenship are stuck in a type of limbo.

Continue reading "More on Deferred Action" »

In recent weeks we've done some blogging about Deferred Action for Childhood Arrivals, the program similar in many ways to the DREAM Act most people are familiar with. (If you're not up to date on Deferred Action for Childhood Arrivals, please check out THIS POST.)

An interesting component of the Deferred Action for Childhood Arrivals which will begin to play itself out over the upcoming months deals with how qualified candidates will be made aware of the program. Some estimates say more than 1 million immigrants are eligible for Deferred Action. According to United States Citizenship and Immigration Services, less than 85,000 have signed up.

That disparity means there are quite a number of immigrants who are unaware they qualify for the two-year deferment. That is literally hundreds of thousands of children, teenagers and younger adults who don't have access to information that could impact their lives significantly.

Continue reading "Getting Creative to Reach DREAM Act Candidates" »

This will be the third blog in our series on Consideration of Deferred Action for Childhood Arrivals. After an examination of the program as a whole (LINK) and some of the program's specific guidelines (LINK), we will now take a look at the documentation needed to demonstrate for the United States Citizenship and Immigration Services (USCIS) that guidelines have been met.

For proof of identity, an applicant must be able to submit one of the following: A passport/national identity document from the country of origin; a birth certificate with photo ID; a school or military ID; or a U.S. government immigration document containing both name and photo. For proof of immigration status the USCIS will accept a Form I-94/I-95/I-94W with authorized stay expiration date; final order of exclusion or deportation as of June 15, 2012; or a charging document which places the applicant into proceedings for removal.

Records from U.S. schools attended, travels records, Form I-94/I-95/I-94W, immigration documents from the DHS or INS stating date or entry or hospital records can be used to prove an applicant came to the U.S. prior to the age of 16.

Continue reading "Consideration of Deferred Action for Childhood Arrivals - Part III" »

In our last blog, we provided an overview of the process of Consideration of Deferred Action for Childhood Arrivals (LINK). As mentioned, the two-year deferment is available to those who came to the United States as children, have not committed serious criminal offenses and who meet certain guidelines. In this blog we will look at those guidelines.

For starters, there are several important dates to keep in mind. As of June 5, 2012, perspective deferment applicants must have been under the age of 31. They must also have come to the U.S. before their 16th birthday and must have resided in the country, continuously, from June 15, 2007, to the present time. To be considered, applicants must have entered without inspection prior to June 15, 2012 or have had their lawful status expire as of the same date.

There is also an educational component to the deferment process. In order to be considered, an applicant must be: currently enrolled in school; have completed their GED; or be an honorably discharged veteran of the U.S. Armed Forces or Coast Guard.

Continue reading "Consideration of Deferred Action for Childhood Arrivals - Part II" »

The Department of Homeland Security (DHS) continues to focus its immigration enforcement efforts on the removal of two types of individuals: 1. Those who pose a threat to national security, and 2. Those who are a risk to public safety, such as violent criminals, felons, and repeat offenders. DHS does not want to expend resources on low priority cases, such as individuals who came to the United States as children, have not committed serious crimes, and who meet certain guidelines. This is where the process of Consideration of Deferred Action for Childhood Arrivals comes in.

While this deferral does not confer lawful status upon an individual, nor excuse an individual from previous or subsequent periods of unlawful presence in the United States, the Deferred Action for Childhood Arrivals gives an undocumented individual some allowances. That is, under existing regulations an individual who has obtained this deferral, which lasts for two years, is eligible to receive employment authorization for the period of deferred action, provided the person in question can demonstrate "an economic necessity for employment." Additionally, it also allows the individual to attend school.

Continue reading "Consideration of Deferred Action for Childhood Arrivals - Part I" »

One of the more interesting developments in U.S. immigration over the past few years is that Asians have overtaken Hispanics as the country's largest immigrant population.

Using percentage of foreign-born annual arrivals, the Pew Research Center reported that in the last three years Asia has became the top source of immigrants. 430,000 Asians came to the U.S. in 2010, a number that represents 36 percent of all new legal and illegal immigrants. In the same year there were 370,000 new Hispanics arrivals.

A recent article in Forbes detailed some of the reasons we have seen the shift. High growth rates in Asian countries, along with economic conditions in the U.S. and Mexico/Central America have combined to move the groups in opposite directions.

Continue reading "Asian immigration on the rise" »

Last month the Brookings Institute released a study on highly skilled immigrant workers and their demand based upon geographic region within the United States. What Brookings found was that the highly coveted STEM (science, technology, engineering and mathematics) workers who make up the majority of H-1B visas are more often finding a home in the Midwest.

Expected tech hubs such as San Francisco, Los Angeles and San Jose are still at the very top in terms of total H-1B requests. But when Brookings looked at the ranking of cities in terms of H-1B requests per 1,000 workers, it found the Midwest is one of the country's up-and-coming hotbed for these visas.

Continue reading "Increasing Demand for H-1B Workers in the Midwest" »

A poll conducted earlier this month seems to indicate the Obama Administration's decision to stop deporting certain undocumented immigrants brought to the United States as children may not have helped boost his reputation on the issue among voters.

The Washington Post and ABC News conducted a poll asking whether or not voters approve of Obama's handling of the immigration issue. His rating was essentially identical to what it was at this point in 2010 and he received virtually the same favorable numbers as opponent Mitt Romney.

Less than 40 percent of adults polled said they approved of the job Obama was doing on issues related to immigration, while approximately half said they disapproved of his performance. Approximately 45 percent said they trusted Obama on the issue.

Voters in the eight swing states believed to be critical to the 2012 election (Nevada, Colorado, Iowa, Wisconsin, Ohio, Virginia, Vermont and Florida) polled at virtually identical numbers, thought the swing states had a slightly higher disapproval and trust percentages than the rest of the country.

Continue reading "President's new immigration policy not paying dividends with voters" »

We wanted to make sure you were aware of an interesting piece of legislation that was recently introduced by two members of the U.S. Senate.

In May, Senators Lamar Alexander, a Republican from Tennessee and Chris Coons, a Democrat from Delaware, introduced Senate Bill 3192, which carries the title: "Sustaining our Most Advanced Researchers and Technology (SMART) Jobs Act of 2012.

According to the authors, SB 3192 is designed to create a path for non-citizens who earn a masters or doctoral degree in a STEM field from an American university to remain in the country for up to a year while they search for employment related to their field of expertise. Once they have received employment, they would be eligible for a green card. Additionally, these STEM-specific green cards would not count towards any caps or limits already in place.

Continue reading "Senate Bill 3192" »

A recent case brought before the Sixth Circuit Court of Appeals highlights the issue of immigrants facing removal based on the Immigration and Nationality Act's (INA) policy dealing with so-called crimes involving moral turpitude (CIMT).

INA code refers to elements of CIMT as most commonly involving fraud, larceny and "intent to harm persons or things." Along with giving or being aware of false testimony, there is a long list of crimes the government believes contain "an inherently evil act." Everything from arson, to bribing a public official, to assault and murder is included.

In the case before the Sixth Circuit, the judge was asked to rule on whether the crime of felony-flight is one that involves moral turpitude. Mexican native Armando Ruiz-Lopez entered the country in 1991 and had been living in the U.S. for six years when he was pulled over for speeding less than a mile from his home. He continued driving and pulled into his driveway where he was arrested. As a first-time offender Ruiz-Lopez received a 40-day prison sentence and two years of community supervision for felony flight.

Continue reading "Crime Involving Moral Turpitude" »

In May the Obama administration decided to increase the parameters for Optional Practical Training (OPT) program, significantly increasing the number of fields involved. This is a somewhat significant development, potentially impacting thousands of students across the country.

For those unfamiliar with OPT, it is a temporary employment program connected with Science, Technology, Education and Mathematics (STEM) students in the United States on F-1 visas. OPT allows F-1 visa students to remain in the country and work for an additional 29 months before or after completion of their education.

In 2008 President George W. Bush added a 17-month extension to the program, increasing the maximum length of the visa from 12 months to its current parameters. To be eligible for the extension, the applicant must have received his or her STEM degree and have an employer enrolled in E-Verify.

The big change unveiled last month is that the administration is adding approximately 90 eligible fields to the total pool of OPT, with raises the number to 400. There will be no change to the 29-month limit.

Continue reading "OPT Visa Program Expanded" »

Some of you are no doubt aware the Obama administration made a major announcement last week regarding undocumented immigrants who would fall under the auspices of a program like the DREAM Act. That is, hundreds of thousands of immigrants in good legal standing who were brought to the U.S. as children will no longer be pursued for deportation by the Department of Homeland Security (DHS).

Effective June 15, DHS will not pursue these cases as part of a new Deferred Action Process (DAP).

"Our nation's immigration laws must be enforced in a sensible manner," said Secretary of Homeland Security Janet Napolitano. "But they are not designed to be blindly enforced without consideration given to the individual circumstances in each case. Discretion, which is used in so many other areas, is especially justified here."

First, the particulars. To qualify for the DAP you must:

1. Have come to the United States before the age of 16.
2. Currently live in the U.S. and have resided here for five continuous years preceding June 16.
3. Have graduated from high school or received a GED, be currently enrolled in school, or be an honorably discharged veteran of the Armed Forces or Coast Guard.
4. Have never been convicted of a felony, "significant misdemeanor" or multiple misdemeanors. You can also not pose a threat to national security or the public safety.
5. Be 30 years of age or younger.

If an immigrant is able to prove they meet these criteria through "verifiable documentation," they will be allowed to receive deferred action for two years and be able to apply for work authorization. This deferment will be subject to renewal after two years. At that point individuals who wish to renew their deferment will have to re-apply for an extension. If the extension is granted, they will need to re-apply for employment authorization.

Continue reading "Deferred Action Process" »

This week the United States Citizenship and Immigration Services (USCIS) announced that it had reached the cap for H-1B petitions in FY 2013. Any petitions received by USCIS on or after June 12 will be rejected.

"June 11, 2012, was the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY 2013," the USCIS said in a release.

With the cap season opening on April 2, that means the 85,000 (65,000 regular, 20,000 advanced degree) cap number was reached in approximately ten weeks. This is a significant change from FY 2012, which the cap wasn't filled until late November.

A number of factors explain the increase in H-1B interest this fiscal, first and foremost being a slight improvement in the U.S. economy and the resulting boost in hiring. As we've mentioned before in this space, as the country emerges from its slow-down, companies have been deciding to invest in infrastructure and are making H-1B-heavy areas like information technology a priority.

Continue reading "H-1B Cap Reached" »