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In This Issue

• Article One - Senate Democrats Release Immigration Reform Proposal
• Article Two - Family Based Immigration Petitions
• Article Three - Information for Widow(er)s of U.S. Citizens
• Article Four - What's New in Canada?
• Article Five - USCIS Releases Executive Summaries
• Article Six - H-1B Cap Update
• Article Seven - USCIS Launches Agency-Wide Policy Review
• Article Eight - USCIS Releases New Policy Guidance
• Article Nine - Department Of State Reduces VISA Time
• Article Ten - What's New in Employer Compliance
• Article Eleven - TechNOTES

Partisan haranguing took place 4/28/10 with the Senate Democrats' release of their version of a 26-page comprehensive immigration reform Draft for overhauling the nation's immigration laws entitled "Conceptual Proposal for Immigration Reform" .The Republicans immediately attacked it and criticized the Democrats for taking a partisan approach.

The draft includes a proposal to create a process to legalize an estimated 12 million undocumented immigrants in the United States and overhaul U.S. visa programs to bring foreign workers into the country to meet business needs. It also calls for a new visa class specifically for provisional workers.

Meanwhile, White House Press Secretary Robert Gibbs said the president telephoned some Republican senators this week to ask them to support immigration reform. The calls were to keep a promise he made to Sen. Lindsey Graham, R-S.C, stating "We are going to need both Republicans and Democrats".However, Democratic leaders appear increasingly to be laying the groundwork to bring an all-Democratic immigration reform bill to the Senate floor.

Rep. Sheila Jackson Lee, D-Texas, said lawmakers will not be intimidated by Graham's threats to walk away from negotiating other legislation if immigration reform advances.

"I will say to him, 'So what?' " she said. "We will not be intimidated by you!"

It was the Democrats that had promised immigration reform, but both parties are in different ways courting both the Latino community and the immigrant community for votes. So

As we've all expected, the stage is set for quite a dramatic and compelling uphill road where immigration reform is concerned.We will continue to report on this regularly.

Immigration law has evolved into several areas of practice including removal defense, employment based visa petitions, family based visa petitions, naturalization and asylum. This article provides an overview of the family based practice and basic concepts with regard to immigrant and non-immigrant visa petitions available to individuals.

Many individuals seek to sponsor a spouse or fiancée who is living overseas. This can be accomplished through a K-1 fiancée or K-3 spousal visa petitions. These are technically non-immigrant visas which admit the individual for a limited purpose. For the K-1 fiancée' visa the individual is admitted to the U.S. for the purpose of marriage to a U.S. Citizen petitioner and filing of the Immigrant Visa petition. The K-3 visa is filed by persons who have already married overseas, have filed an I-130 immigrant visa petition and seek admission of the husband or wife to the U.S. while their petition is pending.

Immigrant visa petitions may be filed either by a legal permanent resident petitioner or U.S. Citizen petitioner. I-130 immigrant visas may be filed by legal permanent residents for their children or spouses, assuming there is non opportunity to have that person enter the U.S. as a "follow to join" applicant. U.S. Citizen parents may petition their children regardless of age or marital status. There are however different visa categories governing when these individuals may obtain an immigrant visa depending on their age and marital status.

Legal permanent residents (green card holders) may petition a wife or child of any age. As stated earlier it is preferable to bring a derivative spouse or child (under the age of 21) to the United States in 'follow to join' status. If this is not possible then lawful permanent residents may petition the wife or child and expect a waiting period of four years or longer. Children over the age of 21 can reasonably expect a waiting period of up to 8 years.

A U.S. Citizen (either U.S. Born or Naturalized) may petition a wife and child under the age of 21 with no waiting period. Stepchildren, as long as marriage to the parent took place before age 18, also fit into this category. For unmarried children over the age of 21, waiting periods can range from 6 or more years depending on the country of origin.

U.S. Citizens may also petition their parents with no waiting period. Citizens may also petition brothers and sisters who fall into the least desirable 4th preference category with a wait of ten or more years.

For immigration authorities, marriage provides an important distinction between dependent children and children no longer closely associated with or dependent upon their parents. Immigrants should be aware that there is a significant marriage penalty for children who's legal permanent resident parents filed a petition for them prior to their getting married. The child's marriage effectively kills the petition forcing a parent to re-file their immigrant visa and loss of the priority date, greatly extending waiting periods for the visa. Similarly, children whose U.S. Citizen parents file an immigrant visa petition will fall into a less desirable third preference visa category upon their getting married.

You may read this article in its entirety in our articles section here .

Judge Snyder of the U.S. District Court in Los Angeles has approved the Settlement Agreement in the case Hootkins v. Napolitano, CV-07-5696. The case was about the ability of an alien widow(er) of a citizen to immigrate, if the citizen dies while the widow(er)'s case is pending.

Congress amended the immigration law in October 2009 to provide that the spouse of a citizen can remain eligible to immigrate, despite the citizen's death, even if the alien and the citizen were married for less than 2 years.

The following individuals are considered Hootkins Class Members:

All aliens whose United States citizen spouse died before the couple's two-year wedding anniversary, and whose citizen spouse filed an I-130 petition and a Form I-864 or I-864EZ affidavit of support on behalf of the alien spouse, so long as he or she can also demonstrate that:

1. the Form I-130 petition is now pending with or was adjudicated by a USCIS office located within the jurisdiction of the Ninth Circuit, or
2. at the time of the citizen spouse's death, either the alien or the citizen spouse resided within the jurisdiction of the Ninth Circuit.

All aliens who, within ninety days of admission to the United States as a nonimmigrant fiancé(e), married the petitioning United States citizen, and whose citizen spouse died before the couple's two-year wedding anniversary, so long as he or she can also demonstrate that the citizen spouse filed an I-129F petition and a Form I-864 or I-864EZ affidavit of support on behalf of the individual, and

1. the Form 1-129F petition is now pending with or was adjudicated by a USCIS office located within the jurisdiction of the Ninth Circuit, or
2. at the time of the citizen spouse's death, either the alien or the citizen spouse resided within the jurisdiction of the Ninth Circuit.

Should you have a case that fits into the above categories and wish to consult with our office, please contact us as soon as possible.

For the the Settlement Announcement click here .

In order to obtain a Work Permit in Canada, one must have an employer who is willing to hire them AND that employer must first be approved by Service Canada to hire a foreign worker. Therefore, before an individual can apply for a Work Permit, their employer must proceed with the necessary approvals from Service Canada, which can take up to 3 months alone.

In regards to IT Professionals, there are some categories that exempt an employer from requiring an approval from Service Canada, thus allowing the applicant to apply directly for a work permit. These occupational titles are as follows:

• Senior Animation Effects Editor (NOC 9990.1)
• Embedded Systems Software Designer (NOC 9990.2)
• MIS Software Designer (NOC 9990.3)
• Multimedia Software Developer (NOC 9990.4)
• Software Developer-Services (NOC 9990.5)
• Software Products Developer (NOC 9990.6)
• Telecommunications Software Designer (NOC 9990.7)

If you have a job offer to work in Canada and require a work permit and would like to consult with Immigration Compliance Group's Canadian affiliate, Ellen De Witt, please contact us through our contact us page.

Since the release of the very controversial Neufeld Memo in January, USCIS has had several Stakeholder in-person and telephonic listening sessions to discuss its impact on the industries that it affects (IT and Healthcare most particularly). The main flaw of the Memo is that it misunderstands the underlying regulation 8 CFR 214.2(h)(4)(ii) that states that a US employer is defined by 5 characteristics: hire, pay, fire, supervise, or otherwise control.

The Memo asserts that "right of control" is superior to the other characteristics contained in the definition of "employer". The growing confusion amongst immigration practitioners and the affected industries resulted in the USCIS listening session. We share the below summaries of these sessions with you.. Should you have questions or wish to retain our office to handle your H-1B casework or to discuss these issues, please do so.

1. Executive Summary on H-1B's and the employer-employee relationship as it affects the IT and Healthcare Industries: click here
2. Executive Summary on RFE Review and Revision for O & P Visas can be found here

On 4/26/10, USCIS released its H-1B cap update:

1,025 toward the general H-1B cap of 65,000
6,739 toward the Master's Degree cap of 20,000
H-1B Program Information

The current annual level of H-1B's is about the same level as in 1990, even though the U.S. Gross Domestic Product has risen by 64 percent (from $8.5 trillion to $14 trillion) over the past 20 years, while the demand for skilled labor, particularly in technical fields, has also risen.

The National Foundation for American Policy has examined previous years and it is clear that the business climate determines the use of H-1B visas. When Congress raised the limit to 195,000 a year in FY 2002 and 2003, in both years fewer than 80,000 visas were issued against the cap, leaving 230,000 H-1B visas unused in those two years. Firms did not hire more H-1B's in those years just because the cap was higher. See below:

*Does not include exemptions from the cap. Exemptions from the cap include those hired by universities and non-profit research institutes and 20,000 individuals who received a master's degree or higher from a U.S. university

Research shows H-1B visa holders are important to innovation, entrepreneurship and job creation in America. With the annual flow of H-1B's representing only 0.06 percent of the U.S. labor force in 2009, arguments that H-1B professionals overwhelm the American workforce are not supported by logic or the facts. Surveys of Indian and Chinese professionals who have left America show that visa constraints play a role in their leaving the country - exodus that will continue absent reform of our immigration laws.

We link to the Policy Brief here

U.S. Citizenship and Immigration Services (USCIS) have launched a new, comprehensive effort to review all Agency policies with the engaged participation of both its workforce and the public. To get underway, USCIS is inviting outside stakeholders to identify their highest priorities for the Policy Review through a two-week survey launched today.

"At USCIS, we are responsible for ensuring that our policies serve our mission and reflect our core values of consistency, integrity, transparency, and efficiency," said USCIS Director Alejandro Mayorkas. "We have therefore initiated a careful review and consideration of those policies in collaboration with the public we serve. The public's views will help define our Agency's future."

Through a survey distributed earlier this month, USCIS has already asked its workforce to put forward priorities. Now, USCIS' outside stakeholders have an opportunity to offer input by participating in the same survey. The public survey is available on www.uscis.gov from today through April 29. USCIS will publish a summary of the results later this spring.

Throughout the Policy Review, USCIS will continue to seek feedback from its workforce and external stakeholders to ensure that the resulting policies are informed, responsive, and effective.

Please refer here to the USCIS Q&A on the topic.

And here for the Survey with a message from USCIS Director Mayorkas.

The guide was released on 04/23/2010 for Student and Exchange Visitor DSO's of SEVP-Certified Schools for F-1 Students Eligible or Pursuing Post-Completion OPT and can be found here.

The DOS has quietly changed the policy on visa issuance for certain work visas. Starting February 22, 2010, any Mexican citizen applying for an H-1B, H-2B, E-1, E-2, TN and L-1 work visa will be issued a visa for one year only. This is a reversion back to the pre-2008 policy in the case of TN visas.

The DOS has said the policy was changed to confirm to the Reciprocity Agreement that the agency has with Mexico. For years, Mexico's work visas for US citizens were only given validity for one year. When Mexico recently decided to raise its visa fees for US citizens, the DOS decided to remove the multi-year open from US visas issued to Mexican citizens. This change in policy applies to both Mexicans seeking to come to the US and Mexicans already in the US seeking work visas renewals on or after February 22, 2010. Refer to here for more information.

• ...Federal immigration authorities plan to inspect the hiring records of nearly 200 companies in the Gulf Coast area, including Louisiana. Click here for the full article.
• ... USCIS Releases new FAR E-Verify FAQ's (April 2010) The Q&A covers topics such as: Before you Enroll, Enrollment, What contractors are affected by the rule, Employees affected by the rule, and more. We refer you here
• ...New E-Verify Handbook for Clients of Designated Agents: USCIS has posted an update of the above handbook here. If you use a designated agent/vendor for the management of your E-Verify program, you may wish to refer to this updated handbook with the release date of March 2010.
• ...New March 2010 Quick Reference Guide to E-Verify: For the full guide click here.

Should you have any questions or would like to retain our firm to assist you with immigration compliance, I-9 audits/training or the development of compliance program policies - please contact us. For a list of our services and solutions click here.

• ...In the City of Los Angeles government, Google Apps is being deployed to alleviate three problems: a crushing budget deficit, IT staff shortage and widespread dissatisfaction with the current office software system.
  For the full article click here.
• ...Telehealth Links Doctors to Patients in Need. New Telehealth initiatives across the country are starting to address critical shortages of many medical specialists, helping provide care to patients who previously didn't have access.
  For the full article click here.
• ...Sony's PS3 Inches Closer to Offering 3D Games The mainstream availability of 3D games has taken a step forward with the latest update to Sony's PS3 enabling the support of 3D stereoscopic games on the console.
  For the full article click here.

InFOCUS is published monthly by Immigration Compliance Group.

Immigration Compliance Group provides US and global visa services to individuals and employers throughout the USA and abroad. We specialize in business immigration and have a depth of experience in the IT, healthcare, arts & entertainment sectors, amongst others. Our services include complex business visas for investors, multinational managers, and outstanding individuals in science, business, education, athletics and entertainment, as well as PERM Labor Certification. We additionally provide employer compliance consulting services on proper I-9 (Employment Eligibility Verification) auditing, training and the development of compliance policies and regulations. We offer these services, as well, to government contractors and advise on FAR E-Verify enrollment and compliance issues.

We look forward to designing an immigration program for you that uniquely meets your specific needs and requirements. If you like the newsletter, sign up to receive our Blog and Podcast through iTUNES. If you'd like to be a client of our office, please contact our office.