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Whether or not you subscribe to the belief that Valentine’s Day is a holiday “invented by Hallmark,” it can be a great opportunity to reflect on all of the loved ones you have in your life. This doesn’t have to mean flowers, cards, and chocolates; it can simply mean making time for the ones you love and appreciating their presence in your life.

One of the most exciting things about the immigration process is its ability to move people closer to the ones they love. Family-based immigration — whether it be an immigrant visas for a spouse, a K1 visa for a fiancé, or simply a visitor visa for a longtime friend — enables people all over the globe to come closer together and spend more of their lives in the same place.

While current immigration policies and laws can make this process difficult and frightening at times, Passage Immigration strives to make it as easy and painless as possible. One of the most important parts of the family immigration process is providing sufficient evidence to the U.S. government and U.S. consular posts abroad that your relationship is genuine and loving. This does not have to be a daunting task if you truly love the person you are petitioning for!

When we assist someone with their petition, we work to guide them through the requirements and help them to create the strongest case possible. When petitioning for a spouse, fiancé, or loved one abroad, we recommend that you collect the following items for your immigration packet:

  • Photos of the two of you together, both alone and with family and friends
  • Text messages, handwritten letters, emails, and call logs from all of your long distance contact
  • Receipts and tickets from trips you’ve taken together or events you’ve attended together
  • Money transfer receipts (if you’ve ever had to get each other out of a tough place!)
  • Any shared accounts reflecting your intermingled lives or finances
  • Letters of support from friends and family who know and love you

By providing a combination of the above-mentioned items, you can put together a strong petition that will make for a smooth interview when you come to the end of the process. U.S. immigration officers simply want to see that you share a life and truly love each other.

If you are considering petitioning for a loved one soon or at some point in the future, we recommend that you start saving photos, receipts, and other documents so that you’ll be well-prepared when you decide to take the leap!

Passage Immigration Law is based in Portland, Oregon, so it should come as no surprise that we’re huge fans of coffee. In fact, there’s an ongoing debate in our office about who brews the better cup –– Barista or Nossa Familia. But it’s not just the caffeine that excites us –– it’s also coffee’s rich and international history.

Coffee was first discovered several hundred (maybe a thousand?) years ago in Ethiopia. Since then, it has traveled around the world and is cultivated in countries as varied as Colombia, Vietnam, Kenya, Guatemala, Cambodia, Uganda, Mexico, Indonesia, Ethiopia, Jamaica, and Yemen. Of course, it’s enjoyed in far more countries than that!

Coffee’s name reflects its international history. The word “coffee” comes from the Dutch word “koffie,” which came from the Turkish word “kahve,” which in turn came from the Arabic word “qahwa.” That mocha you ordered this morning? It was named after a port in Yemen. Java? That’s an island in Indonesia. A French press? Actually, it was invented in Milan, Italy. (;

Perhaps more interesting than its name is how coffee journeyed across the globe.

Legend has it that coffee was discovered long ago by a shepherd in Ethiopia. He noticed his goats became restless after eating red cherries on a shrub. After trying it for himself, the shepherd became invigorated and excitedly shared his discovery with friends and family. Word of this magic cherry spread and sparked a long tradition of Ethiopians using them making a weak tea.

Some time later, a religious scholar in Mocha, Yemen, decided to roast these beans and soak them in hot water. The result was pretty close to the coffee we drink today and soon coffee houses spread across the Middle East, where they were meeting spaces for lively discussions, music, and activism. The port city of Mocha became famous for its coffee exports, which drove other port traffic for other goods as well. Coffee became so valuable to the local economy that exporting the plants became a crime!

In the 1500s, a man named Baba Budan from Karnataka, India, tried coffee while visiting Yemen. He loved the drink and wanted to share it with his friends and family. He was told he could take as many roasted beans home as he liked, but was forbidden from taking a single seedling home. So he put on a loose-fitting garment, strapped a few seedlings to his body, and returned to India, where he promptly planted seven coffee plants. These seven plants grew into millions and India is now the world’s sixth-largest coffee producer!

In 1615 coffee made its way into Europe, where it was imported from by Venetian businessfolk. The Dutch East India Company caught wind of the trend, which was spreading across Italy, and sent Pieter van Den Broecke to buy some seedlings from Mocha. Like Baba Budan, he had to sneak them out! However, the Dutch quickly learned that Holland’s climate was not well suited for farming coffee and, in 1658, the plants were shipped to the colony in Java, Indonesia.

Coffee grew exceptionally well in Java, and the Dutch East India Company became as protective of the cash-crop as the Yemenis. However, the Dutch monopoly came to an end in 1713 when the mayor of Amsterdam gifted some coffee plants to King Louis XIV, of France. Ten years later, a French navy officer set sail for the Caribbean with some coffee plants in tow and he planted them on the island of Martinique and later in French Guiana.

In 1727, a Brazilian man named Francisco de Melo Palheta traveled to settle a border dispute between French Guiana and Dutch Guiana. He grew fond of coffee during his stay, but the French guarded their coffee plants as closely as the Dutch and Yemenis. So he charmed the governor’s wife, and convinced her to sneak him several seeds. Palheta planted these seeds in Brazil, and the country is now the largest producer of coffee in the world!

For the next few decades, England’s North American colonies were one of Brazil’s largest markets. Colonists drank coffee and tea in equal measures until 1773, when colonists poured thousands of boxes of tea into the Boston Harbor to protest high taxes. Ever since, coffee has been a staple in American culture.

Today, coffee continues to fuel people around the world and from all walks of life. In fact, our small team thrives on it!

L-1 visa allows U.S. employers to transfer an employee from a foreign office either as a manager or executive, or as an employee with specialized knowledge.  One of the basic requirement of such transfer is that the employee must have been working for the foreign office for at least one continuous year immediately before his or her admission to the United States.   The requirement is fairly easy to satisfy if, at the time of filing the L-1 visa petition, the foreign worker is currently employed at the qualifying foreign office of the U.S. employer and has been an employee there for many years.

But what happens if U.S. employer wants to hire someone who has indeed worked at a qualifying foreign office for more than one year but has already been admitted to the U.S. in a different visa status?  Must the one year of qualifying foreign employment be within three years of the last admission in any visa status, or specifically under L-1 visa only?

Let’s say, for example, an engineer from Japan takes a leave of absence from his work in Tokyo to start a prestigious MBA program in the US  He has been working as a highly skilled engineer at a major company for five years, and is ready to take the next step in his career with more managerial responsibility.  He is admitted to the US with an F-1 student visa, and never leaves the country until he graduates after 3 years. His employer in Japan has a subsidiary in the same city where, and now wants him to work at the U.S. subsidiary using the proprietary knowledge he gained from working at the parent company in Tokyo.  Can the US employer apply for an L-1 visa petition using his time as an engineer in Japan as qualifying employment?, Since he was employed there for more than one year during the three years immediately before his last admission to the US as an F-1 student, should he qualify?

The short answer to this above scenario, at least according to the USCIS policy memo issued on November 15, 2018, is an unfortunate NO.  Despite some ambiguous language in the Immigration and Nationality Act (INA) and Code of Federal Regulations (CFR), the USCIS took the position that the one year foreign employment must have happened within the 3 years of filing of the L-1 visa petition, not just any admission to the US.  Therefore, if the foreign worker has already been in the U.S. in a different visa status for more than two years, like the case for our Japanese engineer, he will not be able to satisfy the qualifying foreign employment requirement.

The one exception of this situation is if the foreign worker is already in the US in a different visa status but has been working for the same US employer now wishing to petition for an L-1.  So in our scenario, if the engineer from Japan came to the US three years ago on an H-1B visa to work for the US subsidiary, instead of doing an MBA as an F-1 student, the US subsidiary can petition for his L-1 at anytime even if his qualifying foreign employment was more than three years before the filing date of the L-1.  It is important to note that working for the US employer in other dependent visa status with an EAD, such as under L-2 visa or E-2 visa, do not count and will not result in an adjustment of the three-year period. The rationale of the USCIS is that even though the foreign worker’s employment was with the same US employer, the purpose of a dependent visa or an F-1 visa is was not “for” that particular employment so it shouldn’t count.  This is the case even if the qualifying foreign entity or the US employer paid for the worker’s study in the U.S.

This recent USCIS policy memo was issued specifically in support of the Buy American and Hire American Executive Order, and is in line with their current trend of applying a very strict standard on all employment based immigration programs.  US employers must ensure that the L-1 employee meets this new guidance when calculating the term of his or her qualifying foreign employment.

What is DACA?

Deferred Action for Childhood Arrivals, or DACA, is an initiative launched by the Obama administration in 2012 that provides some undocumented persons living in the United States with work authorization and protection from deportation. Approximately 800,000 folks have received DACA since its inception.

DACA is not a path toward citizenship or permanent residence. Rather, it is an opportunity for undocumented persons who meet a certain criteria to work in the US without fear of deportation. In order to qualify for DACA, “Dreamers” are required to meet certain requirements on a renewable two-year basis.

Many conservatives, including supporters of the Trump administration, oppose DACA and have worked tirelessly to end the program.

DACA in the courtroom

The Trump administration’s plan to cancel DACA has been met with opposition since it was first announced in September 2017.

In January, February, and April 2018, federal judges in San Francisco, New York, and Washington, DC, each ruled that the Trump administration failed to justify the cancellation and blocked the plan to end DACA. In August 2018, a federal judge in Texas rejected a lawsuit submitted by seven states’ that argued DACA is an illegal policy.

Despite these legal challenges, the Trump administration has pressed on with its plan and filed several appeals in several districts including the Supreme Court. However, the Supreme Court is unlikely to review DACA this year.

What does this mean for Dreamers?

Folks who currently receive DACA are eligible to renew their benefits. However, USCIS is not currently accepting new applications.

DACA recently returned to headlines, with many observers speculating that the Trump administration may agree to expand DACA’s benefits in return for funding to build a barrier along the US-Mexico border.

For now, the future of DACA is unclear.

Finally we have some good news to share on H-1B visas.  The USCIS just announced that it will resume premium processing service for all FY2019 H-1B cap petitions, both regular and U.S. Master’s cap.  This means that H-1B employers subject to the annual cap who filed their petitions in April of 2018 and who are still waiting for the USCIS adjudication may now request for an “upgrade” to premium processing.  

Once the USCIS receives the petitioner’s premium processing request with the required $1,410 additional filing fee, the USCIS guarantees a processing time of 15 calendar days.  If the USCIS fails to take action within 15 days, they will refund the $1,410 premium processing fee. Premium processing does not, however, guarantee that the petition will be approved within 15 days.  It is also possible that the USCIS will issue a request for additional evidence (RFE) instead of a final decision before the 15 days processing time period. The petitioner will get the usual 60 days to respond to the RFE, and once the USCIS receives the petitioner’s response, it will give a decision within the 15 days time limit.

It is important to note that this new announcement only applies to the FY2019 H-1B cap petitions.  The previously announced temporary suspension of premium processing for H-1B cases remain in place for all other cases.  According to the USCIS’s previous announcement, petitioners cannot request premium processing for all H-1B petitions filed at the Vermont and California Service Centers except for (1) cap-exempt petitions from a qualifying cap exempt organization that are filed exclusively at the California Service Center and (2) petitions filed exclusively at the Nebraska Service Center by an employer requesting a continuation of previously approved employment without change with the same employer.  Therefore, despite this new announcement, certain H-1B petitions such as amendment request and change of employer requests, may not request for premium processing service. Also, unless the USCIS indicates otherwise through another update before April 1, petitioners filing for H-1B cap cases this year for FY2020 still cannot request for premium processing service.

Below a summary of H-1B petitions eligible for premium processing as of January 30, 2019, per each USCIS service center.

California Service Center Vermont Service Center Nebraska Service Center
H-1B Regular cap (FY2019) YES YES N/A
H-1B Master cap (FY2019) YES YES N/A
H-1B Cap exempt organization YES N/A N/A
H-1B Change of employer NO NO N/A
H-1B Amendment NO NO N/A
H-1B Extension (no change) N/A N/A YES
H-1B Extension with changes NO NO N/A

 

Last month, the US Immigration and Customs Enforcement (ICE) confirmed through their news release what many already suspected:  there was a dramatic increase in worksite inspections, raids, and related arrests made by ICE in 2018.

According to ICE’s own data, they opened 6,848 worksite investigations in FY2018 compared to 1,691 in FY17.  This is an unprecedented 400% increase. Similarly, ICE also initiated 5,981 I-9 audits compared to 1,360 and made 2304 criminal and administrative worksite-related arrests compared to just 311 arrests in FY 2017.  This is following the agency’s commitment made in late 2017 to step up its worksite enforcement efforts across the country. Thomas Homan, the then-acting ICE Director who is now retired, claimed during a press briefing that he wants to see “a 400 percent increase in worksite operations” and that President Trump’s executive order in January 2017 mandated ICE to carry out all existing immigration laws instead of prioritizing who it goes after.  What resulted from this approach is ICE now targeting both employers and employees alike in their worksite enforcement activities.

One common misconception about ICE investigation is that it only affects employers who hire foreign nationals.  This is definitely not the case. ICE can conduct a random worksite inspection on any company that employs at least one employee, even if that single employee is a US citizen.  It is also common for companies to either not know about their I-9 requirement or think that they are exempt from completing a Form I-9 if they hire only US citizens. However, company owners must comply with I-9 requirements for all of their employees regardless of their nationality or work eligibility.  It also does not matter that the employer is a small business hiring only a handful of family members as employees. Even if the employee was hired for just one day, the employer will be in violation of I-9 compliance if he or she didn’t properly maintain the I-9 form.

An investigation from ICE can take two different forms: one is an administrative inspection (I-9 audit) and the other one would be a worksite raid.  For administrative inspections, typically the employer will get a visit from ICE agents asking to see the company’s I-9 Forms. ICE agents conducting I-9 audits usually do not come with a search warrant unless it is part of a raid.  It is important to know that the employer is not obligated to produce the I-9 Form on the spot, and is entitled to a 3 days notice period. ICE officers also need the employer’s consent to enter non-public areas of the business premise.  Unless they present a valid warrant, employers may withhold consent to their entry. On the other hand, worksite raids are typically conducted with a search warrant and they happen without any advance warnings. If ICE officers present a search warrant, employers should inspect the warrant to make sure it is signed by a judge and review its details such as the premises the list of items to be searched.  An employer may accept the warrant but still not consent to the search. In this case, the search will proceed but the employer can later challenge it if there are grounds to do so.

For both administrative inspections or worksite raids, it is important to remember that both the employer and employees have a right to an attorney and the right to remain silent.  A company representative may call the immigration attorney immediately prior to the inspection and inform ICE officers that he or she is doing so. Employees are also entitled to their own attorney.  Employers cannot direct employees on how to respond to ICE officers, but if questioned by ICE about their nationality or immigration status, employees have the right to remain silent. It is best to remain polite and cordial to ICE officers to the extent possible and not engage in an argument or debate, but employers can certainly take notes of the officers’ name, the premises entered, the items seized, and also request a copy of the search warrant, if any.  The company representatives who are likely to first encounter ICE officers during worksite inspections should fully understand their rights, how they would engage, and what privileged documents can be protected.

Despite the lack of federal funding that might affect ICE’s operation early this year, it is reasonable to expect that ICE’s administrative investigations and raids will remain their top priority and the number will continue to be high throughout FY2019. This would be a good time for any U.S. employers, big or small, to have a clear action plan in place in preparation for a possible worksite investigation from ICE. 

If you are a permanent resident and getting ready to apply for a ten-year green card, it’s a good idea to consider becoming a US citizen. Here’s a quick overview why.

It used to take about six months for USCIS to process Form I-751, Petition to Remove Conditions on Permanent Residence. However, as of 2018, the processing time has changed dramatically. It now takes about two years for this petition to be processed. This is certainly frustrating, but there is some good news.

First, applicants with petitions pending will retain all the rights and privileges of being a permanent residence. They can continue to live and work in the United States, as well as to travel freely. Upon submitting Form I-751, applicants will receive a receipt notice that officially extends their status beyond the expiration listed on their green card. In most cases, this extension is good for eighteen months. If this extension’s expiration date approaches while the petition is still pending, applicants can request an additional extension by filing an InfoPass appointment. For more information about scheduling an InfoPass appointment, see here.

Second, most applicants will become eligible for US citizenship while their petitions are still pending. A conditional permanent resident will become eligible for naturalization two years and nine months before their third anniversary of residency. In other words, a permanent resident will become eligible for naturalization less than three years after the date they received their green card.

As previously stated, the processing time for a petition to remove conditions on permanent residence is about two years. However, the processing time for a petition to naturalize is often between six and nine months. An applicant who files both petitions will likely attend a USCIS citizenship interview while their ten year green card petition is still being processed. In these cases, the USCIS officer at the interview will simply adjudicate both petitions during the interview.

The advantages of US citizenship heavily outweigh those of permanent residency. Citizens can vote, petition for more relatives’ immigration, are eligible for jobs in government, and can travel as much and for as long as they want.

In short:

  • You are eligible to apply for a ten-year green card one year and nine months before your green card expires. This application will likely take two years to process.
  • You are eligible to apply for naturalization after you’ve had your green card for two years and nine months. This application will likely take less than one year to process.
  • You may become a US citizen before ever receiving a ten-year green card.

So what does this look like in practice?

Let’s say Jennifer met Hassan while studying abroad in Jordan. The two hit it off, fell in love, and married in 2015. Soon after, Hassan applied for permanent residency. He received his conditional, two-year green card on August 1st, 2016, and it is set to expire on August 1st, 2018. Three months before that date, or May 1st, 2018, he will want to submit an application to remove the conditions on his permanent residency. The goal is for him to secure a new green card that is valid for ten years.

Before applying for his ten-year green card, Hassan will want to collect documentation that shows his marriage to Jennifer is legitimate and ongoing. Examples of supporting documents include photographs, lease agreements, utility bills, joint bank statements, and itineraries from trips taken together.

In May 2018, Hassan will submit these supporting documents alongside a completed Form I-751, Petition to Remove Conditions on Permanent Residence, and a check for the filing fee of $680. Hassan’s petition will take up to two years to be processed.

In May 2019, while Hassan’s petition is still pending, he will become eligible to apply for naturalization. Hassan will collect additional evidence of his genuine marriage to Jennifer, as well as his tax documents and a copy of his green card. He’ll complete Form N-400, Application for Naturalization, and submit it to USCIS alongside his supporting documents.

Sometime around December 2019, Hassan will attend a citizenship interview at USCIS. He’ll do a great job speaking with the officer, and crush the citizenship test. Consequently, his petition will be approved and Hassan will schedule an oath ceremony. Suddenly, Hassan will become a US citizen without ever receiving his ten-year green card. (After all, he no longer needs it!)

Here’s an overview of the timeline:

  • August 1, 2016: Hassan receives his conditional, two-year green card;
  • May 1, 2018: Hassan submits a petition to remove the conditions on his permanent residency and apply for a ten-year green card;
  • May 1, 2019: Hassan submits a petition to naturalize and become a US citizen;
  • Around December 2019: Hassan attends his naturalization interview at USCIS and both petitions are adjudicated.

Ultimately, we generally recommend that conditional residents prepare to apply for naturalization at the same time they prepare their application for ten-year green cards.

Employers and foreign workers who have filed at least one H-1B visa petition in the past few years are all too familiar with the hectic “H-1B cap filing season” which comes on the first week of April every year.  H-1B visa is a popular choice for U.S. companies seeking to hire talented foreign professionals in specialized occupations such as engineers, scientists, physicians, lawyers, architects, and accountants. Despite being a highly sought after visa, the number of H-1B visas available each year is limited to 65,000 each year with an additional 20,000 allocated to foreign nationals holding a master’s degree or higher from U.S. universities.  Since 2014, the USCIS has consistently received more than 100,000, sometimes more than 200,000, of H-1B visa petitions each year. This created a lottery-based system where the USCIS randomly selects the allocated number of H-1B visa petitions for that year and simply returns all the petitions that were not selected to the employer.

Under the current system, an employer must prepare and file a complete H-1B petition along with the certified Labor Condition Application (LCA) from the U.S. Department of Labor as soon as the quota opens on April 1 of each year even though there is at least a two-to-one chance that the petition will not be selected for the lottery and all the paperwork done will go to waste.  Recognizing this issue, the Department of Homeland Security recently announced a significant change in how it will accept and process H-1B visa petitions that are subject to the annual cap.

On December 3, 2018, the Department of Homeland Security (DHS) published a new rule that would require employers seeking to file H-1B cap-subject petitions to register electronically with USCIS during a designated registration period.  That is, instead of having the employer submit a complete H-1B visa petition to the USCIS in April in order to have a chance with the lottery, the USCIS will now require the employer who wish to hire cap-subject H-1B workers to complete an electronic registration with just some basic information about the petitioner and beneficiary, such as the employer’s name, employer identification number, mailing address, beneficiary’s name, country of citizenship, passport number, and whether the beneficiary has obtained a master’s or higher degree from a U.S. institution of higher education.  The USCIS will likely receive more registrations that the H-1B visa numbers available on the first day, just as it does under the current system, so the USCIS will conduct a random selection among the registered applicants and notify them.

Another significant change under the proposed rule is that the USCIS will reserve the order by which it selects H-1B petitions under the regular H-1B cap and the 20,000 exemption for beneficiaries with a U.S. Master’s degree.  According to the new proposed rule, the advanced degree holders will go through the regular H-1B visa lottery of 65,000 and those not selected through this first lottery will get a second chance to compete among the 20,000 cap number reserved for them.  This, in a nutshell, gives better odds to the U.S. advanced degree holders to be selected in the H-1B visa lottery compared to the regular cap applicants.

The Department of Homeland has just finished accepting public feedback and comments on this proposed rule.  It is unclear at this point when the USCIS will be able to finalize and implement the proposed registration system.  With the H-1B cap season for FY 2020 approaching in just a couple months, it is unrealistic and unreasonable to start such a drastic change that would force both the H-1B employers and beneficiaries to prepare for two separate filing systems.   Moreover, if this electronic filing system for H-1B visa is adopted in April of 2019, the USCIS has to guarantee at least another 60 days for the selected employers to prepare and file their H-1B petitions which will push out the actual filing date of H-1B cap petitions to June or possibly July.   The USCIS is already having difficulties adjudicating all the H-1B cap petitions filed promptly on April 1 each in time before the employment starting date on October 1. Unless the USCIS restores premium processing for all cap-subject H-1B visa petitions, we can easily foresee even further delays of H-1B adjudications at the expense of U.S. employers and the H-1B beneficiaries.  

USCIS acknowledged that it might not be able to finalize the regulation and start the new system for this year, but it has not ruled out the possibility.  Since electronic registration can be done in a relatively shorter amount of time, we encourage employers to continue preparing their H-1B visa petitions as usual for April 1 filing.  Passage Immigration Law will continue to monitor the rulemaking process and the final announcement from the Department of Homeland Security and post news of the final implementation of the rule. 

January of 2019 started with great hope but also with some unwelcomed confusion in the immigration world: Employers are left wondering how they should prepare the petitions for their H-1B employees for this fiscal year, individuals had to find out whether the government shutdown will affect their immigration applications, and most immigration courts are closed adding delays to their already full and overburdened calendar.

Although many US companies were relieved to learn that the U.S. Department of Labor will remain operational through the shutdown, this was not exactly the case for iCERT portal. iCERT portal a crucial labor certification registry website for processing important aspects of all H-1B, H-2A, H-2B, and E-3 visas and PERM foreign labor certification for certain employment-based immigrant visa petitions.  This website is used not only for filing labor condition application for H-1B or E-3 visa, but for obtaining a prevailing wage determination, a crucial step for all labor certifications for PERM and H-2B visas.

Starting from early in the morning of January 1, iCERT portal crashed and remained entirely unavailable for a full 7 days, until it was finally restored on January 7.  This major disruption, it turns out, was caused by a sudden influx of tens of thousands of temporary labor certification filed by H-2B employers for the summer season of 2019.  H-2B visas allow non-agricultural workers to come to the US to fill an important temporary need such as seasonal or peak demand at hotels, resorts, restaurants, construction, and landscaping.  The visa is limited to only 66,000 per year with half of it allocated to the summer months starting from April 1 until September 30 and the other half for the winter months from October 1 to March 31 each year.  Due to its popularity, it has become increasingly competitive and difficult for a US employer to secure a labor certification in time, a necessary step before even applying for this visa with the immigration, before the numerical quota maxes out.  If a U.S. employer wants to hire H-2B foreign workers for their summer season, it must file a temporary labor certification in advance through iCERT Portal but this can only be filed on or after January 1 of that year. The DOL processes each labor certification on a first-come-first-served basis starting from midnight on January 1 (12:00 am EST).  The system records the time of acceptance by the millisecond, and the applications get processed in the order of receipt. As soon as the clock starts at midnight on January 1, everyone rushes to get their H-2B labor certification filed just a millisecond faster than others to get a chance to meet the H-2B quota. The competition can be very intense, to say the least.  With so many applicants waiting in line, being late by a second could mean that you lose all your chances to bring your much needed seasonal or peak demand workers for the entire summer months.

This is exactly what happened on January 1 of this year, and a mere 5 minutes after midnight (EST), applications representing close to 100,000 workers were filed at the same time overloading the iCERT server and eventually causing its crash.  This number is close to 3 times more than the 33,000 H-2B visa numbers available for April 1, 2019. Unless the President authorizes another temporary increase of H-2B visa numbers for this year as he did in 2018, the majority of the applications that went through this gauntlet would still go to waste, despite all the efforts the employer makes to diligently follow all the rules and filing everything as early as possible.  

This unprecedented demand for H-2B visa represents at least a 20% increase in application compared to last year.  In 2018, the Employment and Training Administration (ETA) of the DOL announced that they received labor certification requests for approximately 80,000 workers on January 1 alone.  This is already a sharp increase from 2017, with 26,673 applications received on the first day. Putting aside the tremendous inconvenience caused by this week-long iCERT system disruption, this incident clearly shows the need of an increased H-2B visa numbers to meet the demand of the market or to find a better system of filing the required labor certification.  Hopefully, the DOL will also be better prepared next year to deal with the bottleneck issue of H-2B applications on January 1 with properly conducted stress tests.

For the past few weeks, the news of the government shutdown has been the major focus of the media often creating anxieties for people who rely on the proper functioning of the federal government agencies for their applications.  On a positive side, at least for immigration-related matters, the U.S. Citizenship and Immigration Services (USCIS) and the Department of State will both remain open despite the shutdown. The USCIS has announced earlier that it will continue to accept most petitions and applications and the field offices will continue their work and scheduling interviews.  The USCIS does not get affected by the lapse of federal funding like other agencies because they receive a filing fee with most applications, which covers the bulk of their operational cost. Another good news is that the Department of Labor will also remain open. Although the DOL does not charge fees for its immigration-related applications, their funding has already been appropriated earlier in 2018.  This means that prevailing wages, labor condition applications, and labor certifications necessary for certain employment-based petitions will not be affected.

The one area in immigration that has been impacted the most by this shutdown, however, would be the EB-5 investor program.  Since its implementation in 1990, the EB-5 program has been a popular choice for many foreign investors interested in obtaining permanent residency through starting or buying a business in the U.S.  The requirement is that the foreign national makes an investment of $1,000,000 or more in a U.S. business that will also create at least 10 jobs for American workers. If the foreign investor is willing to make the investment in a targeted employment area (TEA), such as an area with higher unemployment rate, the minimum investment amount gets lowered to $500,000.   As other employment-based immigrant visas started to get bogged down with lengthy backlogs and frequent retrogression, especially for foreign nationals born in certain countries such as China and India, the EB-5 investor program has been gaining more popularity over the years. This is especially the case for the EB-5 Regional Center program. This program allows investors to make their investment in an already established economic unit called “regional centers” as approved by the USCIS, so foreign nationals who do not have the time or interest to find and manage a business on their own can still invest their money in a large scale project and benefit from the EB-5 program.  

This popular program, however, is now facing an uncertain future due to recent the lapse of federal funding, making it one of the very few USCIS programs affected by the government shutdown. The EB-5 investor visa program itself does not expire, but the Regional Center program under EB-5 was scheduled to sunset on December 21, 2018.  This Regional Center program has been successfully extended several times in the past years so the expectation was that the program will get another extension. But with the lack of federal funding, the EB-5 Regional Center program is on hold as of December 22, 2018 until further notice. The USCIS announced that it will continue to accept individual EB-5 petitions related to a regional center, but will not adjudicate them and will put them on hold for an undetermined length of time.  It will also stop receiving applications for new regional center designations. This announcement will not affect investors affiliated with regional centers who already received approval on their petition. These investors can continue to file petitions to Remove Conditions on Permanent Resident Status even after the December 21, 2018 and the USCIS will continue to process them normally.

At this point, the future of the EB-5 Regional Center program is a bit unclear.  Even if the program gets a temporary authorization after the federal funding gets released, discussions over amending the Regional Center program will continue.  It is important to note that this only affects the Regional Center program of EB-5, and regular EB-5 petitions by individual investors are not affected at all.

For more information about the government shutdown, see here.

Many of us travel to meet with friends and family during the holiday season. Although this should be a happy occasion, travel can be stressful –– especially for immigrants.

As a permanent resident, you’re certain to encounter Customs and Border Protection (CBP) officers upon returning to the US. They’ll inspect your travel documents and determine whether you are a “returning resident” or an “arriving alien.” If you have a valid green card, you’ll likely be admitted immediately and granted entry. However, there’s a chance you’ll be taken to a separate area for “secondary inspection” if CBP is uncertain about your immigration status.

What to Expect in Secondary Inspection

Secondary inspection can be frustrating and feel like an invasion of privacy. This process can last anywhere from a few minutes to several hours, during which an officer will ask you questions, run record checks, and possibly take your fingerprints. CBP even has the ability to search your phone, tablet, laptop, or other electronic devices. They can read your emails, peruse your text messages, and check your social media feeds. (This is why it’s important to protect your devices while traveling.)

Your Rights in Secondary Inspection

The good news is you have certain rights if you are detained by CBP in secondary inspection, including:

The right to contact your consulate, which can assist you with contacting an attorney or family member.

  • The right to ask to speak with your attorney, if you have one. (However, CBP may deny this request.)
  • The right to review all paperwork presented by CBP.
  • The right to refuse to sign any paperwork presented by CBP.

We hope you will never be placed in secondary inspection. If you are, ideally you will be processed quickly and granted entry.

Why CBP Might Be Suspicious of You – Even Though You Have a Green Card

However, CBP may consider you to be an “arriving alien” for several reasons, including if they believe that you:

  • Abandoned your permanent resident status
  • Remained outside the US for six months without permission
  • Engaged in illegal activity abroad

If CBP believes you abandoned your permanent resident status, they may try to convince you to sign something called Form I-407, Record of Abandonment of Lawful Permanent Resident Status.

Do Not Abandon Your Green Card

CBP cannot force you to sign Form I-407 or abandon your green card. You have the right to refuse to sign Form I-407 and request a hearing. You will remain a permanent resident unless an immigration judge issues an official order of removal.

To avoid possible delays, we strongly encourage you to speak with an experienced immigration attorney before making any travel plans. Do you have questions or concerns about traveling as a permanent resident? Give us a call (503) 427-8243 or click here to schedule a consultation.

As of this month, the H-2B cap for the first half of 2019 has been reached. The date of the last count was December 11, 2018. USCIS will of course continue to accept petitions for H-2B workers who are exempt or not subject to the H-2B cap.

The H-2B visa program allows employers to hire foreign workers to fill temporary nonagricultural positions. For example, a hotel might employ foreign workers to supplement its workforce during the peak season.

A total of 66,000 H-2B visas are issued each year. This limit is called the “H-2B Cap.” The visas are distributed evenly between workers who begin their employment in the first half of the fiscal year, October 1 through March 31, and the second half of the fiscal year, April 1 through September 30. The spouse and children of H-2B workers are not counted against this cap.

Some workers are exempt from the H-2B cap. This includes workers who extend their stay, change employers, are are engaged in certain cap-exempt fields like fish roe processing.

Let us know if you have any questions or concerns about the H-2B visa program. Our number is (503) 427-8243.