H-1B Cap for FY 2010 now reached

U.S. Citizenship and Immigration Services (USCIS) announced that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2010.  USCIS has announced that Dec. 21, 2009 is the “final receipt date” for new H-1B specialty occupation petitions requesting an employment start date in FY 2010.

The “final receipt date” is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 65,000.  USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the “advanced degree” exemption.  Properly filed cases will be considered received on the date that USCIS physically receives the petition; not the date that the petition was postmarked.  USCIS has said that it will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY 2010 that arrive after Dec. 21, 2009.

New Filing Address for Naturalization Applicants (N-400)

The United States Citizenship and Immigration Services (USCIS) announced on December 17, 2009 that all applications for Naturalization (Form N-400) are to be filed at new USCIS Lockbox facilities in Phoenix and Dallas and that the change in filing address takes effect immediately.

N-400 naturalization applicants who live in Alabama, Arkansas, Connecticut, Delaware, District of Columbia, Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennesee, Texas, Vermont, Virginia, West Virginia, Puerto Rico, or the U.S. Virgin Islands are to file their N-400 applications by regular mail with the USCIS Dallas Lockbox at:

USCIS
P.O. Box 660060
Dallas, TX 75266

Express Mail and Courier deliveries (which I highly recommend) must send their N-400 application to:
USCIS
ATTN: N-400
2501 S. State Hwy. 121 Business
Suite 400
Lewisville, TX 75067

N-400 naturalization applicants who live in Alaska, Arizona, California, Colorado, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin, Wyoming, Territory of Guam, or the Commonwealth of Northern Mariana Islands are to file their N-400 applications by regular mail with the USCIS Phoenix Lockbox at:

USCIS
PO Box 21251
Phoenix, AZ 85036

For Express Mail and Courier deliveries the N-400 must be sent to:
USCIS
ATTN: N-400
1820 E. Skyharbor Circle S
Suite 100
Phoenix, AZ 85034

H-1B Cap To be Met Soon – December 2009

As of December 15th, the United States Citizenship and Immigration Services (USCIS) has announced that approximately 64,200 H-1B cap-subject petitions had been filed. This is 1300 cases more than the count from December 11th. With only 800 remaining to reach the Cap of 65,000 and given the recent surge in H-1B applications, it is expected that the cap will be met before or by end of the month.

USCIS has approved sufficient H-1B petitions for aliens with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap.  Any H-1B petitions filed on behalf of an alien with an advanced degree will now count toward the general H-1B cap of 65,000.  USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

FY 2010 H-1B (November 2009)

As of November 13, 2009, approximately 55,600 H-1B cap-subject petitions had been filed. The U.S. Citizenship and Immigration Services (USCIS) has approved sufficient H-1B petitions for aliens with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap. Any H-1B petitions filed on behalf of an alien with an advanced degree will now count toward the general H-1B cap of 65,000. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

AAO Processing Times as of November 1, 2009

Case	Type	Time
I – 129F	Petition for Fiancée	2 Months*
I – 129 H1B	Nonimmigrant Specialty Occupation Worker	13 Months
I – 129 H2	Temporary Nonimmigrant Worker	6 Months*
I – 129 H3	Temporary Nonimmigrant Worker	6 Months*
I – 129 L	Nonimmigrant Intracompany Transferee	8 Months
I – 129 O	Nonimmigrant Extraordinary Ability Worker	2 Months*
I – 129 P1, P2, P3	Athletes, Artists and Entertainers	6 Months*
I – 129 Q	Cultural Exchange Visitor	6 Months*
I – 129 R	N/I Religious Worker	5 Months*
I – 131	Application for Travel Document	3 Months*
I – 140 EB1	(A) ‐ Alien with Extraordinary Ability	5 Months
I – 140 EB1	(B) ‐ Outstanding Professor or Researcher	5 Months*
I – 140 EB1	(C) ‐ Multinational Manager or Executive	10 Months
I – 140 EB2	(D) – Advanced Degree Professional	27 Months
I – 140 EB2	(I) – National Interest Waiver	6 Months*
I – 140 EB3	(E) – Skilled or Professional Worker	23 Months
I – 140 EB3	(G) – Other Worker	22 Months
I – 212	Application to Reapply for Admission	2 Months*
I – 360 EB4	Petition for Religious Worker	5 Months*
I – 360 C	Special Immigrant Juvenile	2 Months*
I – 360 VAWA	Violence Against Women Act Petition	4 Months*
I – 485	Cuban Adjustment Act Application	5 Months*
I – 485	LIFE Act Adjustment Application	6 Months*
I – 485	Section 13 Adjustment Application	4 Months*
I – 526 EB5	Alien Entrepreneur	5 Months*
I – 600	Petition for Orphan	2 Months*
I – 601	Application for Waiver of Inadmissibility	26 Months
I – 612	Application for 212(e) Waiver	2 Months*
I – 687	Legalization Application for Temporary Residence	18 Months
I – 690	Legalization/SAW – Waive Grounds of Excludability	2 Months*
I – 698	Legalization Adjustment Application	2 Months*
I – 700	Special Agricultural Worker	2 Months*
I – 821	Temporary Protected Status	4 Months*
I – 905	Application to Issue Cert for Health Care Workers	2 Months*
I – 914	Application for T Nonimmigrant Status	2 Months*
I – 918	Petition for U Nonimmigrant Status	2 Months*
N – 470	Application to Preserve Residence	4 Months*
N – 565	Replacement Naturalization/Citizenship Doc	4 Months*
N – 600	Certificate of Citizenship	4 Months*
N – 643	Certificate of Citizenship for Adopted Child	2 Months*

* Within current USCIS processing time goal of six months or less

Having a Criminal Record Can Affect Your Immigration Status

If you are not a US Citizen and have a criminal record of any sort, it has become increasingly important to know and understand the immigration consequences on your immigration status.

This article explores how having any contact with the criminal justice system can affect a non-US citizen’s immigration status. A non-US citizen includes non-immigrant visa holders as well as green-card holders.

Firstly, it must be understood that being convicted is defined differently for immigration purposes than under state criminal law.

A person is considered to have been convicted if a court has adjudicated him or her guilty or entered a formal judgment of guilt against him or her. Also, a person is considered convicted for immigration purposes even if the court has withheld adjudication on the basis that (1) the person was found guilty or entered a guilty plea or nolo contendere and (2) the judge ordered some form of restraint or punishment on the person’s liberty.

Secondly, convictions for minor offenses or misdemeanors, or a sentence to only probation, or court supervision, or for that matter very old convictions, can have an impact on your immigration status. The different outcomes vary from:
1. Having your application for lawful permanent residence or naturalization denied;
2. Being placed in deportation proceedings;
3. Being put in detention while removing proceedings are ongoing;
4. Deportation to your home country;
5. Being barred from returning to the United States for certain number of years, or permanently.

Under federal immigration law, crimes of moral turpitude are crimes that shock the public conscious or involve fraud as an element. If a non U.S. citizen is convicted of a crime of moral turpitude s/he may be deported. Crimes of moral turpitude include theft, transporting or receiving stolen goods, embezzlement, fraud, adultery, assault, bigamy, kidnapping, rape, murder, etc, and even charges that may appear seemingly minor such as shop lifting, can trigger deportation proceedings.

Reproduced from e-Sandesh where the article written by our attorney , Hanishi T. Ali, was orignally published: http://iswonline.org/iswSite2/index.php?option=com_content&view=article&id=212:criminal-record-can-affect-immigration-status&catid=95:community-orgs&Itemid=200

Does the U.S. need an exit monitoring system for visitors?

The arrest of Hosam Maher Husein Smadi, the 19-year-old Jordinaian who was accused of plotting to blow up Dallas skyscrapers has drawn attention from both parties of Congress that the U.S does not have an efficient system in place to trace foreign visitors on expired visas and that the US needs a universal electronic exit monitoring system. Mr. Smadi is a most recent example of a visitoir who entered the country legally but overstayed his visa.

It is estimated that about 40 percent of the estimated 11 million illegal immigrants in the United States came on legal visas and overstayed their visas. In FY ‘09, of the 39 million temporary foreign visitors that were admitted in to the US, it is estimated that approximately 200,000 may have overstayed their visas and remained in the US.

Although the Department of Homeland Security officials express concern that the an universal exit control system can be an expensive and daunting option with more than one million crossings a day, it is one of the few ways to assure a systematic follow up that the visitors have departed and not overstayed their visas.

Sen. Charles Schumer, D-N.Y., has indicated he would attempt to apply federal stimulus funding to the building of an exit monitoring system.

New Naturalization Test Now Fully Implemented

Up until Oct. 1, 2009, applicants who had filed for naturalization before Oct. 1, 2008, had a choice of taking the old test or the new test.  Beginning Oct. 1, 2009, however, all citizenship applicants must take the new naturalization test, regardless of when they filed their Application for Naturalization (Form N-400).

Once an applicant has completed and submitted the Form N-400, Application for Naturalization, and an applicant has had  his or her fingerprints taken at a U.S. Citizenship and Immigration Services (USCIS) facility, s/he will receive an appointment for an interview. At the naturalization interview, the applicant will be required to answer questions about his/her application and background. The applicant will also take an English and civics test unless s/he qualify for an exemption or waiver.

Applicants are given two opportunities to take the English and civics tests and to answer all questions relating to their naturalization application in English.  If an applicant fails any portion of the test (English or civics) s/he will be given another opportunity to attempt the failed portion between 60 and 90 days from the date of his/her initial interview.

At present the overall pass rate for the new test is 91 percent. For a naturalization self test study tool click here.

FY 2010 H-1B Update (October 1, 2009)

The U.S. Citizenship and Immigration Services  (USCIS ) in its most recent updated count as of October 1, 2009, stated that as of September 25, 2009, approximately 46,700 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed.

USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

Obtaining Lawful Permanent Residence by Adjustment of Status

As an extension to our article on applying for a green card for your parents or other immediate relatives, this article discusses the ways to obtain lawful permanent residence through a family based petition.

The two alternate ways in a family based petition to obtain lawful permanent resident status are: (i) consular processing which usually takes place in the intending immigrant’s country of residence and (ii) adjustment of status which is processed by the United States Citizenship and Immigration Services (USCIS) in the United States.

Adjustment of status essentially is a provision in the immigration law that allows certain persons to obtain a green-card or a lawful permanent status while being in the United States and without having to go abroad to the consular office in their home country to apply for an immigrant visa.

Adjustment of status applications must be filed when the applicant is in the US and with the USCIS.  Generally, a foreign national applying for a green card as an immediate relative or through a family based preference categories qualifies for an adjustment of status process.  A major advantage for immediate relatives is that an adjustment of status can be filed concurrently with the petition for a green card so that the immediate relative(s) are able to adjust as soon as their green card petitions are approved.

One can apply for an adjustment of status so long as:
• S/he entered the United States legally on a valid visa and were inspected and admitted or paroled.
• Never worked in the United States without valid work authorization. This means never having worked illegally.
• Was in a lawful non-immigrant status at all times when in the United States (there are certain exceptions to this requirement) . This means that the applicant has not overstayed the period of time stamped on his or her I-94.
• Were not a non-immigrant admitted without a visa under the visa waiver program (with certain exceptions).
• Were not admitted on a K visa – unless adjusting based on marriage (must occur within 90 days of entering the United States) to the US citizen spouse who filed the non-immigrant visa petition.
• S/he is not in removal proceedings.

Our office generally recommends adjustment of status where possible as opposed to consular processing since:
• The applicant does not have to return to his/her home country.
• Typically time required for obtaining a green-card is shorter through the adjustment of status route.
• Applicant is eligible to obtain employment authorization.
• Applicant has access to administrative and judicial appeal if his/her application is denied.