H.R. 3012 Bill in the Senate - What Is the Chance?

As the bill moves close to the final phase of legislation in the Senate, the impact of this bill has been placed under the close microscope in two angles: One is an in-depth analysis of the long-term benefit of the bill and the other is the scope of potential negative impact of the bill on other side of the spectrum. Until now, no one had the complete answers to these two questions and debate on these two issues has just begun in the political arena, which is likely to trigger intense struggle between pro and con of the bill in the Senate.

As the depth of impact of this bill has thus far been under the shadow, there is already a sign and debate from the two end of the spectrum, which will lead to the intense pro and con lobbying activities ahead. Thus far, there has been no set schedule for its companion bill in the Senate.

Traditionally, employment-based piecemeal immigration reform has faced two hawks in the Senate. One is labor union-backer legislators and the other is anti-immigration legislators. The labor unions in this country have welcome guest workers in the farm and related industry because they help the union to expand its political power since such workers are unionized work forces but opposed the high tech professional workers that are not unionized work forces. Senator Dick Durbin, the Senate majority whip, and Senator Chuck Grassley have gained a reputation as the American Worker Protectionists.

They have initiated a numerous legislative bills to restrict H-1B and L-1B programs and oppose piece-meal employment based immigration reform. However, when it comes to legalization of undocumented aliens, Sen. Dick Durbin is at forefront to support Comprehensive Immigration Reform, particularly so-called DREAM Act for undocumented youngster, while Sen. Chuck Grassley opposes legalization of undocumented aliens and Comprehensive Immigration Reform. It will be interesting how Rep. Chaffetz of Utah and Sen. Mike Lee of Utah will be able to negotiate with Sen. Grassley to remove the first road block to the Senate consent to the bill, i.e. scheduling of the bill in the Judiciary Committee.

Ranking member in a committee in the Congress is similar to a "co-chair" of the committee representing the minority (party) members of the committee in the House or the Senate. Since the Republican party is a minority group in the Senate, in the Senate committees, there are Republican Ranking Members and when it comes to a bill which is sponsored by the Republican party Senators, the Democrat Chairs of the Committees must work with the Ranking Members to schedule hearings and mark-ups for the bills which are sponsored by the minority party House Representatives in the House and the minority party Senators in the Senate.


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USCIS Transformation Initiative for Online Filings

The U.S. Citizenship and Immigration Services (USCIS) is undertaking a series of technological updates known as the Transformation Initiative. Transformation is essentially an effort by USCIS to move the application process from a paper-based system to an online, electronic system.

The transformation of the USCIS from primarily a paper-based system to an online system will be an enormous shift in its operations. Over the past few years, our firm has already begun to see positive results of the USCIS' improved use of technology. There are bound to be delays and technical difficulties, as is to be expected with such a massive undertaking. If the transformation process operates according to current plans, it will greatly reduce requests for the submission of duplicate information and documentation.

Transformation is intended to provide better service to those seeking immigration benefits. One of the key components of the transformation is the use of an account-based system. Those seeking immigration benefits will be able to create online accounts. According to the USCIS Web Site, applicants will be able to utilize these accounts for such functions as updating personal information, scheduling appointments, requesting benefits and submitting information, and viewing case status and history.

When the system is fully implemented, individuals seeking immigration benefits, such as the employment authorization document (EAD) or a change of status, will be able to apply online through an individual customer account. In addition, when one initially signs up for a customer account, s/he will input biographical information that will auto-populate all subsequent applications filed, removing the need to reenter personal information multiple times. Once implemented, the system will allow online payment by credit card and will provide receipt numbers immediately.

While the USCIS does not have a deadline for the completion of the transformation process, it has set timeline goals. The first phase, which will establish customer accounts for Form I-539, Application to Change or Extend Status filings, has a goal of being in place by the end of fiscal year 2011 (FY11). The project has been contracted to IBM. According to the USCIS response to the CIS Ombudsman's 2010 report to Congress, substantial steps have been taken toward reaching this goal, with the first customer-facing changes scheduled for implementation in the last quarter of FY11. This phase, according to the USCIS, would include the online individual accounts, electronic filings, online biometric scheduling, and the capability for applicants to upload documentary evidence.

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The Immigrant Waiting List By Country

Immigrant visa issuances during fiscal year 2012 are limited by the terms of INA 201 to no more than 226,000 in the family-sponsored preferences and approximately 144,000 in the employment-based preferences. (Visas for "Immediate Relatives" - i.e., spouses, unmarried children under the age of 21 years, and parents - of U.S. citizens are not subject to numerical limitation, however.)

It should by no means be assumed that once an applicant is registered, the case is then continually included in the waiting list totals unless and until a visa is issued. The consular procedures mandate a regular culling of visa cases to remove from the count those unlikely to see further action, so that totals are not unreasonably inflated. If, for example, a consular post receives no response within one year from an applicant to whom the visa application instruction letter (i.e., the consular "Packet 3" letter) is sent when the movement of the visa availability cutoff date indicates a visa may become available within a reasonable time frame, the case is considered "inactive" under the consular procedures and is no longer included in waiting list totals.

The fourteen countries with the highest number of waiting list registrants in FY 2012 are listed below; together these represent 79.5% of the total. This list includes all countries with at least 60,000 persons on the waiting list. The per-country limit in INA 202 sets an annual maximum on the amount of preference visas which may be issued to applicants from any one country; the 2012 per-country limit will be approximately 25,900.

Country Applicants

Mexico 1,374,294
Philippines 503,266
India 343,401
Vietnam 281,439
China-mainland 248,494
Dominican Republic 171,217
Bangladesh 161,769
Pakistan 118,985
Haiti 112,450
Cuba 85,908
El Salvador 83,221
Jamaica 66,016
Korea, South 64,020
Colombia 61,430
All Others 948,489
Worldwide Total 4,624,399

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Reference Letter for Green Card Application

Question:

I am currently working for an NIH Agency under J1 visa, and would like to apply for Green Card under the EB1 and NIW (National Interest Waiver) categories at the same time.

I want to ask my advisor at the agency to write a reference letter for me. Is it true that a NIH employee cannot write reference letter for Green Card application purpose?

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Answer:

The NIH staff members may not write letters of reference/recommendation to or for submission to another federal agency in support of visa or Green Card applications, on behalf of the NIH Agency or on NIH Agency's letterhead. But an employee should be able to his/her own personal letter on plain stationery for an alien's performance and achievement.

Also, the NIH staff members may send the requestor copies of any performance evaluations ("form of evaluation") which was previously prepared describing the person's relative skills, performance, development, etc., or copies of any letters of reference that previously wrote to evaluate his/her suitability for a job at another institution.

Furthermore, an official letter may be written by a high level NIH official (IC Director, Scientific Director, or above) as part of the official agency (e.g. NIH) sponsorship of a candidate for NIH employment, and submitted by the Division of International Services-Office of Research Services (DIS-ORS), NIH, to the DHS-USCIS. DIS-ORS is the only office at NIH authorized to communicate with other agencies on immigration matters.

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Procedure of Form I-140 Petition by Using USCIS' E-Filing

Question:

I want to file my Form I-140 application by USCIS' e-filing. What it the process and how could I do it? Thank you.

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Answer:

The e-filing process for Form I-140 has two steps: First, you need to go to USCIS' e-filing log-in page (https://efiling.uscis.dhs.gov/efile ) and fill out form I-140 online. After you file, you will be provided a checklist of required initial evidence and supporting documentation.

Then, you need to mail all required initial evidence and supporting documentation to the physical address specified in the Form I-140 instructions. USCIS' processing will not begin until the required supporting documentation is received.

You are NOT eligible to e-File Form I-140 if you are applying for a waiver of the filing fee, or you are requesting that your case be expedited (does not include filing for Premium Processing). The fee for e-Filing Form I-140 can be paid online.

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Requirement of "Employer-Employee Relationship"

Question:

My potential employer is an independent contractor, and it may place me at a third-party worksite. Do you think my situation could qualify for the H-1B visa application requirement of "employer-employee relationship"?

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Answer:

The H-1B regulations currently require that a United States employer establish that it has an employer-employee relations with respect to the beneficiary, as indicated by the fact that it may hire, pay, fire, supervise or otherwise control the work of any such employee. USCIS clarifies such relationships, particularly as it pertains to independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party worksites.

In addition to demonstrating that a valid employer-employee relationship will exist between the petitioner and the beneficiary, the petitioner must continue to comply with all of the requirements for an H-1B petition including:

1) establishing that the beneficiary is coming to the United States temporarily to work in a specialty occupation;

2) demonstrating that the beneficiary is qualified to perform services in the specialty occupation; and

3) filing of a Labor Condition Application (LCA) specific to each location where the beneficiary will perform services.

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USCIS Initiatives to Promote Startup Enterprises and Spur Job Creation

Background

On Aug. 2, 2011, Secretary of Homeland Security Janet Napolitano and USCIS Director Alejandro Mayorkas outlined a series of policy, operational, and outreach efforts to fuel the nation’s economy and stimulate investment. These initiatives will allow our nation to realize the potential of current immigration laws to attract the best and brightest from around the world to invest their talents, skills, and ideas to grow the U.S. economy and create American jobs.

Introduction

The following actions mark the six-month anniversary of Startup America, a White House-led initiative to reduce barriers and accelerate growth for America’s job-creating entrepreneurs. These measures have been one key focus of the President's Council on Jobs and Competitiveness, which has recommended taking action to help ensure that America can out-innovate and out-compete the world in a global economy.

Availability of EB-2 National Interest Waivers to Entrepreneurs

Entrepreneurs may obtain an employment-based second preference (EB-2) immigrant visa if they satisfy the existing requirements, and also may qualify for a National Interest Waiver under the EB-2 immigrant visa category if they can demonstrate that their business endeavors will be in the interest of the United States. USCIS has issued Frequently Asked Questions to clarify this issue. USCIS will also conduct internal training on the unique characteristics of entrepreneurial enterprises and startup companies and incorporate input from the upcoming stakeholder engagements detailed below.

The EB-2 visa classification includes foreign workers with advanced degrees and individuals of exceptional ability in the arts, sciences, or business. Generally, an EB-2 visa petition requires a job offer and a Department of Labor certification. These requirements can be waived under existing law if the petitioner demonstrates that approval of the EB-2 visa petition would be in the national interest of the United States.

Availability of H-1B Visas to Entrepreneurs

Entrepreneurs with an ownership stake in their own companies, including sole employees, may be able to establish the necessary employer-employee relationship to obtain an H1-B visa, if they can demonstrate that the company has the independent right to control their employment. USCIS has updated existing FAQs to clarify this issue.

New Procedures for Processing EB-5 Petitions

USCIS is enhancing the EB-5 immigrant investor program by transforming the intake and review process. In May, USCIS proposed fundamental enhancements to streamline the EB-5 process which include: extending the availability of premium processing for certain EB-5 applications and petitions; implementing direct lines of communication between the applicants and USCIS; and providing applicants with the opportunity for an interview before a USCIS panel of experts to resolve outstanding issues in an application. After reviewing stakeholder feedback on the proposal, USCIS will begin implementing the first of these enhancements within 30 days.

Premium Processing Service Available to Additional Employment-Based Visa Categories

USCIS will also expand its Premium Processing Service to immigrant petitions for multinational executives and managers (often referred to as “E13”). The Premium Processing Service allows employers to expedite processing of their petitions, absent evidentiary deficiencies, fraud or national security concerns. With this addition, nearly all employment-based petitions and applications will have the option of Premium Processing.

New Engagement Opportunities for Entrepreneurs and Startup Companies

USCIS is committed to open and transparent communication with stakeholders. The Office of Public Engagement will host a series of meetings to discuss issues of importance to foreign entrepreneurs and start-up companies. These engagements will provide USCIS with valuable stakeholder feedback on how entrepreneurs and start-up companies can be eligible for employment-based visa categories. USCIS will host the first of these engagements on Aug. 11, 2011.

USCIS is also launching Conversations with the Director, a new series of small group meetings with Director Mayorkas to discuss immigration issues important to communities around the country. The first meeting will take place the week of Aug. 15, 2011, and will focus on economic development and the EB-5 investor program.
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