Texas Immigration Lawyer & Attorney : Kraft & Associates Law Firm : Visas, Green Card, Citizenship, Deportation : Dallas, Texas

The Washington Post published a good editorial yesterday lamenting the nation's H-1B visa crisis, and proposed an interesting solution. Here are excerpts:

April's just around the corner, and that means it's H-1B preparation time once again. H-1Bs, which are visas for skilled foreign workers, are capped at 65,000, with another 20,000 given to foreign alumni of U.S. postgraduate programs. Last year, the cap was reached within hours on the first day that the U.S. Bureau of Citizenship and Immigration Services began accepting applications. Because a bachelor's degree is required for these applications, most foreign graduates from the class of 2007 were among the tens of thousands who were shut out of the process. If nothing changes, America will miss out on another crop of talent this year.

H-1B visas are reserved for the world's best and brightest, and barring their entry is economic self-sabotage. The cap keeps out doctors, engineers and other specialists -- people who save lives and often create jobs for others in America. One need only look at the national origins of founders of companies such as Google and Sun Microsystems to realize that foreign talent has helped keep the U.S. economy on the cutting edge. These are talents the United States has been struggling to grow at home, given that more than a third of all science and engineering doctorates awarded in the United States go to foreign students (for whom the number of visas is not capped), according to the National Science Foundation.

The H-1B visa cap was set well before the tech boom and so does not reflect current needs. It was raised temporarily in 1999, but that increase was allowed to lapse a few years later. Since last year's debacle, there have been congressional attempts to increase the cap, but these have been held up by the political sensitivities surrounding immigration reform, and in particular reforms aimed at illegal and unskilled workers. Because lawmakers lack the political will to keep the world's talent in America, companies are following it overseas, setting up shop in Canada, India, Eastern Europe and other areas where the skills they need are plentiful. As a result, investment and jobs are being shipped abroad.

One solution that may be less politically inflammatory would be to recapture H-1B visas that Congress has already approved but that went unused during the post-Sept. 11 economic downturn. About 300,000 surplus visas could be doled out over the next several years to provide a short-term fix to the current shortage and could perhaps include an additional fee -- which employers would pay -- to create more revenue. A long-term solution is still necessary. Allowing the cap to stay so low effectively exiles not only the world's best and brightest but also the U.S. companies that employ them.

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The Wall Street Journal published an interesting editorial a few days ago about the need for increasing the number of H-1B visas allowable each year. Here are excerpts:

Bill Gates appeared before Congress again last week to make a simple point to simpler pols: The ridiculously low annual cap on H-1B visas for foreign professionals is undermining the ability of U.S. companies to compete in a global marketplace.

"Congress's failure to pass high-skill immigration reform has exacerbated an already grave situation," said the Microsoft chairman. "The current base cap of 65,000 H-1B visas is arbitrarily set and bears no relation to the U.S. economy's demand for skilled workers."

The Labor Department projects that by 2014 there will be more than two million job openings in science, technology, engineering and math fields. But the number of Americans graduating with degrees in those disciplines is falling. Meanwhile, visa quotas make it increasingly difficult for U.S. companies to hire foreign-born graduates of our own universities. Last year, as in prior years, the supply of H-1B visas was exhausted on the first day petitions could be filed.

Mr. Gates said his software company exemplifies this phenomenon. "Microsoft has found that for every H-1B hire we make, we add on average four additional employees to support them in various capacities," he told lawmakers. "If we increase the number of H-1B visas that are available to U.S. companies, employment of U.S. nationals would likely grow as well."

The preponderance of evidence continues to show that businesses are having difficulty filling skilled positions in the U.S. By blocking their access to foreign talent, Congress isn't protecting U.S. jobs but is providing incentives to outsource. If lawmakers can't bring themselves to eliminate the H-1B visa cap, they might at least raise it to a level that doesn't handicap U.S. companies.

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An employment-based category is available for an individual who has already invested or plans to invest in a new commercial enterprise employing at least 10 full-time workers. This category allows such an investor to obtain permanent residency within a year.

In order to qualify as an investor, the foreign national must meet certain requirements as provided in the regulations.

First, the investor must invest or be actively in the process of investing at least $1,000,000 in the enterprise. The enterprise may be in the form of creating an original business, or purchasing an existing business and simultaneously or subsequently restructuring or reorganizing the business such that a new commercial enterprise results, or expanding an existing business by 140 percent of the pre-investment number of jobs or net worth, or retaining all existing jobs in a troubled business that has lost 20 percent of its net worth over the past 12 to 24 months. Instead of investing $1,000,000, the investor may opt to invest at least $500,000 where the investment is being made in a "targeted employment area," which is an area that has experienced unemployment of at least 150 per cent of the national average rate, or a rural area as designated by the Office of Management and Budget.

The source of funds must be obtained through lawful means, and the capital may be in the form of cash, equipment, inventory, certificates of deposit, treasury bonds, or other instruments that can be converted readily into cash. Since the rationale behind this category is to benefit the economy of the United States, the new commercial enterprise must create full-time employment for not fewer than 10 qualified individuals, or maintain the number of existing employees at no less than the pre-investment level for a period of at least two years, where the capital investment is being made in a "troubled business," which is a business that has been in existence for at least two years and that has lost 20 percent of its net worth over the past 12 to 24 months. The investor must be active in the new commercial enterprise, and this requirement could be accomplished by participating in the day-to-day managerial control.

Once the above documentation is gathered, the foreign investor must file, on his or her own behalf, an Immigrant Petition by Alien Entrepreneur on Form I-526, with the Immigration Service. Once the petition is approved, the foreign national will go to the U.S. consulate in his or her country of residence, and will file an application for an immigrant visa. The foreign national will thereafter receive conditional residency. Conditional residency is the same as permanent residency, but it is used to deter visa fraud. The difference between conditional and permanent residency is that after a year and nine months, the investor has to file another petition to remove entrepreneur conditions on Form I-829. The petition is accompanied with supporting documentation of the aforementioned documents. Once the conditions are removed, the investor will become a permanent resident. After five years of being a permanent resident, the foreign national can apply for U.S. citizenship.

Please call us at 214-999-9999 for more information on how to obtain permanent residency for Investors.

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The Dallas Morning News today has a very interesting story about Oklahoma's tough anti-illegal-immigrant laws, and how those laws may provide templates for other states to follow. The article also notes several downsides of the tough laws, and emphasizes that while such laws might work in Oklahoma, a state with an estimated 7% Hispanic population, the situation would be much different in Texas, with an estimated 36% Hispanic population. Here are excerpts:

Welcome to the nation's laboratory for a crackdown on illegal immigration. Last year, Oklahoma's Legislature passed, by huge margins, the nation's toughest law on illegal immigrants, making it a felony to harbor, transport, shelter or conceal undocumented immigrants.

This summer, the same law also will allow U.S. citizens to sue employers if they think they were fired in favor of illegal workers. Employers in the state say they already see the results: "A total lack of workers," said Doug Forrest, a Tulsa site-preparation contractor and golf course builder. "This is potentially sending our state into a recession."

Proponents of the law don't see such economic harm.

Meanwhile, some Texas lawmakers are already promising bills that mirror Oklahoma's House Bill 1804.

State Rep. Leo Berman, R-Tyler, said the Oklahoma measure has proved that even as Congress deadlocks on immigration, a state can protect itself against what he calls threats to public health and safety posed by a porous border.

"You don't have to round up 20 million illegal aliens," Mr. Berman said. "Stop the two free benefits you're giving them - free health care and a free education - and they'll go back across the Rio Grande."

In December, Oklahoma Treasurer Scott Meacham said "some short-run pain" to that state's economy might occur, if reports of temporary labor shortages in construction, agriculture and oilfield services industries proved severe and long-lasting.

The U.S. Chamber of Commerce and several Oklahoma business groups recently sued to overturn the law, saying it improperly steps on federal government turf.

Only one group has tried to track the law's effects on population. The Greater Tulsa Hispanic Chamber of Commerce, after checking with schools, churches, and bus lines with service to Mexico, estimated that between 15,000 and 25,000 illegal immigrants have left Tulsa County since the law was passed.

Several Christian denominations have said they'll continue to urge parishioners to aid strangers, even though the law threatens those who transport or shelter "aliens" with at least one year in prison and/or at least a $1,000 fine.

In November, messengers to the annual meeting of the Baptist General Convention of Oklahoma passed a resolution saying the law "will not change their ministry to any people," according to the Southern Baptist group's Web site.

Last year, the Oklahoma Legislature passed a law that:

•Restricts illegal immigrants' access to driver's licenses and ID cards.

•Cuts off several forms of public assistance for illegal immigrants. Emergency medical care, disaster aid and certain immunizations are exempted.

•Makes it harder for illegal immigrants to pay in-state college tuition.

•Encourages state and local law enforcement to enforce federal immigration law.

•Makes it a felony to harbor, transport, conceal or shelter illegal immigrants.

•Requires state and local governments to use a federal database that allows them to check potential employees' work eligibility.

•Starting this summer, private employers and government contractors will have to verify employment eligibility of all new hires. Employers who don't could be sued.

This year, Oklahoma lawmakers are considering bills that would:

•Designate English as the state's official language.

•Let law enforcement seize the property of those who transport, hire or rent to illegal immigrants.

•Make public schools report how many illegal-immigrant children are enrolled.

•Repeal last year's law.

•Repeal all of last year's law, except for its ban on most public benefits.

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The O visa is a temporary visa designed for foreign nationals with extraordinary ability in the sciences, arts, education, business, athletics, or motion picture or television production, which has been demonstrated by sustained national and international achievements. The O visa allows these individuals to come to the United States to work for a U.S. employer in their areas of expertise.

To qualify for an O visa in "science, education, business or athletics," the foreign national must be one of the small percentage who have risen to the top of his or her field. Documentation may include three of the following:

• receipts of national or international awards in their field such as the Nobel Prize or other distinguished award;
• membership in organizations that require outstanding achievement;
• published materials about the foreign national;
• original scientific work of major significance in foreign national's field;
• evidence that the foreign national has been employed in a critical or essential capacity at an organization that has a distinguished reputation;
• evidence that the foreign national has commanded or will command a high salary
• letters of recommendation from experts in the field.

The U.S. employer will file a petition with the Citizenship & Immigration Services along with evidence illustrating the foreign national's extraordinary ability. Once the petition is approved, the foreign national may obtain the O visa at the U.S. consulate or embassy in their country of residence. Spouses and unmarried minor children may accompany the O visa holder but are unable to work in the United States. Since the O visa is temporary, it is issued initially for three years and may be extended in one year increments. The O visa allows the individual to apply for permanent residency.

If you meet the extraordinary ability requirements outlined above, please contact us at 214-999-9999.

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The March 2008 Visa Bulletin is available at the State Department, but still shows no availability of visas for employment-based second-preference for citizens of India. 

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The Citizenship and Immigration Services has come up with a means of expediting certain green card applications. While it makes good sense to me, many people are objecting to the new procedure based on national security concerns. In a nutshell, CIS is proposing to approve applications if they have been pending more than six months and are awaiting only the FBI background check. The reason for the change is that some FBI checks are taking literally years to complete. Here are excerpts from an article about this in the New York Times:

Searching for ways to reduce a huge backlog of visa applications, immigration authorities have eased requirements for background checks by the F.B.I. of immigrants seeking to become permanent United States residents, federal officials said Monday.

If an immigrant's application for a residence visa has been in the system for more than six months and the only missing piece is a name check by the F.B.I., immigration officers will now be allowed to approve the application, according to a memorandum posted Monday on the Web site of the federal Citizenship and Immigration Services agency.

The memorandum states that "in the unlikely event" that the F.B.I. name check turns up negative information about an immigrant after a residence visa has been granted, the authorities can cancel the visa and begin deportation proceedings.

Under the new policy, which was first reported by the McClatchy news service, immigrants applying for the permanent visas, which are known as green cards, will still be required to complete two other security checks: an F.B.I. criminal fingerprint check and a search in a federal criminal and anti-terrorist database known as Interagency Border Inspection Services.

The policy is intended to speed processing for tens of thousands of immigrants with no criminal records who are living in the United States and have been waiting for years for green cards because their names turned up matches in the F.B.I's records. Often an immigrant's name hits a match, immigration lawyers said, because the F.B.I. files include a vast range of names, including those of people mentioned in criminal investigations, even if they had no role in a crime. F.B.I. agents must investigate each name match by manual searches of voluminous records.

Some critics said the agency would be cutting security corners and bending federal law.

"They are knowingly granting a benefit to a person who may be a national security threat or a serious criminal," said Rosemary Jenks, director of government relations for NumbersUSA, an organization that favors reduced immigration.

"These are people who are asking permission to stay in this country permanently," Ms. Jenks said, "and we have a right to make sure we know who they are. If it takes a few extra months, so be it."

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The Immigration and Nationality Act of 1952, as amended (INA), stipulates that physicians who have entered the United States to undertake a J-1 graduate medical training or education program are uniformly subject to the obligation to return to their home country or country of last residence for a period of two years. INA §212(e). J-1 visa holders are eligible for waiver of the two-year home residence requirement based upon exceptional hardship to a U.S. citizen or permanent resident spouse or child. INA §212(e). There are three other bases for filing a waiver to the two-year foreign residency requirement, but this discussion will be on the exceptional hardship waiver.

In determining a hardship waiver, exceptional hardship must be shown with respect to the U.S. citizen spouse or child in the event they remain in the United States and the foreign spouse returns to the home country. The applicant must also show hardship if the spouse or child accompany the foreign national abroad for two years.

Factors considered to form the basis of exceptional hardship include where the U.S. citizen spouse would be required to interrupt a professional career, suffer unemployment and separation of family.The country conditions to which the exchange visitor and the U.S. citizen or resident spouse would return must also be considered, particularly where they are shown to impact psychological and physical health. Other factors are considered to form the basis of a finding of exceptional hardship as well.

For example, where it is shown that the citizen spouse would suffer adverse consequences to their medical studies by the departure of their J-1 spouse, and that their career would be set back if he or she were either to interrupt their education or attempt to continue their studies in the spouse's country. Similarly, the threat of disruption of the education of an exchange visitor's spouse would constitute sufficient hardship to justify granting the waiver. In evaluating a claim of exceptional hardship, evidence of the disruption of the career or of the education of the U.S. citizen or resident spouse will be considered, along with other relevant factors mentioned above.

To learn more about waivers to the two-year foreign residency requirement, please call us at 214-999-9999.

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Foreign nationals who do not have a valid immigrant visa and wish to travel multiple times outside the United States will need permission to re-enter the United States. An individual who filed an adjustment of status (AOS) application will need a travel document (advance parole) to re-enter the United States. If the AOS application is pending, the foreign national should submit form I-131 Travel Document Application prior to departure. Otherwise, if the foreign national leaves the United States while the AOS application is pending, the application will be deemed abandoned and the AOS application will eventually be denied.

Be aware travelers, in order to avoid the termination of a pending AOS application, it is imperative to apply for Advance Parole prior to leaving the United States. An advance parole is approved within 90 days and is valid for multiple trips throughout one year. Of course, once the foreign national receives his or her green card, an advance parole is no longer needed.

Please note there are certain foreign nationals who may not apply for advance parole. An advance parole document is not available for individuals in the United States illegally, under removal proceedings, or who are exchange foreign nationals subject to the residency requirement.

Please contact us to learn more about Advance Parole and the information needed to apply for an Advance Parole.

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The Dallas Morning News reports today that tougher anti-immigrant laws in nearby states are encouraging immigrants (legal and illegal) to move to Texas. Depending on your point of view, this is either bad for Texas taxpayers or good for Texas businesses. We're getting a lot of new labor into the Texas market, but for those who believe immigrants are a drain on state-provided services, it's not a positive development. I'm not one of those people, so I welcome the new residents. Here are excerpts:

Illegal immigrants are coming into Texas, but not from where most people think.

The rush is coming from Oklahoma, Arizona and other states, places that have recently passed tough new anti-illegal immigrant laws.

The Oklahoma statute, which took effect in November, makes it a crime to transport, harbor or hire illegal immigrants. Effective Jan. 1, the Arizona law suspends the business license of employers who knowingly hire illegal immigrants. On a second offense, the license is revoked.

In Tulsa, Okla., the Hispanic Chamber of Commerce has estimated that 15,000 to 25,000 illegal immigrants have left the area. One builder estimated that 30 percent of the Hispanic workforce left Tulsa.

"There's been a tremendous impact in Oklahoma City," said David Castillo, the executive director of the Greater Oklahoma City Hispanic Chamber of Commerce. "We've had several companies close shop and leave the state. Banks have called us and say they're closing 30 accounts per week."

Enrique Hubbard, Mexico's consul general in Dallas, said a dozen Mexican families from Oklahoma have applied for consular documents listing their new homes in the Dallas area. He expects more to arrive because jobs are available in North Texas.

Texas' reputation as a welcoming destination has experts predicting more immigrants will come to Houston and other cities in the state. Texas has not passed any statewide law targeting the employment of undocumented workers.

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U.S. companies wanting to bring foreign nationals into the United States to perform agricultural labor or services of a temporary or seasonal nature may do so by demonstrating that no U.S. worker is willing, able, qualified, and readily available to perform such service or labor. Under the H-2A program, a U.S. employer must conduct serious recruitment, such as placing a job opening with the State Workforce Agency, and advertising in a newspaper of general circulation in the area of employment. After the recruitment period establishes that there are no U.S. workers capable of performing such agricultural service, and that the employment of the foreign nationals will not adversely affect the wages and working conditions of similarly employed U.S. workers, the employer will file a labor certification with the Department of Labor (DOL).

Once the DOL grants the labor certification, a petition for the foreign national to perform the agricultural labor/services of a temporary or seasonal nature is filed with the U.S. Citizenship and Immigration Services. An approved petition is then forwarded to the U.S. Consulate where the worker applied for the visa.

An H-2A visa is granted for up to a year and may be extended once for two years, for a maximum of three years. If you need more information regarding H-2A visas, please contact us at 214-999-9999.

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A U.S employer (typically a university or hospital) that desires to employ a professor or researcher who is "outstanding" in an academic field may file an employment-based petition. To qualify as a "priority worker - outstanding professor or researcher," an individual must meet each of the following evidentiary requirements set out in 8 CFR §204.5(i)(3) and 8 CFR §204.5(g).

A.   Evidence that the individual is recognized internationally
       as outstanding in the academic field;

B.   Evidence that the alien has at least three years of experience in teaching
       and/or research in the academic field;

C.  Provide an offer of employment from a prospective U.S. employer;

D.  Evidence that the U.S. employer is able to pay the proffered wages to the
individual.

Under 8 CFR §204.5(i)(3)(i), evidence that the individual is recognized internationally as outstanding in the academic field shall consist of at least two of the following:

• receipt of major, international prizes, awards, and recognition for the individual's scholarly achievement;
• memberships in associations which require outstanding achievements;
• published material in professional publications written by others about the individual's work in the academic field;
• evidence of participation as the judge of the work of others in the same or an allied academic field;
• evidence of original or scientific or scholarly research contributions to the academic field which have received worldwide recognition in the field ; or
• evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field.

If a foreign national satisfies these requirements as set forth in the regulations, and upon approval of the petition, the foreign national will be able to adjust their status to a lawful permanent resident.  Please do not hesitate to call us at 214-999-9999 and learn more about the outstanding researcher process.

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This information is excerpted from the U.S. government's Social Security Administration Web site, and explains to non-citizens how they can legally obtain Social Security numbers. For more detailed information visit the SSA Web site.

How do I apply for a Social Security number and card?
In general, only noncitizens who have permission to work from the Department of Homeland Security (DHS) can apply for a Social Security number. To apply for a Social Security number:

Complete an Application For A Social Security Card (Form SS-5); and show us original documents proving your: Immigration status; Work eligibility; Age; and Identity. Then, take your completed application and original documents to your local Social Security office.

Immigration status
To prove your U.S. immigration status, you must show us the current U.S. immigration document, I-94, Arrival/Departure Record, issued to you when you arrived in the United States. If you are an F-1 or M-1 student, you also must show us your I-20, Certificate of Eligibility for Nonimmigrant Student Status. If you are a J-1 or J-2 exchange visitor, you must show us your DS-2019, Certificate of Eligibility for Exchange Visitor Status.

Work eligibility
For most foreign workers, we only need to see your I-94, Arrival/Departure Record. Some foreign workers also must show their work permits from DHS (I-766 or I-688B). International students must present further documentation. For more information, see International Students And Social Security Numbers (Publication No. 05-10181).

What can you do if you need a number for tax purposes?
If you need a number for tax purposes and you are not authorized to work in the U.S., you can apply for an Individual Taxpayer Identification Number from the Internal Revenue Service (IRS). Visit IRS in person or call the IRS toll-free number, 1-800-TAXFORM (1-800-829-3676), and request Form W-7, Application For An Individual Taxpayer Identification Number.

Do you need a number for other government services?
Lawfully admitted noncitizens can get many benefits and services without having a Social Security number. You do not need a number to purchase savings bonds, conduct business with a bank, register for school or apply for educational tests, obtain private health insurance, apply for school lunch programs or apply for subsidized housing.

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From the February 2008 Visa Bulletin comes this sad and disappointing notice:

INDIA EMPLOYMENT SECOND PREFERENCE HAS BECOME "UNAVAILABLE"
   
Despite two retrogressions of the India Employment Second preference cut-off date, demand for numbers by CIS Offices for adjustment of status cases has remained extremely high in recent months.  As a result the annual limit for the India Employment Second preference category has been reached, and the category has become "unavailable" effective immediately.

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H-1B visas are work visas that allow foreign nationals to temporarily work in the United States for a U.S. employer.  A U.S. employer may petition a foreign national under the H-1B classification that specifically applies to individuals in a "specialty occupation." A specialty occupation has three requirements. First, an individual must have a bachelor's degree or higher degree or its equivalent for the particular position. Second, the degree is common in the industry among similar organizations. Third, the employer normally requires a degree or equivalent; or the nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with attainment of the degree. 

Individuals with H-1B visas are allowed to work in the United States for up to six years, but visas are granted in three year increments. In some cases, the H-1B visas may be extended for more than six years. If the individual is in the United States, a change of status to an H-1B is filed in the United States. If the individual is outside the United States, upon approval of the petition, the individual must apply for an H-1B visa at the U.S. consulate. There are only 65,000 H-1B visas issued per year. The fiscal year for 2008 reached its cap on the very first day cases were accepted for filing (April 1, 2007).

The beginning of the fiscal year for 2009 is October 1, 2008.  Employers may begin filing their petitions six months prior to the start date of employment but the individuals can not start their job until October 1.   

It is vital for those individuals wishing to work in the United States to begin preparing their H-1B paperwork before the cap is reached. Please call us at 214-999-9999 if you would like more information on beginning the H-1B process.

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Unfortunately for those employers who can't find U.S. citizen workers for non-agricultural temporary employment, the government has announced that the quota has already been reached for H-2B workers for the second half of fiscal year 2008. This means that no one else will be allowed to apply for jobs in the United States if the starting date of employment is before October 1, 2008.

This is further evidence that the artificial caps for H-1B and H-2B visas are long overdue for increases. The caps haven't changed in many years, despite the growth in the U.S. economy. Any employers hoping for worker visas for jobs beginning after October 1, 2008, better get ready to start the process.

Here is the announcement from USCIS:

--U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of petitions to reach the congressionally mandated H-2B cap for the second half of Fiscal Year 2008 (FY2008). USCIS is hereby notifying the public that January 2, 2008 is the "final receipt date" for new H-2B worker petitions requesting employment start dates prior to October 1, 2008. The "final receipt date" is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 33,000 H-2B workers for the second half of FY2008.

The cap was reached with existing totals for that day. USCIS will reject petitions for new H-2B workers seeking employment start dates prior to October 1, 2008 that arrive after January 2, 2008. USCIS will apply a computer-generated random selection process to all petitions which are subject to the cap and were received on January 2, 2008. USCIS will use this process to select the number of petitions needed to meet the cap. USCIS will reject, and return the fee, for all cap-subject petitions not randomly selected. Petitions for workers who are currently in H-2B status do not count towards the congressionally mandated bi-annual H-2B cap. USCIS will continue to process petitions filed to:

1. Extend the stay of a current H-2B worker in the United States;
2. Change the terms of employment for current H-2B workers and extend their stay; or
3. Allow current H-2B workers to change or add employers and extend their stay.

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The New York Times is reporting that the Bush administration is backing down from the announced policy of punishing employers who hire illegal immigrants. The proposed rule was to enforce so-called "no match" letters from the Social Security Administration by prosecuting employers who did not fire employees whose Social Security numbers did not match the database of the Social Security Administration. Here are excerpts from the New York Times article:

Instead, the administration plans to revise the rule to try to meet concerns raised by a federal judge and issue it again by late March, hoping to pass court scrutiny on the second try. The rule would have forced employers to fire workers within 90 days if their Social Security information could not be verified.

The government's proposal was a response to an indefinite delay to the rule ordered Oct. 10 by the judge, Charles R. Breyer of Federal District Court in San Francisco. Judge Breyer found that the government had failed to follow proper procedures in issuing the rule and that it should have completed a survey of its impact on small business.

He also found that the Social Security database the government would use to verify workers' status was full of errors, so the rule could lead to the dismissal of many thousands of workers who were American citizens or legal immigrants.

In a four-page motion filed Friday, the government, without acknowledging any flaws in the original rule, asked Judge Breyer to suspend the case so the Department of Homeland Security could rewrite the rule and conduct the small-business survey, which it expects to do by March 24. The government said that it wanted to "prevent the waste of judicial resources" and that it was confident the amended rule would "fully address the court's concerns."

The rule laid out procedures for employers to follow after receiving a notice from the Social Security Administration, known as a no-match letter, advising that an employee's identity information did not match the agency's records.

The employer would have had to fire an employee who could not provide verifiable information within 90 days, or face the risk of prosecution for knowingly hiring illegal immigrants. Those immigrants often present fake Social Security numbers when applying for jobs.

Judge Breyer also stopped Social Security from sending out about 141,000 no-match letters, covering more than eight million workers, which contained instructions from Homeland Security about the rule. Social Security sends the letters to clarify workers' information so it can correctly credit taxes deducted from their wages.

Some businesses welcomed the rule because it clarified what they had to do to avoid immigration raids. But the labor unions cited a report from the inspector general of the Social Security Administration finding that 12.7 million of the records of United States citizens in the agency's database contained errors that could lead to them being fired.

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Yesterday, USCIS issued a reminder to employers about the new I-9 form, which must be used beginning December 26, 2007. Here is the text of the reminder:

USCIS Reminds Employers to Transition to New

Employment Eligibility Verification Form by Dec. 26, 2007

WASHINGTON

--U.S. Citizenship and Immigration Services (USCIS) will announce in a Federal Register

(Rev. 06/05/07)N printed on the lower right corner of the form) which is now the only version valid for use. In that Nov. 7 announcement, USCIS explained that employers would have 30 days, beginning on the date the Federal Register notice is published, to transition to the revised form. Accordingly, effective Dec. 26, 2007, employers who fail to use the revised form will be subject to applicable penalties.

On Nov. 7, USCIS announced the availability of the revised version of Form I-9 (includes the revision date --

Both the revised form and the "Handbook for Employers, Instructions for Completing the Form I-9" are available online at www.uscis.gov. To order forms, call USCIS toll-free at (800) 870-3676. For forms and information on immigration laws, regulations, and procedures, call the National Customer Service Center at 1-800-375-5283.

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For the first time in 16 years, the Federal Government has made major changes to the mandatory I-9 Immigration Form. All new employees must fill out these forms. The Department of Homeland Security has announced that the new I-9 form to verify new hire eligibility requirements will include changes that better reflect current employment eligibility verification requirements. Actually, on the revised form, the government has eliminated several documents from List A of the List of Acceptable Documents. These documents eliminated are the Certificate of U.S. Citizenship (Form N-560 or N-570), Certificate of Naturalization (Form N-550 or N-570), Alien Registration Receipt Card (Form I-151), the unexpired Reentry Permit (Form I-327), and the unexpired Refugee Travel Document (Form I-571).

USCIS has made available a 47 page I-9 handbook for employers. The handbook informs employers about the reasons for the I-9 form and gives instructions for proper completion of the form.

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The Dallas Morning News had an interesting article yesterday about the tech industry lobbying to raise the cap on H-1B visas. Here are a few excerpts:

High-tech workers here on federal permits are speaking out - many for the first time - over rules that leave them for years in personal and professional limbo.

After Congress failed to reform immigration laws for the second year in a row, hundreds of the largely India- and China-born workers protested this summer in Silicon Valley and Washington, D.C. They were frustrated that the divisive debate over illegal immigration had overwhelmed efforts at comprehensive immigration reform.

Legal immigrants who feel squeezed by limits on the number of green cards issued each year are trying to separate their complaints from the protests by illegal immigrants. And high-tech companies that say they can't fill jobs because of a cap on skilled-worker visas have stepped up their long-standing plea for the cap to be raised.

The green card application system is akin to "indentured servitude," said Kim Berry, president of the Programmers' Guild, a group that opposes current work visa laws. "It takes years for the green card sponsorship to happen, and they can't leave, can't ask for a raise unless they want to lose their place in line."

Applications for work-related green cards - limited to 140,000 each year, about 9,800 per sending country - are backlogged so deep that many immigrants must plod along for years, uncertain about their future in the United States and unable to change jobs while they wait for permanent residence.

And immigration officials resorted to a lottery for H1-B work visas this summer when businesses filed - on just the first day the government was accepting applications - double the number that could be considered the whole year. Three years ago, it took 10 months for businesses to fill the annual quota.

More than 1 million foreign nationals were in line for permanent residency in 2006. More than 500,000 came into the U.S. on H1-Bs, and the rest through family connections.

Microsoft Corp. was the third-largest sponsor of H1-B visas in the last federal fiscal year. But it still didn't get all the foreign workers it wanted into the country. The company's government affairs director said this was one motivation for Microsoft to open a new software development center in Canada.

"We currently do 85 percent of our development work in the U.S., and we'd like to continue doing that," said Jack Krumholtz. "But if we can't hire the developers we need ... we're going to have to look to other options to get the work done."

About 8 percent of Mountain View-based Google Inc.'s employees currently work under H1-B visas. This year, the company posted 70 new foreign hires overseas when they couldn't get visas. They'll try again next year.

Smaller companies, which may need only one foreign worker, argue they suffer most under the visa cap because they don't have the flexibility of the giants in the field.

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The New York Times is reporting today that federal judge Charles R. Breyer has extended for ten more days the tempovary delay in implementing the government's no-match Social Security letter plans. Here are excerpts from the story:

The ban further delayed the start of a rule, which establishes steps an employer must follow after receiving a notice from the Social Security Administration, known as a no-match letter, reporting that an employee's identity information does not match the agency's records. According to the rule, originally scheduled to take effect Sept. 14, if the employee cannot clarify the mismatch within 90 days, the employer would be required to fire the worker or risk prosecution for knowingly hiring illegal immigrants. Those immigrants often provide false Social Security numbers when applying for jobs.

"It is clear to me at this point there would be irreparable harm to the plaintiffs," Judge Breyer commented at the end of the hearing, rejecting the government's main argument. "It just seems to me looking at it that this is a potentially enormous burden on the employer," the judge said, adding that he would issue a ruling within 10 days.

The suit was brought by the American Civil Liberties Union, the A.F.L.-C.I.O. and several San Francisco labor organizations. They were joined by the United States Chamber of Commerce and several national small business associations.

In court documents, the business groups argued that the impact of the rule in terms of hiring and training office workers to comply with the new procedures and deadlines, and firing employees whose discrepancies were not resolved in time, would be "substantial, immediate and irreparable."

The labor organizations said that Social Security's records contained many errors that could lead to legal workers, including American citizens, being unjustly fired under the new rule.

The government countered that the rule did not represent any departure from current immigration laws or impose any new burdens on employers, but was designed to help employers by clarifying past confusion about what they had to do to comply with the law.

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At Kraft & Associates, we recently had an inquiry from a soldier who had just returned from Iraq. He had promised his Iraqi translator that he would try to help the translator gain entry into the United States.

We had to tell this good-hearted military man that the United States has been embarrassingly slow to admit any Iraqi citizens into our country, including those who risked their lives by helping our military. This year alone, Switzerland has accepted thousands of Iraqi refugees, while the United States has accepted only a few hundred, almost all of those in the past two months.

However, there may be something that can be done for these people. Depending on the exact situations and the eligibilities, they may be able to enter the U.S. as Special Immigrants. Translators for the U.S. Armed Forces may be eligible to enter the United States, and are protected under the National Defense Authorization Act.  To benefit from this act they must demonstrate the following:

• National of Iraq or Afghanistan;
• worked directly with U.S. Armed Forces as a translator for a period of at least 12 months;
• obtained a favorable written recommendation from a general or flag officer in the chain of command;
• cleared a background check and screening as determined by the general or flag officer before filing the petition; and
• they are otherwise admissible except for 212(a)(4) (public charge)

They must file their petitions on form I-360.  The biggest hurdle to overcome is that there are only 50 visas available per year. Spouse and children may accompany or follow to join if the principal applicant is approved.

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The Associated Press is reporting tonight that a federal judge in San Francisco has put a temporary hold on the "no match" letters scheduled to be sent out by the Social Security Administration next week.

The ruling came in a lawsuit by the AFL-CIO, and another hearing on the issue is set for October 1, 2007. The U.S. District Judge making the ruling was Maxine Chesney.

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A columnist for the newspaper where I worked my way through college and law school has an interesting article today about the most recent immigration changes -- the "no match" letters.

Rowland Nethaway says this continuing crackdown on illegal workers is going to damage the nation's economy. Here are excerpts from his column:

WACO, Texas -- If authorities continue to crack down on illegal workers, the full Congress will learn the need for comprehensive immigration reform.

The raids and arrests that have occurred so far have already had an economic impact on the nation's agriculture industry.

Other segments of the economy can expect a sharp downturn as employers lose access to a valuable illegal immigrant workforce.

Unless Congress acts quickly to overhaul the nation's dysfunctional immigration system, Americans can expect to experience a significant jump in prices at the grocery store.

The hit on American pocketbooks will not be limited to price hikes and shortages at the supermarket. Across the economy, many services will decline while direct costs will rise.

Evidently, not enough members of Congress play chess. Even beginning chess players know they must think several moves ahead to have any chance at winning.

Congress' enforcement-only camp succeeded in shooting down a comprehensive immigration reform bill supported by President Bush and a bipartisan assemblage of Democrats and Republicans.

The legislation would have provided a method to legally match foreign workers with American employers.

In another example of being careful about what you ask for, immigration authorities have stepped up enforcement of long-ignored laws that make it illegal for U.S. employers to hire illegal immigrant workers.

Additionally, Homeland Security Secretary Michael Chertoff announced a new policy that requires employers to follow up on "no-match" letters from the Social Security Administration.

These letters will inform employers when the nine-digit sequence of numbers provided by their workers does not to match the Social Security database.

For years now, employers have known that nothing would happen to them when they wadded up and tossed these no-match letters into the nearest trash can.

Now, employers have been told that if they do not clear up mismatched Social Security numbers, then the identified workers must be fired or the employers will face fines up to $10,000, as well as possible criminal charges.

It's been unlawful to hire illegal workers for decades. About the only time the immigration law has made news has been when a presidential nominee was discovered to have hired an illegal nanny.

Breaking the immigration law has been enough to disqualify a nominee from a plum government appointment, but not enough to motivate immigration authorities to enforce the law on employers across the nation.

Full enforcement of the new no-match requirement will only disrupt a fraction of illegal workers who can buy, borrow or steal valid Social Security numbers.

Also, the letters will only be sent to employers with at least 10 workers with mismatched Social Security numbers, and where those workers make up at least 0.5 percent of their workforce.

An estimated 75 percent of day laborers are illegal and undocumented. As a rule, no documents are requested and none are given. Many of these workers endure wage theft from unscrupulous employers.

Still, the recent baby steps that have been taken to enforce long-standing immigration laws have caused serious disruptions in the operations of many American businesses as word of the crackdowns has spread.

Early reports indicate that many farmers will produce only 50 percent of their normal crops due to the growing labor shortage.

In some cases, farmers have chosen to not plant due to the difficulty in finding workers to harvest the crops.

It is estimated that at least two-thirds of the workers in construction and agriculture are working illegally.

The enforcement-only critics who killed comprehensive immigration reform should have easily predicted this outcome. But they didn't.

Rowland Nethaway writes for the Waco Tribune-Herald.

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As a result of the inability of Congress to enact workable immigration reform, the Bush Administration has announced plans to increase enforcement, placing employers in a difficult position. The Administration's latest plan requires employers to resolve discrepancies between employee records and those of the Social Security Administration or the Department of Homeland Security. Once the employer has notice of a discrepancy in Social Security number or immigration status information from what is referred as a "no match" letter, the employer has 90 days to re-verify the information. If the employer is unable to correct the discrepancy within this time frame, the employer has the following two choices: (1) terminate the employment, or (2) continue the employment. If the employer chooses the first option and terminates the employment, he or she may be faced with lawsuits by employees. If the employer chooses the second option, he or she may be faced with severe civil and criminal sanctions from the Department of Homeland Security.

Employers often receive "no match" letters for several reasons, such as clerical errors or failure to register a change of name after marriage. Both employers and employees can face bureaucratic delays in attempting to document and correct records. With this new enforcement plan employers will be made to jump through hoops, and employees could face potential termination as a result of these delays. These enforcement measures could have serious consequences on industries such as agriculture, hospitality, and construction.

The construction and agriculture labor pool relies in significant part on undocumented or illegal immigrant labor. Nationwide, it is estimated that undocumented illegal workers number more than 12 million, with approximately 2.4 million of those workers employed in construction.

American society continues to be redefined by immigration, but the modern illegal immigrant community faces different challenges than previous immigrant populations.

After the terrorist attack of September 11, 2001, the U.S. government consolidated Immigration and Naturalization Services (now known as Citizenship and Immigration Services) with the Department of Homeland Security. As a result of the merger between these two agencies, there has been great emphasis on "tightening" America's borders.

There is now a greater focus on regulating the entry and conduct of undocumented illegal immigrants through the primary investigative department, Immigration and Customs Enforcement (ICE). Despite the economic and social reliance on undocumented laborers, Congress continues to introduce bills geared toward immigration enforcement rather than reform, having serious consequences for the industries that employ these immigrants.

Potential employers of illegal immigrant laborers should closely monitor immigration reform and enforcement legislation as both could potentially pose severe punishments for such employers. The punishments may include prison sentences for employers who are repeat offenders, and/or fines of up to $10,000. Should such legislation take effect, it is likely that a national labor shortage may occur. The labor shortages in the affected industries would result in increased costs, strains and delays on local businesses as well as the community overall. Unfortunately, we may have to wait for at least the next two years for comprehensive immigration reform. As of now, with the enforcement-only approach immigrant employees and their employers are faced with a huge road block. Employees are unable to apply for legal status because no paths to legal status are available under the current system. Employers cannot find legal workers because no employment visas exist for such workers.

Enforcement-only legislation is not the answer. Congress needs to resume negotiations of comprehensive reforms that will secure our nations future by creating clear paths to lawful residence, providing new worker programs, eliminating backlogs in family immigration, assuring due process and protection of civil liberties while safeguarding our national security interests.

For more information about immigration news, immigration laws, immigration policies, proposed immigration laws, border enforcement, green cards, citizenship, employment visas, family visas, naturalization, and other immigration subjects, please visit Immigration Law Answers and DFW Immigration Law Blog.

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Immigrants, and immigration lawyers, are getting whiplash from trying to keep up with the government's changing opinions on the latest visa bulletin. First they're accepting all application, then they're accepting in application, now -- we'll, who can say for sure?

The Washington Post had an article this week about the situation. Here are excerpts:

The government did an about-face Tuesday and announced it is accepting applications for green cards filed by skilled immigrant workers.

Citizenship and Immigration Services, a division of the Homeland Security Department, said in a news release it will accept the applications through Aug. 17. Applications already filed, which the agency planned to reject, also will be accepted.

The decision was good news for skilled immigrants.

We are pleased and elated. It's very good to see a government agency see it's made a mistake, acknowledge a mistake and fix a mistake," said Crystal Williams, associate director for programs at the American Immigration Lawyers Association.

Every month the State Department announces how many visa numbers are available, which immigrants need to get in line for green cards or visas to enter the U.S. It can take years for some immigrants to get the numbers.

In June, the State Department said all eligible skilled workers could submit applications to become legal residents. But on July 2, it said the 60,000 available visa numbers were no longer available because Citizenship and Immigration Services had suddenly reduced its backlog of green card applications.

The about face resolves an immigration embarrassment that angered members of Congress and outraged workers and employers.

The process needs review, CIS Director Emilio Gonzalez said in a statement.

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An editorial this week in the Los Angeles Times details one of the reasons Microsoft has elected to build its new research center in Canada rather than in the United States. Excerpts from the editorial:

Microsoft [is] hiring several hundred software wizards to help develop new products. Instead of landing at the Redmond, Wash., mother ship, however, the new workers will toil in Vancouver, British Columbia. Here's why, according to the company's news release (emphasis added): "The Vancouver area is a global gateway with a diverse population, is close to Microsoft's corporate offices in Redmond and allows the company to recruit and retain highly skilled people affected by immigration issues in the U.S."

Consider it just the latest in a series of monuments to the United States' botched immigration policy, as well as a reminder of the Senate's recent failure to pass a comprehensive fix despite bipartisan support. High-tech companies are so frustrated by the limits on visas for skilled labor that they're not just opening offices in India and China to recruit local talent. They're also putting facilities in places like Vancouver for prized recruits from around the world -- many of them trained at U.S. universities -- who cannot work here.

The demand for H-1B visas for high-skilled immigrants has become so much greater than the supply that almost twice as many applications arrived in a single day as there were slots available for the year -- 65,000, plus 20,000 for those with advanced degrees from U.S. schools. Other countries, by contrast, are starting to make it easier for skilled workers to immigrate. That's because they're focusing on the benefits those employees can bring to their economies, not the competition they present to native labor.

Many of these immigrants become the innovators and entrepreneurs who create companies, employ more people and create wealth. Just look at the U.S. experience -- about 25% of all venture-capital-backed start-ups here were launched or co-founded by foreign nationals, including Yahoo, Google and EBay. The same benefits come from talented U.S. workers too, but not enough of them are pursuing science, math and engineering careers to fill the voracious demand at Microsoft and other high-tech powerhouses. A comprehensive fix to U.S. immigration policy is overdue, but failing that, Congress should at least adopt a more sensible approach to H-1B visas.

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The scandal/confusion regarding the latest Visa Bulletin has found its way into the New York Times today. Here are excerpts from the article:

Immigration lawyers raised unusually irate protests yesterday after the State Department and the immigration service abruptly withdrew tens of thousands of job-based visas they had offered last month to foreign professionals hoping to become permanent residents in the United States.

The outcry was provoked by a terse announcement on Monday in which the State Department said it would not grant any more visas for the 2007 fiscal year to foreigners applying to become permanent residents based on their job skills. That notice reversed one the department had issued on June 13 announcing a two-month window starting July 2 for aspiring, high-skilled immigrants from around the world to present applications for visas known as green cards.

The State Department said the 60,000 visas it had expected to offer would no longer be available because of "sudden backlog reduction efforts" by Citizenship and Immigration Services, the federal agency that processes applications for the visas offered by the department.

In a statement yesterday, the American Immigration Lawyers Association accused the two agencies of perpetrating a "hoax" and a "bait and switch" against hopeful legal immigrants who played by the book.

To apply, immigrants must undergo medical examinations and assemble documents to prove their job skills and show that a United States employer has sponsored them. Foreigners must be in the United States when they present their applications, which are processed on a first-come, first-served basis.

Because of backlogs for employment-based visas, foreigners have had to wait many years just to be allowed to file their applications.

Thousands of medical and technology professionals, including many working here on temporary visas, scrambled for weeks to get their documents together, in some cases canceling travel plans, in order to file their applications on Monday, the first day of the window. The State Department and the immigration agency closed the window without accepting a single application.

"I am concerned that such action may violate the law and could threaten the integrity of our immigration system," Representative Zoe Lofgren, Democrat of California who is chairwoman of the House Judiciary subcommittee on immigration, wrote in letters yesterday to Michael Chertoff, the secretary of homeland security, and Condoleezza Rice, the secretary of state. Ms. Lofgren warned that the federal government could face costly litigation because of its change of course.

The State Department said it would begin accepting applications on Oct. 1 for 2008 visas. On July 30, the immigration agency will raise its processing fees by an average of 66 percent.

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Just a few weeks ago there was good news for all those who have been waiting for their priority date to become current in an employment-based immigration category. The Department of State announced in June that the July 2007 visa availability bulletin would show that all employment preference categories (except for Third "Other Workers" ) had been made "Current" for July. That meant that as of July 1, 2007, anyone who had been waiting to file an I-485 Application for Permanent Residency could do so.

In a stunning announcement yesterday, the Department of State revised the July visa bulletin to reflect that ALL available employment-based visas had been allocated for the fiscal year 2007. As a result, beginning yesterday, Immigration Services is rejecting applications to adjust status filed by aliens whose priority dates are not current under the revised July visa bulletin. This also means that it is highly unlikely that visas will be available until the start of the new fiscal year which begins on October 1, 2007.

For those who filed their I-140 Petitions and I-485 Applications concurrently, and enclosed separate filing fee checks, the I-140 and supporting documents will be accepted by Immigration Services for processing and the I-485 and supporting documents and applications will be rejected and returned to the applicant with the filing fee checks. All I-485 Applications filed (even those received by Immigration Services on Monday July 2, 2007, before the revised visa bulletin was issued) WILL be rejected.  Filing fee checks will be returned.

There has been a lot of speculation by several immigration attorneys and immigration rights groups in regards to filing a federal lawsuit against Immigration Services. With proof of delivery, proof of rejection by Immigration Services, and evidence that a complete application was submitted to Immigration Services in hand, many lawyers will recommend to their clients that they be plaintiffs in a lawsuit that will probably be filed by the American Immigration Law Foundation (AILF).  Those who were arguably entitled to file their I-485 applications (per the first July visa bulletin) but failed to do so, may not be eligible for a remedy. AILF's Legal Action Center is preparing to litigate. Plaintiffs and class members whose applications were rejected or returned would have the strongest legal claims and have the strongest claims to benefit from a favorable result.

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We've written about the subject of updating addresses before, but we get this question asked so many times we're going to revisit the situation.

On January 12, 2007, U.S. Citizenship and Immigration Services announced a new program that allows U.S. immigrants to update their addresses online. Currently, all non-citizens in the U.S. are required to keep Immigration Services updated as to their most current addresses. Immigration Services must be notified within ten days of any change in address. Previously, this was done either by calling USCIS or completing a change of address card (Form AR-11), which was mailed to USCIS.

USCIS now accepts change of address information online. This new service reduced processing times, since Immigration Services typically receives over one million change of address requests each year. Additionally, this new service is convenient and easy to use.

It is vital that you continually notify Immigration Services of any change in address. This is particularly important when you have filed an application or petition for a benefit under the Immigration and Nationality Act and expect notification of a decision on that application. In addition, the USCIS may need to contact you to provide other issued documents or return original copies of evidence you submitted.

You should include the following information in your change of address request:

• For the change of address Form AR-11, complete the information requested on the form, including present address, last address (most recent only), alien or registration number, country of citizenship, date of birth, and your signature.

• You do not need to include temporary addresses as long as you maintain your present address as your permanent residence and continue to receive mail there.

• When sending a change of address, you do not need to include numerous last addresses; only the most recent last address is needed.

• Be sure to also indicate in the appropriate block on the AR-11 your current employment and school, where applicable.

You can find and print the change of address form online at this USCIS page. If you would prefer to update your address automatically through the USCIS Eeb site, please visit this change of address page.

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The current immigration debate isn't just about undocumented persons in the United States, it's also about U.S. employers hiring foreign workers. In many situations, companies hire foreign nationals who are already in the United States or who are interested in coming to this country to work. The following are guidelines that all employers should keep in mind:


1. Carefully audit the company's I-9 compliance, take corrective action, and be prepared for sudden employer-sanctions enforcement.

Every employer is required to have an I-9 form completed for each employee hired since Nov. 6, 1986, and