On August 20, 2010, a three judge panel of the Ninth Circuit reversed and remanded for further proceedings, the district court’s decision (2009 WL 799683) allowing religious workers to file their adjustment of status applications concurrently with the organizations’ I-360 petition. RuizGarcia v United Sates2, No. 09-35734 (9th Cir. Aug. 20, 2010). Religious workers will not be able to file concurrently their I-360 and I-485 (adjustment of status) applications.

The law is not in effect yet, so those wishing to file should do it quickly.

Contact our law firm on 510 742 5887 or info@peerallylaw.com for more information

Arrests part of ICE’s national anti-gang effort — Operation Community Shield

LAS VEGAS – A total of 35 individuals with ties to more than a dozen different street gangs are facing criminal charges or deportation following a three-day, multi-agency enforcement action in the Las Vegas area spearheaded by the U.S. Immigration and Customs Enforcement (ICE) Office of Homeland Security Investigations (HSI).

The arrests were made as part of Operation Community Shield, an ongoing initiative by ICE-HSI’s National Gang Unit in which the agency uses its powerful immigration and customs authorities in a coordinated strategy to attack and dismantle criminal street gangs across the country. As part of the initiative, ICE partners with other federal, state and local law enforcement agencies to target the significant public safety threat posed by transnational gangs.

Of the gang members and gang associates arrested during the enforcement action that concluded late Thursday, six are currently facing prosecution on state criminal charges, including outstanding warrants for gang-related violations. A seventh individual, and two of the subjects arrested on state charges, will also be presented to the U.S. Attorney’s Office for prosecution for felony re-entry after deportation, a federal violation that carries a potential penalty of up to 20 years in prison.

“This effort shows our collective resolve in the Las Vegas area to attack and dismantle these dangerous street gangs,” said Richard Curry, assistant special agent in charge for ICE-HSI in Las Vegas. “For too long, gangs here and elsewhere have used violence and intimidation to hold communities hostage. As this operation shows, now it’s the gang members who have something to fear.”

Among those arrested during the enforcement action was a 26-year-old previously deported Mexican national with ties to the Park Avenue street gang who has prior arrests for weapons charges and drug possession. Another of the individuals taken into custody was an 18-year-old Mexican national member of the 18th Street gang who had been previously arrested for attempted murder for his role in a drive-by shooting.

ICE received substantial assistance with this week’s operation from the Nevada Department of Public Safety (two divisions, Probation and Parole and Investigations); the Las Vegas Metropolitan Police Department; the Mesquite Police Department; and the North Las Vegas Police Department.

Three of the gang members and gang associates arrested during the operation are U.S. citizens. The remaining 32 individuals are foreign nationals. The majority of the foreign nationals are from Mexico (27), but the group also includes citizens from six other countries: El Salvador, the Philippines, Honduras, Cuba, Guatemala and Laos. Those foreign nationals who are not being prosecuted on criminal charges are being processed for removal from the United States.

Since Operation Community Shield began in February 2005, ICE agents nationwide have arrested more than 18,000 gang members and gang associates. As part of the effort, HSI’s National Gang Unit identifies violent street gangs and develops intelligence on their membership, associates, criminal activities and international movements to deter, disrupt and dismantle gang operations. Transnational street gangs have significant numbers of foreign-born members and are frequently involved in human and contraband smuggling, immigration violations and other crimes with a connection to the border.

To report suspicious activity, call ICE’s 24-hour toll-free hotline at: 1-866-347-2423 or visit www.ice.gov.

General Qualifications of the Employer and Employee

To qualify for L-1 classification in this category, the employer must

• Have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate, collectively referred to as qualifying organizations); and
• Currently be, or will be, doing business as an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the United States as an L-1.  While the business must be viable, there is no requirement that it be engaged in international trade.

Doing business means the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad.

Also to qualify, the named employee must

• Generally have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States; and
• Be seeking to enter the United States to render services in an executive or managerial capacity to a branch of the same employer or one of its qualifying organizations.

Executive capacity generally refers to the employee’s ability to make decisions of wide latitude without much oversight.  Managerial capacity generally refers to the ability of the employee to supervise and control the work of professional employees and to manage the organization, or a department, subdivision, function, or component of the organization.  It may also refer to the employee’s ability to manage an essential function of the organization at a high level, without direct supervision of others.  See section 101(a)(44) of the Immigration and Nationality Act, as amended, and 8 CFR 214.2(l)(1)(ii) for more complete definitions.

New Offices

For foreign employers who are seeking to send an employee to the United States as an executive or manager in order to establish a new office, it must also be shown that

• Sufficient physical premises to house the new office have been secured
• The employee has been employed as an executive or manager for one continuous year in the three years preceding the filing of the petition; and
• The intended U.S. office will support an executive or managerial position within one year of the approval of the petition.

See 8 CFR 214.2(l)(3)(v) for details.

Period of Stay

Qualified employees entering the United States to establish a new office will be allowed a maximum initial stay of one year.  All other qualified employees will be allowed a maximum initial stay of three years.  For all L-1A employees, requests for extension of stay may be granted in increments of up to an additional two years, until the employee has reached the maximum limit of seven years.

Family of L-1 Workers

The transferring employee may be accompanied or followed by his or her spouse and unmarried children who are under 21 years of age.  Such family members may seek admission in L-2 nonimmigrant classification and, if approved, generally will be granted the same period of stay as the employee.  If these family members are already in the United States and seeking change of status to or extension of stay in L-2 classification, they may apply collectively, with fee, on Form I-539.  Spouses of L-1 workers may apply for work authorization by filing Form I-765 with fee.  If approved, there is no specific restriction as to where the L-2 spouse may work.

Blanket Petitions

Certain organizations may establish the required intracompany relationship in advance of filing individual L-1 petitions by filing a blanket petition.  In order to establish eligibility for blanket L certification, the employer

• And each of the qualifying organizations must be engaged in commercial trade or services
• Must have an office in the United States which has been doing business for one year or more
• Must have three or more domestic and foreign branches, subsidiaries, and affiliates
• Must meet one of the following criteria
  • Along with the other qualifying organizations, have obtained at least 10 L-1 approvals during the previous 12-month period; or
  • Have U.S. subsidiaries or affiliates with combined annual sales of at least $25 million; or
  • Have a U.S. work force of at least 1,000 employees.

The approval of a blanket L petition does not guarantee that an employee will be granted L-1A classification.  It does, however, provide the employer with the flexibility to transfer eligible employees to the United States quickly and with short notice without having to file an individual petition with USCIS.  In most cases, once the blanket petition has been approved, the employer need only complete Form I-129S, Nonimmigrant Petition Based on Blanket L Petition, and send it abroad to the employee along with a copy of the blanket petition Approval Notice and other required evidence, so that the employee may present it to a consular officer.

See 8 CFR 214.2(l)(4) and 8 CFR 214.2(l)(5) for more details regarding blanket petitions.

Is it permissible to enroll in school while in B-1/B-2 status?

No, it is not.  The regulations, at 8 CFR 214.2(b)(7), specifically prohibit study in the United States while in B-1 or B-2 status.

Before enrolling in classes, individuals who are in B-1 or B-2 status must first acquire F-1 (academic student) or M-1 (vocational student) status.  Enrolling in classes while in B-1/B-2 status will result in a status violation.  Individuals in B-1 or B-2 status, who have violated their nonimmigrant status by enrolling in classes, are not eligible to extend their B status or change to F-1 or M-1 status. These regulations provide no exceptions.

How can I obtain F-1 or M-1 status?

If you currently hold B-1 or B-2 nonimmigrant status and would like to enroll in classes, you may apply for a change of status to F-1 or M-1, as appropriate, if:

• You have not yet enrolled in classes
• Your current status has not expired
• You have not engaged in unauthorized employment

To change your nonimmigrant status from B-1/B-2 to F-1 or M-1, you must file an Application to Extend/Change Nonimmigrant Status (Form I-539), and include the required fee and documents listed in the filing instructions.

Please Note:

• If you enroll in classes before USCIS approves your Form I-539, you will be ineligible to change your nonimmigrant status from B to F or M.
• If you are applying to extend your B-1/B-2 stay and you have already enrolled in classes, USCIS cannot approve your B-1/B-2 extension because of the status violation.

What if I am not eligible?

If you are not eligible to change your nonimmigrant status to F-1 or M-1, you may apply for an F-1 or M-1 visa at a consular post abroad.  For information about consular processing, please visit the Department of State’s website at www.state.gov/travel.  For information about the Student and Exchange Visitor Program (SEVP), please visit the SEVP website at:  www.ice.gov/sevis.

We encourage all students and prospective students to work closely with their designated school official (DSO) to coordinate the timing of applying for change of status and enrolling in classes.

Press Release

Newark CA – On August 13, 2010 President Obama signed into law H.R. 6080, an act making emergency supplemental appropriations for border security for the fiscal year ending September 30, 2010, and for other purposes. This law includes an increase of certain H-1B and L-1 application fees.

USCIS conducted a teleconference today and provided additional details on these fee increases. Since this bill was signed into law by the President, the fee increase is effective immediately. Any petition filed as of August 14th or later will be subject to the fee increase provisions. USCIS is working on updating the I-129 form.

Companies with 50 or more US employees also have 50% or more of their employees on H1B or L status are required to pay an additional, non-refundable $2000 for new/change of employer petitions H-1B petitions, and $2250 for L-1 petitions. Extension petitions where the employee is already with the employer are not subject to this fee increase. The 50 employee count only includes US employees, so if a company had 40 US employees working in the US, and 15 employees working abroad, it would not have to pay this additional fee. The 50% count includes the total of all employees on H1B and L status, combined, including those on L2, so, hypothetically, if a company had 50 US employees, and 30 of their employees were in L2 status with work authorization, then any H-1B or L-1 petition would be subject to the additional fee. Finally, the employer is required to pay the additional fee; it may not force the employee to pay.

We anticipate that this fee increase will dramatically change the playing field in the IT consulting world. This creates a disadvantage to large IT consulting companies, and we anticipate that larger IT consulting companies may be more hesitant to file H-1B petitions, thus, creating more opportunities to smaller IT consulting companies to hire foreign national programmers, software engineers, systems analysts, etc.

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USCIS Press Release on H1B Fee Increase

On August 13, 2010, the U.S. District Court of the District of Columbia dismissed with prejudice Broadgate, Inc.,et al v. USCIS, a case challenging the January 8, 2010, Neufeld employer-employee/third-party placement memo. The court concluded that the Memorandum does not constitute final agency action subject to judicial review and the notice and comment requirements under the APA. The court concluded that the Memorandum establishes interpretive guidelines for the implementation of 8 C.F.R. § 214.2 and does not bind USCIS adjudicators in their determination of plaintiff’s H-1B visa applications.