1. Immigration Agency May not Help Foreign Students Seeking H-1Bs This Summer

2. USCIS Implements New L-1 Visa Law

3. EB-3 Green Cards Unavailable until October; Schedule A Visa Relief

4. USCIS Publishes Guide for New Immigrants, Fact Sheets

5. O-1 Visa Success for Artists

6. VAWA Case Approved for Emotionally Battered Wife

7. New Articles on Our Web Site

8. The Firm Speaks

1. Immigration Agency May not Help Foreign Students Seeking H-1Bs This Summer

Every summer the same thing happens. Nonimmigrant students on F and J visas who finish their one year of practical training during the summer after obtaining a bachelor's degree want some way to stay in the United States until October 1, when the new federal fiscal year begins and they can start working on an H-1B visa as a temporary professional worker. In past years the Department of Homeland Security (DHS) has allowed such students caught in this "cap gap" to stay in the United States. See, for example, the following article from last summer: http://www.twmlaw.com/resources/nonimmigrant/fjhelph.html

The DHS may not ride to the rescue of F and J students this summer, however. Senior immigration officials who spoke late last month at the annual conference of the American Immigration Lawyers Association (AILA) stated that President Bush wants tighter screening of foreign students. For that reason, he prefers that foreign students return to their home countries to obtain an H-1B visa. At a U.S. consular interview in the home country, foreign students can be subjected to security and criminal clearances before they return to the United States.

Stay tuned to see what happens, or doesn't happen.

2. USCIS Implements New L-1 Visa Law

The L-1B visa is a temporary professional work visa valid for up to five years for certain employees who have specialized knowledge. The L-1B visa is available to workers who have worked in a firm overseas that is affiliated with a U.S. company. The employee must possess special knowledge of the petitioning organization's product, service, research, equipment, techniques, management, or other interests and its application in international markets, or have an advanced level of knowledge in the organization's processes and procedures.

A new law passed last year requires a petitioning employer to maintain ultimate authority over an L-1B employee. This means that L-1B workers can no longer work off-site if they are going to be supervised by a different employer or if the underlying reason for the off-site employment is not related to the employee's specialized knowledge.

True Walsh & Miller's Steve Yale-Loehr testified before Congress as it was considering its changes to the L-1 visa program. Steve's testimony is at http://www.twmlaw.com/resources/ltestimony.html

The new law also requires all L-1 workers (including L-1A managers and executives) to work for at least a year in the affiliated firm overseas before the U.S. firm can petition for the employee to come to the U.S. This changes the rules of the "blanket L-1 program," which had allowed just six months of employment abroad before filing the petition. The one-year requirement only applies to L-1 petitions filed after June 6, 2005. It does not apply to applications for L-1 extensions.

The U.S. Citizenship and Immigration Services (USCIS) implemented the new law in late June. A press release detailing the implementation is available at http://uscis.gov/graphics/publicaffairs/pachron.htm

3. EB-3 Green Cards Unavailable until October; Schedule A Visa Relief

As of July 1, 2005, EB-3 immigrant visas (green cards) are not available for the rest of this federal fiscal year. EB-3 visas are typically available to professionals with bachelor's degrees, skilled workers in short supply, and unskilled workers in short supply. The EB-3 category has been backlogged for a while (see article 4 of our May 2005 newsletter at http://www.twmlaw.com/new/news5_02_05.html), but it was a surprise that the numbers ran out so quickly. Numbers for the EB-3 category will not be available again until the next fiscal year, which begins October 1.

Fortunately there is relief for some EB-3 recipients. Among other provisions enacted in the REAL ID Act (reported in the June 2005 newsletter at http://www.twmlaw.com/resources/news6_20_05.html), 50,000 "Schedule A" visas unused in previous fiscal years are now available. The Schedule A visas are only available for EB-3 professional nurses, physical therapists, and persons "of exceptional ability in the sciences or arts". It is likely that nurses will particularly benefit from these newly available numbers.

For more information about EB-3 and other employment-based green cards, please see the article "Employment-Based Permanent Residence Options for International Workers in the United States" on the True, Walsh & Miller website: http://www.twmlaw.com/resources/immigrant/empbased.html

4. USCIS Publishes Guide for New Immigrants, Fact Sheets

The U.S. Citizenship and Immigration Services (USCIS) has published Welcome to the United States: A Guide for New Immigrants, a publication for new permanent residents available in many different languages. This new guide has a wealth of information for immigrants on day-to-day living in the U.S., including information on how to get a driver's license, U.S. history, and information about the structure and systems of the U.S. government. The guide also has advice on civic rights and responsibilities. The guide can be found on the USCIS website at

http://uscis.gov/graphics/citizenship/welcomeguide/index.htm.

USCIS has also inaugurated a new series of "How Do I" fact sheets. These fact sheets seek to provide detailed information on immigration issues in a simplified format. Currently, they have completed a series on services for U.S. citizens and one for permanent residents. Upcoming fact sheets include information for non-immigrants, refugees and asylees, and employers. The finished fact sheets are available in English and Spanish at http://uscis.gov/graphics/services/factsheet/index.htm.

5. O-1 Visa Success for Artists

True, Walsh & Miller has had a high rate of success with O-1 (extraordinary ability alien) nonimmigrant visa petitions for artists. Artist O-1 petitions are held to a lower standard than O-1 petitions filed for individuals in the fields of science, education, business or athletics. The science, education, business or athletics O-1s require that the individual be "one of the small percentage who have arisen to the very top" of his/her field. This is a very high standard, and the U.S. Citizenship and Immigration Services (USCIS) often determines that a petitioner has failed to meet this high standard. In contrast, artist O-1s require that the individual possess "skill and recognition substantially above that ordinarily encountered," a lower standard than that applied to science, education, business and athletics O-1 petitions.

We have recently filed successful artist O-1 petitions for an opera singer and for jewelers. The jeweler cases show that by creatively re-designating a particular field or trade, an individual petition can be fashioned as an artist O-1 petition with its lower standard, rather than the more difficult standard O-1 petition. Contact us if you believe you may qualify as an extraordinary ability artist.

For more articles on our web site about O-1 visas, go to http://www.twmlaw.com/resources/nonimmigrant/extraordinary.html

6. VAWA Case Approved for Emotionally Battered Wife

Ordinarily, a U.S. citizen or a lawful permanent resident can file a petition to have a close family member obtain a green card. In such cases, the petitioner controls the entire application process. Regrettably, in abusive relationships, this control is often misused. Abusive petitioners can threaten their family members with the withdrawal of their petition or threaten to contact the Department of Homeland Security to initiate deportation. To remedy this, Congress passed the Violence Against Women Act (VAWA) to allow spouses and children of abusive U.S. citizens or lawful permanent residents to self-petition for permanent residency without the abuser's support.

Recently, a woman suffering from abuse by her U.S. citizen husband contacted our firm for help. From the time the couple married, our client's spouse relentlessly demeaned her and threatened to withdraw the green card petition that he had filed for her. This case is of particular note because while our client was severely abused emotionally and verbally, especially during her pregnancy with the couple's child, she was fortunately never harmed physically. The U.S. Citizenship and Immigration Services (USCIS) demands a higher standard for VAWA petitions where the abuse has been non-physical, requiring that the victim have suffered "extreme cruelty." Notwithstanding this high standard, attorney Carolyn Lee successfully obtained an approval in this case. The key was providing affidavits from third parties attesting to the abuse, the effects of social isolation, and the husband's possessiveness in nearly destroying our client's quality of life.

It is noteworthy that our client was a mature, highly educated individual working at a Fortune 100 company. Her abusive husband was an academic. Abuse is not limited to certain strata of society. To find out more about VAWA, please see the USCIS website at http://www.uscis.gov/graphics/howdoi/battered.htm.

If you are a victim of abuse, the National Domestic Violence Hotline has information about shelters, mental health clinics, and legal advice. Their telephone number is 1-800-799-7233 or 1-800-787-3224.

7. New Articles on Our Web Site

Steve Yale-Loehr has co-written an article about the employment-related visa provisions of the REAL ID Act. The article is at http://www.twmlaw.com/resources/real_id_6_30_05.html

Carolyn Lee has written an article summarizing the new PERM labor certification requirements. The article is at http://www.twmlaw.com/resources/perm_memo.html

8. The Firm Speaks

Steve Yale-Loehr will be speaking on a teleconference about legal research techniques on September 27 for members of the American Immigration Lawyers Association.

_____________________

That's it for this issue. Some of the information in this issue comes from the American Immigration Lawyers Association. Thanks to AILA for allowing us to reprint their information.

For answers to any of your immigration questions, contact:

Hilary Fraser (mailto:htf@twmlaw.com)

Carolyn Lee (mailto:csl@twmlaw.com)

Rosie Mayer (mailto:rma@twmlaw.com), or

Steve Yale-Loehr (mailto:syl@twmlaw.com).

For general information, visit our web site at http://www.twmlaw.com/

The usual required legal disclaimers (we ARE attorneys, after all): Transmission of this information is not intended to create, and receipt by you does not constitute, an attorney-client relationship. The information in this newsletter is for general purposes only, and is not intended as legal advice for any particular situation. If legal advice or other expert assistance is required, the services of a competent professional should be sought.

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Copyright (c) 2005 True, Walsh & Miller, LLP. All rights reserved.