We recently received an approval notice for an employee of one of our corporate clients in Irvine. The employee was approved for H-1B status, which will begin on October 1, 2012. Currently, the employee is on Optional Practical Training after graduating with a master’s of science degree from a California university in Electrical Engineering. His OPT will expire in a couple of months. However, because his OPT will expire after the filing of the H-1B petition, he will be eligible to continue working for the employer until his H-1B status begins in October. This rule is known as the OPT “Cap Gap” Extension and it allows OPT workers to continue working despite the break (or gap) between OPT expiration and H-1B start date.

Because the employee has a Master’s Degree he qualifies under the Master’s Cap rather than the standard H-1B cap. This benefits the employer because it will not count toward H-1B dependency calculations. We processed the case under premium processing, which guaranteed a decision within two weeks.

The employee and employer were pleased with the result. The next step is to have the employee obtain the Cap-Gap extension through his school.

If your company is considering the H-1B process for an employee or potential employee, contact The Nunez Firm to discuss the feasibility of doing so. Managing attorney Jay Nunez will meet with you personally to help you better understand the process, costs and timeline.

I just returned from an adjustment of status interview with my clients from Irvine and the green card was approved. The interview took place at the Santa Ana office of United States Citizenship and Immigration Services. Everything went smoothly and the officer was satisfied that the marriage was entered into in good faith and not for immigration purposes.

The couple met two years ago while working at a summer camp with children. The husband was in the US on a J-1visa. They spent a lot of time together that summer and started dating by the end of the summer. Over the next year they remained in contact and visited each other when they could. In 2011, while on a ski trip in Europe the husband proposed and the wife accepted. They planned for a July 2012 wedding. He visited in the summer of 2011 and they decided they did not want to live apart anymore if possible.That’s when they came to see me.

I explained that it would be possible to obtain permanent residency while in the United States without having to travel abroad and process the case through the consulate. The couple got married in October 2011 and we helped put the adjustment of status and visa petition packet together for filing with USCIS. Within a a couple months we were scheduled for the interview.

Because the couple is young, we didn’t have much evidence to prove joint asset ownership, but we provided a lot of correspondence, photos, statements from parents about meeting the in-laws, joint lease and joint bank statements. The officer took into account the age of the couple and approved the case for conditional permanent residency.

After the interview I explained that the couple would need to file the I-751 petition jointly in order to have the conditions removed from the green card. I advised that they should save as many joint documents as possible over the next two years so that USCIS will have a lot of evidence upon which to base an approval. They stated that they intended to hire The Nunez Firm to help with that process.

I also explained that if the husband is interested in becoming a US citizen, he would be eligible to do so three years from now as the spouse of a US citizen. Most permanent residents must be residents for 5 years, but spouses of US citizens have a shorter wait time depending on other factors. The couple was very happy and said they were going to go celebrate with brunch and possibly a mimosa.

If you are considering the adjustment of status process, contact The Nunez Firm. We handle many marriage based green card cases in Orange County and managing attorney Jay Nunez will attend the interview with you to make sure you are treated fairly and with respect.

Last week we received an approval for a conditional green card for a client from Spain. She and her husband currently live in Irvine and the adjustment of status interview took place in the USCIS office in Santa Ana. The couple met in 2008 through a mutual friend, and over the next couple years they dated and frequently visited each other in California and Spain. They also traveled to other countries together. In 2011, they decided to marry and after she arrived in the United States in Summer 2011 for a visit, they decided they wanted to start the visa petition process.

When I first met with them they intended to marry in Spain and process the case through the consulate in Madrid. I explained that they also had the option of processing the case in the United States through I-485 adjustment of status. In December 2011 they married and we filed the paperwork shortly thereafter. We included evidence of their good faith relationship including a joint 2011 tax return and photos from their extensive travels together.

When we attended the interview, we brought other evidence such as the joint lease for their apartment, health and dental insurance and other bills. The officer was satisfied with the evidence and approved the case on the spot. The couple was very happy with the result. After the interview I explained the I-751 removal of conditions process that would take place two years from now. I further explained the naturalization process, if she desired to become a US citizen in three years.

If you are considering adjustment of status, contact The Nunez Firm to schedule a free consultation. Managing attorney Jay Nunez can help you better understand the process and whether it is a viable option for you.

U.S. Rep. Joe Crowley (D-Jackson Heights) announced that he will introduce a measure in the House of Representatives that will encourage the U.S. Government to expand the Visa Waiver Program, an effort that he expects to help boost tourism in Queens.

The resolution calls on the government to expand the waiver program to include at least three new countries: Brazil, Chile and Argentina. Rojas said the U.S. economy gets about twice as many tourism dollars from South America compared to the United Kingdom, so making it easier for more travelers from more countries to come to America would mean more money for the economy.

The Visa Waiver Program allows visitors from 36 participating countries to travel to the U.S. for tourism or business for stays of 90 days or less without obtaining a visa. Countries included in the program were the largest source of inbound travel in 2010, representing 65 percent of all tourists to the U.S.

We just received an approval for a marriage based green card for the husband of a US Citizen living in Newport Beach. The couple met a couple years ago and dated for about one year before deciding to marry. He is originally from Italy and they traveled often to visit each other during the year they were apart. In summer 2011, he visited the U.S. and they decided to marry in fall.

Although they were planning to process the case through the US consulate in Italy, I advised them that it would be possible to process the case in the United States without him having to leave the US at all. After they married, we filed all the paperwork and recently had the adjustment interview in Santa Ana. We provided ample documentation proving the marriage was entered in good faith and not for immigration reasons. The officer was satisfied with the evidence and after asking a few questions about how they met and how often they visited each other, he approved the husband for a conditional green card – CR6.

The couple was very happy to be done with the process in such a short amount of time, and they plan to travel to Italy to visit his family next month. I explained to him that he could travel outside the United States, but he should not leave the US for more than six months at a time. I also explained that they would need to file an I-751 in two years to have the conditions removed from his green card.

If you are considering the adjustment of status process and want to obtain permanent residency through your marriage to a US citizen, contact The Nunez Firm to schedule a free consultation. We handle countless marriage based cases every year and managing attorney Jay Nunez can help you understand your options.

Below is the proposed rule for provisional unlawful presence waivers. Emphasis added to interesting portions and analysis below.

1. Eligibility for the Provisional Waiver

Individuals may request a provisional waiver if:

i. Their sole ground of inadmissibility at the time of the immigrant visa interview with DOS would be unlawful presence for more than 180 days;

ii. They are the beneficiary of an approved Form I-130, Petition for Alien Relative or Form I-360, Petition for Amerasian, Widow(er), and Special Immigrant (classifying them as immediate relatives), and seek an immigrant visa from DOS based on this approved petition;

iii. They are physically present in the United States when they file the application for the provisional unlawful presence waiver;

iv. They appear for biometrics capture in the United States;

v. They establish that a U.S. citizen spouse or parent would experience extreme hardship if the individual is denied admission to the United States as an LPR;

vi. They warrant a favorable exercise of discretion; and

vii. They are 17 years or older at the time of filing an application for a provisional unlawful presence waiver.

2. Ineligibility for the Provisional Unlawful Presence Waiver

Individuals are ineligible for a provisional waiver if:

i. They are outside the United States;

ii. They do not have an approved Form I-130 or Form I-360 petition, classifying them as an immediate relative;

iii. They have not paid the immigrant visa processing fee to DOS and are not actively pursuing the immigrant visa process based on the approved petition;

iv. They have already been scheduled for an immigrant visa interview;

v. They are under the age of 17 years when the provisional unlawful presence waiver is filed;

vi. They are in removal proceedings that have not been terminated or dismissed;

vii. They have not had the charging document (Notice to Appear) to initiate removal proceedings cancelled;

viii. They are in removal proceedings that have been administratively closed but not subsequently reopened for the issuance of a final voluntary departure order;

ix. They are subject to a final order of removal;

x. They have a pending application for adjustment of status to that of an LPR in the United States;

xi. USCIS has reason to believe they would be subject to one or more other grounds of inadmissibility;

xii. They fail to establish extreme hardship or do not merit a favorable exercise of discretion; or

xiii. They previously filed a provisional unlawful presence waiver application.

3. Adjudication and Decision

USCIS would adjudicate the provisional unlawful presence waiver application and issue requests for evidence. USCIS would not issue Notices of Intent to Deny (NOIDs). If USCIS approves the provisional waiver application, USCIS would notify the applicant and DOS of the approval. Denials cannot be appealed and aliens will not have the right to seek motions to reopen or reconsider USCIS’s decision. Aliens whose provisional waiver requests are denied, however, may still apply for a waiver through the current I-601 waiver process. USCIS also reserves the authority to reopen and reconsider on its own motion an approval or a denial of a provisional waiver application at any time.

4. Effect of Waiver

An approved provisional waiver would not become effective until the alien departs from the United States, appears for his or her immigrant visa interview and is found admissible and otherwise eligible for the immigrant visa by DOS. The provisional waiver would then become a permanent waiver, waiving the inadmissibility based on the period of unlawful presence noted in the waiver request.

5. Revocation

An approved provisional waiver is automatically revoked if DOS denies the immigrant visa application or if the underlying immigrant visa petition approval is revoked, withdrawn, or otherwise rendered invalid. An approved waiver also is revoked if the alien is inadmissible on grounds other than for unlawful presence under INA section 212(a)(9)(B)(i), 8 U.S.C. 1182(a)(9)(B)(i), if the alien is otherwise ineligible for an immigrant visa, or if DOS terminates the alien’s immigrant visa registration under INA section 203(g), 8 U.S.C. 1153(g).

There are several aspects to note. First, the provisional waiver will only apply to aliens whose only ground of inadmissibility is unlawful presence. If an alien is inadmissible due to criminal convictions, the proposed rule will not help.

Second, the waiver will be based on extreme hardship to a parent or spouse (US citizen or permanent resident). Hardship to children is not considered directly. Of course, if an alien has a US citizen/LPR spouse and US citizen/LPR children, we can argue that hardship to the children will also cause added hardship to the spouse. This argument has been persuasive in the past.

Third, the 17 years old or older rule seems arbitrary. Unlawful presence is not an issue until the alien turns 18 years old. Therefore, if an alien is 17 years old, it is best for that alien to leave the country before he has turned 18 1/2 years old in order to avoid accruing unlawful presence.

Fourth, the alien should remain in the United States while the provisional waiver is being decided by USCIS. If they are outside the US or have an immigrant visa appointment already scheduled, they will be ineligible for the provisional waiver.

Fifth, the alien only has one chance to obtain the provisional waiver. There is no appeal process and the alien cannot refile; therefore, it is important to present the most complete and persuasive waiver packet the first time.

I am also hearing rumors that the Obama Administration would like to have this process in place by August 2012. You can make comments and review comments to the proposed rule here.

If you have questions and would like to schedule a free consultation with managing attorney Jay Nunez, contact The Nunez Firm.

Immigration agents arrested about 200 people in Northern California and more than 3,100 nationwide in a 6-day sweep last week looking for immigrants who can be deported because they have a criminal record or ignored deportation orders.

U.S. Immigration and Customs Enforcement, or ICE, agents arrested 37 people in Santa Clara County, 18 in Alameda County and 16 in Contra Costa County as part of the 50-state “Operation Cross Check,” which ended on Thursday.

The arrests include legal and illegal immigrants who are deportable because of crimes they committed. Also arrested were immigration fugitives, who are people living in the country illegally who have ignored deportation orders. Agents also arrested more than 500 people who had illegally re-entered the United States after being deported.

About 90 percent of the people arrested nationwide had criminal convictions; 47 percent of all those arrested had felony convictions.

Of the 200 arrested in Northern California, half had convictions “for serious or violent crimes,” according to an ICE statement. The agency did not release the names of all those arrested or their crimes.

President Obama has repeatedly stated that he wants to focus resources on criminal aliens and fugitive aliens with outstanding deportation orders. Recently, he announced that he plans to halt deportations in several immigration courts nationwide in order to focus efforts on priority cases.

If you or a loved one is currently in immigration court proceedings in Los Angeles, contact The Nunez Firm to schedule a free consultation. Managing attorney Jay Nunez will help you better understand the options available to you.

Congressional Republicans and Mitt Romney’s presidential campaign are working to fashion proposals that could make up ground with Hispanic voters, concerned rhetoric on immigration from many in the party is turning away the increasingly powerful constituency.

Sen. Marco Rubio (R., Fla.) is developing a scaled-back version of the DREAM Act, which would allow people brought to the U.S. as children to gain legal status, but not citizenship, if they enroll in college or the military. Several Senate Republicans have signed on to bipartisan legislation aimed at broadening access to the legal immigrant visa system.

The Romney campaign is looking for new proposals that would show he backs legal immigration, trying to pivot from a primary campaign in which he has taken a tough line on assistance to those here illegally.

It’s unclear whether any of these initiatives will bear fruit, but there is an increasing sense among some in the party of the need to try.

Read more: http://latino.foxnews.com/latino/politics/2012/04/02/republicans-try-to-woo-latinos-with-new-immigration-proposals/#ixzz1quImaqhM

WASHINGTON — The Obama administration is proposing to make it easier for illegal immigrants who are immediate family members of American citizens to apply for permanent residency, a move that could affect as many as 1 million of the estimated 11 million immigrants living here illegally.

The new rule, which the Department of Homeland Security will post for public comment Monday, would reduce the time illegal immigrants are separated from their American families while seeking legal status, immigration officials said. Currently, such immigrants must leave the country to apply for a legal visa, often leading to long stints away as they await resolution of their applications.

The proposal is the latest move by the administration to use its executive powers to revise immigration procedures without changing the law. It reflects an effort by President Obama to improve his standing among those Latino voters who feel he has not met his 2008 campaign promise to pursue comprehensive immigration reform.

The president’s push to pass the Dream Act, a law that would have created a path to citizenship for young illegal immigrants enrolled in college or enlisted in the military, was defeated in the Senate in December. No reform legislation has been under serious consideration since, yet the U.S. has deported a record number of illegal immigrants under Obama.

Many immigrants who might seek legal status do not pursue it out of fear they will not receive a “hardship waiver” of strict U.S. immigration laws: An illegal immigrant who has overstayed a visa for more than six months is barred from reentering the U.S. for three years; those who overstay more than a year are barred for 10 years.

The revised rule would allow illegal immigrants to claim that time apart from a spouse, child or parent who is a U.S. citizen would create “extreme hardship,” and would permit them to remain in the country as they apply for legal status. Once approved, applicants would be required to leave the U.S. briefly, simply to return to their native country and pick up their visa.

The change could reduce a family’s time apart to one week in some cases, officials said. The White House hopes to have the new procedures in place by the end of the year.

Keep checking ocimmigrationlawyer.com for updates on the numerous recent rule changes President Obama has proposed. If you or a loved one is considering the visa petition process, contact The Nunez Firm to schedule a free consultation.

The Department of Homeland Security (DHS) and Executive Office for Immigration Review (EOIR) today announced its plans to expand backdoor amnesty.  Beginning in late April, DHS will suspend all non-detained dockets for illegal immigrants in four additional jurisdictions, as it previously did in Baltimore and Denver, for two weeks.  These jurisdictions include Detroit, New Orleans, Orlando, and Seattle.  In May, DHS will partially suspend the non-detained docket in New York City and then in July, it will implement the same procedures in San Francisco and Los Angeles.

This means that DHS intends to solely focus on detained cases in these jurisdictions, meaning those who come to the attention of law enforcement.  But if the illegal or criminal immigrant bonds out of jail, they can be put on the non-detained docket and could potentially remain in the U.S.  This decision is just another part of the Obama administration’s plan to grant administrative amnesty to potentially millions of illegal immigrants.

If you or a loved one is in immigration court in Los Angeles or San Diego, contact The Nunez Firm to schedule a free consultation.