Our team at FitzGerald & Company, LLC would like to wish you a prosperous Year 2008. We would also like to take this opportunity to inform you of some changes and developments that occurred last year in immigration, and remind you of what actions you may be eligible to take currently in your path towards American citizenship. Please feel free to forward a link to this newsletter to anyone you know who may find immigration information useful.
The Importance of Contacting your Representatives and Senators
There have been several important events or developments in 2007 that are worthy of comment and should be of interest to anyone who is or who may be affected by immigration laws. In 2007 we had a Comprehensive Immigration Reform bill (proposal) rejected by the Senate, new restrictive Labor Certification regulations enacted, and the U.S. presidential candidates have all stated that immigration policies are an important issue which may result in some imminent changes. Political figures are extremely responsive to public opinion, and for this reason, it is important that we let the representatives, senators and all political candidates and office-holders in our regions know that we need positive changes to ease the difficulties that so many immigrants face in the United States today.
The names and telephone numbers of the U.S. Senators can be found at the following internet address:
and the names of the congressman in your area are listed at this address:
Proposed Immigration Reform Law
On June 18, 2007 Senators Kennedy and McCain filed a bill in the U.S. Senate that would have provided some relief to so many of the immigrants living in the U.S. and to many of their family members abroad. The bill was rejected on June 28, 2007 by a vote of 46 (in favor / YES) to 53 (against / NO). Of the 46 senators that supported the bill 13 were Republicans and 33 were Democrats, and of the 53 senators that rejected the law 15 were Democrats and 38 were Republicans.
The law would have included among its provisions the following:
- A nonimmigrant Z-visa category for illegal aliens (and their families) who have been continuously physically present in the United States since January 1, 2007, and are: (1) employed and seek to continue working or (2) studying
- Increased per-country-limits for family-based and employment-based immigrants and increased family-sponsored immigrant visas until backlogs are adjudicated
- A merit-based immigrant evaluation system
- Made the Conrad J-1 visa (foreign physicians in medically underserved areas) waiver program permanent
- Revised student visa provisions respecting: (1) off campus work; (2) distance learning; (3) dual intent; and (4) graduate students in mathematics, engineering, natural sciences, or information technology, and
- Revised H-1B visa (specialty occupation) provisions, including: (1) annual admissions cap increases; (2) employer requirements; (3) degree requirements; (4) merit-based extension of stay; and (5) government requirements.
In addition to these positive sections there were some provisions of the proposal that would have been negative, such as restrictions on obtaining “green cards” in the U.S. and new limitations on L1A visas for new companies; however, there would likely have been an over all positive result.
LCA / PERM Restrictions
On May 17, 2007, the Department of Labor (DOL) issued new regulations on the permanent labor certification program which included a “Prohibition on Substitution”, meaning that an LCA cannot be transferred from one potential employee to another. The DOL further stipulated a “Time Limitation” on an LCA’s validity (See 20 CFR part 656; 72 Fed. Reg. 29704 (May 17, 2007), requiring that once approved, an LCA must be “used” or filed in support of an I-140 (immigrant visa petition) within 180 days.
Adjustment after EWI (Entry Without Inspection) or Overstay
Title 8CFR 245.10 allows the spouse or child (including step children) of an individual who directly qualifies under the section 245(i) law to receive their green card in the U.S., even if they entered after Dec. 21, 2000 and the “relationship” was established after April 30, 2001. This is an important provision that merits a review to determine whether you may be eligible for a green card based upon your existing relationship with a family member who is a direct/primary beneficiary of 245(i).
You may be 245 (i) eligible and not know it
If you were ever included in an immigration application filed by April 30, 2001, and the application was abandoned or uncompleted for any reason (i.e. employment change, divorce, death of petitioner, etc.), you may still be 245(i) eligible, and as a result be eligible to start another immigration application. Please call our office for a consultation if you think this benefit may apply to you.
Take Advantage of Opportunities
As so many aspects of immigration are continuing to become more difficult and immigration application fees are dramatically increasing, we encourage you to take advantage of opportunities to file immigration and citizenship petitions promptly. We have prepared a chart to assist you in identifying the earliest filing elegibility date for a personal benefit and for a benefit on behalf of another person in your family. Click here to view chart
For example, if you are under a non-immigrant visa status you may be eligible to apply for a green card/residency (see chart for earliest filing eligibility). There are advantages of becoming a legal permanent resident, such as legally living, studying and working in the United States, being able to petition for residency for your spouse and unmarried children under 21, and being able to travel in and out of the U.S.
Similarly, if you have been a legal permanent resident for 5 years (3 years in the case of a residency by marriage), you may be able to apply for citizenship. Being a citizen will grant you additional benefits, such as voting in government elections, being able to sponsor all immediate relatives for residency, obtaining a U.S. passport to travel, and remaining outside the U.S. without restrictions. Finally, if you are a citizen you may want to apply for a green card/residency for eligible family members.
If you are eligible to apply for any immigration benefits, such as the ones listed on our chart, we advise you to do so as soon as possible in order to obtain or provide your family quicker access to the benefits of residency and citizenship. To find out more about these application processes and the types of documents that you need for filing these applications, please consult our website at: https://www.fitzgeraldlawcompany.com/. We also have a very comprehensive frequently asked questions area which you may find very helpful.
In our experience processing time for most immigration applications have lengthened overtime, and since it is hard to predict what future changes will happen in the law, we urge you to take immediate action with regard to filing them.
You May Sue the USCIS in Certain Situations
In the past year more individuals have filed actions in the U.S. District Court to seek a resolution for a decision to a long delayed immigration petition or to have a poor or improper decision by the USCIS reviewed. This has been an effective vehicle to have a case promptly and correctly decided, and our office has been a leader in the development of innovative strategies doing this with much success. Recent congressional proposals have sought to eliminate this possibility, but they have been unsuccessful to date.
What can you do?
- Challenge USCIS processing delays in the U.S. District Court, by bringing legal actions against them
- Apply for immigration benefits for you and your family members as soon as the eligibility requirements are met (see attached chart)
- Call and write to political representatives and candidates, and
- Encourage others in your community and family to do the same.
If you have any questions about how any of the items discussed here may impact you or your family, please do not hesitate to call our office and we will be glad to assist you. We request that you inform us of any changes in your contact information (address, email or telephone numbers—it is a duty to report these to immigration if you are not a U.S. citizen), or any changes to your individual situation (i.e. changes in marital status, employment, the birth of children, etc.), as it may provide for different immigration opportunities.
We appreciate your trust and business and we wish you the best for 2008.
Desmond P. FitzGerald
and The FitzGerald & Company team