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USCIS Updates Information on FY2010 H-1B Petition Filings

Citizenship and Immigration Services (USCIS) today
announced information on the number of filings for H-1B petitions for the
fiscal year 2010 program.

USCIS has received approximately 45,500 H-1B petitions counting toward
the Congressionally-mandated 65,000 cap. The agency continues to
accept petitions subject to the general cap.

Additionally, the agency has received approximately 20,000 petitions for
aliens with advanced degrees; however, we continue to accept advanced
degree petitions since experience has shown that not all petitions received
are approvable. Congress mandated that the first 20,000 of these types of
petitions are exempt from any fiscal year cap on available H-1B visas.   

For cases filed for premium processing during the initial five-day filing
window, the 15-day premium processing period began April 7. For cases
filed for premium processing after the filing window, the premium
processing period begins on the date USCIS takes physical possession of
the petition.

USCIS Announces New Requirements for Hiring H-1B Foreign Workers
Changes Apply to Companies that Receive TARP Funding

$1.2 Million Citizenship Grant Program
"U.S. Citizenship and Immigration Services (USCIS) announced today that
a competitive grant program is being offered through for a $1.2
million grant program to support citizenship preparation programs for legal
permanent residents." USCIS, Mar. 12, 2009.

11 indicted in H-1B fraud case
"This investigation involves companies that sponsor primarily H-1B non-
immigrants, or temporary workers in specialty occupations that require
particular expertise. The companies that are the subject of this
investigation have asserted that the foreign workers have been brought to
the U.S. to fill existing vacancies. However, the companies allegedly have
not always had jobs available for these workers, thereby placing them in
non-pay status after they arrive in the United States. In some cases, the
foreign workers have allegedly been placed in jobs and locations not
previously certified by the Department of Labor, displacing qualified
American workers and violating prevailing wage laws. The companies and
foreign workers have allegedly submitted false statements and documents
in support of their visa petitions." USDOJ, Feb. 12, 2009.

Non-Minister Category of Special Immigrant Religious Workers To
Expire On March 6, 2009
WASHINGTON—U.S. Citizenship and Immigration Services (USCIS)
reminds its customers that authorization for the non-minister special
immigrant religious worker program will expire on March 6, 2009.   
Individuals applying under the non-minister category of the program,
including family members, must either adjust status to permanent resident
or be admitted with an immigrant visa before March 6, 2009.
The expiring category covers special immigrant religious workers in
professional or
non-professional capacities within a religious vocation or occupation, but
does not include those workers entering the United States solely to carry
on the vocation of a minister of a religious denomination.  The expiration
date also applies to spouses and children of these non-minister workers
who are accompanying the non-minister worker, or who will ‘follow to join’.
USCIS continues to receive and process Petitions for Amerasian, Widow
(er), or Special Immigrant (Form I-360) for those immigrant religious
workers affected by the upcoming expiration date.   USCIS is also, to the
extent that it can, expeditiously processing Applications to Register
Permanent Residence or Adjust Status (Form I-485), based on approved
I-360 petitions for non-minister special immigrant religious workers.  The
applicant requesting ‘following to join’ on Application for Action on an
Approved Application or Petition (I-824) whose basis for the adjustment
was an approved I-360 petition for a non-minister category (SR) or who is
requesting an approved I-360 SR petition to the Department of State’s
National Visa Center (NVC), may request expedited processing of Form I-
Absent a Congressional extension of the expiration date, USCIS will,
beginning on March 6, 2009, suspend further processing of any pending
Form I-360, Form I-485, and Form I-824 affected by the expiration date until
further notice.   Also, unless or until Congress extends the expiration date,
USCIS will reject Form I-360 petitions, Form I-485 and Form I-824
applications filed on or after March 6, 2009 that are based on the expired

Immigration reform likely to happen this fall
"Comprehensive immigration reform could be introduced by Congress this
fall." OJournal, Jan. 30, 2009.

E-Verify contractor rule delayed again
"The Obama administration has postponed until May a rule that would
require federal contractors to check if newly hired employees are not
undocumented immigrants." NextGov, Jan. 30, 2009.

USCIS Reaches H-2B Cap for Second Half of Fiscal Year 2009
WASHINGTON—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 2009 (FY2009).  USCIS is hereby notifying the public that Jan. 7, 2009
was the “final receipt date” for new H-2B worker petitions requesting
employment start dates prior to October 1, 2009.  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 FY2009. USCIS will reject petitions for new H-2B workers seeking
employment start dates prior to October 1, 2009 that arrive after Jan. 7,
2009. If deemed necessary, USCIS may apply a computer-generated
random selection process to all petitions that are subject to the cap and
received on Jan. 7, 2009 in order 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:
*Extend the stay of a current H-2B worker in the United States;
*Change the terms of employment for current H-2B workers and extend
their stay; or
*Allow current H-2B workers to change or add employers and extend their

100,000 Employers Use E-Verify Program
January 8, 2009 - WASHINGTON—U.S. Citizenship and Immigration
Services (USCIS) announced today that more than 100,000 employers
have signed up to participate in E-Verify, a free, easy to use online system
that equips participating employers with the tools to quickly and effectively
verify the employment eligibility of newly-hired employees.

Do Not Be a Victim of Immigration Fraud
“Notarios,” Visa Consultants, and Immigration Consultants Are Not
Attorneys. EOIR, Nov. 20, 2008.

Employers can no longer use expired documents in hiring
"Beginning in February, employers in the United States will not be allowed
to use expired documents to verify workers' employment eligibility.", Dec. 17, 2008.

International Migrants Day: 18 December
"On 4 December 2000, the General Assembly, taking into account the large
and increasing number of migrants in the world, proclaimed 18 December
International Migrants Day (resolution 55/93)."

DHS delays federal contractor E-Verify rule
"The Obama administration has postponed until May 21 the
implementation of a new rule that requires federal contractors to use the E-
Verify system for checking the eligibility of their employees to work in the U.
S. The rule originally was scheduled to go into effect Jan. 15, but the
Department of Homeland Security delayed the implementation date until
Feb. 20 after the U.S. Chamber of Commerce and other groups filed a
lawsuit aimed at blocking the rule.", Jan. 28, 2009.

Layoff news won't deter techs on H-1B
"The U.S H-1B program offers temporary work visas to foreign nationals
who are considered by the U.S. Citizenship & Immigration Services to be
qualified for a "specialty occupation." Companies argue that they need
access to foreign-born college graduates with coveted technical skills.
However, granting visas to foreign workers often is a controversial step.
The argument gets even louder when the ranks of American jobless start
swelling." Charles Cooper, Jan. 26, 2009.

Upgraded Biometric Technology Facilitates Visitors' Entry to the United
"The U.S. Department of Homeland Security (DHS) announced today that
upgraded biometric technology is in place at major U.S. ports of entry, and
they enter the United States." DHS, Jan. 15, 2009.

"USCIS will begin administering a redesigned (new) naturalization test on
October 1, 2008. The following guidelines will determine whether you will
take the current test or the redesigned (new) test."

Free Web Site Launched to Help Immigrants Learn English
"The U.S. Department of Education today launched U.S.A. Learns, a free
Web site to help immigrants learn English. The Web site, which is located
at, provides approximately 11 million adults who have
low levels of English proficiency with easily accessible and free English
language training."
by Atty. German Castillo

On April 1, the U.S. Department of Citizenship and Immigration
Services (USCIS) will start accepting H-1B applications for the Fiscal
Year 2009.  There are only 65,000 visas generally available.  Those
visas are assigned to the applications in the order received.  So
logically, those wishing to file should act sooner rather than later.  

For those not familiar with H-1B requirements, a brief primer will be

Numerical Limitations: The first issue to consider is the availability of
an H-1B visa number.  For those extending their H-1B status,
transferring to another H-1B employer, or filing for a second
concurrent H-1B employer, the visa has generally already been
allocated, so quotas are not an issue.   There are some other
exemptions to the yearly first-time H-1B numerical limitations, and
legal advise should be sought be-fore concluding first-time H-1B is no
longer an option—particularly for those intending to work for colleges
and for those having earned a master’s degree from a U.S. university.

Job Requirements: The second issue to consider when seeking H-1B
work authorization is whether the prospective job can be classified as
a “specialty occupation.”  Specialty occupation is a term of art and
open to much discretion by the Service officers adjudicating an H-1B
application.  Experience and attention to the overall facts of a case
serve as the best indicators for whether a job falls within the definition
of a “specialty occupation.”  

Qualified H-1B Persons: The third issue to consider is whether the
person seeking H-1B employment is qualified for that status.  
Generally, this requirement is straightforward to satisfy.  If the
prospective employee has at least a U.S. Bachelor degree or its
equivalent in the discipline or narrow range of disciplines that are
required for entry in the specialty occupation, then generally the
prospective employee is qualified for H-1B.  However, if the specialty
occupation also requires licensing (usually as determined by state
laws), then such licensing will have to be obtained before being
granted H-1B status.

Labor Condition Applications: The prospective H-1B employer must be
ready to pay the prevailing wage in the specialty occupation as
defined for the geographic employment location.  

Timing Restrictions: Grant of H-1B status is given in maximum
increments of three years.  Total maximum H-1B status is generally six
years.  As common to most rules, exceptions may apply.  

A word of caution is in order for first time H-1B filers.  The mere timely
filing of an H-1B application does not guarantee ultimate approval for
change of status even if all the above elements are met.  Status must
be and no status gap can exist.  This is a critical issue often
overlooked in the rush to file.

Immigration Questions and Answers
by atty. german castillo

QUESTION: I have an E-2 visa, can I file for a green card?
ANSWER:  An E-2 visa like all other non-immigrant visas (e.g., H-1B, L-
1A, F-1) only confers the right to a temporary stay in the United
States.  To obtain the so-called green card, a proper petition must be
filed and approved.  For those on E-2 status, the most common
applications for green card are made through family petitions by
relatives and employment petitions by employers using the labor
certification process.  Additionally, if the E-2 enterprise has the
requisite ownership connection with the E-2 employees’ overseas
employer, a multinational executive petition (EB-1) might be
possible—this subject was discussed in some detail in a previous

QUESTION: I just got divorced and I have my conditional green card.  
How can I get my conditional green card removed?
ANSWER:  Divorced aliens, like all conditional permanent resident
aliens, must take specific steps to remove the condition on their
permanent residency—the condition of course is the two-year limited
duration of their permanent residency.  Normally, the alien and spouse
petition jointly to remove the condition during the 90-day period
ending on the second anniversary of the grant of conditional
However, if the alien is divorced, the divorced alien can file for
waiver of the joint filing requirement simultaneously with the request
for removal of condition.  The emphasis is on “divorced.”  Mere
separation would not rise to the level of divorce.
Failure to file for removal of condition will likely result in loss of
permanent residency.
Whether divorced or not, the removal of condition is premised on
proving that the marriage was entered into in good faith as
demonstrated by conduct during the two year conditional period.

QUESTION: I have a student visa.  Can I work?
ANSWER:  Generally the F visa does not entitle the holder to work but
rather to attend school.  However, during the course of their studies,
there are three general exceptions: (a) On-Campus Employment That
Will Not Displace a U.S. resident or Pursuant to the Terms of a
Scholarship, Fellowship, Assistantship, or Postdoctoral Appointment
- The school will generally decide on whether the work displaces U.S.
residents and the work is generally limited to 20 hours a week. (b) Off-
Campus Curricular Practical Training
- NOTE:  12 months or more of Curricular Practical Training makes the
student ineligible for future OPT
(c) Off-Campus Employment Authorized by the USCIS Because of
Unforeseen Economic Necessity
An Employment Authorization Document will have to be obtained
from the Immigration Services and it will have to be shown, among
other things, that the work is needed because of “severe economic
hardship caused by unforeseen circumstances beyond the student’s

QUESTION: I would like to visit my family in my home country?  I have a
pending green card filed for me.  Can I travel?
ANSWER:  As discussed above, an application for Advance Parole
can be made but travel is not advisable if applicant has more than six
months of unauthorized stay.

QUESTION: I have H-1B approved in the US.  My attorney advised me to
get my H-1B visa from my home country.  When I was in the consular
office, the officer denied my H-1B and my entry back to the U.S? Can I
file for an appeal?

ANSWER:  From a practical point of view there really is no appeal or
review procedure.  Immigration law delegates the responsibility for
issuance or refusal of visas to consular officers overseas. They have
the final say on all visa cases. By regulation the U.S. Department of
State has authority to review consular decisions, but this authority is
limited to the interpretation of law, as contrasted to determinations
of facts.  Since almost all visa denials are premised on factual
determinations, those denials fall exclusively within the authority of
consular officers at the Foreign Service posts.

If the denial left room for the introduction of new evidence, then it is
advisable that the denial be reviewed with legal counsel and a
response with additional evidence be made.  If the denial was final, it
might still be possible to reapply when a stronger case can be

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