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After the expiration of a student's F-1 (or OPT) status, there is a 60 day grace period during which the student may remain in the U.S. and apply to change his or her status to H-1B or any other status for which he or she qualifies
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RESTAURANT OF THE MONTH
119 SE 1st Ave., Miami, FL 33131 (305) 371-9993 |
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VISA BULLETIN UPDATE: MAY 2011 | |
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India EB-2 Numbers Advance Two Months |
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Greetings!     
Happy Spring! Our April 2011 Newsletter features articles on the frenzy of state initiated immigration laws and a profile of the PERM process for obtaining an employment-based green card. You will find updates on the FY 2012 H-1B count, the visa bulletin, and immigration benefits for same-sex couples. Don't miss the review of Wok Town, our Restaurant of the Month, offering yummy Chinese lunch fare in downtown Miami. And finally, this month we are offering a FREE CONSULTATION for newsletter subscribers. Enjoy!
The Ratzanlaw Team
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H-1B Cap Count
FY2012 Numbers on Pace with Last Year
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Cap Type |
Cap Amount |
Petitions Filed |
Date of Last Count | |
H-1B Regular Cap |
65,000 |
7,100 |
4/15/2011 | |
H-1B Master's Exemption |
20,000 |
5,100 |
4/15/2011 |
As of April 15, 2011, U.S. Citizenship and Immigration Services (USCIS) has receipted 7,100 cap-subject H-1B petitions toward the cap of 65,000 for Fiscal Year (FY) 2012. In addition, USCIS has receipted 4,500 H-1B petitions toward the Masters exemption of 20,000.
Each year 65,000 H-1B visas are released on April 1 for an employment start date of October 1. An additional 20,000 H-1B visas are made available for foreign nationals who have earned a Masters or higher degree from a U.S. graduate school. Some employers are entirely exempt from the H-1B cap, such as institutions of higher education, non-profit research organizations, and governmental research organizations.
So far, this year's numbers are fairly consistent with the rate of H-1B filings during the economic recession of the last couple of years. In contrast, for FY 2008, the entire 65,000 H-1B cap was exhausted by April 2, 2007 and, in FY 2009, the cap was reached on April 7, 2008. If demand for H-1B numbers remains the same this year as it was for FY 2011, then H-1B visas should be available through the end of 2011.
The H-1B visa allows employers to hire foreign nationals to fill a "specialty occupation," a position that normally requires a bachelor or higher degree, or the equivalent thereof through related work experience. To work in a specialty occupation, the foreign national must meet the minimum requirements for the position by possessing a bachelor or higher degree, or its equivalent, in a specialty related to the occupation.
Learn more about the H-1B cap and who is eligible for the H-1B visa.
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Restaurant of the Month: Wok Town
Where the U.S., Israel, Colombia, and China converge to serve
delicious Chinese vegetables, rice and noodles
The restaurant: With a genuine smile and a glow in her eyes, Wok Town owner Nazly Villamizar speaks about her casual Chinese restaurant in downtown Miami. "It is simple but has soul," she says. Ms. Villamizar takes pride in Wok Town's variety of vegetarian food options, cleanliness, use of "green" products, and authentic Cantonese chef. "We have nothing frozen," she boasts as she explains how the chef labors over each and every hand-made spring roll and wanton.
Ms. Villamizar and her husband, Shai Benami, opened Wok Town together one and a half years ago. Mr. Benami is a restauranteur who has achieved great success in the creation of restaurants such as Bond Street Sushi Lounge, Miss Yip Chinese Cafe, and, most recently, the supremely popular Gigi's in Midtown Miami. Of all their restaurants, Wok Town is perfect for a casual, quick and tasty downtown lunch experience. Check out Wok Town's menu at http://www.woktown.com/.
The immigration story: Ms. Villamizar is from Bogota, Colombia, where she received a university degree in Fashion Design before coming to the United States on an F-1 student visa in 1995 to study Fashion Business at FIU. She later returned to Colombia, where she worked as a stylist and then manager for the renowned Colombian rock band, Los de Adentro. In 2000, she organized a U.S. tour for the band and entered the U.S. on a P-1 Entertainment Group visa. The tour concluded in Miami, but before she returned to Colombia, she met Mr. Benami and they fell in love and eventually married. Ms. Villamizar obtained her green card through marriage to Mr. Benami, and just last year, Ms. Villamizar became a naturalized U.S. citizen.
Born in Israel, Mr. Benami was a U.S. citizen at birth because his father was a U.S. citizen. Mr. Benami's father fled Europe to the U.S. during the Holocaust when he was 15 years old. He eventually became a naturalized U.S. citizen before moving to Israel with his wife (Mr. Benami's mother), whom he met in Amsterdam. Mr. Benami spent most of his childhood in the U.S., where he was exposed to the restaurant business at an early age as his father owned several New York New York restaurants.
So there you have it - Wok Town, where the U.S., Israel, Colombia, and China converge to serve delicious Chinese vegetables, rice and noodles.
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An Immigration Roller-Coaster for
Same Sex Couples
In February 2011, Attorney General Eric Holder announced the Obama administration will no longer defend the constitutionality of Section 3 of the Defense of Marriage Act (DOMA), defining marriage as a union between a man and a woman. However, the Obama administration vowed to continue to execute the laws, implying it would still deny green card applications filed by homosexual foreign nationals based on marriage to a U.S. citizen.
However, late last month, USCIS headquarters issued guidance to its field officers around the country to place adjudication of cases involving same-sex partners on hold. The announcement was significant, especially because foreign nationals with pending green card applications are considered to be "in a period of stay authorized by the attorney general" and have the right to employment and travel authorization. For the first time, it seemed immigration benefits might be available to same sex couples.
Unfortunately, almost immediately after the announcement, USCIS lifted its hold on the adjudication of immigration benefits for same-sex couples, and stated it would adjudicate immigration applications pursuant to the Defense of Marriage Act. In other words, it would continue to deny these cases.
Given the quick change of heart by USCIS, it is tempting to speculate there was a miscommunication amongst the ranks of USCIS and the Department of Homeland Security. In any event, the announcement perhaps provided more confirmation of the Obama administration's belief that DOMA is unconstitutional, and more hope that one day immigration benefits will be available to all married couples regardless of sexual orientation.
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PERM: A "Curly" Way to Obtain an
Employment-Based Green Card
For many, a PERM is a very curly hairstyle that was in fashion in the 80s. For today's young women, it represents a time when it was fashionable to have curly hair throughout, rather than pretending to have "naturally" straight hair with "naturally" curvy ends, a la Gisele Bundchen. But in the immigration world, PERM can mean opportunity. If navigated correctly, the PERM can be one of the easiest and fastest ways to get an employment-based green card.
PERM is short for Program Electronic Review Management process. The PERM applies to foreign nationals seeking to immigrate in the second or third employment-based preference categories. Second preference covers aliens with advanced degrees (including a bachelor's degree plus five years of experience) and aliens with exceptional abilities in the sciences, arts, or business. Third preference includes aliens with bachelor degrees, skilled workers and unskilled workers.
To begin the process, the employer files a request for a prevailing wage determination with the Department of Labor (DOL) for the particular open position. The employer must be able to pay the alien at least the prevailing wage issued by the DOL.
Next, the employer recruits for the position. All employers must open a job order for 30 days with the State Workforce Agency (SWA), run two Sunday ads in a newspaper of general circulation, and post a notice of job posting in two conspicuous locations at the actual place of employment. In addition, if the application is for a professional occupation, the employer must conduct three additional recruitment steps among a list of ten options, including advertising with a trade journal, local or ethnic newspaper, radio, and job search website.
The employer will likely receive several resumes from job applicants and must attempt to contact any qualified applicants. The employer cannot reject any candidates for the position absent a lawful job-related reason, such as the candidate is not a "U.S. worker" (typically a U.S. citizen or lawful permanent resident) or the candidate does not meet the education or experience requirements for the position. These conclusions are all summarized in a recruitment report that closely documents the correspondence between the employer and each candidate.
After the recruitment process is over, the alien is ready to proceed and file the PERM application on Form ETA-9089. The application requires the employer to describe the position, the job duties, and other specific requirements. It asks for the wage offered to the alien, which, as stated above, must be equal to or greater than the prevailing wage provided by the DOL. The employer must also indicate the recruitment methods used and the dates of each advertisement on the ETA-9089.
After the ETA-9089 is filed, the DOL will confirm (1) there is no able, willing, qualified, and available United States worker for the position; and (2) the employment of the alien will not adversely affect the wages and working conditions of similarly employed United States workers. If the employer has met the procedural requirements and the two conditions stated above are true, the DOL will certify the PERM.
Find out more about how to obtain an employment-based green card.
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State Frenzy Results from Federal Government's Failure to Pass Comprehensive Immigration Reform
For years, there has been talk about whether federal lawmakers will pass comprehensive immigration reform (CIR), i.e. one that secures our borders while also providing a path to legalization for the 11 million undocumented immigrants in the United States. But, thus far, the U.S. Congress has failed to pass any meaningful immigration reform. In fact, Congress has even failed to pass the DREAM Act, which would legalize individuals who were brought to the United States as minors and have graduated high school or earned a G.E.D. In the absence of federal action, many states are taking matters into their own hands.
It started last year with Arizona, where Governor Jan Brewer signed an enforcement-only anti-immigration bill in April 2010. Known as the "Papers, Please" law, it requires law enforcement officers who make "lawful contact" with an individual to request immigration papers if there is a "reasonable suspicion" the individual is in the country illegally. Since then, over 600 immigration bills have been introduced by state senators throughout the country. Among other states, anti-immigration bills similar to Arizona's are being considered in Georgia, Florida, Nebraska, Kentucky, Texas and South Carolina.
In addition, last month Utah Governor Gary Herbert signed a package of immigration laws which would implement an Arizona-style crackdown on illegal immigrants, but would also allow the Governor to enter into a pilot program with Mexican states to facilitate applications for migrant workers and create a guest-worker program. To initiate the guest-worker program, the Governor would have to obtain a federal waiver, which is not currently authorized under federal laws.
In Florida, last week an anti-immigration bill was passed by a committee of the Florida House of Representatives, and the full House will likely vote on the bill after the Easter/Passover break. If passed, the law will authorize law enforcement officers to check a suspect's immigration status during criminal investigations, and will enhance criminal penalties for undocumented immigrants found guilty of crimes. In addition, the law would require employers to verify the immigration status of their employees using a federal system known as E-Verify.
Through it all, the federal government has not stood completely silent. Before the Arizona law was implemented, the Obama administration brought a lawsuit against Arizona to seek an injunction of the law and declare it unconstitutional. Just last week, the 9th Circuit Court of Appeals ruled in favor of the Obama administration, ruling the law unconstitutional and upholding an injunction declared by a Federal District Court judge. This is a major victory for the federal government, which traditionally has exclusive authority over immigration laws.
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Free Consultation!
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Visit www.ratzanlaw.com and enter "APRNWS" in the Ask a Question box for a free consultation with Jacob L. Ratzan, P.A. Offer only available to newsletter subscribers. Click on " Join Our Mailing List" to subscribe to newsletter.
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Offer Expires: May 15, 2011 |
Disclaimer: The information provided in this newsletter is offered purely for informational purposes. It is not intended to create or promote an attorney-client relationship, and does not constitute and should not be relied upon as legal advice. We intend to make every attempt to keep this information current. We do not promise or guarantee, however, that the information is correct, complete or up-to-date, and readers should not act based upon this information without seeking professional counsel from a licensed attorney. Transmission of information from this newsletter is not intended to create, and its receipt does not constitute, an attorney-client relationship with Jacob L. Ratzan, P.A. or any of its individual attorneys or personnel.
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