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Rob’s primary area of practice is immigration and nationality law. He has extensive experience in all aspects of business and family immigration procedures.

The State Department released the January 2013 Visa Bulletin last week. Among the items of interest was the disappointing news that the visa cut-off date for the EB-2 category for India remains September 1, 2004, for the fourth straight month since the new fiscal year began in October. This means that cases with a priority date on or before the cut-off date can be processed, all other applications must wait for an available visa. The visa cut-off date for the EB-3 category for India again showed a slight movement of one week to November 8, 2002, from the previous month’s cut-off date of November 1, 2002. Since the beginning of the fiscal year, that’s a movement of a whole month for Indian born applicants in the EB-3 category.

(For those still confused about the visa cut-off dates: the foreign employee’s priority date must be prior to the visa cut-off date published in the monthly Visa Bulletin for the employee to be able to file an application to adjust status, the final step in the process for permanent residence. If the application to adjust status has already been filed, it cannot be approved until the posted cut-off date reaches the individual’s priority date. The priority date is set by the filing date of the PERM application or the immigrant visa petition, whichever comes first.)

The problem for Indian born applicants is the per country limitation. The law limits each country to 7% of the total applicants if a classification is oversubscribed, meaning that there are more applicants in line than the law allows in any one year. Congress set the limit for employment-based visas at 140,000 in 1990, and has not updated the law since then. Because this limit includes not only the employees being sponsored, but each of their family members, the sponsored immigrant requires an average of 2.3 visas, further reducing the availability of visas. The allocation for the EB-2 and EB-3 categories are 40,040 each, and because both have been oversubscribed, the per country limitation has been effective since April 2000. This means that there are 2,803 (7% of 40,040) visas available for Indian born applicants in each of the two employment categories.


Continue Reading Will EB-3 Catch Up to EB-2 for India?

On Aug. 13, 2012, the U.S. Citizenship and Immigration Services (USCIS) announced that the most recent version of Form I-9 remains valid notwithstanding the OMB expiration date of Aug. 31, 2012 (located in the upper right hand corner on the form). Until further notice, the current form, which was last revised on Aug. 7, 2009 (located

The Supreme Court has issued its long awaited decision on the constitutionality of the Arizona Immigration law known as SB 1070. The case came before the Court following a decision by the lower courts to grant a preliminary injunction enjoining the application of four provisions of the Arizona law.
Continue Reading The Supreme Court Provides a Mixed Review of the Arizona Immigration Laws

On September 12, 2011, U.S. Citizenship and Immigration Services changed their long standing practice for the distribution of original approval notices for petitions and applications seeking immigration benefits, including the change or extension of nonimmigrant stay. Notices have previously been sent to counsel of record, but now are sent directly to the petitioner or applicant. Employers and individuals have immediately noted several unattended consequences of this change in long-standing policy.

Many approval notices include a revised or extended Form I-94, Arrival and Departure Record. This original document advises foreign nationals of their current nonimmigrant status and the date on which that status expires. Many governmental agencies, including the state motor vehicle departments, will not provide services to foreign nationals (for example, a driver’s license) unless the original document is provided. The distribution to the petitioner, usually the employer, complicates this process.


Continue Reading USCIS Change in Mailing Procedures Has Substantive Impact upon Employers and Foreign National Employees

Today, the Justice Department announced that it has filed a lawsuit against Farmland Foods, Inc., a major producer of pork products based in Kansas. The lawsuit, which will be heard by an Administrative Law Judge, alleges that the employer engaged in unlawful discriminatory acts by requiring foreign born and non-citizen employees to provide additional documentation of employment authorization beyond what was required by law and the documents required from U.S. citizens. While we have not yet heard the full facts or Farmland Food’s position, the lawsuit highlights the fine line employers must walk to satisfy both the obligation to verify employment eligibility for all employees, and avoid unfair discrimination against employees born in other countries or with foreign sounding names.


Continue Reading Department of Justice Complaint Against Farmland Foods Highlights Fine Line Employers Must Walk In Evaluating Employment Authorization Documents