THE OH LAW FIRM

Dedicated Professionals in Immigration Law for 24 Years

Reported by Matthew Oh, Esquire.

(03/01/04 - 09/14/04)

The Oh Law Firm and its Lawyers are not responsible for reliance by the reader on this information as each individual situation may be unique and different. The readers are advised to seek legal counsel from a qualified immigration attorney. The information stated here is subject to change.

The posting in the Breaking News requires visitors' some level of knowledge of immigration issues. Reading one posting without closely following previous postings will result in reading it out of context. The laws, policies, and practices of agencies are constantly changing and people should be careful in reading old postings. People should not take the news in this page as a legal advice. The purpose of Breaking News is to feed into the immigrant communities up to the minute news, especially inside information of agencies' decision making. Just like any other news reporting, the life span of the news can be very short. This is not a text book or a law book. It is a "news report." This site will welcome "only" those visitors who follow the news reports everyday just like the subscribers of daily newspapers. The sole purpose of this site is to serve the immigrant communities and not immigration law professionals...

Current Page[08/01/2008 - Present]/Archive XVII[03/31/2008 - 07/31/2008]Archive XVI[08/01/2007 - 03/31/2008/Archive XV [04/30/2007 - 07/31/2007]/Archive XIV[06/15/2006 - 03/31/2007]Archive XIII [12/01/05 - 06/14/06]/ Archive XII [08/01/05 - 11/30/05]/Archive XI [04/30/05 - 07/31/05

09/14/2004: Machine-Readable Passport Requirement & One-Time Waiver Possibility After 10/26/2004

• For most of the Visa Waiver Program country travellers, they should carry a machine-readable passport to enter the U.S. without a visa from October 26, 2004. However, according to the announcement of the State Department, on a case-by-case basis, immigration officers at ports of entry may give a one-time waiver to those carrying non-machine-readable passports. Read on.
  

09/14/2004: Challenging Task of Nonimmigrant Visa Stamping After State Dept Termination of Visa Revalidation on 07/16/2004

• Ever since the U.S. Department of State terminated reissuance of employment-based nonimmigrant visas within the United States, these nonimmigrants have been facing a serious challenge in obtaining a new visa stamp or renewal of the visa stamp at one of the visa posts because the termination of the visa reissuance program added a substantial workloads to the visa posts throughout the world and visa application waiting times became longer and visa application tended to be riskier because of the heighted scrutiny in the visa processing.
• Under the circumstances, these nonimmigrants have a very limited number of options:
  • No Overseas Trip: Obviously, people do not have to face the visa application problem inasmuch as they do not make a trip outside of the U.S. after the expiration of their current visa stamps in their passports. This option became real for a number of nonimmigrants from certain parts of the world, particularly the Arab nations.
  • Third Country National Consular Processing in Canada and Mexico for Certain Nonimmigrants: The caseloads for these TCN nationals have increased substantially ever since the termination of visa revalidation program and those who have chances of obtaining the nonimmigrant visa stamp through this process tend to be highly selective and limited in numbers. The general rules of thumb are:
    • He/she should not be a national of one of those 26 countries, mostly muslim nations. The border posts usually decline to issue the visas to such TCN.
    • He/she should not have overstayed or otherwise violated the immigration laws in the United States.
    • He/she should not have entered the U.S. on a visitor's visa and changed to one of the employment-based nonimmigrant status in the U.S.
    • He/she would have a better chance to obtain a visa if he/she seeks visa renewal rather than a new classification of visa.
    • He/she has obtained a college degree in the U.S. rather than from a college in a foreign country. This is particularly true with the South Asians. The chance of denial of visa issuance increases if one has only a foreign college degree.
    • He/she should attempt the TCN visa application only during the period when he/she has a valid nonimmigrant visa so that he/she can return to the U.S. even after the visa issuance is denied by the border posts.
    • If the visa stamp has already expired, he/she may want to wait until he/she obtains Advance Parole if he/she started the green card application process so that he/she can return to the U.S. even after the visa issuance is denied.
    • Most importantly, he/she should not venture unless the protracted visa processing would not jeopardize his/her employment in the U.S. or can cause a damage to the employer's business.
  • Visa Processing at the Visa Posts at the Home Country or Residence Visa Posts: Because of the biometric visa requirement, it becomes mandatory for their appearacne or presence in the country of residence or home. Applying for a visa at a country of residence other than their home country is a TCN process and they should check with each visa post the definition and requirement for "resident" for the purpose of the visa processing. A number of visa posts are liberal in processing of nonimmigrant visas for those who work in their countries unlike the application for immigrant visas. Even for this processing, people should check the foregoing list for the TCN processing to assure that they can return to the U.S. in the event that they experience delays and denials of visa issuance.
• Nowadays, it is extremely risky for anyone to venture the visa application process without seeking legal counsel. People should not act on any internet information, including this web site postings, to handle one's matter on one's understanding of the laws and rules.

09/14/2004: DHS/ICE Deported Over 100,000 Criminal Aliens in One and a Half Years

• The ICE was created on March 1, 2003 as part of the DHS under the Homeland Security Act, and report indicates that since its creation, ICE has deported 100,500 criminal aliens and made 11,000 arrests through its National Fugitive Operations Program. Wow. Read on.

09/13/2004: Social Security Final Rule of Evidentiary Requirement for F-1 Alien SSN Applications

• The Social Security Administration published a final rule this morning changing the rule for issuing SSN to F-1 aliens requiring certain evidence when the alien is currently not employed. This final rule will take effect on October 13, 2004. Read on.

09/13/2004: DV-2006 Immigration Lottery Rule Due Release Soon

• FY 2006 starts from October 1, 2005 and the FY 2006 immigration lottery registration is expected to commence before the end of this year. The rule for DV-2006 was expected to be published in August 2004 but has been experiencing some delays in the release. It is anticipated that the rule will be published soon. Please stay tuned to this web site.

09/13/2004: 2003 Year Book of Immigration Statistics as Published 09/2004

• This publication is important for the immigration researchers, writers, academicians, and policy makers. This is a very large publication in excess of online 200 pages.

09/12/2004: Continuum of DOL L/C - USCIS 140/485 - Visa Number (Priority Dates) and Need for Agencies' Coordination

• In the immigration proceedings, three agencies (Department of Labor, USCIS, and State Department) are closely interrelated and the workloads of each agency are affected by the policies and practices of the other related sister/brother agencies. It is like a stream of water flowing down in the valley. As more labor certification applications are approved in a shorter period of time, the increased volumes of I-140 petitions and I-485 applications will be dumped to the USCIS. Additionally, depending on the processing speed of I-140 petition or I-485 applications by the USCIS, it will add the workloads to the visa posts for immigrant visa applications, and eventually add pressures on the available immigrant visa numbers due to the current immigrant quota system. It thus appears that it is critically important that these three agencies work closely together and coordinate their policies and practice such that one agency would not create a mess with the related agency down the stream. For instance, both the DOL and USCIS initiated the reengineering of their systems and adjudication processes: DOL devised the backlog reduction plan and PERM program and the USCIS initiated electronic processing system and other changes including concurrent filing and concurrent adjudications as being tested in the form of so-called PILOT Programs.
• Imagine the opening of flood gate if the DOL launched backlog reduction (300,000 cases) and PERM Program (21-day adjudication of labor certification applications) as scheduled under the DOL's 5-Year Strategic Plan of 1998. Had there not been 9/11 and its aftermath, the immigration agency probably could have met the challenge coming from this sister/brother agency's strategic plan for backlog reduction, even though we do not have any solid evidence that there was such coordination of policies between the Legacy INS and the U.S. Department of Labor. The 9/11 event changed everything. Unlike the labor certification proceedings, the USCIS' immigration proceedings are constrained by the priority task and mission of homeland security and the adjudication of I-485 applications can not be accomplished in such a rapid pace because of the political pressure for immigration "enforcement" and "security" assurance. The 9/11 has already created mountains of backlogs for the USCIS and things have been moving in a snail pace because of the political environment. Is the USCIS ready to deal with the flood of water flowing down from the U.S. Department of Labor, when it could not even handle its own existing backlog problems? Consumers may want to know what kind of efforts these two agencies are undertaking to coordinate their policies and practices.
• President promised 5-year reduction program within five years. It is an open question how this could be achieved when the homeland security work within the Administration is probably completed less than a half to meet the mandate under the Homeland Security Act. Immigration proceedings are perceived by the population and the politics in this country as the focal point for protection of homeland security, and the speed of adjudications as affected by the security protection needs is expected to remain with the immigration system for a while. Granted, however, that the five-year plan is achievable and indeed achieve in 2006. It will indeed dry up the immigrant visa numbers accross the board including family-based as well as employment-based categories. The quota system is going to be so clogged that this country's immigration system may collapse. On top of this, the government has been talking about so-called Temporary Guest Worker Program.
• Probably this country needs an entity at the higher level to review and coordinate the immigration policies and issues. The entity can be a part of the White House or legislative branch. This country lacks clearly vision and direction when it comes to the immigration. Everybody is kicking around "immigration" soccer ball sporatically towards all directions without a long-term national plan. Maybe, the year 2005 should be set aside and marked as a year for national forum for discussion and concensus for this country's direction for immigration without being tainted by election politics and party politics and agenda.

09/11/2004: Immigration Service Functions, Private Competition, and Issue of Government Immunity from Tort Liability

• Ongoing privatization of certain immigration services such as contact representatives or information officers functions is legally premised on the theory that the functions are not "government" or "sovereign" functions and rather "commercial" or "proprietary" functions which are analogous to the services provided by any private enterprises. Assuming that such definition is indeed correct in terms of the common law principles and the federal tort immunity statutes, it is the time for the immigration law community to look into very carefully whether or not the USCIS should be liable for the negligence and wrongdoings committed by its private contractors, not to mention the liability of such conduct for the private contractors themselves. At the level of local municipality, it has been common law principle that when a government agency conducts a "governmental" or "sovereign" functions, the government is immune from the tort liability, while if the same government agency conducts a "proprietary" functions operated from the enterprenial revenue from the service charges, they are considered not any different from any private party or business and are liable for the negligence and torts. However, unlike the local governments, the federal government and agency are regulated by the statutes rather than common laws, and the experts in this area of the law should start examining the state of current laws such that the consumers of the immigration services are protected from the tortious acts involving the services provided by the contractors. The immigration law community in the United States has a very respected and strong arm, called AILF, which is associated with the AILA, which is sufficiently equipped to answer this question and which can also guide the federal agencies in reviewing its privatization movement. Without doubt, the OMB must have completed this study and the AILF is strongly urged to explore this important issue.

09/11/2004: State of Law on Revocability of Approved I-140 Petition

• Under the Section 1155 of the immigration statute (INA), USCIS cannot revoke the approved I-140 petition unless the following conditions are met: (1) It has a good and sufficient evidence; (2) Notice of revocation is mailed to the petitioner (employer) and communicated to the alien beneficiary by the U.S. Secretary of State (3) before the alien commences the journey to the United States. Accordingly, the USCIS can revoke the approved I-140 petitions if the alien still resides outside of the U.S. by giving notice before the alien departs for the U.S.
• Question remains "what happens if the alien is already in the United States?" At this time, there are two separate laws depending on the jurisdiction of the petitioner. In all jurisdictions (states) other than New York, Connecticut, and Vermont, the governing rule is the decision of the Board of Immigration Appeals, called In re Vilos, 12 I&N Dec 61 (BIA 1967), which states that the agency can revoke the approved I-140 petition if the agency have given a notice of revocation even if the alien is already in the U.S. on the theory that otherwise the approved I-140 for the aliens who were already in the U.S. would be irrevocable for good.
• However, this BIA decision has no effect on the approved I-140 petitions for those alien beneficiaries who are already in the U.S. because of the decision of the U.S. Court of Appeals in the Second Circuit that covers New York, Connecticut, and Vermont on August 2, 2004 that for the aliens who are already in the United States, unless such notice was already given before the alien entered the U.S., the approved I-140 petition is not revocable. The name of the case is Firstland International, Inc. vs USINS.
• There are two separate rules or laws because under the laws of the United States, the decision of the U.S. Court of Appears in a given circuit binds only the states within its jurisdiction. Accordingly, until the U.S. Court of Appeals in other jurdisctions agree with the Second Circuit in the future litigations, the law that will govern the USCIS in revocation of the approved I-140 petition will remain the BIA decision, In re Vilos from the perspectives of the USCIS.
• Unfair to the people residing in the states other than New York, Connecticut, and Vermont? True, but that is the law. This has been a way of life in this country in legal business all along since in lots of cases, the courts in different jurisdictions have rarely agreed each other when it comes to the hair-thin specific rules and laws!

09/10/2004: Administrative Appeals Office (AAO) Processing Times of 09/07/2004

• Courtesy of AILA

09/10/2004: Nebraska Service Center Processing Times of 09/01/2004

• Courtesy of AILA

09/10/2004: Update on the Plastic Green Card Issuance for the Local District Office I-485 Proceedings

• For the cases which were interviewed and approved on September 7, 2004, the first day of the new procedure, the applicants received the Approval Notice from the NBC in the mail today, September 10, 2004. The Approval Notice states that the plastic card wll be delivered not in a week but in three weeks. Approval Notice indicates that the Notice Date is September 8, 2004, which is the date when the applicant became a lawful permanent resident.

09/10/2004: Minnesota InfoPass and Walk-Ins Access Schedule

• Minnesota USCIS District has announced that the office will cease the service for walk-ins effective October 8, 2004 and only emergency services may be provided to certain limited people. Until October 8, 2004, people may still appear at the District Office for the services without InfoPass appointment if they are willing to wait in the long line. The walk-ins will be accessible to the officers only after the InfoPass appointees are served first.
• For those who do not have access to the internet, the State libraries and the USCIS suboffices in this District reportedly have agreed to assist them with the InfoPass appointment.

09/10/2004: Separate Schools for Immigrants - For Whom the Bell Tolls?

• Report indicates that Houston is about to pass a resolution to open separate schools for immigrant children. Schools elsewhere in the country have also experimented with similar ideas, including in New York and Chicago, which traditionally have had flexible high school schedules for immigrants, according to Lou Desipio, an associate political science professor who specializes in immigrant issues at the University of California at Irvine.
• This raises one serious question: Who this segregated school is intended to serve - Is that the mainstream children or immigrant children? The immigrant children are those who need a fast assimilation to the mainstream for the best interest of the mainstream society as well as for the immigrant children themselves. Textbook learning should be considered a minor part of learning at the elementary schools. Sharing lives and social skills with the classmates are important part of the purpose of education at the schools. Education of immigrant children in a segregated school will delay the assimilation process and deprive the children of opportunity to learn English and culture fast through the mainstream classmates. The motive and intent of this move are indeed "suspect." Sugar coating should not fool the truth. If the truth is to raise the rating of schools and mainstream children education for political purposes, the truth should be put to the test of the political process rather than fooling the process by hypocracy. The Brown v. Board of Education decision is still the law of the land and should not be circumvented. It reminds this reporter of personal painful experience as an immigrant dealing with a school that tried to treat his children separate from other children in the class. His children were born in the U.S. and did not even know how to speak or understand the parents language. His son one day came home tellin him humiliation he experienced when he was taken out of the classes to a special classes for alleged "foreign" students to teach culture and English. Uh? English? He was perceived different by his classmates for the first time. At the protest of the reporter, the school immediately ceased the discrimination for his son. Society should not abuse the immigrant children and trapped them in the catch 20/20 situation. On the one hand, some attempt to sugar coat this type of scheme with the argument that it is the best interest for the immigrant children to preserve their language and culture, and turning around, accuse the immigrant children for their failure to live as a person of mainstream society and becoming a burden. Immigration is part of the integral process of this nation owned by the "people" whoever they are and no matter what color and origin they possess. People should not mistake about it. The parents and the immigrant children should have the same right of choice and their decision just as anyone else. Carving out a segment of the population depriving them of the right to choice is outright discrimination which should not be condoned under the Constitution of this great nation. Simply, it is unconsciounable and unacceptable!

09/09/2004: GAO Study/Report to the Congress on Biometric Visa and Required Actions Between the State Dept and DHS

• Today, the GAO released two reports on the ongoing change of visa issuance process involving biometric identifiers. According to the reports, the 201 visa posts have already installed biometric visa processing equipments and remaining 6 visa posts are also expected to complete installation of such equipments by September 30, 2004. Accordingly, the 207 visa posts worldwide will meet the legislative deadline to issue biometric visas by October 26, 2004.
• However, the reports show two concerns: One is insufficient coordinattion between the Department of State and the DHS to guide biometric visa program and its related programs between the two departments. Second is lack of guidance for the visa posts' implementation of the biometric visa processing.
• As we reported on August 29, 2004, the Inspector General of DHS also found and expressed similar concerns in its August 2004 report. Interested readers may review the following reports:
  • Joint, Coordinated Actions by State and DHS Needed to Guide Biometirc Visas and Related Programs, GAO 09/09/2004 Report (1)
  • State Department Rooout of Biometric Visas on Schedule, But Guidance Is Lagging, GAO 09/09/2004 Report (2)

09/09/2004: Senate Voted to Halt USCIS Contracting Immigration Services Positions to Private Contractors

• The House already passed the DHS appropriation bill to take away from the USCIS funding on private contracting of government jobs including contact representatives and information officers. Yesterday, the Senate voted a similar appropriation bill to halt the USCIS from contracting out of the government function to private contractors. The White House strongly pushes the privatization of the USCIS jobs based on the OMB recommendation and threatens to veto such Congressional bill. Readers, you be the judge of it based on your experience! Read on.

09/09/2004: Advance Parole and Unemployed EB-485 Waiters

• The Advance Parole is not a guarantee to return to the U.S. for certain I-485 waiters. For instance, those who are subject to the 3-year bar or 10-year bar are unable to return to the U.S. because of such a bar from returning to the U.S. Otherwise, people travelling on Advance Parole believed that their return to the U.S. would be guaranteed if they carried I-485 Receipt Notice, EAD, and probably I-140 Receipt Notice or Approval Notice. However, a question has been raised as to whether an EB-485 applicant travelling on Advance Parole can be denied of their return to the U.S. if the CBP officers at the port of entry learns that the traveller is no longer working for the green card sponsoring employer. This question involves two factual situations. One is the alien was laid off before he/she reached 180 days of filing. The second situation involes the alien who lost job after 180 days of filing but no new same or similar job. Probably the third situation involes the alien who changed the job after 180 days.
• It is obvious that in the third situation, clearly the CBP officers would have no authority under the law to deny admission under the AC 21 legislation, even though some inspectors may question the admissibility and place the traveller to go through the secondary inspection. However, the troublesome questions involve those travellers falling under situation one or two. The issue became tricky and complex because of the division of functions between the USCIS and the CBP. Assumedly, Advance Parole should remain valid unless it is revoked. The Advance Parole can be revoked if the I-485 is denied. Adjudication of I-485 is the jurisdiction of the USCIS and not the jurisdiction of CBP. However, the travellers with the Advance Parole can face some CBP officers who believe that they have authority to deny the I-485 in the process of immigration inspection and by denying the I-485, they can deny admission of the travellers on the ground that the Advance Parole is no longer valid.
• Nowadays, anything can happen when it comes to immigration business. The best policy may be: (1) Always travel with I-485 Receipt Notice, I-140 Approval Notice or Receipt Notice, and Employer letter when they travel on Advance Parole to avoid difficulty with some inspectors at the port of entry. (2) Those who are no longer employed by the I-140 petitioning employer, particularly those who changed employment before 180 days of filing or before I-140 is approved, may review carefully the risk involved in returning to the U.S. and rethink travelling on Advance Parole. For these people, if they have a valid H-1B or L-1 visa, they may rather travel on a H-1B visa or L-1 visa which is sponsored by the new employer. If they are completely unemployed, they may refrain from travelling on either a visa or an advance parole.

09/08/2004: Five(5) U.S. Immigration Officers Stationed at Warsaw Airport to Prescreen U.S. Bound Passengers to Chicago & New York Airports

• Today, the DHS/CBP and the Polish Government signed and started implementing international agreement, named IMMIGRATION ADVISORY PROGRAM (IAP), under which the five U.S. CBP officials started prescreening the Chicago/New York bound airlines from Warsaw, Poland for admissibility of the passengers to the U.S. The difference of this IAP from the Preflight Inspection (PFI) Program in Canada is that the CBP officials do not have legal authority to perform preflight "inspection" to admit or deny admission of the passenger before departure and their roles will be limited to providing advices to the passengers of likelihood of admission or denial. Accordingly, the legal process of immigration inspection will be continuously conducted by the CBP officials at the port of entry in the United States.
• The CBP Commissioner has been negotiating with other countries for a similar agreement, but the expansion of this program to other countries will not be launched for the next three months during when the CBP will evaluate and assess the success of the IAP. For the full text of the announcement, please click here.

09/08/2004: Immigration Courts to Require Frontview/Passport Photo Effective 10/04/2004

• The DHS launched this change on August 2, 2004 and effective September 1, 2004, the agencies under the DHS have rejected the previous sideview photos. However, this change did not affect the Immigration Courts as the Immigration Courts are part of the Executive Office for Immigration Reviews (EOIR) which is an agency of the U.S. Department of Justice.
• Now, the EOIR announces that the last date when the immigration courts will receive the sideview pictures will be October 1, 2004 (Friday), and beginning from October 4, 2004, the courts will reject the sideview pictures and take only the frontview pictures. For the announcement, please click here.

09/08/2004: InfoPass Appointments in Full Swing Nationwide

• It appears that the USCIS InfoPass appointments will go into full swing as initially scheduled on July 22, 2004. The last batch of District Offices will not only take appointments but also start meeting with the immigrants on appointments from today. It includes most of the suboffices, but there are only two or three suboffices, such as Charleston, South Carolina, and Charleston, West Virginia, that have yet to take appointments online.
• People are reminded that for about a month, most of the District Offices may accomodate walk-ins depending on each individual situation, but may not continue such practice too long unless one can really prove "extreme emergency." Accordingly, people should plan about two-week period of time to get the services after scheduling of appointments.

09/07/2004: State Department Updates Visa Wait Times Report for September 2004

• Today, the State Department updated the visa wait times report for each visa post for the months of September 2004. Please see the home page.

09/07/2004: USCIS Processing Times Report of 09/07/2004 for the Local Districts

• Please see the home page.

09/07/2004: Plasctic Card (Green Card) Issued in One Week Upon Approval at Local District Office

• Today, the local USCIS district office in Minnesota started a new procedure of issuiance of the evidence of permanent resident when the case is approved after the interview. Until yesterday, the standard procedure was that once the adjudicating officer approved the I-485 applications, the officers collected the fingerprint of index finger and signature on a form and placed a temporary evidence of permanent residence in the passport. The form was then forwarded to the Nebraska Service Center which then produced the plastic green card, which took several months or a year.
• The new procedure eliminates this manual biometric identifier collection and manual plastic green card production procedures. Once the adjudicating officer approves I-485 after the interviews, the officer electronically transmit approval notices, followed by the production of the plastic green card at the National Benefits Center using the biometical identifier which was already collected "digitally" at the finger print centers. This allows almost instant production of the plastic green card and delivery of the green card in about one week rather than months and months. The status of permanent resident is granted at the conclusion of the interview but the local district office ceases to give a stamp of temporary evidence of permanent residence in the passport since the plastic card is scheduled to be delivered to the applicants in about a week.
• How wonderful! Assumedly, this new procedure is in place as of today in other local districts as well. Please check it out with the local district of your jurisdiction.

09/07/2004: Visa Waiver Pilot Program Nationals and Various Deadlines

• Currently, 27 countries participate in the Visa Waiver Program, as shown below, with key dates indicated:
• (1)US-VISIT Deadline (2)MRP Deadline (3) Biometric Deadline
  (1)Travelers entering the U.S on the VWP on or after this date will be enrolled in US-VISIT (2)Passports issued on or before this date must be machine-readable in order to qualify for Visa Waiver Program (3)Passports issued on or after this date must be machine-eadable and Biometrically Enabled in order to qualify for Visa Waiver Program
  
  • Andorra: (1)Sep 30, 2004 /(2)*Sep 30, 2003 /(3)Oct 26, 2005
    Australia: (1)Sep 30, 2004 /(2)Oct 25, 2004 /(3)Oct 26, 2005
    Austria : (1) Sep 30, 2004 / (2)Oct 25, 2004 /(3)Oct 26, 2005
    Belgium: (1) Sep 30, 2004 / (2)**May 15, 2003/(3)Oct 26, 2005
    Brunei: (1) Sep 30, 2004 / (2)*Sep 30, 2003 / (3)Oct 26, 2005
    Denmark: (1)Sep 30, 2004 /(2)Oct 25, 2004 /(3)Oct 26, 2005
    Finland: (1) Sep 30, 2004 /(2) Oct 25, 2004 /(3) Oct 26, 2005
    France : (1) Sep 30, 2004 /(2) Oct 25, 2004 /(3) Oct 26, 2005
    Germany:(1)Sep 30, 2004 /(2) Oct 25, 2004 /(3) Oct 26, 2005
    Iceland : (1) Sep 30, 2004 /(2) Oct 25, 2004 /(3) Oct 26, 2005
    Ireland : (1) Sep 30, 2004 / (2) Oct 25, 2004 /(3) Oct 26, 2005
    Italy : (1) Sep 30, 2004 / (2) Oct 25, 2004 / (3) Oct 26, 2005
    Japan: (1) Sep 30, 2004 : (2) Oct 25, 2004 / (3) Oct 26, 2005
    Liechtenstein:(1)Sep 30, 2004/(2)*Sep 30, 2003/(3)Oct 26, 2005
    Luxembourg:(1)Sep 30, 2004/(2)*Sep 30, 2003/(3)Oct 26, 2005
    Monaco L: (1) Sep 30, 2004 / (2) Oct 25, 2004 /(3)Oct 26, 2005
    The Netherlands:(1)Sep 30, 2004/(2)Oct 25, 2004 /(3)Oct 26, 2005
    New Zealand:(1)Sep 30, 2004/(2)Oct 25, 2004/(3)Oct 26, 2005
    Norway : (1) Sep 30, 2004 / (2) Oct 25, 2004 / (3) Oct 26, 2005
    Portugal :(1) Sep 30, 2004 / (2) Oct 25, 2004 / (3) Oct 26, 2005
    San Marino:(1)Sep 30, 2004/(2)Oct 25, 2004/(3) Oct 26, 2005
    Singapore: (1) Sep 30, 2004/(2)Oct 25, 2004 /(3) Oct 26, 2005
    Slovenia : (1) Sep 30, 2004 / (2)*Sep 30, 2003 /(3) Oct 26, 2005
    Spain : (1) ----------------------(2) Oct 25, 2004 / (3) Oct 26, 2005
    Sweden : (1)---------------------(2) Oct 25, 2004/ (3) Oct 26, 2005
    Switzerland : (1)---------------(2) Oct 25, 2004 /(3) Oct 26, 2005
    United Kingdom : (1)----------(2) Oct 25, 2004/(3)Oct 26, 2005
  • Note*: Four visa waiver program countries, specifically Andorra, Brunei, Liechtenstein, and Slovenia, did not request a postponement of the machine-readable passport effective date, because all or virtually all of their citizens already have machine-readable passports. As of October 1, 2003, visa waiver travelers from Andorra, Brunei, Liechtenstein, and Slovenia must present either a machine-readable passport or a U.S. visa at the port of entry to enter the U.S. This includes all categories of passports — regular, diplomatic, and official, when the traveler is seeking to enter the U.S. for business or tourist purposes, for a maximum of 90 days without needing a visa.
  • Note**: Belgium, which is also a visa waiver country, was not eligible to receive this extension. Belgian nationals who wish to travel under the visa waiver program have been required to present a machine-readable passport since May 15, 2003.
  • Note for (2): VWP travelers with passports issued on or before the MRP deadline may continue to travel on the Visa Waiver Program after that date only if the passport is machine-readable. Passports issued after the MRP deadline that are not machine-readable will not be valid for VWP travel after that date. If the VWP traveler's passport is issued after the MRP deadline, and that passport is both machine-readable and biometrically enabled, (i.e. containing a computer chip with biometric data), a visa is not required. If the passport is issued on or after October 26, 2004, and is either not machine-readable or not biometrically enabled, the bearer will need to obtain a visa to travel to the United States.
• For the excellent summary, please visit American Consulate in Brazil site.

09/06/2004: Dragging "Dream Act" and Heart-Breaking Story

• "Dream Act" one time received the bi-partisan support and everyone expected to see this bill passed swiftly to save the innocent undocumented youngster aliens. However, this bill got caught in politics in the Congress and after one year, the future of this bill remains up in the air. The Congress will return to the session after the Labor Day and the New York Times reports that this bill faces some oppositions among Republicans in the Congress facing the November election. Mr. President, if you still believe in "Compassionate Conservatism," you should pressure the Congress to pass the law swiftly when they return to the Hill to demonstrate that you are a "tough and strong" leader in fight on terrorism as well as a leader who has a compassion to hear the heart-beat of people in human tragedy. They are "innocent" victims in that they became undocumented aliens not because of their own decision but because of the parents. One does not have to be a rocket scientist to imagine their wounded hearts and countless tears they shed in silence in their beds in the night. Please stop punishing these innocent victims!
• For the news, please click here.
• Text of the Bill:
  • SECTION 1. SHORT TITLE.
  • This Act may be cited as the `Development, Relief, and Education for Alien Minors Act of 2003' or `DREAM Act'.
  • SEC. 2. DEFINITION OF INSTITUTION OF HIGHER EDUCATION.
  • In this Act, the term `institution of higher education' has the meaning given the term in section 101 of the Higher Education Act of 1965 (20 U.S.C. 1001).
  • SEC. 3. RESTORATION OF STATE OPTION TO DETERMINE RESIDENCY FOR PURPOSES OF HIGHER EDUCATION BENEFITS.
  • (a) IN GENERAL- Section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1623) is repealed.
  • (b) EFFECTIVE DATE- The repeal described in subsection (a) shall take effect as if included in the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
  • SEC. 4. CANCELLATION OF REMOVAL AND ADJUSTMENT OF STATUS OF CERTAIN LONG-TERM RESIDENTS WHO ENTERED THE UNITED STATE AS CHILDREN.
  • (a) SPECIAL RULE FOR ALIENS IN QUALIFIED INSTITUTIONS OF HIGHER EDUCATION-
    • (1) IN GENERAL- Notwithstanding any other provision of law and except as otherwise provided in this Act, the Secretary of Homeland Security may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, subject to the conditional basis described in section 5, an alien who is inadmissible or deportable from the United States, if the alien demonstrates that--
      • (A) the alien has been physically present in the United States for a continuous period of not less than 5 years immediately preceding the date of enactment of this Act, and had not yet reached the age of 16 years at the time of initial entry;
      • (B) the alien has been a person of good moral character since the time of application;
      • (C) the alien--
        • (i) is not inadmissible under paragraph (2), (3), (6)(B), (6)(C), (6)(E), (6)(F), or (6)(G) of section 212(a) of the Immigration and Nationality Act (8 U.S.C. 1182(a)), or, if inadmissible solely under subparagraphs (C) or (F) of paragraph (6) of such section, the alien was under the age of 16 years at the time the violation was committed; and
        • (ii) is not deportable under paragraph (1)(E), (1)(G), (2), (3)(B), (3)(C), (3)(D), (4), or (6) of section 237(a) of the Immigration and Nationality Act (8 U.S.C. 1227(a)), or, if deportable solely under subparagraphs (C) or (D) of paragraph (3) of such section, the alien was under the age of 16 years at the time the violation was committed;
      • (D) the alien, at the time of application, has been admitted to an institution of higher education in the United States, or has earned a high school diploma or obtained a general education development certificate in the United States; and
      • (E) the alien has never been under a final administrative or judicial order of exclusion, deportation, or removal, unless the alien has remained in the United States under color of law or received the order before attaining the age of 16 years.
    • (2) WAIVER- The Secretary of Homeland Security may waive the grounds of ineligibility under section 212(a)(6) of the Immigration and Nationality Act and the grounds of deportability under paragraphs (1), (3), and (6) of section 237(a) of that Act for humanitarian purposes or family unity or when it is otherwise in the public interest.
    • (3) PROCEDURES- The Secretary of Homeland Security shall provide a procedure by regulation allowing eligible individuals to apply affirmatively for the relief available under this subsection without being placed in removal proceedings.
  • (b) TERMINATION OF CONTINUOUS PERIOD- For purposes of this section, any period of continuous residence or continuous physical presence in the United States of an alien who applies for cancellation of removal under this section shall not terminate when the alien is served a notice to appear under section 239(a) of the Immigration and Nationality Act (8 U.S.C. 1229(a)).
    

09/05/2004: SEVIS Records Contain 770,000 F/J/M Students & 100,000 Dependents

• According to the ICE, as of August 2004, a total of 8,737 schools and exchange visitor programs, representing more than 9,500 campuses are certified to participate in the program – and the number continues to grow. As of August 2004, there were more than 770,000 students and exchange visitors (F-1, M-1, and J-1 visa categories) approved to study in the United States whose data is being managed by SEVIS. In addition, SEVIS maintains records on more than 100,000 dependents of students and exchange visitors.
• Of those foreign students and exchange visitors studying in the United States, last year there were 36,600 potential student violators reported to the ICE Compliance Enforcement Unit (CEU). Reasons for an individual being considered in violation include a school reporting an individual a ‘no show’ (more than 2,900 students were reported as ‘no-shows’), expulsion, suspension, and failure to maintain a full course of study. The CEU examined the violations using law enforcement databases and referred 1,591 to the field for further investigation. These investigations resulted in 155 arrests. For the full report, please click here.

09/04/2004: Alarming Anti-Immigration Movement in the Immigration Law Community

• The immigrant community is growingly exposed to some open discussion of abolition of family immigration system by certain immigration reform proponents. They consider extended family members including parents and sons and daughters of the U.S. citizen do not deserve unification with their loved ones. Additionally, underlying discussion includes limitation of immigration to only able-bodied "workers." Under the concept, disabled or handicapped people should be filtered off from the immigration process. Extension of this concept can lead to advocating immigration only for "fit-to-survival" and somebody will have to determine how to define "fit-to-survival." It reminds people of the Nazi criminals to use the Darwinism to eradicate certain so-called "inferior" group of human beings from the earth.
• In 1996, there was a legistive movement to restrict family immigration, either reducing quota or putting a moratorium. We called it "Simpson Bill." Proponents advanced sweet justification for the bill hiding under the rug xenophoebia. The country was swept in heated debate pros and cons and emotionally pushed the immigrant community to the edge. Facing the strong opposition, the proponents compromised and passed a bill to control only "illegal" immigration leaving the legal immigration, particularly family immigration in tact.
• The difference between 1996 and the current movement presents a serious concern in that in 1996, it was advocated by mostly anti-immigration political forces but the current discussion is led by so-called immigration proponents. They are the ones who are educated to understand the implication of such concept with profound impact on the notion of the most cherished American principle of family reunification and potential danger of being misused by the anti-immigration political forces to control immigration for the wrong causes which include racism. It is appalling to learn an argument that those U.S. citizens who miss their mothers, fathers, sons, daughters, brothers, and sisters should go back to their countries of origin. It is also appalling to learn an argument that the country should abolish completely family immigration system and accept immigrants only for employment who are able to work. Under the concept, family members will not be able to reunite with their U.S. parents if they are handicapped physically or emotionally and have no physical bodies which allow them to work. Someone can feel a "chill"in the backbone.
• Such discussion is indeed ill-timed in that the country is now extremely polarized and immigration is taken something which should remain an undesirable back-burner. Immigration law community has no reason to initiate and stir up such volatile issue at this difficult time for the good reasons or the bad reasons.

09/03/2004: November Election and Suffering Immigration

• The November election is now less than two months away. Pending the election, there are no proponents of immigration and no matter whether he is a Republican candidate or Democratic candidate, he wants to keep distance himself from the term "immigration." The term "immigration" is unwanted child. Currently any legislative or policy issues that can affect the politics appear to be on hold. The election should be over one way or another!

09/02/2004: USCIS Announces FY 2005 H-1B Processing as of 08/18/04

• Today, USCIS announced that as of August 18, 2004, it had used 45,900 FY 2005 H-1B cap numbers. Consequenty, in two-week period of time from August 4, 2004 to August 18, 2004, it used 5,900 numbers. This number coincides with this web site's estimation of its monthly H-1B cap number usage.

09/02/2004: Minnesota State Labor Certification Processing Times, 09/01/04

• RIR=07/01/04, Regular=12/09/03, Temporary LC=C, Faculty LC=C.

09/02/2004: Matter of Cisneros, 23 I&N Dec 668 (BIA 2004)

• On September 1, 2004, the Board of Immigration Appeals handed down a decision that:
  • (1) Pursuant to section 240A(d)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(d)(1) (2000), an alien’s period of continuous physical presence in the United
    States is deemed to end when the alien is served with the charging document that is the basis for the current proceeding.
    (2) Service of a charging document in a prior proceeding does not serve to end the alien’s period of continuous physical presence with respect to an application for cancellation of removal filed in the current proceeding. Matter of Mendoza-Sandino, 22 I&N Dec. 1236 (BIA 2000), distinguished.

09/02/2004: Effective Immediately, Nonimmigrant Visa Application Fee Waiver for Certain Family Members of the Wounded/Deceased in Line of Duty

• Current exemptions from the MRV fee exist only for applicants for A, G, C-3, NATO, and diplomatic visas; applicants for J visas participating in U.S. Government-sponsored exchanges; persons who need replacement visas when the original visa was not properly affixed or needs to be reissued through no fault of the applicant; applicants traveling to provide charitable services as determined by the Department of State; and U.S. Government employees traveling on official business.The new exemption from the nonimmigrant visa application processing (MRV) fee will provide a waiver of the fee for an applicant who is an immediate family member of a U.S. Government employee killed in the line of duty and who is traveling to attend the employee's funeral and/or burial. The new exemption will also be applicable to a family member visiting a U.S. Government employee who has been critically injured in the line of duty during the period of emergency treatment and convalescence. The exemption will extend to a surviving parent, sibling, spouse, son, or daughter of the deceased or injured U.S. Government employee. This exemption appropriately shifts the cost of visa processing in such cases to the general public because it is in the national interest to assist close non-U.S. citizen relatives of U.S. Government employees killed or critically injured in the line of duty traveling to the United States for funeral and/or burial events or or visitation during emergency treatment and convalescence. For the full text, please click here.

09/02/2004: USCIS Backlog Reduction Plan and Its Impact on Immigrant Visa Cut-Off Dates in the Visa Bulletin

• The USCIS has been testing the 90-day I-130/I-485 adjudication for the family-based green card cases and the 90-day I-140/I-485 adjudication for the employment-based green card cases through the so-called Pilot Programs in Dallas and New York for the family cases and California Service Center in the employment-based cases. These Pilot Programs have been undertaken in low key and in silence apparently considering its impact on the November election. Sources indicate that the ongoing Pilot Programs will be wrapped up at the end of September 2004. Evaluation and assessment of the results of the Pilot Programs will obviously dictate the USCIS as to whether it should expand the program nation-wide.
• At this time, the backlog reduction efforts of the USCIS are not too visible even though some local district offices reported the reduction of processing times of the family cases. However, once the backlog reduction plan is in full swing, it will have impact on the progression of the immigrant visa numbers or retrogression of visa numbers in the Visa Bullen. People are reminded the following prediction of the State Department in August 2004 Visa Bulletin: During the past several years, the Citizenship and Immigration Service (CIS) demand for numbers has been low. To compensate for the lack of demand from CIS, the Visa Office advanced the immigrant visa cut-off dates very rapidly to provide sufficient qualified applicants at our overseas posts and permit the maximum use of immigrant visa numbers. Such advances also meant that many thousands of additional applicants became eligible to file for adjustment of status at CIS offices. During recent months, CIS demand for numbers has increased significantly as they have begun to address their backlog situation. This increase in CIS demand for numbers is expected to continue, and immigrant visa cut-off date movement is likely to slow or stop in the Family preference categories. Depending upon the rate at which demand is received, it may become necessary to establish cut-off dates in Employment preference categories.
• Obviously, certain countries will be more vulnerable than other countries when the visa number retrogresses. In the employment-based categories, India and China may be most visibly affected, particularly the EB-3 Skilled Worker Professional or Unskilled Worker classification. Maybe, this is the time for the new employment-based green card applicants to consider the EB-2 options more seriously as by the time they reach the USCIS after completing the labor certification stage, they may face a challenging visa number retrogression or chargeability table coming years ahead.
  
  

09/01/2004: Seeking Assistance for Case Problem Through CIS Ombudsman

• By now, people know that seeking assistance through the USCIS 800 number is not much of help. Another recourse could be to utilize the CIS Ombudsman's Office. Remember that the Ombudsman is not, repeat not, part of USCIS. It is a separate office to hear and address the problems of consumers of the immigration agency. If you are experiencing difficulty with a particular immigration case and wish to submit a case problem, the Ombudsman will forward your case problem to USCIS for further action on your behalf. Read on.

08/31/2004: Minnesota District Liberian TPS Instructions for 2004/2005

• Liberian TPS has been re-designated this year. This means all TPS applicants will have to be re-fingerprinted and interviewed.
  • What is needed:
    I-821 with fee of $50.00
    I-765 with fee of $175.00 (if requesting work authorization)
    *Note: if not requesting work authorization a I-765 must still be collected without the fee, for informational purposes only.
    Fingerprint fee of $70.00 (for everyone 14 and older)
    Two photos (passport style)
    Additional documentation:
    Photocopy of employment card from last year with expiration date of 10/01/04.
    OR
    A photocopy of your passport, I-94 card and evidence establishing that you have resided in the U.S. since 10/1/02 (examples: photocopies of apartment leases, proof of insurance, letters from employers, vehicle registration, school records, etc.)
• **FEES MUST BE PAID BY CHECK OR MONEY ORDER ONLY.
  • How to file:
    Mail your application to: U.S. CIS, 2901 Metro Drive, Suite 100, Bloomington, MN 55425.
  • Procedures:
    1. Submit applications with supporting documents.
    2. You will receive receipts for the fees paid and fingerprinting information in the mail.
    3. Have your fingerprints taken as soon as possible.
    4. You will receive an interview notice to appear at the U.S. CIS office noted above. Be sure to appear on your scheduled date and time only. DO NOT APPEAR MORE THAT 15 MINUTES PROIR TO YOUR SCHEDULED APPOINTMENT BECAUSE YOU WILL NOT BE ALLOWED INTO THE BUILDING DUE TO LIMITED SEATING AVAILABILITY.
    5. After your application is processed you will receive a decision in the mail. If your application is approved you will receive a notice to come to the U.S. CIS office noted above to pick up your card. (Courtesy of USCIS Bloomington/MN District)

08/31/2004: F-1 OPT Eligibility

• According to the NAFSA, there is an error in the Q&A part of SEVIS on ICE website which erroneously advised that student, even after they completed the full course requirement, F-1 students were ineligible to apply for OPT inasmuch as they are still enrolled. This contradicts with the regulation. F-1 students should ignore this part of ICE Q&A in its web site. The correct information is: Students who, having completed all course requirement for the degree (excluding thesis or equivalent) are eligible to apply for full time OPT.

08/31/2004: USCIS New Photograph Standard Implementation Schedule

• According to the USCIS Memorandum issued to all the field offices, the USCIS will give a window period of time of 6-day grace period after September 1, 2004 during when the field offices should not reject the sideview photos. Accordingly, should the field offices receive the sideview photos by mail within the grace period, they are not supposed to send out new photos to the filers. For the memorandum, please click here.

08/31/2004: Expansion to 50 Most Highly Trafficked Land Border Ports of Entry: Biometric Collection

• Effective September 30, 2004, the biometric collection of US-VISIT program will be expanded to the certain highly trafficked land border POEs. For the full text of the regulation, please click here.

08/29/2004: DHS Inspector General August 2004 Report Finds Faults with DHS Visa Application Security Clearance Work at Visa Posts

• Section 428of the Homeland Security Act, titled "Visa Issuance," vests in the DHS Secretary "all authorities" to issue regulations, administer, and enforce all immigration and nationality laws. 428 provides for the assignment of Visa Security Officers (VSO) to embassies and consulates to oversee the security of the visa issuance process. However, the report finds that implementation of this law was delayed due to the delayed Memorandum of Understanding between the DHS and the State Department which was signed only on September 29, 2003. Additionaly, the VSOs who are assigned to the visa posts are "temporary" employees who are not properly trained with the job with no proper foreign language proficiency in the assigned posts and fraud or security check techniques. For instance, due to lack of clear plan or guidelines, the VSO in Saudi Arabia had to expend considerable amount of times and efforts screening the many applications from children and certain third-country nationals who are of little homeland security interest. The 50-plus page report recommends the DHS to make certain changes to meet the Section 428 mandates, including hiring and assigning permanent VSOs, preparing plans and standards, providing training of security clearance review techniques and standards with VSOs and consulate officers, hiring VSO with the foreign language proficiency which could be the critical tools and weapons to review the visa applications, and other improvements.
• These tasks fall under the jurisdiction of DHS Undersecretary of Border and Transportation Security (BTS) directorate. However, the BTS cannot be blamed for all these delays and faults as they were attributed to the delays in MOU between the two giant departments of Homeland Security and State Department and funding shortfalls. Considering the fact that the security clearance is an integral part of the visa issuance process, it appears that the DHS has a heavy buden to improve its work not only for "internal" homeland security tasks, but also the "overseas" visa issuance process at the American Embassies and consulates throughout the world. It may constitute one of the factors that could resolve the ongoing visa delays. For the full text of the report, please click here.

08/29/2004: Controversy of "At-Will" Terms of Employment Contract in I-140 Proceedings

• On August 22, 2004, we alerted the readers of this issue because of the recent opinion of the Nebraska Service Center in the AILA Liaison communication that at-will employment contract was not considered permanent employment for the purpose of I-140 petition. This opinion appears to rely on May 9, 2003 decision of AAO that ruled that "at-will" employment did not constitute "permanent" employment and sustained the denial of an Outstanding Researcher I-140 Petition by the Nebraska Service Center. However, the recent opinion in the AILA Liaison raises two issues which should be clearly distinguished each other: The first is whether or not the AAO decision is correct and sustainerable. The second is, even if the AAO decision is correct and sustainable, whether or not the same interpretation should be expandedly applied to other classifications of I-140 petition.
• Close reading of the AAO decision reflects that AAO decision was derived from the specific language in the Outstanding Researcher or Teacher I-140 petition regulation, which provides that "Permanent, in reference to a research position, means either tenured, tenure-track, or for a term of indefinite or unlimited duration, and in which the employee will ordinarily have an expectation of continued employment unless there is good cause for termination." Since the definition of at-will employment includes termination of employment "without good cause," the AAO ruled that for the purpose of Outstanding Researcher petition at the issue, the employment for the Outstanding Researcher petition at issue failed to prove that it was a permanent employment since the employer stated that the employment was at-will terms. This decision will have to be tested before a federal court some day in the future and until that time, this reporter will reserve his view on the decision.
• However, assuming that this decision was correct, there is a second prong issue as to whether this decision can be expanded to other classifications of I-140 petitions, such as EB-2 and EB-3 petitions. Apparently, the Nebaraska Service Center is currently seeking a decision on this issue from the USCIS HQ. However, it is the view of this reporter that the AAO decision should not be expanded to other classifications of I-140 petitions for the two reasons. First, the provision in the regulation that applies to the Outstanding Researcher or Teacher has a specific language that more or less agrees with the AAO decision. In other words, the decision just applied the black law to the case at issue and did not go beyond the specific language in the provision. Second, close reading of the provisions for the EB-2 and EB-3 I-140 petitions reflects that there are no such language in the provisions. For the purpose of EB-2 or EB-3 petitions, the regulation just requires that the job is "not of a temporary or seasonal nature." The language "temporary" has been interpreted to mean a term of indefinite duration. Accordingly, inasmuch as the employment does not have a specific termination date, such term of employment should meet the regulatory language and whether or not the employment can be terminated with or without good cause is beyond the scope of the regulation as it applied to the I-140 petitions other than outstanding researcher or teacher category. Accordingly, the agency should not read into the regulation something which does not exist in the specific provision either by specific black print words or by implication. Besides, such misguided readng of the regulation will indeed result in denial of almost all I-140 petitions as in reality most of the employment contracts are "at-will" term of employment. When there is no black print language in the regulation, the regulation should not be read to have intended something which is patently unreasonable and far from the reality. The adjudicators' role in the administration proceedings is to apply and implement the language of the laws and rules and not to enact rules or legislations.
• For the practical purposes, though, until the agency settles this issue one way or another, the employers should draw out the terms of employment very carefully in the contracts and the cover letters that are filed with the I-140 petitions.
  

08/28/2004: Approaching Reach of FY 2005 H-1B Cap and Big Black Hole for Professional Workers Next One Year

• Exactly when the H-1B cap will reach is anyone's guess at this time, but it is almost certain that the cap will reach before October 1, 2004, most likely the middle of September. The H-1B annual cap is 65,000, but since 5,400 is taken out for Singapore H-1B1 and 1,400 is taken out for Chile H-1B1under the Free Trade Agreements with these two countries, FY 2005 H-1B is reduced to 58,200. Out of 58,200, USCIS already used 40,000 as of August 4, 2004 including pending cap cases. What it means is that as of August 4, 2004, the USCIS had the balance of 18,200. Assuming liberally that USCIS uses from 12,000 to 14,000 a month, by the end of first week of September, the USCIS may have less than 5,000 numbers to use. This calculation leads to an assumption that the cap may reach around the middle of September, 2004. However, this is purely a speculation and people are encouraged to file the H-1B as quickly as possible within next week. Once a case is filed before the cap is announced, the case is fairly safe because there are two potential numbers that can be added to the reserve. One is denials. Traditionally, approximately 10% cases have been denied. Due to the current ongoing denial culture, it can go up higher than the traditional figures. Second sources are Singapore/Chile FTA unused H-1B1 numbers. Some numbers from these sources can be added to the H-1B cap as the additional numbers after October 1, 2004. When the agency annouces the cap, it usually considers these numbers.
• What are the U.S. employers going to do for the period of one year? Obviously, some employers are not affected by the cap, particularly higher learning institutions. But most of private industry employers will have to face a serious crisis. For the U.S. employers, they may have no choices but tapping whatever sources available assuming that their scream at their Congress people is answered in deaf ears. Certainly, it will accelerate outsourcing of jobs. Snatching of H-1B employees from the competitive companies may be intensified, which may be a good news for those who already have a H-1B status. Employers will also have to rely on some alternative employment visa options such as O, J, H-2B, H-3, L, E, P, etc. The most popular alternative source will remain L-1 visas, but this visa category is under the Congressional microscolpe for reform or restrictions. Additionally, as the employers attempt to utilize these alternative sources of employment nonimmigrant visas, the agency is likely to tighten up the adjudication policy to assure that these visa types are not abused. DOL's backlog reduction plan and PERM program could have given the employers additional sources to tap for the U.S. employers as it would produce increased number of I-485 filers who would possess EAD, but due to the delay in launch of these programs, the U.S. employers are not likely to get much help from these sources. Additionally, when it comes to snatching of I-485 employees from the competitive employers, the current policy of USCIS on I-140 portability more or less shuts out such opportunities.
• There are some industries that have to rely on professional foreign workers because of the nature of the business and international competition. These employers will have to face a challenge for the next one year. Taking advantage of the anti-immigrant environment in the U.S., U.K., Canada, Australia and other international competitors have been attracting the brains from other countries and this trend is anticipated to accelerate. This will leave a long-lasting scar on the future of this country beyond economy. "America" is changing.

08/28/2004: InfoPass Schedules and InfoPass-Related Issues

• People have been seeing two reports on the InfoPass schedules on the web sites. One is the USCIS official announcements for each local district and the other is this web site's report of the local district InfoPass scheduling. This web site's report presents the date when people can get access to the online InfoPass appointment scheduling. But when it comes to the actual dates of appointments, they are scheduled after the dates of the USCIS official announcement. Accordingly, people must have noticed that even if almost all local districts and suboffices take appointments as of today by online InfoPass, the earliest appointment is not scheduled until the date when the USCIS will officially announce the InfoPass Launch on its web site. When it comes to the access of walk-ins to the local offices without the InfoPass appointment, each district will make a decision and apparently most of the districts give sometime to let some walk-ins as well. It is thus advised that people should watch the official announcement of the USCIS InfoPass launch to determine when their walk-in access to the local offices will be discontinued. Our site just reports the availability of scheduling of appointments and not availability of actual appointment dates or the date of termination of walk-ins accessibility.
• In Minneosta, InfoPass appointments are scheduled beginning from September 8, 2004 even if the appointments are taken now. The district anticipates that appointments are scheduled in a two-week block. After September 8, 2004, the walk-in's access will be restricted but some walk-ins, particularly emergency cases, will be seen by the officers. However, the district will soon stop access of walk-in completely without the InfoPass appointment papers. Beginning from September 8, 2004, it will remove the so-called "attorney line" and attorneys will lose the privilege of having access to the information officers on a separte line.
• One unresolved issue related to the exclusive InfoPass appointment without availability of walk-in accessibility is "privacy." In order to get access to the local districts, aliens must supply certain private information including names, phone numbers, and other identity information. It is uncertain to what extent and purposes this private information can be used by the government agencies. Without doubt, the USCIS will not abuse the data and allow law enforcement agencies to get access to the information for the law enforcement and security purposes, but at this point, there are no laws that limit such accessibility by the law enforcement agencies. One classical example is the immigration lottery. Report indicates that the lottery registrants go through certain security checks to detect terrorists and millions of registrants' private information will remain in the system without any legal protection from the government's accessibility. Special registration for certain aliens remains the same. Before the InfoPass started, any aliens including illegal aliens or criminal aliens could approach the officers at the local offices without identifying himself or herself and without giving any identity data to aks questions. Such system has given some comfort to these illegal aliens to access the officers and local districts to address their questions and some local agency services, even though such access was not recommended by the legal counsels. Now with the InfoPass, some illegal aliens may feel uncomfortable or experience nervousness or fear because of disclosure of their personal information and potential disclosure of their identity, contact information, and legal status, leading to hesitancy in getting the services from the local districts.
• The USCIS is advised that in order to remove such potential problem, it announces its policy on protection of the InfoPass data from the law enforcement agencies and for purposes other than the scheduling of appointments or better yet introduce a legislation or enact a regulation that prohibits the agency from disclosing such information to the law enforcement agencies with the provisions for punishment of violating officers. The precedent for such legislation was "amnestry law" of 1986 which allowed illegal aliens to come out of the closet without the fear of prosecution because of such legal protection. The precedent for such regulation is 245(i) rule which prohibits the immigration law enforcement authorities from using information of filing of labor certification applications for 245(i) benefits for the law enforcement purpose, even though they can prosecute such illegal aliens if they are caught in the normal enforcement procedures. We strongly urge the agency to enact such regulation or pass legislation for the InfoPass system to serve its intended purposes and to achieve a success.

08/27/2004: Next Wednesday-09/01/2004: Passport Photo Mandatory for Immigration Filing

• People are reminded once again that beginning from next Wednesday, USCIS will reject the sideview photos. People filing EAD or AP in papers should experience a substantial delay because of the rejection of wrong photos. The last minute filers of EAD should pay special attention to this change and assure themselves to send in the passport photos so that they do not experience an undesirable consequence!

08/26/2004: InfoPass - Consumer Friendly?

• When the InfoPass was first launched, the Director of Citizenship and Immigration Services acknowledged that InfoPass would not help in shortening the service times. It is intended to remove the wait-lines in the local district and sub offices. It will certainly help in certain areas like Minnesota in that people do not have to wait hours in the cold of freezing termperature in the winter.
• However, we already start hearing complaints from the consumers that InfoPass rather delays the services for the consumers. One problem appears to be delay in getting an appointment. Additionally, in some districts, people still have to wait in the district offices a substantial amount of time to talk to the officers. Most importantly, some consumers need urgent services and cannot afford to wait for the delayed appointments.
• For the InfoPass program to truly servce the consumers, the agency should make the InfoPass an option rather than a mandatory means for the consumers to get a live access to the officers and their services.

08/26/2004: InfoPass Appointments for USCIS District Suboffices

• As of now, InfoPass appointment is available in all the USCIS District Offices except Omaha and New Orleans. For the Suboffices, except Charleston, South Carolina and Oklahoma City, Oklahoma, InfoPass Appointments are taken online. Available suboffices include:

  • Tucson	Santa Ana	San Bernardino	Fresno	Sacramento	San Jose	Hartford	Boise	Indianapolis	Cincinnati
    Okalahoma City	Providence	Memphis	Salt Lake City	Saint Albans	Norfold	Spokane	Yakima	Pittsburgh	Milwaukee
    (X)Charleston

08/26/2004: InfoPass Appointments Expanded to Harlingen District and Kansas City District

• InfoPass Appointment Available Districts as of today:

  • Launch Dates	Districts
    August 09, 2004 (already lanunched)	Buffalo, Newark, Philadelphia (Los Angeles, Dallas,Miami, NY City started before this date)
    August 16, 2004(already launched)	Atlanta,Baltimore,Boston,Portland/ME,New Orleans, Houston
    August 21, 2004(already launched)	Chicago
    August 18, 2004(already launched)	Cleveland,Detroit,San Juan, D.C.,Denver
    August 18, 2004(already launched)	Anchorage,Honolulu,Phx, Portland/OR. San Diego, SF, SEA
    August 26, 2004(already launched)	El Paso, Harlingen, Kansas City, San Antonio, St.Paul,Helena

08/25/2004: USCIS Dilemma of I-140 Portability and Concurrent Filing/Concurrent Adjudication

• People may recall the background of enactment of AC 21 legislation. The legacy INS was in a total mess and backlogs kept piling up, particularly I-485 and H-1B processing. When the law was enacted, the employment-based immigration proceedings were bifurcated and unless I-140 was approved, no one could file EB-485. The backlog the Congress was interested in was I-485 applications and I-140 petition proceeding backlog was not within the parameter of the legislative intent. This is clear from the reading of I-140 portabilty provision under AC 21 and not well publicized portion of the legislation which strongly recommended the legacy INS to adjudicate I-485 in 180 days. It was a recommendation and not a mandate. The I-140 portability legislation was assumedly enacted to pressure the legacy INS to reduce I-485 processing times to 180 days. Bush's proclaimed announcement of immigration benefits processing time to 180 days was not a coincidence.
• The problem is that the agency conceived the idea of concurrent I-140/I-485 filing prior to the enactment of AC 21 and apparently by the time it was enacted as a regulation, the agency probably did not review seriously the impact of the concurrent filing to the I-140 portability provision in the AC 21 Act. Consequently, the agency had to deal with the difficult task of reconciling between the legislative provision that allows the I-485 filers to change employment after 180 days of filing and the same legislative provision that provided portability of I-140 petition and not I-485 application. If this conflict was created by the agency for oversight, there are only two remedies available for the agency to correct their mistakes. One is to introduce a legislation to amend the relevant provision of AC 21 or better yet the agency process the concurrently filed I-140 petitions within 180 days so that the I-140 can be ported after passage of 180 days of I-485 filing. We realize the predicament of the agency to accept the concept of I-140 portability when I-140 has yet to be adjudicated. When there is no approved I-140 petition, at least theoretically, there is no I-140 to be ported.
• Unfortunately, the agency has been moving completely opposite direction when it announced concurrent adjudication of I-140/I-485. Since the announcement, the concurrently filed I-140 has been held hostage assumedly in order for the agency to adjudicate I-140 and I-485 concurrently. The backlog of I-485 is not something which the agency can achieve in the near future, not probably until September 30, 2006. We cannot tolerate the AC 21 legislation remained beaten and bruised so hard by the agency's failure to coordinate its action with the spirit and intent of the AC 21 legislation. It is not impossible task for the agency to correct its mistakes and reconcile the conflicts: Agengy should set a goal of adjudicating the concurrently filed I-140 petition within 180 days and adjudication of I-140 petition for the concurrently filed cases should not be held hostage to implement its concurrent adjudication of concurrently filed I-140 and I-485. The agency should never betray the legislative intent of a law, AC 21 in the instant situation, by blocking implementation of the legislative intent through a circumbent action to lay a road block to the I-140 portability and change of employement for the I-485 filers after 180 days.

08/25/2004: Redesignation of Liberian TPS

• As we predicted, the DHS today released a rule redesignating Liberia for TPS. The re-designation of Liberia's TPS designation is effective October 1, 2004, and will remain in effect until October 1, 2005. The registration period begins August 25, 2004, and will remain in effect until February 21, 2005. For the details, please read the rule.
  

08/23/2004: Monthly Visa Wait Times Report for American Visa Posts Finger Tips Away

• The U.S. Department of State has launched a very user friendly service for international travellers. People are now accessible to the information on the wait time for appointment for interviews and the wait time for visa issuance after the interview at each American visa post throughout the world by just clicking the name of the visa post. This information is scheduled to be updated every month. Please visit out home page to access this information in the future.

08/22/2004: PERM Final Regulation Rulemaking Process in ZigZag

• There is a wide spread rumor in the immigration lawyers community that the OMB review will not be completed until the November election is over. This rumor is premised on the theory that the White House is strongly opposing this regulation for the reason that it may be taken as an amnesty by the public and can affect the election. However, this rumor can materialize only if the President turns down the regulation because of the law that governs the OMB review. Because of the OMB review rule, the PERM regulation will have to be either rejected by the President or approved within 180 days from the date of submission of the regulation by the DOL, which was February 23, 2004. Let's review the OMB review rules.
• The law that governs the OMB review is Executive Order 12866 of October 4, 1993. The Section 6 (b)(2) provides that OIRA (subunit of OMB) "shall" waive or notify the agency in writing of the results of its review within the following time periods: (A) For any notices of inquiry, advance notices of proposed rulmaking, or other preliminary regulatory actions prior to a Notice of Proposed Rulemaking, within 10 working days after the date of submission of the draft action to OIRA. (B) For all other regulatory actions, within 90 calendar days after the date of submission of the information..., unless OIRA has previsouly reviewed this information and, since that review, there hs been no matierial change in the facts and circumstancds upon which the regulatory action is based, in which case, OIRA shall complete its review within 45 days; and (C) The review process may be extended (1) once by no more than 30 calendar days upon the written approval of the Director and (2) at the request of teh agency head.
• The PERM regulation falls under Section 6(b)(2)(B) and (C). As we reported earlier, the DOL Foreign Labor Certification Chief disclosed that there was material changes to the Proposed PERM regulation as the DOL's final regulation incorporated substantial changes to the published Proposed PERM Regulation. Accordingly, under the Section 6(b)(B), the OMB was given 90 days to complete the review, which expired on May 21, 2004. However, the DOL Chief also disclosed that on May 21, 2004, it requested the OMB to extend the review because of the concerns of fraud raised by its sister/brother federal agencies and apparently part of the regulation were revised. Under the Section 6(b)(2)(C), the OMB was given only 30-day extension, which expired on June 20, 2004.
• Why this regulation is still under the OMB review and under what authority? The Section 7 of the Executive Order 12866 states that in the event that there is a conflict among agencies which cannot be resolved by the Director of OIRA(OMB), it moves to the Vice President to resolve the conflict and the President and Vice President make a decision. Under the provision, though, such resolution must be made within 60 days from the referral by the Director. Assumedly, this 60-day also expired on August 20, 2004. The fact that the case is still at the OMB reflects that the OMB could not resolve the conflict and turned over to the Vice President for resolution. Otherwise, the OMB should have completed by June 20, 2004 one way or another. The OMB cannot arbitrarily change the review period. Now the expiration date of the resolution of the issues by the Vice President and the President is gone, and the President must announce his decision. Under the Executive Order, he does not have authority to extend the OMB review any further, Either he should reject the rulemaking or approve it as far as this reporter see the Executive Order 12866. We hope to see such announcement within next week.
• Interested persons may read the full text of Executive Order 12866.

08/22/2004: I-140 Permanent Employment Definition and Importance of Employment Contract Terms

• The USCIS is growingly taking a hardline position on a number of issues. One of these includes the terms of employment for the I-140 proffered employment. In the past, the employers were not challenged by the INS when the employer stated in the letter that the terms of proffered employment is "at will" and the employment can be terminated with or without good cause by either the employer or employee. Indeed, it is reality that the substantial number of employment contracts include "at will" terms.
• Lately, however, the USCIS has been challenging I-140 petition which included a term of employment at will. This is particularly true with the Outstanding Researcher position which usually establishes "permanent"nature of position by the annually renewable term of employment contract. If the employer states that the term of employment is at will, the employer will face a risk of denial of I-140 with the USCIS argument that it is not a permanent employment.
• This issue usually involves a conflict between the employer's corporate lawyer who needs protection of his/her client (employer) from potential lawsuit by the employee when the employee is terminated "without good cause" and the immigration lawyer who represents the employer in the immigration proceeding and must established a supposed "threshold" of "permanent" employment. This issue should be resolved carefully within the employer legal team to satisfy the employer's legal protection under the employment law as well as the immigration law. One thing which is obvious is that unlike the H-1B petition, in the I-140 petition, neither the employer nor the lawyer should specifically state that the employment is at will and the employment can be terminated withou good cause by either party!

08/21/2004: 40,000 H-1B Numbers Used 08/04/2004

• AILA has been advised by the USCIS that as of August 4, 2004, the USCIS had used 40,000 FY 2005 H-1B cap numbers including 21,000 approvals and 19,000 pending for adjudication. Accordingly, as of the date, there were still 25,000 H-1B cap numbers available. Since the USCIS used approximately 16,000 cap numbers at the end of May 2004, since then it used approximately 12,000 cap number a month. If this trend continues, it is anticipated that the FY 2005 H-1B cap number may reach at the end of September or early October 2004. Remember that once one fails to file within this period, the new H-1B will be unavailable until October 1, 2005!

08/21/2004: 7th Year H-1B Extension Pending Immigration Proceedings

• For certain H-1B professionals, the H-1B extension beyond the 6-year limit is critically important. Classical example is those H-1B professionals in the East and West coasts (for that matter, Southern Coast as well) who filed regular labor certification application around April 30, 2001 or earlier and suffer a limbo due to the horrible backlogs in the labor certification application processing. The AC 21 as amended by the DOJ Authorization Act allows them to extend H-1B status indefinitely one year in increment until their green card is finally adjudicated.
• There are however late-starters who started the labor certification application close to their 5th year in H-1B status. Those who file a labor certification after reaching 5th year in H-1B are ineligible to apply for the 7th year extension since the USCIS requires that (1) no less than 365 days should have passed after filing the labor certification application or immigrant petition and before reaching the 6-year limit, and (2) 7th year extension can not be "filed" unless 365 days have passed after filing the labor certification application or immigrant petition. Accordingly, unless a labor certification or immigrant petition was filed at least 370 days or longer before reaching the 6-year limit, practically the 7-year extension cannot be filed and will be unavailable for these people considering the mailing or delivery time and holidays.
• Caveat: Those who previously filed another labor certifications through another employers or as a dependent family members should seek legal counsel to see whether grandfathering is applicable to their situations making them still eligible for the 7th year extension even if the latest filing of a labor certification application or immigrant petition has yet to reach 365 days when they reach 5th year in H-1B. Wow, what a terrible way to explain the rule! Too technical, isn't it? Sorry.

08/21/2004: Advisory on "Bachelor's Degree or Equivalent" Proof

• Lately, there are a growing number of people who faced a problem because of their misunderstanding of the education requirement in the permanent labor certification application. The victims involve two classes of aliens: One arises in the context of the substitution of the certified labor certification application and the other involves a new filing of the labor certification application.
• When the labor certification required a "bachelor's degree or equivalent" in the education part of Item 14 in the ETA 750 Part A, Application for Alien Employment Certification, it means that employer requires a bachelor's degree or equivalent foreign degree. The term "equivalent" in this context does not mean that one can use credential evaluation that determined that the combination of the alien's "education and experience" was equivalent to a bachelor's degree. Unless it is specified such in Item 14, the education requirement must be established by "education only" and cannot consider experience. This has been made clear by the USCIS opinions and AAU decision. Accordingly, if he/she used the employer's certified labor certification for someone else for substitution, he/she must meet the "education" requirement without considering experience, no matter what the foreign credential evaluation said, unless the labor certification application specifically stated that the employer will accept combination of education and experience in lieu of a bachelor's degree. For instance, the Bachelor of Science degree in India is a three-year undergraduate program and short of one year to make it equivalent to a bachelor's degree in the U.S. If he or she took post graduate diploma education one or two years in that specialty, it will make "equivalent to a bachelor's degree." However, it he/she only has a three-year degree and no other education, no matter whether one has 20 years of experience in the specialty, he or she will be determined unqualified for this labor certification job unless the labor certification application specifically stated that the employer would accept the combination of education and experience.
• The denial will not be known until I-140 is adjudicated by the USCIS after wasting a tremendous amount of time. The DOL does not deny labor certification application on this issue because the issue of alien's eligibility for the job is the jurisdiction of the USCIS. Before too late, people should review their labor certification application carefully, no matter whether it is a substitution case or a new case, in order not to experience a panicking nightmare months or years after starting the green card journey.

08/20/2004: Washington Update of AILA 08/19/2004

08/20/2004: Six More POEs Added to US-VISIT Ports of Entries

• DHS published a rule today adding six more ports of entry and taking out two ports from the list of exit control ports. US-VISIT was implemented at 115 airports and 14 sea ports on January 5, 2004 by Notice published in the Federal Register at 69 FR 482. In addition, pilot programs have been established at 15 air or sea ports to collect biometric information from certain aliens upon their departure from the United States. This Notice identifies six new ports of entry for inclusion in the US-VISIT program at air and seaports. This Notice also deletes two ports of entry that were inadvertently included in the January 5, 2004 Notice identifying air and sea ports of entry under US-VISIT. Further, this Notice deletes two ports that were included inadvertently in the exit pilot programs announced on August 3, 2004 replacing those ports with two airports to maintain the full number of fifteen exit pilot programs. For the notice, please click here.
  

08/20/2004: Correction of Errors on I-94

• People frequently see the errors on I-94. When the I-94 is issued as part of the change of status or extension of status by the USCIS and one finds an error on it, people should go to the local USCIS office to correct the errors. People can appear at any local district office of USCIS.
• When one finds an error on the I-94 which was issued by the inspectors at the port of entry, which is not uncommon since the CBP started a procedure of one CBP offier to conduct the three inspections including immigration inspection, agricultural inspection, and custom inspection, one should not go to the USCIS local office. People have two options to correct the errors. They can go to inspection offices at any international port of entry to correct the errors. It does not have to be the port where one entered. The other option is to appear at any "Deferred Inspection" unit of the local CBP office which is usually located at the same building with the USCIS local district office and correct the errors. For the locations of the Deferred Inspection units in your area, please click here.

08/19/2004: August 20, Friday - Important Day for Permanent Labor Certification Reengineering

• August 20, 2004 marks the effective date of the recently released Backlog Reduction regulation. Since no details have been released as to how the Centralized Processing Centers will be operated in Philadelphia and Dallas and how the cases will be transferred to the Centers from which states and Regions and in what order, the immigrant community should hear some answers to these questions in the very near future. Please stay tuned.

08/17/2004: Reminder - Sideview Photos Not Acceptable Effective 09/01/2004

• People are reminded that the traditional immigration sideview photos will be rejected by the immigration agencies effective September 1, 2004. Since it is less than two weeks away, people may as well stop taking sideview pictures for immigration filing.

08/16/2004: What is Machine Readable Passport?

• As we reported earlier, biometric passport requirement has been postponed until October 2005. However, the VWP nationals must carry "machine readable passport" effective October 26, 2004. Machine Readable Passport, unlike biometric passport, does not provide the complete security information and data but helps the inspectors to detect the tampered passport, lost passpost, fraudulent use of passport, which have presented a serious concern to the security agencies.
• How do people know whether their passport is a machine readable passport? Here is the explanation of the U.S. Department of State. They should look at the bottom of their photo ID page for two lines that are typeface lines, that have letters, numbers and hatch marks. The two lines at the bottom of a machine-readable passport would look like the following:
  • LINE 1: P COUNTRY LAST NAME << FIRST NAME < MIDDLE NAME <<<<<
    LINE 2: PASSPORT NUMBER COUNTRY DOB<<<<<<<<<<<<<<<<<<<<<<
• With this technology, the lines include the biographical data on the photo page of the passport. When a machine-readable passport is swiped through a machine-reader, the information would come up and it should match up to the biographic page of the passport. If it does not, then there is obviously going to be concerns that the passport has been fraudulently altered. The U.S. passport carries the machine readable feature since 1981. Machine-readable passports enhance security on several fronts. They are scanned at entry and exit points to verify integrity of the data. Lost or stolen machine-readable passports are easier to track. For the full text of the State Department explanation, please click here.

08/15/2004: What to Expect When Travellers Leave the U.S. at One of 13 Pilot Exit Control Port of Departure

• As we reported on August 3, 2004, the DHS started the Exit Control procedure at 13 ports of departure in the United States as part of the US-VISIT program. The travellers departing from one of these airports or seaports will go through two different procedure depending on which port of departure they exit. The travellers may want to check with each designated Pilot Exit Control port of departure to learn which procedure they will go through:
  • Type 1: Departing visitors check out of the country at exit kiosks located within airport or seaport terminals. Similar to entry procedures, visitors' travel documents will be examined, their index fingers digitally scanned and their photographs taken digitally. The information will be checked against a watchlist, and then visitors will receive a printed receipt that verifies that they have checked out.
  • Type 2: Biometric checkout process with an exit attendant stationed at departure gates, where they will check documents. Attendants may also have handheld devices that scan documents and gather biometrics.
• In old days, nonimmigrants often ignored surrendering I-94 at the time of departure from the U.S. and did not experience a serious problem when they reenter the U.S. However, things have changed. People should surrender the I-94, aside from this exit control procedure, in order not to experience a problem at the time they return to the U.S. The ports of entry is equipped to check the entry-exit record of the travellers at the time they enter and unless the inspectors confirm that the taveller legally exited from the U.S., they will run into the unnecessary hassle and trouble at the port of entry.
  

08/14/2004: Timing of Advance Parole Renewal

• The I-485 applicants are supposed to keep a valid Advance Parole against the need for emergency overseas travel. In fact, it is mandatory for I-485 applicants other than employment-based I-485 applicants as their trip without Advance Parole will resulted in cancellation of I-485 applications. For the H and L I-485 applicants, they can travel in H or L status without Advance Parole and without affecting the pending I-485, but even for these applicants, legal counsels usually advise them to keep the valid Advance Parole in their possession for the potential change of circumstances.
• Just as EAD, the processing of I-131, Application for Advance Parole, has experienced delays, taking months in worst cases. Accordingly, those who already had a valid Advance Parole applied for renewal several months ahead of time considering the processing delays. In the event that Advance Parole is unexpectedly approved quicker than expected and the new Advance Parole is valid from the date of approval rather than expiration of the existing Advance Parole, it results in waste of part of existing Advance Parole, which is not in the interest of the applicants as well as the government.
• The practice on starting date of Advance Parole has been frequently changed by the Legacy INS and the USCIS. People also have witnessed inconsistency among the Service Centers and local district offices. AILA has reported that it is the current USCIS policy that if the previously issued advance parole still has more than 120 days of validity time remaining at the time of Advance Parole application adjudication,, the USCIS treats such Advance Parole application as though it is a request for a replacement of existing advance parole document. Therefore, the renewal Advance Parole document will reflect the expiration date of the currently valid advance parole. If at the time of the Advance Parole application adjudication the previously issued advance parole authorization has 120 days or less time remaining, USCIS will issue a new Advance Parole document that will be valid starting from the date the USCIS approved the application. This policy can change when there is a change in processing times.

08/14/2004: Canadian Actuaries & Plant Pathodologist Soon Eligible for TN

• USCIS is expected to release a rule adding the occupations of actuary and plant pathologists to list of TN occupations in the appendix 1603.D.1, NAFTA. This rule will modify the licensure requirements for Canadian citizens seeking admission to the United States as a TN nonimmigrant category alien.
• This change was planned for a number of years by the Legacy INS and will now be materialized as the OMB cleared the rule on August 10, 2004. Please stay tuned.

08/14/2004: Social Security to Change SSN Requirement for F-1 Students

• Social Security Administration intends to change the rule for eligility of the Social Security Numbers for F-1 students. In addition to meeting SSA's requirement to provide evidence of age, identity, legal alien status, and work authorization, an F-1 student who does not have a valid DHS issued Employment Authorization Document (EAD) will be required to present evidence that on-campus employment has been secured before it will assign an SSN. This rule is currently under the OMB review and expected to be published in September 2004. Please stay tuned.
  

08/14/2004: Plan for Biometric Collection for Travellers at 50 Most Traffic Land Borders

• DHS plans to expand the biometric collection to the travellers through the 50 most traffic land border ports of entry and sent for the OMB review an interim final rule for the exapansion of authority. The specific locations of the land border covered by this rule have yet to be published. Please stay tuned.

08/14/2004: State Department Statistics Showing Slight Increase of Foreign Visitors 2004

• Since 9/11, the number of foreign visitors to the United States showed a steady decrease each year as shown below. However, the State Department estimates that the trend may stop or reverse hereon.
  • 1996-2000: Average 24 million/year
  • 2001: 21.8 million/year
  • 2002: 19.1 million/year
  • 2003: 18 million/year
  • 2004: 19.1 million (est)/year
• As one can imagine, during the first five months of 2004, most of the visitors came from the border countries: Canada 5.5 million, Mexico 1.4 million. Japan in fact ranked second sending 1.5 million. For the report, please click here.

08/13/2004: GAO Report of 08/13/2004 on HRIFA I-485 Adjudication Statistics as Ended 06/30/2004

• GAO reports every six months to the Congress the status of certain Haitian Refugees special immigration benefits statistics. The report shows the following statistics at the end of June 30, 2004:
  • USCIS Processing of HRIFA I-485: Total Received: 38,548, Total Approved: 11,917
  • EOIR Processing of HRIFA I-485: Total Received: 1,418, Total Approved: 454
• For the full report, please click here.

08/13/2004: Rule Published and Effective Today for Mexican Entry to U.S. for 30 Days on BCC/Laser Visa

• As we reported earlier, the DHS changed the policy for the period of Mexican admission to the U.S. without a visa but with Border Crossing Card or Laser Visa from maximum three days to 30 days. Today, the DHS published this rule in the federal register and the new policy has taken effect as of today. Read on.

08/13/2004: One-Time Parole Into the U.S. Available for VWP Travellers of Pior Overstay

• Travellers from the 27 Visa Waiver Program countries enter the U.S. without a visa for 90 days. When they overstay and depart from the U.S., they are ineligible for the visa waiver admission to the U.S. and unless they carry a visa, they are not admitted to the U.S. If they attemp to enter the U.S. without a visa after such overstay, their admission to the U.S. is denied and they are summarily removed from the U.S.
• The DHS has announced that the U.S. will let in certain risk-free one-time overstayer of such VWP countries on "parole." This discretion will be exercised on a case-by-case basis. Inasmuch as they are admissible, albeit the prior overstay record, they are likely to be admitted to the United States from today without a visa for upto 90 days. This admission will be available only one time and they will not be able to reenter the U.S. next trip around unless they carry a visa. Accordingly, the bar to visa-waiver entry will remain intact and in effect except for one trip. Parole is not a visa and not an admission as a nonimmigrant. However, parole allows the travellers to physically enter the U.S. for a period of time which is granted by the inspectors at the port of entry. For the full text of announcement, please click here.

08/12/2004: Status of H-1B Cap Gap F/J Whose D/S Expired Pending Cap Gap H-1B Petition

• USCIS confirms that as long as the F/J was in status on the date that the change of status to H-1B was originally filed, such F/J students may benefit from the H-1B Cap Gap Notice even if their duration of status has expired before the issuance of the federal register notice. The same will be true with those whose duration of status has expired after the issuance of the federal register notice. However, the foregoing rule will apply only if the petition to change status to H-1B is "still" pending.

08/12/2004: Deadline for Motion to Reopen for H-1B Cap Gap Denials for F/J Students: 08/23/2004

• USCIS has confirmed that those whose employer's H-1B petition was approved effective 10/01/2004 but whose application for change of status from F/J to H-1B because of the H-1B cap should file the Motion to Reopen no later than August 23, 2004. The USCIS intends to adjudicate such Motions on expedite basis. Unless they file a motion, they will have to process the H-1B visa at the visa posts.

08/12/2004: Labor Certification Processing Backlogs for Chicago Region

• People must have noticed that the processing time report for the Chicago Region has not progressed for the last few months. Prior to the current set-back, the Chicago Region was known to be one of the best in the nation in terms of processing times and adjudication of various issues. The Chicago Region was one of those that did not immediately react to the so-called Carlson Memo which was released in October 2003 and for a while the applicants did not see increase in Notice of Findings and Remands for RIR cases because of the Memo. However, it did not last long. The Chicago Region was known to have been struck by this lightening afterwards, and the applicants started seeing NOFs and Remands in the mail.
• Unconfirmed sources indicate that the current backlog is caused by this change. Apparently, the Region is tied up with handling these NOFs and responses. It is hoped that things change in the near future.

08/12/2004: USCIS Local District Pilot Program for Non-Employment Based Green Card Applications

• This Pilot Program of scheduling interview at the time of filing of I-130/I-485 one-step packet and adjudication within 90 days started at the Dallas District of USCIS. At the Annual National Conference of AILA in Philadelphia in June (as we reported at the time), the Ombudsman disclosed for the first time that he had recommended the USCIS to expand the Pilot Program to other five or six USCIS Districts around the end of July.
• Now, attorneys report that the New York District indeed has started the Pilot Program. The USCIS has yet to announce such expansion, but apparently the USCIS is expanding the Pilot Program as proposed. Readers are requested to send us information on other local Pilot Programs in other Districts so that the information be shared by immigrants nationwide.

08/11/2004: DHS Expands Expedited Removal Power to CBP Agents

• The DHS published a rule today granting expanding power to the immigration inspectors and border patrol agents to remove international travellers from entering the U.S. on "expedited removal" basis. The expedite removal proceedings deprives certain nonimmigrants of the due process which is provided under the Constitution and the immigration statutes and court decisions and they are removed expeditiously by the DHS. It is expected that the AILA will summarize this important rule and make it available to the immigrant community. For the text of the rule, please click here.

08/11/2004: Misguided Anti-Immigrant Campaign to use Section 214(b) of Immigration Statute

• The conservative Washington Times carries a disturbing Editorial today suggesting the government to use 214(b), so-called "immigrant intent" section of the immigration statute, to deny the visa applications for certain young, single, and unattached males as a means of preventing terrorist from obtaining the entry visa to the U.S. There is already an indication that the visa posts have pumped up denial of visas based on this provision in certain parts of the world. The danger to such campaign is to single-handedly classify certain age group of certain countries as the target for denial of visas, and potential expansion of such practice even to other parts of the world making this group of foreign travellers to the U.S. difficult. Such misguided concept of visa policy will aggravate the problems of visa delays and backlogs which the scientific and research community is currently standing up in the arms to fight against. This is something which the immigrant community should watch carefully such that the law is not misused against the legislative intent to bring injustice to the world.

08/11/2004: President Signed H.R.4417 Into Law to Postpone One Year Biometric Identifier Passport Requirement For Visa Waiver Entry

• The President signed this bill day beforfe yesterday into law. Read on the State Department announcement and White House release.
• People are reminded that this waiver is distinguished from the machine readable passport requirement which will go into effect as scheduled on October 26, 2004. Accordingly, the travellers from the Visa Waiver Program countries must carry a machine readable passport from the date and otherwise, will not be admitted to the U.S. at the port of entry. Biometric identifier includes fingerprint and digital photo embedded in the passport.
• Another reminder is that even if the biometric identifier passport is not required, these travellers will be subject to the biometric identifier entry-exit control process at the ports of entry beginning from September 30, 2004, meaning that their index finger and facial image will be obtained at the time of entry, giving the immigration inspectors at the port of the entry access to their immigration, criminal, and international terrorism background information and data, and determine eligibility of admission to the United States.

08/10/2004: DHS to Allow Extended Visits to Mexicans with Laser Visas

• DHS Asa Hutchinson is scheduled to announce today that the DHS will change its policy allowing the Mexicans' short visit to the U.S. from the current 3-day limit to the 30-day period when they carry a laser visas. For those Mexicans who need to stay longer than 30 days, the rule will keep requiring their entry with the I-94. Alleged justification of policy is equal treatment of our neighbors between the Northern border and the Sourthern border. Canadians can enter the U.S. without a visa for upto 6 months, while Mexicans have been restricted to 3 days only. Real backbone of this policy change is known to be "politics," to attract the Mexican supports in the November election. Read on.

08/09/2004: USCIS Immigration Monthly Statistics as Prepared on 06/30/2004

08/08/2004: USCIS Overhauls Citizenship Test

• Report indicates that the USCIS is overhauling the citizenship test, requiring less memorization of questions but tougher tests. Read on.

08/08/2004: State Department Issued Guidance to Visa Posts for Handling of Student (F) & Exchange Visitor(J) Visa Issuance

• The Department of State has released a cable to visa posts reminding them of several important visa processing policies as follows:
  • INITIAL ENTRY STUDENTS MUST NOT ENTER BEFORE 30 DAYS:
  • (1). While students may apply for F visas at any time, consular officers may not physically issue them until ninety days before the program start date. More importantly, initial entry students may not use these visas to enter the United States for the first time until thirty (30) days before their program start date. This rule does not/not apply to returning students, who may be issued an F visa at any time, and who may return to school at any time.
  • (2). While J visas may be applied for and issued at any time, initial- entry J visitors also may not enter the United States for the first time until thirty (30) days before their program start date.
  • (3). Immigration inspectors have turned around qualified students who have attempted to enter the United States for the first time as a student before the thirty-day period. In order to prevent this from happening, Posts should attach the following notice to F, M or J visas issued to initial-entry students more than thirty days before their program start date: "To all recipients of an F, M, or J student or exchange visitor visa: Please be aware that United States Department of Homeland Security regulations state that holders of F, M, or J nonimmigrant visas will not be admitted to the United States until a date thirty days or less prior to the beginning of your program date, or start date, as given on your Form I-20 (for F or M visas) or DS-2019 (for J visas). An immigration inspector may deny you entry into the United States if you use this visa earlier than this thirty day period. Please consider that date carefully when making your travel plans to the United States."
  • (4). Students who are still interested in traveling to the United States before the thirty-day period may do so on B visas. They may have both a B and an F, J or M visa in their passport at the same time. Students coming in to the United States early on a B should be reminded that they cannot begin their programs in B status. As it is unlikely they could receive change-of-status before the start of their studies, they will have to depart the United States and re-enter on their F no more than thirty days before their program start date.
  • PRIORITY SCHEDULDING:
  • (1). Posts are reminded to give priority scheduling to persons applying for F, J and M visas. These visitors are often subject to deadlines, and consular officers should give them every opportunity to arrive in the United States on time to begin their programs. While there may be a number of ways to offer expedited processing to these visitors, all Posts should have procedures in place to do so.
  • (2). Posts must insure that procedures for obtaining priority appointments for students and exchange visitors are well-publicized and transparent. At a minimum, these procedures should be posted on the consular section's web page. Outside agencies contracted to provide interview scheduling for the consulate should also be briefed on how to give priority appointments for students and exchange visitors. Instructions should be given to local educational groups, exchange visitor programs and other interested parties about how to do this.
  • (3). Several posts have expressed concerns about abuse of the special scheduling for students and exchange visitors by persons hoping to get an earlier appointment to apply for a visa in another category. One way to screen out such applicants is to ask for their SEVIS number. All applicants for Fs, Js and Ms will have a SEVIS-generated I-20/DS-2019 with a unique SEVIS number. If this is a potential problem, Posts have the discretion to request SEVIS numbers when giving priority appointments. However, this is not a requirement; students and exchange visitors may wish to make visa appointments before they receive their actual form. Posts may give priority appointments to these individuals if it is apparent that they are in fact bona fide students or exchange visitors.
  • (4). More than ever before, visa processing for students and exchange visitors is not only an important consular function, but an important and visible part of the Department's overall mission. We are counting on our consular officers overseas to make sure that these applicants are accommodated to the greatest extent possible.
• We welcome the State Department's move to require the visa posts to handle student and exchange visitor visas expeditiously. Read on for the full text of the cable.

08/08/2004: "I-Visa" Eligibility for Foreign Employees of Independent Production Company Without Credentialing

• The U.S. Department of State issued a cable to visa posts to revise its policy on the eligibility of "I" visas without credentialing for certain foreign media representative. Until now, absent the credential or credentialing as the foreign media representative, even if they meet the definition of "foreign media representative, the visa posts had refused to issue "I" visas to the foreign media representatives. By this cable, the Department of State and DHS agree that where an alien satisfies the definition of "foreign media representative", and where the sending country does not have a credentialing authority, or where the credentialing authority does not have jurisdiction over the class of journalists to which the alien belongs, that alien qualifies for "I" status. Accordingly, employee of Independent Production Company "I" classification may be accorded not only to primary employees of foreign information media engaged in filming a news event or documentary, but also to the employees of independent production companies if the employees either: 1) hold a credential issued by a professional journalistic association, or 2) if no such credential is available, i.e., the sending country has no credentialing authority or the credentialing authority in the sending country does not offer credentialing to the class of media representatives to which the employees belong, the employees satisfy the definition of "representatives of foreign media" in the Foreign Affairs Manual.
• This cable will affect particularly the employees of independent production companies in Canada for whom credentialing is unavailable and could not enter the U.S. in "I" foreign media representative status. Read on.
  

08/07/2004: Visa Posts in Mexico Make Nonimmigrant Visa Interview Scheduling via Cellular Phone

• Until July 27, 2004, for anyone to schedule a nonimmigrant visa interview or Q&A over the phone, he/she had to use 01.900--- number. It was not only expensive but also available only to the Mexican nationals. Other people had to to use internet scheduling and no Q&A was available.
• The Embassy of the United States of America introduced a new option on July 27, 2004 for cellular telephones to access the official Visa Information Service, the telephone based service that provides nonimmigrant visa information and schedules all appointments for nonimmigrant visa interviews throughout Mexico. The new option will now allow applicants to call from cellular telephones to receive visa information and to schedule nonimmigrant interview appointments, by first obtaining a Personal Identification Number (PIN) from any branch of Banamex. The PIN provides eight (8) minutes of access to the service at a cost of the Mexican Peso equivalent of US$10.00, including tax (IVA). The exchange rate is fixed by the U.S. Embassy and currently a PIN costs $115.00 Mexican Pesos. Twenty-four (24) hours after making the payment at Banamex for the PIN number, applicants will be able to call the Visa Information Service at 01-800-112-8500, to receive information and to make an appointment. This provides service from cellular phones or from a telephone without 01-900 capability. Spanish and English speaking operators are available to answer questions and schedule nonimmigrant interview appointments, if required. The service is available to the public from 7 a.m. to 9 p.m., Monday – Friday and 9 a.m. to 3 p.m. on Saturday and Sunday. Five (5) immediate family members may be scheduled using one PIN. Please note, if the eight (8) minutes provided using the PIN run out, a new PIN must be purchased and the service called again.
• This new initiative an option to the 01.900 number access. People may keep using 01.900 number if they wish, of course at higher cost and only at 01-900 capability. For the announcement, please click here.

08/07/2004: Visa Post in Hong Kong Makes Employment-Based Nonimmigrant Visa Issuance Speedier

• Effective August 5, 2004, temporary professional workers, intracompany transfers, certain atheletes, artists and entertainers (H, L, O, P and Q visa applicants) do not need to make an appointment to apply for a U.S. non-immigrant visa at the visa post in Hong Kong. These applicants may come to the U.S. Consulate General in Hong Kong Mondays through Fridays from 8:30-10:30 a.m. (except for Hong Kong and U.S. holidays). The following documents are required for the visa interview: passport, completed application form, required documentation from the Department of Homeland Security (DHS), fee receipt from Dah Sing Bank, and any other supporting documents applicants may wish to bring. For the announcement, please click here.

08/07/2004: Where is the PERM?

• Probably, by now people are sick to hear the term "PERM." There have been few "promised lands" which have not been kept and frustrated people as bad as this one. Ever since the DOL released the so-called "Five-Year Strategic Plan" in 1999 announcing the backlog reduction strategies which included the backlog reduction for existing cases and start of the PERM program for the new cases, it has surfed unknown territorial water over and over with no end in sight. After a struggle, DOL was successful in releasing the "proposed" regulation. Reportedly, the proposed regulation produced mountains of comments of pros and cons, giving the DOL an excuse for the further delays. Along the way, there was a change of leadership in the Foreign Labor Certification Division in the DOL leading to another delays. For heaven sake, despite the hurdles after hurdles, the DOL was able to work out the final regulation under the new leadership and forwarded it to the OMB in the White House in February 2004. When the 90-day review ended on May 21, 2004, the DOL reportedly requested the OMB to extend the OMB review because of the comments from its sister and brother agencies of Homeland Security Department, State Department, Department of Justice, etc. In the June AILA National Conference in Philadelphia, the Chief of the Foreign Labor Certification of DOL who was in charge of the PERM disclosed that the final regulation had to be revised because of the "room for fraud" concerns addressed by its sisters and brothers. The question remains where these brothers and sisters were when the proposed regulation was released!
• Now this regulation is being held hostage in the White House. The American economy is continuously struggling despite the rosey picture some so-called "financial analysts" and political pundits attempt to draw through the cable TVs, Internets, and printed newspapers. Unemployment rate continues to remain high without much changes. Outsourcing has already given a trouble to the Bush Administration in the 2004 election politics. Now, we start hearing a rumor that the concept of "21-day" approval of foreign labor certification rather than taking years and years is the last "word" which the White House wants to hear under the current election environment. Anti immigration forces have also been working hard to picture the PERM program as "opening a flood gate for the foreign cheap laborers." The truth of this rumor is still unverificable. One thing we can only tell is that the regulation is going nowhere in the OMB, White House. The 90-day extension will reach on August 20. God knows what will happen then. No wonder why people hate politics and the term "politician" is not a noble term, unlike "statesman." Come November, whoever wins, we want to see a life which is not "totally" washed out by politics.

08/07/2004: USCIS Reports Reduction in Backlogs: Where is the Beef for the Employment-Based Cases?

• Mr. Aquirre, Director of USCIS reportedly disclosed today that at the end of July, the national backlog was reduced from 3.7 million cases to 2 million. In Houston, officials report that the time it takes to process a permanent residency application has been cut in half, from up to two years in June to about a year at the end of July. The officials attribute the backlog reduction at the local levels to an aggressive effort to process old cases and at the same time to increase appointments at the front ends. This reporter has already reported that in the family-based immigration cases, it currently takes approximately one year or less to schedule interviews wherein they determine approval or denial of the cases. Expansion of the Dallas District type of Pilot Program may further help to reduce the backlogs in the family-based immigration cases. For the news report, please click here.
• In the emplolyment-based immigration cases, the USCIS announced that it would achieve the reduction of backlogs simultaneously from the two ends: At one end, it would accelerate the name-check and fingerprint scheduling for existing cases to reduce the backlog cases in the pipelines, and at the other end, it would commence "concurrent adjudication of I-140 and I-485" for the new cases at the timeline of I-140 processing. The goal was allegedly to reach a certain point where the processing times for existing cases and the processing times for new cases become the same. For the frontend backlog strategy, the USCIS allegedly is also testing water an aggressive Pilot Program through the California Service Center to adjudicate I-140/I-485 cases within 90 days. However, there are no visible results reported anywhere, at least at this point of time. There is no visible sign of change of processing times for I-140 and I-485 cases in the USCIS processing time reports which should report the pace of cases which are already in the pipeline. In fact, it rather produced a negative fall-out. The Service Centers appear to be not consistent when it comes to the concurrent I-140/I-485 adjudications. But in certain Service Centers, there is a sign that they process I-140 and I-485 concurrently even for existing cases, resulting in I-140 petitions being stuck pending processing and adjudication of I-485 applications. This has created a tremendous problem to the applicants who need change of employment using AC 21 which allows the I-485 applicants to change employment after 180 days of filing inasmuch as I-140 has been "approved." Consequently, unless the USCIS achieves the concurrent adjudication within 180 days of concurrent I-140/I-485 filing, the current concurrent I-140/I-485 adjudcation policy produces chilling effect on the legislative intent of AC 21 making this provision a mockery. The current pace of processing of concurrent I-140/I-485 produces a large number of victims who have lost but located a similar job after 180 days of filing but are facing denial of I-485 because of the unadjudicated I-140 petitions. We do agree with the USCIS that administratively it would make more sense to process I-140 and I-485 by the same people in the same production unit within the building rather than the two different units handling these cases, but the USCIS should release I-140 processing from being held a hostage of I-485 processing/adjudication considering the above-mentioned unintended consequences and chilling effects on the AC 21 legislation.
  

08/06/2004: Somalia TPS Extension Designation Till 09/17/2005

• The extension of Somalia's TPS designation is effective September 17, 2004, and will remain in effect until September 17, 2005. The 60-day re-registration period begins August 6, 2004, and will remain in effect until October 5, 2004.Re-registration is limited to persons who registered under the initial designation (which was announced on September 16,1991) and also timely re-registered under each subsequent extension of the designation, or who registered under the re-designation (which was announced on September 4, 2001) and also timely re-registered under each extension of the re-designation. Certain nationals of Somalia (or aliens having no nationality who last habitually resided in Somalia) who previously have not applied for TPS may be eligible to apply under the late initial registration provisions. For the full text of federal register notice, please click here.

08/05/2004: Transfer of Immediate Relative Petitions (I-130) from NSC and TSC to California Service Center

• AILA has reported that the CSC has been taking over the Immediate Relative Petitions processing from Nebraska Service Center and Texas Service Center. It is hoped that the move alleviates current backlog in processing of these cases in the jurisdiction of NSC and TSC. Immediate Relative Petitions are filed by a U.S. citizen parent for a minor child or a U.S. citizen spouse for an alien spouse or U.S. citizen son/daughter for the parent. When the beneficiary immediate relatives are present in the U.S. and eligible for adjustment of status, such I-130 petitions are filed with the National Benefit Center through the local district offices. The immediate relative I-130 petition is filed at the CSC or NSC or TSC or VSC when the alien immediate relative is outside of the U.S. or even if he/she is present in the U.S., the alien beneficiary is ineligible for adjustment of status through the USCIS. In such cases, they need to obtain I-130 petition approval first through the Service Centers and seek an immigrant visa at the visa posts outside of the U.S. or through the immigration courts in the removal proceedings. These people will receive in the mail notices from the CSC even if they filed with the NSC or TSC.

08/05/2004: Philadelphia/Dallas Backlog Reduction Centers Contractor Job Opportunities

• The U.S. DOL reportedly awarded the contract to a private contractor in Lamham, Maryland, on June 30, 2004, named Exceed Corportion, to handle processing of the permanent labor certification applications at the Philadelphia and Dallas Backlog Reduction Processing Centers. The contract amount is $16,079,413.00. The Exceed Corporation is currently actively recruiting people to fill the positions including 60+ Analysts each to work at the Philadelphia and Dallas Centers. These jobs can open an opportunity for some of the current state labor certification staffs to get a job which they are familiar with. For the details, please click here.

08/03/2004: US-VISIT "Exit" Control Expansion in Effect at 13 Additional POEs Today

• The DHS published a notice today additional thirteen air or sea ports. This notice further provides a complete listing of the fifteen air and sea ports where US-VISIT exit pilot programs are in operation.
• The Department of Homeland Security (DHS) has established the United States Visitor and Immigrant Status Indicator Technology Program (US-VISIT), an integrated, automated entry-exit system that records the arrival and departure of aliens; verifies aliens' identities; and authenticates aliens' travel documents through comparison of biometric identifiers. On January 5, 2004, DHS published a notice identifying one air and one sea port of entry designated for US-VISIT inspection at the time of alien departure to initiate the US-VISIT exit pilot program. Today's notice informs the public of the implementation of US-VISIT exit pilot programs at the following additional thirteen (13) air or sea ports:
  • Baltimore, Maryland (Baltimore/Washington International Airport)
    Newark, New Jersey (Newark International Airport)
    Atlanta, Georgia (William B. Hartsfield International Airport)
    Chicago, Illinois (O'Hare International Airport)
    Philadelphia, Pennsylvania (Philadelphia International Airport)
    Dallas/Fort Worth, Texas (Dallas/Fort Worth International Airport)
    Detroit, Michigan (Detroit Metropolitan Wayne County Airport)
    Las Vegas, Nevada (McCarran International Airport)
    San Juan, Puerto Rico (Luis Munoz Marin International Airport)
    Phoenix, Arizona (Phoenix Sky Harbor International Airport)
    San Francisco, California (San Francisco International Airport)
    Agana, Guam (Agana International Airport)
    Denver, Colorado (Denver International Airport)
• For the full text of the notice, please click here.
  

08/02/2004: Biometric Identifier Passport Requirement Extension Bill To Be Signed Shortly

• This bill was swiftly presented to the President on July 28, 2004 as soon as it passed the Congress. Since the Congress is out of session, the President is expected to sign this bill into law within ten days.

08/02/2004: Overhaul of Student Visa Process Urged Again

• Despite the State Department's repeated release of statements minimizing backlogs of student visa processing, report indicates that a lengthy application process, redundancy in interviews and repetitive security checks must be overhauled, Nils Hasselmo, president of the Association of American Universities, said. The average wait time for a security check in the last year was reportedly 67 days. Student visa applications are also down 21 percent since 2001. These policy experts in the higher learning institutions once again urged the DHS and the State Department to streamline the process and to reinforce the government's commitment to invest in the cultural exhange of ideas. Read on.

08/02/2004: Fronview Immigration Photograph in Effect Today

• USCIS announced today that effective today the USCIS took the frontview photos, but sideview photos will also be accepted before September 1, 2004. Beginning from September 1, 2004, the USCIS will not accept the sideview photos.
• Those who have already filed the applications with the sideview photos will not be affected by the change. For the announcement, please click here.

07/30/2004: USCIS Published Rule Removing Limitation for Period for EAD

• The USCIS published this desirable rule today. This removes the limitation for the USCIS to issue EAD for one-year validity period. Consequently, the USCIS is allowed to issue EAD for period longer or shorter than the one-year EAD which the immigration community is familiar with. The USCIS determine the validity period of EAD each time a new EAD is applied, or a renewal EAD is applied, or a replacement EAD is applied on the basis of the following standards:
  • Immigration status of the applicant
  • General processing time for underlying application or petition
  • Required background checks and response times for background checks by other agencies
  • Other security considerations or factors.
• Where a political asylum is granted by the immigration court, USCIS will issue the EAD valid upto five (5) years.
• This rule is effective today. EAD Rule.

07/30/2004: USCIS to Terminate and Redesignate Temporary Protected Status for Liberians

• On July 29, 2004, the USCIS requested OMB review for notice of termination and redesignation of TPS for certain Liberians in the United States. For the upcoming notice, please stay tuned to this web site.

07/29/2004: Transitional Period for Immigration Photograph Changes

• AILA has been advised that at least until September 1, 2004, the USCIS will accept both frontview and sideview photographs. The people who have already filed the sideview photos do not have to resubmit the photos until at least January 2005 when the USCIS will decide what to do.

07/29/2004: F/J H-1B Cap Gap Filing Deadlines

• The USCIS will have to receive such H-1B petition by tomorrow. In this regard, it will be last day today to send out such petition "by overnight delivery services." People should confirm that it is indeed delivered to the agencies through overnight services online tracking system.
• Cabeat: When it comes to filing of motion to open for those whose H-1B change of status was denied on the Cap Gap issue, there is currently no mandates for the USCIS to reopen such denial decisions and it remains an issue of exercise of discretion by the agency. There is no published announcement by the USCIS on the deadlines for filing such motion to reopen, but one AILA source disclosed it should be filed within "next couple of weeks." It is thus suggested that such motion to reopen be filed "as soon as possible."

07/28/2004: Immigation Photograph Changes from Sideview to Fronview Photos

• AILA has reported that the immigration services have decided to abandoned the traditional practice of sideview photo requirement in various immigration proceedings and adopt the passport/visa frontview photograph as early as August 1, 2004. Immigrant community is advised to take and submit the new fronview photographs from here on. Please watch for the USCIS' official announcement.

07/26/2004: Advisory for Last Minute H-1B Filers of F/J Students By 07/30/2004

• It is critically important that their I-129H petitions be "received" by the USCIS to take advantage of the USCIS notice to extend their F/J student status during the H-1B cap gap period pending application for change of status. The people who really have to file at the last minute should remember the following two points:
  • Online filing rule indicates that it will be instantly considered "receipted" and "filed" upon receiving the petition online.
  • In the event that one cannot collect all the supporting documents, they should still file the petition wilhout missing one of the following:
    • Signature on the forms(I-129, I-129H, I-129W)
    • Certified ETA 9035E
    • Check with correct amount of filing fees with no deficiency, particularly date and signature.
  • Failure of the above two points will face "rejection" of filing with the deadly consequences in some situations. Missing documents other than the properly signed forms and checks can be supplemented when they receive RFE.

07/25/2004: Congress Passed Bill to Extend 1-Year Biometric Passport Requirement for Visa Waiver Entry of 27 VWP Countries

• Report indicates that the Congress passed this bill by voice votes Thursday before they left the Hill for a 6-week break. The bill awaits President's signature. The bill also reportedly extended installation of scanner of biometric passport identifier passports at the ports of entry in the U.S. What this means is that the nationals of these 27 countries will be able visit this country "without a visa" in the passport even if their governments have failed to issue a biometric identifier passport. However, when they enter the U.S. the U. S. government will obtain the biometric identifier under the US-VISIT Program in the form of scanning of index finger and photograph image.
• People should not be confused this posting with the ongoing biometric identifier obtaining process for a visa issuance at the American visa posts throughout the world and at the port of entry for all the nonimmigrants entering with or without a visa. Biometric identifier "passport" requirement is separate from biometric identifier "visa" or biometric identifier "inspection" process at the ports of entry. These two processes will be implemented as scheduled per the legal deadlines.

07/25/2004: Increasing I-140 Denial Culture and Importance of Maintaining H-1B Nonimmigrant Status

• There are some indications that ever since the so-called Yates memo was released on RFE, employers see more and more RFE and denials of I-140 petitions on both the issues of employer's eligibility and alien's eligibility. From the perspectives of USCIS, the focus of denials of alien's immigration benefits can be placed either on I-140 or I-485 applications. For practical reasons, though, it may be more convenient and servces the agency's purposes better to focus on I-140. First denial of I-140 makes it unnecessary to reach the concurrently filed I-145, which can also be denied outrightly. Secondly, it can better manage political issues associated with the alien's change of employment freehand in the concurrently filed I-140 cases. Currently unless I-140 is first approved, the I-485 applicant is unable to change employment evan after 180 days of I-485 filing. Thirdly, denial of I-140 can block out the aliens who are not in a valid nonimmigrant status from reattempting to file the concurent I-140/I-485 green card application second time, unless he/she is eligible for 245(i) benefits. The 245(k) benefit is practically shut out in the event that I-140 is denied. Remember that 245(k) benefits remain alive in the event that I-485 is denied and the alien can refile I-485 application based on the approved I-140 petititon inasmuch as the status violation or unauthorized employment lasted less than six months since the last admission to the U.S. I-140 denial will also block another option of green card, to wit, consular immigrant visa processing. Fourthly, revocation of visa or immigrant petition has turned into a political quackmire in connection with the issues of admission of terrorists, and petition adjudication has received increated attention.
• In such I-140 denial culture, it is extremely important that the H-1B professionals maintain H-1B nonimmigrant status rather than sitting on EAD/AP status for the two reasons: The I-140 denial or I-485 denial does not disqualify the petitioner/applicant to refile the cases inasmuch as it does not constitutes a frivolous filing and more importantly the alien is in a valid nonimmigrant status. Those who stay and work on EAD/AP pending the decision of I-140/I-485 petition immediately loses a legal status as soon as I-140/I-485 is denied and becomes ineligible to file another I-485 unless he/she is eligible for 245(i). Secondly, the denial of I-140 is appeallable to the appellate agency and pending the decision of appellate agency, the alien in H-1B is eligible for 7th year or indefinite extension of H-1B beyond the 6-year limit if the alien is eligible for such extension under the AC 21 Act as amended by the DOJ Authorization Act. This is possible because the statutory amendment makes 7th year extension available until the "final decision" of his/her petition or application aftervpassing 365 days from the date of the labor certification application or a petition in the case of L/C waiver categories. Additionally, such extension is "not" subject to the annual cap of H-1B, which becomes more and more important nowadays. On the other hand, the denial of I-485 application is not appealable. In order to make the denial not final, one has to file a litigation before the federal court of appeals , which is usually not a workable option in terms of time and cost.
• One time, legal counsels advised their clients of the benefits of EAD/AP options under the extremely high unemployment rate and the lenient interpretation of AC 21 by the legacy INS. At the time, denial of I-140 was a rarety rather than a norm. All the aliens had to worry about was denial of I-485 applications. The direction of wind has swifted substantially since then putting them in a different environment. One thing people should note is the added weapons which USCIS can utulize, which are made available by the "concurrent filing of I-140/I-485." The USCIS appears to dig into the I-485 supporting documentation and develop issues of I-140 denial from these evidence such as incime tax returns, W-2 copies, etc., which can be used to challenge employer's finanacial ability to pay or existence of bonafide permanent job or bonifide business or legitimate nature of job opening as related to the familial relationship between the employer and the alien, etc. When I-140 petition was filed separately, these evidence was not available to the adjuditors of I-140 petitions.
• Caveat: The foregoing discussion is applicable "only" to H-1B professionals who can comply with "all" the terms and conditions of Labor Condition Application without any violations such as wages, locations, no benching, etc. Otherwise, staying on H-1B status can lead to denial of I-485 for failure of maintaintaing nonimmigrant status. Such aliens should stay and work on EAD/AP to avoid I-485 denials since the employer and the alien employee will no longer be required to comply with the terms and conditions of H-1B status. Please seek legal counsel.
• A wise man or woman never judges one's fate based on somebody's experience or rules which are related to different times and political/policy environment and not relevant to his/her case because of minute-to-minute changing immigration environment and differentials in the specific facts. Please seek legal counsel.

07/24/2004: Family-Based I-485 Interview Scheduling of National Benefits Center

• The record will reflect that the Minneapolis-St. Paul district office was selected as the first district office in the nation that required indirect filing of all the family-based I-130/I-485 one-step applications. It was probably in August 2003. The applicants were required to file at the local district office in Minneapolis-St. Paul but the district office immediately packed the filing and forwarded it to the newly opened National Benefits Center in Missouri through the lock box in Chicago. This indirect filing expanded to other districts and areas step by step and people in majority of jurisdictions by now go through this process, excluding the Pilot program cases in Dallas District office jurisdiction. The experience of these cases in the Minneapolis-St. Paul jurisdiction may shed some light on the trend of scheduling of interviews at the local district office. Our record reflects that the cases which we filed under the indirect filing from August through Sectember 2003 started receiving interview schedules dated in September 2004. Accordingly, the whole family-based green card application process for an individual case is expected to be completed in approximately 12 months. Not bad at all under the given circumstances, we must admit!

07/24/2004: NSC Advance Parole and Reentry Permit

• It appears that NSC makes the lives of 485 waiters and green card holders easier at least in one area. There is no official announcement but our record reflects that the NSC started issuing Advance Parole consecutive to the date of expiration of existing Advance Parole. As for Reentry Permit, the NSC issues the document with the adjudication date as the starting date of the Reentry Permit that will last for two years from the starting date. This practice is particularly important for the Reentry Permit applicants who had to wait for one year or longer to see the adjudication of application. We commend the NSC for its action towards the right direction. In the past, there had been a waste of old Advance Parole or old Reentry Permit documents because of the legacy INS issuing the documents with the valid date starting from the application date. The same was true with the EAD renewal. Such practice indeed helped the legacy INS to add its worksloads leading to the mounting backlogs of the immigration benefits adjudications. The inconvenience and waste of expense for the applicants under the old practice need no mention here. Since the USCIS is expected to release a new regulation soon that allows the USCIS to issue EAD which will remain valid until the underlying green card application will be adjudicated, all of these moves of Mr. Bill Yates will contribute tremendously to reduction of the USCIS workloads and reduction of backlogs. We just hope that his another innovative idea to remove Advance Parole and incorporate the travel permit in the EAD card be favorably accepted by the higher-ups in the Administration and the immigrant community. This will again reduce "tremendously" the USCIS workloads in the future.
• Right on, NSC and Mr. Bill Yates!!

07/24/2004: Centralized Processing of Labor Certifications: PERM vs. Backlog Reduction Center

• As the DOL moves step by step from the local/regional processing system to national/centralized processing systems, the labor certification process will witness uniformity and consistency in processing time, application of standards, and adjudications. Accordingly the current variance of practice, processing times, standards and adjudication among the 50 states and six regions (10 practical regions including the subregions of New York, San Francisco, Denver, and Kansas City) will gradually disappear and influence of human factors and idiosyncrecies will also be drastically reduced. This drastic change will be more noticeable in the PERM program in that the electronic system will play a much bigger role in this system than Backlog Reduction Center system in that the PERM application will introduce certain machine readable features in the form and machine will read and determine the eligibility of the application to a greater extent leaving the tasks of human analysts and certifying officers to de minimus. In the Backlog Reduction Center, it is likely that the two centers, Philadelphia and Dallas, will take over the cases on file at the state offices and regional offices and complete the whole labor certification for each individual application from the start to the finish. Accordingly, unlike the PERM program, the analysts and leaders of the each Reduction Center will play a bigger role in processing and adjudication.
• Supposedly, the Backlog Reduction Centers are mandated to process and adjudicate the backlog applications under the current rules and standards. As everyone knows, the labor certification offices in states and regions run de facto 50 different rules, standards, and practices under the current system, producing the winners and losers among the immigrants depending on the location of the jobs. These 50 practices and policies run on a wide spectrum from the most conservative offices to the most liberal states. Obviously the current winners and losers will be profoundly affected by the directions and policies of the Backlog Reduction Centers depending on how liberal or conservice each Center will be. This is indeed a big open question. Reduction of backlog does not necessarily imply that it will come with increased rate of approval depending on their policies and directions. The processing times will be definitely reduced, but it is an unknown territory when it comes to the rate of denials. One just pray that the rate at least stays with the current trend.
• As we reported earlier, the two Backlog Reduction Centers will be mostly manned by the contractors and the DOL has already selected the contractor to run these two centers. The sources indicate that each of these two centers in Philadelphia and Dallas will have approximately 60 analysts with the total manpower of from 80 to 100 people. As the state offices gradually phase out of the permanent labor cerification process, some of the analysts at the current state labor certification offices and regional offices may be absorbed into either the PERM Centers (Chicago and Atlanta) or these two Backlog Reduction Centers as the employees of the private contractors. Along the way, the two Backlog Reduction Centers will develop their own uniqueness and different directions and policies just like those which we are witnessing among the Service Centers in the USCIS. But two are better than five or 50 different idiosyncrecies.
• The centralized labor certification systems grant a monstrous power to the Chief of Forein Labor Certification Division or National Certifying Officer at the DOL HQ. The nature of future directions and idiosyncrecies of the centralized processing centers for the PERM and Backlog Reduction Centers is expected to be molded into the new reengineered labor certification systems by the HQ in the forms of Directives and Memorandums. We just hope that the policies and directions be not molded into a restrictive and conservative shell leading to rise of the rate of denials. We also hope that most of 300,000 backlog cases be not only adjudicated swiftly but also liberally so that the 300,000 souls soon see the bright light at the end of tunnel in the near future.

07/23/2004: USCIS is Advised to Correct the Error in the F/J Student H-1B Cap Gap Notice

• In return for Mr. Yates' generous exercise of discretion, this reporter wants to remind Mr. Yates that the Notice includes a conflicting deadlines for filing H-1B petitions. The USCIS announcement and the 07/23/04 official Notice in the federal register provide in part that the H-1B petition must be filed prior to or before July 30, 2004, meaning that the last date for "receipt" be July 29, 2004. On the other hand, in other part of the Notice in the federal register, it provides that the H-1B should be filed "on or before July 30, 2004," meaning that the last date for receipt be July 30, 2004. From the whole context of the federal register notice, the Notice appears to be intended to mean "on or before July 30, 2004 and the USCIS web site announcement and other part of the federal register could be an error. USCIS may quickly release federal register notice as early as possible next week to correct the Notice.

07/23/2004: Results of DV-2005 Immigration Lottery by Each Country

07/23/2004: Generous Bill Yates/USCIS Deputy Director Allowing Motion to Reopen H-1B Denials for F/J on H-1B Cap Gap

• AILA has reported that considering the last minute release of the H-1B cap gap notice for F/J students, Mr. Bill Yates, Deputy Director of USCIS has decided to adopt two practice points for the USCIS (not official policy) for those cases involving denial of F/J's Change of Status petition to H-1B for not being able to maintain F/J status until October 1, 2004:
  • Cases Denied Before 07/23/2004: Such F/J may either file a motion to reopen or file a new H-1B petition before July 30, 2004. They are required to pay the filing fees. If you file a motion to open the denial, it will be allowed to file even after 07/30/2004 but before August 23, 2004 since the rule of motion to reopen requires that the motion to reopen be filed within 30 days. However, if you file a new H-1B, it has to be filed by 07/30/2004.
  • Cases Filed Before 07/23/2004 and Denied After 07/23/2004: Such F/J may file a motion to reopen without the filing fees as such denial will be taken as an error by the USCIS.
• It is evident that such motion will be available when the alien was in status at the time they filed a H-1B petition which resulted in denial before or after 07/23/2004 on the issue that the F/J would not be able to maintain staturs through October 1, 2004. For the J aliens, it is reminded once again that the H-1B cap gap notice benefits are limited to only J students and their family members, and J aliens in other programs will not be given the benefits of the Notice.
• On behalf of the immigrant community, this web site wishes to express the gratitude for Mr. Yates' thoughtful exercise of discretion. Thank you, thank you..............

07/23/2004: DHS Published Notice for Certain F/J Aliens Seeking H-1B Status

• As we reported yesterday, the DHS/USCIS published today this notice. The Notice takes effect today, 07/23/2004. Read on.
• Now three down, and one to go for the rule-making issues, PERM final regulation. Please read back our 07/17/2004 posting.

07/22/2004: Nation-wide InfoPass Scheduler Launch Schedule by USCIS District

• The USCIS announcement of 07/22/2004 reflects that the InfoPass Scheduler will be expanded nationwide under the following tentative schedule:

• Launch Dates	Districts
  August 09, 2004	Buffalo, Newark, Philadelphia
  August 16, 2004	Atl, Baltimore,Bos,Portland/ME,New Orleans
  August 18, 2004	Chicago,Houston
  August 23, 2004	Cleveland,Detroit,San Juan, D.C.
  August 30, 2004	Anchorage,Honolulu,Phx, Portland/OR. San Diego, SF, SEA
  September 8, 2004	Denver, El Paso, Harlingen, Helena, Kansas City, Omaha, San Antonio, St.Paul

• For the announcement, please click here.

07/22/2004: Extension of F & J Pending COS to H-1B Using FY 2005 Cap Number

• AILA has reported that this long awaited regulation will indeed be published tomorrow. The outline of the rules is as follows:
  • The regulation will extend F or J and their dependent family members' status until October 1, 2004 "if" the following conditions are satisfied:
    • The alien should have maintained F or J status without violation at the time of filing H-1B petition;
    • The H-1B petition must be filed "before" July 30, 2004;
    • The H-1B petition must be filed "timely." Timely means the Receipt Notice should show a date prior to July 30, 2004 as the Receipt Date and the alien should be in status. Postmark is no good and the case must be receipted by the agency before July 30, 2004;
    • On the H-1B petition, the starting date of the employment should be "no later than" October 1, 2004.
  • Once the foregoing conditions are met, the F, J, and their family members' s"status" will be automatically extended until October 1, 2004. In the case of J nonimmigrants, this rule will apply only to J-1 "students" and their family members. Accordingly, J-1 and their family members who are here on J-1 exchange program other than a student study program, the benefits of this notice will not be extended to them.
  • If the H-1B petition is still not adjudicated and pending beyond October 1, 2004, the alien's status will expire but the clock for unlawful presence will not run until the H-1B petition is actually adjudicated. Accordingly, should the H-1B petition be denied after October 1, 2004, no unlawful presence will accumulate for the purpose of 3-year bar or 10-year bar from returning to the U.S.
  • If the H-1B petition is denied within the 60-day or 30-day grace period after completion of F or J practical training or F or J program, the alien will be able to remain and complete the 60-day or 30-day grace period. In other words, should a F-1 student files H-1B petition without practical training but within 60-day grace period from the completion of the school program, even if the H-1B is denied, he or she can stay to use up the grace period before his/her departure.
  • If the H-1B petition is denied after the 60-day or 30-day grace period of graduation or expiration of practical training, the alien will be required to depart from the U.S. immediately.
  • Pending H-1B petition before October 1, 2004, the alien will not be allowed to travel outside of the U.S.
  • Extension is grace-period extension and the aliens will not be allowed to work beyond the period of employment authorization.
• The critical point to remember is that the H-1B petition must be filed before July 30, 2004. Accordingly, the eligible F or J people will have only less than one week to file the H-1B petition.
• Considering the fact that a huge number of FY 2005 cap-number H-1B petitions are expected to be filed by these F or J nonimmigrants next week, it will certainly affect the exhaustion of the available H-1B numbers, and H-1B cap for FY 2005 may reach much earlier than anticipated. People are encouraged to file the new H-1B petitions as soon as possible.

07/22/2004: USCIS Published Canadian/Mexican TN Allied Healthcare Workers VisaScreen Requirement Extension Rule

• As anticipated, the USCIS released this rule today. This rule takes effect on July 26, 2004. Please click here.

07/21/2004: Proposed Labor Attestation Rule for Singapore H-1B1 Visa Awaits DOL Release

• The H-1B1 visa is a hybrid new H-1B visa classification which was created by the Free Trade Agreement with Singapore. Unlike the H-1B visa, the H-1B1 visa requires the employer's attestations. The proposed rule lays out the detailed requirements and procedures. The OMB cleared this proposed rule on July 16, 2004. Please stay tuned.

07/21/2004: Homeland Security Department Intends to Extend TPS Degination for Somalians

• The Notice will be published in the federal register as soon as the OMB review is completed. The Notice was sent to OMB on July 19, 2004. Please stay tuned.

07/21/2004: State Department Eliminated Crew List Visa for Good

• The State Department published today final rule eliminating crew list visas. All crewmembers seeking to enter the United States in that capacity are required to apply for individual crew visas. Read the final rule.

07/21/2004: Labor Certification Backlog Reduction Regulation Published Today

• This regulation will take effect on August 20, 2004.

07/20/2004: Labor Certification Backlog Reduction Regulation Release Imminent, 07/21/04

• AILA has learned that the DOL will release this regulation probably on July 21, 2004. AILA has also obtained a copy of the regulation which will be released as the Interim Final Regulation. The regulation will be implemented in 30 days from the date of publication in the federal register. The regulation is very short and does not go into the details. The skeleton of the backlog reduction are as follows:
  • The Chief of Foreign Labor Certification, William Carlson, is designated as the "National Certifying Officer." This Officer has two authorities under the regulation:
    • Determination of which existing cases at the state offices and the regional certifying officers offices should be transferred to the national reduction processing centers, involving obviously the decision to transfer when, how, in what sequences, etc. The regulation provides that the details on this issue be stipulated and released in the form of "Directives."
    • National Certifying Officer will perform adjudication of certain cases which the processing centers deemed necessary because of the issues involved. These cases will be handled and decided by the National Certifying Officer.
  • The backlog reduction centers will perform the combined jobs of the current state offices and the regional certifying officers offices for the cases which are transferred to the backlog reduction center. In this regard, the backlog reduction center changes from the current two-tier (state-regional) system to one-tier system just like the upcoming PERM program operation.
• The details have yet to be developed and announced by the DOL as to how this regulation will be actually implemented. It is, however, important to learn that the backlog reduction job will go into operation in a month or so from now. Good news, indeed.

07/20/2004: H-1B Capped-Out F Nonimmigrant Legal Status Notice Cleared OMB and Published Within this Week

• On July 15, 2004, the OMB completed and approved the USCIS rule on notice for the legal status of FY 2004 H-1B capped-out F nonimmigrants until October 1, 2004. Accordingly to the AILA, it will be published in the federal register within this week. Please stay tuned to this web site for the publishing of the notice.

07/20/2004: AILA's Washington Update of 07/20/2004

07/19/2004: TN Canadian/Mexican Allied Healthcare Workers Exempt from VisaScreen Certificate Requirement for One Year

• The release of the regulation which is currently under review by the OMB for extension of VisaScreen requirement waiver for one year for nonimmigrant allied healthcare workers is imminent according to the USCIS. The OMB completed its review on July 16, 2004. Disappointingly, however, the extension of the VisaScreen certificate requirement waiver will be limited to those Canadian and Mexican allied healthcare workers who attained the state license and worked on TN status on September 23, 2003. Accordingly, the allied healthcare workers from all other countries will be subject to the VisaScreen certificate requirement from July 26, 2004 for clinical practice nonimmigrant visa application or extension or change of such nonimmigrant status within the United States. These allied healthcare workers will not be able to change or extend their clinical practice nonimmigrant visa status within the United States on and after July 26, 2004 without a VisaScreen certificate!! Those allied healthcare workers who are outside of the U.S. on or after July 26, 2004 will not be able to enter or return to the U.S. without the VisaScreen certificate, unless they are Canadians or Mexicans who will be exempt from the requirement under the shortly-released regulation. The Canadians and Mexicans who do not meet the foregoing exemption requirement will also be subject to the VisaScreen certificate requirement. For the full text of USCIS announcement, please click here. Please stay tuned to this website for the release of the regulation.

07/19/2004: State Department Proposes to Increase Consular Service Fees Effective October 1, 2004

• The U.S. Department of States has published a proposed rule to adjust the fees for the consular services including fees for nonimmigrant and immigrant visa applications effective October 1, 204. Read on.

07/19/2004: DHS/ICE and DOJ/EOIR Propose Rule To Remove Removable Aliens to Third Countries

• The U.S. Department of Homeland Security/ICE and the U.S. Department of Justice/EOIR released a proposed regulation that proposes to amend its rules to establish that acceptance by a country is not required under specific provisions of section 241(b) of the Immigration and Nationality Act (Act) in order to remove an alien to that country, and that a ``country'' for the purpose of removal is not premised on the existence or functionality of a government in that country. This rule clarifies the countries to which an alien may be removed and the situations in which the Secretary of Homeland Security will remove an alien to an alternative or additional country. Comment should be received by August 18, 2004. Read on.

07/17/2004: Important Immigration Issues in Limbo in Rule-Making Process

• There are a number of immigration issues which await resolution through the rule-making process. Among others, PERM final regulation and Permanent Labor Certification Backlog Reduction regulation for the U.S. Department of Labor, ETA, and F-1 Student Legal Status during the FY 2004 H-1B Period regulation and Extension of VisaScreen Requirement for Allied Healthcare Workers for Nonimmigrant Visa/Status Application regulation which includes nurses are currently in limbo in the rule-making process despite the exigent circumstances affecting the lives of so many immigrants in and outside of the United States.
  • Issues of F-1 Student Legal Status During the H-1B Cap: Reportedly, the issue involved the two divisions within the DHS, USCIS and ICE, and the decision between the two agencies took time to lead to submit the regulation to the OMB as a last minute action in that a number of F-1 student in OPT already faced expiration of the grace period after expiration of OPT. Now we are approaching the new fiscal year on October 1, 2004, one wonders how many OPTs will be saved by the upcoming stop-gap measure regulation, assuming that this regulation will indeed be enacted, unless the regulation will save retroactively those OPTs whose status have already run out. The immigrant community is frustrated with the lack of information on the policy and direction of the DHS on this issue.
  • Nonimmigrant Allied Healthcare Worker VisaScreen Requirement: Under the current rule, all the new nonimmigrant visa applications for the allied healthcare workers will require a VisaScreen Certificate for the clinical practice on or after July 26, 2004. It thus has only less than 10 days away to make this requirement extended. Reportedly, the allied healthcare workers who are most affected by the current situation are Canadians. Apparently, there are a huge number of nurses who will not be able to complete the VisaScreen certification process before the deadline of July 26, 2004. The regulation is under the OMB review. It may be completed and published within next week, but we will have to wait and see.
  • Permanent Labor Certification Backlog Reduction Regulation: This regulation, after the 90-day review by the OMB, was cleared by the OMB quite sometime back, but the agency (U.S. Department of Labor) is delaying release of this regulation for the unknown reasons. Reportedly, the Directors of the Backlog Reduction Centers have been offered the jobs and the contractors have been selected, but the rule-making process that specifies the procedures, standards, and qualification has yet to be completed. No one knows why.
  • PERM Final Regulation for Reengineered Labor Certification System: There was practically no other reform which frustrated the immigrant community as much as this reform. It took over four years and is still in limbo. After all the hurdles, the agency finally forwarded the final rule to the OMB on February 23, 2004, but at the last minute of the 90-day review period, the agency requested the OMB to extend the approval of the regulation for the reasons that the DOL faced some different views from other related agencies, assumedly the department of state and the DHS. The OMB thus extended its review beyond May 21, 2004. Without revision, the OMB should have completed the regulation review within ten days after that. But apparently, the DOL revised the regulation to accomodate the views and comments from the related agencies, allowing more time to the OMB to complete the review. Extended review has already taken approximately two months and there is still no light at the end of the tunnel.
• The 9/11 has changed our lives so many ways, but one of its impacts involves "secrecy" crept into the government process for the reasons of homeland security. There are no longer open dialogues in the decision making process between the government agencies and their constituents which were the "norm" before 9/11. Some stake-holder organizations also participate in the secretive process withholding some agency information to the insiders only for fear of retaliation by the agencies to cease leaking the information to the stake-holders. All blames should go to the 9/11 incident, terrorism, and the different world we are living in now.

07/16/2004: Access to Companies' H-1B LCA and Permanent Labor Certification Application Filing Record

• The U.S. Department of Labor makes available to the public access to the record of H-1B LCA and Permanent Labor Certification Application filing record for every employer. All one needs to know is the employer's filing name and state. Here we go:
  • Total number and specifics of permanent labor certification application filing for the green cards by each company: Click Green Card.
  • Total number and specifics of labor condition application filing for the H-1B employment by each company: Click H-1B.
• Have a fun!

07/15/2004: USCIS Will Not Adjudicate I-130 Petitions Until Priority Date Becomes Available

• Today, USCIS announced that the Service Centers would cease to adjudicate the I-130 Relative Petitions until the visa number would become available for the classifications. Accordingly, it advises the I-130 petition approval waiters to ignore the processing times which were printed in their Receipt Notices.
• The policy will affect the immigrant visa application procedure for the immigrant visa applicants residing abroad. Currently, the National Visa Center is commencing the processing of immigrant visa application at least six months before the reach of priority date, helping the immigrant visa applicant to complete the IV application processing relatively early. This NVC practice is available because the USCIS send the I-130 approval notices to the NVC. Under the new USCIS procedure, it will not adjudicate I-130 petitions until the priority date becomes available and the NVC will not be able to process the immigrant visa application proceedings prior to certain later date after reaching the priority date on the Visa Bulletin. As a consequence, the family-based IV applicant of preference categories will experience delays in processing of their application.
• For those who reside in the U.S., the new procedure will not affect the processing times of I-485 since I-485 cannot be filed until I-130 is first approved even under the current practice.
• However, there are a number of areas in the immigration statutes which determine certain benefits by the approval of I-130 petitions, even though most of the benefits are attached by the date of filing (priority date) of I-130 petition, 245(i) benefit for instance. The immigration lawyers should analyze the types of benefits that can be negatively affected by the USCIS policy change on adjudication of I-130.
• For the USCIS announcement, please click here.

07/14/2004: Visa Revocation Without Notice May Go on the Rise

• On July 13, 2004, the U.S. Department of State testified before a Congressional committee on its current practice of visa revocation on certain information relating to the terrorism. The testimony reflects that the Department revokes the visa without notification to the visa holders and the revocation information is entered into the "lookout" database of the Department as well as DHS so that the visa posts and immigration inspectors at the ports of entry have access to the information.
• Coincidentally, the GAO released its report to the Congress about the same time relating to its findings on the flaws in the visa revocation practices of the agencies and need for improvement to achieve the security. The report warned that the flaws in the visa revocation practices were posing a threat to the nation's security. This GAO report is expected to intensify the visa revocation for certain aliens in the future without their knowledge, raising some concerns that the involved aliens are not given in advance an opportunity or recourse to address appropriateness of the revocation and the right to due process.
• For the GAO report, please click here. For the testimony of the U.S. Department of State, please click here.

07/12/2004: Centralization of Employment-Based Nonimmigrant Visa Application Processing in the State Department

• AILA has reported that beginning from July 6, 2004, the U.S. Department of State started the centralized employment-based nonimmigrant visa application processing (approved I-129 petitions) through the National Consular Center in Kentucky. Accordingly, the USCIS started sending the approved I-129 petitions to the National Consular Center and not, repeat not, to the visa posts overseas. Apparent justification is the need for visa fraud and other clearance procedure and achievement of uniformity and consistency among the visa posts.
• However, there is a concern over the bifurcation of the nonimmigrant visa processing, adding additional layer or two-tier system and its impact on the visa application processing times. At this time, no one knows how it will affect the visa processing times.
• When it comes to the "centralization" of immigration proceedings, the immigrant community initially welcome such move because of the consistency and uniformity it could achieve, but it started seeing some negative impact of the centralization of certain immigration proceedings. One of the illustrations involves the centralization of the family-based immigration proceedings at the National Benefit Center. It changed one-tier processing to the two-tier processing and the people who used to get approval of family-based I-485 in less than 10 months now have to wait much longer. Worse yet, EAD and Advance Parole for these applicants takes over six months in a number of cases. EAD was issued in most local offices same day before the change. Unconfirmed sources indicate that there is a 90-day frontlog in processing of receipt notices for EAD and Advance Parole applications!
• As is true with any legal or administrative proceedings of an organization or a government agency, adding additional layer to the processing procedure inevitably creates an additional bureacratic red tapes and delays. Consequently, the immigrant community is getting a sort of phoebia with the term "centralization" because of its potential delays and block of communication with the agency. It is hoped that the concern and fear do not materialize in the new proceedings.

07/07/2004: OMB Reviews Extension of the Deadline for Certain Health Care Workers Required to Obtain Certificates

• The USCIS requested the OMB on June 28, 2004 to review the Interim Final Rule on Extension of the Deadline for Certain Health Care Workers Required to Obtain Certificates. We reported day before yesterday that effective July 26, 2004, the USCIS was scheduled to implement the VisaScreen certificate requirement for the nonimmigrant allied health care workers in order to enter the U.S. or change of status or extension of status for clinical practice after the date. No details are made available at this time. Please stay tuned.
  

07/06/2004: TPS Designation Terminated for Montserrat Effective 02/27/2005

• Effective February 27, 2005, six months from the end of the current extension. To provide for an orderly transition, nationals of Montserrat (and aliens having no nationality who last habitually resided in Montserrat) who have been granted TPS will automatically retain their TPS and have their current Employment Authorization Documents (EADs) extended until the effective termination date. However, an individual's TPS shall be withdrawn because of ineligibility for TPS, prior failure to timely re-register if there was not good cause for such failure, or failure to maintain continuous physical presence in the United States. On February 27, 2005, nationals of Montserrat (and aliens having no nationality who last habitually resided in Montserrat) who have been granted TPS will no longer have TPS. For the notice, please click here.

07/05/2004: Advisory on VisaScreen Certificate Requirement for Nonimmigrant Allied Healthcare Workers 07/26/2004

• July 2004 may be recorded as one of those periods that marked a turning point in a number of important immigration areas. The U.S. Department of Labor is expected to publish the PERM final regulation affecting most of the employment-based immigrants. Visa revalidation will be completedly terminated on July 16, 2004. Now, the allied healthcare workers who have been allowed to work on an employment-based nonimmigrant visa will face a new requirement of VisaScreen Certificate in order to enter the U.S. or change of nonimmigrant status or extension of nonimmigrant status effective July 26, 2004.
• Allied healthcare workers who are affected by the new rule include (1) Nurses (LPN, LVN, RN), (2) Physical Therapists, (3) Occupational Therapists, (4) Speech Language Pathologists and Audiologists, (5) Medical Technologists (Clinical Laboratory Scientists), (6) Medical Technicians (Clinical Laboratory Technicians), and Physician Assistants.
• The VisaScreen Certificate requirement applies to the allied healthcare workers who apply for admission to the country or change of status or extension of status after July 26, 2004. In this regard, the allied healthcare workers should be reminded of the following rules:
  • The allied healthcare workers are eligible to obtain an employment-based nonimmigrant visa for clinical practice before July 26, 2004. However, unless he/she enters the U.S. before July 26, 2004, he/she will not be admitted to the country. Once he/she enters the U.S. before July 26, 2004, he/she should be admitted for a maximum period of one-year on his/her I-94.
  • The allied healthcare workers who are already residing in the U.S. must seek change or extension of status without VisaScreen Certificate before July 26, 2004. These allied healthcare workers who are granted change or extension of status for a maximum period of one-year will be allowed to stay and work in the nonimmigrant status performing clinical practice beyond July 26, 2004 until the newly granted I-94 expires. During the period, though, they should not seek change of status or extension of status after July 26, 2004 because they will be required to submit the VisaScreen Certificate. They should not depart from the U.S. either because they will not be able to return to the U.S. after July 26, 2004 without a VisaScreen Certificate.
  • The VisaScreen Certificate requirement does not apply to allied healthcare nonimmigrants in a training program visa such as F-1 or J-1 or H-3 visa status.
  • The VisaScreen Certificate requirement does not apply to allied healthcare nonimmigrants in non-clinical practice including teaching, administration, etc.
  • The VisaScreen Certificate requirement does not apply to allied healthcare nonimmigrants who seek a nonimmigrant or immigrant status through the occupations which are not related to the clinical practice or eligibility for other nonimmigrant classifications or immigrant status such as family-based immigration, etc.
• The allied healthcare workers are advised to review once again USCIS Memorandum of September 22, 2003 to refresh their understanding of the rules. Please also refer to our previous posting on 07/25/03 and 07/29/03. For the comprehensive guidance, please visit USCIS Site.

07/05/2004: Visa Revalidation Must Be "Received" by July 16, 2004

• Discontinuance of the visa revalidation services will present hardships to a number of employment-based nonimmigrants in this country. This will be particularly true with those of you who are the nationals of former Eastern Block or former Communist Countries who will likely be subject to the Visa Mantis clearance and experience hardship from the protracted clearance process by the agencies outside of the Department of State.
• Unlike other situations, the U.S. Department of State will reject any revalidation applications unless the applications are "physically received" by the Department on or before July 16, 2004. Post-mark is not enough!!! If you have an employment-based nonimmigrant visa in your passport which will either expire within the two months before July 16, 2004 or has already expired but no longer than one year, you should rush to send in applications ASAP. The nationals of the Sponsors of Terrorism are not eligible for the visa revalidation. You should also remember that the Department requires to use not commercial express delivery services but the U.S. Express Mail services. The U.S. Express Mail Services does not necessarily deliver the express mails next day, even if you use the next day air services, unless it is pickup or brought to the postal stations by certain cut-off time of a day. The Department also does not accept personal checks and you should enclose a cashier's check or money order. The cashier check issued by your bank is preferrable because the payment can be tracked down. You should write on your cover letter either the tracking number or certified mail number and keep the Receipt carefully as the evidence of delivery. Inasmuch as these rules are carefully followed and your signature is on the application, the Department will not reject and return the application. Any deficiencies with the filing may be corrected as soon as you receive such notice which is analogous to the USCIS RFE.

07/03/2004: USCIS Actions for Backlog Reduction

• The USCIS released the backlog reduction plan a few days back. However, the announcement lacked the details when it came to the actions to be taken at the stage of "backend" adjudication process. The backend reduction measures have been sporadically disclosed here and there through conference materials and meeting records. The following two are the additional information for the ongoing backlog reduction plan which we discovered:
• Life of IBIS Clearance: In the immigration adjudication process, one of the most obnoxious culprit that causes backlog is IBIS name check for criminals and security risk aliens. For the three years, the immigration agency worked on a rule that the adjudicators conduct the name check before adjudication and the check remained valid "only for 35 days!" Accordingly, should the adjudication fail to complete within 35 days, the adjudicators had to redo the IBIS check over and over again. Not only the IBIS check takes time but also such work demanded a tremendous man/hour workloads leading to the eventual accumulation of backlogs. Recently, USCIS study revealed that the life of IBIS check can last longer than 35 days for the purpose of its intended detection of criminals and secruity risk aliens and has decided to change it from 35 days to "90 days." This is indeed a welcome move. This move will certainly help processing times of I-485 adjudications.
• Pre-Certification of I-129/I-140 Employers: USCIS one time adopted a so-called "sole jurisdiction" concept allowing the U.S. employers to file all their I-129 petitions and I-140 petitions for their alien employees with one fixed Service Center upon the pre-certification by the Service Center involved. Accordingly, large firms hiring alien employees working all different states started filing all the I-129 H and L and I-140 cases with one Service Center no matter where the actual job sites were located. This also affected the location of I-485 filing for the aliens involved. Since the agency had a policy of requiring the aliens to file I-485 at the Service Center which adjudicated I-140 petition, people were able to file I-485 applications not at the jurisdiction of their residence but at the jurisdiction of the employer's sole jurisdiction. The I-485 filers had an option to request transfer of the filer to the Service Center of the jurisdiction of their residence, but considering the fact that the transfer would cause delays, it rarely happened. The immigration agency suspended the sole jurisdiction filing and ceased to grant new sole jurisdiction privilege to the employers for sometime by now. The Service Center which continued to the last moment was Vermont Service Center. The sole jurisdiction filing traffic was one time extremely heavy because, one time, processing times was the shortest and the adjudication standards and practices were most liberal and lenient at the Vermont Service Center. For instance, when there was a gap between the two jobs for the H-1B aliens, while CSC and NSC allowed a very short period of time of 30 days, the VSC recognized even 90-day period. One undesirable consequences of the concept of sole jurisdiction was the forum shopping by the large employers, shopping for the Service Center that gives the fastest and best services for their employment-based petitions and sought sole jurisdiction privilege at the Service Center. Now it is goine. However, the Semi-Annual Regulatory Agenda of the USCIS reflects that it was planning to intoduce a new concept named "precertification" of certain employers filing I-129 and I-140 to streamline adjudication process towards reduction of adjudication backlogs. The Agenda indicates that the precertification rule would be published in October 2004 with the two-month comment period. No details are available about at this time as to the meaning of precertification. One thing which is obvious is that the I-129 and I-140 nonimmigrant and immigrant petitions filed by the precertified employers will be processed and adjudicated differently and in a speedy mode. Please stay tuned.
• Gradual expansion of online filing of various petitions and applications will certainly help in reduction of front-end processing of cases but not the back-end processing. However, the currently tested "concurrent adjudication" including the 90-day adjudication pilot programs at the Dallas District Office and California Service Center and its anticipated expansion into other jurisdictions in the future, issuance of EAD for the life of pending applications rather than for a fixed one-year which will soon be implemented, and the above-described other actions would certainly help in reduction of backend adjudications and we wholeheartedly welcome the bold move of the USCIS leaders. We understand that the USCIS is also working on a plan to remove I-131 Advance Parole for I-485 applicants down the road, most probably incorporating the travel permit into the EAD card which would serve as work permit as well as travel permit. The agency can achieve all these changes because of technology development that allows biometric identifier features in the system and in the documents which will be carried by the aliens. The immigrant community should support the USCIS moves wholeheartedly. Lastly, the House action and USCIS decision to change the inquiry system back to the Service Centers from the private contractors of 800 number are another move that will truly serve the immigration consumers well which they deserve.

07/02/2004: Employment Authorization for Federated States of Micronesia Citizens

• USCIS has announced that effective immediately, the citizens of Federated States of Micronesia are granted employment authorization upon showing of an unexpired FSM passport with unexpired documentation showing admission under the Compact of Free Association. Read on for the details.

07/02/2004: Illegal Aliens Reportedly Relased on Nationwide Basis for Budget Problem

• We reported earlier that the New Orleans Region of the ICE was releasing detained aliens because of the budget run-out problem. The today's report indicates that such release has expanded nationwide. Read on.

07/02/2004: CBP Proposed Reinstatement of Transit System

The CBP has proposed to reinstate the transit system which has remained suspended for quite a while since 9/11. Yesterday, CBP sent its regulatory proposal to the OMB for review. The Immediate and Continuous Transit program, also known as the Transit Without Visa (TWOV) program and the International-to-International (ITI) program allowed an alien to be transported in-transit through the United States to another foreign country without first obtaining a nonimmigrant visa from the Department of State overseas, provided the carrier had entered into an Immediate and Continuous Transit Agreement on Form I-426, pursuant to section 233(c) of the Immigration and Nationality Act(Act). Both the TWOV and ITI programs were suspended due to security concerns in an interim rule published in August 2003. The Department of Homeland Security in this rule would be reinstating a variation of these programs incorporating necessary security measures so that national security will not be compromised.

07/01/2004: ICE SEVIS Fee Final Rule Published

06/30/2004: SEVIS Fee Rule To Be Published Tomorrow, 07/01/2004

• ICE announced today that it would publish the SEVIS Fee Rule tomorrow in the federal register. $100 fee for international students, exchange visitors and scholars attending school or conducting research in the United States. The fee, associated with the Student Exchange and Visitor Information System (SEVIS), will take effect September 1, 2004. Students, scholars and exchange visitors from abroad whose schools or programs are approved in SEVIS will be required to pay the appropriate fee prior to obtaining their visas.
• Please review the following:
  • Memorandum
  • SEVIS Fee Fact Sheet
  • SEVIS Process Fact Sheet
    

06/30/2004: New Semi-Annual Rule-Making Agenda of Agencies

• The government released a new semi-annual rule-making agenda for the second half of the year. The regulatory agenda is a semiannual summary of all current and projected rulemakings, and completed actions of the agencies have attempted to list all regulations and regulatory reviews pending at the time of publication, except for minor and routine or repetitive actions, but some may have been inadvertently missed. Also, the dates shown for the steps of each action are estimated and are not commitments to act on or by the date shown. The following are the agenda for selected agencies that are related to the immigrant community:
  • Homeland Security Department (CIS, ICE, CBP)
  • Labor Department (ETA, ESA)
  • Justice Department (EOIR)
  • State Department (Visa Bureau)
  • Social Security Administration
  • HHS
• It is interesting to note that the Labor Department set the publishing date of PERM final regulation at July 2004.

06/30/2004: AILA's Washington Update of 06/29/04

06/24/2004: Visa Waiver Program Under Fire Again

• Not too long ago, the Inspector General of DHS released a report highlighting a serious security risk posed by the Visa Waiver Program. Yesterday, the IG of DHS again testified before the International Relations Committee of the House revisiting this issue. Reportedly, the Committee appeared to agree that this program should be closely reviewed considering the fact that the security risk outweight the benefits from the travelers from these 27 countries. Read on. For his April 2004 evaluation of this issue, please click here.

06/23/2004: USCIS Ombudsman's Annual Report

• AILA has reported the USCIS Ombudsman's Annual Report. This report outlines the problems of the USCIS services as reflected on complaints and assistances sought by the immigration consumers during the year. The Report is particularly important as it outlines the ongoing "pilot projects" to reduce backlogs and its future directions.
• Probably, not too many visitors of this web site may understand the meaning and role of ombudsman. Please click here to learn about this important position.

06/23/2004: State Department Official Announcement of Termination of Visa Revalidation as of July 16, 2004

• Today, the U.S. Department of State announced that the Department will cease the visa revalidation services after July 16, 2004. To be processed, applications must be received (not postmark) by the Department's application acceptance facility in St. Louis by July 16, 2004. We previously reported that it would terminate on July 6, 2004. We stand corrected on the termination date. For the announcement, please click here.
• State Department also states that any response to the RFE must be received by September 30, 2004. Read on.

06/23/2004: Drop-Box Nonimmigrant Visa Application Procedure Termination in India

• The visa posts in India are terminating the drop box visa application procedures. The schedule for ending the drop-box facility is as follows:
  New Delhi: Last day to submit applications via drop-box - June 30;
  Chennai: Last day to submit applications via drop-box: June 30;
  Kolkata: Last day to submit applications via drop-box - July 16;
  Mumbai: Last day to submit applications via drop-box - July 20;
• For the announcement, please click here.
  

06/23/2004: Immigration Agencies Struggle With Budget Woes

• We have reported earlier that immigration agencies in DHS had run out of money and were under a semi hiring freeze. We also reported that as related to the problem, ICE launched ISAP and started releasing certain detainees under close monitoring. The immigration enforcement agency appears out of money to deal with the increased enforcement activities. Now, there is another report that the local ICE offices in Tennessee, Alabama, Arkansas, Louisiana, and Kentucky have started release of immigration detainees from their detention facilities due to the budget woes. ICE HQ tried to contain the potential political backfire by stating that it just involved one southern ICE Region, but no one can deny at this point that the enforcement activities of ICE are currently suffering from the budget woes. Read on.

06/22/2004: DOL Backlog Reduction Interim Final Rule Imminent

• The OMB had been reviewing the Interim Final Rule of DOL, "Labor Certification for Permanent Employment of Aliens in the United States; Backlog Reduction," since April 19, 2004. Yesterday, June (oops!) 21, 2004, the OMB completed the review and it is expected that the DOL will publish the rule in the federal register soon. Please stay tuned.

06/20/2004: House Voted to Halt USCIS From Contracting Out Certain Jobs To Private Contractors

• Report indicates that the House voted last Friday, June 18, as part of the appropriation bill to halt USCIS from its move to open certain USCIS jobs to private competitions. These jobs include the information officers and contact representatives that most of the immigrants communicate over the phone or talk eye-to-eye at the windows at the local district offices. This move was particularly controversial when the USCIS shut down the phone lines in each Service Center and forced the immigrants to call the 800 number of NCSC, which turned out to be a mistake. The House acted because the House belatedly recognized that the jobs which USCIS contact representatives and information officers performed involved "government" function and not "private" business function. In parallel with the House action, there has also been a move within the USCIS to reinstate the consumer's direct contact with the Service Centers and not the private contractors when it comes to questions relating to the cases pending at the Service Centers. It is likely that this direct contact will be in place within this fiscal year. Read on for the House action.

06/20/2004: Release of Certain Immigration Detainees Under ISAP Program Beginning 06/21/2004

• ICE will start releasing some of the immigration detainees beginning from Monday under the newly launched ISAP (Intensive Supervison Appearance Program) program which is somewhat similar to the supervision of the criminals under probation but subject to more intensive monitoring measures. The program will use tools such as electronic monitoring (bracelets), home visits, work visits and reporting by telephone. In order to be eligible for participation in ISAP, an alien must be an adult with a confirmed identity who does not pose a threat to the community or national security. Additionally, ISAP will be available only to aliens who are not subject to mandatory detention; who are pending immigration court proceedings or are awaiting removal from the United States; and who will be residing within the managed area. ISAP is a voluntary program; all participants must agree to participate and comply with the conditions of their release. Aliens who violate the conditions of their release may face detention or increased supervisory restrictions. ICE will evaluate the program at the end of the pilot and based on the results determine any possibilities for future implementation. The current Pilot Program covers the districts in Baltimore, Maryland; Philadelphia, Pennsylvania; Miami, Florida ; St. Paul, Minnesota; Denver, Colorado; Kansas City; San Francisco, California; and Portland, Oregon.
• Minneapolis Star tribune reported that the release will include some detainees without charge. For the Fact Sheet, please click here. For the BICE announcement, please click here.

06/19/2004: USCIS Submitted for OMB Review Its Notice on H-1B Capped-Out F-1 Nonimmigrant Status

• Yesterday, June 18, 2004, USCIS requested the OMB to review its notice on the F-1 students' legal status during the period of FY 2004 H-1B cap period. The details have yet to be published, but it may go through the emergency review. Under the rulemaking rules, the notice for proposed notices should be completed within 10 days and not 90 days and if the rule was previously reviewed and there has been no material changes, it must be completed within 45 days. The notice is entitled: Supplemental Information Regarding the H-1B Numerical Limitation for FY 2004 Affecting F Nonimmigrants. It is interesting to note that the rulemaking process was initiated by USCIS and not by ICE. Please stay tuned to this web site for the development.
• People are reminded that this reporter reported from Philadelphia AILA National Conference a few days back that the DHS was planning to announce this notice shortly.

06/18/2004: OMB Review Deadline for PERM Final Regulation Review - June 21, 2004

• The regulations of the agencies are reviewed by the OIRA (Office of Information and Regulatory Affairs) within the OMB (Office of Management and Budget) under the Executive Order 12866 which was published in the Federal Register, Volume 58, No. 190, October 4, 1993. Under Section 6 (b)(2)(B) of the Executive Order, in the current instance of PERM regulation situation, the OIRA is required to complete the review within 90 days from the date of receipt of the information from the agency, which expired on May 21, 2004. However, Section 6(b)(2)(C) provides that the review process may be extended (1) once by no more than 30 calendar days under the written approval of the Director and (2) at the request of the agency head. At the AILA Annual Conference in Philadelphia, the Chief of the Foreign Labor Certification of DOL indeed admitted that on May 21, the OMB's 90-day deadline expired and the DOL requested OIRA for extension. It thus appears that neither the OMB nor DOL can extend the completion of the review process beyond June 21, 2004, next Monday. It is thus obvious that whether there is a published report or not, the OMB review will be completed by next Monday and the DOL will publish it in the federal register at certain date thereafter, which is likely early July.

06/17/2004: USCIS Announced Backlog Elimination Strategy Today

• This is a huge file. If it does not open on the first click, pause a while and click again to download. It needs your patience.

06/15/2004: House Passed Bill to Delay Biometric Passport Requirement for One Year

• Yesterday, the House passed by voice votes the bill to extend for one year the requirement for biometric identifier passports for Visa Waiver Program traveller (27 countries) to enter the visa without a visa and without such biometric passport. Read on.

06/13/2004: Rescheduling of Application Support Center Appointments for Last Friday

• There are people who had an appointment with the USCIS local offices and Application Support Centers on June 11, 2004. Since all the federal offices had to close that day on a short notice by the Executive Order, people were not able to receive the notice that their appointments with the Application Support Centers for fingerprinting which had been scheduled on the date should be rescheduled. Now, USCIS asks these people to call 800-375-5283 to reschedule the appointments. Please call the NCSC as soon as possible.

06/12/2004: U.S. Visa Revalidation Services Termination and Time for Chinese Government to Act

• The termination of visa revalidation services will affect all the nonimmigrants in the U.S. However, the nonimmigrants who reside in the U.S. and are affected most painfully by the DOS action are those from the countries that refuse to sign multiple visa agreements with the United States. The People's Republic of China is one of the very few. The Chinese government does not issue "multiple-entry" employment-based nonimmigrant visas to the citizens of the United States and under the rule of reciprocity, the U.S. government is unable to issue such visas beyond the two-entry into the U.S. Until now, such inconvenience has been alleviated by the U.S. government's visa revalidation program extending such work visas for two years at a time without leaving the United States. Since this privilege will be taken away effective July 6, 2004, every two years they will have to make a trip to either their homeland or the U.S. border visa posts in Canada or Mexico. The trip to China is very time-consuming and expensive. Besides, allegedly visa denial rate in China is one of the highest in the world at this time. More importantly, even if the visa issuance is not denied, the visa applicants have to endure a tremendous delay because of the Visa Mantis security clearance program of the United States government. The U.S. Department of State reports that if there is no hit in the name check, the turn around time for visa issuance is at this time approximately 20 days. However, the Department also reports that a huge number of Chinese people have a similar or same name and there are a lot of hit in the name check. Once it is hit, it has to go through the Visa Mantis clearance procedures outside of the jurisdiction of the Department of State and can take a long time, causing tremendous delays in the visa processing.
• As for the TCN visa processing in Canada and Mexico, the Chinese people have been experiencing another problem because of unavailability of the multiple entry visa. Assuming that the border visa post issued a two-entry visa, by the time they returned to the U.S. , they had to use one visa to return to the U.S. Consequently, they tend to have a single entry visa by the time they returned to the U.S. To circumvent the bottleneck, some Chinese travelled to their homeland through Canada taking advantage of the automatic visa revalidation program allowing nonimmigrants to return to the U.S. from Canada using a valid I-94 and without using a visa. In certain cases, this opportunity has been negatively affected by the recent U.S. government decision to lift the automatic visa revalidation in the event that the alien applied for a visa in Canada or Mexico and did not have a valid visa. Accordingly, unless the Chinese government accepts the multiple-visa reciprocity agreement with the U.S., those nonimmigrant Chinese people in the U.S. are destined to make a trip to Canada or Mexico every time they want to visit their homeland unless they are determined to apply for a visa at the visa posts in China. The hardship which is caused by lack of multiple visa reciprocity and upcoming termination of visa revalidation will be particularly noticeable and painful for the researchers and scientists who will have to travel quite frequently abroad for international conferences and other academic programs.
• Allegedly, the DOS notice in the federal register will give some expanded opportunity to apply for TCN visas to alleviate the hardship the nonimmigrants in the U.S. will suffer. Without doubt, most of people from countries that have a multiple-visa reciprocity agreement will benefit from such expanded TCN visa opportunities, even though it will be costly, time-consuming, and inconvenient. However, TCN is absolutely no answer to the Chinese because of lack of multiple-visa reciprocity.
• Under the circumstances, we urge both the U.S. Department of State and the Chinese government to take the following actions as soon as possible: For the Chinese government, it should quickly make an arrangement with the U.S. government for the multiple entry visa reciprocity program. As for the U.S. Department of State, it should withdraw that part of the regulation which terminated automatic visa revalidation for those who applied for a visa at the border visa posts. Unless such restriction is lifted, a fewer and fewer people will apply for TCN for fear that they will not be able to return to the U.S. unless they have a valid visa in the passport. Additionally, for Chinese, they suffer additional hardship on top of such fear because of the necessity to travel to Canada or Mexico with the risk of denials every time they want to make a trip abroad. Indeed, the hardship for certain Chinese professionals will be unbearable to the level of humanitarian concern. We strongly urge the two governments to act to prevent the Chinse nonimmigrants in the U.S. from such hardship and nightmare.

06/11/2004: Report from Philly: State Department Terminates Visa Revalidation Services 07/06/2004 [Correction: 07/16/2004]

• The U.S. Department of State disclosed today that the visa revalidation services will be ceased as of July 6, 2004 [Correction: 07/16/2004]. Any cases which are receipted by the date will be completed.
• This web site already warned the immigrant community that DOS was planning to terminate this service because biometrics and interview issues relating to the homeland security. Those who need the revalidation should file as quickly as possible before this service disappears! This termnation notice will be published in the federal register shortly.

06/11/2004: Report from Philly: Good News May Be Popped Out Soon for F or J Capped Out Issue

• Various sources, including the USCIS, suggest that the DHS has been working on this issue and breaking news will come out in the very near future. Currently, USCIS denies application for change of status from F-1 to H-1B which was filed after the H-1B cap had reached and the alien cannot maintain the nonimmigrant status until October 1, 2004, because of the current regulation which requires the DHS to exercise the discretion and publish such decision in the federal register. We have yet to see the supposed "breaking news" from the DHS, but indications reflect that there may be some kind of emergency action on the part of the DHS. Please stay tuned to this web site for the important news development.

06/11/2004: Report from Philly: EAD Change Rule to Be Published in About Two Weeks

• We have already reported earlier that the OMB has already completed and approved the EAD rule and forwarded to the USCIS. Today the USCIS sources report that there was a slight delay in release of the rule in the federal register because of the needs for the USCIS general counsel to review.
• Initially, the EAD issuance beyond one year validity was planned to be limited to the I-485 filers, the USCIS disclosed today that it had been revised and the new EAD would be issued for the period of pending any applications, including I-485. Accordingly, hypothetically, should the EB-485 takes three years, the EAD will be valid for three years. It thus appears that the new EAD will be valid until the pending application, no matter what it is, is adjudicated. This action is being taken by the USCIS as one of the important measures to reduce the processing times and to meet the 6-month processing target by the end of September 2006 pursuant to the Bush's commitment.

06/11/2004: Report from Philly: INFOPASS Scheduler to Cover All USCIS Field Offices by 09/30/2004

• The USCIS today released its prediction that all the district appointments would be scheduled through the INFOPASS Scheduler which currently covers only Los Angeles, Dallas, and Miami.

06/11/2004: Report from Philly: FY 2005 H-1B Cap Filing Numbers - 16,100 as of May 31, 2004

• USCIS disclosed today that as of the end of May 2004, the USCIS received 16,100 H-1B petitions which would be subject to the FY 2005 cap numbers (65,000). FY 2005 starts on October 1, 2004 and ends on September 30, 2005. These numbers represent "filing" numbers and not approval numbers. The H-1B cap is determined not by the approval but by the filing. The usage of H-1B cap numbers was unexpected very low, presumeably as affected by the F or J capped out international students or exchange visitors.

06/11/2004: Dallas USCIS District Pilot Program May Be Expanded to Five or Six Other Local District by July

• The 90-day I-485 adjudication program which is currently being tested at the Dallas District Office is being considered in the five or six other USCIS District Offices in July or so. The backlog reduction strategy of the USCIS appears to be similar to the DOL strategy in that it will attempt to reduce the backlog cases in the pipeline through the expeditious adjudication process and at the same time to prevent any new cases from adding new backlogs by adjudicating new cases in a short period of time.

06/10/2004: Report from Philly - PERM and Backlog Reduction Program Status

• The Chief of Foreign Labor Certification Division of DOL has confirmed what we reported day before yesterday. The DOL requested OMB for 30-day extension of OMB review after the 90-day deadline expired on May 21, 2004. The extension was necessary as the DOL had received comments and inputs from the related government agencies such as DHS, DOS, etc. and had to revise part of the text to reflect the comments. The final version has then been submitted to the OMB for their completion of the review. Accordingly, as we reported, the review may be completed as scheduled on June 21, 2004 as the OMB is authorized only one extension for 30 days. Once the approved petition is forwarded to the DOL, it stil has to decide how quickly it will have to publish in the federal register. It sounds, though, that it may be published fairly promptly, not beyond July 2004. The final regulation will provide that if will take effect 120 days after the date of publication in the federal register. During the 120-day period, it will schedule orientation/training sessions in the order of Atlanta, Chicago, San Francisco, and Washington, D.C. As we reported, the PERM Processing Centers will be opened in Chicago and Atlanta. Clerical processing will be undertaken by contractors but adjudication and management will be done by public officials of DOL.
• Apart from the PERM program, the Backlog Reduction Program has been progressing fairly smoothly and the Directors of the Philadelphia and Dallas Reduction Processing Centers are expected to be offered the job in the next few days. Additionally, the contractors have also been selected and will be offered the project in the next few days. Once the contract is accepted, the two centers will go into operation within 60 days. Just like the PERM centers, the Reduction Centers will also be managed and adjudications will be made by the DOL officials but the clerical processing will be done by the contractors. Initially, the two centers will focus on the backlog cases in the regions and states that fall under the jurisdiction of the Region II (Philadelphia) and Region III (Atlanta). The DOL is targeting at removing all the backlogs within two years.
• DOL strategy is to resolve the backlog problem by removing the backlog cases in the backend of the pipeline and at the same time by preventing any new backlogs in the frontend by processing and adjudicating the new cases in a very short period of time through the online filing system of the PERM program. The pressures on these two systems will depend on the behavior of the backlog cases. Should the applicants either withdraw and file a new application or convert to the PERM cases, if eligible, the backend workload can be reduced, while the frontend workload of new cases under the PERM program will proportionally increased.

06/08/2004: OMB Review Rule and Delay of PERM Final Rule Review Completion

• According to the OMB, the Executive Order governing the OMB review for the agencies' rulemaking requires that the period for OMB review is limited to 90 days. Under this rule, the OMB review should have been completed by May 22, 2004 since it started the review on February 23, 2004. Then what is going on? Well, the rule also says that the review period may be extended by the head of the rulemaking agency, the DOL in the instant case, and the OMB Director may extend the review period on a one-time basis for "no more than 30 days." It is thus obvious that the OMB review has been extended because of the agency's request. If the exception rule of one-time extension of no more than 30 days applies, June 21, 2004 should be the deadline. AILA one time scheduled a tele-conference on the subject of the PERM rule at June 2004, but cancelled the schedule due to the delay of OMB review.
• Well, let's see whether the OMB review will be completed by June 21, 2004 or earlier. It is hoped that this issue be discussed and clarified at the AILA National Conference that is officially convened tomorrow. Let's cross our fingers!

06/07/2004: AILA's Washington Update 06/07/2004

06/06/2004: UK Tony Blair to Impose Immigration Quotas

• According to the UP International, Tony Blair will impose a quota system on tens of thousands of black and Asian immigrants seeking to come to Britain, The Telegraph reported Sunday. Hmm......... Read on.
  

06/05/2004: USCIS/ICE/BCP Hiring Freeze or Slowdown to Continue Until 09/30/2004

• Report indicates that these components of the DHS overexhausted this FY's budget and there has been a hiring freeze in place since March 2004. The DHS confirmed that the hiring freeze or slowdown, whichever one may call it, would continue until the end of this FY. Considering the fact that in the case of USCIS, a substantial portition of the works, including adjudication, are done by temporary employees and private contractors, the hiring freeze may not affect critically, but it may still affect the agency's plan to reduce the backend backlog one way or another because of its inability to recruit new adjudicators. Read on.

06/04/2004: OMB Cleared Rule to Authorize EAD for 2-Year Pending I-485 Applications

• On June 2, 2004, OMB completed its review and cleared the USCIS Interim Rule which authorizes the agency to issue a EAD valid up to two years. This category is reserved for those applying for adjustment of status, having filed Form I-485, Application to Register Permanent Residence or Adjust Status, with the Department. The rule change would give USCIS the flexibility to issue EADs for the length of time it anticipates that adjudication of a given case will take.
• USCIS has already announced issuance of a new EAD card, I-766 with enhanced security feature and already indicated that the EAD card will be issued more than one year for certain aliens. Obviously, the announcement implied application of the new multiple-year EAD rule for the I-485 applicants. It is expected that the USCIS will publish this extended EAD rule in the federal register soon.

06/04/2004: OMB Cleared the Final Rule of USCIS Adding Actuaries and Plant Pathodogists to the List of TN Occupations

• OMB cleared this Final Rule of USCIS on June 2, 2004, which will be published in the federal register soon.

06/03/2004: Immigration Statistics as of 04/30/2004 as Reported 05/28/2004

• USCIS has just released the immigration statistical report of May 28, 2004. The statistics reflect the data which they collected as of the end of April 2004. Backlog figures are reported on different standards and do not clearly show the situation of backlogs on the individual basis. However, the denial shows a high rate and prabably is on the rise. For the details, please click here.

06/03/2004: GAO Study of DHS Nonimmigrant Overstay Tracking System and Recommended Improvement

• Read on.

06/03/2004: Canadians Not Subject to Machine Readable Passport Requirement

• The Machine Readable Passport Requirement will take effect for the visitors from the Visa Waiver Program Countries on September 23, 2004. However, unlike common misunderstanding, Canada is not part of the Visa Waiver Program (27 countries). The authorization for Canadian citizens to travel visa-free to the U.S. comes from other immigration laws. Under the laws, the machine-readable passport requirement does not apply to Canadian citizens.
• It should be noted, however, that the following Canadian citizens travelling to the U.S. require nonimmigrant visas: treaty traders (E), and fiance/es (K-1), as well as a U.S. citizen's foreign citizen spouse, who is traveling to the U.S. to reside here while they wait for the final completion of the process of immigration (K-3), and their respective children (K-2 for children of fiancees, and K-4 for children of a foreign citizen spouse), spouses of lawful permanent residents (V-1) and the children of those spouses (V-2) traveling to the U.S. to reside here while they wait for the final completion of their immigration process, and foreign government officials (A), officials and employees of international organizations (G), NATO officials, representatives and employees if they are being assigned to the U.S. (as opposed to an official trip).
• This information is posted because despite the repeated advisory, some Canadian travellers are confused on this issue.
  

06/03/2004: Visa Call Center in China Reopens After Shut-Down in April, 2004

• The U.S. visa posts in China announced today the reopening of the Visa Call Center. The Visa Call Center will reopen Friday, June 4 at 7:00 a.m., and will be scheduling U.S. visa interview appointments for the following week. Walk-in visa application systems will continue in Beijing, Guangzhou, Chengdu, and Shenyang through June 4. The posts advises potential travelers to use the walk-in system on June 3 and 4 only if their travel is urgent; otherwise, travelers are encouraged to use the Visa Call Center to schedule an appointment. Beginning June 7 walk-in appointments will no longer be accepted.
• The Visa Call Center in China was forced to shut down by the Chinese security authoritries since April 23, 2004 and the American visa posts in China were unable to process new nonimmigrant visa applications for the Chinese for about five weeks. It is a good news for the Chinese travellers, indeed!

06/02/2004: Beijing Nonimmigration Visa Processing Update

• There are some developments which at least open the door for the Chinese applying for the nonimmigrant visas in Beijing, China. The announcement states that at the request of the Beijing Public Security Bureau, beginning on June 3, visa applicants seeking a walk-in interview for a visa will be given interview numbers at a park on Dong Da Qiao Lu (north of Ri Tan Bei Lu and south of Lan Dao Center) beginning at 7:30 AM for regular travelers (bearers of ordinary passports applying for business, tourism and for other unofficial purposes), and 12:30 for student. The park will be well marked by the local authorities. After received a visa interview number and time, applicants can come to the Embassy, at the designated time only for their interview. The Embassy expects that the visa call center will be open within the next week. The Embassy urges the applicants to wait for the call center’s reopening to make their appointments unless they have an urgent, immediate need to travel.

06/02/2004: USCIS Launched Another Pilot Project: Green Card Renewal/Replacement Adjudicated in a Few Days in LA

• USCIS has announced that it launched a I-90 Pilot Project in Los Angeles, adjudicating I-90 Application for Green Card Replacement or Renewal in a matter of few days rather than months and months. Even though it is a limited area pilot project, we wholeheartedly welcome the USCIS action to reduce the BACKEND backlog reduction in the immigration benefits adjudication. The already launched FRONTEND reduction program of of Infopass Scheduling in parallel with this BACKEND reduction program will truly bring the level of processing times reduction that Bush promised years back. We commend the USCIS move to the right direction. For the announcement, please click here.

06/02/2004: Concurrent Adjudication (I-140 + I-485) Guidance of USCIS HQ

• As we reported earlier, on March 31, 2004, the USCIS issued a memorandum to the Service Centers to adjudicate concurrently for the concurrently filed I-140 and I-485. Accordingly, people may assume that since about May 1, 2004, the Service Centers have been processing concurrently filed I-140/I-485 cases separately and differently from the I-485 cases which were filed alone. Following are the guidance for concurrent adjudication of concurrently filed I-140+I-485 cases under the memorandum:
• In the Service Center processing times reports, the concurrently filed I-485 processing time coincides with the I-140 processing time. In other words, for these filers, they should keep track of I-140 processing time and not I-485 processing time in the bi-weekly official processing time reports of the Service Centers. For them, I-485 processing time is the same as I-140 processing time. Meanwhile, those who filed I-485 separately should keep track of I-485 processing times in the bi-weekly reports.
• For the concurrent adjudication filers, I-140 petition and I-485 application always stay together. This will result in two consequences: First, since I-140 is not adjudicated separately, the previous procedure of prima facie review of I-140 eligibility is more or less removed and discouraged. Second, in order for the I-485 adjudication to be completed in the same pace with the I-140 adjucation, the Service Centers will accelerate the name check and fingerprint job vigorously.
• Actual adjudication of I-140+I-485 will not take place until I-485 application is ready to be adjudicated after completing the name check and fingerprint. Therefore, the concurrent adjudication files remain on the shelf until they are ready to be adjudicated together.
• When it reaches actual adjudication process, the adjudicators are required to review both I-140 petition and I-485 application. In other word, if the adjudicator needs to issue RFE for I-140, the adjudicator should also determine whether another RFE should be issued for I-485, should there be the RFE issues in the I-485 application. If the petitioner (employer) fails to respond to I-140 RFE or to meet the eligibility requirement, the adjudicator will deny both I-140 and I-485. On the other hand, should the I-140 petitioner be successful in responding to the I-140 RFE and satisfies eligibility requirements, the adjudicator should approve the I-140 petition no matter whether I-485 applicant has successfully responded to the I-485 RFE. If the I-485 applicant fails to meet the RFE requirement, such I-485 will be denied, and more likely the petitioner will receive the I-140 approval notice and the alien will receive I-485 denial notice.
• Plus side and Minus side of Concurrent Filing and Concurrent Adjudication: The big plus will be the processing times. If we look at the I-140 processing times, even though each Service Center differs, the average I-140 processing time is approximately one (1) year. It means that in the concurrent adjudication cases, people will get green card approval within one year or less. Then what is minus? What else, AC 21 180-day rule of change of employer. Since the alien can not change employment until after the I-140 petition is approved, those who lose the job will face a potential denial of the green card opportunity.

06/01/2004: USCIS Takes a Remedial Action for Wrongly Rejected Applications for Improper Fee Amount

• As we reported earlier, there have been reports that the cases which were postmarked on or before 04/29/2004 had been rejected by the field offices. The concerns we raised in our posting were its potential deadly impact on certain filers who could fall out of status or more deadly consequences because of the "assumedly" untimely filing. Now USCIS announces that if it is determined that the case was improperly rejected, normal processing will resume and the benefit of the earlier filing date will be given. Wonderful, USCIS! That is the right thing to do.
• The announcement also gives specific guidelines as to how people should resubmit the rejected cases. Read on.

06/01/2004: USCIS Started Issuing New EAD, I-766

• USCIS has just announced that effective today, they issue new EAD card, I-766 with the security features. It states that the EAD card is issued for a one-year validity but in some cases it will issue longer validity card. For the announcement, please click here.

05/31/2004: Maura Harty, Asst. Secretary of State, Defends Against Ongoing Attack of Visa Backlog Problem

• Research and academic community in this country is currently fully charged and getting growingly impatient over their sufferings from the visa backlogs and the State Department's faults in creating backlogs. On May 27, 2004, Maura Hary, Assistant Secretary of State came forward to defend herself and her Department against the attacks at the Annual Conference of NAFSA, Baltimore, Maryland. We would like to give an equal opportunity to the State Department to tell its side of story. We just wish that she had answered to the so-called Six Improvement Proposals and its future plan for improvement. Here are her statements (1) and (2).

05/31/2004: Biometric Identifier Program and Visa Revalidation

• Biometric Identifier Travel Document Requirement or Admission Requirement involves the following groups of foreign nonimmigrants to the U.S.
  • Visa Required Travellers: Most of the foreign visitors to the U.S. are required to carry a visa except the Canadians and the 27 visa waiver program countries nationals. Report indicates that currently 143 visa posts throughout the world are collecting two digitally scanned fingerprints from non-immigrant visa applicationts, and by October 26, 2004, virtually all visa applicants must appear at the visa posts to give their biometric identifiers before a visa is issued.
  • 27 Visa Waiver Program Countries Travellers: The biometric identifier travel document requirement for these visitors without a visa has been focused on the Biometric Identifier Passport Requirement issue. As we reported for a number of times, such requirement will be delayed at least for a year until October 26, 2005 if the Congress bill passes or for two years until October 26, 2006 if the Deparment of State and Department of Homeland Security proposals are accepted by the Congress. Accordingly, the immigration inspectors at the port of entry in this country will have no biometric identifier for these visitors until they reach the port of entry in this country. However, the Department of Homeland Security, under the U.S.-VISIT Program, will obtain the biometric identifier at the port of entry beginning from September 30, 2004 by scanning of a finger and digital imaging of the face before they will be admitted to the U.S. Accordingly, virtually no nonimmigrants will be admitted to the U.S. without a biometric identifier beginning from October 2004.
  • Nonimmigrant Visa Applicants Residing in the U.S.: Certain nonimmigrants in the U.S. have enjoyed the privilege of extending their visas within the U.S. through the Visa Revalidation (Reissuance) Program at the U.S. Department of State in Washington, D.C. Reportedly, the U.S. Department is considering termination of visa revalidation program because of the unavailability of the biometric identifier from the visa revalidation applicants. However, the move is not necessarily well justified for the two reasons: First, the visa is an "entry" document and it is meaningless during the nonimmigrants' stay in the U.S. Since they will be travelling "with a visa," they will be required to go through the biometric identifier process at the port of entry in this country just like the visa waiver program country travellers. Additionally, most likely, the government already has some biometric identifiers for these nonimmigrant residents in the U.S. either through the SEVIS program for F or J students or other immigration proceedings within the U.S. Secondly, even though it may cost additional funding, the Department can require biometric identifier from the visa revalidation applicants. For this purpose, the Department may consider a contract with the USCIS of the Department of Homeland Security to obtain the biometric identifiers on behalf of the Department of State at the Application Support Centers (ASC). Such collaboration is indeed made possible when visa policy and program fell under the joint jurisdiction of the U.S. Department of State and the U.S. Department of Homeland Security when the Congress passed the Homeland Security Act. As for the need for funding, the Department will be able to ask the Congress to pass a legislation to raise the visa revalidation user charges. Considering the fact that termination of visa revalidation will create very complex and serious issues and consequences, the Department should act quickly to work out solutions with the Department of Homeland Security and the Congress.

05/31/2004: Online Filing of Immigration Benefits Application/Petition and Question of Benefits

• We commend the USCIS for expansion of the online filing program. Without doubt, it is expected to reduce the man/hours and workloads of the field offices and help in better management of information/data on the immigration consumers. We also agree that it will present a substantial convenience to the consumers. The USCIS deserves a Hat's Off for the good work.
• However, this website has repeatedly emphasized the importance of reduction of the backend backlog and wants to see its launch of the backend reduction plan in parallel with such front-end workload reduction. From the perspectives of the consumers, a front-end electronic filing alone may not result in substantial benefits in terms of the processing times, for a number of reasons. First, the past experience of electronic filing of I-765 (EAD) and I-90 (Green Card Replacement) reflects that once the applications were filed electronically, those cases were processed and adjudicated in the field offices in the same queue with the paper filings. As a consequence of such practice and policy, electronic filing sometimes turned out to be more a burden than a benefit because the consumers had to take two-step of filings: Initial electronic filing of the forms, followed by filing of supporting documentation by mail. In certain proceedings that required biometric identifiers, the consumers had to appear in fingerprint centers (ASC) after driving a long distance. Second, I-140 electronic filing also involves some concerns to the consumers. According to the internal memorandum of the USCIS, the benefit of concurrent adjudication of I-140/I-485 filings will be, at least initially, limited to the concurrently filed I-140 petitions. Considering the fact that the concurrent adjudication program will be advantageous over to separate adjudications of I-140 and I-485, unless the USCIS assures the consumers that I-140 electronic filing will receive the same benefits of I-140/I-485 concurrent filing cases, people may be reluctant to file I-140 electronically, unless they are forced to file I-140 alone because of the physical presence of the alien beneficiaries abroad or ineligibility of the alien for I-485 application filing within the U.S. or alien's decision to go for the consular processing. Indeed, these aliens may receive some benefits from the electronic filing of I-140 petitions.
• We do realize the difficulty of the USCIS in processing the electronically filed cases ahead of other paper-filed cases in terms of the fairness of the legal proceedings. It is thus obvious that for the electrical filing to be effective, the USCIS should push hard reengineering of the procedures and systems of processing and adjudication of cases in the backend. We understand that the USCIS may announce its backlog reduction plan in June 2004. We hope to see in the plan some creative proposals to reduce the backend process as we see in the Pilot Concurrent Adjudication Programs in California Service Center and Dallas District Office and expected issuance of EAD of over one year in validity.

05/30/2004: Green Card Journey and Pitfalls of Consular Immigrant Visa Processing

• There are three categories of people who go for the consular immigrant visa processing: (1) Those who are physically present outside of the U.S. and ineligible for the 485 adjudstment of status to a permanent resident through the USCIS in the U.S. (2) Those who are physicaly present in the U.S. but ineligible for the 485 adjustment of status not because they are not physically present in the U.S. but because they violated certain immigration laws, most typically overstay or unauthorized employment or entry without inspection, etc. (3) Those who are physically in the U.S. and eligible for the adjustment of status (485) within the U.S. but voluntarily opt for the consular processing as opposed to the I-485 adjustment proceeding.
• People in category (1) do not have any other choice unless they make themselves physically available in the U.S. For most of them, the consular processing is more or less mandatory.
• People in category (2) are those who violated the immigration laws and ineligible for adjustment of status "but" are "not subject to" to certain provisions of the immigration laws that make them ineligible for immigrant visa. The following are a few illustrations:
  • Those who overstayed in the U.S. for less than 6 months are eligible for immigrant visa application. On the other hand, those who overstayed 6 months or more are subject to so-called 3-year bar or 10-year bar and not eligible for immigrant visa application. These people should never leave the U.S. They usually wait in the U.S. until they become eligible for adjustment of status either through Amnesty laws including Temporary Guest Worker proposal or extension of 245(i) relief which allows certain illegal aliens who meet all the requirement under the Section 245(i) of the immigration statute to apply for adjustment of status (485) or through the petitions by a U.S. citizen immediate relatives such as a spouse or parents (only minor children) or children (for parents) becoming a U.S. citizen through naturalization or marriage to a U.S. citizen. These do not exhaust all the relief within the U.S. Certain old timers who have been living in the U.S. illegaly since 1972 are eligible for adjustment of status through the "Registry" program. Certain old timers may seek certain relief in immigration court proceedings. Certain people may try to adjust status through the political asylum. Certain illegal children may even become a U.S. citizen when their parent becomes naturalized. There may be a number of other present or future relief. For these reasons, the people in this category remain in the U.S. illegally. In fact, they have no other choices because once they leave the country, they will not be able to return to the U.S. for three years or ten years.
  • Those who entered the U.S. without inspection, so-called EWI or border crossers just one time and are not subject to other ineligibility are eligible for immigrant visa application. On the other hand, the repeated illegal entry and the record of removal from the U.S. make them subject to the bar from returning to the U.S. for certain number of years or permanently in worst cases make them ineligible for immigrant visa application. These are the people who do not leave the U.S. waiting for certain future opportunities which are described above, such as Amnesty or Temporary Guest Worker Proposal or Extension of 245(i) or Registry, etc.
  • There are many other hidden provisions for ineligibility for the immigrant visa applications under the immigration laws and the people in category(2) should never leave the country unless they first seek legal counsel. For instance, there is one 5-year bar provision which makes certain alien secondary school students who attended a public school over one year without the immigration permission. Sounds ridiculous? These students are ineligible for an immigrant visa at least five years once they leave the U.S. No wonder why some of these illegal "youngsters" are desperately waiting for the passage of the "DREAM Act" which will allow them to adjust status to a permanent resident, more or less amnestry law for the youngster group.
  • Departure from the U.S. for the pople in category (2) is a serious matter and unless they are assured by a legal counsel that they are not subject to certain provisions of the immigration laws which make them ineligible for the immigrant or nonimmigrant visa, they should never try to handle their matters in their own hands or rumors in the community.
• People in category (3) are those who are eligible for adjustment of status (485) in the United States, but voluntarily opt for the consular immigrant proceedings in order to take advantage of shorter processing times in the immigrant visa applications as opposed to the heavily backlogged 485 adjustment of status proceedings within the U.S. Obviously, they make such decision based on the self-assurance that they are 100% clean and do not need certain relief which are described above including 245(i) opportunities. Lately, however, there are a number of instances involving such immigrant visa applicants who are trapped under certain pitfalls. The downturn economy keeps laying off the people or even produces bankruptcies or shut-down. Additionally, merger or acquisition has become a matter of life in the business world in this country. In employment-based immigration proceedings, these changes of employers can affect their immigration attempt deadly. Certain merger and acquisition are unable to salvage the approved I-140 immigrant petitions. There are increased transfers of the approved I-140 petitions by the visa posts to the USCIS for revocation of the approved petitions. For those who apply for adjustment of status (485) within the U.S., there is certain relief such as 245(k), 245(i) or most importantly AC-21 180-day rule which allows the alien to change employment for a similar or same occupational classification after 180-day of I-485 application filing. There is no such relief available in the consular immigrant visa proceeding. Once the underlying employment disappears, so does the eligibility for an immigrant visa based on the employment-based I-140 approvals. Additionally, unlike 485 filers, they are ineligible for EAD and Advance Parole which add survivability to the people who experience trauma under the downturn economy. There are a fewer and fewer employers nowadays who offer employment to aliens who do not have a work permit. They are less and less lenient to sponsor a H-1B nonimmigrant visa petition. Since AC-21 180-day does not apply to the consular proceedings, losing the petitioned job results in a deadly consequence in the immigrant visa application.
• The pitfall, however, is not deadly to all the immigrant visa applicants because I-485 application opportunity remains alive inasmuch as they switch from the consular immigrant visa processing to I-485 adjustment of status proceeding before the trauma takes place. Once they lose the job, it is too late. Additionally, AC-21 requires the passage of 180 days from the date of I-485 application and in a number of instances, even switching does not salvage their green card opportunities. Sometimes the strategy of acting smart works and sometimes it doesn't. It is a matter of risk-taking. So is the gambling.

05/28/2004: Release of EOIR Rule of Expansion of 212(c) Beneficiaries Per St. Cyr Decision of Supreme Court Expected Soon

• The U.S. Supreme Court handed down in 2001 a landmark decision expanding the class of certain permanent residents who would be eligible for 212(c) waiver of removability (deportation). On August 13, 2002, U.S. Department of Justice released a proposed EOIR regulation to implement the Supreme Court decision in 67 F.R. 52627. This is the final rule that amends the regulations of the EOIR and the Department of Homeland Security (DHS) by establishing procedures for certain lawful permanent residents (LPRs) with certain criminal convictions to apply for a waiver of inadmissibility pursuant to former section 212(c) of the INA. It is only applicable to certain LPRs whose convictions were prior to April 1, 1997. It applies to certain LPRs who have cases pending before EOIR or are under final administrative orders. This rule will broaden eligibility for INA section 212(c) relief in light of the Supreme Court decision in INS v. St. Cyr, 121 (S. Ct. 2271 (2001).
• The OMB was requested to review this file rule on March 1, 2004 by DOJ. The OMB just completed the review on May 27, 2004, and it is expected that the DOJ will publish the final rule in the near future.

05/27/2004: DOL Getting Ready for Operation of PERM Processing Centers and Backlog Reduction Centers

• We reported earlier that the Final Rule of the PERM regulation had been under the OMB review since February 24, 2004 and the review is expected to be completed shortly. The OMB has also been reviewing the DOL's Backlog Reduction regulation since April 19, 2004.
• On March 24, 2004, we also reported that DOL were planning to locate the PERM reengineered labor certification processing centers and Backlog Reduction Centers as follows:
  PERM Processing Centers: Atlanta and Chicago
  Backlog Reduction Processing Centers: Philadelphia and Dallas
• The DOL has been recruiting the Directors of these four centers, taking in the job applications since May 24, 2004. Tomorrow, the job opportunities will be closed for the applicants. The PERM Processing Center director position is a "permanent" job, while understandably the Backlog Reduction Processing Center director position is a two-year term temporary job. The job descriptions of these positions are as follows:
  • Atlanta PERM Center Director
  • Chicago PERM Center Director
  • Philadelphia Backlog Reduction Center Director
  • Dallas Backlog Reduction Center Director
• We extend "thanks" to AILA for the valuable information.

05/27/2004: New Special Counsel To Be Nominated for Immigration Related Unfair Employment Practices of DOJ

• The President intends to nominate William Sanchez, of Florida, to be Special Counsel for Immigration-Related Unfair Employment Practices at the Department of Justice for a term of four-years. Mr. Sanchez currently serves as Senior Partner in the law firm of William J. Sanchez, P. A., specializing in immigration and international law. Prior to establishing his own firm, he was an international law professor at Ateneo University in Manila, Philippines. Earlier in his career, he worked as a staff attorney at the Haitian Refugee Center in Miami, Florida. Mr. Sanchez earned his bachelor's degree from the University of Miami and his J.D. from Georgetown University.

05/27/2004: State Department Proposed DS-156K Form Filing for Fiancee Visa Application

• The U.S. Department of State has developed the form DS-156K and requested OMB approval with the 30-day comment period. For the full text, please click here.

05/26/2004: E-Filing Expansion to I-129, I-140, I-131, I-539, I-907 (Premium), and I-821

• USCIS has just announced that it has launched e-filing of the following proceedings in addition to the current I-765 and I-90:
  • I-129 Nonimmigrant Temporary Worker Petitions
  • I-140 Immigrant Worker Petition
  • I-131 Advance Parole/Travel Document Application
  • I-539 Application for Change or Extension of Nonimmigrant Status
  • I-907 Premium Processing Request
  • I-821
• For the details, please click the links below:
  • Announcement
  • Fact Sheet
  • Expanded Online Filing Forms and Filing Instructions

05/26/2004: Immigration Fee Increase and Victims of Errors of Immigration Field Offices

• Immediately prior to the increase of the immigration filing fees, the USCIS released an announcement that any filings with the postmark of 04/29/04 or prior date would be accepted with the old fees. However, apparently there were some incidents that involved rejection of such filing by some USCIS field offices due to the misunderstanding of some contractors or immigration officials. If any of you have suffered irreparable damage from such rejection, for instance, falling out-of-status for untimely filing or losing certain benefits like CSPA or 245i or more serious damage of potential deportation actions, you should immediately contact a legal counsel to seek a remedy. AILA has reported that the Texas Service Center has corrected the problem after learning that the error was committed by one front-end contractor employee. Good Lord!

05/24/2004: Need for BICE Action on the Capped-Out F-1 and J-1 Practical Trainees

• The DHS/BICE has yet to act on the policy to extend D/S status for F-1 and J-1 aliens who file the FY-2005 H-1B cap petitions while in status but whose status will expire before October 1, 2004. This web site reported earlier that the legacy INS had exercised such discretions when the country experienced H-1B cap. However, for some unknown reasons, DHS/BICE has been delaying the decision and remained silent on this important issue.
• This web site reminds the DHS policy makers that the need for such action is more critical now than any time ever in previous years for the following two reasons. First, the country is witnessing "drain of brains" because of the undesirable environment for the foreign brains in this country and visa processing backlogs. This is well documented particularly for the scientists and engineers. The inaction of the DHS/BICE on the capped-out F-1 and J-1 will aggravate already serious conditions which the scientific community in this country faces. Secondly, the visa processing backlog and problem are so serious, particularly for the scientists, that the capped-out F-1 and J-1 who are forced to leave the country with a hope to return to the country after October 1, 2004 may be stranded in their home countries for an unknown period of time, seriously hurting the higher learning institutions and scientific community. The magnitude of the problem has never been witnessed in this country's history. It will be indeed ironic that when the agency exercised a discretion during the period when the country did not experience such problem, while the same agency refuses to exercise the discretion when the the country experiences a crisis and the need for action is too evident. Failure of the agency on this issue will leave a long-lasting scar in the country's history which will be very detrimental to the national interest of the most powerful country.

05/24/2004: USCIS Advisory on Importance of Obtaining Advance Parole "Before" Leaving the U.S.

• Despite the repeated issuance of advisory on this issue, immigrant community is confused on the consequences of departing from the U.S. after filing but before obtaining the approval of advance parole. As the Summer travel season is approaching, the USCIS issued another warning today that departing from the U.S. "before actually" obtaining the approved Advance Parole can result in the two consequences: (1) Pending I-485 applications can be considered abandoned and terminated, and/or (2) they may not be admitted back to the U.S. after the trip. The confusion stems from the somewhat conflicting reports coming out from the two different agencies: While USCIS warns the immigrants on the deadly consequences of such trip without actual "approved" advance parole, CBP sporadically spreads the messages through seminars or conferences that CBP will admit such travellers inasmuch as the returning aliens carries with them approved Advance Parole. It is urged that the two agencies coordinate the policy and procedures on this issue in order not to confuse the immigrant community.
• Pending such coordination, the people are suggested not to leave the country "without the approved advance parole." People may assume that (1) "filing alone" is not enough to avoid one or both of the foregoing deadly consequences, and (2) returning with the advance parole which has been approved after departure from the U.S. may result in cancellation or denial of I-485 applications no matter whether the alien has been readmitted to the U.S. after the trip, should the adjudicator of I-485 learns through the examination of a copy of the passport that the alien departed prior to the approval of advance parole. This web site always advocates conservative approaches and interpretations of the rules not to jeopardize the aliens' legal status.

05/22/2004: Disgruntled Bi-Partisan House Bill to Extend VWP Biometric Passport Requirement for One Year Instead of Two Years

• Report indicates that the House is expected to pass a bill in early June to postpone the current law for one year instead of two years that requires the nationals of 27 Visa Waiver Program countries to carry a biometric identifier passport to visit U.S. without a visa by October 26, 2004. The U.S. Department of State and the Department of Homeland Security asked a two-year delay but the House is unhappy with the two Secretaries' proposal. For the full report, please click here.

05/21/2004: Foreign Journalist to Be Admitted to U.S. on a Visitor Status at CBP Official's Discretion

• CBP has issued a press release that the foreign journalists who are allowed to enter the U.S. only on a "I" visa may be allowed to enter the U.S. on a visitor status at the discretion of the inspectors. Such admission will be limited to one single trip and they will not be allowed to enter on a visitor status in the future trips. For the announcement, please click here.

05/20/2004: Correction of Errors on I-94

• Nonimmigrants frequently experience that immigration agent made an error on his/her I-94. The I-94 is issued by the two different Bureaus of DHS. The USCIS issues new I-94 when they adjudicate petitions/applications, including change of status, extension of status or application for replacement I-94 for the lost I-94. The I-94 is also issued by the immigration inspectors at the port of entry when he/she enters the United States. Immigration inspectors are the agents of a different Bureau of DHS, the Bureau of Customs and Border Protections (CBP). Both USCIS and CBP currently correct I-94 with errors committed by their agents without much hassle.
• For the procedure of USCIS correction of the errors committed by any of its field offices, including local district offices and Service Centers, we have already posted the USCIS memorandum a few days back.
• Now AILA reports that CBP's field manual also provides the procedures for correcting I-94 which was issued by the inspectors at the port of entry. The manual indicates that people can appear any local CBP deferred inspection offices or ports-of-entry to obtain the corrected I-94. According to the manual, the typical errors which people can correct at the CBP are as follows:
  • Misspelled Name
  • Incorrect or inverted Date of Birth
  • Wrong Visa Classification (different from the visa or petition approval notice, I-797)
  • Match with visa expiration date rather than I-797 petition approval notice expiration date. Under the rule, the inspectors are supposed to issue I-94 with the expiration date of I-797 approval notice, no matter when the visa expires. Caveat: We repeat our caveat in our previous posting that when it comes to "wrong expiration date" of I-94, people should double check their passport expiration date as the inspectors cannot issue I-94 beyond the valid date of passport, no matter how long the visa in the passport or I-797 petition approval is valid. In this situation, it is not an error of the officers. This is something one cannot obtain a new I-94 under the procedure which is described herein.

05/20/2004: USCIS Just Announced Launch of New EAD in June 2004

• USCIS has just announced that it will launch a new EAD that incorporates the security features and validity period beyong one-year in some cases. Form number will change from I-765 to I-766. Please click here for the announcement.

05/20/2004: New EAD in Excess of One-Year Validity Expected in June 2004

• We reported earlier that the USCIS had sent to OMB for 90-day review on March 4, 2004 the "Interim Final Rule" that will authorize the agency to issue EAD beyond the period of one year. Accordingly, it is expected that next month people will be able to take advantage of the new EAD, should the agency publish the regulation as soon as the OMB review completed regulation is published. Please stay tuned to this web site for development of this news.

05/20/2004: F-1 OPT Travel Pending EAD Application

• The F-1 students who have graduated and were authorized for Optional Practical Training must apply for Employment Authorization Document. However, the USCIS experiences delays in issuing EAD. The question remains whether such F-1 OPT can travel and apply for F-1 visa at the visa posts. The U.S. Department of State has sent out cable to the visa posts to advise that the F-1 OPT students are permitted to travel on EAD or I-797 EAD Application Receipt Notice and the visa posts should process the visa applications accordingly. For the DOS cable, please click here.
• This view is shared by the DHS. There is a caveat, though. This practice applies only to F-1 OPT and does not apply to M-1 OPT. For M-1, it is the DHS view that they should not leave the country until the EAD is granted by the USCIS. Indeed, even for F-1 OPT, the NAFSA recommends that the F-1 OPT may leave the country with the approved EAD just for safeside since some of the new immigration inspectors are not well upto date on the rules and practice of the agencies.

05/19/2004: Certain Investor Immigrant Cases Continuously in Limbo Pending Enactment of Regulation

• AILA has reported that those investor immigrants whose petitions (I-526) were approved between January 1, 1995 and August 31, 1998 remain on hold indefinitely pending enactment of regulation. Besides, all these cases have been transferred to the California Service Center from the Texas Service Center without notice to the immigrants. These immigrants were initially granted a permanent resident status but it was a conditional permanent resident status, and just like certain marriage cases, they were required to apply for removal of the conditions (I-829) before the second anniversay in order to become a unconditional permanent resident. These immigrants who filed I-829 are currently in limbo because the California Service Center cannot adjudicate these condition-removal petitions pending the regulation. Accordingly, these immigrants who filed application for citizenship after five years are currently unable to obtain a naturalization because apparently it is the Services' view that they are not eligible for naturalization until the conditions are removed on resident status. No light at the end of the tunnel!

05/18/2004: Hong Kong Student Visa Application Procedure Announcement

• American Consulate in Hong Kong announced on May 18, 2004 that no appointment would be necessary for student visa applicants if they would apply within 90 days of starting program on I-20. Walk-in application is available Monday through Friday between 8:30-10:30 a.m. The walk-in application is not available for those students whose visa applications have been previously denied. For the full text of the announcement, please click here.
  
  

05/18/2004: AILA's Washington Update of 05/18/2004

05/16/2004: How Much the DOL Will Charge for PERM Labor Certification Filing?

• DOL's FY 2005 (10/01/04-09/30/05) proposes $23 million for permanent labor certification budget. The budget also indicates that the DOL will introduce a legislation to charge labor certification application filing fees. $23 million will be used to operate the PERM labor certification program and to cover part of the backlog reduction program after the PERM is launched.
• Question remains what would be the amount of filing fees the DOL will charge for the labor certification application. In 2000, the DOL planned to launch the PERM program on October 1, 2000 and in the FY 2001 budget proposal (10/01/00-09/30/01), it indicated that it would introduce the legislation to charge the filing fees to cover the PERM program. The amount of filing fee proposed was $1,500 per application. The legislative bill has yet to be introduced in the Congress, but it is obvious that the filing fee may turn out to be no less than $1,500.
• Immigration journey will cost the immigrants a lot of money in the future. Immigration Services have already raised the filing fees, costing adult green card applicant approximately $1,200 per person including I-140, I-485, FP, medical, EAD, AP. Accordingly, without the recruitment cost, each alien will have to bear approximately $2,700 just for the government filing fees. In represented cases, they will also have to pay the attorney fees and related costs. One can figure out from these figures the total estimated cost for getting a green card. Hew........!

05/16/2004: Nonimmigrant Visa Applications by Mail in London May End in Late August 2004

• The American Embassy in London has announced that beginning from tomorrow, May 17, 2004, all the immigrant visa applicants will be fingerscanned for the biometric identifier and the same procedure will take effect in late August 2004 for all the nonimmigrant visa applicants. Accordingly, those who are eligible for nonimmigrant visa application by mail under the current procedure may have to appear in person for finger scanning beginning from late August. Currently, British citizens, British subjects, EU passport holders or those who have been granted indefinite leave to remain in the United Kingdom by the U.K. government who are renewing a visa of the same classification which has expired within the last 12 months are eligible for visa application by mail. Applicants must be physically present in the United Kingdom to apply for the visa, must not be ineligible to receive a visa, or have refused a visa under the provisions of Section 214(b) of the Immigration and Nationality Act and the refusal has not been overcome. For the details, please visit the American Consulate in London website.

05/14/2004: California Service Center Concurrent Adjudication Pilot Initiation and Warning Against Abuse

• We reported earlier that the California Service Center was launching I-140/I-485 concurrent adjudication pilot program for the concurrent I-140/I-485 filing cases inasmuch as it is non-National Interest Waiver case and filed after certain date. Qualified cases were supposed to be adjudicated in less than 90 days.
• Apparently, CSC is concerned at this time that those who have already filed concurrent I-140/I-485 cases or I-140 petition alone may withdraw the pending cases to refile a concurrent I-140/I-485 case to take advantage of the pilot program.
• AILA reports that CSC will not take such withdrawn-refiling cases qualified for the pilot program and will not adjudicate such cases concurrently. It appears, though, that such decision may raise a legal question of arbitraniness in administration of adjudication function. It may also raise the issue of "equal" protection and fairness. The agency may create a "class" without permissible legal justification or constitutional basis just as seen in the "Francis" decision. We'll see.

05/14/2004: USCIS View on I-140 and Financial Ability to Pay

• On May 5, 2004, we reported the USCIS memo on RFE and denials. This memo is stirring quite a controversity in the immigration lawyers community. However, when it comes to the bright-line standards for proof of financial ability pay, this memorandum gives employers a good guidance. According to the memo, when one of the following three conditions are met, USCIS should not deny I-140 on the financial ability to pay issue:
  • (1) Net Income: The petitioner's net income is equal to or greater than the proffered wage. Or
  • (2) Net Current Assets: The petitioner's net current assets are equal to or greater than the proffered wage. Or
  • (3) Employment of the Beneficiary Paying the Proffered Wage Salary: The Petitioner is currently employing the beneficiary at the rate of proffered wage.
• Accordingly, the companies whose financial picture shows minus(-) income are qualified to file I-140 petition if the alien beneficiry currently working on H-1B and paid the wage which is shown in the labor certification application by submitting W-2 and/or State Employer Quarterly Returns. If it cannot establish the financial ability through the net income or salary paid to the alien beneficiary, then employer will have to use the net current assets to overcome the problem inasmuch as the employer can demonstrate ownership of the assets.
• Considering the recent trend of the Service Centers denying en masse I-140 petitions on financial ability to pay issue, this memo at least gives a bright-line test for the issue of threshold.

05/14/2004: Visa Waiver Program Under Increased Critical Review for Security Risk

• The Inspector General of the Department of Homeland Security released an extensive report on this issue. One of the findings caught the attention of the legislators in the Congress, the finding that an international traveller was caught before entering the country using the lost passport of a person of Visa Waiver Program country and that the current operation of VWP raised the issue of a potential security loophole. The VWP started receiving a close review even before 9/11 by the Legacy INS, but this OIG report is expected to affect the future of this program. Ominous sign.
• For the OIG full report, please click here.
• For the Congressional reaction, please click here.
• Beligium's privisional status as VWP country expires today, May 14, 2004. However, report indicates that Belgium is given another one year of provision VWP status. For this report, please click here.

05/14/2004: Mumbai Accepts F-1 Visa Applications Prior to 90-Day of I-20 Start Date

• The American Consulate has announced that in order to deal with the Summer student visa applications surge, the Consulate will accept the student visa applications even prior to 90-day window of I-20 start date. However, the actual start date of visa will be within the 90-day window and people will not be able to recoup the passport up until it reaches the 90-day window period. The Mumbai consulate action is to encourage the student visa applicants to apply for the visa early on and not to cause visa processing backlog during the Summer travel season.
• The visa application can be filed with the Mumbai consulate only if he/she meets one of the following conditions:
  • You have been resident of the Indian States of Maharashtra, Gujarat, Goa, Madhya Pradesh and Chattisgarh for the last 6 months.
  • You are residing in the US, and your last US visa was issued by the US Consulate in Mumbai.
  • You are a ship crew applying for a C1/D visa through a shipping company or agency based in Mumbai.
  • You are a permanent resident of Western India or have been working in Western India for more than a year and want to apply for a student visa.
• For the full text of the announcement, please click here.
  

05/13/2004: 25 Major Science/Education Groups Presented Government Six Major Actions to Resolve Current Visa Problems

• This website has been monitoring and reporting scientific and higher learning/research industries' frustration and standing up against the government in order to deal with the crisis faced by the science/education/research community as related to the visa delays. Report indicates that 25 major groups of science/education/research industry have organized themselves and presented to the government the following six improvements:
  • -- Problem: Repetitive security checks that cause lengthy visa issuance delays.
    Recommendation: Extend the validity of Visas Mantis security clearances for international students, scholars, and scientists from the current one-year time period to the duration of their course of study or academic appointment.
  • -- Problem: Inefficient visa-renewal process that causes lengthy delays.
    Recommendation: Establish a timely process by which exchange visitors holding F and J visas can revalidate their visas, or at least begin the visa renewal process, before they leave the United States to attend academic and scientific conferences, visit family, or attend to personal business.
  • -- Problem: Lack of transparency and priority-processing in the visa system.
    Recommendation: Create a mechanism by which visa applicants and their sponsors may inquire about the status of pending visa applications, and establish a process by which applications pending for more than 30 days are given priority processing.
  • -- Problem: Inconsistent treatment of visa applications.
    Recommendation: Provide updated training of consular staff, establish clear protocols for initiating a Visas Mantis review, and ensure that screening tools are being used in the most appropriate manner.
  • -- Problem: Repetitive processing of visa applications for those with a proven track record.
    Recommendation: Revise visa reciprocity agreements between the United States and key sending countries, such as China and Russia, to extend the duration of visas each country grants citizens of the other, thereby reducing the number of times that visiting international students, scholars, and scientists must renew their visas.
  • -- Problem: Potential new impediment to international students, scholars, and scientists entering the U.S. created by proposed SEVIS fee collection mechanism.
    Recommendation: Implement a fee-collection system for the Student and Exchange Visitor Information System (SEVIS) that allows for a variety of simple fee payment methods that are quick, safe and secure, including payment after the individual arrives in the United States.
• For the full report, please click here. The U.S. Secretary of State, Colin Powell, admits the problem, but it appears he could not go beyond reinterating the rhetorics. Read on.
  

05/13/2004: Minnesota Labor Certification Processing Times of 05/03/2004

• RIR=01/02/2004, Regular=12/10/2003, Temporary LC=C, Faculty=C. No changes since last report.

05/13/2004: DOL FY 2005 H-2B Cap Temporary Labor Certification Application Handling Procedure

• DOL today released a rule on procedures for the processing of H-2B applications for FY 2005 (date of need October 1, 2004 or later). Any employer who desires to employ an -2B worker with a start date of need on or after October 1, 2004 must file a new ETA 750, Part A with a new test of the labor market with the DOL on or after June 1, 2004. This
  procedure applies to those employers who have not been able to use a currently approved labor certification due to the H-2B program cap being reached for FY 2004. This action is necessary as the availability of U.S. workers fluctuates over short periods of time and an adequate test of the labor market must be made prior to the approval of a labor
  certification. Current DOL policy requires employers to file their H-2B application no more than 120 days before the worker is needed thus ensuring the labor market test is reasonably current. For example, employers who filed applications with DOL after March 10, 2004, and were not approved by CIS due to the program cap being reached, will need to file new applications with the DOL no earlier than June 1, 2004, if the employer has a date of need no earlier than October 1, 2004. These applications will be handled according to current ETA policy and must include a current test of the U.S. labor market.This notice is effective May 13, 2004. For the full text of the rule, please click here.
  

05/11/2004: GAO Gives Overall Pass-Score for US-VISIT

• The GAO today released its study and recommendation on the first phase result of US-VISIT program operation. Overall it gave a pass-mark even though it also recommended areas of improvement. This is an encouraging review for the U.S. Department of Homeland Security. Please click the full report and highlights.

05/11/2004: Legalization Application Under CSS/LULAC Court Settlement and Reinstated Form I-687

• As the USCIS implements the settlement, in order to process the legalization applications from the eligible applicants under 245A, USCIS reinstated the immigration form I-687, Application for Status as a Temporary Resident Under Section 245A of INA. The only acceptable form is, though, April 30, 2004 edition and old editions are not acceptable. The applications are accepted from May 24, 2004 until May 23, 2005. Please click here for the new form.

05/11/2004: Come May 28, 2004, OMB PERM Review Deadline

• As everyone knows by now, OMB has been reviewing the PERM final regulation since February 23, 2004. Since they are required to complete the review within 90 days, it is expected that the OMB review be completed by May 28, 2004. For most of the employers and immigrants, publishing of the final regulation is considered more important than the actual start-date because the release of the final regulation in the federal register will set forth the detailed guidelines and standards, particularly the required "minimum" recruitment process and sources of recruitment for the PERM filing. Since the DOL intends to provide four-months (120 days) of lead time prior to actual launch of the program and provide orientation sessions throughout the country, it is expected that during the next six months, the employers will launch an active recruiment campaign to build a case for the PERM filing.
• When it comes to actual publication of the OMB-approved PERM regulation, the educated guess includes one of two dates: First guess is June 1, 2004 with the actual launch of the program on October 1, 2004, the starting date of FY 2005 with the FY 2005 funding. Second possible date is the period of the AILA National Conference (June 9 through 13, 2004). Traditionally, the agencies released important policy memorandums or regulations during the AILA National Conferences. This year, the AILA is convening the Annual National Conference in Philadelphia and there will be a massive turn-out of the leaders and policymakers from DHS, DOL, DOS, SSA, and other agencies because of the proximity of the location to Washington and the agencies' needs for public relations with the immigrant community through the immigration lawyers' community.
• This reporter is scheduled to attend the Annual Conference in Philadelphia. In the "enforcement-oritented" immigration environment, a substantial amount of attention is expected to be directed to the issues and policies of BICE, BCBP, and immigration court jurisdictions. However, this reporter intends to learn and report on the USCIS/DOS and employment-based immigration/visa and DOL automation issues and policies, particularly the backlog reduction agenda and schedules, outlines of reengineering programs, direction of immigration reforms and schedules, and legislative agenda of the agencies. Please stay tuned!

05/09/2004: U.S. to Share Lost/Stolen U.S. Passport Data with Interpol for Security and Identity Fraud/Theft Issues

• The U.S. Department of State has announced that the U.S. will share lost and stolen passport data with Interpol. The United States is joining many other countries in providing current information on issued passports reported lost or stolen to the Interpol lost and stolen document database which is available to border authorities worldwide. Under the new policy issued U.S. passports reported lost or stolen will be immediately invalidated, added to an electronic database, and may not be used for travel. To protect the original passport holder's privacy, the name and biographical data from the passport will not be given to Interpol. Only the passport number, country of issuance and document type will be provided to Interpol. During the processing of travelers at ports of entry, if a hit occurs against the Interpol database, the hit will be verified with U.S. authorities before action is taken against a bearer of such a passport. Reportedly, travel document fraud, including the fraudulent application and use of the U.S. passport, represents a serious and growing threat to our national security. For the full report, please click here.

05/08/2004: Chinese New Nonimmigrant Visa Applicants in Continous Limbo

• The Chinese who apply for a new nonimmigrant visa both in and ouside of the country is required to make an appointment with one of the four American consulates in Chengdu, Guangzhou, Shanhai, and Shenyang, or the American Embassy in Beijing. The appointment is taken only through the All-hina Visa Information Center. However, this Center has remained shut-down since April 23, 2004 by the Chinese government. Accordingly, those who had already scheduled appointments and interviews prior to the shut-down have been issued the visas, but all other new applicants are unable to obtain visas because of the unavailability of appointments. The American Embassy in Beijing is working with the Chinese government to resolve the problem, but so far no good news have been released either from the American Embassy or the Chinese government. Please stay tuned.

05/08/2004: Visa Renewal Procedure Change in Shanghai/China Effective 05/10/2004

• The American Consulate in Shanghai has announced that effective Monday, May 10, the CITIC Bank will accept applications with some modifications to enable the Consular Section to collect biometrics from applicants. Eligibility requirements to use the drop-box program will not change and in most cases, applicants will continue not to need interviews to have their visas renewed. However, the new system will designate a time during which applicants must appear to provide biometrics (in this program, fingerprints). Applicants must appear during the designated period of five business days. If an applicant does not appear during the designated time period, his or her passport will be returned to the branch of the CITIC Bank where it was submitted. In such a case, the application will be refused without prejudice. The applicant must then resubmit his/her application through the CITIC Bank or make an appointment to appear for a visa interview. For the announcement, please click here.

05/08/2004: DOL Statistics of H-1B LCA and Permanent Labor Certification Filings by State (10/01/2000-09/30/2003)

• Those who need information on their states which are not listed above may send us e-mail (ohlaw@immigration-law.com) for the information.

05/07/2004: New 485 Filing and Processing Agenda

• USCIS has yet to announce the backlog reduction agenda which they scheduled in May or June 2004. However, USCIS Service Center sources gave us a glimpse of the direction towards which the USCIS were heading. According to the sourcs, USCIS implemented a nine-month delay in fingerprint scheduling this year to alleviate the problem of fingerprints expiring prior to adjudication of the case. Reportedly, however, the Service Centers have been recently directed by the USCIS HQ to schedule fingerprinting upon receiving of I-485 applications, even though there is an anticipation that some of those cases may still experience some delays due to the backlogs at the Application Support Centers. This fingerprint agenda change is implemented with a targeted 485 processing time reduction to the period of validity of fingerprint (Fingerprint is valid for 15 months) by early next fiscal year. Fiscal Year starts on October 1, 2004. Additionally, by the end of this year, the USCIS will have installed a system which will capture and store the fingerprints, allowing the agency to obtain new pringer print results without 485 applicants being reprinted. Accordingly, in the near future, refingerprinting may be totally eliminated. Such change will allow the agency to reduce I-485 to 6 months by the end of FY 2006 (September 30, 2006).
• All in all, the six-month I-485 processing times is at quite distance away, but we may, hopefully, see some level of processing time reduction within the year. Let's cross our fingers.

05/06/2004: Special Rules of Nonimmigrant Admissions and Employment Authorization for Three Pacific Island Countries

• USCIS has announced the special admission procedures and employment authorization rules for the people from three Pacific Islands: Micronesia, Marshall Islands, and Palau. Reportedly, most of the people from these islands travel and work in Hawaii, but the rule applies anywhere in the United States. Please click here for the special rule.

05/06/2004: Federal Agency Report Echoes Scientific Community's Concern Over U.S. Science Losing Grounds Caused by Visa Problem

• The National Science Foundation is a federal agency that releases a report every two years on the nation's science state and issues. This agency released a bi-annual report Tuesday disclosing its finding that the current environment and visa problem would leave this nation behind other international competitive nations that had been promoting and inducing scientific brains to their countries taking advantage of the hostile environment in the U.S. against foreign scientists. There is a saying in the Orient that unlike other issues in the society, the education needs a long-term plan that foresees 100-years ahead of time for the nation. The other side of this golden rule is that the leaders who are destined to come and go in a very short period of time can irreparably damage the future of the nation over the period of 100 years! Read on.

05/06/2004: Kansas State to Give Illegal Immigrant Children Tuition Break

• A legislative bill passed yesterday, which will be signed by the Kansas Governor very swiftly. Under the new law, illegal immigrants in Kansas who have attended a Kansas high school at least three years and graduated or who earned a general educational development certificate in Kansas will receive a tuition break. To receive the lower tuition, an immigrant would have to be actively seeking legal immigration status or plan to do so when eligible. Considering the fact that the children of illegal aliens are innocent victims of their parents, it is a right thing to do by all means. For the full story, please click here.

05/05/2004: USCIS Move to Reduce RFEs

• The AILA has reported that yesterday the USCIS started its move to reduce issuance of RFEs which had burdened the agency with tons of workloads leading to the delays in adjudication and backlogs. This move cuts both ways for the customers. But before we get to this point, let's find out the skeleton of the agency's new guidelines.
  • Outright Denial for Failure to Meet Basic Statutory/Regulatory "Substantive" Qualification Requirements: From today, the agency will deny petitions or applications if the filing fails to meet the "threshold" eligibility requirements for the petitions or applications. This will help the agency to throw out either frivolous or totally ineligible cases without wasting any time and money.
  • Outright Denial for Failure to Submit "Sufficient" Evidence to Establish Eligibility: When the petitioners or applicants submit the required basic threshold supporting documentation which meet the "initial" evidence requirement under the statute and regulation, the agency will not give additional opportunity to supplement the evidence by issuing RFE. Accordingly, it will be critically important that the petitioners or applicants go an extra mile to document not just de minimus threshold evidence but sufficient evidence to prove the threshold requirements.
  • RFE is required When "Initial" Records Are Missing: The statutes and regulations list the record requirements for filing of petitions or applications. If such records or evidence are missing, the agency will continue to issue RFE.
• The positive impact of this move is obviously reduction of backlog. This web site has been advocating such move all along.
• However, one should not ignore the negative side of this decision. People will see increased number of denials in the mail without RFEs. A couple of things people should be conscious in presenting a case from here on:
  • Meticulous Documentation for Threshold: One cannot sit on a minimal documentation anymore. The agency cited as an illustration issue of "employer's financial ability to pay the proffered salary" to the alien employees. If the least amount of evidence is submitted to establish this requirement, which the agency believes failed to prove this requirement, the case will be denied outright. From here on, "extra" documentation may be a prudent thing to do.
  • EAD vs. H-1B Strategy for I-485 Filers: The risk of working on EAD rather than H-1B status will increase substantially under the new policy. Once I-485 is denied, the alien loses the legal status immediately if the alien worked on EAD rather than a nonimmigrant status. The agency will immediately revoke the EAD. The only recourses available will be either an appeal or a motion to reconsider or a motion to reopen. Meanwhile, those who work on H-1B will not be affected by such denial when it comes to their H-1B employment and legal status. Besides, those who work on EAD rather than a nonimmigrant status are subject to removal proceedings as they do not have any specific nonimmigrant status when the I-485 application is denied. Another important point to remember for the 7th-year H-1B extension eligible professionals: Under the current court decision, the denial of agency does not deprive them of eligibility for the 7th-year extension "if" an appeal has been filed timely. The court determined that "final decision" under the AC 21 that stops the eligibility for the 7th extension eligibility would not arrive until a final decision is made by an appellate body. It is thus likely that people will witness an increased number of appeals to seek remedy for the legal issues and to preserve their right to the 7th-year H-1B extension pending appeal.

05/05/2004: Chaotic Scientist/Scholar Visa Policy & Backlogs, Impending Reverse Brain Drain, and Policy Recommendations

• According to the National Association of Foreign Student Advisors (NAFSA), a February 2004 survey by NAFSA and four other higher education associations identified the alarming extent to which international students are apparently voting with their feet by not submitting applications to U.S. higher education institutions for this fall. That survey found that the problem is particularly acute at the nation's doctoral and research institutions, and among the 25 research institutions that enroll the most international students. In recent months, attention has focused on the prospect of an impending "reverse brain drain," in which the United States could lose increasing numbers of gifted foreign scientists to more welcoming countries. Meanwhile, officials in Australia, Canada, and the United Kingdom have openly expressed their belief that their recruitment efforts to woo the most talented internationally mobile students and scholars have benefited from the growing perception of an unwelcoming climate in the United States.
• Their study indicates that there is a chaotic lack of management policy and absence of coordination among the involved government agencies. A few days ago, this web site brought up the issues of role of scare factor in the immigration adjudication process and management leading to a huge backlog. This web site also deplored a drastic departure of the DHS this year in dealing with the F or J nonimmigrants' legal status during the period of H-1B cap, indirectly forcing them to abandon and leave this country. The report indicates that a same phenomena is taking place in the consular visa process leading to repetitive and ineffective clearance procedures and inefficient management of security clearance process. Facing the crisis, NAFSA has prepared and released "A National-Interest-Based Visa Policy for Students and Scholars" proposal. For the full report and recommendations, please click here.
  

05/04/2004: "Another" Immigration Reform Legislative Packet Named "SOLVE Act of 2004"

• Today, Democrats introduced another legislative bill in the House of Representatives and the Senate that provides, among others, the "earned" immigration benefits for illegal aliens of five years as of May 4, 2004. This bill is strongly supported by various organizations including AILA. However, one cannot ignore the fact that this is a partisan legislative bill and an election year campaign. One can only hope that this bill does not fade away along with the national election. There are a number of so-called "immigration reform bills" introduced and pending in the Congress which commonly focused on earned legalizaion and temporary guest worker programs. All of these bills, after a loud drum-beat, remain in a sort of dormant stage. For the summary of SOLVE Act of 2004 by the AILA, please click here.

04/30/2004: Immigration Lottery Program Under Fire for Security Risk and Frauds

• Deputy Inspector General of the U.S. Department of State testified before the Congressional Committee elaborating its findings on the current Immigration Lottery Program's security risk and widespread fraud. Based on the findings, the DOS recommended that applicants from state sponsors of terrorism should be excluded, that multiple applicants should be penalized, and that the program should charge application fees that would enable the Department to recoup its costs for hiring more people and would reduce the number of multiple applicants. She stated that her experienced consular inspectors have also suggested a possible improvement, excluding from the program countries with extremely high levels of fraud. Most of these recommended changes will require legislation. DOS thus plans to review this program in the next few months in light of the changes in technology and the widespread public and congressional interest. For the full text of the testimony, please click here.
• It is unclear at this time how this finding will affect the results of DV-2005 which is expected to announce in the near future. DOS (Kentucky Visa Center) is scheduled to send out the winner notifications from May to July.
• For the views of other witnesses, read on.

04/30/2004: North Korean Refugee Program Legislative Bill, H.R. 4011, Moving Ahead

• Without much media attention, the Congress has been conducting hearing on this legislative bill which includes Refugee Program, Temporary Protected Status, Humanitarian Parole, and even Adjustment of Status to a Lawful Permanent Resident Status to certain North Koreans. Report indicates that the bill already passed the International Relations Committee in the House last month. For the review of the testimony and excerpts on the immigration provisions, please click the following:
  • Testimony
  • Immigration Provisions Excerpts

04/29/2004: Right Solution and Direction for Immigration Backlog Reduction

• This web site welcomes the USCIS's recent move to reengineer the "adjudication" process along with the change of front-end services through the electronization, including expansation of electronic filing. Without doubt, such change will contribute tremendously to its goal to reduce the current unacceptable backlogs.
• It is our opinion, though, that along with the reengineering of the processing system, the agency should also relook at the current unnecessarily and overly excessive scrutinizing adjudication process. It is also this web site's opinion that the current practice originated in confusion of cause-effect relationship between the immigration issues and terrorism. There is no shred of evidence to prove the ties between these two issues. Such confusion has apparently created a "scare" mentality within the agency for potential political liability and eventually tightening the immigration process. Let's be honest. The latest statistics indicate that migration of illegal aliens crossing the southern border has increased 25%, partly affected by the Bush's announcement of Temporary Guest Worker proposal. However, no one thinks that this immigration issue should heighten the alert for terrorism! Simply these two things do not add up.
• No one would disagree to the policy that the agency should enforce the law to the sprit and intent of the law. We would thus have no disagreement with the current practice of the agency if this is caused by change of law enforcement policy. However, this policy change should not be tied to issues of terrorism. If the policy change was driven by the scare factors and political liability factors, the Bush Administration should correct the problem at the highest political level. Without loosening up of the adjudication process, reduction of backlog at the backend will be hard to come by. Unfortunately, this was one of the fall-outs of the Homeland Security Act. The Bush Administration should assure the employees of their job security and free these workers from the fear of liability for a minor mistake in job performance.

04/29/2004: 32% Drop of Foreign Graduate Student Applications Affecting Nation's Colleges and Universities

• Annually, it used to bring in 640,000 foreign students, but it reportedly has dropped approximately 32%, obvisously affected by the changing environment for visa procedures and other restrictions on foreign students in this country. The higher learning institution community, being alarmed by the rate of drop, has started pressuring the U.S. government to change its policies on the foreign students. Read on. In the present policy of hardline international confrontations, apparently importance of the role of the foreign students in the country's foreign relations has slipped out of the minds of policy makers. These policy makers should look at the backgrounds of international leaders, including the Secretary General of the United Nations and the leaders of the pro-American Arab countries to learn the importance of education of foreign students in the U.S. for the international relations of this country with other nations.
• Another disappointing move in this direction of the government is DHS/ICE's failure to take a swift action to relieve the foreign students in practical training from falling out-of-status while they wait for H-1B status on October 1, 2004. These students' hope for such relief has been fading away fast as time passes since the H-1B cap reached in February 2004. The ICE has remained silent. The ICE is urged to announce its position on this issue as soon as possible. The current posture of the ICE on this issue is a drastic deviation from the government's past practice and policy.

04/28/2004: New Filing Fees Go Into Effect Day After Tomorrow, 04/30/2004

• AILA has reported that the USCIS will accept the filing even after 04/30/2004 with the current fees if the filing is "post market" April 29 or earlier. Any filing post-marked April 30 or later date and received on or after April 30, 2004 will be rejected and returned. Deadline filers should be conscious of this fee change rule to avoid any deadly consequences.

04/28/2004: Rate of FY 2005 H-1B Cap Petition Filing is Reportedly Low for Now

• There have been a variety of speculation on the potential reach of FY 2005 H-1B cap this Summer. Allegedly, some ethnic newspapers in a few large cities reportedly even speculated that it may reach as early as August. However, so far, these rumors appear to be totally unfounded. The USCIS has reported to the AILA that the incoming H-1B cap petitions have recorded unusually low contrary to the speculations. The USCIS has yet to release the specific figures, but without doubt, failure of BICE to announce a policy of extending F or J visa holders pending H-1B petition must have partially contributed to the unusual low rate of the petitions.
• However, the rate can change in the future depending on the development of events. Please stay tuned.

04/28/2004: What Is Visa Information Call Center?

• The American Consulate in Hong Kong just opened the Center today, but its role is different from the Center in Beijing which has remained closed by the request of the Chinese government. User pays visa information call centers have been in existence for nearly 10 years. They are used as a means to enhance customer service by providing timely and accurate information. In many countries, the call centers schedule appointments as well. User pays visa information centers exist in roughly 30 countries around the world. In Asia, they include Japan, Korea and the Philippines. Over 14 countries in Europe (including the UK, Germany, France and Italy) and 10 in the Western Hemisphere (including Canada, Mexico, Colombia and Argentina) also have user pays systems.
• While nonimmigrant visa appointments in Hong Kong can continue to be made on line at no charge through the U.S. Consulate General's website, persons calling the visa information call center will be offered the option of having an operator schedule an appointment on their behalf. In the consulates in Beijing and Guangzhou, China, the Visa Information Call Center is the exclusive means of scheduling appointments. Accordingly, in mainland China, nonimmigrant visa issuance to the Chinese people is currently held hostage. For the information on the newly opened Visa Information Call Center in Hong Kong, please click here.

04/27/2004: USCIS Makes Immigrants' Lives Less Stressful in I-94 Correction

• On March 30, 2004, the USCIS issued a memorandum instructing USCIS district offices to correct the error on I-94 if he/she has a convincing evidence that the error was made by the USCIS officials(Service Centers, District Offices, and Asylum Officers). This Memorandum does not bind the BCP immigration inspectors or ICE officials. However, the USCIS District Offices are also directed to refer the aliens to the BCP officers if the error was made by the immigration inspectors at the port of entry so that he/she seeks correction by the BCP offices per its policies and procedures. What a wonderful act!
• Caveat: The errors on I-94 are not always made by the immigration inspectors or USCIS officials. For instance, if the alien's passport expires at an earlier date than a visa expiration date or I-797 Approval Notices, the immigration inspectors are mandated to issue I-94 valid until the date of expiration of the passport. Accordingly, should the alien appears at the District Offices or BCP officers with the expired I-94 and with the mistaken understanding that it was committed by the officers, theoretically the alien can be arrested for out-of-status even if he/she has a valid I-797 which was issued prior to the entry of the alien to the port of entry. Another classic example of the last action theory which the immigrants should learn. It is thus rudent to examine carefully the sources of error before jumping into conclusion that it was the officials' error and appearing at the district offices or immigration inspectors. For the Memorandum, please click here.

04/27/2004: AILA's Washington Update 04/27/04

04/25/2004: Requirement of In-Status Proof for F/J Visa Holders' FY 2005 H-1B Applications

• Unless the DHS/ICE announces the long-awaited D/S extension, the current rule requires that the practical trainees in F or J visa status must prove that they will be "in status" when the H-1B number becomes available on October 1, 2004. Accordingly, should an employer file a H-1B petition for such F or J employee with the request for change of status when the alien will fail to main a nonimmigrant status, the Service Centers will approve the H-1B petition H-1B effective October 1, 2004 with the denial of the alien's application for change of status to H-1B. Should such action take place, the alien will have to leave the country to apply for the H-1B visa and return to the country or file another H-1B petition after one develolps and submits the proof of maintaining nonimmigrant status. The latter option is a so-called stop-gap application. Usually people do not realize that when the employer submits I-129 H-1B petition for the aliens in the United States, it involves two separate legal proceedings: One is authorization for the employer to hire such alien professional. This does not automatically allow the alien to change status to H-1B and join the company. The USCIS has to also approve change of status for the alien beneficiary. For the change of status, unless the alien proves maintenance of nonimmigrant status, the USCIS cannot approve such status change unless one is qualified under the extraordinary circumstances exception rule. There are a couple of caveats which the F or J aliens should keep in mind.
• Caveat 1: Should the F or J alien inadvertently apply for change of status without the proof of maintaining nonimmigrant status up through October 1, 2004, not only it will result in denial of change of status, but also, more importantly, it will trigger the three-year bar or ten-year bar clock ticking from the date of denial. The F or J aliens are not subject to the three-year or ten-year bar even if they fail to maintain nonimmigrant status unless the immigration official or immigration judge determines that the alien is out of status. Once the alien is subject to the three-year bar or ten-year bar because of their unlawful presence in the U.S. for 180 days or one year, the alien will not be able to return to the U.S. for three years or ten years once the alien leaves the U.S. The U.S. visa posts will also deny H-1B visa application. It is thus critically important that such F or J does not allow the employer to submit H-1B visa petition with the concurrent request for change of status from F or J to H-1B. Rather, the employer should file H-1B with the request for consular notification for consular processing without disclosing the current status or whereabouts of the beneficiary alien. In the event that the employer committed an error, the alien should take a quick remedial action, leaving the U.S. within 180 days from the date of denial. Inasmuch as the aliens leave the U.S. within 180 days, the consular officers will grant a H-1B visa application even if the officers is aware that the alien was out of status for sometime in the U.S. before coming to the consulate. Of course, the practice generally applies only if the alien is "otherwise" eligible for the nonimmigrant visa.
• Caveat 2: In order for such F or J alien maintain a nonimmigrant status through October 1, 2004, he/she may have to apply for extension of their current F or J status or apply for change of status to other nonimmigrant status which does not have a cap like a visitor visa status. Such stop-gap application must be received by the USCIS before one's status expires. Under the current rule, timely filing of such application will allow the alien to remain in the U.S. until a decision is made by the USCIS, no matter how long it takes. However, there is one "predicament." It is a "last action theory" in application for change of nonimmigrant status. This theory says that when it comes to the classification of nonimmigrant status of an alien, whatever decision the USCIS makes "last" controls. Accordingly when two applications for change of nonimmigrant status, each for a different class of nonimmigrant status, are filed, depending on which one is approved first or which one is approved last, his/her nonimmigrant status will change to that class of nonimmigrant status. In the present discussion, both FY 2005 H-1B cap petition and the stop-gap application for change of nonimmigrant status, for instance B-2, require that the petition/application be filed before one's status runs out. Accordingly, depending on the two factors, the unintended other nonimmigrant status like B-2 can be approved later after the H-1B petition is approved and he/she will be stuck with the B-2 status rather than H-1B even after October 1, 2004. In such case, the alien will have to refile the H-1B petition or depart from the U.S. and return to the U.S. with a H-1B visa stamp in the passport. One factor is proper timing of filing of each of these two petition/application by the alien beneficiary. The second factor is the USCIS processing times for each of these two types of application for change of status. By-weekly report of the Service Centers' processing times is not a 100% controlling factor because from time to time, the agency irregularly processes an individual case when it comes adjudication of his/her case. Sometimes, the Service Centers are generous enough to deny the stop-gap application after October 1 in the present type of situation once they have already approved H-1B petition, but one's case can miss the agency's attention to such filings in a specific individual situation. When people consider the stop-gap application, they should seek counsel from an attorney rather than attempt to handle his/her matter by him/herself.
• Golden Rule: No matter what, one should not miss the filing, whatever it is, before his/her legal status expires. Post mark is not enough. It should be "physically receipted" by the Service Center of the right jurisdiction. If the filing is rejected for the flaws in the filing fee payment check or missing signature on the form or I-129W form with signature, it can be deadly. Details, details, details....... Good luck.

04/25/2004: F/J Visa Holders Anxiously Awaiting the Final Action of DHS/ICE on Extension of D/S Status Pending H-1B Petition

• Those F-1 and J-1 nonimmigrants in Practical Training wishing to apply for change of status to H-1B and facing expiration of permited stay before October 1, 2004, including their family members, are anxiously awaiting the decision of DHS/ICE on this issue. The ICE initially planned on publishing its regulation in April 2004 for final action of the original Interim Rule of 1999, but people have yet to hear from the agency. At this time, there is no definite answer to the question on the ICE decision, but we want to give an opportunity to the readers to review the 1999 authorization regulation and the 2000 federal register announcement of extension of D/S status for the year 2000. The 1999 regulation did not automatically extend the D/S and just authorized the DHS to make such decision for a specific year. The 2000 announcement was such an example. Readers are cautioned that the following links do not extend their D/S status "unless the DHS/ICE announces a similar decision as the one in 2000!!!" We are providing these links to help the readers understand what the agency did in the past. The agency may not even adopt a similar policy this fiscal year, and even assuming that the agency may announce a similar policy this year, the agency could have changed the details in the rule. It is thus critically important that people do not rely on the information in the following links as the current rule or law.
  • 1999 Authorization Interim Rule (pdf)
  • 2000 Implementation Announcement for 2000 "only"
• Readers are reminded that after 2000, the agency did not have to make such decision as the H-1B annual cap never reached since the annual cap number was 195,000. We faced this year the H-1B annual cap because the annual cap returned to 65,000. We urge the DHS/ICE to adopt and announce its decision as soon as possible. Let's cross our fingers!!

04/24/2004: Operation of All-China Visa Information Call Center in Beijing Temporarily Closed 04/23/04

• The all-China Visa Information Center, which schedules visa appointments and provides general information to the public, was forced by local Public Security Bureau officials to cease operations as of 2 pm on April 23. The U.S. Embassy in Beijing is investigating the reasons behind this closure. The Embassy hopes to be able to resume scheduling visa appointments for Chinese citizens as soon as possible. On instruction from the Chinese Authorities the Visa Call Center services are temporarily unavailable. Requests for new appointments cannot be serviced until the Call Center resumes operation. If people have previously made a visa appointment, they are advised to go to the Embassy or Consulate at the scheduled time. For the development, please check the Embassy.
  

04/23/2004: Biometric Identifier Visa Requirement and Approaching End of Visa Revalidation

• For years, certain classes of nonimmigrants have enjoyed renewing their nonimmigrant visas without leaving the U.S. by applying for such renewal through so-called visa revalidation unit at the U.S. Department of State by mail. However, the biometric identifier requirement for the visas is destined to kill the visa revalidation services in October 2004. The current law requires that all visas must include a biometric identifier of fingerprints by October 2004. Unlike posts abroad, the revalidation unit in the U.S. Department of State in the United States is not equipped to interview or fingerprint visa applicants. Accordingly, the sources of the U.S. Department of State indicates that the visa revalidation services may end before October 2004. Those who need visa revalidation should send out as soon as possible. Please remember that not everyone is qualified for the visa revalidation. The nationals from the seven terrorism sponsoring countries are ineligible because of need for interview and biometric identifier. Certain nonimmigrant classes of non-employment visas are also ineligible. Additionally, those eligible cannot apply for revalidation unless their current visas are about to expire within two months or the visas have not expired longer than one year.
• This potential change will give a tremendous inconvenience to nonimmigrant visa holders in the U.S. as they will have to spend time and money to travel to the visa posts abroad just to renew their visas. Even more critical than the issues of time and cost is unpredictability of the nonimmigrant visa processing in certain visa posts out there. Since one cannot return to work in the U.S. until the visa is issued or approved, it will indeed present a nerve-breaking journey. This is particularly true that certain visa posts increasingly deny nonimmigrant visas, particularly dependant family member visas. Without doubt, such change will add pressures to the visa posts in Canada and Mexico as the qualified Third Country Nationals will increasingly try to use the TCN services of these visa posts in the border countries. Well, life changes day by day.
  

04/22/2004: Expansion of Immigration Electronic Filing, Sooner than Later

• We reported on April 19, 2004 that the USCIS was scheduled to announce expansion of e-filing of nonimmigrant/imigration petitions/applications in the late Spring. AILA reports today that such announcement may come earlier than expected. No fixed date has been disclosed, but the report indicates that the next expansion will include: I-907, I-140, I-129, I-539, I-131, and I-821(TPS). Currently, electronic filing is available for I-765(EAD) and I-90(Green Card Replacement).
• This is a very welcome move, particularly in such types of cases as I-129 together with I-907(Premium Processing) and I-539. However, considering the experience of I-765 and I-90, those proceedings that require biometric identifier phases such as I-131 may face a similar experience as current I-765 and I-90. Electronic filing of I-131 will obviously require two steps: Obtaining biometric identifier procedure after filing of the application. For I-140, this reporter also see a limited utilization of electronic filing in the sense that unless I-140 filing alone is absolutely necessary such as immigrants abroad or Schedule A cases for the aliens abroad, most immigrants may opt to take the concurrently filing of I-140 and I-485 as such concurrent filing will also lead to the benefit of concurrent adjudication. The big winners will be all classifications of temporary workers, particularly who file such I-129 petitions with the Premium Processing.
• We remind the readers of our previous comment on reengineering of immigration benefits system. Reengineering of the system for the "front-end" is important, but more important is, in this reporter's opinion, reengineering in the "back-end," such as its recent decision on "concurrent adjudication" of petition+application. Multiple-year EAD and other creative ideas of the backend process will help tremendously in relieving the agencies from the backlog. We are anxious to see the announcement of whole packet of USCIS backlog agenda which will be forthcoming in the not-distant future. For now, we wish to send "hat-off" to the USCIS leadership!!!

04/22/2004: Senate Bill (S.2324) to Postpone Biometric Identifier Passport Requirement for Visa Waiver Program Nationals

• On April 20, 2004, a bi-partisan bill was introduced in the Senate to postone the requirement of biometric identier passport for the travellers from Visa Waiver Program countries until November 30, 2006. This bill is currently in the Judiciary Committe of the Senate. Parts of the text are as follows:
  • On and after November 30, 2006, any alien applying for admission under the visa waiver program established in accordance with section 217 of the Immigration and Nationality Act (8 U.S.C. 1187) shall present a passport that meets the requirements of paragraph (1), unless the alien's passport was issued prior to that date.'.
  • Not later than October 26, 2004, the Secretary of Homeland Security, in consultation with the Secretary of State, shall install at all ports of entry of the United States, equipment and software to allow biometric comparison and authentication of all United States visas and other travel and entry documents issued to aliens. Not later than November 30, 2006, the Secretary of Homeland Security, in consultation with the Secretary of State, shall install at all ports of entry of the United States, equipment and software to allow biometric comparison and authentication of passports.
• Please stay tuned.
  

04/21/2004: Dallas District Launches Pilot Program of 90-day Adjudication of Non-Employment Based I-485 Application

• As we reported earlier, the USCIS Dallas District Office was planning to launch this pilot program. Here we go. To learn who are eligible and what types of I-485 cases are covered, please click the followings:
  • Press Release
  • Fact Sheet

04/21/2004: Reminder: Scheduled Immigration Lottery Winners Notification in May-July 2004

• The end of April is fast approaching and those who sent in immigration lotteries for DV-2005 are anxiously waiting for the notification. The program stated that the winners would be notified in May-July 2004. It is thus anticipated that DOS may announce the results of DV-2005 in the near future. Please stay tuned.

04/20/2004: DOL Requested Yesterday OMB Review of Interim Final Rule for Permanent Labor Certification Backlog Reduction

• Yesterday, April 19, 2004, the U.S. Department of Labor, ETA, requested the Backlog Reduction rule. The OMB is under review of this DOL regulation. No details have been disclosed. Please stay tuned to this web site for the development of this rule-making activity.

04/20/2004: DOL New H-1B1 Visa Labor Attestation Proposed Rule Under Review by OMB

• On April 19, 2004, the DOL requested the OMB to review its proposed regulation on the labor attestation for the new H-1B1 visa which has been created by the Free Trade Agreements with Singapore and Chile. Details have yet to be disclosed. This is a proposed rule and the review can take upto 90 days. Accordingly, it will take some time before the H-1B1 labor attestation rule is enacted into enforceable regulation. Please stay tuned.

04/19/2004: USCIS Backlog Reduction Plan and Multiple Year EAD

• USCIS sources indicate that sometime in late Spring 2004, it will announce the details of backlog reduction plan, which will include multiple-year EAD and electronic filing schedule. The sources say that by FY 2005, 90% of immigration benefits filing will be done electronically.
• The multi-year EAD rule has been under review by the OMB since March 4, 2004. It is likely that the review will be completed around the first week of June 2004 and may be published soon thereafter. Please stay tuned to this web site for the development of this news.

04/19/2004: PERM Labor Certification Program: Probable Launch Date of 10/01/2004?

• The final rule of the PERM was received by the OMB for its review on February 23, 2004. Since this review is not considered economically significant, it is likely that the review may be completed in 90 days, most likely by Mary 26, 2004. Since the DOL plans launch the program 120 days after the release of the regulation, the final rule may be published on June 1, 2004 with the start date of October 1, 2004. The proposed FY 2005 budget already earmarked for the PERM. Once it is published, the final rule will specify the required recruitment sources, types of recruitment, and the standards of recruitment. It is thus likely that the employers may be able to launch the recruitment campaign as soon as the final rule is published. Please stay tuned to this web site for the development of this news.

04/18/2004: U.S. Supreme Court to Test Limit of Executive Power of Immigration Detention Coming Weeks

• In the next 10 days, the United States Supreme Court will hear the following detention cases which will have a "profound" impact on the balance of liberty and national security:
  • April 20, 2004: Rahul v. Bush, No. 03-334
  • April 20, 2004: Al Odah v. U.S., No. 03-343
  • April 28, 2004: Rumsfeld v. Padilla, No. 03-1027
  • April 28, 2004: Hamdi v. Rumsfeld, No. 03-6696
• Please click docket for briefs and lower court decisions and news summary.

04/17/2004: USCIS Backlog Reduction and RFE

• As part of the Bush's 5-year reduction 6-month processing initiative, the USCIS has initiated a number of changes in the case management. One change is the concurrent adjudication of I-140/I-485 packages. Another change which the people will soon notice is the volume of Request for Evidence (RFE). For the recent months, the Service Centers have issued literally "flood" of RFEs creating a mountain of processing delays and backlogs. Report indicates that USCIS is currently working on a new management initiative which is expected to be completed by 2006. One of these moves will include the increased communication/contact by the Service Centers with the filers or their legal representatives through the telephone and fax in order not to issue RFE. This is indeed a welcome move. At the same time, unrepresented filers should pay more attention to the phone numbers and fax numbers which they print on the immigration forms. Those numbers can receive a call from the officers.
• Today, this reporter sent a fax inquiry to the TSC. Within an hour or so, this reporter received a telephone call from a TSC official responding to the inquiry. We are very grateful for the Texas Service Center providing such services to the consumers. It is expected that people will get more calls and faxes from the agencies in the future in lieu of RFE. People should pay more attention to the phone calls and faxes. Alert your receptionists and secretaries! It is a time to train the receptionists and secretaries to handle properly the calls from the agencies. The officers deserve respect and no rudeness.

04/15/2004: New Immigration Filing Fees Final Regulation

• As we posted yesterday, the USCIS published today the final rule to raise the immigration filing fees. This final rule is effective April 30, 2004. Applications or
  petitions mailed, postmarked, or otherwise filed, on or after this date require the new fee. Fee Final Rule.
  

04/14/2004: New Immigration Filing Fees Effective 04/30/2004

• USCIS has announced that the proposed fees will take effect beginning from April 30, 2004 and the final regulation will be published tomorrow, April 15, 2004. For the announcement, click here. For the new fee table, please click here.

04/14/2004: Reporting Policy of www.immigration-law.com

• The immigrant community is frequently confused by the lawyers' opinion or interpretation of the immigration laws, policies, and procedures as though it is "the law," and "official policy" or "official procedure" of the agencies involved. Most of these immigrants cite lawyers' websites and advance arguments that the law is such and such as stated in these websites. Despite the disclaimers in these websites, people are still confused. This confusion was particularly noticeable where the rules of implementation and interpretation of the laws by the agencies are absent. The classical example is AC 21. Absent of the implementing official regulation, the same law has been applied differently in different times based on the changes in policy in a wide spectrum between the narrow interpretation and application and the liberal interpretation and application at different time and by different field offices. The damage to the immigrant community can be steep.
• People should learn to distinguish the laws or rules from personal interpretation or opinion of the laws or rules by an individual legal professional. People should also learn to distinguish the facts from "opinion" or "value judgment" of an individual legal counsel.
• It is the policy of this website to cite "the sources" of information as best as we can not to confuse the readers. Accordingly, the immigrants should take certain postings without the disclosure of sources of the information in various websites including this website as the website's individual interpretation or opinion and not a law or a fact. This website will strive to adhere to the policy of reporting news, disclosing the sources of information in order not to inject this reporter's personal opinion or interpretation as much as possible. People should read the sources when they visit our website.

04/11/2004: Special Naturalization Requirement/Procedure for Military Personnel

• The requirement and procedure for naturalization (citizenship) application for immigrants in the U.S. military are different from other immigrants. Additionally, the military immigrants will bypass the certain procedures within the U.S. and citizenship proceeding will be completed abroad beginning from October 1, 2004. Read on.

04/09/2004: Rep. Lamar Smith H-1B Bill, H.R. 4166: Poisonous Legislation

• On April 2, 2004, the five Congressmen, including Rep. Lamar Smith of Texas, introduced a legislative bill, H.R. 4166 named American Workforce Improvement and Jobs Protection Act. This bill proposes to exempt the Master's degree or higher degree holders from the U.S. Higher Learning Institutions from the annual H-1B quota upto 20,000. These 20,000 additional numbers will be made available mostly to the private industry as the alien employees of the higher learning institutions are already exempt from the annual cap under the existing law.
• The problem of this legislative bill appears to lie with the real intent of the sponsors to reinstate the poisonous provisions of H-1B law which sunset on October 1, 2003. Specifically, this bill proposes to reinstate the provisions of $1,000 additional fees for H-1B filing and the monstrous "attestations" requirement for the so-called H-1B dependent employers. Additionally, the bill proposes to charge additional $500 fees in the name of fraud prevention/detection fee for all the new H-1B and change of employer H-1B transfer filings. Worse yet, the bill proposes to reinstate the investigative authority of the U.S. Department of Labor in the H-1B areas which have been repealed.
• We predicted earlier that the U.S. immigration law would move toward the direction of limiting the H-1B foreign workers from minimum requirement of a bachelor's degree to minimum requirement of a master's degree. In this part, this legislation is no surprise to the informed immigration practitioners. The foreign workers with the advanced degrees are employed by one of the nation's largest industry, higher learning institutions, that already enjoys exempt from the annual cap and additional fee charges. On the other hand, the H-1B annual cap of 65,000 has been chipped away by the so-called Free Trade Agreements with Singapore and Chile close to 7,000. Accordingly, the employers currently de facto have much less than 60,000 annual cap numbers for their foreign professional workers holding less than a U.S. advanced degree. Worse yet, this legislative bill proposes to mandate additional payment of $1,500 over and above the current H-1B filing fees and most of employers that hire seven or more H-1B workers will face the so-called "recruitment attestation requirement" and "no layoff attestation requirement."
• The string attached to 20,000 additional H-1B numbers for advanced degree holders (not all advanced degree but only U.S. Colleges and Universities degree holders) is too poisonous to swallow from any point of views. This bill is anti-small businesses and anti-immigration. Without doubt, such legislation will accelerate the pace of off-shore outsourcing which raises a furious debate in the nation. This website strongly opposes this bill unless the Congress removes the poisonous provisions in the bill. For the full text of the bill, please click here.

04/08/2004: AILA's Washington Update 04/08/04

04/07/2004: 33% Increase of Denials of Immigration Benefits In 02/2004 Over 02/2003

• According to the Monthly statistics of USCIS for the month February 2004 as prepared on March 31, 2004, the rate of denial of immigration benefit cases increased in February 2004 compared to the denials in February 2003. For the details of the statistics, please click here.

04/06/2004: Nebraska Service Center Estimate Processing Times for Asylee I-485

• The USCIS has released the estimate processing times of I-485 green card applications for the political asylees as follows:
  • Date Received (Mail Date) : Timeframe to be Processed
    Jan. 28, 1993-Nov. 16, 1999 : Oct. 1, 2003-Sept. 30, 2004
    Nov. 17, 1999-May 12, 2000 : Oct. 1, 2004-Sept. 30, 2005
    May 13, 2000-Nov. 6, 2000 : Oct. 1, 2005-Sept. 30, 2006
    Nov. 7, 2000-April 23, 2001 : Oct. 1, 2006-Sept. 30, 2007
    April 24, 2001-Aug. 31, 2001 : Oct. 1, 2007-Sept. 30, 2008
    Sep. 1, 2001-Jan. 17, 2002 : Oct. 1, 2008-Sept. 30, 2009
    Jan. 18, 2002-May 9, 2002 : Oct. 1, 2009-Sept. 30, 2010
    May 10, 2002-Aug. 19, 2002 : Oct. 1, 2010-Sept. 30, 2011
    Aug. 20, 2002-Dec. 12, 2002 : Oct. 1, 2011-Sept. 30, 2012
    Dec. 13, 2002-April 14, 2003 : Oct. 1, 2012-Sept. 30, 2013
    April 15, 2003-Aug. 4, 2003 : Oct. 1, 2013-Sept. 30, 2014
    Aug. 5, 2003-Dec. 8, 2003 : Oct. 1, 2014-Sept. 30, 2015
• This estimate indicates that the I-485 applications filed by the asylees at the end of 2003 should not expect to hear adjudication of their cases for the next 10 years. It indeed is a long row! Winniing a political asylum itself is a long struggle and a long journey. Please click here for the USCIS release.
  

04/06/2004: Jeb Bush Joins List of States Supporting Driver Licenses for Illegal Aliens

• Report indicates that the Florida Governor, Jeb Bush, came forward supporting the the legislative bill in Florida that would allow illegal immigrants to obtain a driver's license on certain conditions. The same report also indicates that several other states last year considered loosening restrictions on driver's licenses to allow illegal immigrants to drive. Hawaii and Kansas adopted laws last year making licenses easier for illegal aliens to obtain. Immigrant-rich Arizona is considering easing its rules this year. At least seven states allow an identification number given out to tax filers to be used as an acceptable form of ID when obtaining a driver's license. Such numbers are available to anyone who pays federal income tax, regardless of their immigration status. Read on.
  

04/05/2004: New Acting Deputy Commissioner of CBP Appointed and Commissioned Today

• On April 5, 2004, Deborah J. Spero assumed the position previously held by Douglas M. Browning, who had held the position since May 3, 2002. As the Acting Deputy Commissioner, Ms. Spero became the U.S. Customs and Border Protection Chief Operating Officer responsible for providing leadership and direction for daily operations. Since the unification of legacy Agriculture, INS, and Customs inspectors with the Border Patrol to better secure our nation's borders, this job is more important than ever. For the full text of the announcement, please click here.
  

04/05/2004: DOS Guidance for Processing of FY 2005 H-1B/H-2B Cap Visa Application Cases During the Cap Period

• Generally the rule for issuance of H-1B/H-2B visas is not to issue the visa until 10 days or less of H-1B/H-2B starting date on the I-797 aproval notice. However, since the USCIS has decided to process and adjudicate FY 2005 cap cases beginning from April 1, 2004 with the valid starting date of October, the visa posts have concerns that should the visa posts stay with the foregoing general rule, during the 10-day period of time from September 20 through October 1, 2004, the visa posts may be flooded with the H-1B/H-2B visa applications which the visa posts may not be handle.
• In order to accomodate the problem associated with such rush, the DOS has decided and issued the following special rules this year:
  • In visa posts where the H-1B/H-2B visa application volumes are not too heavy, such posts should not issue the visas until after September 20, 2004.
  • On the other hand, in visa posts where the H-1B/H-2B visa application volumes are very heavy, such visa posts will be allowed to issue the visas even before September 20, 2004. However, the visas issued will show general validity date, and such visa holders will not be allowed to travel before the validity date of the visas.
• Remember that this policy is to relieve the visa posts from the rush applications and not, repeat not, to allow the FY 2005 H-1B cap visa holders to enter the U.S. earlier than the normal rule of the DOS. For the full text of the DOS Cable, please click here.

04/05/2004: DOS Guidance on Processing of A-3,G-5,NATO-7, B-1 Domestic Employees of International Officials

• DOS issued a cable to the visa posts to strictly apply 2004 OES wage survey in adjudicating these visa applications. For the full text, please click here.

04/04/2004: USCIS Pilot Immigration Adjudication Programs Needs Backlog Reduction Initiatives in Parallel

• As we reported recently, the USCIS will soon launch pilot short-cut immigration adjudication programs, starting with the Dallas District Office for the non-employment based I-485 applications and the California Service Center for the employment-based EB-485 applications. Both of these pilot programs are targeting at adjudication of I-485 applications within 90 days of filing.
• These programs are at least initially limited to the "new filing" cases at the time of their launch of the pilot programs. The concept appears to have been derived from the notion that once new filing cases are quickly adjudicated, then the huge backlog cases which have been clogged in the pipeline may also be benefited because of additional adjudication resources which are made available by the shortened adjudication of new cases.
• However, there is a question of "fairness" for those who have been suffering for years because of the backlog. The old timers may rememer that in 1998, there was a huge I-485 backlogs because of the CIA clearance problem for about a year. In an attempt to deal with the clogged immigration system, the Legacy INS adopted a similar policy at the time to adjudicate later-filed cases ahead of the old cases to avoid repeated refingerprinting process which would add the caseloads to the agency. When the agency resumed the pace of the backlogged I-485 cases, late-filing cases started seeing reduction of adjudication time, but old-filers had to experience years of delays because of the refingerprinting and additional securiy process. It is submitted that the agency should not repeat the practice of unfairness.
• It does not mean that this web site does not support the pilot programs. We do. We strongly support the bold move. We just want to encourage the USCIS to initiate a similar move for existing backlog reduction in order to maintain some level of "fairness"in management of adjudication function. One way to reduce the existing backlog could be to launch a "proactive" submission of evidence instead of responses to the RFE. Without doubt, the current practice of issuing RFEs at least one or even two or three times in almost every EB-485 case must be creating huge workloads which lead to the tremendous backlog. The backlog then creates additional workloads for "refingerpring" after 15 months, which again leads to further backlog. A vicious circle. In fact, this web site proposed quite earlier to the INS to reinstate the "Proactive Filing of Evidence" which was adopted by the Nebraska Service Center for a year or two a few years back. Proactive filing means that the EB-485 filers voluntarily collect the additional evidence to update the eligibility of I-485 application such that the agency does not have to issue RFE. No one knows why such practice has been suspended in the Nebraska Service Center. We strongly urge the USCIS to consider such practice as one of the devices which the USCIS may develop to reduce the existing backlogs. The idea of issuance of EAD for more than a year which may become a reality in the future along with the idea of using EAD or Advance Parole as authorization for both work and travel instead of issuing two separate applications/documents is another terrific idea which the USCIS has been pushing. We compliment the agency for the creative ideas. Here, we are just addding one additional idea which we hope the agency will take a look at more seriously. "Fairness" should be a paramount goal in the admnistrative proceedings, in the humble opinion of this reporter.

04/04/2004: Immigration Filing Fees Destined to Go Up in the Near Future

• The USCIS was pushing the filing fee increase since the beginning of FY 2004 to raise the immigration filing fees based on the two consideration: Cost of security clearance and annual consumer price index rate. The increase in the fees in the upcoming regulation is intended to recoup the shortfall in the budget for FY 2004 and FY 2005. Beginning from FY 2006, USCIS intends to adjust the filing fees every year effective October 1 each year based on the consumer price index change.
• The fee change was sought initially in the form of "proposed rule" which was submitted to the OMB on October 23, 2003. The proposed rule was then withdrawn for amendment on January 16, 2004. However, the USCIS quickly resubmitted in January 2004, which was then quickly approved by the OMB on January 30, 2004, in approximately 90 days after the intitial move. On February 3, 2004, the USCIS published the proposed rule with the 30-day comment period. As soon as the comment period was over, the USCIS submitted to the OMB "the Final Rule" of the fee changes for the OMB review on March 29, 2004.
• Since the OMB review takes upto 90 days, people may assume that the filing fees may go up in the next three-month period of time. Obviously, the USCIS will not waste any time in announcing the final rule once the OMB review is completed. For the rate of increase under the proposed rule, please refer back to our report on February 3, 2004.
• Readers are also reminded of our earlier report on the GAO view on immigration backlogs which was one way or another tied to the agency's inability to assess the required funding for the backlog reduction agenda of the Bush's backlog reduction plan. The agency move could have been driven one way or another by the GAO critique and the fee increase must have reflected the USCIS' agenda for the backlog reduction programs in the next couple of years.

04/03/2004: Reaction to Expansion of U.S.-VISIT Announcement in VWP Countries

04/02/2004: VWP Visa-Free Visitors to be Fingerprinted/Photographed Beginning From 09/30/2004

• DHS and State Department announced today that the US-VISIT will be extended to the visa-free visitors from VWP countries beginning from September 30, 2004 as a stop-gap measure to deal with the security problem during the period of delay of biometric identifier passport requirement for the two years until October 26, 2006. Currently the US-VISIT program applies only to the visitors entering the country with a visa. Under the US-VISIT program, the visitors are photographed and fingerprinted at the port of entry. For the full text of the announcement, please click here. For Fact Sheet, please click here.

04/02/2004: USCIS Eliminates Circuit Ride Interviews for Certain Asylum/NACARA Applicants in Chicago & Houston District Effective 05/03/04

• The CIS will eliminate two Houston Asylum Office circuit ride locations, Harlingen, Texas, and New Orleans, Louisiana, requiring certain applicants currently residing within those jurisdictions to travel to the Houston Asylum Office for their interview. Also, CIS will eliminate two Chicago Asylum Office circuit ride locations, Cincinnati, Ohio, and Louisville, Kentucky. Asylum applicants currently interviewed in Cincinnati will travel to the CIS District Office in Cleveland, Ohio for their interview. Applicants currently interviewed in Louisville, Kentucky, will travel to the Chicago Asylum Office for their interview.
  • Houston Asylum Office: All asylum and NACARA 203 applicants who reside within the jurisdiction of the CIS District Office in Harlingen, Texas, will have their asylum and/or NACARA 203 interviews conducted at the Houston Asylum Office. Also, all asylum and NACARA 203 applicants who reside within the jurisdiction of the CIS District Office in New Orleans, Louisiana, except residents of Arkansas, Tennessee, and Mississippi (who currently interview in Memphis, Tennessee) will have their asylum and/or NACARA 203 interviews conducted at the Houston Asylum Office. The Houston Asylum Office will no longer circuit ride to Harlingen, Texas, or New Orleans, Louisiana. Residents of Arkansas, Tennessee and Mississippi who are currently being interviewed in the Memphis Sub Office will continue to be interviewed there. All other Houston Asylum Office circuit ride sites--Denver, Colorado; El Paso, Texas; Memphis, Tennessee; and Salt Lake City, Utah--will continue to serve as circuit ride interview locations.
  • Chicago Asylum Office: The Chicago Asylum Office will no longer circuit ride to Cincinnati, Ohio. All asylum and NACARA 203 applicants who reside within the state of Ohio zip code areas 43000-43399 (the Columbus zip code area), 43400-43699 (the Toledo zip code area), 44800-44999 (the Mansfield zip code area), 45000-45299 (the Cincinnati zip code area), 45300-45599 (the Dayton zip code area), 45600-45699 (the Chilicothe zip code area), 45800-45899 (the Lima zip code area), and the State of Indiana zip code areas 47000-47099 will have their asylum and/or NACARA 203 interviews conducted in the Chicago Asylum Office. All asylum and NACARA 203 applicants who reside within the state of Ohio zip code areas 43700-43899 (the Zanesville zip code area) and 45700-45799 (the Athens zip code area) will have their circuit ride interviews conducted at the CIS District Office in Cleveland, Ohio, instead of at the CIS Sub Office in Cincinnati, Ohio. All asylum and NACARA 203 applicants who reside in the state of Kentucky zip code areas 40000-40299 (the Louisville zip code area) and 41000-41099 (the Cincinnati zip code area) will have their interviews conducted in the Chicago Asylum Office, instead of at the CIS Sub Office in Louisville, Kentucky.
  • Each asylum and NACARA 203 applicant affected by these changes in interview locations will be notified of the changed interview location when he or she is sent an Interview Notice, notifying the applicant of the date, time, and place of the interview. Interviews that have already been scheduled to take place will not be affected by this notice and will be conducted as scheduled.
• This change will affect the legal representation cost for the asylum or NACARA applicants. For the full text of the announcement, please click here.
  
  

04/02/2004: Permanent Labor Certification Backlog Reduction Agenda of DOL As Revealed by Deputy Secretary of DOL

• On February 12, 2004, Mr. Steven Law, Deputy Secretary of Labor testified before the Subcommittee on Immigration, Border Security and Citizenship, Senate Judiciary Committee on the DOL's plan for the backlog reduction for permanent labor certification applications. The key points are as follows:
  • In FY 2004 which ends on September 30, 2004, the Congress approved $14.9 million over FY 2003 funding. Sources indicate that state offices (SWA) have already been allocated increased funds for reduction of backlogs at the state level. Some of the increased funds may be used by the DOL to launch the centralized backlog reduction centers.
  • However, Mr. Law testifies that primary funding for private contractors for backlog reduction will come in FY 2005 which starts on October 1, 2004. The proposed budget increase for backlog reduction is $11.1 million over FY 2004. Mr. Law stated that most of these funds would be used for hiring private contractors for operation of centralized backlog reduction centers. Assumedly, when he stated the centralized backlog reduction centers, he must have meant the two backlog reduction centers which the Director of Foreign Labor Certification Division disclosed earlier to the immigrant community. There are over 300,000 permanent labor certification backlog cases at this time.
  • The PERM program is planned to open in FY 2005 which starts on October 1, 2004. Even though Mr. Law did not state specifically, apparently, the program would be funded by the user fee revenue and the DOL is currently preparing the legislative proposal to charge fees for application of permanent labor certification (PERM applications).
• Well, there are plenty of sources of information by now that FY 2005 that will start in October 1, 2004, about six months from now, will mark a turning point for the permanent labor certification system, in terms of processing times and procedures.
• As a side note to the point of present discussion, we should also note that FY 2005 will also mark a year for labor certification enforcement era, particularly temporary labor certification programs of H-2A and H-2B. In parallel with the proposed Temporay Guest Worker Proposal, the DOL/ESA is planning to focus on increased activities to sanction the violators of the labor certification attestations. Accordingly, electronic filing of H-2A and PERM will be more or less driven by the increased enforcement function by the ESA of DOL. For H-2B, since it is being transferred to the USCIS, the H-2B employers will be subject to the follow-up audits and enforcement actions by the ESA and BICE of DHS.
• All in all, FY 2005 will open a door with a good sign for the alien workers but an ominous sign for the U.S. employers hiring foreign workers.
• For the full text of the testimony, please click here.

04/01/2004: Hey, Step Aside "Concurrent Filing," 90-day I-140/I-485 "Concurrent Adjudication" is Looming Up!

• According to the AILA, the USCIS is launching two interesting pilot programs to complete adjudication of I-485 applications within 90 days of filing. This is not a April 1 joke.
• In family-based I-485 cases, Dallas Local District of USCIS will launch such program beginning from May 3, 2004. The I-485 applicant will be "interviewed at the time of filing" and adjudicated within 90days. FB-485, DV-485, Special Immigrants-485 will be covered, but Asylee/Refugee-485, EB-485, and LIFE Act-485 will not be covered. Wow, the families and DV lottery winners should move to Dallas! It is hoped that people in Dallas USCIS jurisdiction are not exploded with flock of married couples, the relatives of U.S. citizen, etc.
• In Employment-based I-140/I-485 cases, California Service Center is reportedly about to launch such 90-day concurrent I-140/I-485 adjudication program for EB-2 concurrent-filing cases. NIW-based EB-2 will not be covered by the pilot progam. Remember that the eligible cases are non-NIW EB-2 cases of concurrent filing of I-140/I-485 only. In EB-2, if you file NIW case, you are out. If you file I-140 for non-NIW EB-2 but not concurrently with I-485, you are out too. Only currently filed cases will be covered by this 90-day I-485 adjudication pilot program. Since the concurrent-filing rule requires that the I-140/I-485 be filed at the jurisdiction of I-140 petition, meaning the job site or place of employment, the people who obtained a labor certification approval for the job sites outside of the California Service Center jurisdiction should not attempt to flock into the California Service Center by selling their homes in other jurisdictions and moving into the CSC jurisdiction. It ain't going to work! Interesting question which has yet to be answered by the California Service Center is "undetermined location" labor certification cases. These cases are filed not at the location of job or place of employment but the location of the main business office of the employer. Accordingly, should employer's main office be located in the California Service Center jurisdiction, no matter where the roving job will be located, such EB-2 filers are allowed to file at the California Service Center regardless of their job sites and location of residence, and theoretically, they should be eligible for such pilot program privilege. It Ain't Interesting?
• What do they mean by "pilot program?" Common sense tells that it means a testing of certain program to test the water. Overall, pilot program will give a hope to all the I-485 filers, including family-based and employment-based, in that eventually, it will reduce the I-485 processing times tremendously throughout the country. Apparently, it is targetting at achieving reduction of processing times at one year across the board in the near future. Since it will include the time for I-140 and I-485 together, it ain't bad at all! Hold your breath!!!!!!!!

04/01/2004: Only 2004 Poverty Income Guideline Acceptable for I-864 From April 1, 2004

• If you file family-based I-485, you will have to file I-864 Affidavit of Support. For I-864, unless the petitioner and co-sponsor or joint-sponsor meet the "2004" poverty income guideline, your I-485 will be denied, except a few special exempt cases. The new guideline went into effect TODAY!

04/01/2004: Beginning of FY 2005 H-1B Cap Filing and Disappointing Silence on F and J Visa Holder's Legal Status Issue

• Starting today, the USCIS is taking in H-1B petitions for FY 2005. However, because of the silence on the legal status for F and J during the cap period in FY 2004, a large number of F or J aliens are confused as to the course of action he/she will have to take, facing running out of status before October 1, 2004. We urge the BICE to announce this stop-gap status extension policy as soon as possible. In the meantime, the involved F or J aliens should remember that even if the policy is announced, they should meet the condition that H-1B be filed while they are in status. Once they fall out of status, the extension will not be available and the alien will not be able to change status from F or J to H-1B on or after October 1, 2004, even if their employer filed H-1B petition and approved. It is thus imperative that such F or J aliens maintain "nonimmigrant status" by all means until they file H-1B petition.

03/30/2004: Reminder of Continuing Visa-Free Entry to U.S. for Certain VWP Country Travellers Even After 10/26/2004

• Yesterday, we posted the U.S. Department of State cable on this issue for VWP travellers after 10/26/2004. Today's posting will highlight the key point as follows:
• Visa Free travelers seeking to enter the United States under the Visa Waiver Program on or after October 26, 2004 should note the following:
  • If your passport is issued before October 26, 2004 and has a machine-readable feature, you can continue to enter the U.S. visa-free even after October 26, 2004 under the Visa Waiver Program even if your passport does not have a biometric identifier. This requirement is already in place for passport holders from Andorra, Belgium, Brunei, Liechtenstein and Slovenia.
  • If your passport is issued on or after October 26, 2004, your passport must include Machine-Readable and a biometric identifier to enter the U.S. visa free after October 26, 2004.
  • If your passport is issued on or after October 26, 2004 and does not have a biometric identifier, you will still be able to enter the U.S. but only with a visa.
• Visa Free travelers seeking to enter the United States under the Visa Waiver Program before October 26, 2004 may continue to enter the U.S. visa-free without the machine-readable and biometric identifier in his/her passport at least until October 25, 2004.
• The foregoing rule may change and you may continue to enter the United States visa-free even after October 26, 2004 and until October 26, 2006 even without a biometric identifier in your passport if the Congress agrees with the Secretary of State and the Secretary of Homeland Security to postpone the biometric passport requirement program until October 26, 2006. As we reported earlier, these Secretaries wrote a letter to the Congress to delay the program. You should stay tuned to this web site for the development of this news.

03/29/2004: Meaning of 10/26/2004 Deadline for 27 VWP Country Travellers

• There has been a wide spread misunderstanding on the rules for travellers from the Visa Waiver Program countries after October 26, 2004 because of the confusion on Machine-Readable Passport (MRP) requirement and Biometric Identifier requirement. According to the DOS cable, unlike the MRP requirement, which applies to all VWP arrivals beginning on October 26, 2004, the biometric requirement applies only to VWP travelers whose passports were issued that day or later. A passport issued on or before October 25, 2004 will be valid for VWP entry to the U.S. after October 26 as long as it is machine-readable. If it is not machine-readable, the VWP national must obtain a visa. A passport issued on or after October 26, 2004 must not only be machine-readable but also contain a biometric; otherwise, the traveler is not eligible to use VWP and must obtain a visa. Some confusion may exist over the biometric requirement because it is implemented in two separate steps. First, the VWP country must certify that it has a biometric program in order to continue its participation in VWP after October 26, 2004. Second, individual travelers must present an MRP with biometrics, if the passport was issued on or after October 26, 2004. The fact that the country has a biometric passport program does not guarantee VWP entry after October 26, even if the individual's passport is machine-readable. If issued on or after October 26, 2004, the individual's passport must be both machine-readable and contain a biometric identifier.
• What is the difference between MRP and Biometric? Machine-readability and biometrics are not the same thing. A machine-readable passport is one that can be "read" mechanically when swiped through a passport reader. It contains two lines of text on the bottom of the data page which, when read, populate the bio-data fields for the data entry clerk in the Consular Section or the Immigration Inspector at the port of entry (POE). A "biometric" or a "biometric identifier" is an objective measurement of a physical characteristic of an individual which, when captured in a database, can be used to verify identity or check against other entries in the database. The best known biometric is the fingerprint, but others include facial recognition and iris scans. A biometric passport will take a biometric (in the case of VWP, the standard determined by the International Civil Aviation Organization (ICAO), is facial recognition technology) and store it on a contactless chip embedded in the passport. The POE inspector can scan the passport to obtain the passenger's biodata. The passport can thus be read in three ways: with the MRP reader, with the biometric scanner, and the old fashioned way with human eyes.
• For the full text of the cable, please click here.
  
  

03/29/2004: Requirements and Procedure for Application for H-1B1 Visa by Singapore and Chile Professionals

• The U.S. Department of State issued a guidance to the visa posts for processing of H-1B1 visa applications for the professionals from Singapore and Chile. The H-1B1 has become available since January 1, 2004 under the Free Trade Agreements with these two countries.
• Difference from H-1B: The H-1B1 visa or status can be extended "indefinitely,." even though it is issued for a term of one-year validity. Just like TN under the NAFTA for Mexicans, no petition is required to apply for H-1B1 visa at the visa posts. Again, just like TN under the NAFTA for Mexicans, no license is required even if the occupation is a licensed occupation. For certain occupations like Management Consultant and Physical Therapist (Chile only), no college degree is required and alternative credential is acceptable.
• H-1B1, however, unlike H-1B, does not enjoy "dual intent" and must retain "temporary intent" to maintain the H-1B1 nonimmigrant status. As a consequence, every time they apply for H-1B1 visa or status, they must prove that they do not have an immigrant intent.
• Caveat: Current H-1B petition form, I-129 Supplement H requires to check the box of H-1B1 in most H-1B cases. This form has not been revised to add this new nonimmigrant category. Therefore, the H-1B filers of all the countries should keep check this box.
• For the details, please refer to the DOS Cable on H-1B1 Guidance.

03/26/2004: Electronic Filing of TPS Under Review by OMB

• USCIS today released a federal register seeking comment on the proposal to go for electronic filing of Temporary Protection Status applications on line. The proposal was initially announced on January 13, 2004, but the OMB failed to receive any comments. They are extending the comment period until April 26, 2004.
• The details have yet to be explored, but sometimes centralization or regionalization does not necessarily give a benefit to the applicants. The classic examples are nationalization of family-based I-130/I-485 green card applications from the local district offices to the National Benefits Center. This so-called indirect filing requires the people to file I-130/I-485 at the local offices, but the local offices do not process the cases and immediately forward to the National Benefits Center. Accordingly the processing of the famly-based I-130/I-485 has been centralized in most states. The new procedure brought about a number of aches and pains to the filers for two problems: No eye-to-eye or mail or telephone inquiries are available at the local offices. Secondly and most hurtingly, people cannot get EAD and Advance Parole at the local offices pending processing of the cases at the National Benefits Center. There are a substantial delay in processing of these EADs and Advance Paroles and the alien beneficiaries of U.S. citizen family petitions have been tremendously suffering from unavailable EAD and resultant unavailable Social Security Number and Driver License for a substantial period of time. It is hoped that the same thing would not happen to other cases being centralized.

03/25/2004: USCIS Memorandum on Procedure & Eligibility of CSPA Section 6, So-Called "Opt-Out" Privilege

• The Child Status Protection Act (CSPA) allows FB-2B sons/daughters of a lawful permanent parent to apply for immigrant visa or permanent resident status on FB-2B preference category even after the parent becomes naturalized into a U.S. citizen. This is called "opt-out" privilege because the preference category of such sons or daughters should be automatically convered to FB-1 category, subjecting them to the visa number availability for FB-1 in the Visa Bulletin, unless they take advantage of Section 6 of CSPA.
• USCIS notes that currently the Philippines is the only country where FB-2B is more favorable in the Visa Bulletin than FB-1 and the eligible sons or daughters of such parent who became a U.S. citizen are better off in the case of the Filipinos to opt-out of such automatic conversion of preference classification and remain in FB-2B to apply for an immigrant status because of the favorable visa number availability for FB-2B beneficiaries over FB-1.
• It is, however, very important for the Filipinos to understand that according to the USCIS memorandum of March 23, 2004, this opt-out privilege is available only to those whose lawful permanent resident parent filed FB-2B (unmarried son or daughter of over 21 years of age) and not, repeat not, to those whose permanent resident parent filed FB-2A (unmarried child under 21 years of age). It sounds somewhat unfair, but that's how the USCIS interprets the CSPA Section 6. Accordingly, those sons and daughters of a lawful permanent resident who are eligible for CSPA benefits, but the parent filed FB-2A petition when they were younger than 21 years of age, will be forced to wait for the visa number availability date under FB-1 even if it is less favorable in the Visa Bulletin than FB-2!! For the full text of this important memorandum for the Filippinos, please click here.

03/25/2004: USCIS Warns Requirement of Advance Parole Approval "Before" Departure

• Today, the USCIS issued a reminder that the people who are eligible to return to the U.S. with the Advance Parole should depart from the U.S. after the Advance Parole is approved. Otherwise they may not be able to reenter the U.S. It also warns those who are subject to the 3-year or 10-year bar should not depart from the U.S. with or without the Advance Parole as they will be barred from reentering the U.S. even if they carry an Advance Parole. Read on.

03/25/2004: U.S. Preflight Inspection Posts in Foreign Countries

• We reported earlier that DHS had been contacting certain foreign countries to open the U.S. entry immigration inspection posts in foreign countries before they arrived at the U.S. territory. The travellers on the flights departing from these posts for the destination to the U.S. airports are inspected at the posts in these foreign countries rather than the airports in the U.S. This so-called preflight inspection posts are currently limited to a few countries. Here are the list and contact information of the existing preflight inspection posts. There are currently 14 preflight inspection posts. The preflight inspection posts in Canada are particularly important for the Canadian TN-1 nonimmigrant travellers. Please click here.
• Within the U.S. territory, there are 317 Posts of Entry (POE) throughout the country. For the list and contact information for each of these POE, please click here.

03/25/2004: Government Seeks Delay of Biometric Passport Requirement for VWP Nationals Till 10/26/2006

• As we reported earlier, the 27 visa waiver program country nationals are required under the current law either to carry a biometric passport or visa from October 26, 2004. However, none of these mostly European countries is ready to issue such passports and the U.S. will face two crisis: First, about seven (7) million people from these countries are expected to flood the floors of the U.S. visa posts over the world and the number is estimated to grow to 13 million. This will cause tremendous backlogs in visa issuance. Secondly, such visa delays will hurt so bad the already-seriously-ailing U.S. travel industry such that the country cannot afford such a disaster. In desperation, now the Secretary of the Department of State, Colin Powell, and the Secretary of Homeland Security, Tom Ridge, wrote a letter to Congess to delay the program until October 26, 2006. Read on.

03/25/2004: New Delhi Processes NIV Applications for Urgent Visa Seekers in Mumbai and Chennai

• Beginning Monday, March 22, the U.S. consular sections in New Delhi and Kolkata started accepting nonimmigrant visa applications from the Chennai and Mumbai consular districts to assist those with an urgent need to travel to the United States. Applications are only accepted from applicants who will apply in person, speak English fluently, have not previously been refused a visa for any reason, and can demonstrate an urgent need to travel before an appointment is available at the US Consulate General serving their place of residence. A combination of heavy demand for non-immigrant visas, new processing requirements and unanticipated staffing shortages have led to a backlog in appointments for visa interviews at some U.S. consular sections in India. While the average wait for an appointment at New Delhi and Kolkata is currently only a few days, there is a two week wait for appointments at the consular section in Mumbai and an almost five week wait at the consular section in Chennai. Appointments in New Delhi or Kolkata can be made and information on application procedures can be found at www.ttsvisas.com. These procedures will stay in effect until further notice.

03/24/2004: Overdue Release of Rule-Making for Stop-Gap Measure for F/J Aliens' Legal Status During H-1B Cap Period

• There are a large of F-1/F-2 and J-1/J-2 nonimmigrants who are anxiously awaiting release of this policy in the Federal Register by the DHS Bureau of Immigration and Customs Enforcement (BICE). Since the main body of the relevant regulation requires that H-1B petition should be filed before the expiration of status and the USCIS is scheduled to take in FY 2005 H-1B cap cases beginning from April 1, 2004, those F and J nonimmigrants whose status including the grace period will expire within next two or three weeks live in a nightmare. The BICE had this stop-gap policy in this fiscal year's agenda, and unless it changed its policy, the announcement of this stop-gap policy for F or J nonimmigrants is a matter of time. It is hoped that the BICE announces this policy before the end of March. Please stay tuned.

03/24/2004: DOL PERM and Backlog Reduction Centers Locations

• DOL has disclosed to the AILA the locations of the PERM reengineered labor certification processing centers and Backlog Reduction Centers as follows:
  • PERM Processing Centers: Atlanta and Chicago
  • Backlog Reduction Processing Centers: Philadelphia and Dallas
• DOL has reported that there are over 300,000 permanent labor certification applications pending at this time. The two Backlog Reduction Centers should help to reduce the backlog cases once the centers open. The Backlog Reduction Centers are expected to be manned by private contractors and according to the unconfirmed sources of information, such contract may not be offered until May 2004. Our earlier report that some state offices started transferring backlog cases to contractors turned out to be outsourcing of backlog cases to overseas contractors by the Texas state labor certification office. It is unclear how far the overseas outsourcing of permanent labor certification applications will go in terms of the involved large states. Please stay tuned.

03/23/2004: USCIS Director Elaborates USCIS Temporary Guest Worker Proposal

• Today, USCIS Director testified before the Senate Foreign Relatiolns Committee giving some more details on the USCIS proposal on the President's Temporary Guest Worker Proposal. The President's proposal included the cut-off date of January 7, 2004 and raising annual employment-based immigrant quota numbers to accomodate the Temporary Guest Worker Program. The USCIS proposes to keep a certain cut-off date to discourage any new illegal immigrants from entering the U.S. to take advantage of this program. For the full text of the testimony, please click here.

03/21/2004: InfoPass Scheduler: USCIS Local Offices Online Appointment System

• USCIS has started taking online appointment system for the local district offices in Los Angeles and Miami, including Los Angeles, Santa Ana, San Bernadino, Miami, Jacksonville, Tampa, Orlando, and West Palm Beach. USCIS hopes that this system would help the immigration consumers who get questions answered at the local district offices without waiting in a long line hours in the heat or cold. USCIS is expected to expand the services throughout the country. For the information and appointment, please click one of the following links:
  • Online Appointment
  • Fact Sheet
  • News Release

03/18/2004: Elimination of Crew List Visas Effective 06/16/2004

• On December 13, 2002, the Department of State published a rule (67 FR 76711) proposing to eliminate crew list visas. The Department is now making final on an interim basis that proposed rule. The Department is eliminating the crew list visa for security reasons. Since the September 11, 2001 attacks, the Department made a review of its regulations to ensure that every effort is being made to screen out undesirable aliens. By eliminating the crew list visa, the Department will ensure that each crewmember entering the United States will be required to complete the nonimmigrant visa application forms, submit a valid passport and undergo an interview and background checks.
• Currently, the law exempts aliens serving in good faith as crewmen on board a vessel (other than a fishing vessel having its home port or an operating base in the United States, unless temporarily landing in Guam), or aircraft from being deemed immigrants. The law permits an alien to enter the United States on the basis of a crew manifest that has been visaed by a consular officer. For the full text of the interim final rule, please click here.
  

03/18/2004: Illinois State Labor Certification Office Address Change

• The Illinois Department of Employment Security, Alien Labor Certification Unit, moved to a new location as of March 1, 2004. The new address is: Illinois Department of Employment Security, Alien Labor Certification Unit, 3 South State Street, 8th Floor, Chicago, IL 60603. Please make a note of it.

03/18/2004: Texas Service Center Premium Processing Inquiry Fax Number Change

• Nowadays, the premium processing status reports are easily accessible via telephone and online. But sometimes, some issues have to be addressed to the Texas Service Center via fax. The Premium Processing Unit now has a new fax inquiry number: (214) 962-1415. Please make a note of it.

03/16/2004: MDEED Resumed Permanent Labor Certification Applications

• People must have noticed that in the DOL monthly report, the processing times at the Minnesota SWA remained at November 3, 2003 for a while. We reported earlier that the State office had only one Analyst who was mandated to process temporary labor certification applications, particularly landscape workers within a fixed time and was unable to process the permanent cases approximately three months. Now H-2B annual cap has reached and apparently the State office was able to take care of all those temporary cases as reported in the latest DOL monthly report. The State office has thus resumed processing of the permanent labor certification cases. It is unclear how fast the processing time is going to move from here on, but people should feel a relief from the choke in the throat! AHhhhhhhhhh.....................................

03/16/2004: USCIS H-2B Cap Announcement in Federal Register (Oops!)

• As reported earlier, FY 2004 annual cap (66,000) of H-2B numbers reached on March 9, 2004. Any cases which are subject to the cap and was received after March 9 are being returned to the filers. Amendments to previously approved petitions and petitions for extension of stay are not affected by this procedure. Likewise, petitions for aliens who already hold H-2B status, i.e. petitions filed on behalf of an H-2B alien by a new or additional employer are also not affected by this procedure. This procedure also does not relate to petitions filed before October 1, 2004, for employment to commence on or after October 1, 2004. Read on.
  

03/13/2004: F-2 Enrolled in Program Disallowed Pending Application for Change of Status to F-1

• Report indicates that if the F-2 spouse submit I-539 to change the status to F-1 and the Service Center learns that he/she enrolled in the school, the Service Centers deny such I-539. The policy is reportedly in the state of review, but the DHS' current policy appears to be that F-2 should not, repeat should not, enroll in program until I-539 is approved!

03/13/2004: Visa Delays Over 5 Months and Question on SEVIS ID Discrepancy for Returning F-1 Students With a New F-1 Visa

• Nowadays, travelling foreign students (F-1) experiences a substantial delay in obtaining a visa renewal at the visa posts as affected by the security clearance delays. The question remains what happens if the visa is not issued and a student is unable to return to the U.S. for his/her continuing study because of the visa delay over five (5) months. Under the immigration regulation, a student status is terminated for a continuing student if the student remains outside of the U.S. for over five (5) months. Accordingly, in order for the student to return to the U.S., the school should issue a new SEVIS ID for the purpose of entry (immigration inspection) into the U.S. The problem is that the student will then have two SEVIS IDs, one used for the F-1 visa renewal and the other for the new I-20 issued by the school. According to the NAFSA, the continuing students should not experience any problem at the port of entry because of the inconsistent SEVIS number on the renewed F-1 visa in the passport and the number in the newly issued SEVIS I-20.
• The report also indicates that an initial student will face a difference experience at the port of entry if he/she is a new student. In the same scenario, the student will go through a secondary inspection because of the conflicting SEVIS ID numbers. The DHS is currently working on the problem.
• As the travelling season approaches, the students should keep in mind this rule if he/she needs to renew the F-1/F-2 visa on the trip.

03/13/2004: Nonimmigrant Visa Appointments By Visa Information Call Center in China

• Effective March 3, 2004, the visa posts in China launched a centralized visa information and nonimmigrant visa appointment system through a new Visa Information Call Center. Accordingly, no individial visa post in China will take a nonimmigrant visa appointment. People should call the VICC. For the details, please click here.

03/12/2004: DOL Gaithersburg Centralized Processing Center Processing Record

• As we reported last year, the DOL launched a pilot labor certification backlog reduction program at Gaithersburg, Maryland. Almost 3,000 cases were transferred to that center from the state offices and certifying officers offices mainly in the East Coast backlog states. According to the DOL authorities who attended the AILA conference this month, the Center received 3,083 cases, out of which it completed on 2,278 cases when it closed at the end of 2003. According to the officers, out of the approximately 800 left-out case, about 84 or 100 cases have been decided and people will receive receive the decision soon. Other 238 are waiting for the results of recuitment since these cases involved the retest of the market. Other cases are currently handled by the DOL National Office.
• This Centralized Processing Center will apparently be used a model when the projected two backlog reductions go into operation. The cases in these centers are expected to be handled by contractors. Please stay tuned to this web site for the development of this news.

03/11/2004: Stalking Constitutes Aggravated Felony Matter of Malta, Int.Dec. #3498 (BIA, 03/11/2004)

• Today, the Board of Immigration Appeals, U.S. Department of Justice handed down a rule that the offense of stalking under the California Criminal Code constitutes a crime of violence under the immigration law and thus an aggravated felony. An alien convicted of stalking under the California law will thus be ineligible for the relief of cancellation of removal (deportation). The cite for this case will be 23 I & N Dec. 656 (BIA 2004)

03/10/2004: H-2B Annual Cap Reached on 03/09/2004

• USCIS announced today that the annual cap of H-2B, 66,000 had reached yesterday. Accordingly, any H-2B petitions which they received from today on would be returned to the petitioners. For the announcement, please click here.
• It is hoped that the reach of H-2B cap relieve state labor offices (SWA) from the statute mandated priority work loads and start working on reduction of the permanent labor certification application backlogs.

03/10/2004: Mexican Professional TN Nonimmigrant Visa Rule

• USCIS has already published the summary and this web site has also reported this change effective January 1, 2004. However, today, USCIS published the official regulation giving further details. Read on.

03/08/2004: USCIS Sent for OMB Review Proposed Rule to Add Actuary & Pathologists to TN Eligible Occupations Under NAFTA

• On March 4, 2004, the USCIS sent the proposed rule for OMB review to add the occupations of actuary and plant pathologists to appendix 1603.D.1. This rule proposes to modify the licensure requirements for Canadian citizens seeking admission to the United States as a TN nonimmigrant category alien. These amendments are being proposed to reflect the agreements made among the three parties to the North American Free Trade Agreement. Again, this proposal has been under consideration for several years. Good news for the Canadian Actuaries and Pathologists.
  

03/08/2004: USCIS Sent Proposed 2-Year EAD Validity Rule for I-485 Waiter for OMB Review

• On March 4, 2004, the USCIS sent the proposed rule to remove mandatory validity period for I-485 waiters for OMB review. The proposal states that this revised rule will enable it to issue Employment Authorization Documents (EADs) for those applying for work authorization under 8 CFR 274a.12(c)(9) (I-485 filer category) for a validity period of up to two years. This category is reserved for those applying for adjustment of status, having filed Form I-485, Application to Register Permanent Residence or Adjust Status, with the Department. The rule change would give DHS the flexibility to issue EADs for the length of time it anticipates that adjudication of a given case will take. As we reported earlier, the USCIS was pushing this policy for some time. Initially, it planned to publish in December 2003 with the comment period ending in April 2004. It is now a matter of time that the USCIS will issue to I-485 waiters not one-year validity EAD but longer than one-year validity EAD. Somewhat a good news for the immigrant community.
  

03/08/2004: Proposed Special Procedures For Asylum Claims Made in Transit and at Canadian Land Border Ports-of-Entry

• USCIS and EOIR released a proposed rule respectively on Implementation of the Agreement Between the Government of the United States of America and the Government of Canada Regarding Asylum Claims Made in Transit and at Land Border Ports-of-Entry. The terms of a recently signed agreement between the United States and Canada bar certain categories of aliens arriving from Canada at land border ports-of-entry and in transit from Canada from applying for protection in the United States. The USCIS proposed rule would establish USCIS asylum officers' authority to make threshold determinations concerning applicability of the Agreement in the expedited removal context. Under the USCIS proposed rule, the asylum officers are required to make a two-prong test, first to determine whether or not the asylum claimant is exempted from expedited removal to Canada under the international agreement between the two countries, and second, to determine whether or not the asylum claimant is eligible for the asylum in the event that the officer determined that the claimant is exempted from from the expedited removal under the Agreement.
• For the full text of the proposed rule, please click the following:
  • USCIS Rule (Asylum Officer).
  • EOIR Rule (Immigration Courts).
    
    
    

03/08/2004: State Department Revokes US Passport Restrictions to Travel to Libya

03/07/2004: Fruit of Mexican President's Visit to Bush Ranch

• Mexican President Vincent Fox visited Bish during the weekend and discussed immigration issues. For the agreement, President Fox disclosed in the press conference that those Mexicans who would visit the U.S. for three days or less would not have to go through the fingerprinting and photographing at the port of entry. Report indicates that Fox was referring to the many Mexican citizens who hold a Border Crossing Card (BCC), which already holds biographical and biometric information. In fact, the suspension of some of Mexicans' fingerprinting/photographing was already reported to the Congress by Asa Hutchinson, under secretary of the Department of Homeland Security this weekend. He told the House Committee on Government Reform that Mexican cardholders traveling less than 25 miles from the border zone and staying no longer than 72 hours in the United States would not be required to enroll in the monitoring program, called US VISIT. Read on for the news.
• The impact of this agreement will be narrow for the two reasons: First, the benefits will be limited to those Mexicans who cross the Southern Border using BCC to commute in the border towns of the United States. Second, since the BCC has already featured in the biometric technologies, no additional fingerprinting/photographing should be necessary at the port of entry.
• To the disappointment of readers, apparently, the two Presidents have failed to agree on the specific schedule and agenda for the so-called "Temporary Guest Worker" legislation. It appears to be a concensus in the media/political circle that there is practically no or slim chance that the Congress will pass the President's proposal or other similar legislative bills before the national election in November 2004. Since the illegal aliens from other parts of world would also be benefited by these legislation, the illegal alien community has been eagerly waiting for the news on the legislations.
  

03/07/2004: Virtually None of 27 Visa Waiver Countries Ready for 10/26/2004 Deadline of Biometric Passport

• The DOS testified before the Congress on March 4, 2004 that none of the 27 Visa Waiver countries would meet the 10/26/2004 deadline to issue the biometric passport. Since the U.S. rules will not admit the nationals of these 27 countries unless they carry a biometric passport or alternatively a visa issued by the U.S. visa posts, this means that there may be some 5.5 to 8 million additional visa applications, nearly double last year's workload, according to the DOS estimate. The DOS official added that "in the short term... we would see a serious impact on business travel, on academic institutions, on travel and tourism to this country. We will do our very best to facilitate the travel of those who are in emergency situations, those who have time-sensitive travel, but there will be a serious impact on the Visa Waiver countries and on our abilities to provide services to them in the short term." Read on.
  

03/05/2004: BCBP Considers Expansion of Pre-Flight Immigration Inspections World-Wide

• Report indicates that DHS/BCBP is currently considering/working on expansion of the pre-flight inspection of international passengers in foreign countries. Currently, this preflight inspections are undertaken in Canada and some Caribean islands. In the pre-flight inspection system, the U.S. immigration inspection is conducted at the port of origin in the country of departure rather than at the port of entry in the United States. Obviously such system needs an agreement with each foreign country involved. The report suggests that the DHS has been negotiating with other countries on the preflight inspections.
• From the legal standpoint, expansion of the preflight inspection raises some concerns involving the rights of aliens to address the legal issues and seek a relief before an immigrant judge when the admission to the U.S. is denied. Since the inspection will take place in the territory of a foreign country, there will be no recourse to relief in immigration court or judicial relief once the admission to the U.S. is denied at the port of departure or origin in a foreign territory. It is thus expected that once the DHS expands the preflight inspection world-wide, the legal community may challenge such action based on the rights under the U.S. Constitution. The Consitutional issue may be more clearly addressed in the context of the rights of a permanent resident. Something to watch very closely.

03/05/2004: USCIS Released on 02/27/2004 Immigration Statistics as of 01/31/2004

03/05/2004: Processing Times of Administrative Appeals Office (AAO)

03/05/2004: Employment Authorization Cards Issued to Salvadorans TPS Registered

• USCIS Announcement.

03/04/2004: State Department Responded to Visa Delays for Scientists on Visa Mantis Clearance

• As we reported earlier, the higher learning institutions and reseach community have been seriously affected by the ongoing delays in procesing visas to international scientiests and researchers including foreign students as affected by its inefficient operation of the so-called Visa Mantis program, according to the report by the GAO. On February 25, 2004, the State Department responded to this attack in a Congressional testimony, which ,to a grave disappointment to the scientific community, failed to present any answers or solutions other than defending the current practice on "security priority" rhetorics. Read on.

03/04/2004: Defending American Jobs Act of 2004 To Be Introduced by 50 Congressmen

• Outsourcing has been in forefront of the recent American news media and politics in many different ways. In immigration areas, various legislative bills have been introduced to deal with the outsourcing including the bill to exclude consulting firms from the list of eligible employers. Now, a report indicates that 50 bi-partisan Congressmen are about to introduce the above-entitled legislative bill to block the major outsourcing U.S. businesses from receiving the federal financial aid. Outsourcing has so far been defended by the Bush Administration and Free-Trade backers and vigorously attacked by the AFL-CIO backed political forces including group of Democrats and the Free-Trade opponents. The outcome of the November 2004 national election will determine the direction of the wind on this issue, which will also affect the immigration policy directly or indirectly.

03/03/2004: Court Rules CSPA Applicable To Those Whose I-485 Appeal to Federal Court Pending on 08/06/2002

• On February 19, 2004, the U.S. Court of Appeals in the 9th Circuit handed down a rule in Padash v. INS, No. 02-70439 that even if the child age reached 21 on August 6, 2002 when the CSPA was enacted, the child would be considered a "child" inasmuch as the decision of the INS was appealed to the U.S. Court of Appeals and the court decision was pending as of August 6, 2002. Until this decision, the USCIS took a position that the cut-off date is the agency decision date and not the court decision date on appeal. Accordingly, this 9th Circuit decision expanded the eligible petition "aged-out" child group substantially and refuted the agency's narrow interpretation of the statute. Wonderful! For the full text of the court decision, please click the case link above.

03/03/2004: DOS Procedure of Returning Approved Immigrant or Nonimmigrant Visa Petition for Revocation

• This is one of the areas of practice of USCIS and DOS that have confused the immigrant petitioner and the alien beneficiaries in that when the consular officer decided to return to the USCIS with the recommendation of revocation of the approved petition based on the evidence which had sulfaced through the immigrant visa application process, the immigrant petitioner or visa applicant had not been well informed of the government agencies' action, not to mention where the case standed. Now, this DOS cable streamlines the procedure through the National Visa Center and sets forth the guidelines the visa posts and the NVC should follow. For the details, please click here.

03/03/2004: AILA's Washington Update of 03/03/2004

03/03/2004: U.S. Colleges/Universities Suffering From Declining Foreign Students Affected by Visa Delays

• Report indicates that the higher learning institutions and research institutions face worrisome declining of foreign students coming to the U.S. As reported by the GAO to the Congress lately, this was reportedly caused by the ever-tightening visa application process accross the visa posts. The problem does not end with the student visas. There are growing numbers of denial of spousal visa applications for the issues of potential failure of maintaining nonimmigrant visa status in the U.S. by the principal spouse. The list of documents which are required for the proof of this issue are "literally" horrendous. Read on.

03/01/2004: H-2B Annual Cap About to Reach

• AILA has reported that the H-2B temporary worker petition annual numbers are about to run out in March, 2004. The annual cap of H-2B petitions is 66,000. Consequently, until October 1, 2004, certain businesses that rely on either professionals (H-1B) or unskilled workers (H-2B) are expected to face a serious challenge to a level of serious crisis. Congress is so obsessed with the politics that they are deaf=eared and blinded when it comes to aches and pains of the people and their lives. The country is polarized not only horizontally but also vertically. Washington is aloof of the lives of the people.

03/01/2004: Significant Changes and Reengineering in H-2B Petition Procedures Ahead

• OMB is currently reviewing two important H-2B regulations, one by the USCIS and the other by the DOL. The details have yet to be released by the publication of OMB approved regulations, but it appears that the reengineered H-2B procedure phases out the DOL in the H-2B petition process. Accordingly, H-2B petition will be filed directly with the USCIS without the current temporary labor certification application with the DOL. Meanwhile, the DOL will audit some of the approved H-2B petition cases to enforce the attestations made by the employer on the terms and conditions of employment and recruitment prior to filing of the petition.
• USCIS is amending the H-2 regulation to reflect this procedural change and the DOL is amending its H-2 regulation to phase in the enforcement (audit) process. Thus, as the DHS moves more and more into electronic filing and the DOL pushes its proceedings toward electronic filing, including the PERM permanent labor certification application and H-2A applications, it is anticipated that the immigration world will face a new chapter of immigration practice that focuses on the "enforcement and compliance" proceedings rather than adjudication proceedings.

03/01/2004: Issue of Extension of D/S for F/J Aliens During the H-1B Cap

• As we know, USCIS released a guideline for processing of H-1B cap cases during the period of cap. As we reported, the announcement remained silent on the above-entitled subject, pushing thousands of F/J aliens in practical training into "nervous break" facing expiration of practical training plus grace period before October 1, 2004. This website has learned that the silence on this subject in the USCIS was related to the jurisdiction issues between the USCIS and the BICE. When the legacy INS was broken up into the three separate divisions (BCIS, BICE, and BCBP) within the DHS, some of the functions of the legacy INS which belonged to the same unit got split into the new divisions within the DHS. In the instance of present discussion, adjudication of H-1B petitions is under the jurisdiction of USCIS, but the extension of nonimmigrant status beyond the specified nonimmigrant status appears to be under the jurisdiction of BICE as a part of the enforcement issue. It is thus obvious that the policy decision and its announcement must come from not USCIS but BICE.
• Indeed, anticipating early arrival of the H-1B cap for FY 2004, the BICE planned to release this policy announcement in the form of a final rule in April 2004. This schedule can be either delayed to a later date or moved ahead to a earlier date, but it is wonderful to know that the BICE made such planning earlier period of FY 2004! The following excerps from the BICE ruling-making agenda supports our report herein:
  • EXTENDING THE PERIOD OF DURATION OF STATUS FOR CERTAIN F AND J NONIMMIGRANT ALIENS
  • This interim rule amends Department regulations to provide that the Commissioner may publish a notice to extend the duration of status, under specified conditions, of certain F-1 and J-1 nonimmigrant aliens who may be affected adversely because the numerical limit (cap) on H-1B nonimmigrant aliens has been reached prior to the end of a given fiscal year. This rule is a necessary stop-gap measure because of large number of F-1 and J-1 nonimmigrant aliens seeking a change of nonimmigrant status to that of H-1B after completion of their studies or their program. However, many of these aliens will be unable to change their nonimmigrant status for the remainder of a given fiscal year because of the cap on H-1B petitions. This rule will allow such aliens to avoid a lapse in their status because of a circumstance that is not under their control.
  • Timetable: Final Action - 04/00/04
    (Caveat: This timetable can be changed)
• Please stay tuned to this web site for the development of this news.

For Pre-March 1, 2004 News, Please Click Here.