THE OH LAW FIRM

Dedicated Professionals in Immigration Law for 24 Years

Reported by Matthew Oh, Esquire.

(08/01/03 - 02/29/04)

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

02/26/2004: Why April 1, 2004 for Filing of FY 2005 (10/01/2004-09/30/2005) H-1B Cap Cases?

• According to the current USCIS policy, it will accept the FY 2005 H-1B cap cases beginning from April 1, 2004. Apparently, this announcement is causing some confusion in the immigrant community. First why April 1, 2004 rather than any earlier or later starting date? Under the immigration regulation, the H-1B petition cannot be filer earlier than six (6) month from the H-1B effective date. Since the new H-1B cap cases cannot be effective earlier than October 1, 2004, the first date when such H-1B petition can be filed will be April 1, 2004. Second, whether once the H-1B petition is filed on or after April 1, 2004, the continuing presence of the filer after expiration of his/her current I-94 will be considered lawful pending adjudication of the H-1B petition? The answer is no. When the H-1B visa number is unavailable, the immigration authorities have been taking a position that the general rule that the timely filing of extension/change of status makes the applicant's presence in the U.S. pending adjudication of such petition/application is not applicable. Accordingly, once I-94 expires, he/she will fall out of status unless he/she files application for extension/change of status to a certain nonimmigrant visa status which does not have quota limitation. The same will apply to the F-1 students unless the USCIS announces a policy which gives an exception to the F-1 students who filed H-1B petition timely. Unlike other nonimmigrant visa classification, in F or J visa student cases, their status expires 2 month for F and 1 month for J after the completion of the program or practical training. Currently, all those F-1 students who work on OPT/EAD are anxiously awaiting the USCIS announcement to that effect. Third, once the USCIS announces such rule of exception to the F or J status holders, would such OPT/EAD holders be able to work even after expiration of EAD inasmuch as the H-1B petition is pending? No. It just will just extend authorized stay pending the adjudication of H-1B and not, repeat not, employment authorization.

02/26/2004: U.S-Singapore Free Trade Agreement and Nonimmigrant Employment Visa Availability/Procedures for Singapore National

• This free trade agreement provides special employment-based nonimmigrant visa opportunities for the nationals of Singapore. The U.S. Embassy in Singapore is offering fairly good information for these visas and the procedures on its website. Please visit its website.

02/26/2004: H-1B Cap and Singapore/Chile Numbers

• Under the Free Trade Agreements with Singapore and Chile, the H-1B annual cap is imposed for Singapore at 5,400 and the same for Chile is at 1,400. These 6,800 numbers are included in the country's H-1B cap of 65,000. Accordingly, when the USCIS annouced that H-1B annual cap had reached on February 17, 2004, it practically meant that they either approved or received 54,200 H-1B cap petitions from worldwide other than Singapore and Chile. USCIS has not released the information on the number of H-1B cap petitions which they have received, but if they have received less than 5,400 from Singapore nationals and 1,400 from Chile nationals, the H-1B cap petitions should still be available even after February 17, 2004 for the nationals of Singapore or Chile. The USCIS should release this information.

02/25/2004: USCIS Published Procedures of Handling H-1B Cap Cases During the Period of H-1B Cap

• USCIS released today a regulation to elaborate the procedure of handling H-1B cap cases for the remainder of the fiscal year. This regulations goes into effect today.
• Unfortunately, this regulation is silent on the issue of extension of F or J visa aliens' status during the cap period. Accordingly, unless they publish a separate rule, those in F visa or J visa should follow the procedure that applies to all the nonimmigrants in all the nonimmigrant classifications. Please click here for the regulation.

02/24/2004: OMB Started Reviewing DOL PERM Regulation and Proposed H-2B Post-Certification "Audit" Regulation

• OMB is currently reviewing two rules presented by the DOL relating to the alien labor certification application.
• PERM Regulation: Yesterday, February 23, 2004, OMB received the PERM regulation from the DOL for its review, which is the first step to launch the PERM permanent labor certification application. Once the OMB approves the PERM, it will be published in the Federal Register as late as 90 days from February 23. Reportedly, the regulation will provide that the effective date or launch date of the PERM will be 120 days from the publication. It appears, though, it may be too early to start recruitment campaign for the PERM filing as the details of the recruitment requirement have yet to be released through the publication of the rule in the Federal Register.
• H-2B Post-Certification Audit Regulation Proposed: DOL also presented to the OMB in January 2004 for its review a "proposed" rule on the audit of H-2B temporary labor certification application cases after the certification. The details have yet to be published, but as soon as the OMB approves the rule, it may be published in a form of "proposed" regulation in less than a month and a half. DOL summarizes the purpose of this regulation as follows: "Under the redesigned H--2B temporary nonagricultural program employers seeking to import H--2B workers, except for applications filed for employment on Guam or in logging, will file directly with the Department of Homeland Security (DHS). The employer will be required to conduct recruitment before filing its petition. The petition will include a number of attestations concerning labor market and related issues. DHS will administer the petition adjudication process. After adjudication, the Department of Labor (DOL) will audit selected approved petitions. In such audits, DOL will exclusively examine whether the employer has complied with those aspects of the approved petition related to the labor market and other related attestations. Employers will be expected to have documentation available supporting their attestations as specified in the regulation and will be required to provide this supporting documentation to DOL within 30 days from notice of audit. If, after completion of the audit, DOL determines that the employer has failed to comply with the terms of the attestations contained in the DHS petition or made material misrepresentations in its attestation, DOL will, after notice to the employer and opportunity for a hearing, recommend to DHS that the employer be debarred, for a period up to three years."
• It is anticipated that once the DOL launches the PERM, an electronic filing system of permanent labor certification application, it will also intensify the audit and enforcement process sooner or later. Please stay tuned to this web site for the development of these regulations.

02/24/2004: Detailed Requirements and Procedures for TN-2 Visa Issuance to Mexican Professionals Effective 01/01/2004

• The U.S. Department issued a cable to visa posts elaborating in details the requirements, procedures, and documentation for issuance of the TN-2 visas to the Mexican nationals. The Mexican professional should read this cable!!!
• We would like to bring up the two interesting points: First, the qualified Mexican nationals can apply for the TN-2 visa any visa posts in the world. It is not limited to the visa posts in Mexico. Second, unlike the H-1B visa, even if the occupation is licensed occupation, the license is not a requirement for the TN-2 visa and the consulates should issue the TN-2 visas to the Mexican professionals even if they do not have a license to practice their occupation in the United States. Hmmmm............
• For the full text, please click here. Very, very important.

02/24/2004: DOS Cable to Visa Posts Alerting Potential L-Visa Abuse by Job Shops Facing H-1B Cap

• On February 4, 2004, the U.S. Department of State sent out cable to the visa posts warning that as the H-1B cap had reached, there would be increased attempts by the "job Shops" to abuse L-visa, particularly L-1B abusing the concept of "specialized knowledge" loopholes. This cable will lead the visa posts to tighten up the L-1B visa adjudication. For the full text of the cable, please click here.

02/24/2004: DOS Cable to Visa Posts for F-1 Visa Issuance Requirement for Those in OPT

• On January 4, 2004, the U.S. Department of State send out cable to the visa posts to give guidance on issuance of visas to F-1 in OPT. According to the cable, the I-20s must be annotated by the designated school official to reflect approval of an optional practical training program that extends beyond the end of the regular period of study. This annotation can be found on page 3 of the student's I-20. In addition, the student must have proof of DHS receipt of application or approval for a practical training program, either in the form ofan approved Employment Authorization Card or an I-797 indicating that the student has applied for DHS approval for an OPT program. SEVIS records should be updated to reflect the addition of OPT. There should be a new, separate entry in the SEVIS data base indicating an OPT program. If this entry has not been made, an F-1 visa cannot be issued. Students whose SEVIS records have not been updated should contact their school. Consular officers should note that the SEVIS-DOS interface does not include OPT information. The I-20 is the only place where the consular officer can see the OPT information.
• Those in OPT should double check all these threshold requirements before they depart from the U.S. For the full text of the cable, please click here.

02/24/2004: State Department Encourages Greece Summer Olympic Participants To Apply for Visas Early

• The Olympic (August 13-29) and Paralympic (September 17-28) Games will take place this year in Athens, Greece. Posts may see an increase in the demand for visas in the months of July and August, as travelers transit the U.S. (going either to or from the Games) or add U.S. stops to their itinerary. For many posts, the student application season will also begin around that time. Posts are encouraged to contact local media, sports groups, Chambers of Commerce and other contacts as appropriate with the message to "Apply Early!" for potential applicants who already know they need visas, particularly sponsors and committee members. For the full text of this campaign, please click here.

02/24/2004: Eligibility Requirement for Summer Work/Travel (SWT) Exhange Program

• According to the State Department, the students who want to participate in this program must meet the following requirements:
  • 1. The SWT exchange program is only available to students actively pursuing a degree or full-time course of study at an accredited post-secondary institution.
  • 2. SWT applicants should be able to demonstrate that they are bona-fide students and are maintaining student status and are actively pursuing their degree per their local educational system in order to participate in the summer work/travel program. Participants must demonstrate that they will resume activities as a student after participation in the SWT program.
  • 3. A student need not be enrolled in the same institution both before and after participating in SWT in order to qualify. Students can participate if they are transferring from one school to another, if they have finished an academic program and are going on to another academic program, or if they are continuing on to graduate school. Documentation satisfactory to the consular officer that the applicant has been accepted for and will commence studies upon their return may be accepted to establish status as a continuing student.
  • 4. If a student, however, has completed all requirements for a degree, but has not formally graduated, and has not demonstrated that he/she will continue studies, then that student would not be eligible for participation in the SWT program because he/she would no longer be actively pursuing a degree.
  • 5. Students attending vocational schools are not eligible for SWT, unless they can demonstrate that study there will ultimately lead to a degree from an accredited post-secondary institution.
  • 6. There is no prohibition against students participating in SWT programs for more than one year. Read on the State Department cable.
    

02/23/2004: CGFNS Requests DHS to Postpone to 07/25/2005 the Visa-Screen Requirement for Allied Healthcare Worker Nonimmigrant Admission

• Under the allied healthcare worker nonimmigrant visa admission rule change, these professionals are expected to obtain visa screen certificate to be admitted to the U.S. as a nonimmigrant on or after July 25, 2004. Currently, a visa screen is required for admission to the U.S. as an immigrant, but the same is not required for nonimmigrant admission. On February 18, 2004, CGFNS wrote a letter to the Secretary of DHS to delay for one year the starting date of the new rule. For the full text of the letter, please click here.

02/23/2004: USCIS Standards for "Timely" Application for OPT After Completion of Study for F-1 Graduates

• Reportedly, ever since the SEVIS went into effect, there have been some incidents involving denial of OPT EAD by the Service Centers on the ground that it was not timely filed. Under the F-1 SEVIS regulation, for a graduating F-1 student to acquire the OPT EAD, the OPT must be requested prior to the completition of study. Until recently, it was not clear whether the approval of the OPT by the school's DSO would satisfy the requirement. However, report indicates that it is the view of the USCIS that the DSO's approval is not enough to meet this requirement and the OPT EAD applications should be physically received by the Service Center on or before the program end date. It is thus imperative that the graduating F-1 students should ensure that their I-765 be timely filed before the program end date.

02/22/2004: Affidavit of Support, Poverty Income Guidelines, & Effective Dates

• On February 13, 2004, the U.S.HHS released the 2004 Poverty Income Guidelines effective February 13, 2004. However, for the purpose of the USCIS family-based immigration proceedings and the U.S. Department of State visa post's family-based immigrant visa application proceeding, this new 2004 Poverty Income Guidelines is not effective until April 1, 2004. Therefore, until April 1, 2004, people should keep using 2003 Poverty Income Guidelines.
  • 2003 Poverty Income Guidelines of USCIS
  • 2003 Poverty Income Guidelines of Visa Posts
  • 2004 Poverty Income Guidelines Effective 04/01/2004 (multiply 125% to the table)
• These income guidelines apply only to I-864 Affidavit of Support. I-864 is required when people apply for "family-based" immigrant visa or "family-based" I-485 proceedings. For the employment-based I-485 (except relative owned employers), people should use I-134 Affidavit of Support which does not have to meet the income under the Poverty Income Guidelines. I-134 is filed by the direct beneficiary of I-140 immigrant petition in support of his/her spouse's and children's I-485 applications. The same is true when the spouse or children apply for the immigrant visa applications based on Employment-Based petitions at the visa posts outside of the U.S. However, some consular officers are confused and mistakenly demand to file I-864.

02/21/2004: H-1B Cap and Issues Involving Nonimmigrants Other Than F or J

• The announcement of USCIS states that the employers will be allowed to file a H-1B petition on behalf of a professional who seeks change of status from non-H-1B status to H-1B status beginning from April 1, 2004. Normally, when it comes to the rule of change of nonimmigrant status, the law automatically makes the alien's presence in the U.S. lawful pending the decision of such application if the application was filed "timely." However, when certain nonimmigrant visa has annual cap and visa numbers become unavailable after the exhaustion of the annual cap, the legacy INS adopted a rule that the applicant's presence in the U.S. would turn into an unlawful presence in the U.S. once his/her non-immigrant status would expire before October 1 when the new H-1B numbers would become available. Accordingly, such nonimmigrants whose I-94 would expire or whose status would become vulnerable due to loss of employment or something, they had to use certain strategies to stretch out their nonimmigrant status utilizing the rule of change of nonimmigrant status which we just described above. To wit, they usually filed extension of their current nonimmigrant status or change of their current nonimmigrant status to a nonimmigrant status (other than H-1B) during the period as a stop gap measure since the rule of extension or change of nonimmigrant status states that once such application is filed "timely" before the expiration of their I-94 and other grounds for loss of their nonimmigrant status, their presence in the U.S. would remain lawful pending the adjudication of their change of status or extension of status.
• These professionals should be conscious of the two rules when they consider such stop-gap filing of extension/change of nonimmigrant status before October 1, 2004. (1) The first rule is called "Last Action Theory." Assuming that a professional files an application for change of nonimmigrant status to H-1B right after April 1, 2004 which the USCIS has publicized, and at the same time files another application for extension/change of nonimmigrant status to another nonimmigrant status other than H-1B as a stop-gap measure, depending on which application is "last approved" in the time sequence, his/her status will be stucked to that status. For instance, one files two applications for change of nonimmigrant status, one for B-2 (visitor) and the other for H-1B after April 1, 2004, and obtained the H-1B petition approval effective October 1, 2004. At the same time, the USCIS approved the B-2 application effectively September 30, 2004 (let's make the hyphothesis more dramatic for purpose of this discussion), then he/she will learn that his/her status on October 1, 2004 will be B-2 visitor and "not" H-1B. It does not mean that the approved H-1B petition for the employer will be invalidated. It just means that the alien's application for change of nonimmigrant status to H-1B will be no longer valid. Accordingly, in such situation either he has to file another H-1B petition through the same employer to seek change of status to H-1B without leaving the U.S. or just leave the country with the approved H-1B petition and obtain the H-1B visa stamp at a visa post and return to the U.S. in a H-1B status. Therefore, when one intends to file the H-1B petition as well as a step-gap application for another nonimmigrant status, it is critically important that he/she should structure the filing times for these two petition/application such that the stop-gap measure application is not adjudicated after the approval of H-1B petition no matter whether it is before or after October 1, 2004. If the H-1B petition is approved but the stop-gap measure application is still pending in the first week of October 1, 2004, he/she should "very quickly" withdraw the application in order not to become a victim of this last action theory. This strategy requires close examination of H-1B petition processing times and stop-gap I-539 application processing times for the specific Service Center. In fact, these people will experience an irony and thrill (to the level of orgasm. I beg your pardon?) when they go through the process. The irony is that they should pray that their H-1B petition processing be delayed rather than accelerated, at least until the step-gap measure application is approved first! The thrill will come from unpredictability of the adjudication time for each filing. We all have gone through some kinds of surprises in our lives that even though the official processing times report said one thing, let's say three months, sometimes we got approval in less than one month in a specific case!!! It ain't a thrill?
• (2) The second rule one has to be conscious of is the rule of three-year bar from returning to the U.S. once one leaves the country after accumulating unlawful presence for 180 days or more. Those whose I-94 will expire within next two months should seek legal counsel as soon as possible to discuss an appropriate action to abate potential devastating consequences.

02/20/2004: H-1B Cap and F or J Visa Applicant for Change of Status to H-1B Before 10/01/2004

• The H-1B annual cap had been 65,000 before it was raised to first 115,000 and then to 195,000. The cap returned to 65,000 this fiscal year of 2004. The Congress increased the cap numbers because of the severe shortage of the H-1B numbers available to the U.S. employers. Accordingly, in 1998, 1999, and 2000, one of the biggest news in the immigration law was reaching H-1B cap and the INS struggling to deal with the policy issues during the period of gap between the time the annual cap reached and the time when a new H-1B annual number became available on October 1.
• Considering the fact that a large number of the new H-1B employment was taken by those aliens who were in F status or J status, the INS had to form a policy in 1999 as to how their H-1B petition would be handled during the period of the gap. Accordingly, the INS enacted a regulation in 1999 that the F or J aliens who filed for H-1B petitions would be considered maintaining "status" until such H-1B petition was adjudicated on the following conditions: (1) In each year, the Commissioner of Legacy INS (Director of USCIS) must exercise authority to adopt such practice for the specific fiscal year; (2) The H-1B petition must be filed while the alien was in D/S status, meaning that the H-1B petition should have been filed within 60-day grace period for F and 30-day grace period for J after the expiration of practical training. (3) The alien should not have violated the F or J visa status, including full-course of study for F-1 students. (4) The H-1B petition was filed before October 1 when the new annual H-1B number became available. Once these four conditions were met, such F or J aliens, including their spouses and children, were allowed to stay in the U.S. "in status" until after October 1 and until the H-1B petition was adjudicated. In other words, their D/S status was extended until the H-1B petition was adjudicated pending adjudication of the H-1B petition during the period of H-1B cap. Caveat: During the period they did not have employment authorization and should not have worked.
• Since the FY 2004 H-1B annual cap has reached, the Director of USCIS should release his policy decision on the extension of F or J nonimmigrants' status during the period of the gap inasmuch as the conditions described above are met. Once this authority is exercised, it will be extremely important for the F or J nonimmigrant whose practical training plus grace period will expire before the end of September 2004 to file a H-1B petition "before the status expires and before October 1, 2004" in order to maintain the status. Please stay tuned to this web site for the development of this news.

02/20/2004: Consulate Processing of H Visas During the Period of H-1B Cap

• The cap is determined by the H-1B approval by the USCIS and not by issuance of the H-1B visas. Accordingly, it is the U.S. Department of State policy that inasmuch as an alien has an approved H-1B I-797 Notice, they will keep issuing the H-1B visa in their passports during the period of the H-1B cap.

02/20/2004: Spouse/Children of H-1B Alien and H-1B Cap

• H-4 is subject to the 6-year limit but not subject to the annual cap. Accordingly, the spouses and children of the H-1B professionals will continuously be able to apply for a new H-4 status or extend their H-4 status. For instance, the spouses or children of H-1B who have yet to obtain H-4 status will be able to apply for H-4 visas at the consulates if they live outside of the U.S. or through the USCIS if they live in the U.S. If a nonimmigrant who is in other nonimmigrant status marries a H-1B alien, he/she will be able to apply for H-4 status or H-4 visa.

02/20/2004: H-1B Cap and Filing Tips for Non-Cap H-1B Petitions

• Since the H-1B annual cap reached, any cases that look like a cap case will now be rejected by the Service Center. How to avoid such painful experience? Two tips, among others: First, on the envelope and on the I-129 Form, write "Not Subject to Cap" using a color magic marker. Second, please refer back to our earlier report in 1999 which is copied below:
  • Updated 05/03/00: Reminder of Non-Cap H-1B Petition Form Preparation
    • INS HQ confirmed on 04/27/00 that if the H-1B petitioner checks 2(a) ("New Employment") in item 2 and 4(a) (Consular Notification) in item 4, of Part 2 on the form I-129, such petition is considered a cap case and will face rejection. The situation involves H-1B professional who is changing employer while s/he travels in his/her home country. In some situation, such rejection can result in fatal consequences. INS HQ advises that the H-1B petitioner keeps the following instruction:
      Mark 2(c) ("change in previously approved employment" and not "new employment") in item 2 and check 4(a) (Consular Notification) in item 4, of Part 2.
      This is important because the AILA has reported to the INS HQ on teleconference that there were incidents where the filings were returned treating as cap-cases for improper completion of I-129 form.

02/19/2004: H-1B Statistics (10/01/1999 - 09/30/2003)

• This USCIS H-1B processing statistics show a number of interesting points. However, one point which is not made clear in this report is the denial rate for initial employment cases and continuing employment cases. Careful reading will reflect that the approval rate for continuing employment case was less than 90%, while the approval rate for initial employment case was approximately 94%. These statistics refute the common misunderstanding in the immigrant community that extension/amendment of the H-1B is easier and requires less documentation than initial employment filing.

02/19/2004: Nebraska Service Center Filing Tips

• Nebraska Service Center has released filing tips for all types of cases. These filing tips will help people to a great extent who file petitions/applications without an attorney or to help proper collection of information/documentation to assist with their legal counsels.

02/18/2004: DOL Processing Times Report (February 2004)

02/17/2004: H-1B Cap Reached

• According to the AILA, USCIS announced that the annual H-1B cap reached as of 02/17/2004 and any cases which they would receive from February 18, 2004 would be returned to the senders with the filing fees. For the new H-1B filers, H-1B visa numbers will not be available until October 1, 2004. For the details, please see the AILA announcement.

02/15/2004: Retraction Notice

• The previous posting on the proposed FY 2005 Foreign Labor Certification Budget had errors involving confusion on the proposed FY 2005 budget. We are retracting the previous version of posting. People should ignore our previous posting. We have corrected the errors. We apologize the readers for the confusion and inconvenience.

02/15/2004: FY 2005 Foreign Labor Certification Budget (errors corrected)

• Proposed DOL FY 2005 budget indicates that in FY 2005, $46 million is requested for grants to States for foreign labor certification activity, an increase of $5.5 million, to address the backlog in the program. The budget proposed legislation to finance $5.5 million of this amount through a new fee for applications under the permanent labor certification program. In FY 2005, the DOL plans that the program will reduce the average processing time for new applications filed by employers for the permanent program under the new Permanent Electronic Review Management(PERM) system so that 90 percent of applications will be processed within six months of their filing date; process H-1B applications within seven days of the filing date; and process H-2B applications within 60 days of receipt. Read on for the full text.

02/14/2004: I-140 Processing Delays and Risk of IV Consular Processing

• Because of the I-485 processing delays, people have been considering the IV consular processing upon approval of I-140 petition. There are two groups of people who apply for the consular processing. The first group may be defined a "brave" person who refuses to file the concurrent I-140/I-485 proceedings and just file I-140 petition alone. The second group may be defined a "cautious" person who files the concurrent I-140/I-485 proceedings and when I-140 is approved, files I-824 and with the I-824 Receipt Notice, immediately commence the consular processing. The first group has produced a substantial number of victims for the two reasons: One is the unexpected delay of I-140 processing taking a year or longer in most cases. Second is the poor economy and high unemployment rate. While waiting for the I-140 approval, a number of people have lost the job. Since they did not file I-485, they could not save the green card proceeding even if they found a new employer. AC-21 180-day rule was not available to these people. Since the I-140 processing times are anticipated to be reduced very soon, this risk may also be reduced, but there are always such risk when one takes this approach.
• The second group takes a safer route. The 180-day clock will start ticking from the moment when I-140/I-485 concurrent filing is submitted. Additionally, he/she will get the EAD and Advance Parole. This gives a sort of safety valve against the loss of employment. These people usually file I-824 immediately upon receiving approval of I-140 petition. Are they required to notify the agency the reasons why they were requesting to issue dulicate to the consulate? Nope. Along the way, the agency may or may not find out that he/she is going through the consular processing. If it happens, they will first serve a notice of intent to deny rather than denying I-485 application outright. People know how long it takes for the agency to process I-824! While they go through the consular processing, they enjoy all the benefits of the I-140/I-485 concurrent filers.
• This option also has another safety valve. If they receive the notice of intent to deny, they can reassess their consular processing options and quickly withdraw I-824 application along with the response to such notice. Additionally, assuming that I-485 is denied, it does not shut out him/her from filing another I-485 application. Even if I-485 is denied, the underlying I-140 and labor certification remain valid. It is a matter of inconvenience and additional expense one has to spend to refile the I-485 application. This option works only if he/she maintained a valid nonimmigrant status at the time of I-485 denial. For these people, it is extremely important that they extend their H or L visa status all the way, including 7th year or 8th year extension under the DOJ Appropriation Authorization Act. There are however a number of people who refuse to opt this approach because of the cost for filing of I-140/I-485 application. Well, it is a matter of personal choice and decision, wouldn't you say?

02/14/2004: New Advance Parole Application Form, I-131, and "Class of Admission" Question

• Sometimes, when the government makes a change in the form, they publish it without detailed instructions. In the new form, the government added a new item in the form in Part 1, "Class of Admission." Some people enter the U.S. in one type of nonimmigrant classification and change the status to another type of nonimmigrant classification. For instance, from F-1 to H-1B, B-2 to F-1, etc. Which one people should write in? According to the immigration authorities, it is the "current" nonimmigrant classification. Thus, those who changed his/her nonimmigrant status should write the new nonimmigrant visa class in this item of the I-131 form.
• It appears that this question is asked to determine whether the applicant is ineligible for I-131. In the Advance Parole context, the applicant is ineligible if he/she was or is in a J-1 exchange visitor status being subject to two-year foreign residency requirement or he/she is in exclusion, deportation, removal or recission proceedings.

02/14/2004: Expensive Journey to Immigration Ahead

• In the yesterday's hearing before a subcommittee of the Senate Judiciary Committee, the Republicans and Administration officials reportedly backed the President's Temporary Worker Program (nick name: Guest Worker Program). The USCIS is facing a dilemma coming from two on-the-surface contradicting moves within the Administration: One is the pressure on the USCIS to reduce the backlog into 6-month processing times within about two years. Once it is enacted, the Temporary Worker Program will dump a mountain of workloads on the USCIS. In contradition to these immigration policies, the USCIS budget for the coming fiscal year has been slashed $100 million. What is going on?
• Close analysis of all of these immigration policy move reflects that the immigration benefits management is expected to be funded not by tax money but user fee revenues. The USCIS has already released a regulation proposing to raise the fee of whoppy $55.00 per petition or application the first year and intends to add additional fees every year based on consumer index. The Bush's Temporary Worker Program also proposes to charge not a small amount of fee in compensation for coming out of the closet of the illegal aliens. Another Bush's program to reduce the processing times to 6-month is also predicated on the fee revenues including the expensive premium processing fees. Without doubt, the USCIS will expand the premium processing programs in the near future. On the U.S. Labor Department court, its plan or proposal for user fee charges for the alien labor certification applications popped up and down in the past. The proposed fee was whoppy $1,500 per a labor certification application. It failed to make it in the Congress. But readers, hold your breath. Without doubt, it will come back sooner or later.
• The poor USCIS is increasingly squeezed in the sandwich. Considering the fact that the term "immigration" is taken very negatively and as a backburner under the current environment, the dilemma of the USCIS is probably a natural product of the times. After all, the term "immigration" is perceived by the political leaders as nothing but a soccer ball to kick around in a game named politics. Well, be that as it may, the immigrant community is willing to swallow the sour pills inasmuch as it will lead to good services worth the money. One positive side of all of these: No one should be whining that the immigration is a taxpayer's burden. How many people in the grass-root America would know how the immigration business is funded and operated? Probably nil or less than 1%, if we may exaggerate a little bit. Maybe it is time for the immigration community to engage in a campaign to make the mainstream "grassroot America" informed of the truth. It can be a most powerful lobby for immigration!

02/13/2004: IV Consular Processing and the Service Center I-824 Processing

• When it comes to the visa posts practice on EB-based immigrant visa application, it varied from a visa post that required approval notice of I-824 to a visa post that required just a Receipt Notice of I-824. Furthermore, some consulates accepted the IV application even without any proof of I-824 filing. Before it changed it practice, Mumbai had accepted the EB-immigrant visa application without any I-824.
• Now, unconfirmed AILA sources indicate that the U.S. Department of State agreed to accept I-140 IV cases just pending I-824 (Receipt Notice). It thus appears that this practice is uniformedly adopted by all the visa posts. However, people should contact each visa post to confirm any different practice for the jurisdiction.

02/13/2004: Post Dating of EAD Renewal Available Per USCIS HQ Permission

• According to the Nebraska Service Center, the Service Centers were given a green light by the USCIS HQ in September 2003 to issue the "post-date" EAD so that people can obtain a full 12-month renewed card. Since the EAD holders are permitted to file EAD renewal up to 6 months in advance of the expiration of the current EAD, inasmuch as it is within this time frame, people may be able to apply for EAD extension early on so that they do not face a crisis of EAD renewal application being still pending at the time of the expiration of the current EAD. Accordingly, people may be able to request the EAD renewal period from the date of expiration of the current EAD until one year from the starting date. In the renewal application, people may remind the Service Center of November 5, 2003 NSC Q&A so that they can check with the USCIS HQ internal permission back in September 2003.
• We commend the USCIS for the right move. It will help somewhat workload of EAD processing. EAD processing takes a large share of the USCIS immigration benefit workloads. Last year, this web site recommended the legacy INS to adopt this procedure.

02/13/2004: Judge Orders To Fill Unused Annual Refugee Quota Numbers and Grant 22,000 Asylum Applicants Green Cards

• In a landmark decision, a federal judge in St. Paul, Minnesota ordered the DHS on Thursday, 02/12/04, to grant permanent resident status to 22,000 asylum applicants who have al ready been granted asylums but unable to obtain immigrant status because of the government,s failure to use the annual refugee quota of 10,000. Report indicates that shockingly, the government has failed to use the annual quota since 1994 and there are over 22,000 unused numbers which the government argued unsuable and trashed. The court disagreed! What a remarkable news and admonishment to the abuse of power by the immigration authorities. Hmm..... Let's see whether there are unused employment-based immigrant quota numbers which the government has trashed considering the terrible backlog and processing delays of I-485 applications!!! Read on

02/13/2004: 2004 Poverty Income Guideline

• HHS released today the new Poverty Income Guideline for 2004. This new guideline is important for the family-based immigration proceedings. The sponsor of the relative immigrant petition must file form I-864, Affidavit of Support, and unless the petitioner or co-sponsor or joint-sponsor meets 125% of the Poverty Income Guideline, the beneficiary cannot obtain immigrant visa or I-485 approval. The new Income Guideline shows increase in the poverty income reflecting the consumer index changes and the sponsors of family immigrations will have to come up with the higher income to file I-864 Affidavit of Support. The new guideline takes effect as of today.

02/12/2004: Testimony of USCIS Director Before the Congress on 02/12/2004 on Proposed Temporary Worker Program

02/12/2004: Thaw in I-140 Backlog on the Horizon

• The I-140 processing has been experiencing a terrible delay for several months. There is a good news, though. Very soon, the H-1B annual cap is expected to reach and the USCIS is scheduled to move the adjudicating forces from the H-1B production line to the I-140 production line. Accordingly, people will see letters coming from the Service Centers in the mail, no matter whether it is RFE or outright approval or denial. Three groups of people have suffered most from the I-140 backlog. The first group is those who did not file concurrent I-140/I-485 to go for the consular processing rather than the time-consuming I-485 proceeding. This group includes Canadians, Europeans, certain Asians, and certain Mexicans/South Americans. The second group is those who had to change employment after 180 days of filing of I-485. Since the current USCIS interpretation of the AC 21 change of employer requires approval of I-140 petition, a number of I-485 filers in this group have lived in fear in the event that they lost employment or they face such crisis. The third group is those who are forced to process the immigrant visa outside of the U.S. upon approval of their I-140 petitions. Most typically, allied health care workers including nurses and those who live outside of the U.S. Please stay tuned!

02/11/2004: USCIS Dilemma and Option to Reduce Vicious Circle of Backlogs

• Ever since the legacy INS initiated Zero Tolerance Policy, the USCIS field offices have been intensively scrutinizing eligibility of petitions and applications. Apparently, the driving force behind this changed practice is the field offices' and adjudicators' fear factor for the potential liability for approval of defective petitions/applications. Accordingly, the USCIS has taken it as a policy or practice to double check the eligibility of petition or application immediately prior to adjudication of the petitions and applications. Delay of processing times exacerbates the situation. Lately, most of the I-485 applicants had to go through re-fingerprinting process. Additionally, they tend to receive RFE in majority of cases, because of the passage of time, requesting the evidence that the petitioned job continues to exist. It does not end at the I-485 proceedings. Lately, I-140 petition has witnessed a tremendous delay to a level of even one year or longer. As related to this delay, the I-140 petitioners, even if they had already submitted such evidence, started receiving RFE from the Service Centers to provide upto-date evidence that the petitioner had a financial ability to pay the proffered salary. It appears that such RFEs are sent out immediately prior to adjudication of I-140 petitions. In some cases, such RFEs demand an extensive set of financial records and documents.
• Without doubt, these RFEs should add a tremendous amount of workloads to the already exacerbating processing delays. In a way, it creates a vicious circle. One time, Nebraska Service Center adopted a practice allowing the petitioners or applicants to submit such evidence "proactively" such that the agency could save their workloads of processing of RFEs and Responses to the RFEs. The proactive supply of the required evidence should work if the petitioners or applicants are informed of the fairly accurate processing times of each type of cases. When the processing times are not predictable by the agencies themselves, it may not work well. However, it is submitted that it may be worthwhile for the USCIS to try the "proactive submission of evidence by petitioners or applicants" to alleviate the current on-going vicious circle of delays.
• For the USCIS to launch the proactive evidence practice, they should prepare and release a well thought-out guideline carefully stipulating the type of evidence the applicant or petitioner should collect and submit to the agencies in different types of petitions and applications. We urge the USCIS to consider this option as soon as possible.

02/11/2004: Least Helpful Government Website - Kentucky Consular Center (KCC)

• The U.S. Department of State created the KCC as the office for immigration lottery processing. The KCC website is literally the most boring government website which neither provides any helpful information on its operation and processing nor updates the website. Every year, more than 8 million people send in immigration lottery registrations. As the immigration lottery processing agency, KCC should have provided these people with information on the immigration lottery issues, processing status, statistics, or any other information. None of these is happening on the KCC site. Zzzz..................................

02/11/2004: Visa Bulletin (March 2004)

02/10/2004: Biometric Collection at Visa Interview at Hong Kong Visa Post

• Yesterday, February 9, 2004, the American Consulate in Hong Kong started collecting biometric (fingerprint) at the nonimmigrant visa interview. The two index fingers of a visa applicant is electronically scanned in an inkless process at the beginning of the nonimmigrant visa interview. Collecting the fingerprints adds no more than one minute to the application process and in most cases takes only seconds. The electronic data from the fingerprints will be stored in a database and will be available to Department of Homeland Security immigration officers at ports of entry in the United States. For the details, please click here.

02/10/2004: Minnesota State Labor Certification Processing Times of 02/10/04

• RIR=11/03/2003, Regular=12/10/2003, Faculty=12/19/2003, Temporary Applications (H-2A, H-2B)=C
• The state office has been tied up with the time-mandated temporary labor certification applications. Currently, the state office has only one analyst handling all the labor certification applications, assisted by two people for determination of prevailing wages. People hope to see some changes in the permanent labor certification application processing schedules.

02/10/2004: H-1B Annual Cap Reached?

• AILA has reported that the USCIS appeared to have received enough H-1B cap cases and the announcement may be imminent. Please stay tuned!

02/10/2004: 7th Year Extension of H-Visa Status for Spouse of H-1B Professionals

• There are a large number of couple who are professionals and work in H-1B status. When one of them started a labor certification application and becomes eligible for the 7th extension, there arises a question whether the spouse is also elibile for the 7th year extension. The answer is yes and no. If the spouse seeks the 7th year extension in H-4 status, then the answer is yes. However, if the spouse seeks the 7th year extension in H-1B status based on the other spouse's 7th year extension eligibility, the answer is "no."

02/10/2004: DOL Schedule for PERM Program and Backlog Reduction Centers

• As we reported earlier, DOL was scheduled to request OMB review for the PERM regulation when the budget appropriation for the program becomes available. The Congress and the President signed into law the budget appropriation bill. It is thus expected that the OMB review process may start sooner or later. Accorting to the schedule, the OMB review will take for about 90 days and once the regulation is published in the federal register, it will go through "get-to-know" sessions with the customers just as they did in H-2A online filing system. The regulation is expected to take effect 120 days after the release of regulation. Accordingly, the actual operation of the PERM program is not likely available until the end of this fiscal year, September 2004.
• The Backlog Reduction program may be in a different schedule. It appears that as soon as the appropriation becomes available within the DOL, it is likely that the DOL will launch the two Backlog Reduction Centers to process the horribly backlogged cases in a number of states, particularly the "ten biggies." Please stay tuned.

02/07/2004: Scoreboard of Alien Labor Certification Processing

• According to the January 2004 Processing Times Report, the shortest processing times states and the longest processing times states (combining Region and State processing times) are as follows:
  • Group I: Shortest Processing Times States in Both Regular and RIR:
    • ME,NH,VT,MN,IA
  • Group II: RIR Good but Regular Bad
    • AL,FL,GA,KY,MS,NC,SC,TN,ID,RI,WI,KS,NE,LA,NM,OK
  • Group III: Longest Processing Times States for Both Regular and RIR
    • CT,MA,NJ,NY,TX,IN,all States in Region II: DE,DC,MD,PA,VA,all States in SF Region: AZ,CA,HI,NV,all States in SEA Region, except ID.
• Group I Issues: They are small states. The upcoming changes in the labor certification system (RIR and Backlog Reduction Program) will affect the least in these states. People can file either RIR or Regular. Advantages of Regular include 7th H-1B extension for those who approach the end of 5th year H-1B and potential Limited Review Processing if the ad produces less than three applicants who are not qualified. Disadvantages include expanded market test through the National Job Bank by the states and supervised recruitment process, which can lead to a high rate of failure.
• Group II Issues: The people in these states have no option but going for RIR. The upcoming change in the labor certification system will minimally affect those in these states who are currently eligible for RIR. Except Florida and a few other states, most of these states are not expected to get the benefit of the DOL's planned Backlog Reduction Program which will cover initially ten (10) big states.
• Group III Issues: They are the ones who should get the most benefits by the upcoming labor certification change. All of them fall under the so-called ten(10) big states plus Florida and some other states in Group II above. The people in these states have no choice but filing any labor certification applications now as they have nothing to lose. When the DOL launches the PERM, they should also try the PERM applications, again since they have nothing to lose by filing the PERM applications. It is expected that most of the permanent labor certification cases will be picked up by the two Backlog Reduction Centers since the state offices will be flooded with the temporary labor certification application cases once the Bush's Temporary Guest Worker program is enacted into the law. The DOL's the new Five-Year Strategic Plan (FY 2003-FY2008) already focuses on the Temporary Guest Worker program and workloads!

02/06/2004: AILA's 02/06/04 Washington Update

02/05/2004: U.S. Passport Application Procedure Change for Minors

• The U.S. Department of State has announced that to enhance the accurate identification of passport applicants and aid in the prevention of international child abduction and trafficking, the Department of State’s Bureau of Consular Affairs has begun requiring the personal appearance of all minors applying for U.S. passports. This applies to all regular, official and diplomatic passports for children under the age of 14, even if the child has previously been issued a passport. Prior to the introduction of this requirement, parents were not routinely required to bring a child under the age of 14 with them when they applied on the child’s behalf. Now, when applying for a passport on behalf of a minor under the age of 14, parents are required to have their child present and submit documentation of parental relationship and consent, as well as comply with all other documentation requirements for the issuance of a passport. For the announcement, please click here.

02/04/2004: Clarification of Bush's 5-Year $500 Million 6-Month Processing Time Plan

• The fact sheet on FY 2005 budget of USCIS states that the 6-month processing time will be achieved "by FY 2006." What it means is by the end of FY 2006 (09/30/2006). The 5-year plan started in FY 2002 budget and should reach 5-year goal by the end of FY 2006. Still two years and seven more months away! We passed the mid-point of the 5-year goal. We hoped to see the USCIS specific step-by-step reduction schedules for the next two years and seven months. One cannot expect to see the six months processing time popping up over night or in a year. It has to progress gradually, don't people agree? Millions of cases cannot be processed that quick even if it is rubber-stamped without adjudication unless the processing times are reduced step by step every month or something. One wonders what the USCIS schedules would look like and in what pace of processing times reduction for the next two years and seven months.

02/04/2004: House International Relations Committee Heard Today Issues of L-1 Visa Loopholes and Abuse

• The House Committee called witnesses to explore on the following issues today:
  • The issuance of visas to those with "specialized knowledge," a very unspecific phrase, seems to provide a very elastic means for visa-shoppers to enter the United States. What exactly does the term, "specialized knowledge," cover in work situations?
  • A State Department unclassified memo dated July 3, 1996, presents documentation indicating that, at that time, "ninety percent of the L petitions investigated by the American Consulate in Guangzhou proved to be fraudulent." How widespread is L-Visa fraud worldwide? Is this a homeland security issue?
  • What is the rationale for having no requirement for labor certification in the L-visa category, since labor certification requires documentation that there is no American worker who can perform the same task?
  • Do you think a numerical cap on L-visas issued annually, as exists in the H-Visa category, would be desirable as a control measure? Why or why not?
  • Does the fact that L-Visa workers, unlike temporary workers in other visa categories, do not have to be paid "the prevailing wage" mean that some L-Visa holders constitute a trans-border "sweatshop" of employment under Third World wages, displacing equally qualified but higher paid American workers?
• For the agenda, please click here. This web site will keep track of the Congressional action on this issue. Please stay tuned.
  

02/04/2004: DOL/State 01/26/2004 Report of Labor Certification Processing Times and Question of Errors

• In the DOL's web site labor certification processing times report for the month of January 2004, a couple of questions have been raised in the minds of immigrant community. First, what took them so long to release the January report? Second, we have been receiving a number of comments from the community that there are errors. One comment indicates that:
  • For Regional Offices:
    Chicago Regional office is listed to be processing August 2002 Regular Permanent cases. Last month it was listed at August 2003. Did it move backward for one year? Is it typo or what?
    San Francisco Regional office is listed to be processing May 2002 RIR Cases. Last month it was listed at November 2002. Is this occasioned by the return of cases from the state office to the Regional office pursuant to the Backlog Reduction Guidelines issued by the DOL HQ?
  • For State Processing times:
    Washington DC is listed to process April 2003 cases. Should it have been April 2001?
    Maine is listed at December 2003 for Regular Permanent Cases. Last month it was November 2002. Really jumped 13 months over a month?
    New Jersey is listed at April 2001 for Regular Permanent Cases. Last month it was November 2001. Why did it move back for 7 months?
• Either AILA or the DOL HQ should clarify these points as soon as possible.
  

02/03/2004: State Department Confirms Few Countries Can Meet the New Passport Deadlines and Potential Explosion of Visa Applications

• We reported earlier that out of 27 visa waiver program countries that are required to issue a new passport with biometric features, only two or something would be able meet the deadline of October 26, 2004 and the situation would create increase of visa applications as high as 5.3 million! The State Department now confirms this report by its testimony before the Congress. Can you imagine its potential impact on visa application processing delays? Ouch! Read on.

02/03/2004: FY 2005 USCIS Budget and 6-Month Processing Time by 09/30/2006

• In parallel with release of the fee increase proposal, the USCIS announced that the FY 2005 USCIS included 60% increase in backlog reduction initiative fund allocation and the USCIS planned to achieve the Bush promise to reduce the processing time to six months by FY 2006 (September 30, 2006). For the details, please click here.
• It is indeed surprising that the USCIS had a backlog reduction plan considering the fact that the backlog has been mounting sky high. One questions where the backlog reduction money was and where it went. In FY 2005, it earmarks a substantial amount for the alleged backlog reduction initiatives, but one cannot but notice two ironies in the budget. The fact sheet does not describe how and to what extent the backlog will be reduced during the FY 2005. We really look forward to the details of its backlog reduction initiatives. All these monies are expected to come from the fee funds. Without doubt, it will come from increased filing fees and expansion of premium processing services to other applications. Again, inasmuch as a substantial reduction is achieved in the near future, we have no problem with the FY 2005 budget. The second irony is that the immigration and nonimmigrant function funds will be decreased from the FY 2004 budget. Uh!? Even with the current year budget, the backlog has been mounting to a level unparallel with the record in the recent immigration history. When allocation of these funds are decreased, one wonders how the USCIS will deal with the new backlogs which will be generated by the decrease of the budget in these functions. We strongly believe that reduction of backlog or processing times involves much more than simple increase in funding. Improvement in management towards achievement of efficiency and effectiveness may be as important as the funding increase. The USCIS may want to review the AILA's view on this issue.

02/03/2004: USCIS Proposes to Increase Filing Fees!

• According to the USCIS Proposed Rule which was released this morning, the fees will go up $55. The comment period ends on March 4, 2004. The fees are proposed to
  be adjusted at least annually on or after October 1, 2005, by publication of an inflation adjustment.
  • Table --Current versus New Application and Petition Fees
    
• This appears to be the USCIS response to the GAO criticism which we reported earlier that the USCIS had a financial shortfall to deal with the backlogs but did not have any mechanism to figure out the scope of the needed funds. The immigrant community would not mind of fee increase if it will indeed ensure a drastic reduction of processing times and backlogs. For the full text of the Proposed Rule, please click here.

02/02/2004: January 26 DOL/State Labor Certification Processing Times Report

01/31/2004: I-140 Portability and New Employer's Obligation

• By now, everyone knows that under AC21, the EB-485 applicant may change employer once 180 days pass after filing of EB-485, provided that the new offer of employment is in similar or same occupational classification and the I-140 petition has been approved. Since I-140 is portable after passage of 180 days after filing of I-485 only if there is an offer of similar or same employment by a new employer, such EB-485 has to prove existence of such offer of new employment at some point. This raises two questions to such EB-485 applicants: One is the timing of filing of such proof to the agency, and the other is the nature of the letter which the new employer must provide for the purpose of I-140 portability. Apparently, the answers to these two questions must be drawn from the William Yates Memorandum of August 2003 on continuing validity of I-140 petition under AC 21.
• Timing of Filing of the Change of Employer Proof After 180 Days:
  • If the new employer letter is filed proactively, the USCIS will continue to adjudicate the EB-485 application.
  • If the new employer letter has not been filed and USCIS receives a letter of withdrawal or request for revocation of I-140 petition by the original employer, USCIS is not supposed to deny the EB-485 application until a prerequisite step is taken. The prerequisite step is serving a Notice of Intent to Deny. If the EB-485 aplicant fails to respond to such notice or fails to prove that he/she had an offer of new employment and it is a similar or same occupational classification, then USCIS is supposed to deny the pending EB-485 application.
  • If the new employer letter has not been filed and the original employer did not revoke or withdraw the I-140 petition but EB-485 applicant receives a RFE to prove continuing existence of the I-140 petition employment, USCIS may continue adjudication of EB-485 once USCIS receives a proof of new employment offer. USCIS has been exercising discretion to continue adjudication of such EB-485.
• What Needs to be Proven by the New Employer:
  • The USCIS Memorandum states that it is not the actual job one has to prove. It is the "offer" of employment by the new employer. Accordingly, the Memorandum continues to stipulate that the I-140 can be portable and remain valid in certain conext without actual job being taken with the new employer before approval of the pending EB-485 application. It states that legally the statute or regulation does not require the alien to take the I-140 petition employment until the pending I-485 application is approved. Obviously I-140 employment is a "permanent" employment as distinguished from a temporary job and a nonimmigrant is unable to take such job until the permanent resident application is approved. Accordingly, it appears that it is the new employer's "offer" of employment and "intent" to employ the EB-485 applicant upon approval of EB-485. It thus appears that the offer of "temporary" employment may not square with the interpretation of this part of AC 21 by the USCIS. It has to be an offer of employment "for the period of indefinite duration" and the new employer may have to make a commitment to hire the alien for the permanent employment once I-485 is approved. However, it is this reporter's opinion that it may not mandate to stay with one new employer. The I-485 applicant may be able to change from the first new employer to the second employer "inasmuch as he/she can prove" that each of these employers offered not a temporary employment but permanent employment. Even under the AC 21 portability of I-140, it is the opinion of this reporter that the offer of "permanent employement" should continue to exist either through one new employer or subsequent new employers until EB-485 is finally adjudicated. I-140 portability requires "offer of new employment."
• Caveat: The common misunderstanding of the visitors of the lawyers' website is to take it as law or authority of the law. They should understand that the "opinion" is not law. It is the interpretation of the law by each individual lawyer. Only the court can rule on the law when it comes to the interpretation of the statutes or rules. People should be careful not to rely on the lawyers' opinions as though it is a binding law. ABSOLUTELY FALSE!! Individual attorneys can interprete the statutes and rules differently. No one can say one is right and the other is wrong until the court rules on the issue. The same is true with the foregoing information. Simply it is a view of an individual lawyer named Matthew Oh which does not have any legally binding force of law. It is not even the first authority of the interpretation. The first authority at this time is the USCIS Memorandum. Accordingly, readers are requested to read the Memorandum themselves rather than relying on this web site posting and this reporter will not be responsible for the consequences of such reliance. Important, Important!!!

01/31/2004: Sharing of Q&A or Experience

• Over the years, this reporter has received tons of questions or comments from the visitors. Since we do not use a "chat room," our visitors could not share experiences or questions and answers. This reporter encourages our visitors to send their questions or opinions to our e-mail addresses. This reporter will then selectively give answers and opinions on this "Breaking News" site without mentioning that it is a response to the query of any specific e-mail or any emails. This will give an opportunity for all of the visitors to this web site to share the information. We do not entertain any questions that involve other web sites or other lawyer's views.

01/31/2004: Importance of Cancelled Checks of Immigration Application/Petition Filing Fees

• We have been receiving a growing number of e-mails from those who either lost the Receipt Notice or failed to receive the Receipt Notice. Without Receipt Notices, they could not check the status of their cases or apply for EAD/AP as they had to provde the case numbers.
• The Service Centers issue a duplicate copy of Approval Notices but not Receipt Notices. Accordingly, it is important to remember for the unrepresented application/petition filers that they write the checks for filing fees which their banks would return to them after the checks are cashed by the government. These checks come to them with their banks' monthly statements. On the rear side of each check, they will find that the Service Centers either write or print the 13-digit case numbers for the specific filing, such as LIN(Nebraska Service Center) or WAC(California Service Center) or EAC(Vermont Service Center) or SRC(Texas Service Center) or MSC(National Benefits Center)xxxxxxxxx. With this number, they can check the status and print out the status information from the USCIS website or file the related or follow-up cases using such evidence. It is thus a critical mistake if they use either electronic bank checks or money order or cashier's or banker's check since these checks are not returned to the payors. In represented cases, their lawyers cut their law firm checks or file their clients' checks which allow the lawyers to track down the case numbers. People will learn that the lawyers never allow to file such checks of their banks or their client's banks which do not give any means to track down the case filing.
• The banks have growingly abandoned their services and practices of returning the cancelled checks to their customers for the purpose of saving their cost. These banks encourage the customers to use online checking of their balances with free of charge pretending that they provide such services for the purpose of the customers' convenience only at their expenses. What a gimmick and hypocracy! At least for the immigrants! More and more banks not only encourage but mandate such no-paper services. The reality tends to be that the customers only get a paper monthly statement without the cancelled checks or are required to use so-called online access to the balance. When it comes to the immigrant filing fee checks, people should keep the check numbers or copy of the checks or the cancelled checks safe so that if they lose their Receipt Notices or do not receive Receipt Notices from the agencies, they can track down the case numbers.
• The immigration services will gradually change the paper filing system to electronic filing system with the credit card payment. It is uncertain what will happen when there will arise a dispute between the agency and the filers as to receipt of the filing by the agency or the filer's need for tracking down of the case when the record are lost or destroyed. We will have to wait and see.
• In local district filings, they typically do not give any preprinted form of Receipt Notices for the people's filing. The only paper people typically receive is a machine print-out of the money receipt. Usually, these receipts have a case number which is unique to each District Office. With these numbers, people can check the status of their cases at the specific district offices, but when they try to use NCSC 800 phone inquiry, they will learn that it is either impossible or difficult to get information on the status of their cases if they only give the unique local number without the "A" number. People will have to live with the inconvenience to check the status directly with the specific local district office. Again, the cancelled checks for the filing fee will see on the rear side the case number. Some district offices do not take personal checks and require either banker's checks or money orders. Just for safeside, it is recommended that people file their own bank's cashier's checks since in worst cases, people can obtain a copy of the cancelled banker's checks from their banks. The U.S. Postal Service or other commercial services' money orders will give them a nightmare in some cases. In the consular proceedings, the National Visa Center does not take personal checks and takes only money order or cashier's checks. The foregoing point should be kept in mind here as well.

01/29/2004: USCIS Announced New District Directors, Including Denise Frazier for St. Paul District Office

• The Director of USCIS today appointed and announced the list of district directors and ASC directors in local field offices. By these new appointments, USCIS completes appointment for all the leadership positions within the USCIS structure. For the new announcement, please click here. For the previous announcement, please click here.

01/28/2004: Importance of Responsive Government and Public's Right to Know

• We live in an environment that calls for our support and participation in the fight on terrorism. The war on terrorism would necessarily demand control and managment of flow of information and communication. However, at the end of other spectrum, there is a fundamental principle for democramic government and the Constitutional principle that unless the people are informed of what the government does, people cannot exercise their fundamental rights to make an "informed" political decision and participation in the government process.
• This website has been monitoring the government process and activities as related to the immigration process for the past five years. Lately, we notice that the government agencies restrain themselves, either voluntarily or involuntarily, from releasing information about what the government does. Those who have visited the websites of U.S. Department of State, the U.S. Department of Homeland Security including U.S. Citizenship and Immigration Services, and other immigration-related government agencies must have noticed that only a fraction of information has been made public on the agencies' policy making process and their operations and activities. Along with this trend, one cannot but notice a drastic shrinkage of the rule-making activities as witnessed through the federal registers. Again, we agree with the government that the flow of information and communication needs to be somewhat controlled and we, the people, must tolerate and sacrify our right to know in democratic government and under the Constitution of the nation. The question is, though, where we should draw the line. Unrestrained control of flow of information and communication is not tolerable. Apparently, the line should be drawn at the point where the information or communication may affect our efforts to fight on terrorism. When certain information or communication is not related to the interest in fight against the terrorism or remotely related to such issue, assuming it affects such issue at all, the government should not be allowed to infringe the people's right to know the government's activities.
• Obviously, international terrorism involves foreigners and there are some information that the government should protect from their access to such information. Without doubt, some areas of immigration and visa policy may need to be protected from such terrorists' access. However, it does not justify that most of information or visa policies, policy-making activities, and operation of the agencies should be shielded from public access simply because the subject is immigration or visa. This is a classical example of the information which is indeed "remotely" related to the issues of terrorism. We hope that the government opens a gate for flow of information and communication between the government and their customers and constituents, particulary the immigrant community.

01/28/2004: Bush's Immigrant Proposal Draws Lukewarm Support in Hispanic Community

• Bush's illegal alien temporary worker program is receiving a cold response among the Hispanic community, according to the Miami Herald, while the Hispanics support the Senator Hagel's legislative bill, S.2010,which incorporates earned permanent residence program. The Democratic leaders also released their position on the illegal alien issues adopting a position which is similar to the Hagel proposal.
• This is an election year and it is expected that a flurry of immigration reform proposals are expected to be brought forth by the legislators and politicians. The immigrant community should support one of the proposals, but they should not raise their hasty and false hopes too high at this point. Even the Hagel bill, as Senator Daschle stated, the chance is not too good such a bill would pass the Congress before the national election in November this year, even if we assume that it would pass the Congress.
  

01/28/2004: DOL January Labor Certification Processing Times Yet To Be Reported

• DOL has been reporting the monthly state and federal labor certification processing times on the website in the middle of the month. However, somehow there was no report for the January 2004 processing times. We hope that the DOL reports the processing times as soon as possible. We also hope that the DOL release its specific schedules for the rule-making of the PERM program, now that the budget appropriation for DOL has been cleared by the Congress and the President.

01/28/2004: DOL H-2A Temporary Labor Certification Application Online Filing Link

01/28/2004: Come October, Potential Visa Processing Nightmare

• As people know, the U.S. policy requiring the Machine-Readable passports for 27 Visa Waiver Country visitors has been delayed until October this year. The nationals of these countries, unless they are issued a passport with biometric feature by October 26, 2004, must apply for a visitor's visa to enter the U.S. However, the report indicates that only two countries out of the 27 Visa Waiver Program countries may meet the deadline. Accordingly, unless something is done, almost 5 million visitors from these Visa Waiver Program countries may have to apply for a visitor's visa to enter the U.S. Report also indicates that about 68% of total number of visitors to the U.S. come from these Visa Waiver Program countries. Assuming that these 5 million visa applications are added to the current visitor's visa processing workloads for the visa posts throughout the world, it is anticipated that the visa processing delays would reach the level beyond anyone's imagination. The visa processing at the visa posts has already witnessed an incredible backlog and delay! Aaaaa-men! Read on.

01/28/2004: USCIS Issued Memorandum on Recent Change of Filing Procedure for International Organization Officers/Employees/Family Special Immigration

• Recently, the USCIS published a rule changing the filing procedures for special immigrant petitions and related I-485 applications. Basically, the new procedure streamlined and centralized in the Nebraska Service Center, taking away jurisdiction for these cases from the other Service Centers and local district offices. Effective February 23, 2004, either concurrent filing of I-360/I-485 or separate filing of I-360 and I-485 must be filed with the Nebraska Service Center for these qualified international organization officers/employees and their family members. Today, the USCIS corrected the error in the federal register announcement which provided the effective date of February 3, 2004. The effective date is February 23, 2004. Any cases which were filed at other Service Centers or local district offices will be continuously processed and adjudicated by the relevant Service Centers or local district offices. For the full text of the announcement, please click here.

01/28/2004: USCIS Announced Reengineered Adopted Child Citizenship Procedure Under Child Citizenship Act

• The USCIS has reengineered its processing in order to streamline the production of Certificates of Citizenship for certain children adopted abroad. Streamlined processes have been developed for newly entering IR-3 children who are automatically U.S. Citizens when they arrive. These newly entering IR-3 children will receive Certificates of Citizenship within 45 days of their arrival instead of receiving a Permanent Resident Card and then filing the N-600 for a Certificate. For the details, please visit the following sites:
  • Child Citizenship Act Fact Sheet
  • Reengineered Procedure Announcement

01/25/2004: Approaching H-1B Annual Cap and Impact on Outsourcing

• The monthly statistics of use of H-1B cap appeared to be much larger in FY 2004 than in FY 2003. In FY 2003, the average monthly use of H-1B cap number was approximately 6,500, while in FY 2004, assuming the past five months trend is projected to the 12 months period, the average per month can be projected to be approximately 13,000, double of the FY 2003 figure. The cause of this change is unknown, but definitely it may have something to do with the trend of economic recovery and growing restriction on L-1 visas.
• Now, unless a legislative action takes place soon, for the seven months from March through september 2004, the U.S. employers will not be able to hire new professional foreign workers other than those who already have a H-1B status. Anti-immigration forces may argue that this will open an increased opportunity for the U.S. workers to find a job. It may turn out to be dead wrong. Considering the fact that almost two thirds of H-1B workers came from the South Asia including India, Pakistan, etc., the vacuum during the seven months period may accelerate the trend of outsourcing of the U.S. businesses that need professional work forces. As the Prime Minister of India stated earlier, business is business, and businesses will have no option but going to the sources abroad where the needed professional work forces are located. The gentle ladies and gentle men in the Congress should look into this issue very quickly. They should learn from their past experience which forced them to increase the H-1B cap numbers from 65,000 to 195,000 because of the vacuum which was similar to this year's situation. The cap number was 65,000 and the cap numbers reached as early as March or April at the time. Unless they are willing to take the blame of accelerating the U.S. jobs to foreign countries, they should come forward helping the U.S. business to recruit the needed professional foreign work forces.

01/24/2004: President Signed Into Law Budget Appropriation Bill

• The President signed the Omnibus Appropriation Act bill yesterday, which includes the funding for the U.S. Department of Labor. Now the Foreign Labor Certification Division of ETA, U.S. Department of Labor should be ready to initiate forwarding the PERM rule to the OMB for review.

01/23/2004: Full Text of Bi-Partisan "Immigration Reform Act of 2004"

• Table of Contents:
  • TITLE I-- FAMILY REUNIFICATION
    • SEC. 101. TREATMENT OF IMMEDIATE RELATIVES WITH RESPECT TO THE FAMILY IMMIGRATION CAP.
      SEC. 102. RECLASSIFICATION OF SPOUSES AND MINOR CHILDREN OF LEGAL PERMANENT RESIDENTS AS IMMEDIATE RELATIVES.
      SEC. 103. EXCEPTIONS.
      
  • TITLE II--WILLING WORKER PROGRAM
    • SEC. 201. WILLING WORKERS.
      SEC. 202. RECRUITMENT OF UNITED STATES WORKERS.
      SEC. 203. ADMISSION OF WILLING WORKERS.
      SEC. 204. WORKER PROTECTIONS.
      SEC. 205. NOTIFICATION OF EMPLOYEE RIGHTS.
      SEC. 206. PORTABILITY.
      SEC. 207. SPOUSES AND CHILDREN OF WILLING WORKERS.
      SEC. 208. PETITIONS BY EMPLOYER GROUPS AND UNIONS.
      SEC. 209. PROCESSING TIME FOR PETITIONS.
      SEC. 210. TERMS OF ADMISSION.
      SEC. 211. NUMBER OF VISAS ISSUED.
      SEC. 212. IMMIGRATION STUDY COMMISSION.
      SEC. 213. CHANGE OF STATUS.
      SEC. 214. ADJUSTMENT OF STATUS TO LAWFUL PERMANENT RESIDENT.
      SEC. 215. GROUNDS OF INADMISSIBILITY.
      SEC. 216. PETITION FEES.
      SEC. 217. TERMINATON OF H-2C TEMPORARY WORKER PROGRAM.
      SEC. 218. DEFINITIONS.
      SEC. 219. COLLECTIVE BARGAINING AGREEMENTS.
      SEC. 220. REPORT ON WAGE DETERMINATION.
      SEC. 221. INELIGIBILITY FOR CERTAIN NONIMMIGRANT STATUS.
      SEC. 222. INVESTIGATIONS BY DEPARTMENT OF HOMELAND SECURITY DURING LABOR DISPUTES.
      SEC. 223. PROTECTION OF WITNESSES.
      `STAY OF REMOVAL
      `CONFIDENTIALITY OF IMMIGRATION INFORMATION OBTAINED DURING ADMINISTRATIVE PROCEEDINGS
    • SEC. 224. DOCUMENT FRAUD.
      
  • TITLE III--ACCESS TO EARNED ADJUSTMENT
    • SEC. 301. ADJUSTMENT OF STATUS.
      `ACCESS TO EARNED ADJUSTMENT
    • SEC. 302. CORRECTION OF SOCIAL SECURITY RECORDS.
• For the full text of the bill, S.2010, please click here.
• This web site will summarize key sections in the next several days. Please stay tuned.
  

01/23/2004: AILA's Washington Update of 01/23/04

01/23/2004: FY 2004 H-1B Annual Cap of 65,000 To Reach Very Soon

• As we reported yesterday, USCIS received 43,500 or more of H-1B cap cases during the three (3) months period of time from October 1, 2003 to December 31, 2003, indicating that the U.S. employers used very heavily during the period, close to 15,000 a month. Should this trend continue, probably the reach of the FY 2004 H-1B cap (65,000) may be imminent. Accordingly, we retract yesterday's prediction and urge the employers and the professionals to file H-1B cap cases as quickly as possible within the next 10 days or so.

01/23/2004: Procedural Change for Special Immigration Filings by International Organizations Officers/Employees/Families

• Effective February 23, 2004, the special immigrant petition and adjustment of status based on the special immigrant petition for certain international organizations officers or employees and their family members must be filed with the Nebraska Service Center. Currently, if an eligible alien were filing only a Form I-360 petition for classification as a special immigrant pursuant to section 101(a)(27)(I) of the Act, he or she would file the petition at the service center having jurisdiction over his or her place of residence. If an eligible alien were petitioning for special immigrant classification and applying for adjustment of status concurrently, then he or she would apply for both actions at his or her local district office. If an alien were applying for adjustment of status after his or her Form I-360 petition for classification as a special immigrant had been approved, then that alien would file a Form I-485 adjustment application at his or her local district office. The current procedure will change effective February 23, 2004.
• The change affects only the "procedure" and not the "substantive requirements" for the eligibility. For the details, please click here.
  

01/22/2004: Senate Approved Omnibus Budget Appropriation Bill and On its Way to President for Signature

• The Senate "today" approved the budget appropriation bill which the immigrant community has a stake in with reference to the timeline of the PERM new labor certification launch. The President is expected to sign the bill quickly. The availability of the appropriation will allow the Department of Labor initiate rule making process of the PERM regulation. Once the rule is forwarded to OMB for their review from 30 days to 90 days, the DOL will be able to publish the PERM regulation with the 120-day lead time. The employers will be able to use this 120-day lead time to engage in the recruitment campaign following the standards and requirements for recruiment under the PERM regulation, and will be able to file the applications as soon as the DOL start accepting the PERM applications after 120 days of publishing of the rule. At that point, the DOL will cease to taking any new cases of the current labor certification application including RIR or regular cases. For the budget news, please click here.

01/22/2004: H-1B Cap News

• The USCIS has released the status of H-1B cap number usage at the end of December 2003. The number used was 43,500.

01/22/2004: Good-Bye to Yugoslavia and Welcome to "Serbia & Montenegro"

• The Republic of Yugoslavia changed the country's name to "Serbia and Montenegro" last year. Now the State Department announced that the Department will use the new name of "Serbia and Montenegro." Please remember that Serbia and Montenegro are not the names of two countries but one country.

01/21/2004: Bi-Partisan Illegal Alien Amnesty Bill Introduced in the Senate

• Report indicates that Democrat Senator Daschle and Republican Senator Hagel introduced today a bi-partisan Immigration Reform Act of 2004 which counters the Bush proposal. Bush proposal provided legalization of certain illegal aliens as a "temporary worker" but did not provide for granting a lawful permanent resident status, while this bi-partisan Senate bill provides for granting permanent resident status to certain illegal aliens. The details and full text of the bill have yet to be made available, but the news report indicates that the legislative bill incoporates two important components, among others:
  • Adjustment of Status to a Permanent Resident for Certain Illegal Aliens: The conditions are reported as follows:
    • Must have lived in the U.S. 5 years or longer at the time of enactment of the legislation.
    • Must have worked in the U.S. for 5 years, including minimum 4 years before the passage of the legislation and 1 year after the legislative bill is enacted into a law.
    • Must pass English and American Civics test similar to the current naturalization process.
    • Must pay $1000 fine.
  • NewTemporary Workers of 350,000.
• According to the Senators, the timeline for passage of this legislation is likely after the national election in November, 2004. For the full text of the report, please click here.

01/21/2004: Visa Bulletin (Feb. 2004)

01/16/2004: Outsourcing of Legal Services in Controversy

• Report indicates that the U.S. businesses and law firms have started outsourcing legal services to foreign countries. Reportedly, by 2015, the outsourcing will reach 489,000 American lawyers' jobs. Hmm..................................Read on.

01/16/2004: Validity of Medical Exam Report for I-485 Filers

• As part of I-485 filing, the applicants are required to file a sealed immigration-designated civil surgeons' medical exam report to the USCIS. The medical report is supposed to be valid only for 12 months. However, as affected by the delays in adjudication of I-485, the former INS adopted a policy to extend the validity indefinitely until I-485 was adjudicated. It was released in the form of Memorandum. The Memorandum expired this month. Considering the continuing backlog of I-485 adjudications, the U.S. CIS has issued another memorandum to extend the policy for another year and until January 1, 2005, according to the AILA. Accordingly, those who have filed I-485 more than 12 months back do not have to worry about taking another medical exam and filing a new report at least until January 1, 2005.

01/16/2004: DHS Privacy Impace Assessment and Privacy Policy on Collected Information via U.S.-VISIT Program

• DHS has published a notice as to how the U.S.-VISIT information will be used, maintained, and protected for privacy. Read on.

01/15/2004: Omnibus Appropriations Bill in the Midst of Political Struggle

• We reported yesterday a number of programs including the DOL's PERM program and backlog reduction program depends on the passpage of the appropriation bill in the Congress. The House passed the bill and the Senate is scheduled for cloture debate on January 20, 2004, the first day of their reconvening. However, the news indicates that there is expected a fierce fight between the pro-cloture Senators and the con-cloture Senators. For the news, please click here.

01/14/2004: USCIS Plan for I-140 Processing Delays and Backlog Reduction

• As the readers know, the I-140 processing is currently heavily delayed in all the Service Centers. According to the USCIS sources, USCIS plans to move the resouces within the Service Centers that are tied up with the H-1B cap cases to the I-140 production unit as soon as the H-1B cap reaches. There is no information available about exactly when the cap is expected to reach, but it is everyone's guess at this time that it may not be too long away. Please stay tuned.

01/14/2004: Congress to Reconvene on 01/20/04 and Senate to Act on DOL 2004 Appropriation Bill on 01/20/2004

• The 2004 appropriation bill that contains the DOL has yet to be enacted into law by the Congress. Congress was adjourned and is scheduled to reconvene on January 20, 2004. When the Senate returns, it is scheduled to act on the Senate closure vote to end conference report the first day. As we reported earlier, the DOL's PERM program and backlog reduction centers initiatives depend on the 2004 appropriation for the Department. Please stay tuned to this web site for the development of the appropriation bills.

01/13/2004: November 2003 Immigration Statistics as Compiled at the End of December 2003

• According to the latest statistics of the USCIS, as at the end of November 2003, the new receipts of immigration benefits applications dropped 32% as compared to the same period in 2002, while pending cases increased 18% during the same period. In numbers, pending cases changed from approximately 4.6 million to 5.4 million. the statistics by type of cases are as follows at the end of November 2003:
  • I-130 Family Petition: 1,926,117
  • I-485 GC application: 1,240,111
  • EAD application: 368,429
  • I-90 GC Renewal/Replacement: 698,118
• For the complete statistics, please click here.

01/13/2004: DOL Cancelled 01/22/04 H-2A Labor Certification Program Online Briefing Due to Poor Response

• DOL announced today that due to a lack of response from the regulated community and other interested parties in the Nashville, Tennessee, area, the
  Division of Foreign Labor Certification, Employment and Training Administration (ETA), Department of Labor, is canceling the previously announced formal briefing to be held on Thursday, January 22, 2004, from 9:30 a.m. to 4 p.m., in Nashville, Tennessee, and is instead concentrating its efforts on the January 15, 2004, employer briefing scheduled at the Holiday Inn Boxborough, 242 Adams Place, Boxborough, Massachusetts 01719 from 9:30 a.m. to 4 p.m. See the announcement.
  

01/12/2004: FY 2004 Budget Delay Holds Implementation of DOL PERM and Backlog Reduction Centers Initiatives

• According to the AILA reports, the DOL's initiatives to launch the PERM program and two Backlog Reduction Centers need the FY 2004 budget and until the 2004 budget becomes available, DOL will not be able to launch the PERM program and planned opening of the two national Backlog Reduction Centers. The key appears to be the availability of 2004 budget for the DOL.
• Once the budget becomes available, the DOL plans to release the PERM regulation with the 120-day (4 months) period before actual launch of the PERM labor certification filing. At that point, all the state labor certification offices (SWA) will cease to taking any permanent labor certification applications.
• Apart from the new PERM program, the DOL started last year a pilot backlog reduction center at Gaithersburg, Maryland as we reported earlier. However, this reduction center was reportedly closed on December 31, 2003 and there is no backlog reduction processing at the national level at this time. However, when the 2004 budget becomes available, the DOL is scheduled to open two backlog reduction centers at the national level to process the backlog cases which are in the pipeline at the state offices and regional offices. The DOL's previous five-year strategic plan targeted at removing all the backlog cases at the state level and regional level within about one year from the date of PERM program launch. This is also the time when the state offices are completely phased out of the permanent labor certification process. In other words, the state offices and the two backlog reduction centers will be given a period of time during which they will have to get rid of all the backlog cases after the launch of the PERM program. For instance, hypothetically, should the PERM program start today, the two backlog reduction centers and the state offices will have to finish up approximately 300,000 cases in the pipeline. The two backlog reduction centers will focus on the so-called ten big and notorious states of heavy backlogs.
• Readers, watch for the progress of FY 2004 budget appropriation news!

01/12/2004: President Proclamation To Bar Corrupt Foreign People From Entry into U.S. As Immigrant/Nonimmigrant

• The President of the United States issued a Proclamation to restrict the international travel and to suspend the entry into the United States, as immigrants or nonimmigrants, of certain persons who have committed, participated in, or are beneficiaries of corruption in the performance of public functions where that corruption has serious adverse effects on international activity of U.S. businesses, U.S. foreign assistance goals, the security of the United States against transnational crime and terrorism, or the stability of democratic institutions and nations. Specific section includes:
  • Section 1. The entry into the United States, as immigrants or nonimmigrants, of the following persons is hereby suspended:
  • (a) Public officials or former public officials whose solicitation or acceptance of any article of monetary value, or other benefit, in exchange for any act or omission in the performance of their public functions has or had serious adverse effects on the national interests of the United States.
  • (b) Persons whose provision of or offer to provide any article of monetary value or other benefit to any public official in exchange for any act or omission in the performance of such official's public functions has or had serious adverse effects on the national interests of the United States.
  • (c) Public officials or former public officials whose misappropriation of public funds or interference with the judicial, electoral, or other public processes has or had serious adverse effects on the national interests of the United States.
  • (d) The spouses, children, and dependent household members of persons described in paragraphs (a), (b), and (c) above, who are beneficiaries of any articles of monetary value or other benefits obtained by such persons.
  • Sec. 2. Section 1 of this proclamation shall not apply with respect to any person otherwise covered by section 1 where entry of the person into the United States would not be contrary to the interests of the United States.
• For the full text of the Proclamation, please click here.
  

01/12/2004: USCIS Clarifies Tax Exempt Status Requirements for Religious Worker Petitioning Entities

• On December 17, 2003, the USCIS issued a memorandum to guide the field offices in adjudication of religious worker petitions. This memorandum clarifies what evidence and documents are required for the religious organizations to prove their qualifications as the petitioners. For the full text of the memorandum, please click here.

01/09/2004: Bush Backlog Reduction Agenda, Temporary Worker Plan, Mounting Processing Backlogs, and Mounting Pressure on USCIS

• Bush's promised 6-month processing time deadline is slowly approaching. Additionally, Bush's announced Temporary Worker Program raises doubt on the Bush's promised reduction of backlogs and processing times. Meanwhile, the BCIS processing backlog runs sky-high in reverse proportion to the Bush's path to the promised land. Sensing the serious state of the situation, the Government Accounting Office (GAO) submitted a report on January 5, 2004 to the Congress describing a terrible increase of processing delays and backlogs and a potential threat of further delays unless the Congress, as the oversight authority, directs the DHS and USCIS to study the funding requirement to deal with the backlog problem. The current ever-mounting backlog appears to be an embarassment to Bush who should keep his promise. For the detailed report of this news, please click here. For the 53-pdf-page GAO report, please click here.
• Unconfirmed sources indicate that a lawsuite has been filed against the DHS for the mounting backlog of I-485 applications. The I-485 filers currently see no light at the end of tunnel even after two years of filing. Besides, I-140 immigrant worker petitions take much longer than six months. Worse yet, recent BCIS Memorandum stating that the 180-day employment change rule for the I-485 waiters will not be recognized unless the underlying I-140 petition is approved first de facto seriously minimizes and compromises the Congress' legislative intent of the AC 21 Act. The 140 petition adjudication delays create a tremendous hardship for the immigrants who cannot sustain the current employment because of the high unemployment rate and the poor economy. Unless something is done, the I-140 backlog will turn worse within this year as the Labor Department is scheduled to launch a new labor certification system in the late spring this year promising certification of most of the permanent labor certification applications in 21 days. This will flood the I-140 production unit within the USCIS. The H-1B petition and I-539 applications also experience tremendous delays, forcing the U.S. employers to file Premium Processing Request with the payment of $1,000 additional money. The backlog and delays do not end in employment-based proceedings. The family-based immigrant cases are centralized into the National Benefits Center and pending the processing of the green-card application, alien relatives must obtain employment card and travel document. Before the centralization, such EAD card was issued the same day in a large number of district offices and the travel documents had also been issued within a short period of time by the local offices. Now, the EAD and Travel Document issuing authority for the family-based immigration applicants are taken away from the local district offices. The National Benefits Center has been experiencing growing delays in processing and issuing EAD cards and Travel Documents for these applicants, taking months. The sons, daughters, husbands, wives, and parents of the U.S. citizens are home-bound and living in a hell for not being able to work and travel. Without EAD card, one cannot apply for the Social Security card and the Driver License. They are frustrated and depressed. What is going on?
• Mr. President, you cannot have any immigration reform unless you learn to hear voices from illegal aliens as well as legal aliens who are suffering from the ailing immigration system. Your recently announced temporary worker legalization program can reform the system towards aggravation of the ailing immigration system unless you act swiftly to work out a solution to deal with the continuously mounting backlogs and processing delays which can lead to the disarray and collapse of the nation's immigration system, hurting millions of U.S. citizens and permanent residents and their foreigner relatives, and hurting the U.S. employers that need foreign work forces and the immigrants. We welcomed your temporary worker program announcement despite the serious flaws with the program that focuses on taking advantage of undocumented foreign work forces to fill certain types of works which so-called U.S. workers are reluctant to take because of the hard labor at low wages. Worse yet, these foreign workers are not promised for any permanent resident opportuniteis as a reward for their hard labor. Rather they will be used only for three years putting them in hard labor and in undesirable conditions for three years. After the three years, they will be left in the cold, unless they are lucky enough to hook a U.S. citizen spouse or other immigration opportunities which they should seek on their own. Otherwise, they will have to be kicked out of the country. We want to see an immigration reform that balances the interest of the nation and the interest of the immigrants contributing to the enrichment of the country in sectors including economy, culture, science, arts, defense, etc. You may call such move a compassionate reform. We also want to see an immigration reform with a vision rather than a fragmented reform which may or may not contribute to the improvement of the overall immigration system.

01/08/2004: What Does Bush Plan Really Mean to Illegal Aliens?

• Bush plan will affect the involved illegal aliens in five ways.
  • Eligibility to Apply for a Temporary Worker Nonimmigrant Status: Bush does not automatically legalize all the illegal aliens. It will just give an opportunity to apply for a certain nonimmigrant status which is similar to the current H-2A and H-2B Temporary Worker status. Under the current immigration, an alien who is an undocumented alien or in out-of-status is ineligible to apply for any nonimmigrant visa status in the United States. Bush plan will waive this ineligibility so that they can apply for such temporary worker nonimmigrant status even if they are so-called illegal aliens. Since the plan requires a rigorous labor market test, probably more rigorous than the current temporary labor certification application for H-2 (A,B,C) visa petitions, it may not be that easy.
  • Eligibility to Apply for Adjustment of Status to a Lawful Permanent Resident Status: Similar to 245(i) Benefit: Currently, those who are out-of-status or illegal aliens, including the border crossers, are not eligible to apply for a permanent resident status, even if they are otherwise eligible through family petitions or employment petitions or immigration lotteries, unless they are eligible to apply for 245(i) benefits. At this time, 245(i) benefit provision sunset on April 30, 2001 and no such benefit is available unless the eligibility was established on or before April 30, 2001. The Bush plan will give a waiver of ineligibility of adjustment of status which is analogous to 245(i) benefit once the alien completes the three-year temporary employment without violations. This will be a tremendous benefit to the eligible temporary workers under the Bush plan.
  • Waiver of 3-Year Bar or 10-Year Bar for Immigrant Visa Applications: Under the current law, those aliens who accumulate the unauthorized status from 6 months to 1 year are ineligible to return to the U.S. either on nonimmigrant status or immigrant status for 3 years. If the unauthorized status reach 1 year and the alien departs from the U.S., such illegal alien is unable to return to the U.S. for 10 years. The Bush plan will waive such inadmissibility to the United States, should the illegal aliens apply for a nonimmigrant or immigrant visa at the American Consulate in his/her home country after completing the temporary work under the Bush plan for 3 years. This will be a huge benefit which was not available to even 245(i) beneficiaries in the past. Currently, the 245(i) beneficiary is unable to return to the U.S., if they are subject to the 3-year bar or 10-year bar, no matter whether they have an advance parole. Accordingly, these people were unable to travel outside of the U.S.
  • Waiver of Other Inadmissibilities Related to Entry Without Inspections (EWI): Certain EWIs are subject to 5-year, 10-year, 20-year, or permanent bar under the current law, should they fall under the certain provisions of the immigration statutes. Bush plan may in all likelihood waive some of such bar to return to the U.S.
  • Foregoing Benefits Extended to Accompanying or Following-To-Join Immediate Family Members (Spouses and Children under 21 Years): According to the Bush plan, once the foregoing benefits are attached to the principal illegal aliens, just like the 245(i) provisions, same benefits will be extended to the dependent immediate relatives. Good deal!
    • Caveat: Bush plan does not provide waiver of any other ineligibility or inadmissibility. If such alien is deportable or inadmissible for committing a crime or fraud or other acts of deportability or inadmissibility other than illegal entry to the U.S. or overstay in the U.S., such aliens may not be eligible not only for the Bush plan temporary worker eligibility but also for waiver of the inadmissibility.
    • Caveat: Once the illegal aliens come out of the closet, such aliens may be vurnerable to enforcement actions unless the Bush plan is translated into a special provision in the legislation by the Congress that such information cannot be used by the DHS to initiate an enforcement action. For instance, if the temporary worker application is denied, the alien should return to the illegal alien status and subject to deportation unless such legislation is enacted. Besides, the illegal aliens can be arrested and deported until such temporary worker application is filed. For the Bush plan to work, it is extremely important that the legislation incorporate the kind of provision in the 1986 amnesty legislation which shielded the applicants from enforcement action based on the information provided in the process of application for a temporary worker status. The 1986 law had a provision punishing the immigration officials who disclosed such information to other immigration officials in the enforcement units. VERY, VERY IMPORTANT.

01/07/2004: Bush's Immigration Reform Program and Unanswered Questions

• Even though the announced Bush immigration reform program is far from being perfect, this web site generally welcomes the move. This program, however, seriously neglects to answer one question which has been considered a fundamental flaw in the immigration management system, to wit, immigration backlogs. The current immigration system has already reached the level of backlogs which are admitted by the four corners of the society unacceptable. The President promised years back that the processing time would be reduced to "six months" in five years by pumping in $500 million. Despite the pump-in of money, the record reflects that the processing times have moved in reverse direction. The system is seriously clogged! In the announcement, the President emphasized that the proposed program should not give an unfair advantage to the illegal immigrants over the legal immigrants who have been waiting in a long line of waiting and waiting. The suggestion is admirable that the new immigrant workers should not be pull ahead of other immigrants in the processing queue. Fair enough! What about its impact on the existing backlog, SIR? The President should have answered this question and the proposed immigration reform program should have incorporated this part of reform as the fundamental issue. Since millions of people are expected to benefit from the President's proposal, the President should have worked out the improvement of the immigration system that can accomodate the increasing caseloads of millions on top of the existing backlog. Arguably, the existing backlog is caused by the need for fight on terrorism and security clearance system. Everyone admits at this point of time that such need may not disappear in the near future. This reporter wonders what kind of plan the President has to face this issue. Without doubt, the President will ask the Congress to allocate a substantial money to accomodate the increased caseloads. Would money resolve the issue, though? Many will doubt whether the existing backlog in the immigration system is solely related to the insufficient funds. The immigration system has already heavily relied on user charge funds and not tax money. There has been no change in the clogged system! This web site wishes to hear from the President his plan for reform of the management system in parallel with the announced immigration reform plan.

01/07/2004: Concern with the Inaccurate Databases the U.S.-VISIT Program Uses for Entry-Exit Program

• DHS has disclosed that after they launched the U.S.-VISIT procedures on January 5, they have already detected 20 cases through fingerprinting who gave false biolgraphic information. However, the communities raise the concern with potential hardship and damages the people could suffer because of the inaccuarate databases the agents at the ports of entry have to use. The DHS admits somewhat such problem. Please click here to learn about this issue.

01/07/2004: CSS and LULAC Notices of Hearings and Settlement

• The federal courts issued notices for the settlement of these cases as follows:
  • CSS:
    • Notice
    • Text of Proposed Settlement
  • LULAC:
    • Notice
    • Text of Proposed Settlement
• For other details, please visit USCIS web site.

01/07/2004: USCIS Reminds Change In Mexican TN Procedure and Singapore/Chile FTA Effective 01/01/2004

• USCIS reminds the people of the changes in TN procedures for Mexicans effective 01/01/2004 (as we posted earlier) and the new immigration rules affecting the people from Singapore and Chile as affected by the Free Trade Agreement with Singapore and Chile. Please click here for the USCIS reminder.

01/07/2004: Full Text of Bush Immigration Reform Announcement

01/07/2004: White House Q&A on Immigration Reform

• White House answered some of the immigration report plan to the press questions. Please click here.

01/07/2004: Fact Sheet of Bush Immigration Plan

• Bush is scheduled to announce the plan at 2:45 p.m. EST. We will post the full text as soon as it is available.

01/07/2004: Minnesota RIR Labor Certification at Standstill

• According to the information of the Minnesota State Alien Labor Certification Unit, the office is processing the cases as follows as of January 6, 2004:
  • RIR=11/03/2003
  • Regular=12/10/2003
  • Temporary=C
  • Faculty=12/19/2003
• This report is a serious set-back for the processing of alien labor certification applications in the State of Minnesota. The setback is noticeably clear in the types of cases in RIR and Faculty Special Handling. RIR processing times remains at standstill since last report on December 1, 2003.

01/07/2004: Bush to Announce "Today" Illegal Alien Immigration Plan

• According to the report, Bush is scheduled to announce his immigration reform plan today in time for his meeting with the Mexican President next weeek in Mexico and to target the Hispanic support in the coming National Election in November 2004. As we reported earlier, the plan will mirror the Senator McCain bill in the U.S. Senate which requires temporary employment for a period of time before allowing application for permanent residence rather than granting an outright "amnesty" of all the illegal aliens. The plan attempts to walk middle of road between the extreme immigration opponents and the extreme progressive immigration proponents. For the NY Times report, please click here. We will report the announcement as soon as it becomes available.

01/05/2004: US-VISIT Regulations Published

• Who are covered? As the U.S. government started enforcing this program today, it published two regulations: One is to clarify the designation of nonimmigrant aliens who are subject to these rules. As we posted a few days, all the nonimmigrant categories are subject to these rules if they enter the country "with a visa." The rule exempts: aliens admitted on A-1, A-2, C-3 (except for attendants, servants or personal employees of accredited officials), G-1, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5 or NATO-6 visas, unless the Secretary of State and the Secretary of Homeland Security jointly determine that a class of such aliens should be subject to the rule; children under the age of 14; persons over the age of 79; classes of aliens the Secretary of Homeland Security and the Secretary of State jointly determine shall be exempt;
  and an individual alien the Secretary of Homeland Security, the Secretary of State, or the Director of Central Intelligence determines shall be exempt. For other details, please click here.
• Initial Designation of Ports of Entry That Enforce US-VISIT Program:
  • AIRPORTS;
    • Agana, Guam (Agana International Airport)
      Aguadilla, Puerto Rico (Rafael Hernandez Airport)
      Albuquerque, New Mexico (Albuquerque International Airport)
      Anchorage, Alaska (Anchorage International Airport)
      Aruba (Pre-Flight Inspection)
      Atlanta, Georgia (William B. Hartsfield International Airport)
      Austin, Texas (Austin Bergstrom International Airport)
      Baltimore, Maryland (Baltimore/Washington International Airport)
      Bangor, Maine (Bangor International Airport)
      Bellingham, Washington (Bellingham International Airport)
      Boston, Massachusetts (General Edward Lawrence Logan International
      Airport)
      Brownsville, Texas (Brownsville/South Padre Island Airport)
      Buffalo, New York (Greater Buffalo International Airport)
      Calgary, Canada (Pre-Flight Inspection)
      Chantilly, Virginia (Washington Dulles International Airport)
      Charleston, South Carolina (Charleston International Airport)
      Charlotte, North Carolina (Charlotte/Douglas International Airport)
      Chicago, Illinois (Chicago Midway Airport)
      Chicago, Illinois (Chicago O'Hare International Airport)
      Cincinnati, Ohio (Cincinnati/Northern Kentucky International Airport)
      Cleveland, Ohio (Cleveland Hopkins International Airport)
      Columbus, Ohio (Rickenbacker International Airport)
      Columbus, Ohio (Port Columbus International Airport)
      Dallas/Fort Worth, Texas (Dallas/Fort Worth International Airport)
    • Del Rio, Texas (Del Rio International Airport)
      Denver, Colorado (Denver International Airport)
      Detroit, Michigan (Detroit Metropolitan Wayne County Airport)
      Dover/Cheswold, Delaware (Delaware Airpark)
      Dublin, Ireland (Pre-Flight Inspection)
      Edmonton, Canada (Pre-Flight Inspection)
      El Paso, Texas (El Paso International Airport)
      Erie, Pennsylvania (Erie International Airport)
      Fairbanks, Alaska (Fairbanks International Airport)
      Fajardo, Puerto Rico (Diego Jimenez Torres Airport)
      Fort Lauderdale, Florida (Fort Lauderdale Executive Airport)
      Fort Lauderdale, Florida (Fort Lauderdale/Hollywood International
      Airport)
      Fort Myers, Florida (Fort Myers International Airport)
      Freeport, Bahamas (Pre-Flight Inspection)
      Greenville, South Carolina (Donaldson Center Airport)
      Hamilton, Bermuda (Pre-Flight Inspection)
      Hartford/Springfield, Connecticut (Bradley International Airport)
      Honolulu, Hawaii (Honolulu International Airport)
      Houston, Texas (Houston International Airport)
      Indianapolis, Indiana (Indianapolis International Airport)
      International Falls, Minnesota (Falls International Airport)
      Isla Grande, Puerto Rico (Isla Grande Airport)
      Jacksonville, Florida (Jacksonville International Airport)
      Juneau, Alaska (Juneau International Airport)
      Kansas City, Kansas (Kansas City International Airport)
      Kenmore, Washington (Kenmore Air Harbor)
      Key West, Florida (Key West International Airport)
      King County, Washington (King County International Airport)
      Kona, Hawaii (Kona International Airport)
      Laredo, Texas (Laredo International Airport and Laredo Private Airport)
      Las Vegas, Nevada (McCarren International Airport)
      Los Angeles, California (Los Angeles International Airport)
      Manchester, New Hampshire (Manchester Airport)
      Mayaguez, Puerto Rico (Eugenio Maria de Hostos Airport)
      McAllen, Texas (McAllen Miller International Airport)
      Memphis, Tennessee (Memphis International Airport)
      Miami, Florida (Kendall/Tamiami Executive Airport)
      Miami, Florida (Miami International Airport)
      Milwaukee, Wisconsin (General Mitchell International Airport)
      Minneapolis/St. Paul, Minnesota (Montreal, Canada (Pre-Flight
      Inspection)
      Nashville, Tennessee (Nashville International Airport)
      Nassau, Bahamas (Pre-Flight Inspection)
      New Orleans, Louisiana (New Orleans International Airport)
      New York, New York (John F. Kennedy International Airport)
      Newark, New Jersey (Newark International Airport)
      Norfolk, Virginia (Norfolk International Airport and Norfolk Naval Air
      Station)
      Oakland, California (Metropolitan Oakland International Airport)
      Ontario, California (Ontario International Airport)
      Opa Locka/Miami, Florida (Opa Locka Airport)
      Orlando, Florida (Orlando International Airport)
      Orlando/Sanford, Florida (Orlando/Sanford Airport)
      Ottawa, Canada (Pre-Flight Inspection)
      Philadelphia, Pennsylvania (Philadelphia International Airport)
      Phoenix, Arizona (Phoenix Sky Harbor International Airport)
      Pittsburgh, Pennsylvania (Pittsburgh International Airport)
      Ponce, Puerto Rico (Mercedita Airport)
      Portland, Maine (Portland International Jetport Airport)
      Portland, Oregon (Portland International Airport)
      Portsmouth, New Hampshire (Pease International Tradeport Airport)
      Providence, Rhode Island (Theodore Francis Green State Airport)
      Raleigh/Durham, North Carolina (Raleigh/Durham International Airport)
      Reno, Arizona (Reno/Tahoe International Airport)
      Richmond, Virginia (Richmond International Airport)
      Sacramento, California (Sacramento International Airport)
      Salt Lake City, Utah (Salt Lake City International Airport)
      San Antonio, Texas (San Antonio International Airport)
      San Diego, California (San Diego International Airport)
      San Francisco, California (San Francisco International Airport)
      San Jose, California (San Jose International Airport)
      San Juan, Puerto Rico (Luis Mu[ntilde]oz Marin International Airport)
      Sandusky, Ohio (Griffing Sandusky Airport)
      Sarasota/Bradenton, Florida (Sarasota-Bradenton International Airport)
      Seattle, Washington (Seattle/Tacoma International Airport)
      Shannon, Ireland (Pre-Flight Inspection)
      Spokane, Washington (Spokane International Airport)
      St. Croix, Virgin Island (Alexander Hamilton International Airport)
      St. Louis, Missouri (St. Louis International Airport)
      St. Lucie, Florida (St. Lucie County International Airport)
      St. Petersburg, Florida (Albert Whitted Airport)
      St. Thomas, Virgin Island (Cyril E. King International Airport)
      Tampa, Florida (Tampa International Airport)
      Teterboro, New Jersey (Teleboro Airport)
      Toronto, Canada (Pre-Flight Inspection)
      Tucson, Arizona (Tucson International Airport)
      Vancouver, Canada (Pre-Flight Inspection)
      Victoria, Canada (Pre-Flight Inspection)
      West Palm Beach, Florida (Palm Beach International Airport)
      Wilmington, North Carolina (Wilmington International Airport)
      Winnipeg, Canada (Pre-Flight Inspection)
      Yuma, Arizona (Yuma International Airport)
    • Air port of entry designated for US-VISIT inspection at time of alien departure:Baltimore, Maryland
  • SEA PORTS:
    • Galveston, Texas
      Jacksonville, Florida
      Long Beach, California
      Miami, Florida
      Port Canaveral, Florida
      San Juan, Puerto Rico
      San Pedro, California
      Seattle, Washington (Cruise Terminal)
      Seattle, Washington
      Tampa, Florida (Terminal 3)
      Tampa, Florida (Terminal 7)
      Vancouver, Canada (Ballantyne Pier)
      Vancouver, Canada (Canada Place)
      Victoria, Canada (Pre Inspection)
      West Palm Beach, Florida
    • Sea port of entry designated for US-VISIT inspection at time of alien departure:Miami, Florida
  • For other details, please click here.
    

01/01/2004: Sponsoring Foreign Nurses in Nonimmigrants and Immigrants

• On December 23, 2003, the USCIS issued Employer Information Bulletin 19 which may be considered a primer for application of nonimmigrant and immigrant visas/status for the foreign nurses. It is a short run-down of the requirements and procedures.
• The readers are cautioned that the Bulletin may mislead them when it comes to the time for submission of Visa Screen Certificate for immigrant visa application or EB-485 application unless they are upto date on this issue. The Bulletin gives the impression that if the foreign nurses obtained I-140 approval and Visa Screen certificate, then the nurses are eligible for the immigrant visa application. However, as people know, the Visa Screen Certificate is not required until the immigrant visa interview and in this regard, the Visa Screen certificate is not prerequisite to submission of application for immigrant visa.
• People will recall that the USCIS issued an "official"policy that the Visa Screen certificate would be prerequisite to the submission of I-485 for foreign nurses. The responsible officials of the USCIS later "informally" admitted that it was a mistake and the Visa Screen Certificate should not be required until I-485 would be adjudicated. The official policy has yet to be withdrawn, but reportedly it has been the Service Centers' practice that they accepted I-485 without the Visa Screen certificate in consistence with the unofficial position of the USCIS HQ. It is hoped that sooner the USCIS withdraws the official document, lesser confusing and misleading to the constituents of this part of the immigration laws.

01/01/2004: Launch of New Entry-Exit Program (US-VISIT)

• The DHS has undertaken an extensive campaign to inform the people of the U.S.-VISIT (U.S. Visitor & Immigrant Status Indicator Technology) program. For the details, people should visit the DHS and USCIS websites.
• As the DHS is scheduled to launch the program beginning from January 5, 2004, there are a few critical things, among others, the travellers should be aware of.
  • Firstly, the registration applies not only to "entry" but also to "exit" from the U.S. People should not fail to register at the time of departure from the U.S. once they entered the country with the U.S.-VISIT fingerprinting/photographing at the ports of entry.
  • Secondly, the US-VISIT registration applies to all the aliens who enter or exit from the U.S. with a "visa." This includes the 27 Visa Waiver Program country nationals as well as Canadians and Mexicans if they "travel on a visa." Accordingly, should they travel without a visa to the U.S., they will not be subject to the U.S.-VISIT program.
  • Thirdly, the nationals who are subject to the NSEERS Special Registration are subject to the Special Registration program and regulation and not U.S.-VISIT program. It is extremely important to note that these nationals are still subject to the special registration process at the time they enter the U.S. and at the time they depart from the designated ports of departure under the special registration regulations. People should not be confused by the recent changes in certain rules for special registration under the NSEERS program. It just "suspended" the registration requirement within 30 days at the designated local district offices after entry into the U.S. and the annual registration requirement for the Call-In Special Registration aliens. All the rules other than these suspensions remain in force and they should meticulously comply with the NSEERS Special Registration rules and regulations.
• Please seek legal counsel or visit the DHS website for the guidance. People are warned not to rely on private website information, including this web site. The foregoing information should not be taken as a legal advice or a law.

12/30/2003: Come January 1, 2004, Mexican Professionals TN Visit/Worker Easier

• The NAFTA has been treating differently between Canadians and Mexican for TN. For TN-1 for Canadians, there is no annual cap, while for TN-2 for Mexican, there is an annual cap of 5,500. Secondly, TN-1 for Canadians does not need the I-129 approval by immigration services to enter the U.S., while TN-2 for Mexicans need I-129 petition approval by the USCIS. Thirdly, Canadians do not need a visa for TN and obtain the TN I-94 at the U.S. Port of Entry to obtain the TN-1 status, while the Mexicans need a TN-2 visa and must apply for the TN-2 visa based on the USCIS approval of I-129-TN petition. Accordingly, TN-2 for Mexicans have experienced delays, not to mention the cumbersome three-steps procedure of entry on TN: I-129 Approval - TN2 Visa Application at the U.S. Consulate - Inspection and Admission at the U.S. Port of Entry.
• Beginning from January 1, 2004, the procedures will change for the Mexicans. There will be no annual cap just like TN-1 for Canadians. Secondly, Mexicans will not need I-129 petition filing and approval by the USCIS, again just like Canadians. However, since the Mexicans cannot enter the U.S. without a visa, they will have to apply for the TN-2 visa at one of the American Consulates in Mexico. However, removal of the annual numbers and USCIS petition requirement will make much easier for the U.S. employers to bring in the Mexican professional workers on TN-2 status. Congratulations to Mexican professionals and the related U.S. employers!!
  

12/28/2003: Deadline of DV-2005 Immigration Lottery and Troublesome Oversight of Deadline Definition in the Regulation

• According to the electronic registration site, the deadline for DV-2005 online entry is 24:00 of December 30, 2003 (Eastern Standard Time). However, unlike the previous immigration visa lottery regulations and instructions in previous years, the DV-2005 federal register notice and the DV-2005 Instruction failed to clarify the definition of December 30, 2003. It is obvious from the regulation that the lottery will end at the midnight of December 30, 2003. However, there are many different midnights of December 30, 2003 depending on the time zones. There are two questions involved in the event that someone misses the midnight in EST, but enters the registration before the midnights of CST or MST or PST: The first question is whether an agency can set a deadline in the online registration link when the federal register notice failed to fix the definition of the deadline. The next question is whether there is any rule of interpretation of deadline when a time zone is not specified.
• It is however evident that all the DV-2005 registrants should make the online entry before midnight (24:00) of December 30, 2003, Tuesday, Estern Standard Time, and should never take a risk. The lottery is processed at the Kentucky Visa Center in Williamsburg, Kentucky which belongs to the EST. Williamburg, KY, is located very close to the areas between CST and EST on the EST zone. The U.S. Department of State should have clarified the time zone, in hindsight, to avoid any potential confusion.

12/28/2003: Special Procedures for H-2B Temporary Labor Certification in Entertainment Industry

• The temporary alien labor certification procedures for H-2B are different from the standard H-2B temporary alien labor certification procedures. The following links will give readers a guidance for processing of H-2B labor certification for the aliens in the entertainment industry:
  • Procedures
  • List of Regional Offices and Offices Specializing Entertainement (OSE)
  • Map of OSE Jurisdictions
  • List of Unions in Entertainment Industry

12/28/2003: DOL Chicago Region (V) Reorganization and Foreign Labor Certification Division Line-Ups

• As part of the DOL/ETA reorganization, the Region V reorganized its structures beginning from December 1, 2003. The following is the line-up of the Foreign Labor Certification forces in the Region (alphabetical order other than the Chief):
  • Ray Moritz, Division Chief
  • John Abraytis
  • Ivan Corrales
  • Robert Fitzsimmons
  • Ray Garcia
  • Chris Gonzalez
  • Eric Hernandez
  • Marsha Johnson
  • Belinda Kimmons
  • William Matwijiw
  • Angel Mendoza
  • Betti Myers
  • Heidi Rodriguez
  • Naima Upshaw
  • Renee Van
• The Alien Labor Certification Office contact information:
  • Alien Certification Unit Walk-in Inquiries:
    Week days from 02:00 P.M. to 04:00 P.M.
    There are NO exceptions to ACU's timeframe.
    
    Alien Certification Unit Voice line: - (312) 596-5400
    Alien Certification Automated Search line: - (312) 353-1059
    Alien Certification Unit Fax - (312) 596-5410
  • Readers are advised to refrain from contacting the Office unless there is an emergency. Phone calls will affect the Office's work negatively. At this time, the Region V is one of the best in the nation when it comes to the processing and adjudication of alien labor certification applications. One way to to assure continuation of the current superb work of the Office is for the readers to stay away from any unnecessary phone calls!!!
    

12/27/2003: Bush to Announce Immigration Reform Agenda 2nd Week of January

• The Washington Post has reported that Bush will present his immigration reform proposal in the second week of January, shortly before traveling to Monterrey, Mexico, for a two-day summit of leaders from throughout the Americas. According to the report, the proposal will somehow mirrow the Senator McCain bill, S.1461, which proposed two programs: (1) Guest Worker Program and (2) Illegal Alien Immigration Program for those illegal aliens who complete a number of years of work within the U.S. and return to Mexico and apply for the immigrant visa. At this point, there are skepticals in both sides of the aisle and it is uncertain whether such immigration reform proposal will be enacted into a law before the 2004 national election. As a Hispanic vote-getter, there are similar bills in both Houses. There are approximately 38 million Hispanic population in the U.S.
• For the McCain bill, please visit our Temporary File site. Readers should roll down in the page to read this bill.

12/26/2003: Recognition of Dual Nationality in India and Issue of Loss of U.S. Citizenship

• On December 23, 2003, the Parliament in India passed a legislation amending its Citizenship Act of 1955 in order to recognize the dual citizenship for the Indians. People should review the Indian legislation in order to understand the details of the dual nationality as recognized by Indian goverment under its law.
• At the same time, people should realize that whether or not the Indian law recognizes dual nationality is strictly India's domestic issue and has no direct bearing on the U.S. nationality act that governs the requirement for retaining the U.S. citizenship or loss of the U.S. citizenship. It is thus imperative that Indian people review the U.S. Nationality Act to learn what acts of theirs would affect their U.S. citizenship.
• Dual nationality is created by one of the following three events:
  • A foreign national is naturalized in the U.S. and the natulization does not automatically divest his/her citizenship by his/her native country under its nationality act. In most countries, they divest the citizenship when their nationals are naturalized into a citizen of a foreign country. Presumably, the amendment of the Indian Citizenship Act of 1955 changed this.
  • A foreign national is born in the U.S. and attains the U.S. citizenship, but under the nationality law of their parents, the nationality is determined by blood rather than place of birth and he/she automatically becomes a citizen of the foreign country from the perspectives of the foreign country.
  • A U.S. citizen naturalizes to a citizen of a foreign country and the foreign country does not require to renounce his/her U.S. citizenship and the U.S. citizen does not commit an act that constitutes expatriation of U.S. citizenship.
• Generally the U.S. laws disfavor the dual nationality, but inasmuch as the dual national does not violate the U.S. Nationality Act, his/her U.S. citizenship is not affected and remains intact. Generally, a native born U.S.citizen or naturalized U.S. citizens loses his/her U.S. citizenship if he/she commits the following acts with the intention of relinquishing U.S. citizenship:
  • He/she appears before a U.S. consular officer and formally renounces the U.S. citizenship by submitting a formal written renunciation.
  • He/she formally submits a written renunciation when the U.S. is in a state of war.
  • He/she commits an act of treason or attempts to overthrow the U.S. government by force or bears arms against the U.S.
  • He/she takes a policy level position in a foreign state.
  • He/she (minor child) obtains naturalization in a foreign country upon attaining the age of 18.
  • He/she (minor child) takes an oath of allegiance to a foreign country upon attaining the age of 18.
• Generally, the following acts do not automatically trigger loss of citizenship:
  • He/she is naturalized in a foreign country.
  • He/she takes a routine oath of allegiance.
  • He/she accepts non-policy level employment with a foreign government.
• It is thus obvious that a dual national can commit an act which is perfectly lawful and acceptable in a foreign country but violate the U.S. nationality act. People should seek legal counsel whenever there is a question of implication of their acts involving their native country on their U.S. citizenship. The laws in this area are very complex and people should not rely on this posting when it comes to their individual situations. People are also reminded that the U.S. government intends to adopt a policy to disqualify for immigrant status those who renounced the U.S. citizenship for the purpose of tax evasions.
• U.S. laws require the dual national U.S.citizens to depart from or enter into the U.S. with the U.S. passport. If the foreign country for the dual national requires them to enter the foreign country with their passport, the fact that they used the foreign passport to enter or depart from the foreign country will not affect the U.S. citizenship nor violate the U.S. immigration laws.

12/25/2003: Agencies' Plan 2004: Failure of Address Change Notification and In Absentia Decision of DHS Actions (Series 5)

• This proposed rule was released on July 26, 2002 (67 F.R. 48818) and the DHS (BICE) plans to finalize and enforce the proposed rule in the form of a final rule. The proposed rule was intended to amend DHS regulations by requiring every alien who is applying for immigration benefits to acknowledge having received notice that he or she is required to provide a valid current address to the Department, including any change of address within 10 days of the change; that the Department will use the most recent address provided by the alien for all purposes, including the service of a Notice to Appear if the Department initiates removal proceedings; and, if the alien has changed address and failed to provide the new address to DHS, that the alien will be held responsible for any communications sent to the most recent address provided by the alien. This rule will satisfy the requirements or advance notice to the alien of the obligation to provide a current address to the Department, and of the consequences that may result for failure to do so, including the entry of an in absentia removal order against the alien if the alien fails to appear at a removal hearing.
• In the immigrant community, substantive law consequences of failure of notification of address change within ten days (deportability) are well publicized by now. But this proposed new rule will add procedural consequences of such failure, which can be as deadly as the substantive law consequences. The immigrant community should take the address change notication requirement very seriously. The immigrant community is advised to send out address change notifications within 10 days AR-11 or AR-11SR as well as additional notification to the field offices where their legal proceedings are pending. People should not fail to preserve the evidence of notification, including certified notice receipt as well as a photo copy of the notification.
  

12/25/2003: Agencies' Plan 2004: I-485 Backlog and Issuance of 2-Year Valid EAD (Series 4)

• The BCIS has been considering for quite some time to issue a two-year valid EAD for the I-485 waiters in order to relieve itself from the increasing EAD processing workloads as affected by the growing delay of adjudication of I-485 applications. People must have noticed from the BCIS monthly report of immigration benefits petitions/applications that the EAD processing takes a substantial portion of its workloads which have kept growing because of the delays in processing of underlying I-485 applications. The BCIS may issue this proposed regulation soon with the 60-day comment period. This category will be reserved only for those applying for I-485 adjustment of status, or having filed Form I-485. The rule change would give the BCIS the flexibility to issue EADs for the length of time it anticipates that adjudication of a given case will take.
• This is a very welcome move. However, one wonders where is the promise to reduce processing times of applications to six months.
  

12/24/2003: Agencies' Plan 2004: In Absentia Termination of Permanent Resident Status for Abandonment (Series 3)

• The USCIS intends to propose a regulation to terminate the permanent resident status of an alien if they notice that he/she has remained outside the country for a continuous period of over one year since his or her departure from the United States, if it is determined that such alien has abandoned his or her permanent residency and is no longer eligible for admission as a returning resident. This process will allow the USCIS to terminate the status of a permanent resident due to abandonment when it becomes aware of that fact rather than, as is current practice, having to wait for such alien to present himself or herself for inspection at a port-of-entry. The BCIS may release such proposed regulation soon with 30-day comment period. Beware!
  

12/24/2003: Reminder of Immigration Field Offices Closing Until Next Monday, the 29th.

• Most of the field offices are closed at 11:00 a.m. or noon today and they will not return to office until next Monday. This Friday was not supposed to be a holiday but for the Executive Order which gave all the federal executive agencies and departments extra one day off on this Friday. People are also reminded that the immigration lottery will also end and the old version of immigration form for travel document, I-131 (Advance Parole or Reentry Permit), will expire, on Tuesday, December 30. Remember that we all are going into long holidays or a long dormant stage just like a frog for the next one week. However, also remember that for some people, the week can be one of the most stressful or businest week to beat the deadline for filing of immigration applications/petitions or to commence certain proceedings or to spend more money for business expenses or whatever for the purpose of tax write-off. For these people, the clock will be ticking fast and loud! This web site will remain busy as well. HAPPY HOLIDAYS!

12/23/2003: Agencies' Plan 2004: From D/S Status to Fixed Date Status for F, J, I Visa Alien (Series 2)

• Under the current law, the foreign students in F-1, the exchange visitors in J-1, and the media representatives in I-visa categories are admitted to the country in the D/S (Duration of Status) status. The aliens in these visa categories remain "in status" during the period when they are enrolled in the program. Accordingly, there are no fixed dates of authorized stay and expiration date on I-94. All other nonimmigrants are admitted to the country with a fixed date of expiration of the status. This includes extension or change of status. The USCIS plans to remove the D/S admission of F, J, and I visa aliens. Once this rule is enacted, the aliens in these visa categories will be given a I-94 with a fixed date of expiration rather than duration of status. The USCIS was planning to release this change in the form of "proposed" regulation with a 30-day comment period. It is anticipated that the agency may release this proposed rule early next year.
• How will the aliens in these visa categories be affected by the proposed change? Very serious! Currently, any nonimmigrants in other nonimigrant visa categories are subject to a 3-year bar or 10-year from returning to the U.S. once they leave the country after staying 180 days or more or 365 days or more beyond the authorized period of stay on I-94. On the other hand, those in F, J, and I visa status do not have a fixed date of expiration of authorized stay on I-94 , and even if they keep staying in the U.S. out of status after failing to enroll in the school or exchange program or media employment, they are not subject to such 3-year bar or 10-year bar from returning to the U.S. Accordingly, these F, J, and I visa nonimmigrants could leave the U.S. after staying in this country illegally for years and years and apply for a nonimmigrant visa at the visa posts at their home countries and return to the U.S. The consular officers cannot refuse to issue a nonimmigrant visa to such aliens on the ground of the 3-year bar or 10-year bar. For these aliens to be subject to the 3-year bar or 10-year bar, the immigration authority must determine that their status is out of status. This determination can be made either by an immigration officer or an immigration judge. Once they determine such, the clock start ticking for the 3-year bar or 10-year bar period from the date of such decision. Thus, they no longer remain in D/S status. As a consequence, such aliens have refrained from contacting with the immigration authorities not to invite an occasion of immigration authorities noticing their illegal status and determining their out-of-status. Rather they just filed a certain nonimmigration petition without applying for either change or extension of current status for the purpose of pursuing a consular processing of a nonimmigrant visa outside the U.S.
• The upcoming proposed rule will change all these, giving the immigration services a tight grip on the aliens in F, J, and I visa aliens. Certainly, not a good news! For better or worse, please stay tuned to this web site for the development of this rule-making.

12/23/2003: Agencies' Plan 2004: AC-21 (Series 1)

• October 17, 2000 was supposed to mark an important turning point for the employment-based immigration with the enactment of a law, now-called AC-21. The portability of H-1B petition in the nonimmigrant categories and portability of I-140 petition in the immigrant categories was enacted to give a relief to the involved aliens and the employers that had been suffering from the agency backlogs and delays. The legislation left a huge vacuum that had to be filled by the agency (INS or DHS) through the enactment of implementing regulation. However, the rule-making process has gone through a delay after delay. Accordingly, the implementation of the law was left to the unpredictable and inconsistent interpretation of the statute by the involved adjudicators, field offices, and even the HQ of the Department. Additionally, the interpretation was also left to the employers and their lawyers, leading to an attack by the Government Accounting Office that such interpretation had created a situation of condoning violation of status. Such vacuum also created an environment misleading the immigrant comunity to believe that the employers' and their lawyers' interpretation was the "rule and law." When it comes to the field offices of the agency, different offices adopted different rules. For instance, the gap between two employments for the H-1B workers for the portability ranged from 0 to 30-day, 60-day, or even 90-day depending on which Service Center one dealt with, until they were slapped by the HQ's "Zero Tolerance" memorandum of the former INS Commissioner.
• Reportedly, the AC-21 rule-making process has been delayed because of the internal disagreements within the Department and with the DOL. The latest plan of the USCIS was to release the "proposed" regulation in December 2003 with the 60-day comment period. The December 2003 has come and gone. But the immigrant community should be prepared for the immiment release of the proposed regulation at the beginning of the coming year, whether good or bad. Please stay tuned!

12/23/2003: Sunset of Year 2003 and Review of Agencies' Plans Ahead Coming Year

• Year 2003 was in a sense a turbulent year for the federal government agencies that are related to the immigration, including DHS, DOS, DOJ, DOL, etc. The implementation of the Homeland Security Act somewhat fundamentally stirred from the roots the organizational structures of the immigration business and the agencies had to go through a state of confusion that comes with a huge transition and transformation from an age-old government structure.
• Even though the government promised to assure a smooth transition and retaining consistency of policies and rules, their plans for some rules and policies have been affected by the change: Some have been abandoned, some have been implemented ahead of the plans, and some have been delayed for a number of reasons.
• This web site will review in the next few days, in the form of a series of review, the plans of agencies for the coming year that will touch the lives of the so-called "aliens" in and out of the country and any parties related to them, including relatives and businesses. Readers are cautioned and reminded that the agencies' course of action can change depending on the direction of the country's political wind-blowing. The series will be posted entitled "Agencies' Plan 2004."

12/21/2003: Follow-Up of the Bigot Story

• The story which we reported a couple days ago involving a millionaire living in a hell to fight against inter-racial marriage and preservation of purity of races raised an interesting question as to how this man would react to the story of an illegitimate half-black child of the late U.S. Senator Thurmond. Guess what. Read on.

12/20/2003: India Broke Silence on Outsourcing Controversy in the U.S.

• Facing growing fear of outsourcing in the United States, India broke silence, defending the inevitable trend in the global economy. The Indian Prime Minister Atal Bihari Vajpayee cited three factors that had led the U.S. business to the option of outsourcing. One is the conservative U.S. immigration policy against import of foreign professionals, particularly Indians. Second is the fact that the Indian workers are cheaper as well as better. Third is the reality of global economy that "If people cannot go to where the business is, business will eventually come to where the people are."
• Some immigration practitioners in this country disagreed that the restrictive immigration policy was one of the principal causes for the exodus of U.S. businesses in the form of outsourcing. This debate was triggered in the context of discussion on the restrictive immigration policy against the liberal import of H-1B professionals. However, in this reporter's opinion, there is the truth to the Indian Prime Minister's diagnosis. This is particularly true considering the fact that a recent survey and study of impact of H-1B foreign workers on the wage of U.S. workers indicated that H-1B workers indeed helped the increase of U.S. workers rather than the decrease of the wage. Accordingly, the blame for the increasing outsourcing of U.S. businesses should be rightly directed to the U.S. policy makers rather than either the U.S. businesses or the professionals in the international labor market.
• Read on the full text of the news.

12/20/2003: Labor Certification Backlogs and Pilot Centralized Processing System

• We reported earlier that DOL/ETA had launched a pilot program in the East Coast to reduce the terrible backlogs in ten largest states by processing the pending labor certifiction applications at a Centralized Application Processing Center in Maryland. Accordingly, approximately 1,540 applications were reportedly transferred by the involved state labor certification offices (SWA) and processed and adjudicated by the Center. This Pilot program apparently focused on certain states in the East Coast (NY, NJ, MD, VA) and was planned to expanded to other areas. Currently, there are approximately 300,000 applications which remain unadjudicated at the SWAs and Regions. Caveat: The discussion herein is not related to the PERM program and the Pilot program is launched to reduce the existing backlogs. Accordingly, the procedure and the standards the Center applied were limited to the current labor certification regulation. The discussion will reflect that the centralized processing was performed on the basis of Zigler Memo rathan than the proposed PERM regulation. Reader should not confuse this discussion with the PERM program.
• Obviously, the cases which were processed and adjudicated by the Centralized Processing Center under the uniform standard (Zigler Memo), ignoring the differences in procedures and standards in the involved SWAs. We will quickly summarize the RIR checklist which the Center followed in performing the centralized processing as follows:
  • RIR application should include evidence of pattern of recruitment efforts within the six-month period before the priority date and it should not be few than 30 days before the priority date. Accordingly, if recruitment record of less than 30 days prior to submission of the RIR application, such record could be ignored.
  • The recruitment evidence should include the followings:
    • One print ad in the local daily news paper or relevant journal; plus
    • At least 2 other activities out of the following:
      • Job Order; or
      • Internal Recruitment; or
      • Company and Commercial Recuitment Web Page Ads;or
      • Job Fairs; or
      • Head Hunters; or
      • Additional Print Ads (more than 2 additional print ads). Accordingly, if the company used only printed ads, obviously, it required minimum of 3 printed ads.
  • If the application failed, the cases were supposed to be remanded to the SWA for processing as a conventional (regular) supervised application case, unless the company withdraws it. The remanded cases were supposed to be processed in quieu of "not" original priority date but "date denial letter is issued," even though the applicant would keep the priority date.
• It is unclear whether the Centralized System will be expanded to all the 10 big states and whether it will continue even after the launch of the PERM program. Please stay tuned to this web site for the development of continuing process of DOL's labor certification reengineering activities.

12/20/2003: Full Text of Padilla v. Rumsfeld Decision Against Detention of a U.S. Citizen as an Enemy

• On December 17, 2003, the U.S. Court of Appeals in the Second Circuit held that the U.S. government does not have authority to detain indefinitely as an enemy for the suspected terrorist ties. The citation for this case is Padilla v. Rumsfeld, Docket Nos. 03-2235(L); 03-2438(Con), (2d Cir., November 17, 2003).

12/20/2003: Proof of Tax Filing Purpose Required for Issuance of TIN Number Effective 12/17/2003

• IRS announced that effective December 17,2003, the TIN number will not be issued to foreign nationals unless the following conditions are satisfied:
  • All new ITIN applicants will have to show a federal tax purpose for seeking the ITIN.
  • For those seeking an ITIN to meet their income tax filing obligations, this will require attaching a federal tax return to the Form W-7 when they are ready to file their tax return with the IRS.
  • ITIN applications without proof of need for tax administration purposes will be rejected.
  • The IRS will reduce to 13 from 40 the number of documents it will accept as proof of identity to obtain an ITIN. The 13 acceptable documents are listed in the new Form W-7 instructions.
  • The IRS also will change the appearance of the ITIN from a card to an authorization letter to avoid any possible similarities with a Social Security Number card.
  • For the announcement, please click here.
• This is a tax season. People may want to review information on taxation for foreign nationals at the IRS site.
  

12/19/2003: Visa Delays Cost the U.S. Billions

• Since the 9/11 incident, the U.S. lost more than three millions of visitors per year because of the visa delays, among others. The Newsweek reports that it is costing us billions of revenue and businesses and loss of opportunities to attract talens from around the world. Please read on.

12/18/2003: Concern with Changing Management of Immigration Services

• Recent move of classifying some of the conventional functions of the government agencies into non-government function and contracting out to private contractors stirred a substantical controversy in the area of immigration service functions. Despite the concern with such move, the Director of USCIS announced recently that it will open to contract bids all the contact representatives and information officer positions by the end of FY 2004. The recent experience with the NCSC which is run by the private contractors is a good illustration of ineffectiveness when an important government function which requires expertise in the laws, policies, and practices is left to contractors with no knowledge of such laws, policies, and practices of the agency.
• More disturbing is the news that without publicity and notice of the public, the immigration field offices have reportedly assigned the adjudication fuctions to the so-called "term employees." These term employees are known to be hired for a four-year term in employment. Without doubt, this move will not only create a high rate of turnover of the adjudicators, but also facilitate ineffectiveness and inefficiency in adjudcation function of applications and petitions that flow from the insecurity of the job. Unlike the contact representatives or information officers, the adjudicators perform a highly complex adjudication function using their expertise in the body of complex immigration statutes, rules, policies, and practices. The function is similar to a semi-judicial process making a decision based on analysis of the facts and evidence and applying the laws, rules, and judicial precedents to the facts in each case. Additionally, they apply the rules of equity balancing favorable evidence over adverse evidence when it comes to the situation of exercise of discretion. It is extremely disturning to learn that these critical fuctions of the government are left to the term employees who are vulnerable to undue internal influence for the sake of job security. Besides, the high turnover of the adjudicators will without doubt create ineffectiveness and inefficiency in that new people ought to be constantly trained or retrained every time there is a change in term employment, thinning out the pool of adjudicators who reach the level of an expert in certain area of adjudcations.
• This web site expressed an opinion, not too long ago, that the current backlogs cannot be resolved by money alone. Budget increase will not assure improvement in immigration benefits function unless there comes with the budget increase an improvement in management. It is a time for the U.S. CIS to direct its focus on review of the current management and seek expert's help in working out an improved management system that will assure efficiency and effectiveness of its performance.

12/18/2003: Canadian Citizens Travelling in the U.S: Who Does and Who Does Not Need a U.S. Visa?

• Generally Canadian citizens do not need a visa. Neither a machine-readable passport is required for Canadian citizens.
• However, the following Canadian citizens travelling to the U.S. in the following nonimmigrant visa classifications must carry a visa:
  • E-1 Tready Trader
  • E-2 Treaty Investor (Thanks to Jackson Chaney, Esquire, for reminding this reporter of this item missed)
  • K-1 Fiance
  • K-2, K-3, and K-4
  • V-1 and V-2
  • A
  • G
  • NATO officials, representatives and employees assigned to the U.S.
• Accordingly, Canadian citizens travelling in other nonimmigrant visa classifications need neither a visa nor a machine readable passport.
• This information is posted because some people mistakenly think that Canada is part of the Visa Waiver Program and Canadian citizens require a visa or a machine readable passport. It is wrong. The visa and passport waiver for the Canadian citizens comes from other section of the immigration statute and not from the Visa Waiver Program statute. Accordingly, the recent changes in requirement for nonimmigrant admission from the Visa Waiver Program countries (27) have no effect on the Canadian citizens travelling in the U.S.
  

12/16/2003: Social Security Proposes to Require Job Offer Evidence for Issuance of SSN for F-1 Students

• The Social Security Administration released a proposed rule this morning that F-1 students would be required to present evidence that employment has been secured before the SSA will assign the F-1 student an SSN. This is a proposed rule and not in effect yet.
• Current SSA procedures require an F-1 student who needs an SSN for work to present evidence of age, identity, lawful F-1 alien status, and work authorization. This work authorization can either be from USCIS in the form of an employment authorization document (EAD) or from the F-1 student's school. In the past, when an F-1 student applied for an SSN, SSA believed that the student had a job or imminent plans to secure a job. However, SSA asserts that their recent experience has shown that some F-1 students apply for an SSN even when there is limited or no employment available. They further asserts that F-1 students often inform them that they do not intend to work but need an SSN to obtain goods or services in the community. SSA states that additional evidence requirements for F-1 student SSN applicants are needed because available SSA data suggest that some F-1 students assigned SSNs misuse those SSNs to work illegally in the U.S. (i.e., in work not permitted by their classification under immigration regulations or engage in other fraudulent activities. (See the SSA Office of the Inspector General (OIG) study, ``Using Social Security Numbers To Commit Fraud'' (A-08-99-42002, May 1999) at http://www.ssa.gov/oig/ADOBEPDF/A-08-99-42002.pdf). SSA goes on to assert that wages have been reported to SSA for F-1 students who have been engaged in off-campus employment without proper authorization from their schools or USCIS. SSN misuse can impact society in the form of illegal employment in the U.S., fraudulent entitlement to Federal and State benefits and services, and other types of illegal activity such as bank and credit card fraud and identity theft.
• Once this rule is enacted, some students in Optional Practical Training are expected to experience a new hurdle in their lives. For the proposed regulation, please click here.
  

12/15/2003: December 2003 Labor Certification Processing Times

12/15/2003: List of Countries/Types of Longshore Works Foreign Workers Are Prohibited

• U.S. Department of State has announced a list of countries where foreign workers are probihited from the longshore works on the U.S. vessels for certain types. For the list and types of prohibited works, please click here.

12/15/2003: DOL H-2A Online Temporary Labor Certification Application System Briefing Schedule Announcement

• The briefing dates are:
  • Thursday, January 15, 2004, 9:30 a.m. to 4 p.m., Boxborough, MA
    Thursday, January 22, 2004, 9:30 a.m. to 4 p.m., Nashville, TN.
• Deadline: Notices of intention to appear at the briefings must be postmarked no later than December 29, 2003.
• Briefing Locations are:
  • Holiday Inn Boxborough, 242 Adams Place, Boxborough, MA 01719
    Double Tree Hotel, 315 Fourth Avenue, N., Nashville, TN 37219
• Send notices of intention to appear to: Charlene Giles, U.S. Department of Labor, 200 Constitution Avenue, NW., Room C-4318, Washington, DC 20210. Notices also may be faxed to Charlene Giles at 202-693-2769 (this is not a toll-free number), or submitted by e-mail at dflc.onp@dol.gov. For the announcement, please click here.
  

12/14/2003: A Man Who Makes His Life a Living Hell: A Story of Bigot

• This is a story of a man who was a millionaire businessman of former West Publishing Company that published most of the law school text books, case law books, and reference materials and then destroyed his life for the cause against immigrants and so-called "other races." At his sunsetting age of 81, this man still fights as a full-time job in his cell at home in a quite neighborhood of suburban Minneapolis-St. Paul metro: A mission which is too big for a "small" man. Read on.

12/12/2003: Special Registration Rule Change and Its Impact on F,J,M Student Reporting Requirement

• Recent suspension of the call-in special registration for certain foreign nationals who were subject to special registration included some changes to the rules on foreign student's reporting requirement for these foreign nationals. Generally, timely report of physical and mailing address changes to the attending school (DSO) for its SEVIS update satisfies AR-11 address change report requirement and the students do not have to file a separate AR-11 inasmuch as such report has been completed. This includes those students from certain parts of the world who are subject to the special registration requirement.
• There is a caveat, though. This change affects only AR-11SR report requirement for F-1 benefits only. Accordingly, for all other occasions which are not directly related to the F-1 benefits, they are still subject to the reporting requirement under the special registration regulations. For instance, if one moves and address changes and the student reports address changes to the DSO, the student does not have to file AR-11SR. However, if there is a change in employment, the student is still required to file AR-11SR, not for the purpose of reporting address change but for the purpose of reporting employment change. Additionally, should a student seeks certain immigration benefits other than the F-1 benefits by filing any application or any petitions, the student is required to report the change of address to the agency where the application or petition is pending. For other students, it is not mandatory to report such address changes to the agencies inasmuch as they reported the change to the school. But for the students who are subject to the special requirement, it is mandatory and they are required to report to the agency their address change as separate from the SEVIS reporting.

12/11/2003: January 2004 Visa Bulletin

12/11/2003: Change of Security Clearance Procedure for Chinese(PRC) and Russian Visa Applicants

• The Chinese and Russian visa applicants are subject to the Mantis clearance requirement before the visa posts can issue a visa. Until now, the Mantis clearance was valid for a short duration and the clearance must be undertaken repeatedly when there was a delay in processing of the visas, causing further delays. According to the State Department cable released by the AILA, for certain nonimmigrant visa applicants from China and Russia returning to USG, the following rule will apply:
  • The Mantis clearance will be valid for one year and during the period, the visa posts do not have to seek repeated Mantis clearance If:
    • (1) The visa applicant is returning to a program or activity and will perform the same duties/functions at the same organization that was the basis for the original mantis authorization.;
    • (2) The visa posts have evidence from their own records, from an annotation on the visa or from the original visa issuing post that the DOS authorized the issuance of a visa to the applicant for this program or activity;
    • (3) Upon issuance, the visa posts send to the DOS a post-check visas Mantis cable with all of the information normally contained in such a cable as well as the date of visa issuance the last words of Thtivity; and
    • (4) Upon issuance of the visas, the visa posts send to the DOS a post-check Visas Mantis cable with all of teh information normally contained in such a cable as well as the date of visa issuance the last words of the subject line should be "Post-Check" and the last paragraph of the cable should indicate the date the visa was issued.
  • Visas issued to the PRCs or Russians who have been cleared through Mantis procedures must be issued as "single entry" visas valid for not more than 3 months. Mantis applicants from China and Russia may be re-issued, with inerview, but only with another single entry visas valid for not more than 3 months.
• It is hoped that this change of procedure help the visa posts in China and Russia to reduce their visa processing times.
  

12/11/2003: Backlog of Foreign Worker Visa/H-1B/Permanent Residence/Citizenship Application Adjudication and Deemed Export License Procedure Adjustment by the U.S. Department of Commerce

• A deemed export is a “release of technology or software of items subject to the EAR to a foreign national in the United States.” The frequency of license renewals has significantly increased primarily because of the greater scrutiny and time required for individuals to obtain permanent residency status or citizenship, which often exceeds the standard two-year validity period of an export license. These delays, combined with the rapid pace of technological advances, also have required exporters to seek upgrades in the technology licensed to enable them to continue to employ the foreign nationals for current products.
• In order to expedite the licensing process for deemed export license renewals and upgrades, the Bureau has implemented the following process improvements:
  • (1) Existing deemed export licenses that require renewal will receive an automatic six-month extension if a renewal license application and a written request for extension of the validity period of the existing license are submitted to BIS.
  • (2) Future deemed export license validity periods will be tied to a foreign national’s visa expiration date if that expiration date extends beyond the standard two-year license validity period.
    • The H-1B work visa is typically valid for 36 months. A license applicant should note in its application the expiration date of a visa that is beyond the standard two-year validity period of a license, and request a matching, extended, validity period, in accordance with section 748.6(g) of the EAR.
    • Occasionally, deemed export licenses are issued while a visa application is still being processed;, or, a visa is renewed during the validity period of an existing license. Once a final determination has been made on an individual’s visa application or visa renewal, the exporter’s will receive favorable consideration on a written request to extend the existing deemed export license validity period to match the visa expiration date. Written requests for such extensions should include a copy of the foreign national’s visa and the license number of the existing deemed export license.
  • (3) For deemed export license applications that are solely for upgrades to technology already authorized in an existing license, the Bureau will expedite processing.
• This change is motivated by the need to assist the U.S. businesses that need to attract and hire talented foreign workers, particularly H-1B workers who are involved in sensitive technology and softwares. It is hoped that this policy change removes the current hesitancy and reluctance of such businesses to hire H-1B and foreign workers and open more opportunity for the high tech foreign workers to work with such businesses. For the full text of DOC news, please click here. For the State Department explanation of background of this policy change, please click here.

12/09/2003: Executive Order to Close Federal Agencies on 12/26/2003

• Today, the President issued the Executive Order to close all the federal executive departments and agencies closed on December 26, 2003, Friday so that the federal employees enjoys one extra extended Christmas holidays. People who face any deadline during December 25 (Thursday)-December 28(Sunday) period should assure themselves that the petitions/applications are filed such that the filing is receipted by the agencies on or before December 24, 2003. Read the Executive Order.

12/08/2003: Immigration Statistics as of End of October 2003 as Released on November 28, 2003 by USCIS

12/08/2003: USCIS Issued Memorandum on Indefinite Extension of Conditional Resident Status Pending Adjudication of I-751

• I-751 is filed by a conditional resident to remove the conditional status. Since the conditional resident card is valid only for two years and I-751 is required to be filed three months prior to the second anniversary of obtaining the conditional resident status, such conditional resident almost always faces the issue of employment authorization after expiration of the conditional resident card. In order to relieve the conditional resident from such predicament pending I-751, USCIS has been issuing a Notice of Action (I-797) with the notation that the applicant is authorized to travel and work "for one year." Question remains "what happens if one year passes and I-751 has yet to be adjudicated by the USCIS?" This memorandum clarifies the law that the conditional resident status remains valid pending adjudication of I-797, no matter how long it takes. Accordingly, this memorandum instructs the field offices to issue such status proof by placing a temporary I-551 permanent resident stamp in the passport valid for one year increment or by issuing a I-94 with a temporary resident notation valid for one year. These should be taken care of in the local district offices. For the full text of the Memorandum, please click here.

12/05/2003: AILA's Washington Update of 12/05/2003

12/03/2003: Notice of Proposed Settlement in CSS and LULAC (Newman) Legalization Cases

• CSS Cases
• LULAC Cases

12/02/2003: BCIS Launched On-Line Credit Card Payment for Electronic Filing Applications

• BCIS announced that the people would be able to pay the filing fees on-line via credit cards for the electronic filing cases. Currently, electronic filing is limited to two types of cases: I-90 Application for Replacement of Permanent Resident Card, and I-765 Employment Authorization Document. The BCIS is scheduled to expand the types of electronic filing cases. For the announcement, please click here.

12/02/2003: Full Text of Partial Special Registration Suspension Regulation Effective 12/02/2003

12/02/2003: Innocent Victims, Undocumented Youngsters, Raise Hopes and Voices for DREAM Act Legislation

• The DREAM Act legislative bill in the Congress is in a way an amnesty bill for the illegal youngsters in this country. Considering the fact that they are innocent victims of their parents' act, the bill involves an emotional tone and humanitarian aspect. It is a right thing to do in many ways.
• There are a large number of the eligible youngsters throughout the country and reportedly they are raising their voices in support of the legislative bill. For the bill, S. 1545, please revisit the full text of the bill. For the news report, please click here.

12/02/2003: Lockheed Martin Corp., Accenture and Computer Sciences Corp: Potential Contractor for $10 Billion USVISIT Project

• Report indicates that the DHS announced last Friday a bid for the mammoth IT project named "USVISIT" including fingerprinting and photographing for the visitors at the port of entries. The scope of the work includes:
  • * Program and technical management of individual task orders.
  • * Program integration of all US-VISIT related activities.
  • * Strategic planning and analysis to support the program office.
  • * Process re-engineering and organizational change management.
  • * Systems engineering and architecture for integration of multiple projects.
  • * Design, development and implementation for each phase of the program.
  • * Development of a training program.
• The report also indicates that the potential candidates have already been narrowed down to these three companies. For the DHS announcement, please click here. For the report, please click here.

12/01/2003: Minnesota State Labor Certification Processing Times as of 12/01/2003

• RIR=11/03/03, Temporary LC=Current, Faculty Specialty Handling=Current, Regular=Current

12/01/2003: DHS to Partially Suspend NSEERS Special Registration Rule

• AILA has reported that as early as tomorrow, DHS is expected to publish a federal register changing the NSEERS Special Registration rules. According to the DHS Fact Sheets, the following changes will take place effective the publication of the federal register:
  • There will no longer be a 30-day or one-year re-registration requirement, effective with the publishing of the new rule in the Federal Register.
    In place of the previous requirement, the new rule will allow DHS, as a matter of discretion, to notify individual nonimmigrant aliens subject to NSEERS registration to appear for one or more additional continuing registration interviews in those particular cases where it may be necessary to determine whether the alien is complying with the conditions of his or her nonimmigrant visa status and admission. The rule also provides that when an alien who is monitored under Student and Exchange Visitor Information System (SEVIS) notifies DHS of a change of address or change of educational institution through SEVIS, it also constitutes a notification for the purposes of NSEERS registration.
  • The decision affects 177,260 people who registered with NSEERS through September 30, 2003. NSEERS was implemented September 11, 2002. The statistics as of September 30, 2003 are as follows:
    • Total Number of Registrations: 290,526
      Total Number of Individuals Registered: 177,260
    • Port-of-Entry Registration
      Total Port of Entry Registration: 207,007
      Number of Individuals: 93,741
    • Domestic Registration
      Total Domestic Registrations: 83,519
    • Referred to Investigation
      Notices to Appear Issued: 13,799
      Total Number Detained: 2,870
      Total Number In Custody: 23
      Total Number of Criminals: 143
• This site will report the full text as soon as the federal register is released. In the meantime, for the DHS press release, please click here and stay tuned to this web site.
  
  

11/30/2003: Stolen/Lost Green Card During Overseas Travelling and Required Steps

• This reporter has been receiving e-mails from the U.S. permanent residents whose passport was stolen in a hotel or lost while travelling in a foreign country. Such alien cannot return to the U.S. unless he/she carries with him/her a "transportation letter" issued by a U.S. Embassy or Consulate in the country. The steps to take to handle such crisis is as follows:
  • First: Immediately report the stolen/lost green card to a police in the area. Additionally, publish stolen/lost passport in the classified ad in a daily newspaper.
  • Second: Apply for the transportation letter with the U.S. visa post in the country with the following documentation:
    • If your "green card" is lost or stolen, you may be able to obtain a "transportation letter" valid for one month authorizing a transportation line to carry you to the United States without penalty. To issue a "travel letter" you must bring to the U.S. Embassy or nearest U.S. Consulate the following documents.
    • Evidence of your identity,
      Your transportation tickets and boarding pass,
      Evidence of your U.S. legal resident status (e.g. passport showing admission to the United States as an immigrant),
      Evidence that you were in the United States within the last 12 months,
      Copy of your report to the police of the card's loss/theft or detailed explanation as to why you do not have your card,
      Three recent passport size photographs,
      $300 Filing fees
    • Depending on the circumstances of your case and the amount of information you provide you may be able to obtain a travel letter in one hour or it may take one week or more. No visa is otherwise available.
  • Third: As soon as you reenter the U.S. with a transportation letter, you should file I-90 Application for Replacement Green Card.
• For the current or future permanent residents, this reporter urges you to print and keep a copy of this posting before you leave the U.S.

11/30/2003: Short-Cut I-130 Immediate Relative Petition in Japan for U.S. Citizen Petitioners in Japan

• The U.S. Embassy in Tokyo in Japan has the delegated authority from the DHS to accept and adjudicate I-130 immigrant petition by the U.S. citizen petitioner in Japan on behalf of the immediate relatives (spouse, children, parent) living in Japan. Currently, the I-130 petition processing is tremendously backlogged at the Service Centers taking months.
• Beginning from tomorrow, December 1, 2003, such petition is adjudicated after the interview which requires an appointment. However, if the petitioner U.S. citizen is a member of U.S. Forces stationing in Japan or a long-term resident in Japan, the petition can be filed and adjudicated by mail and without interview. For the details, please click here.

11/29/2003: Chinese Students/Scholars Visa Crackdown Strains Higher Learning Institutions

• Report indicates that the U.S. crackdown of the Chinese student and scholar visas dated back before the 9/11 incident. According to the Minneapolis Star Tribune, about 60 % of visa applications by the Chinese students and scholars were denied in 2003! For the full report, please click here.

11/28/2003: DOL RIR Review Guidelines and Region VI (SF) Recall of Remanded Cases

• The response of the Region VI to the recent release of DOL RIR Review Guidelines is indeed swift. AILA reports that the Region is recalling all the remanded cases except the cases which required only Bachelor's degree with no experience. The SWA in California is reportedly scheduled to return the cases to the Region in the following schedules:

• Cases Remanded	Scheduled Return to Region
  06/2003	12/2003
  07/01/03 - 07/10/03	01/01/2004
  07/10/03 - present	No later than 04/01/2004

• How Beautiful!

11/28/2003: Visa Screen Not Required at the Time of I-485 Applications for Allied Health Care Workers

• On September 22, 2003, the USCIS released a memorandum which required a visa screen "at the time of filing I-485 application" for the allied healthcare workers. Soon thereafter, this web site questioned inconsistency and unfairness between the new USCIS procedure and the U.S. consulates' practice which does not require the visa screen until the time of immigrant visa interview. Now the AILA reports that the USCIS is revisiting the announced new procedure and will release a new memorandum to return to the previous practice of the Service Centers. The Service Centers had been receipting I-485 applications from the allied healthcare workers without the visa screen until they adjudicated the 485 applications. Report also indicates that despite the 09/22/03 Memo, the Service Center have been continuously accepting I-485 applications without the visa screen and will continue the conventional practice. Good!

11/28/2003: USCIS Unveiled New Re-Entry Permit & Refugee Travel Documents

• In June 2003, this web site reported that the Nebraska Service Center was planning to redesign the Re-Entry Permit Document. On November 24, 2003, the Director of USCIS officially released the newly designed documents as follows: The production of a new, re-designed travel document which allows permanent residents, refugees and asylees to re-enter the United States following travel abroad, incorporates increased security features aimed at eliminating a counterfeiter's ability to duplicate them,using the latest state-of-the-art technology. The newly designed documents adds security features that frustrate the illegal production of these documents and improve production techniques and processes to shorten the processing times. Produced at the USCIS Nebraska Service Center, the new travel documents utilize the same patented personalization process as the current U.S. passport. This includes a digitized integrated photo, which has proven difficult for counterfeiters to duplicate. The redesigned document also features a number of covert or hidden features that require sophisticated forensic equipment to view. The new travel document is light green in color and resembles the size and shape of the U.S. passport. It replaces the existing refugee travel document and the re-entry permit for permanent residents. Refugee travel documents and re-entry permits currently in circulation will remain valid until the expiration dates printed on those documents. The use of new production equipment and techniques will increase the production rate by ten fold of the current production rate. This is a very good news for the Permanent Residents and Refugees who have been experiencing a delay of almost one year to obtain the travel documents!
  

11/28/2003: Chennai Consulate Notice for F or J Visa Applicants

• Effective 24 November 2003, the US Consulate General in Chennai will no longer enclose I-20 and DS-2019 forms in envelopes attached to passports with newly issued F and J visas. I-20 and DS-2019 forms will be returned directly to the applicant at the time they apply for the visa. All applicants who receive F and J visas will be required to carry their I-20 or DS-2019 forms with them to the port of entry in the United States.
  

11/28/2003: AC 21 Change of Employer and Issue of Pending I-140 in Concurrent Filing

• As people know, the USCIS released a memorandum on August 4, 2003 concerning the validity of I-140 under the AC 21 180-day rule. Among others, the memorandum stipulated that under the AC 21, the I-140 would remain valid if the I-485 applicant changes employment after 180 days of filing of I-485, no matter whether the employer withdraws the original I-140 petition.
• Caveat: Where the I-140 is still pending in the I-140/I-485 concurrent filing after 180 days of filing of I-485, USCIS opined that the so-called Yates' memo of August 4, 2003 does not apply. This leaves a number of questions wide open in the concurrent filing where I-140 adjudication drags on. Obviously, the first question should be whether the I-485 applicant will be allowed to change employment after 180 days of filing when I-140 is still pending. The other question is whether the I-140 petition would remain valid, should the original employer withdraw the I-140 petition for the purpose of substitution of the employee. Conservative view dictates that the answer could be "negative." The USCIS said that it would release a separate memorandum on this issue. Until such separate memorandum is released, it may be prudent for the I-485 filers to take a extra precaution before they decide to jump to a new employer.

11/28/2003: AC 21 Change of Employer and Narrow Definition of New "Employer"

• Under the AC 21, the I-485 applicant is permitted to take a new "employment" of similar or same occupation classification after 180 days of filing of I-485. What is the definition and scope of "employment?" Recently, USCIS HQ opined that "self-employment" is not considered within the parameter of the terms "employment" in the AC 21. This interpretation opens a host of related questions such as what happens if the new employer is a corporation where the I-485 applicant holds controlling shares or 100% of shares?

11/28/2003: AC 21 Change of Employer and Issue of New Employer's Employment Intent Upon Approval of I-485

• In the employment-based I-485 proceeding, the I-140 petitioning employer is required to maintain its "intent to employ the petitioned employee" upon approval of I-485. Where the I-485 applicant fails to prove that the employer no longer retains such intent, the immigration services can deny the I-485 application unless it was a self-petition I-140. The theory is that there no longer exists the proffered employment. Additionally, should the I-140 petitioner abandon its intent to employ the sponsored I-485 applicant upon I-485 approval and the immigration services approved I-485 without the knowledge of such change of intent, the immigration services can initiate the legal proceeding of revocation of the approved I-485 for the reasons that had they known such facts, they would not have approved I-485.
• What happens if the I-485 applicant changes employment after 180 days of filing of I-485? Obviously, the original I-140 petitioner abandoned such intent in this situation. However, pending I-485 should survive because of the AC 21 180-day rule. Question remains, though, whether the new employer should take over the intent to employ the alien once I-485 is granted. It appears that the USCIS view is that throughout the I-485 proceedings, an employer should retain such intent. Accordingly, it opines that the new employer should retain such intent to employ the I-485 applicant for indefinite duration once I-485 is granted. Implicitly, this view also requires that the alien should retain his/her intent to work for the new employer at the time he/she takes the new employment and throughout the period of employment with the new employer. Should the alien abandon such intent, the USCIS may be able to argue that there was a misrepresentation, and should the USCIS learn such abandonment, it can deny the I-485 and once granted, theoretically, USCIS might be able to revisit the adjudication of I-485 and initiate revocation proceeding.
• The USCIS view thus makes one thing clear: Under the AC 21 180-day rule, the I-485 applicant should not take a "temporary" employment. The terms of employment should be for a period of "indefinite" duration. Should the USCIS establish that either the new employer or the I-485 applicant did not retain an intent to employ or work for the new employer "upon approval of I-485," the consequences can be deadly.
• It is unclear at this point whether such view and interpretation of AC 21 180-day rule of USCIS is sustainable when it is challenged in the court considering the legislative intent of the 180-day rule, but until it is settled in the court, I-485 applicants should be aware of the USCIS views on this issue and potential risk of ignoring this view.

11/21/2003: Imminent Senate Confirmation of James Loy as New Deputy Secretary of DHS

• Report indicates that the Senate panel unanimously approved the nomination of James Loy yesterday and the full Senate is expected to confirm his nomination shortly. The current Deputy Secretary, Gordon England, resigned in October and will return to his previous post, Navy Department Secretary. Mr. Loy is the present head of the Transportation Security Administration. Read on.

11/21/2003: PERM Final Regulation Release Likely in 2004 and Not in 2003

• Based on its Liaison sources, the AILA confirmed once again that the PERM labor certification final regulation was not likely to be released this calendar year. The sources indicate that it may rather be released early next year. Besides, once it is released, there will be a lead time of four months from the date of release of the final regulation before the actual PERM program is implemented. Please stay tuned to this web site for the development of this news.

11/21/2003: DOL Released RIR Backlog Reduction Guidelines

• On November 20, 2003, the Chief of Foreign Labor Certificdation Division of the DOL, William Carlson, released a memorandum to set forth guidelines for the Regional Certifying Officers for processing of RIR applications. We will outline the new guidelines.
• Regional Certifying Officers review the RIR applications on two broad criteria: (1) One is whether the application is "complete" in documentation and procedure, and whether it complied with the applicable regulations such as absence of unduly restrictive requirement and adequate action taken at the state level for the employer who engaged in layoffs following the Zigler Memo. (2) The second standard is whether the employer engaged in a pattern of recruitment and adequate test of the labor market before they submitted the RIR application. The Memorandum require the Regional Certifying Officers to take a step-by-step action following guidelines below:
  • First, the Regional Certifying Officer must review the RIR applications using the standard (1). If their review of the RIR shows that the applications failed in this criteria, they should issue a Notice of Finding (NOF). If the employer fails to sufficiently rebut the findings, then application is denied and "dead." If their review indicates that the applications met this criteria, depending on the level of positions, the Certifying Officer should either approve the application without further review or conduct the next level of review. Under this rule, if the job requires a Bachelor's degree plus 3 or more years of experience or a Master's degree plus 6 or more months of experience, the Certifying Officer is mandated to approve the application.
  • However, for the jobs which are lower to these jobs, the Certifying Officer should conduct the next level of review. The next level of review standard (2) is whether or not the employer tested the labor market adequately. If the record reflects that the employer conducted adequate market test, the Certifying Officer should approve the application.
  • The only cases which require a further action are those that failed to take adequate labor market test (failed in (2) test) and the job requires less than Bachelor's degree plus 3 years of experience or Master's degree plus 6 months of work experience. In these cases, the Certifying Officer must give the following options to the employers:
    • Completely withdraw the labor certification application; or
    • Just withdraw RIR nature of the application and continue the case as a regular application. This case should be remanded to the state agency for the supervised recruitment process. When the case is remanded, the case will be put back into the queue on the basis of the priority date; or
    • Conduct a "one-day retest" of the labor market and file another recruitment result report. In this case, the Certifying Officer can require the employer to submit a copy of all the resumes which the employer had received in response to the retest. If the employer engaged in recruitment during the last six months, instead of the retest, the employer can submit this recruitment result report. Again in this case, the Certifying Officer can require the employer to submit a copy of all the resumes which the employer had received during the six-month recruitment period.
  • When the Certifying Officer requires the employer to conduct the retest of the labor market, they should allow the employer to change job descriptions or qualification requirement inasmuch as the changes do not result in change in occupational classification.
• The Memorandum will force certain Regional Certifying Officers to stop remanding RIR cases arbitrarily. It is expected that the RIR process will resume to "normalcy" in certain Regions that have stirred controversy. Salute to Mr. William Carlson!

11/21/2003: USCIS Position on H-1B Amendment For Worksite Change

• According to a letter of USCIS which has been released by the AILA, employer does not have to file a H-1B amendment when they relocate their employees to other job sites if the LCA notice was posted and approved before the employee was relocated. This opinion letter reflects that it does not matter when it was posted and certified inasmuch as it was posted and certified before the H-1B employee was relocated to the site. This opinion somewhat deviates from the view expressed by other officials in the past. Readers are cautioned that this opinion is expressed in a letter to a community organization and it is neither a memorandum or a binding rule. However, in view of the fact the author is the chief of business division of USCIS, it will carry a substantial weight when it comes interpretation of this issue within the USCIS.
• This opinion expands the freedom for the employers to move around their employees without going through the cumbersome and expensive H-1B amendment procedure. This will be particularly helpful for the IT consulting businesses.

11/18/2003: USCIS Immigration Statistics as of 09/30/2003

• USCIS released the statistics on October 31, 2003. Please check out the following statistics:
  • Inspections
    Southwest Border Apprehensions
    Immigration Benefits
    Naturalization Benefits
    Removals
    Investigations
    Asylum
    

11/17/2003: USCIS Launches "Official" Online Processing Time Reports

• The U.S. Citizenship and Immigration Services has just launched online posting of the processing times of the local district offices, Service Centers. Until now, the information was available only through the American Immigration Lawyers Association. This new site will give access to the following information:
  • Individual Case Status Online Status Check
  • Local District Office Online Processing Time Reports
  • California Service Center Online Processing Time Report
  • Nebraska Service Center Online Processing Time Report
  • Texas Service Center Online Processing Time Report
  • Vermont Service Center Online Processing Time Report
  • National Benefits Center (formerly Missouri Service Center) Online Processing Time Report
• People can also call 800 number to request some information on individual case status or issues, but the usefullness of the 800 number has been very controversial and it stirred protests by various immigrant community organizations. The AILA has reported that the USCIS would partially reinstate the previous practice of direct telephone access to each Service Center. This should be a very welcome move of the USCIS.

11/17/2003: Employment-Based Immigration (I-140 and I-485) Primer

• The USCIS has published a Employer Information Bulletin which runs down the primer of different categories of I-140, I-360, I-526 Employment-Based Immigrant Petitions and I-485 filing details. This primer provides information on some important issues such as the meaning of "equivalent" to satisfy educational requirement, etc. Please check the Bulletin.

11/17/2003: GAO Report of Federally Funded Research at Institutions of Higher Education

• This report gives information on 200 largest federal research funded Higher Learning Institutions. The people who work with or in the research entities of the higher learning institutions (universities and colleges) such as research scientists, research assistants, research associates, etc. may want to review this material.
  

11/13/2003: December 2003 Priority Dates

11/13/2003: November 2003 Labor Certification Processing Times

11/12/2003: DOL Announces H-2A Online Filing Briefing/Training Sessions in California on 12/05/2003

• The DOL Foreign Labor Certification Division announced a formal briefing to demonstrate to agricultural employers, attorneys, agens and associations on Friday, December 5, 2003; 9:30 a.m. to 4 p.m., at Hilton Monterey, 1000 Oguajito Road, Monterey, CA 93940. Notices of intention to appear at the briefing must be postmarked
  no later than November 26, 2003 to Charlene Giles, U.S. Department of Labor, 200 Constitution Avenue, NW., Room C-4318, Washington, DC 20210. Notice also may be faxed to Charlene Giles at 202-693-2769 (this is not a toll-free number), or submitted by e-mail at dflc.onp@dol.gov.
• The DOL will announce additional locations for formal briefings to be held on the East Coast in January 2004.
• The information public briefings will be chaired by a senior official of the Employment and Training Administration. Persons appearing at the briefings will be allowed a
  hands on experience with the system and to pose questions to Department staff. For the full text of the announcement, please click here.
• It is unknown whether the DOL will go through the same process for the PERM in the future. However, this H-2A online filing briefing session may be able to shed a light on the hands-on experience with the DOL online filing system.

11/10/2003: Refugee Admission Quota for FY 2004

• The President Document which was released today ordered the Secretary of State allocation of the 70,000 numbers to the following manners in FY 2004:
  • Africa................................................. 25,000 ......
    East Asia.............................................. 6,500 ......
    Europe and Central Asia................................ 13,000 ......
  • Latin America/Caribbean................................ 3,500 ......
    Near East/South Asia................................... 2,000 ......
    Unallocated Reserve.................................... 20,000
• For details, please click here.

11/08/2003: Reminder of Annual Call-In Re-Registration Requirement for Special Registrants

• Those who complied with the call-in special registration must reregister every year within the 20 days of window period of time. The re-registration deadline depends on each registrant's initial call-in registration. For instance, if he/she registered on November 23, 2002, he/she is required to register between November 13, 2003 and December 2, 2003 since the law requires to register from 10 days before to 10 days after the anniversary of initial reregistration. The consequences of failure to reregister can be very serious. Please click here for the details.

11/07/2003: AILA's Washington Update of November 7, 2003

11/06/2003: $100 Student Visa Fee Regulation and Campus Reaction

• We reported on October 27, 2003 that the DHS was scheduled to release a regulation to charge $100 for F,J,M visa application fee. News indicates that the regulation will be released this week. The reaction to this proposal in the academic community is mixed. Read on.

11/03/2003: International Student Enrollment Growth Slows in 2002/2003

• The International Institute of Education released a report on November 3, 2003 on the statistics of foreign students enrollment in the United States in 2002/2003. This report reveals that overall enrollment of foreign students has slowed down as affected by the slow economy and visa problems. This report gives the detailed statistics for leading countries that send the foreign students in the United States. For the press release, please click here.

11/03/2003: Minnesota Labor Certification Processing Times as of 11/03/03

• RIR=10/01/2003, Regular LC=Current, Faculty Special Handling=Current, Temporary LC=Current, Wow, Wow, Wow.............

10/30/2003: PERM Labor Certification Program: Anything Cooking?

• Launch of this reengineered new labor certification program has been pushed off so many times that no information should be taken firm any more. However, the AILA has reported that the PERM regulation may still be published by the end of the year. Surprisingly, though, the lead time is apparently expected to change from one month to four months. What does it mean? The launch of this program may be still six (6) months or so away, assuming that the DOL would indeed implement this schedule this time.
• Readers, until the regulation is actually released, do not act on this information. They can change it anytime.

10/30/2003: Launch of U.S.-VISIT Program at POE(Port of Entry) and Changing Environment for International Travel

• The DHS announced on October 28, 2003 that the U.S.-VISIT Program would be operational at the beginning of calendar year 2004 and placement of equipments at POEs would be in place by December 31, 2003. Once they implement this security program, the U.S. immigration inspection process at POE for entry and departure will look a lot different in terms of the right to privacy. The program will start with visitors with a nonimmigrant "visa" and these travellers will be subject to inkless fingerprinting and digital photographing. The U.S. citizens and Canadians will be exempted from this invasive process at least at the initial stage. The same process will take place on both entry and exit of the travellers.
• This will open a new chapter for international travellers, and the international travellers should familiarize themselves with the U.S.-VISIT inspection procedures. For the details, please visit the following sites:
  • Fact Sheet
  • Q&A
  • Picture
• It is amazing how genius the historian Toinbee was in predicting this change of the human race centuries back. Somewhere in the backbone, the human race should feel "chill" for their future.

10/29/2003: Warrantless Search of Transitting Foreign Mails Ruled Violation of International Law

• In a rare decision in this time and age, the State Department has announced that the provision of the Trade Act authorizing the U.S. Customs Service to search foreign mail transiting the United States without a warrant is not consistent with international law and the international obligations of the United States.This determination is to be transmitted to Congress and published in the Federal Register. A good teaching lesson to the Congress. For the announcement, please click here.
  

10/27/2003: Naturalization Continuous Residence Requirement and List of Excepted Research Institutions

• Section 316 of the Immigration and Nationality Act (Act) generally requires that in order for lawful permanent resident aliens to be eligible for naturalization, they must reside continuously within the United States for at least 5 years immediately preceding their application for naturalization. However, under certain circumstances resident aliens and their dependents who expect to be continuously absent from the United States for one year or more because of work at one of the American institutions of research recognized as such under the provisions of the Act may be given permission to be absent without interrupting the continuous residence requirement for naturalization.
• Today BCIS released a rule adding Rutgers University, Indiana University, and Harvard University to the list of American institutions of research, recognized for the
  purpose of preserving residence in the United States for naturalization eligibility. This rule also removes the dissolved Harvard Institute for International Development from the same list. For the full text of the rule, please click here.
• The researchers and scientiests should be aware of the list of these institutions. To view the entire list of such American institutions of research, please click here. Please note that this list is amended by the today's rule.

10/27/2003: DHS Proposes to Collect $100 Filing/Admission Fees for F,J,M Aliens

• The regulation which the DHS released today proposes to set the regular fee at $100. Section 641(e)(3) of IIRIRA provides that aliens applying for a J-1 visa as a
  participant in an exchange program sponsored by the Federal Government are exempt from the fee. Under section 641(e) of IIRIRA, as amended by section 110 of the Making Appropriations for the Government of the District of Columbia and Other Activities Chargeable in Whole or in Part Against the Revenues of Said District of Columbia for the Fiscal Year Ending September 30, 2001 and for Other Purposes, Pub. L. 106-553 dated December 21, 2000, aliens who are applying for a J-1 visa as an au pair, camp counselor, or participant in a summer work travel program are subject to a reduced fee of not more than $35. DHS is also proposing in this rule that dependent aliens (F-2, J-2, and M-2) are exempt from paying a fee in connection with that status.
• Aliens who are subject to the fee will pay the fee prior to being granted an F-1, F-3, J-1, M-1 or M-3 nonimmigrant visa (or, for aliens who are exempt from the visa requirement under section 212(d)(4) of the Act, prior to their admission to the United States). Similarly, aliens already in the United States who apply for a change of status to one of those classifications (for example, an alien admitted as an F-2 dependent or a B-2 visitor for pleasure who seeks to pursue full-time study as an F-1 college student) also will pay the fee prior to applying for the change of status. However, an alien who has already paid the $100 or $35 fee, prior to obtaining F, J, or M nonimmigrant status, is not required to pay the fee again at the time of applying for an extension of status in the same classification as an F, J or M nonimmigrant. DHS has sought to build in as much flexibility as possible for the payment of the fee, recognizing that aliens abroad will be required to pay the fee prior to seeking an F, J or M visa at a U.S. embassy or consulate.
• DHS proposes two options for aliens to pay the fee:
  (1) The alien may pay the fee by mail, by submitting Form I-901, Fee Remittance for Certain F, M, and J Nonimmigrants, together with a check or money order drawn on a U.S. bank and payable in U.S. dollars to ``I-901 Student/Exchange Visitor Processing Fee;'' or
  (2) The alien may submit the fee electronically, by completing Form I-901 through the Internet and using a credit card.
  These options are similar to the usual means that any student or exchange visitor abroad would use to pay fees and expenses to the school or exchange program. The requirement that a check or money order be drawn on an U.S. bank does not necessarily mean that the student living abroad must approach an U.S. bank to make a payment. As provided in 8 CFR 103.7(a)(1), an application fee submitted from outside the U.S. ``may be made by bank international money order or foreign draft drawn on a financial institution in the United States'' and payable in U.S. currency. Many foreign banks are able to issue checks or money orders drawn on a U.S. bank. Accordingly, students may obtain checks from banks chartered or operated in the U.S., from foreign subsidiaries of U.S. banks, or from foreign banks that have an arrangement with a
  U.S. bank to issue a check, money order, or foreign draft that is drawn on a U.S. bank.
• DHS will issue a paper receipt to the alien in each case acknowledging the payment. As discussed further below in response to the public comments on the December 21, 1999 proposed rule, an alien who submits the fee electronically will be able to print out an immediate electronic receipt. Finally, DHS intends to incorporate the fee payment information electronically into SEVIS, which will then be passed in a data share arrangement to the Department of State so that a consular officer abroad will be able to confirm that the fee has been paid at the time the alien applies for an F, J, or M visa. To accommodate multiple options for payment, DHS intends to continue to consider alternate means for payment where available. Such options may include other companies that have products and services that facilitate fee payment and fee receipt abroad or collection of the fee payment by another federal agency. For the full text of the regulation, please click here.

10/26/2003: Reminder of November 1, Saturday, Immigration Lottery Starting Date

• The starting date of DV-2005 Immigration Lottery is fast approaching. The registration must be made electronically. We have set up the Online Registration Link above which will function beginning from November 1, 2003. Before people start the online registration, they should read the instruction very carefully and meticulously follow the instructions.

10/26/2003: New DHS Deputy Secretary Nominee James M. Loy

• The President intends to nominate James M. Loy, of Virginia, to be Deputy Secretary of Homeland Security, and intends to designate him Acting Deputy Secretary of Homeland Security. The Director of Bureau of Citizenship and Immigration Services reports directly to the Deputy Secretary. The current Deputy Secretary will return to the U.S. Department of Navy and has remained in the current position pending the President's designation of the new Deputy Secretary. Mr. Loy currently serves as the Administrator of Transportation Security Administration (TSA).

10/26/2003: AILA's Washington Update of 10/24/2003

• The Washington Update includes report on legislative actions such as DREAM Act which the Senate Judiciary Committee passed a few days ago.

10/26/2003: DHS Under Fire for Use of Consultants in Immigration Service Job Competition

• Report indicates that the DHS' announced policy to open the immigration information officers and contact representative jobs to the private contractors faces a serious challenge by some Senators. For the full report, please click here.

10/22/2003: USCIS Fact Sheet of H-1B Received/Approved Statistics for FY 2003 (09/30/2003)

10/17/2003: Manila Nonimmigrant Visa Appointment Availability and Processing Times as of 10/17/2003

• Next available appointment (estimated): December 5, 2003*
  Next available medical/bereavement emergency ** appointment: October 24, 2003
  Processing time for visa release after appointments: 4 working days
  Processing time for visa release of drop-box cases: 10 working days
• For other details, please visit the consulate site.

10/17/2003: Temporary Suspension of IMG J-1 Waiver Program of HHS

• AILA has reported that the HHS temporarily suspended J-1 Waiver Program for International Medical Graduates beginning from October 1, 2003. No one knows at this time when the HHS will resume taking applications. HHS sponsorship of IMG J-1 Waiver for clinical practice had been terminated for years until they revived the sponsorship this year. The news of temporary suspension is certainly unfortunate news for the IMGs.

10/17/2003: State Department Prediction of Immigrant Visa Number Movement for the Next One Year

• According to the AILA, the State Department predicts that the family-based immigrant visa categories are expected to move in the same pace as the last year (10/01/2002-09/30/2003). For the employment-based immigrant categories, it predicts that there will be no retrogression. However, the unskilled worker category in EB-3 can experience retrogression depending on the rate of increase of cases in this category for the next one year. It predicts that even if retrogression takes place for this category, it is not likely that it will happen before the next Summer. One small good news!

10/17/2003: GAO Released HRIFA Immigration Benefits Processing Statistics

• Today GAO released a report giving details of the status of processing of immigration applications under the Haitian Refugee Immigration Fairness Act (HRIFA). The eligible Haitians applies the benefits with the USCIS if they are not in removal proceeding and those in removal proceedings apply with the immigration court under EOIA of the U.S. Department of Justice. For the details, please click here.

10/17/2003: "One Face at the Border" Move of CBP Raises Concern in the Congress

• As reported earlier, the DHS Bureau of Customs and Border Protection is pushing to turn all the inspectors at the port of entry into the officers who will perform the three previously separate functions of customs, agriculatural, and immigration inspections. Currently, even though these three functions have been merged into one Bureau of CBP, each of these inspections have been continuously undertaken by each officer performing one single function. This web site raised from the perspective of immigration function, but the report indicates that the voice of concern was loudly heard in the Congressional committee, including AFL-CIO. For the full report, please click here.

10/15/2003: President Signed Into Law Religious Worker Special Immigration Extension for Five Years

• The White House announced that the President signed today this bill (H.R. 2152) into law. For the annoucement, please click here.
• Even if the President signed into law on October 15, 2003, the law provides that effective date is October 1, 2003. Accordingly, all the pending I-360 cases for religious workers of non-minister categories are expected to be continuously adjudicated by the USCIS. Congratulations!!
• Here is the full text:
  • An Act To amend the Immigration and Nationality Act to extend for an additional 5 years the special immigrant religious worker program.
  • Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
  • SECTION 1. EXTENSION OF SPECIAL IMMIGRANT RELIGIOUS WORKER PROGRAM.: Section 101(a)(27)(C)(ii) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(27)(C)(ii)) is amended by striking `2003,' each place it appears and inserting `2008,'.
  • SEC. 2. EFFECTIVE DATE. The amendment made by section 1 shall take effect on October 1, 2003.
• What happens if I-485 or immigrant visa is denied on the ground of the sunset of the law on September 30, 2003? People may be able to file a motion to reopen based on this new law that has extended the law "retroactively" to October 1, 2003.
  

10/15/2003: Mounting BCIS Immigration Benefits Cases Backlogs

• According to the BCIS Statistical report of September 30, 2003, as of the end of August 2003, the pending cases recorded 36% increase as compared to the record for the same period in 2002. In the August 2003 report, it was 31%. This is particularly puzzling considering the fact that the new applications/petitions increased only 2% during the period. For the Immigration Benefits statistical report, please click here. For other immigration functions of the DHS, please click here.

10/14/2003: No Annual USCIS File Audit This Year

• The USCIS disclosed to the AILA that unlike the practice in the previous years, the USCIS will not conduct the annual file audit this year. It is thus unlikely that processing of cases will be frozen for the file audit in October or later this year. It is a good news for the immigrant community.

10/13/2003: Minnesota State Employees Strike Abated

• The State offered a deal and the Union reportedly accepted in the negotion which was made over the weekend. The members of the Union are likely to accept the contract terms and the strike will be abated. Consequently, the Alien Labor Certification Unit of the Minnesota Department of Employment and Economic Development will remain undisrupted. This is a big relief for those who have been waiting for the SWA decision and who are about to file new cases.

10/10/2003: Visa Bulletin of November 2003

10/10/2003: AILA's Washington Update of 10/10/2003

10/09/2003: Ciudad Juarez's Policy on Attorney's Accompanying Clients to Scheduled Interviews

• Each visa post takes different policies on this. Some visa posts do not allow accompanying legal counsel to make any statement at the visa interview. However, CJ policy allows participation of the accompanying legal counsel in the interview process. For the details, please click here.

10/09/2003: Family-Based Immigration Filing in Progress

• AILA has reported that the BCIS has commenced centralized processing of the family-based immigration petitions/applications in some local districts and was planning to complete the centralized processing within 90 days covering all states. The "direct filing" will not be available, at least for now, until the Federal Register notice is published by the BCIS, but in some local district offices, they do not process such petition/applications other than forwarding the filings which are made in the local district offices. In such districts, the EAD and Advance Parole applications are no longer adjudicated at the local level. The types of cases include FB-485, I-765, I-131, I-601.
• According to the informed sources, effective today, the local CIS office in Minnesota ceased to issue EAD applications at the time of FB-485 filing and they are no longer processing Advance Parole applications pending FB-485 adjudication. All the cases which they receive at the local offices are forwarded to the National Benefits Center in Missouri. For the family-based immigration filers in Minnesota, the hey-days are forever gone when it comes to getting EAD at the time of filing FB-485. No one knows how long it will take for the National Benefits Center to issue EAD or Advance Parole upon receiving cases from the local district offices. It is obvious that EAD or Advance Parole may not be issued for a prolonged period of time from the lesson people learned from other Service Centers. OUCH!!!!!!!!!!.........

10/09/2003: Nonimmigrant Visa Issuance Fee Changes in U.S. Visa Posts in India

• The U.S. visa posts announces that effective Saturday, October 11, 2003 the consular sections at the United States Embassy and Consulates General in India will no longer collect issuance fees for student, exchange visitor, transit and crewman visas issued to Indian nationals. Fees for issuing other visitor and business visas will drop from $75.00 per visa to $50.00 per visa. At the same time an adjustment to the consular exchange rate used will further reduce all rupee denominated costs of applying for visas and passports at the US Embassy and Consulates General. It is important to note, however, that the nonrefundable $100.00 non-immigrant visa application fee is not being eliminated and must still be paid for ALL visa applications that currently require the payment of an application fee, including applications for student, exchange visitor, transit and crewman visas and most other nonimmigrant visa types. For other details, please click here.

10/04/2003: Potential Impact of GAO Report on USCIS Management of AC-21 H-1B Portability Program

• We reported on October 2, 2003, day before yesterday, that GAO released a report to the Congress which was critical about the U.S. CIS' liberal interpretation on behalf of the laid-off H-1B employees in applying the AC-21 portability provision as well as its failure to release AC-21 regulation leaving a number of issues open to interpretation by the employers without a clear guidance. We fear that this report may have some negative impact on the USCIS management of AC-21 H-1B portability issues in the future and people may have to keep eye on the potential change of practice and policy, more likely taking a conservative position and less tolerating than it used to be. In fact, there was an unconfirmed news, before this GAO report was released, that the USCIS had withdrawn the previous "zero tolerance policy," but the GAO report may have a chilling effect on the recent zero tolerance policy withdrawal, if any. Please stay tuned.

10/03/2003: Congress Passed Today Religious Worker Immigration Extension Bill for Five Years

• AILA has reported that the Senate passed this afternoon the bill which the House already passed. Accordingly, once this bill is signed by the President, it will become a law. Very good news for religious worker immigrants!
• The full text of the bill is as follows:
• AN ACT
  To amend the Immigration and Nationality Act to extend for an additional 5 years the special immigrant religious worker program.
• Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
• SECTION 1. EXTENSION OF SPECIAL IMMIGRANT RELIGIOUS WORKER PROGRAM.:Section 101(a)(27)(C)(ii) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(27)(C)(ii)) is amended by striking `2003,' each place it appears and inserting `2008,'.
• SEC. 2. EFFECTIVE DATE.:The amendment made by section 1 shall take effect on October 1, 2003.
  Passed the House of Representatives September 17, 2003.

10/02/2003: Minnesota Employees Potential Strike Update

• Even though the employees unions rejected the State offer and can initiate the striking process by serving 10-day notice, the news indicates that the unions and the State have agreed to return to another round of talks next Thursday and Friday. This is a good news in that the strike cannot happen at least for the next 17 or more days and our State labor certification team will remain in operation without any disruption for a while. For the full news, please click here.

10/02/2003: Minnesota State Labor Certification Processing Times 10/01/03

• RIR=08/05/03, Regular=09/25/03, Faculty Special Handling=C, Temporation Labor Certification=C. Salute to MDEED ALC Team!!

10/02/2003: FY 2004 (10/01/03 - 09/30/04) USCIS Immigration Services Functions Budget Appropriations

• The President signed the Appropriation Bill for DHS. According to the Fact Sheet, USCIS appropriation is as follows:
• The CIS budget includes $1.8 billion, a 9% increase ($143 million) over FY 2003 to support further improvements in application processing as well as the processing of projected volume. The $1.8 billion is comprised of $236 million in appropriated funding and approximately $1.6 billion in projected fee revenues.
  The CIS budget supports the President's five-year, $500 million initiative, begun in FY 2002, to attain a universal six-month processing time standard for all immigration benefit applications, and provide quality service to all legal immigrants, citizens, businesses and other CIS customers. The third $100 million installment of the President's five-year plan consists of $20 million from revenues generated by the Premium Processing Service fee and $80 million in appropriated funds.
  

10/02/2003: Promising News for Religious Worker Immigration Waiters

• The religious worker special immigration law sunset on September 30, 2003 with a number of unadjudicated cases behind. The USCIS has yet to announce its policy on these unadjudicated cases, but according to the AILA, the Senate Judiciary Committee today passed a legislative bill extending the law for five years and the bill may be acted upon by the floor of the Senate soon. It is hoped that the USCIS decides to hold the unadjudicated in abeyance of the enactment of the extension legislation.

10/02/2003: 52-Page GAO Report Critical of CIS H-1B Program Management and Failure of Tracking System

• The Government Accounting Office has released its in-depth survey, investigation, and assessment of the impact of unemployed H-1B workers on the U.S. labor market. The report is particularly critical of DHS' failure to enact AC 21 regulation leading to ambiguity and confusing the H-1B employers and DHS' failure in proper tracking system. The report indicates that the finalization of AC 21 regulation has been delayed for over two years because of internal disagreements on issues. For the full report, please click here.

10/01/2003: DOJ Executive Office for Immigration Review (EOIR) Notifies CPC Full Asylum Beneficiarys for 2003

• Before the Immigration and Naturalization Service was abolished, the Asylum function was handled by the Department of Justice alone. As the immigration benefits functions were merged into the Department of Homeland Security, the asylum is granted by both DOJ and DHS. In DOJ, the immigration judges and board of immigration appeals under Executive Office for Immigration Review grant the asylum and in DHS, U.S. CIS also grants the aslym.
• One of the grounds for asylum is so-called Coercive Population Control victims in foreign countries who were forced to abort a pregnancy or undergo involuntary sterilization, or persecuted for failure to undergo such a procedure or for other resistance to a coercive population control program. The annual quota is 1,000.
• On September 30, 2003, the EOIR released and notified CPC full asylum beneficiary for the FY 2003. For this announcement, please click here.
• Those who consider themselves as the victims of such CPC Program in their homelands should read the Fact Sheet of this asylum opportunity to learn the eligibility, procedures and other details.

10/01/2003: Effective 10/31/2003, New N-600 and N-600K Forms

• BCIS has released a notice that it will use newly designed N-600 (Application for certificate of citizenship) and N-600K (Application for Citizenship and Issuance of Certificate) and existing forms will be withdrawn effective the end of October. For the federal register notice, please click here.

09/30/2003: How Visa Functions Will Be Shared Between the State Department and Homeland Security Department?

• Section 428 of the Homeland Security Act assigned the visa functions to the two Departments: The State Department and the Homeland Security Department. This has left ambiguity when it comes to details of authority in a given function of visa handling. Now, a memorandum of understanding (MOU) has been issued clarifying how and in what manner the visa functions will be shared between the two department. Please read the following materials:
  • Announcement with explanation of outline
  • Memorandum of Understanding
  • Section 428 of the Homeland Security Act.

09/29/2003: State Employees Closer to Strike

• Report indicates that the State employees unions rejected the State offer on salary adjustment issue and the State government is getting ready to cope with the state business during the strike. Under the law, the unions should give a 10-day notice before the union members walk out for the strike, according to the news. For the news, please click here.

09/29/2003: Who's Who in USCIS: Announcement of Permanent Management Appointments

• USCIS has released the names of permanent management officials. Please get to know them. Here it is.

09/27/2003: DOL Chicago Region Lost One of the Most Dedicated Certifying Officers in the Nation

• During the last weekend, the Chicago Region of DOL sadly lost the most dedicated certifying officer in the nation, Ms. Sarah Carroll. This web site wishes to share condolescence with the family, the members of the Region, and the immigrant community. She has served the U.S. Department of Labor helping thousands and thousands of immigrants as well as the businesses over the years of her long career at the Chicago Region. Her dedication brought the Region into one of the best Regions in the nation when it comes to the processing times.

09/27/2003: State Employees Unions Decision Tomorrow May Affect the State Labor Certification Function in Minnesota

• The officers in the Alien Labor Certification Unit of Minnesota Department of Employment and Economic Development (MDEED) are members of the two unions of the state employees. Currently, the unions and the State of Minnesota face confrontation on the issue of the pay raise of the state employees. Tomorrow, Monday, the unions are scheduled to make decision and depending on the outcome of the decision, the employees can go into a strike. If this happens, unless the officers cross the picket line, the alien labor certification business in the State of Minnesota can be disrupted until the confrontation is over. The alien labor certification processing in the State of Minnesota is known to be one of the best in the nation. Please stay tuned to this web site for the development of this news.

09/27/2003: Inspections Merger Elicits Criticism

• On September 10, 2003, we reported that DHS will initiate one officer to perform the tri-inspections at the port of entry: Immigration inspection, Customs inspection, and Agricultural inspection. We opined that at the initial stage, there would arise some problems because of the insufficient knowledge these officers would be equipped with the three functions which need very specialized expertise and experience in the three different fields of laws. The Washington Times reports that this merger policy is already eliciting criticism from the union representing government inspectors and other communities.

09/26/2003: Reminders for October 1 Changes

• October 1, 2003 marks a turning point for important changes in several immigration proceedings. The following are the reminders of changes which we reported earlier:
  • Sunset of $1,000 Surcharge for H-1B Petition, Reduction of Annual Cap to 65,000, and Sunset of H-1B Dependent Employer Provision in H-1B: H-1B petitions which are received by the Service Centers with a check of wrong amount ($1,130) will be rejected. It is anticipated that the annual cap will reach very early and people should be prepared to file Premium Processing Request at some point of time. This will in turn accelerate the exhaution of the cap numbers earlier. Please revisit our posting on 09/05/03.
  • Sunset of Special immigration for Religious Workers Other Than Minister Occupation: The Congress has yet to pass the extension bills and it is unlikely that the bills will pass and the President will sign into law before October 1, 2003. It is thus imperative that the USCIS has to adopt a policy of holding the left-over cases in abeyance of enactment of extension legislation. Otherwise, all the left-over cases will face denial. The previous experiences indicate that the USCIS may release such policy before next Wednesday, October 1, but people should keep eye on this developing news next Monday and Tuesday.
  • Sunset of Some Immigration Forms: The forms I-102, I-129S, I-140, I-526, I-824, I-829, N-336, and N-480 of certain dates will become invalid and be rejected. People should double check the versions of these forms before they file these forms. Please revisit our posting on 09/01/03.
  • Machine-Readable Passport Requirement for Five Visa Waiver Countries: This requirement has been postponed for 21 visa waiver countries until October 26, 2004. But the nationals of Andorra, Brunei, Lichtenstein, Luxembourg, and Slovenia must carry the Machine-Readable Passport to enter the U.S. The national of Belgium has been under such rule since May 15, 2003. Thus out of 27 countries of visa waiver program, the nationals of these six countries must carry a machine-readable passport from October 1, 2003.
• October 1, 2003 also marks a beginning of new fiscal year for the federal government, including BCIS/DHS. There are some indications that I-140 and I-485 cases at the Service Centers may pick up the speed from the date. But unfortunately, the agency may soon go through annual audit, which may off-set the processing times for the agency. Please stay tuned!

09/26/2003: Moscow Visa Post Notice for Nonimmigrant Travellers

• The visa post advises that due to heavy volume of nonimmigrant visa applications, people should anticipate a delay and apply for the visa four to six weeks ahead of departure date. For the notice, please click here.

09/26/2003: Border Country Visa Posts Processing of Nonimmigrant Visa Applications for Third Country Nationals (TCN)

• The nonimmigrant visa applications at the border country visa posts (Canada and Mexico) were one time restricted to a few limited applicants. However, these posts have reopened their doors to most of the TCNs except the nationals of 7 terrorism sponsor countries. Details vary per each visa post, but most of these visa posts adopt a similar practice as the post in Ciudad Juarez, Mexico.
• Currently, the visa post in Ciudad Juarez accepts the TCN nonimmigrant visa applications as follows:
  • Renewals of F, H, L, J, M, I, O, P, R visas provided the initial visa was issued in the applicant’s home country or at one of the border posts in the past few years.
  • Applications for change of status visas, for example, F1 to H1B, F1 to J, etc, provided the applicant has the original change of status notice from DHS.
  • Those applicants with a B visa issued in their home country that includes an annotation indicating they are entering the US with an intent to change visa status, such as “prospective student.”
• The post does not accept the following TCN cases:
  • Applicants who entered the US with an unannotated B visa issued in their home country and who changed status to F, J, H1B, etc.
  • TCN E1 and E2 cases, including renewals.
• Please remember that violators of nonimmigrant status are not eligible and termination of automatic visa revalidation remains in effect. Accordingly, the only TCNs in the U.S. who are eligible in this border visa post are those who have a very clean record in the U.S. and has a valid nonimmigrant visa. Possession of a valid nonimmigrant I-94 is not, repeat not, enough if they do not have a valid visa as they will not be able to return to the U.S. once the visa application is denied by the visa post. What this means is that the best candidates for the TCN application in this post are those who already have a valid visa for the same category of nonimmigrant visa classification and apply for renewal of F,H,L,J,M,I,O,P, and R visas. For change of nonimmigrant visa category, the applicant must take a risk unless he/she retains a "valid" nonimmigrant status. For instance, if a F-1 applied for change of nonimmigrant status to H-1B and obtained approval but has yet to join the H-1B employer and still maintains a D/S status by keeping attending school, such applicant will be able to return to the U.S. using F-1 visa even if the H-1B visa is denied by the visa post in Ciudad Juarez. When they return on a F-1 status, they will not be able to join the H-1B employer, but the approved H-1B petition remains valid and they will be able to apply for the H-1B visa at the visa post in their home country. For the details, please visit the consulate site.
• Caveat: Departure from the U.S. is a serious decision and people should not rely on this posting. They should seek legal counsel and act on their legal advice. This posting is not a legal advice and we will not be responsible for the consequences of reliance on this posting as a legal advice.

09/26/2003: Mystery of Processing Times Report

• We often encounter callers who express anger over alleged mistreatment of his/her case by the Service Centers. Typically, they argue that according to the Service Center processing times report, they are processing "certain date" of cases but the caller filed their cases much earlier. Usually, such callers misunderstand that the processing and adjudication of cases at the Service Centers are produced in a matter of production beltline in the manufacturing plant. The following explanation of one Service Center should help the immigrant community to understand the reality of the work process within the Service Center buildings: "Some Officers are working on dates that are ahead of published times, but not every officer is working on same date. SC must report the oldest dates of each type of application being worked so even if they are working ahead, it may not be reflected by the current processing time list if there is even one case from the older date pending." When the SC adjudicates older cases to reduce the backlog in the processing times report, they have to keep adjudicating cases which they had received in much later dates because the SC cannot let new ones fall further behind.
• The foregoing should answer the common mystery why the later cases of other colleagues receive decision earlier than his or her's. People should understand the limit of the Processing Times Reports of the Service Centers when it comes to understanding of waiting time for a specific individual case. Again, it is not a beltline in an automated production process in a manufacturing facility.

09/26/2003: Visa Screen Certificate Requirement for EB-485 Filing for Allied Health Care Workers

• As we reported earlier, on September 22, 2003, William Yates, Associate Director of Operations, CIS/DHS, issued a memorandum on the allied health care worker immigrant and nonimmigrant procedures based on the final regulation which had been enacted earlier this year. When it comes to the nonimmigrant proceedings, this memorandum more or less recites the provisions in the final regulation, but in the "immigrant" proceedings, the memorandum adds its interpretation of the regulation which affects the immigration procedures for allied health care workers. Until this memorandum was released, the Service Centers of USCIS had adopted a policy that the visa screen certificate was not mandatorily required "at the time of filing." Accordingly, the allied health care workers who met the schedule A eligibility were able to submit concurrent filing of I-140 and EB-485 without the visa screen certificate. Under the memorandum, the qualified allied health care workers will be able to file continuously I-140 without the visa screen certificate, but they will not be allowed to file EB-485 without the visa screen certificate. The memorandum provides that if the alien is adjusting status, all eligibility requirement must be met at the time of FILING the application for adjustment of status. Therefore, it continues to provides, a health care worker in one of the affected occupations must submit evidence of certification at the time adjustment of status is filed. Obviously, if such EB-485 is submitted without the certification, it will be denied even if such certification is submitted post facto. To reread the memorandum, please click here.
• This policy and practice change has no effect on the Department of State practice which continuously allow such allied health care workers to file an immigrant visa application without the visa screen certificate and the visa posts issue the immigrant visas inasmuch as the health care workers submit the visa screen certificate at the interview. It is unclear at this point whether the Department of State would follow the suite of the USCIS policy change. However, assuming that the EB-485 proceeding is analogous to the immigrant visa application proceeding, this USCIS policy change creates an imbalance of the legal procedures involving immigration of allied health care workers between the two government agencies and raises the issue of unfairness to the health care workers who happen to apply for an immigrant status in the United States through the USCIS. The statute cannot be interpreted differently by the two different agencies. It is interesting to see how the court will react in the event that this issue is brought before the federal court. Hmmmmmm......................................

09/25/2003: AILA's Washington Update 09/25/03

09/25/2003: Social Security Administration Finalizes Social Security Number Issuance Rule

09/25/2003: Machine-Readable Passport Requirement Postponed to 10/26/2004 for 21 Countries

• The State Department announced that this requirement will be postponed until October 26, 2004 for 21 countries out of 27 Visa Waiver Countries. For the announcement, please click here. For other details, please click here.

09/25/2003: Change of ID Documents Requirement for Account Opening/Transactions for Aliens

• Today, the U.S. Department of Treasury released a rule that affects acceptability of consular issued ID documents for financial transactions by the aliens. On May 9, 2003, the Department of the Treasury (Treasury), through the Financial Crimes Enforcement Network (FinCEN), together with the federal functional regulators, jointly issued final rules implementing section 326 of the Act.\1\ The final rules require banks, securities broker-dealers, mutual funds, and futures commission merchants and introducing brokers to establish reasonable procedures for the identification and verification of new accountholders. These rules became effective on June 9, 2003, although financial institutions have until October 1, 2003 to come into compliance.
• On July 1, 2003, Treasury published a Notice of Inquiry seeking additional comment on two discrete aspects of the final rules: (i) Whether and under what circumstances financial institutions should be equired to retain photocopies of identification documents relied on to verify customer identity; and (ii) whether there are situations when the regulations should preclude reliance on certain forms of foreign government-issued identification to verify customer identity.
• The rule which is published today answers to this questions as follows: (1) Treasury remains persuaded, as it was at the conclusion of the rulemaking process, that requiring photocopies of identification documents is not an appropriate requirement to impose. While individual financial institutions may well determine that it is prudent to photocopy identification documents in some instances, an across-the-board requirement is inconsistent with the risk-based approach of the final rules and is not warranted. (2) The divergence of opinion concerning the relative security of consular identification cards demonstrates the difficulties associated with drafting a rule thatwould purport to specify ``unacceptable'' documents. And, given the wide array of identity documents available, the security and reliability of which is constantly changing, it makes little sense from a regulatory perspective to specify individual types of documents that cannot be used within the regulation itself. Any such list would inevitably be quickly out of date and may provide financial institutions with an unwarranted sense of security about documents that are not prohibited. Treasury is committed to protecting the financial system from abuse by those seeking to finance terrorism or commit financial crimes. This commitment includes providing financial
  institutions with information relating to the security and reliability of identification cards. Treasury will use appropriate methods, both formal and informal, to ensure that such information is collected and shared with the financial community to assist them in verifying the identity of their customers.
• Treasury expects all financial institutions covered by the customer identification regulations to have their customer identification program drafted and approved by October 1, 2003. For the full text, please click here.
  

09/24/2003: USCIS Memorandum Updating Adjudicator's Field Manual on Foreign Health Care Workers

• USCIS issued a memorandum to update theAdjudicator's Field Manuaal AD 03-31 to reflect the final regulation on Certification of Foreign Health Care Workers. For the full text, please click here.

09/23/2003: U.S. Issued 20,000 Immigrant Visas to Cubans in FY 2003

• Under the auspices of the Migration Accords with Cuba, the United States issued more than 20,000 immigrant visas to Cuban nationals in Fiscal Year 2003, according to a September 22 press statement issued by the State Department. However, it is one thing that a visa is issued by the U.S. and it is the other whether the Cuban government will issue the exit permit. For the details, please click here.

09/20/2003: Launch Schedule of PERM - Unknown Territory

• The permanent labor certification reengineering "programming" was initiated years back under the DOL five-year strategic plan. However, at this point no one is excited about this program any more for a number of reasons. Firstly, the release of the proposed PERM regulation indicated that it was not necessarily a juicy program for the employers as well as the aliens because the proposed program contrained so many poisonous elements in it. It induced a flood of negative comments from the U.S. employers and immigration communties. In response to the pressure, reportedly the DOL softened somewhat the hardline approach and the immigrant community was expected to see somewhat lenient standards and requirements once the final regulation would be released. But so far, no one knows the details. The hardline approach in the proposed regulation has induced employers to rush filing of the labor certification applications, mostly RIR, to ensure that they would not deal with the tough PERM program. Secondly, the launch of the PERM has been delayed for some known reasons and for some unknown reasons. When the five-year plan was released, everyone thought that the program would be launched within the first Quarter (Jan-Mar) of this calendar year. However, the schedule was adjusted, first by the flood of negative comments which the DOL received, and later by the change of the leadership within the DOL. One time, the latest news "was" that the final regulation would be released in the "late fall" and the actual launch of the new labor certification system will see one month from the date of the release of the final regulation. Thus everyone speculated that the regulation would be released in November and the new labor certification program will be launched in December or January 2004 at the latest. You guessed it! At this point, there is no fixed schedule, according to the available sources of information. No one knows the exact reasons.
• However, it appears that the DOL continues the pilot program in the name of "Centralized Processing Group (CPG)." They formed this group and some of the ailing cases at the state agencies (SWAs) in the heavily backlogged states have been transferred to this group for adjudication. The outcome of this pilot program has not been made available to the public. However, without the final PERM regulation, the role of this group may be very limited: Centralization of adjudication rather than the reengineered labor certification program. People will have to navigate the unknown territory for a while, it appears.

09/19/2003: Extended Closing of Federal Agencies in Washington Area Today and Religious Worker Bills Delay

• Special immigration law for religious workers other than "minister" category will sunset at the end of September. The USCIS and the State Department have thus issued special policies to expedite the pending cases. However, there are a large number of pending cases that will remain unadjudicated. These pending cases will face denial unless two things happen in the next few days. The agencies must adopt a policy that until the Congress passes the extension bill, they will keep these cases alive even after October 1. Most importantly, the Congress must pass the extension bill as soon as possible.
• In fact, the House has already passed H.R. 2152 that will extend the religious worker special immigration laws for the next five years and the Senate was also considering S.1580 to extend the sunsetting law. The immigrant community was hoping that these legislative bills would pass the Congress before the end of September, but the closing of Congress as affected by the hurricane causes a delay in the Congressional action. Please stay tuned to this web site for the development of this news next week when the Congress returns to the Hill.

09/17/2003: Federal Agencies in Washington Area to Close Thursday, 09/18/03

• As the Hurricane land in the East Coast, the Office of Personnel Management announced this evening that the federal agencies in the Washington D.C. Area would remain closed tomorrow, Thursday, September 18, 2003. For the news, please click here.
• The AILA is also located in D.C. and has announced that AILA will remain closed on Thursday as well.

09/16/2003: Alfonso Aguilar Appointed Chief of Office of Citizenship Within USCIS

• The Director of USCIS announced that Mr. Alfonso Aguilar has been appointed as the Chief of the Office of Citizenship. For the details, please click here.

09/16/2003: USCIS Memorandum: Sunset of Additional $1,000 Filing Fee Imposed by American Competitiveness and Workforce Improvement Act (ACWIA) and Return to 65,000 Annual Limit on H-1B Petition Approvals

09/15/2003: Sunset of $1,000 Fee and H-1B Filing Strategies

• As we advised earlier, the requirement of $1,000 sunsets on September 30, 2003. The H-1B filing fee will return to $130 from October 1, 2003. The USCIS advises that if they receive the H-1B filing with only one check of $1130, the filing will be rejected from October 1, but if two separate checks ($1,000 and $130) are received, they will take $130 check and return the $1,000 check. Regardless of fee changes, people should keep filing I-129W form. Remember that I-129W form is required even after October 1, 2003.
• We also warned the people that the H-1B number will drop from October 1, 2003 from 195,000 to 65,000 per year. One good news and one bad news, one may say!
• Now what to do? First, people should understand which cases are subject to the annual cap. Those cases which are not subject to the cap can take time and do not need rush in filing, even though they may face fee increase again if the Congress pass a new law resuming $1,000 payment. The cases which are subject to the annual cap include change of status from other nonimmigrant status to H-1B. Accordingly, change of employer and filing of a new H-1B petition with the new employer (so-called "transfer") is not subject to the annual cap. Extension or amendment of the H-1B status is also not subject to the annual cap. Additionally, the H-1B petition filed by (1) Institutions of higher education or (2) their related or affiliated nonprofit entity, or (3) nonprofit or government research organization are not subject to the annual cap. However, if one changes the H-1B job from these employers to another employer who is subject to the annual cap, his/her case will be subject to the annual cap.
• Because of the reduction of filing fees and shrinkage of the cap numbers, it is anticipated that the H-1B cap case filing will be substantially decreased for the remainder of September, and there will be a huge surge of the H-1B cap case filing during October and immediately thereafter. This will lead to reaching of the cap number fairly quickly. It is thus imperative that in order to save the filing fees as well as not to face running out of the annual limit, those who need to file a H-1B petition which will be subject to the annual cap should file their cases early in October.

09/15/2003: State Department Proposed Rules on Accredition Procedures & Record Preservation for Hague Adoption Convention

• The Department of State (the Department) is proposing regulations to implement the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (the Convention) and the Intercountry Adoption Act of 2000 (the IAA). The Convention and the IAA require that adoption service providers be
  accredited or approved to provide adoption services for intercountry adoptions involving two countries party to the Convention. These proposed rules establish procedures that the Department will use to designate accrediting entities for the purpose of evaluating agencies and persons and determining if they may be granted accreditation or approval. These proposed rules also contain procedures and standards to accredit agencies and approve persons to provide adoption services in
  Convention cases. These rules will ensure that, when the Convention enters into force for the United States, there will be accredited agencies and approved persons to provide adoption services for Convention adoptions.
• However, implementation of the Hague Convention will take take place the following are completed: (1) The Department, after publication of these proposed regulations open to notice and comment, publishes the final regulations; (2) The Department identifies and retains accrediting entities; (3) The designated accrediting entities begin the process of evaluating those agencies and persons that applied by the ``transitional application date'' (see Section C, Subpart D--Application Procedures for Accreditation and Approval in this Preamble); (4) The Department will set and announce a ``deadline for initial accreditation and approval'' depending upon a number of factors, including the number of agencies and persons that apply by the transitional application date and the time the accrediting entities require to evaluate these first applicants for accreditation and approval; (5) The accrediting entities will send to the Department a list of agencies and persons that have been accredited or approved by the deadline for initial accreditation and approval; (6) The Department will deposit the instrument of ratification and identify those agencies and persons that are accredited or approved to provide adoption services for Convention adoptions. The Convention does not come into force for the United States until three to four months after the instrument of ratification is deposited. For the full text of the proposed rule, please click here. For the proposed rule on the record preservation as required under the Hague Convention, please click here.
  

09/14/2003: Manila American Consulate Nonimmigrant Visa Appointment Availability and Processing Times as of 09/12/03

09/13/2003: U.S. Officials Debate Ending Visa Waiver Program

According to the Miami Herald report, concern over thwarting another terrorist assault has sparked debate within the Bush administration about abolishing a program allowing foreign visitors from 27 European and Asian nations to travel to the United States without a visa. Reportedly, they are weighing security fears vs. damage to tourism. For the full report, please click here.


09/12/2003: "Patriot II" Push of Bush Faces Cold Shrug in Congress

• Congress must be saying "Enough is Enough!" Please read for the details.

09/12/2003: USCIS 245(i) Primer

• The USCIS Office of Business Liaison republished its 245(i) primer which was intially published earlier in November 2002. Considering the hostile immigration environment and potential violation of immigration laws, it may help immigrants to be knowledgible about the 245(i) laws. Here it is.

09/12/2003: 1,143 Immigration Information Officer Jobs To Be Up for Grab by Private Contractors

• We reported in August that the USCIS Director Eduardo Aguirre was planning to open these government jobs to private contractors. Despite the recent controversy involving problems of the services by contractors at NCSC for Service Center inquiries, reportedly the USCIS has decided to open "all" current information officer and contact representive jobs to private contractor bid for the job. Considering the fact that these are the people who make contact with the immigration customers live either on the phone and in person at the field offices, the controversy lingers on. For the full text of this news, please click here.

09/11/2003: Sunset of Religious Worker Special Immigration Statute and State Department Cable to Visa Posts

• USCIS has already issued a memorandum to expedite these cases so that I-485 is adjudicated before the end of September. Now State Department has issued a cable to alert the visa posts the exigent circumstances and to accomodate the last minute immigrant visa applications. The following is a part of the cable:
• "The provisions under which SR visas are issued specify that these applicants must enter (repeat, enter) the U.S.before October 1, 2003. Therefore, the validity of any "SR" visa which is issued must be limited to September 30, 2003 to coincide with the expiration of this classification. This includes any accompanying spouses and children of such religious workers. Any posts that have issued SR visas in recent months that expire after September 30 should make efforts to inform the recipients that they must travel by September 30. Please note that this cable concerns "SR" class cases only, and not "SD" ministers of religion, who are a permanent visa class under the law. Posts should be aware that BCIS officers have been advised to expedite processing of I-360 petitions filed for SR category beneficiaries and the NVC will be forwarding these petitions to post on an expedited basis. It is therefore possible that posts will see approved I- 360 petitions that have not been subject to the usual NVC pre-clearance procedures or cases in which Immigrant Visa fees have not yet been paid. Posts should process such cases accordingly."
• For the full text of the cable, please click here.

09/11/2003: Study Shows H-1B Workers Helped Wages Upward and Not Downward

• Despite all the negative publicity drummed up by the anti-immigration forces, CNN reports that H-1B workers have been paid more than the mainstream workers, brushing aside the false accusation of H-1B workers that they are cheap labor forces. One study even proved that the H-1B workers helped American labor forces to get higher wages rather than lower wages thanks to the H-1B workers. For the report, please click here.

09/10/2003: CBP Officer, What's That?

• When the Department of Homeland Security was launched in March 2003, the Customs Inspectors and the Immigration Inspectors merged into one Division named Customs and Border Protection (CBP). However, the Customs and the Immigration Inspections are highly specialized functions and the officers have continued to perform the duties separately. Thus, when one enters the port of entry like the airports, people still deal with customs official for custom clearance and immigration inspectors for immigration admission.
• In order for the CBP officials to perform both duties, CBP is creating a new position named "CBP Officer" who will perform both customs inspection as well as immigration inspection. Beginning from October 1, 2003, the travellers will face a few CBP Officers at the airports. These CBP Officers will be new recruits, but by next Spring, all the current immigration inspectors and customs inspectors are scheduled to convert to the CBP Officers. Accordingly, the term "inspector" will become an archaic term.
• This move is expected to produce problems for the travellers at initial stages. Immigration inspection involves adjudication of immigration and visa applications and requires a substantial knowledge of immigration laws, rules, and more importantly immigration practices. These bodies of knowledge are not something anyone can learn through a few months of training. The knowledge is gained through the on-the-job training and performance. Since the CBP Officers at the airport who will be converted from Customs Inspectors will have somewhat limited knowledge of the immigration laws, rules, and practices, the travellers may experience unjustified extra procedures or harassment in their application for admission to this country. It is hoped that CBP works out a backup plan such that undesirable denial of justice at the port of entry is minimized. For the fact sheet of this One Face program, please click here.

09/10/2003: It Ain't BCIS, No More

• Did people notice on the home page of BCIS that its website started using the term USCIS? Without publicizing it, DHS reportedly decided to stop using "Bureau" in the names of its Divisions. Thus, BCIS has turned into USCIS. AILA has reported that the immigration services will accept the checks which are made payable to BCIS as well as USCIS. How long, though? Hmmmmm..........................................

09/09/2003: Machine Readable Passport Requirement for Visa Waiver Entry Reportedly May Be Postoned for One Year

• Recently, the State Department enacted a rule that mandates machine-readable passport requirement for visa waiver entry into the U.S. from October 1, 2003. The report indicates that the State Department may put off this until October 2004 if it is requested by the country involved. For the full news report, please click here.

09/07/2003: Fruit(?) of Mexican Foreign Minister Talks With Congress/Administration

• As we reported on September 4, 2003, the Mexican Foreign Minister met with the Congressional leaders and the officials of the Administration. The following press interview reflects that the two parties seem to have agreed that the comprehensive resolution of the Mexican immigration problem is taken a business of long-haul agenda and not a priority. The parties rather seem to have agreed that they focus on the guest worker bills which are pending in the Congress rather than amnesty of illegal aliens. The following is the excerps of the press interview:
  • QUESTION: Secretary Powell, is Mexico going to have an immigration agreement with the United States? President Fox has stated that that is the main point in the bilateral agenda, and people on the Hill say that only with the leadership of the President, President Bush, that will come into fruition. Will you have an agreement with Mexico on immigration, and when?
  • SECRETARY POWELL: The issue of immigration is a central issue in our bilateral relationship, and we talk about it at every opportunity and at every meeting. And both President Fox and President Bush came into their respective offices committed to solving the immigration problem. It's a very difficult problem. It has many pieces to it.
  • I don't expect that in the very near future we will see some omnibus solution to every element of the immigration problem, but I do think -- and Luis and I discussed this -- I do think that we can go after different pieces of the problem and solve them as we see what the traffic, the political traffic, will bear, with respect to legislation or a more far-reaching, comprehensive solution.
  • So we look forward to our Binational Commission Meeting in November to pursue in greater detail some of the things that we can do in the very near term that will demonstrate to the Mexican people and to Americans that we are serious about resolving immigration issues and that we can see some small successes as we move toward a bigger success when we believe it is politically possible to do so, and we have a plan that all of us can agree to, to take to our legislatures.
  • FOREIGN MINISTER DERBEZ: I fully agree. I think, you know, you know my philosophy; that is, we will go taking one step at a time. I feel that there are some pieces of legislation proposed by the same senators or congressmen in the United States, and my feeling will be after all these two days of meetings that we may go and pursue that road and get some results, slowly but surely.
• For the full text of the press interview, please click here.

09/07/2003: Free Trade Agreements With Singapore & Chile and Immigration Implications

• On September 3, 2003, Bush signed the new two FTAs, one with Singapore and the other with Chile. In signing the agreements, Bush announced that: "I signed this legislation today fully expecting to sign many more free trade agreements. We're now negotiating with Australia and Morocco, five nations in Central America, and the Southern African Customs Union. Soon we will begin negotiations with Bahrain and the Dominican Republic. We're working with 33 other nations in our hemisphere to create the free trade area of the Americas. We're encouraging the free flow of commerce and investment among our partners in APEC and ASEAN, and hope to build on the success of our trade agreements with Jordan and Israel by establishing a U.S.-Middle East free trade area within a decade to create new opportunity and new hope in a region that needs both."
• The FTAs tend to provide special business-related immigration legislation as witnessed in the North America Free Trade Agreements (NAFTA) with Canada and Mexico as well as these two new FTAs with Singapore and Chile. Expansion of FTAs with a large number of other nations down the road will without doubt make the business/employment-based immigration law more complex.
• The details of immigration provisions in the new FTAs with Singapore and Chile have yet to be disected, analyzed, and assessed by the experts in the immigration legal community, but as of now, people have sufficient materials available to learn the outlines and the full text of the immigration legislations. Please visit the following links to learn about the immigration provisions of these FTAs:
  • Full Text of the Immigration Provisions:
    • FTA with Chile (H.R. 2738)
    • FTA with Singapore (H.R. 2739)
    • This Reporter's Note: Please note that the FTA with Singapore legislation "on the surface" does not provide the labor condition application and related provisions. However, these provisions which are provided in the FTA with Chile apply also to the Singapore FTA legislation. The H.R. 2748 passed the Congress first and the H.R. 2749 passed the Congress later adding Singapore to the immigration statute which had already been amended by the H.R. 2748. Accordingly, in reading the Singapore FTA legislation, readers should add Section 402 (b) from the Chile FTA legislation.
  • Fact Sheets Outlining the Backbone of the Immigration Provisions in the new FTAs Negotiations:
    • Chile
    • Singapore
• This web site will post analysis of the FTA immigration provisions and implementation along the way. Please stay tuned to this web site.

09/05/2003: Immigration Community Stands Up Against the Totally Failed NCSC Inquiry System for Service Center Cases

• People will recall this web site's advice to the BCIS that the centralization of phone inquiry for Service Center cases was premature and would not serve the public interest in that it would create more works (man-hour) with the resulting disservice to the consumers. Unfortunately, this is exactly what has been happening. Probably this reporter is not the only one who has experienced 100% negative services by the contractors of NCSC who were rude and even hang up the phone while the reporter was addressing the issues. Besides, the inquiries which had been forwarded to the relevant Service Center usually ended up in sending out the notice that the inquiry had been received. It all happened after one month or so. Now, people wonder what this system serves. It is a total waste of tax money and a tremendous disservice to the constituents and consumers.
• Now immigrant community organizations including the AILA have pull together their voices and sent a letter to the Director of BCIS demanding to return to the old system. This reporter joins whole-heartedly these voices and urges the BCIS to immediately take an action before it gets further political back-fire. Again, the current system works AGAINST THE PUBLIC INTEREST.

09/05/2003: 31% Increase of Immigration Benefits Applications Backlogs Between FY 2002 and FY 2003!

• According to the BCIS statistics report dated 08/31/2003, the immigration benefits pending cases increased 31% between 2002 (4,002,465) and 2003 (5,257,972). The bad story does not end there. The rate of approval dropped 18%, while the rate of denial increased 12% during the same period. What the statistics mean is: More backlogs and more denials. For the full report, please click here.
• For the statistics on naturalization, inspections, removals, asylums, etc., please click here.

09/04/2003: Mexican Foreign Minister to Visit Congress to Promote Mexican Immigration Legislation

• There are at least three major "Guest Worker" legislative bills in the House and the Senate. Report indicates that the sponsors of these bills visited and met with the Mexican leaders during the Summer break to discuss on the legislation. This week, the Mexican Foreign Minister is visiting the Congress to woo the legislation on Mexican legal/illegal immigrants. Please stay tuned to this web site for the development of this news.

09/03/2003: Computer Glitze for NSC Processing Times Report of 09/01/03?

• The 09/01/2003 Processing Times Report of Nebraska Service Center which has been released through the AILA shows that processing times for all types of cases including I-485 is August 18, 2003. Obviously there must be a computer glitz. What a short-lived Utopia!?! Ahhhhhhhhhhhhh.........!

09/03/2003: Sudan TPS Designation Extension

• The extension of Sudan's TPS designation is effective November 2, 2003, and will remain in effect until November 2, 2004. The 60-day re-registration period begins September 3, 2003, and will remain in effect until November 3, 2003.

09/03/2003: Sierra Leone TPS Designation Termination

• The designation of Sierra Leone under the Temporary Protected Status (TPS) Program will expire on November 2, 2003. After reviewing country conditions and consulting with the appropriate Government agencies, the Secretary of Homeland Security has determined that conditions in Sierra Leone no longer support TPS designation and is
  therefore terminating the TPS designation of Sierra Leone. This termination is effective May 3, 2004, six months from the end of the current extension. To provide for an orderly transition, nationals of Sierra Leone (and aliens having no nationality who last habitually resided in Sierra Leone) who have been granted TPS under the Sierra
  Leone designation or redesignation will automatically retain their temporary protected status and have their current Employment Authorization Documents (EADs) extended until the termination date. However, an individual's TPS may still 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 May 3, 2004, nationals of Sierra Leone (and aliens having no nationality who last habitually resided in Sierra Leone) who have been granted TPS under the Sierra Leone designation or redesignation will no longer have TPS status.

09/03/2003: Burundi TPS Designation Extension

• The extension of Burundi's TPS designation is effective November 2, 2003, and will remain in effect until November 2, 2004. The 60-day re-registration period begins September 3, 2003 and will remain in effect until November 3, 2003.
  

09/01/2003: Autumn, September and October, on Our Door Step and Reminders

• After a steamy and hot Summer, the Fall has finally arrived. Our minds float along with the crispy air and the cloud floating in the lofty blue sky. Moon and stars look brighter and shiny in the fresh night sky. Leaves start falling. Time to stroll, ponder, and enjoy our lives. We deserve this after agonizing deterioration of the economy, the life, and the country, for that matter, the world!
• As the Congress and the White House return to the Beltway this week, this reporter hopes to bring to the readers the news on immigration legislation. Facing the national election in November 2004, these institutions are expected to fire up the immigration issues to attract the attention of immigrant-related communities. Unfortunately, nothing exciting is expected from the BCIS in September. September is the last month of the FY 2003 and until October 1, 2003, the starting point for the FY 2004, adjudication of cases is anticipated to keep crawling except the religious worker special immigration cases. In fact, the Service Center sources predicted that the remaining cases such as I-140 and EB-485 cases might slow down substantially during September because of the priority religious worker immigration cases that face sunset of the law. We just hope that the Administration would come up with some solutions to the intolerable backlogs in I-485 applications in coming Fiscal Year. The one time exciting news of centralization of family-based immigration petitions/applications processing at the National Benefits Center in Kansas City await its kick-off in October with nervousness. On the court of Labor Department, with the change of leadership in the Foreign Labor Certification Division as well as the need for coordination with the BCIS of DHS, the initial plan to kick off the PERM program has been pushed off from October 1 to either December or January 2004.
• October 1, 2003, however, marks some important turning point for certain visa/immigration procedure issues. We remind the readers of the following two changes, among other, on that date:
  • Machine-Readable Passport Requirement for Visa Waiver Entry to the U.S. Remember that people can still enter the country for visiting from these visa waiver countries without such machine-readable passport, but in that case, they should first obtain a visitor's visa!
  • Immigration Forms That Expire: There are certain immigration forms that expire after September 30, 2003 and filing of such cases with the expired forms will be rejected by the BCIS from October 1, 2003. Nowadays, immigration lawyers use commercial form softwares that update the forms promptly and a large number of immigrants use the BCIS form site to develop the forms. However, there are still a large number of immigration consumers who still use hard-copy forms to file a petition or application. Besides, some commercial form software companies may be behind in promptly updating their software, albeit for a short period of time. The best policy is to use the BCIS web site forms, but the BCIS forms have their own problem. People cannot save their forms in their own electronic system. People should just keep an eye on the date of the form which is printed at the bottom of the following forms not to make mistake:

• Please enjoy the Labor Day holiday!

08/31/2003: Recent BCIS H-1B Cap Number Usage Statistics and Fallacy of Sufficient H-1B Cap Numbers After 10/01/2003

• The BCIS released the H-1B usage as of the end of June 2003. According to the statistics, out of 195,000 annual cap number, only 56,986 number had been used. It also reported that there were 47,813 H-1B cases in the pipeline and one third of which will be H-1B cap cases. Accordingly, it gives a rough estimation of H-1B cap number usage of 73,000 by the end of FY 2003, September 30, 2003. Since the H-1B annual cap number will return to 65,000 on October 1, 2003, people may be misled by such statistics that in the coming year, they will have fairly enough number to use.
• Even assuming that the economy and unemployment rate do not change much in the coming year, the following factors will affect increased usage of the H-1B numbers in the coming Fiscal Year, especially during the first two quarters:
  • L-1 restriction legislation will induce the large consulting firms to use increased number of H-1B.
  • This is particularly true considering the fact that the two factors that had discouraged the largest consumers of H-1B employers from using H-1B numbers will also disappear at the end of September this year. These are:
    • Current $1,000 which H-1B employer needs to pay for contribution to the American Training Surchange fund will also sunsets on 09/30/2003. Filing fee will return to $130 only.
    • More importantly, the various restrictions and fear factors that are attached to the H-1B dependent employer will also sunset on 09/30/2003. The nasty provisions on so-called "H-1B Dependent Attestation Requirement of Recruitment and No-Layoff of U.S. Workers" will disappear. Most of the largest consumers of H-1B belonged to the category of "H-1B Dependent Employer."
• On top of the foregoing factors, the pending H-1B restriction legislative bill which will require all H-1B employers to comply with those nasty things under the current law for the H-1B dependent employers including attestations will without doubt psychologically affect the potential employers, accelerating their usage of H-1B numbers as early as possible, hopefully before such new legislation is enacted. The current Premium Processing Request procedure will certainly also affect the acceleration process.
• Those foreign students in the U.S. who are currently working on Practical Training or who need change of status to H-1B should be particularly mindful of these changing environments. They may not be able to enjoy delaying of change of status to H-1B in order to take advantage of the Social Security tax waiver for some nationals while they work on OPT. They will learn that such decision can end up with a crisis for their not being able to obtain such H-1B status because of running out of the H-1B cap numbers. The foreign student community should keep a close eye on the development of this news!

08/30/2003: Minnesota State Labor Certification Processing Times 08/29/03

• RIR=06/24/2003, Regular=Current, Faculty Special Handling=Current, Temporary Labor Certification=Current.

08/30/2003: BCIS Plans to Start Deportation Proceedings for Service Center Filers with Certain Criminal Violations

• In the immigration proceedings, the removal (deportation/exclusion) proceeding is commenced by the issuance of Notice To Appear (NTA), formerly Order to Show Cause, by the immigration services and filing of the NTA by the immigration services with the immigration courts. Until now, this practice has been limited to the local district office proceedings and the Service Centers have not exercised the authority to commence such proceeding by issuing NTA themselves. Additionally, even if the adjudicators in the Service Center detected the issues of removability (deportability) during the adjudication of the applications, they have rarely turned the cases over to the local district offices for enforcement actions.
• According to the AILA, this is expected to change soon. According to the AILA, as early as October 1, 2003, the Service Centers may start issuing the NTAs to certain violators. The details have yet to be released, but it sounds that the Service Centers may focus on aliens with aggravated felony criminal record. It may also implement the enforcement plan gradually, starting from the TPS applicants to all other applicants. However, it is unclear at this point whether issuance of NTA by the Service Centers will be limited to the criminal aliens or eventually expanded to all other violators. Immigrant community should keep a close eye on the development of this news for the next couple of weeks.
• This policy change appears to be looming up in parallel with the BCIS plan to centralize processing of the family-based 485 applications at the National Benefits Center (formerly Missouri Service Center) and to expand the electronic filing of applications. Sources indicate that the initiation of FB-485 filing with the NBC has been somewhat delayed but it may start as early as October 2003 beginning from the West Coast states to the Midwest and to the East Coast and to the South, each phase taking approximately 60 days. In a sense, the move for the Service Centers to issue NTA should not be a total surprise considering the fact that the processing of applications which have been left to the jurisdiction of the local district offices will be gradually centralized.
• The implication of this movement for the immigrant community and the immigration lawyers community appears to be two folds: Firstly, the immigrants must assess his/her deportability issues more carefully and closely before one files an application. Secondly, the immigration lawyers should be more knowledgeable about the enforcement issues and procedures. Until now, when it comes to the applications which were filed with the Service Centers, people focused in most cases on the issue of denial for immigration law violations and the issue of 3-year bar or 10-year bar rather than the issue of imminent deportation proceedings by the Service Centers.
• This posting is not intended to unnecessarily scare the Service Center filers, especially when we do not have official documents or release of the policy by the BCIS. It is rather intended to alert the immigrants for the potential upcoming policy change of the BCIS. People should just follow this news very closely in the future.

08/27/2003: DV-2005 Immigration Lottery Rules

08/25/2003: Short-Lived Deputy Secretary, Gordon England, DHS

• The White House announced that the President intended to nominate Gordon England to the Navy Secretary. The post of Navy Secretary is the job Mr. England had before he was nominated as the Deputy Secretary of DHS. Reportedly, he will stay with the DHS until the President nominates a replacement. Immigrant community is interested in the news because the Bureau of Citizenship and Immigration Services is under the direct command of the Deputy Secretary and depending on who replaces him, the BCIS can be one way or another affected. For the announcement, please click here.

08/22/2003: Rising Star of O-1 Visa in Changing U.S. Employment Immigration Policies

• The immigration lawyers community realized quite earlier, even before 9/11, that the U. S. had been moving towards the immigration policy to restrict the streams of nonimmigrants and immigrants of lower-level foreign professional workers, facing resistence from the U.S. labor forces. Lower-level foreign professional means aliens with college-degree or less. The trend has been recently accelerated by the legislative movement to restrict H-1B and L-1 foreign workers which have been the primary pipeline for this level of foreign workers entry into the U.S. labor market. Consequently, the current policy appears to focus on the two ends of a spectrum. One end is the high-caliber foreign workers with advanced degree or substantial achievement in his/her fields, and the other end of the spectrum is a sort-of unskilled workers the service industry and labor-intensive industry in this country needs. This policy change turns certain nonimmigrant employment visa categories into a spotlight. At the high-caliber side, certainly O-1 visa is becoming a star of the day, and at the other end of the spectrum, H-2A (agricultural) and H-2B (non-agricultural) temporary workers are receiving increased attention in the policy and implementation.
• O-1 visa is for someone who has something to prove "extraordinary ability" in his/her field of sciences, education, arts, athletes, and business. The qualified O-1 nonimmigrants enjoys all the benefits which are not allowed in other employment-based nonimmigrant categories. The O-1 visa does not have an annual cap unlike H-1B, while it enjoys dual-intent like H-1B. O-1 visa is not subject to the labor condition application unlike H-1B. Accordingly, they are free from various restrictions such as wages, location of work, etc. The O-1 does not have maximum limit to the stay in the U.S. More importantly, those who reached H-1B 6-year limit or L-1B 5-year limit or L-1A 7-year limit can change to O-1 visa status. There are many other privileges which are given to this visa category. Since the process demands a sort of clearance from the peer group or organization, it does not face hostility from the U.S. labor forces. The country opens their welcome-arms to these highly achieved foreign professionals.
• The BCIS has just posted the "primer" to this O-1 visa petition and people should visit the site to learn the thresholds and procedure. Here we go.

08/22/2003: Unanswered Question on EB-485 Backlog and DOL PERM Program

• When it comes to EB-485 application, there are at least two questions unanswered by any sources. The primary sources of information including the agencies and the AILA Liaison people keep this information silent for unknown reasons. The first question is the cause of current logjam. Currently EB-485 processing is going nowhere and no one knows why. The second question is the status of coordination between the BCIS 485 processing backlog and the DOL PERM launch. Supposedly the PERM program is expected to approve 80% of applications in 21 days or so. Can anyone imagine what will happen to the BCIS EB-485 processing backlog? Currently, the BCIS allows concurrent filing of EB-485 and I-140. Accordingly, as soon as the certified labor certification applications are pumped out of the PERM pipeline, their cases will be pumped into the already-horribly-jammed EB-485 pipeline. Launch of EB-485 electronic filing may without doubt help the BCIS in taking in these cases at the front end. In other words, electronic filing can manage the frontlog issue. What about the backend problem? There are no indication that the adjudication itself will be either automated or electronically processed. Curious minds may want to know how the mounting EB-485 applications can lead to the Administration's commitment to reduction of processing times to 6 months. Obviously, the Administration considered all the factors and contingencies when it announced the backlog reduction commitment (6-month). Curious minds still need answer to the linkage of three policies: PERM - EB485 Processing System - 6 Month Processing Time Commitment! To this reporter, something does not add up in this linkage. Sometimes, budget does not give all the answers to certain problem.

08/22/2003: INSpass for Canadian Nonimmigrant Travellers

• There are citizens of Canada who need to travel between the U.S. and Canada frequently. INSpass allows these Canadians to shortcut the inspection process on each trip. What needs to be done?
  • You must be a Canadian citizen
  • You must enter the the U.S. more than twice a year in a visitor (B) or treaty investor/treaty trader(E) or intracompany transferee(L) or TN status.
  • How to apply? File Form I-823 with payment of $25.00 filing fees and $50.00 charge for fingerprint, if needed.
  • Where to apply? Los Angeles, Miami, Newark, JFK, San Francisco, Toronto, Vancouver, and Dulles airports.
  • How often do you have to apply? The card is valid only for one year and you should apply each year.

08/21/2003: Pending Immigration Proceedings, Immigrant Intent, and Admissibility of TN Nonimmigrants

• Generally, nonimmigrants including TN for Canadians and Mexicans with the exception of H and L visas must maintain a bona fide nonimmigrant intent throughout their nonimmigrant stay in the U.S. and the evidence of immigrant intent possessed by such nonimmigrants make them inadmissible to the U.S. on a nonimmigrant visa status.
• However, BCIS Office of Business Liaison published an interesting Employer Information Bulletin #11 on August 8, 2003 on this issue specifically relating to the TN nonimmigrants. In a nutshell, it states that the issue of immigrant intent for the TN nonimmigrant depends on the stage of the immigration proceedings. According to the Bulletin, a pending application for alien employment certification (ETA 750) with the DOL is not a bar to admission to such alien's admission to the U.S. on a TN status. Additionally, pending immigrant petition, I-140, is also not a bar to admission to the U.S. on a TN status. However, a filing of an I-485 application may make it difficult, if not impossible, for the TN nonimmigrant to prove a bona fide nonimmigrant intent and may adversely affect the alien's ability to seek a new admission as a TN nonimmigrant.
• A couple of this reporter's notes: First, the Bulletin specifically advises that it is not a legal advice and information only, even though it usually carries a weight as a policy point. Second, not infrequently, BCIS view is not well informed by the immigration inspectors of BCBP at the ports of entry at the Northern and Southern Borders or other ports of entry unless they are very experienced and informed Free Trade Officers. TN travellers in pending immigration proceedings should beware of this question of reality vs. policy in Washington, D. C. For the full text of the Bulletin, please click here.

08/20/2003: Minnesota/North Dakota Border POE Service Hours Change Effective 09/02/2003

• The BCBP/DHS has announced the service hour changes as follow:
  • Effective September 2, 2003, the hours of service will change at the following ports:
  • U.S. office / Canadian Office New hours
    -Pinecreek (MN) / Piney (MB) 9:00 a.m. - 10:00 p.m.
    -Maida (ND) / Windy Gates (MB) 9:00 a.m. - 10:00 p.m.
    -Carbury (ND) / Goodlands (MB) 9:00 a.m. - 10:00 p.m.
    -Sarles (ND) / Crystal City (MB) 9:00 a.m. - 10:00 p.m.
    -Hannah (ND) / Snowflake (MB) 9:00 a.m. - 10:00 p.m.
    -Noonan (ND) / Estevan (SK) 9:00 a.m. - 10:00 p.m.
    -Northgate (ND) / Northgate (SK) 9:00 a.m. - 10:00 p.m.
    -St. John (ND) / Lena (MB) 8:00 a.m. - 9:00 p.m.
    -Hansboro (ND) / Cartwright (MB) 8:00 a.m. - 9:00 p.m.
    -Westhope (ND) / Coulter (MB) 8:00 a.m. - 9:00 p.m.
    -Antler (ND) / Lyleton (MB) 8:00 a.m. - 9:00 p.m.
    -Neche (ND) / Gretna (MB) 8:00 a.m. - 10:00 p.m.
    -Lancaster (ND) / Tolstoi (MB) 8:00 a.m. - 10:00 p.m.
    -Walhalla (ND) / Winkler (MB) 8:00 a.m. - 10:00 p.m.
    
  • Travel across the U.S./Canada border continues to be available on a 24-hour basis at the ports of: Baudette (MN), Dunseith (ND), Grand Portage (MN), International Falls (MN), Pembina (ND), Portal (ND), and Warroad (MN). Roseau (MN) remains open from 8:00 a.m. to midnight.

08/19/2003: DV-2005 Immigration Lottery Announcement

• The State Department has already announced the next Fiscal Year DV-2005 Immigration Lottery Instructions! Remember that unlikely previous lotteries, you can submit the lottery registration only electronically. The online filing address is: http://www.dvlottery.state.gov. The registration period starts from November 1 and will end on December 30, 2003. Please read other instructions very carfefully.

08/18/2003: Diversity Visa Program (Immigration Lottery) Changes from Mail-In to Electronic Registration

• The State Department released the Interim Rule which took effect today, changing immigration lottery and diversity visa application from mail-in to electronic registration. This action is taken to prevent frauds. Interim Rule, please click here.

08/18/2003: State Department Makes Automatic Visa Revalidation Policy Change Final and Permanent

• The Department is adopting as final an interim rule published in the Federal Register on March 7, 2002, amending the regulation
  pertaining to Automatic Visa Revalidation, which was effective on April 1, 2002. No changes have been made to the Interim Rule. For the Final Rule, please click here.
  

08/17/2003: Power Blackout and Affected Federal Employees Excused from Work Friday

• Federal employees in the affected areas who could not make it to report to the work are excused from any pay reduction, according to the OPM Memo. This policy should include the officers involved in immigration business and labor certification or visa processing. If you missed the work on Friday because of the power black-out Thursday, please check with this Office of Personnel Management Memo. Immigration Court hearings which were scheduled on Friday are announced to be rescheduled by EOIR. Please check the new schedule with the EOIR.

08/13/2003: Full Text of BCIS Memorandum on Validity of Approved I-140 for I-485 Waiters

• We posted summary of this Memorandum yesterday. People can now read the full text.

08/12/2003: BCIS Gives Guidance on AC21 180-Day Rule for EB-485 Filers

• AILA has reported a very important memorandum of the BCIS which answers a number of unanswered questions relating to the so-called 180-day rule. We are grateful for the AILA to make this memo available to the interested parties. Some of the rules that are set forth in the memorandum are as follows:
• Availability of 180-Day Rule for I-485 Applicants Who Were Not Employee of the I-140 Petitioner: The approved I-140 petition may be ported to a new employer for a same or similar occupational classification. The memo states that it is possible for an alien to qualify for the 180-day portability even if he or she has never been employed by the prior petitioning employer or the subsequent employer under AC 21. However, the evidence must be there that an offer of employment must have been boda fide, and the employer must have had the intent at the time the I-140 petition was approved.
• Withdrawal or Revocation of I-140 Petition Before 180 Days: The I-140 petition is no longer valid and cannot be ported to a new employer after 180 days.
• Revocation of I-140 Petition After 180 Days for Fraud: The I-140 petition becomes invalid and cannot be ported to a new employer even after 180 days.
• Withdrawal or Revocation of I-140 Petition After 180 Days After New Employment of Similar/Same Occupation: The approved I-140 petion will remain valid and I-485 will be completed as filed.
• Filing Requirement for Change of Employer: If the I-140 is withdrawn but the beneficiary has failed to file evidence of a new qualifying employment before that time, BCIS must issue Notice of Intent to Deny I-485. If the qualifying new employment is then timely submitted, BCIS may consider the approved I-140 valid for the purpose of continuous adjudication of I-485 even after the Notice to Deny has been issued. It is thus critically important that people either file the change of employer as soon as the employment change takes place or if the Notice to Deny is received, they respond to such Notice "timely" and with "required evidence." If the Notice is not timely reponded, the BCIS will deny the I-485.
• For the full text of the Memorandum, please click here.

08/11/2003: AILA's Washington Update 08/11/03

08/11/2003: State Department Added New Visas (F3/M3) for Canadian/Mexican Commuter Students

• On November 2, 2002, the President signed into law the ``Border Commuter Student Act of 2002''. This legislation creates two new nonimmigrant visa classifications (F3 and M3) for citizens and residents of Mexico or Canada who seek to commute into the United States for the purpose of attending an approved F or M school. This rule adds these new
  classifications to the Department's regulatory list of nonimmigrant visa classifications. The new visas are effective from today, August 11, 2003. For the regulation, please click here.
  

08/10/2003: DREAM Act of 2003 for Illegal Alien Minors

• This is a bill in the Senate which allow certain illegal minor student aliens to apply for permanent resident status. A similar bill was previously introduced under the name of Student Adjustment Act. The new bill "DREAM Act" is less favorable than the Student Adjustment Act as people will see from the following summary:
• Summary:
  • Eligibile illegal alien minors will be granted a "conditional resident status" for six (6) years upon application and the condition will be removed after six (6) years upon petition by the alien if all the conditions are satisfied.
  • Requirements:
    • At the time of enactment of this law, the minor must have been physically present at least for 5 years;
    • At the time of first entry to the U.S. the minor was younger than 16 years of age;
    • The minor is a person of good moral character;
    • The minor is not deportable under certain specified provisions of the immigration laws; and
    • At the time of filing application for adjustment of status to a conditional resident status, the minor should have been
      • Admitted to a higher learning institution or
      • earned a high school diploma or
      • obtained GED certificate.
  • Once the alien meets the foregoing requirements, the alien will be waived from certain inadmissibility or removability (deportability) provisions, including illegal status in the U.S. If the alien is already in removal (deportation) proceeding or ordered deported, the deportation should be stayed if the following conditions are met:
    • All the foregoing conditions are met but has not yet graduated from high school;
    • The alien is at least 12 years of age; and
    • The alien is enrolled full-time in a primary or secondary school.
  • The bills also provides for state residency benefits for the purpose of tuition break.
  • The eligible alien can file 485 application without paying any immigration filing fees (fee waiver).
  • The DHS is mandated to "expedite" such application.
• For the full text of this bill (S. 1545), please click here. This bill receives bi-partisan support.
• Please compare this bill with the House Bill, H.R. 1684, Student Adjustment Act. For the summary of this House bill, please read our previous summary which was posted on April 13, 2003.

08/09/2003: Nonimmigrant Visa Interview Waiver Program and Variances per Country

• We posted earlier the State Department cable setting forth the standards for interview waiver categories. Under the guidelines, the State Department can consent to variances to the standards adding additional waiver classes of aliens. For this reason, the nonimmigrant visa applicants should check with the American visa posts in their countries to find out the visa post specific waiver categories.
• For illustration, the visa post in Seoul, South Korea adds certain class of nonimmigrants for visa interview waiver including employment-based visa applicants such as H, L, O, P, etc, certain employees of the businesses based in Korea, and certain University/School facult, staff, and students. For the details, please click here.

08/09/2003: Immigrants Confused by Conflicting Processing Times Information Provided by BCIS

• Currently, immigrants get four different processing times reports from the following four different sources of BCIS:
  • Bi-Weekly Release of Each Service Center Processing Times Reports
  • I-797 Receipt Notices which they receive after they file a petition or application
  • On-line Status Check Tracking System of BCIS
  • 800 number National Consumer Service Center
• Believe it or not, each of the foregoing sources gives out a different processing times leading petitioners and applicants to the state of extreme confusion and question of credibility of all of these reports. For instance, the bi-weekly reports indicate that EB-485 has not been moving even for a single day for quite a while. However, people know that some people still get approvals of EB-485, even though it happens rarely. Besides, if one calls the 800 number, they give out a different information. The BCIS answer appears to be that the processing times constantly change and the information which people get at a given time could be different from what they see in the printed reports or information.
• Now, people know that they should not be stressed out by all these confusing reports since they know by now that more or less none of these sources of information reflects the real picture of processing times at a given time. Until the BCIS fixes this seemingly a simple problem, people should take all of these current reports, either printed or oral, as broad outline of where the Service Centers' processing stand.

08/09/2003: Aftermath of Call-In Special Registration Which Ended in April 2003

• The Call-in Special Regiration Program of NSEERS ended in April this year. The emotional heat involving this program has since subsided and this issue is almost forgotten in the community. However, according to the Washing Post, with little public notice outside immigrant communities, the government is moving to deport the largest number of visitors from Middle Eastern and other Muslim countries in U.S. history -- more than 13,000 of the nearly 83,000 men older than 16 who complied with the registration program by various deadlines between last September and April. The BICE of DHS and Immigration Courts throughout the country have processed these cases, but these issues no longer remained in the purview and microscope of the news media and even immigration advocates and immigration lawyers' community. For the news, please click here.
  

08/09/2003: Citizenship Applications by Alien Military Men Drastically Increases

• The BCIS has disclosed that nearly 9,000 military members have applied for citizenship since Oct. 1, the start of the 2003 federal fiscal year. By comparison, 749 military members were naturalized in fiscal 2001, and 1,055 were naturalized in 2002, according to Russ Knocke, Mr. Aguirre's press secretary. Reportedly, this increase is caused by the Executive Order that allowed the alien armed service men and women serving after 9/11 to apply for naturalization in short-cut requirement and procedure. Read on.

08/08/2003: Virus Named "RIR Denial & Remand" Spreading in Regions

• Ever since so-called Zigler Memo was released, it has been implemented different in different Regions of the DOL. The Region IV (Dallas-Denver Region) cut the tape taking a tough stance on IT cases with an action of either holding processing or remanding cases. The virus recently hit hard in Region VI (San Francisco-Seattle Region) massively remanding IT RIR cases to the state offices. The problem was serious enough affecting U.S. businesses and the DOL HQ reportedly has decided to review the situation. The situation was so serious in California that employers were in fear of filing RIR applications for a while.
• AILA reported a good news. Pending the DOL HQ policy review, the Region VI ceased sending out remands to the state offices.
• Sources indicate that Region V (Chicago-Kansas City Region) which was known to be liberal when it comes to remand issue has begun to sending out remands to the state offices for IT cases. Should this virus spread further, the IT occupations which were one time considered a shortage occupation may de facto turn into hybrid Schedule B occupations of oversupply!? The regional disparity and discrepancy may disappear once the PERM program starts late Fall, but it remains unanswered question as to how this issue will be taken over by the PERM Program administrator in the DOL HQ.

08/08/2003: Suspension of TWOV Affecting Two Groups of Countries Differently

• As we reported, the DHS and State Department jointly took an action suspending this transit program effective immediately. Beginning from August 2, 2003, the travellers from countries in the world other than 27 visa waiver countries must posess a visa just transit in the United States. Since the nonimmigrant visa application requires interview, this new policy affects tremendously those international travellers who take U.S. commercial passenger flights. There is a concern expressed by the travel industry that should this suspension becomes s permanent policy, it will affect the U.S. airlines in the international traffics.
• The travellers from 27 countries, mostly Western European countries are not affected by this action as they enjoy the visa waiver privileges. Report indicates that the travellers who are most affected by this action are those from Mexico, South America, and Asia. For the news, please click here.

08/07/2003: I-140 to Experience Slow-Down for Next Two Months

• The special immigrant petitions for religious workers (I-360) other than minister category and related I-485 cases need expedite so that these cases be adjudicated before the law sunsets at the end of September 2003. Under the exigent circumstances, the BCIS decided to expedite these cases. The Service Center sources indicate that the adjudicators who are currently working on I-140 petitions and related EB-485 applications will be taken out of these product lines and swiched to I-360 and related EB-485 product lines, with the resulting delays of adjudications for I-140 adjudications for the next two months. As this reporter reminded people so many times, immigration agency decision on prioritization always produces winners and losers. It is the fact of life in immigration business.

08/07/2003: Immigration Information Officers and Contact Representatives Jobs Under Serious Threat

• Immigrants who visited local immigration offices usually see face to face these officers. In Service Centers, the people who answered the questions were also these officials. In a way, these officials represented the window and image of immigration agency to many immigrants. However, believe it or not, their jobs are considered "commercial jobs" even if they are government employees and court ruled that the job should be opened to the private contractors. Accordingly, BCIS director Eduardo Aguirre plans to open such jobs to contractors and the current immigration information officers and contact representatives must compete with the private contractors and must survive before June 30, 2004. It is thus expected that many current immigration information officers and contact representatives who have been helping the immigrants face to face or ear to ear are destined to lose their job and the jobs can be taken over by private contractor businesses. As an attorney who has been seeing and talking to these officials on and off for almost 21 years, this reporter feels very sad about these officers. For the full story, please click here.

08/07/2003: Orphan Petition Rules on Advance Processing Application, Validity Period & Discretionary Extension

08/07/2003: State Department Rules on Suspension of International-to-International Transit Program

08/07/2003: BCIS Federal Register Release on TWOV Suspension

08/06/2003: State Department Makes Passport Application/Processing Inquiry Easy

• Until now, those who need information on passport application procedure and status inquiry had to use expensive paid phone number of 900. However, beginning from August 19, 2003, the Department will convert it to 877 free phone number. The number will be 877-487-2778. People will also be able to use e-mail inquiries which will be answered within 24 hours via e-mail. The e-mail address is npic@state.gov. For the full text of announcement, please click here.

08/06/2003: BCIS June 2003 Statistics Reflect Piling Backlog of Immigration Benefits Applications

• The BCIS has just released the statistics of immigration benefits applications. Total immigration application pending cases reached 5,250,958, a 34 % increase when compared to June 2002. Considering the fact that for the first nine months of fiscal year 2003 receipts increased less than 1 percent, while approvals decreased 20 percent compared to the same period for fiscal year 2002, mounting backlogs have been caused by backlog of adjudications. For the same period, denial of cases has increased 11%. The statistics thus supports this web site's assessment that the sources of backlog lies more with the problem of backlog in the backend (adjudication) rather than frontend (receipt handling). For the details of the statistics, please click here.
  
• Those who are interested in removal, asylum, inspection or border statistics, please click here.

08/06/2003: BCIS Explains How Status Inquiry Phone Calls Are Handled by NCSC

• We all call the 800 National Customer Service Center line of BCIS to make various inquiries. The BCIS explanation of how they are handled will help people for use of the telephone inquiry lines. Please click here for the BCIS explanation.

08/06/2003: Liberia TPS Designation Extension

• The extension of Liberia's TPS designation is effective October 1, 2003, and will remain in effect until October 1, 2004. The 60-day re-registration period begins August 6, 2003 and will remain in effect until October 6, 2003.
  

08/05/2003: Congress Adjourned Until September: No More Legislative News For a While

• Until last week, the legislators in both House and Senate had introduced a number of good or bad immigration bills. Now, since the Congress adjourned for August break, the legislative news will also go into the dormant stage, at least until September.

08/05/2003: BCIS Director Aguirre Discusses Reduction of Backlogs

• BCIS Director Eduardo Aguirre dislosed in an interview that the BCIS is currently studying the backlog reduction plan. It appears that Mr. Aguirre is overly optimistic about impact of expansion of electronic filing. He has not discussed why EB-485 cases are practically on hold. When the delay is related to adjudication issues or policy issues rather than processing of filing issues, people want to wait and see how expansion of electronic filing will indeed help to reduce the completely clogged 485 backlogs. For the interview, please read on.

08/04/2003: New E-Mail Addresses of Four Service Centers

• Vermont Service Center: vsc-premium.processing@dhs.gov
• Texas Service Center: tsc-premium.processing@dhs.gov
• Nebraska Service Center: nsc-premium.processing@dhs.gov
• California Service Center: csc-premium.processing@dhs.gov

08/02/2003: DS-158 Required for Student/Exchange Visitor Visa Application Effective 08/01/03

• Those who apply for F-1 and J-1 visas are required to file the following three forms:
  • DS-156
  • DS-157 (Except certain aliens)
  • DS-158

08/02/2003: State Department Resumed Online J-1 Waiver Application Status Check System

• The online status check system for J-1 two-year residency requirement waiver applications had been suspended until today. The suspension particularly affected International Medical Graduates who had applied for such J-1 waiver. Now, as of today, the U.S. Department of State is resuming the online status check system. Good!

08/02/2003: Effective 08/02/03, Transit Without Visa(TWOV) Suspended With a Few Exceptions

• According to the DHS Press Release, DHS immediately suspended the privilege of transit in the U.S. without a visa with the following exceptions:
  • • Passengers in the air or in the process of traveling on an outbound leg at the time the new requirement went into effect will be able to transit and depart the United States, subject to inspection and evaluation of risk.
  • • Travelers who bought their tickets on or before July 24 and who are scheduled to depart for transit through the United States before 12:01 a.m. Tuesday need not obtain a visa.
  • • Travelers who have transited through the United States on the first leg of a trip and who will use the return portion before 11 a.m. August 9 may make a stop in the United States without a visa, but will be processed by Customs and Border Patrol personnel on arrival.
• Anyone not qualifying for one of those three exceptions must obtain a visa or change his or her itinerary. Report indicates that about 6,000 international travellers are affected by this emergency action of the U.S. government. For the full text of the CNN report, please click here. For the DHS official announcement, please click here. For the draft regulation which is expected to be published in the Federal Register shortly, please click here.
• This suspension is nothing to do with the Visa Waiver program for 27 countries. The people from these 27 countries will not be affected until October 1, 2003 when they will be required to carry a machine readable passport to enter the U.S. without a visa. Otherwise they will not be able to enter the U.S. without a visa.
• For Q&A on TWOV-ITI Suspension, please click here. People who are currently travelling or who will travel during the next few days should read this Q&A of DHS to find out how they will be affected.

08/01/2003: August 1 Deadline of Student SEVIS Registration and Potential Crisis for Arriving Foreign Students at Airports

• Reportedly nearly 6,000 schools have registered their foreign students in SEVIS. However, more than 600 U.S. colleges and universities that enroll foreigners reportedly have failed to register their students in a government database that monitors their course schedules, disciplinary records and travel habits, according to the Homeland Security Department. The enrollment deadline arrived today, meaning that potentially thousands of unregistered students may be denied entry into the United States as they return for the start of the academic year. In order to deal with the problem, BICE of DHS is sending out their officials to selected airports to assist the inspectors, but there is a well-founded fear that some of the returning foreign students may be denied admission to the U.S. at the port of entry. For the report, please click here.

For Pre-August 1, 2003 News, Please Click Here.