THE OH LAW FIRM

Dedicated Professionals in Immigration Law for 24 Years

Reported by Matthew Oh, Esquire.

(09/15/04 - 02/28/05)

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

02/25/2005: Obligation of 100% of Prevailing Wage Pay for H-1B and Permanent Labor Certification

• The so-called new H-1B legislation will change the rule of prevailing wage payment obligation effective March 8, 2005. It no only changes the prevailing wage determination from the current two levels to four levels but also from the current rule allowing 95% payment of prevailing wage to the obligation of payment of 100% of prevailing wage to file the H-1B.
• As for the PERM final rule, it removed the 95% rule from the current labor certification rule which will take effect on March 28, 2005. The question remains what happens with the labor certification filers of RIR or traditional regular application between March 8 and March 28, 2005. The answers to the question will be critical in that under the backlog processing system, one may not learn that the wage which the employers offered in the applications which they filed between March 8 and March 28 was 95% figure, which would be rejected by the DOL after a long wait. Close reading of the new H-1B legislation indicates that the 100% wage obligation may take effect not only in the H-1B filing but also permanent labor certification application filing effective March 8, 2005. The RIR filers during this period should seek legal counsel on the prevailing wage issue before they file the RIR applications.

02/25/2005: DOL Transition Guidance for Labor Certification Applications, February 2005

• On February 16, 2005, the DOL Deputy Secretary issued the transition guidance for the labor certification application, and the DOL Region V (Chicago) issued its own transition guidance to the SWAs in its jurisdiction on February 18, 2005 as follows:
  • HQ Transition Guidance
  • Region V Transition Guidance
• There are all sorts of rumors and confusions in the immigration community on the actual operation of the Backlog Processing Centers in Philadelphia and and Dallas. We want to clarify the following two points:
  • These Guidances made it clear that the DOL had changed its initial policy reflected in the first Transition Guidance of Bill Carlson, Chief of Foreign Labr Certificaion Division that the cases which were received after January 1, 2005 would be processed by the National Processing Centers. Under the Transition Guidance of the Deputy Secretary, currently all the cases which were received after January 1, 2005 have been shipped and forwarded by the SWAs to the Backlog Processing Centers after the date stamping.
  • The deadline for filing of current labor certification application under the current law is March 27, 2005 and any cases received by the SWAs after March 27, 2005 will be rejected and returned to the applicants. Some applicants may wish to file the applications, particularly RIR, before the DOL launchs the new system of PERM on March 28, 2005. The TG reminds the last minute filers that the deadline is determined not by the actual physical receipt but by "postmark." Accordingly, in the event that the RIR applications cannot be filed in person or by delivery services sufficiently ahead of time, they should make it sure that it is filed at the Postal Services with the postmark of March 27, 2005.
• The name of the new backlog processing offices is one other area which the immigration legal community and immigrant community are confused. For that matter, the DOL itself was confused. It used Backlog Elimination Center, Backlog Reduction Center, and Backlog Processing Center inter-mixedly. It also happened with the USCIS when there was reorganization and BCIS and USCIS were used inter-mixedly by the community as well as the government itself. By now, people should know that the official name of the offices is neither Backlog Elimination Center nor Backlog Reduction Center but Backlog Processing Center.

02/24/2005: Reminder of Consular Visa Application Fee Changes Effective 03/08/2005

• On February 2, 2005, the U.S. Department of State published its final rule changing the visa application fees for some applications effective March 8, 2005, including the following:
  • For immigrant visa applicants - $380 per visa
    For DV Lottery winners - $375 for the Diversity Visa (DV) Lottery application and $380 for visa
    For returning residents - $400 for the returning resident status application (DS-117) and $380 for visa
• See the final rule,

02/23/2005: Service Centers Processing Times 02/23/2005

• See homepage.

02/23/2005: Visas Mantis Clearance Policy Change and Additional Improvement Needed

• The Government Accounting Office (GAO) issued its February 2005 report on the recent improvement of Visas Mantis clearance policy of the U.S. Departments of State and Homeland Security. The report, however, recommended that something more would need to be done to assure travelling of certain foreign science-related students and researchers. Specifically it cited its survey results that a number of officials at certain visa posts were not knowledgeable and connected to the Visas Mantis clearance sources causing the delay in processing of nonimmigrant visas. It also reminded of serious problem for the Chinese students and scientists who were restricted to two-entry visas which are valid only for 6 months due to the failure of working out with the Chinese government to change the recriprocity agreement. This report did not reach other issues which this web site had brought up two or three days back, but reinstatement of visa revalidation and automatic visa revalidation for travellers to Canada and Mexico for visa applications should be seriously considered by the U.S. Department of State and Homeland Security to ease the current road blocks to the travelling of foreign scientists and researchers. For the Highlights of the GAO report, please click here.
• Effective January 15, 2005, Chinese visitors travelling on B-1 or B-2 visitors are issued one-year valid multiple entry visas thanks to the change of reciprocity agreement between the U.S. and China, but the change has yet to be taken place in the areas of other nonimmigrant visas.

02/23/2005: New USCIS Guidelines for RFE and Denials

• We reported on February 19, 2005 that the USCIS had withdrawn the previous memorandum on RFE and denials and issued a new guidelines for the same issues to the field offices. Here are the full texts of the withdrawn memorandum and new memorandum:
  • New Memorandum of 02/16/2005
  • Withdrawn Memorandum of 05/04/2004

02/22/2005: March 8, 2005 Implementation of New H-1B Legislation and Required DFLC Amendment of ETA 9035E Form

• The current Labor Condition Application for H-1B Nonimmigrants, ETA 9035E, was revised when the H-1B Dependent Employer attestation (recruitment attestation and no U.S. worker dispalcement attestation) requirement law sunset in October 2003 to remove such attestations from the form. Now, the new H-1B legislation will revive such attestation requirement for the H-1B dependent employers beginning from March 8, 2005. Accordingly, DOL is required to revise ETA 9035E form to revive such attestations. Curiously, though, DOL has yet to announce amendment of the ETA 9035E form when March 8, 2005 is only a few steps away. The new legislation was signed into law on December 8, 2004 by the President. On December 10, 2004, the DOL requested the OMB to review its "proposed rule" to amend the LCA filing procedure which has to be acted upon by the White House.
• The H-1B dependent employers should pay attention to this upcoming change in the law and the form when they file a Labor Condition Application for H-1B nonimmigrants (ETA 9035E) on or after March 8, 2005.

02/21/2005: State Department Reports Improvement of NIV Processing Times from Average 67 to 15 Days

• According to the news report, the nonimmigrant visa application processing times have lately reduced from average 67 days to 15 days thanks to the pounding pressures from the higher learning institutions and business community. Recent change of policy in the Visas Mantis clearance extending the expiration of cleance to several years is expected to help further the processsing times for the nonimmigrant visas. Since 9/11 the State Department had been tightening the nonimmigrant visa processing to the snail pace taking months or even over a year, and the traffics of foreign brains, scientists, and talents had continuously swifted from the U.S. to its allies in Europe and Asia. The colleges, universities, research entities, and hightech businesses, among others, sufferred visibly from such"paranoic" visa policy of the State Department and the intensity of their our cries and anger mounted in the political arena in the Beltway. Under such pressure, the State Department started recently loosening up the visa processing procedures.
• We commend the State Department for the change of policy and encourage the agency to show continuing improvement in other areas of visa procedures. Specifically, we urge the Secretary Rice to reinstate the visa revalidation procedure and the automatic visa revalidation procedure for the visa applicants in the neighboring countries. The recent improvement of political conflict in the Middle East, particularly between Israel and Palestine and other neighbors, conclusion of the war in Iraq, and no visible signs of international terrorists activities reflect that it is time for the State Department to free itself from the paranoic visa policies and improve the traffics of human beings between the U.S. and other countries in the world.

02/21/2005: Minnesota SWA Completed Transfer of Entire State Backlog Cases to Dallas BPC on 02/17/2005

• Minnesota State Labor Certification Unit (SWA) reports that on February 17, 2005, it shipped out all the labor certification applications at the state level to the Dallas Backlog Processing Center. This report implies that the state offices had apparently received further instructions from the National Office on the shipping schedules. The Minnesota SWA had been waiting for such instructions for a long time and pending the instructions, the state office had been holding on the applications without any action or processing. The applications which had been generated in Minnesota and forwarded to the former Chicago Region were forwarded by the Region to the Dallas Backlog Processing Center earlier, but the cases in some of smaller states at the state level had been in holding pattern as their processing times for the cases at the state level were much faster than other states such as the ten big states. Since the Backlog Processing Center scheduled the transfers from the states based on the priority dates, the cases in states such as Minnesota had to wait a longer time in the shipping schedules. It is expected that the applicants whose cases had remained at the Minnesota state office until a few days back will received the so-called 45-day letters from the Dallas Processing Center. Accordingly, these filers should direct their communication to the Dallas office pursuant to the recent instructions from the DFLC National Office, including the address changes or substitution of legal counsels.

02/20/2005: U.S. Master's Degree Holder H-1B Filing Beginning 03/08/2005 and Issues

• Beginning from March 8, 2005, employers hiring a nonimmigrant who holds a master's or higher degree from U.S. higher learning institutions but does not have a H-1B status will be allowed to file a new H-1B petition under the new H-1B legislation that has assigned special 20,000 H-1B annual cap numbers for U.S. advanced degree holders. There are, however, several issues the employers and the aliens should be aware of before filing. We will look at a few issues.
• Definition of U.S. Master's Degree Holder Requirement:
  • For the purpose of eligibility of H-1B petition under the new legislation, inasmuch as the alien beneficiary holds a master's or higher degree from a U.S. school, the employer is eligible to file the H-1B petition. Accordingly, even if the job by nature does not require a master's degree, the employer can still file the H-1B petition inasmuch as the alien beneficiary holds a U.S. master's or higher degree.
  • The new legislation does not also require that the alien must hold a master's or higher degree "in the specialty related to the intended employment." Accordingly, even if the alien beneficiary holds a U.S. master's or higher degree with a specialty which is not related to the H-1B job, the employer is eligible to file the H-1B petition on behalf of such alien. There is a following "caveat," though.
  • Caveat: The new H-1B legislation reinstated the requiement of employer attestation for no displacement of U.S. worker for 90 days prior to filing of the H-1B petition and for 90 days after filing of the H-1B petition if the employer is defined as "H-1B dependent employer." An employer is a H-1B dependent employer if the employer (1) hires 25 or fewer employees out of which more than 7 employees are H-1B aliens; or (2) hires from 26 to 50 employees out of which 12 employees are H-1B aliens; or (3) hires 51 or more employees out of which 15% are in H-1B nonimmigrant status. If the employer is a dependent employer, it is still exempt from the no U.S. worker displacement attestation requirement if (1) the alien is paid $60,000 or more salary or (2) the alien holds a master's or higher degree in the specialty related to the intended employment. Accordingly, the employers who file the H-1B petition for the U.S. Master's or higher degree holders may be grouped into the following three:
    • Group I: The employers are not "H-1B Dependent Employer." This employer can file a H-1B petition without such no displacement attestation regardless of the alien beneficiary's specialty. In other words, these employers will be able to file the H-1B petition even if the alien did not major in the specialty that is related to the job and without the fear of the requirement of No U.S. Worker Dispalcement Attestation.
    • Group II: The employers are "H-1B Dependent Employer," and the alien beneficiary holds a U.S. master's or higher degree but not in the specialty that is related to the job. These employers can file the H-1B petition for the alien beneficiary but only if they file No U.S. Worker Displacement Attestation. This will be a nightmare for the employers. However, there is unresolved question involving a H-1B petition which pays more than $60,000 salary. Supposedly such petition should be exempt from the attestation requirement for the reason of the amount of salary paid. If this reasoning works, the Group II employers will again be subdivided into the two sub groups:
    • Group II-A: The employer is a H-1B dependent employer and files H-1B petition for alien beneficiary who holds a U.S. Master's or higher degree but not in the specialty that is related to the job and pays less than $60,000 salary. These employers may be required to file the attestation.
    • Group II-B: The employer is a H-1B dependent employer and files H-1B petition for alien beneficiary who holds a U.S. Master's or higher degree but not in the specialty that is related to the job and pays $60,000 or more salary. These employers may not be required to file the attestation.
    • Group III: The employers are "H-1B Dependent Employer," and the alien beneficiary holds a U.S. Master's or higher degree in the specialty that is related to the job. These employers may not be subject to the attestation requirement no matter whether they pay more or less than $60,000 salary.
  • From the foregoing analysis, one should learn that the H-1B Dependent Employers should file one of the filing H-1B petitions for the U.S. Master's or higher degree holders to avoid the attestation:
    • (1) Hire an alien who holds a U.S. Master's or higher degree in the specialty related to the job; or
    • (2) If the employer hires a U.S. Master's higher degree holder with different specialty not related to the job, pay more than $60,000 salary.
    • Otherwise, be prepared to deal with the nightmare that comes with the attestation requirement.
• Wage Issues: We have several issues:
  • (1) Non-availability of 4-level prevailing wage determination: Currently, no state can provide the prevailing wage determination on 4-levels. The state offices provides the prevailing wage determination but only on two levels, Entry Level or Experienced Level. Unless the DOL releases the wage determination instructions to the state offices soon, the employers will have to make a hard choice of either filing the H-1B petition with the outrageously high "experienced-level" wage determination and file on March 8, or wait and get the four-level prevailing wage determination on or after March 8 and file the petition after March 8.
  • (2) As we stated earlier, the new legislation does not require that employer should requirement a master's or higher degree to file the H-1B petition inasmuch as the alien holds a U.S. master's or higher degree. Requiring a Master's or higher degree for the job tends to push up the prevailing wage and the employers may be required to pay a higher salary to file the H-1B petition. However, whether the employer should require a master's or higher degree should be decided on the basis of the following two considerations: (A) Impact on the foregoing discussion on the attestation requirement. (B) Impact on the permanent labor certification and green card journey by requiring less than a master's degree on H-1B filing and turning around, requiring a master's degree on the PERM labor certification filing.
• The foregoing discussion is the view of this reporter and not the view of the labor deparment nor the USCIS. In this regard, people should not take this posting as the authoritative view on the issues. This reporter and the Oh Law Firm will not be responsible for the consequences of reliance on this posting as the rule or law. People should seek legal counsel.

02/19/2005: DFLC Backlog Processing Center 45-Day Letter and Responses

• The Backlog Processing Centers in Dallas and Philadelphia have been issuing so-called 45-day letters to the labor certification applicants as a first step to process these cases. The 45-day letter instructs that the response should be sent to the Centers via either mail or fax.
• People must have noticed that currently there is no available channel to communicate with the Backlog Processing Centers. Accordingly, people do not have any evidence that their responses have indeed been properly received and processed by the Centers if they send their responses by fax. Transmittal by fax usually is confirmed by their fax machines in a form of printed report, but it is not a proof that any specific document was transmitted. This is particularly true with a large company or law firms that send out a number of responses via fax. A copy of their letter or transmittal sheet is not a proof. Considering the fact that the consequences of failure to file the response to the 45-day is very critical in that such application will be denied, it may be prudent that the filers use either certified mail return receipt request or overnight deliver services with the certified number or tracking number on the cover letter. The tracking confirmation and the cover letter with the tracking number will form a good evidence of the receipt of the responses by the Centers. Fax transmittal has an additional problem. The fax line of the Centers is constantly busy.

02/19/2005: USCIS HQ Issues a Memorandum to Restrict Denial of Cases Without RFE or Notice of Intent to Deny First

• On May 4, 2004, the USCIS HQ released a memorandum to the field offices to give authority to deny applications or petitions by the Service Centers without first issuing a RFE or Notice of Intent to Deny the application and petition in a broad authority. The memorandum was intended to reduce the workloads and backlogs which had been caused by the RFEs. However, the memorandum deprived the applicants and petitioners of an opportunity to either explain or submit additional evidence on the questions and issues the adjudicators might have. Subsenquently, the immigrant community witnessed a flood of denials without the opportunity of RFE and stirred outcry within the immigration law community. Some adjudicators abused the memorandum and denied outright in a broad brush using a boiler plate letter and without giving specific reasons for the denials.
• The USCIS has noticed that because of the abuse of the memorandum at the field offices, the memorandum had increased rather than reduced workloads and backlogs because of the flood of appeals and motion to reopen or reconsider, not to mention a loud outcry in the political and legal community. Accordingly, the USCIS rescinded the controvertial memorandum of May 4, 2004 and issued a new memorandum which mandated field offices not to deny a petition or application without first issuing a RFE or Notice of Intent to Deny unless the application or petition totally fails to meet the basic statutory or regulatory "thresholds." For instance, a permanent resident son or daughter cannot file an immigrant petition for the parents unless they first become a U.S. citizen. If such petition is filed, it is too obvious that there is no sense of issuing a RFE or Notice of Intent to Deny as the case fails to meet the fundamental statutory thresholds.
• The new memorandum not only restricts the adjudicators in the field offices of their authority to deny without RFE, but also mandates adjudicators not to issue a RFE or Notice of Intent using a boiler plate letter and languages in a broad brush without focusing on the specific circumstances and facts of each case. Additionally, the adjudicators are directed to act in an increased number of cases to seek a review of their decisions of denial by their supervisors.
• Immigrant community is likely to see no such denials from here on without first having an opportunity to explain or respond to any questions or issues raised by the adjudicators. We salute to the USCIS leadership for its bold act to resciend the prior memorandum and to issue a new memorandum to correct the ongoing arbitrary decision making activities by a few adjudicators. Let's send a big hat-off to Mr. Bill Yates!

02/19/2005: Washington Update 02/18/2005

• AILA's Washington Update provides a good summary of political, legislative, and administrative activities in Washington, D.C. on the issue of immigration each month. This month's edition also gives a plenty of information and news for the readers to update themselves with the Beltway activities during the weekend.

02/18/2005: HHS Published 2005 Poverty Guidelines

• The HHS published 2005 Poverty Guidelines effective today. But the effective date for the purpose of the immigration or immigrant visa proceedings will be determined by the USCIS and the DOS. The required income for the sponsor's Affidavit of Support, I-864 is 125% of the HHS Guidelines.

02/18/2005: State Department Proposed Rule for Electronic U.S. Passport

• The U.S. Department of State published today a proposed rule with the 45-day comment period to adopt an electronic passport for the U.S. citizen travellers. The eletronic passport will include an enhanced version of the traditional passport, using an embedded electronic chip to digitally carry the information printed on the data page, a biometric version of the bearer's photo, and coding to prevent any digital data from being altered or removed. See proposed rule.

02/17/2005: Pluses and Minus of H-1B Law Changes

• Beginning from March 8, 2005, the financial burden for the employers to file a H-1B petition for the H-1B transfer (change of employer) or to extend the H-1B status for the current employee first time will witness a big change because of the change of the laws. The changes bring some gains (pluses) to the employers and some losses (minuses) to the employers. Let's look at each of these pluses and minuses:
• Pluses: The prevailing wage level will be divided from the current two levels (entry-level vs. experienced-level) to the four levels (I, II, III, IV). When it comes to the entry level jobs and the highest level jobs, these wage level change will not affect the required prevailing wage. However, mid-experienced level jobs will see much lower prevailing wages since the current experienced-level wage will be divided into three levels. For illustration, let's assume for the present discussion that the current entry-level wage is $50,000 and the same for experienced-level wage is $80,000 for the occupation "A." In order to derive the level II and Level III wages from the current wage survey, the new rule requies to subtract the current entry-level wage ($50,000) from the current experienced level wage ($80,000). The difference is $30,000. The new rule requires to divide such difference by 3. In our illustration, the result is $10,000. In order to derive level II figure, we are required to add $10,000 to the current entry-level wage ($50,000). The level II wage is determined to be $60,000. For the level III wage, we are required to subtract $10,000 from the current experienced-level wage($80,000). The level III wage is determined to be $70,000. The four-level wages are: Level I=$50,000, Level II-$60,000, Level III-$70,000, and Level IV=$80,000. Under the current two-level prevailing wage system, the employers had to pay prevailing wage of $80,000 inasmuch as it was an experienced-level job, no matter whether the job requires one year experience or 30 years of experience. This ridiculously unreasonable determination will disappear. For the employers hiring mid-experienced level professionals (Level II and Level III), they will be able to file such H-1B petition with much lower wages (not $80,000 but either $60,000 or $70,000).
• Minuses: The employers are required to face the following financial burden:
  • $500 Fraud Prevention Fee.
  • 100% prevailing wage requirement as opposed to current requirement of 95% prevailing wage requirement.
• Result: Balancing the foregoing pluses and minuses leads to the conclusion that it will be much advantageous and financially less burdensome to file such H-1B petitions before March 8, 2005, as the minus factors more than offset the gains from wage level reclassification. Employers may file such H-1B petitions as soon as possible, certainly before March 8, 2005.

02/16/2005: USCIS and Visa Posts Closings Monday, 02/21/2005, President's Day

• The federal government offices are observing the President's day, coming Monday, and the offices will remain closed. Those who need to file petition/application before February 22, 2005 should file by tomorrow via overnight.

02/15/2005: Senate Confirmed Chertoff, Secretary of Homeland Security

• By a vote of 98-0, the Senate approved President Bush's nominee, Chertoff, today, February 15, 2005 as the Secretary of Homeland Security Department. Read on. He was also sworn in as the Secretary today.

02/15/2005: DOL Releases the Backlog Case Shipping Schedule

• DOL eliminate monthly online report of Regions and States Labor Certification Processing Times. Instead, it started reporting the news of foreign labor certification processing. The first reported news is the shipping schedule of the labor certification applications which are filed before March 28, 2005 as follows:

  • Phases	State Receipt Date	Date Delivered to Backlog Centers
    1	Prior to 01/2003	Completed 12/31/2004
    2	2003 - 2004	No later than 03/31/2005
    3	01 - 03/27/2005	No later than 04/22/2005

02/15/2005: USCIS District Office Processing Times of 02/14/2005

• See homepage.

02/13/2005: Inflation and Anticipated Increase in Proverty Income Guidelines for 2005

• The HHS is expected to release the 2005 Poverty Income Guildelines in coming month. The Poverty Income Guidelines provide minimum income which the sponsors, joint-sponsors, and co-sponsors, of I-864 Affidiavit of Support must prove in order to sponsor the relative immigration. The ongoing inflation is anticipated to push up the income guildelines, most likely beginning from either end of March or beginning from April 2005. Just beware!

02/13/2005: DOL FY 2006 Budget Proposes $40 Million PERM Filing Fees

• DOL FY-2006 budget proposal reflects that the DOL would introduce a legislation to charge filing fees for the PERM applications and $40 million will be funded by the PERM fee collection. The exact fee has yet to be disclosed. Please stay tuned to this web site for this information. For the DOL/ETA FY-2006 Budget proposal, please click here.
• In FY 2006, $13.1 million is requested for grants to States for the Foreign Labor Certification activity, which reflects a shift in resources from grants to States to Program Administration to reflect the new allocation of responsibilities under the Permanent Foreign Labor Certification program and the federalization of application processing through the operation of centralized backlog and national processing centers. In FY 2006, it is expected that the program will process 100 percent of H-1B applications within seven days of the filing date for which no prevailing wage issues are identified; process 95 percent of H-2A applications within 30 days of need where there are no pending State actions; increase the number of audits conducted for the H-2B program by 5 percent over the previous year's baseline and implement new procedures necessary to eliminate the remaining backlogged applications.

02/13/2005: State Department Extends Validity of Visas Mantis Clearance for F, J, H, B, and L Science-Related Nonimmigrants

• The U.S. Department of State announces on February 11, 2005 that the validity of Visa Mantis clearance is extended.
• Visa applications for persons to study or work in certain sensitive scientific and technical fields are subject to an interagency clearance in Washington, DC, called Visas Mantis. Since 1998, the Visas Mantis clearance process has been used to screen against the illegal transfer of technology. Once the clearance process is complete and a visa is issued, the individual may apply for admission at a U.S. port of entry. However, delay of and repeated requirement for the Visas Mantis clearance for these science-related nonimmigrants have caused nightmares to these scientists and academic and research institutions and the U.S. Department of State has been under fire for the visa backlogs for these nonimmigrants.
• Nows, the U.S. Department of State, in consultation with the U.S. Department of Homeland Security, has extended the validity of Visas Mantis clearances for the F (student), J (exchange visitors), H (temporary workers), L (intracompany transferees) and B (tourist and business) categories of visas. This means that if the original visa has expired and a new visa application is filed to return to the previous study or work program in the United States, another Visas Mantis clearance may not be required. Consular officers have the discretion, if warranted, to request a Visas Mantis clearance during any visa adjudication.
• International students (F visas) who have received a Visas Mantis clearance and been issued a visa will benefit from having that clearance be valid for up to the length of the approved academic program, to a maximum of four years. If a student changes academic programs, the clearance will no longer be valid and a Visas Mantis review would be required should the applicant reapply for a new visa.
• Temporary workers (H visas), exchange visitors (J visas) and intracompany transferees (L visas) can receive a Visas Mantis clearance valid for the duration of their approved activity to a maximum of two years. If the nature of the visa holder's activity in the United States changes, the clearance will cease to be valid and a new Visas Mantis review would be required should the applicant reapply for a new visa.
• Business visitors (B-1 visas) and visitors for pleasure (B-2 visas) can receive a Visas Mantis clearance valid for one year, provided that the original purpose for travel, as stated in the visa application, has not changed on subsequent trips. For the full text, please click here.
• The DHS also simultaneously announced the new policy. Read on.
  

02/12/2005: Reported Problem of Prevailing Wage Determination and Job Order for PERM Preparation

• As March 28, 2005, the starting date of PERM, approaches fast, the employers and immigration practioners had to take two preliminary steps in preparation for filing of PERM applications: One is the prevailing wage determination and the other is Job Order with the state offices. The DOL is requried to use the wage date for "four" levels for the PERM applications but currently has only "two" level data, entry level and experienced level. The state agencies are thus unable to give the required prevailing wage determination for the upcoming PERM application at this time. For the Job Orders, state agencies have been processing the 30-day Job Orders, but due to lack of guidance on the processing of Job Orders for PERM applications, state agencies take different positions when it comes to the details.
• In the immigrant community, a rumor started surfacing that the DOL allegedly issued a memoranum on January 27, 2005 to the state agencies not to assist the employers with the prevailing wage determination and job order if such request is filed for the PERM application. This rumor is reported by ILW.COM site.
• Lately DOL is, for unknown reasons, gradually operating and managing the foreign labor certification system and process behind the curtain and move away from the fundamental principle of "responsive" government. Currently the information on processing of backlog reduction applications and preparation of the PERM processing is shielded from the public and the consumers. Some may have access to such information, but for fear of the consequences of leaking of such information, the silent partners in the legal community remain in the closet as well, whispering only in the closet. The DOL is urged to return to the "open process" of government. This web site expressed yesterday a similar concern with the USCIS Pilot Program being operated without a notice and knowledge of the agency's consumers and public.

02/12/2005: Russian Orphan Adoption Snag by Russian Government

• The American Embassy in Moscow reported on February 11, 2005 that the adoption of Russian orphans was witnessing a snag due to the Russian government's delay in processing of such adoptions. Those U.S. citizen parents who are interested in adoption of the Russian orphans may review this posting.

02/11/2005: Reported Halt of USCIS NY District Pilot Program

• On February 3, 2005, the Metropolitan Desk section of the New York Times reported that the 90-day local I-485 fast-track processing Pilot Program ended on January 27, 2005. This report revealed two shocking information involving the USCIS Pilot Program. First, the report indicates that one of the main purpose of the Pilot Program was to detect swiftly 485 fraud cases rather than to expedite for the purpose reducing the backlogs. Secondly, a spokesman for the United States Citizenship and Immigration Services in Washington reportedly confirmed that the eight-month-old fast-track Pilot program had been implemented not only in Dallas and New York, but also in Miami, Chicago, and Los Angeles. The Pilot Programs in these districts other than Dallas District apparently have been undertaken without the notice of the public, not to mention any announcement! It sounds something must be straightened out.

02/10/2005: DHS 01/31/2005 Immigration Statistics Report

• The statistics of immigration benefits cases as of December 31, 2004 reflect a continuing reduction of backlog cases.

02/10/2005: DV-2006 Immigration Lottery Results - 6.3 Million Entries

• Notification to winners will be sent out between May and July 2005.
• Read on.

02/10/2005: March 2005 Visa Bulletin

• EB-3 EW "Other Workers" will retrogress to 07/01/2001 for all countries from March 1, 2005!
• EB-3 Professional/Skilled Workers for India, China, and Philippines will progress to 03/01/2002!

02/10/2005: Different Ports of Entries Give Different Asylum/Refugee Claim Chances

• The U.S. Commision on International Religous Freedom reportedly released its study and analysis of treatment of arriving aliens with the claims of asylum or refugee at the international airports in this country. According to the report, JFK is the toughest and harshest for the arriving asylum claimants and Miami is the most lenient airport with the record of allowing the asylum opportunities for the arriving aliens. Read on.

02/10/2005: Driver License Restriction "Real ID" Bill Passed the House Today

02/09/2005: Five Service Centers Processing Times 02/09/2005

• See the homepage.

02/09/2005: Is "March 28, 2005" PERM Deadline or Starting Date?

• March 28, 2005 is the first day when people can file the newly reengineered labor certification application under the PERM rule. However, the DOL does not appear to be well prepared for the new beginning of American labor certification system. There are so many areas of rules and standards which are vague and unclear and the DOL appears to be still at the stage of developing answers to all of these confusing rules and standards. On top of all of these, the state agencies that have to play one of the important roles in the labor certification processing by providing prevailing wage determination and job order processing do not have clue in a number of states as to how to do the job. One state official even raised a question of legality or ethicality of attorneys filing the job orders with the state agencies.
• The backlog reduction processing details seem to be also at the stage of developing because of the DOL's position of "wait and watch" as to how and in what scale the backlog reduction cases will be switched to the PERM cases.
• Pending the launch of the PERM processing, it appears that the immigrant community may remain in a state of confusion, watching carefully how the new system will unfold. By the end of April 2005, a number of the confusing questions may be answered by the DOL based on its experience during the first few weeks of the PERM program administration.
• Experts, including AILA, predict that the rate of PERM application filings may be fairly low at the initial stage because the immigrant community has yet to see how the confusing rules and standards will be cleared up. Unfortunately, however, some of immigration practitioners and immigration brokers drum up the PERM program and falsely give an impression that the applications should be filed on the first day of the new system, March 28, 2005, creating tensions and adding confusions in the immigrant community. Most of these practitioners and brokers have yet to find answers themselves to a number of questions. The immigrant community should understand that March 28, 2005 is the beginning of new process and not, repeat not, the deadline of filing of new applications. Prudence dictates that the immigrant community should calm down and take a little bit of time to see how the new system will unfold after March 28, 2005 considering a number of traps embedded in the PERM rule and potential high risks involved.

02/08/2005: DOL Notice of Mail Addresses for PERM Filing by Mail

• For those who opt to file the PERM applications from March 28, 2005, the DOL published a notice today to announce the addresses and jurisdictions of Atlanta Processing Center and Chicago Processing Center as follows:
  • Atlanta Processing Center: U.S. Department of Labor, Employment and Training Administration, Harris Tower, 233 Peachtree Street, NE., Suite 410, Atlanta, Georgia 30303; Phone: (404) 893-0101, Fax: (404) 893-4642
    
    Jurisdiction: Alabama, Connecticut, Delaware, Florida, Georgia, Kentucky, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New York, North Carolina, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Tennessee, Vermont, Virgin Islands, Virginia, Washington DC, West Virginia
  •  
  • Chicago Processing Center: U.S. Department of Labor, Employment and Training Administration, 844 North Rush Street, 12th Floor, Chicago, Illinois 60611; Phone: (312) 886-8000, Fax: (312) 886-1688.
    
  • Jurisdiction: Alaska, Arizona, Arkansas, California, Colorado, Guam, Hawaii,
    Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Michigan, Minnesota,
    Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, Ohio,
    Oklahoma, Oregon, South Dakota, Texas, Utah, Washington, Wisconsin,
    Wyoming, U.S. Department of Labor, Employment and Training
    Administration, 844 North Rush Street, 12th Floor, Chicago, Illinois
    60611; Phone: (312) 886-8000, Fax: (312) 886-1688.
• See F.R. Notice.
  
  
  

02/08/2005: USCIS FY-2006 Budget Proposal and Immigration Wonderland

• The USCIS FY-2006 budget proposal is characterized by the following three wonderland promises:
  • Slash the backlog initiative budget from $180 million in FY 2005 to $100 million in FY 2006; but
  • Achieving the 6-month immigration benefits processing times by the end of FY 2006;
  • Expand the premium processing services from the employment-based petitions/applications to the non-employment-based petitions and applications during FY 2006.
• Hmmmm..........................................................................

02/07/2005: DOL HQ 12/03/04 Technical Instructions for SWA Case Transfer Schedule to Backlog Processing Centers

• This instruction was issued on December 3, 2004 and the labor certification cases at the state offices have been shipped to the two Backlog Processing Centers in Philadelphia and Dallas. It is expected that additional Techinical Guidance will be issued in the near future. See Shipment Schedules.

02/06/2005: DOL Backlog Processing Center E-Mail Status Inquiry System

• Sources indicate that the Backlog Processing Centers have in place the e-mail inquiry system for those cases which have been issued 45-day letters. This inquiry will be available only after 90 days of responding to such 45-day letter. The BPC will respond to such e-mail inquiry in three days.
• E-mail inquiry requires (1) the exact employer name; (2) First and Last Name of the Alien Beneficiary; and (3) BPC case number which is printed in the 45-day letters. Any inquiries without these entries or premature inquiries or any other inquiries which are not related to the 45-day letters are likely to be ignored. Readers, please do not send the e-mails unless you meet the foregoing requirements.
• The e-mail addresses for Dallas and Philadelphia Backlog Processing Centers are: status@dal.dflc.us and status@phi.dflc.us

02/06/2005: 20,000 U.S. Master's Degree Holders' H-1B Filing from 03/08/2005 to be Centralized at the Vermont Service Center

• The USCIS officials have confirmed our earlier report that the 20,000 additional H-1B cases for those with a master's degree from a U.S. higher learning institution will be filed with and processed by the Vermont Service Center. It is expected that the USCIS will release an announcement to this effect in the near future.

02/05/2005: InfoPass - A Customer's Guide

• The USCIS has issued this Guide to assist the immigrant community with the appropriate use and access to the InfoPass. Read on.

02/04/2005: USCIS Memorandum on Eligible Classes of Battered Spouses and Children for Short-Cut Naturalization

• The USCIS HQ issue a memorandum to give guidance to the field offices for handling a naturalization application by those permanent residents who obtained the green card through the battered spouse and children petitions (I-360). Such permanent residents are eligible for naturalization after three years rather than five years in permanent resident status once the abusive spouse obtains a naturalization. The motion to reopen is available in certain cases. Please read the memorandum.

02/03/2005: Immigration Agenda Reflected in President's State of Union Address

• President Bush called on Congress to work with him to achieve significant immigration reform by:
  • controlling the borders;
  • matching a willing worker with a willing employer when no American is willing to fill the job;
  • protects workers from abuse;
  • provides incentives for temporary workers to return to their home countries and families; and
  • rejects amnesty and protects the rights of legal immigrants while not unfairly rewarding those who came here unlawfully or hope to do so.
• It appears that his immigration reform totally focuses on the Temporary Guest Worker Program. We will watch and see how successful his agenda will be materialized.

02/02/2005: NSC EAD Issuance Practice - Valid from Approval Date

• The Nebraska Service Center is currently issuing EAD or renewal valid from the "date of approval" of the application and not from the date of expiration of existing EAD except the F-1 OPT EADs. This practice reminds the EAD applicants of importance of applying for an EAD sufficiently early on in order not to experience expiration of existing EAD before the renewed EAD is approved and issued. This is particularly important considering the fact that the USCIS HQ takes a position that for the purpose of the eligibility of 245(k) benefits for the EB-485 filers, the employment during the gap is considered unauthorized employment and such period will be added to the period of six-month unauthorized employment for the purpose of 245(k) benefits for the EB-485 filers. The EB-485 waiters who are subject to the EB-3 visa number retrogression should be mindful of this advisory since they will have to keep extending their EADs for a number of times during the period of visa number unavailability and such gaps between the EADs will deprive them of the 245(k) benefits and their EB-485 can be denied for the unauthorized employment which is a bar to adjustment of status under the immigration regulation.
• The NSC practice is reportedly dictated by its needs to process the EAD cards through the automated production system and it is not likely that the NSC will change this practice in the future.

02/02/2005: Consulate Visa Application Fee Changes Effective 03/08/2005

• The U.S. Department of State publishes a final rule adjusting the fees for some visa applications and consular services effective March 8, 2005. This includes $500 Fraud Prevention Fee for L-1 applicants using the Blanket L-1 petitions. Read the final rule.

01/31/2005: Chicago Region V Cases Are on the Move in Dallas Backlog Processing Center

• We posted on January 21, 2005 the information from the DOL sources that the cases pending at the Chicago Region V office had been transferred to and data-entried at the Dallas Backlog Center. The next step was reportedly to mail out so-called 45-day letters. The attorneys including this law firm started receiving such 45-day letters indicating that the Dallas Center had moved to the next phase for the Chicago Region office cases. Small good news.

01/31/2005: Justice Department Mandates DHS Security Clearance Prior to Granting Reliefs by Immigration Courts & BIA

• We reported earlier that the EOIR was seeking OMB approval for this rule. Today, the EOIR published this Interim Rule which takes effect on April 1, 2005. This rule amends Department regulations governing removal and other proceedings before immigration judges and the Board of Immigration Appeals when a alien has applied for particular forms of immigration relief allowing the alien to remain in the United States (including, but not limited to, asylum, adjustment of status to that of a lawful permanent resident, cancellation of removal, and withholding of removal), in order to ensure that the necessary identity, law enforcement, and security investigations are promptly initiated and have been completed by the Department of Homeland Security prior to the granting of such relief. Read the rule.

01/30/2005: IT Occupations, EB-2, and PERM

• We discussed in the immediate preceding posting the problem of definition and treatment of Computer Systems Analyst under the PERM. Don't close your lips yet, though! Under the DOT Code which we use for the current labor certification application, a number of IT occupations belong to SVP 8, including but not limited to Software Engineer, Database Administrator, Chief Computer Programmer, Scientific & Engineering Programmer, etc. These SVP 8 occupations are considered typical EB-2 occupations that require a Master's degree or a Bachelor's degree plus 5 years of progressive experience as the years of vocational preparation time ranges from 4 years to 10 years. Shockingly, however, none of IT occupations are defined as SVP 8 occupations under the O*NET Job Zone definitions and the PERM. The Job Zone 5 is defined to include an occupation requiring SVP 8 or higher vocational preparation time. All the IT occupations other than Computer Systems Analyst are defined as Job Zone 4 that ranges higher than SVP 7 and lower than SVP 8. The SVP 7 can require maximum of 4 years of vocational preparation time. Traditionally, DOL has been scrutizing carefully SVP 7 labor certification application if the employer requires a Bachelor's degree and the employers had to carefully craft out the job description and qualification requirement to establish the professional nature of the job. When a Master's degree is required for the SVP 7 jobs, most of SWA officials and the Regional Certifying Officers challenged such requirement as unduly restrictive requirement for exceeding the SVP limit.
• Now, the DOL intends to insist that the employer takes the lower end of SVP in each Job Zone, meaning SVP 7 for the IT occupations. In order for the employer to require a Master's degree, employer may not be able to require any experience. Besides, even if no experience is required, a Master's degree requirement can be challenged for the SVP 7 occupations. Obviously, in practice, the Certifying Officers may consider the DOt definition of occupations in sorting out the EB-2 jobs as opposed to the EB-3 jobs even though the O*NET Job Zone is identical in all the IT occupations. For instance, even though both Computer Programmer and Software Engineer belong to the same Job Zone 4, if the employer requires a Master's degree for the Computer Programmer, it is likely that the Certifying Officer may challenge such requirement, while a Master's degree requirement for the Software Engineer may not be challenged by the Certifying Officers. Even if the employer manages sufficiently proper job duties and responsibilities to the level of a Master's degree education profession, there still remains an issue of whether the employer can require any experience on top of a master's degree because of the Job Zone 4. It is expected that this is the area where the Certifying Officers will have a broad range of discretion and power. For the same reasons, the Certifying Officers should be equipped with sufficient expertise and experience not to make an arbitrary decision without a clearly defined standard. Some observers feel nervous because the newly hired analysts may not have sufficient expertise and the decision on this issue can reveal arbitrariness based on one's idiosyncracies rather than clearly defined legal standards and concepts. We will have to watch it very carefully.

01/30/2005: "Computer Systems Analyst": Unfair Treatment as "Hybrid" Occupation Under PERM

• It is an irony that to bring in a Canadian computer professional on a professional TN-visa, employer must define the job as Computer Systems Analyst and none of other IT occupations are eligible for the TN visa. (Software Engineer is treated as an engineer and sometimes admitted on a TN). On the other hand, the employers may avoid the occupational title of "Computer Systems Analyst" when they file a PERM application because of the unfair and hybrid treatment of this occupation. The PERM requires that the employers follow O*NET Job Zone to determine the level of SVP and maximum vocational preparation requirement determination including the level of education and experience. Believe it or not, all the IT occupations other than Computer Systems Analyst belong to Job Zone 4. The Job Zone 4 stands in-between SVP 7 and SVP 8. Even Computer Programmer belongs to Job Zone 4. However, Computer Systems Analyst belongs to Job Zone 3. The Job Zone 3 stands in-between SVP 6 and SVP 7. SVP 8 occupations include those which requires from 4 years to 10 years of vocational preparation time. For the purpose of vocational preparation time, a Bachelor's degree is 2 years and a Master's degree is 4 years. Accordingly, when an occupation belongs to SVP 8, generally employers can require a Bachelor's degree plus from 2 years to 8 years of experience or a Master's degree plus from 0 years to 6 years of work experience. SVP 8 occupation is considered a typical EB-2 jobs. SVP 7 occupations include those which requires from 2 years to 4 years of vocational preparation time. Thus, for the SVP 7 jobs, employers can require a high school education and 4 years of experience or a Bachelor's degree plus 2 years of experience maximum at the high level. Accordingly, not all of the occupations in SVP 7 are even considered professional occupations requiring a Bachelor's degree. SVP 6 includes occupations that require less than 2 years of vocational preparation time and cannot require a Bachelor's degree.
• The foregoing formula dictates that if the employer files a PERM application with the occupational title of Computer Systems Analyst requiring a Bachelor's degree, the application will be denied unless the employer proves so-called "business necessity" for exceeding the standard vocational preparation time. Considering the general understanding of the occupation of Computer Systems Analyst as one of the professional occupations in the IT industry, the definition of this occupation in the O*NET Zone is literally absurd.
• However, the absurdity does not end there. The PERM does not treat this occupation as a professional occupation for the purpose of maximum education and experience the employer can require for the recruitment. On the other hand, when it comes to advertisement and recruitment requirement, Computer Systems Analyst is considered a professional occupation under the PERM and unless the employer completes three-mandatory recruitment steps (job order + two newspaper ads) plus three alternative recruitment steps, such application will be considered defective for the PERM. Obviously, employers will just avoid the occupational title of Computer Systems Analyst, but the DOL should act to remove such absurdity by one of two means: Either change the O*NET Zone definitions or change the PERM policy of taking lower end of the SVP in a Job Zone as the maximum an employer can require. For instance, Computer Systems Analyst is Job Zone 3 that ranges from SVP 6 to SVP 7. The PERM should adopt SVP 7 requirement for Job Zone 3 so that the DOL accept the reality that the IT industry requires minimum of a Bachelor's degree for the occupation of Computer Systems Analyst. The DOL is urged to announce its policy on this issue as soon as possible to avoid an embarrasing confusion in the immigrant community.

01/30/2005: Reminder to Chinese, Indian, Filipino EB-3 I-485 Waiters

• It appears that there are some Chinese, Indian, and Filipino EB-3 I-485 waiters who do not realize that there is currently a EB-3 visa cut-off date of 01/01/2002 and unless their labor certifications were submitted on or before 01/01/2002, their pending I-485 applications cannot be adjudicated. For these applicants, the I-485 processing times report of the Service Centers will remain irrevant because of the cut-off date. Accordingly, they should not waste their time to check the I-485 processing times in the USCIS online processing time reports. Rather they should check the Visa Bulletin each month to learn about when the USCIS will resume processing of their pending I-485 cases.
• This information is posted because there are apparently some Chinese, Indian, and Filipino clients who call their legal counsel's offices to protest why their cases have not been adjudicated when the Service Center Processing Time report passed their I-485 Receipt Date, not knowing that the Service Center Processing Time reports are irrelevant to their cases because of the EB-3 visa cut-off date.

01/30/2005: USCIS Processing Times Reports Changed Back to Post-Date of January 21, 2005

• USCIS changed back to its initial posting date of January 21, 2005 for the Service Centers' processing Times and January 14, 2005 for the local district offices processing times. Please see our homepage.

01/29/2005: Signs of NSC Unleashed from I-140/I-485 Concurrent Adjudication Mandate

• Ever since the USCIS withdrew the concurrent adjudication policy memorandum, the NSC started adjudicating the concurrently filed I-140 petitions and our firm started receiving the approval notices for I-140 petitions including those who are subject to the EB-3 visa number retrogression. This is a relief for some people who need to use AC-21 180-rule for change of employment.
• One other good news for those who are stuck with the visa number retrogression is that the USCIS will continue to adjudicate pending I-140 petitions regardless of the visa number unavailability, according to the USCIS HQ sources. Considering the fact that they may have to wait a long time before the EB-3 visa numbers become available again and face increased risk of losing jobs, this policy is indeed a big plus for these Indians, Chinese, and Philippinos.
• This policy for the employment-based immigrant petition is different from the current policy on family-based I-130 petitions which the USCIS will not adjudicate until the visa number becomes available. However, even for the I-130 petitions, the USCIS HQ sources indicated that once the current processing backlog are reduced, it would go back to the previous policy of adjudicating pending I-130 petitions even if the visa numbers would not be available.

01/29/2005: OPT International Travel and Requirement for Reentry to the U.S.

• The liaison minutes of NAFSA with the DHS elaborates the following policy of the DHS:
  • If the OPT is approved but the EAD has yet to be issued, the OPT can leave and reenter the country to resume looking for a job.
  • Once the EAD is issued, OPT cannot reenter the U.S. unless the OPT has (1) already had a job offer or (2) commenced employment before departure. In these cases, DHS will allow the OPT to reenter for the purpose of either taking the offered employment or resuming the employment.
• Watch out. Please click here for the NAFSA minutes.

01/28/2005: Michigan SWA Notification of Alien Labor Certification Processing Change

• Michigan SWA has sent out notification to the alien labor certification filers and customers regarding the ongoing procedural change in handling alien labor certification application in the office. The SWA advises that until March 28, 2005, people should keep filing labor certification application with the SWA, and the SWA is transferring the applications to the Dallas Backlog Processing Center. This letter implies that the cases which are filed at the SWAs in the jurisdiction of former Chicago Region V are not forwarded to the National Processing Center in Chicago but to the Dallas Backlog Center. See the letter notification.

01/28/2005: DOL/ETA Regional Information Alert on Labor Certification Application

• This ETA Regional Information Alert is issued and transmitted to all the Regions to alert the Regions and the State offices on the labor certification application program changes, reorganization, and contact information. Read on.

01/28/2005: GAO Reports to Congress Against the Requirement of Annual Report of Address for Nonimmigrants

• The Enhanced Border Security and Visa Entry Reform Act of 2002 directed GAO to study and report utility of a new system mandating all the nonimmigrants report their address annually. The GAO reported negatively. Read on.

01/28/2005: USCIS New Premium Processing Request (I-907) Form

• USCIS has released a new I-907 form which is in effect but the old version may be accepted until September 30, 2005. The purpose of the change is not made clear but probably it is intended to incorporate additional types of petitions or applications in the days ahead. It is also intended to help the agency inter-lint the Premium Processing Request to the pending petitions or applications.
• Please take a note of the followings:
  • The I-907 check must be made payble to neither USCIS nor U.S. Citizenship and Immigration Services. According to the instruction, check must be made payable to Department of Homeland Security. The abbreviation of USDHS or DHS is "not" acceptable.
  • The I-907 is supposed to be filed not only for a petition but also an application as well. Currently, the only benefits one can seek for the Premium Processing Request are limited to the employment-based nonimmigrant petitions. Until the USCIS releases a regulation expanding the PPS to other types of benefits, the PPS will continue to remain with and limited to the eligible nonimmigrant employment-based petitions under the current regulation.
  • The form also reminds the legal counsels to file a separate G-28 with the petitioner's signature in the event that the petitioner already filed the petition and is seeking PPS for the pending I-129. Up to now, the Service Centers have been lenient in providing PPS even if there was no signature of the client in the follow-up G-28.
  • As usual, the alien beneficiary can pay the PPS fees but cannot sign I-907. Only a petitioner (employer) can sign and request the PPS request.
• Please review the new I-907 form.

01/27/2005: Bush's Temporary Guest Worker Program Push Facing Stalls in Congress by Fellow Republicans

• Report indicates that the President urged the Congress in the White House press conference yesterday to act on the Temporary Guest Worker Program. The President's move was reacted by cold shoulders among the fellow Republicans in the House. The powerful Rep. Sensenbrenner of the Judiciary Committee expressed his strong resentment and disagreement by two actions. First he, shortly after the President's press conference, introduced the REAL ID Act of 2005 which is the bill which he had failed to pass in December 2004 as part of the Intelligence Bill. Second, he declared that the Congress would have so many other pressing legislations to be taken care of this year and he did not expect to deal with the Temporary Guest Worker Program this year. His opposition to any positive immigration reform appears to be much broader than the Temporary Guest Worker Program in that he opposes any immigration reform this year. Mr. Congressman, please do not take your last year's driver license restriction bill failure too personally and emotionally. Read on.

01/27/2005: USCIS Changed Processing Times Report Date to 01/13/2005

• USCIS changed, for the unknown reasons, the processing time report date to January 13, 2005 across the board including local district offices, four Service Centers, and National Benefits Center. The reports of the Service Centers processing times have already confused the immigrant community because of the reporting of the same processing information by the two different sources, AILA and USCIS, on different dates. The USCIS' today's action to move backward the proceesing time reporting adds further confusion. If the USCIS was intended to use one fixed date for reporting all the field offices, it would have been better if it would adopt such reporting format in the future rather than moving backward the report date.

01/27/2005: USCIS/DOL Propose H-2B USCIS Direct Filing With Potential DOL Post-Filing Audit

• Today, USCIS and DOL simultaneously released proposed regulations to streamline the H-2B filing procedure from the current two-tier system to the single-tier system. Under the proposed regulation, H-2B employers will file H-2B petitions with the attestations with the USCIS and the DOL will be involved when it determines to conduct post-filing audit of attestations. Certain occupations are excepted from the procedural change. Comment period ends on 02/28/2005. Read on. DOL Rule. USCIS Rule.

01/27/2005: USCIS Memorandum on EB-5 Immigrant Investor, Investor and Regional Center Unit

• USCIS released a memorandum on Regional Center Unit Establishment for EB-5 Investor Immigration. Please check the followings:
  • Establishment of a Investor and Regional Center Unit Memorandum
  • Attachment: Investor and Regional Center Unit Mission and Organization

01/26/2005: PERM, EW Retrogression, and Importance of Priority Date Preservation

• The newly reengineered labor certification system, PERM, is more or less favorable to nonprofessional or unskilled workers than professional workers for a number of reasons. Firstly, it removed so-called Schedule B for these occupations. Currently, the Schedule B occupations are barred from the labor certification unless the applicants get a waiver. Removal of Schedule B is expected to open a flood gate of applications by the nonprofessional workers. Secondly, the PERM requires a very limited recruitment activities by the employer as a threshold requirement. For the nonprofessional occupations, it only requires a Job Order and two Sunday newspaper recruitments, as opposed to the professional occupations which require more or less national and electronic search of applicants using three additional recruitment sources which will be very expensive. This change projects a false image that this country's immigration policy is moving toward the direction focusing on bringing in nonprofessional workers and not professional workers. Among professional workers, the aliens who are and will be hit hard by the change is occupations that only require a bachelor's degree. The occupations that require an advanced education somewhat are welcome by the recent legislation on the new H-1B rule for medical doctors and U.S. advance degree holders and other legislative changes. The bachelor's degree holder professional workers are squeezed in the middle. The upcoming Temporary Guest Worker program will also focus on the nonprofessional workers.
• There are some indication that the sharks may mushroom and become pervasive to defraud the system and produce nonimmigrant worker victims with scams and fraudulent activities. These nonimmigrant workers should understand that there are only small number of annual quota available for "other workers" classification (EW) and it is expected that the backlog of this classification may grow tremendously in the future as it was before the visa numbers for EB-3 employment-based immigration classification became current not long ago. PERM may open a little bit of wider window for these workers to pass through the labor certification process, but then they will have to face a very high and thick wall ahead of them for their final journeys to the immigration, immigrant visa quota. It can be a long journey.
• Scam artists will induce these workers to fall into a trap by encouraging conversions of pending labor certification applications. Without doubt, a large number of earlier cases which are pending may include the nonprofessional occupations that has a promise of 245(i) benefits and swift processing of their applications under the First In First Out processing policy of the DOL. For these workers, preservation of their priority date will be much more important than obtaining the labor certification quick because of the upcoming visa number retrogression. They should not fall into a scam artist's trap. To a lesser degree, the same may apply to new filers. PERM does not guarantee a short cut to immigration as scam artists project for two reasons, among others: Firstly, they will have to face a tall wall of visa cut-off date. Secondly, the DOL and the DHS will without doubt reenforce the law enforcement activities to crack down the fraud rings and fraudulent activities. The eventual by-roduct of such reenforced law enforcement activities will turn out to be the defrauded alien workers who will have wasted a tremendous amount of money and time and face deportation. Sharks may be sharpening their teeth and they should exercise cautions.

01/25/2005: USCIS Memorandom : Determination of Good Moral Character in VAWA-Based I-360 Self-Petition

• Mr. William Yates issued a memorandum to the Director of Vermont Service Center to give a guidance on determination of good moral character which is condition for VAWA-based self-petition and waiver of good moral character in certain self-petitions. The following accompanying attachments give additional specific guidelines:
  • Attachment: Waiveable Conduct
  • Attachment: False Testimony Determination

01/24/2005: President Intends to Nominate Michael Jackson Deputy Secretary of DHS

• The President intends to nominate Michael Jackson, of Virginia, to be Deputy Secretary of Homeland Security, according to the White House announcement today. Mr. Jackson currently serves as Chief Operating Officer of AECOM Technology Corporation, Government Services Group, in Fairfax, Virginia. From 2001 to 2003, he served as Deputy Secretary of Transportation at the Department of Transportation. Earlier in his career, he held several positions at Lockheed Martin IMS, Transportation Systems and Services, including Vice President and General Manager of Business Development and Chief Operating Officer. Mr. Jackson received his bachelor's degree from the University of Houston and his Ph.D. from Georgetown University.
• The USCIS is under the direct command of the Deputy Secretary of DHS. Today's resignation of the Undersecretary Asa Hutchinson coincides with the announcement of the Deputy Secretary nomination.

01/24/2005: "Other Workers" Visa Numbers to Retrogress

• Visa Bulletin February 2005 indicates that the State Department was predicting that the other workers category might also show cut-off date worldwide, including India, China, the Philippines, as early as March 2005 Visa Bulletin.

01/24/2005: DHS Secretary Nominee Predicted to Bring Shake-Up in DHS Leadership

• Report indicates that the nominee of the DHS Secretary intends to bring his people to the key leadership positions in the DHS to ensure achievement of his agenda and reportedly the Undersecretary Asa Hutchinson is one of those who have been seeking the exit strategy. AILA reports that Asa Hutchinson may depart as early as March 1, 2005. The AILA is confirmed by the Washington Times that he resigned today. It is unknown whether the shake-up will lead to the harder-line policies in the immigration issues, but the line-up indicates that such swing could not be brushed aside. Read on.

01/22/2005: Service Center Processing Times Report 01/21/2005

• See the home page.

01/21/2005: PERM Processing Update

• Issue of PERM Filing Without Conversion: DOL has yet to make a final decision, but expressed its intent to prohibit a same employer to keep two applications for the same employee because of the concerns with the potential fraud.
• Prevailing Wage Determination: Currently state offices do not provide the prevailing wage determination per the new law that requires four-level wages and 100% payment. It is the DOL view that the new wage determination rule under the new law does not become effective until March 8, 2005 and implicitly hinted that people would not see such wage determination in the near future. DOL opined that in the event that employers want to use current wage determination, they may do so paying 100% of the SWA determination on the current level-structure.

01/21/2005: DOL Backlog Reduction Processing Update

• The DOL did not disclose in details a number of issues in the PERM Briefings which the consumers were interested in. It turned out that some of these issues had been discussed with the AILA in telephone conference before the PERM Briefing sessions began. Some of these issues had been answered as follows:
• Status of Processing at the Backlog Processing Centers:
  • The cases which were transferred from the Regional Offices were processed first. For these cases, initial letters have been being sent out. Once the responses come back from the applicants, they will start adjudicating the cases. The current state is as follows:
    • Dallas, Philadelphia, and San Francisco Regions Cases: Data entry for these cases has been completed and letters have been sent out and the Backlog Centers are awaiting the responses for further processing and adjudication.
    • Chicago and Atlanta Regions Cases: These cases have been transferred to the Backlog Centers later and currently being data-entried. Once the data entry is completed, letters will be sent out the applicants as it did with the Dallas, Philadelphia, and San Francisco Regions cases.
  • The cases which were transferred from the SWA (state offices) are at the stage of data entry. Once data entry is completed, the same steps will be taken as described above.
• Processing Queue per FIFO: Shockingly, there are no separate queues between RIR and Regular cases and both RIR and Regular cases are being processed on FIFO in a single national queue. Consequently, RIR cases will experience a substantial delay once the cases are transferred to the Backlog Centers!!
• Opened Cases vs. Unopened Cases: Under the Transition Guideline, unopened cases have been transferred to the Backlog Centers and opened cases will be completed by the SWAs. The definition of "opened cases" is the application packages which are at the SWAs in unopened boxes or where no letters have been issued by the SWAs to the applicants. Accordingly, those who received a letter from the state offices may be completed at the state offices rather than being transferred to the Backlog Centers.
• Notification of Address Changes of the Applicants or Attorneys: If one knows that his/her case has been transferred to the Backlog Centers, the notification should be addressed to the Backlog Centers. If one does not know, DOL suggests to such notification to both the Backlog Center and the SWA office.
• Address of Certifying Officers and SWA in the Notice Posting for Cases to be Filed before 03/28/2005: People should follow the same rules and requirements under the current labor certification regulation. Thus the notice posting should direct the public to file misrepresentation or complaints to the office of Certifying Officer's office and the state labor certification unit. Remember, though, some Regions, addresses have been changed: Chicago and Atlanta offices.

01/19/2005: Labor Certification Processing Time Report of January 13, 2005

• Note: (1) The Regions processing times dates have moved reflecting a shift of cases from the various offices to the Backlog Centers.
• (2) State Processing Times reflects the date the application was received by the State.
• Please see home page.

01/19/2005: President Bush's Inauguration on the 20th and Beltway Under Siege for Parties and Celebration

• As Washington prepared to celebrate President Bush's inauguration, the city appeared more like a place under siege, according to the New York Times. Government workers in the city, who already had been given Thursday off, were being encouraged to work from home on today, Wednesday, the day before the inauguration. Local law enforcement officials warned motorists that most downtown streets would be off limits. The AILA National Office follows the suite due to the access problem. Newsreport indicates that the authorities estimate that a half-million people or more will come into the city for the swearing-in at noon Thursday at the Capitol, and later, for the parade along Pennsylvania Avenue. On Thursday night, thousands of people are expected to attend formal inaugural balls, private parties and elegant dinners that will culminate the celebration. Throughout the day on Tuesday, disruptions were the norm. Drivers found no-parking signs, temporary street closings and public warnings that 100 blocks of city streets near inaugural events would be restricted. For the immigration offices, the local district office in DC and Application Support Centers in Alexandria-Huntington and Glenmore will remain closed on Thursday, tomorrow.
• The immigration news from the government offices may also be very sparce or nil for the rest of the week. Zz............................
  

01/18/2005: 01/18/05 Immigration Statistics Report: 23% Backlog Decline and $39% Denial Surge in Nov. 2004 over Nov. 2003

• The DHS has just released the immigration statistics as of the end of November 2004. This reflects the recent trend of immigration petition/application processing and adjudications. At the end of November 2004, the rate of denial of applications/petitions increased 39% over the statistics in November 2003, reflecting increasing trend of denials during the last one year. Meanwhile, the backlogs have reduced 23% in November 2004 over the fingures in November 2003. The statistics does not separate between the family-based and the employment-based applications/petitions, but apparently employment-based applications/petitions have been reduced quite substantially as well. This is reflected in the decision of the U.S. Department of State to set up a cut-off date in the Visa Bulletin for Indians, Chinese, and Filipinos.
• Please click the followings for the monthly statistics as of the end of November 2004 which was released on January 18, 2005:
  • Immigration Benefits
  • Other immigration statistics including naturalization, inspections, removals, asylums.

01/17/2005: PERM, Withdrawal for Conversion, and 245(i) Grandfathering

• The DOL Inspector General's audit of backlog cases indicates that a majority of the backlog cases were filed before April 30, 2001 for the benefit of 245(i). Indeed, in the backlog reduction processing by the Backlog Processing Centers, these cases may be processed fairly at the initial stage under the principle of FIFO. Accordingly, it is anticipated that these applicants are less prone to refiling of the labor certification application after withdrawing the long-pending applications.
• For these people, withdrawal of pending labor certification application may affect not only priority date (if they are Indians or Chinese or Filipinos), but also the 245(i) benefits. However, unlike the issue of priority date, withdrawal and refiling will have no affect on the 245(i) grandfathering inasmuch as the application was "approvable when filed." ``Approvable when filed'' means that, as of the date of filing of the application for labor certification, the application was "properly filed," "meritorious in fact," and "non-frivolous" (``frivolous'' meaning patently without substance). These are all technical terms and people should seek legal counsel. The same rule applies to denial or revocation of the labor certification application. The denial or revocation of the labor certification application will not affect the 245(i) grandfathering inasmuch as the application was "approvable when filed," but denied or revoked after filing because of certain events that developed after filing of such approvable application. In this regard, 245(i) is not an issue directly related to the labor certification application proceedings but rather an issue which is related to the USCIS adjudication proceedings.
  

01/15/2005: Parallel Filing of Conventional and PERM Labor Certification Applications: Issue of Policy

• This web site reported years back the DOL's 5-Year Strategic Plan which gave birth to the Permanent Labor Certification System Reengineering. The thrust of the reengineering was removal of backlogs and achievement of effectiveness and efficiency in management of the foreign labor certification program under the budgetary constraints. The reengineering was, for all the purposes and intents, never introduced to increase the backlog or to lower the level of effectiveness and efficiency of the program management. Change of the labor certification system from the two-tier (state-federal) to one-tier was never intended for political purposes nor for any other tricks. The goal was to reduce the backlogs and to handle future labor certification applications in a manageable manner such that the country would not experience another nightmare of mounting backlogs.
• From the standpoints and purposes of the reengineering, it is doubtful whether the labor certification system after March 28, 2005 will favorably accomodate any ideas that can create more backlogs rather than reduce backlogs. Playing a devil's advocate, one may argue that the new labor certification system to permit parallel filings by an employer for the same alien beneficiary and same occupation betrays the purpose of the labor certification system reengineering in the sense that such policy will increase the caseloads rather than reduce the caseloads and lead to inefficiency and ineffectiveness of the labor certification management.
• Without doubt, the DOL must have realized by now that the newly reengineered system under the PERM regulation has a serious flaw discouraging conversion of pending application to the PERM application. This in itself more or less slaps the face of the purpose of the reengineering. To allow parallel filings of pending application and new PERM application may be perceived by political forces another slapping of the face of the purpose of the reengineering leading to the total failure of the labor certification system reengineering. The immigrant community hoped that the PERM regulation would have devised a conversion process that meets the dual purpose of achieving reduction of backlogs and at the same time smooth transition of the applicants from the backlog reduction track to the PERM application track. Having failed that, the DOL may have a serious problem to adopt a policy that permits the applicants to keep pending labor certification applications and at the same time to file another applications under the PERM system as it can increase tremendously the number of cases. It turns out that the launch of the PERM program under the new regulation may hurt both the system and its customers unless it is amended quickly to accomodate both the needs of the government and the needs of the customers.

01/15/2005: Unresolved Issue of Withdrawal of Pending Labor Certification Application for PERM and 7th Year H-1B Extension

• The USCIS has been delaying release of the AC 21 regulation for years creating confusion on a number of issues. The USCIS' recent rule-making agenda includes enactment of AC 21 regulation, but failure of release of AC 21 regulation was repeated in the past despite its previous rule-making agenda. There is thus no certainty as to whether the USCIS will indeed enact this regulation in the near future.
• The PERM regulation has created a new issue on the impact of conversion of labor certification application to PERM and the required withdrawal of pending application on the availability of 7th year H-1B extension. Until the so-called DOJ Authorization Act of 2002 was enacted by the Congress, the 7th year extension issue had been more or less guided by an informal opinion by the USCIS officials in the form of responses to attorney's inquiry letters. These officials took a liberal position allowing transfer of accumulation of 365 days through prior filing of labor certification application.
• The DOJ Authorization Act provides that the extension of H-1B beyond 6 years be available indefinitely in one-year increment once the pending labor certification application or I-140 petition or I-485 application passes 365 days until the "final decision" is made on any such application or petition. The final decision includes "revocation" and "denial," when such revocation or denial is not appealed. Thus far, there is no specific guidance or interpretation of this provision in the DOL Authorization Act by the USCIS in the context of withdrawal of pending labor certification application and refiling of application with the same employer or a different employer.
• The USCIS should give the answer to this question and the AILA is urged to seek the USCIS opinion on this issue through its liaison as soon as possible. There are two theories that can support the argument that such withdrawal under the PERM regulation should not deprive the applicant of the 7th year H-1B extension opportunity. The first argument is the language "any application" in the DOJ Authoriztion Act. Accordingly, the 7th H-1B extension should be available inasmuch as "any labor certification" is pending for 365 days or longer. The second argument may be drawn from the PERM provision that preserves the "priority date" when the pending application is withdrawn for the purpose of refiling of the application under the PERM regulation. One wonders why the DOL did not make the immigrant's life easier by simply providing that the pending application be automatically converted to the PERM application when a PERM application is filed by an applicant whose labor certification application is pending. Whatever the reason was, it appears that the intent is clear that the DOL would consider the labor certification process to continue both before and after filing of the PERM application leading to the final decision by the DOL.
• Again, this issue could have been resolved by the DOL by providing "automatic" conversion of the labor certification application in the PERM regulation. With the DOL having failed to do the job, the USCIS should give a policy guidance on this issue as soon as possible either by enactment of AC 21 regulation or release of policy memorandum on this issue. The immigrant community trusts that the AILA would work hard with the USCIS to promptly work out a guidance on this issue.

01/15/2005: DOL PERM Follow-Up Transition Guides and Additional Rules Forthcoming

• The on-going PERM Briefing sessions have left a number of questions unanswered and the immigrant community is still in a state of confusion, particularly with reference to the detailed schedules and timing of processing of backlog reduction cases and impact of refiling after the PERM on the processing delays and validity of pending cases in the pipeline when the application is not withdrawn at the time of PERM filing.
• For the backlog reduction issues, the DOL is scheduled to release two more Transition Guides (TG) in February 2005. The DOL is also scheduled to release a follow-up processing rules in the federal register sometime next week or so. The additional TGs and the additional processing rules will certainly help in clarifying some of these issues in that without doubt the DOL may reflect some of the questions which were raised in the briefing sessions in these follow-up policy guidances. However, for those who would like to make a decision as to whether a labor certification application should be filed before March 28, 2005, these forthcoming additional guidances may not give enough time to build a case. Please stay tuned to this website for the forthcoming release of these TGs and federal register policy releases.

01/15/2005: Multiple-Entry One-year B-1/B-2 Visa Issuance for Chinese Effective Today

• Under the changed reciprocity agreement between the U.S. and PRC, the U.S. visa posts worldwide will start issuing 1-year valid multiple-entry visitor's visa to the Chinese nationals effective today, January 15, 2005. Read on.

01/13/2005: DOL NPC and BPC Recruitment Advertisement

• We reported that the DOL National Processing Centers in Chicago and Atlanta and the Backlog Processing Centers in Philadelphia and Dallas are actively recruiting the "Analysts" (Workforce Development Specialist) and "Certifying Officers" (Supervisory Workforce Development Specialist). The positions to be recruited at the National Processing Centers are "permanent" positions, and the positions to be recruited at the Backlog Processing Centeers are "temporary" positions not to exceed one year. The recruitment ads reflect that the analysts at the National Processing Centers will also perform the backlog reduction case loads on top of its main duties of the PERM application adjudications. Most of these position openings will be closed by the end of January 2005. The positions require some experience with the foreign labor certification applications. It is expected that a substantial number of permanent positions at the NPC may be filled by the existing staff who have been relocated from the former Regional Offices. For the details, please click here.

01/12/2005: New LC Filers: RIR or PERM?

• The current new filers apparently have three options: (1) RIR Without Conversion; (2) RIR With Conversion after the launch of the PERM; (3) No RIR filing and just file a PERM application after March 28, 2005.
• Until the PERM Briefing on January 11, 2005 in Chicago, the second in the above-list was an option. However, since now we know that the conversion will take longer time to process, this may not be an option anymore. Accordingly, people may now have only two choices: Either file the RIR before March 28, 2005 and do not refile in PERM later or just wait until March 28, 2005 and file the PERM application. For the new filers, there is practically no advantage and difference between the straightforward RIR filing and the straightforward PERM filing. However, depending on the circumstances of the employer and the record of recruitment, the PERM may or may not fit well. According to the DOL, the ETA 9089 PERM application form has incorporated machine-readable features and the machne will intially determine in lots of cases approvability of a case before there is touch by a human hand. These cases may be defined as "straightforward" cases. However, if the machine determines that the application is not a straightforward case, the machine will direct the analysts/certifying officer to review, analyze, and determine approvability. Since the PERM application must be determined without supporting documentation and strictly based on the information and data provided on the form ETA 9089 itself, the more wrinkes the application has, the less chance it will have to get approval even if the wrinkles could have been justified or defended in RIR situation by submission of evidence such as business necessity, combination of occupations, lay-off records, etc. Remember that in the PERM application, no submission of evidence is permitted unless the audit letter is issued by the Certifying Officer.
• The choice must be made on the basis of the assessment and advice of a legal counsel. The legal counsel should be able to place each case in the spectrum, 100% straightforward case at the one end of the spectrum and a number of deviations and variations from the requirement, even if justifyable, at the other end of the spectrum. Depending on where a specific case will fall on the spectrum, the employer should file either RIR or PERM. The 100% straightforward case may fit well with both RIR and PERM. In such case, there is no reason why one should file a RIR application. Clearly choice should be the PERM. On the other hand, there may be many cases that fall under other end of the spectrum. Obviously such cases should be filed before March 28, 2005 as a RIR case and not a PERM case. It appears that the 40-65 day processing times may just include the straightforward cases. Once the audit letter is issued or selected as an audit case of supervised recruitment, it can take a long time. Assuming that the overriding advantage of the PERM application over the RIR application lies with the processing times, in the latter cases, there will be absolutely no advantage of filing of the PERM application.
• Currently, employers and their legal counsels are struggling to determine which way to go. Time may run out soon as the longer they wait, the less chance they may have to develop and file a RIR case as we approach inch by inch March 28, 2005. They should undertake repeated "assessment-analysis" and make a decision quickly. Clock is ticking.

01/12/2005: USCIS Reminds Filing Address Changes for El Salvadoran TPS Re-registration

• The extended TPS registration for El Salvadoran must be completed between January 7, 2005 and March 8, 2005. The registrants should notice changes in filing address this year. If you have sent to a wrong address, you should refile it. Please read carefully the USCIS reminder.

01/12/2005: Who Is Michael Chertoff, Nominee of DHS Secretary?

• Profile.

01/11/2005: Last Report from Chicago: Fate of Substitution of Employee for the Certified Labor Certification

• The certified PERM application may be used for the substitution of the alien beneficiary just as it has been the rule under the current labor certification practice. This is a very positive note. In closing this report from Chicago, this reporter wants to say "thanks" to the DOL officials for their good work for sharing information with the attendants. From the floor, the DOL received a large number of questions and comments, but as we reported yesterday, the DOL did not respond to any of these questions and comments at the end of the Briefing. It promises that the answers will be published on its web site in due course.

01/11/2005: Report from Chicago: Consequences of Failure to Respond to 30-day Audit Notice

• The National Processing Centers may issue a 30-day audit notice for collection of information/documents. If the employer fails to respond to such notice, the future cases of the employer will be audited! Watch out.

01/11/2005: Report from Chicago: "Job Order" Requirement for PERM filing

• Unlike the current practice of state offices to initiate the job order not only with the state system but also the national bank, the job order as part of the recruitment requirements for PERM filing will not require the national job bank job order. It is sufficient to make the job order with the state system only. Good!

01/11/2005: Report from Chicago: E-Filing vs. Mail-Filing

• Even though the regulation allows mail-filing of PERM cases, the DOL discourages mail filings as it will require additional resources. The mail filing cases will have to be typed into the e-filing database by the resources in the National Processing Centers since the entire labor certification applications must be in the national database system. Additionally, if there is a flaw or defect in e-filing, the system will "not accept" the filing, but if such flaw or defect is detected in the paper filing, such application will be "denied." Once a case is denied, refiling can be audited depending on the flaws. Try to make e-filing!

01/11/2005: Report from Chicago: 45 - 60 Day Processing Time for PERM Does not Apply to Conversion Cases

• Another disappointing news for the conversion case is the processing times for such cases. DOL confirms that the processing time for conversion cases will be much longer than non-conversion PERM applications. DOL did not disclose the anticipated specific processing times for the conversion cases. It just stated that the processing times will be shorter than the current backlog cases waiting times.

01/11/2005: Report from Chicago: No Parallel Applications Permitted Without Losing Priority Date

• When people refile a PERM application without dislosing the pending application, the National Processing Centers will access the database at the BPCs to see whether any cases are pending for the employer and the employee. Accordingly, parallel filing of PERM application and non-PERM application will be blocked by the DOL. Such policy will enhance the risk of conversion and a fewer employers may attempt conversion fiing.

01/11/2005: Report from Chicago: Status of Backlog Reduction Work and Anticipated Processing Times

• The Backlog Processing Centers (BPC) must complete several stages of activities before they can adjudicate any cases. The first step is to receive the backlog cases from the former Regions and SWAs in 50 states. The second step is to perform data entry and development of national database system for establishment of national "queue" for Traditional Cases and RIR pursuant to the policy of processing of First In First Out (FIFO) order. Once the development of national database system is completed, they will be ready to adjudicate the backlog applications. At this time, the BPCs are at the stage of receiving shipments from the states and the Regions. As soon as they receive the shipments, the contractors start making data entry to the national database.
• The shipments are undertaken per the DOL Transitional Guidelines (TG). Those cases which were received before 01/01/2002 were scheduled to be shipped to the BPC by 12/31/2004 and remaining cases are scheduled to be shipped to the BPC by March 31, 2005. The shipments include only "unopened" cases. For the opened cases, the DOL has sent out instructions to the SWAs to complete the entire opened backlog cases by 03/31/2005.
• The first shipment was made from San Francisco Region. Total 20,000 oldest cases. 10,000 cases were shipped to the Dallas BPC and 10,000 cases were shipped to the Philadelphia BPC. These cases have been data-entried and part of the inquiry letters have been sent out to the employers and their attorneys. The BPCs have also received 24,000 cases from 17 states as of the end of the year, and expects to receive altogether 100,000 within January 2005.
• As for the backlog cases in the Regional Offices, total is tallied at 55,000 nationwide. These cases need to establish the national queue for FIFO processing.
• The backlog reduction cases are handled by the two BPCs and the two satellite centers in San Francisco Regional Office and the Boston-New York Regional Office. These two Regional Offices cannot actively perform the backlog reduction work because they are not hooked upto the national database system. They are scheduled to be hooked upto the national database system along the way. These satellite centers will participate in the backlog reduction work for one year and will be phased out.
• The timing of actual adjudication of cases will depend on two factors: One is the volume of conversion cases after the launch of PERM program on 03/28/2005. The larger the conversions are in number, the smaller the total numbers for the BPC will end up. The second factor is the timing of completion of shipment and data entry. DOL anticipates that it is not going to be for a while that the BPCs actually adjudicate and decide any cases. The entire backlog cases are predicted to be removed not in 24 months but from 24 month to 30 months from 03/28/2005. People should keep patience.

01/11/2005: Report from Chicago: Filipino Veteran VA Healthcare Benefits Proposed

• Department of Veterans Affairs (VA) medical regulations describe veterans who are eligible to receive health care from VA in the United States. The VA is proposing to amend these regulations to include any Filipino Commonwealth Army veteran who was recognized by authority of the U.S. Army as belonging to organized Filipino guerilla forces or new Philippine Scouts, if such veteran or scout resides in the U.S., and is a citizen or lawfully admitted to the United States for permanent residence. Under this proposal these certain veterans would be eligible for VA hospital care, nursing home care, and outpatient medical services in the United States in the same manner and
  subject to the same terms and conditions as apply to U.S. veterans. This proposal would allow those veterans to receive health care from VA. For the full text of the proposed rule, please click here.
  

01/11/2005: Report from Chicago: Denial of PERM Application and Consequences - New Filer Issue

• There will be one big change in the labor certification application process which has not been widely discussed in the immigration law community. It is the consequences of denial. Under the current law, once a labor certification application is denied, the employer is barred from filing another labor certification application for the next six (6) six months for the same alien and the same occupation. The PERM regulation removed this bar. Consequently, the employers will be free to refile an application after some changes in the application, even after the denial. Such refiling is barred only during the period of review by BALCA which is an appeal process of time consuming. Considering the fact that the eligible application will be taken only form 45 days to 60 days to obtain certification, it is likely that the most employers may attempt to refile after denial rather than going through the time-coming appeal process. This is a positive aspect of the labor certifying system reengineering. This change opens a door for the new filers to file a RIR now and convert to PERM or just wait and file a PERM application after March 28, 2005, and keep trying in the event that the PERM application is denied.
• The same opportunity may be available for the applicants in the pipelines, but because of higher risk involved with the conversion and potential loss of valuable priority date, the removal of six-month bar under the new system may not give them much help in considering the conversion. However, at least from the perspective of the law, should their RIR or Regular application be denied for whatever reasons, they will be allowed to refile under the PERM immediately after the denial inasmuch as they have built up a good PERM application. The current regulation that regulates the RIR or regular application bars the denied applicants to refile within six months, but it has no effect on the PERM regulation and they will be able to file a new application right away under the PERM regulation without being handicapped by the current regulation.

01/11/2005: Report from Chicago:Transitional Staffing List of DOL Chicago NPC

• The current staffing list during the phase of transition is as follows:
  • Charlene Giles: Director
  • Marie C. Gonzalez: Certifying Officer (RIR, H-2A, H-2B)
  • RIR Team: Belinda Kimmons,Team Leader, and all other analysts, particularly Heidi Rodriguez
  • H-2A Team: John Abraytis, Team Leader, and William Matwijiw
  • H-2B Team: Renee Van, Team Leader, and Marsha Johnson and Robert Fitzsimmons
  • Special Handling: John Abraytis
  • Limited Review Processing: Renee Van, Team Leader, and Raymundo Garcia
  • Support Staff: Naima Upshaw and Desiree Gibson
• Contact Numbers:
  • General Information Phone: (312)886-8000
  • Fax: (312)886-9490, (312)886-1688
  • Tone Talker: (312)353-1059
  • Street Address: 844 North Rush Street, 12th Floor, Chicago, IL 60611
• The foregoing staffing list reflects a temporary arrangement. Once the PERM goes into full operation on March 28, 2005, it is likely that there will be some changes.
• Qualified labor certification specialists, particularly those in state offices, may want to contact Charlene Giles for the permanent and temporary position openings. The Chicago NPC is expected to work on a tight preparation schedule as the newly hireds should be trained with rules as well as practice points during next two months and a half. Charlene Giles is an expert with a long career background with the foreign labor certification and confident that the recruitment and training could be completed in a timely manner. Thus far, we have a very good pool of staff in Chicago.

01/10/2005: Report from Chicago National Processing Center Open House

• The Chicago Regional Office staff have been relocated to the National Processing Center since the end of November 2004. Currently there are approximately 13 officials, former Chicago Region staff, who are preparing for the PERM program. The officers are very enthusiastic about the PERM program.
• The National Processing Center has yet to fill many permanent and temporary employees positions and is actively seeking recruitment. Unlike the Backlog Processing Centers, there are no activities of apparent hiring of contractors and activities of contractors. There are cubicles after cubicles which are empty other than computers, desks, and chairs. It appears that the current staff members are handling mostly temporary labor certification cases of H-2A and H-2B. The most up-to-date list of staff indicates that these officers are scheduled to process RIR cases but there are no indications that the RIR cases are being processed. It sounds that most of the "regular" labor certification applications have been transferred to the Dallas Backlog Processing Center. Present at the Open House were the Chief of Foreign Labor Certification, DOL, and Chief Legal Counsel of the Foreign Labor Certification, DOL, but no specifics have been released from these leaders about the ongoing process and the upcoming changes.
• It appears that these leaders understand that there are a host of issues that will have to be addressed in the future. Some of these will be discussed at the tomorrow's PERM Briefing session. Unconfirmed sources indicate that the meeting will take questions from the floors in writing without the response being given to the questions during the Briefing session. They may post the answers on the DOL website in the future. It sounds that the DOL will release the information mostly on its web site in the future rather than giving answers to immigration organizations. Please stay tuned.

01/09/2005: DOL National Processing Center in Chicago Open House and PERM Briefing

• Readers have sent us a number of interesting questions on the PERM program and current processing of backlog cases in Chicago. For the pipeline cases, the leading question was whether he/she could file PERM application after March 28, 2005 without withdrawing the pending applications. For the new filers, the leading question was whether he/she should file RIR now and attempt to covert after march 28, 2005 or file the PERM application without filing RIR now.
• This reporter will attend the Open House at the National Processing Center tomorrow from 2:00 - 4:00 p.m. and the Briefing session from 9:00 a.m. to 1:00 p.m. January 11, 2005.
• During the next two days, this reporter will report from Chicago. We hope to get some answers to various questions during the session. Please stay tuned to this website.

01/08/2005: DV-2006 Immigration Lottery Over

01/07/2005: DOL Notice of Addresses and Processing for Chicago & Atlanta National Processing Centers

• The DOL released a notice in the federal register this morning that the move of the Chicago Region and Atlanta Region offices and staff is complete now and all the communication should be addressed to the new office addresses from now on. The notice also indicates that these two national processing centers will continue to perform the functions which they did as the Regional Offices and the SWAs in these two jurisdictions will forward the labor certification applications to these two centers and not the Backlog Processing Centers. For the full text of the notice, please click here. The addresses of these two centers are as follows:
• National Processing Center Address in Chicago: U.S. Department of Labor Employment and Training Administration, Foreign Labor Certification National Processing Center, 844 North Rush Street, 12th Floor, Chicago, Illinois 60611, Phone: (312) 886-8000, Fax: (312) 886-1688.
• National Processing Center Address in Atlanta: U.S. Department of Labor Employment and Training Administration, Foreign Labor Certification National Processing Center, Harris Tower, 233 Peachtree Street, Suite 410, Atlanta, Georgia 30303, Phone: (404) 893-0101, Fax: (404) 893-4642.
• Please make a note of it.
  
  

01/07/2005: EB-3 Retrogression and Fate of Pending I-485 Cases for Dependents

• A large number of new EB-3 immigrants were young and single in mid-twentieth in age. This is particularly true with the Indians. In order to take advantage of the rules of "accompanying spouse" or "following to Join spouses," they married in India and brought the new brides to the U.S. in H-4. There are a substantial number of I-485 cases which were filed by these spouses. Some of the principal aliens have already received the approval of I-485 but the I-485 cases for the spouses were still pending when there was a hit of visa number retrogression on January 1, 2005. How have they been affected by the EB-3 visa retrogression?
• Their priority date is same as the principal alien's and the USCIS and the visa posts will not be able to adjudicate their I-485 or immigrant visas until they reach their priority dates. Apparently, this will not create any hardships for the spouses in the U.S., but those who opted to take the route of consular processing for immigrant visa rather than I-485 route face hardships because of the forced separation of the newly weds. The principal aliens are already a permanent resident and they are unable to bring their new spouses in H-4 or other dependent nonimmigrant visas. Unlike the spouses of U.S. citizens who can join the U.S. citizen spouses in K-3 visas pending the immigration proceeding, there is no such mechanism available for the spouses of the new permanent residents in the context of the visa number retrogression. Tough!

01/07/2005: Prospects for Labor Certification Backlog Removal in Two Years

• The DOL is currently working under the backlog reduction plan which targets to remove the entire backlog cases in two years. The backlog cases are estimated to far exceed 300,000. However, one wonders how the goal can be achieved by the two Backlog Processing Centers without a substantial number of those cases being swifted to the other two National Processing Centers. Logistically, unless such swift takes place, the works between the two Backlog Processing Centers (300,000+) and the two National Processing Centers (new PERM applications) may also turn out to be imbalanced with the resultant inefficient and ineffective use and management of available adjudication resources.
• It appears that such swift must be achieved in the form of conversion of existing cases to the PERM cases. However, because of the ill-timed launch of the PERM program and extremely high risk embedded in the conversion requirements under the PERM Final Rule, one cannot expect a massive swift of cases from the Backlog Processing Centers to National Processing Centers. Ironically, the DOL is launching the PERM program at a time when the EB-3 visa numbers starts retrogressing. The retrogression of visa numbers places less weight and importance on prompt approval of labor certification applications than preservation of priority dates. Additionally, the FIFO rule of processing of backlog cases induces the oldest filers to hesitate to consider conversion of the pipeline cases to the PERM cases. Accordingly, it is most likely that those who consider the conversion will turn out to be recent filers when it comes to Indians, Chinese, and Philippines nationals.
• On top of the ill-timed launch of the PERM program, the dead traps embedded in the conversion in terms of priority dates will lead to hesitation of a large number of backlog cases to file a conversion. In hindsight, the DOL should have liberalized the conversion opportunity which would guarantee preservation of the priority dates. The Final Rule moved towards the other direction.
• Under the circumstances, DOL may have to require the National Processing Centers to participate in the backlog reduction works for effective utilization of resources as well as for assistance with the Backlog Processing Centers to manage the reduction of backlogs within certain period of time. The DOL would have achieved the transition and reorganization more smoothly from the two-tier system to the single-tier system, had it planned the timing of the PERM launch program appropriately and provided liberal opportunities for conversion in the Final Rule. Conversion would have allowed the DOL to remove some of those cases from 45 to 60 days, accelerating removal of backlog cases. Participation of the National Processing Center resources in the backlog reduction will involve the same protracted processing procedures which will be governed by the current labor certification rules and may turn out to add just number of resources to the backlog reduction workforces. Considering the fact that "six" Regional Certifying Offices had failed to remove the backlogs and piled up over 300,000 cases, one wonders how participation of the part of workforces of the National Processing Centers in the Backlog Processing Centers' cases would remove the mountain of backlogs in two years. We will watch closely how the operation of reengineering will unfold during the next two years.

01/06/2005: DHS Announces 18-Month TPS Extension for El Salvadore Nationals

• Announcement
• Q & A
• Federal Register Notice

01/06/2005: Priority Date Error on Hong Kong Website & Mumbai Website

• As people know by now, the website of the U.S. Department of State had linked the "current visa bulletin" to December Visa Bulletin until it was fixed today. This has caused some confusions in various web site reports of the priority dates for January 2005.
• For instance, the websites of the American Consulates in Hong Kong and Mumbai, India still report that the EB-3 visa numbers for India and Philippines are current in January 2005. Apparently there are some immigrant visa applicants who falsely believe that their immigrant visa interviews will be scheduled shortly and they will be able to obtain the immigrant visas in a month or so when their priority date is late late 2003 and EB-3. Consequently, they not only keep an high hope to enter the U.S. in the near future, but also waste money to collect evidence in preparation for the interviews, such as medical and police clearance. It is hoped that the error is limited to the Hong Kong and Mumbai consulates and no other consulates. We urge the Hong Kong and Mumbai consulates to correct the erros as soon as possible.

01/06/2005: Court Held Invalid 245.1(c)(8) Bar to Adjustment of Status to Permanent Residence

• Yesterday, the U.S. Court of Appeals in the First Circuit held in Wissam Succar v. John Aschroft, No.03-2445, January 5, 2005 that the regulation which bars application for adjustment of status for those aliens who have been paroled into the U.S. but placed under the removal proceedings before the immigration courts is invalid for being violation of the statutes. This landmark decision is a case of first impression and opens a new chapter in the immigration court proceedings for the paroled aliens who seek I-485 adjustment relief.

01/05/2005: PERM Application Form (ETA 9089)

• If you want to print the form only, print from page 78 through page 97. The ETA 9089 is a 10-page PDF form.

01/05/2005: DOL PERM Briefing Schedules, Online Registration, and FR Notice

01/05/2005: ICE Published Final Rule on Removal of Aliens to Certain Countries

• Effective February 4, 2005, the ICE of the DHS is allowed to remove the removable aliens to certain countries which is not allowed under the current rule. Under the new rule of removal (deportation), acceptance by a country is not required under specific provisions of section 241(b) of the INA in order to remove an alien to that country, and that a ``country'' for the purpose of removal is not premised on the existence or functionality of a government in that country. This rule further clarifies the countries to which an alien may be removed and the situations in which the Secretary of Homeland Security will remove an alien to an alternative or additional country. For the full text of this Final Rule, please click here.

01/05/2005: USCIS Plans to Extend TPS Designation for El Salvadore

• USCIS intends to extend the designation of TPS designation for El Salvadore and automatic extension of EAD upon publication of the notice. Please stay tuned.

01/04/2005: FY 2005 H-2B Cap Reached

• USCIS announced today that the FY 2005 H-2B cap had reached yesterday and any cases which were not received by January 3, 2005 would be rejected. H-2B cap numbers will not be available until October 1, 2005. For the announcement, please click here.

01/04/2005: Notice to The Oh Law Firm Clients

• Our new office suite number is #311. Please make a note of it.
• This reporter will be travelling in Chicago to attend the Open House of the National Processing Center (PERM Processing Center) of the DOL on January 10, 2005 and the PERM Briefing session of the DOL on January 11, 2005. Any emergency message may be sent to his cellular phone number (651)755-8344 during the period.
• People who have unanswered questions on the PERM Program may send his/her questions to this reporter "before" January 10, 2005 via e-mail address, matthewoh@hotmail.com. This reporter will try to post the answers to as many questions as possible on this web site. The e-mail question should be "short."

01/04/2005: DV-2006 Registration Deadline 01/07/2005 (Friday) "Noon, EST"

• The deadline for the DV-2006 online immigration lottery is fast approaching. Unless it is registered by noon, Eastern Standard Time, this Friday, January 7, 2005, it will be too late.

01/04/2005: Congress Returns to the Hill Today to Open 109th Congress

• Both the Senate and the House are returning to the first session of 109th Congress today. Unlike the year 2004, it is expected that there will be a substantial legislative activity on the immigration issues in this Congress, both pro and con in nature. The immigrant community wishes to see the unresolved legistative bills of the 108th Congress quickly picked up by the new Congress to give some relief to the immigrants which include, among others, Temporary Guest Worker Program, DREAM Act, Extension of 245(i). Unfortunately, one of the first immigration bills which the new Congress may pick up and pass by the Republican Congress will be a bill to restrict driver license to illegal aliens at the national level as introduced by Rep. Sensenbrenner of Wisconsin.
• Immigration community should roll up their sleeves to contact the legislators to support the pro-immigration bills and to oppose the anti-immigration bills.

01/03/2005: Salute to AILA for Good Work on PERM Final Regulation

• Readers of the PERM Final Regulation could not notice but the impact of AILA's hard work to tone down some extremely restrictive provisions from the "proposed" versions of the PERM Regulation. The AILA's efforts are evidenced by the comment portions of the PERM Final Regulation. We invite the immigrant community to join this reporter to send a big "applaud" to the AILA for the job well done.

01/02/2005: Tsunamis and Chennai, India

• Report indicates that Chennai will continuously remain as Mecca for the outsourcing industry in India. The three giants, Wipro, Infosys, and Tata, have reportedly decided to stay put in Chennai despite the late hit of Tsunamis in the adjacent areas. The operation of American Consulate in Chennai is also not affected by the Tsunamis. Even though the recent U.S. legislation restricting L-1 visas for the foreign consulting businesses will affect the size of transfers of the Indian consultants to the U.S., Chennai will remain the major sources of immigration and supply of Indian "brights" to the U.S. and play an important role for operation of the major U.S. businesses.

01/01/2005: EB-3 Retrogression, Priority Date, and Dead Traps in PERM Conversion

• As the March 28, 2005, the starting date of the PERM, slowly inches away, the employers are under the pressure to rush initiating the recruitment campaigns pursuant to the PERM Final Rule to convert the pending labor certification applications to the PERM applications. However, as we previously warned on this site, keeping an earlier priority may be considered, in a way, more important than obtaining the labor certification in a short period of time for Indians, Chinese, and the Filippinos. This is particularly true with those applicants who filed "regular" applications and have been waiting for a long time because of the backlog. The advantage of these filers is earlier priority date which they have already established. It is likely that if they should keep their current priority date, they may be able to file I-140/I-485 application as soon as they obtain the PERM application approvals, since most of the regular applications were filed close to April 30, 2001.
• The people in this group cannot afford to losing their priority dates by making a mistake in attempting to convert their cases to the PERM applications. The PERM Final Rule allows conversion without losing priority date "only if" certain conditions are satisfied. Failure to follow these instructions will result in loss of priority date. We would call these conditions "dead traps" here. The following are the dead traps:
  • Dead Trap 1: The employer may withdraw an existing application and refile under the PERM final rule without losing the original filing date up to the point the State Workforce Agency (SWA) places a job order to recruit the U.S. workers through their national job bank network. If the employer withdraws an existing application after a job order has been placed, the employer may file an application under this final rule for the same job opportunity; however, the original filing date can not be retained. It is thus critically important that the employers check with the SWA whether they have ordered the job order (JO) or if not, about when it will happen. The earlier priority date one has, the earlier either SWA or Backlog Processing Centers may initiate the recruitment process within the agency and place the JO. Should this happen before March 28, 2005, one should seriously reconsider his/her conversion strategy, if he/she is subject to the EB-3 retrogression. These people may consult with their legal counsel to see whether there will be any legal mechanism or process available to delay the SWA's or BPC's initiation of the recruitment process and JO at least until after March 28, 2005 and they submit the PERM applications as soon as the DOL launches PERM on March 28, 2005. Otherwise, they may waste a lot of money and time and be ended up with decision to drop their attempt to convert their pending applications.
  • Dead Trap 2: The job for the PERM application must be "identical" to the original application. If not, the refiled application will be processed using the new filing date, and the original application will be treated as withdrawn. When it comes to the definition of "identical," the DOL is taking a hardline and narrow interpretation by declining to accomodate some liberal interpretation requests by some commentors. The DOL thus emphasizes that the two applications must be identical in the employer, alien beneficiary, job title, job location, job description, and probably job requirements. Each of these items has a number of issues which the employers should pay attention to as soon as possible. For instance, there have been a widespread corporate merger/acquisition in the past with varying arrangement. Some corporate restructuring has resulted in change in Federal Employer Tax Identification Number (FTIN). When there is a change which is not material, the DOL permits to continue such application without losing the priority date, but the application has to be amended reflecting the new employer name and identity. Some may be construed as a Successor-In-Interest entity and some may not. This issue should be squaredly dealt with by the new employer at the local SWA level or BPC before the employer refiles a conversion application. Additionally, assuming that the employer changed details of some of these items in filing the PERM applications, the employer may indeed jeopardize the priority date of the alien beneficiary since the employers would not know the decision of the Certifying Officer of the National Processing Centers that the two jobs are not considered identical until they receive a letter from the agency. By that time, it will be too late to salvage the priority date since the original application will be considered "withdrawn" and gone! It thus appears that the employers may have only two options before they initiate the PERM recuritment campaign. One is to meticulously match the PERM application with the original application. Alternatively, should the employer need the different application without a material change from the original application, the employers may as well seek an amendment to the original application before initiating the recruitment process. For those cases which have already been transferred to the BPC, it may take time since the processing system within the BPC may be still in developing stage and the communication with them will not be that easy. However, if the cases still remain at the local SWA, such amendments may be available a finger-tip away!
  • Dead Trap 3: There is no guarantee that the refiled PERM application will be approved 100% of cases. If the refiled application filed under this final rule is denied, the filing date on the withdrawn application can not be used on another application for permanent employment certification. Should this happen, the alien faces a double-blow: Loss of the priority date and denial of the labor certification application. This dead trap 3 may be related to the dead trap 2 issue in that should the original application contains any description or requirement of the job which are not acceptable under the PERM Final Rule, unless the employer amends the original application, the employer may face denials. Accordingly, should the employers decide to seek amendment of the original application, they should amend it such a way to build an approveable case under the PERM file rule. The coordination between the issues under the foregoing Dead Trap 2 and the Dead Trap 3 may be very crucial.
• There are currently at leas two unanswered questions for this group: One is whether or not the same employer can file a new PERM application without withdrawing the original application. The DOL has not made it clear whether such multiple applications by the same employer will be permitted. Traditionally, they did not. However, two or three different employers can file multiple applications for the same alien as there is no rule that the alien seeks a permanent labor certification application only through one employer. Of course, in this case, the priority date will remain with only the original application and cannot be transferred to the new PERM application. This option may be taken by someone who wants to walk on the middle of road between the conservative and the liberal approaches in order not to take any chances.
• The second question involves the structure of the PERM regulation itself. Under the PERM system, some of the cases which fail to meet the PERM fast-track thresholds are supposed to be processed under the traditional supervised recruitment track, named "audit" cases. These audit cases will be processed as an application which will be similar to the "regular" labor certification applications in the current regulation in that the employers will be required to amend and undertake the recruitment process "under the supervision of the National Processing Center." The summary of the PERM Final Rule did not answer to the question on its impact on the priority date. From the whole concept of the PERM Final Rule, though, the DOL may consider such application as a new application without recognizing the priority date of the original application. DOL is urged to clarify on this issue as soon as possible.
• There are two other issues which need to be answered not by the DOL but by the USCIS. The first is the impact of the PERM Final Rule on the USCIS regulation on the retention of priority date and definition of priority date. The second issue is the impact of the PERM Final Rule on the 7th year extension of H-1B petition under AC 21. We will analyze these issues later. Please stay tuned to this web site.
  

01/01/2005: Predicted M&A Boom in 2005 and Immigration

• Newsreport indicates that there will be a boom of mergers and acquisitions this year. This news is posted here because the alien employees should be more attentive to the coporate changes with their employers because of its impact on their immigration status and immigration journey. When it comes to M&A, there frequently arises a serious conflict of interests between the employers (old and new) and the alien employees, and alien employees' interests are not well represented in the process of negotiations for the M&A. Because of its impact on the company's stock market, the M&A negotiations are usually proceeded behind the tightly secured door. The immigration lawyers are usually not invited until the last stage of the negotiations or worse yet not invited at all until the M&A is completed.
• The M&A takes a varying forms which have all differenct consequences on the alien employees' legal status and their future depending on the specific form of M&A. When we live in the immigration environment of zero telerance and restrictive and conservative policies, the alien employees should learn to watch for themselves their future. This reporter remembers the M&A boom during the period of economic upsurge in the late 1990s and the Congress' legislative action to accomodate the needs of the business to minimize the disruption of their business involving foreign professional workers after the M&A. However, it was the time when the economy was booming and the Silicon Valley more or less dominated important segment of the nation's economic wealth. We are now in a different environment both in terms of the economy and immigration issues as related to the 9/11. Just watch out!

01/01/2005: New Year Wish: Peace on Earth and Respect for Human Lives

• For the last few years, people have been exposed to day-in and day-out news report on television tubes the death of human beings caused by wars, crimes, natural calamities, and other causes. Probably, this reporter is not alone in feeling that he finds himself desensitized into the numbers over the news of deaths and the scenes of human corps. We are gradually losing the respect for human lives and dignity of human existence on the earth. The world is looking for enemies rather than friends. We hope that the year 2005 be recorded as a historical turning point that recognizes the dignity and value of individual human being regardless of the nationality, race, and religious/political convictions. We want to see in 2005 the world leaders and the people looking for friends rather than enemies.
• We want the Congress to take a bold action which may sound trivial but could send a message to the world that we are looking for friends and not enemies. We want the Congress to remove the language "alien" from the law books and to replace it by the language "foreigner" as a gesture that we are treating the people from other countries as a guest rather than an alien from different planets in the science fictions. In perception, the term "alien," unlike the term "foreigner,"creates a deep valley and distance between "us" and "them." As an immigrant and immigration law practitioner, this reporter found himself uncomfortable using the term "alien" in oral communication with the clients because of the feeling that such terms may be taken by the clients offensive and degrading. There are a large number of immigration practitioners who share the same with this reporter.
• The year 2005 is a so-called leap-year with no national elections. We hope that the Congress and the President send out such gesture to the world that we take the peope from foreign countries as our guests and equal partners just as the way their countries treat us, the Americans, as their guests and equal partners. One wonders how many countries use the term "alien" in their immigration legislations. Again, this sounds a minor and trivial matter but will send a significant message to the world that we respect our foreign guests and their dignity. Maybe this reporter is dreaming but sometimes dreaming can form a starting point for a movement to change the world.

12/31/2004: Bye, Bye, You Rotten Year 2004!

• For a large number of people in the U.S. and the world, the year 2004 will mark as one of the most rotten and difficult years in the recent history. They should be happy that they can finally get the urgly year 2004 behind. Nostalgia for 2004? Are you kidding? The world is looking forward to a new era in the coming year and will indeed welcome the New Year 2005 after midnight today. Please stay sober!

12/31/2004: EB-3 Retrogression and Cross Chargeability to Spouse's Country of Birth

• We have already explained that determination of oversubscribed country is not determined by the citizenship but by the place of birth. Accordingly, inasmuch as he/she was born in India or China or the Philippines, he/she will be subject to the EB-3 retrogression in January 2005.
• Another rule one should keep in mind is that a spouse may be charged to the state of accompanying spouse inasmuch as both spouses simultaneously applyt for the immigrant visa and admission. Again, here, his/her spouse's state is determined not by the citizenship but by the place of birth. Accordingly, if the spouse of EB-3 professional or skilled worker was born in a country other than India, China, or the Philippines, the EB-3 alien can borrow his/her spouse's place of birth for the purpose of the visa number chargeability and may file a concurrent I-140/I-485 packet even after January 1, 2005.
• People often call himself or herself as an Indian or a Chinese or a Filippino because of his/her ethnic origin and the current citizenship in one of these countries, but close investigation will dictate that he or she was born outside of these countries and for the purpose of determination of country chargeability in the Visa Bulletin, he or she is not an Indian nor Chinese nor Filippino. This is particularly true with the Indians. A large number of Indians were born in other countries such as Zambia, Nepal, Pakistan, etc, etc, and brought back to India by the Indian parents when they were infants and then adopted the Indian citizenship. People may want to check their spouse's place of birth one more time to see whether they can bypass the EB-3 visa number oversubscription for India, China, and the Philippines!

12/31/2004: EOIR Plans Not to Adjudicate Relief Pending DHS Namechecks, Security Clearance

• EOIR is currently in the process of enacting an Interim Final Rule which will require that the necessary identity, law enforcement, and security investigations are properly initiated and have been completed by the DHS before the immigration judges and the Board adjudicate certain applications for relief. This change is expected to cause a delay in obtaining the decision/order of the immigration judges on the relief which are sought by the aliens before the immigration courts. The rule has been under review by the OMB since December 29, 2004. EOIR initially planned to go through the process of "proposed" rule but changed its plan to enact it as an Interim Final Rule. Accordingly, the rule-making process will take a shorter time and the rule can be implemented in a next few months. Please stay tuned.
  

12/30/2004: Results of Ashcroft's Immigration Appeals Backlog Reduction Initiative = Surge of Federal Court Appeals

• John Ashcroft reformed the immigration appeal agency, the Board of Immigration Appeals (BIA), in 2001 with a sugarcoating word of backlog reduction of immigration appeal cases before the BIA. The word "backlog reduction" is not a good word in some circumstances. The Ashcroft's initiative is a classic example. The hidden agenda behind his backlog reduction initiative was to restrict the right to due process for the aliens through the swift decisions by a reduced number of judges on the panel from 23 to 11. Unlike the immigration benefits proceedings, the swift decision in a quasi-judicial proceeding implies insufficient review of facts and laws and the resulting compromise of the appellant's right to due process under the Constitution of the Nation. This is evidenced by the reported surge of appeals of the decisions of the BIA to the federal courts by appellants from 5% to 25%. News report indicates that the backlog has been reduced from 56,000 to 33,000 thanks to the Ashcroft initiative. C'mon, at whose sacrifice? The BIA is not happy about the newsreport, but other than correction of the figure from 33,000 to 42,000, it was unable to refute the newsreport that the increase of the appeals to the federal courts was a by-product of the Ashcroft initiative and slapping of the face of the civil rights and due process of the aliens. For the Newsday report, please click here. For the BIA rebuttal, please click here.

12/30/2004: State Department Notice Explains Ongoing Biometric Visa Program for Immigrant/Nonimmigrant Visa Issuances

• This announcement explains the functions and exempt classes of aliens for the Biometric Visa Program which is being undertaken at the visa posts throughout the world. The Biometric Visa Program is coordinated with the DHS' US-VISIT Program such that at the ports of entry the photographic images and fingerscan of the alien travellers are retrieved from the visa posts' database to assure matching of the facial digital image and fingerscanning which are taken at the port of entry with the database. Interestingly, for the Mexican travellers, even as young as seven (7) year old child is going through the biometric collection process at the visa posts in Mexico. Hmmm.......... For the announcement, please click here.

12/30/2004: EB-485 and Concurrent I-140/EB-485 Available in January 2005 for "Other Worker" EB-3 for India, China, & the Philippines

• Some people in the Indian, Chinese, and Philippines communities have a misunderstanding that all the EB-3 cases will retrogress to January 2002 beginning from January 1, 2005. It is not true. The visa numbers that will retrogress are limited to either "skilled worker" or "professional" categories. The visa number for "other workers" (occupations less than 2 years of experience by nature, nickname: unskilled worker) will remain "current" in January 2005. Accordingly, people will be able to file a new I-485 or continue processing of I-485 in the two situation. (1) Who obtained a labor certification for a job without college education and with less than two years of work experience, and file I-140 petition for the classification of "other worker" concurrently with the I-485 application. (2) Who obtained a labor certification for a job that requires more than two years of experience or higher education, but file I-140 petition for the classification of "other worker" concurrently with the I-485 application. In the latter case, they can file multiple I-140 petitions, one for either EB-31/32 or EB-2, and the other for EB-3 EW (Other Worker). People may want to seek legal counsel.

12/29/2004: DOL Schedules PERM Briefings at Four Cities

• AILA has reported that DOL will schedule PERM briefing sessions at the following four locations:
  • Chicago, IL:
    
    • Date: Monday, January 10, 2005
      Event: Open House
      Time: 2:00 pm to 4:00 pm
      Location: U.S. Department of Labor Employment and Training Administration Foreign Labor Certification National Processing Center
      844 North Rush Street, 12th Floor, Chicago, Illinois 60611
    • Date: Tuesday, January 11, 2005
      Event: PERM Briefing
      Time: 9:00 am to 1:00 pm
      Location: Drake Hotel, 140 E. Walton Place, Chicago, IL 60611

     

  •  
  • Atlanta, GA:
    
    • Date: Tuesday, January 11, 2005
      Event: Open House
      Time: 2:00 pm to 4:00 pm
      Location: U.S. Department of Labor Employment and Training Administration Foreign Labor Certification National Processing Center
      Harris Tower, 233 Peachtree Street, Suite 410, Atlanta, Georgia 30303
    • Date: Wednesday, January 12, 2005
      Event: PERM Briefing
      Time: 9:00 am to 1:00 pm
      Location: Wyndham Atlanta, 160 Spring St. NW, Atlanta, GA 30303

     

  •  
  • Costa Mesa, CA:
    
    • Date: Tuesday, January 25, 2005
      Event: PERM Briefing
      Time: 9:00 am to 1:00 pm
      Location: Hilton Costa Mesa, 3050 Bristol Street, Costa Mesa, CA 92626
  •  
  • Washington, D.C.:
    
    • Date: Thursday, February 3, 2005
      Event: PERM Briefing
      Time: 9:00 am to 1:00 pm
      Location: Marriott Washington, 1221 22nd Street NW, Washington, DC 20037
• Registration is taken by the DOL beginning from January 5, 2005 via online, http://www.namsinc.org/DOLETA. For questions regarding the registration process, people can call the DOL, starting on Wed., January 5, 2005, at 703-821-2226 extension 232.
  

12/29/2004: Full Text of USCIS Memorandum Cancelling Concurrent Adjudication Policy and Handling of Cases During Visa Retrogression

12/29/2004: Labor Certification Application Filing Procedures Post January 1, 2005

• The PERM final rule does not take effect until March 28, 2005 and the filing procedures for alien labor certification applications should be governed by the current regulation and policy guidelines. The DOL's Transitional Guide indicates that the labor certification applications (ETA 750) should be continuously filed with the state labor departments (SWA) both before and after January 1, 2005 until the time when the PERM program is launched and operated.
• The reorganization and streamlining of the labor certification processing into a single tier system just changes the role of the state offices. Those applications which were filed with the state offices will await the instruction from the DOL for the timing of transfer of the cases to the Backlog Processing Centers, which are expected to be completed in March 2005. The cases which are received by the state offices on or after January 1, 2005 are just date stamped by the state offices and shipped to the National Processing Centers and San Francisco Regional Office and Boston Regional Office. Since the PERM regulation has been published, the latter procedure may or may not change until March 27, 2005, but so far there is no procedural change when it comes to procedure of filing applications with the State Workforce Agency in each state. Accordingly, people may have to file the applications with the state offices on or after January 1, 2005 in the way they have been doing until now.

12/29/2004: AILA's Summary/Analysis of PERM

12/29/2004: DOL Backlog Centralized Processing Training Manual 2003

• For the centralized backlog processing, the DOL hired a contractor in 2003 to develop the model processing program, which was tested afterwards by the contractor in Maryland under the name of Centralized Processing Center in the form of a Pilot Program. The Pilot Program was completed and closed at the end of calendar year 2003. Apparently, based on the program, the DOL created the two Backlog Processing Centers in Dallas and Philadelphia. The implementation and operation of the program are currently handled by another contractor named EXCEED Corporation in Maryland.
• Review of the Training Manual which was developed by the DOL in 2003 through the first contractor named TMS may shed some lights on the operation and management of the backlog reduction works at the two Backlog Processing Centers in Dallas and Philadelphia. The Manual even includes large number of form letters which the agency was recommended to use from the beginning of processing to the final determination of each application. People may find that the first letters which the lawyers or employers currently receive from the two Backlog Processing Centers more or less resemble the form letters in the Training Manual. We post this publication because people currently remain in the darkness and are frustrated for not knowing what is happening in the two centers. People are reminded that the DOL official who led the Pilot Program last year has been appointed as the Director of National Processing Centers for the PERM program.
• We thank ILW for having this material made available for the immigrant community in 2003.

12/28/2004: USCIS Terminated Controversial I-140/I-485 Concurrent "Adjudication" Policy

• AILA has reported that the USCIS issued a memorandum to the Service Centers to terminate the concurrent adjudication of I-140 and I-485 application practice immediately. This is a wonderful news in a number of respects, particularly for the customers of Nebraska Service Center and Texas Service Center which have been adhering to the concurrent adjudication policy unlike VSC and CSC. Firstly, the adjudication of I-140 petition will start moving on as they are now freed from the state of hostage from concurrently filed I-485 application processings. Secondly, since it has decided to adjudicate I-140 independently as separate from the concurrently filed I-485 applications, people may witness some improvement in I-140 processing times, helping those who need to change employment under AC 21 180-day rule. Unless the concurrent adjudication policy is cancelled, those Indians, Chinse, and Philippines professionals who filed the concurrent I-140 and I-485 packet and their I-140 petition remain unadjudicated as of the end of December 30, 2004, would have experienced a nightmare for not being able to change employment even under the compelling circumstances. In this regard, this is particularly important for the Indians, Chinese, and Philippines nationals who will face EB-3 visa number retrogression on January 1, 2005 in that they have a better chance to survive in the green card journey.
• Caveat: This policy change does not change its current policy of "concurrent I-140/I-485 filing" which will continue unless it is changed in the future.

12/28/2004: EB-485 Filing Deadline for Indians/Chinese/Filippinos: 12/30/2004, "Not 12/31/2004"

• USCIS has announced that I-485 applications by those who face EB-3 visa retrogression should be "physically received" by the Service Centers "on or before" December 30, 2004. December 30, 2004 is the last day because the USCIS will remain closed on December 31, 2004 and no delivery will be accepted by the agency. What it means is that even if people file I-485 by overnite delivery services, unless it is shipped out today or tomorrow "timely," and the packet is also "delivered" to the Service Centers "timely" during the office hours of the Service Center day after tomorrow, such I-485 application will be rejected and returned by the agency. Considering the airlines turmoil in package shipments, some people may still have to face a risk even if they start running now. Run, run, run....................................................

12/28/2004: EAD/Advance Parole Available During the Period of Visa Number Retrogression for Pending I-485 Applicants

• USCIS has announced that the USCIS will keep issuing EAD and Advance Parole for those Indians, Chinese, and Philippines nationals who filed EB-485 before December 30, 2004 and whose EB-485 applications will have to remain "dormant" until visa number becomes available. Good news, indeed!

12/28/2004: USCIS Corrects Recent Direct Filing Notice

• USCIS is correcting a notice that was published in the Federal Register on November 19, 2004, at 69 FR 67751 which announced the expansion of the Direct Mail Program to provide that certain filings of Forms I-485, I-765, and I-131, be filed at a designated Chicago, Illinois lockbox facility for initial processing.
• In the supplementary information to the notice, USCIS inadvertently advised aliens applying for adjustment of status as special immigrants under section 101(a)(27)(I) of the Immigration and Nationality Act (Act) (i.e. certain officers and employees of international organizations and their eligible family members) to submit their Form I-485 to the lockbox facility. Accordingly, USCIS is issuing this correction to remove this category of aliens from the listing.
• In addition, the notice directed all aliens applying for work authorization through a grant of deferred action (8 CFR 274a.12(c)(14)) to submit their Forms I-765 to the Chicago lockbox facility. The adjudications for Forms I-765 filed by aliens who have been granted deferred action based upon (1) an approved Form I-360 (as a battered spouse or child of a U.S. citizen or lawful permanent resident), (2) a pending bona fide application for T nonimmigrant status (Form I-914), or (3) U nonimmigrant status interim relief were centralized at the Vermont Service Center. Accordingly, the notice is being corrected to exempt those three classes of aliens from filing their Forms I-765 with the Chicago lockbox facility. For the correction notice, please click here.
  

12/28/2004: EOIR Announcement for Coercive Population Control Program Applicants

• The Executive Office for Immigration Review (EOIR) announced that notices have been sent to those individuals in the United States with conditional grants of asylum based on resistance to a coercive population control program (CPC) who now are fully eligible for all asylum benefits. The spouses and children of these individuals also are eligible for all asylum benefits if they were properly included in the application for asylum (Form I-589) as dependents and if they reside in the United States. To receive asylum benefits as dependents, children must be under 21 years of age or classified as children under the Child Status Protection Act. For the announcement, click here. For the Fact Sheet on the Coercive Population Control Asylum Program, please click here.
  

12/27/2004: Washington Update (AILA)

12/27/2004: DOL Published PERM Final Regulation Today

• As predicted, the DOL published today in the federal register the PERM Final Rule. It states that this final rule is effective on March 28, 2005,and applies to labor certification applications for the permanent employment of aliens filed on or after that date. Please click the following for the full official text:
  • Text version
  • PDF version
    

12/27/2004: Flight Cancellations, Commercial Overnight Delivery Delays, and Government Filings

• There are two big changes to be taken place between 12/31/2004 and 01/01/2005. One is the EB-3 visa cut off date for Indians, Chinese, and Philippines. The other is the permanent labor certification application filings in the two-tier processing system until 12/31/2004 and one-tier processing system beginning from 01/01/2005. In both the USCIS and the USDOL, the filing is not effective until the cases are "physically receipted" by the agencies and post-mark or commercial pick-up is not enough. The consequences of ongoing flight cancellation involving COMAIR of Delta Airlines, UPS and Fedex flights will be more devastating for the I-140/I-485 concurrent filers before January 1, 2005 than the labor certification filers.
• The news indicate that the commercial overnight delivery companies such as UPS may deliver some of delayed shipments before the end of the year, but in the event it does not happen, people have no options but praying for one of the twos: One is trying to refile by other means before the end of the year or hope that USCIS exercises discretion to give an exception to these filings which have been affected by the forces beyond one's power. Please do tracking and keep a copy of the online tracking in your files.

12/24/2004: Changes in Nurse's Schedule A Qualification under the PERM (PERM Series 3)

• The Schedule A Labor Certification Application is filed with the USCIS along with the I-140 petition. The PERM made a change on the threshold requirement as follows:
• The nurse must have one of the following three to qualify for the Schedule A:
  • Permanent, full and unrestricted license in the state of intended employment; or
  • CGFNS Certificate (passage of the CGFNS Examination is not enought); or
  • Passage of NCLEX-RN. By adding this last option, the PERM regulation practically will make a nurse with a termporary license qualified for Schedule A immigrant petition.
• This change will take effect as soon as the PERM final regulation is published, probably on the 28th of December 2004. The change works against the nurses who go for CGFNS route and for the nurses who go for NCLEX-RN route.

12/24/2004: PERM Conversion and Recruitment Campaign (PERM Series 2)

• For Indians, Chinese, and Philippines nationals, whose labor certification applications have been and will be pending on or before March 27, 2005, it is extremely important that they seek conversion without losing priority date because of the retrogression of the EB-3 visa numbers from January 1, 2005. It is very important that they understand the rule of conversion and the recruitment requirement so that they can initiate recruitment campaign as soon as possible and refile his/her case after March 27, 2005 under the PERM program. Accordingly, we will discuss here two subjects which are in a way time sensitive for the purpose of initiating the PERM recruitment process.
• Conversion Rules: The PERM regulation allows the employers to withdraw the pending labor certification applications and refile a new application under the PERM system. Here the employers should keep in mind three points:
  • Once the pending application is withdrawn, the new labor certification must be filed within 210 days.
  • The new application must satisfy at least two conditions. One is that the new application should satisfy all the eligibility requirement for certification under the PERM regulation. Secondly, the new application should maintain "identical" job which was provided in the pending application. Here "identical" job means, the new labor certification should be the same for the following items:
    • Employer
    • Alien
    • Job Title
    • Job Location
    • Job Requirements
    • Job Description
  • However, the PERM regulation considers any accepted/approved amendments to the pending labor certification application up to the time of withdrawal to be "initial" application. Accordingly, should the employer need amendments to the pending applications for the purpose of a successful filing of the new application under the PERM regulation, the employer should seek promptly such amendment before the employer launches the recruitment campaign for filing of a PERM regulation. For instance, should the employer find some job requirements which may be considered unduly restrictive requirement, they should amend it before too late. The current labor certification regulation permits other amendments without losing priority date and without affecting the ongoing labor certification process. All the necessary amendments must be taken care of very quickly.
• Recruitment Requirements: The PERM regulation preamble states that the effective date of the PERM regulation is set at 90 days rather than 60 days or any shorter period of time is to allow the employers time to engage in the PERM recruitment process before the regulation takes effect, March 28, 2005. Since the recruitment campaign should be performed during six months prior to filing of a PERM regulation, the employers have sufficient time to initiate the campaign now. The PERM regulation requires different level of recruitment depending on the level of occupations. The employers should strictly adhere to these requirements.
  • Nonprofessional Occupations: Nonprofessional occupation means the occupations that do not normally require a bachelor's degree. For these occupations, the PERM regulation requires only "mandatory" steps, which include:
    • Job Order with the state workforce agencies in the area of intended employment. The national bank search job order must remain at least for 30 days. The employer should collect the document showing starting date and ending date of the job order from the state agency.
    • Two Sunday Daily Newspaper Ads: The ads can be ordered consecutively immediately after the first ad. The PERM regulation removed the current practice of requiring 28-day interval between the two ads. Accordingly, the employer can place one ad next Sunday, for instance, and the second ad, the following Sunday. The second ad must be published at least 30 days prior to filing of the PERM application.
  • Professional Occupations: Unlike the nonprofessional occupations, the professional occupations requires "Additional Recruitment Steps" on top of the foregoing "mandatory steps." Professional occupations mean the occupations that require minimum of a bachelor or higher degree. These steps are as follows:
    • Mandatory Steps:
      • Job Order
      • Two (2) Sunday edition local newspaper ads. For the jobs that require a bachelor's degree without experience requirement, two newspaper ads are absolute requirements. However, those jobs that require either experience on top of a bachelor's degree or an advanced degree, the employer can combine one newspaper ad and one professional journal ad. For instance, in computer jobs, employer can place one ad in the local Sunday paper and one ad in the Computerworld.
    • Additional Recruitement Steps: On top of the mandatory recruitment campaign, the employers are also required to engage in at least three (3) additional campaigns out of the following 10 options. One of the three steps can be completed even less than 30 days prior to filing of the PERM application.
      • Job Fair: Ad or program should name the employer name.
      • Employer website: Dated copies of the ad page.
      • Job Search Websites: Dated copies of the ad page. The PERM accepts electronic version of advertisement by the newspapers that run the print ads under the foregoing mandatory step as a proper campaign to meet this additional recruitment step option. Accordingly, if the employer orders newspaper ad and the paper automatically carries the ad on the newspaper website because of the newspaper's company policy, one print ad will satisfy one additional recruitment requirement without paying any extra cost for electronic ad of the newspaper! Employer should print out such dated electronic ads.
      • On-Campus Placement Office: Collect a statement from the college and university placement office that it was posted with the name of the employer and date of interviews conducted.
      • Trade or Professional Organizations: Copies of pages of newsletters or trade journals of these organization carrying the employer ad.
      • Recruiters or Employment Agencies: Copy of contract with such firms and copy of the ad by such firms.
      • Employee Referral Program with Incentives: This was a very popular recruitment source when the economy was good. Some companies offered a car or expensive computer. Employer should keep dated copies of the employer notices or memos advertising such program to the employees with specifying incentives offered.
      • Campus Placement Offices: Copy of notice of job opportunity provided to the campus placement office.
      • Local and ethnic newspapers: Copy of the ad page.
      • Radio or TV Ads: Copy of the text of the ad along with a written confirmation by the radio or TV that it was aired.
  • Required Text of the Ads: The foregoing recruitment campaign must be conducted with a proper text. The PERM regulation requires the following in the ads:
    • Name of the employer
    • Statement directing applicatns to report or send resumes to the employer
    • Job description sufficiently specific to understand the job
    • Geographic location of the job
    • Wage does not have to be printed, but once the employer opts to advertise the wage, it must not be less than prevailing wage. The PERM eliminated 95% rule pursuant to the Omnibus Appropriation Act of 2005 and the employer must pay minimum of 100% of prevailing wage.
    • Requirement or duties should match with the labor certification application to be filed.
    • Specific terms and conditions of employment does not have to be printed, but once the employer opts to advertise such information, it must not be less favorable than those offered to the alien.
• PERM labor certification application does not require proof of the foregoing documentation at the time of filing. However, the Certifying Officer can ask such documentation or in the situation of the audit, the employer must make these documents available. Additionally, the employers are required to keep these evidence for five (5) years from the date of filing of the PERM application. It is thus critically important that the employers develop a good record keeping and management system inhouse.

12/23/2004: PERM Final Regulation Loosen Up Requirements (PERM Series 1)

• AILA has obtained and released the PERM final regulation today. It is a large document over 300 pages which requires time to correctly understand the details of the new system. We will try to post the summary as soon as possible. To our surprise, the final regulation is more lenient than the proposed regulation in most of the areas.
  • Predicted Federal Register Publishing Date: 12/27/2004 (Monday)
  • PERM Launch Date: 90 days from 12/27/2004. March 28, 2005
  • Processing Times: From 45 days to 60 days.
  • Conversion and Retention of Priority Date: Can convert pending labor certification application without losing priority date if refiled within 210 days from the date of withdrawal and the occupation is considered identical. Conversion of regular labor certification application to the new PERM application will not be available once the employer commenced recruitment process (job order) under the supervision of the state labor department.
• For other details, please stay tuned to this web site.

12/22/2004: Wednesday Has Come and Gone Without PERM

• There will be no release of the PERM final regulation today. Since the Holiday office closings are rapidly approaching, there is a slim chance that the regulation will be published within this week. The regulation may be published any day within next week or on the New Year's Eve, December 31, 2004 if the DOL wishes to launch PERM program on March 1, 2005. As promised, DOL may schedule some types of orientation sessions as to "How To"for its customers during the 60-day period. Please keep patience and stay tuned to this web site with your eyes wide opened!

12/21/2004: Continuing Slip of Foreign Student Applications and Mounting International Competition Raise Serious Concerns for the U.S.

• By now, people know how serious it is that the country is losing foreign students to other nations, growingly at the accelerating rate. This year, the country witnessed 28% drop in foreign graduate school applications. Belatedly, the U.S. Department of State has started releasing promotion campaign in the form of press releases and cables to the visa posts to publicize that the country welcomes foreign business travellers and foreign students without noticeable improvement in visa processing. This website repeatedly reported that unlike other national policies, the policy on education should transcend a few administations and must be formulated looking ahead and assessing its impact on the country 100 years down the road. As a nation of immigrants, recent visa and immigration policy on foreign students will leave an ugly scar to this nation for years to come. For the New York Times report, please click here.

12/21/2004: Disgruntled ICE Officers Reportedly Urge Merger of ICE and CBP

• The Immigration and Customs Enforcement Bureau of DHS has been on the news quite frequently in 2004 due to its financial problems and alleged management problems. Report indicates increased number of officials of the ICE Bureau are frustrated and disgruntled and attempt to push their idea to merge ICE into the Customs and Border Protection Bureau. Along with the news of stepping down of Deputy Secretary of DHS today, the DHS appears to face some internal political struggle within the Border and Transportation Security Secretary's Directorate. Asa Hutchinson, the Undersecreatary representing this Directorate is one of the candidates for the next Secretary of DHS. When it comes to "enforcement" functions, ICE is already known to be the primary enforcement arm in the federal government. Read on.

12/20/2004: Visa Waiver Program Travellers to Face Tightened Immigration Inspections at Ports of Entry

• On December 20, 2004, the Office of Inspection General (OIG) of DHS released its report on the Review of the Use of Stolen Passports for Visa Waiver Countries to Enter the United States. According to this report, due to the flaws and loopholes in the immigration inspections, a substantial number of suspicious foreigners entered the U.S. using the stolen passports issued by these 27 VWP countries. One of the recommendations which the OIG presented was increased secondary inspections for these visa waiver program country travellers. Secondary inspection means that the travellers are not admitted by the inspectors in the windows of the airport but turned over to the another inspectors in a special room where the travellers are questioned or searched including carry-on luggage search.
• The OIG of DHS had earlier released a similar report and there were some supporters in the Congress to remove the Visa Waiver Program. It is unclear how today's report of OIG will affect the Congress when they return for the 109th Congress on January 4, 2005. For the OIG report, please click here.

12/20/2004: Immigration Benefits Application/Petition Statistics at End of October 2004

• According to the monthly statistics which was just released by the DHS, applications and petitions for immigration benefits in October 2004 decreased 19 percent compared to the number received in October 2003. October approvals were down 6 percent, while denials increased by 6 percent and pending decreased 22 percent when compared to October 2003.
• For the details, please click the following statistics:
  • Immigration benefits
  • Naturalization benefits
  • Asylum
  • Removals
  • Southwest border apprehensions
  • Inspections

12/20/2004: Heyday of U.S. Master Degree Holder Foreign Professionals: 20,000 H-1B Up for Grab in Less Than Seven Months

• Recent law change assigned 20,000 special annual H-1B numbers for those foreign professionals who hold a master's degree from U.S. higher learning institutions. For the FY 2005 that started on October 1, 2004 and will end on September 30, 2005, these professionals may probably have more than they would need since the chunk of 20,000 cap numbers must be used within less than seven months ( starting on March 8, 2005 and ending September 30, 2005). It means close to average 3,000 per month will become available to these advanced degree holders. Considering the fact that a large number of advanced degree holders are already absolved by certain employers that are not subject to the annual cap such as higher learning institutions, nonprofit research organizations, certain medical doctors, etc., 20,000 numbers may be absolved mostly by other government and private employers. Heyday for such advanced degree holders, indeed.

12/20/2004: USCIS Launches Employers' Employment Authorization Online Verification System

• USCIS has released a regulation to launch for the employers an "option" to verify the employment authorization of the employment candidates or employees online through the Social Security Administration database. Employers are advised that this is "not mandatory" and employers should consult their legal counsels and the USCIS Employer Sanction & Discrimination Penalties Document before they decide to choose this option. Registration with this system will probably give a safe heaven when it comes to employer sanctions for violating employment authorization verification obligation (I-9) and antidiscrimination rules. On the other hand, hiring any employees without employment authorization will subject them to the harshest punishment under the law as it will constitute "intentional" or "with knowledge" illegal alien hiring practice. The sanctions can include a criminal punishment. Until now, when the employer uses paper-alone I-9 to comply with the employer sanction statutes and the non-discrimination statute, they are not obligated to investigate the "legitimacy" of the evidence the alien employees provide. Accordingly, even if it turns out that some of these documents are illegitimate, such as EAD cards, the employers are not subject to the sanctions. For the full text of the online access employment authorization regulation, please click here.

12/19/2004: Advisory for Relocated Permanent Labor Certification Application Filers or Their Representatives

• As we reported earlier, the unopened cases are currently continuously transferred from the state offices and regional offices to the Backlog Reduction Centers (BRC) in Philadelphia and Dallas. These BRCs have started sending out letters to the attorneys or representatives or employers (in unrepresented cases) with the request to respond within 45 days from the date of letters. If they fail to respond within 45 days, such applications will be considered abandoned and denied. In the represented cases, the legal counsels or other representatives of the applicants are very mindful of this rule. However, those employers who filed the applications without an attorney or other representatives may miss the deadline to the response.
• The situation may be critical when the representatives or employers have relocated without updating the new addresses to the State offices or Regional Certifying officers. At this time, there is no clear guidelines from the DOL as to how the applicants or their representatives should update the addresses. This will be particularly troublesome when the applicants do not know whether their cases are still at the state or regional offices or have been transferred to the BRCs. It is also not clear whether the BRC letters can be forwarded by the U.S. Postal Services. Traditionally, the address change could be effected only by the amendment of the ETA 750 forms which involved return of the forms by the state or regional offices to allow the applicants to change the addresses on the forms. As the DOL is currently undergoing the reorganization process and things are not well streamlined to deal with such amendment process during this transitional period, it is urged that the DOL releases a guidance on procedure to amend the applications by those who moved such that they properly receive the notices and do not face the risk of being denied for failure to respond within 45 days of the BRC notices. It is also urged that either DOL or BRCs posts the case numbers on its website that have been transferred to the BRC or develop online status check system. This will allow the people to learn which agencies they should deal with to report the change of addresses!
• Attorneys or representives who moved may file a new G-28 as quickly as possible not to experience a crisis. This reporter is in the process of changing the suite number in the building and intends to do so.

12/18/2004: "Ability to Pay" vs. "Bona Fides Job" in H-1B Petition

• The issue of ability to pay has lately presented a lot of problems not only in the I-140 immigrant petition proceedings, but also in the H-1B nonimmigrant proceedings, because of the confusion and misunderstanding of some adjudicators in determination of the threshold requirement for "employer" qualification for H-1B petition. Specifically there are numerous reports that some adjudicators have issued RFE demanding to submit the evidence of "financial ability to pay" including the tax returns, etc. Obviously, this can be a training issue in that unlike I-140 petition proceeding, the financial ability to pay of the employer is not a threshold requirement under the statutue or regulation. The real threshold is existence of a bona fides job of specialty occupation. Accordingly, even a start-up company without any capital or financial record should be eligible inasmuch as there exists a bona fides job for the alien as established by such evidence as contracts or job orders from the customers or clients for the project involving the alien's services which will also guarantee the income for payment of the proffered salary to the H-1B alien. It is thus immaterial whether the employer had a track record of business income or capital in the past. Again, it appears to be a training issue and not a Services-wide issue, but it would help if the USCIS would issue a guidance for the Service Centers and their adjudicators.

12/18/2004: I-140 Petition, "Ability to Pay" Requirement, and USCIS Plan

• Lately, a host of I-140 immigrant petitions have been denied on the issue of petitioning employer's financial ability to pay the proffered wage. The requirement of "financial ability to pay" is derived from the interpretation of the immigration statutues and there is no such specific language in the statute itself.
• In implementing the financial ability to pay requirement, there have been a number of confusions, inconsistencies, and arbitrariness until the so-caled "Yates Memo" was released no too long ago to clarify the standards. Now, the USCIS rule-making agenda reflects that USCIS is planning to amend 8 CFR 204.5(g)(2) to eliminate specific reference to ability to pay and replacing it with the statutory requirement that petitioner establish its bona fides as a U.S. employer through specifically cited initial evidence. This rule provides clarification and focus that reflects the statutory requirement that the petitioning employer establish its bona fides as a U.S. employer and the viability of the proffered job.
• The plan is to enact this regulation in April 2005. The USCIS can change the plan as it often does, but we support this regulatory amendment to come better terms with the statutory language and the legislative intent. Before the legacy INS and the current USCIS started toughening the financial ability to pay requirement, the legacy INS implemented the statute and regulation somewhat liberally and close to the terms of the statutory language. For instance, the reality of the business reflects that the businesses constantly go through "ups and downs" in revenue and income over the years. One cannot judge the viability of a business strictly based on the net income figures of the businesses in a given year. There may be hundreds of thousands of businesses that have survived for years and years, sometimes over 10 years, and are experiencing downturn of the revenue because of the poor economy. It is indeed absurd that these businesses are judged as "not viable" because of couple of years of business slowdowns! We urge the USCIS to amend the regulation as drafted and implement the statutes more close to the language of the statutes.

12/18/2004: Service Centers Launch Live Assistance Effective 12/20/2004

• AILA has reported that effective next Monday, December 20, 2004, people will be directed to each Service Center for certain types of questions for the live assistance by each Service Center if the people call the NSCS 800 number between 8:00 a.m. and 4:30 p.m. of the local time of each Service Center. Accordingly, the Service Centers will resume the live telephone assistance but more or less in an indirect fashion. This will improve to a great extent the contact representative function through the officers who have access to the individual files at each Service Center. Right on, USCIS!

12/17/2004: Prediction of EB-3 Visa Number Progression for China, India, and Philippines

• One of the big open questions for the Chinese, Indian, and Philippines communities is what will happen after the EB-3 visa number is retrogressed to January 2005. According to the AILA, it may not start moving until March or April 2005. Accordingly, the cut-off date of January 1, 2002 may not change in the February 2005 Visa Bulletin or even in the March 2005 Visa Bulltin for these three countries. Another question is the pace of progression. It remains an open question. Please stay tuned.

12/17/2004: Service Centers Processing Times of December 17, 2004

• See homepage.

12/17/2004: Philippines Nurses Hit Hard by EB-3 Visa Number Retrogression

• This site has already cited the statistics of CGFMG reflecting almost 50% VisaScreen applicants being taken by the Philippine nurses. The American Embassy in Manila, Philippines indicates that in FY 2004, the Embassy issued 8,705 EB-3 visas to the Philippines applicants. Aside from the visa applicants, there are a large number of Philippine nurses who were able to obtain green card through the Schedule-A immigration proceedings within the U.S. Now they are about to face a monstrous roadblock ahead of them beginning from January 1, 2005. It is interesting to see how the EB-3 retrogression will affect the nurse shortage in this country and how the Congress will react to the pressure from the healthcare community. It is expected that in the coming year, the healthcare industry will launch an aggressive campaign to seek a legislative relief just as they did for foreign physicians this year, passing legislation to extend Conrad program and removing H-1B cap for certain foreign physicians. Unlike IT jobs that can be outsourced, the nurses jobs cannot be outsourced.

12/16/2004: Guide for Employers: Primer of "Employer Sanctions"

• USCIS has released a guidance for employers on the subject of "Employer Sanctions." The human resources managers and inhouse counsels of corporations should keep a copy of this primer as a handy check list for compliance. Read on.

12/16/2004: DOL to Publish PERM Regulation Early Next Week?

• AILA predicts that the PERM regulation may be published early next week. Unlike other Christmas seasons, the lawyers and immigrant community are thus expected to be busy this Christmas to analyze the new labor certification system and study strategies to cope with the new system.

12/16/2004: State Department to Add 150 Consular Officers Each Year for Next Four Years

• The U.S. Department of State has been criticized for visa delays and the ensuing problems. Without much publicity, however, the 9/11 bill (2004 Intelligence Reform and Terrorism Prevention Act) authorized the State Department to hire 150 more officers each year from FY 2006 through FY 2009. Since the U.S. Department of State has been whining and complaining for the overburdened consular workers, dumping the blame on the shortage of resources, this legislation should help them to improve their consular/visa business. For the report, please click here.

12/16/2004: Nebraska Service Center Processing Times of 12/15/2004

• AILA has obtained and released advanced copy of the NSC Processing Times report. We thank the AILA for the information being made available to the public. Read on.

12/16/2004: 20,000 Additional H-1B Cap Numbers for U.S. Master's Degree Holders

• According to the Nebraska Service Center sources as released to the AILA, these cases, unlike other regular H-1B cases, are likely to be filed and processed by the Vermont Service Center regardless of the location of the employment. In other words, these cases may be "centralized" in jurisdiction in one Service Center.
• USCIS has yet to announce its policy as to when the eligible aliens will be able to file these cases. This provision will not be effective until March 8, 2005, but USCIS, if it decides to do so, can take and process these cases even before March 8, 2005 and approve the cases with the valid date of March 8, 2005. However, because of the $500 fraud prevention fee which they can charge from March 8, 2005, the agency may not decide to accept these cases earlier than March 8, 2005. We will have to wait and see. Please stay tuned.

12/15/2004: Extension of Validity of Medical Examination Certification I-693

• USCIS issued a memorandum extending the validity of the certified I-693 for the concurrently filed I-485 applicants beyond one year, at least until January 1, 2006. The extension does not apply to Class A or B cases. This decision is made because of the continuing backlog in processing of I-485 applications. Read on.

12/14/2004: EB-3 Visa Number Retrogression, Labor Certification Backlog Elimination, & Importance of Conversion for PERM

• As the DOL is about to release the final rule of PERM new labor certification system, the Indians, Chinese, and Philippine communities are closely watching the conversion provision under the final PERM regulation. When the DOL planners devised the two pillars (PERM Electronic Processing for New Cases and Reduction of Backlogs for Existing Cases) more than six or seven years ago for the reengineering of the labor certification system, the planners seemed to intend to encourage conversion as a means to reduce the backlogs. In this regard, appropriate mechanisms to switch some of the caseloads from the Backlog Reduction Centers to the National Processing Centers in the form of "conversion" appear to be very important for the DOL to achieve the intent of the original Strategic Plan.
• Conversion is very important for the labor certification applicants because of the upcoming visa number backlogs for EB-3 for the Indians, Chinese, and Filippinos. Since the priority date will be as important as the prompt processing of the labor certification application, unless liberal and lenient conversion provisions are incorporated in the PERM system, the DOL will fail to move some of the backlog workloads from the Backlog Reduction Centers to the National Processing Centers. Conversion also has additional importance because of the DOL policy to process the backlog cases by the Backlog Reduction Centers on the FIFO principle. Conversion will allow the involved aliens in the backlog pipelines to escape from the long and long waiting line related to the FIFO processing rule without losing the priority date. In this regard, conversion should help the DOL to achieve the goal of reducing backlogs and the aliens to achieve the dual goals of keeping priority date and obtaining the labor certification approval in a short period of time. We must say that it is a "win-win" situation for everyone involved. It is thus hoped that the soon-to-be published PERM regulation sufficiently incorporates this concept providing a lenient policy for conversion. Let's cross our fingers together.

12/14/2004 PERM Cleared12/10/04

• The White House announced in the dawn today that it cleared the long-awaited PERM final regulation of the U.S. Department of Labor. The exact date of release of this regulation in the federal register is unknown and left to the DOL, but it may not take too long to release this regulation. The Chief of Foreign Labor Certification, DOL, previously stated that once the regualtion was published, it would have 60-day window period of time before the PERM program would be actually launched. Now, PERM is reality and no longer the subject of speculation.
• The current labor certification system of RIR, Limited Review, and Regular labor certification applications will soon disappear and be discontinued. The National Processing Centers in Chicago and Atlanta will go into full operation of the new labor certification applications named PERM as soon as the 60-day window is opened. For the development of this news, please stay tuned to this website.

12/14/2004: 61,747 Out of 66,000 H-2B FY 2005 Cap Numbers Used as of 12/08/2004

• USCIS has announced that as at December 8, 2004, it had used 61,747 H-2B cap beneficiaries for the FY 2005. FY 2005 started on October 1, 2004 and will end on September 30, 2005. The H-2B annual cap is 66,000 but it stated that normally it had to approve 100,000 beneficiaries to reach the cap. Read on.

12/13/2004: December 10, 2004 Labor Certification Processing Times

• See homepage.

12/13/2004: USCIS Withdrew Plan to Remove "Duration of Status" for F, J, I Visa Nonimmigrants

• USCIS had a plan to remove the D/S and impose the fixed date of admission for the F, J, and I nonimmigrants, subject to extension. This plan raised some concerns as it would not only affect the duration of permit to stay but also the concept of "unlawful presence" for these nonimmigrants. Currently, these non-immigrants are not subject to the three-year or ten-year bar even if they fell out of status more than six months or one year unless DHS or DOS or DOJ officials determined that they have violated the nonimmigrant status and they are out of status.
• USCIS has withdrawn this plan. Good Gracious! Congratulations to the foreign students, exchange visitors, and international media representatives!!!

12/13/2004: Government Semi-Annual Rule-Making Agenda: Immigration & Visa

• The government has released its semi-annual rule-making agenda FY 2005. Some of these agenda may be dropped or changed or added along the way, but this agenda gives some ideas on the Bush administration's rule making activities for the next six months. Read on.
  • DHS (Homeland Security)
  • DOL (Labor)
  • DOS (State Department)

12/13/2004: Temporary Guest Worker Program to Face Two Cons: Conservatives and Hillary Clinton

• Reports indicate that Bush's agenda for his 2nd term administration is to push the Temporary Guest Worker Program as soon as the Congress returns to the Hill for the 109th Congress and he is sworn in for another 4-year term in January 2005. Until now, it was thought that the only political forces Bush would have to deal with were the right-wing conservatives. However, the conservative Washington Times reports that Hillary Clinton, a most-likely Democrat candidate in 2008 Presidential election, is coming out of the closet campaigning against illegal immigrants and in support of tougher immigration reform, tougher entry-exit system than Bush's. Reportedly, she is attempting to attract the support from the conservatives in election 2008 and move herself towards the right from the center in political philosophy. Surprise, surprise, surprise. One then questions when the Democrats will learn the lesson from the 2004 election: Swaying in Iraq war stance and political agenda not distrinctively "Democratic" leading to the loss in the election. Why change if not different? If the Democrats continue to be intimidated by the conservatives, they will continuously play "Geisha," and keep swaying. For the Hillary's info, please click here.

12/12/2004: DOL Backlog Reduction Centers' Processing Queue Under FIFO Processing

• Many of the readers have sent us a question on how the Backlog Centers would process the cases once cases are transferred from the local state offices. Since there are more than 300,000 backlog cases in the pipeline, they were very concerned.
• According to the available sources of information, these backlog centers are and will be processing the cases on two principles. One is to process and maintain a separate queue for each different type of cases, such as RIR, Regular Case, Limited Review Processing, Faculty Special Handling, Etc. They will then process in each of these different queues in the order of First In and First Out (FIFO). There are no available information about the number of backlog cases in each of these different types of cases. However, it is evident that the largest number of cases fall under the category of "regular" labor certification applications of 245(i) benefit which were filed immediately prior to April 30, 2001. These are also the cases which the Inspector General of DOL was most concerned about the potential frauds, irregularities, or filing flaws in his recent release of the audit results. The waiters in this type of cases should not expect a quick fix for the two reasons. Firstly, they are standing in the long, long, long line or queue. Secondly, their cases may be more intensively scrutinized than other types of cases, causing processing delays. On the other hand, the non-regular cases may be processed fairly in a limited period of time because they have a shorter queue and will be subject to less scrutiny. These waiters should not be intimated or overly concerned by the simple total backlog numbers of over 300,000 cases. Please enjoy your holidays!

12/12/2004: F & J Students, FY 2006 H-1B Cap, and Legal Status

• Beginning from April 1, 2005, USCIS will start taking in FY 2006 H-1B cap petitions and approve the qualified H-1B petitions with the validity and effective date of October 1, 2005. The new H-1B applicants must maintain a nonimmigrant status until October 1, 2005 even if the change of status to H-1B will be approved earlier than October 1, 2005.
• When H-1B cap reached earlier than the end of the fiscal year, the legacy INS and the current USCIS exercised discretion to consider the F-1 and J-1 student status extended until October 1 or until the H-1B petition was approved inasmuch as the petition was filed before certain cut off date after reaching the annual cap. Accordingly, these students did not have to worry about running out of status after the graduation or expiration of OPT or Practical Training inasmuch as they did not engage in unauthorized employment during the period of the "cap gap."
• Some of these students will experience a long "gap" between the graduation or expiration of OPT and October 1, 2005. Those who graduated in the Spring 2004 and have been working on OPT may run into out of status even if they count the grace period of 60 days (F-1) or 30 days(J-1) after completion of the OPT. However, in coming year, they may not count on the USCIS policy of cap-gap discretion. Unconfirmed sources indicate that unlike previous practices, the USCIS may not exercise such discretion in coming year. The affected F-1 and J-1 students should thus try to find another option to maintain his/her nonimmigrant status through October 1, 2005 after their practical training period and grace period will run out. Planning is important. Please beware.

12/12/2004: Options for EB-31 Retrogressed Indians, Chinese, and Filippinos

• It is likely that the priority date for EB-3 may move either slow or move further back depending on the pace of USCIS I-485 backlog reduction efforts. Considering the fact that the USCIS will do everything within power to achieve the 6-month processing time goal by September 30, 2006, which is committed by the President Bush, the visa number usage for EB-3 will keep rising adding further pressure on the EB-3 visa priority dates. Facing such challenge, the immigrant community should learn some lessons from prior experiences in the immigration history when the EB-3 numbers were heavily backlogged and Chinese and Indians had to wait a long time to get a green card. When the EB-3 numbers were heavily oversubscribed, the Chinese en masse started filing EB-2 cases, leading to an abnormal movement between EB-2 and EB-3. One time, EB-2 numbers were more backlogged than EB-3. How did they cope with the problem? The answer was filing of "multiple petitions."
• In order to understand this option, one has to understand the rule of the employment-based preference immigration petitions. The rule is analogous to a "watershed" or "downhill water stream." For instance, once he/she obtains a "upstream" labor certification application such as EB-2, he/she is also eligible for "downstream" immigrant petitions such as EB-3. Accordinly, in this illustration, if he/she obtains a labor certification approval for EB-2 job, he/she can file two I-140 petitions simultaneously or sequentially, one for EB-2 I-140 petition and the other for EB-3 I-140 petition. If he/she chooses to do that, he/she can also file just a EB-3 petition using the certified EB-2 labor certification application. The same is not allowed from downstream labor certification application to upper stream preference immigrant petitions. For instance, if he/she obtained a labor certification for EB-3, he/she cannot file a EB-2 petition.
• If we look at the January 2005 Visa Bulletin, the visa numbers for Indians, Chinese, and Filippinos will be retrogressed to January 1, 2002 for EB-31 (professional with a bachelor's degree or skilled worker requiring minimum of 2-year work experience). Strangely enough, though, the lower stream preference category of EB-32 (other workers requiring less than 2-year of work experience) will remain "current." EB-32 has much less number of visas than EB-31 under the law. The current unusual pattern of priority dates for EB-31 and EB-32 were brought about by the trend of Indians, Chinese, and Filippinos applying for college level jobs or skilled jobs rather than unskilled jobs. Without doubt, the people who read this posting may rush to file EB-32 petitions probably accelerating the oversubscription of EB-32 visa numbers as well.
• Two other points will interplay with the watershed rule of multiple petitions. One is the USCIS policy that the EB-485 applicants can replace the underlying I-140 petitions inasmuch as the original underlying I-140 petition remains valid. The second relevant factor is the current policy of "concurrent filing of I-140/I-485." Let's assume that he/she had an approved I-140 for EB-31 and concurrent I-485 is pending. This I-485 will be shelved from January 1, 2005 because there is no visa number for him or her and there is no sense of USCIS processing such I-485 cases. If he/she files I-140 petition for EB-32 using the EB-31 certified labor certification, he/she may request the Service Centers to replace the underlying EB-31 I-140 petition by EB-32 approved I-140 petition. Should he/she have two different preference approved I-140 petitions, he/she may keep switching the underlying approved I-140 petition depending on which one is favorable. This will keep the pending I-485 alive and kept being processed.
• The option involves some level of risk unless one is very knowledgeable of intricacies of interplay of the rules which are described above. People should never attempt to take such option in their own hands. They should seek legal counsel. They should not take this message as a law because it is not. It is an opinion of this reporter and people should not rely on the message on the internet. This reporter will not be responsible for the consequences of such reliance. Please talk to your lawyes!

12/11/2004: USCIS Plans to Allow O or P Visa Petition Filing 1-Year Ahead of the Needs

• The USCIS plans to allow certain petitioners to file O and P nonimmigrant petitions up to one(1) year prior to the petitioners' need for the alien's services. Petitioners frequently plan for an event or performance more than one year in advance when seeking O and/or P nonimmigrant workers for employment in the United States. By extending the filing time requirement for O and P petitions from the current six (6)months to one(1) year, USCIS hopes to provide relief and assurance to petitioners that, if approvable, such petitions will be approved prior to the date of the petitioners' need for the alien's services.
• Current filing times combined with processing times often result in an O or P petition being adjudicated at the same tim e or later than the date of the petitioner's stated need for the alien. This creates a hardship for employers who are seeking to hire the alien based on a scheduled performance, competition, or event, and who may have booked a venue and sold advance tickets. If the petition is not approved by the time of the petitioner's stated need, the petitioner may be required to cancel a scheduled event or performance, may lose funds advanced for booking a venue, and may also be liable for the costs associated with ticket refunds. Since an O or P employer may plan for the competition, event, or performance more than one year in advance, DHS has determined that extending the filing time will provide relief to many such employers. This policy change will ensure that certain O and P nonimmigrant petitions are adjudicated well in advance of the date of the employers' stated need, and thus prevent employers from having to cancel an event, competition, or performance either because the petition was denied at the last minute, or because the petition was not adjudicated in advance of the need. Employers will be less likely to lose booking costs or have to issue refunds if they receive a decision on the petition well in advance of the event, competition, or performance. Extending the time requirements for the filing of O and P petitions will provide immediate relief to affected United States employers.
• It is expected that this new policy will be in place sometime in March 2005. Please stay tuned to this website for the development of this policy change.
  

12/11/2004: DOL Plans to Terminate "Fax" Filing of H-1B LCA

• Currently, DOL allows employers to file labor condition applications (LCA) electronically, by FAX, and by mail. The DOL seeks to eliminate the LCA filings by FAX. Employers that could not file LCAs electronically due to physical impairments would be allowed to submit LCAs by mail. The DOL believes the e-filing process will ensure expeditious processing of H-1B petitions and limit the number of potentially incomplete applications. In addition it will ease the filing burden on employers. Through e-filing the DOL will be
  better able to capture statistics and analyze H-1B program data to identify areas that need improvement as well as any fraud or abuse that may lead to future administrative, civil or criminal enforcement actions against H-1B employers or alien beneficiaries. Please stay tuned.
  

12/10/2004: Continuing Decline of Foreign Students and Brains Alerts U.S. Media

• One of the biggest challenges the U.S. Department of State faces is to reverse the trend of the current non-stoppable declining of foreign students and brains applying for admission to the U.S. Current trend not only affects the economy (foreign students constitute an important industry in terms of dollars) but also raises a serious question on the future of this country due to the reduced inflows of foreign brains. Analysts suggest that this trend is created by the two factors, among others. One is the visa application problem. The other is the changing environment in the U.S. which is unfavorable to and does not welcome foreigners. To many, the U.S. is no longer considered a sound place to live and enjoy life for intellectual immigrants. Please hear the voice reflected in the media reports.

12/10/2004: Newly Enacted 9/11 Legislation to Boost Hiring in DHS Enforcement Forces

• The 2004 Intelligence Reform and Terrorism Prevention Act, with the nick name of 9/11 bill, is likely to reenforce the team of immigration and border security arms of DHS quite a bit. Report indicates that it increases the number of full-time border patrol agents by 10,000 over five years and the number of full-time Immigration and Customs Enforcement investigators by 4,000 over five years. It also orders an increase in the number of beds available for immigration detainees by 40,000 in the same time period. The bill requires DHS to test advanced technology systems to secure the U.S. northern border, such as sensors, video and unmanned aerial vehicles. DHS also is required to devise a plan for systemic surveillance of the southwest border by remotely piloted aircraft.The bill authorizes nearly $2 billion in new funding for the Transportation Security Administration to improve aviation security. That includes $600 million to improve air cargo security from fiscal 2005 to fiscal 2007, $300 million to develop new air cargo security technology from fiscal 2005 to fiscal 2007, $450 million for baggage-screening improvements, more than $250 million for weapons-detection equipment, $100 million to research explosives detection technology, and $150 million to test new screening equipment. The bill requires DHS to develop a national strategy for transportation security and to determine appropriate screening staff levels to ensure that delays at airport security checkpoints are minimized. Read on.

12/10/2004: Minnesota State Labor Certification Processing Times of 12/08/2004

• RIR=07/01/2004, Regular=12/09/2003, Faculty=C, Temporary=C

12/10/2004: USCIS Press Release on Its Interpretation and Implementation of H-1B Law Change

12/10/2004: USCIS Press Release on Its Interpretation and Implementation of L-1 Law Change

12/09/2004: Labor Certification Cases Transfer Schedules from State Offices to Backlog Processing Centers

• DOL has issued a memorandum detailing the schedules of unprocessed labor certification cases from the state offices to the newly created and operating National Backlog Processing Centers in Philadelphia and Dallas on the following schedules:
• Cases Received Before 01/01/2003: Ship to the Backlog Processing Centers no later than 12/31/2004. Cases are sorted out and shipped out on first-in first-out basis. Therefore earliest cases are shipped out first.
• Cases Received from 01/01/2003 to 12/31/2004: Ship to the Backlog Processing Centers no later than 03/31/2005, again in the order of first-in and first-out basis.
• Cases Received after 01/01/2005: Date stamp and ship to National Processing Centers and current Region I and Region VI Offices for processing and adjudication. From January 1, 2005, the state offices are completely phased out. In fact, there are plenty of state offices that have already stopped processing of permanent labor certification cases.

12/08/2004: EB-3 Visa Retrogression and Correct Understanding of Priority Date

• This reporter is concerned that there are so many people out there who did not understand the priority date clearly. The priority date is determined differently between the labor certification based green card proceedings and the labor certification waiver green card proceedings such as EB-1, Schedule A, and National Interest Waiver cases. In the labor certification application based green card proceeding, the priority date means the date the labor certification application was first filed with the labor department. Unlike common misunderstanding, it is not the date of either I-140 petition receipt date nor I-485 receipt date. Accordingly, even if he/she recently filed I-140 petition or concurrent I-140/I-485 recently, they may not be affected by the retrogression inasmuch as their labor certification application shows a filing date earlier than January 1, 2002. For the approved labor certification applications, people should check a box "L.O" at the right bottom of the approved labor certification application.
• On the other hand, in the labor certification waiver cases, the priority date means the receipt date of I-140 petition. People should thus check I-797 Receipt Notice of I-140 petition in these cases to find out the priority date.
• We discussed earlier the rule of retention of priority date. Under the rule of retention, the alien beneficiary retains the priority date even if the alien starts a new labor certification application with a different employer if and only if the I-140 petition has been approved. Once this condition is satisfied, the retained priority date can be transferred to different categories of I-140 proceedings. For instance, the priority date which was established by the EB-1 or EB-2 I-140 petition approval can be carried over to the petition proceedings for EB-3 and vice versa. Accordingly, those who have changed employers and was involved in the immigration proceedings with other employers should seek legal counsel to see whether their priority date is behind or ahead of the visa cut-off date in the Visa Bulletin.

12/08/2004: Primer of Nurse's Immigration and Nonimmigrant Visa/Status Application

• The USCIS released a bulletin which is a primer for nurse's immigration and nonimmigrant options under the current immigration law. Considering the fact that EB-3 will definitely retrogress to January 1, 2002 priority date, the eligible nurses and other healthcare workers should file the concurrent I-140/I-485 before the end of December 2004. In this regard, the USCIS release of this primer is very timely and valuable. Read on.

12/08/2004: January 2005 Visa Bulletin: India/China/Filipino EB-3 Retrogressed to 01/01/2002!!

• The State Department has just released the Visa Bulletin for January 2005. As expected, the employment-based EB-31 moved backward to January 1, 2002 for India, China, and Philippines. It is interesting to learn that the EB-3 cut-off date applies only to "professional or skilled worker" EB-31 category and the unskilled worker category of EB-32 remain "current" for the Indians, Chinese, and Filipinos.

12/08/2004: U.S. Advanced Degree Holders and 20,000 H-1B Petitions Availability

• The new H-1B law assigned 20,000 additional H-1B numbers for the U.S. Advanced Degree Holders. This provision is effective 90 days after enactment of the legislation. The USCIS has announced that such H-1B petition will not be accepted at this time until they determine their guidance in the future. However, it is sumbitted that the additional numbers will not be available until March 8, 2005, but the law does not prohibit the USCIS from accepting and filing such petitions and for that matter even approving such petitions earlier than March 8, 2005 with the effective date of March 8, 2005 or later dates. After all, it is a matter of policy and discretion. The sole hang-up against earlier acceptance of filing will be the agency's inability to charge $500 of Fraud Prevension fees. The Fraud Prevention Fee can not be charged before March 8, 2005. However, we strongly urge the USCIS to set aside such funding issue and to allow filing and adjudication of these cases earlier than March 8, 2005 so that additional H-1B employees become available to the U.S. employers as soon as possible immediately after March 8, 2005.

12/08/2004: Fraud Prevention Fee for H-1B and Certain L-1B Not Effective Until March 8, 2005

• The H-1B and L-1B change legislation which was signed into a law this afternoon has provisions charging $500 to certain H-1B filers and L-1B filers. However, when it comes to the effective date of this fee, there are two conflicting provisions which provided that it would be effective upon enactment of the law and in other section provided that the fee be charged 90 days after the enactment of the law. The USCIS apparently interpreted this conflict in favor of the immigrant community and employers by announcing today that this fee will not be effective until March 8, 2005. Good news.

12/08/2004: President Signed Omnibus Bill Into Law

• The President signed this afternoon the Omnibus Spending Bill into law, which includes the H-1B and L-1B law change. The H-1B fee increase provisions thus take effect as of December 8, 2004. People will recall that this website already predicted on November 14, 2004 that the changes to H-1B and L-1B might take effect on December 8, 2004 and we advised later on our website that people should file H-1B petitions by December 8, 2004 to avoid the outrageously high filing fees!
• The USCIS has already announced that H-1B 129W fee has increased to $1,500 and released the new I-129W form on the form site. Please check the I-129W online form IMMEDIATELY!!! New instruction now states:
  • "The Consolidated Approprations Act of 2005 was enacted on December 8, 2004. The Act changed the ACWIA fee determined on Form I-129W. The fee is now $1500 in most cases. If you are an employer with no more than 25 Full-Time Employees as defined on the Form I-129W, the fee is $750. This fee is not yet reflected on the paper Form I-129W, however, you are responsible for submitting the correct fee."
    

12/07/2004: H.R. 10 Dead For a While

• The House passed this evening Intelligence (9/11) bill but "without" the controversial immigration provisions of H.R. 10. However, the report indicates that White House and the House leadership were forced to pledge to House Republicans that they will attach controversial immigration and law enforcement provisions dropped from the bill to the first legislation that is taken up by the next Congress and seems certain to be signed into law. Too bad....................................................................
  

12/07/2004: Origin of the H-1B Change Legislation in the Omnibus Spending Bill

• As the U.S. employers are about to face the whoppy increase of H-1B filing cost and no displacement attestation for the H-1B dependent employers, people wonder where this monster crept up. Often legislators take advantage of pushing through their legislative agenda without much notice and publicity even among their colleagues by burying their bills in the Omnibus Appropriations Bill.
• As for the H-1B change legislation, people may want to revisit our posting on April 9, 2004 where we reported that Congressman Lamar Smith from Texas and four other cosponsors introduced H.R. 4166 on the H-1B legislation. To our surprise, though, when this bill was sneaked into the Omnibus Bill, the terms of the legislation turned much worse, changing H-1B charge from $1,000 to $1,500.
• Another issue which currently confuses the employers and immigrant community is USCIS implementation of $1,500 charge. The legislation states that the fee will take effect upon enactment, meaning the President's signature, and people wonder whether people should be required to pay $1,500 charge immediately or it would require the rule-making process. One thing which is very clear is that this $1,500 charge is statutorily mandated, as distinguished from the agency increasing immigration filing fees from time to time under the authority granted by the existing statutes, which remain the agency's discretion. It is interesting to see how this new fee will be collected from those who will file the H-1B petitions immediately after the signing of the bill by the President.

12/07/2004: TPS Eligible Hondurans & Nicaraguans Should Register by 01/03/2005

• USCIS has released a reminder to the Hondurans and Nicaraguans to register for TPS extension by January 3, 2005. Since we are approaching a long holiday season including Christmas and New Year, time may run out without notice and they may face a serious consequence. They should not delay the registration. Read on.

12/06/2004: House Passed Omnibus Spending Bill with Correction

• As expected, the House passed this bill with the correction. Both the House and the Senate previously passed this bill but did not present to the President for his signature because of one error slipped into the bill by a staff of a Congressman. Thus the Senate held this bill until the House would correct the error today. Today the House corrected the error and passed the bill and sent to the President for his signature. This bill includes the H-1B and L-1B change legislations. Read on.

12/06/2004: DOL Inspector General Audit Result of Backlog Labor Certification Cases

• The Office of Inspector General reports that it recently conducted audit of the backlogged labor certification applications and found the following concerns:
  • 69% cases were misrepresented or incomplete.
  • 84% involved aliens working without work authorization.
  • 72% involved aliens without legal status.
• The report thus raised a concern that many of the applications that should be denied would be approved because of the priority to eliminate the backlog. The report also reports the findings of pervasive fraudulent activities involving the labor certification applications and filing of bogus applications for the substitution purposes on blackmarket sales. This report is likely to affect the processing of the backlogged cases by the National Backlog Reduction Centers as these Centers should maintain a balance between the need for reduction of backlogs and the need for maintaining the integrity of the permanent labor certification applications. It also suggests that unlikely the general expection in the immigrant community, the cases may not move as fast as people anticipates and there will be a large number of cases that would be denied or required for additional corrective measures. Read the report.
• The AILA has reported from the DOL information that DOL Backlog Reduction Centers would mail out 10,000 Receipt Notices to the applicants beginning from today with the request for response within 45 days pursuant to the labor certification regulation.

12/06/2004: Service Centers Processing Times of December 6, 2004

• See homepage.

12/06/2004: Congress Returns Today to Decide Two Important Immigration Bills

• The Congress schedules another short Lame Duck session today to determine 9/11 legislation and Omnibus Spending legislation. The 9/11 legislation contain the notorious immigration bill of H.R. 10 which the immigrant community strongly opposed more or less successfully but a legislator from Winsconsin is attempting to revive. It is uncertain whether this 9/11 bill make it in this Congress. If it does not, the H.R. 10 dies as well. The Omnibus Spending legislation needs removal of embarassing provision which has no disagreement whatsoever and is expected to be passed and sent to the President very quickly. This bill contains H-1B and L-1B change legislations which we reported earlier.
• After taking care of these bills, the 108th Congress will close and the new 109th Congress will open on January 4, 2005. All the unresolved bills of the 108th Congress will automatically die. Without doubt, some of these unresolved bills will be reintroduced in the 109th Congress. The immigrant community hopes that now election year hang-up has been put aside, the Congress should actively work on immigration bills in 2005 before they face another Congressional election in November 2006. In this regard, the year 2005 should be taken as a year that will present unusual opportunities for the immigration proponents to push the immigration bills, including the DREAM Act, 245(i),and probably Temporary Guest Worker bill.

12/06/2004: President Signed IMG Conrad Program Extension and H-1B Cap Exemption Legislation

• On Friday, the President signed into a law the bill (S.2302) that extends the Conrad Programs for certain International Medical Graduates and exempt certain IMGs from the H-1B annual cap who have been granted J-1 two-year foreign residence requirement based on federal interested agency's sponsorship. For the full text of the bill, please read the linked S.2302.

12/05/2004: USCIS May Abandon Concurrent I-140/EB-485 Filing Procedure

• The concurrent I-140 and EB-485 filing system was considered a good idea and initially welcome by the immigrant community when it was announced. The system helped the employment-based green card applicants and their family members to obtain EAD and Advance Parole early. However, the two problems have developed and surfaced with the concurrent filing system afterwards. One is the predicament it has created in conjunction with the implementation of AC 21 180-day rule which allows the I-485 applicants to change employment after 180 days of I-485 filing. The issue was whether the I-485 applicants should be allowed to change employment even before the underlying I-140 petitions had been approved. Such interpretation presented a number of complicated political, policy, and legal issues. The USCIS thus adopted a policy that the change of employment would not be allowed until the I-140 was approved. Since then USCIS has witnessed the backlog in I-140 processings and many I-485 filers have been trapped not being able to change employment even in compelling circumstances such as layoffs. The problem was exaceperated by the announcement and partial implementation of "concurrent I-140/EB 485 adjudication policy." Now the EB-485 became a hostage of not only by I-140 approval precondition policy but also by delay of EB-485 adjudications. Pending EB-485 applications, I-140 have remained unadjudicated in some Service Centers indeed for a prolonged period of time. Some Service Centers followed the concurrent adjudication policy but other Service Centers refused to follow the concurrent adjudication policy. The concurrent filing system thus stirred uproars in the business community as well as the immigrant community. The second problem of the concurrent filing appears to be that it has failed to reduce the backlogs. Moreover, such problem is about to face exasperation due to the U.S. Department of Labor's attempt to commence electronic filing of the permanent labor certification applications (PERM) and backlog reduction procedures, which are expected to dump a huge I-140 and EB-485 concurrent filing load on the USCIS which has already been struggling with its own backlog problems. Politically, it is a nightmare in that the USCIS is under a tremendous stress and pressure from the White House to achieve the Bush's 6-month processing time goals in less than two years from now.
• In order to deal with the foregoing "two predicaments," the USCIS is known to working on strategies on the two fronts. The first is the so-called interpretation of the new legal counsel of the USCIS who disagreed with the USCIS interpretation of AC 21 180-day rule. It is a well known information within the immigration lawyers community that the new legal counsel was planning to release his legal memorandum to the effect that the EB-485 applicants would be able to change employment even before approval of the I-140 petitions. The release of this memorandum has been delayed for the obvious reasons. The second is consideration of dropping altogether concurrent filing policy which will also kill the concurrent adjudication policy. Since abandonment of the concurrent filing policy will be able to resolve all the difficult and embarrassing political, legal, and policy problems, unconfirmed sources indicate that the USCIS is seriously considering to drop the concurrent filing procedure. Should this materialize, in the coming year, the employment immigration community is expected to be hit by the two lightening rods: One is retrogression of EB-3 visa numbers for Indians, Chinese, and Fillipinos, and the other is suspension of concurrent filing procedure. Ahhhh........., dizzy.................................................

12/04/2004: Agonizing Waiting Time for Indian, Chinese, Filippino Employment Immigration Aspirants

• Most employment immigration aspirants expect to witness the wind blowing towards the direction in their favor. Labor certification reform is underway to reduce the backlogs and to reduce the processing times of permanent labor certification applicaitons. USCIS is pushing forward its plan to reduce the processing times of permanent residence applications pursuant to the Bush's five-year 6-month processing time commitment. Additionally, upcoming cutoff dates for EB-3 employment immigration visa numbers for India, China, and Philippines will help the processing times for permanent immigration proceedings for nationals other than these three nations. As we repeatedly stated in the past, life is an irony in that generally one group has to suffer to give a room for other group because of the immigration quota system. There is no reliable information available about the depth of the retrogression of EB-3 numbers for these three countries, but rumors reflect that the retrogression may turn out to be steep.
• Generally, employment-based immigration opportunities are getting narrower for the people from these three countries because of the U.S. government actons to restrict certain L-1B intracompany transferee nonimmigrants, H-1B professional workers other than holders of higher-level education, plus immigrant visa number retrogression. When it comes to the visa numbers, the retrogression of EB-3 numbers will definitely add pressure on EB-2 numbers for these three nations as it is likely that a large number of EB-2 aspirants will come from these three nations. In the long haul, it will eventually affect EB-2 numbers for these people just as the country experienced not too long back in the history of immigration in this country. The people from these countries will just have to prepare themselves for the changing immigration environment. The following factors, among others, need increased attention for the people from these three nations. (1) Unavailable concurrent I-140/I-485 filing and ancillary benefits of EAD and Advance Parole pending I-485 application. It will substantially block out the opportunity for AC 21 180-day rule of change of employment pending I-485 applications and may demand a faithful adherence to the immigrant petition sponsor or labor certification sponsor employer. Accordingly, it will restrict mobility of the H-1B workers during the period of unavailable visa numbers. Changing the employers during the stage of labor certification will kill the priority date unless the intial labor certification is continued by the former employer and I-140 petition is approved through the approval of the intital labor certification application. Changing employers will still turn out to be very risky. (2) 7-Year H-1B extension. Under the current rule, the opportunity for 7th-year H-1B extension after 365 days of pending labor certification application or petition will be wiped out if the labor certification or petition is denied and the decision becomes "final." Such "final" action will kill the opportunity for 7-year extension of H-1B which become increasingly important for the immigration journey. If such "final" action is taken at the stage of labor certification application, so goes the priority date. For the purpose of the 7-year extension eligibility, the change of employers and filing a new labor certification application will not affect his/her eligibility because the USCIS currently takes a position that the retention of 365-day is "alien-based" and the alien can carry such 365-day for the purpose of 7th year H-1B extension, provided that the intial labor certification is not denied and such decision does not become "final." Additionally, even if he/she is successful in keeping the 7th-year extension eligiblity, he/she will lose the priority date by changing the employers and starting a new labor certification application in the event that initial employer withdraws or substitutes the alien beneficiary at the stage of initial labor certification application. It is going to be deadly! (3) USCIS policy on processing I-140 petition during the period of visa number unavailability. Even during the period of visa number unavailability, approval of I-140 petition is important when they change the employers and want to retain the priority date. Currently, unless I-140 petition is approved, the priority date cannot be retained. At this time, though, it is an open question whether the USCIS will continuously process I-140 petitions for those whose visa numbers will not be available for a substantial period of time.

12/03/2004: Employer's Perspectives of Requiring Graduate Degree under Changing H-1B Law and Retrogressing EB-3 Immigrant Visa Numbers

• Upcoming changes in H-1B law and EB-3 immigrant visa number regrogression require the U.S. employers to clearly understand its implication for requiring Master's or higher degree to meet the challeges in hiring practice. Generally, requirement of a higher degree raises the level of prevailing wage and actual wage the employer will have to pay, except a few occupations, to file a labor condition application for H-1B petition or to file a permanent labor certification application. In order to deal with the wage issue and other legal issues, the employers should understand the distinction of legal threshold between H-1B petition and permanent labor certification application.
• The new H-1B law will allocate 20,000 additional H-1B cap numbers for the U.S. Master's or higher degree holders. Accordingly, the U.S. employers will have opportunities to take advantage of the changing law to hire additional foreign workers in H-1B nonimmigrant visa status. In the prevailing wage determination for filing of a labor condition application for H-1B petition, the current law before the forthcoming changes had only two levels of wage: Either entry level or experienced level. Under the new law, the wage must be determined at the four different levels bringing it closer to reasonable determination of the required wages reflecting real-world labor market wage rate. However, this change will not affect too much the level of wages the employers will have to pay a H-1B worker holding a Master's or higher degree if the employers "require" a Master's or higher degree as the job requirement unless it is an absolute requirement because of the nature of the occupations. For instance, for the purpose of the H-1B petition, the law just requires a bachelor's or equivalent foreign degree or combination of education and experience which are evaluated to be equivalent to a bachelor's degree except a few occupations which require an advanced degree as a threshold to the entry level of the occupations. For instance, Librarians and Clinical Psychologists plus certain licensed occupations such as lawyers and doctors require an advanced degree to get into the occupation and the H-1B law requires such an advanced degree to file a H-1B petition. Accordingly, employer's requirement of an advanced degreee in the occupations that do not normally require an advanced degree in such professions will push up the required prevailing wage or actual wage which employers will have to pay to file a H-1B petition, while requiring the same advanced degree in the occupations that require an advanced degree as an entry level will not require a higher wage since such employment is still considered an entry-level job. It is thus obvious that in order to take advantage of the new H-1B law that allows 20,000 additional H-1B numbers, the employers may not want to unnecessarily require an advanced degree for an occupation that does not require such advanced degree in the profession as it will push up the level of wage the employers will have to pay. In order to file an H-1B petition taking advantage of the new law, all the employers will have to prove are that the alien beneficiary holds an advanced degree from the U.S. higher learning institution, no matter whether the job requires an advanced degree or not. For the H-1B purposes, the employers do not have to specifically require an advanced degree, except a few occupations which are described above, to obtain a H-1B petition approval for a new employee who happens to hold an advanced degree from a U.S. higher learning institution. Remember that it is not the employer's requirement but the alien's background of holding an advanced degree that is required for filing H-1B petition using 20,000 additional numbers!
• The law is different in the labor certification application for EB-2. Here the threshold is "advanced degree or equivalent." Accordingly, it is immaterial whether an alien holds a Ph.D. degree or not. It is also immaterial whether the employer "prefers" an advanced degree when the profession requires only a bachelor's degree. It is the nature, duties, and responsibilities of the job which "require" an advanced degree or equivalent background. Thus unless the labor department is persuaded that the job requires an advanced degree or equivalent, the alien beneficiary's advanced degree or the employer's simple statement of advanced degree requirement is insufficient to obtain the permanent labor certification application approval. For professions that do not require an advanced degree, the employers should carefully study the Dictionary of Occupational Titles (DOT) and Occupational Outlooks of the U.S. Department of Labor to determine whether the employers can require an advanced degree in the permanent labor certification application. We previously discussed this issue in details and readers are encouraged to read our previous posting on this subject in this web site page.

12/02/2004: USCIS to Expand Pilot Program to All 50 States and District of Columbia (Retracted)

• USCIS is scheduled to expand the Pilot Program for local green card cases to residents in all 50 states and District of Columbia and provide web access. USCIS intends to publish the notice in the federal register soon. Right on, USCIS!!
• Since last April 2004, the USCIS has been testing this pilot program through Dallas and New York district offices adjudicating certain family-based I-130/485 green card applications and other local district office proceedings within 90 days. During the testing period, the applicants in other local district jurisdictions felt the program was unfair to them.
• On behalf of the immigrants across the board and throughout the nation, we "wholeheartedly" welcome the move and salute the USCIS leadership.
• The details have yet to be announced and it is unclear whether the nation-wide pilot program will be a carbon copy of the ongoing Dallas Pilot Program model of 90-day adjudication or it will take longer. However, the immigrant community should send "applaud" to the USCIS leadership.

12/01/2004: Reminder of Filing Address Change for Local Green Card and Related Applications

• This is a reminder that the USCIS commenced today "direct" filing system for local green card applications for a mojority of the districts and people should file I-130/I-485 applications by mail directly to the lock box address in Chicago. For the report and address, please refer to our report on November 19, 2004.
• The USCIS has set up a 30-day window period of time during when the local offices will not reject and return the filing even if the cases are wrongly filed with each local district office, but people should not count on such grace period and start filing cases directly to the lock box address in Chicago either by U.S. mail or overnight delivery services.

12/01/2004: Omnibus Appropriation Bill, Filing Fee Increases for H-1B, L-1 & Advisory for Early Filing

• The Congress is scheduled to return to a short session next Monday, December 6, 2004, and scheduled to pass the Ominibus Appropriation Bill which includes the H-1B and L-1B law changes. The substantive and procedural aspects of the changes will not occur until 90 days after enactment for H-1B legislation and 180 days after enactment for L-1B legislation, but the fee increase will take effect upon the President's signing of this bill. Since this is a government spending bill, the Congress is expected to present the bill to the President very swiftly and the President is expected to sign this legislation as soon as he gets it. Currently, the federal government is operating under the temporary continuing spending resolution which was passed by the Congress on the last day of the Lame Duck session. This continuing spending legislation is scheduled to expire on December 8, 2004. Accordingly, unless the Congress passes another continuing spending resolution next week, the federal government will have no money to operate. For this reason, it is likely that the President will sign the bill next Tuesday as soon as the bill reaches his desk.

12/01/2004: U.S.-Canada Asylum Agreement and U.S. Implementation Regulations

• USCIS Fact Sheet
• U.S.-Canada Agreement Full Text
• USCIS Implementing Regulation
• EOIR (Immigration Courts & BIA) Implementing Regulation

11/30/2004: OMB Decision of PERM Final Regulation Extended Again

• The White House (OMB) reports today in its web site that the review of this regulatory review has been extended.

11/30/2004: Proposed Rule Released to Remove Fixed RFE, NOID Response Timeframe

• USCIS published a proposed rule to remove the absolute requirement for, and the fixed regulatory time limitations on responses to, a USCIS issued Request for Evidence (RFE) or Notice of Intent to Deny (NOID). These changes will enable USCIS to set an appropriate deadline for responding to an RFE or NOID, specific to the type of case, benefit category, or classification, and thus improve the process of adjudication of applications and petitions by reducing the time a case is held awaiting evidence, and by reducing average case processing time. The comment is taken until January 31, 2005.

11/30/2004: Proposed Rule Released to Increase from $110 to $385 for AAO Appeals or USCIS Motion to Reopen Fees

• Comments are taken until December 30, 2004.

11/29/2004: DOL Philadelphia and Dallas Backlog Processing Center Update

• The DOL published a notice this morning that the Employment and Training Administration (ETA) of the Department of Labor (Department or DOL) is issuing this notice to
  announce that DOL has moved its Foreign Labor Certification field staff in the Dallas and Philadelphia Regional Offices to the new Dallas and Philadelphia Backlog Processing Centers. This notice provides the public in the Dallas and Philadelphia regions with contact information regarding these two new processing centers. All foreign labor certification processing activities previously conducted in the Dallas or Philadelphia Regional Offices will now be assumed by the corresponding Dallas or Philadelphia Backlog Processing Center. The Backlog Processing Centers shall continue these functions on an interim basis and ETA shall publish a Federal Register notice in the near future providing guidance as to the handling of backlogged cases with the State Workforce Agencies (SWAs). Employers should continue, until ETA publishes future guidance on
  this issue, to file applications for H-2B and H-2A, as well as applications for permanent labor certification with the appropriate SWA, which will, in turn, forward materials to the appropriate Backlog Processing Center.
• The following new addresses, phone numbers, and fax numbers should be used by employers and by State Workforce Agencies for either inquiries or for the forwarding of application materials, as appropriate. Please note: For all application materials, inquiries, and other correspondence sent to either the Dallas or Philadelphia Backlog Processing Center, envelopes should be clearly marked according to the appropriate program type, i.e., Permanent, H2-A or H2-B.
  
  • Dallas Backlog Processing Center Address: ETA/DFLC Backlog Processing Center, U.S. Department of Labor, 700 North Pearl Street, Suite 400 N, Dallas, TX 75201, Phone: 214-237-9111, Fax: 214-237-9135.
    
  • Philadelphia Backlog Processing Center Address: ETA/DFLC Backlog Processing Center, U.S. Department of Labor, 1 Belmont Avenue, Suite 200, Bala Cynwyd, PA 19004, Phone: 484-270-1500, Fax: 484-270-1600.
• This notice does not affect the pending proposal to streamline procedures for permanent labor certification under 20 CFR part 656, which was published in the Federal Register on May 6, 2002. For the full text of the DOL federal register announcement, please click here.
  
  

11/29/2004: H-1B and H-1B1 Labor Condition Application Form Changes Effective 11/30/2004

• The DOL announced this morning that effective November 30, 2004, a new version of the form ETA 9035, Labor Condition Application (LCA), will be required, to be used for both H-1B and H-1B1 filings. The new form incorporates the distinction between H-1B and H-1B1 Singapore and H-1B1 Chile programs, updates OMB approval information, and removes the ``Government Use Only'' section. Starting on approximately November 15, 2004, H-1B and H-1B1 filings using the revised ETA Form 9035 will be accepted at the existing Application Processing Center address and fax number set forth below. The new form will be available for use on the LCA Online Web site (http://www.lca.doleta.gov). As of November 30, 2004, the new ETA Form 9035 must be used by both H-1B and H-1B1 filers, and the H-1B1 applications for Singapore and Chile will no longer be
  accepted at the Washington, DC, address previously included in H-1B1 program instructions. The H1-B and H-1B1 address and fax number are: ETA Application Processing Center, P.O. Box 13640, Philadelphia, PA 19101, Fax: 800-397-0478. For details, please click here.
  

11/28/2004: L-1B After Omnibus Appropriation Bill

• Once this bill is signed and 180 days pass, the employers in the U.S. whose businesses are basically job shops will be prohibited from importing foreign workers from their affilicated companies abroad to place them with their clients in the U.S. with no practical or substantial control or supervision over these employees by themselves and leaving such control and supervision over to their clients. Under the new law, the U.S. employers will be able to bring into the U.S. on L-1B visa the foreign workers from their affiliated companies in foreign countries only in the following contexts:
  • To place the foreign workers primarily at the work site of the U.S. petitioning company itself.
  • To place the foreign workers primarily at the work site of the U.S. parent company of the foreign subsidiary company that transfers the employees to the parent company in the U.S. The parent-subsidiary relationship is proven by the parent company owning controlling shares of the subsidiary company.
  • To place the foreign workers primarily at the work site of the affiliate company in the U.S. of the petitioning U.S. company. Affililiate represents a relationship of sister or brother as opposed to the parent-subsidiary which represents the relationship of parent and child. When two companies are in affiliate relationship, the two companies have a common parent in the form of common individual controlling shareholders and common parent company. Accordingly, in the affiliate relationship, the brother/sister companies do not own controlling shares over each other. The relationship is established through the common parentage. Accordingly, a sister company in a foreign company will be able to transfer its employees to its sister or brother company in the U.S. in L-1B visa status regardless of the change of the L-1B law.
  • The Omnibus Appropriation Bill does not specifically list the foreign company's presence in the U.S. in the form of a branch as a qualified relationship, but it is obvious that such relationship should be covered even after the change of L-1B law. Thus, a foreign parent company may be able to file L-1B petition to transfer its employees to place the foreign workers primarily at the work site of its branch office in the U.S.
  • The petitioning U.S. company will be able to bring in qualified workers from the affiliated foreign companies for the purpose of placing such foreign workers primarily at the work site of a third unaffiliated company inasmuch as the petitioning U.S. employer establishes that provision of a product or service for which specialized knowledge specific to the petitioning U.S. employer is necessary. Probably after-service or licensing of technology may be the most typical illustrations.
  • The petitioning U.S. company will be able to bring in foreign workers from the affiliated foreign company inasmuch as the workers are not "primarily" placed with a third company and the petitioning U.S. company exercises and retains a substantial control and supervision over the foreign workers. It thus appears that the U.S. company may provide a consulting service to a third party inasmuch as the foreign workers perform the duties inhouse and the company, not the client, exercies a full control and supervision over the performance of the workers.
  • The change will become effective 180 days after the signature by the President. The foregoing amentment will apply to L-1B petitions, including "new" petition, change of employment petition, "extension" petition, or "amendment" petition, which are filed after 180 days of the enactment of the legislation. Accordingly, those U.S. employers who may be affected by the foregoing changes should file the L-1B petitions as soon as possible and not to file extension or amendment once this takes effect. The existing L-1B aliens currently providing "job shop" type of services should attempt to change status to other nonimmigrant visa classification including H-1B or H-2 or H-3 or O-1 etc. before expiration of their current L-1B status.
• The USCIS will charge, upon the enactment of the law, a fraud prevention charge of $500.00 on top of the regular I-129L petition filing fee of $185.00. The fraud fee is charged only for "initial" new petition filing or change of employer. Thus $500.00 charge is not imposed for extension or amendment of petition by the same employer.
• Additionally, in the case of a blanket petition, each individual alien beneficiary will be required to pay $500 on top of the regular visa application fee and reciprocity fee to the consulate to apply for a L-1B visa. Consequently, the new law will collect $500 fraud fee from the "employer" at the time of filing blanket L-1B petition (I-129L) and another $500 from each of the alien beneficiary ("employee") of the blanket petition at the time when they apply for the L-1B visa application at the consulate. The alien beneficiaries (employees) are not required to pay the fraud charge when they apply for the status within the U.S. and implicitly no fees are required for extension and amendment.
• The qualification for L-1B visa or status application will also change for the blanket petition. Currently, the employees are required to prove six months of work experience with the affiliated employer abroad to qualify for the L-1B visa or status in the event that they seek such status based on a blanket petition. The required period will change to one year just like any other L-1B seekers using individual L-1B petition and not a blanket petition.

11/27/2004: Biometric Identifier Passport Involves Much More Privacy Issues Than Face Imaging and Fingerprint

• Report indicates that the biometric identifier passport requirement involves much more serious privacy issues than agencies' getting access to certain privacy information through the biometric identifier incorporated in the passport in the form of photo imaging and fingerprint. Such passport is expected to carry a "chip" embedded in the hardboard of the passport. The information in the chip may be accessible by anyone by scanning the area which carries the passport unless certain enscrypt is added, which may compromise the purpose of the biometric passport information shared by the involved countries. To many people in the world, the freedom in America means much more than the freedom from political oppression. The term "privacy" is often taken a synonym of the American "freedom" and American "individualism." One of the aspects of the American life the immigrants enjoy most in this country is not necessarily money or political freedom but the zone of privacy that protects himeself or herself free from invasion by others. Privacy is one of the value which this nation has cherished most and people have been recognizing and respecting each other's zone of privacy. Now, this is gradually disappearing and so is the definition of "American freedom." To many, the term "freedom without pravacy" is a self-contradictory combination of words. International terrorism and the nation's fight on terrorism shake the foundation and unique value of "America."

11/26/2004: USCIS Policy on Denial of Employment-Based Nonimmigrant "Extension" Petition

• The 9/11 incident has changed substantially the environment of adjudication of petitions and applications. Generally, it has moved from lenient to hardline interpretation and application of the statutes and regulations and from the open-ended standards to the hair-thin narrow standards. Adjudicators tend to "scrutinize" literally line by line and word by word the petitions and the applications.
• One classic example is the extension of the nonimmigrant petitions like H or L. Before the 9/11, the employers and their legal counsels took it granted that a skeleton documentation and a copying of the initial petition would warranty approval of the extension. In fact, the regulation also requires less amount of evidence in extension or amendment.
• The reality is that there are hardliner adjudicators in the USCIS who tends to be overly aggressive and scrutinizing and applying the regulatory standards on his/her own hands in a hair-thin interpretation manner. Lately, the employers witnessed a growing number of extension petitions/applications denials because of the employers' and their legal counsels' failure to recognize such change of environment. Extension should no longer be taken granted!
• The USCIS Policy states that the adjudicator should give deference to the initial petition adjudicator's decision when they adjudicate extension petition/application to the decision of another adjudicator who decided the initial petition/application unless there is a material change. Material change is defined to include the following three factors:
  • Material Error: Meaning the initial adjudicator's misaaplication of the objective statutory or regulatory requirement to the facts in the case. For instance, if the H-1B petition was approved when the alien had wrong specialty background, it is considered a material error.
  • Substantial Change in Circumstances: Meaning that there are change of circumstnces since the initial approval of the petition affecting the petitioner's eligibility or the alien beneficiary's eligibility for the type of nonimmigrant classification. Without doubt, there may be some instances which involve a black-and-white change in circumstances affecting the "threshold" requirements for the type of nonimmigrant classification. The problem is a change which does not necessarily involve a change far enough to affect the threshold requirement. For instance, the down-sizing of the business and the scope of the duties of the employees. This is the area that can be challenged and that leave the fate of the extension petition to the whim of aggressive adjudicators.
  • New Material Information: This information must be a serious information. For instance, should the adjudicator detect through the name checks some information relating to the national security or public safety or criminal information on the petitioner or the alien beneficiary, the extension is not warranted.
• Out of the foregoing three standards of material change, the second standard leaves a lot of room for interpretation by each individual adjudicator. Under the circumstances, the employers and their legal counsels should change their attitudes to the details and the documentation of the extension petition and if they know that there has been some changes in the company or the alien's situation, they should go extra miles in presenting the case to establish "afresh" the eligibility of the "extension" petitions without sitting on the initial evidence or presentation which they filed in the initial petitions!

11/25/2004: H-1B Cap and Surge of H-2B Temporary Labor Certification Applications

• Currently, new H-1B visa numbers are not available until October 1, 2005 except a few cap-exempt employers, and unconfirmed sources indicate that this has created surge of H-2B temporary labor certification application filing as an alternative, which should obviously take away the man-hour of the available resources at the state and federal foreign labor certification offices. Without doubt, it will also exhause the H-2B cap numbers quicker than usual. The bad news for permanent labor certification processing is consequently mounting.
• The upcoming H-1B and L-1B new laws are expected to add pressure to the alternative nonimmigrant visa options, the most obvious alternative of which is the H-2B petitions, because of the increasing restriction to the certain H-1B and L-1B employers for bringing in the required workers from outside. Even without this pressure, the DOL has been suffering form the backlogs in permanent labor certification processing owing to the limited resources at both state and federal levels. Before this new H-1B and L-1B restriction law will take effect, the obvious and most popular alternative sources of foreign professional workers have been provided by the L-1B visas. Now, the new law will cultail job shops and outsourcing consulting firms from filing L-1B petitions. The leading foreign consulting firms have relied on the L-1B options as an alternative to the H-1B. Now both the H-1B and L-1B will become practically unavailable for these employers and they may increasingly turn to another aternative sources of overseas outsourcing and H-2B petitions as it is unimaginable for these giant employers to hire only U.S. master's degree holders paying very high salary.

11/25/2004: How Sweet is the PERM Labor Certification Going to Be?

• The fate of the PERM program remains a dark secret raising two questions. The first question is whether the White House intends to approve the final regulation at all, and if yes, when. The Chief of Foreign Labor Certification of DOL informally suggested that the future of the PERM program was "promising." One wonders in how many regulatory reviews the OMB has taken such a long period of time either to deny or approve like PERM regulation in its entire rule-making history. The request for the final review was submitted to the OMB on February 23, 2004. The second question is what the PERM system would look like considering the rumor that the final PERM regulation would look substantially different from the already available "proposed" PERM regulation. One has been made clear in that the PERM program would go into effect not 12 weeks after the release of the final regulation but in two months. There are all kinds of rumors as to the steep changes in the substantive requirements in terms of the standards. The most important question involves the processing time. Before the proposed regulation was released, the DOL sources had indicated that the qualified application would be certified in "one week." In the proposed regulation, the processsing time was changed to "21 days." However, in the Congressional report by the Deputy Secretary of DOL, he stated that the DOL was targeting at achieving the labor certification processing times to "six months" (See our posting of 02/15/2004 "FY 2005 Foreign Labor Certification Budget") and it intended to collect filing fees. If he indeed intended to mean the PERM processing time, it will turn out to be not as sweet as the immigrant community has been hoping for. Again, this issue remain in the dark closet and the DOL sources have been keeping their mouths tightly shut. It is obvious that the PERM program, if it would materialize at all, may bring a lot of surprises to the immigrant community.

11/25/2004: How H-1B Dependent Employers Are Affected by the Upcoming H-1B Law Change?

• The H-1B dependent employers, who are mostly consulting firms, may be forced to employ H-1B aliens in one of two categories in order to avoid the "No U.S. Worker Displacement Attestation" requirement (Remember that no displacement obligation is not only applied to the petitioning firm's behavior but also its client's behaviors and the petitioning firm is responsible for such behavior of its clients unless it proves no actual or presumed knowledge of such behavior of the clients):
  • $60,000 or Higher Salary
  • Master's Degree or Higher Degree Holder
• For these firms, the chances for hiring a bachelor's degree holder may become slimmer in the future in order for them to stay in business for the two reasons. First, they cannot afford the no displacement attestations because of the potential high risk involved. Second, the new law will afford them 20,000 additional H-1B numbers for alien U.S. master's degree holders that are not subject to the H-1B annual cap. It is thus likely that the alien H-1B aspirants may have a narrower door to pass to apply and become a H-1B temporary worker in the future. The new law will practically push the H-1B system to require a master's degree as the threshold in practical sense.
• The bachelor's degree holders' green card opportunities may also become proportionally narrow in the future for two reasons: First is the reduced H-1B employment opportunities for this group. The second is the upcoming EB-3 immigrant visa cut-off dates for people from India, China, and Philippines. In fact, the statistics indicate that India alone has supplied about 40% of total H-1B workers in the immediate past and most of these workers had a bachelor's degree. Another large number came from People's Republic of China. The Chinese may have a better survivability becuase of higher percentage of advanced degree holders for the H-1B workers at least in passing the narrow door of H-1B visa status. However, their market has been somewhat limited to certain types of employers because of their language and cultural barriers.
• In the event that certain employers will have to go for the H-1B petition option as a H-1B dependent employer, they should keep in mind that the new law will not reinstate the "Recruitment Attestation" requirement which was another requirement for the H-1B dependent employers. Recruitment attestation is similar to the labor market test requirement in the permanent labor certification applications which imposed on employers the obligation to prove that it had tested the labor market for the position and the employer failed to located a qualified U.S. worker who was available for the job. This requirement was another hurdle for the H-1B dependent employers before such requirement sunset in 2003.
• It is interesting to see how the new law will affect the trend of outsourcing of high tech jobs. The negative impact is obvious considering the fact that the new law will severely curtail the consulting firms to bring in foreign professional workers in an alternative nonimmigrant visa option of L-1. We will summarize the impact of the new law on the L-1 visa soon.

11/25/2004: Filing Fee (H-1B) Increase and Exemptions Under Omnibus Appropriation Bill (Soon to Become a Law)

• As soon as the controvertial Omnibus Appropriation bill is signed by the President, the payment for H-1B petition filing will be raised substantially. The payment will include three (3) components: (1) Filing fee of $185; (2) American Training Charge of $1,500 ($750 for smaller employers); (3) Fraud Prevention Charge of $500. We will look at each component below:
• Regular Filing Fee ($185): This fee will be paid by all employers and in any type of petition including initial, extension, amendment, transfer of H-1B.
• American Training Charge ($1,500 or $750): Unless it is listed below, the employers must pay this charge and the alien beneficiary cannot pay it:
  • 2nd Extension with the same employer (1st extension and initial change of status to H-1B from other nonimmigrant status or new H-1B petitions for aliens abroad are required to pay the full charge. The H-1B aliens filing another H-1B petition for H-1B transfer to another employer are also subject to the full charge)
  • Exempt Entities: Following employers are exempt from the charge.
    • Primary or Secondary Education Institution
    • Higher Education Institution
    • Nonprofit Entity Related to or Affiliated with Any Such Institutions
    • Nonprofit Entity which engages in Established Curriculum-Related Clinical Training of Students Registered at any such Institutions
    • Nonprofit Research Entity
    • Governmental Research Organization.
• Fraud Prevention Fee ($500): Following employers are required to pay such fee:
  • Initial (new) H-1B petition
  • H-1B Transfer from Another Employer (Change of Employer).
  • Accordingly, the employers do not pay this fee for any extension, including the 1st extension, or amendment of the petition by the same employer. The H-1B cap exempt or American Training Charge exempt employers are not treated different and required to pay this fee unless it is an extension or amendment.

11/24/2004: Delay of Omnibus Bill and H-1B/L-1B Change Legislation

• The Congress passed the H-1B and L-1B change legislative bill as part of the Omnibus Appropriation legislation. However, pending forwarding of the bill to the President for his signature, the Congress noticed a ridiculous provision slipped into the bill without notice of the legislators causing tremendous embarassment. In order to remove the embarassing provision, the Congress has decided to delay forwarding the Omnibus Bill to the President until they relook at the thousands of pages of the Bill and reconvene on December 6, 2004 to act on it. When they get back to the Hill, they will also work on the 9/11 bill which the Congress failed to pass before the end of Lame Duck session. Consequently, all the nightmarish immigration provisions in H.R.10 in the 9/11 bill will haunt again and the immigrant community should work hard with the legislators to remove the immigration provisions from the 9/11 legislation.
• After all, for people who will suffer from the H-1B and L-1B law change because of the whoppy increase of filing fees and other nasty restrictions, this legislative turmoil will give them a little of time to file the H-1B petitions and L-1B petitions before this bill becomes a legislation on around December 8, 2004. Please run to file the petitions ASAP!

11/24/2004: Reminder of New Location of Washington, D.C. Arlington District Office

• The Arlington District Office is currently moving to another location and remain closed until November 29, 2004, Monday. The office will reopen on Tuesday, November 30, 2004 at a new location. The change is as follows:
  • Old address: 4420 North Fairfax Drive.
  • New address: 2675 Prosperity Avenue, Fairfax, Va. For the reminder, please click here.

11/24/2004: USCIS Reminder of Address Change for Local I-485/I-765/I-131 Filing Effective 12/01/2004

• We reported on November 19, 2004 that the local filing of nonemployment-based green card and ancillary application filing procedure would change in most of jurisdiction effective 12/01/2004 from indirect mailing system to direct mailing system. USCIS has released a reminder today to remind the people of the change. Read on.

11/23/2004: USCIS Suspends e-Filing of H-1B Until April 1, 2005

• USCIS released a federal register announcement today as to how the FY 2005 H-1B cap cases would be processed until 09/30/2005, including recapture of certain numbers. As part of the announcement, the USCIS announced that it was suspending e-filing of H-1B for now until April 1, 2005. During the period, the employers are required to filed the H-1B petions by mail only. For the announcement, please click here.

11/23/2004: DOL Interim Rule on H-1B1 Labor Attestation Procedure and Requirements

• DOL published this rule today. Accordingly, effective today, the employers filing a new visa classification of H-1B1 for nationals of Singapore and Chile under the respective Freetrade Agreement should file the application pursuant to this regulation. DOL is implementing a similar rule and procedure for the H-1B1 attestation requirement that is already in place for H-1B in the form of Labor Condition Application. For the rule, please click here.

11/23/2004: Omnibus Appropriation Bill and Immigration Job Privatization

• Both the House and the Senate agreed to impose a ban on using DHS funding for immigration contact represeantives and information officers job open to private competition in FY 2005, but at the last stage of passage of Ominibus Appropriation Bill, the Congress dropped this provision under the pressure of the White House. Accordingly, the privatization of the immigration officials jobs is expected to continue in FY 2005.

11/22/2004: Changes of H-1B and L-1B under Omnibus Appropriation Bill Which Congrss Passed on 11/20/2004

• As we reported on Saturday, 11/20/2004, the Congress had to decide two legislative bills that would affect immigration seriously. One was H.R. 10 which was part of 9/11 legislation and the other was H-1B which was part of the Omnibus Appropriation Bill of 2005. Congress failed to pass the 9/11 legislative bill, saving the immigrant community from the nightmare in the area of immigration enforcement. However, the Congress was able to pass the Omnibus Appropriation bill Saturday which will become a law and take effect upon the signing by the President.
• The Omnibus Appropriation legislation include the amendments to the existing H-1B and L-1B provisions in the Immigration Statute. We will outline the changes here:
• H-1B Changes:
  • $2,185: H-1B filing fee will increase, as soon as the President signs the bill, to $2,185. $185 is for H-1B filing fees, $1,500 is for employer obligation to contribute to the funds for training of Americans, and $500 is for fraud fee. As for the $1,500 employer fee, it will be reduced to $750 if the employer has no more than 25 full-time employees in the U.S.
  • Obligation of Payment of 100% of Prevailing Wage: No matter SCA wage or other wage data, the employer will be obligated to pay 100% of the prevailing wage. This rule will not take effect until 90 days after the signing into the law by the President.
  • Non-Displacement Atteestation Requirement for LCA filing by the H-1B Dependent Employer and LCA Violators: This provision one time sunset but is coming back. This requirement will take effect 90 days after the signing into the law by the President. When it takes effect, the H-1B employers and LCA violators will not be able to file Labor Condition Application for H-1B unless the employer files the attestation that the employer did not displace and will not displace a U.S. worker employed by the employer within the period beginning 90 days before and ending 90 days after the date of filing of any visa petition supported by the LCA.
  • U.S. Master's or Higher Degree Holders Exemption from H-1B Annual Cap Up To 20,000/Year: This provision will also take effect 90 days after the signing of the legislation by the President. Once it takes effect, the holders of a master's or higher degree from the U.S. colleges and universities will be able to file a new H-1B petition even during the period of H-1B annual cap.
• L-1B Changes:
  • Effective Date: 180 days after the signining of the legislation by the President. The changes applies to initial or extended or amended petitions filed on or after the effective date.
  • No Job Shop or Consulting Employee L-1B
  • $500 Fraud Fee: Accordingly, the filing fee will increase to $685.00.
• For other details, as soon as the President signs the bill, we will try to elaborate further.

11/20/2004: Congress Lame Duck Session Ends Today

• Congress opens a session today, Saturday, to wrap up a few legislative bills before it ends the Lame Duck session today. The 108th Congress will also sunset with the end of the Lame Duck session today. Close of the 108th Congress means that all the legislative bills which were introduced during this Congress are destined to die unless they are reintroduced in the 109th Congress which will open in January 2005. When it comes to immigration, the 108th Congress achieved the least and no one will drop tears for the close of this Congress.
• Report indicates that the Congress may pass the 9/11 bill which will affect various immigration provisions, particularly the enforcement side of the immigration statute. It will also pass the Omnibus Appropriation bill but it is unlear whether the H-1B part of the bill will survive. Please stay tuned to the weekend news for the H-1B bill.

11/20/2004: Service Centers Processing Times of 11/19/2004

• See homepage.

11/19/2004: No Smile, Please!

• AILA sources reported that the USCIS had rejected immigration photos if the photo showed the person smiled and mouth opened. Ever since the immigration photo instruction changed from the side-view to front-view, the USCIS appears to strictly follow the State Department passport photo instruction, which requires that the mouse "closed" and not to smile if it makes the mouth opened. The instruction says it prefers that the person does not smile at all. Uh?!
• Whether one likes it or not, people should strictly comply with this requirement as rejection of the photo can result in serious consequences in some cases. For instance, people who file EAD extension close to expiration of his/her current EAD needs the renewed EAD in his/her hand before the current EAD would expire. Once photos are rejected in the paper filing, it can delay the issuance of EAD renewal. Watch out! Don't smile!

11/19/2004: USCIS Launches "Direct Filing" for Local Offices I-485/I-765/I-131 in Two Phases

• USCIS has been requiring "indirect filing" of local I-485/I-765/I-131 applications meaning that people filed these cases at the local offices but the cases have been immediately shipped out to lock boxes for the National Benefit Center processing in Missouri and the NBC processed the cases.
• However, the USCIS announced today that it would change from "indirect" filing to "direct" filing in two phases. The first phase starts on December 1, 2004, the second phase starts on April 1, 2005. The people residing in the Phase I states must file such applications by mail directly to the national lock boxes in Chicago. However, the USCIS sets up a grace period of 30 days and if people mistakenly file with the local offices on indirect filing, it will still accept and forward to the national lock box, but after 30 days, such filings will be rejected and retured to the applicants.
• Phase I States, Effective 12/01/2004:
  • AL, AZ, AR, CO, CT, DE, FL, GA, HI, IL, IN, KY, LO, ME, MA, MI, MN, MS, NV, NH, NJ, NY, NC, ND, OH, PA, RI, SC, SD, TN, UT, VT, VA, WV, WI, WY, DC, Guam, Puerto Rico, Virgin Islands.
  • P.O. Box Mailing Address: U.S. Citizenship and Immigration Services, P. O. Box 805887, Chicago, IL 60680-4120
  • Street Address for express filings: U.S. Citizenship and Immigration Services, 427 S. LaSalle, 3rd Floor, Chicago, IL 60605-1098
• Phase II States, Effective 04/01/2005:
  • AK, CA, ID, IA, KS, MD, MO, MT, NE, NM, OK, OR, TX, WA.
  • Filing address yet to be decided.
• For the federal register announcement, please click here.

11/18/2004: Exception to Nonimmigrant HIV Waiver Policy Extended to K/V Nonimmigrants

• USCIS released a memorandum extending eligibility of HIV waiver policy to K and V nonimmigrants. Currently the HIV infected aliens are inadmissible but certain aliens are eligible for waiver of inadmissibility inasmuch as the threshold requirements are satisfied. As of now immigrant visa applicants and 485 applicants based on a U.S.citizen or permanent resident's petitions. For nonimmigrants, only two types of aliens received such waiver. One is an alien who enter for 30 days or less for a specific purposes that are considered humanitarian or public interest reasons. The other is attendees of certain designated international events held in the U.S., who receives a blanket waiver. Now this USCIS memorandum adds K and V nonimmigrants to the list of nonimmigrants who are eligible for waiver on the provided conditions. Read on.

11/18/2004: Good News for IMGs - Congress Passed Conrad 30 Program Extension Bill

• AILA has reported that the Senate passed the Conrad 30 Extension Bill which the House already passed and are expected to be signed by the President without any hurdle. What a terrific news!
• Summary of the legislation:
  • Extension of Deadline:
    • (1) To 2006
    • (2) Effective Date: Retroactive to May 31, 2004.
  • Exemption from the H-1B Limitation: Annual cap does not apply to IMG whose status is changed under the preceding sentence, if the IMG obtained a waiver of the 2-year foreign residence requirement upon a request by an interested Federal agency or an interested State agency.
  • Limitation on Medical Practice Areas: Must agree to practice primary care or specialty medicine.
  • Exemptions:
  • (i) in the case of a request by the Department of Veterans Affairs, the alien shall not be required to practice medicine in a geographic area designated by the Secretary;
  • (ii) in the case of a request by an interested State agency, the head of such State agency determines that the alien is to practice medicine under such agreement in a facility that serves patients who reside in one or more geographic areas so designated by the Secretary of Health and Human Services without regard to whether such facility is located within such a designated geographic area, and the grant of such waiver would not cause the number of the waivers granted on behalf of aliens for such State for a fiscal year in accordance with the conditions of this clause to exceed 5; and
  • (iii) in the case of a request by an interested Federal agency or by an interested State agency for a waiver for an alien who agrees to practice specialty medicine in a facility located in a geographic area so designated by the Secretary of Health and Human Services, the request shall demonstrate, based on criteria established by such agency, that there is a shortage of health care professionals able to provide services in the appropriate medical specialty to the patients who will be served by the alien.
    
• For the AILA report, please click here.

11/18/2004: Motion to Reopen (MTR) or Appeal "within" USCIS Expected to Jump to $368 from $110 About January or February 2005

• The USCIS is expected to publish a proposed rule soon to raise the fees for MTR or Appeal (not BIA) to $368 with the comment period of 30 days. The OMB has cleared the rule and the USCIS may not waste time to publish a rule which can generate fee revenues. Please stay tuned.

11/18/2004: EB-3 Regression and Determination of "India" "China" "Philippines"

• In determining who are subject to the priority dates in Visa Bulletin, place of birth controls and citizenship is irrelevant. There are a huge number of Indians or Chinese(PRC) or Filipinos who are the citizens of India, China, or the Philippines but were born outside of the countries. They are not subject to the visa number chargeability for India, China, or Philippines in the Visa Bulletin. On the other hand, there are citizens of countries other than India, China or Philippines who were born India or China or Philippines. Some of them do not consider themselves Indians or Chinese or Filipinos because of their racial or ethnic backgrounds. However, for the purpose of the country chargeability for immigrant visa numbers, they will be subject to priority date for India or China or Philippines. Birth certificate controls. Without doubt, there may be some people out there who will be shocked to learn that they are subject to the EB-3 regression!

11/18/2004: EB-3 Regression and Challenges for Filipino Nurses Immigration

• The CGFNS recent statistics reflect that the share of Filipino nurses VisaScreen certification applications reached approximately 50% of the total applications by the foreign nurses worldwide. In fact, the Philippines has been a primary sources for supply of allied healthcare workers, particularly Registered Nurses. From the perspectives of the Filipino nurses, the family-based immigrant visa numbers are so overscribed and the employment-based immigration has been providing a main channel for immigration.
• When EB-3 visa number regresses in January 2005, they will be the ones who will be hit the most in that their immigration opportunities may be delayed for years because of the priority date. Ouch!

11/17/2004: H-2B FY 2005 Cap Number Usage As of 11/01/2004

• USCIS has announced that it has received H-2B FY 2005 cap petitions for 33,153 beneficiaries as of November 1, 2004. The annual cap is 66,000. Read on.

11/17/2004: USCIS Correct Error in Honduran/Nicaraguan TPS Designation Extension Regulations

• USCIS is correcting a notice that was recently published in the Federal Register on
  November 3, 2004 which announced the extension of the designation of Honduras and Nicaraguans for Temporary Protected Status (TPS). In the supplemental information to the notice, USCIS inadvertently misstated that only Form I-821 with Revision Date 7/30/04 will be accepted. However, the Form I-821 Instructions were revised on November 5, 2004 and are now consistent with the filing instructions in the aforementioned Federal Register notice. Therefore, USCIS is notifying affected nationals of Honduras and Nicaraguans (or aliens with no nationality who last habitually resided in Honduras and Nicaraguas) that Form I-821 with Revision Date 11/05/04 will be accepted until further notice, and Form I-821 with Revision Date 7/30/04 will be accepted through January 3, 2005. All applicants are required to follow the same filing requirements as listed in the federal notice regardless of the version of the Form I-821 submitted. For corrections, click Honduras and Nicaragua.
  

11/17/2004: Electronic Automation Processing Systems and Need for Reform of Immigration-Related Agency Structures

• The cyber-age made available nationalization of the service functions for the government agencies and this trend is likely to continue in the future. Such automation of processing of government services must however be backed up by mechanisms to ensure "integrity" of the processing system. Otherwise, the system will be infected by massive frauds and will collpase.
• The electronic automation processing in the immigration-related services such as visa application processing of the Department of State, labor certification application of the Department of Labor, and immigration benefits application of the USCIS will lead to reducing the processing times of their services inasmuch as the mechanism for integrity of the process and system is properly designed and placed in place. For instance, the labor certification system of the U.S. Department of Labor is currently boldly reshaping its system toward this direction by introducing the electronic filing and processing system named "PERM" and accompanying restructuring of the system from the two-tier (federal-state) system to one-tier (federal) system. Such reengineering is expected to take place in the long haul in temporary labor certification processing system as well. The nationalization of the system is made available by the concept of its reengineering which incorporated a mechanism of integrity assurance in the form of post-adjudication audit system which is similar to the IRS tax audit. Accordingly, overall the Department of Labor may retain the two-tier system in a different format. The processing and adjudication of labor certification system will be centralized to the federal government, but it will heavily rely on state goverment agencies on the post-certification audit, the result of which will lead to enforcement actions and revocation of certifications where the frauds are detected.
• It is submitted that the USCIS may be able to adopt a similar concept. It has been gradually moving toward automation of filing system, particularly in the employment-based immigration functions. It however appears that the USCIS move has a serious flaw in that it is limited to the "front-end" processing automation which has failed to achieve the reduction of backlogs. The sources of backlogs lie with the back-end processing of applications and the USCIS should work on reshaping its process and system. Obviously, the back-end process requires a complete system that assures "integrity" as it requires assurance of security and prevention of frauds. Currently, the USCIS benefits processing system is clogged by the jobs of security clearance, criminal name checks, and prevention of frauds. Maybe, the USCIS may relook at the current structures and boldly propose reform of the system and structures. The concept is to reform the Service Centers into the exclusive arms for processing of all the benefits petitions and applications including employment-based, family-based, and other types of applications and turn the local district offices into investigation and enforcement arm of the agency. The Service Centers will adjudicate the petitions and applications based on the threshold requirements under the laws and adjudicate the petitions and applications, which will be followed by investigation of the approved petitions and applications for security, criminal, and fraud and revocation of petitions and applications or further enforcement actions if the local offices detect such issues. For such reform to work, the law must be changed to allow the agency to revoke the petitions and applications on these grounds and the burden of proof should be swifted from the government to the petitioners and applicants. The integrity of the immigration benefits systems will be assured by such post-adjudication processes with the proposed restructuring of the system between the national and local offices as well as amendment of immigration legislation. In fact, the agency has a precedent of such concept in his history. Probably it was 1998 when the legacy INS was totally clogged by the CIA clearance and could not process any immigration applications because of the CIA backlog for almost one year. At the time, the Commissioner of the legacy INS for a short time announced that the agency would adjudicate the applications and approve petitions "pending CIA clearance and pending revocation of approved application if the security clearnce came negative." There was no follow-up of the agency action and the immigrant community is unaware of the internal process activated by this Commissioner's announcement. But the immigration lawyers community thought that it was a good idea. The leadership of the USCIS and for that matter the whole DHS may want to revisit this idea as a means to help the Bush Administration to achieve the six-month processing time plan and commitment. Bush is reelected and cannot afford to failing in keeping this commitment!

11/17/2004: AILA's Washington Update

• The creation of a vacuum for one full year for new H-1B foreign workers by FY 2005 annual cap presents a problem to the U.S. employers and the Congress is under the pressure to act on H-1B. The act is, however, likely to be limited to a legislation to remove the cap for graduates of U.S. graduate schools. Such legislation will be better than nothing. It is however hoped such legislation would not damage the whole H-1B system by certain strings attached to the legislation that would restrict further the H-1B system which is already choked by the annual cap.
• The AILA's Washington Update is probably the best sources for the news on the movement in the Congress and agencies' activities in D.C. As the Congress returned to the Hill for the Lam Duck session and a shake-up is in progress including agencies that affect the immigration policies, such as nomination of new Secretary of State, anticipated resignation of Secretary of Homeland Security and upcoming nomination of new Secretary and aftermath within the Department will make the AILA's Update a valuable source for information from here on. AILA has been actively lobbying in Washington to advocate legislations and administration policies in favor of the immigrant community.

11/16/2004: Reminder of Two-Month Immigration Lottery Registration Period for DV-2006

• DV lottery registration period was traditionally set for one month. However, for the ongoing DV-2006 lottery, the registration will last for two months, until January 7, 2005. It is likely that more number of people will send in registration electronically, and statistically the odds for winning lottery will become smaller. Anyhow, people are reminded that lotter registration will not end in December 2004 but January 2005.

11/15/2004: Regression of EB-3 Priority Dates for India, China, & Philippines in January and Points to Remember

• In the Visa Bulletin for December 2004, the Department of State reconfirmed that starting January 2005, there would be visa cut-off dates for EB-3 category for India, China, and Philippines. Unconfirmed sources indicate that the regression is likely very steep. People may want to know what this means.
• The USCIS will accept until the end of December 2004 the stand-alone I-485 applications and concurrent I-140/I-485 applications even if the visa number will not be available under the January 2005 Visa Bulletin inasmuch as the application is physically receipted by the agency. The USCIS has yet to release its policy but it is likely that pending the visa number availability and adjudication of I-485 applications, USCIS may continue to issue EAD and Advance Parole to these applicants. It is thus critically important that people file concurrent applications before the end of 2004 even if there is some deficiency in terms of documentation.
• The I-485 applications which are pending as of January 1, 2005 will go into a long dormant stage within the agency until certain date which is close to the date when the visa number will become available for him or her.
• The long wait always accompanies the risk of losing the job with the sponsoring employer for whatever reasons. The AC 21 Act Section 106(c) allows I-485 applicants to change employment without losing the green card opportunity inasmuch as the job is similar or identical occupational classification and the change happens after 180 days of filing of I-485 applications. However, as reminded repeatedly on this site, AC 21 180-day rule is seriously crippled by the two rules of the USCIS. One is the so-called Yates Memo which interpreted that I-140 approval is precondition for 180-day change of employment provision. Worse yet, the second rule, which is in fact a procedural policy rather than a rule, requires the Service Centers to adjudicate concurrently filed I-140 and I-485 "concurrently." If this practice continues on and after January 1, 2005, the I-140 petitions will remain unadjudicated until the visa number becomes available for him/her. On the surface, the USCIS may have two options to deal with the predicaments: One is to announce as soon as possible reversing the Yates memo and allowing the I-485 applicants to change employer even before the I-140 is approved. The second option is for the USCIS quickly abandon the "concurren adjudication" policy and adjudicate I-140 petitions independently from the concurrently filed I-485 applications. In the second option, the USCIS should also reduce the I-140 processing times substantially. Which will be a better option? Considering the fact that the USCIS may have to stop adjudicating I-140 petitions for those aliens whose visa priority dates are a "far apart" from the visa availity date for the purpose of effective allocation and utilization of its limited adjudication resources, the second option of abandoning "concurrent adjudication" does not seem to give a right answer. The right answer and solution lie with the first option of reversing the Yates memo. In fact, the USCIS may have no other alternative to deal with the forthcoming predicament! We urge the USCIS to release the so-called USCIS General Counsel's memo which is at the stage of draft reversing the Yates memo.
• Those who have yet to reach the USCIS proceedings should be more mindful of the impact of his/her decision on pending labor certification application or immigrant petition in terms of the consequences of such decision on the loss of priority date. Retaining and preserving priority may be as precious as prompt approval of labor certification application. People in this category should get to learn the rules of priority date and retention of priority date. In parallel with the retension rule, consular processing tends to be riskier when priority dates move backward in the sense that concular processing does not give the benefits of EAD, AP, and other ancillary benefits that comes with pending I-485 applications.
• Allied healthcare workers who in most cases belong to EB-3 petitions will suffer tremendously since concurrently filing of I-140 and I-485 and the accompanying ancillary benefits such as EAD will not be available. One wonders how the USCIS will deal with the problem of shortage of healthcare workers in the future.
• It is hoped that the Congress steps in and works out legislative solutions to deal with these challenges ahead overcoming strong opposition from both extreme right and extreme left political forces.

11/15/2004: Look of Newly Issued Green Card Changes From Today

• Effective today, the USCIS is issuing a different look "green card" which changes the name of agency to Department of Homeland Security and adds addtional security features. Please click here to see what the new green card looks like.

11/15/2004: Massive Shake-Up or Jump-Ship in Bush Cabinet

• Following resignation of the Secretary of Justice and Secretary of Commerce, four more resignation of cabinet members are reported: Secretary of State, Secretary of Agriculture, Secretary of Energy, and Secretary of Education. None of these Cabinet members is the core members of the Bush's hardcore group that have led the current national and international policies and strategies.

11/15/2004: December 2004 Visa Bulletin

• See homepage.
• January 2005 prediction: In recent months we have been experiencing very heavy applicant demand in the Employment categories as the Citizenship and Immigration Service has begun to address their backlog of cases. Section 201(a)(2) of the Immigration and Nationality Act states that not more than twenty-seven percent of the Employment annual limit may be used in each of the first three quarters of a fiscal year. Based on the current rate of demand it is likely that we will exceed twenty-seven percent of annual limit during the first quarter of FY-2005. Therefore, it may be necessary to impose an Employment Third preference cut-off date for January, to limit number use during the second quarter. At this time it is not possible to offer any estimate regarding what that cut-off date might be, but it is likely to apply only to the following chargeability areas: China-mainland born, India, and the Philippines.

11/13/2004: USCIS To Release the Rule on H-1B Numerical Limitation for FY 2005

• Yesterday, the OMB also cleared this rule and it is expected that this rule be published soon. This rule will prescribed the rules on various issues involved in determination of processing of cases in the pipeline and cap numbers as well as other ancillary matters.

11/13/2004: USCIS To Remove the Fixed Timeframe of RFE Response

• Currently, when the immigrants receive a Request for Evidence (RFE), they are given 12 weeks to response and otherwise the cases are considered abandoned and denied. The USCIS plans to remove the 12-week timeframe so that the agency can determine the response timelimit flexibly depending on the specific situation. This regualtion was submitted to the OMB for its review and it was cleared yesterday, November 12, 2004, by the OMB. Once this new rule is implemented, people should pay extra attention to the RFE response time limit in each case so that they do not miss the time limit in his/her case.

11/12/2004: Delay of Alien SSN Issuance and IRS Policy for Employers

• When employers hire an alien who needs SSN application, employer faces a host of questions and issues as related to the delay in issuance of SSN to the alien and employability of the alien pending issuance of SSN. Here are some questions answered by the IRS for the employers and the involved aliens. Read on.

11/12/2004: November 9, 2004 Labor Certification Processing Times

• See homepage.

11/12/2004: I-140 Deniability on Employer's Financial Inability to Pay and Service Centers' Expansion of USCIS HQ Memo

• In May 2004, USCIS released a memorandum to give a guidance to the USCIS field offices on the issue of the I-140 employer's financial ability to pay the proffered wage. The memorandum was issued as the Service Centers had growingly denied I-140 petitions withoud any consistent and uniform standards. The memorandum stated that if the employer's financial statement or tax return recorded the net income in excess of the proffered salary, the field offices should take such evidence as meeting the requirement for the financial ability to pay.
• Since then, the Service Centers have turned around and started digging the record of the employer's filing of I-140 petitions and acted smart by still denying a I-140 petition even if the business tax return showed the net income in excess of the proffered salary in the event that they detected that more than one I-140 petitions had been filed using the same tax return and the net income in the tax return was far short of the net aggregate of the proffered salaries in the multiple I-140 petitions which the employer had filed.
• Under the circumstances, the employers may not use the formula of "net income>proffered salary" formula in all cases when they file multiple I-140 petitions in a given period of time. They should rather use combination of different standards which are set forth in the HQ memorandum. For instance, if the employer's net income meets the proffered wage for one I-140 petition but not two petitions, the employers may use net income figure in one I-140 petition and use another standard of "the alien's past/current salary=>proffered wage" for the second case by submitting not the tax returns but the alien's W-2 and latest payroll record. Of course, in this case, the employer should have paid the second nonimmigrant worker at least a salary equal to or in excess of the proffered salary.

11/11/2004: Not So Fast, Mr. President. House Shuns Your Temporary Guest Worker Proposal!

• Report indicates that the leading members, including Republicans, of the House in immigration legislation reacted negatively to the President's and his Secretaries' drum-up of the Temporary Guest Worker proposal, hinting that unless the President exercises his muscle and twists their arms, the future of the proposal ain't going to be as sweet and smooth as it appears to sound. Read on.

11/11/2004: Government Observes Veterans Day Today and Remain Closed

11/11/2004: Worrysome Vacuum in Labor Certification Processing During Reorganization and Transition

• There are already a huge backlog in the permanent labor certification applications. However, information suggests that the labor certification applications at both state level and regional level are caught up in the reorganization process and not moving ahead. This has lasted for a while. One wonders how this has affected the total number of the backlogs which had already exceeded 300,000. People should remember that a large number of the backlog cases involve regular applications that need a "supervised" recruitment process which is a very time-consuming process demanding involvement of huge resources in the newly created backlog reduction centers. Besides, when reorganization brings in new resources with the limited experience and training, the process and adjudication often experience black and white approach and create so-called "training issues." We have yet to see the quality of the performance of the new backlog reduction centers. Depending on the performance of these backlog reduction centers, the goal of backlog reduction may face a serious challenge. We hope to see these backlog centers move ahead very quickly and flexibly so that they are not caught up in another bureaucratic red tapes and floods of NOFs or unreasonable assessment letters or RFEs!

11/11/2004: Lame Duck Session of House and Senate Starts Next Tuesday, 11/16/2004

• Both the House and the Senate will reconvene on November 16, 2004, next Tuesday for a lame duck session before the 108th Congress sunsets first part of January 2005. Immigrant community wants to see some legislative bills resolved during the lame duck session, particularly H-1B, H-2B and DREAM Act. One of the bill will open the doors for the Master's degree holders from the U.S. higher learning institutions to apply for H-1B visa status not being subject to the H-1B annual cap. There are also a large number of legal or illegal alien youngsters who have been anxiously watching the Congress to pass the DREAM Act that will allow them to adjust their status to a lawful permanent residents. The DREAM Act bill one time had the bi-partisan support but experienced delay during the election period. We cross our fingers together with all those youngsters throughout the nation that the Congress will act on this bill during the lame duck session!

11/10/2004: Bush Administration to Push Forward "Temporary Guest Worker" Legislation

• As a gesture to heal the wounds that were developed between the Bush Administration and Mexico during the election period that pushed aside the Mexican immigration issues as a backburner, the Bush Administration started an all-court pressing campaign on November 9, 2004 to address its determination to place the Temporary Guest Worker Program on a high priority list of its second term. The campaign was made at two levels: The President himself and the two Secretaries of Department of State and Department of Homeland Security. For the President's announcement, please click here. For the announcement of the two Secretaries in Mexico, please click here.
• There are a large number of illegal aliens who have been anxiously waiting for this legislation. The Program will not outrightly grant a permanent resident status to illegal aliens and in this regard, it is distinguished from an amnesty program. However, it will "legalize" certain qualified illegal aliens and give them a stepping stone to reach a lawful permanent resident status, even though it may take longer time than regular employment-based immigration applicants. The benefits are expected to reach not only illegal Mexicans but also other illegal nationals in this country. In fact, this program is taken by the illegal alien community as a relief which will be next best to the amnesty program or 245(i) extension legislation. Please stay tuned.

11/10/2004: November 10, 2004 Local USCIS Processing Times

• See our homepage.

11/10/2004: FY 2004 Year-End Immigration Statistics as of 09/30/2004

• The DHS has just released the immigration statistics as prepared on October 29, 2004 reporting the status of immigration statistics at the end of September 2004. Readers may want to read and assess the statistics in connection with the USCIS Congressional Report of Backlog Elimination Update of November 2004.

11/10/2004: USCIS Congressional Report 11/05/04 on Backlog Elimination Update of 3rd Qtr FY 2004

• The USCIS reported to the Congress the progress of Third Quarter of FY 2004 Backlog Elimination Plan on November 5, 2004. This report reflects that the USCIS has a long way to go to achieve the backlog reduction, not to mention the target of six months processing time. On November 9, 2004, it also released the FY 2004 Fourth Quarter report of Backlog Reduction Plan progress, but details have yet to be released.
• Click 3th Quarter Report
• Click 4th Quarter Report

11/09/2004: DUI Not Deportable Crime, U.S. Supreme Court Held

• In a landmark decision, the U.S. Supreme Court held today, November 9, 2004, in Leocal v. Ashcroft, No. 03-583,that the conviction of Driving Under Influence (DUI), nick name of Drunk Driving, is not a ground for deportation.

11/09/2004: DS-156 Nonimmigrant Visa Application Form (Exp. 08/30/2004) Obsolete

• The U.S. Department of State updated the nonimmigrant visa application forms making most of previous forms obsolete. Pending the change, the visa posts received DS-156 with the expiration date of 08-30-2004. The form is now obsolete and will not be acceptable. The new form has the issuance date of 09-2004 at the left bottom of the form and expiration date of 09/30/2007 at the right top of the form. Please check the expiration date of other DS forms as well before people file the applications.

11/09/2004: DV-2006 Lottery Further Instructions Published in Federal Register

11/09/2004: I-140 & EB-485 Processing Time Gap: CSC, NSC, TSC, VSC

• The November 8, 2004 processing time report of USCIS reflects a wide variance in processing times of I-140 petitions and EB-485 applications among the four Service Centers as seen below and one questions "why?"

• 		CSC	NSC	TSC	VSC
  I-140	EB-11	01/29/04	08/15/03	08/18/03	09/09/02
  	EB-12	02/10/04	06/15/03	08/18/03	12/04/02
  	EB-13	11/16/04	10/05/03	08/18/03	04/02/04
  	EB-2	03/08/04	09/15/03	08/18/03	11/29/03
  	EB-2NIW	01/29/04	07/15/03	08/18/03	10/02/02
  	EB-31	03/08/04	08/31/03	08/18/03	09/20/04
  	EB-32	03/16/04	09/15/03	08/18/03	09/20/04
  EB-485	EB-485	01/06/04	05/31/02	05/21/02	06/01/03

• The variance must stem from a number of factors including the volume of I-140 and EB-485 cases in each jurisdiction and processing priorities and policies in each jurisdiction. It is interesting to note, however, that the processing times run in reverse order of the size of the Service Centers: The larger the Service Center is, the shorter the processing time of these cases. It may mean that the processing delay is not necessarily related to the size and the available resources in each Service Center. It may have more to do with the processing priorities and policies. For instance, NSC and TSC, the smaller Service Centers, are known to stick to the concurrent I-140/I-485 adjudication policy and working toward the direction of achieving a unified processing time between the concurrently filed cases and non-concurrently filed cases. On the other hand, the internet reports indicate that the larger Service Centers do not follow the concurrent adjudication policy and adjudicate I-140 petitions separately even for the concurrently filed I-140/I-485 cases. This in part supports the argument that the USCIS may have to revisit and reconsider its policy of concurrent adjudication in an inflexible fashion.

11/08/2004: Service Centers Processing Times of 11/08/2004

• See Homepage.

11/06/2004: Now Election is Over and White House Should Either Deny or Approve DOL PERM Regulation

• The U.S. Department of Labor has excerted its energy to work out the so-called Five-Year Strategic Plan of 1998 after spending enormous amount of time for a careful and thorough research and review of the problems of the labor certification system. The Five-year Strategic Plan was founded on two pillars to reduce the backlogs and to correct the ailing labor certification system: One pillar was to reduce the "existing" backlogs by the "Backlog Reduction Centers." The other pillar was to "prevent" new backlogs by launch of the new labor certification system named "PERM." The implementation of this Strategic Plan has been delayed and delayed for a number of reasons which included oppositions from anti-immigration forces and other departments in the Administration, lack of full support by the Congress to fund the reengineering system, and recently by the White House for fear of its impact on the national election.
• To deal with the "ever" mounting backlogs, the U.S. Department of Labor recently announced and launched the so-called Transition Guide which is nothing but "reorganization" of labor certification process changing from the two-tier system into one-tier system , removing the state agencies' involvement in the labor certification process. However, as we noted earlier, this Transition Guide is, without doubt, expected to streamline the "backlog" reduction part of the Strategic Plan but in no way contribute to other part of the Strategic Plan, "prevention" of new backlogs. Without such sweeping changes of the labor certification system as reflected in the PERM program, simple reorganization or restructure of the processing agencies will no way help in achieving this part of the Strategic Plan. The reengineering of the labor certification system to save it from the total collapse works only if the two pillars are firmly cemented and operated simultaneously and side-by-side.
• The White House (OMB) has no excuse to delay its decision at this point causing further damage to the nation's employment-based immigration system. It has only two choices: Either it denies the PERM regulation and faces the consequences of collapse of the nation's labor certification system or approves it quickly so that the labor certification system moves in the right direction. With the indecision of the White House, the DOL appears to be struggling to deal with the problem simply on "reorganization" rather than fundamental reengineering of the labor certification system itself in terms of the "substantive system and standards" as well as the "procedural reform." It is time for the White House to act!

11/05/2004: Time to Reconsider the Policy of I-140/I-485 Concurrent Adjudication

• The policy of concurrent adjudication of the concurrently filed I-140/I-485 was intended to bring a positive result in reduction of backlogs. However, the current practice of concurrent adjudication with no flexibility appears to work the other way. The concurrent "adjudication" policy was apparently adopted without a solid solution to reduce the I-485 processing times which should have accompanied the concurrent adjudication policy announcement. With no obvious solutions to reduce the I-485 applications, the adoption of the concurrent adjudication policy resulted in mounting I-140 processing backlogs. For the concurrent adjudication policy to work, the USCIS should have imposed the processing time of six months for the I-140 petitions and in the event that the I-140 and I-485 could not be concurrently adjudicated within the period, it should have allowed the adjudicators to adjudicate I-140 petitions relieving the petitions from being a state of hostage of I-485 processing and adjudication. Obviously, processing and adjudication of I-485 applications should take time because of the security check concerns and issues of I-485 applicants' violation of immigration laws. Such "flexibility" of the concurrent adjudication policy is increasingly demanded for the following reasons, among others. One is its negative impact on the AC 21 Act on portability of employment-based green card applications after 180 days of I-485 filing. The delay of I-140 petition adjudication as effected by the concurrent adjudication policy and the so-called Yates Memo of August 2003 which interpreted the AC 21 Act to require I-140 approval before one can change employment even after 180 days of I-485 application filing "de facto" seriously compromised the legislative intent of the Act 21 Act and choked this provision of this statute to "close to death." A rumor has been flying around for quite a while that the Yates Memo may be revisited and reversed by the agency itself sooner or later, but we have yet to see the announcement. Secondly, by now, we know that as early as January 2005, the immigrant visa numbers for employment-based categories for certain countries may regress and the current inflexible concurrent adjudication policy and its negative impact on processing of I-140 petitions pose a serious threat to the AC 21 Act. The harm will be heightened because of the potential policy of USCIS not to adjudicate I-140 petitions unless the priority date is current for the alien beneficiaries. Thirdly, the approval of I-140 is also precondition of retention of the priority date for the alien beneficiaries under the current rules and delay of the I-140 petition will prevent certain aliens from taking advantage of the new labor certification system called "PERM" and trying to overcome priority date problem by attaining a new labor certification application under the new online labor certification system that promises to adjudicate labor certification application in a flash.
• It is submitted that the current concurrent adjudication policy serves no clearly-defined purposes including reduction of backlogs and rather forms a disservice to the backlog reduction as well as public interest. It is thus urged that the USCIS either abandons this policy or operates the policy "flexibly" such that I-140 petitions do not become a hostage to the time-consuming I-485 proceedings.

11/05/2004: USCIS Workload Created by EAD Processing and Unimplemented Regulation Lifting "One-Year"Limit

• On July 20, 2004, the USCIS published an Interim Regulation lifting one-year validity of EAD. If people look at the montly statistics of the USCIS workload, EAD takes a large part of the USCIS workload. We thought that the USCIS had decided to lift the one-year valid EAD policy to relieve themselves from the immigration benefits processing backlogs.
• The regulation took effect on July 30, 2004. However, the regulation appears to remain in a "dormant" state not being implemented. There is some indication that the implementation of the regulation may be delayed in consideration of its negative impact on the USCIS revenue generated by the filing fees.
• Obviously, the Service must have weighted the advantages and disadvantages of the change and attempted to balance between the reduction of workloads and the reduction of the revenue. Besides, the change also serves public interest. Thus reduction of workloads and serving public interest should have outweighted the decreased revenue in enacting this new policy. However, the regulation has not been implemented for the past three and a half months! Considering the fact that FY 2005 budget for the USCIS increased $60,000,000 for the backlog reduction over the FY 2004 budget, one wonders why the new policy has yet to be implemented. EAD application fee has already jumped from $120 to $175. We hope to see this regulation implemented in the very near future!

11/05/2004: Immigration Lottery Starts Today Noon EST

• For the online registration link, please visit our home page.

11/04/2004: Minnesota State Labor Certification Processing Times 11/02/2004

• RIR=07/01/2004, Regular=12/09/2004, Faculty=C, Temporary=C

11/04/2004: Primer of 245(i) Benefits, Requirements, and Procedures

• USCIS Bulletin

11/02/2004: Transition of DOL Labor Certification Processing System and Anticipated Mounting of Backlogs Till End of the Year

• As a natural consequence of the system reform and transition, it appears that the labor certification processing and adjudication are de facto on hold or at standstill creating additional backlogs. Reports from various state offices and regions indicate that due to the transition, labor certification application processing is currently negatively affected in the interim. It is interesting to see how the November monthly website report (soon to be defunct or changed) of the DOL Regions and States labor certification applications will reflect this problem.

11/02/2004: NBC Direct-Mail Filing Expected Soon

• Currently, the family-based green card applications and ancillary applications are filed through the USCIS local offices which datestamp the applications and forward to the National Benefit Center in Missouri. The current system is thus called "Indirect Filing."
• AILA has reported that the NBC will change it in about two months or so from Indirect Filing to Direct Filing. Once Direct Filing is launched, people will mail the applications directly to the NBC just like any other Service Centers filing. This change will be announced in the federal register in the future. Until that time, people should keep filing their cases through the local district offices. Please stay tuned to this web site for the development of this news.

11/02/2004: USCIS Announcement of 18-Month TPS Extension for Nicaragua and Honduras

• Honduras
• Honduras Q&A
• Nicaragua
• Nicaragua Q&A

11/01/2004: Retrogression of Visa Numbers and Effect of Pending I-485 and Ancillary Applications of EAD/Advance Parole

• Obviously when the visa number retrogresses, question arises with respect to the pending I-485 application and eligibility for EAD and Advance Parole during the period of the visa number unavailabity. This is a policy issue rather than a legal issue.
• Traditionally, the legacy INS held in abeyance pending I-485 applications during the period of visa number unavailabity and the status of the 485 applicants were deemed in status pending availability of the visa numbers and the subsequent adjudication of I-485 application. During such period, the legacy INS also exercised discretion and issued EAD and Advance Parole and extension of EAD and Advance Parole. It is likely that the USCIS may retain such policy if the visa numbers retrogress next year.
• When visa number retrogresses, the consular processing of immigrant visa is riskier than I-485 option in that neither EAD nor Advance Parole will be available during the period of visa number unavailable when one opts for the consular processing, while in the I-485 option, the alien will be able to keep obtaining and extending EAD.

11/01/2004: Substitution of Labor Certification Beneficiary Alien and Priority Date

• Potential retrogression of the visa numbers in January 2005 brings back the issue of priority date on the spotlight. Under the immigration rule, the alien beneficiary "retains" the priority date once the labor certification is approved "and" I-140 petition is approved. Accordingly, unless the I-140 is revoked or the labor certification application is revoked, this specific alien retains the priority date established by the labor certification application. The same alien thus retains the priority date even if the alien starts a new labor certification application with the same employer or another employer. The concept of priority date is thus "alien-based" and the specific alien carries with him or her the priority date.
• The priority date is not only "alien-based" but also limited to a specific alien and cannot be transferred to another alien. Consequently, an alien who files I-140 petition as the substituting beneficiary of an approved labor certification application takes over the approved labor certification application but not priority date. Accordingly, an alien who files I-140 petition as a substituting alien establishes his/her priority date at the time of filing of his/her I-140 petition and not on the date of filing of alien labor certification application by the employer on behalf of the original alien beneficiary who is substituted. The regulation specifically states that a priority date is not transferrable to another alien.

11/01/2004: USCIS Partially Addresses 800-Number NCSC Service Problems

• Report indicates that the USCIS has recognized the problem of the private contractor that provides 800 NCSC phone inquiry services and unless the private contractor is successful in improving the quality of the services, it may even consider termination of the contract. Besides, pending resolution of the fundamental issues involved in the private contractor services, the USCIS has already taken a transitional step routing approximately 3% of NCSC calls to the Service Centers. People still has to call the 800-number but currently 3% calls are rerouted to the immigration information officers at the Service Centers serving the customers. The USCIS is also planning to expand this change effective December 2004 through utilization of certain technology which will automatically trigger rerouting of certain calls to the Service Centers.
• We welcome this move of the USCIS. However, we still feel that this function belongs to the "government" function and the USCIS is better off to reinstate the old practice of consumers' direct telephonical access to each Service Center. For the full report, please click here.

10/31/2004: Final 48-Hour in Election, Testing Time for American and World History and Direction

• The Los Angeles Times summarizes succinctly the state of the nation in this final 48 hours of the U.S. elections and the historic moment of people witnessing the America and World choosing direction at the cross-road. The world is watching with the mounting nervousness and thrill. We, immigration lawyers and immigration communities, are also monitoring this breath-taking moments that can define the direction of this nation and public opinion on immigration. We encourage our colleagues in the immigration lawyers community to participate in the voting, no matter who you vote for!
• One should not but notice the neglected attention to the elections at the federal, state, and local levels which are overshadowed by the Presidential election. For the immigration communities, the results of these elections will be as important as the Presidential election in helping this nation to choose a right direction for the future of this nation of immigrants. In this 48-hour of election, we should all review the political stance of each candidate on immigration issues so that we make a right choice. If you don't do your share of duties at this critical time, you should stop whining in the future even if the country moves to a wrong direction, especially against immigration.
• This reporter will head for the Nebraska Service Center on the election day to attend the AILA-NSC conference and tour at the NSC on November 3, 2004. You betcha that this reporter will get up early in the morning and head for the vote before catching a flight!

10/30/2004: TPS Designation and EAD to Be Extended for Hondurans and Nicaraguans

• The USCIS requested OMB on October 29, 2004 to review and approve extension of TPS designation and automatic extension of the eligible TPS Hondurans and Nicaraguans. Please stay tuned.

10/30/2004: New Citizens and U.S. Citizen Relatives of the Immigrants, Please Revisit Our 10/25/04 Posting and VOTE, VOTE, VOTE!!!!

• We from time to time hear and read some new citizens turning into anti-immigrants making people disgusted of their despicable behaviour. New citizens, please do not be washed out and manipulated by the media. "Know thyself!!" No matter how you perceive yourself, you are still perceived by the mainstream as "immigrant." Please go out and vote for the candidates who support immigration to send a clear message to the anti-immigrant candidates that the so-called "immigrants" have a voice and will not tolerate being trashed as second-class members of the society. In this election, it is very confusing and difficult to sort out the anti-immigrant candidates as no one talks about immigration issues. This includes the Presidential candidates. But your "heart" will tell you who belong to the group that "welcome immigrants" not because they want to take advantage of and "use" immigrants for political purposes and tricks but because they truly believe in the "value" and democracy and freedom for all. Patriotism lies not in the flag waving but the democratic value and principles underlying the flag. There are so many people out there who are proud of the flag itself but do not believe in the value the flag repesents. They are the ones who were washed out and manipulated by the media and politicians. The true patritism lies with a strong belief in and commitment to the American principles of democracy, a country "of the people, for the people and by the people" and not a country for a few and manipulators. Manipulators always use "symbols" such as a flag to wash out and manipulate people so as the people to believe that the manipulators represent the people's value and principles. Democracy is not a word or a symbol. It is the "substance" and "principles" the word and the symbol represent. In this election, people are so sick of hearing the rhetorics and gradually realize that these candidates may not necessarily believe in what they are saying. People sometimes feel disgusted of their belief that the people are so fool and naive enough to be fooled and manipulated. It is an insult to "The People." Please tell these candidates that the people are smart and have an ability to pierce through the veil to see the "real" picture of these candidates by voting for the candidates who truly believe in the democractic value and principles and not just words.

10/30/2004: Anticipated EB Priority Date Retrogression, AC-21, and Survivability

• In about a month and two weeks or so, the immigrant community will see the January 2005 Visa Bulletin. According to the State Department prediction, some categories of employment-based cases may see retrogression of visa numbers. In most likelihood, the potential candidates are China and India and EB-3 rather than EB-2 or EB-1. It is anybody's guess at this time when it comes to a question "how steep the number may move backward."
• The old timers may remember that the oversubscription of the employment-based visa numbers was the norm rather than exception in old days. In this regard, the current immigrants in this country in fact enjoyed heiday in that the visa numbers have been "current" in all employment-based categories. Here we will look at the impact of retrogression on the immigrants.
• In old days, no matter how long it took, the alien had to keep the employment with the sponsoring employer or otherwise they lost the opportunity to adjust status to a lawful permanent resident. Things have changed since then. Now, we have AC-21 that allows the alien to change employment after 180 days of I-485 filing and the aliens have a better chance to survive while awaiting the visa numbers and approval of I-485. That much, the immigrants of today are luckier than the old immigrants.
• However, don't jump yet! Here are the bad parts. Currently, I-485 applicants cannot change employment unless the I-140 is "first approved." Accordingly, not every I-485 waiter will have a luck to survive. Worse yet, there is a pontential policy that will come into play once the visa number becomes unavailable - a policy of not adjudicating I-140 petitions for those cases for which visa numbers are not available. Indeed, the legacy INS adopted such policy in old days. Even now, in the family-based immigrant petitions (I-130), the USCIS adopts exactly this policy in that the Service Centers do not process I-130 immigrant petitions until the visa numbers become available. Such policy is justified in that it will be effective use of given resources to adjudicate the petitions for those whose I-485 can also be adjudicated because the visa number is available. On the other hand, arguably, the resources are allocated for wrong cases if the USCIS adjudicates I-140 petitions for which visa numbers are not available and even if the I-140 is approved, the alien will not be able to get his/her I-485 adjudicated for a long time until the visa number becomes available for him or her. Thus, should this policy be revived by the USCIS, the immigrants of the retrogressed categories will indeed witness a nightmare. If visa number is not available, it is likely under this policy that the USCIS will not adjudicate I-140, no matter whether it is filed independently or concurrently with I-485. Since I-140 will not be adjudicated until the visa number becomes available, the aliens may not be able to change employment even if they file a concurrent I-140/I-485 package. Depending on how long it will take to reach the numbers, the system will produce a plenty of I-485 filer victimes who may not be able to survive the test of the times unless the economy really turns around and there will be plenty of jobs for everyone. In this regard, retrogression means more than "just waiting."
• Who will be real winners? The real winners are three groups: One is the group who have attained the approval of I-140 petitions when his/her I-485 application is tolled because of the retrogression in that the people in this group can change employment and survive while his/her visa number becomes current in the Visa Bulletin. The second group is those who happen to have earlier priority date because of the terrible pains they have endured for the past several years. There are a huge number of people who have been waiting and waiting "for years" to get the labor certification applications. The pain must have been unbearable. But these people will be rewarded for their past suffering. The DOL has decided to process 300,000-some backlog cases in the order of First In First Out, and longer they had waited, sooner they will see the labor certification applications be adjudicated. Besides, since their priority dates (labor certification application filing dates) go back several years, even if the visa numbers move backward, they may not be caught up by the "visa cut off date" unless the Visa Bulletin moves backward many many years. From here on, it is extremely important that they may not want to abandon the pending labor certification cases to go for a new labor certification application or substitution route since they will lose the old priority date. The third group is those who are not caught up with the visa number unavailability. Most of the nationals other than the oversubscribed nations will be benefited from the retrogression in that should the USCIS decides to adjudicate I-140 petitions and I-485 applications for whom visa numbers are available, more resources will become available within the Service Centers to adjudicate their cases and they will be able to get approval of I-140 and I-485 sooner than expected, assuming that the USCIS indeed decides not to adjudicate I-140 petitions for those whose priority dates are not available. INDEED, LIFE IS A GAMBLE!!

10/29/2004: Washington Update 10/28/2004 (AILA)

10/28/2004: Backlog Reduction, System Reengineering, and Accompanying Issues of Unfairness in Immigration Process

• The immigration processing pipeline has been clogged with chronic aiments producing mountains of backlogs and the involved government agencies have been struggling to deal with the clogged pipeline. Lately, both U.S. Department of Labor and U.S. Department of Homeland Security, Citizenship and Immigration Services, launched so-called reengineering of the system allegedly to reduce the backlogs.
• We salute the agencies for their efforts to deal with the chronic ailment through reorganization and reshuffling of the process. However, we should not ignore inequity and unfairness which these reduction plans and initiatives currently produce because of the flaws in the plans or implementation of the plans. For instance, the USCIS launched so-called Pilot Programs in certain locations that allow processing of green card applications less than 90 days when hundreds and thousands of other people in the long pipeline are suffering from a long delay. Implementation of Pilot Program not only raises the issue of geographical inequity and unfairness but also raises eyebrows because of the way program is implemented. Reportedly even in the same location, some lucky applicants are selected for the Pilot Program processing and other applicants are not selected for the Pilot Program processing without a clear guideline. Furthermore, there is no known target date when the Program will be expanded to other locations giving the identical services to the consumers in other locations.
• On the permanent labor certification front, the U.S. Department of Labor just released its reorganization removing the labor certification function from the State and Regional Offices of ETA to the National Program Office of the DOL and creating two sets of national processing centers: National Processing Centers for post January 1, 2005 applications and Backlog Reduction Centers for Pre-January 1, 2005 applications. The guiding rule for processing of applications for both of these national processing centers is First-In First-Out. For the Backlog Reduction Centers, there are more than 300,000 cases in the queue and recent filers and prospective files during November and December 2004 are likely to be placed at the end of the national queue for each type of proceedings (Regular, RIR, Limited Review Processing, Faculty Special Handling, etc.). Meanwhile those applications that are filed after January 1, 2005 are likely processed by the new National Processing Centers in Atlanta and Chicago that do not have any cases in the pipeline other than those cases which have been "opened" and may be able to process such new applications of different types in a relatively short period of time. If the newly created National Processing Centers are created for the purpose of PERM Program which is distinguished from the current labor certification system not only in the the procedure but also the substantive requirements for eligibility, the issue of unfairness and inequity between the old filers and the new filers is minimized. However, if the unfair treatment is created just because of the reorganization and not driven by justifiable changes in the substantive standards and procedural rules, such action is dubious at best.
• We realize that reforms tend to produce accompanying pains, but the government should excert its efforts not to create a misunderstanding of arbitrariness in administration and management of the programs. It is hoped that the PERM regulation be cleared by OMB and published in the federal register very quickly and the newly created National Processing Centers carry out their intended mission of the new electronic filing system such that the sense of arbitrariness be removed in the minds of public at least on the front of labor certification application management. We urge again the USCIS to make public its plan for expansion of the Pilot Program as soon as possible so that the people do not suffer from the feeling of unfairness.

10/27/2004: Story for Dog Lovers

• This is an immigration law web site and I am an attorney and reporter of the immigration news and issues. But I am also a dog lover and cannot but share this story with other dog lovers across the plain field. Non-doglovers may skip this posting. Read on.

10/26/2004: Addresses of Reorganized "National" Foreign Labor Certification Centers (Effective 11/01/2004)

• The foregoing chart reflects that initially the same number of organizations at the same locations will operate just as the current 6 Regional Offices. However, the surviving regional offices in Boston/New York and San Francisco will be phased out first as soon as the transfer of the backlog cases in these regions are completed, and the two backlog centers will be phased out in approximately two years after completing adjudication of all the backlog cases in excess of 300,000. Eventually, there will remain only two foreign labor certification offices: National Processing Center in Atlanta and National Processing Center in Chicago. This plan of operation is not likely affected by the PERM Program, assuming that the OMB approves the PERM regulation.

10/25/2004: New U.S. Citizens Could Play Deciding Role in 2004 Elections

• Report indicates that there are an estimated 2 million adults who have become U.S. citizens and have registered to vote since the 2000 elections. These new voters will have a potential impact on the final outcome of the November 2 elections. These are new voters that are not being polled and some of them are infrequent voters, so they are not being polled. So this is a wildcard for this election, so goes the report. Besides, comparing the registration and voting figures with those of native-born American citizens, a study indicates that although a smaller percentage of new citizens register to vote, those who have done so are actually more likely to vote on election day than their native counterparts. For the full report, please click here.
• When the election is so close and even one vote can count for winning, we must say that this wild card can play an important role in the outcome of the election. These naturalized citizens are members of the group who tend to have close relatives who are left behind and are conscious of their need for reunification with their close relatives.
• My fellow new American citizens, please do not forget about your painful and agonizing journey and path to where you are now, and support the immigration of your relatives and colleagues by massively registering and voting on November 2, 2004!

10/25/2004: USCIS Seeks Comment on Its Plan to Publish List of Supplemental Evidence to I-140/I-485 for NIW Applicants

• The USCIS has just published a notice to seek a 30-day comment to publish the list of supplemental evidence to the National Interest Waiver I-140 and I-485 filers. It was previously published in January 2004 but apparently there was no comment. The list of supplmental evidence that the USCIS will require have yet to be published. The notice estimates that annual filing of NIW will amount to approximately 8,000 taking the USCIS time of adjudication at approximately average one hour per case. Please stay tuned.
  

10/25/2004: Pessimistic View on Future of Immigration in U.S.: A "Quote"

• This website has never posted an opinion which was expressed by people in another websites. However, the Reporter has decided to break the tradition to quote an opinion, not because this Reporter agrees to the conclusion of the writer but because of the description of the events that are and will be unfolding in this country with respect to the immigration. The view is "well put" and deserves this website visitor's valuable time and "quoted" as follows:
• Quote: "My suggestions to aspiring immigrants:
• a. no president will be kind enough to let you be in American with ease.
  b. Pro-immigration is most unpopular public policy and that's why Bush played the trick: he gave a speech about kind of pro-immigration policy at off season without any policy proposal in the Congress. He did it to fool Mexican President Fox as if he has plan to do something for immigrants. But at election time, he hardly made any statement about it.
  c. Kerry has talked nothing about it either except in one question answer session.
  d. Kerry sounds a bit more pro immigrants than Bush but don't be fooled. Even the most compassionate sounding and broad-minded Clinton brought the harshest immigration policy in 1996 although Republicans were the champions of this policy in particular.
  e. Aspiring immigrants are not voters and those who are voters do not like to hear about pro-immigration statements. So, it is understandable. Most of the naturalized ones are the most anti-immigrants.
  f. Economists know that the future of this country holds on immigrants a lot. But politics is different thing. Canadians exploited the Chinese but did not let them earn legalization at earlier time. When the country faced serious population shortage and skilled worker shortage because of low fertility and huge immigration to the US of its White population, it now accepts all skilled workers of India and China in particular.
  g. America for some reason has not faced it so and majority of America will not entertain immigrants until China dominates the world economy and America fails in its competition with the European Union, China and India mainly because of its rising obesity and aging and problems like social security, health care and high wage.
  h. So, for coming 20 to 30 years, US immigration policy will be no better than today's. It may go worse.
  i. I know America has hard days ahead because of :
  . Moslem fanatics of the world
  . obesity which cause too much allocation of resource to health care and loss of productivity
  . severe inequality in income distribution which will cause more street crimes, unsafe neighborhood, possible political unrest if the rise in inequality persists and if the poorer find it harder and harder to live.
  . huge failure to bring the Black and Hispanic population to the mainstream of educational, economic and political system
  . too much technological dependence (e.g. internet which is prone to attack from anywhere of the world)
  . identity theft
  . loss of privacy
  . too much crackdown on people’s rights in the name of terrorism control
• j. So, I think it's better for today's generation of aspiring immigrants not to be desperate to settle for the longer term in this country. When you retire, who will care you? The system is made so difficult to survive: rising health care costs, loss of social security and medicare, higher cost of living, almost no public support, rising identity theft, skyrocketing tuition fee of your children to pay the royals of the college system will make life difficult in America too.
• k. Aspiring immigrants, I know your home country is no better. But one thing is better there and that is you will not face the uncertainty of visa status. Also you will not be too worried about greencard. You will not need to wait for many years for Greencard. Nobody will intermediate you of deportation. You will not need to worry too much about being caught by the INS officer or police. Your quality of life may be higher because of this in real terms if not in monetary terms.
• So, let us make plan to leave this country in a reasonable period of time. If we plan well to live a simple and humble life, life may not be too hard at our motherlands too!! Let us not blame American people either. American people are the hardest hit by the ongoing trends of this country. Their anti-immigrant sentiment is the reflection of their fear of future hardships." Unquote

10/24/2004: Line-Up of DOL New Four National Labor Certification Centers

• The reshape of the leadership of the national foreign labor certification recruits mostly the existing leaders in the current Regions as follows:
  • National Certifying Officer: Bill Carlson, Chief of Forein Labor Certification, National Programs, ETA, DOL
  • Chicago National Processing Center Director: Charlene Giles (former Dallas Region Certifying Officer)
  • Atlanta National Processing Center Director: Gene Caso
  • Philadelphia Backlog Elimination Center Director: Steve Stefanko (Current Certifying Officer of Region II)
  • Dallas Backlog Elimination Center Director: John Barlett (Former Certifying Officer of Region IV)
• The Certifying Officer of each National Processing Center has yet to be announced. The current Certifying Officers in the Regions who are left out of the appointment are: Region I, Region III, Region IV, and Region VI. It is interesting to see who will survive in the final line-up.
• As we reported quite earlier, the Backlog Elimination Centers are manned by private contract in Maryland, named EXCEED Corporation.

10/23/2004: Ongoing Reorganization of Labor Certification Functions at the Federal Level

• For the last two days, we have posted messages as to how the labor certification functions at the State level are reengineered before or after January 1, 2005. Basically, the State offices will be phased out. Now, a Regional Office memo of DOL/ETA dated October 21, 2004 indicates that the Regional offices structure (currently 6 Regions) will also be phased out and the entire staff of the offices of certifying officers at the six Regions will be transferred to the National Processing Centers (NPC) in Chicago and Atlanta by the end of December 2004. We reported earlier that the Region V office was relocating to the site of National Processing Center in Chicago and all the files were being boxed for moving. It turns out that this moving involves more than physical relocation of the Region V. It involves the separation of the foreign labor certification function and staff from the Regional structure of ETA of DOL and merge into the "national" structure of the ETA of DOL. The Memorandum states as follows:
• The Employment and Training Administration (ETA) is proceeding with a reorganization of its offices, divisons and units to better serve its customers. Part of this reoganization is a redeployment of Federal staff involved with foreign labor certification. This function has been transferred from the Regional Offices to the Office of National Programs, Division of Foreign Labor Certification (DFLC). The Division has reorganized its foreign labor certification activities in a new structure intended to eliminate the current Permanent Program backlog and implement the new Program Electronic Review Management (PERM) system. The newly created structure will be Center-based and include all program functions and Federal staff currently residing in ETA Regional Offices. Before the end of calendar year 2004, Federal foreign labor certification staff nationwide will be relocated to two Perm Processing Centers located in Atlanta and Chicago.
  • The Region V Foreign Labor Certification Staff are currently in the process of moving and its new name and office address are as follow:
  • Chicago Perm Processing Center
    844 N. Rush St.
    12th Floor
    Chicago, Illinois 60611
• This is indeed an earth-shaking reform of alien labor certification system!

10/23/2004: DV-2006 Lottery Registration Advisory

• There is no change in the registraton procedure and requirement in DV-2006 except the registration period. The registration will run from noon "Eastern Standard Time" on November 5, 2004 until noon "EST" January 7, 2005. It is conducted "entirely" by electronic means using www.dvlottery.state. This website link will start operating beginning from noon "EST" November 5, 2004. Please make a note of it.

10/23/2004: One-Time Admission of VWP Travellers Without Machine Readable Passport [MRP] After 10/26/2004

• The U.S. will launch a new admission policy without a visa for the VWP country travellers requiring a machine readable passport effective October 26, 2004. However, anticipating that there would be some travellers who were either unaware of the requirement or who needed to enter the U.S. without such passport for important purposes and arrive at the port of entry in the U.S. on or after October 26, 2004, the DHS has decided to admit such VWP travellers to the U.S. one time only without the machine readable passport. For the announcement, please click here.
• This DHS decision is a very welcome move. However, the VWP traveler for the entry second time around should also be aware that the accompanying families of the principal traveler to enter the U.S. under the VWP will need to obtain an "individual" passport for each traveler, including "infants." Usually infants share their passports with the parents. The problem is MRP typically have biodata for only one traveler, and the accompanying family members without biodata may be denied visa-free entry into the U.S. if only the biodata for one traveler is machine-readable. Please read the State Department cable.

10/23/2004: Refugee/Asylee I-485 Estimate Processing Time for FY 2005

• We reported on October 2, 2004 that the President signed a document on the refugee admissions in FY 2005, which alotted a special 10,000 for refugee/asylum I-485 applications during the FY 2005 (10/01/04-09/30/2005). Based on this Presidential Document, the Nebraska Service Center that processes exclusively refugee/asylee I-485 applications released its estimate processing timetable for such I-485 by stating that based on an analysis of the number of applications pending by receipt date, the NSC had determined that during FY 2005, NSC would be processing cases received on or before March 31, 2000. The impact of the Ngwanyia lawsuit had not been factored into this calculation since no final order in the case had been issued. When a final order is issued, NSC will revise the cut-off date.
• For the cut-off date which was released in FY 2004, please revisit out posting on April 6, 2004.

10/22/2004: USCIS Local Offices Resumes ADIT Stamping (Temporary Evidence of Permanent Resident)

• We reported on September 7, 2004 that the USCIS local offices launched a new procedure of issuing the plastic "green card" in one week after approval of the I-485 and this was made possible because of change of the plastic card production system from manual processing of biometric identifier to digital processing of biometric identifier and automation of the production process through the computer. Along with the change came its cease of the traditional practice of stamping of the approval of permanent residence in the applicants' passports after the interview based on the premises that the applicants would receive the plastic card in the mail in one week. However, it turned out that the delivery of the plastic card required three (3) weeks to be produced and delivered to the new permanent residents. During the three-week period, they have experienced all kinds of difficulty for lack of proof of legal status. At the end of interview, the I-94, EAD, and Advance Parole were lifted by the officers and in the interim, they lacked I-9 compliance evidence and they could not apply for a driver license or social security number. It goes without saying that they were unable to travel outside of the U.S. even on emergency. For the employment-based 485 applicants, they posssessed I-485 approval notice but it had no legal force of proof of permanent residence nor permit for travel until the ADIT stamping was obtained.
  
• Pending the technical achievement of goal of producing the card in three days and delivered to the new permanent resident in one week altogether as initially planned, the USCIS has announced that it was resuming the practice of placing ADIT stamp in the passport upon approval of the green card application. ADIT stamp is accepted for I-9 compliance and driver license application as well as international travelling. Good deed! Please click here for the USCIS announcement.

10/22/2004: USCIS Advisory on Importance of Advance Parole for I-485 Applicant Travelling during Holiday Season

• For most I-485 applicants other than those in a valid H-1B or H-4 or L-1 or L-2 visa in the passport, it is critically important that people pay attention to the legal consequences of departing from the U.S. with an advance parole. There are a number of deadly consequences, but the following two are the most important, among others: (1) Unable to return to the U.S. because of their prior unlawful presence in the U.S. for 180 days or longer. This is true even if the alien carries an advance parole. They should not leave the country. (2) Cancellation of I-485 applications. The law assumes that the I-485 applicants abandoned the permanent residence application if he/she departs from the U.S. without an advance parole. Admission on a valid nonimmigrant status other than H or L visa status at the port of entry does not change this deadly consequence! For the USCIS advisory, please click here.

10/22/2004: $60 Million Immigration Backlog Budget Increase in FY 2005

• As we reported, the Congress passed and the President signed the DHS FY 2005 budget. FY 2005 budget reflects the increase of immigration improvement appropriations from $100 million in FY 2004 to $160 million in FY 2005, $60 million increase. It includes $140 million from the usual funding sources and $20 million from the Premium Processing fee revenues. Overall funding for the immigrant and nonimmigrant services appropriation marked decrease in FY 2005 over FY 2004, but the funding for the backlog reduction shows $60 million increase.
• People should remember that private contractor competition policy and practice apparently created a lot of inefficiency and ineffectiveness in the previous fiscal year, and the Congress imposed a ban in this fiscal year from the USCIS to spend a single penny on hiring private contractors to replace the government officials. As the Secretary of DHS admitted, the Congress took this action and the Secretary agreed allegedly to "help the USCIS to focus on the backlog reduction." Now with the increased budget for the backlog reduction and the streamlined qualified officers' processing and management of petitions and applications, the immigrant community looks forward to the fruits of this budget increase for backlog reduction and changes in resources in FY 2005. We urge the USCIS to make public its detailed programs for backlog reduction for this fiscal year with the increased funding. For the FY 2005 budget, please click here.

10/21/2004: DOL National Processing Centers and Jurisdictions

• The National Processing Center in Chicago will cover the states under the jurisdictions of current Region IV (Dallas-Denver), Region V (Chicago-Kansas City), and Region VI (San Francisco-Seattle), and the National Processing Center in Atlanta will cover the states under the jurisdictions of current Region I (Boston-New York), Region II (Philadelphia), and Region III (Atlanta).
• The list of states under the jurisdiction of the two National Processing Centers are as follows:

• Atlanta NPC	Chicago NPC
  Maine, New Hampshire, Vermont, Rhode Island, Massachusetts, Connecticut, New York, New Jersey, Pennsylvanis, Delaware, Maryland, Washington, D.C., Virginia, West Virginia, Kentucky, Tennessee, North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi	Alaska, Hawaii, Washington, Oregon, California, Idano, Nevada, Arizona, Montana, Wyoming, Utah, Colorado, New Mexico, North Dakota, South Dakota, Nebraska, Kansas, Missouri, Oklahoma, Texas, Minnesota, Wisconsin, Illinois, Michigan, Ohio, Indiana, Iowa, Arkansas, Louisiana

• The concept of NPC and BEC is premised on prevention of backlogs for the new cases which are filed with the NPC through the State Offices after January 1, 2005, and removal of backlog cases which have been filed before January 1, 2005 through the BEC. Should the DOL launch the PERM, it is conceivable that the intended goal of prevention of accumulation of cases or backlogs may be achievable by the two NPCs without much hurdle. However, should the DOL fail to get approval of the PERM regulation and be forced to continue the current RIR/Regular/Limited Review Processing labor certification system, the perceived goal of prevention of backlogs for the new cases after January 1, 2005 may pose a challenge for the two NPCs. When 10 or 6 Regions created such huge backlog of 300,000, one wonders how the two Centers would be able to process the same types of cases without creating another huge backlogs even if it is assumed that the DOL may adopt electronic filing system. Current labor certification system retains the so-called "supervised" labor certification process in such cases as Regular Labor Certification and Limited Review Processing applications, which consume tremendous resources, unlike the PERM program. It is interesting to watch how this new plan will unfold during the first six months in the calendar year 2005.
• As for the backlog reduction tasks of the BECs, the DOL anticipates approximately 2 years to remove all the backlogs. Since the plan adopts FIFO processing principle, the backlog cases will be adjudicated in reverse order or counter clock wise in terms of the processing times. The oldest cases will be adjudicted earliest and the the latest cases will be adjudicated the last. Accordingly, the oldest filers will soon get adjudications,while the recent filers may have to endure a long wait to see their cases adjudicated by the BECs. Theoretically, the cases which are filed close to the end of the year 2004 can even take up to two years to get adjudication of their cases.
• This presents a strategic question for the prospective filers of new labor certification applications: Whether or not it would be advisable to file before the end of the year 2004 or after January 1, 2005. Since those cases which are filed before the end of 2004 will be transferred to the BECs and other Regional Offices which can take up to two years to adjudicate because of the processing rule of FIFO, these prospective applicants should assess carefully the desirability of filing of their cases before the end of the year. They should seek legal counsel for such decision. On the other hand, filing after January 1, 2005 may present certain problem itself. The advantage seems to be that the FIFO processing rule may be confined to the NPC cases and the filers in the first few months may witness a fairly prompt adjudication of their cases. However, as the time progresses, it is anticipated that the NPCs would face their own backlogs, assuming that the PERM program never materializes. Additionally, should the PERM program be launched, they will have no options but filing the PERM applications which may not be in the best interest of the new applicants depending on the situation of the businesses. Reportedly, the proposed PERM regulation has been substantially revised towards the restrictive direction and it is unkown factor at the best at this point of time. Remember that once the PERM program is launched, the options of regular application, RIR or limited review processing under the current labor certification system will disappear!! We will have to watch carefully how the PERM regulation will unfold after the National election.

10/21/2004: Five Service Centers Processing Times as of October 21, 2004

• See our home page.

10/21/2004: Labor Certification Processing Times as of October 8, 2004

• See our home page.

10/20/2004: DOL National Processing Centers and Backlog Elimination Centers Operation Guidance

• AILA has released the DOL Memo of September 29, 2004 to give guidance to the State labor certification offices (SWA) on the changes of operation of permanent labor certification application in connection with the launch and operation of the Backlog Elimination Centers (BEC) in Philadelphia and Dallas and the National Processing Centers (NPC) for the PERM in Chicago and Atlanta. The Memo indicates that the BEC has gone into operation since the beginning of the FY 2005, October 1, 2004, and the NPC will go into operation by the end of the year, December 31, 2004. The Memo indicates that these new national processing system of the permanent labor certification applications will be in place regardless of the PERM Program which is currently stalled at the White House for the OMB Review.
• Timeline-Cutoff Date: (1) If the PERM regulation is released by the White House and published by the DOL, the current labor certification system including RIR will be ceased "60 day" from the date of the release of the regulation. Should this happen, the labor departments will not accept old labor certification applications and the state offices will be phased out when it comes to processing of the permanent labor certification applications from the date. This timeline implies that assuming that the PERM regulation will be released right after the national election, unless the employers are ready to file RIR applications within the next two months or so after completing the recruitment, it will be too late for them to file the applications under the labor certification system. (2) If the PERM regulation collapses due to the disagreement by the White House, the DOL will continue to operate the permanent labor certification system under the existing rule but under the completely different processing system as follows. The cut-off date is January 1, 2005.
• New Permanent Labor Certification Processing System: Permanent labor certification will be totally converted into a "national processing" system effective January 1, 2005 and the state offices will be phased out as of January 1, 2005 in a manner which is described below. Conversion into the national processing system will bring about a steeper change than the simple change of processing agency in that the permanent labor certification applications will be processed under the "uniform" national queue regardless of the locations and under the rule of the "FIFO" ( First In First Out) regardless of the locations. Accordingly, the NPCs and BECs will process the cases in the order of the priority date of each application no matter where the case was filed. This change will result in some big consequencesto the labor certification waiters: The oldest backlog cases will be processed first regardless of the locations. This inevitably forces the DOL (NPC and BEC) to focus on the cases which are pending in certain locations such as San Francisco and big 10 states where there are a huge number of backlog cases going back to years and years. The big losers will be people in those states who enjoyed prompt processing until now (mostly small states) such as New Hemphshire, Vermont, Maine, Minnesota, Iowa, Nebraska, etc. Since the labor certification will be processed under a uniform "national" processing schedule on a FIFO basis, the people in these states will witness negative changes in the processing times.
• Processing Changes and Timelines: The current Regions and State Offices will be gradually phased out as follows:
  • The State offices will cease to take a new permanent labor certification applications effective January 1, 2005 regardless of the PERM program.
  • Until January 1, 2005, the State Offices will take new cases under the existing labor certification regulation.
  • If the State Offices complete processing of certain cases and are ready for forwarding to the current Regional Offices for certification before the end of the year, they are required to forward the completed cases to the current Regional Certifying Officers as they did it in the past.
  • If the State Offices opened the cases but were unable to complete processing of the opened cases by December 31, 2004, they are required to continue and complete processing of such cases and forward such cases for certification not to the Regional Certifying Officer but to one of the NPC in Chicago or Atlanta.
  • If the State Offices have cases which were received but unopened or processed, such cases are required to be transferred to the BECs in Philadelphia and Dallas under the following schedules:
  • 10/1/04: Large number of oldest cases will be transferred to the BEC from San Francisco.
  • Early October - End of October 2004: The oldest cases from other Regions and States will be transferred to the BEC.
  • January - March 2005: Rest of the backlog cases will be transferred to the BEC (Philadelphia, Dallas) or the Regional Offices in New York, Boston, San Francisco.
  • Under the schedules, only "unopened" cases are allowed to be transferred to the BEC. Consequently, "opened" cases will be kept being processed by the State Offices even after March 2005.
• The new system is equitable and admirable in the sense that it totally eliminates inequity and unfairness that have existed until now depending on where an immigrant goes through the labor certification process. It will, however, be taken by some people in certain states as a shock. Life changes.

10/19/2004: U.S. Opens Door for North Koreans Ouside of North Korea to Seek Refugee, Asylum, and Immigration to the U.S.

• The President has just signed the H.R. 4011, North Korean Human Righsts Act of 2004. This legislation includes immigration provision to help the North Korean residing outside of the U.S., particularly in China, to seek refugee status, political asylum, and immigrant status. For the immigraion part of the legislation, please click here.

10/19/2004: Department of Homeland Security Appropriations Act, 2005 Signed by President

10/18/2004: Minnesota State Labor Certification Office New Address

• Sources indicate that this office has already physically moved to the new location. As we reported earlier, the new address is as follows:
  • Frances Regan
  • Alien Labor Certification Unit
  • Minnesota Department of Employment and Economic Development (MDEED)
  • 332 Minnesota Street, Suite E-200
  • Saint Paul, Minnesota 55101.
• Please make a note of it. The telephone numbers will remain same. Physically, it is less than three blocks from its prior location.
  

10/17/2004: DHS Appropriation Bill Passed Both Houses and Awaits President's Signature

• On October 11, 2004, both Houses passed the DHS Appropriation Act, 2005 and presented to the President for his signature on October 13, 2004.
• As we reported earlier, the DHS Secretary voluntarily cancelled its controversial program of contracting out of the USCIS contact representatives, information officers, and other officers jobs to private contractors by writing a letter to the Congress on October 8, 2004. Before this action was taken, the bill was destined to face the last minute showdown between the Congress and the White House as the OMB had threatened to recommend veto of this bill if it was presented to the President without removing it.
• Now, since the bottleneck has been removed, it is made clear that the bill will be signed by the President and the USCIS will be barred from contracting out its officers' jobs to private contractors at least during the FY 2005. Title V, Section 503(a) of this bill provides in part that "none of the funds provided by this Act, provided by previous appropriations Acts to the agencies in or transferred to the Department of Homeland Security that remain available for obligation or expenditure in fiscal year 2005, or provided from any accounts in the Treasury of the United States derived by the collection of fees available to the agencies funded by this Act, shall be available for obligation or expenditure through a reprogramming of funds that....contracts out any functions or activities for which funds have been appropriated for Federal full-time equivalent positions...."
• The immigrant community looks forward to changes in quality of services at least at customer "direct contact" level in terms of providing informed assistance to the immigration customers.
  

10/17/2004: Reminder: Approaching Deadline for Machine Readable Passport Requirement for Visa Waiver Program Travelers: 10/26/2004

• This is an important reminder to the visitors from the 27 Visa Waiver Program countries that beginning from October 26, 2004, they must arrive at the U.S. port of entry either with a visa or machine readable passport without a visa. In other words, they will be able to enter the U.S. without a visa inasmuch as they carry a machine readable passport. If they do not have a machine readable passport, they can still visit the U.S. even after October 26, 2004, but they must carry a visa in their passports.
• People should not be confused this requirement with the Biometric Passport requirement that has been postponed by the Congress until October 2005. Until October next year, the VWP travelers can enter the U.S. without a biometric passport inasmuch as they carry a machine readable passport or alternatively a visa in the passport without a machine readable feature in it. Some people may opt to travel with a visa and machine readable passport. It is a matter of choice, but in the event that they want to stay more than 90 days on a visit, probably carrying a visa may be a better option.

10/17/2004: Schedules of Land Border POE Deployment of US-VISIT Program

• The DHS has been testing and implementing the US- VISIT programs in stages since January 2004 starting from the "air" ports of entries and "sea" ports of entries. Now the same will be implemented at the "land border" ports of entries for those who travel in cars through the borders, Mexico and Canada on following schedules:
  • Mid-November 2004: Douglas/AZ, Port Huron/MI, and Laredo/TX
  • By December 31, 2004: All 50 busiest land border ports of entry.
  • By December 31, 2005: All other land border ports of entry.
• The US-VISIT procedure will be taken place at the secondary inspection areas. However, in next year, the DHS implement this procedure at the primary inspection areas.
• Currently, the DHS has been focusing on entry procedure, but by the end of 2005, it plans to implement fully Entry and Exit procedures in the air, sea, and land POEs. For the details, please click here.

10/17/2004: How to Properly Record Your Departure from the United States

• We reminded nonimmigrants earlier that it is critically important that when they depart from the U.S., they surrender I-94 or other record of departure to the immigration inspectors at the port of entry. The DHS states that, if you returned home with your I-94 or I-94W still in your passport, your departure was not properly recorded. It is your responsibility to provide the DHS sufficient information to properly record your timely departure from the United States. If you do not show a timely departure from the U.S., or if you cannot reasonably prove so when you next seek entry into the U.S., the DHS may conclude you remained in the U.S. beyond your authorized stay. If so, your visa may be cancelled, your entry into the U.S. may be barred and you may be returned immediately to your foreign point of origin. One option in such situation is to visit and surrender the I-94 or I-94W to the American Consulate in the area immediately. Please make it sure that you keep a photo copy (front and rear) and preserve other evidence of departure from the U.S. including the airline itinery, flight ticket, boarding pass, evidence of entry to a foreign country and evidence of stay outside of the U.S.

10/16/2004: House and Senate Out of Session Until 11/16/2004

• There are a number of immigration bills pending in the Congress. However, both the House and the Senate will not return to the session until November 16, 2004, unless they are convened for a special important matter. It is not likely that the Congress will be convened before November 16, 2004 on any immigration matters. Accordingly, until the election is over on November 2 followed by some political events of aftermath, the immigrant community will not hear anything about the legislative activities on immigration issues for one full month. Unlike other period of the Congressional break, this election break will not give a good opportunity for immigrant community to work with the legislators at the level of each local community since the immigration issues will remain a backburner until the result of the election turns out. Much will depend on who will govern after the election at national, state, and local levels. Zzz...........................................................................................................

10/16/2004: Electoral College: States and Votes

• The Presidential election in the U.S. is determined by winning in electoral college in states and not by the popular votes. Please see the weight of your state in this election.

10/15/2004: Legislative Bills to Exempt IMGs from H-1B Annual Cap Upon J-1 Waiver

• Both the House and the Senate took a positive step and passed a separate bill to extend the J-1 waiver programs for the International Medical Graduates and to exempt such physicians from being subject to the H-1B annual cap. The bills have yet to go through the conference committee proceeding, but it is a very positive news for foreign physicians. For the text of these bills, please click here.

10/14/2004: DHS Decided Not to Privatize Immigration Officer Jobs!!

• The Homeland Security Department has halted a controversial public-private competition for roughly 1,300 immigration services jobs. Homeland Security Secretary Tom Ridge told congressional appropriations committee leaders in an Oct. 8 letter that he had decided to cancel the competition. Tom Ridge cancelled the public-private competition to allow Citizenship and Immigration Services more room to focus on reducing a backlog of immigration-related paperwork. The immigration services jobs should never have been classified as commercial on Federal Activities Inventory Reform Act lists in the first place. Reportedly employees at the Vermont service center are in an atmosphere of utter jubilation on the news. Wow! Read on.
  

10/14/2004: USCIS Local District Processing Times of 10/14/2004

• See the home page.

10/13/2004: USCIS Pilot Programs at Local Level and Issue of Unfairness and Arbitrariness

• As people know, the so-called 90-day adjudication of I-130/I-485 one-step application officially started from Dallas USCIS district in April, 2004. In the June AILA Annual Conference of 2004, the CIS Ambudsman first disclosed that he had recommended the USCIS to expand the Pilot Programs to five or six other USCIS districts in July or thereafter. Since then, the AILA has remained quite on the Pilot Program expansion. Neither the USCIS HQ has officially disclosed that it had indeed expanded the program to other districts. However, the reports in various web sites indicate that the expansion of the Pilot Program has been implemented in some other districts. New York District is known to be one of these, but there are also reports that some other districts in the Southern states districts sporadically implement the Pilot Program in varying forms. The expansion of these Pilot Programs is undertaken in a matter of "low key" for whatever reasons.
• The troublesome question is the purpose of the Pilot Program: Whether it was intended to reduce the backlogs in arbitrarily selected districts or to "test" an innovative program to determine whether such program should be implemented nationwide. If the answer is the latter, it is totally justifyable and a welcome move. However, if the answer is the former, no matter whether it was targeted at reducing the number of backlogs at the national level or at the selected local districts level, it creates a problem of arbitrariness of administration and unfairness to the consumers in different districts. Such phenomena should be distinguished from the two situations which are brought about by the inevitable difference from circumstances of either judicial and administrative decisions. One is the different decisions for the same set of facts by federal courts in different jurisdictions located in different states binding the administrative agencies differently. The other is the variance in the USCIS local districts because of the unique circumstances in each district, including the types of customers, available resources, etc. Obviously, 100% uniformity among the local districts in 50 different states is far from reality.
• However, it is a different question if the USCIS arbitrarily selects certain local districts for no identifiable justification or public interest for the benefit of the customers in those districts and discriminate the customers in other districts. Again, it is acceptable if it is a program to temporarily "test" certain plan to implement it nationwide. Such Pilot Program should have an ending date so that people in other districts should not feel arbitrariness and unfairness. Initially, there was unofficial information that the Pilot Program would end at the end of September 2004. Now September is gone and people are well into the mid-October. Apparently the Pilot Programs continues in certain known and unknown districts with no fixed end-date in sight. Rather, unconfirmed sources indicate that it may continue indefinitely until someone decides when to stop. This raises a serious question of arbitrariness and unfairness. At this point, no one knows where the Pilot Program would end up to. Without doubt, it reduced the backlog at the national level and the involved local districts which no one should complain inasmuch as people in other districts are informed as to when they will or will not get identical benefits from the agency. We urge the USCIS HQ to announce its plan to help such cloud removed from the minds of hundreds of thousands of immigrants living in other districts.

10/13/2004: Official Name Change from BCIS to USCIS

• Effective immediately, DHS has decided to change the name of this component from BCIS to U.S. Citizenship and Immigration Services (USCIS). Pursuant to section 872 (a)(2) of the HSA (6 U.S.C. 452(a)(2)), DHS is required to provide notice of the name change to appropriate congresional committees 60 days before the change will be effective. The Appropriate committees were notified of the name change on or before June 23, 2004. Therefore, pursuant to section 872 of the HSA, the change from BCIS to USCIS became official effective August 23, 2004. This Notice informs the public that all official documents and future regulatory actions involving BCIS now will identify USCIS as the applicable DHS component, and all references to BCIS in existing documents and actions henceforth shall be construed as references to USCIS.
• The name has created a lot of confusion not only at the level of general public but also at the level of government itself. Now, there is no longer exising BCIS nor CIS. Only USCIS is the official name of the agency. For the announcement, please click here.

10/13/2004: Actuaries and Plant Pathologists Eligible for TN Status Effective 11/02/2004

• Today, the USCIS released a long-awaited regulation to extend the list of occupations which are eligible for TN status to Actuaries and Plant pathologists effective November 2, 2004. For the details, please read the regulation.

10/13/2004: State Department Changes Passport Procedures for Minor Children

• This interim rule amends the regulation implementing the statutory requirement that both parents consent to issuance of a passport for children under 14 years to require that a statement of consent submitted in support of a minor's application be notarized. The rule will ensure that the individual providing the signature is properly identified. Please click here. for the new rules.
  

10/08/2004: Live Telephone Assistance May be Resumed at NSC Soon

• Regardless of the news on the showdown of privatization of immigration services jobs for the USCIS appropriation bill, the Nebraska Service Center plans to resume a limited "live" telephone assistance, according to the AILA, as early as November 1, 2004. The details have yet to be announced, but it is a positive news in a way. Please stay tuned!

10/08/2004: Transfers of I-130 Relative Immigrant Petitions to CSC and Its Impact

• The Service Centers (NSC and TSC) have been transferring the pending I-130 petitions to the California Service Center in an effort to reduce the backlogs in other proceedings, particularly I-485 applications. AILA has reported that the Nebraska Service Center will complete transfer of all the I-130 petitions to CSC by November 1, 2004. The transfer of I-130 petitions evolves mixed results for the immigrants. Firstly, it certainly raises the expection and hope for the EB-485 application waiters in these Service Centers that the terribly backlogged I-485 processing may see some changes beginning November 2004.
• It, however, can result in some different consequences for some K-3 and K-4 filers. Supposedly, the visa posts can issue K-3 or K-4 visas "pending I-130 petitions by U.S. citizen spouse or parent," but due to the backlog of K-3 or K-4 petition (I-129F) processing at the National Benefits Center, some U.S. citizen spouses or parents start getting I-130 approvals from CSC while his/her I-129F petitions are still caught up at the NBC. The current policy of the visa posts is to allow K-3 or K-4 beneficiaries to opt for the K-3 or K-4 visa application, even after the approval of I-130 petitions, inasmuch as the approved petition has yet to reach the visa posts involved and the alien beneficiaries' K-3 or K-4 visa applications are pending. Accordingly, even if the I-130 approval reaches the National Visa Center (NVC), the K-3 or K-4 visa applicants can still push for the issuance of the K-3 or K-4 visas at the visa posts inasmuch as the NVC has yet to complete the immigrant visa application processing. Since the physical reunification can be the prime most important goal, strategically, those who still wait for approval of I-129F may as well in some cases delay the NVC immigrant visa application processing until I-129F is approved and the K-3 visa is filed and granted. Caveat: Such decision should be made only after seeking legal counsel as it can have a different consequence in an individual case.

10/08/2004: Privatization of Immigration Jobs Faces Final Showdown Between the Congress and the White House

• News reports indicate that Congressional negotiators on Thursday night agreed to retain legislative language designed to block the potential outsourcing of more than 1,300 immigration services jobs at the Homeland Security Department. The language, included in both the House and Senate versions of the department's fiscal 2005 appropriations bill (S. 2537), would bar the department from spending money on a public-private competition for the jobs of immigration information officers, contact representatives and investigative assistants. Despite a veto threat from the White House and recent appeals from Homeland Security Secretary Tom Ridge, conferees decided to leave the provision intact.
• However, as of Friday evening, negotiators had not filed a final conference report, leaving room for changes. Last year, in last-minute negotiations, Bush administration officials persuaded conferees debating the fiscal 2004 Transportation-Treasury appropriations bill to eliminate language perceived as detrimental to the administration's effort to subject thousands of federal jobs to competition. The Office of Management and Budget last month threatened that President Bush would veto Homeland Security's $32 billion 2005 spending package if lawmakers failed to remove the measure blocking funds for the immigration services contest announced by Citizenship and Immigration Services in August 2003. Ridge also urged conferees to reconsider the provision. Read on.

10/07/2004: Minnesota State Labor Certification Processing Times 10/07/04

• RIR=07/01/04, Reg=12/09/03, Temp=C, Faculty=C

10/07/2004: Sudan TPS Designation Extension

• The extension of Sudan's TPS designation is effective November 2, 2004, and will remain in effect until November 2, 2005. The 60-day re-registration period begins October 7, 2004 and will remain in effect until December 6, 2004. The re-designation of Sudan for TPS also is effective November 2, 2004, and will remain in effect until November 2, 2005. The 180-day registration period begins October 7, 2004 and will remain in effect until April 5, 2005.
  

10/07/2004: Burundi TPS Designation Extension

• The extension of Burundi's TPS designation is effective November 2, 2004, and will remain in effect until November 2, 2005. The 60-day re-registration period begins October 7, 2004 and will remain in effect until December 6, 2004.
  

10/06/2004: National Benefits Center Processing Times of 10/06/04

10/06/2004: Vermont Service Center Processing Times of 10/06/04

10/06/2004: Texas Service Center Processing Times of 10/06/04

10/06/2004: California Service Center Processing Times of 10/06/04

10/06/2004: Nebraska Service Center Processing Times of 10/06/04

10/05/2004: DOL HQ Issued Stern Warning Against Any "Expedite" in Labor Certification

• AILA has reported the September 21, 2004 Memorandum by Bill Carlson, Chief of Foreign Labor Certification, DOL to all the Center Directors and Certifying Officers warning that no expedite was and would be permitted in the labor certification processing. The Memo particularly emphasized that the following situations which have been from time to time expedited by the local SWA and Regional COs should be uniformly denied for expedite: (1) Child age-out; (2) Child Medical Treatment; (3) Otain a Home Care Attendant to Care for a Terminally Ill Patients.

10/04/2004: Bad News for DOL Chicago Region Labor Certification Processing

• The DOL Region V in Chicago's RIR processing time has been at standstill for several months but there is no reliable information and explanation for the freeze. Now, we hear some worse news. Unconfirmed sources of information indicate that the Chicago DOL Region is relocating to a new building and they are busy in packing files in boxes. The information also indicates that the current Certifying Officer in Chicago Region retired a couple days ago. Apparently, the Region office is moving into the future National Processing Center location which will be in charge of PERM program. As people know, another National Processing Center will be located in Atlanta, Georgia. DOL HQ has released the information to the AILA that they were recruiting the Certifying Officers for these two Centers. At this time, there is no information about the fate of the current DOL Regions once the PERM is launched and actively operated. This is particularly true with the two Regions in Chicago and Atlanta.
• The new location of the Region V and National Processing Center is known to be: U.S. Department of Labor, Employment and Training Administration, Division of Foreign Labor Certification, 844 North Rush Street, 12th Floor, Chicago, Illinois 60611. The moving may be completed by November 1, 2004, according to the sources.
• Just bad news after bad news! The White House is holding the decision of the PERM regulation indefinitely despite the underlying mandates for the OMB in the relevant Executive Order.

10/03/2004: EB-2 Labor Certification Application and Dissimilar Occupation Exception Rule to Experience Gained with Employer

• Nowadays, the labor certification application is often filed with the requirement of master's degree or alternatively bachelor's degree with 5 years of progressive experience to deal with the potential cutoff date of EB-3 visa numbers. This site discussed previously various issues involving EB-2 filing. Today, we want to discuss the issue of proving 5 years of progressive experience. Under the labor certification rule, any experience gained with the sponsoring employer is not considered "experience" for the purpose of establishing years of experience. Accordingly, in majority of the cases, the alien beneficiary must come up with a proof of the required experience gained with another employers that are not related to the sponsoring employer and prior to being hired by the sponsoring employer. In the majority of cases, the sponsoring employer would not file such application unless the employer is assured that the alien beneficiary had such experience.
• However, there are exceptions to the rule that the experience gained with the sponsoring employer is not considered experience. One of these exceptions is the rule of the experience in "dissimilar" occupations. This "dissimilar rule" is comfortably used to prove experience but not to prove education equivalency. For instance, if one gained with the sponsoring employer in an occupation which is related to the occupation but under the DOT it is a completely different occupation, such prior experience can be taken as a proof of experience for the purpose of proving the "experience" which is required in the labor certification application. Another example is a promotion to a manager position, again which is completely a different classification in the DOT. From the standpoint of the labor certification application, it is thus extremely important that employer states in the application that the employer will accept "such" related occupation. The alternative experience in this context should inherently be related to the job offered but "dissimilar" occupation. Accordingly, unless the labor certification application requires a related occupation experience, the exception rule of dissimilar occupation will fail to establish the qualification requirement for the labor certification application through the experience gained with the sponsoring employer. Besides under the dissimilar experience rule, the only experience gained with the sponsoring employer that can be used in the previous experience "in dissimilar occupation." Thus if the labor certification application required three years of experience and the alien gained two years of experience with the prior employers or with the current sponsoring employer in "dissimilar occupation" and gained additional one year of experience with the occupational classification with the sponsoring employer which is the subject occupation of the labor certification application, the alien is considered to have failed to prove the three-year work experience since part of the experience gained with the sponsoring employer is the same occupation which is the subject of the labor certification application and does not fall under the "dissimilar" occupation exception rule. This point was confirmed by one of the recent labor certification application case which was appealed to the BALCA, the appeal agency of the labor certification application, in September 2004. Additionally, there is another issue which has yet to be revolved. It is whether or not the experience in dissimilar occupation can be used to establish the five year progressive years of experience in the specialty which is the regulatory language, regardless of the same employer or different employer. If the dissimilar occupation is established by years of work experience in the same occupation prior to promotion to a "managerial" position (vertical change of occupations) which is the subject job for the labor certification application, arguably the employer may be able to use the dissimilar rule. The problem involves a situation which involves horizontal change of occupations at the same level in the responsibility which are considered "related" but "dissimilar." For instance, the change from process engineer or industrial engineer to manufacturing engineer. Conceptually, the case will face a problem to use the dissimilar rule in this context. The issue has yet to be resolved.

10/03/2004: Advisory for Invalid Immigration Forms After 09/30/2004

• There are a number of immigration forms which are good only through September 30, 2004. The people who use immigration forms which have not been up dated or use the paper forms in self-representation should double check the validity of the forms they will use after Monday, October 4, 2004. Check the USCIS site.

10/02/2004: Asylee I-485 Quota for FY 2005 to Witness Some Relief

• In ordering the allocation of 70,000 admission of refugees for FY 2005 (10/01/04-09/30/05), the President decided that an additional 10,000 refugee admissions numbers shall be made available during FY 2005 for the adjustment to permanent resident status under section 209(b) of the Immigration and Nationality Act (8 U.S.C. 1159(b)) of aliens who have been granted asylum in the United States under section 208 of the Act (8 U.S.C. 1158). Currently, the asylees are in a long waiting line lasting years and years to apply for I-485 based on the approved political asylum applications. Additing 10,000 number in this fiscal year will help some of these waiters to file adjustment of status to a lawful permanent residents this year. Good Deal, indeed! For the President's decision, please click here.

10/02/2004: Bush administration is backing off plans to require hospitals to ask emergency room patients their immigration status

• News report indicates that the Bush Administration is backing off its plants to require hospitals to ask ER patients their immigrant status and intends to announce an alternative plan soon. The backed-off plan faced a controversy because it would lead illegal aliens not to seek emergency medial attention for fear of immigration enforcement jeopardizing human lives.

10/01/2004: FY 2005 H-1B Cap Reached 10/01/2004

• USCIS has just announced that the fiscal year 2005 H-1B cap reached at the end of 10/01/2004, Friday and unless the new cases were received within October 1, 2004, the new petitions which were subject to the cap would be rejected and returned to the petitioners. Accordingly, the petitioners who shipped out the petitions by mail or overnight delivery services on Friday, October 1, 2004 will receive rejection as the petition will not reach the Service Center until October 4, 2004. Postmark is not enough.
• Those cases which are subject to the cap will not be available for H-1B until October 1, 2005. Please click here for the announcement.
• There is a legislative bill pending in the Congress to add H-1B cap numbers but the chance of this bill passing the Congress before the election is slim as the Congress is scheduled to go into recess at the end of next week. Besides, the bill would extend the benefit only to those who earned a master's degree from a higher learning institution in the United States. Please stay tuned to this web site for the development of the legislative action.

10/01/2004: Out of Status Asylum Applicant in Immigration Court Proceeding Not Eligible for I-485 under "Technical Reasons" Rule

• The Board of Immigration Appeals ruled in In re L-K-, 23 I & N. 668 (BIA 2004) dated September 1, 2004 that the "technical reasons" exception to the ineligiblity for I-485 application does not apply to those who filed a political asylum and whose nonimmigrant status expired pending such asylum application but whose asylum applications was referred to the Immigration Court proceedings before the alien filed I-485 application. The BIA note is as follows:
• Under section 245(c)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1255(c)(2) (2000), an alien who has failed to continuously maintain a lawful status since entry into the United States, other than through no fault of his own or for technical reasons, is ineligible for adjustment of status under section 245(a) of the Act. A failure to maintain lawful status is not “for technical reasons” within the meaning of section 245(c)(2) of the Act and the applicable regulations at 8 C.F.R. § 1245.1(d)(2)(ii) (2004), where the alien filed an asylum application while in lawful nonimmigrant status, the nonimmigrant status subsequently expired, and the asylum application was referred to the Immigration Court prior to the time the alien applied for adjustment of status.
  

10/01/2004: Special Rules and Procedures for Military Naturalization

10/01/2004: DOL Notice of FY 2005 H-2B Cap Filing Guidelines

• On March 10, 2004, the USCIS announced receiving sufficient H-2B petitions to reach the FY 2004 cap of 66,000. In light of USCIS' announcement, ETA published a Federal Register notice on May 13, 2004 to provide guidance to the public regarding ETA's processing of H-2B applications that will count against the FY 2005 cap. DOL has continued to process alien labor certification applications since March 10, 2004, and many employers are in possession of a valid labor certification that has not been accepted by USCIS for processing. USCIS has advised that their practice has been to accept the H-2B labor certifications with periods of employment that cross fiscal years so long as some portion of the employment period remains. Employers with a valid H-2B labor certification with a date of need prior to October 1, 2004, but that includes periods of planned employment after October 1, 2004, are encouraged to file H-2B labor certifications with CIS if some portion of the employment period remains. ETA will continue to process new H-2B applications with dates of need within FY 2005 (that is, starting October 1, 2004 or later). For these new applications, employers must continue to follow existing filing rules, including regarding the timing of filing with the State Workforce Agency (SWA). Thus, employers must file a new H-2B application with the appropriate SWA no earlier than 120 days before the date of need and at least 60 days before the date of need.
• This notice is published on October 1, 2004. Read on.
  

10/01/2004: USCIS Corrects Error on Liberian TPS Termination and Redesignation

• The USCIS is correcting a notice that was published in the Federal Register on August 25, 2004 at 69 FR 52297 which announced the termination and re-designation of TPS for nationals of Liberia. In the supplemental information to the notice, USCIS inadvertently misstated that the termination would be effective, and benefits obtained through the Liberia TPS designation will expire, on October 1, 2004. However, under section 244(b)(3)(B) of the Immigration and Nationality Act (Act), a TPS designation may be terminated no earlier than 60 days after publication of the termination notice in the Federal Register. Thus persons granted TPS retain that status and employment authorization until the effective date of termination unless their TPS is withdrawn before then. Therefore, USCIS is notifying affected Liberians and their employers that termination of the Liberian TPS designation is effective October 24, 2004, sixty (60) days after the August 25, 2004 termination notice. Accordingly, USCIS is extending until October 24, 2004 the validity of EAD
  issued to Liberian TPS beneficiaries that bear an expiration date of October 1, 2004. The effective date of the re-designation remains October 1, 2004. For the full text of the rule, please click here.
  

09/30/2004: Presidential Document Authorizing Rescission of Iraq Designation of State Sponsor of Terrorism

09/30/2004: Biometric Collection Advisory for Visa Waiver Program Air Travellers and 50 Most Traffic Land-Border POE Travellers

• From today, these travellers are subject to the biometric identifier collection under US-VISIT Program at the time of entry to the U.S. at the airports or land border ports of entry. Those who are removable because of the criminal record or other grounds will be identified through the facial imaging or index finger scanning and subject to the immigration law enforcement actions. Other nonimmigrant visa travellers have been going through this process for a while.

09/29/2004: DV-2006 Immigration Lottery Instructions

• Entries must be submitted electronically between November 5, 2004, Friday, and January 7, 2005, Friday.

09/29/2004: F-1 Student Changed to H-1B Effective 10/01/2004 and Availability of Keeping F-1 Status Without Taking H-1 Status

• There are a number of F-1 nonimmigrants who attained change of status to H-1B effective October 1, 2004. The question remains what happens if he/she changes his/her mind and not to take H-1B status and decide to remain in F-1 status. According to NAFSA, it is the USCIS position that in order for such alien to reinstate the F-1 status, he/she should file and obtain approval of application for change of nonimmigrant status from H-1B to F-1 even if he/she has yet to start H-1B status in the future date of October 1, 2004. Accordingly, the alien will violate the nonimmigrant status if he/she does not start H-1B employment unless the change of status to F-1 is filed and approved.
• This has been the view of the Nebraska Service Center all long. The NSC opined long ago that if an OPT student attained change of status to H-1B and failed to commence the H-1B employment, it constituted a violation of nonimmigrant status. Watch out!! For the NAFSA report, please click here.

09/29/2004: Voice & Power of Non-Citizens in the Election Process

• In the elections, only citizens of the United States can vote and people often misunderstand that those who do not have a right to vote do not have a voice or power. Absolutely false!! Those who do no have a right to vote carry with them the same "mouth" and the same "pen" which the citizens possess. Often, people misunderstand that the only way the immigrants participate in the political process is to contact political figures or organizations to address their views. That ain't true. Any one can talk to others, particularly the citizens who have a right to vote, about the candidates and the parties. The talk does not have to invove immigration issues. They can talk how the candidates are bad or good. They can talk how certain candidates affect the lives of the voter. When the election is so close like this year, one vote counts. It is not too late. This reporter encourages all the immigrants and nonimmigrants and their relatives and friends start talking to others (including citizens and noncitizens) about the candidates and demonstrate their voices and power. It can be more powerful than ballot. Come to think of the impact of one talk. Thanks to the compounding forces, one talk can affect tens and hundreds and thounsands of people, if every one start talking. The talk does not have to be a public speech. It can be a chat in the living room, restaurants, parks, and anywhere. Cyber space is also a powerful tool in this cyberage like e-mails and internets. Let other people know why certain candidate is bad for the people. Let other people know who these candidates are. Remember that we still have 34 days to go!!! Each of you can make a difference in the outcome of this election. It is invisible all right, but can be more powerful than the surveys.

09/29/2004: Come November 2, We Need to Move on Immigration Legislation and Rule-Making Activities

• Pending November 2 national election, practically all the pro-immigration activities of the government including the Executive Branch and Legislative Branch are at standstill. All the legislative bills such as DREAM Act are buried in the Congress and practically all the rule-making activities of the OMB are at standstill when it comes to the rules that immigrant community has been anxiously awaiting such as PERM Program. Additionally, the agencies including the DHS, DOL, and DOS remain very low key when it comes to the changes in policies and practices to improve the lives of millions of immigrants. Amazingly, both the Republicans and the Democrats appear to agree to one thing at this extremely polarized election season: "Stay Away from That Damn Immigration!" Hmmm...........................................................................................................................!

09/29/2004: USCIS Seeks OMB Emergency Approval of I-129 Form Change

• USCIS is requesting OMB to approve the changed I-129 form on emergency review basis. Because of the filing fee changes, most of the immigration forms are not up to date, but it is not known what other changes the agency intends to make for the form.
• I-129 form is used by employment-based nonimmigrant visa applicants such as H-1B, H-1C, H-2B, H-3, L-1, O-1, P-1, P3, Q-1, E-1, E-2, R-1, TN-1. The agency estimates that annually 368,948 petitioners will be used seeking such visa status and an average of 2.75 hours will be spent per the petition, which add up to 998,357 hours per year. It ain't interesting? Read on.

09/28/2004: Immigration Statistics as of July 30, 2004 and Reported 08/31/2004

09/28/2004: 212(c) Relief for Criminal Convict Permanent Residents Effective 10/28/2004

• EOIR released a final rule on the old 212(c) relief from deportation for permanent residents of certain criminal conviction prior to April 1, 1997. This final rule adopts without substantial change the proposed rule to establish procedures for lawful permanent residents with certain criminal convictions arising from plea agreements reached prior
  to a verdict at trial to apply for relief from deportation or removal pursuant to former section 212(c) of the Immigration and Nationality Act. The final rule also sets forth procedures and deadlines for filing motions to seek such relief before an immigration judge or the Board of Immigration Appeals for eligible aliens currently in proceedings or under final orders of deportation or removal.
• The rule takes effect on October 28, 2004, a month from today. Motion to Reopen should be filed within 180 days from October 28, 2004. For the full text of the rule, please click here.
  

09/28/2004: Becoming a U.S. Citizen: USCIS General Guidance for Permanent Residents

• This overview of the