THE OH LAW FIRM

Dedicated Professionals in Immigration Law for Over 24 Years

Reported by Matthew Oh, Attorney.

(03/01/05 - 07/31/05)

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[06/01/2008 - Present]/Archive XVII[03/31/2008 - 05/31/2008]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

07/30/2005: Departure of Current Chief of Division of Foreign Labor Certification in October and Open Question of Its Impact

• Whenever there is a change in the leadership, there comes along a process of review of the ongoing policy and practice, and depending on the motive of the move, one cannot rule out two impacts. One is potential change of policies, rules, and practices. The other is delay in the rule-making process pending such review and formation of new policies. This is illustrated in the rule-making delays in PERM final regulation because of appointment of Dr. William Carlson as the new Chief of DFLC at the final stage of final regulation enactment.
• The DOL released the leadership change news yesterday which will take effect in October. The DOL has decided to let the boss of the Chief of DFLC, Administrator of the Office of National Programs, to take over the function beginning from October. DFLC is a division of the Office of National Programs in the ETA organizational structure. It is unknown at this time whether it will be a temporary measure or permanent removal of the post of Chief of DFLC in the organizational structure within the Office of National Programs.
• Obviously, there will be some changes in the direction, management, and policies of the foreign labor certification programs down the road once the leadership change takes place.

07/30/2005: DOL's Proposed Rule of Elimination of LC Substitution is Likely Released Next Month

• As we reported earlier, the DOL and USCIS are in the process of rule making to eliminate the permanent labor certification substitution and 45-day validity cap on the certified labor certification application. The proposed rule is likely to be published in August. However, we cannot rule out the delay as affected by change in the Chief of Division of Foreign Labor Certification in DOL. Please stay tuned.

07/30/2005: The Filing Fees for Immigration Appeal and Motion to Reopen/Reconsider to Increase to $385 Effective October 2005

• The USCIS will release a "final" rule in the federal register next month announcing increase of the filing fees for appeals other than BIA appeal and any MOA/MOR from the current $110 to $385 effective October 2005. After a 90-day review of this rule, the OMB approved this rule on July 16, 2005 and the USCIS is scheduled to publish this rule in the federal register shortly. Please stay tuned.

07/29/2005: Somalian TPS Designation Extension for One Year

• As we reported earlier, the USCIS today released a notice in the federal register extending for one year the designation of the TPS for the Somalians. Please review the following for the details:
  • Federal Register Notice of 07/29/2005
  • USCIS Announcement of 07/28/2005
  • USCIS Q&A of 07/28/2005

07/29/2005: Immigration Reform Likely One of Hot Legislative Agenda When Congress Returns After August Recess

• Immigration reform focusing on the legalization of some illegal aliens witnessed a new turn in a positive way today by the House Speaker announcing that the immigration reform legislation will be one of the most important items next to the top agenda bills when the House returns to the Hill after the August recess. This is indeed a positive news along with the parallel move in the Senate, McCain-Kennedy bill. Read on.

07/29/2005: Leadership Changes in Foreign Labor Certification Division

• U.S. Department of Labor has announced that Dr. William Carlson, the current Chief of the Division of Foreign Labor Certification (DFLC), will be reassigned to the post of Region I (Boston) Administrator and the DFLC will be taken over by the current Administrator of the Office of National Programs effective October 2005.

07/29/2005: Muddy Immigration Reform Legislative Proposals

• Report indicates that there are currently three broad schools of legislative movements when it comes to the immigration reform legislation: One is the President's proposal to focus on the Temporary Guest Worker program without the earned adjustment of permanent resident status option. The second is the bill that focuses on the Temporary Guest Worker program and the earned legalization option. The third is the bills that focus on the issue of border security and enfocement with or without the relief of Temporary Guest Workers. At this time, the McCain-Kennedy bill stands on the left end of the spectrum and the Cornyn-Kyl on the right end of the spectrum.
• There was a report that the President asked the Republican legislators a couple of days ago to pass an immigration reforrm legislation before the end of this summer focusing on his temporary guest worker program, but the Republicans in the Congress reportedly disagree with the President both in timing and focus of the legislation. It appears that the Republican leaders in the Congress are interested more in security and enforcement legislation than in any form of legalization of illegal aliens in the form of teporary guest worker or earned adjustment to permanent residents. Additionally, in timing of the legislation, it appears as though that they do not think the President's temporary guest worker program is a priority in their legislative agenda.
• Anti-immigration forces including the notorious Tancredo of Colorado wants the Congress to totally focus on the enforcement legislation without any relief of the illegal aliens, but it appears that this is a minority extreme far right group. Additionally, any proposals that will totally focus on the legalization of illegal aliens in one form or another may be taken the other extreme far left minority group and appear to be unrealistic under the current political environment. Under the circumstances, the McCain-Kenndy bill is the best option for the immigrant community. The mid-term national election for the Congress in November 2006 has yet to be heated up and until it is heated up, the McCain-Kenndy bill will have to fight an uphill battle. This bill demands a strong support from pro-immigration forces and organized immigrant community. We urge the immigrant community to start organizing and mobiling their forces to support this bill.

07/28/2005: CAFTA and No Changes in Immigration Law

• Yesterday, the House passed the CAFTA (Central American Free Trade Agreement) and the President is expected to sign this bill swiftly. However, unlike the FTA with Chile and Singapore, this Regional Free Trade Agreement covering Costa Rica, El Salvador, Guatemara, Honduras, Nicaragua, Dominican Republic "specifically and intentionally" excluded any agreement on the immigration and entry-exit between the trade nations and the CAFTA will have no affect whatsoever on temporary entry visa and immigration for these nationals. Read on.

07/27/2005: USCIS Acting Deputy Director, Robert Divine, Filling-In Shoes of Vacant USCIS Director

• USCIS has announced that Mr. Robert Divine, former General Counsel of USCIS, is filling-in the position of vacant USCIS Director as the Acting Deputy Director effective July 25, 2005. The USCIS Director, Mr. Aguirre, resigned the Director post to take the ambassador to Spain and the Deputy Director also resigned the post. The announcement states that Mr. Divine will be in charge of the USCIS until the position of the USCIS Director is appointed. Stay tuned.

07/27/2005: Somalia TPS Designation Extension Notice Due to be Published Day After Tomorrow

• The USCIS is scheduled to publish this notice day after tomorrow, 07/29/2005, extending the TPS designation for the Somalians. Please stay tuned.

07/27/2005: Australian E-3 Specialty Occupation Visa Regulation Under OMB Review

• The State Department submitted this regulation to the White House for OMB review on July 19, 2005. This regulation will be enacted in the form of a "final" rule, meaning that as soon as the OMB clears the rule and the State Department publishes it, the rule will take effect. The U.S. Department of Labor has already published a regulation designating agency to process the Labor Attestation for the E-3 visas. Please stay tuned to this web site for the development of E-3 visa rule making.

07/23/2005: 10-Year Good Moral Charater Requirement for Cancellation of Removal Counted Backward from Date of "Final" Decision

• On July 21, 2005, the Board of Immigration Appeals handed down an important decision which would positively affect the aliens in removal proceedings as related to establishment of "Good Moral Character for 10 Years" as a threshold requirement. In Matter of Ortega-Cabrera, 23 I&N 793 (BIA 2005), Interim Decision 3516 (July 21, 2005), the BIA ruled that the requirement for establishment of "good moral character" should be counted from the date of "final" decision of the Immigration Judge or if appealed, the date of BIA decision, backward for 10 years. Accordingly, even though an alien was involved in certain activities which affected moral character negatively at the time of issuance of Notice to Appear by the DHS, inasmuch as the negative activities took place beyond the ten year period time at the time the Immigration Judge made a decision or if appealed, at the time the BIA made a final decision, the alien was held to be eligible for the relief of cancellation of removal on the specific issue of the good moral requirement. This is an important decision for the immigration court practitioners.

07/20/2005: Service Centers 07/20/05 Processing Times

• See our homepage.

07/20/2005: Planning for Immigration of Step Children of a U.S. Citizen [Retracted for Errors]

07/19/2005: Preliminary Results of DV-2006 Immigration Lottery

• Approximately 90,000 applicants have been registered and notified and may now make an application for an immigrant visa. Applicants registered for the DV-2005 program were selected at random from over 6.3 million qualified entries received during the 60-day application period that ran from 12:00 AM on November 5, 2004, until midnight, January 7, 2005.

07/19/2005: August 2005 Visa Bulletin

• EB-2 is current in August, but it predicts that in September, cut-off dates may have to be established most likely for India and China.

07/19/2005: Permanent and Temporary LC Filing Jurisdictions Changes Effective 07/19/2005

• DFLC published a federal register notice today changing the temporary labor certifications (H visas) filing locations, E-3 procedures for Australians, and streamlining of PERM and Backlog applications procedures, etc., effectively immediately. Read the notice.
• Temporary labor certification applications, including H-2A, H-2B, and other attestations for H-1 categories are anticipated to change from two-tier system to one-tier system by DOL's phasing out of procedures other than post audit procedures, and pending these upcoming changes, DOL is temporarily transferring the processing procedure to the National Processing Centers in Chicago and Atlanta taking it away from the ETA Regional Offices effective immediately.
• This notice also provides the procedure for the new E-3 visa labor attestation procedures for the Australians.
• For the permanent labor certification systems, the notice has pull together the information that have been sporadically released into a manageable procedural guidance.
• It appears that this change is related to the DOL recent decisions to streamline all the foreign labor certification functions, including temporary and permanent, into the DFLC under the management and control of Dr. William Carlson and to stip off these functions from the Regions. This is being materialized thanks to transformation of the processing procedures into electronical filing and processing.

07/18/2005: First Entry with 10-Fingerprint, Subsequent Entry with 2-Fingerprint

• The U.S. Senate passed the DHS appropriation bills. Report indicates that this bill includes a program which will require first-time US-VISIT participants to give 10 fingerprints as a biometric identifier and on their subsequent visits, they can give only two fingerprints as they do now. Even though it may be taken digitally, it sounds very messy. Yakki!

07/18/2005: Upcoming USCIS Director Replacement and Its Impact

• Whenever there is a change with the head of an organization, understandably certain changes come with it. The President nominated the current Director, Mr. Aguirre, to a diplomatic position and forwarded the name to the U.S. Senate for confirmation quite sometimes ago. Even though the Senate confirmation is assured, it has yet to happen. AILA has reported that pending the confirmation, Mr. Aguirre resigned the post of USCIS Director.
• Lately, the USCIS has been de facto directed and managed by Mr. William Yates, Associate Director of Operations, CIS, and Mr. Aguirre remained a ceremonial head of the agency. Recent appointment of Mr. Robert Divine to the General Counsel of the USCIS formed a dream team of leadership in the USCIS for the immigrant community, swifting the direction of the wind from the restrictionist policies to liberal policies.
• Coming July 27, 2005, unless the President names a new Director, Mr. Robert Divine is known to be the leader next in line to take over the USCIS as Acting Director and the immigrant community hopes that Mr. Divine continues his philosophy and liberal interpretation of rules and policies without any changes. Rumor goes that Mr. Yates may retire. This website admired his expertise in immigration laws and balanced interpretation and management of policies. Please stay tuned to this website for the upcoming leadership changes with the USCIS.

07/17/2005: Long Overdue Release of Next Round of PERM FAQ

• At the AILA National Conference in Salt Lake City last month, DFLC dislosed that it had received 40,000 additional cases before the launch of the PERM program on March 28, 2005. Since there had been no adjudication of any labor certification cases since the last quarter of calendar year 2004, the total backlog on March 28, 2005 exceeded probably much more than 360,000, even upto 400,000! It also reported that the clerical data input would not be completed until the end of Summer.
• Dr. William Carlson, Chief of the Division of Foreign Labor Certification (DFLC), admitted that they were feeling a pressure to reduce the backlog cases through some changes in the PERM program. One was to improve the PERM processing to remove the fear of refiling by the backlog applicants. The other was to revisit and redefine "identical" refiling. Currently there are many stumbling blocks to the conversion or refiling. One is the aggravating visa number retrogression and importance of priority dates which the alien beneficiary will have to hold onto. Second is the extremely high risk of denial of refiling under the PERM program which is associated with the decision matrix and other inherent problems in the PERM program that would result in loss of priority date. Third is the definition of "identical" in refiling which will kill the pending backlog applications and the associated priority dates.
• Dr. Carlson thus initiated the job of fixing of decision matrix problem. However, the result of recent change in decision matrix has yet to be seen. This is particularly true after the release of PERM denial advisory on July 15, 2005. It appears that rerunning of denials into other processing phases may not result in or promise approval of the cases even if the current screen shows Sponsorship or Final Review. As for the revisit and redefinition of "identical," Dr. Carlson was supposed to release the change in the next Round of FAQ. Its release is somewhat long overdue. Thus the two stumbling blocks remain intact in that even after fix of decision matrix and rerunning of the denials, the risk of potential denials of the PERM cases remains very high and there are no changes in potential risk of losing priority dates by refiling under the PERM program because of the definition of "identical."
• It is urged that Dr. Carlson speeds up the improvement of PERM system removing the high risk of denials and loss of priority dates and releases FAQ as soon as possible to revisit and redefine "identical" that could reduce the risk of the loss of priority dates. The sooner, the better. Unless these twin engines are heated up, the political backfire relating to over 360,000 or even 400,000 backlog cases will present a serious challenge to the leaders of the DOL. Soon, DOL intends to introduce a legislation to collect filing fees for the labor certification applications, without which the foreign labor certification system is probably destined to collapse financially. Question is how much political support the DOL would receive unless they act quickly to deal with the current backlog problems and the seriously flawed new labor certification system, named PERM.

07/16/2005: Confusing Proposed Organization Chart of DHS

• The recently released proposed organization chart of the U.S. Department of Homeland Security raises a serious confusion and deviation from the conventional rule of an organization, including the government, distinguishing between the "line" function and the "staff" function. It is astonishing to see in the proposed organization chart that (1) there is no distinction between these functions (horizontally) and (2) every division within the organization is placed under the direct command of the Secretary of the DHS through the Deputy Secretary (vertically). Horizontally, the structure of the agency should have distinguished main body of structure of the agency performing the line function from the structure of the agency that does not have a power and authority to command the units in the line function other than advisory function. The proposed new organizational structure mixed together the conventional staff functions and the conventional line functions as though they are under the same line of command with the identical power and authority of the line function units. More importantly, there is no line of command established in this chart among Under Secretaries, Associate Secretaries, Assistant Secretaries, Directors, or Commissioners of the Bureaus. All these leadership positions are placed under the direct command of the Secretary of DHS through the Deputy Secretary. The power and authority are so polarized into the Secretary without appropriate delegations to subordinate leaders like Under Secretaries, Assistant Secretaries, etc. that the proposed DHS chart has the shape of a giant Octopus." See the proposed chart.

07/16/2005: Refuted Rumor of EB-1, EB-2, & EB-3 Visa Number Unavailability in August Visa Bulletin

• The August 2005 Visa Bulletin has yet to be released but there was a wild rumor that even EB-1 and EB-2 visa number would become unavailable effective August 1, 2005. AILA was however informed by the State Department that "it ain't true." It is a matter of a day or two that the immigrant community will get the August Visa Bulletin, but this rumor has thrown a fuel on the dry grass and spread like a wild forest fire for the last few days. Calm down!

07/16/2005: Amended DFLC Notice on PERM Denials and Advisory

• AILA has reported changes in the DFLC's PERM Denials Advisory which we posted yesterday. Accordingly, people should ignore our previous notice and follow the amended notice.
• The amended notice indicates that:
  • People can ignore the denial notice only if they received such denial notice dated earlier than June 24, 2005. These cases are currently processed for full review and people will receive another denial notice in the future, if it is deniable.
  • Those who received a denial notice dated between June 24, 2005 and July 14, 2005 (20-day period of time) can ignore the denial notice only if the screen now shows a sponsorship, audit review, final review, or other processing status. They will receive a letter either denying or approvding or audit in the future.
  • If the screen still shows the status as denied, or if the application was filed by mail, they should wait at least two week before considerng an appeal as they are expected to receive within the two-week period of time another, corrected denial notice, if the case is deniable. Once they receive such corrected denial letter, they will then have 60 days to file an appeal of such denial which was made between June 24, 2005 and July 15, 2005, despite the PERM regulation that requires an appeal within 30 days of denial decision.
• Hew, Amen!

07/15/2005: DFLC Advises to Ignore Pre-07/15/2005 PERM Denials (Ignore this Notice. Amended)

• AILA has reported that it received a notice from the DFLC to advise that those PERM online filers whose online filing had been denied until yesterday should ignore such denials and should revisit the online status site to check the DFLC's active processing of their cases. For the full report of AILA, please click here.

07/13/2005: New Organization Chart of Department of Homeland Security

• The DHS has released the new proposed organization chart. Under the new organization chart, USCIS, ICE, and CBP will be placed under the direct command of the Secretary of DHS. Currently, USCIS is under the direct command of Deputy Secretary, and ICE and CBP are under the command of Undersecretary of Transportation and Boarder Security. This Undersecretary is under the command of the Deputy Secretary. Accordingly, ICE and CBP remain two separate units. For the announcement, please click here.

07/13/2005: Chertoff Proposes to Place BICE and BCBP under his Direct Command

• The Homeland Security Secretary is proposing to remove the Undersecretary position that has been overseeing TSA, ICE, and CBP and place them under his direct command. This is a surprise in that there has been a strong political move in and outside of the DHS to merge ICE and CBP. We have yet to see the details to find out whether change of command also incorporates reshuffling of ICE and CBP into a streamlined single arm. Please stay tuned.

07/13/2005: McCain-Kennedy and Cornyn-Kyl Set to Duel for Immigration Reform in Senate Judiciary Hearing 07/27/2005

• Report indicates that the Senate Judiciary Committee has marked a hearing to hear these two Immigration Reform bills on July 27, 2005. Immigrant community supports the McCain-Kennedy bill that grants earned adjustment of status to illegal aliens over the Cornyn-Kyl bill that focuses on temporary guest worker program without the adjustment of status relief within the country. Let's see who is going to win in this duel!

07/13/2005: Discord on Recapture of H-1B Time Issue Within USCIS

• There have been some visible discords between the USCIS and the AAO from time to time as related to the AAO's decisions when it comes to non-precedent decisions of the AAO. These discords sometimes work for the immigrants' interest and sometimes work against the immigrants' interest. The illustration of the former is the AAO's decision on the recapture of H-1B time for the trip outside of the U.S. which was handed down in December 2004 and reported by this site last month. The AAO focused on the "admission" as the guiding principle for determination of this issue, while the legacy INS focused on the "interruption of H-1B employment" regardless of the "admission" issue for determination of this issue. The AAO decision relied on plain language of the regulation, while the legacy INS opinion was derived from its own interpretation of regulation ignoring the plain language in the law.
• We understand that the adjudicators in the USCIS field offices are currently confused on the standards not knowing which standard they should follow. It is indeed embarassing that the decisions, albeit not precedent," of an appeal unit are ignored by the field offices within the USCIS. We urge the USCIS leadership, particularly its general counsel, to resolve such conflicts as soon as possible so that the field offices are not confused and the USCIS is not taken as an agency that lacks a mechanism to resolve such conflicts within the agency.

07/12/2005: Deadline for 2005 USMLE (TM) Applications for International Medical Graduates

• Today, the ECFMG released the following newsletter for IMGs pursuing graduate medical education in the U.S.:
• DEADLINE FOR 2005 USMLE APPLICATIONS: If you are applying for a USMLE examination, refer to the guidelines below for completing your 2005 application in time for it to be processed. All dates are tentative and are subject to change. You should monitor the ECFMG website at www.ecfmg.org for updates on the deadline for 2005 applications. The 2006 USMLE application materials are expected to be available on the ECFMG website at the end of August 2005. You should monitor the ECFMG website for updates on the availability of the 2006 materials.
• FOR STEP 1 AND STEP 2 CK: The last 2005 eligibility period for Step 1 and Step 2 CK is October 2005 - December 2005. The deadline for ECFMG's receipt of complete
  applications for this eligibility period is August 31, 2005. To apply on-line using ECFMG's Interactive Web Application (IWA) for the October 2005 - December 2005 eligibility period, you should submit the on-line portion of the application as soon as possible. To complete your2005 application, your completed Certification Statement (Form 183) must be received at ECFMG no later than August 31, 2005. Please note that this deadline may be earlier than the deadline indicated in the Instructions for the Certification Statement and in correspondence you may receive from ECFMG. When the 2006 USMLE application materials become available through IWA, you will no longer be able to work on the on-line portion of an application for the October 2005 - December 2005 eligibility period. This transition is likely to occur in late August 2005. If you submit a paper Step 1/Step 2 CK application for the October 2005 - December 2005 eligibility period, your application must be received by ECFMG no later than August 31, 2005. If your 2005 Step 1 / Step 2 CK application is received after August 31, 2005, it will be rejected, and you will be required to reapply using the 2006 application materials. If your 2005 application is rejected, any payment received with your 2005 application will be credited to your ECFMG financial account. The first eligibility period for which you can apply using the 2006 materials is the November 2005 - January 2006 eligibility period.
• FOR STEP 2 CS: Applicants who are registered for Step 2 CS are assigned a twelve-month eligibility period that begins on the date that their registration information is entered into the Step 2 CS scheduling system. Typically, this is the same date that the registration process is completed. If you use IWA and submit the on-line portion of the Step 2 CS application before the transition to the 2006 application materials, your completed Certification Statement (Form 183) must be received at ECFMG no later than August 31, 2005 to complete your 2005 application. Please note that this deadline may be earlier than the deadline indicated in the Instructions for the Certification Statement and in correspondence you may receive from ECFMG. If you submit a paper 2005 application for Step 2 CS, it must be received at ECFMG no later than August 31, 2005. If your 2005 Step 2 CS application is received at ECFMG after August 31, 2005, it will be rejected, and you will be required to reapply using the 2006 application materials. In this case, your Step 2 CS eligibility period will be assigned, as described above, after you submit a 2006 application and the registration process for your 2006 application is complete. If your 2005 application is rejected, any payment received with your 2005 application will be credited to your ECFMG financialaccount.

07/12/2005: FY 2005 U.S. Master Degree H-1B Usage - 8069 As of 06/29/2005

• The USCIS reports today that the USCIS had received only 8069 H-1 petitions for FY 2005 U.S. Master or higher degree cases. Total annual number available is 20,000. It is astonishing that the special H-1B numbers for U.S. educated aliens are used at such a low rate. Read on.

07/10/2005: 232,000 Monster Registered Applicants for Jobs in USCIS, CBP, and ICE

• Report indicates that Monster alone has 232,000 registered applicants to three DHS divisions: CBP, U.S. Immigration and Customs Enforcement, and U.S. Citizenship and Immigration Services. Wow! It sounds DHS is a popular employer for the U.S. citizen job seekers?! Most of these jobs are not opened to the immigrants. Read on.

07/09/2005: USCIS/DOL Proposed 45-Day Validity Cap for Certified Labor Certification Application and Related Problems

• The forthcoming DOL and USCIS rules to eliminate the substitution of alien beneficiaries for the certified labor certification applications involve more than simple elimination of the substitutitons. The agencies are also proposing to put a cap on the period of validity of the certified labor certification application at 45 days. This cap raises two issues, among others. Firstly, most of the employers and practitioners have experienced from time to time failure of receiving the hard-copy certifications from the DOL in the mail for a number of reasons, including the change of address of the employers or their representatives. The DOL's mailroom backlog may also present a problem. Indeed, 45-day period may turn out to be a very short period of time for some filers. Secondly, and more importantly, the validity cap will deprive the employers of the opportunity to refile I-140 petitions for the same alien beneficiary once the petition is denied and 45-day lapsed for the underlying certified labor certification application. Currently, the certified labor certification application remains valid "indefinitely," and employers from time to time refile I-140 petition after the initial I-140 petition has been denied once the employers can develop evidence to overcome whatever issues involved. Sometimes, it can take a prolonged period of time to seek refiling of I-140 petition using the certified labor certification application. Unless the agencies provide certain special rules accomodating such exceptional circumstanstance, the opportunities for refiling of another I-140 petition based on the certified labor certification application may turn into a history. Thirdly, it is likely that once the labor certification becomes invalid because of the 45-day validity cap, the alien beneficiaries may lose their precious priority dates!
• Employers and practitioners are urged to send in their comments on this part of the proposed regulation to assure the right to preservation of the priority dates and to refiling of I-140 petitions regardless of the 45-day cap.

07/08/2005: Agenda of Elimination of Labor Certification Sustitutions

• As we reported earlier, the DOL and USCIS have agreed to eliminate the labor certification alien beneficiary substitutions and to limit the validity of the approved labor certification to 45 days from the date of the certification.
• Such action of the agencies require a rule-making process. The DOL has already acted on it by seeking the OMB review of the proposed regulation on May 12, 2005. Since the review of the proposed regulation usually takes upto 90 days, it may still take a month before this review is completed and/or published in the federal register. A proposed regulation must give a comment period for the proposals which can range from 30 days to 90 days, most likely 60 days. After the comment period is over, DOL should draft an interim or final rule reflecting the comments and seek the OMB review again for the interim or final rule, which will again take from 30 days to 90 days. Once the review is completed, then DOL may be ready to publish and implement the interim or final rule. Considering the rule making process, it may not be before the end of the year that this drastic action to eliminate the conventional labor certification rule allowing substitution of the certified labor certification application alien beneficiaries.
• This prediction is also supported by the USCIS agenda of the rule-making for this change. It currently has an agenda to publish the USCIS proposed rule in September 2005 with the 60-day comment period, ending in November 2005. Should the USCIS adhere to this agenda, it is likely that the USCIS would seek the OMB review of its proposed rule in the very near future. However, we cannot brush aside the possibility of changing the course by the USCIS seeking the rule-making in the form of an interim rule rather than a proposed rule in order to coordinate the rule-making process with the DOL.
• All indications point to the same conclusion that the elimination of substitution of the certified labor certification application is not something which is imminent or foreseeable in a next few months. Employers still have time to file I-140 petitions with the substitution of alien beneficiaries, should they obtain approval of the labor certifications in the next few months. Please stay tuned to this web site for the development of this news.

07/07/2005: Service Centers July 7, 2005 Processing Times Report

• See the home page.

07/07/2005: ETA Consolidates All the Foreign Labor Certification Functions in DFLC

• Today, DOL/ETA published a notice that all the foreign labor certification functions including the PERM, H-2A and H-2b are ordered delegated to the Chief of Division of Foreign Labor Certification, William Carlson, taking part of these functions from Regional Administrators and USES of the DOL. This change will give the Chief more room to streamline and maneuver management of the foreign labor certifications. It is interesting to watch how the DFLC utilize the current resources in the Regions and SWAs for the management of the PERM program, backlog reduction, and temporary labor certification applications. Read on.

07/05/2005: DFLC to Publish the Follow-Up Regulation Tomorrow

• The ETA is scheduled to publish a federal register tomorrow relating to the Chief of Division of Foreign Labor Certification and labor certification process reform process. Please stay tuned to this web site.

07/04/2005: Replacement of Underlying Immigrant Petition for Pending I-485 Applications

• This discussion is related to those whose EB-485 applications are pending and who need replacement of underlying immigrant petitions (approved I-130 petition or approved I-140 petition or approved I-360 petition) without refiling I-485 applications. Such needs may be occasioned by two events: One is the underlying I-140 petition may be affected by layoff or termination of sponsorship by the employer pending I-485 applications. The other is unavailability of visa priority date for the existing underlying immigrant petition and need replacement of underlying immigrant petitions by the visa number available another immigrant petition without affecting the pending I-485 application.
• These replacement of underlying petition can be achieved by one of two situation. One situation involves a couple who filed I-485 applications together based on the principal alien's I-140 petition. The dependent spouse himself or herself subsequently obtains his or her own I-140 petition approval with a favorable priority date and there is a question as to the underlying I-140 petition for their pending I-485 application can be replaced by the spouse's I-140 petition without affecting their pending I-485 applications. The other situation involves EB-485 applicant who filed concurrent I-140/EB-485 packet and before he/she becomes eligible for AC-21 portability of the underlying I-140 petition, he/she is threated to lose the employment, but has another approved I-140 petition through another employer. The question remains whether he or she can replace the underlying I-140 petition by another favorable I-140 petition without affecting the pending I-485 application.
• The current policy of the USCIS is that when both spouses have separate approved I-140 petitions, they can flip flop the underlying pending I-140 petition of the principal spouse by the dependent spouse's more favorable I-140 petition without affecting their pending I-485 applications on two conditions: First condition is the dependent spouse's I-140 petition has been approved. The second condition is that the dependent spouse's approved I-140 petition must have a visa number available at the time of request for the replacement of the underlying I-140 petition.
• The following summary of rule which we posted on June 19, 2000 in our "Breaking News" is worth to repost here:

[Updated 06/19/00: New Rule on Replacement of Underlying I-130 or I-140 for Pending 485

• The INS HQ revised its policy on this rule liberalizing replacement of the underlying petition without affecting the pending I-485. This new policy was released in the legally binding Memorandum dated 05/09/00 and reflected in the Adjudication Manual for the 485 adjudicators throughout the country and overseas posts. The following is a summary of the Memo:
• Preconditions for Replacement: Two conditions must be satisfied:
  • (1) The previous approved I-130 or I-140 should be valid and not have been "revoked" or "denied" at the time of request for replacement.
  • (2) The priority date for the replacement new or subsequent petition must be "current." Accordingly, people cannot request replacement when the priority date is retrogressed and become "not current" for the replacement petition. Very important to remember for Chinese and Indians.
• Replacement Request Deadline: It can be filed until I-485 is adjudicated (approved or denied). Besides, should he/she merits, a motion to reopen or reconsider can be filed within 30 days of 485 adjudication and request such replacement.
• Types of Immigrant Petitions Eligible for Replacement: Existing and a new or subsequent immigrant petitions do not have to be in the same categories or preferences. I-130 can be replaced by I-140, and I-140 can be replaced by I-130, without affecting pending I-485. I-360 for Religous Worker Special Immigrant Petition can be replaced by either I-130 or I-140 or vice versa. However, when the underlying petitions cross between two different types or preferences, the priority dates cannot be transferred between the two different petitions. Very important to remember. As people know, priority dates can be transferred between different categories within the Employment-Based Immigrant Petitions. The same is not true when people cross over to or from other petitions.
  • Underlying Philosophy of the New Rule: The Memo states: "While the intent to work for the petitioning employer is a requirement for approval of the I-485, there is no legal requirement that the beneficiary of an approved employment-based visa petition work for the sponsoring employer before receiving permanent residence status. In addition, the transferring of the I-485 adjustment case can be in both the Service's and the alien's interest. If the transfer request is credible and justified, the alien is not gaining a benefit that he or she is not eligible for, especially when no change in the visa category is involved. In such cases, by allowing the transfer of adjustment cases to an eligible family or employment-based petition the Service is saving itself time and work." This reporter cannot agree more!!!]
• On top of the foregoing rules of replacement of underlying immigrant petition for the pending I-485 applications, one should also be mindful of the following rules to cope with ever deteriorating visa number retrogression ahead of them: (1) The rules of retention of priority dates; (2) priority date in substitution of alien beneficiary for approved labor certification application; and (3) the rule of cross chargeability of the spouse's country of birth visa number.

07/02/2005: 90-Day Automatic EAD Extensions for TPS Hondurans/Nicaraguans

• USCIS is scheduled to release a federal register notice next Thursday (July 7, 2005) automatically extending EAD for 90 days for TPS Hondurans and Nicaraguans. Extension will be valid until October 5, 2005. The eligible Hondurans and Nicaraguans do not have to visit USCIS to extend the EAD. For the USCIS announcement, please click here.

07/02/2005: Visa Posts Change NIV Visa Interview Requirements

• The Department of Statement issued a cable to the visa posts changing its nonimmigrant visa interview requirements. Read on.

07/01/2005: June 30, 2005 Written Report of USCIS Ombudsman to the Congress

• This long report lays out the results of some controversial ideas and programs the Ombudsman has advanced with mixed reviews by the immigrant community. Worth to read during the Fourth of July holiday long weekend.

06/30/2005: Michael Garcia Nominated to U.S. Attorney of Southern District New York

• The outgoing Assistant Secretary of BICE, Michael Garcia has been nominated and sent to the Senate for confirmation by the President today for the post of United States Attorney for the Southern District of New York. This change of his role in the Bush Administration was reported by this web site several months back. We wish him well for his federal prosecutor career.

06/30/2005: Garcia to be Replaced by Julie Myers to Head Bureau of Immigration and Customs Enforcement (BICE)

• The President named today a new Assistant Secretary for BICE to replace Mr. Garcia. The nomination has already been sent to the Senate for confirmation. The newly named Assistant Secretary is Julie L. Myers who currently serves as Special Assistant to the President for Presidential Personnel. She one time served as the Chief of Staff for the Criminal Division at the Department of Justice and an Assitant U.S. Attorney in the Eastern District of New York. She earned the law degree from Cornell Law School. The exit of Mr. Garcia has been predicted for quite a long time. It is uncertain whether he will return to the U.S. Attorney post in New York or take another post in the DHS. Currently, the Director of USCIS has yet to be nominated by the President as Mr. Aguirre is expected to take a diplomatic position in Spain soon.

06/30/2005: Substitution vs. Amendment to Replace Alien Beneficiary in the Labor Certification Application

• Since the DOL and USCIS are planning to terminate the substitution of alien beneficiary for the certified labor certification application, employers should understand the purpose of the underlying policy and the difference between substitution and amendment of the labor certification application to substitute the alien beneficiary. The details of the regulation terminating the alien substitution have yet to be released. As the title of the regulation would reflect, the purpose of the termination of substitution is to remove the fraudulent abuse of the sustitution by allowing the employers to file bogus labor certification applications for fraudulent purposes. Accordingly, the opportunities for such substitution will be uprooted by the forthcoming regulations.
• Substitution of the alien beneficiary has been taking place at the three different stages. The first stage of substitution can take place before the labor certification application is approved by the labor department. This procedure has traditionally been called not substitution but amendment of the pending labor certification application. The amendment is available in the conventional labor certification process when the proposed amendment would not materially change the occupational classification, location of the intended employment and qualification requirement. These changes are considered "material change," in the sense that they will affect the prevailing wage determinations and the determination of availability of qualified U.S. workers, which are the backbone of the foreign labor certification system. However, the change of the alien beneficiary will have no effect whatsoever on the prevailing wage and availability of qualified U.S. worker for the occupation. In this regard, it has not been considered a material change and has been permitted under the traditional labor certification system. It is anticipated that the amendment of the "pending" labor certification application to replace the alien beneficiary is and will be continuously allowed in the future. The employers tended to wait for the approval of the labor certification applications to substitute the alien beneficiary in the past, but considering the fact that the DOL and the USCIS are really determined to eliminate the substitution system, the employers cannot afford waiting for the approval of the alien labor certification applications which have been pending at the Backlog Processing Centers to replace the alien beneficiary because of unavailability of the alien beneficiary for whatever reasons.
• As contrasted to the "amendment," substitution takes place only after the labor certification application has been approved. Under the labor certification rule, the DOL is not allowed to change the certified labor certification applications and the legal proceeding involving substitution of alien beneficiary is only related to the USCIS I-140 petition proceeding. The substitution of alien beneficiary takes place at two different stages. One is the substitution of alien beneficiary before any I-140 petition has been filed or approved for the original beneficiary. In this case, substitution means that the employer files a I-140 petition on behalf of the new alien beneficiary using the approved labor certification application and attaching part B of the application for the new alien beneficiary. The second step involves post approval of I-140 petition on behalf of the original alien beneficiary. Once the petition has been granted, the employer cannot substitute the alien beneficiary unless the employer first withdraws the approved I-140 petition on behalf of the original alien beneficiary and requests the USCIS to substitute the alien beneficiary by filing a new I-140 petition on behalf of the new alien beneficiary.
• Once the regulations to eliminate the substitution in the labor certification applications are enacted, it is anticipated that both of the above-described substitution opportunities may disappear due to the twin-devices the regulations will provide: One is the 45-day period of sort of statute of limitation. The regulation will invalidate the certified labor certification application unless I-140 petition is filed within 45 days of the labor certification. Accordingly, most of the "reserve" or "pool" of the certified labor certification applications that scam artists intend to use for the fraudulent commercial purposes may be wiped out. The second device is total elimination of substitution of alien beneficiary. Both of these devices may apply retroactively unless the I-140 petitions are pending at the time of the effective date of these regulations. We will have to wait and see whether the new rules will apply retroactively or prospectively only.
• The foregoing discussion suggests the employers two options: If the employers have a certified labor certification and need a substitution, they should file I-140 petition for the new employees as soon as possible not to take any chances. If the labor certification applications are still pending at the Backlog Processing Centers, they should file amendment as soon as possible. Amendment can be as valuable and powerful as the substitution in that the new alien beneficiary keeps the priority dates. Employers should seek legal counsel for the amendment of the pending labor certification applications.

06/29/2005: Last Day of New EB-3 I-485 Filing Before October 1, 2005

• Beginning from July 1, 2005, no one will be able to file EB-3 I-485 applications, no matter which country they are from. This will continue until October 1, 2005. During this three-month period, some people may fall out of status and will become ineligible to file I-485 applications when the visa number becomes available on October 1, 2005 unless they are eligible for the 245(i) and 245(k) benefits. It is thus imperative that those who have a certified labor certification application should ship out their I-485 applications via overnight delivery services within today so that the applications are physically receipted by the Service Centers within tomorrow. People should remember that the last-minute I-485 filings can be made without the required initial evidence inasmuch as the I-485 application form is properly completed and "signed" and the required "filing fee checks" are enclosed. The missing initial evidence will be requested by the Service Centers in the form of RFE. Remember that I-485 applications must be receipted by tomorrow and people should ship out UPS or FEDEX within today. Postmark is "no good!"

06/28/2005: USCIS Report of Immigration Benefits Backlog Statistics

• The last time the DHS updated the immigration statistics on a monthly basis was February 2005. Since then for the unknown reasons, the DHS ceased to release the monthly statistics.
• It is interesting to learn that the USCIS is releasing selectively some of the immigration statitstics in the form of its public relations campaign on the web site. The latest campaign release indicates that the backlock has been reduced 69% between May 2004 and May 2005 and the backlog numbers has been reduced from 3,419,039 to 1,047,096. Read on.

06/26/2005: DFLC Notice of AC 21 H-1B Extension Proof Issuance Procedure

• DFLC has issued a notice that DOL has worked with CIS to set up a new system in the Backlog Elimination Centers to assist individuals who have submitted an application for permanent labor certification prior to March 28, 2005 and need proof of the submission to apply for an extension of an H-1B visa. Individuals should send an e-mail to the appropriate Backlog Center explaining the need for the H-1B extension and requesting verification that their application is pending at the Center. The email addresses are h1b7yr@dal.dflc.us for the Dallas Center and h1b7yr@phi.dflc.us for the Philadelphia Center. Include in this request all pertinent information (employer name and address, alien name and address, date of filing, state where filed, case number, if known). The Backlog Center will respond to the individual with verification that the application has been pending for 365 days.
  

06/25/2005: EB-3 IV Applications Processing for Nurses and Schedule A Immigrants (50,000)

• The State Department reports that the visa posts, particularly Manila, have started implemented this legislation and have been instructed to process the immigrant visa applications for these Schedule A immigrants. The immigrant community has also reported that the visa post in Manial started sending out the interview schedules for these IV applicants. Good Deal!

06/25/2005: Appeal of PERM Denials and Issue of Refiling

• DFLC reports that as anyone can imagine, it has received a large number of appeals of denials due to the computer decision matrix massive denials. As we reported yesterday, apparently most of the issues and technical problems involved in the decision matrix have been resolved since yesterday and it is expected that alleged "erroneous" decision matrix denials are expected to be reduced drastically from here on.
• Once the PERM online application is instantly denied, the employers have two options: Either file an appeal within 30 days of written notice of denial or just refile it online or by mail. Under the PERM regulation, there is no limit to the number of online refilings for the same case when a case is denied. The DFLC leaders are encouraging the applicants to use refiling online rather than appeal for a number of reasons. One critical reason why the option of an appeal should be carefully reviewed before filing an appeal is that once an appeal is filed, until the appellate body makes a decision, the employers will not be able to refile online their cases. Since the resolution of an appeal can take time and the timeframe for the appeal decision is unpredictable, appeal does not seem to be a good option, at least for now, for consideration.

06/25/2005: J-1 Waiver Processing Times of the State Department

• The State Department states that the processing times for J-1 foreign residency requirement waiver applications varies these days, but as of now, the processing times have been reduced to 2-4 weeks. Good news for the IMGs.

06/25/2005: EB-3 Visa Number Post September 30, 2005 Yet To Be Predicted

• The State Department official announced that the situation of EB-3 visa numbers in FY 2006 (10/01/2005) was unpredictable. It is expected that this prediction will not be made available until the upcoming new Visa Bulletins are published. Please keep your patience.

06/25/2005: Australian E-3 Visa Implementation Still More Than Month or Two Away

• The U.S. Department of State official has reported here in Salt Lake City that the DOS has been actively working on the draft of the regulation. However, before it is sent to the OMB review, it will have to be coordinated and consulted with the DHS as well as the Australian government for reciprocal work on other side of the Ocean. The official predicts that it will take for a month or two before this regulation will be enacted and implemented.
• Please remember that the E-3 visa applicants in visa posts outside of the the U.S. do not need E-3 visa petition filed with the USCIS as it is true with the E-1 or E-2 or R-1 visas. Please stay tuned with this web site for the development of this news.

06/24/2005: PERM Denials Are Being Rurun Now!

• The PERM Decision Matrix has been reconfigured and the DFLC has just started to rerun all the previous online filing denials and "Audit Review" cases. Those whose online filing cases have been denied should go back to the PERM Online Status site to check the new status. Most of the previous denials have apparently been converted to "sponsorship" for a fresh new review. Thank you, DFLC, for the quick corrective action.

06/24/2005: AC 21 Regulation Release Imminent

• The USCIS disclosed here in Salt Lake City that this long awaited regulation will be released real soon. It also appears that the regulation may look at the I-140 portability issue slightly different from the recent Yates' memo. Please hold your breath on this issue.

06/24/2005: H-1B Cap Number Usage for FY 2005 and FY 2006

• According to the USCIS, as of now, the following H-1B cap numbers have been either received or approved:
  • FY 2005 U.S. Master Degree Cap: 8,300 (out of 20,000)
  • FY 2006 U.S. Master Degree Cap: 5,500 (out of 20,000)
  • FY 2006 Regular non U.S. Degre H-1B Cap Cases: 27,300 (out of 65,000)

06/24/2005: PERM Decision Matrix and Some Policy Changes to be Released by End of June or Early July

• DFLC IT team is actively working on the change of PERM Decision Matrix considering the problems and certain policy issues the DFLC has experienced since the launch the PERM on March 28, 2005. The timeline for release of the changed Decision Matrix is disclosed to be the end of this month or early next month.
• Once the revised Decision Matric is launched, most of certain denial cases and certain "Audit Review" cases will be rerun by the DFLC itself and give out a new decision. Please stay tuned.

06/24/2005: PERM Statistics

• Total registration: 28,000
• Total application: 8,500
• No statistics available about the number of approvals out of the total applications received.

06/24/2005: USCIS Announcement of Implementation of L-1 Visa New Legislation

06/22/2005: June 21, 2005 Service Centers Processing Times

• See homepage.

06/22/2005: EB-2 Retrogression Prediction for Indians and Chinese

• Back in March, the Department of State predicted that the EB-2 visa numbers for Chinese and Indians may start retrogressing on midway to FY 2006 and not before September 30, 2005. The State Department official may update this prediction here in Salt Lake City. Please say tuned.

06/22/2005: H-4/L-2 Dependent H-4/L-2 Visa Eligibility After H-1B/L-1 Enters U.S. on Advance Parole

• The EB-485 applicants sometimes travel on Advance Parole either because he/she does not have a valid H-1B/L-1 visa in the passport or he/she opts to travel on Advance Parole for other reasons. The question remains whether their H-4 or L-2 family members will be able to travel or apply for the extension of H-4 or L-2 visa. The conventinal rule was that the dependent visa status or visa is valid only if the principal alien's H-1B or L-1 remains valid and probably by entering on an advance parole, the principal alien takes a risk of depriving the family members of the opportunity to apply for H-4 or L-2 visa and entering on H-4 or L-2. This problem can be very serious should the family members are left behind without an advance parole when the H-1B/L-1 alien returns to the U.S. on an advance parole. It appears that there are some areas of confusion considering the current practice and rule of the USCIS that H-1B alien is eligibility for extension of H-1B and work without EAD after they return on an advance parole. However, common sense should dictate the H/L aliens and their families not to leave the country without advance parole if the principal alien has a plan to return on advance parole.

06/21/2005: Salt Lake City, Here I Come!

• Probably the first thing that flashes in one's mind when a name of either "Utah" or "Salt Lake City" is mentioned would be the center of Mormons faith believers with the rich history of poligamy (one man with plural wives) and the abstinence. The hardcore believers may still not drink coffee.
• The other major attraction to the state of Utah and the city of Salt Lake City is the beauty of "rocky" mountains covered with snow and mystic clouds up on the top. To the visitor from the Midwest which is characteristically a place of plain fields and lakes and "feministic" landscape, the state of Utah and the city of Salt Lake City were impressively "masculine" and arouse the wonders of the nature and a moment of pause to "ponder" who we are. This place attracts skiiers from all over the world and the city is embroidered with ethnic restaurants after ethnic restaurants to allow the visitors to enjoy the foods and the cultures of different international taste and flavor. To a city slicker who has been brought up in a city of millions of population and never lived in a rural area for all his life, the scene of young people with cowboy hats in the places of hangouts and on the city streets has projected an image of "purity"and "untouchedness" of young people here as contrasted to the image of wilderness of the same cowboy hats and boots in the Dixie South.
• When you come to Salt Lake City, don't fool yourself with the strong legs to walk "blocks" of the streets. One block of street here means literally many blocks of streets in other cities including New Yok City. Walking even two or three blocks under the sun of 94 or higher degree of temperature will exhaust your breathes! If you have arthritic pains, don't even think about taking a walk further than two blocks here!
• Salt Lake Citians, please give me a richness of your hearts and hospitality so that I can leave my heart in your city when I return to my home town in the plain fields!

06/21/2005: $1,500/$750 + $500 Fraud Fee Required for H-1B1 Singapore/Chile Petition Effective 07/20/2005

• Effective July 20, 2005, the USCIS will require the American Worker Training Fee ($1,500 or $750) and $500 Fraud Prevention Fee for H-1B1 filing for Singapore and Chile nationals. The immigration forms that are required are similar. Read on.

06/21/2005: Strong Support and Encouragement for the Current USCIS Team of Leadership - Yates/Divine

• The government has never seen such a perfect match of team of leadership in its immigration history in the administration and management of immigration benefits (petitions and applications) as seen in the present USCIS HQ in Washington, D.C. The recent direction of policies is, with no one's doubt, simply admirable, reflecting their expertise in the nation's immigration issues and systems and their visions and views for the direction of the nation's future immigration system. We support this team, with no reservation what-so-ever. We just hope that the team will not be swayed by the restrictive immigration views within the government and in the Hill. This reporter really looks forward to seeing these leaders in the same room in SLC!

06/21/2005: Predicted Release of Reprogrammed PERM Online Computer Matrix System in July

• We reported earlier that DFLC had been working on reprogramming of the current troublesome Computer Matrix System for the online PERM application filing. The AILA has recently reported that the timeline for the release of this change would arrive in the next month, July. We commend Mr. Bill Carlson, the Chief of DFLC, for recognizing the serious flaws with the current computer matrix system and deciding to fix some of these problems fairly quickly. We hope to hear from him in Salt Lake City about the details of the ongoing fix efforts. We hope to see the PERM system successful in achieving the intended goals and purposes. One of the goals of the PERM designers appeared to be achieving adjudication of 80% of cases in one week and 20% of cases either in supervised or audit process. The current PERM system has sadly revealed a completely opposite trend.
• We strongly believe that no one in the DFLC intended the current results. For this reason, the immigrant community should extend a full and unqualified support to the leaders of DFLC for their efforts to fix the problem.

06/21/2005: We Commend DFLC for Ongoing Adjudication of Backlog Cases Pending Opening of Unopened Boxes

• The immigrant community sees increasing reports by the applicants and their legal counsels on ongoing approvals of the backlog cases, particularly by the Dallas Backlog Processing Center. We do not have any information about the actual number of approvals but it appears to be a positive sign that the Backlog Processing Centers started adjudicating the cases which were filed during the period of 2002 or earlier. Report also indicates that there may still be a large number of boxes of files which have yet to be opened and clerically processed. Obviously the files in these unopened boxes are mostly those which were filed in the later part of the old labor certification system, and as we urged earlier, there is absolutely no reason why the older cases should remain hostage to the opening of later cases in the FIFO principles of processing on a national queue system.
• Assuming that the DFLC started acting in a right direction, we urge the DFLC to accelerate the adjudication process to catch up the lost time. This action appears to be particularly important for the Philadelphia Backlog Processing Center as most of the approval news have been related to the Dallas Processing Center cases. Let's send our encouragement, support, and commend to the leaders of these Processing Centers.

06/21/2005: Open Appeal to Dr. Rice, Secretary of State

• This web site has repeatedly appealed to the U.S. Department of State to reinstate the Visa Revalidation Program since the decision of termination of the program was not justified considering the fact that capture of the biometric identifier was available within the country through the DHS and the enormous hardship such decision had imposed on a huge number of the foreign workers including scientists, engineers, and other brains, and business people by forcing them to take a long trip just to extend the visa in the passport. Unlike the aliens entering the country from outside of the country, these foreigners are residents in the United States who have already gone through certain initial security clearance processes. Should additional security clearance be needed, the Department could require the biometric identifier capture process exactly the same way it was done at the visa posts in the visa applications. One wonders what purposes the decision of termination of the visa revalidation program has served under the circumstances of availability of the biometric identifier capture arrangement. Whatever purpose the decision was intended, we submit that it was not justified by any compelling needs that could override the interest of helping the foreign brains and workers to contribute to the interest of this country, not to mention the unnecessary hardship being imposed on the foreign forces whom the country critically needed. We urge Dr. Rice to look into this issue in a broad perspective of the national interest and to correct the policies into a right direction.

06/21/2005: H-1B 6-Year Limit and Impact of Overseas Trips

• The H-1B professionals and their H-4 family members travel abroad either to visit the relatives or for vacation or for whatever reasons. The question which was often raised by the USCIS was whether such period should be considered as part of the alien's H-1B status and thus should be counted towards the 6-year limit. In order to determine this issue, the USCIS officials had played around interpretation of the statute related to this issue, one of which was "meaningfully interruptive" of the H-1B employment and status. Consequently, the USCIS often denied H-1B extension petition to recapture the time spent abroad if the trip was made for a paid vacation on the premises that such time remained part of the H-1B employment. and should be counted towards the H-1B six-year time limit.
• However, such interpretation of the statute was a blatant deviation from the plain language of the statute which provided that the six-year should be counted only for the period of "admission" to the United States. No matter what the purpose of the trips were, when an alien was not in a state of "admission" to the United States, such period should not have been counted towards the 6-year limit. Accordingly, the AAO in a recent decision, albeit unprecedent decision, supported the plain language reading of the statute and clarified the rule that the H-1B time tolls when the H-1B alien departs from the United States and resumes the H-1B time when the alien is "admitted" back to the United States regardless of the purpose of the trips. What a good decision! We salute to the attorneys for the job well done in the AAO appeal.
• This decision is important as the H-1B professionals sometimes need more time in H-1B nonimmigrant status to qualify for the 7th year extension pending labor certification application or immigration processing under AC 21 Act.

06/20/2005: Notice to The Oh Law Firm Clients

• Mr. Matthew Oh will not be accessible for the next one week. In emergency, please call (651) 755-8344 and leave a message. The voice mail will be accessed by Mr. Oh in the evening. You may also send e-mails to ohlaw@immigration-law.com or matthewoh@hotmail.com. The e-mails will also be checked by Mr. Oh in the evenings. Thank you for your cooperation and patience.

06/20/2005: Mexico Opened a New Consulate in St. Paul, Minnesota Today

• As is same everywhere, the Hispanic population has been growing very fast in the recent years, and in order to serve the population, the Mexican government has just opened a full-service consulate in the twin cities. The consulate will provide the services of passports, matriculas consulares (official D), visas, notary public, and birth, death and marriage certificates. The address is 797 East 7th Street, St. Paul, MN, Tel: (651)771-5494. Emergency 24-hour protection line is (651)772-4417. For other details, please call the consulate.

06/20/2005: $60 Million USCIS Appropriations for Processing Reduction for FY 2006 by Senate Appropriations Committee

• FY 2006 is the last year of the Bush's 5-Year Immigration Backlog Reduction Commitment ($500 million for five years). The U.S. Senate Appropriations Committeee passed the USCIS budget for FY 2006 for the backlog reduction package of $60,000,000. It is anticipated that most of the money may come from the fee incomes. As we reported earlier, the USCIS was confident that the agency would achieve the 6-month processing time target by the end of FY 2006. For the budget approval, please click here.

06/20/2005: Removal of Recent Postings to Archive XI

• We moved recent news postings to the Archive XI to make our reports from Salt Lake City more quickly accessible. Daily visitors to this web site may just visit this page to read our reports from the AILA Annual National Conference onsite in Salt Lake City. Most of the leaders of the DHS, USCIS, ICE, BCBP, DOL, DFLC, ESA, SWAs, DOS, Consular Officials, and other government officials will join the AILA members and discuss the current status and issues, and future directions with the attendees. This reporter will attend most of the sessions which are related to employment-based immigration and where the government leaders are represented in the discussions. Please stay tuned!

06/19/2005: Upcoming Raise of MTR and AAO Appeal Filing Fees

• USCIS has already published the proposed rule to raise the filing fees for Motion to Reopen or Motion to Reconsider or Appeal to AAO from current $110 to $385. The USCIS is scheduled to finalize this rule into a final rule in August 2005 with a new filing fee of $385 effective October 2005. Now the days are gone when people enjoyed a free meal when they filed a MTR in a loose and informal fashion.
• Currently, when an appeal is filed with the AAO to contest the decision of the USCIS, the agency relooks at its decision before it passes it onto the AAO. This takes place in about a month. Once the agency buys the arguments which are addressed in the appeal, it simply changes its decision in the form of MTR and reverses itself approving the petition. It is considered a MTR on agency's own motion and supposedly a free meal. In this case, one fee payment practically covers both MTR and AAO Appeal. It is expected that this traditional practice of the agency may continue. The fee increase will also induce increased number of people initially attempting to file a request with the agency to reopen or reconsider its decision on its own motion when there is a clear material error in facts or law committed by the agency. It will be a sort of attempt to seek a free meal to avoid the whoppy expensive MTR filing fees. However, when one decides to seek a free meal, he/she should make it sure that MTR with the payment of the filing fees be filed within the mandated period (30 days) from the date of the agency's original decision in the event that no decision is received from the agency on the request for agency's own MTR within the period. Otherwise, the right to file MTR will be permanently gone once 30 day (33 days in decision by mail) passes from the date of original decision of the agency!
• When a petition is denied, attorneys usually consider three options: (1) Refiling the petition in order to avoid the delay in the AAO appeal decision which takes minimum of from six months to over one year in most cases. (2) If the decision of the agency is egregiously an error in facts or law, attorneys sometimes request the agency to reopen or reconsider the decision on its own so that the harmed client gets a relief by the agency's reversal on free meal and in a short period of time. When an attorney tries such approach, he/she always was prepared to file his/her MTR timely in case that he/she did not receive a good news in a couple of weeks or so. (3) Unless there is an agency's egregious error in the denial, attorneys usually file an outright formal AAO appeal with the request to the agency to review and reconsider its denials before passing it onto the AAO. The USCIS has yet to release the statistics, but assumedly a substantial number of denials have been reversed by the agency itself when the AAO appeal is filed so that the agency can save its limited legal resources and more importantly embarassment.
• Sometimes, attorneys file a MTR when there is no appeal to AAO available under the law. Denial of "applications" is not appealable to the AAO. Denial of "petitions" is. Immigration process is turning into an expensive journey nowadays, including MTR and AAO appeals.

06/19/2005: Watch Out for Spanish Lottery Scam!

• I wonder how many people have received a mail from Spain that they won millions dollars of lottery and asked to send the name and address of the bank for transmittal of the lottery money. This reporter was one of those. My son is dating a beautiful Spanish young lady and I initially thought that either my son or his girl friend had purchased the lottery ticket for me in Spain. As the old saying goes, if you receive something which is unbelievable, it should really be something which you should not believe.
• The American Consulate in Spain has posted a warning on the ongoing scam coming across the Ocean in a large numbers. I am glad that I am a conservative old greek when it comes to any action, always tapping the ground twice before I cross a bridge and taking a sure route rather than taking a chance. That's the way I have been practicing law too. Well, liberal or conservative, just watch out this international scam!

06/18/2005: Last Minute Call on AILA Attorneys to Vote in Salt Lake City

• Probably almost one third of the AILA member attorneys will head for the Annual National Conference of AILA next week. This is a last minute reminder to the attendees, particularly the newer members, not to fail to cast a vote in the election of the AILA leaders during the conference by June 23, 2005.

06/18/2005: Digital Photo Requirement for VWP Travellers and Exception

• We reported earlier that beginning from October 26, 2005, VWP travellers without a visa must carry a digital photo in the passport to enter the U.S. This rule applies to the passports which will be issued by their government on or after October 26, 2005. These travellers whose passports were issued prior to October 26, 2005 will still be admitted without the digital photos in the passport, provided that the passports are machine-readable.
• These travellers should not confuse the digital photo passport requirement timelines from the machine-readable passport requirement timelines. All the visa waiver travellers from the 27 VWP countries must, repeat must, carry a machine-readable passport, with no exception, effective June 26, 2005, Sunday of next week. Don't Leave Home Without the Machine-Readable Passport from the week that begins June 26, 2005, Sunday! For the details, see the State Department announcement.
• For the details of Visa Waiver Program and the timelines of various upcoming changes, please click here.
  

06/17/2005: USCIS Guidance for Implementation of 50,000 Schedule A Immigrant Visa Application

• AILA has reported the USCIS Memorandum of June 15, 2005 for field offices to give a guidance on implementation of 50,000 Schedule A immigrant visa case processing for nurses, physical therapists, and other Schedule A occupations. As we reported earlier, the visa post in Manila, the Philippines, announced that it would resume scheduling of immigrant visa for these Schedule A immigrant visa applicants shortly in June, but the U.S. Department of State has yet to give a specific guidance to the visa posts on implementation of these visas. Please stay tuned.

06/17/2005: AmeriCon in Calcutta Suspends Visa Processing for Residents from South India

• Due to staffing shortages anticipated over the next several months, the U.S. Consulate General in Calcutta is suspending its practice of routinely accepting applications from visa applicants resident in south India effective June 14, 2005. People who already have an appointment scheduled with the U.S. Consulate General in Calcutta will still be seen, but new appointments should not be scheduled for an interview in Calcutta unless the applicant resides in Assam, Manipur, Meghalaya, Nagaland, Tripura, Bihar, Orissa, West Bengal, Arunachal Pradesh, Sikkim, Mizoram, Jharkhand or the Andaman and Nicobar Islands. For the announcement, please here.
  

06/17/2005: Visa Number Unavailability or Retrogression and Helpful Information for Survival

• When the visa number is unavailable for him/her either because of the total unavailability of the visa numbers for everyone in certain category such as the situation for EB-3 during July, August, and September 2005 or when the visa number is generally available but because of the cutoff date, one's priority date is far from the cutoff date, there are two consequences taking place depending at what stage he or she is in for the green card process. For those who have already submitted EB-485 applications, it means that the USCIS will not be able to conclude his/her application during the period of visa unavailability and the USCIS will just store the application and wait for the visa number availability for him or her until it becomes available. For those who are still at the stage of labor certification application, it means that even if he/she get the labor certification approval, he/she will not be able to file a EB-485 application during such period and consequently no EAD or Advance Parole will be available as well. Accordingly, people should keep in mind a few rules in the immigration laws that can help them to survive during such period or in the long journey to the green card target mark. Following are a few tips they may want to keep in mind:
• Availability of H-1B Extension Beyond 6-Year Limit in 3-Year increment: H-1B extension beyond six year limit is available only in one-year increment for those whose visa numbers are available and who has filed a labor certification application and passed 365 days before reaching the 6-year limit. However, the rule is different for those who need extension of H-1B petition pending the labor certification application or petition or application and for whom visa number is not available. During the period of the visa number unavailable for him/her, he or she is eligible for H-1B extension in three-year increment. This difference can be important to the employers because of the outrageously expensive H-1B filing fees and cost.
• Availability of EB-3 and EB-2 Petitions with "Single" Certified EB-2 Labor Certification Application: The State Department has predicted that EB-2 number may also retrogress probably within this calendar year for Chinese and Indians. Depending on the volume of EB-2 filings, the retrogression of EB-2 visa numbers can be very steep. In the early days, there was one time visa number retrogression for Chinese which showed unusual phenomenon: EB-2 number retrogression was much worse than EB-3. As more and more people go for EB-2 now to deal with the current EB-3 situation, we cannot brush aside some possibility of such unusual pattern of change in visa number retrogression or progression between EB-2 and EB-3 for Chinese and Indian in the future. People should learn from the past experience in the immigration history and practice. Under the immigration rule, one can file EB-2 I-140 petition and EB-3 I-140 petition either simulataneously and separately using the same certified EB-2 labor certification application. Since the EB-3 petition threshold requirement is minimum of a bachelor's degree, the holder of an advanced degree is automatically qualified for EB-3 I-140 petition once the EB-2 labor certification has been certified by the DOL. Accordingly, when the visa number retrogressed steep with unpredictability of the patterns of each category of employment-based immigrant petitions, it was almost a standard practice that the employers filed both EB-2 and EB-3 petitions using one certified EB-2 labor certification application, and depending on the specific progression for EB-2 or EB-3 numbers, the employers requested the legacy INS to switch around the underlying I-140 petition for the EB-485 either from EB-2 I-140 petition to EB-3 I-140 petition or vice versa. Filing two petitions will cost only $190 extra filing fee.
• Availability of Priority Date Transfer Among EB-1, EB-2, and EB-3 Petitions: Under the immigration rule, the priority date of one class of employment-based petition is transferrable to another class of employment-based petition. Priority date is retained inasmuch as the approved I-140 or labor certification application is not either revoked or withdrawn by the employer. For instance, assume that EB-2 labor certification and EB-2 petition were approved through the Employer A but changed the employment to Employer B. Through Employer B, another labor certification of EB-3 was approved afterwards. The employer B will be able to file I-140 petition for EB-3 with the priority date established by the Employer A. The same is true with the labor certification-waived EB-2 petition and EB-3. Accordingly, if one has to change employment either vertically or horizontally, one should make it sure that the old employer does not withdraw the petition to borrow the earlier priority date.
• Availability of Transfer of Priority Date in Alien Substitution: The alien substitution for certified labor certification may become a history before the end of this calendar year. Until that time, though, the substitution is available. When the alien is substituted, original alien beneficiary loses the priority date as the employer has to revoke the approved I-140 for him/her, and the new alien beneficiary takes over the established priority date.
• Availability of Employer Transfer in the Context of Successor-in-Interest Corporate Restructure: This is the era of frequent corporate merger or acquisition and depending on the type of M&A, the alien with pending or approved labor certification can be affected. If M&A takes place during the process of labor certification application, it is the DOL that takes care of such amendment. However, once the labor certification is approved, the DOL has no authority to amend the certified labor certification application and it is upto the USCIS to permit the transfer to the approved labor certification to the acquiring or merging employer. For those who reached the stage of 180-day after filing of EB-485 with the approved I-140 petition, the M&A does not affect them at all regardless of the specific type and nature of M&A as they can use AC-21 portability to new employer rule. However, those who have yet to reach such stage, the nature and type of M&A will have a critical consequence unless it satisfies the successor-in-interest M&A. The lagacy Region V (Chicago) of DOL was the only Region that recognized transfer of the labor certification regardless of successor-in-interest concept inasmuch as the job remains same at the same location with the same proffered wage offer, but it is not likely that the PERM rule recognize such transfer.
• Cross-Chargeability of Visa Numbers Between the Spouses of Different Country of Birth: When the visa numbers are oversubsribed for only certain countries and the spouse country of birth is not oversubscribed, in certain situation, the spouse's country may be taken for the purpose of determination of the visa number availability. The rules in this area are very complicated and people should seek legal counsel.
• Continuing Availability of 180-day AC-21 Portability and EAD/AP for the EB-485 Waiters During the Visa Number Unavailability: For those who were lucky enough to file EB-485 applications before the visa number becomes unavailable, nothing changes during the period of visa number waiting and all the immigration rules that apply to I-485 applicants will continuously in place, entitling them to all the benefits that are attached to I-485 application.
• 245(k) Availability: There will be huge number of people who have yet to reach I-485 application stage. The wait can be long and while they wait, they may face out-of-status or unauthorized employment. Since 245(i) is not available for most of these people unless they filed the labor certificatin application on or before April 30, 2001, the only available relief is 245(k) which permits I-485 application when visa number becomes available for them inasmuch as the out-of-staus or unauthorized employment did not last 180 days or longe since "last" admission to the United States. Inasmuch as it was violation since last admission, it does not to be a continous violation and it can be aggregated. The key is the term "last admission." Some people may have to depart and reenter to take advantage of 245(K) benefits if they have a valid visa within "valid" period of I-94 or D/S I-94 such as F or J students. If they depart without a valid visa or valid I-94 after accumulating 180 days of unlawful presence, they will be subject to the 3-year bar and will not be able to return to the U.S. for three years! People should seek legal counsel to determine whether they should make a trip.
• Consular Processing vs. I-485 for Those Who Obtained I-140 Approval: The benefit of consular processing is the DOS practice of initiating immigrant visa processing six months prior to the visa available date for the applicant, while I-485 filing is not available unless the visa number becomes available first. The disadvantage of consular processing is unavailability of EAD and Advance Parole throughout the process. However, the unavailability of EAD or AP will be not a big problem for those who can maintain a H-1B status. This is particularly true with the recent policy release by USCIS William Yates that AC-21 H-1B extension beyond 6 years will also be available even for those who go through the consular IV processing. They will be able to keep extending H-1B status beyond six years in either three year increment or one year increment depending on the individual situation. For those from a country where IV visa processing time is short, the consular processing is a better option when the visa number retrogresses or unavailable. By the end of September, 2006, USCIS promises that it will adjudicate EB-485 in six months, but still depending on the individual specific circumstances, it can take longer than six months. The decision of choosing consular processing vs 485 application should thus remain individual specific decision rather than a general rule.

06/15/2005: Six-Month Processing Time by 09/30/2006 Reconfirmed by the USCIS Strategic Plan 2005

• Lately, there have evolved remarkable developments in the employment-based I-485 applications to the level of a shock. The pending I-485 applications are massively decided by the Service Centers. Additionally, to everybody's astonishment, the plastic green cards arrived at their mail boxes almost simultaneously with the approval notices. Without doubt, the visa retrogression has helped the agency but no one could even imagine this would happen. Additionally, the just released USCIS Strategic Plan 2005 confirms that the USCIS will achieve the goal of 6-month adjudications of all types of petitions and applications by the end of September 2006, a little over one year from now. Unreal!

06/15/2005: PERM Computer Matrix Program Changes Imminent?

• As we reported earlier, the employers and attorneys have been experiencing nightmares due to the massive denials of online PERM applications without even explanation of the reasons for denials. Majority of these denials have been instantly made by the computer matrix. There have been outcries over the DOL's failure to fix or improve the computer program.
• This reporter has been advised by the Help Desk of the PERM program that a change is currently in progress and the improved program may be in place shortly. Pending the changes, DOL reportedly has decided not to issue denials in writing confirming the computer denials. We really want to cross our fingers and look forward to the improved online processing system real soon. The current computer matrix system has serious flaws. Please stay tuned. Hopefully the AILA attorneys may get more detailed information at the Salt Lake City Annual National Conference between June 22 and June 25.

06/15/2005: Dallas Backlog Processing Center Labor Certification Approvals Reported by Attorneys

• Attorneys started reporting approval of their clients' backlog labor certification applications which have been pending before the Dallas Processing Center. The DOL has yet to release the details on the adjudication of backlog labor certification applications, but reports indicate the approved cases are those which had been pending at the Regional Offices before it was transferred to the Dallas Processing Centers. Please stay tuned to this website for the new developments at the Backlog Processing Centers.

06/15/2005: 1-Year Valid Multiple-Entry F, J, M Visas to Chinese Students and Family Effective 06/20/2005, Monday

• The State Department has announced that effective June 20, 2005, Chinese students and their spouses and children will be issued one-year valid multiple-entry F, J, and M student visas. See the announcement.

06/15/2005: Digital Photo by 10/26/2005 and Computer Chip Embedded Passport Requirement by 10/26/2006 for VWP Travellers Without Visa

• The U.S. inspectors at the port of entry will require a passport with a digital photo for the Visa Waiver Program country visitors without a visa effective October 26, 2005. The implementation of e-passport (computer chip) requirement will be delayed until October 26, 2006. Read on.

06/14/2005: USCIS Local Offices June 14 Processing Times

• See homepage.

06/14/2005: FY 2006 H-1B Cap Availability

• There has been a rumor that FY 2006 H-1B cap numbers might run out imminently and people might not be able to apply for H-1B until October 1, 2006. It turned out be literally a rumor, according to the AILA. The USCIS has informally reported to the AILA that the number of FY 2006 H-1B cap filings had been slow in coming contrary to its prediction. AILA, however, predicts that the number may run out before reaching October 1, 2005. The USCIS has yet to release the statistics of the numbers it has used upto now.

06/14/2005: EB-3 Worldwide Visa Number Unavailability in July, August, September 2005 and Pending or New EB-3 I-485 Applications

• All the pending EB-3 I-485 applications, except Schedule A occupations, will remain dormant untill September 30, 2005 unless they are approved before the mid-night of June 30, 2005. Some luckiest EB-3 I-485 waiters may receive approvals during this period of time (next 15 days)! The accompanying spouses whose I-485 applications are pending despite the principal alien's I-485 applications have been approved will not be able to obtain their I-485 applications adjudicated before October 1, 2005 unless their pending I-485 applications are approved on or before June 30, 2005.
• During the three months period of time, regardless of the priority dates, no new EB-3 I-485 filing will be available. Those who obtained the labor certification applications should run to file the concurrent I-140/I-485 packet before the end of June. Inasmuch as the applications are receipted by June 30, Thursday, the USCIS will accept the filings and issue EAD and AP pending the I-485 applications.

06/13/2005: Visa Bulletin (July 2005)

• EMPLOYMENT VISA AVAILABILITY FOR JULY AND THE REMAINDER OF FY-2005: The EB-3 and EB-3 Other Worker categories have reached their annual limits and no further FY-2005 allocations are possible for the period July through September. With the start of the new fiscal year in October, numbers will once again become available in these categories. It is not possible to make any estimates regarding potential cut-off dates at this time.
• VISA AVAILABILITY BASED ON THE “RECAPTURE” OF EMPLOYMENT-BASED NUMBERS: The recaptured 50,000 Schedule A and their accompanying spouses and children has been designated as Schedule A Worker with the category symbol being “EX”. Beginning immediately, “EX” visa numbers may be allocated to Schedule A immigrants and their dependents only; all other immigrants within the Third preference will continue to use the traditional Third preference classification. Note that any Schedule A applicant will first be eligible for a visa number under the traditional Third preference cut-off date. “EX” visa numbers may be allocated to all Third preference Schedule A applicants from all countries, including China, India, and Philippines, only if their priority date is beyond the established Third preference cut-off date or if the Third preference category is “Unavailable”. The “EX” category is CURRENT, and will remain Current for the foreseeable future.
• VISA AVAILABILITY FOR THE MEXICO FAMILY-SPONSORED CATEGORIES: It has been necessary to retrogress the Mexico F1, F2B, F3 and F4 cut-off dates for July to hold issuances within the annual numerical limits. With the start of the new fiscal year in October, these cut-off dates can be expected to move ahead once again.

06/13/2005: Manila Visa Post Announcement of Recaptured Nurses Immigrant Visa Processing

• The American Consulate in Manila, Philippines has announced that the processing of E3 cases affected by the recent retrogression will resume in late June 2005. The National Visa Center (NVC) and the Embassy will schedule visa interviews for the additional applicants in order of priority date and documentary qualification. E3 applicants who will benefit from the legislation will be notified as soon as implementing guidelines are established and cases can be processed. Read on.

06/12/2005: 50,000 Recaptured Visa Number for Schedule A and State Department Policy

• According to AILA, 50,000 recaptured visa numbers may most likely cover most of the Philippines Schedule A EB-3 demand, but they are uncertain whether it will also cover all the pending Chinese and Indian EB Schedule A applicants for the rest of FY 2005. There are currently known to be approximately 2,800 China/India EB-3 Schedule A applicants pending.
• State Department also reportedly predicted that most of these 50,000 would be depleted by the nurses rather than other Schedule A occupations.
• Couple of positive news for the Schedule A EB-3 applicants:
  • As we reported earlier, the State Department amended the Visa Bulletin for June 2005 making Schedule A EB-3 current. The numbers are now available.
  • In order to maximize availability of the EB-3 visa numbers for the Schedule A occupations, when the regular EB-3 visa numbers are available for certain Schedule A EB-3 applicants, they will take out the numbers from the regular EB-3 numbers first. Accordingly, practically more numbers than 50,000 could possible be made available for the Schedule A EB-3 applicants because some of the numbers, particularly Filipino nurses have an earlier priority date and they will take out the numbers from the regular EB-3 quota rather than from the recaptured 50,000 pool. These Schedule A applicants will take the recaptured numbers only when the regular numbers will become unavailable for them.
• Please stay tuned.

06/12/2005: Chennai Consulate Nurse Immigration FAQ

• Please note that this consulate posting just gives outlines but some information is outdated.

06/12/2005: Employer's H-1B Backwage Liability for Lay-Off'ed and Rehired H-1B Employee

• Employers often terminate an H-1B employee for whatever reasons including the H-1B status lapse or lack of projects for a period of time, and then from time to time call them and put them back on payroll in the form of a new hire which is in fact rehiring. Such termination is effected by a letter of termination or layoff or agreement to separate.
• However, from the perspectives of the enfocement body of the U.S. Department of Labor that enforces the H-1B Labor Condition Application, the employment termination is not effected during the period between termination and rehiring unless one of the following two occurred and consequently the employer will be liable for the backwage during the period of alleged termination. The two circumstances that effect termination of H-1B employment withoutout the subsequent liability attached to rehiring of the terminated H-1B employees include: (1) Withdrawal and notice of withdrawal of H-1B petition with the USCIS or (2) alien's transfer of the H-1B to a new employer. If the H-1B employer rehires the former H-1B employees without one of these two events effected, such employer will be liable for the backpages for the period between the employee's termination from the employment and rehiring. Please read carefully recent decision of an Administrative Law Judge of the U.S. Department of Labor in March 2005.

06/11/2005: Conviction of Certain "Unauthorized Use of Motor Vehicle" Offense is a Ground for Deportation

• The Board of Immigration Appeals on June 7, 2005 in Matter of BRIEVA, 23 I&N Dec. 766 (BIA 2005) ruled that the offense of unauthorized use of a motor vehicle which involved the terms of one year imprisonment under the criminal code was a crime of violence which constituted an aggravated felony, a deportable crime under the immigration statute. Watch out.

06/10/2005: June 9, 2005 Service Centers Processing Times

• See homepage.

06/10/2005: EB Visa Number Prediction Update

• AILA has reported that in April 2005 alone, USCIS used approximately 25,000 numbers and the number is expected to increase as the USCIS accelerates its action to reduce the processing times of employment-based I-485 applications. Considering the current trend of USCIS exhaustion of visa numbers, the State Department reportedly predicts that by July 2005, over 84% of the total FY 2005 EB visa numbers will be depleted and before the end of September 2005, total available visa numbers will disappear. This trend is expected to affect very negatively the cut-off dates of Employment-Based visas throughout the world sooner than initially predicted. Without doubt, it will also affect the visa cut-off dates for India and China negatively. Please stay tuned to this website for the development of this news.

06/09/2005: Backlogged Labor Certification Applications Receipt Dates by Priority Date and by States

• If you want to know when your case was transffered from your state labor certification office to one of the two Backlog Processing Centers in Philadelphia and Dallas, click here. All the information you need is the priority date and the state where your application was filed.
• Review of the data reflects the following:
  • The cases of priority dates earlier than January 1, 2005 have been received at the Backlog Processing Centers, except the list of the states listed below.
  • The cases of priority dates earlier than March 28, 2005 have also been received at the Backlog Processing Centers, except the list of the states listed below.
  • The followng states have yet to ship the following cases of the noted priority dates. Interestingly, these states are all small and medium size states:
    • Arkansas: 1/1/05 - 3/27/05
    • Connecticut: 1/28/05 - 3/27/05
    • Kansas: 1/1/05 - 3/27/05
    • Maryland: 1/22/05 - 3/27/05
    • New Mexico: 1/1/05 - 3/27/05
    • North Carolina: 1/1/05 - 3/27/05