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THE OH LAW FIRM

Dedicated Professionals in Immigration Law for Over 24 Years

Current Page[08/01/2009 - Present]/Archive XX[05/01/2009-07/31/2009/Archive XIX[10/01/2008-04/30/2009]/Archive XVII[03/31/2008 - 09/30/2008]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 - 06/1/06. ]/ Archive XII [08/01/05- 11/30/05]/Archive XI [04/30/05 - 07/31/05

11/30/2005: Nonimmigrant Visas Issued in FY 2005 by Country and by Visa Type

• The State Department statistics for nonimmigrant visa issuance in FY 2005 (10/01/2004 - 09/30/2005) reflect very interesting trend of top countries as follows:
  • H-1B:
    • Total: 124,100
    • India: 53, 579
    • China: 7,113
    • UK + N. Ireland: 5,617
  • F-1:
    • Total: 237,890
    • Korea: 35,310
    • Japan: 24,554
    • China: 21,642
    • India: 20,173
    • Taiwan: 15,488
  • E-3: Total - 4
• For H-1B visa applications, applications by the Indians take overwhelming numbers close to 45% of the total H-1B visa applications worldwide, while Chinese apply for the H-1B visas in a small number probably because the Chinese do not make overseas trips to apply for the H-1B visas unlike the Indians. When it comes to F-1 student visas, the trend is reverse. India is only rank 4 in the number of F-1 visa applications, less than 10% of total foreign students' F-1 visa applications. This statistics may partially reflect the fact that the H-1B Visa Reform Act of 2005 giving special 20,000 additional numbers to those U.S. Master degree earned probably had more stakes to Chinese than Indians. Flip side of this coin is that the Indians have more stake with the S. 1932 H-1B recapture legislation than Chinese or other main H-1B candidates.
• Look at the E-3 visas. Only four visas had been issued by September 30, 2005 worldwide!

11/30/2005: E-3 Visa Eligibility for J-1 Who Are Subject to 2-Year Foreign Residency Requirement

• The State Department has confirmed that the two-year foreign residency requirement does not preclude the J-1 aliens including International Medical Graduates from applying for E-3 visas. However, any stay in the U.S. in E-3 status will not be considered for the requirement of two-year foreign residency compliance.

11/30/2005: Processing Times of Security Advisory Opinions and Namechecks for "Visa" Applications

• The U.S. Department of State has reported to the AILA the following status of various security and criminal namecheck clearance statistics:

• 	Total Processed	FY 05 Average	As of 08/2005
  Condors	63,332	6.2 days	2.65 days
  Mantis	24,197	15.45 days	14.45 days
  NCIC	195,758	15.45 days	3.42 days

• The processing times report appears very different from the various reports by the visa applicants who had to go through agonizing waiting and waiting process to obtain the visas allgedly due to the delays in the security clearance.

11/29/2005: Comprehensive Immigration Reform Legislation Rocky Road Ahead

• Bush's lip is still wet on the guest worker program, but report indicates that there are so many hawks in the House who are ready to fight against their own "head hancho" that unless something unsual happens, the chance appears to be very slim that comprehensive immigration reform will make through the House. The House is reportedly opposing any immigration bills that involves legalization of illegal aliens in any shapes or forms, including the guest worker program and not to mension earned adjustment of status of illegal aliens.
• Since the Senate is poised to deal with the comprehensive immigration reform legislation coming February, we want to see this issue handled in the next session of Congress that opens on January 18, 2006. We rather want to see this session of Congress to focues on the two less controversial legislative bills before they adjourn for the rest of the 1st Session of the 109th Congress. The first and the foremost important bill is S. 1932 which deals with the "legal" immigration which should receive the top priority in the legislation. Since the budget reconciliation legislation is expected to be wrapped up when the Congress returns next week and the House-Senate Conference Committee is expected to resolve the differences in one way or another, we just hope that the members of the House are sober enough to recognize the urgency of the legal immigration packet under S. 1932. We hope that the members of the House clearly recognize the distinction between the S. 1932 immigration issue and the comprehensive immigration reform issue which is likely to exhaust the nation's political heat and energy during the first part of the 2nd Session of 109th Congress next year. We also hope that the Congress resolves the bi-partisan DREAM Act before they adjourn. We want to remind the Congress that the identical bill almost passed the Congress but for the sunset of the 108th Congress. Again the issue underlying this legislation is somewhat different from the comprehensive immigration reform and should be dealt with separately from the comprehensive immigration reform process. Some people wonder whether Bush is drumming up the comprehensive immigration reform issue to redirect the nation's political heat and attention from the Iraq war controversy to illegal immigration and border security issues. We certainly hope that ain't true.

11/29/2005: Minnesota Political/Opinion Leaders in Full Swing in Support of National Strategy for Attracting Foreign Powers

• Minnesota Governor Tim Pawlenty reportedly urged that foreign students who earn graduate degrees in selected, economically desirable fields from American universities should become automatically eligible for green card. The editorial of Star Tribune in Minneapolis urges the country to develop a national strategy for attracting foreign brainpowers stating that green card could be a carrot for world's best and brightest and quoting the International Herald Tribune November 25 editorial that "Nobody questions the importance of barring entry to another Mohammed Atta; but nobody should be oblivious to the danger of excluding another Einstein." Senator Norm Coleman, a rising star in the GOP politics, and Representative James Oberstar (MN) are actively advocating and urging a strategic national plan for expanding foreign student access to American institutions of higher learning.
• The Congress will return to the Hill next week to resolve the differences between the Senate and the House in the "employment-based" and "legal immigration" legislative bill which is part of S. 1932. Again, the leaders in the House and the Senate should realize that this bill deals with an important national strategy for foreign brain power immigration issues which are "separate" from the issues the President addressed yesterday. For the S. 1932, the leaders in the House and the Senate should show a bi-partisan support as it transcends the ideological differences between the right and the left when it comes to a long term national strategy for foreign brain powers in this country.

11/28/2005: Full Text of Bush Speech on Border Security and Immigration Reform

• Score cards: Positive Notes: (1) Legalization of certain illegal aliens in the form of temporary guest worker program; (2) Support for immigrant visa quota increase. Negative Notes: (1) Legalization for the purpose of "temporary" work only; (2) No reward in the form of earned adjustment.
• Refer to the Bush's original Temporary Guest Worker program of January 7, 2004.
• Senators Kyl and Cornyn, after all, it was your day!

11/28/2005: Bush to focus on illegal immigration Today at 4:45 p.m. (PST)

• Report indicates that Bush is scheduled to elaborate his plan for border security and illegal immigrant issues in Arizona. Bush has to walk a very thin rope between the ultra-right wing conservative group within its GOP that strongly opposes any kind of legalization including Guest Worker Program and Earned Adjustment of Status on one end of the rope and the Hispanic voters on the opposite end of the rope whom Bush has to appease to get their politial support in the coming national election. In order to play in this circus tactfully, he is reportedly to talk tough on the border security and enforcement agenda on one hand and push his agenda for guest worker program on the other.
• It is almost certain that when it comes to the Guest Worker Program, he may reiterate his original proposal which does not include the earned adjustment of status. Since he has to walk between the McCain-Kennedy and Cornyn-Kyl Comprehensive Immigration Reform bills in the Senate, he may want to keep his own agenda which stands in the middle of the specturum of the two conflicting Comprehensive Immigration Reform legislative bills: Probably opposing the earned adjustment but proposing legalization of illegal aliens in the form of a Temporary Guest Worker Program which may require the departure of the temporary guest workers after completing the temporary guest work in order to seek immigration into the U.S. afterwards. From the perspectives of President Fox of Mexico, probably this would be the next best morning sick pill which they will have to swallow in order to deal with his own political problem in Mexico.
• U.S. Senate is scheduled to deal with the Comprehensive Immigration Reform in coming February, and this is probably a good start and overture for the process. Well, let's see how the circus will unfold this evening.

11/27/2005: Council of Graduate Schools Report: Graduate Enrollement for Engineering/Physical Sciences in the U.S. in 2004

• This report indicates that only a little over 10% of the total graduate enrollment included Engineering and Physical Sciences in the U.S. Out of the total enrollment in Engineering, 50% were taken by non-resident aliens. For the Physical Sciences, 41% were taken by non-resident aliens. This survey reflects that this country's science and engineering are predominantly dependent on the foreign students, non-resident foreign engineers and physical scientists.
• It is unclear how the present shut-down of H-1B visas and the employment-based immigrant visa retrogression have affected higher learning instutitions and research institutions in terms of recruitment and retaining these brains, but there have been sporatic reports of exodus of the foreign scientists and engineers in 2005 and reduced enrollment of foreign students in graduate schools in the field of engineering and physical sciences in 2005. This statistics should be an alarm to the nation's political leaders and policy makers.
• Unquestionably, the nation should push forward two policies parallelly: One is the educational reform and the other is immigration policy. The nation has expressed for quite a while our concerns with the American youngsters not choosing sciences and engineerings. Thus far, there is no statistics that the nation's policy makers have been successful to turn the trend around. It is too obvious that this change will not take place in a short period of time as the goal cannot be achieved by the educational reform alone. There appears to be a much deeper cause for the problem which is more or less related to the changing culture in this country placing less value and weight on research and education that require hard work. We are convinced that it will eventually change in the future, even though it may take decades and decades. Pending the changes, though, the nation cannot afford being left behind of other competitors in the world. The nation should separate the emotional issue from the reality. Attracting and retaining these foreign scientists and engineers will remain one of the top national interests for this country to sustain its leadership in the world, at least until the time when the country's youngsters find the highest value and weight on research and education in science and engineering. This country cannot just educate and let loose the critically needed foreign scientists and engineers when the country does not have an alternative to fill the vaccuum. The damage may not be witnessed today or tomorrow, but in the years to come. History will judge very harshly over the nation's leaders for having failed to lead the country in the right direction such that the nation would not suffer from the "irrepaprable" damage and scar for "years to come."

11/25/2005: Katrina Affected F-1 Short-Term EAD/Reduced Course Load Rule Effective 11/25/2005

• Federal Register
• USCIS Announcement
• FAQ

11/25/2005: DREAM Act: Relief for Law Breakers or Innocent Victims?

• This bill is intended to extend compassion to the yougsters who entered the U.S. before he/she had reached 16 years of age. Obviously, most of these youngsters have become "illegal" aliens not on their volition but on the parent's volition. For sure, they are "undocumented" aliens, but they were not the ones who had made such decisions. Most of these children had to live with the label of "illegal aliens" and had to drop tears in bed with a broken heart, not to mention the humiliation and ridicule which they have been suffering from their parents' acts. The memory is still fresh about a Cuban child who was brought to this country illegally by his mother who had failed to survive in the boat. This child stirred a huge political storm in this country for the two reasons: One, political, and the other, legal. Political issue involved the Cuban exile community in this country and very complex dynamics for American strategic interest in the liberation of Cuba. The legal issue involved the right of the natural parent over a minor child seeking a political asylum against the legal custodian's will, the father. On both sides of the controversy, however, there was not a single voice raised against the child's illegal alien status, not to mention labelling of the minor child as a "law breaker." Was he? Where was the child's act either intentionally or negligently breaking a law? In fact, the child was a victim of his mother who had forced him to be on board to attempt to enter the U.S. illegally to seek a refuge.
• Law does not exist in vacuum. Sometimes, morality or equity acts as a remedy to alleviate the harshness of the law. However, where the harshness of the law cannot be alleviated or corrected or cured by the morality or equity, a legislation has to step in to achieve the desirable remedy against such harshness. The DREAM Act of 2005 is intended to bring into the law "compassion" and "remedy from the unnecessary harshness over the innocent young souls." The bill is not a simple amnesty of law breakers.

11/24/2005: Summary and Full Text of "DREAM" Act of 2005

• Full Text
• Summary: This bill includes residency tuition eligibility, cancellation or waiver of removal (deportation), and grant of a permanent resident status. However, we will skip the tuition residency provision and focus on the eligibility of the defined youngster illegal aliens for the permanent resident status.
  • Threshold Requirements:
    • At the time of initial entry into the U.S., the alien must not have reached 16 years of age. Accordingly, those who entered the country after 16th birthday will not be qualified for green card benefit under this bill.
    • At the time of the enactment of this legislation (date of the President's signature), the alien shoud have been "physically" present for a continuous period of not less than 5 years. Accordingly, those who stayed for a period of less than 5 years at the time this bill is signed into the law will not be eligible for the green card under this legislation. The following overseas trips would not break the continous physical presence requirement:
      • Departed from the U.S. for one trip for less than 90 days; or
      • Departed from the U.S. for more than one trip but for less than 180 dates in aggregate; or
      • Even if departed more than 90 days or 180 days in aggregate, if the alien could not return to the U.S. due to exception circumstances for one of the following reasons, such trip would not break the continuous physical presence:
        • Due to his/her own serious illness; or
        • Due to death or serious illnes of a parent, grandparent, sibling, or a child
      • Overseas uniformed services would not break the continuous physical presence.
      • Notice to Appear served on the alien for removal proceeding would not break the continuous physical presence.
    • At the time of application, the alien:
      • Admitted to Institution of Higher Education; or
      • Earned a high school diploma; or
      • obtained a general education development certificate.
    • At the time of submission of the application, the alien must meet "good moral character" requirement. Good moral character is broader than any involvement with the criminal activities or other deportability in the immigration statutes.
    • If the alien is either inadmissible or deportable for one of the following provisions, the alien is not eligible:
      • Failure to attend removal (deportation) proceeding;
      • Smuggler of illegal aliens;
      • Attended public schools after certain date and subject to 5 year bar from admission to the U.S. because of such violation once the alien departs from the U.S.;
      • Subject to a final order for violation of Section 274C of the immigration statute (document fraud) after reaching 16 years of age;
      • Committed fraud or willful misrepresentation to seek a visa or admission, or other documents, including false claim of U.S. citizenship after reaching 16 years of age.
    • Not under a "final" administrative or judicial order of exclusion, deportation or removal order after reaching 16 years of age. Accordingly, those who remain in exclusion/deportation/exclusion proceedings or an appeal of the exclusion or deportation order is pending will still be eligible even if such order was handed down after reaching 16 years of age.
  • Immigration Benefits for the Aliens Who Meet the Foregoing Requirements:
    • Cancellation of removal (deportation) or waiver of removability for humanitarian concerns and family unity.
    • Conditional Permanent Resident for 6 Years. The conditional status removable through the removal petitions just like marriage cases and investor immigration proceedings on a different proceeding.
    • Eligible for a U.S. citizenship after 5 years in conditional resident status, but unless the condition has been been removed, the alien will not be eligible for the citizenship.
  • Effective Date: The satisfaction of the foregoing eligibility will be determined on the date of enactment of this legislation unless otherwise provided.
  • USCIS Implementation Timefrme:
    • Once this legislation is enacted by the signature of the President, the USCIS is required to publish a proposed regulation to implement this law within 180 days. However, unlike other proposed regulation, this proposed regulation will be considered an "interim" regulation which will take effect immediately upon publication of the proposed regulation in the federal register. Accordingly, the eligible aliens will be able to apply for the permanent resident status at least 180 days after the enactment of this legislation.
    • Within reasonable after publishing the proposed regulation, the USCIS is required to publish either an Interim or Final regulation.
  • Immigrant Visa Quota: The qualified aliens are not subject to any immigrant visa quota or per country limits.
• Once the alien attains the conditional permanent resident status under the foregoing rules, he/she will have to file a petition to remove the conditions within certain period before reading 6 years in a conditional resident status. We will summarize this part of the legislative bill later as they are not revelant at this time. Please stay tuned.

11/24/2005: Approaching Immigration Lottery Deadline, 12/04/2005

• The two-month immigration lottery will end at 12:00 pm EST (GMT-5) on December 4, 2005. People may not want to wait until the last minute as electronic filing can experience some unexpected difficulties. Please send it now. DV-2007 Immigration Lottery
  

11/24/2005: Immigration Monthly Statistical Report of 10/31/2005

• DHS released the statistics on November 18, 2005 for the following immigration activities:
  • Inspections
    Southwest Border Apprehensions
    Immigration Benefits
    Naturalization Benefits
    Removals
    Asylum
    
• In the Immigration Benefits, it has reported that applications and petitions for immigration benefits in September 2005 decreased 5 percent compared to the number received in September 2004. September approvals decreased 16 percent, while denials increased by 6 percent and pending percent when compared to September 2004. In fiscal year 2005, receipts increased by 7 percent, approvals increased and denials increased by 2 percent compared to fiscal year 2004. Major volumes in September 2005 receipts include: 102,506 I-765 employment authorizations; 62,561 I-90 Green Card renewals/replacements; 59,609 I-130 relative/ I-129F fiancé(e) petitions; and 50,414 I-485 permanent resident adjustments. Major volumes of pending applications at the end of September 2005 include: 1,291,868 I-130 relative/I-129F fiancé(e) petitions; 889,447 I-485 permanent resident adjustments; 274,395 I-765 employment authorizations; 253,553 I-90 Green Card Renewals/replacements; and 61,374 I-821 temporary protected status.
• There are indications that the USCIS has been working on processing time reduction efforts and will accelerate the efforts at all levels including the Service Centers and the local field offices. Under the Bush 5-year immigration 6-month processing time program of $500 millions, the agency needs to achieve the goal by September 30, 2006. Accordingly in the next one year, immigrants will witness a substantial reduction in processing times, and at the same time added pressures on the limited immigrant visa numbers. Without doubt, this will negatively affect the clogged immigration visa numbers unless the Congress passes legislations to give a relief to the clogged visa retrogression.

11/23/2005: USCIS H-1B & H-2B Cap Count Update as of November 2005

• H-1B: The U.S. Master degree holders still have numbers available.
• H-2B: The number exceeded the cap for the first half of FY 2006, but according to the AILA, H-2B petition can be filed beginning from December 1, 2006 using the second half of the FY 2006 cap numbers (33,000). December 1, 2005 is the earliest date one can file for the second half cap numbers. Since the second half of FY 2006 does not start until April 1, 2006, the earliest validity date for these H-2B approval will be April 1, 2006 or thereafter. Remember that the returning H-2B worker cases do not need cap numbers and will be eligible to apply for H-2B anytime until September 30, 2006. On a related note, the American consulate in Monterrey, Mexico is adopting a special policy allowing substitutions on H-2B visa applications including the returning H-2B worker. The substitutions do not have to be from the same category, for instance, a new H-2B worker can be substituted for someone who was initially classified as an H-2R. This is a good news for all the H-2B applicants.

11/23/2005: Katrina Affected F-1 Short-Term EAD/Reduced Course Load Rule to be Published on 11/25/2005

11/23/2005: Employer in Michigan Ordered Payment of $2.25 Million Backwages for Violation of H-1B LCA by DOL

• The U.S. Department of Labor, ESA, reportedly ordered an employer in Michigan, named Computech, Inc. to pay $2.25 million to 232 H-1B workers for violation of H-1B LCA law. Read on.

11/23/2005: Congressional Contact Assistance

• Everyone is getting ready to reunite with the family members and close relatives during the long Thanksgiving holiday weekend. So are the Congressional delegates (Senators and Representatives of the House). Businesses, no matter how small or large, and other profit and nonprofit corporate entities should spare their time to contact the Congressional delegates either via fax or via e-mail. AILA will provide links ( fax or e-mail) to these contacts to assist the corporate America. CompeteAmerica.Org provides abundance of materials to prepare your support letters. If you are small entities, http://isnamerica.org/ will provide such access to the Congressional delegates via fax.

11/22/2005: Visa Number Recapture Legislation Under S. 1932

• The immigration system in this country desperately needs reform to face the changes in the past few decades, particularly in the issues related to relief of legalization in the context of the nation's demographic changes and the needs for the low-end labor forces.
• However, the nation and the members of the Congress should bear in mind that the pending visa number recapture legislation has nothing to do with the "reform" of the immigration system. This legislation proposes no "reform" of the exising immigration system. This legislation just proposes to rectify the past failure of the government to properly implement the laws and issue the immigrant as well as nonimmigrant visas timely and in disregard of the spirit and legislative intent of the immigration statutue. Neither this legislation is related to any issues of legalization of certain segment of undocumented immigrants. The issues of Comprehensive Immigration Reform and Visa Number Recapture are completely two separate and unrelated issues and the Congress and the upcoming Conference Committee should not be distracted by another critical immigration legislation that lie ahead of them. The Congress and the Conference Committee should continue to focus the nation's mandate on the needs for rectifying its past failures and resolving the pressing issues of retaining the international brains in this country and recruiting international brains to assist the high tech and research industries to retain the brains and maintain cutting edge under the environment of growing international competition. The nation cannot afford keeping its growing trend of outsourcing the high-end resources to her competitors, potentially weakening her strength and power over the long haul.
• Distinguished Senators and Congress members, with all due respect, this reporter urges you to go over the foregoing analysis and promptly pass the visa number recapture proposals in the original Senate bill, S. 1932.

11/22/2005: "DREAM" Act for Innocent Youngster Illegal Immigrants Reintroduced in the Senate

• On November 18, 2005, Senator Richard Durban from Illinois and 12 other cosponsoring Senators in the Senate reintroduced this "long awaited" immigration bill. The millions of illegal alien youngsters who came to the U.S. accompanying their parents and fell into the illegal alien designations not due to the faults of themselves but due to the faults of their illegal alien parents. This bill was almost enacted last year unless there was some turn of the events that changed the political landscape in this country at the end of the year and automatically died when the Congress failed to act on the bill before the close of 108th Congress. This bill is to amend the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to permit States to determine State residency for higher education purposes and to authorize the cancellation of removal and adjustment of status of certain alien students who are long-term United States residents and who entered the United States as children, and for other purposes.
• This bill has been referred to the Senate Judiciary Committee for its action. The bill number is S. 2075. For those who want to review its prior bill under the same name of DREAM Act (S.1545), please click and roll down to review the text of the old version. This bill was also introduced at the end of the year, but unlike the prior bill, this bill is not going to die automatically because it is the 1st Session of 109th Congress that is sunsetting and all the pending bills will be continuously acted upon by the Congress until 2nd Session of 109th Congress sunsets, which is more than a year away.
• As soon as the full text of the reintroduced bill is made available, we will post the summary. Please stay tuned.
  

11/21/2005: Short-Term Employment Authorization and Reduced Course Load for Certain F-1 Nonimmigrant Students Adversely Affected by Hurricane Katrina

• USCIS is planning to provide certain short-term employment authorization and reduced course load for certain F-1 nonimmigrant students who have been adversely affected by Hurricane Katrina. The USCIS requested the OMB for its clearance on November 18, 2005. This notice will be published in the federal register on November 25, 2005.

11/20/2005: We Thank Sen. Arlen Specter (Penn) for His Support for Sponsored Immigration Packet in S.1932

• The immigration packet in the S. 1932 was introduced and strongly supported by the Chairman of Judiciary Committee, Sen. Arlen Spector (Pennsylvania), a highly respected senator in the Hill. Now since the S. 1932 is returned to the Senate, the nation looks forward to his continuing support for his proposal in collaboration with his colleagues in appointing members to Conference Committee in the Senate as well as in the House.
• The following Senate record of S. 1932 proceedings reflects how he envisioned the importance of the immigration for the future of this nation and why Sen. Byrd was wrong:
  • The PRESIDING OFFICER. The Senator from West Virginia is recognized.
  • Mr. BYRD. Mr. President, the reconciliation bill would increase immigrant work visas by 350,000 per year, about one-third of the current level. It is a massive and destabilizing increase that does not belong on the reconciliation bill.
  • My amendment would strike the increase in immigrant work visas and impose a $1,500 immigrant application fee on multinational corporations. With my amendment, the Judiciary Committee would exceed its reconciliation savings targets and do so without increasing immigrant work visas. We authorized over half a million H-1B visas in 2000. Last year, we authorized another $100,000 over 5 years. Do we really need another 150,000 visas on top of that? When is enough enough?
  • My amendment has the support of the unions. It has the support of immigrant enforcement groups. It has the support of Republican and Democrat Senators. I urge agreement of the amendment.
  • The PRESIDING OFFICER. The Senator from Pennsylvania.
  • Mr. SPECTER. Mr. President, I am opposed to this amendment because the fees for L visas would raise funds but would do nothing to fill very important jobs in the United States. The existing plan submitted by the Judiciary Committee imposes a fee, but it extends the H-1B visa and recaptures the visas which were not used in the last 5 years. There are very careful safeguards so that U.S. jobs are not lost. (Matthew Oh note: According to the news report, right after the passage of H.R. 4241, the White House released its opinion more or less agreeing with this assessment, expressing its view that the White House disagreed with the provision imposing fees for L visas for purposes other than immigration. Right on, Mr. President!)
  • I understand the position of the distinguished Senator from West Virginia, the position of the unions, but I believe their concerns are misplaced and that there is a real need for these positions of highly skilled professionals, Ph.D.s, advanced degrees. Therefore, with due respect to my colleague from West Virginia, I ask for a ``no'' vote.
  • The PRESIDING OFFICER. All time has expired. The question is on agreeing to the amendment.
  • Mr. BYRD. I ask for the yeas and nays.
  • The PRESIDING OFFICER. Is there a sufficient second?
  • There is a sufficient second.
  • The yeas and nays were ordered.
  • The clerk will call the roll.
  • The assistant legislative clerk called the roll.
  • Mr. DURBIN. I announce that the Senator from New Jersey (Mr. CORZINE) is necessarily absent.
  • The PRESIDING OFFICER. Are there any other Senators in the Chamber desiring to vote?
  • The result was announced--yeas 14, nays 85.
• With due respect, we disagree with the Sen. Byrd assessment of the financial burden of this bill on the deficit. From our calculation, it would rather contribute additional revenue of about $150 million. Fortunately, 85 Senators read implication and significance of this immigration packet correctly and we look forward to the continuing strong support from these 85 Senators in the conference process under the leadership of Sen. Arlen Specter.
• This reporter proposes to the business leaders, higher learning institutions, high tech industries, and immigrants to send "thank you" e-mails to the respected Senator from Pennsylvania.

11/20/2005: Answer to Confusion on Passage of S. 1932 by House on 11/18/2005

• It appears that the immigrant community is terribly confused because the House passed not only H.R.4241 but also S.1932 right after passing H.R. 4241 after the midnight of 11/17/2005. It appears that the GOP intended to resolve the deficit reduction legislation as soon as possible and acted swiftly on S.1932 which was on the desk of the House Speaker.
• Here is exactly what happened:
  • 11/14/2005 6:02pm:
    Received in the House.
    11/14/2005:
    Message on Senate action sent to the House.
    11/14/2005 7:16pm:
    Held at the desk.
    11/18/2005 1:50am:
    Mr. Nussle asked unanimous consent to strike all after the enacting clause and insert in lieu thereof the provisions of H.R. 4241 as passed by the House.
    11/18/2005 1:50am:
    Considered by unanimous consent.
    11/18/2005 1:50am:
    H.AMDT.633 Amendment reported by the House Committee on Rules.
    11/18/2005 1:50am:
    H.AMDT.633 On agreeing to the Rules amendment (A002) Agreed to without objection.
    11/18/2005 1:50am:
    On passage Passed without objection.
    11/18/2005 1:50am:
    Motion to reconsider laid on the table Agreed to without objection.
    11/18/2005:
    Message on House action received in Senate and at desk: House amendment to Senate bill.
• The House passed S.1932 striking all the provisions in the S.1932 and inserting in lieu thereof H.R. 4241 as passed by the House that night! This House action was then sent to the Senate and at the desk of Senate President pro temp at this time. Because of the differences between the two bills, S. 1932 is expected to the Conference Committee after the Congress returns to the session on December 6, 2005. This means that the businesses, academic community, and immigrant community should focus on the House-Senate conference committee to resolve differences between the S. 1932 as passed by the Senate and the S.1932 as amended by the House. H.R. 4241 which was passed that night is merged into S. 1932 and out of the picture hereon. The Senators and the House members have returned to your community for the next two weeks and it is a golden opportunity for the supports of the original S. 1932 to contact their Congressional delegations in their community during this holiday season. The House Speaker and the GOP majority whips in the Senate and House will play an important role in the conference process.
• It is hoped that this posting clears the confusion in the immigrant community.
  

11/18/2005: How House/Senate Conference Committee Members are Determined?

• For general information, please click here.
• Read also Conference Committee Process.(see Attachment #4)

11/18/2005: Service Center November 18, 2005 Processing Times

• Please see the home page.

11/18/2005: Passage of H.R. 4241 - What Does It Mean to Me?

• Apparently there are some people in the immigrant community who misunderstand that the immigrant visa and H-1B recaptures or spouse/children special provisions may take effect soon. Passage of H.R. 4241 does not mean that the immigration bills have also passed the House. The H.R. 4241, unlike the Senate S.1932, did not include the immigration bills. Then why did the immigrant community monitor the passage of this bill? Both S. 1932 of the Senate and H.R. 4241 are two different versions of the same legislation named Omnibus Deficit Reduction Act ( also called Omnibus Budget Reconciliation Act) and unless the House bill, H.R. 4241, passes, the process of conference to compromise between the House bill and the Senate bill will not be commenced. Since the House bill did not include the immigration packet, while the Senate bill included immigration packet, the immigrant community wanted to see that the conference process would start as early as possible so that they will know whether the Congress will eventually accept the S. 1932 immigration packet and legislate it into a law.
• In this regard, the passage of H.R. 4241 is not the end but the beginning of the process to get the Senate S.1932 immigration recapture bill be passed as part of the final version of the Ominibus Deficit Reduction Act. The Congress will go into the Thanksgiving holiday recess from next week and no voting sessions will start until next month. Due to another big holidays ahead, Christritmas and New Year, the Congress will have a very limited time to wrap up the legislative activities of the First Session of the 109th Congress. Report indicates that the conference process is likely to start next month when the Congress returns to the Hill. Since this is the beginning of the process to get the immigration bills accepted by the both Houses, the business, academic, and immigrant communities should expand their efforts for the next one week or so in order to assure that the current immigration clog be relieved as soon as possible.

11/18/2005: House Passed H.R. 4241 by Vote 217-215 at 01:41 a.m. Today

• The House debated all night last night and finally passed this bill by hair-thin close vote of 217 yeas and 215 nays at close to 2 O'clock this morning without amendment for the immigration bills.
• Read and help the immigration community's last minute effort

11/17/2005: E-Mail Link to Each Member of the House

• Employers and immigrants, it is your finger tips away. Click here to send your message to your Congressional delegate in your district. Just type in your Zip Code and write your message and click!
• To view the current proceedings on the House floor, please click here.
• The following text may be copied and customized to fit your situation and e-mail to your representative using the link above.
• Dear Member of Congress:
  • As we begin Fiscal Year 2006, America’s long-term economic health must be at the forefront of our nation’s legislative agenda. I am writing to alert you to several issues that we believe pose a significant threat to U.S. competitiveness and economic security. Leading business and scientific organizations recently warned that the United States is in danger of losing its innovative edge. Lagging student interest in math, science and engineering, coupled with a pattern of reduced government investment in basic research in the physical sciences are troubling indicators for the future. These disturbing trends must be reversed.
  • As we continue efforts to grow our pipeline of American scientists and engineers, we need to enable U.S. companies recruiting at U.S. universities to have access to all the graduates – including foreign students. For example, in electrical engineering, 56 percent of master’s and 66 percent of the PhD graduates of U.S. programs in 2004 were foreign students. We should open the doors wide to these talented individuals. Unfortunately, current U.S. Government policies are going in the exact opposite direction. If U.S. businesses are not able to hire or retain these employees, our overseas competitors will. As an example of the growing problem, on August 12, 2005, the U.S. Citizenship and Immigration Services (USCIS) announced that the entire FY 2006 allotment of H-1B visas had been exhausted. The announcement was unprecedented, as it came nearly two months prior to the beginning of the new fiscal year – signaling both the significant demand for highly educated workers in many specialized professions and a growing competitiveness problem for America. This is the seventh time since 1997 that the cap on H-1B visas has been reached before the end of the fiscal year. This is the second year in a row that it has been reached on or before the start of the fiscal year. U.S. employers need predictability – something the current system does not allow.
  • The green card process also needs reform to enable employers to hire and retain the best qualified individuals in sufficient numbers. We believe that those individuals with the education, experience, knowledge and skills critical to U.S. competitiveness in the 21 st Century should be granted priority permanent resident status. Such reforms would significantly assist U.S. employers in retaining that talent, as well as alleviate the overwhelming demand for H-1B visas. USCIS’ efforts to reduce application backlogs have created another problem – unavailability of permanent visas, frequently called “green cards.” As of October 1, 2005, the State Department has set the clock backward – adding years to the wait for a green card for thousands of foreign professionals from countries such as India, China and the Philippines. The impact of the new restrictions will make it nearly impossible for these highly educated and skilled workers to gain permanent residence in the United States in the foreseeable future. Moreover, the recent unavailability of visas will force thousands of professionals to put their lives on hold, with the inability to change jobs, locations or employers.
  • To make matters worse, many of these professionals – including researchers, scientists, teachers and engineers – will see their wait for permanent residency drag on for many more years. Our system of backlogs, delays and unpredictability is discouraging and unwelcoming, forcing many valued employees to seek employment in other nations. This is not only disruptive to U.S. employers and our economy, but exceedingly unfair to hard-working, valued members of the American workforce. Access to this talent keeps innovation and jobs in the United States. Tapping America’s Potential and the National Association of Manufacturers’ 2005 Labor Day Report are available at www.competeamerica.org and www.nam.org.
    
  • The U.S. Senate passed S. 1932 which includes Section 8001 and Section 8002 to resolve the foregoing problems which this nation faces. The House bill, H.R. 4241, failed to include these important parts of the budget reconciliation legislation. Please support Sections 8001 and 8002 of S. 1932 in the conference process. Thank you. Sincerely, xxxxxxxxx, President, yyy Corporation, address, telephone number.

11/17/2005 (9:00 p.m.): House Returned to Session and Currently Debates H.R. 4241

• The House returned to the session at about 8:16 p.m. (EST) and started debating H.R. 4241. Please stay tuned to this web site for the House action tonight.

11/17/2005: H.R. 4241 Update

• The House has yet to debate this bill even though it was laid on table this afternoon. The House may or may not return to the session this evening. If they don't, they will pick it up early tomorrow. If they do, they are expected to have two hours of debate before they get into roll calls for this bill. It appears that the House resolution on this bill indicates that amendments may not be allowed on the floor for this bill, and it is almost certain that the House will pass H.R. 4241 without the S. 1932 immigration package.
• Since the budget reconciliation bills are expected to move to the Senate-House conference committee which is yet to be formed by the Speaker of the House and the President of the Senate, people are encouraged to keep sending support letters to the Speaker of the House and the President of the Senate plus members of the Senate Judiciary Committee and the House Budget Committee, especially the bill sponsors, to adopt the S.1932 Section 8001 and Section 8002. Traditionally, the Speaker and the President have been nominating the conference members mostly from the members of the Committees in each House that passed the conflicting bills. Please do not give up yet. The fight is not over. Remember Yogi Berra? It ain't over till it is over. Please do not loosen your "bite!" Business and academic communities are extremely important for the last minute push, and we urge each of you to contact your employers to keep contacting these Senators and Congress people starting early tomorrow morning.

11/17/2005: H.R. 4241 Laid On Table in the House, 12:45 P.M. EST

• This bill is on the table now for the debate on the House floor. We will monitor the progress of this bill today. Please stay tuned.

11/16/2005: Support of Merger of ICE-CBP Reportedly Growing in the Congress

• Report indicates that there is a growing support for merger of the two immigration enfocement agencies and it may come sooner than expected. Stay tuned.

11/16/2005: House Floor Action Update

• The House was in full session all day today passing various legislative bills and resolutions. The House failed to reach H.R. 4241. But H.R. 4241 is still scheduled to be debated and acted upon before Saturday. It is just that there is slim chance that this bill will be acted upon within today even though the House is still in full session as of this reporting (5:00 p.m. EST). Once this bill is passed, there is a good chance that the Speaker of the House may name the members for the conference with the Senate bill. Please stay tuned.

11/16/2005: Economic Growth and Importance of Immigration

• The Immigration Policy Center has just released its study dated November 2005 on "Economic Growth and Immigration" which establishes that the American population will face labor force problem without continuing feed-in of the immigrants due to the trend of population growth that would not meet the needed labor forces to sustain the economic growth of the country. Please read on.

11/16/2005: November 2005 DHS Inspector General Report Recommending Merger of ICE and CBP Immigration Enforcement Agencies

• This controversial report puts the DHS leadership at the edge. Read on.

11/15/2005: House Concluded the Debate and Vote for the Bills of the Today's Agenda

• The House wrapped up the debates and voting for various legislative bills at 7:44 p.m. House did not reach the H.R. 4241 today. We hope to see that the House reach this bill tomorrow. Please stay tuned.

11/15/2005: House Started Debating Various Bills Starting at 2:00 p.m. Est., and Voting Will Start at 6:30 p.m. Est.

• House is currently (3.20 p.m.) debating one bill after another bill and has not reached the H.R. 4241. And then for the bills which they completed debate will be voted from 6:30 p.m. tonight. At this time, we are watching very closely whether it will reach H.R. 4241 today and whether any amendments will be presented on the floor. Please stay tuned.

11/14/2005: ICE - CBP Duel Over Merger Issue Elevated to DHS - DHS IG Duel

• The ICE has lost Michael Garcia for a while and currently is headless, and the CBP Commissioner is retiring and no replacement has been announced. The duel between the ICE and CBP over the immigration enfocement power and merger issue has been a talk of the town in the Beltway for quite a while. The struggle of the confirmation of the nominee of the ICE assistant secretary in the Senate has added a fuel over the burning house.
• Now, report indicates that the DHS Inspector General is expected to release a report tomorrow recommending merger of these two immigration enforcement agencies and behind the scence, there have been confrontations between the DHS leadership and the Inspector General. It is obvious that this will be eventually resolved by the oversight authority and the President, but this is one of the fall-outs of scrapping the legacy INS and creating a new immigration structure hastily under the pressure of 9/11 incident without putting sufficient amount of review and study on the potential fallouts from merger of 22 giant federal departments. Just interesting to watch how these duels will unfold in the future.
• Well, the Senate reaction was quick. Please read the Senate rection.

11/14/2005: Breath-Taking House Voting Schedules and Need for Contact with the Members of the House within Today and Tomorrow

• The House is scheduled to adjourn after the some voting activities between tomorrow evening and Friday evening, November 18, 2005 for the Thanksgiving break. Currently, no voting activities are scheduled on the House floor until and after the first week of December 2005, once the House misses to vote for H.R. 4241 before the Thanksgiving! Besides, there is no roll call scheduled for any bills or resolutions today and the earliest voting is not expected until tomorrow evening. Accordingly, today and tomorrow are the critical dates for the businesses, schools, and immigration supporters to contact en masse the members of the House so that this bill is passed within this week. The House is under political pressure to act on the deficit reduction bill (H.R. 4241). Please act now!!

11/13/2005: Impact of Grace Korean United Methodist Church Case on Potential Opportunity for Motion to Reopen of Previous Denials on This Issue

• Those whose I-140 was denied on this issue of a single bachelor's degree requirement are likely to file a motion to reopen the denial of their prior cases based on this Oregon federal district court decision. The question is how much the USCIS will be bound by this court decision. There are two potential issues to win in such a motion to reopen proceeding. One potential issue is the potential USCIS argument that the decision of the case is narrow and applies only to a similar situation in the State of Oregon. More troublesome is the fact that this case will not be reported in the Court Reporter, indicating that it will not have a "precedent" force. Accordingly, those who intend to file a motion to reopen or who will face denial of I-140 petitions on this issue in the future because of the Service Center's decision to defy the court decision in Oregon are likely to face further struggle unless the USCIS voluntarily decides to follow the Oregon federal court decision. Otherwise, it is anticipated that this issue will have to be litigated again in the future cases. We urge the AILA to work with the USCIS HQ in Washington to encourage the USCIS leadership, particularly Mr. Robert Divine, Acting Deputy Director, to adopt the Oregon decision as the USCIS' new policy.

11/12/2005: H.R. 4241 Prospect for the House Passage Next Week Uncertain

• The report indicates that the House Deficit Reduction Act of 2005 is swirled in a very complicated political climate within the House GOP making the fate of this legislative bill uncertain at this moment. Accordingly, the prospect for passage of this bill on the House floor next week is uncertain as well. As we reported earlier, the fate of the Senate immigration package in the S.1932 is currently clinging on the passage of the House bill, and immigrant community is experiencing emotional roller-coaster and frustration. Please stay tuned to this web site for the development of the House action next week.

11/11/2005: Grace Korean United Methodist Church v. Michael Chertoff, CV.04-1849-PK

• The issue and the ruling are somewhat narrower than those we discussed earlier. First, this ruling does not apply when the labor certification did not require a Bachelor's degree or "equivalent." The issue in this case is focused on a narrow issue of interpretation of "equivalent." Accordingly, should the Service Center deny I-140 petition based on the labor certification application which required a Bachelor's degree and the alien does not have a bachelor's degree, this decision will have no affect on the standards which the Service Centers have been denying I-140 for lack of a single bachelor's degree. However, if the labor certification required a bachelor's degree or "equivalent," those who try to use this decision have a good chance to win as the employer can argue that "equivalent" included not only combination of education and experience but combination of two different educational degrees or diplomas, even though it will constitute a dicta.
• Accordingly, this case gives an important lesson to the labor certification filers that if the alien beneficiary does not have a four-year college degree but has an equivalent multiple foreign degrees, the labor certification application should always require "bachelor's degree or equivalent."
• On behalf of the readers of this message, this reporter wishes to express a profound appreciation to a gentleman who allowed this reporter to share this case link with our readers. Thank you!

11/11/2005: Immigration Recapture Bill in Impasse Over Budget Reduction Battle in the House

• Senator Arlen Specter, the Chairman of the Senate Judiciary Committee, proposed this immigration bill as part of the Budget Omnibus Reconciliation Act of 2005 and it appears that the strategy worked in the Senate. However, the House leaders are battling with the Deficit Reduction Act of 2005 even without the immigration recapture provisions as revealed by its cancellation of vote yesterday. The House GOP leaders are considering to try a vote again when it comes back from the Veterans Day (today) holiday weekend. The Senate S. 1932 is at this time trapped in the House internal struggle. At this time, no member of the House has come forward to introduce an amendment to add the Senate immigration packet to the House bill on the floor. In fact, it is not clear whether such amendment strategy will work better than the strategy to handle the S. 1932 immigration bill rather at the conference level. At this point, quick vote of the House budget bill with or without immigration packet is the top priority from the perspectives of the immigration community. Please read the New York Times report on yesterday's struggle in the House.

11/11/2005: Q&A E-Mails and Suggestions

• This reporter has been writing Q&A to discuss some visa retrogression related issues. We have covered almost 100 questions and answers. We believe that most of the visa retrogression related questions have been thoroughly covered and we will cease updating the visa retrogression related Q&A. The Visa Retrogression Q&A will be accessible through the link at the home page.
• Beginning today, we will start a new Q&A under the titile of "Advanced Q&A" to discuss some novel employment-based immigration issues. The rule for addressing such questions via e-mail is as follows: (1) Individual specific questions will not be answered. (2) Too basic questions will also be not answered. (3) Too long e-mail question will be ignored. This reporter has a limited time to read e-mails. To address a "short" question, people should address a single-issue question and not multiple-issue question. We will definitely ignore any e-mails that seek a second opinion. Let's start a new dialogue.

11/11/2005: Service Center Denials of Combination of Two Foreign Degrees as Equivalent U.S. Bachelor's Degree and Court Challenge

• Lately the Service Centers have growingly shown a hawky attitude denying I-140 petitions when the labor certification required a bachelor's degree and the alien beneficiary could meet only by either two academic degrees or equivalent education. Most typically, it involves an Indian professional who attained a Bachelor of Science degree (3-year degree) and a post-graduate diploma or degree (1 or 2-years). The foreign credential evaluators have been issuing an authoritative evaluation that these academic prepreation is equivalent to a bachelor's degree (4-year degree) in the United States. In the past, people did not have any problem in obtaining I-140 approval on such foreign credential evaluation. In fact, such standard was supported by the USCIS Business Division Chief, Efferen Hernandez, who had opined that such combination of two progress educational degrees met the legal standard for the bachelor's degree requirement. However, the Nebraska Service Center started challenging such interpretation of the regulation, and defying the opinion of the USCIS high-ranking official, started denying such I-140 petitions. Worse yet, lately this disease started spreading to other Service Centers and the number of denials started growing all over the country.
• Now, we have a positive news. The federal district court in the State of Oregon in Grace Korean United Methodist Church vs. Michael Chertoff, Case Number 04-1849, (Oregon District, November 3, 2005) disagreed with the USCIS position on the interpretation of "equivalent" in educational requirement in the labor certification application and has just struck down the USCIS view. The details have yet to be released, but we are lucky that the court has blocked the opening of flood gate in this important issue. This site will report the details as soon as this reporter obtains a copy of this decision. Please stay tuned to this website.

11/11/2005: BIA Rules Termination of Refugee Status Not a Requirement for Removal Proceeding

• Yesterday, the BIA handed down a rule that removal proceedings may be commenced against an alien who was admitted to the U.S. as a refugee without prior termination of the alien's refugee status, and a refugee who has been granted a lawful permanent status can be removed without the refugree status first terminated. see In re Smriko, 23 I&N. 836 (BIA 2005), Interim Decision #2520, November 10, 2005.

11/10/2005: House GOP Leaders Scraped the Scheduled Vote of H.R. 4241 Today

• Report indicates that the House Republican leaders canceled a planned vote Thursday on a $51 billion budget-cut package in the face of a revolt over cuts to Medicaid, food stamps and student loans. The decision by GOP leaders came despite a big concession to moderates Wednesday, when the leaders dropped provisions to open the Arctic National Refuge to oil and gas exploration, as well as a plan allowing states to lift a moratorium on oil drilling off the Atlantic and Pacific Coasts.

11/10/2005: December 2005 Visa Bulletin

• See home page. In December, the numbers moved forward quite substantially. Now, what's next? Let's see what the Visa Bureau says about the movement:
  • EB Visa Number Prediction:
    • The backlog reduction efforts of both USCIS and the DOL continue to result in very heavy demand for EB numbers. The amount of cases currently being processed is sufficient to use all available numbers in many categories. The level of demand in the Employment categories is expected to be far in excess of the annual limits, and once established, cut-off date movements are likely to be slow.
  • Will There be Cut-Off Dates for Any Additional Countries in EB-1 and EB-2?
    • It may be necessary to establish a cut-off date for the “All Chargeability Areas” EB-2 category at some point during the 2nd half of the FY. It is too early to estimate whether future demand will warrant such action. As of October 1st, cut-off dates for the EB-1 and EB-2 for China and India were established due to heavy demand; cut-off date movement is expected to be limited until a demand pattern has been determined.
  • What About Schedule A?
    • The 50,000 Schedule A numbers will provide relief to many Employment preference applicants, since any Schedule A applicant whose priority date is beyond the relevant Employment preference cut-off date can be processed and charged against the 50,000 limit. It is expected that Schedule A numbers will be available on a “Current” basis throughout all of FY-2006.
  • Why Such Huge Backlog?
    • The reasons the Employment categories had become current were in previous years are that the AC 21 recaptured a “pool” of 131,000 Employment numbers unused in FY 1999 and 2000, and allowed those recaptured numbers to be used by the oversubscribed countries, and the substantial decline in demand for numbers for adjustment of status cases prevented the annual limits from being reached for several years. In FY-2006, we are faced with continuing heavy demand due to the DHS and DOL backlog reduction efforts, along with an Employment limit which is approximately 40% lower than that of FY-2005. The lower annual Employment limit is a result of the virtual elimination of the “pool” of recaptured AC21 numbers, returning us to the pre-July 2001 situation.
    • In recent years, the application of the rules outlined in AC21 has allowed countries such as China – mainland born, India, and the Philippines to utilize large amounts of employment numbers which would have otherwise gone unused. During FY-2006, due to anticipated heavy demand, the AC21 provisions are not expected to apply, and the amount of Employment numbers available to any single country will be subject to the 7% cap. It is anticipated that the addition of unused FY-2005 Family numbers and the remaining AC21 numbers to the 140,000 annual minimum will result in an FY-2006 annual Employment limit of 152,000. This will mean an Employment per-country limit for FY-2006 of approximately 10,650.
• Overall the prediction is not too promising. We need the Recapture legislation and the Comprehensive Immigration Reform legislation!

11/10/2005: Voice Your Support for S.1932 NOW!

• It is your finger tips away. Click here to send your message to your Congressional delegate in your district. Just type in your Zip Code and write your message and click!
• To view the current proceedings on the House floor, please click here.

11/10/2005: How S. 1932 Will Help Deficit Reduction, the Goal of H.R. 4241?

• Members of the House of Representatives, the Senate bill, S. 1932, not only helps the America to recruit the brightests, to retain the brightest and protect our technologies against international competitors, and to keep the jobs in the U.S. and not to outsource our jobs, but also will help to reduce the nation's deficit upto $150,000,000.00.
• Senate bill proposes to impose $500.00 additional I-140 filing fee for EB-1, EB-2, and EB-3. Considering the fact that the numbers for EB-4 and EB-5 are negligible, the total numbers may run upto close to 140,000 a year.
• Senate bill proposes to impose $500.00 additional I-140 filing fees for 90,000 recaptured EB immigrant visa numbers.
• Senate bill proposed to impose $500.00 addtional H-1B filing fees for 90,000 recaptured H-1B visa numbers.
• The Senate immigration recapture part of the S.1932 is a winner for America and for the Congress from the four corners of the common sense! Please amend the H.R. 4241 to add this part (Section 8001 and 8002) of the Senate bill to Section 5100 to the House bill, H.R. 4241.

11/10/2005: H.R. 4241 Likely Tabled on the Floor Today

• Republican House Majority Leader, Blunt says GOP takes this to the floor on Thursday. The chance for this bill is improving as the sticky issue relating to the Arctic National Wildlife Refuge to oil and gas drilling and to ease restrictions on offshore drilling may be removed from the bill. Currently, this issue is considered to be a roadblock to passage of the bill, but potential removal of this provision is likely to pave a way to passage of this bill, not necessarily today but when the House returns next Monday. There are not too many days left before the Congressional session will be over for this session. If the House passes this bill, H.R. 4241, there is a good chance that H.R. 4241 and S. 1932 may go to the conference before the Congress will go into recess. People are urged to continue their efforts to contact the members of the Congress.

11/09/2005: Foreign Labor Certification Applications and FIFO (First-In First-Out) Principle

• The reengineering of foreign labor certification was founded on two concepts in terms of the processing procedures: One is electronization and the other was nationalization or centralization. The reengineering system has gone through many trial and errors and caused pains and aches to the customers.
• After a disastrous start as related to the decision matrix, it appears that the PERM program has shown signs of stability, except the two problems: One is practical abandonment of 45-60 day processing rule in the regulation and irregularity of processing of applications in that there is currently no uniform processing time between the Chicago and Atlanta National Processing Centers and within each National Processing Center, the pattern of processing applications shows irregularity. Second problem is unsettled national policy on multiple applications. So-called Bill Carlson's Round 5 policy on this issue has been on hold even before it was commenced on September 1, 2005. Pending the revisitation of the policy, it appears that processing of earlier PERM applications remains more or less stale at "in process." We urge the leaders of the DFLC in Washington to resolve these hang-ups as soon as possible so that the PERM can move on as planned. Because of the second problem, the processing of PERM applications has turned out to be irregular raising the issue of "fairness" in management of the system.
• For the Backlog Elimination Centers in Dallas, Philadelphia, New York, Boston, and Denver, ???, currently these offices reportedly do not follow the FIFO processing principles as related to a number of factors that affect the final decision process relative to other cases in the permanent labor certification process. DOL has recently explained that these included the type of application (RIR, regular application, special handling, limited review, etc), the stage of processing at which the application was received by the the Backlog Elimination Center, for instance, the applications received from the regions have already completed recruitment, and these cases could move along earlier than those received from the states. Another factors that affected the FIFO processing was the dates of applications pending at each center, which determined each application's place within the FIFO queue, the differeent quality of the applications, some raising questions that took longer, and the response time of the employer to center's 45-day letters.
• The practical abandonment of FIFO again raises the impression of processing and management of applications irregularly and without a uniform national standard. It raises concerns with the "fairness" of treating the customers equally on a fixed uniform standard.
• Another problem the current labor certification management presents is lack of accessibility of the customers and channel for communication with the customers. The function of the intermediary (AILA Labor Certification Liason) has noticeably been set back and the agency is operating the system secluded from the customer community. It is strongly urged that DFLC/BECs operates the labor certification processing openly and keep the customers informed of the status of the business. Whenever something is run behind the curtain, it creates a misunderstanding of irregularity and lawlessness. The agency should start reporting the processing times for each BEC as soon as possible. The customer community is not informed of what communications are being released to which intermediaries and no intermediaries report the state of the processing. We urge the DFLC to "open the door" wide directly to the customers by updating the customers on its website and reporting regularly the processing times.

11/09/2005: Foreign Graduate Students Enrollment Up in 2005

• The state department reports that first-time enrollments of foreign students at U.S. graduate institutions increased 1 percent from 2004 to 2005, following three years of declines, an independent academic organization reports. Enrollments were up 11 percent for Middle Eastern students, up 5 percent for Korean students and up 3 percent for Chinese and Indian students from 2004 levels, according to the study. Read on.

11/09/2005: Legislative Process: What Process Will the S. 1932 and H.R. 4241 Go Through From Here On?

• As the House is about to mark up full house debate of H.R. 4241, the House version of Budget Omnibus Reconciliation bill, people are anxious to learn what process the bills from the Senate and the House will go through as people want to participate in the final legislative process. Unless the a member of the House introduces the Senate immigration bill as an amendment on the floor, it is obvious that the Senate S. 1932 bill and the House H.R. 4241 will go to conference of the two Houses. Next question then is who will be the members of the Conference Committee from each House. This will not be known until the differences in the two bills between the House and the Senate are fixed by the passage of the bills by each House and in each House a motion is taken to send them to the conference. The members of conference committee are not appointed by the Speaker of House and the President of Senate until it gets to this stage. Stay tuned for the development of the budget reconciliation legislative process.
• In the meantime, as a civic lesson, people may want to read the following two materials:
  • Legislative Process
  • Conference Committee Process.(see Attachment #4)

11/08/2005: "Blue" Labor Certification? What's That?

• AILA has been advised by the DOL that DOL will print the certified labor certification on a blue sheet. At the same time, the coloful stamp of the Certifying Officer will disappear as well. Hmmmmm..........................................................."Blue" Certification vs "Green" Card: One wonders who selected these colors? Doesn't "Blue" represents "cool" as well as "down" or "depressed?" Interesting...........................................!

11/08/2005: Michael Aytes Memo Gives Guidance on Eligibility to Self-Petition as Battered Spouse of USC or LPR Within 2 Years of the Abusers's Loss of Status

• This memorandum dated October 31, 2005 and issued by Mr. Michael Aytes, Acting Associate Director of Domestic Operations, USCIS, issued to give guidance to the field offices concerning the change in the self-petitioning eligibility requirements regarding the effect of an abuser's loss of immigration status prior to the filing of and following the approval of a self-petition. Family-Based Immigration practioners should read this memorandum. Read on.

11/08/2005: Michael Aytes Memo to Set Forth Revised Standards for Determining I-602 Filing Requirement for Waivers for Refugees

• This memorandum dated October 31, 2005 and issued by Mr. Michael Aytes, Actng Associate Director of Domestic Operations, USCIS, revises the standards on when I-602 filiing is required for granted waiver of excludability for refugees under 209(C). Local district practitioners should read this memorandum. Read on.

11/08/2005: House H.R. 4241 has been reported to the full House by the Budget Committee and Awaiting for Debate (Union Calendar 151)

• Businesses are urged to contact their Congressional delegations immediately to introduce amendment in line with the S. 1932, Sections 8001 and 8002.

11/08/2005: Dear Dintinguished Leaders of AFL-CIO and Other Unions

• We are grateful for your efforts to keep our jobs in the United States. We also realize that you are one of the stakeholders when it comes to the shrinkage of the job market in the U.S. as affected by the outsourcing and exporting of jobs to foreign countries in that you need to protect the size of your membership to powerfully represent the interests of the workers.
• We want to call your attention to a legislative bill, S. 1932, which the Senate overwhelmly passed on November 3, 2005 exactly to protect the jobs against the outsourcing of jobs. The House is currently working on the Deficit Reduction Act of 2005 (H.R. 4241) which does not reflect the provisions that protect jobs in the U.S. under the Section 8001 of S. 1932. We invite you to join us to educate the House members to accept the Senate bill and either amend the House bill which was passed by the Budget Committee of the House on November 3, 2005 or when it gets to the conference committee, they consent to the Senate bill.
• Here is why you will have to do it:
• If S. 1932 is enacted into law, the following jobs will remain in the U.S., albeit by the foreign workers, contributing to the nation's employment and economy in that these foreign workers will generate businesses, revenues, and competitive edge over the foreign businesses by participating in the consumer market and investment market. They will also contribute to the growth of employment and your membership.
  • If the unused H-1B numbers of 300,000 are not recaptured and used, the U.S. businesses will have to outsource 300,000 jobs to foreign countries.
  • If 90,000 unused Employment Based immigrant visa quota numbers are not recaptured and used, these jobs will also be outsourced to foreign countries.
• Distinguished union leaders, the jobs taken by foreign workers either in the U.S. or foreign countries depend on the market forces in the global economy and free trade. For the international competitions, U.S. businesses will have to rely on some foreign workers, particularly high tech professionals, no matter where they perform the jobs.
• However, if the job had to be done overseas by the outsourced foreign workers in a territory of a foreign country, they will not contribute to the American economy other than supply of labor forces, and these outsourced jobs will not create businesses and jobs in the related industries as they will not spend money to buy the goods and services in this country. The foreign workers who are hired and work in the country will generate and boost the country's domestic businesses and jobs as they spend their income in this country. Granted that the U.S. businesses will need their services and allegedly they will take away American jobs, the result will remain same: No matter what, whether in the form of oursourcing or hiring foreign workers within the country, probably the same number of jobs may be allegedly taken away by the global market forces. The huge difference between the two is that outsourcing of jobs will not help to create jobs and business within the country by the forced of consumption but the foreign workers in the U.S. will. Come to think of the affect of McDonald hamburger drive-in orders taken by foreign workers in a foreign country and orders taken by a foreign worker in town. Come to think of the ongoing Northwest Airlines Mechanics strikes.
• A large number of high tech workers have already moved or are currently moving to our competitors in the Europe, Canada, Australia. Our business clients are more and more bringing the jobs to foreign companies in Asia and South America. No one can stop the rule of global economy and the business reality.
• Dear union leaders, the bill is not asking to increase annual quota or cap. These are the numbers which the law has already provided in the existing statures, but wasted because of the government failure to process petitions and applications timely for a number of reasons in the past. We are talking about the "recapture"of the numbers which the laws and regulations mandated the U.S. government to use but the government failed. Because of the fault of the government, the Congressionally mandated quota and cap have not been issued and the U.S. businesses are going outside of the country to look for labor foces in the foreign countries. You will agree that it is not the best interest for our nation and our economy. S. 1932 will not take away American jobs in that the law already provided these numbers and the law was in the lawbook. Please contact your Congressional representatives to tell them that S. 1932 is not to take away jobs from the American labor market but to protect the American labor market by precluding outsourcing of our jobs to foreign countries, particularly our competitors! Thank you.

11/06/2005: S. 1932 and Spouse and Children of EB Beneficiary

• S. 1932 provides that the immigrant visa for the accompaning or following-to-join deriavative beneficiary spouse and children of EB direct beneficiary should not be counted in EB annual cap. Some people question that since the system must draw the visa numbers from somewhere for the spouses and children, where the visa number will be drawn. This question is derived from misunderstanding of the immigration quota system. Under the current immigration system, all the employment-based immigrant petitions fall under the preference categories and in that regard are subject to the quota system. However, when it comes to the family-based immigration systems, the immediate relatives (spouses and children, and parents) of a U.S. citizen are not subject to the quota system and the U.S. government can issue green cards for these beneficiaries without any limitation in numbers. A similar concept will apply to the spouses and children of EB applicant under S. 1932, but the difference is that in the case of the spouse or children of EB direct beneficiary, unless the direct beneficiary's I-140 petition is eligible, their spouses and children will not be able to submit I-485 applications. Besides, unless the direct EB beneficiary's I-485 is first or simultaneously approved, the U.S. government will not be able to approve their I-485 applications. Accordingly, they remain "derivative" beneficiaries whose fate will depend on the direct beneficiary's eligibility and approval of the green card. The spouses and children thus cannot obtain the green card approval as separately from the direct beneficiary's immigration proceeding. In the following-to-join context, their applications may be processed after the direct beneficiary's I-485 is approved, but again the direct beneficiary's I-485 approval is basis for the family members' application and approval. In this regard, they will be indirectly subjected to the preference visa quota system in that unless the direct beneficiary's I-485 is approved after he/she gets his/her visa number current in the Visa Bulletin, their (spouses and children) I-485 applications will not be approved either. It is just that their applications would not take out visa numbers from the specific preference category quota and nothing more. This issue is discussed in Q&A 98, but we are reposting it in view of the widespread confusion in the immigrant community.

11/06/2005: S. 1932 and Consular Immigrant Visa Proceeding vs. I-485 Application Proceeding

• People must understand that the provision in the S. 1932 that will permit certain people to apply for adjustment of status (I-485) even during the period of visa retrogression will not apply to those who go through the consular immigrant proceeding. This means that those who have been waiting for the visa number outside of the U.S. to start the consular immigrant visa proceedings will not be able to get any help from this legislation. They will remain "subject" to the visa retrogression and until the visa number becomes available, they will not be able to apply for the immigrant visa for years from now. Those, who had already started the consular immigrant visa proceedings to take advantage of speedy processing in some consulates like Montreal, Canada or whatever and then remain stuck with the visa number retrogression, may be able to file I-485 application regardless of the visa retrogression, if they will be physically present in the U.S. at the time when this bill is enacted into law and the USCIS starts implementing the law.
• Once this bill is enacted into law, there will be a huge difference between the consular immigrant visa processsing and the USCIS I-485 adjustment processing. Under the visa retrogression environment, it will make no sense that one considers a consular immigrant visa proceeding once this bill is enacted into law. This may sound unfair to those who will have to go through the consular proceeding as they are present outside of the U.S., but the intent of this legislation is to give a relief to those who will have to face a tremendous hardship after spending years of endurance and hard work and have been stricken by the lightening ball of visa retrogression. This bill amends Section 245 of the immigration statute which applies only to the I-485 application proceedings for those who are physically present in the United States.

11/05/2005: Mr. President, Distinguished Members of Congress, and Mr. Secretary Chertoff

• Did you know that almost half of the graduate students currently enrolled in the physical sciences and engineering at the United States universities come from other nations? I mean "half!!" With all due respect, please allow me to tell you what this statistics mean to this country. If we fail to retain these scientists and engineers, they will take these technologies to foreign countries, particularly our competitors. Our competitors are sending all type of messages and winks to attract these scientists and engineers, not because they look cute or handsome or beautiful, but because they want to steal our technologies and knowledges through these scientists and engineers. The damage to this country in the long haul will be devastating. Without any doubt, you all love the United States of America as I do.
• Mr. Secretary Chertoff, Homeland Security, please think about why your predecessor, Mr. Tom Ridge said in April 14, 2003 that "as we secure America from terrorists, we do not want to risk losing the next Enrico Fermi or Albert Einstein…We would be a far poorer nation in many, many ways." He served this country at a time when the terrorism was more pressing issue for this nation.
• I urge you, Mr. President and Mr. Secretary, to remind the members of the Congress of the importance of S. 1932 which the Senate passed on November 3, 2005 to keep these critical human resources to this country and protect our technologies. I urge you to contact members of the Congress to support and consent to this bill.
• I also want to take this opportunity to reiterate my previous statement that if this bill is not passed, the businesses will be forced to take these jobs to foreign countries in the name of outsourcing with the econimically damaging consequences. As you are aware, the House is scheduled to pick up this bill in the very near future and your urgent action will be critically important for the future of our country.

11/05/2005: Advisory for PERM I-140 Filers

• AILA has reported that at least one Service Center, Nebraska Service Center, advised that when people file I-140 petition with the "certain" approved PERM applications, unless the DOL PERM approval letters are also filed with the certified ETA 9089, proper priority date may not be recognized. Here "certain" means the certified ETA 9089 with color printed statement in Item O. It is thus prudent and advisable that it may be a good practice to file all the I-140 petitions with the certified ETA 9089 enclosing the DOL cover letter that comes with the certified ETA 9089 to assure a proper assignment of the priority date. Important, Important!

11/04/2005: I-485 Filing During Visa Retrogression Under S.1932 - Who Is Covered?

• One of the huge benefits which the just passed Senate Reconciliation bill, S. 2932, will offer to the immigrants is to allow filing of I-485 application for certain EB petition beneficiaries and their family members, even during the period of visa retrogression, upon payment of $500 fees. It is thus important that people understand who are covered by this provision.
• The following I-140 petition beneficiaries will be able to file I-485 applications regardless of the visa number availability:
  • Those whose employer filed I-140 petition for him or her, but who could not file I-485 applications because of the visa number retrogression. This group includes two sub-groups: Group A: Those whose I-140 petition has already been approved at any time. Group B: Those whose I-140 petition has been filed and pending at the tme of enactment of this legislation. It appears that those whose I-140 petition is not pending at the time of enactment of this legislation, one may still be able to file concurrent I-140 and I-485 application during the period of visa retrogression inasmuch as the USCIS revises the current concurrent filing regulation. Otherwise, these group of people have to wait until their I-140 petition is approved before they can file I-485 applications.
  • Those who are eligible for I-485 applications under this new legislation will be able to obtain EAD and Advance Parole pending their I-485 applications. Of course, their I-485 application will not be approved until the visa number becomes available.
  • EB classifications which are covered by this legislation are as follows:
    • EB-1A (Extraordinary Worker)
    • EB-1B (Outstanding Researcher)
    • EB-1C (Multinational Corporate Executives and Managers
    • EB-2 (Advanced Degree or Exceptional Ability Workers including NIW)
    • EB-3 (Professional or Skilled Worker)
    • EB-3EW (Unskilled Worker)
    • EB-3EX (Schedule A Worker)
  • EB-4 (I-360 Religious Workers) and EB-5 (Investor Immigrant) workers are not covered.
  • The accompanying or following to join spouses and children are also covered.
• Once they file I-485 applications, they will also receive the AC-21 portability benefits and will be able to change employment after 180 days of I-485 filing.
• Because of the foregoing benefits, even if the Immigration Reform legislation fails to increase the EB quota numbers substantially large enough to cover the current visa number waiters and forth-coming I-485 filers, they will be able to at least lead a normal life using EAD and Advance parole.
• For the foregoing reasons, the immigrant community should work hard in collaboration with their employers to get the Reconciliation bill enacted into law!!!!
• The full text of this part of the legislative bill is as follows:
  • `(2) If a supplemental petition fee is paid for any petition under subparagraph (E) or (F) of section 204(a)(1), an application under paragraph (1) of this subsection on behalf of an alien beneficiary of such petition (including a spouse or child who is accompanying or following to join the principal beneficiary) may be filed without regard to the limitation set forth in paragraph (1)(C). An application for adjustment of status filed under this paragraph may not be approved until such time as an immigrant visa becomes available.'.
  • (2) PENDING APPLICATIONS- An alien on whose behalf a petition was pending under subparagraph (E) or (F) of section 204(a)(1) of the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)), on the date of enactment of this Act may, upon the payment of the supplemental petition fee set forth in such section, apply for adjustment of status under this subsection without regard to the limitation set forth in section 245(a)(1)(C) of the Immigration and Nationality Act (8 U.S.C. 1255(a)(1)(C)), as amended by paragraph (1).
    

11/04/2005: Budget Reconciliation Bill: What Is It and How Does It Work?

• As everyone knows by now, the immigration packet of the Senate S.1932 was a part of the Budget Reconciliation Bill. The Senate passed the Reconciliation Bill yesterday but the Reconciliation Bill on the part of the House just passed the Budget Committee in the House yesterday and is scheduled to be presented to the House floor next week. At this time, the two reconciliation bills have many differences and they will have to go through the conference committee process for resolution of the differences. One of the areas of difference is the immigration bill which the House bill did not cover. The House bill covers in Section 5101 charge of fees on L-1 visa application and no provisions on H-1B or immigration visa recapture or other povisions which the Senate passed yesterday. For the House bill, please click here. Accordingly, there is some risk that the immigration bill may face a crisis in the conference process. That is why the business, academic community, high tech community, and immigrant community should continue their efforts to educate and pursuade the members of the House of Representatives in their jurisdictions so that the House consents to the Senate immigration bill.
• People may want to know how the reconciliation bill works in order to participate in the process. Please click here to learn about the reconciliation bill.

11/04/2005: Passage of S. 1932 Means a Lot to Higher Learning & Research Institutions and High Tech Industry

• Report indicates that the current broken employment based immigration system, unless it is mended quickly, will create a serious irreparable damage to the future of this nation because of the failure to recruit the brightest and to retain the recruited brightest in the country. The higher learning industry, research industry, and high tech industry, have decried and deplored inaction by the country's political leaders to prevent such long-lasting irreparable damage.
• The passage of S.1932 is indeed a timely action by the political leaders to mend such disastrous long-term and long-lasting irreparable damage before too late. The meaning of this bill should be looked at, among others, the following three perspectives as related to the higher learning, research industry and high tech industry:
  • Issue of "recruitment" of the brightest in the growing international competition: The political leaders do not have to waste their time to do research on this issue. There is an abundance of reports and stastistics that have been released by the nation's leading institutions as well as the testimonies before the subcommittees, committees of the Congress. These industries have been experiencing a serious challenge to attract more "Einsteins" and "Bernsteins," because of the broken American immigrantion system.
  • Issue of "retaining" the brightest foreign workers under the environment of serious international competition: This country has a pool of the brightest foreign workers who have been contributing to the nation by enriching the social, cultural, scientific, and economic foundation on which this nation stands and by keeping the competitive edge and leadership in the international competition in the global economy and world. Recent exodus of these brightest foreign workers has raised a concern not only from the perspectives of the stakeholder industries but also from the perspectives of historians. The nation's leaders can not dwell on short-sighted policies and visions in leading the strongest country in the world. In the current environment of terrorism and homeland security, the leaders can lose sight of their mission which is given by the Constitution of the nation and the rich history of this country, unless they keep looking back the implication of their actions.
  • Issue of "impact" of the current broken immigration system on outsourcing of American jobs: During the past one month, this web site has repeatedly brought up this issue and we do not have to reinterate the importance of mending the employment-based immigration system.
• We realize that this important immigration packet is presented to the Congress as part of the Omnibus Reconciliation bill which contains numerous volitile political issues other than immigration issues. We hope that the political leaders in the House and the Senate, and for that matter, the President quickly work out concensus for other politically vulnerable issues quickly and enact this bill into a law as quickly as possible. The impact of other politically vulnerable issues was evident from the record of votes of the Senators who passed the immigration bill in the Judiciary Committee in absolute majority but who passed the entire packet of S. 1932 in the dangerously slim margin. A number of the members of the Senate Judiciary Committee voted in favor of the immigration packet in the Judiciary Committee but voted "nays" to S.1932 which contained the immigration bill in the full Senate because of the other politically vulnerable items in the bill. We urge the Congress and the President to work out the differences without too much pains and swiftly pass this bill into law within the next two weeks.

11/03/2005: Approaching Travel Season and USCIS Advisory for I-485 Waiters

• During the holiday season, it is expected that a lot of immigrants may travel outside of the U.S. The USCIS has issued advisory to the I-485 waiters not to leave home for international travel without Advance Parole. Please keep the following rules in mind when travel:
  • If you have a valid H-1B, H-4, L-1, or L-2, you may travel on the nonimmigrant visa and you do not have to travel on Advance Parole. When you travel on nonimmigrant status, please make it sure when you return that: (1) Your passport is valid; (2) You have a valid H or L visa in the passport. If you do not have one of these two, you will not be able to reenter the country.
  • Never reenter the country using any nonimmigrant visas other than a valid H or L. Entry on other nonimmigrant visa status will make your pending I-485 application abandoned and the I-485 application will be denied.
  • When you travel on Advance Parole, don't leave home without the hard copies of the "approved" Advance Parole. Application is not enough. Sometimes, Advance Parole is not a guaranty to return to the U.S. if it turns out, without your knowledge, that you were subject to 3-year or 10-year bar. In that case, even if you have in your possession advance parole documents, you should not leave the country.
  • Canada, Mexico, and adjacent islands are foreign coutries. If you overstep the boundary without a valid H/L visa status or without Advance Parole, your pending I-485 application will be considered abandoned and denied later. Again never reenter on a travel document waiver or other nonimmigrant status. Your I-485 will be denied later.

11/03/2005: Senate Passed S. 1932 Reconciliation Bill including Immigration Packet which Senate Judiciary Had Passed

• At. 05:51 p.m. (est), the full Senate passed S. 1932 after defeating Byrd Amendment. On the House side, the House Budget Committee just passed the House version of the appropriation bill which is scheduled to the full House action next week. The difference between the House bill and the Senate bill will be resolved thereafter at the conference committee. Please stay tuned!

11/03/2005: Byrd Amendment Just Rejected 03:02 EST

• We thank the Senators who have agreed to importance of Section 8001 of S. 1932, and rejected the Byrd Amendment.
• However, this is just the second hurdle we have overcome. Another monstrous hurdle is still ahead of us - Conference committee with the House. Now is the time to call the leaders and other members of the House of Representatives to let them understand how important this Senate bill is! Don't roll down your sleeves yet.
• Look at the list of Senators who voted for Byrd and who voted against Byrd. Vote results.
• In Minnesota, Senator Norm Coleman rejected the amendment and retiring Mark Dayton agreed with Byrd. Unreal! Good Bye, Mr. Dayton!

11/03/2005: Senate in Midst of Roll Calls for Various Amendments 3:00 EST

• After the past few days dabates on the floor, the Senate is finally taking roll calls for various amendments presented on the floor. Sen. Byrd Amendment has yet to take roll calls. So far they have acted on twelve amendments this afternoon. Please stay tuned to this Breaking News site for the breath-taking news.

11/03/2005: Senator Byrd and Distinguished Members of the U.S. Senate

• We are forced to repost our October 19 message to help the Senators, particularly Senator Byrd the real issue involved in the immigration proposals which are part of the Reconciliation bill, S. 1932. We are asking you once again whether you want U.S. businesses take these number of jobs to foreign countries. If you do not pass Title VIII, Section 8001 of this bill, you are sending out the message that the Senate wants these jobs taken out to foreign countries.
• If you pass this bill, the following jobs will remain in the U.S., albeit by the foreign workers, but these jobs which are kept in the country will generate businesses, revenues, and competite edge ove the foreign businesses.
  • If the unused H-1B numbers of 300,000 are not recaptured and used, the U.S. businesses will have to outsource 300,000 jobs to foreign countries.
  • If 90,000 unused Employment Based immigrant visa quota numbers are not recaptured and used, these jobs will also be outsourced to foreign countries.
• Distinguished Senators, the jobs taken by foreign workers either in the U.S. or foreign countries depend on the market forces in the global economy and free trade. For the international competitions, U.S. businesses will have to rely on some foreign workers, particularly high tech professionals, no matter where they perform the jobs.
• However, if the job had to be done overseas by the outsourced foreign workers in a territory of a foreign country, they will not contribute to the American economy other than supply of labor forces, and these outsourced jobs will not create businesses and jobs in the related industries as they will not spend money to buy the goods and services in this country. The foreign workers who are hired and work in the country will generate and boost the country's domestic businesses and jobs as they spend their income in this country. Granted that the U.S. businesses will need their services and allegedly they will take away American jobs, the result will remain same: No matter what, whether in the form of oursourcing or hiring foreign workers within the country, probably the same number of jobs may be allegedly taken away by the global market forces. The huge difference between the two is that outsourcing of jobs will not help to create jobs and business within the country by the forced of consumption but the foreign workers in the U.S. will. Come to think of the affect of McDonald hamburger drive-in orders taken by foreign workers in a foreign country and orders taken by a foreign worker in town. Wake up, America.
• Senator Byrd, what you have proposed will result in complete opposite consequences, obviously to your great surprise and dismay. Please don't be blinded by the rhetorics and see through the veils as a patriot. A large number of foreign brains are already moving to our competitors in the Europe, Canada, Australia. Our business clients are more and more bringing the jobs to foreign companies in Asia and South America. You are naive and misguided if you thought you could stop the rule of global economy.
• Senator Byrd, let's talk about for a moment the proposed nonimmigrant and immigrant visa numbers in the bill. The bill is not asking to increase annual quota or cap. These are the numbers which the businesses and immigrants were entitled to but wasted because of the government failure to process petitions and applications timely for a number of reasons in the past. We are talking about the "recapture"of the numbers which the laws and regulations mandated the U.S. government to use but the government failed. Because of the fault of the government, the Congressionally mandated quota and cap have not been issued!! If you oppose to the current recapture bill, you should have opposed the passage of these legislations when these legislations were enacted. What you are doing is to overturn these legislations which provided these quotas and caps without letting the public know that is what you are upto. That is morally and ethically wrong. It is wrong to draw a picture that the immigrants will have to take away American jobs by this legislation when the reality is that the law already provided these numbers and the law was in the lawbook.

11/02/2005: No Roll Calls Taken for S. 1932 in the Senate

• The Senate adjourned today without a roll call taken today and the debate will continue tomorrow. Please stay tuned.

11/02/2005: The Fate of Emilio Gonzalez and Julie Myers is Expected to be Decided Tomorrow

• The President nominated Mr. Emilio Gonzalez for Director of USCIS and Julie Myers for Assistant Secretary of BICE while back. The Senate Judiciary heard testimonies from these nominees and is scheduled to vote on the nomination tomorrow. Please stay tuned.

11/01/2005: Senate Judiciary Bill at the Brink of Collapse Unless Everybody Contacts Senators and Congressmen!!!

• The full Senate failed to take a roll call for this bill today. Believe it or not, Senator Byrd intends to offer an amendment tomorrow (11/2/05) to remove the H-1B and immigrant visa retrogression provisions passed by the Senate Judiciary Committee from the Budget Reconciliation Package.
  Please call your Senators and urge a "NO vote on the Bird Amendment Immediately!!"
  CALL THE CAPITOL SWITCHBOARD: 202-224-3121 OR GET DIRECT LINES BY CLICKING HERE: http://capwiz.com/aila2/home/
• Everyone should call tonight. I mean EVERYONE. Call your friends and relatives and ask them to participate in this urgent campaign and call their Senators tonight. Call or send e-mails to your immigrant friends and alert them IMMEDIATELY! Ask them to call or send e-mails to everyone they know and ask them to call the Senators tonight. TIME IS OF ESSENCE.

11/01/2005: Immigration Statistics

11/01/2005: New Versions of Immigration Forms Just to Update New Immigration Filing Fees Dated 10/26/2005

• As the immigration filing was raised effective 10/26/2005, the USCIS released the versions of its immigraion forms. But people should not be unnecessarily alerted by the release of new versions because it is just to reflect the new filing fees and in most cases, prior versions remain acceptable. However, it would not hurt to check or update to the new versions if people use commercial immigration form software.

11/01/2005: "USCIS Today" Newsletter, November 2005 Edition

10/31/2005: Urgent, Urgent: Senate Action Update 6:00 p.m. EST

• Senate did not have roll call for this bill today and this bill will be picked up at 9:00 a.m. on the full Senate floor tomorrow morning. Anti-immigration forces are adding pressures to the Senators, and so should the pro-immigration forces. Please contact businesses and urge them to contact via e-mails and phone calls tonight!!! The bill number is S. 1932 and immigration packets are in Title VIII, Section 8001. Please, please, everyone should do something tonight. Businesses in the West Coast, you are still in office hours, 3:00 p.m. PST, and contact your Senators and Congressional delegations before you leave the office!!!!

10/31/2005: Senate Judiciary Passed Immigration Packet on the Full Senate Floor Today

• By tomorrow, we will learn whether this packet is passed by the full Senate floor today. Once it passes, it will move to the House conference committee for its action. The bill is moving more quickly than anticipated. Read on.

10/31/2005: USCIS Labor Certification Substitution Elimination Proposed Rule Making Agenda

• The USCIS is also scheduled to initiate the rule making process for this proposed rule to eliminate substitution of certified labor certification application and imposing the period of validity of certified labor certification application at 45 days. It is scheduled to be released in November 2005 with the 60-day comment period ending in January, 2006. No one will be surprised to see the USCIS requesting the OMB to review and approve this proposed rule by the USCIS in the very near future.
• When the DOL started the process, the schedules between the DOL and USCIS gave the impression that the two departments were not necessarily well coordinated in terms of scheduling, but now here we go! Hold your breath!

10/31/2005: DOL Labor Certification Substitution Elimination Proposed Rule Release Agenda

• The White House approved this rule back in August, 2005, and pending change in the Chief of the Division of Foreign Labor Certification, the release of this proposed rule has been held off for almost two months. Because of the delay, there has been speculation that this proposed rule has been withdrawn.
• Well, don't jump too fast. This rule-making agenda is still well and alive and was scheduled to be released in October 2005 by the new Acting Chief Leticia. Obviously this schedule was not exactly kept as today is the last day of October 2005. However, no one will be surprised if this proposed rule is released soon. Hold your breath!

10/31/2005: Semi-Annual Rule-Making Agenda of the Immigration-Related Agencies

• Rule-making agenda of each agency reflects its policy and direction on key immigraiton issues for the next six months.
  • Department of Homeland Security
  • Department of Labor
  • Department of State
  • Department of Justice (EOIR)
  • Department of Health and Human Services
  • Social Security Admiistration
• Stay tuned to this web site for analysis of important issues and policies for each of these agencies.

10/30/2005: Visa Retrogression, Change of Employment, and AC 21 I-140 Portability Issue in Immigration Court Proceedings

• Those who have violated the immigrant laws pending I-485 application may not want to change employment regardless of AC 21 I-140 portability law against the potential deportation proceeding before the Immigration Court. Read our Visa Retrogression Q&A 94 which is posted today.

10/29/2005: Matthew Oh Photo

• This reporter has received a number of e-mail requests from the visitors to post his photo. Here is an old photo from his album. Fifteen years have passed since this photo was taken.

10/29/2005: Visa Retrogression, Change of Employment, and Potential Revocation of I-140 on Preconceived Intent

• Please read this important advisory on today's Visa Retrogression Q&A 93.

10/28/2005: BIA Ruled Immigration Court Had No Jurisdiction to Apply AC-21 180-Day Rule

• On October 28, 2005, the Board of Immigration Appeals, Department of Justice, handed down a rule that the Immigration Judges do not have authority to apply AC-21 180-day rule which allows the EB-485 waiters to change the employment without affecting the eligibility for EB-485 application because it was the opinion of the BIA that the Immigration Judges do not have jurisdiction over the AC 21 I-140 portability issues and only the DHS has authority and jurisdiction to apply the portability.
• This decision will have a broad impact on the AC-21 ported aliens who are brought to the removal proceedings by the ICE for a minor violation of the immigration regulations. For the details, please read the full text of the decision. In re Perez Vargas, 23 I&N 829 (BIA 2005), Interim Decision #3519 (October 28, 2005).

10/28/2005: Sen. Hagel Comprehensive Immigration Reform Bill (Employment-Based) Full Text (S.1918)

10/28/2005: State Department Liberalizes Standards for Immigrant Intent for Student Visa Applicants

• The State Department has issued a cable to the visa posts to give a guidance on the interpretation and application of "immigrant intent" in the context of student visa as opposed to the visitor's visa applicants. The guidance requires that the visa posts focus on "present intent" and not the "future intent" and unless there is an evidence of immediate and present intent of immigrant, the posts should not second guess contingencies of future intent and deny the student visa applications. This liberal policy is likely to reduce the student visa denial rate substantially in the future. As we reported on October 25, 2005, the denial rate of the student visa as of now is close to 30% because of the visa posts' second guessing of the student visa applicants' potential change of situation after a long stay in the U.S. as a student, forming an immigrant intent. We welcome the State Department's new guidance on handling student visa applications. For the full text of the cable, please click here.

10/27/2005: AAO Decision Adopted by the USCIS on AC 21 Portability on Denial of I-485 Application

• Analysis and impact of this important decision will follow soon.

10/27/2005: AAO Decision Adopted by the USCIS on Recapture of H-1B and L-1 Overseas Time

• Analysis and impact of this important decision will follow soon. In the meantime, on behalf of the immigrant community, we want to salute Mr. Robert Divine, Acting Director of USCIS, for the wonderful decision. The immigrant community is extremely happy that this issue is settled once and for all so that the adjudicators will not be authorized to inject one's own interpretation of the statute rather than following the plain statutory language in the statute.

10/27/2005: FY 2005, FY 2006 H-1B and H-2B Cap Count As of October 23, 2005

10/27/2005: Sen. Chuck Hagle of Nebraska Introduced Another Comprehensive Immigration Reform Bill on 10/25/2005

• The Senator introduced four different bills in the Senate that cover wide range of immigration issues including border security, immigration enforcement, and immigration backlog reduction. The following is summary of the immigration benefits reform:
  • Willing Workers – To provide foreign workers for low-skilled jobs that would otherwise go unfilled, this legislation would admit a limited number of workers annually through a new temporary worker program. Employers seeking to hire foreign workers through this program must first demonstrate that no qualified U.S. worker exists and that they will provide the same wage levels and working conditions as U.S. workers. Workers will be admitted for a limited period of time and will be allowed to change employers. Visas are good for 2 years and can be renewed. Qualified workers and their families would be provided an opportunity to adjust their immigration status over time.
  • High-Tech Workers – To address the need for high-tech workers and to reduce the existing worker visa backlog, this legislation would allow foreign students who have earned an advanced degree in science, technology, engineering or math from U.S. universities to receive a H-1B work visa without leaving the country and without regard to the annual cap of 65,000. In addition, high-tech workers who have worked in the U.S. for three years may be allowed to adjust to permanent resident status without regard to the annual cap of 140,000. The spouses and children of immigrant workers would also be allowed to adjust status without regard to this cap.
  • Student Workers – To encourage more foreign students to study in the U.S., this legislation would give full-time foreign college and graduate students the opportunity to work part-time while studying at U.S. universities.
  • Earned Adjustment Program for Long-Term Undocumented Immigrants – This legislation would provide an opportunity for illegal aliens and their families to become invested stakeholders in the country if they can demonstrate that they have met all of the following requirements:
    • Passed national security and criminal background checks;
    • Resided in the U.S. for at least 5 years preceding the date of introduction;
    • Worked a minimum of 3 years in the U.S. preceding the date of introduction, and 6 years after introduction;
    • Paid all federal and state taxes;
    • Registered for Military Selective Service;
    • Demonstrated knowledge of English language and American civics requirements;
    • Paid a $2,000 fine, in addition to required application fees. Fines assessed from this program could total as much as $12 billion.
  • Earned Adjustment Program for Short-Term Undocumented Immigrants – Undocumented immigrants who cannot meet the work or residence requirements (2. and 3. above) will register with DHS and will be allowed to apply for a visa. However, these undocumented immigrants must return to their home country to obtain the visa and be readmitted through the legal process. These undocumented immigrants will have three years to complete the application process and will be authorized to work.
  • Backlog Reduction – This section of the bill would exempt certain individuals (living outside the U.S.) from existing caps on family-based immigrant visas. This section was originally included in the 2004 Hagel/Daschle Immigration Reform bill.
  • Cost: The new fines and fees created by this legislation will fund the new and expanded programs created in it. Fines assessed by this legislation could total as much as $12 billion. A majority of the funds will come from the $2000 fine illegal aliens would pay under the Earned Adjustment Program. The legislation has not yet been scored by the Congressional Budget Office. For the Senator's press release, please click here.

10/27/2005: Advisory for "Deadline" Filers

• People often believe that their cases or RFE responses have been "filed" if the delivery reached the Service Center P.O. Box or even the Service Center facilities. However, that may not be true depending on the type of the delivery and the address of the Service Centers they used. The regulation provides that once the delivery reaches and "stamped," the delivery is considered "filed." What this means is that even if the delivery physically reaches the USCIS postal box or facility, until it is stamped, there is "no filing" until it is stamped. It appears that because of the way mails or overnight deliveries are handled by the Service Centers, the sure way to get the cases filed "timely" and within the deadline is to use DHL or Fedex using right and correct street address.
• The problem which is encounted at the Texas Service Center illustrates and sends a warning to the filers. Texas Service Center has two facilities, one in Dallas and the other in Mesquites in Texas. The main facility is located in Dallas, 4141 St. Augustine Road. Filings are "stamped" and "receipted" only in the main facility in Dallas. Accordingly, if one sends overnight delivery or mail to Mesquites facility address or P.O. Box address, until they are picked up by the TSC trucks and brought to the Dallas main office and stamped, the cases are not considered "filed." For instance, Texas Service Center has reported that it picks up the mails at its various P.O. Boxes mails one time in the morning Monday through Friday. If any mails are delivered to the P.O. Box Postal services after the TSC truck pickup of the day, the mail will remain in the P.O. Box until it is picked up by the TSC truck next morning. In this case, the case is not considered filed until the next day. Similar problem exists when people file anything to the Mesquites address, no matter whether it is overnite delivery or mail. Until it is picked up, delivered, and stamped in the main facility in Dallas, it is not considered filed!
• The Texas Service Center thus strongly recommends to the deadline filers to use DHL addressed to its main office building in Dallas. There are no reports by other Service Centers, but it is obvious that other Service Centers may have a similar problem. It is particularly risky to file the deadline cases by the U.S. postal services, particularly using P.O. Box as these cases will be sitting in the P.O. Box until it is picked up by the Service Centers next day in some cases. Important advisory for the last minute deadline filers!

10/27/2005: H-1B Processing Procedure Change Anticipated Effective 10/01/2006

• The H-1B petitions are currently processed by the four Service Centers, VSC, CSC, NSC, and TSC. The DHS Inspector General's report recommended to centralize the H-1B processing into one Service Center in order to avoid any future violation of the law by the USCIS issuing H-1B petitions beyond the annual cap which is prescribed in the statute. In response to this recommendation, the USCIS for the first time revealed its plan to centralize the H-1B processings into "two" Service Centers beginning from FY 2007 which starts from October 1, 2006. Considering what they did in centralizing the U.S. Master degree cases in Vermont Service Center, no one will be surprised to see that the Vermont Service Center will be one of the two. The next question is which is the 2nd Service Center?
• Report indicates that the Congress demanded the USCIS to recapture and use Singapore/Chile H-1B1 unused H-1B numbers, but the USCIS has declined the suggestion. However, through this process, the immigration law community learned that if the USCIS had to process the recaptured numbers of H-1B, it would have been centralized in one Service Center. For instance, if the Senate Judiciary bill of increasing H-1B numbers by 30,000 a year to recapture the unused 90,000 becomes a law and the USCIS has to process these additional numbers, it is almost certain that these cases will be processed by one Service Center. Stay tuned.

10/26/2005: Senate to Table Immigration Reform Bills for Debate in February 2006

• This is made possible by Sen. Frist's change of his mind. Read on.

10/26/2005: In FY 2005, USCIS Approved 71,740 H-1B Exceeding 65,000 Annual Cap

• DHS Inspector General reports that the USCIS approved 71,740 H-1B cap cases rather than the annual cap of 65,000 in FY 2005 that ended on September 30, 2005! Read on.

10/26/2005: USCIS Released FR to Make a Minor Correction in the Fee Adjustment Regulation Which Took Effect Today

• The correction includes: the publication on September 26, 2005 (70 FR 56182), of the Notice that was the subject of FR Doc. 05-19226 is corrected as follows: 1. On page 56184, immediately after the table, amend footnote ``6'' by striking ``an application'' and inserting ``a Form N-600 or Form N-600K''. See the FR.
  

10/26/2005: Service Centers Processing Times of 10/25/2005

• Service Centers have released their upto-date processing time reports on October 25, 2005. Please visit our homepage.

10/26/2005: McCain-Kennedy Twin Bill in the House of Representatives

• Lately, when it comes to the Immigration Reform legislation, people's attention has been totally directed to the Senate Judiciary Committee hearing on Immigration Reform bills of McCain-Kennedy and Cornyn-Kyl. However, people should keep in mind that a twin-bill of McCain-Kennedy bill is also pending in the lower House of Representatives. It is H.R. 2330 sponsored by Arizona Congressman Jim Kolbe. In fact, the two legislators from Arizona, Senator John McCain (AZ) and Rep. Jim Kolbe (AZ) introduced identical immigration reform bills almost simutaneously in the House of Representatives and the Senate. The two bills have a same name, Secure America and Orderly Immigration Act. The House bill also asks to increase EB annual quota to 290,000. House bill is stuck at various committee levels. Businesses should not neglect their efforts to push the members of the House to work on this bill as well.

10/26/2005: Minnesota USCIS Resumes Issuance of Interim-EAD to EB-485 Waiters

• The practice of processing of interim-EAD applications after 90 days of EAD application filing with the Service Center varies to a great extent among the local district offices. For a while, Minnesota district office did not permit interim EAD application for EB immigrants unless they first went through other additional steps. Now, Minnesota district office has announced that they will issue the interim EAD to EB aliens if they pass 90 days after filing of EAD application with the Service Centers. Those who need interim EAD must make an InfoPass appointment to obtain the EAD on appearance. Good Deed, SPM!
• Another good news for EB EAD applicants is the remarkable improvement of processing times of EAD applications at the Nebraska Service Center. People nowadays receive EAD cards in the mail in about one month. If people want to help the NSC to keep the current practice, they should help the agency by submitting a good amount of photo IDs for the namechecks. No photo IDs or insufficient photo ID documents will substantially increase their workloads since they will have to issue RFEs. Make it sure to enclose color copy of driver license, passport photo ID and visa page and any other photo ID documents to help the agency to process your applications quickly. Hats off to the Nebraska Service Center.!!

10/25/2005: InfoPass Scheduler Has Been Fixed

10/25/2005: New Filing Fees and October 25, 2005 Postmark

• AILA has reported that the USCIS will accept and will not reject filings with the postmark of October 25, 2005 even if the petitioners or applicants submitted filing fee payment under prior fee schedule. Postmark of October 25, 2005 is important.

10/25/2005: InfoPass Down and Problems of Scheduling at the Local Levels

• The USCIS InfoPass Scheduler is down and people are unable to schedule appearances at the local district offices. The USCIS is planned to inform the public when the InfoPass system is fixed. There is no announcement for the contingency plan or temporary stop-gap measures. However, it has been the USCIS practice that when there is an emergency, the local district offices accomodate such walk-ins. People who face the deadlines or emergency need for travel, etc. should try the walk-in services, carrying the proof of emergency. The USCIS is urged to announce the stop-gap action accomodating as many walk-ins as possible during the technical difficulties.

10/25/2005: Visa Posts' Non-Immigrant Visa Denial Rates in FY 2005 As of October 18, 2005

• The following is the nonimmigrant visa processing statistics of the American consulates throughout the world during this fiscal year during the period of 10/01/2004 - 09/30/2005 as compiled on October 18, 2005.

• NIV Visa Type	Total Applications	Total Denials
  B1/B2	3,876,182	1,166,714 (30.1%)
  F-1	333,161	95,271 (28.6%)
  F-2	24,498	6,437 (26.3%)
  H-1B	144,408	20,312 (14.1%)
  H-4	85,204	14,938 (17.5%)
  H-2B	106,739	19,247 (18.0%)
  J-1	311,728	36,567 (11.7%)
  L-1	71,830	6,372 (8.9%)
  R-1	12,373	3,835 (31.0%)
  All Categories	7,358,122	1,969,185 (26.8%)

• For the details of statistics for all categories, please click here.

10/24/2005: Petitions/Applications Received Without Increased Filing Fee Checks Will Be Rejected on and after 10/26/2005

• This is a reminder to the filers of varous petitions and applications that any petition or application which is delivered to the USCIS on and after October 26, 2005, Wednesday, without the new increased filing fee checks will be rejected. Accordingly anyone who files a petition or application by regular U.S. mail or priority mail today or those who files such petition or application via overnight delivery services tomorrow should enclose filing fee checks with the amound under the new filing fee schedules in the regulation. The uno numero reason for rejection of filing is a check of wrong amount!! For the new filing fee schedule, please see the posting at our home page.

10/23/2005: Departure of Michael Garcia (ICE) and Announced Departure of Richard Bonner (CBP) and Facing New Era for Immigration Enforcement

• After the birth of the Department of Homeland Security, the legacy INS has been split into three different divisions: USCIS, ICE, and CBP. In the era of terrorism and homeland security, the USCIS remained outside the ring of the center of the power within the Department in terms of budget and political power. The immigration enforcement loomed up as the strongest center of the power. Unfortunately, the enfocement functions and authorities have been split and shared by the two divisions of ICE and CBP. Reportedly, this has created a power struggle between these two divisions and the merger of two divisions has been talk of the town in the Beltway. The concept of merger of these two divisions has been on and off in the Congress, leaving the fate of these two powerful divisions uncertain.
• Michael Garcia already departed to move to the U.S. Attorney office in New York. Now, Richard Bonner is expected to depart in the near future. Replacement of Michael Garicia has been named, but the replacement of Richard Bonner has yet to be announced. This change of events could have presented a momentum to reshuffle the immigration enforcement functions and authorities, but in view of the storm the new nominee of ICE has brought into, the future of these two divisions remains uncertain. Please stay tuned to this website for the development of this news.

10/22/2005: Immigration Reform and Dilemma of Direction

• The immigration bill which the Senate Judiciary passed on October 20, 2005 has a provision to take out the immigrant visa numbers for the spouses and children of the employment-based immigrants in counting EB-visa annual cap. AILA has estimated the number to be between 80,000 and 90,000 each year. Additionaly, there appears to be some numbers which can be recaptured, which is estimated at 90,000. The recaptured numbers are expected to be dried up mostly by the Schedule A immigrants who apply for EB-3 category. Over all, this will help other EB-3 immigrants to get the benefit indirectly as the numbers would otherwise have been taken out of the annual EB-3 cap. However, it is just an one-time shot relief and once the recaptured numbers are exhausted, it goes back to square one.
• When we look at both the Immigration Reform bills still pending at the Senate Judiciary Committee and the bill which was passed by the Senate Judiciary day before yesterday, the mathematics appear to direct us to the following numbers: Assuming that the recaptured numbers are not considered in this calculation since it is just an one-time short deal, the outlook of the visa numbers which are likely allocated for EB-categories will increase from the current 140,000 to 270,000 (190,000 + 80,000 cap exempt family members) under Cornyn-Kyl proposal and 370,000 (290,000 + 80,000 cap exempt family members) under McCain-Kennedy proposal. The family members have been taking out the numbers from each of different EB categories depending on the principal alien's EB preference petitions and the increased 80,000 numbers will be proportionally allocated to EB-1, EB-2, and EB-3 depending on the total number of principal aliens applying for each of these category petitions. Consequently, eventually the fundamental question that is posed and directed to the Congress and the nation is what level of immigrant workers this country should accept. During the past few years, the Congress and the nation have been discussing and moving towards the direction of focusing on higher-level of professional foreign workers and restricting middle or lower-level foreign workers. This is reflected in the recent H-1B and L-1 Visa Reform Acts. The nation was moving towards the direction of sending a welcome wagon to advanced degree level of foreign workers and restricting the number of foreign workers at the Bachelor's or lower level.
• When it comes to the Immigration Reform legislation, the Congress reveals a contraction to its nonimmigrant legislative policy emphasizing advanced level of education or achievement. Both Cornyn-Kyl and McCain-Kennedy bills are proposing to reduce EB-1 and EB-2 annual quotas from the current 28.6% to 20.0% each. Consequently, the Immigration Reform bills are completely going towards other directions, contradicting its policy in the nonimmigrant legislation. The information indicates that the current EB-visa number retrogression was partly affected by the increase of the H-1B annual cap from 65,000 to 195,000 that eventually moved into the immigration stream. The EB-1 and EB-2 visa numbers already feel two pressures from the two directions: One is the contradictory nonimmigrant policy that produces and will produce increased number of advanced-level professionals moving into the EB-1 or EB-2 immigration stream. The other pressure is coming from the current visa retrogression inducing the advanced level foreign workers to go for EB-2 immigration stream. This is particularly noticeable for the Indians and Chinese. Accordingly, even without the Immigration Reform legislation, the U.S. Department of State is predicting that the EB-1 and EB-2 for China and India will move very slow in the coming year or years. As for EB-2, it even predicts that it will spread to the Worldwide chargeability, meaning that everyone will feel the pain the visa retrogression.
• It appears that the Congress should answer the following two questions very quickly: (1) Consistency between immigrant policy and nonimmigrant policy. If the Congress desires higher level foreign professionals over lower level foreign workers, it should be reflected in both immigrant and nonimmigrant policy and its Immigration Reform legislation. The current friction will create a long-term damage to the future of the country by limiting desires of the achieved high-level foreign workers from immigrating to the United States. Einsteins should keep moving into the nation and the country should send a signal to these brightest brains that we will send a welcome wagon for them. The current Immigration Reform bills reveal a serious flaw in this respect. (2) Resolution of dilemma as related to the needed temporary guest workers. At lower ends, the country needs foreign workers at the lower end to sustain the economy, particularly certain sectors in the industry. Both Cornyn-Kyl and McCain-Kenndy bills apparently attemp to accomodate such needs by allocating a huge number of immigrant quotas to nonskilled and limited skill foreign workers. Without doubt, the country needs both achieved foreign workers as well as unskilled/limited skills workers. It is just a question of how these two needs are appropriately balanced to achieve the goals.
• We urge the Congress to relook at the pending Immigration Reform bills to see that the contractions, inconsitencies, and frictions are removed in the formulation of national immigration policy.

10/22/2005: Shocks, National Interest Waiver Approval in 17 Days

• The USCIS has been committed to achievement of six-month processing times for all the petitions and applications by the end of September 2006. Without any question, most of the I-485 applications will not be adjudicated in that timeframe because of the visa number unavailability. However, those cases which do not have visa number problems can take advantage of the reduced time of processing for their cases by the Service Centers down the road.
• We filed the National Interest Waiver case on September 29, 2005 at the last minute before the visa number retrogressed. Believe it or not, the petition was approved on October 17, 2005. The case involves a high-level of national interest to this country, but we were totally surprised at the USCIS speedy processing time.
• It is anticipated that the Service Centers will continuously improve their processing times, producing one group with a wide smiley face and the other group with tears. Acceleration of improvement of processing times at the USCIS and DOL is expected to continuously aggravate the visa number movement unless the Congress passes the pending legislative bills as soon as possible. Irony in life.

10/21/2005: Emilio Gonzalez USCIS Director Nominee had a Hearing before Senate Judiciary Committee on 10/18/2005

• After a long-await, the Senate Judiciary Committee had a hearing on nomination of new USCIS Director and Assistant Secretary for BICE on October 18, 2005. The BICE Chief nominee has been under the storm of controversy for her qualification and the qualification of Mr. Gonzalez for the Director of USCIS was under the microscope for his limited immigration experience. His experience was more or less limited to the Western Hemisphere foreign relations and army services. It is expected that the Senate will decide this nomination one way or another very shortly. Please stay tuned to this web site.

10/21/2005: State Department Visa Number Predications and Explanation of Retrogression

• Employment Preference Visa Availability: The backlog reduction efforts of both Citizenship and Immigration Services and the Department of Labor continue to result in very heavy demand for Employment-based numbers. The amount of cases currently being processed is sufficient to use all available numbers in many categories. The level of demand in the Employment categories is expected to be far in excess of the annual limits, and once established, cut-off date movements are likely to be slow.
• What Causes the Establishment of Cut-Off Dates? The Visa Office subdivides the annual preference and foreign state limitations specified in the Immigration and Nationality Act (INA) into twelve monthly allotments. The totals of documentarily qualified applicants that have been reported to VO are compared each month with the numbers available for the next regular allotment and numbers are allocated to reported applicants in order of their priority dates, the oldest dates first. If there are sufficient numbers in a particular category to satisfy all reported documentarily qualified demand, the category is considered “Current.” For example, if the Employment Third preference monthly target is 5,000 and there are only 3,000 applicants, the category is considered “Current”. Whenever the total of documentarily qualified applicants in a category exceeds the supply of numbers available for allotment for the particular month, the category is considered to be “oversubscribed” and a visa availability cut-off date is established. The cut-off date is the priority date of the first documentarily qualified applicant who could not be accommodated for a visa number. For example, if the Employment Third preference monthly target is 5,000 and there are 15,000 applicants, a cut-off date would be established so that only 5,000 numbers would be used, and the cut-off date would be the priority date of the 5,001st applicant.
• Will There be Cut-Off Dates for Additional Foreign States in the EB-1 and EB-2 Categories? It may be necessary to establish a cut-off date for the “All Chargeability Areas” Second preference category at some point during the second half of the fiscal year. It is too early to estimate whether future demand will warrant such action. As of October 1st, cut-off dates for the First and Second preferences for China and India were established due to heavy demand; cut-off date movement is expected to be limited until a demand pattern has been determined.
• Why Are There Cut-Off Dates this Year as Opposed to Previous Years, When the Categories were Current? While the Employment categories had been “Current” for almost four years, several important factors affected the decision to implement cut-offs for FY-2006. Prior to July 2001, demand for Employment numbers was such that cut-off dates were in effect for many categories, and that is the case once again for FY-2006. The reasons the Employment categories had become current were: The American Competitiveness in the Twenty-First Century Act (AC21) recaptured a “pool” of 131,000 Employment numbers unused in fiscal years 1999 and 2000, and allowed those recaptured numbers to be used by the oversubscribed countries, and The substantial decline in demand for numbers for adjustment of status cases prevented the annual limits from being reached for several years. In FY-2006, we are faced with continuing heavy demand due to the DHS and DOL backlog reduction efforts, along with an Employment limit which is approximately 40% lower than that of FY-2005. The lower annual Employment limit is a result of the virtual elimination of the “pool” of recaptured AC21 numbers, returning us to the pre-July 2001 situation.
• What about Schedule A Numbers? The 50,000 Schedule A numbers will provide relief to many Employment preference applicants, since any Schedule A applicant whose priority date is beyond the relevant Employment preference cut-off date can be processed and charged against the 50,000 limit. It is expected that Schedule A numbers will be available on a “Current” basis throughout all of FY-2006.
• How is the Employment-Based Per-Country Limit Calculated? Section 201 of the INA sets an annual minimum Family-sponsored preference limit of 226,000, while the worldwide annual level for Employment-based preference immigrants is at least 140,000. Section 202 sets the per-country limit for preference immigrants at 7% of the total annual Family-sponsored and Employment-based preference limits, i.e. a minimum of 25,620. The annual per-country limitation of 7% is a cap, meaning visa issuances to any single country may not exceed this figure. This limitation is not a quota to which any particular country is entitled, however. The per-country limitation serves to avoid monopolization of virtually all the visa numbers by applicants from only a few countries. The AC21 removed the per-country limit in any calendar quarter in which overall applicant demand for Employment-based visa numbers is less than the total of such numbers available. In recent years, the application of the rules outlined in AC21 has allowed countries such as China – mainland born, India, and the Philippines to utilize large amounts of employment numbers which would have otherwise gone unused. During FY-2006, due to anticipated heavy demand, the AC21 provisions are not expected to apply, and the amount of Employment numbers available to any single country will be subject to the 7% cap. It is anticipated that the addition of unused FY-2005 Family numbers and the remaining AC21 numbers to the 140,000 annual minimum will result in an FY-2006 annual Employment limit of 152,000. This will mean an Employment per-country limit for FY-2006 of approximately 10,650. To illustrate the effect of the reduced per-county limitation during FY-2006 on the oversubscribed countries, it should be noted that during FY-2005 India used approximately 47,175 Employment numbers.
  

10/21/2005: Visitors Should First Read Q&A Before Sending Us Email on Judiciary Bill

• Our e-mail system is flooded with the questions on the timeframe of this legislation. People should first visit our Q&A updates before sending us e-mails as most of these questions are answered. We are updating on the issues related to this legislative bills. Thank you for your cooperation.

10/21/2005: USCIS Field Offices (Service Centers, District Offices) Adjudicators Manual

• USCIS is making public the field adjudicators' manual for processing immigration benefits petitions and applications. This publication is not legally binding but gives very important informaton about what standards they apply and what they are looking for when they adjudicate various immigrant or nonimmigrant petitions or applications. Please save this Manual in your system.

10/21/2005: Immigration Regulations (8 CFR) Revisions from July to Present

• USCIS has compiled these changes and just published for the public. Again people may want to save in their personal online library.

10/21/2005: AILA Confirms Following Details of Senate Judiciary Approvals Yesterday

• According to the AILA, AILA has passed the following immigration proposals yesterday:
  • Impose a new $500 fee on immigrant visa petitions for the EB-1, EB-2, and EB-3 categories.
  • Recapture unused employment-based visas from prior years for immediate allocation of up to 90,000/year. (Estimates indicate there are only 90,000-100,000 unused numbers to be tapped.)
  • Exempt spouses and minor children from counting against the annual cap on employment-based immigrant visas. (Estimates are that this would lead to an annual increase of 80,000-90,000 employment-based immigrant visas.)
  • Allow individuals to apply for adjustment of status before an immigrant visa is deemed currently available. (Of course, approval could not occur until the visa number is available.)
  • Recapture approximately 300,000 unused H-1B numbers dating back to FY 1991. As a result of Senator Feinstein's amendment, 30,000 rather than 60,000 would be available annually. (In other words, effectively raising the cap from 65,000 to 95,000 for at least 10 years.)
  • Impose a new fee on the recaptured H-1B visas so that the fees on the original 65,000 H-1B allotment remain unchanged but the additional 30,000 available annually carry an additional $500 fee.
  • Impose a new $750 fee on L-1 visas. (This was part of Senator Feinstein's amendment and was necessary to offset the reduction in revenue resulting from the limitation on recaptured H-1B numbers from 60,000 to 30,000.)
• We agree with the AILA that these are not final bills and we have a long way to go to make these proposals into a reality. Businesses, academic institutions, and other stakeholders should keep working with their Congressional representatives to support the Senate Judiciary bill.

10/20/2005: Senate Judiciary Reportedly Approved Immigration Proposals

• We have already reported that Senate Judiciary Committee approved H-1B cap increase by 30,000 per year. However, other sources (CompeteAmerica) reported that the Committee had approved at today's hearing the following immigration bills:
• Included in the measure approved today are the following specifics:
  • "Recapture" employment-based (green card) immigrant visa numbers that were available by statute but unused in previous years due to processing backlogs, and make them available again at a rate of up to 90,000 per year;
  • Only employment-based immigrants, and not their spouses and children, would count toward the annual limit on employment-based immigration; and
  • "Recapture" H-1B visa numbers that were available by statute but unused in previous years, and make them available again at a rate of up to 30,000 per year.
• For the release of the official reports, please stay tuned to this web site.
• The members of the Steering Committee of CompeteAmerica include: American Council on International Personnel, AeA, AILA, Business Rountable, EDS, Hewlett-Packard, IT Association of America, Intel, Keane, Microsoft, Motorola, NAFSA, National Association of State Universities and Land-Grant Colleges, NAM, National Venture Capital Association, Semiconductor Equipment and Materials International, Semiconductor Industry Association, Society for Human Resources Management, Sun Microsystems, Texas Instrument, U.S. Chamber of Commerce.

10/20/2005: Senate Judiciary Committee Agreed to Increase 30,000 for H-1B Cap

• The Senate Judiciary Committee is currently hearing the Budget Reconciliation and Immigration Proposal. The report indicates that the committee approved a Feinstein amendment allowing 30,000 more H-1B visas per year, and increasing fees by $500. Feinstein's amendment would also increase fees on another kind of visa, the L-1, which companies use to transfer workers they already employ in foreign countries to the United States. The fee on L-1 visas, now $685, would rise by $750. Behind the success in passage of this bill was a strong support by the high tech industry. Read on.
• For the EB immigrant visa number recapture and other issues, please stay tuned.

10/19/2005: Digital Photo Requirement for Visa Waiver Program Travelers Effective 10/26/2005

• Both State Department and DHS released a reminder for the 27-country visa waiver program.
• Passports issued on or after October 26, 2005 must bear a digital photo of the holder. Otherwise, the traveler will need a visa to travel to the United States. Visitors with valid machine-readable passports issued prior to October 26 may continue to travel without a visa under the program.

The VWP enables citizens of 27 countries to visit the United States for tourism or business for up to 90 days without obtaining a visa.

10/19/2005: America and Congress, Do You Want Businesses to Outsource Jobs to Foreign Countries?

• If you don't, please contact the members of the Senate Judiciary Committee and their staffs and voice your concerns by asking them to support the Budget Reconciliation and Immigration Proposals which is currently being debated to keep the jobs in the U.S. The jobs which are kept in the country will generate businesses, revenues, and competite edge ove the foreign businesses. Tell them that:
  • If the unused H-1B numbers of 300,000 are not recaptured and used, the U.S. businesses will have to outsource 300,000 jobs to foreign countries.
  • If 90,000 unused Employment Based immigrant visa quota numbers are not recaptured and used, these jobs will also be outsourced to foreign countries.
• America, the jobs taken by foreign workers either in the U.S. or foreign countries depend on the market forces in the global economy and free trade. For the international competitions, U.S. business will have to rely on foreign workers, particularly high tech professionals, no matter where they perform the jobs.
• However, if the job had to be done overseas by the outsourced foreign workers in a territory of a foreign country, they will not contribute to the American economy other than supply of labor forces, and these outsourced jobs will not create businesses and jobs in the related industries as they will not spend money to buy the goods and services in this country. The foreign workers who are hired and work in the country will generate and boost the country's domestic businesses and jobs as they spend their income in this country. Granted that the U.S. businesses will need their services and allegedly they will take away American jobs, the result will remain same: No matter what, whether in the form of oursourcing or hiring foreign workers within the country, probably the same number of jobs may be allegedly taken away by the global market forces. The huge difference between the two is that outsourcing of jobs will not help to create jobs and business within the country by the forced of consumption but the foreign workers in the U.S. will. Come to think of the affect of McDonald hamburger drive-in orders taken by foreign workers in a foreign country and orders taken by a foreign worker in town. Wake up, America.

10/18/2005: Official November 2005 Visa Bulletin

• We asked to ourselves earlier what bombshell the State Department was cooking. Here it is. No movement what-so-ever for India, China, Worldwide!! How depressing! This reporter is not a Michael Brown but wants to go home early today to walk with a dog to leave this depressing news behind.

10/18/2005: Visa Number Predictions for 2006

• Prediction of the visa movements:
  • December 2005: Just a small progress anticipated.
  • January-September 2006: Start moving but very slow.
  • India and China will continue to experience no movemen or extremely very slow movement
  • World-wide prediction next year: EB-1= C, EB-2=Cut-Off Date, EB-3=Slow movement
  • Schedule A: 38,000 recapture numbers are available and visa number for EX is expective to be "C" for the rest of the year.
• Labor backlog cases of over 300,000 may affect further negatively.

10/18/2005: Immigration Reform Senate Judiciary Hearing Testimonies and Statements

• Homeland Secretary
• Labor Secretary
• Sen. Johyn Cornyn
• Sen. Patrick Leahy
• Frank Sharry
• Mark Krikorian
• Douglas Massey

10/18/2005: What Bombshell State Department is Cooking? Where is November Visa Bulletin?

• The schedule of the monthly visa bulletin release has remained a mystery, ranging from 7th of the month to close to the end of the month. The delay in the release of the November 2005 visa bullen currently gives enough "thrill" to the level of orgasm to millions of people around the globe, particularly after their dropping of a huge bombshell in September. One wonders what they are cooking?

10/17/2005: Leticia Sierra, Acting Chief of Division of Foreign Labor Certification

• Just released memorandum indicates that William Carlson is replaced by Leticia Sierra as the Acting Chief of the Division of Foreign Labor Certification of DOL.

10/17/2005: DFLC 10/13/2005 Memorandum for Special Handling Procedure for Katrina Affected Area Cases

• DFLC issued a special memorandum to the National Processing Centers and Backlog Processing Centers including Satellite Centers on October 13, 2005 to give a guidance on special handling of Katrina affected area cases. The special handling includes, among others, that: If the employer or employee or attorney or agent was located within the Katrina affected areas, even if they moved, the deadline for meeting certain requirements for the PERM applications and Backlog cases will be considered "timely" filed if it is received by December 1, 2005. For the details, please read the entire memorandum.

10/16/2005: Senate Judiciary Committee Immigration Reform Hearing on Tuesday and Witnesses to Testify

• The Judiciary Committee will hear testimonies from the two panels of witnesses. Panel I is the stake-holder government department heads and Panel II represents private sectort representatives. Panel I include Mr. Michael Cherthoff, DHS Secretary and Ms. Elaine Chao, DOL Secretary. Panel II will be represented by Frank Sharry of National Immigration Forum, Mark Krikorian of Center for Immigration Studies, and Professor Douglas Massey of Princeton University.
• As we all know, Ms. Elain Chao has been strongly advocating the immigration reform focusing on the temporary guest worker program. Mr. Cherthoff has been emphasizing the border security issues rather than broader immigration reforms, but he is expected to support at least the temporary guest worker program. Accordingly, these two government witnesses are expected to advocate the President's temporary guest worker program agenda and it is unclear whether they will support McCain-Kennedy line of program.
• In this regard, from the perspectives of the broader immigration reform including adjustment of undocumented aliens and immigrant quota system adjustment, we would look forward to the witnesses from the private sector to testify in the right direction. Please stay tuned.

10/16/2005: Ongoing USCIS Team of Leadership Changes and Potential Changes in Immigration Policies

• The USCIS is in the process of the leadership changes. As we reported earlier, the Senate is to confirm nomination of Emilio Gonzalez as the new Director of USCIS, and pending the confirmation, Robert Divine, former General Counsel, has been acting as the Acting Director of USCIS. William Yates has provided de facto leadership for the operation of the USCIS as the Director has traditionally been a political appointee with not much expertise in immigration and immigration policies and had thus played a role of ceremonial head until Mr. Robert Divine stepped in. Mr. Yates and Mr. Divine then formed an indeed dream team of leadership for the agency from the perspectives of immigrants and other immigration stake-holders. But this dream may not last too long, according to the unconfirmed sources of information. The USCIS has yet to officially announce it, but there is a sign that Mr. William Yates might have retired at the end of September and the post has apparently been taken over by Mr. Michael Aytes, former officer in charge of Information and Customer Services under Mr. William Yates. This is apparent from the Memorandum which Mr. Aytes had issued on October 5, 2005 as the Acting Director of Domestic Operations. We reported this memorandum on October 11, 2005. Additionally, there is an unconfirmed information that Mr. Terrance O'Reilly, Director of Area Operations, has also retired. These changes have yet to be confirmed by the official sources.
• It is uncertain how the ongoing changes will affect the USCIS policies in the future. We sincerely hope that the new leadership team would continue the policies which Yates-Divine team has worked out using their highest level of expertise in the immigration laws and its future directions. Please stay tuned to this web site for the development of this news.

10/14/2005: Sen. Bill Frist at Odds with President and Immigration Reform Bill Sponsors

• Next Tuesday the Senate Judiciary Committee will struggle to deal with the Immigration Reform bills. But news report indicates that it is just a small hurdle to overcome. Report indicates that Bill Frist who is himself in a legal trouble is taking a position, in siding with the ultra conservative forces in the Congress, to oppose immigration reform bill when it comes to the full floor of the Senate. These Senators want to totally focus on the border security issue this year and not to table the immigration reform bills that deal with the temporary guest worker program the President has been advocating and undocumented alien adjustment program as well as immigrant quota adjustment. Report indicates that as the Majority leader he has a power to set the agenda for the full floor of the Senate. Lately Bill Frist has been drifting away from the circle of the President and frequently expressed certain views that were at odds with the President. It will be interesting to see whether Mr. President will be able to twist the arms of Mr. Senator to focus on the pressing issues rather than playing politics. Read on.

10/14/2005: Indian EB Immigration Reflected in Chennai November 2005 Interview Schedule

• The Chennai November 2005 immigrant visa interview schedule reflects continuing visa number problems for EB-1, EB-2, EB-3, and continuing availability for the Schedule A EX immigrants as follows:
  • E1=0
  • E2=1
  • E3=4
  • EX=134 (including 2005 cases)
• Considering the fact that a large number of employment-based immigrants, particularly high-tech professionals, came through the Chennai visa post in the past, the November immigrant visa interview schedule at the visa post reflects the seriousness of the current U.S. employment-based immigration quota system.

10/13/2005: IMPORTANT NEWS: We Need Your Help!!

• AILA has reported that the Senate Judiciary Committe is markedup a very important legislative bill on October 20, 2005, coming Thursday, to discuss the Budget Reconciliation and Immigration proposal that can give some relief to the current H-1B blackout and EB immigrant visa number retrogression. According to the AILA, the proposal includes the following:
  • Recapture of 300,000 unused H-1B numbers
  • Recpature of 90,000 unused EB immigrant visa numbers
  • Exempting spouses and minor children of EB principal aliens from the annual EB quota limit
  • Permit filing of I-485 even during the visa number retrogression.
  •  
• AILA states that it is vitally important that the people in business community and scientific and research organizations reach out tothe following members of the Senate Judiciary Committee as urgently as possible:
  
  Arlen Specter (R-PA) Chairman Patrick Leahy (D-VT) Ranking
  
  Orrin Hatch (R-UT) Edward Kennedy (D-MA)
  Charles Grassley (R-IA) Joseph Biden (D-DE)
  Mike DeWine (R-OH) Herbert Kohl (D-WI)
  Jeff Sessions (R-AL) Dianne Feinstein (D-CA)
  Lindsey Graham (R-SC) Russ Feingold (D-WI)
  John Cornyn (R-TX) Charles Schumer (D-NY)
  Sam Brownback (R-KS) Richard Durbin (D-IL)
  Tom Coburn (R-OK)
  Jon Kyl (R-AZ)
• Please call (202)224-3121 Congressional switchboard and obtain their email addresses or through their websites as quickly as possible: It is "extremely" important that everyone participates in this last minute campaign. For the talking points, please click here.

10/13/2005: Visa Retrogression and Move of the Businesses in Support of the Immigration Reform Legislation

• The Financial Times reports today that the large companies have started feeling the impact of the current visa system and the recent EB visa retrogression in recruiting and retaining the brightest foreign workers to support their businesses. The report also indicates that the large businesses have come forward to lobby in support of the immigration reform legislation to get a relief on the visa number problems. Apparently, their lobby includes not only raising the total quotas but also excluding the visa numbers used by the family members of the alien workers in counting the total quota. Statistically, the family takes out approximately 2.5 of the total numbers of 140,000.(Oops!). This concept should be strongly pushed in parallel with the pending immigraton reform bills that will add a large numbers to existing quota of 140,000 for the workers only.
• America should wake up and recognize the reality that the strength of this country depends to a large extent in all segments on the brains and the brightest foreign workers. The urgency of the reform is too obvious from the fact that even Nobel Prize Winners from China and India cannot be attracted to this nation because of the visa quotas and visa number retrogression! We urge the Congress to act quick to mend the nation's wounds. The business community will watch very closely the action of the Senate Judiciary Committee next Tuesday, October 18.

10/12/2005: Suspicious IV Priority Date Report in Delhi Web Site Excites the Immigrants

• The Delhi American Consulate posted the following priority date report on its website for the last few days and immigrants are excited about the visa number changes.
• PRIORITY DATES FOR THE MONTH OF OCTOBER 2005
• FAMILY PREFERENCE VISA AVAILABILITY
• INDIA OTHERS
• F1 22-Apr-01 22-Apr-01
  FX 1-Oct-98 1-Oct-98
  F2A 1-Nov-01 1-Nov-01
  F2B 22-Apr-96 22-Apr-96
  F3 15-Apr-98 15-Apr-98
  F4 1-Aug-93 1-Aug-93
•  
• EMPLOYMENT PREFERENCE VISA AVAILABILITY
• E1 1-Aug-02 CURRENT
  E2 1-Nov-99 CURRENT
  E3 1-May-00 CURRENT
  E4 CURRENT CURRENT
• EW 1-Oct-00 1-Oct-00
  EX CURRENT CURRENT
• The sources of this posting are, however, "dubious" at best. It is reported as the priority dates for October 2005, but it certainly is not true. Some of the immigrants speculate whether this posting was intended to report the November 2005 priority dates. We have no confirmation of the truth of this information one way or another. One thing certain is extremely drastic changes in EB area and no changes in FB area, raising question of legitimacy of this report. American Consulate in Delhi is advised that this apparent erroneous report be corrected as soon as possible. We have just requested the American Consulate in Delhi to straighten out the report. Please stay tuned to this website for the development of this news.

10/12/2005: USCIS Memorandum to Clarify Processing of Scheduled A I-140 Filed "Before" and "After" PERM Launched on 03/28/2005

10/12/2005: USCIS HQ Interim Guidance for Field Offices on Various Issues Which are Impacted by the PERM Program

• Mr. William Yates of USCIS Director of Operations issued a very important memorandum on September 23, 2005 to give a guidance to the field offices on the following issues as affected by the DOL's PERM Program:
  • Labor Certification Validity
  • Determininign Priority Dates for EB Form I-140 Petitions
  • Duplicate Labor Certification Requests
  • Adjudicating Extensions of H-1B Status Beyond 6th Year.
• We will summarize each of these issues as reflected in this important memorandum.

10/11/2005: USCIS Offers Special Remedies for Legal Proceedings to Alien Victims of Katrina and Rita Huricanes

• On September 7, 2005, we suggested in the Breaking News that USCIS should work out special remedies for those alien who could not "timely" comply with the immigration procedures. We are glad that Michael Aytes, Acting Associate Director, Domestic Operations of USCIS issued a memorandum on October 5, 2005 advising field offices to extend time for these alien victims to comply with the legal procedures and requirements, including untimely application for change or extension of nonimmigrant status, untimely response to the RFE, special procedures for replacement of lost documents including green card, EAD, etc., and address changes, AAO Appeals.... The aliens in those Katrina and Rita areas who were located in the affected states at the time of the huricanes should read this memorandum to seek the remedies.

10/11/2005: Retrogression and Power Balance Between Employer and Employee

• Steep EB immigrant visa retrogression has created two groups from the perspectives of the employers and alien employees. The people in the first group are those who have filed I-485 and faced retrogression, and the people in the second group are those who have yet to file I-485. There is a huge difference between these groups when it comes to the dynamics and the power balance between the employer and the alien employee. AC 21 gives the alien employees a freedom to go into the open job market after 180 days of filing of I-485. Since change of the employment in a similar or same occupation will not affect their green card process including the priority date, the alien employees enjoy the power in the negotiation of the terms and conditions of employment. As the economy grows further, the power of such alien employees will grow stronger. People may remember the days in 1997, 1998, and 1999. There was a booming economy and recruitment of alien employees, particularly professional employees posed a serious challenge for a large number of business to survive. The incentive program and employee referral program were one time two most popular terms in the labor market. Offering a huge bonus and an expensive automobile was not uncommon. This first group has such privilege thanks to the AC 21 Act.
• The second group is vulnerable to the abuse by the employers because of the steep retrogression and the value of priority date. Termination of the employment will practically end their immigration journey unless the employer is willing to keep the "permanent" job opened for years to come. This gives an enormous power on employers over the alien employees. There is a growing sign that these employees often see no pay raise or small adjustment of rate , not to mention the incidents of pay-cuts from time to time. These employees practically do not have any bargaining power to negotiate the terms and conditions of employment because of their "long and long" immigration journey. It is hoped that the employers follow the business ethics and restrain themselves from taking advantage of the alien employees' vulnerability as affected by the visa retrogression.

10/10/2005: Roller Coaster of Issue of Merger of ICE and CBP

• This issue was on and off quite frequently in the Beltway and in the Hill. But now, here we go again. The Democrats intoduced a bill in the House to reorganize the DHS and one of the key changes the bill proposes is the merger of ICE and CBP. Read on.

10/10/2005: Manila Immigration Visa Interview Schedule for October and November 2005

• According to the immigrant visa schedule of the American Consulate in Manila, it will interview close to 6,000 cases (entire immigrant visa cases including FB and EB cases) in the two months. All the EX cases for Schedule A out of the entire EB cases including 2002, 2003, 2004, and 2005 are scheduled in October. Interestingly so far only one 2005 EX case is scheduled for interview in November 2005. We certainly hope that it would add more EX interviews in November. We ask the EX readers to send us e-mail in the event that they have received or will receive IV interviews during November 2005 so that other EX readers can assess better the situation of EX visa numbers. Please stay tuned to this website and soon-to-be released November 2005 Visa Bulletin!

10/09/2005: Redundant Visa Retrogression Questions

• Our e-mail system is flooded with the questions. The problem is most of these questions are "redundant" or "too individual specific" or "facts not shared by too many people." Remember that we will totally ignore such e-mail questions. We are puzzled by certain repeated "redundant" questions people address to us. They should first go through the questions and answers in our Q&A page before they address any questions.

10/08/2005: Schedule A Professionals, Beware of the Upcoming Retrogression (Q60)

10/08/2005: EB-Visa Number Retrogression and Scheduled U.S. Senate Immigration Reform Legislation Hearing on 10/18/2005

• The U.S. Senate Judiciary Committee is scheduled to hear and debate the Comprehensive Immigration Reform Bills begining from 9:00 a.m. of October 18, 2005. There are two comprehensive immigration reform bills before the Committee. One is McCain-Kennedy bill, S. 1033, The Secure America and Orderly Immigration Act of 2005, and the other is Cornyn-Kyl bill, S. 1438, Comprehensive Enforcement and Immigration Reform Act of 2005. McCain bill focus on the earned immigration issue, while Cornyn bill focus on enforcement and border security. Immigrant community supports the McCain bill. We are glad that the two roadblocks to the immigration reform legislation agenda, Hurricane in the Gulf and the confirmation of the U.S. Supreme Court Chief Justice, were quickly resolved and behind us so that the Hill can now concentrate on other pressing issues like the Comprehensive Immigration Reform legislation as initially intended.
• The upcoming comprehensive immigration reform hearing draws a lot of attention from the immigrants and immigrant community, particularly as related to the employment-based immigrant visa number retrogression and anticipated relief for the EB visa numbers once the comprehensive immigration reform legislation is enacted in one form or another. As we reported earlier, the two bills show a sharp conflict in the issues relating to the forms of relief for undocumented aliens. However, when it comes to legal immigration, the differences are substantially narrowed in the two bills. Both bills agree that the country needs increased number of legal immigrant workers and propose to increase the EB immigrant visa numbers, albeit some differences in total numbers these bills propose. Accordingly, the employment-based immigrant community is anxiously looking forward to enactment of the immigration reform legislation in one form or another because of the current terrible EB visa number retrogression. This reporter encourages the visitors of this web site to tune into C-Span at 9:00 a.m. on October 18 to hear the debates on these two bills.
• For the difference in EB visa number increase in these bills, please revisit our posting on 09/14/2004.

10/07/2005: Shocking EB Visa Numbers Prediction for FY 2006 and FY 2007

• The AILA has reported the FY 2006 and FY 2007 Employment-Based Visa Number predication based on the information from the State Department and the Labor Department. It is literally shocking.
  • The recapture number from prior employment-based visa numbers, which we reported in our Visa Retrogression Q&A, approximately 101,000 have been almost completely exhausted, and fewer unused family-based immigrant visas out of about 89,000 are available for employment-based cases. Accordingly, recapturable numbers are practically almost gone.
  • The visa numbers for FY 2006 and FY 2007 which have been provided by the State Department to the AILA are so stunning that one feels completely lost. See the following figures:
    • FY 2005--249,000 (attributable recapture from the EB unused numbers and spillovers from the family-based categories)
    • FY 2006--156,000 (actual number is estimated to be about 6,000 fewer than this figure!)
    • FY 2007--148,000
  • For the Worldwide EB-2 numbers, it predicts that it may remain current at least through December 31, 2005, and then may retrogress during the 2nd quarter of FY-2006 (January - March 2006). What's more, a cut-off date may be established during the 3rd (April - June 2006) or 4th quarter (July - September 2006).
  • India used 45,000 EB immigrant visas in all of the employment-based visa categories in FY 2005, but in FY 2006, the per-country limit in all EB categories will only be 10,700, and of that 10,700, the number available per-country in the EB-1, EB-2 and EB-3 categories is projected to be only 9,180 or less.
  • The 245(i) cases which were filed mostly before April 31, 2001 will more or less seriously affect the pace of the visa number progression. But look at the estimate of 245(i) which is pending at the DOL. The number is staggering. There are estimated to be approximately 345,000 245(i) applications with the DOL. Without doubt, some of these applications will be denied, withdrawn or abandoned, but the prediction indicates that as many as 250,000-275,000 direct beneficiaries plus additional derivative beneficiaries of their family members (average 2.5) will move into I-140 and I-485 streams in the future.
• Again, as we emphasized in our Visa Retrogression Q&A, the only solution is to push the Congress to pass the Immigration Reform legislation as soon as possible. You all should join in this force to lobby the Congress and refute the anti-immigration forces!
• Are You Ready!?!?!? All of You, Please say "Yes, SIR!" IMGs, you are no exceptions in this fight and struggle. Medical doctors, dentists, chiropractors, Schedule A nurses, physical therapists, exceptional artist and athlet performers, college professors, high school and elementary school teachers, or beauticians and stylists, and lawyers, if you have patients or clients or professional ties with the people who represent you in the Hill, please talk to them within the boundary of your professional ethical rules. This reporter knows that most of you are reading this message from the e-mail inquiries we have been receiving from you.

10/05/2005: State Department Publishes Official Notice of DV-2007 Immigration Lottery Registration

• As the DV-2007 is launched, the U.S. Department of State published the official notice in the federal register.

10/04/2005: USA Today, October 2005 Edition of USCIS

• According to the USA Today, the montly newsletter published by the USCIS, which has just been released this evening, the total pending cases of immigration benefit petitions/applications are reduced to "below one million." Between July and August, the number dropped 11%. Read on.

10/04/2005: Immigration Lottery Starts Tomorrow

• Considering the mood in the Congress and the State Department, this may be the last year for the immigration lottery program. FY 2007 immigration lottery starts tomorrow and qualified registrants may not want to miss this lottery. A couple of points to remind:
• Ineligible Countries: The number of ineligible countries have grown over the years. For FY 2007, the following countries are ineligible: Canada, China (PRC), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Pakistan, Philippines, Poland, Russia, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR and Taiwan are eligible.
• Alternative Chargeability:
  • Through the spouse born in a country that is eligible. In this case, you and your spouse must immigrate simultaneously to benefit from the alternative chargeability. If you fit in this description, you can send in the immigration lottery electronically.
  • The parents who were born in a country that is eligible. In this case, your parents should not have been a resident of the country where you were born. Your parents are considered non-resident in the country where you were born if at the time of your birth, your parents had to station in your country of birth under the orders or instruction of an employer, principal or superior authority whose business was foreign to your parent's country of birth. Most typical example will be those parents who stationed in your country of birth on diplomatic mission or other business or political mission of your parents' country where they were born. For instance, even if you were born in India while your parents were temporarily stationing in India from Bangladesh for the mission which is described above, even if you are a citize of India, you can send in lottery.
• Good luck.

10/03/2005: Department of State E-3 Visa Application Guidances and Q&A for Australian Professionals

• Yesterday, we posted the summary of this visa application procedure. Readers may check with the primary source of this information by clicking the U.S. Department of State guidance itself.

10/02/2005: Australian E-3 Professional Nonimmigrant Visa Application Procedure

• When an Australian national applies for the new E-3 nonimmigrant professional employment visa at the American visa posts outside of the United States, they will have to go through the two step.
• The first step is for the U.S. employer to file a Labor Condition Application, ETA 9035, with the U.S. Department of Labor. However, unlike H-1B procedure, the application cannot be filed by mail nor by fax. It can be filed only by mail. Besides, it is filed directly to the national office of Foreign Labor Certification Division in the DOL in Washington. The address is: U.S. Department of Labor, ETA, Division of Foreign Labor Certification, Temporary Programs, Room C-4312, 200 Constitution Avenue, N.W., Washington, D.C. 20210.
• Step two: Once the Labor Condition Application is certified, the E-3 visa applicant should submit the following documentation to the visa post:
  • Copy of the Certified Labor Condition Application;
  • Educational/Credential Documentation: Degree Certificate, transcipt, and foreign credential evaluation;
  • Employer statement describing the description of duties and responsibilities of the job that meets the definition of specialty occupation similar to the H-1B petition and guarantee of payment of minimum of prevailing wage or actual wage whichever is higher;
  • Temporary residence evidence. Unlike H-1B, dual intent of permanent residence and temporary residence is not allowed. Accordingly, if the applicant has a pendin immigrant petition or alien labor certification application, he/she will be disqualified from the E-3 visa. This requirement is similar to the requirement of the alien's retaining "permanent residence in Canada" for the TN visa for the Canadians. In this regard, both Canadians and Australians must submit evidence that they have a "permanent home" in their home countries.
  • For a licensed occupation, the applicant must submit the certified copy of the required license or other official permission to practice the occupation in the state where he/she will work or, if permitted, alternatively submit evidence that the he/she will obtain the required license or permission within a reasonable time after entry to the United States;
  • Machine Readable Visa Fee payment evidence.
  • Nonimmigrant Visa Application Forms.
  • Proof of Australian Nationality.
• Those Australians who currently reside in the U.S. should be allowed to apply for change of nonimmigrant status through the USCIS. However, there is no guideline released by the USCIS. Obviously, the threshold evidentiary requirements should be identical, but these Australians should also prove two additional evidence: One is the proof of legal admission to the U.S. in the form of I-94, and the other is the proof of maintaining the nonimmigrant status without violation. Since there is no special form for E-3 visa status application (I-129 E-3 Supplement), currently these applicants live in a state of confusion. It is hoped that the USCIS release its guidelines as soon as possible.

10/01/2005: What to Do When Passport or Visa or I-94 is Lost or Stolen

• Sometimes, people often find that their passport or visas or I-94 document is stolen or lost and don't know what to do. Here is the information which can help them take a proper step to deal with the confusing situation. Please click here.

09/30/2005: House Judiciay Passed Bill to Copycat H-1B for L-1 Filing Fees

• House Judiciary Committee passed H.R. 3648 to charge filing fees on L-1 petition or visa application more or less copycatting the H-1B"
  • L-1 Visa Application at Visa Posts Using Approved Blanket L-1: $1,500
  • L-1 Individual "Initial" Petition Filed with USCIS: $1,500
  • L-1 First Extension Petition Filed with USCIS: $1,500.
• Read yourself the full text of the bill:
  • Section 214(c) of the Immigration and Nationality Act (8 U.S.C. 1184(c)) is amended by adding at the end the following:
  • `(13)(A) The Secretary of State shall impose a fee on an employer when an alien files an application abroad for a visa authorizing initial admission to the United States as a nonimmigrant described in section 101(a)(15)(L) in order to be employed by the employer, if the alien is covered under a blanket petition described in paragraph (2)(A).
  • `(B) The Secretary of Homeland Security shall impose a fee on an employer filing a petition under paragraph (1) initially to grant an alien nonimmigrant status described in section 101(a)(15)(L) or to extend for the first time the stay of an alien having such status.
  • `(C) The amount of the fee imposed under subparagraph (A) or (B) shall be $1,500.
  • `(D) The fees imposed under subparagraphs (A) and (B) shall only apply to principal aliens and not to spouses or children who are accompanying or following to join such principal aliens.
  • `(E) Fees collected under this paragraph shall be deposited in the Treasury, and shall not be available for expenditure until appropriated.
  • `(F)(i) An employer may not require an alien who is the beneficiary of the visa or petition for which a fee is imposed under this paragraph to reimburse, or otherwise compensate, the employer for part or all of the cost of such fee.
  • `(ii) Section 274A(g)(2) shall apply to a violation of clause (i) in the same manner as it applies to a violation of section 274A(g)(1).'.
• Wow!

09/30/2005: New AAO Appeal Form, I-290B

• As we have already advised, the fee for Motion to Reopen, Motion to Reconsider, and Appeal to AAO increased to $385 effective September 28, 2005. To reflect the change, the USCIS has just released a new I-290B form of June 30, 2005 version. Please make it sure people use this new form if they file an appear to AAO.

09/30/2005: Chinese and Indian Dormant Stage Starts! zzZZZZZZZZZZZ............................................

09/29/2005: Last Minute EB-2 Filing Requirement by USCIS

• The USCIS is concerned that some ineligible people may just file before 10/01/2005 just to obtain EAD and Advance Parole. Accordingly, AILA has reported that the USCIS would require that the "initial evidence" requirements for I-140 petitions and I-485 applications are met. Filings that do not satisfy the "initial evidence" requirements are likely to be rejected, not subject to an RFE, according to the AILA.
• In normal environment, the USCIS would accept the filings even if some initial evidence are missing and they issue RFE, but it is the AILA's opinion that the USCIS may likely be less lenient under the current unusual circumstances. It is still unclear how strictly the USCIS will require all the flawless initial evidence and whether any filings with a minor flaws in documentation of initial evidence will be rejected under any circumstances. We hope not.
• The I-485 form lists the following evidence as the initial evidence for the employment-based I-485 filings:
  • Birth Certificate
  • Copy of passport page with nonimmigrant visa
  • Photos
  • Biometirics (currently after filing)
  • I-693 Medical report
  • G-325A Biographic Information Sheet
  • Evidence of status (I-94 + current status evidence)
  • Sponsoring employer letter
  • I-140 petition Receipt or Approval Notice
  • I-485 Receipt Notice or Approval Notice, if spouse filing separately. If filing jointly not required.
  • Marriage certificate, marriage termination evidence if filed as a spouse, and birth certificate if filed as a child
  • Other eligibility documentation
• It is urged that the USCIS exercise discretion under the same spirit of exercise of discretion to accept the computer print-out labor certification approval and be lenient in accepting the filings with minor flaws in initial evidence documentation. The frivolous filing to attempt to obtain EAD/AD can be sufficiently prevented at the stage of processing of I-765 and I-131.
  

09/29/2005: EB-2 Visa Number Retrogression on 10/01/05 and Less Generous DOL

• We were hoping with a huge disappointment that the DOL also would take some special action to certify EB-2 cases in the PERM National Processing Centers and the Backlog Processing Centers before September 30, 2005. However, there are no reports that the DOL has considered the unusual circumstances of the visa number retrogression and decided to act to assist these immigrants. For some reasons, the DOL has traditinally been less generious in administering the program ignoring the rule of equity in the administration of the program. For instance, in the administration of foreign labor certification program, the agency should have considered unusual exigent and equitable circumstances and exercised disretion to "expedite" on the equitable consideration, such as aging-out of the children which would create a tragic permanent separation between the parents and the aging-out child, and H-1B professionals reaching six-year limit who were not qualified for the 7th-year extension. For the aging-out cases, one time only a couple of Certifying Officers out of the 10 Regions (6 Regions afterwards) recognized the need for expedite in the aging-out situation and other Certifying Officers had refused to expedite in such a compelling situation. More tragically, even these two Certifying Officers' generous actions have been taken away by the succeeding Chiefs of Foreign Labor Certification Division. When it comes to the "expedite," the DOL has always taken a hard-line stance unlike the legacy INS (current USCIS) and the U.S. Department of State. We find it very unfortunate that the leaders of the foreign labor certification program in the DOL have maintained and still maintain such a rigid administration of the program.

09/29/2005: Big Hat-Off to USCIS for Actions to Help EB-1/EB-2 Indian/Chinese/Filipino I-485 Filers Before October 1, 2005

• The USCIS released a public notice that the USCIS would accept the computer printouts of labor certification approval (both ETA 750 and ETA 9089) to allow these Indians, Chinese, and Fililpinos to file the concurrent I-140/I-485 within September 30, 2005. Those who are successful in timely filing I-140/I-485 before October 1, 2005 are required to update their I-140 petitions no later than October 31, 2005 with a hard-copy original of the labor certification application certified before October 1, 2005. When they update the I-140 petitions, they should reference in the letter the pending I-140 Receipt Number.
• This is the benefit of having an experienced team of leadership in the USCIS with remarkable expertise in the immigraion policy, issues, and practice. Without Robert Divine, Acting Director of USCIS, and William Yates, Deputy Director on Operations of USCIS, such admirable decisions could not have been thought out. This reporter would like to invite the employment-based immigrats, their employers, families and other people to send their big hugs to these two leaders.
• This reporter also wishes to give a credit to the leaders of AILA working behind to induce the USCIS leaders to take such action.

09/29/2005: Last Day to File EB-1 & EB-2 I-485 Application Before Retrogression on October 1 for Indians and Chinese

• Until September 30, 2005, the visa numbers for India and China for EB-1 and EB-2 are wide open and current. Then, the next day, the number will retrogress several years backward and these Indian and Chinese professionals will not be able to file green card applications for a long time, unless the Congress acts. These will include Nobel Prize Winners!
• During this week, lawyers, including this reporter, have been extremely busy to help these professionals to have their clients cases filed by September 30. For the qualified people, it is not too late. Inasmuch as the filings are "receipted" by the Service Centers within tomorrow, their I-485 applications will be processed. There are some Indians and Chinese who will have no proper nonimmigrant visa options or work authorization or travel permit during the next several years either because they are not eligible for the 7th year H-1B extension or extension of other nonimmigrant options may be challenged because of the pending labor certification or immigration petition proceedings. Additionally, pending I-485 applications for more than 180 days will allow them to change employment, while those who lose the jobs while waiting for visa numbers without the pending I-485 may have to leave the country in a majority number of cases. For these nonimmigrants, filing and pending of I-485 will be a crucial savior as they will be allowed to stay, work, and travel, and also change employment after 180 days while they wait for the visa numbers. Those who need spouse or parent's pending I-485 receipt numbers to file their cases within today may visit our Q&A.

09/28/2005: USCIS Reminds Changed Fees for Appeal or Motion to Reopen/Reconsider Effective Today

• USCIS reminds that effective today, unless people pay $385 fee for an appeal to AAO or to the USCIS for motion to reopen or reconsider, such appeal or motion will be rejected. Since both a motion or appeal has a time limit, payment of a wrong amount fee can result in a serious consequence. Read on.
• We have already reminded people that a number of current USCIS forms expire on September 30, 2005 and people should be mindful of the expiration date of each form they are filing.

09/26/2005: New Immigration Filing Fees Effective 10/26/2005

• USCIS is increasing the immigration filing fees effective October 26, 2005. Click here for upcoming new filing fee schedule.

09/24/2005: Reminder for the Visa Retrogression Q&A Inquirers

• There has been outpouring of questions addressed to this reporter by the immigrants. Some of questions touched on interesting issues which were generally faced by most of the immigrants and some were not. Please remember that we do not respond to the following two e-mails: (1) Individual specific questions which are not shared by other immigrants; (2) Redundant questions which we have already answered in the Q&A page. People should check and read the existing Q&A before they send us a question as a number of questions have already been answered and addressed in our Q&A site. We will have to ignore such questions. Please go over our Q&A before you send us e-mail inquiries.

09/24/2005: State Department Releases Procedure for Applying for a U.S. Passport to Change Information Effective 09/26/2005, Monday

• As we reported on 09/13/2005, the State Department will cease to amend the U.S. passport to reflect name change or any other changes, effective September 26, 2005, coming Monday. Accordingly, the U.S. citizen must apply for a new U.S. passport to achieve change of the information in the existing passport.
• The State Department has just issued a guideline for the procedures, application forms, and filing fees to apply for such new U.S. passport. Generally, the filing fee is waived if such application is filed within one year of the issuance of the U.S. passport. If such application is filed after one year of the issuance of the U.S. passport, people should pay the filing fees. For the details, please click here.

09/23/2005: H-1B and H-2B Cap Count for FY 2005 and FY 2006 As of 09/19/2005

• The USCIS has just released the latest cap count of the H-1B and H-2B for FY 2005 and FY 2006 as of September 19, 2005. It shows that for the U.S. master's or higher degree holders, there are still available about 8,000 numbers for FY 2005 cap and 8,000 numbers for FY 2006. This release did not update cap number of FY 2006 non-U.S. Master Degree holder H-1B cap, but the USCIS has already announced the number ran out in early August and no cap number will be available until October 1, 2006. For the USCIS 09/22/2005 cap count release, please click here.

09/23/2005: EB Visa Retrogression and Protection of Aging Out Children Under Child Status Protection Act (CSPA)

• Some of the Employment-Based I-140 beneficiary aliens or I-485 applicants have children who reached 21 or approach the age of 21 soon. Since such child cannot immigrate with the parent immigrant worker once he/she reaches 21, unless he/she is defined as a "child" (less than 21 years of age). Accordingly, the aging-out of a child, especially during the period of severe visa number retrogression, should be a devastating issue for the family.
• Currently, the USCIS exercises discretion and expedite such family's EB-485 applications when two conditions are met: (1) Visa number is available for them. When visa number is not available for them, there is nothing the agency can help. (2) Such aging-out child is not eligible for protection under the CSPA. Since currently the employment visa number is not available and will continue so in the future for most of the EB-categories, particularly Indians and Chinese, the option of USCIS "expedite" is less an issue. Accordingly, the people who have such children should seek legal counsel to see whether their children are or will be protect under the CSPA and will be able to immigrate with them and not being permanently separated from them.
• The CSPA is a body of law which is very complex and it is not something one can summarize the rules in a few pages, not to mention a few lines. However, we will lay out some points which may help some of these immigration seekers in dealing with their growing-up children problem. "Protection" which is provided for the aging out children means that even if the protected children reaches 21 years of age, such children will be still considered a "child (less than 21)" for the purpose of derivative beneficiary immigration. Generally, we can present three (3) broad areas that involve the employment-based immigrants as follows:
  • Children Aged-Out Before August 6, 2002: Even if they passed 20 years of age, they will be protected by this law if the following conditions are satisfied:
    • I-140 petition was filed and pending before August 6, 2002; or
    • I-140 petition was approved before August 6, 2002, and I-485 was filed before August 6, 2002, but there was no final decision on I-485 on or before August 6, 2002.
  • Children Aged-Out or To-Be-Aged-Out After August 6, 2002: The children's age is calculated by first determining the age of the children "on the date that a visa number becomes available."
    • The date that a visa number becomes available is the date I-140 petition is approved if the visa number was available at the time I-140 was approved.
    • If the visa number was not available at the time I-140 was approved, the age is determined by the age at the time of visa number becomes available minus "the period that I-140 was pending" In other words, longer there had been a delay in I-140 petition processing by the USCIS, the aging-out is delayed under the CSPA.
  • Special Rule During the Visa Number Retrogression: If a visa availability date regresses, the following rules or practice are in place:
    • If I-485 was filed before the visa number retrogressed, the Service Centers should retain such I-485 and note on the I-485 form the visa availability date at the time I-485 was filed. Once the visa number becomes available again for the specific EB category, they should determine whether such aged out person is considered a "child" using the visa availability date marked on I-485 form when the visa number retrogressed.
    • If, however, the child has not filed I-485 prior to the visa availability retrogression and files I-485 later after the visa availability date becomes available again, such aged out children's age is determined using the subsequent visa availability date.
• Again, people should remember that the law of CSPA is extremely complex and even tens of pages are not enough to outline the skeleton of the rules. It is thus critically important that people seek legal counsel and never dare to guess the rule or law in this area.

09/22/2005: Immigration Filing Fees May Go Up Soon

• Yesterday, the OMB approved the USCIS plan to adjust petition and application filing fees. It is expected that the USCIS will soon publish the notice in the federal register. It is unknown how much they are going to increase the fees. Please stay tuned.

09/21/2005: Participate in National Lobby and Call-In Date Campaign Today

• The immigrant community and organizations have designated today as the National Lobby and Call-In Date and seeks your participation in this important campaign. As we reported earlier, currently the immigration reform bills remain a backburner and the community needs to energize the political process. AILA is assisting you to contact the Congressional delegations from your district. Please click here to get the information. The text of immigration reform bills, click McCain and Cornyn.

09/20/2005: State Department Announcement and Instruction of DV-2007 Immigration Lottery

• Starts at 12:00 pm EST (GMT-5) on October 5, 2005 and end at 12:00 pm EST (GMT-5) on December 4, 2005.
• Ineligible Countries: Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Pakistan, Philippines, Poland, Russia, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR and Taiwan are eligible.
  

09/20/2005: State Department Released DV-2006 Results

• Countries over 1,000 winners:
• Africa: Ethiopia(6,995), Egypt(6,439), Nigeria(6,191), Ghana(3,880), Kenya(2,827), Togo(2,138), Cameroon(1,639)
• Asia: Bangladesh(5,454), Nepal(1,934)
• Europe: Ukraine(5,269), Poland(3,416), Albania(2,504), Bulgaria(2,131), Romania(1,716), Turkey(1,357), Uzbekistan(1,346)
• Americas & Carib: Peru(2,197)

09/20/2005: Rule of Priority Date Retention and Rule of Transfer of I-485 Application to Another Petition

• It appears that there are confusions in the immigration community between the rule of retention of priority date and the rule of transfer of I-485 application to a later approved second I-140 petition. This reporter thus has decided to report this important issue in this page rather than in Visa Retrogression Q&A page.
• Rule of Priority Date Retention: This rule is provided in Section 204.5(d) of the immigration regulation as follows: A petition approved on behalf of an alien under sections 203(b)(1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b)(1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b)(1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date. Under this rule, when an alien has a multiple approved petitions with the same employer or different employers, the alien can use the earliest priority date in filing I-485 application assuming that the earliest priority date is "current" for him/her. For instance, assume that a labor certification based I-140 was approved in May 1999 for EB-3 but because of the retrogression, he/she was unable to file I-485 application. Assume also that same or different employer filed another L/C and petition of EB-2 for him/her which has also been approved in September 2005. In October, EB-2 will also be retrogressed and the EB-2 visa number will not be available to him/her if he/she is an Indian or Chinese because of the low priority date of the second EB-2 I-140 petition approval. However, under the rule of priority date retention, he/she can file I-485 in October 2005 using approved EB-2 petition using the priority date of May 1999, provided that the 1999 EB-3 petition has been not revoked. This cross-transfer of the priority date is available only among EB-1, EB-2, and EB-3. As will be explained later, this priority date transfer is not allowed between EB-1,EB-2,EB-3 and EB-4 or EB-5, or Family Based Immigrant Petitions.
• Rule of Transfer of Pending I-485 Application to Second Approved Petition: This rule is clarified in so-called Pearson Memorandum in 2000, which basically stated that pending I-485 can be transferred to the second approved petition, no matter what kind of petition the second petition is. Assume that he/she filed EB-3 I-140 petition and I-485 was filed in 2004 before the visa number retrogressed and pending. Assume also that another immigrant petition of whatever nature, including EB-1, EB-2, or EB-4, EB-5, Family-Based petitions, is later filed and approved. In such case, he/she does not have to refile I-485 application to use the second approved petition, provided that the first petition was not revoked and the visa number is current for the second petition. In this transfer of I-485, priority date may or may not be transferred depending upon the nature of the two petitions. If the two petitions are in EB-1, EB-2, or EB-3, the priority date will also be transferred. If the two petitions include EB-1/EB-2/EB-3 and Family Petition or EB-4 or EB-5, the priority date cannot be transferred between these two petitions, even though the pending I-485 application can be transferred between these two petitions. Simply put, "transfer of I-485 between two petitions" means he/she does not have to refile I-485 application to use second petition, while the rule of priority date retention defines the transfer of the priority date among EB-1, EB-2, and EB-3.

09/19/2005: Approaching 09/30/2005 (End of FY 2005) and Invalidation of Host of Immigration Forms

• This year, the USCIS has been busy revising immigration forms to implement various new legislation and new policies. Most of these changes do not reflect "substantive" changes and only minor technical changes such as changes in fees or filing location instructions, etc. However, people should keep in mind that a number of the current forms will not be accepted effective September 30, 2005, meaning that any filing using these old versions of forms will be rejected by the USCIS with some serious consequences if it is a last minute filing. These forms include I-485A, I-751, I-134, I-824, I-601, I-121, I-191, I-694, I-643, N-426. If people have not updated their immigration form softwares, this is about the time to update their computer softwares. If people file the forms without legal assistance, they should check the information in the USCIS website to ensure that the forms they use are "current." Please click here to check the USCIS forms update report.

09/18/2005: Citizenship Test Preparation Material: USCIS M-638 Quick Civic Lessons

• This publication gives not only questions and answers for sample citizenship examination, but also explanation for the answers. Indeed this is a good civic lessons material for those who prepare for the citizenship test. We recommend the people to read this publication.

09/17/2005: Visa Number Retrogression Q&A: "What Does It Mean to Me and My Family?"

• We have received an overwhelming number of interesting questions which we want to share with the readers. As the number of Q&A grows, it becomes apparent that the Q&A should continue in a different page in this web site. Thus we have decided and moved the Q&A to a different site and we will continue to update the Q&A on the retrogression. We apologize for the inconvenience that may have caused you. Just click the link at the beginning of this page to get to the new site.
  • (This Q & A will continue. Please send your questions to our e-mail address: ohlaw@immigration-law.com. We will try to cover as many questions as possible.)

09/16/2005: Local District Office Processing Time 09/16/2006

• Please see the home page

09/16/2005: Latest News of DOL Backlog Processing Centers Processing

• AILA has reported that it had received information from the DOL on September 12, 2005 concerning the status of the backlog processing at the Dallas and Philadelphia Processing Centers. The report draws a picture of the following not-too-promising statistics:
  • Total Pending Backlog Cases: 345,000 (pending at Dallas & Philadelphia) + X number of cases (pending at San Francisco + New York Satellite Centers) = ? They did not disclose how many cases still remain at the two satellite centers. There is no report on the status of processing of the cases at the two satellite centers. One may assume that total number of pending backlog cases may record much larger than 350,000.
  • Record of Processing at Dallas + Philadelphia (345,000):
    • 100,000 cases yet to complete "partial data entry." (Without "full" data entry, no 45 day letters are generated)
    • X number of cases completed partial data entry (These cases cannot generate 45 day letters until full data entry.)
    • Y number of cases completed full data entry (generated 45 day letters)
• The report failed to make public the statistics of the total number of cases adjudicated and the total number of cases which completed a full data entry and generated 45 day letters. As for the total number of cases adjudicated, it just stated "tens" of thousands of cases. Tens of thousands of cases range from 10,000 to 99,000 out of 345,000+ cases. If it meant 10,000, the number is indeed a tip of a huge iceberg (345,000+). We also have no idea of what "adjudication" meant. The immigration practitioners have reported some approvals of cases without even 45 day letters being generated and the pattern of approval cases reflects that they were not processed in the First In First Out order. In a way, it may be taken as a good news in that if they should stick to the FIFO processing rules, they would not be able to process any cases until the unopened box cases and the pending cases complete the full data entries. However, it may be taken as an arbitrary processing of cases when it comes to the issue of fairness and other rules of administrative process.
• Timeline: We have no information when the partial data entry or full data entry will be completed and when the 45 day letters will be sent out to the applicants for the pending cases. It just stated that in the next few months, data entries will be completed and 45 day letters will be sent out. Now we are approaching the end of the calendar year and the holiday seasons. Currently, two satellite centers are scheduled to shut down in early January 2006. All in all, adjudication of these large number of pending cases is not too promising when it comes to the timeline.
• For those later filers in the row, it would not mean much as the early certified labor certification applications will lead them to nowhere because of the visa number backlog of from five to seven years for the Indians and Chinese. However, for the earlier filers in the row or in the pipeline, the delay in the labor certification at the Backlog Processing Centers adds a terrible pain on top of the visa number backlogs. Believe it or not, out of the three fed agencies that deal with the immigration business (USCIS, DOS, DOL), the USCIS will become our hero in terms of processing times and DOS and DOL are likely to remain devils to the immigrants for quite a while. In the U.S. immigration history, the immigration services have never received such a "welcome" treatment. The USCIS should thank to Bush, DOS, and DOL. What you know!

09/16/2005: Indian/Chinese EB-1 and EB-2 485 Application "Timely" Filing Before October 1, 2005

• Effective October 1, 2005, the Indian-born Indians and China-born Chinese will not be able to file EB-485 unless they have a priority date which meets the cut-off date in the Visa Bulltin. However, until September 30, 2005, the visa numbers for EB-1 and EB-2 are wide open and "current," and these Chinese and Indians will be able to "file" the concurrent I-140/EB-485 packet. The "filing" means the required immigration forms and fees are "receipted" by September 30, 2005. Since there will be some Chinese or Indian professionals who will obtain the labor certification before October 1, 2005 and they may have to file the concurrent I-140 and EB-485 application literally at the last minute, they should understand what meets the requirement of "filing" or "receipt." Once they meet the "filing" or "receipt," the agency cannot "reject" such filing even if they find flaws in the documentation. Once it is "rejected," it is considered "not filed" with the serious consequences.
• The requirement or definition of filing or receipt is provided in the immigration regulation, Section 103.2 (a) which includes the following:
  • Packet should be submitted to the right Service Center that has jurisdiction for his/her case;
  • Packet should include all the immigration forms involved in I-140 petition and EB-485 application, including G-325A and other immigration forms;
  • Packet should include checks for all the fees including fingerprint fee without any flaws whatsoever;
  • The forms should have signature of the petitioner or applicants;
  • Packet should be physically delivered to the Service Center and stamped by the agency during office hours. Postmark is not enough.
• If the packet fails to meet any one of the foregoing requirements, the submission will be "rejected" and considered "not filed." Flip side of this coin is that the agency cannot reject the filing if the packet meets all of the foregoing requirement. Once it is considered "filed" or "receipted," the agency is required to process such concurrent I-140/EB-485 packet including EAD and Advance Parole applications as they were "filed" "timely." The agency cannot reject the filing on the ground of "missing" supporting documents. The required threshold supporting documents are called "initial evidence," and the agency cannot reject the filing on the ground that some of the required intial evidence are missing in the packet. This is provided in Section 103(b)(8) of the regulation. The agency is rather required to serve RFE (Request for Evidence) on the petitioner or applicant rather than rejection of filing.
• Without doubt, there are many Indian and Chinese EB-2 labor certification filers who may myraculously receive certification from either Backlog Processing Center or PERM National Processing Center during the next ten days or so. Good luck.

09/15/2005: Visa Number Retrogression and State Department Background Explanation

• Our review of the State Department reports indicates that the current visa number problem has been created by three factors, among others: One is the USCIS acceleration of reduction of processing times of EB-485 during the past one year in order to meet the Bush commitment of processing time reduction to 6 months by September 30, 2006. Readers may want to revisit our report on this issue a few days back. Between 2004 and 2005, the backlogs were reduced more than 69%, from close to 4 million cases to only 1 million cases of entire immigration benefits application cases. The cases which they have adjudicated included many oldest backlog cases. Since the 6-month processing time must be achieved by September 30, 2006, the demand for visa number will continuously rise and heavy. That is why the State Department predicted in October Visa Bulletin a limited movement of visa number during FY 2006. Secondly, the Congress passed a legislation giving 50,000 special numbers to nurses and physical therapists which they can recapture from the unused employment visa numbers between 2001 and 2004. The recapturable number in early 2005 was approximately 110,000. The problem is that the State Department uses regular visa EB-3 quota numbers before they deplete the recapture numbers for the nurses and physical therapists for whom the visa numbers were available. Obviously there were huge number of oldest cases for nurses waiting for a long line of EB-3 who started taking out the EB-3 numbers. Good news is that the impact from this second factor may gradually alleviated because of the limited period allowed in the legislation and soon-to-be exhausted recapture numbers. Thirdly, the deterioration of EB-3 visa numbers has added a pressure on EB-1 and EB-2 as increased number of Chinese and Indians sought EB-1 and EB-2 options. Old timers will remember that when the visa number retrogressed in the 1990s, the Chinese and Indians experienced exactly same problem. In fact, one time EB-2 number became worse than EB-3 number for the Chinese. As time moved on, such unusual movement of the visa numbers between EB-2 and EB-3 gradually subsided and it is expected that the history will repeat itself and the retrogression for EB-1 and EB-2 is expected to be alleviated as time moves on. The State Department may give us further predictions in the future, but we have decided to post the State Department's reports in the Visa Bulletin on the Employment Visa allocation prediction and its background explanation to give readers some sense out of the current crisis. This reporter hopes that this posting will help the readers' body temperature a little bit down and come out of the mental state of "blue." We will have to keep a "positive" attitude in this kind of crisis and should not allow emotional depression overwhelm our lives.
• January 2005 Report: EB-3 Retrogression, Cutoff Date and Background of Cutoff Date Decision:
  • The American Competitiveness in the Twenty-First Century Act (Title I of Pub. L. 106 - 313 enacted on October 17, 2000) contained several provisions intended to increase the availability of Employment-based numbers. Pub. L. 106-313 recaptured those Employment-based numbers that were available but not used in Fiscal Years 1999 and 2000, creating a “pool” of 130,107 numbers which could be allocated to applicants in the Employment First, Second, and Third preference categories once the annual Employment-based numerical limit has been reached. Approximately 101,000 of these “pool” numbers remain available for use during FY-1005. Pub. L. 106-313 also removed the per-country limit in any calendar quarter in which overall applicant demand for Employment-based visa numbers is less than the total of such numbers available.
  • Changes in CIS processing procedures during the past two years created a significant backlog of cases and a consequent reduction in demand for numbers.
    During the time that the Employment-based categories have remained “Current” many tens of thousands of applicants have become eligible to file for adjustment of status. Last summer, CIS notified Congress of its intent to eliminate its current backlogs by the end of FY-2006. As a result of the CIS backlog reduction effort, we are now experiencing very heavy visa demand as CIS has begun to process cases to conclusion. Section 201(a)(2) of the Immigration and Nationality Act states that not more than 27 percent of the Employment-based annual limit may be used in each of the first three quarters of a fiscal year. Based on the current rate of demand, the 27 percent level for the first quarter of FY-2005 will be exceeded by the end of December.
  • It has therefore become necessary to impose an Employment-based Third preference cut-off date for January in order to limit number use during the second quarter. Many of the cases have priority dates that are several years old, and the cut-off date represents the first priority date that cannot be accommodated for final processing. The cut-off date will apply only to the following chargeability areas: China-mainland born, India, and Philippines. Cut-off date movement during the remainder of FY-2005 depends on the extent of future visa demand. No specific predictions are possible at this time.
• February & March 2005 Report: EW Retrogression, Cutoff Date and Background Explanation:
  • During fiscal year 2005, 5,000 visa numbers are provided by law for use in the Employment-based Third preference “Other Worker” (EW) category. This annual limit is divided into twelve approximately equal monthly allotments. If there are sufficient numbers to satisfy all demand, the category can be considered "current". Whenever demand exceeds the supply of numbers available for allotment in a particular month, the category must be considered to be “oversubscribed” and a visa availability cut-off date is established.
  • Continued heavy applicant demand, primarily for CIS adjustment of status cases, is expected to require the oversubscription of the EW category in the near future. This action will be necessary in order to hold EW number use within the FY-2005 annual numerical limit. The establishment of an EW cut-off date beginning as early as March cannot be ruled out, and would apply to all chargeability areas.
• May & June 2005 Report: EW Retrogression, Unavailability and Background Explanation in May and June 2005:
  • The imposition of that date has not had the desired effect and the level of demand remains excessive. Therefore, it is likely that the cut-off date will retrogress or numbers become “unavailable” in the near future.
• June & July 2005 Report: EB-3 Retrogression, Unavailability and Background of Decision in June and July 2005:
  • June Report: During the past month there has been a significant increase in the amount of numbers being used by Citizenship and Immigration Service (CIS) offices for adjustment of status applicants. This level of demand has significantly depleted the supply of Employment-based numbers available under the annual limit. Recent discussions with CIS have made it clear that their backlog reduction efforts will sustain or increase the current level of demand. Therefore, continued visa availability in the Employment-based categories cannot be guaranteed during the final quarter of FY-2005. If demand continues at the current rate, it will be necessary to oversubscribe many or all of the Employment categories on a Worldwide basis. Such oversubscription could result in the establishment of cut-off dates, retrogression of already established dates, or some categories becoming “unavailable”.
  • July Report: The Employment Third and Third 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.
  • Impact of Nurses and Physical Therapist 50,000 Visa Number Recapture on EB-3 Visa Numbers Depletion Explanation: Title V, Section 502 of the REAL ID Act of 2005 (Division B of Pub. L. 109-13 enacted May 11, 2005) provides for the recapture of 50,000 Employment-based immigrant visa numbers that were unused in fiscal years 2001 through 2004. Such numbers are to be made available to Employment-based immigrants described in the Department of Labor's Schedule A and their accompanying spouses and children. The immigrant classification for these 50,000 visa numbers 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.
• August 2005 Report: EB-2, EB-1 Retrogression, Cutoff Date Prediction, and Background Explanation:
  • Demand for numbers by CIS Offices for adjustment of status cases remains very high. As the end of the fiscal year approaches, it might be necessary to establish an Employment Second preference cut-off date for September to keep visa issuances within the annual numerical limits set by law. If required, such a cut-off date is likely to be limited to the China-mainland born and India chargeability areas.
• September 2005 Report: Explanation of Visa Number Allocation Decision in FY 2005:
  • The State Department is required to make a determination of the worldwide numerical limitations, as outlined in Section 201(c) and (d) of the INA, on an annual basis. These calculations are based in part on data provided by the Citizenship and Immigration Service (CIS) regarding the number of immediate relative adjustments in the preceding year and the number of aliens paroled into the United States under Section 212(d)(5) in the second preceding year. Without this information, it is impossible to make an official determination of the annual limits. On July 27th, CIS provided the required data to VO.
  • The Department of State has determined the family and employment preference numerical limits for FY-2005 in accordance with the terms of Section 201 of the INA. These numerical limitations for FY-2005 are as follows:
  • Worldwide Family-Sponsored preference limit: 226,000
    Worldwide Employment-Based preference limit: 148,449
  • Under INA Section 202(A), the per-country limit is fixed at 7% of the family and employment annual limits. For FY-2005 the per-country limit is 26,211. The dependent area annual limit is 2%, or 7,489.
• September 2005 Report: Prediction of FY 2006 Visa Numbers:
  • The backlog reduction efforts of both Citizenship and Immigration Services, and the Department of Labor continue to result in very heavy demand for Employment-based numbers. It is anticipated that the amount of such cases will be sufficient to use all available numbers in many categories. As a result cut-off dates in the Employment Third preferency category will apply to the China, India, and Philippines chargeabilities beginning in October, and it is possible that Mexico may be added to this list. In addition, it is anticipated that heavy demand will require the establishment of a Third preference cut-off date on a Worldwide basis by December.
  • The amount of Employment demand for applicants from China and India is also likely to result in the oversubcription of the Employment First and Second preference categories for those chargeability areas. The establishment of such cut-off dates is expected to occur no later than December.
  • The level of demand in the Employment categories is expected to be far in excess of the annual limits, and once established, cut-off date meovements are likely to be slow.
• October 2005 Report: Visa Cutoff Dates for EB-1, EB-2, EB-3, EW, and Limited Movement Prediction in FY 2006:
  • Item D in the Visa Bulletin (number 85) announcing the September cut-off dates provided information regarding the prospects of visa availability during the early months of FY-2006. Many categories have become oversubscribed for October, and cut-off dates established due to continued heavy demand for numbers by CIS for adjustment of status cases. Forward movement of the cut-off dates in these categories is likely to be limited.
• Those who may be interested in the visa number statistics upto FY 2004 may click here for the information.
  
  

09/14/2005: Legislative Solutions to Horrible EB Immigrant Visa Number Problem Demand All-Out Community Action

• Unlike other immigration problems, the current visa number problem is related to the country's age-old immigration system that failed to transform itself to fit into the global economy and rapidly changing science and technology on the one hand and to find a solution for the needs for unskilled labor forces at the lower end to sustain the country's economic system. This requires a comprehensive immigration reform. This is reflected in the legislative movement in the Congress as well as the White House's temporary guest worker proposal. As we noted earlier, the political leaders in this country have finally realized that the country's immigration system needs a breakthrough in meeting the country's needs for foreign workers both at the higher end and at the lower end of the economy. Such realization is reflected in the pending Immigration Reform bills in the U.S. Senate and in the Temporary Guest Worker program of the White House.
• Unfortunately, the country's attention is currently distracted from such legislation as affected by the recently developed highly politically charged events and issues relating to the hurricane aftermath and vacancies in the U.S. Supreme Court. It is, however, obvious that the country cannot afford neglecting other pressing needs which may be critical for the country's future. It is thus imperative that various segments of the community and the economy should come forward and mobilize and energize the political process to properly direct the focus of the polical leaders on the immigration reform legislation. In order to participate in such movement, we want to repost below our report of August 18, 2005 to highlight the part of the bills that proposes employment-based immigrant quota numbers upwards.

"08/18/2005: EB-3 Visa Number Problem and Likely Relief by Pending Immigration Reform Bills

• So far we have reported a depressing EB-3 visa number prediction based on the current immigration law that allocates only 140,000 a year for the employment-based immigrant visas. However, there are two leading immigration reform legislative bills pending in the Senate which are likely to give some relief to the EB-3 backlog problem, should the bills be enacted into law. One is McCain-Kennedy bill, S. 1033, and the other Cornyn-Kyl bill, S.1438. These bills have attracted a lot of attention from the media and public in two respects: Differences in the two bills in the issues of legalization of illegal aliens and the weight of border and enforcement in the nation's immigration policy.
• However, from the perspective of the employment-based immigrant community, these two bills will benefit, albeit differently, the EB-3 workers tremendously. The following table compares the current EB visa number allocation system with proposed changes in the allocation system in these two bills:

  • 	Current System	Cornyn-Kyl bill	McCain-Kennedy bill	Remarks
    EB Total Annual Quota	140,000(100%)	190,000(100%)	290,000(100%)
    EB-1	28.6%	20.0%	20.0%
    EB-2	28.6%	20.0%	20.0%
    EB-31	28.6%*	35.0%	35.0%	*Includes EB-3 EW unckillsed other worker upto 10,000
    Current EB-3 EW Other Workers**	Included in EB-31*	-**	-**	**Current EB 3 EW is reclassified into the new EB-5 preference
    Current EB-4 (Special Immigrants)***	7.1%	-***	-***	***Current EB-4 category removed.
    Current EB-5(Investor)****	7.1%	-****	-****	****Reclassified into the new EB-4 preference
    New EB-4(Investor)	-	4.0%	5.0%	Formerly EB-5
    New EB-5(Other Workers)	-	Upto 36.0% (21.0%)	Upto 30.0% (20.0%)	Formerly EB-3 EW Other Workers. Since it is the lowest preference, if EB-1, EB-2, EB-3, and EB-3 use up their numbers, the practical available number would be the figures in the parenthesis.
    	100.0%	100.0%	100.0%

• Under both Cornyn-Kyl bill and McCain-Kenney bill, the big winners will be the current EB-3 workers. For instance, current EB-3 quota, excluding nurses and physical therapists, is approximately 40,000 a year including EB-3 skilled and professional workers and EB-3EW other workers (upto 10,000), but it will increase to 104,000 plus (66,500 EB-3 + 38,000 new EB-5) under Cornyn-Kyl bill, and to 159,000 plus (101,500 EB-3 + 58,000 new EB-5) under McCain-Kennedy bill. Part of this benefit will come from termination of immigration visa lottery, 55,000 (DV Program). Both bills also provide positive recapture of unused numbers in the previous years which will lead to some numbers available for the regular EB-3 workers after taking away 50,000 numbers by the nurses and physical therapists.
  • When it comes to the specific numbers, the two bills differ to a great extent, but remarkably both bills are committed to reducing the serious EB-3 backlogs under the current immigration quota system. This is a good news."

09/13/2005: Official October 2005 Visa Bulletin and Survival Strategies

• The official State Department Visa Bulletin confirms the Manila Website posting!!
• The October Visa Bulletin applies effective October 1, 2005. It is thus critically important that the Indians and Chinese may take following steps immediately:
  • Labor Certification-based EB-2 Cases: If you have a certified labor certification of EB-2 categories or substitutable EB-2 labor certification, please file concurrent I-140/I-485/I-765/I-131 before the end of September 2005. It is critically important, particularly in substitution cases, that the cases are filed before the end of September, as it is likely that substitution may be eliminated before the end of the year and you will not be able to file EB-485 at that time because of the visa numbers and the rule may apply to your case with the deadly consequences.
  • Labor Certification-Waiver EB-2 or EB-1 Cases: If you think you are eligible for EB-11, EB-12, or EB-13, please file quickly, before the end of September 2005, the concurrent I-140/I-485/I-765/I-131.
  • Pending Labor Certification Applications: Preservation of the priority date will be so important that one should not misstep in legal proceedings that can kill the priority dates. For those whose cases are pending in Backlog Centers and considering the PERM filing, this advisory will be particularly important. Remember our repeated reminder for the last several months, in this special environment of the steep retrogression of visa numbers, the processing time of labor certification may not be so important to risk loss of priority date. Quick approval of labor certification will be relevant only for H-1B extension in three-year increment issue. As for the retention of priority date in the context of need for a new labor certification or petition filing with the same employer or another employer, one should know that one cannot retain the priority date until after the I-140 is approved. The certified labor certification application alone does not retain the priority when the employment is terminated before the petition is filed "and" approved. Once the I-140 petition is approved and the employment changes, even if he/she will have to start all over again a new labor certification application, he/she can retain the priority date. However, once the employer uses the certified labor certification application for substitution for another employee and the substituted employee obtains I-485 applications using the substitution, the retention of the priority date is lost because of the withdrawl and revocation of the approved I-140 petition and use of the certified labor certification by the new employee who obtains the I-485 approval. The result will be different if somehow one reaches his/her priority date in the Visa Bulletin and files I-485 and 180 days are lapsed, even if he/she changes employment and the old employer attempts to substitute the alien beneficiary, the I-485 eligibility will not be affected.
  • H-1B Extensions in 3-Year Increment: As soon as LC is certified, file quickly I-140 petition and obtain its approval early. H-1B can then be extended in 3-year increment "indefinitely." Since I-485 can not be filed for many years to come, AC-21 180-day rule will not be much help for those who start LC now. Since EAD will not be available for many years to come, it will be important to keep H-1B "indefinitely" until the visa number becomes available. If the option for H-1B extension in 3-year increment is not available for the yet-to-be approved I-140 petition, file the 7th year extension in 1-year increment if 365-day passed after filing LC, and then when I-140 is approved, file the 3-year increment extension petitions. See Section 104(c) of AC 21 Act and USCIS AC-21 Memo of 05/12/2005.
  • EB-485 Waiters: Those who have already filed EB-485 applications and visa number will not available for him/her for a long period of time should religiously be attentive to the issue of maintaining employment authorization through either continuous "timely" filing of H-1B or L-1 extensions or "timely" filing of EAD. Any gap between the two EADs and unauthorized employment during the gap period or untimely filing H-1B or L-1 extension petitions will indeed result in deadly consequences. When he/she needs travelling using Advance Parole, he/she should religiously comply with the rule which this site explained in detail on 09/10/2005. Even if one travels with Advance Parole, certain trips can result in abandonment of the pending I-485 application!

09/13/2005: State Department Terminates Practice of U.S. Passport "Amendment" Effective 09/26/2005

• The State Department published a final rule this morning to implement its new policy to abolish its traditional practice and policy of amending U.S. passport when the U.S. citizen's ID information changed rather than issuing a new passport. Under the new policy which will be implemented effective September 26, 2005, if a U.S. citizen's information changes such as name or other ID related information or any changes which he/she wants the State Department to reflect on the passport, the U.S. citizen will have to apply for issuance of a new passport without pay.
• Initially the State Department intended to release this policy change in the so-called "electronic passport" regulation, but it changed it's plan and released this part of the regulation first because implementation of electronic passport would take a longer time in view of the amount of the comments it had received in response to the proposed regulation. For other details, please read the final rule.

09/12/2005: Manila Website Visa Cutoff Date Report - Need Verification

• The Manila site cutoff date report is too suspicious at this time that we advise readers not to be too alerted by the Manila site report until details are verified. It is not going to be too long before the official Visa Bulletin will be released by the U.S. Department of State. Additionally, the specific nature and purpose of the Manila site report will be clarified soon. Until that, we advise the readers to ignore the Manila site report.

09/12/2005: Shocking October Visa Bulletin Release by American Embassy in Manila

• The U.S. Department of State has yet to release the official Visa Bulltin for October 2005, but the Visa Bulletin which has been posted at the Amrican Embassy in Manila is just beyond the belief. Please click here.
• For those who cannot open it, here is the information:
  • VISA CUT-OFF DATES FOR OCTOBER 2005
    VISA
  • CATEGORY ALLX CHINA INDIA MEXICO PHILS
    F1 22-Apr-01 22-Apr-01 22-Apr-01 1-Jan-93 22-May-91
    F2A 1-Nov-01 1-Nov-01 1-Nov-01 U 1-Nov-01
    F2B 22-Apr-96 22-Apr-96 22-Apr-96 1-Dec-91 22-Apr-96
    F3 15-Apr-98 15-Apr-98 15-Apr-98 1-Jan-93 8-Nov-90
    F4 1-Feb-94 1-Feb-94 1-Aug-93 1-Feb-91 1-May-83
    FX 1-Oct-98 1-Oct-98 1-Oct-98 1-Oct-98 1-Oct-98
    
    
  • E1 C 1-Jan-00 1-Aug-02 C C
    E2 C 1-May-00 1-Nov-99 C C
    E3 1-Mar-01 1-May-00 1-Jan-98 1-Jan-01 1-Mar-01
    E4 C C C C C
    EW 1-Oct-00 1-Oct-00 1-Oct-00 1-Oct-00 1-Oct-00
    EX C C C C C
    SR C C C C C
    C5/R5 C C C C C
    T5-I5 C C C C C

09/11/2005: Denial of EOS/COS and Potential Issue of Unlawful Presence That Can Trigger 3-Year or 10-Year Bar

• Nonimmigrants often apply for either Change of Status (COS) or Extension of Status (EOS), but are not too familiar with the consequences of certain actions pending the COS/EOS or denial of COS/EOS. Nonimmigrants usually understand that normally once he or she violates the nonimmigrant status, he/she is not eligible for COS/EOS and subject to removal (deportation) proceedings if he/she is arrested. People often call them "illegal alien."
• The subject which we want to discuss below is not the consequences of violation of nonimmigrant status but the consequences of denial of COS/EOS on their eligibility for application for a nonimmigrant or immigrant visa or their eligibility for admission (return) to the U.S. after leaving the U.S. Since people practically do not have any other option but applying for a nonimmigrant or immigrant visa at one of the American Consulates abroad once their COS/EOS is denied by the USCIS, they should know whether they will be able to obtain such visa or return to the U.S. once they leave the United States. For this issue, simple violation of nonimmigrant status or overstay does not automatically make them ineligible for nonimmigrant visa or admission to the U.S. unless their violation in the U.S. constituted "unauthorized stay" or "unlawful presence." Once the immigration officials or consular officers determines that they remained in the U.S. in unlawful presence for 180 days but less than one year, they will not be able to return to the U.S. or obtain a visa for three years, and if the unlawful presence lasted for one year or longer, then they are subject to bar from returning to the U.S. for ten years. Thus the period of unlawful presence or unauthorized stay results in very serious consequences.
• Normally, lawful presence or authorized stay starts from the date and period of admission to the U.S. as a nonimmigrant. Thus those who enter the U.S. without inspection start unlawful presence from the day one on this land. On the other hand, those who have been admitted to the U.S. with inspection in certain nonimmigrant status, the aliens are considered in lawful authorized stay in the U.S. and such lawful presence continues until the date of expiration of I-94. If extended I-94 is issued by approval of COS/EOS by USCIS, their lawful presence is simultaneously extended to the new date of expiration. Consequently, those who violated nonimmigrant status will be subject to arrest and deportation, but unless their I-94 expired, regardless of their violation of nonimmigrant status, the period of unlawful presence will not start to run until the I-94 expires. Students in F or J are admitted to the U.S. with an I-94 without any specific expiration date but rather with Duration of Status (D/S) and do not accumulate unlawful presence, no matter how long they stayed in the country illegally, unless they are detected and determined by the Immigration Judge or Immigration Officials or Consular Officer that they remained out of status. For the students, unlawful presence starta to run from the date of such government officials' determination.
• Lawful presence or authorized stay is automatically extended pending COS/EOS applications inasmuch as the three conditions are met: (1) COS/EOS was filed "timely" before the expiration of the latest I-94; (2) It was not a frivolous filing; (3) No record of unauthorized employment. For those who filed COS/EOS timely, unlawful presence does not start to run until such COS/EOS is denied. Filing of Motion to Reopen or Reconsider or Appeal to AAO does not toll running of unlawful presence, even though they will be allowed to stay in the U.S. pending MTR or AAO appeal. However, once MTR or appeal is denied, the unlawful presence will run retroactively from the date of denial of COS/EOS by the USCIS. Consequently, the legal counsels usually advise their clients to leave the country pending the appeal if they should not obtain the decision within six months. If COS/EOS is filed "untimely" after expiration of I-94, the unlawful presence starts to run from the date of expiration of I-94 and not from the date of denial of COS/EOS. In other words, untimely filing of COS/EOS does not toll running of unlawful presence pending determination of the case. Consequently, those who filed such untimely COS/EOS should consider leaving the country if they do not obtain the decision within six months of their I-94 expiration.
• Once the COS/EOS is "timely" filed, even if the I-94 expired at the time of departure from the U.S., such alien is not subject to the unlawful presence bar in the event that he/she left the country before the USCIS made a decision on the pending COS/EOS. Accordingly, the consular officer cannot deny a visa solely based on his/her stay beyond the expiration of I-94, no matter how long it was, inasmuch as the timely filed COS/EOS was pending at the time of his/her departure from the U.S.
• People often file the second or third COS/EOS applications pending the first COS/EOS application. The second or third COS/EOS in this situation may or may not toll running of unlawful presence depending on when such second or third COS/EOS is filed. If it is filed before the expiration of the latest I-94, unlawful presence is tolled and even if the applications are denied, the unlawful presence does not start to run until the date of decision of denial and not the date of expiration of I-94. However, even if the first application was filed timely, the unalwful presence would start to run from the date of expiration of I-94 if the second or third application was filed "after" expiration of I-94. Consequently, if the application is denied after 180 days of expiration of I-94, he/she will be subject to the 3-year or 10-year bar from returning to the U.S. It is thus important that those who filed such multiple applications as a stop-gap measure or for other purposes after expiration of I-94 should seriously consider leaving the country before it reaches 180 days from the date of expiration of I-94.
• Caveat: The foregoing discussion involves very complicated rules and exceptions and people should not take this posting as the law. They should consult legal counsel to determine their individual and specific situations. We are not responsible for the consequences of reliance on this internet information.

09/10/2005: EB-485 Advance Parole Travellers and Consequences of Returning to the U.S. Without a "Valid" Advance Parole

• Nowadays, we see some victims of EB-485 travellers whose I-485 applications are denied for having returned to the U.S. without a valid advance parole. Such travellers include returning in nonimmigrant status other than H-1B/H4 or L-1/L-2 or without a nonimmigrant status such as a parole not based on advance parole. The law is clear in this area. The EB-485 applicants have only two means to travel without abandoning pending EB-485 applications. One is a valid advance parole and the other is a valid H-1B or H-4 or L-1 or L-2. All other entries in other nonimmigrant status or on parole not based on a valid advance parole will be considered "abandonment of EB-485 applications," and the pending EB-485 applications may be denied by the USCIS. Travelling with a "valid" advance parole includes "approved" advance parole at the time of departure from the U.S. and "valid" advance parole at the time of returning to the U.S. If one departs pending application for advance parole which is subsequently approved while the alien is outside of the U.S., returning on such approved advance parole may not comfort with the statutory requirement for travelling on a valid advance parole and such EB-485 applications can also be denied. It is thus prudent that the EB-485 applicants travelling on Advance Paole should schedule international travel leaving a sufficient time to return to the U.S. before expiration of Advance Parole. There are episodes of some of these EB-485 travellers who tried to return to the U.S. after expiration of Advance Parole because of exigent circumstanstances like flight delays or certain natural calamities during the journey and have been paroled in on the humanitarian concerns or other grounds of so-called public interest. Such entry may not save the travellers from potential denial of the pending EB-485 applications. Watch out. People travelling on Advance Parole often fail to distinguish the two issues: One is whether one can reenter the country after the trip, and the other is whether such reentry will still be considered abandonment of EB-485 applications. These are two distinctively different issues. The fact that such travellers were allowed to retun to the U.S. by the immigration officers at the airport on a ground other than a valid H or L visa or a valid advance parole does not effect that such travel will not result in abandonment of the pending EB-485 applications.

09/09/2005: USCIS Issues Temporary EAD Extension Stickers to El Salvadoran TPS Re-Registration Applicants

• USCIS reports that they have received 250,000 re-registrations from TPS Salvadorans. Most of these re-registrants have been timely processed for biometrics and issued extended EAD, but approximately 3% of reregistrants will have to go through a stop-gap procedure to extend their EAD without interruption. The USCIS will issue "extension sticker" to these small number of group. For the detailed instructions, please click here.

09/09/2005: Special Procedures and Assistance Available for Hurricane Displaced Aliens by USCIS and ICE

• USCIS Special Procedure for Various Applications and Lost/Destroyed Documentation
• Special Produces for Students and Exchange Visitors for SEVIS Complicance.
• Disaster Assistance from Government and Other Sources.

09/09/2005: House Subcommittee Action Moved One Inch Closer to End of Era in Immigration Lottery Program

• AILA has reported that the House Subcommittee on Immigration, Border Security, and Claims passed H.R. 1219 by voice to to eliminate the Diversity Lottery Program. This bill was first introduced by Rep. Bob Goodlatte on March 10, 2005 and has currently 41 cosponsors in the House. The title of the bill is Security and Fairness Enhancement for America Act of 2005.
• We reported earlier that on the Senate side, there is the immigration reform bill sponsored by the Sen. Cornyn and Kyl which also proposes to eliminate the immigration lottery program. It thus appears that the future of the immigration lottery program for FY 2007 is very grim.
• The flip side of the coin of the Congressional action on diversity program includes increase of the employment-based immigrant visa numbers replacing the diversity visa numbers. Please stay tuned to this web site for the development of this news.

09/08/2005: Effective 09/07/2005, USCIS Changes Procedure for Correction of Plastic Green Card or for Reissuance of Undelivered Green Card

• USCIS has announced the following changes to the Form I-90 filing process to correct previous USCIS errors on an expedited basis without charging applicants an additional filing fee. USCIS will apply this process to errors in production and delivery of permanent resident cards, including those received through the immigrant visa process. Because USCIS' current systems for permanent resident card replacement cannot accommodate these changes, an alternative process has been established for the benefit of customers affected by a USCIS error. All applicants filing a Form I-90 (Application to Replace a Permanent Resident Card) with Application Reason "b" (My card was never received) or "d" (My authorized card was issued with incorrect information because of a USCIS administrative error) under Part 2, Section 2 of the I-90 application, should follow these guidelines in order to receive expedited processing without paying additional fees:
  • Form I-90 with Application Reason "b" (My card was never received) - Applicants must mail their I-90 applications with supporting documentation to the USCIS Service Center or National Benefits Center (NBC) that processed the application that led to the most recent permanent resident card. The addresses for these centers are shown at the end of this announcement. In addition to the I-90 application, applicants are encouraged to send a copy of the I-797 (Notice of Action) issued for the application that led to the most recent issuance of the permanent resident card. Fee(s) - None. Please note that I-90 applications submitted with Application Reason "b" do NOT require the $70.00 biometrics fee or the base application fee. Applicants who have moved from the address last provided to USCIS in the application process that led to the permanent resident card, or who had provided an incorrect address to USCIS in that process, may not use this special replacement process and must file an I-90 using the normal process with filing fee and biometric fee.
  • Form I-90 with Application Reason "d" (My authorized card was issued with incorrect information because of a USCIS administrative error) - Applicants must mail their I-90 applications with supporting documentation to the USCIS Service Center or National Benefits Center (NBC) that processed the application that led to the most recent permanent resident card. The addresses for these centers are shown at the end of this announcement. In addition to the new I-90 application, applicants are required to send the original I-551 card containing incorrect information, and documentation that supports the requested correction. Fee(s) - None. Please note that I-90 applications submitted with Application Reason "d" do NOT require the $70.00 biometrics fee or the base application fee. USCIS will confirm that the information on the permanent resident card is not consistent with the application that led to the permanent resident card; and if no inconsistency is found, USCIS will reject the request for free replacement. Applicants seeking to correct a card based on applicant error must file an I-90 using the normal process with filing fee and biometrics fee.
• Effective September 7, 2005, applicants who file an I-90 Application to Replace a Permanent Resident Card using Application Reason "b" or "d" should NOT file their applications via the Direct Mail Program or the e-Filing system. All I-90 applicants, with Application Reasons other than "b" and "d," shall continue to file their applications via the Direct Mail Program or the e-Filing system, with appropriate fees.
• NOTE: There may be applicants who filed a Form I-90 with Application Reason "b" or "d" on or after May 31, 2005, who are eligible for a refund. If the payment for your I-90 application with Application Reason "b" or "d" filed on or after May 31, 2005 has already been processed by the USCIS, where the error was determined to be a USCIS error, you may request a refund by calling the USCIS National Customer Service Center. If the payment for your I-90 application with Application Reason "b" or "d" filed on or after May 31, 2005 has not been processed by the USCIS, where appropriate, your payment will be returned to you and USCIS will forward your I-90 application to the appropriate Service Center for processing. If you filed an I-90 application with Application Reason "b" or "d" on or after May 31, 2005 without payment, USCIS will forward your I-90 application to the appropriate Service Center for processing.
• The following addresses should be used by applicants mailing their I-90 applications with supporting documentation to the USCIS Service Center or National Benefits Center (NBC) that processed the application that led to the most recent permanent resident card:
  • California Service Center, Attn: I-90 "b" or "d", P.O. Box 10090, Laguna Niguel, CA 92607-1009
  • Texas Service Center, Attn: I-90 "b" or "d", P.O. Box 851983, Mesquite, TX 75185-1983
  • National Benefits Center, Attn: I-551 Corrections, 705B SE Melody Lane, Box 2000, Lee's Summit, MO 64063
  • Nebraska Service Center, Attn: I-90 "b" or "d", PO Box 87090, Lincoln, NE 68501-7090
  • Vermont Service Center, Attn: I-90 "b" or "d", 75 Lower Welden Street, St. Albans, VT 05479-0001
    
    
    

09/07/2005: Hurricane Katrina and Impact on Immigrants

• Hurrican Katrina has wiped out important parts of the city of New Orleans seriously affecting the lives of immigrants in the areas. Currently immigration-related local agencies, including local USCIS/CBP/ICE offices, labor department offices, and immigration courts, are all paralized. Additionally, reportedly 40 immigration law firms in New Orleans became the victims and their files and records have been destroyed or lost or damaged. Accordingly, the aliens face huge problems in meeting the timelines for filing because of the closure of the government offices or their inaccessibility to the records and evidence, creating violation of laws, procedures, or deadlines. AILA has thus been working with these government agencies to seek a relief for procedural violations occasioned by the circumstances. Without doubt, the agencies may soon come forward with the announcements of relief, including reconstruction of lost or destroyed records and evidence. So far, however, only one relief has been announced by the DHS that they will waive I-9 compliance requirement for 45 days for the alien victims of the hurricane.
• More difficult issues are raised with reference to those alien workers whose employers have been destroyed, resulting in loss of their jobs. Since they cannot work, they fall out of status under the employment-based nonimmigrant visa laws. The victims can include professional as well as nonprofessional alien workers. The basis of their nonimmigrant visa status has been wiped out over night! For these workers, the agencies should consider two layers of relief: First is the waiver of loss of "status" for not working for the employer. The second is a stop-gap relief allowing these people to seek change of status or extension of status either through another employer or another types of visas, tolling the clock of unlawful presence for a period of time.
• The alien workers in these areas suffer double: Loss of the living and emotional turmoil, which all the victims are currently suffering in the areas. However, in the case of the alien workers, they also face loss of legal basis to remain in the U.S. and legal status because of the loss of the job. The government should embrace these special victims by generously stretching the "extraordinary circumstances"exception rule under Section 248 of the immigration regulation to waive untimely filing of change or extension of nonimmigrant status for a period of time such that their immigration problems are alleviated.
• The business community throughout the country should also embrace these special victims by providing the employment so that they can continue their employment-based nonimmigrant journey. For these special victims, offering water, food, and shelters are not enough. We beg the business leaders to extend their compassion under the unusual circumstances of national crisis.

09/06/2005: Hurricane Katrina Aftermath, Supreme Court Justice Confirmations, & Immigration Reform Legislation

• Report indicates that when the Congressmen and Congresswomen left the Washington D.C. for the recess in August, the Immigration Reform legislation had gained a momentum and the House Speaker had set immigration reform legislation as one of the high priority items in the October agenda. However, the events that evolved in August are likely to change the langescape of the legislative agenda and reprioritazing appears to be inevitable. It is the concensus of the media that the aftermath of Hurrican Katrina, confirmation of U.S. Supreme Court justices, including a new Chief Justice, and soaring gas and oil prices, are likely to completely take up the legislative agenda and the immigration reform legislation can be pushed aside as a backburner. Considering the fact that immigraion reform includes not only legalization of illegal aliens but also increase of employment-based immigrant visa quota, particularly EB-3 numbers, dark cloud is hanging over the future of the employment-based immigration, forcing the foreign workers to endure a long journey to the immigration.

09/06/2005: Service Centers Processing Times of 09/06/2005

• See homepage.

09/05/2005: Alien Driver License Application, Immigration Scams, and Reported DHS Action

• There have been wide spread reports of pervasive activities of immigration scam artists in certain areas in the nation, particularly in Florida, that involved filings of frivolous I-485 or other immigration benefit filings "just" for the purpose of obtaining employment authorization documents for the ineligible immigrants. These scam artists have reportedly produced a large number of victims who believed that they were in legitimate immigration proceedings.
• Report indicates that the DHS has finally initiated an action to detect such activities through the record of driver license bureaus of certain states and rounded up some of these scam artists. The scam artists reportedly took advantage of the immigration procedure that permitted the applicants of certain immigration benefits to apply for the employment authorization document pending I-485 or other applications until the legitimacy or eligibility of the applications was eventually adjudicated. Besides, certain states have reportedly issued driver licenses on presentation of the I-765 EAD application "Receipt Notice."
• This ongoing crack-down efforts of the DHS have apparently produced both positive and negative results. The positive aspect of the action is an attempt to uproot the scam artists and unauthorized law practices by unlicensed businesses. However, there appears to be some fall-outs in that the DHS has reportedly adivsed the driver license bureaus of certain states not to issue a driver license to an alien on "EAD Application Receipt Notice" alone. Accordingly, the legitimate immigrants who were able to obtain their new driver license or renewal of driver license on showing of the Receipt Notices of EAD applications may not be able to obtain the driver license on Receipt Notice alone. This policy has yet to be announced, but apparently the DHS has advised a few involved states not to issue a driver license on EAD application receipt notices. People may check with the driver license bureau in their residence states to see how their states are affected by this development.

09/05/2005: Lift of Annual Limit of Asylum I-485 Processing Numbers and Its Impact on USCIS Pace of Backlog Reduction Speed

• The USCIS reports that it is still targeting at achieving the 6-month processing times of 16 petitions/applications by the end of September 2006 and has already reached the goal for the 14 types of cases out of 16 types. The reported statistics reflect that between May 2004 and May 2005, the backlog cases had been reduced 69% from 3.4 million cases to 1.0 million cases. However, close review and analysis of the USCIS backlog reduction record for the 3rd Quarter (April - June 2005) indicates that the number of backlog cases increased rathan than decreased. In fact, the backlog increased 12% between May 2005 and June 2005. The USCIS reports that this was caused by the Congress' action lifting the asylum/refugee I-485 annual processing limit of 10,000, and the USCIS dumped 174,000 I-485 application cases for asylum/refugees on the I-485 processing queue of the Nebraska Service Center. Under the current jurisdictions, the NSC has the sole jurisdiction to process I-485 applications for asylees/refugees.
• Lately, the USCIS revealed a wide gap in the processing times for the "employment immigrant" petitions and applications among the four Service Centers as seen in the chart below:
• EB-485 and I-140 Processing Times of Service Centers as Reported in August 18, 2005

• 	I-485	I-140 (EB-3 Skilled)
  California SC	04/01/2005	05/02/2005
  Vermont SC	08/19/2004	03/26/2005
  Texas SC	07/01/2004	06/08/2005
  Nebraska SC	02/02/2004	02/01/2004

• We do not have specific evidence that a huge gap between the NSC and other Service Centers has been caused by the workloads related to the asylee/refugeee I-485 cases, but without doubt 174,000 cases of I-485 which have been dumped on the NSC by the Congress earlier this year must have affected the NSC's processing times. Unless something is done on the regional discrepancy, the current processing gap clearly raises the issue of inequity between the people living in the Midwest and other Regions in the nation. It affects not only the alien beneficiaries but also the U.S. employers in the Midwest that hire professional alien employees. We do not have any suggestion for the USCIS solution for this inequity issue, but obviously the USCIS may want to consider redistribution of jurisdictions or workloads either temporarily or permanently among these four Service Centers. California Service Center and Vermont Service Center are the two largest Service Centers in the current USCIS Service Center structure, but when it comes to asylum/refugree and NACARA immigration cases, the USCIS dumped the workloads on the two smallest Service Centers in Nebraska Service Center and Texas Service Center.

09/02/2005: Australian E-3 Visa Implementation Effective Immediately

• Who Qualifies for the E-3 Visa?: The new E-3 visa classification currently applies only to nationals of Australia as well as their spouses and children. E-3 principal
  nonimmigrant aliens must be coming to the United States solely to perform services in a specialty occupation.
• Are There Other Requirements for Qualifying for an E-3 Visa?: The E-3 visa classification is numerically limited, with a maximum of 10,500 visas available annually. Spouses and children do not count against the numerical limitation nor are they required to possess the nationality of the principal. A Labor Condition Application (LCA),
  containing attestations by the sponsoring employer related to wages and working conditions, must be filed with and approved by the Department of Labor (DOL). At the time of visa application, the visa applicant must present the consular officer with the original or copy of the approved LCA. However, if the applicant cannot provide the original, the consular officer, at his/her discretion, may accept a certified copy of the approval. The approved LCA represents DOL's certification that the employer has met the attestation requirements of the E-3 statute.
• What Is a Specialty Occupation?: In general, a specialty occupation is one that requires theoretical and practical application of a body of knowledge in professional fields
  and at least the attainment of a bachelor's degree, or its equivalent, as a minimum for entry into the occupation in the United States. The Department's regulations governing E-3 visas incorporate the definitions contained in section 214(i)(1) of the Immigration and Nationality Act (INA). In order to determine what constitutes a ``specialty occupation,'' consular officers abroad will be guided by, and will apply, regulatory criteria already developed by the Department of Homeland Security for the H-1B classification.
• Is It Necessary To File a Petition With the Department of Homeland Security as a Prerequisite to Visa Issuance?: No petition to the Department of Homeland Security is necessary. Instead, in the case of an employee seeking a visa, the employee will present the necessary evidence for classification directly to the consular officer at the time of visa application. Such evidence will include the original or copy of the Labor Condition Application signed by the prospective employer and approved by theDepartment of Labor. Procedures for the E-3 visa are similar to those established for obtaining H-1B1 classification under the U.S.-Chile and U.S.-Singapore Free Trade Agreements.
• May Spouses Work?: Yes. INA 214(e)(6) permits the spouse of a principal E nonimmigrant to engage in employment in the United States. As is the case for the spouse of a principal E-1 and E-2 nonimmigrant, the spouse of a qualified E-3 nonimmigrant may, upon admission to the United States, apply for an employment authorization document, which an employer could use to verify the spouse's employment eligibility. Such spousal employment may be in a position other than a specialty occupation.
• For the full text of the State Department regulation, please click here.

09/02/2005: Burundi & Sudan TPS Extension Regulation Published

• Burundi
• Sudan

09/01/2005: State Department to Publish Australian E-3 Visa Final Regulation Tomorrow Morning

• The long-awaited U.S. Department of State regulation to implement a legislation which created a new visa category (E-3) for Australian professional will be published in the federal register tomorrow morning.

09/01/2005: Brundi & Sudan TPS Designation Extension Due Release Tomorrow

09/01/2005: Mr. DOL, Now August 31, 2005 Has Come and Gone. Are You Going to Unfreeze "In Process" PERM Applications?

• The PERM program has been shievering and tons of cases have been frozen in that hateful status report on its website of "In Process." The current problem was all caused by the insufficient preparation and review of issues in the electronization of the foreign labor certification program. Even though they withdrew it a few days back, apparently the DOL had set a cut-off date of August 31,2005 for processing of the backlogged PERM cases approving only one application for one employee. Well, the day has come and gone, and we want to see the PERM backlogged cases to move on, whatever the consequences will be. Lack of consistencies and uniformity in the management and processing of the foreign labor certification applications in both PERM and Backlog Processing Centers is reported everywhere nowadays. There are signs of arbitrariness in management and processing of applications all over and the oversight authorities should come forward to straighten out the current mess.

09/01/2005: DHS & DOS Advance Notice of Implementation of Travel Document Requirements for U.S. Citizen and Certain Western Hemisphere Travellers

• The Department of Homeland Security and the Department of State jointly released an advance notice this morning in the federal register to implement the travel document requirements for the U.S. citizen and Western Hephispher travellers to travel in and out of the United Sates in the following fashin:
• Air and Sea Crossings: Beginning December 31, 2006, all individuals traveling to the United States by air or sea will be asked to present a valid passport or other document, or combination of documents that have been deemed by the Secretary of Homeland Security to be sufficient to establish identity and citizenship. A valid passport will satisfy this requirement and other documents will be considered as possible alternatives to passports in advance of this implementation date. DHS and DOS anticipate soliciting comments through a notice of proposed rulemaking in order to fully consider possible alternatives to passports. This rulemaking process will take place sufficiently in advance of the implementation date for this phase of the program.
  Land Crossings: Beginning December 31, 2007, all individuals arriving at United States land border crossings will have to present either a valid passport or another document, or combination of documents, deemed by the Secretary of Homeland Security to be sufficient to establish identity and citizenship. We expect that BCCs and registered traveler programs such as SENTRI, NEXUS, and FAST will be accepted. DHS and DOS also anticipate soliciting comments on the implementation of this phase of the program well prior to December 31, 2007 through a notice of proposed rulemaking. Persons traveling during the implementation of IRTPA should plan to depart from the United States with documents sufficient to meet any new requirements that will be in place when they return. For the full text of the notice, please click here.
  

09/01/2005: The First Day of September and Signs of the Fall

• We often enjoy the beauty of the Spring through the misty fog in early dawn of a Spring day. In the Fall, we feel crispy fresh air and smell filled the night sky with twinkling stars and the picturesque Moon hanging over the ceiling of the Earth. In our busy days of modern life, we often miss the opportunities to enjoy the beauty of the nature where we live in. We do not have to go to a mountain or a sea. We can just get up in the night or early in the morning and just walk out to feel and smell fresh and crispy fall air and look up the sky to enjoy the beauty of the nature which words cannot describe. Please try it.

09/01/2005: Who is Emilio Gonzalez?

• A powerful Cuban-American and invisible right-hand for Bush and Rice for Western Hemisphere foreign policy. Please learn about your next captain of the American immigration sail boat. Read on.

08/31/2005: Dr. Emilio T. Gonzalez, New USCIS Director

• The President intends to nominate Emilio T. Gonzalez, of Florida, to be Director of the Bureau of Citizenship and Immigration Services at the Department of Homeland Security. Dr. Gonzalez currently serves as Senior Managing Director of Global and Government Affairs for Tew Cardenas, LLP. Prior to that, he was Director of Western Hemisphere Affairs for the National Security Council. Earlier in his career, Dr. Gonzalez served in the U. S. Army for 26 years, retiring as a Colonel in 2003. During his time in the military, Dr. Gonzalez served at the U.S. Embassies in El Salvador and Mexico and directed the Office of Special Assistants for the Commander-in-Chief of the U.S. Southern Command. He received his bachelor's degree from the University of Southern Florida, his first master's degree from Tulane University and his second master's degree from the United States Naval War College. Dr. Gonzalez later received his PhD from the University of Miami.

08/31/2005: OMB Cleared DOS Final Rule Publishing for the New Australian Specialty Occupation Visa (E-3)

• On August 29, 2005, the final rule for the U.S. Department of State to implement a new spcialty occupation visa for Australians (E-3) was cleared for publishing in the federal register by the OMB. The implementation of this legislation has been delayed due to the rule-making process. It is expected that the State Department will publish this final rule and implement this new visa issuance soon. Please stay tuned to this website for the development of this news.

08/31/2005: Recapture of H-1B Time for H-1B Extension: "Meaningful Interruption" Requirement Policy Under Repeated Attack by AAO

• We reported in December 2004 that the AAO overtuned the Nebraska Service Center denial of H-1B extension based on the long-standing INS or USCIS interpretation of the regulation that unless the overseas trip meanningfully interrupted the H-1B employment, the H-1B alien could not recapture the time spent outside of the U.S., and that paid vacation was part of the H-1B employment period and did not meaningfully interrupt the H-1B employment period. Accordingly, the NSC denied the recapture of paid vacation time for the purpose of recapture of H-1B time. The AAO disagreed and overtuned the NSC decision. The AAO took a position that "any" time spent outside of the U.S. was not considered in "H-1B admission in the U.S." and the alien could recapture those time for the purpose of H-1B extension petition.
• On August 22, 2005, the AAO again struck down the denial of recapture, this time, by Texas Service Center, and reaffirmed its prior decision for the NSC case. Despite the AAO decision, the NSC has been refusing to comply with the AAO decision on the ground that it was "non-precedent" and non-binding decision. It is interesting to see whether the USCIS will continuously decline to give due deference to the appellate body's decision, albeit non-precedent, and refuse to follow a ruling of the AAO which has repeatedly affirmed its interpretation of the USCIS regulation.
• It is time for the USCIS HQ to revisit the so-called Jacklyn Bernartz doctrine of "meaningful interruption" for the recapture of the H-1B time and release a memorandum to confirm its position consistent with these AAO decisions. Failure to release such memorandum will deepen the wounds of bickering on this issue between the USCIS field offices and its internal appellate body, AAO.

08/30/2005: Effect of Change of Employer After 180 Days "but" Before I-140 Approval

• Recently released Yates Memorandum of USCIS allowed the EB-485 waiting aliens to change employers after 180 days on a condition that the USCIS will eventually review the underlying I-140 petition and "if found approvable," then approve the pending EB-485 even if the alien changed employer before 1-140 was approved. It thus appears that the operative language is "approvable" I-140 petition.
• On January 10, 2005, the AAO denied the EB-485 application where the alien had changed employer after 180 days but underlying I-140 had been afterwards denied. It appears that the AAO decision was handed down in a similar vein that portability of I-140 may not require "approved" petition for porting but must be "approvable" and eventually adjudicated and approved. This decision must thus be taken as a warning that the passage of 180 days is "not a panacea" of I-140 porting, no matter what the underlying I-140 petition is.
• The AAO decision has ruled the standards of "approvable" narrowly which the Yates memo set forth afterwards. The Yates memo appears to instruct the adjudicators to approve the EB-485 if the underlying "pending" I-140 petition is found to have a merit and is approvable. The AAO decision appears to have narrowed it down in that even if the I-140 petition is not meritless nor baseless, once the underlying I-140 petition is denied for whatever reasons, EB-485 application should be denied.
• The Yates memo and this AAO decision left open the rule for the consequences of withdrawal of "pending" I-140 petition by the original employer after 180 days. Liberal interpretation of the Yates memo may allow advancement of an argument that inasmuch as the petition was "approvable," regardless of the petitioner's withdrawal of the I-140 petition after 180 days, pending I-485 should be approved. But we will have to wait and see how the rule will develop in this area of law. The current interpretation of the AC-21 180-day rule just states that the withdrawal of the "approved" I-140 petition would have no effect on the pending I-485 applications once the I-140 petition was approved but withdrawn after 180 days of I-485 filing.

08/29/2005: USCIS Motion/AAO Appeal Fee Increase Effective 09/28/2005

• The USCIS released a notice this morning that the appeal fee will increase from the current $110 to $385 effective 09/28/2005. Applications mailed, postmarked, or otherwise filed, on or after September 28, 2005 require the new fee.
• USCIS records indicate that the following numbers of business-related petitions were denied during the Fiscal Year 2003/2004 biennial period:
  • Form I-140, Immigrant Petition for Alien Worker (35,866 denials)
    Form I-526, Immigrant Petition by Alien Entrepreneur (217 denials)
    Form I-829, Petition by Entrepreneur to Remove Conditions (174 denials)
    Form I-129, Petition for Nonimmigrant Worker (171,154 denials)
• Based on these figures, the volume of denied petitions that might be appealed to the USCIS over a two-year period is 207,411. During the fiscal years 2003 and 2004, the AAO received approximately 50,000 appeals. For the full text of the federal register notice, please click here.
  
  

08/29/2005: USCIS to Raise Immigration Benefits Filing Fees Soon

• The last time when the USCIS raised the immigration filing fee was April 30, 2004. The USCIS is about to adjust the overall immigration benefits filing fees again. The USCIS has a rule which allows the agency to periodically adjust the filing fees to reflect the consumer index changes by publishing a notice. Stay tuned.

08/28/2005: Bush Seeks Cut-Off Date for Illegal Alien Temporary Guest Worker Relief at January 31, 2004

• As we reported earlier, when the Congress reconvenes after September 6, 2005, the immigration reform proposals are expected to receive one of the few legislative items which the Congress and the Nation will debate. Reportedly, Bush is under pressure from the business community that need the Mexican workers for business to act on the immigration reform legislation. There are two bills in the U.S. Senate (McCain-Kennedy vs. Cornyn-Kyl). Report indicates that Bush is working on compromise between these two bills through supporting McCain-Kennedy bill in legalization of the illegal aliens without subjecting them to forced return to their home country, and supporting Cornyn-Kyl bill by objecting to outright legalization and adjustment of status to a lawful permanent resident status within the U.S. Bush is also reportedly to allow the temporary guest worker benefits for illegal aliens only to those who entered the U.S. before February 2004. Please stay tuned to this website for the development of immigration reform news.

08/27/2005: USCIS Motion/AAO Appeal Fees Increase Notice on Monday, 08/29/2005

• We posted the following news on July 30, 2005. The USCIS is scheduled to publish this notice on Monday and the filing fee is scheduled to up within 30 days of the notice.
  • 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.

08/26/2005: Impact of Withdrawal of FAQ Round 5 on Multiple Applications

• The DOL PERM applications which were rerun in late June 2005 after the disastrous decision matrix denials have been under siege for several months. Later, the DOL released the FAQ Round 5 laying out its policy on the multiple applications, which the DOL intended to implement beginning from August 31, 2005. This led to a rumor that the rerun cases have been under siege pending implementation of new policy on the multiple applications effective August 31, 2005.
• Well, the new policy has now been withdrawn. Since these multiple applications issue has been resolved, we want to see the National Processing Centers to process and adjudicate these mountain of cases as quickly as possible. The current clog in the PERM system is truly flying in the face of the purpose of electronic processing system.

08/26/2005: Salute to AILA for the Job Well Done on DOL Withdrawal of Multiple Applications FAQ

• This reporter has been travelling in New York city for a last few days and just learned that behind the DOL's withdrawal of one-employer one-employee one-LC application policy which was announced in the PERM FAQ Round 5 and which would have taken effect beginning from August 31, 2005 were the strenous and all-court pressing efforts of the American Immigration Lawyers Association adding pressure and persuading the DOL leadership to take a time to relook at the issues and the policy closely. It thus sounds as though that for a while, the multiple applications within and between the PERM and/or Backlog processing systems will stay alive without any deadly consequences. Hats Off to you, AILA!

08/25/2005: Multiple Applications, LC Fraud Fear, DOL Ongoing Turmoil, and Simple Solution

• The DOL's flip-flop on the multiple labor certifications for the same alien by the same employer reflects continuing turmoil and struggle the agency is going through to find a solution for the issue underlying the multiple applications.
• It is a time for the DOL to closely look at its statutory mission and role in the foreign labor certification and the employment-based immigration process, which is to determine the "availability" of the "qualified" U.S. workers. In a sense, all other issues should rest with the U.S. Department of Homeland Security and the U.S. Department of State, including the bona fides existence and eligibilty of the "employer" and the "alien beneficiary" for the certified labor certification applications. The DOL's role should rest with the oversight and administration of the U.S. employers' test of the labor market in good faith such a manner that no fraudulent activities affect the integrity of the labor market process and the U.S. workers are protected from flood of foreign labor forces that are available in the U.S. labor market.
• However, the PERM program and Backlog Elimination Program have revealed an unjustied deviation from its statutory and convenional role in the immigration process. For instance, undeniably the DOL has been wasting incredible amount of resources and time to determine the existence of the employers for the applications. Besides, the paranoia and obsession of the agency on this front-end issue have clogged the pipeline of the labor certification process very negatively affecting its labor certification application processing times. One questions how many so-called employer registration process and "sponsorship" phone calls and e-mails of the DOL in the PERM program have detected non-exitence of employers or frauds. The same question goes to the Backlog Processing Program. One wonders how many so-called "45-day letters" have detected non-existence of the employers or frauds. It appears that until now, the DOL has consumed indeed inordinate amount of energy, resources, and time on the issue which should have been left to the USCIS in I-140 immigrant petition adjudication process. It should remain the job of the USCIS when it comes to the existence, qualification, and eligibility of the employers. Why should two Departments of the federal government perform the same work in duplicate, wasting the resources and time?
• As for the fraud issues involving the multiple applications, we thought the DOL and USCIS found a right direction and solution with the initation of rule-making process to terminate substitution of the approved labor certification applications. By eliminating the substitution of the labor certification applications, the agency would be able to resolve the underlying issues in both "identical" job situation as well as "unidentical" job situation. For instance, assume that an employer obtains two labor certification applications for the same employee for an identical job. The proposed regulation will turn the second approved labor certification application into a trash. The same is true with "unidential" job applications for the same employee. Assume that an employer filed and obtained labor certification application for EB-2 and another application for EB-3 for an unidentical position. Assume also that the employer obtained both EB-2 and EB-3 applications. Under the proposed regulation, the employer will not be able to substitute the alien beneficiary of any certified labor certification applications. Additionally, the proposed regulation will practically invalidate certified labor certification application unless it is used within 45 days. Since only "one" and "same" alien can use these approved labor certification applications, there is no room for fraud involving the multiple labor certification applications.
• Of course, there are two issues: One is waste of government resources processing and adjudicating a number of applications for the same employee by the same employer, some of which will eventually turn into trash. Second is potential fraudulent filing of applications for a non-existing job, an issue of fraud. The solution for the first issue should be reflected in the DOL's labor certification application user-fee plan and the determination of the amount of the labor certification application fees to cover the cost of the labor certification application operation. The second issue will rest on the USCIS determining the existence of the certified position, which will be followed by enforcement actions including criminal prosecution.
• It is urged that the DOL looks at its current dilemma and problem in a broader context and perspectives and quickly streamlines the process such that it returns to its intended and mandated missions and roles of the agency and resumes efficiency and effectiveness of its foreign labor certification management as swiftly as possible.

08/25/2005: Burundi & Sudan TPS Designation to be Extended

• USCIS intends to extend the TPS designation for Burndi and Sudan and is anticipated to release the notices soon. Please stay tuned.

08/25/2005: DOL Withdrew One-Employer/One-Employee One-Labor Certification Only Policy in FAQ Round 5

• On August 11, 2005, we summarize the DOL's policy announcement in FAQ Round 5 concerning the multiple labor certification applications filings by the same employer as follows:

"08/11/2005: "One Employer-One Employee-One Labor Certification" Principle Adopted by DOL

• According to the Frequently Asked Questions Round 5 which was released yesterday, the DOL will recognize and certified only one labor certification for one employee by the same employer regardless of identical job or different job (Principle of One Labor Certification for One Employee Only with One Employer). Accordingly, effective August 31, 2005, the DOL will take following actions:
• PERM Cases:
  • (1) Once one PERM case is certified, all other PERM applications filed by the same employer for the same employee will be denied regardless of same job or different job.
  • (2) Once one PERM case is certified and any backlog case is pending at the Backlog Processing Centers for the same employee, regardless of same job or different job, the Backlog Center will issure Notice of Findings to deny the pending backlog cases.
• Backlog Cases:
  • Once one backlog case is certified, any other cases pending at the PERM National Processing Centers or the Backlog Processing Centers will be denied.
• Revocation of Multiple Certified Cases:
  • Should they learn that multiple applications have been inadvertently certified for the same employer and the employee, regardless of same job or different job, all the cases which have been certified after the first case certification will be revoked by the DOL. Only first certified case will thus survice.
  • If the DOL inadvertently certified both PERM application and the backlog application, regardless of the sequence of the certifications, the DOL will revoke the PERM application.
• Multiple Pending Cases:
  • When an application is pending, employer must first withdraw a pending application before a new application is filed for the same employee.
  • If Employer filed multiple cases and all these cases are pending, only the application which was filed "last" will be certified and all other cases which were filed prior to the last case filing will be denied.
  • For the details, read the full text of PERM FAQ Round 5."
• The DOL has now withdrawn the foregoing policy statement and the queston on the effect of multiple labor certification applications for the same alien by the same employer has returned to SQUARE ONE again!
• What does this withdrawal mean? Simply put, there will be no answers for this question until the DOL announces a new policy.

08/23/2005: U.S. Master Degree H-1B Filing Jurisdiction

• Report indicates that the H-1B filing for U.S. Master Degree holders must be filed the special address of Vermont Service Center, but the same for FY 2006 to start employment after 10/01/2005 must be filed with the Service Center of the normal jurisdiction and not the special address VSC!

08/23/2005: FY 2005 H-1B Still Available for U.S. Master Degree Holders

• According to the AILA, H-1B number for FY 2005 is still available.

08/21/2005: Quite Immigration Reform Legislative Activities Until 09/06/2005 When the Congress Returns to the Session

• The heat of immigration reform legislative activities and duel will be recharged with intensity when the Congress returns to the Hill on September 6, 2005, Tuesday. Immigrants, please enjoy quite two weeks!

08/20/2005: Availability of H-1B for Former H-1B Professionals During Period of FY 2006 H-1B Cap

• Currently change of status from another nonimmigrant status to H-1B is not available until October 1, 2006 unless he/she is exempt from the cap or has a master or higher degree from U.S. higher education institutions. For whatever reasons, there are a number of professionals who was one time in H-1B status but changed the status to another nonimmigrant classification such as F-1, F-2, H-4, L-1, L-2, J-1, J-2, TN-1, TD, B-1, B-2, or any other classification or who recently returned to their home countries or other countries. These former H-1B professionals should understand that unless they stayed continuously outside of the U.S. for one year during the past six years, they will be eligible to apply for a new H-1B visa status regardless of the FY 2006 H-1B cap. Once this condition is met, even those who have fallen out of status but have not overstayed for 6 months or longer beyond the permited period in the I-94 may be able to obtain the H-1B status through the consular processing. Unless they stayed longer than 6 months beyond I-94, they are not subject to the three-bar to admission to the U.S. and the U.S. visa posts should not deny the H-1B visa applications solely on the grounds of their overstay less than six months. Those who have changed status from H-1B to F-1 or F-2 or J-1 or J-2 or I-1 or I-2 are also eligible to apply for H-1B visa at the visa posts regardless of their overstays in the U.S., no matter how long the overstay lasted, unless the DHS officials or Immigration Judge or Consular Officer previously decided that h/she was overstaying their nonimmigrant status. The F or J or I nonimmigrants are staying in the U.S. in "duration of status" and there is no ending date in their I-94. Therefore unless the DHS officials or consular officers or immigration judge determined that their status was unlawful presence, despite their out of status, their unlawful presence does not run and they are not subject to the 3-year or 10-year from returning to the U.S. The visa posts are not authorized to deny H-1B visa solely on the ground of their previous out-of-status. For Canadian visitors, a similar rule applies that the unlawful presence will not run unless the DHS officials or consular officers or immigration judge determined that his/her stay in the U.S. was unlawful.
• It is thus imperative that former H-1B professionals should seek H-1B status or visa through a new or forther employer if they are assured by evidence that they meet the four conditions: (1) They did not stay outside of the U.S. continuously for one year after attaining the H-1B status. (If they did, then they are subject to the H-1B cap). (2) They did not stay in the U.S. for 6 years in the H-1B status. ( If they did, they have used up H-1B 6-year limit and they are subject to the cap.) (3) They did not stay in the U.S. in out of status (in which case change of status is unavailable within the U.S., no matter how long it lasted. Some of these out-of status former H-1B may still be able to seek H-1B visa at the visa posts inasmuch as their out of status did not pass six months beyond I-94 expiration date). (4) In the event that they need to apply for H-1B visa at the visa posts rather than change of status to H-1B within the U.S. because of their previous out-of-status, they should make it sure that they are not subject to 3-year or 10-year bar from returning to the U.S. by assuring themselves that (a) they did not overstay longer than 6 months beyond their I-94 expration date, or (b) in the case of F, J, and I nonimmigrants, no government officials determined that their stay was unlawful and they continuously stayed in the U.S. for 6 months or longer after such determination.
• Additional note: If the former employer has not withdrawn the H-1B petition on his/her behalf and there are still some periods remaining for the approved H-1B petition to expire, he/she can return to that employer in H-1B status. Approved H-1B remains valid until it is withdrawn or revoked or expired. If he/she had multiple H-1B petitions approved in the past through multiple employers but took only one H-1B employer job, he/she can take the H-1B job with another H-1B employer inasmuch as the approved H-1B petition is still valid and the approved petition has not been withdrawn or revoked. Finally, the rule of recapture of H-1B period for overseas trips will apply in all of these cases.
• Caveat: Those who want to explore the H-1B through the foregoing options should never attempt to handle their cases themselves as there can involve complicated legal issues which are deadly. They should, without exception, seek legal counsel before they act on it. This posting is general outline and does not apply to individual cases and people should not rely on this internet message. We will not be responsible for the consequences of such reliance.

08/19/2005: Visa Number Retrogression, Cross Chargeability of Spouse's Country of Birth, and Proper Action Required for the Benefits

• Whenever there were EB-visa number retrogressions, this web site posted and reminded the readers of availability of cross chargeability of the spouse's country of birth for the determination of visa number availability when the principal EB-beneficiary's visa number was not available but his/her spouse's country of birth visa number was available. In August and September 2005, EB-3 visa number will remain "Unavailable" throughout the world and cross chargeability will be of no help, but once EB-3 visa number becomes available beginning from October 1, 2005 for all the countries other than certain countries such as India and China, cross chargeability of the spouse's country of birth will provide an important tool for Indians and Chinese to bypass their visa number problems.
• The conference with the Texas Service Center indicates that the agency would require such cross chargeability case to mark visibly and in bold "Cross Chargeability" I-485 application when they file I-485 under the rule of cross chargeability. Otherwise, the agencies may reject such filing for the reasons that visa numbers are not available. Important practice point to remember.

08/19/2005: Why Two Different Types of I-485 Approval Notices?

• Nowadays, when I-485 is approved, in most cases the plastic green card is delivered to the new permanent resident in the mail from one week to two weeks. Sometimes, the plastic card is delivered to the new permanent resident in from four to five days, almost simulataneously with the approval notice. However, some people do not receive such plastic cards for a prolonged period of time.
• One can learn from the approval notice where his/her case falls. If he/she receives in the mail "Welcome" approval notice, it is an indication that the plastic card will be delivered in the next few days. On the contrary, it he/she receives the approval notice without the "Welcome" language and there is an instruction to schedule fingerprint and biometric collection, it means that the plastic card will not be produced and delivered until the fingerprinting and biometric collection are completed.
• Why this happens? According to the USCIS, if the I-485 applicant has already completed both fingerprinting and biometrics collection at the ASC at the time I-485 is approved, the card is digitally produced and mailed out instantly upon the approval of the I-1485 and he/she thus receives a message in the approval notice that he/she is "welcome" to the USA and will receive the plastic card (I-551) shortly. On the other hand, if the ASC collected fingerprints only and biometricts have not been collected before the approval of the I-485, the USCIS still approves I-485 but the approval notice will require him/her to schedule an Infopass appointment to collect biometrics and until the biometrics have been collected, the plastic card will not be produced even if the I-485 has been granted.
• Accordingly, those whose I-485 applications have been approved should read the approval notices carefully. If the "Welcome" approval notice is received but he/she fails to receive the plastic card in the mail in a few days or two or three weeks longest, he/she should call the 1-800-375-5283 number to notify the USCIS. On the other hand, those who just receive approval notice without the "Welcome" message but requiring ASC appointment should make an appointment and provide biometrics per the instructions in the approval notice timely and promptly. Otherwise, they will experience delays in receiving the plastic cards!

08/18/2005: EB-3 Visa Number Problem and Likely Relief by Pending Immigration Reform Bills

• So far we have reported a depressing EB-3 visa number prediction based on the current immigration law that allocates only 140,000 a year for the employment-based immigrant visas. However, there are two leading immigration reform legislative bills pending in the Senate which are likely to give some relief to the EB-3 backlog problem, should the bills be enacted into law. One is McCain-Kennedy bill, S. 1033, and the other Cornyn-Kyl bill, S.1438. These bills have attracted a lot of attention from the media and public in two respects: Differences in the two bills in the issues of legalization of illegal aliens and the weight of border and enforcement in the nation's immigration policy.
• However, from the perspective of the employment-based immigrant community, these two bills will benefit, albeit differently, the EB-3 workers tremendously. The following table compares the current EB visa number allocation system with proposed changes in the allocation system in these two bills:

  • 	Current System	Cornyn-Kyl bill	McCain-Kennedy bill	Remarks
    EB Total Annual Quota	140,000(100%)	190,000(100%)	290,000(100%)
    EB-1	28.6%	20.0%	20.0%
    EB-2	28.6%	20.0%	20.0%
    EB-31	28.6%*	35.0%	35.0%	*Includes EB-3 EW unckillsed other worker upto 10,000
    Current EB-3 EW Other Workers**	Included in EB-31*	-**	-**	**Current EB 3 EW is reclassified into the new EB-5 preference
    Current EB-4 (Special Immigrants)***	7.1%	-***	-***	***Current EB-4 category removed.
    Current EB-5(Investor)****	7.1%	-****	-****	****Reclassified into the new EB-4 preference
    New EB-4(Investor)	-	4.0%	5.0%	Formerly EB-5
    New EB-5(Other Workers)	-	Upto 36.0% (21.0%)	Upto 30.0% (20.0%)	Formerly EB-3 EW Other Workers. Since it is the lowest preference, if EB-1, EB-2, EB-3, and EB-3 use up their numbers, the practical available number would be the figures in the parenthesis.
    	100.0%	100.0%	100.0%

• Under both Cornyn-Kyl bill and McCain-Kenney bill, the big winners will be the current EB-3 workers. For instance, current EB-3 quota, excluding nurses and physical therapists, is approximately 40,000 a year including EB-3 skilled and professional workers and EB-3EW other workers (upto 10,000), but it will increase to 104,000 plus (66,500 EB-3 + 38,000 new EB-5) under Cornyn-Kyl bill, and to 159,000 plus (101,500 EB-3 + 58,000 new EB-5) under McCain-Kennedy bill. Part of this benefit will come from termination of immigration visa lottery, 55,000 (DV Program). Both bills also provide positive recapture of unused numbers in the previous years which will lead to some numbers available for the regular EB-3 workers after taking away 50,000 numbers by the nurses and physical therapists.
• When it comes to the specific numbers, the two bills differ to a great extent, but remarkably both bills are committed to reducing the serious EB-3 backlogs under the current immigration quota system. This is a good news.

08/17/2005: October New Fiscal Year Visa Number Allocation and USCIS Preparation for Adjudication of EB-3 485 Applications

• Early next month, September, DOS will release the October 2005 Visa Bulletin and people will see the impact of new fiscal year visa number allocation on EB-3 visa number availability. As the State Department has already predicted, EB-3 visa number may become current for world-wide, and even for China and India, some numbers may become available inasmuch as their priority dates are older than the new cut-off dates which the October 2005 Visa Bulletin will establish.
• Report indicates that the Service Centers have been continuously processing EB-485 cases even though their visa numbers are currently unavailable and they cannot decide the cases. They are getting ready for October 1, 2005! No wonder why the EB-3 I-485 applicants have been receiving biometic appointment letters en masse lately. This is certainly not a bad news at all.
• Here are a few pointers which may help the people who have been anxiously waiting for the EB-3 visa numbers becoming available for them:
  • First, when you receive the biometric scheduling, you should never reschedule it as it can cause a delay in processing your EB-3 I-485 applications. For Indians and Chinese, you may learn that such rescheduling will turn out be one of the most serious mistakes you would ever have made in the immigration journey.
  • Second, when RFE is received for either I-140 or EB-3 I-485 applications, you should send in responses as promptly as possible so that your cases will get ready for adjudication when the EB-3 visa numbers will become availabe on October 1 and thereafter.
  • Third, you should not do anything that can trigger transfer of EB-3 I-485 applications to the local district offices for interview or issuance of RFE. Once the cases are transferred to the local offices, the cases are subject to the local offices processing queue and decisions can be delayed substantially. Same will be true with the RFE. Those who have changed employers using AC 21 180-rule may want to assess the advantages and disadvantages of proactively reporting their employment changes with the help of their legal counsels.
  • Fourth, you should not do anything that will either cause a delay in completion of the name checks or trigger trasfer of the case to local district offices for clarification of issues that surfaced through the name checks for fact findings through the interviews. Minor violations of criminal law or local ordinance that require fingerprinting may trigger transfer of the cases to local offices, no matter whether it involves a deportable offense or not. Exit from the U.S. may also be reported by BCP inspectors through the database and the surrendered I-94 documents, which can cause some delays in adjudications, even though in most cases international travelling should not and have not affected adjudication of I-485 applications.
  • If you have any violation of status in whatever forms after filing I-485 applications, your contact with the agencies through extension or change of nonimmigrant status should be minimized as their findings of violation of nonimmigrant status post-filing of I-485 will seriously affect your eligibility for adjustment of status.

08/16/2005: Extension of Liberia TPS Designation

• This Notice extends the designation of Liberia for 12 months, until October 1, 2006, and sets forth procedures necessary for nationals of Liberia and aliens having no nationality who last habitually resided in Liberia with TPS to re-register and to apply for an extension of their employment authorization documents (EADs) for the additional 12-month period. Re-registration is limited to persons who registered under the current designation (which was announced on August 25, 2004). Certain nationals of Liberia (or aliens having no nationality who last habitually resided in Liberia) who previously have not applied for TPS under the current designation may be eligible to apply under the late initial registration provisions.
• The extension of TPS for Liberia is effective October 1, 2005, and will remain in effect until October 1, 2006. The 60-day re-registration period begins August 16, 2005 and will remain in effect until October 17, 2005. See Federal Register Notice.
• Check also with the USCIS announcement and Q&A for further details.
  

08/15/2005: DOL's Misguided and Unauthorized Change of Policy on Multiple LC Filings

• Apparently when the foreign labor certification reengineering was designed, the leaders in the Foreign Labor Certification Division of DOL must not have foreseen the potential problems of multiple filings during the period of transition from the backlog processing system to the new electronic filing system of PERM as evidenced by the PERM final regulation which failed to provide any rules on the effect of multiple filings by the same employer for the same employee. As we pointed out sometimes back, the problem has since developed into a serious situation due to the critical faults in the decision matrix system which was followed by massive denials of online applications and employers repetitive filings of the same applications for the same employee over and over again, not to mention another applications pending in the backlog processing system. Had they really feared the problems involved in the multiple applications filings, they should have incorporated certain legal devices in the PERM regulation such that the alleged labor certification system is not abused, which they failed. Alternatively, they could have initiated the rule-making procedure "timely" to remove the substitution of the beneficiary for the approved labor certifications, which would have resolved in part the potential misuse and fraudulent activities involving some multiple filings. Again, they failed on this option as the substitution elimination rule finalization has a long way to go.
• Apparently to cope with the problem, the DOL attempted a short cut route making a new rule or policy "without any legal authority" and "without the required legal procedure of the rule making that all the multiple applications but one will be denied or if approved, revoked. This policy should have been incorporated in the PERM final regulation, had they really intended to adopt such politices. A policy or legal procedure which profoundly affects the parties' substantive as well as procedural rights cannot be arbitrarily enacted into a rule without taking a proper steps which are required for rule-making process. Obviously, they could have thought that by accelerating the national database for the permanent labor certification systems including the backlog processing and PERM processing probably by the end of August 31, 2005, they might be able to detect "in part" some of these multiple filings. It is anticipated that this new policy will face a serious litigation.

08/14/2005: H-1B 3-Year Extension Beyond Six Years During Visa Number Unavailability

• When people talk about the H-1B extension beyond six year limit, they often call it "7th Year Extension" and extension in one-year increment pending labor certification application for 365 days. However, this one-year increment extension benefit must be sought only by those who are not eligible for extension of H-1B beyond six years in "three-year" increment.
• Three-year increment H-1B extension is available to those (1) whose I-140 petition has been approved but who cannot complete the green card process (2) because of the visa number unavailability. The thresholds for the three-year increment H-1B extension are two-folds: (1) Visa Number is Not Available for Him in the Visa Bulletin, and (2) I-140 immigrant petition has been approved. Accordingly, those EB-3 applicants who have received I-140 petitions are eligible for the three-year extension now since currently no EB-3 visa number is available for anyone. Currently, I-140 approval takes a short time, CSC and TSC processing I-140 petitions with the Receipt Date of May 2005, and VSC processing I-140 petitions with the Receipt Date of March 2005. Seeking 3-year extension as opposed to one-year extension will save oneself from lots of hastles and expenses which are involved in H-1B extension filing.

08/14/2005: Proposed Rule to Eliminate LC Beneficiary Substitution and Timeline

• Apparently, there are some people who misunderstood that since the OMB approved this proposed rule, the elimination of the approved labor certification substitution is imminent. That is not true. This is a "proposed" rule and it will have to go through the comment period after the federal register publication. Until Interim or Final rule is published after going through another cycle of OMB review and federal register publication, the substitution of the approved labor certification remain available.
• One additional note: Readers must have noticed from our outline of the soon-to-be-published proposed rule that the proposed rule will eliminate not only substitution of "approved" labor certification but also substitution or replacement of the alien beneficiary for the pending labor certification application by amendment of the ETA 750.

08/14/2005: OMB Cleared TPS Designation Extension for Liberians

• The USCIS sought review and approval of this notice on August 4, 2005. The OMB quickly cleared and approved on August 12, 2005. This notice is expected to be published in the federal register in the very near future. Please stay tuned.

08/12/2005: Dear Employers & Immigration Practitioners, Please Join AILA's Campaign to Push Congress to Act on Current Serious H-1B Cap Crisis

• The AILA is spearheading to push the Congress to act on the H-1B cap problem and urge the businesses, employers, or for that matter, anyone to contact their U.S. Senators and House members for their help. To make such contact easier, the AILA has drafted the letters for you. All you have to do is to fill out your name and address and click. You do not even have to know your Senators' or Congresspersons' names or contact addresses. It is literally your finger tips away.
• Please go to http://capwiz.com/aila2/mail/oneclick_compose/?alertid=5183421 and fill out your name and address. Rest of the job will be done by the computer.

08/12/2005: OMB Approved DOL's Proposed Rule to Eliminate Substitution of LC and 45-Day Cap for Approved LC

• On August 10, 2005, the OMB cleared the DOL's proposed rule entitled Labor Certification for the Permanent Employment of Aliens in the United States; Reducing the Incentives and Opportunities for Fraud and Abuse for publishing in the federal register. In this rule, the DOL is proposing changes to reduce the incentives and opportunities for fraud and abuse related to the permanent employment of aliens in the United States. Among other key changes, the DOL is proposing to (1) eliminate the current practice of allowing the substitution of alien beneficiaries on applications and approved labor certifications. DOL is proposing to further reduce the likelihood of the submission of fraudulent applications for the permanent employment of aliens in the United States by (2) proposing a 45-day deadline for employers to file approved permanent labor certifications in support of a petition with the Department of Homeland Security. The proposed rule expressly prohibits the sale, barter, or purchase of permanent labor certifications or applications, as well as related payments. DOL will also (3) propose enforcement mechanisms to protect program integrity, including debarment with appeal rights. These proposed amendments would apply to employers using both the Application for Alien Employment Certification (Form ETA 750) or the Application for Permanent Employment Certification (Form ETA 9089).
• Considering the recent DOL policy change to prevent labor certification frauds, it is anticipated that this proposed rule will be published in the federal register very swiftly. Please stay tuned to this website for the development of this rule-making.
  

08/12/2005: Mystery of H-1B Cap Reach Announcement

• According to the USCIS website report, cap usage count as at August 4, 2004 (Thursday) was as follows:
  • Available Cap Number for FY 2006 : 58,200
  • (1) Cases Approved: 22,383
  • (2) Cases Pending: 29,556
  • Total Cap Used (1) + (2) = 51,939
• If this repor was correct, USCIS had available cap number of 6,261. Assuming that the cap number reached on August 10, 2005 (Wednesday), in four (4) working days they should have received 6,261 cap H-1B petitions. Unless there is some other explanation behind this announcement, reasonable person will not be able to comprehend such record. This is particularly true considering the fact that during the AILA National Annual Conference in Utah in late June, 2005, Mr. William Yates of the USCIS released the informal statistics of H-1B usage at the time at 27,300.

08/12/2005: Three Lightenings Striking Employment-Based Immigrant Community

• The employment-based immigrant community has been hit by the three lightenings, and the business communities, employers, and alien professionals are in a state of total shock and confusion. The first lightening was the September 2005 employment-based visa numbers and the DOS predictions for the coming years. The second lightening was the DOL announcement of policy changes on multiple filing of labor certifications by an employer, which indeed came out of blue without any notice. It is expected that this de facto rule making without the proper legal procedure will be stricken back with much stronger lightballs by the immigrant community, immigration legal community, business community, as well as political forces. The third lightball dropped from the sky this morning by the USCIS, announcing the reach of the H-1B cap retroactively.

08/12/2005: DOL Labor Certification Policy Changes Reflected in Round 5 FAQ and Priority Date Management Problem for Multiple Application Filers

• The U.S. Department of State's prediction of EB-3 visa numbers tends to be depressing and grim for the EB-3 immigrants across the board. Recently, this has induced the backlog application waiters to attempt PERM filings for EB-2 cases pending the backlog applications. The State Department predicts that eventually EB-2 may also retrogress, particularly for India and China. Until the FAQ was released, however, the multiple filings had given an advantage to the alien beneficiary under the USCIS rules of priority date retention and a sort of cross chargeability between the approved EB-2 and EB-3 petitions in terms of the determination of priority date. Accordingly, the upcoming regulation to remove the substitution of the certified labor certification application would have minimum impact on the alien beneficiary in terms of favorable priority date opportunity by such multiple labor certification applications and multiple immigrant petitions. However, the new policy under FAQ Round 5 of the DOL practically shuts down this opportunity by barring the employer from filing multiple applications and forcing the employer to pick and choose out of the pending multiple applications. Considering the fact that visa retrogressions will continue to the path to the hopeless aggravation for employment-based immigration, the employers who have filed multiple labor certification applications or who are considering such filing of multiple applications should carefully review and analyze the implication of such filing to the alien beneficiary's priority date and make a difficult decision on pending multiple applications. Misunderstanding or mistake in this decision will lead to a grave consequence on the alien beneficiary in that the alien beneficiary may lose the earlier and favorable priority date. It is time for the aliens who filed multiple labor certification applications through the same employer to seek legal counsel for the decision and review of their cases.

08/12/2005: E-Mail Addresses for Permanent Labor Certification Queries to DOL

• The DOL has set up different e-mail addresses for different queries as follows:
  • plc.help@dol.gov: This is e-mail help line for DFLC National HQ office. This email should be used for general or technical questions and not case specific questions.
  • plc.chicago@dol.gov: This is Chicago PERM National Processing Center e-mail helline . This email should be used for policy and case specific questions to the national field office in Chicago, including withdrawal of online PERM application.
  • plc.atlanta@dol.gov: The same for Atlanta PERM National Processing Center.
  • h1b7yr@dal.dflc.us: This e-mail address to obtain the evidence of pending backlog cases for the purpose of 7th year H-1B extension from the Dallas Backlog Processing Center.
  • h1b7yr@phi.dflc.us: Same for cases pending at the Philadelphia Backlog Processing Center.

08/12/2005: FY 2006 H-1B Cap Reached

• USCIS announced that the FY 2006 H-1B cap reached on August 10, 2005 and any cases which failed to reach the USCIS offices by the end of August 10, 2005 would be rejected.

08/11/2005: "One Employer-One Employee-One Labor Certification" Principle Adopted by DOL

• According to the Frequently Asked Questions Round 5 which was released yesterday, the DOL will recognize and certified only one labor certification for one employee by the same employer regardless of identical job or different job (Principle of One Labor Certification for One Employee Only with One Employer). Accordingly, effective August 31, 2005, the DOL will take following actions:
• PERM Cases:
  • (1) Once one PERM case is certified, all other PERM applications filed by the same employer for the same employee will be denied regardless of same job or different job.
  • (2) Once one PERM case is certified and any backlog case is pending at the Backlog Processing Centers for the same employee, regardless of same job or different job, the Backlog Center will issure Notice of Findings to deny the pending backlog cases.
• Backlog Cases:
  • Once one backlog case is certified, any other cases pending at the PERM National Processing Centers or the Backlog Processing Centers will be denied.
• Revocation of Multiple Certified Cases:
  • Should they learn that multiple applications have been inadvertently certified for the same employer and the employee, regardless of same job or different job, all the cases which have been certified after the first case certification will be revoked by the DOL. Only first certified case will thus survice.
  • If the DOL inadvertently certified both PERM application and the backlog application, regardless of the sequence of the certifications, the DOL will revoke the PERM application.
• Multiple Pending Cases:
  • When an application is pending, employer must first withdraw a pending application before a new application is filed for the same employee.
  • If Employer filed multiple cases and all these cases are pending, only the application which was filed "last" will be certified and all other cases which were filed prior to the last case filing will be denied.
• For the details, read the full text of PERM FAQ Round 5.

08/10/2005: New Prevailing Wage Determination Guidance of DFLC

• DOL has released "new" prevailing wage determination guidance and Q&A. It is quite an extensive and voluminous material.

08/10/2005: EB-2 Visa Number Current in September 2005 Visa Bulletin

• EMPLOYMENT VISA AVAILABILITY DURING FY-2006: The backlog reduction efforts of both Citizenship and Immigration Services, and the Department of Labor continue to result in very heavy demand for Employment-based numbers. It is anticipated that the amount of such cases will be sufficient to use all available numbers in many categories. As a result cut-off dates in the Employment Third preferency category will apply to the China, India, and Philippines chargeabilities beginning in October, and it is possible that Mexico may be added to this list. In addition, it is anticipated that heavy demand will require the establishment of a Third preference cut-off date on a Worldwide basis by December. The amount of Employment demand for applicants from China and India is also likely to result in the oversubcription of the Employment First and Second preference categories for those chargeability areas. The establishment of such cut-off dates is expected to occur no later than December. The level of demand in the Employment categories is expected to be far in excess of the annual limits, and once established, cut-off date meovements are likely to be slow.

08/10/2005: Thaw In Sight for the Frozen "In Process" PERM Applications?

• As reported earlier, the U.S. Department of Labor experienced the nightmare of computer decision matrix program denying almost all the PERM applications one time. Around late June 2005, in order to fix the problems caused by the decision matrix, they reran the denials and started reprocessing of denied cases, switching "denial" into processing phases and giving a tremendous hope to thousands of labor certification filers. However, apparently this process produced unexpected legal problems to deal with repeated trials by the applicants in an attempt to deal with the decision matrix denials. In order to prevent and discourage such repeated filings, the DOL changed status reporting system into a single mode, "in proces," for the entire rerun cases, and all of these cases upto mid-July 2005 have been frozen in "in process" phase without any clue as to when these cases would be adjudicated.
• Yesterday, we received a message from the National Processing Center that a notification would be sent out "shortly" for these rerun cases, giving us a glimpse of hope and thaw of frozen cases. Please stay tuned to this web site for the development of the PERM news.

08/08/2005: USCIS Service Center Processing Times of August 8, 2005

• See homepage.

08/07/2005: H-1B Cap Number Balance for FY 2005 and FY 2006

• USCIS reports that for the FY 2006 cap numbers (10/01/05 - 09/30/06), the remaining numbers are as follows:
  • FY 2006 Cap Balance Other Than U.S. Master Degree 20,000 Cap Numbers: 6,261 (as at August 4, 2005, Thursday)
  • FY 2006 (10/01/05 - 09/30/06) U.S. Master Degree 20,000 Special Cap Number Balance: 11,788 (as at August 4, 2005, Thursday)
  • FY 2005 (10/01/04 - 09/30/05) U.S. Master Degree 20,000 Special Cap Number Balance: 9,621 (as at August 3, 2005, Wednesday)

08/07/2005: American Consulate in Nuevo Laredo, Mexico Reopens Tomorrow, 08/08/2005

• The American Consulate in Nuevo Laredo that has been closed due to the security concerns will reopen tomorrow. U.S. Consulate in Nuevo Laredo, Mexico will resume normal operations on Monday, August 8, at 8:00 A.M. Visa applicants scheduled for appointments on August 8 will be seen on that day. Read on.

08/06/2005: Approaching FY-2006 H-1B Cap and Laundry List of Available Resources of Professional Workers for U.S. Employers

• As it is expected that the FY 2006 H-1B cap may reach soon and H-1B petitions are expected to be unavailable in most cases until October 1, 2006, it is about the time for the employers to check the available resources of foreign professional workers and to plan for recruitment strategies during the period of the upcoming H-1B cap gap (likely to last more than 12 months). The best list of these resources are in fact found in the immigration form, I-129 Instrucitons. The employers should check two resources: One is the list of situations which are not subject to the annual H-1B cap, and the other is the laundry list of alternative nonimmigrant visas for foreign workers. Let's go over these lists here.
• Employers and Aliens That Are Not Subject to the H-1B Cap and Will Be Available During the Period of H-1B Cap Gap:
  • Employees of Higher Education Institution
  • Employees of Nonprofit organizations related or affiliated with the Higher Education Institutions
  • Employees of Nonprofit Research Organizations
  • Employees of government research organizations
  • Foreign medical doctors who received J-1 foreign residency requirement
  • Current or previous H-1B aliens who have not left the U.S. for one year consecutively during the past six years, including the period of L-1 visa status in the U.S.
  • U.S. Master or higher degree holders (subject to separate numbers of 20,000).
• Alternative Temporary Nonimmigrant Worker Visas or Status:
  • O-1 for extraordinary workers in arts, sciences, education, business or athlets
  • P-1 for internationally recognized athlets and entertainers
  • R-1 for religious workers
  • TN for Canadian and Mexican professional workers
  • E-3 for Australian professional professional workers
  • H-1B1 for Singapore and Chile professional workers
  • I-1 for international media workers
  • H-2B for seasonal, intermittant, or temporary professional workers
  • H-3 professional aliens for temporary industrial training at the U.S. employer site
  • L-1 intra-company transfer of employees for multi-national corporations
  • E-1 and E-2 Treaty Trader or Investor workers for certain countries that have such treaties with the U.S.

08/06/2005: USCIS Intends to Extend TPS Designation for Liberians

• The USCIS intends to extend TPS desination for Liberians and is seeking the review and approval by the OMB.

08/06/2005: Non-Employment I-485 Pilot 90-Day Processing in San Diego USCIS District

• Officially, there is only one 90-day I-485 Pilot Project in the United States: Dallas District. However, last year, the USCIS, without public announcement, undertook a similar Pilot projects in such districts as New York, Miami, Los Anges, and a few others. Later the USCIS HQ disclosed that these latter pilot projects had been undertaken for a different purpose - to detect frauds. The latter projects were then suspended at the end of September 2004.
• AILA reports that the San Diego district is undertaking another 90-day processing Pilot Project. The purpose of this project is unclear, but the family-based one-step filers (I-130/I-485) can take advantage of the short-cut adjudication of their green card applications in the area. Unlike other previous pilot projects, the filers in San Diego are required to file their one-step I-130/I-485/I-765 through the NBC's Chicago Lock Box and the District schedules the interviews within 90 days from the date of filing.

08/05/2005: USCIS L-1 Change Memorandum to Implement L-1 Visa Reform Act of 2004

• This memorandum summarizes the L-1 visa and petition requirements as affected by the L-1 Visa Reform Act of 2004 which took effect on June 6, 2005. This is a "must read" material for the L-1 filers. This memorandum reminds the adjudicators that certain joint ventures are ineligible for L-1 visa petitions.

08/03/2005: Dilemma of Labor Department in Permanent Labor Certification Program Management

• As we all know by now, the USCIS and DOL have been working on the rule-making process to eliminate the substitution of certified labor certification applications which have been considered a source of fraudulent activities in the employment-based immigration process. However, this rule-making will take time and as we reported earlier, the rule may not come into force probably until the end of this calendar year.
• Currently there are two "huge" holes in the labor certification process that can induce the suspicious employers to engage in the fraudulent activities by obtaining labor certification applications for the non-existing jobs and using them for the substitutions for aliens. These "holes" have recently been created and aggravated by the transition of the permanent labor certification process from the conventional labor certification process to the new labor certification process in the name of PERM. The first big hole has developed when a PERM application is filed for the same job for which the employer has already filed a labor certification application before the new system started on March 28, 2005. When multiple applications are certified under this circumstance, the employers may be induced to use the "spare" certified application for the purpose of substitution. It appears that this is the "Fear Factor #1" for the DOL now. The DOL is currently unable to prevent this for the two reasons: First, the PERM system and the Backlog system are probably not linked each other such that the DOL can sort out such duplicative filings. Secondly, and more importantly, there are huge number of boxes which have yet to be opened, not to mention the delay in data entry at the Backlog Processing Centers. When they do not know what kind of cases they have in the Backlog boxes, there is no menas to detect such duplicative filings. Report indicates that the situation for the unopened boxes is serious for the applications in Texas because the State office in Texas delayed the shipment due to its prior outsourcing of applications to foreign contractors abroad. In fact, the special handling labor certification applications for the faculty positions have been held hostage because the Backlog Processing Centers have no way to find out where these cases were because there are so many unopened boxes and even if opened, the state offices shipped the boxes to the Backlog Centers without separating these cases in separate boxes. It appears that DOL may have no answer at this point to this potential source of fraud, should these backlog applications be certified before the substitution elimination regulation comes into force.
• More serious huge hole is created by the PERM program. Because of the faults in the so-called "decision matrix," indeed majority of online filing have been denied. These denials produced two activities by the employers. Some employers have kept refiling the applications online over and over. Other employers have filed the same applications by mail. Most of these decision matrix denial cases were rerun beginning from June 24, 2005 and reinstated for cases in various stage of review and processing. As a consequence, reportedly, there are a huge number of applications pending for the same employers and the same employees in the PERM system. Pending the DOL decision to find a solution for this problem, the DOL announced certain policy on the denied cases to discourage the employers from refiling repeatedly for the denied cases and eventually removed the denial report system in the PERM online processing. Reportedly, they are reviewing the cases denied by the decision matrix before they issue paper denials, meaning that there will be no denials by the computer decision matrix alone unless such denials are reviewed by the analysts or certifying officers first. That's fair enough. However, the question for the DOL is what are they going to do with the huge duplicative filings which are pending in the PERM system itself! If these duplicative applications are all certified, it may induce the employers to engage in the alleged fraudulent activities filing substitutions as the regulation of elimination of substitutions may not come into play for the next several months. It appears that this is "Fear Factor #2" for the DOL at this time.
• We do not know what their answers are or will be, but pending the cleansing of this mess, the employers and the alien beneficiaries are currently suffering tremendously in a "dark and deep blackhole!" We do not know what other "hell" one can think of when it comes to the depth and darkness." None of these cases is moving. They are stuck "in process" message! aMEN!!! "In Process" message is nothing but to discourage employers from refiling!!!

08/03/2005: No Cap-Gap Relief Likely for F/J Students for FY 2005

• There are less than two months left for the Fiscal Year 2005. There is a regulation which provides that the immigration services "may" exercise discretion to consider F or J student's status in-status when H-1B cap has reached until the new fiscal year starts pending the timely filed H-1B petition by the employers of such F or J students. This regulation also states that this relief will be available only when the immigration agency exercise such discretion by publishing such decision in the federal register each year. With no exception, the legacy INS and the USCIS/ICE have excercised such discretion until now when the country experienced the so-called H-1B cap-gap.
• All indication and sources of information direct to the point that the agency may break its discretion this year by not excertising such discretion for this fiscal year. In deed, we reported such possible several months ago. For F or J students whose grace period will expire before October 1, 2005 should take an action to cover themselves during the period of this cap gap by taking a temporary status extension action.

08/01/2005: FY 2006 H-1B Cap Numbers Running Out Quickly

• USCIS has reported that as of July 31, 2005, total FY 2006 49,040 numbers have been either approved or received out of FY 2006 cap number of 58,200. The annual cap is 65,000 but since 6,800 numbers are required for Chile/Singapore FTA H-1B1 cases. Read on.